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Smith v. Wolfe

United States District Court, D. Maryland

January 23, 2017

GARY L. SMITH, JR., #432-339, Petitioner


          Catherine C. Blake United States District Judge

         Gary L. Smith, Jr. filed this timely, self-represented petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his 2014 convictions in the Circuit Court for Wicomico County, Maryland for second-degree assault of a police officer, resisting arrest, rogue and vagabond, theft, and related offenses.[1] (ECF 1). Respondents, the Warden of Eastern Correctional Institution where Smith is confined and the Attorney General of the State of Maryland, filed an answer (ECF 6) to which Smith has replied.[2] (ECF 8).

         Having reviewed the parties' submissions, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner did not show he was entitled to an evidentiary hearing under 28 U.S.C. §2254(e)(2)). For the reasons set forth herein, the court shall DENY and DISMISS the petition with prejudice and SHALL NOT ISSUE a certificate of appealability.


         As outlined by the Court of Special Appeals of Maryland, on April 28, 2014, three police officers responding to a report that someone meeting Smith's description was “looking into car windows” and “jiggling door handles.” (ECF 6-7, pp. 2-6). The officers found Smith asleep inside a black Honda. Once alerted to the officers' presence, Smith awoke and moved his hands under the driver's seat. Id. After Smith refused orders to stop this movement, the officers drew weapons and ordered Smith out of the vehicle. Id. Smith exited the car, initially complied with directives, then shoved one of the officers and fled. Id. Smith was caught and resisted arrest. During this process, several items fell from his person. Id. During a search incident to Smith's arrest, police recovered a driver's license that had been reported stolen and 55 golden dollars that were the property of the owner of the black Honda. Id. The owner of the black Honda testified that Smith did not have permission to be in the vehicle and that the vehicle's glove compartment, where the coins had been stored, had been “broken.” Id. Smith filed a motion to suppress the evidence seized by the police, but this motion was denied on September 19, 2014. (ECF 6-2, pp. 35-36).

         On October 14, 2014, Smith was tried before a jury. (ECF 6-1; 6-3; 6-7). Smith was found guilty of two counts of second-degree assault of a police officer, failure to obey a reasonable and lawful order, resisting arrest, two counts of rogue and vagabond, theft under $100, malicious destruction of property under $1000, and theft under $1000, and was sentenced to serve ten years and eleven months' incarceration. (Id.).


         On direct appeal, Smith raised the following questions:

(1) Did the trial court err in denying the motion to suppress?
(2) Was there sufficient evidence to convict him of failure to obey a reasonable and lawful order to prevent a disturbance of the peace?
(3) Was there sufficient evidence to convict him of malicious destruction of property? and
(4) Did the trial court impose an illegal sentence by failing to merge:
a. the sentence for failure to obey a lawful order into resisting arrest; b. each of the sentences for rogue and vagabond into its corresponding conviction for theft?
c. the sentence for malicious destruction of property into the rogue-and-vagabond conviction relating to Richard Strautz?

(ECF 6-4). In its September 3, 2015 unreported opinion, the Court of Special Appeals affirmed Smith's judgment of conviction. (ECF 6-7). Smith's request for certiorari review as to whether the trial court erred in denying his motion to suppress (ECF 6-8) was denied by the Maryland Court of Appeals on December 21, 2015.[3] Smith v. State, 445 Md. 489 (2015).

         On March 29, 2016, Smith filed a petition for post-conviction relief in the Circuit Court for Wicomico County. (ECF 6-1; ECF 6-9). On July 29, 2016, the post-conviction court held a hearing and denied relief in a statement of reasons dictated from the bench. (ECF 6-9). The ruling was entered on August 8, 2016. Smith did not file a timely application for leave to appeal the ruling, which became final on September 7, 2016.[4]


         Smith now asserts that (1) the trial court erred by denying his motion to suppress; and (2) trial counsel was ineffective for (a) failing to argue against any finding of an illegal Terry[5] stop and (b) failed to argue the State's lack of an attenuation analysis. (ECF 1 at 3, 32). Respondents argue that Smith's Fourth Amendment challenge does not present a cognizable basis for federal habeas corpus relief, and his ineffective assistance claims are procedurally defaulted because Smith failed to seek leave to appeal the denial of his state post-conviction petition. (ECF 6).


         An application for writ of habeas corpus may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). The federal habeas statute at 28 U.S.C. § 2254 sets forth a “highly deferential standard for evaluating state-court rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447 (2005). The standard is “difficult to meet, ” and requires courts to give state-court decisions the benefit of the doubt. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted); see also White v Woodall, ___ U.S.___, ___, 134 S.Ct. 1697, 1702 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011) (state prisoner must show state court ruling on claim presented in federal court was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).

         A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254 (d). A state adjudication is contrary to clearly established federal law under § 2254(d)(1) where the state court 1) “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law, ” or 2) “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000).

         Before applying this standard, the court must determine whether each claim is cognizable for federal review and, if deemed cognizable, whether the claim has been fully presented for adjudication in the state courts. Smith failed to meet this first threshold as to his Fourth Amendment claim, and cannot ...

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