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McCoy v. State

United States District Court, D. Maryland

September 27, 2017

MICHAEL A. McCOY, #354-584, Petitioner,


          James K. Bredar, United States District Judge.

         Petitioner Michael A. McCoy (“McCoy”) seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2008 convictions in the Circuit Court for Frederick County. (ECF Nos. 1, 3, 10). Respondent was directed to file an answer to the Petition and filed a limited answer (ECF No. 9), to which McCoy filed an amended Petition, a reply, and a supplement to the reply (ECF Nos. 10, 11, 12). Subsequently, Respondents were ordered to supplement their answer and have done so. (ECF No. 16.) McCoy filed a response to the supplemental answer. (ECF No. 18.)

         This matter has been fully briefed. Upon review, 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 not entitled to hearing under 28 U.S.C. § 2254(e)(2)). For reasons that follow, McCoy's Petition for writ of habeas corpus IS DENIED AND DISMISSED WITH PREJUDICE.

         Background and Procedural History

         On February 13, 2008, McCoy was indicted on charges of first degree assault (Count 1), second degree assault (Count 2), first degree burglary (Count 3), fourth degree burglary (Count 4), first degree robbery (Count 5), theft under $500 (Count 6), and malicious destruction of property (Count 7). (ECF No. 3 at 2; ECF No. 9-2 at 4-6; ECF No. 9-7 at 4.) The events giving rise to these charges, as summarized by the Court of Special Appeals of Maryland, follow:

Shortly after midnight on January 5, 2008, Laura Stevenson Chapman, an elderly woman, was asleep in her house at 206 Magnolia Avenue in Frederick. Although Mrs. Chapman was legally blind in one eye, she was otherwise in good health and took care of her own home and yard. When she went to bed that night, Mrs. Chapman's wallet was in her purse on a chair in her dining room. Mrs. Chapman was awakened by someone trying to open the back doors and breaking the bottom pane of the window in her kitchen door. She tried to call for help, but the phone line had been cut. The intruder then pried open a dining room window and opened cabinets and drawers in that room. He came upstairs, kicked open her locked bedroom door, pulled out drawers, and asked, “Where's the money?” When Mrs. Chapman replied that her money was downstairs, the man grabbed her arm, which broke, and pulled Mrs. Chapman down the steps, her face hitting every step. Once downstairs, the man took Mrs. Chapman's wallet out of her purse and exited the house.

(ECF No. 9-3 at 2-3; ECF No. 9-7 at 2.)

         After a jury trial in the Circuit Court for Frederick County, McCoy was convicted on November 20, 2008, of first-degree assault, second-degree assault, and first-degree burglary, and the State entered a nolle prosequi on the remaining counts. (ECF No. 3 at 1-2; ECF No. 9-2 at 9; ECF No. 9-7 at 4.) On December 16, 2008, McCoy was sentenced to twenty years' imprisonment for Count 1, a consecutive term of twenty years for Count 3, and fifteen years for Count 5, to be served concurrently with the twenty years for Count 1. (ECF No. 3 at 1; ECF No. 9-2 at 4-5, 9; ECF No. 9-7 at 4.) Counts 1 and 2 were merged at sentencing. (ECF No. 9-2 at 9; ECF No. 9-7 at 4 n.1.)

         McCoy filed a Notice of Appeal on December 22, 2008, arguing that the evidence was insufficient to sustain his convictions and that trial counsel was ineffective for failing to preserve the sufficiency of the evidence issue. (ECF No. 3 at 2; ECF No. 9-2 at 10; ECF No. 9-3 at 2; ECF No. 9-7 at 5.) In an unreported opinion filed on July 23, 2010, the Court of Special Appeals affirmed McCoy's judgments of conviction.[1] (ECF No. 3 at 2-3; ECF No. 9-3; ECF No. 9-7 at 5.) The appellate court's Mandate was issued on August 23, 2010. (ECF No. 9-2 at 10; ECF No. 9-3 at 11.) McCoy did not file a petition for writ of certiorari to the Maryland Court of Appeals. (ECF No. 3 at 3.)

         McCoy filed a pro se petition for post-conviction in the circuit court on May 16, 2011, followed by a counseled amended petition on October 3, 2012. (ECF No. 3 at 3; ECF No. 9-2 at 10, 13; ECF No. 9-3; ECF No. 9-4; ECF No. 9-7 at 5.) McCoy raised numerous issues, including ineffective assistance of trial counsel, prosecutorial misconduct, unqualified expert testimony, an unrepresentative jury, flawed DNA testing, failure to merge sentences, violation of his right to a speedy trial, and ineffective assistance of appellate counsel. (ECF No. 9-3; ECF No. 9-4; ECF No. 9-7 at 1.) After a September 26, 2013, hearing, the circuit court denied McCoy's post-conviction petition in an Opinion and Order of Court dated December 3, 2013. (ECF No. 3 at 4; ECF No. 9-2 at 14; ECF No. 9-7 at 5, 22.) On January 2, 2014, McCoy filed an application for leave to appeal the adverse decision to the Court of Special Appeals, which denied the application on September 30, 2014. (ECF No. 3 at 4; ECF No. 9-2 at 14; ECF No. 9- 7; ECF No. 9-8.) The court's Mandate issued on October 31, 2014. (ECF No. 9-2 at 14; ECF No. 9-8 at 3.)

         McCoy filed his federal Petition on December 5, 2014, [2] alleging ineffective assistance of counsel, violation of the Equal Protection Clause based on the composition of the jury pool, sentencing merger issues, and prosecutorial misconduct. (ECF No. 1.) At the Court's direction (ECF No. 2), McCoy filed a supplement to the Petition, which the Court received on January 7, 2015.[3] (ECF No. 3.) On September 5, 2014, Respondent filed a limited answer, arguing that the Petition was a “mixed petition, ” containing both exhausted and unexhausted claims. (ECF No. 9.) In response, McCoy filed an amended Petition (ECF No. 10), a reply (ECF No. 11), and a supplemental reply consisting of additional evidence (ECF No. 12). Upon review of these filings, the Court deemed it appropriate to direct Respondent to respond to the merits of McCoy's claims. (ECF No. 13.) Respondent did so on November 23, 2015. (ECF No. 16.) McCoy was afforded the opportunity to file a response to Respondent's supplemental answer (ECF No. 17), which he did on December 18, 2015[4] (ECF No. 18). On October 18, 2016, the Court ordered Respondent to supplement its responses by filing the transcripts of McCoy's trial and sentencing transcripts, having found them necessary for resolution of the Petition. (ECF No. 19.) Respondent complied on December 6, 2016. (ECF No. 20.)

         Standard of Review

         Section 2254 states that a district court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         I. Threshold Considerations

         A. Exhaustion

         The exhaustion doctrine, codified at 28 U.S.C. § 2254(b)(1), [5] “is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. Under our federal system, the federal and state courts [are] equally bound to guard and protect rights secured by the Constitution.” Rose v. Lundy, 455 U.S. 509, 518 (1982) (alteration in original) (internal citations and quotation marks omitted). Moreover, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation ....” Id. Thus, the Rose Court cautioned litigants, “before you bring any claims to federal court, be sure that you first have taken each one to state court.” Id. at 520; see also O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999) (“Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court.”).

         B. Procedural Default

         In O'Sullivan, the Supreme Court stated: “To ... 'protect the integrity' of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts.” 526 U.S. at 848 (internal citation omitted); see also Id. at 844 (“Section 2254(c) requires only that state prisoners give the state courts a fair opportunity to act on their claims.”). The inquiry, then, is “[w]hether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. ... Because we answer this question 'no, ' we conclude that [petitioner] has procedurally defaulted his claims.” Id. at 848. Stated differently, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Id. at 845. The O'Sullivan Court noted, however:

In this regard, we note that nothing in our decision today requires the exhaustion of any specific remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has “the right under the law of the State to raise, by any available procedure, the question presented.” (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are “available” under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available.

Id. at 847-48; see also Breard v. Pruettt, 134 F.3d 615, 619 (1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)) (“A procedural default also occurs when a habeas petitioner fails to exhaust available State remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”).[6]

         When a claim is procedurally defaulted, a federal court may not address the merits of a state prisoner's habeas claim unless the petitioner can show (1) both cause for the default and prejudice that would result from failing to consider the claim on the merits; or (2) that failure to consider the claim on the merits would result in a fundamental miscarriage of justice, i.e., the conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S 478, 495-96 (1986). “Cause” consists of “some factor external to the defense [that] impeded counsel's efforts to raise the claim in State court at the appropriate time.” Breard, 134 F.3d 615, 620 (4th Cir. 1998). In order to demonstrate prejudice, a habeas petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (quoting Frady). Even when a petitioner fails to show cause and prejudice for a procedural default, a court must still consider whether it should reach the merits of a petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

         C. Strickland

         When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Representation is deficient if it falls below an objective standard of reasonableness, considering all the circumstances. Id. at 688.

         To satisfy the first part of this standard, it must be demonstrated that counsel's performance was not “within the range of competence normally demanded of attorneys in criminal cases.” Id. at 687. The standard for assessing such competence is “highly deferential” and has a “strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.” Id. at 669. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. See 28 U.S.C. § 2254(d)(1). A petitioner must overcome the “'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 at 689). “There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect.” Harrington v. Richter, 562 U.S. 86, 109 (2011) (citations and internal quotation marks omitted); see also Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010) (“Counsel is not required to engage in the filing of futile motions.”). “The standards created by Strickland and § 2254(d) are both 'highly deferential, ' and when the two apply in tandem, review is 'doubly' so.” Harrington, 562 U.S. at 105 (citations omitted). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         The second prong requires the court to consider whether counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable and that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 690-94. “The benchmark of an ineffective assistance claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Id. at 686. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A determination need not be made concerning the attorney's performance if it is clear that no prejudice would have resulted had the attorney been deficient. See Id. at 697.

         The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in a motion for new trial. Id. at 697. Indeed, the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. Id.

         II. Analysis Framework

         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 “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “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). Under the “unreasonable application analysis, ” a “state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, “a federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010).

         Under § 2254(d)(2), “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if reasonable minds reviewing the record might disagree about the finding in question, ” a federal court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id.

         Further, “a determination of a factual issue made by a State court shall be presumed to be correct[, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part.” Sharpe, 593 F.3d at 378. This is especially true where the state court has “resolved issues like witness credibility, which are 'factual determinations' for purposes of Section 2254(e)(1).” Id.


         McCoy seeks habeas corpus relief based on the following allegations: ineffective assistance of counsel due to counsel's failure to preserve the insufficiency of evidence issue for direct appeal, a supposed conflict between counsel and McCoy, counsel's failure to subpoena alibi witnesses, and counsel's failure to conduct any pre-trial investigation; violation of the Equal Protection Clause based on the composition of the jury pool; two instances of prosecutorial misconduct based on “racial baiting” in the prosecutor's opening statement and allowing false testimony by the victim; and sentencing merger issues. (ECF Nos. 1, 3, 10.) Respondent argues that McCoy's claims of error are unexhausted, procedurally defaulted, and/or fail on the merits. (ECF Nos. 9, 16.)

         I. Exhaustion

         Respondent first argues that the Petition contains unexhausted claims and is, therefore, a “mixed” petition, requiring dismissal on that basis unless McCoy withdraws the unexhausted claims. (ECF No. 9 at 1, 8, 11.) Specifically, Respondent states that McCoy's prosecutorial misconduct claims were never presented in the state courts under a theory of “prosecutorial misconduct, ” but, rather, as ineffective assistance of trial counsel. (ECF No. 9 at 7, ECF No. 16 at 8.) Respondent also contends that McCoy's claim that defense counsel failed to subpoena alibi witnesses was not raised as an ineffective assistance of counsel claim in the state courts. (ECF No. 16 at 8.) According to Respondent, “[t]hese claims could be presented in state court through a motion to reopen his postconviction proceeding in the interest of justice.” (Id. (citing Md. Code Ann, Crim. Pro. Art., § 7-104).)

         With respect to the prosecutorial misconduct claims, Respondent acknowledges that the claims were presented in the post-conviction court, as examples of ineffective assistance of trial counsel for failing to object to the opening statement and to cross-examine the witness more vigorously. (ECF No. 9 at 7 n.2.) Respondent further acknowledges that the alibi witness issue was before the circuit court as an alleged Brady[7] violation by the prosecution in failing to provide the defense with information about those witnesses.[8] Respondent notes that McCoy “did complain, in his initial state post-conviction filing, that his trial counsel was insufficiently 'outrage[d]' by the State's disclosure.” (ECF No. 16 at 8 n.2 (alteration in original).) Respondent argues that in his filings in this Court, McCoy “presents these general subject areas under vastly different legal theories than what was presented in the State court. There is a legal difference between an alleged Brady violation and ineffective assistance of trial counsel. There is a legal difference between ineffective assistance of trial counsel and prosecutorial misconduct.” (Id. at 9.)

         Although the Court may not grant relief on an unexhausted claim, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). The Court ...

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