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Leftwich v. Foxwell

United States District Court, D. Maryland

January 10, 2018

RORY LEFTWICH, #1029673, Petitioner,
v.
RICKY FOXWELL and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         Rory Leftwich, currently confined at the Maryland Correctional Training Center in Hagerstown, Maryland, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The petition challenges Leftwich's 2011 conviction in the Circuit Court for Howard County, Maryland for fourth-degree burglary, theft under $1, 000, and rogue and vagabond. Id. The Attorney General filed a response arguing that the petition should be denied on the merits. ECF No. 8. Subsequently, Leftwich filed a reply to the response (ECF No. 11), as well as a motion for appropriate relief (ECF No. 13).

         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). For the reasons that follow, Leftwich's petition will be dismissed and his motion for appropriate relief will be denied.[1] A certificate of appealability will not issue.

         BACKGROUND

         I. Trial

         The facts at Leftwich's jury trial in the Circuit Court for Howard County, as adduced by the Court of Special Appeals of Maryland, are summarized as follows. Early in the morning on November 17, 2010, Detective Brown of the Harford County Sherriff's Department conducted surveillance of Leftwich's residence in Edgewood, Maryland. ECF No. 8-2 at 7.[2] At approximately 12:20 a.m., Detective Brown observed Leftwich's pick-up truck depart from the residence and proceed on Maryland Route 152 near the intersection of Interstate 95. Id. at 7. Detective Brown followed the truck as it traveled south on Interstate 95, west on Interstate 695, Interstate 70, Maryland Route 29, and west on Maryland Route 99 into Howard County, before heading down a “no outlet” street. Id. at 7-9. After waiting for about 10 minutes, Detective Brown saw the truck, driven by Leftwich, return to Maryland Route 99. Id. Leftwich continued to turn onto nearby streets, disappearing for 10 to 29 minutes at a time. Id. Detective Brown saw no other passengers in the truck, but observed bags and packages in the passenger seat. Id. at 7, 11.

         Detective Brown followed the truck as it returned to Edgewood in Harford County. Id. at 11. Along the way, the truck made three stops at gas stations, where Leftwich exited the vehicle and used a credit card to pay for gas. Id. Detective Brown called ahead to another detective, who arrested Leftwich when he reached his residence. Id. Detective Brown then executed a search and seizure warrant for Leftwich's truck and person, and seized over fifty items. Id.

         On the morning of November 17, 2010, Corporal Raymond Conner of the Howard County Police Department arrived at Leftwich's residence after receiving a call that “Harford County had some property pertaining to some addresses in Howard County.” ECF No. 8-2 at 25. After conducting a brief review of the seized property, Corporal Conner believed that the property belonged to Howard County residents. Id. He then contacted the likely owners to ask them to claim their property. Id.

         Seven Howard County residents testified that on November 17, 2010, upon inspection of their vehicles, they discovered that several items were missing. Id. at 13-23. Some of those residents identified the missing articles from photographs of the items seized from Leftwich on the morning of his arrest. Id. at 19-23.

         Leftwich did not testify at trial. ECF No. 1 at 2. The jury convicted him of six counts of theft under $1, 000, seven counts of rogue and vagabond, and two counts of fourth-degree burglary. ECF No. 8-2 at 5. He was sentenced to serve a total of 21 years in prison, or one sentence of three years' imprisonment as to each of the seven victims. See id at 5 n.2.

         II. Direct Appeal

         Leftwich raised two issues on appeal to the Court of Special Appeals of Maryland: 1) whether the evidence was sufficient to sustain his convictions for fourth-degree burglary and rogue and vagabond; and 2) whether he was improperly convicted of both fourth-degree burglary and theft based on the same acts with respect to two victims. ECF No. 8-2 at 5. By unreported opinion filed on December 4, 2012, the Court of Special Appeals affirmed all but two of Leftwich's convictions, making no impact on the sentence as imposed. Id. at 47. Leftwich then filed a petition for a writ of certiorari, which the Court of Appeals of Maryland denied on March 26, 2013. See ECF No. 8-1 at 17.[3]

         III. Post-Conviction

         On July 5, 2012, while his direct appeal was pending in the Court of Special Appeals, Leftwich filed a pro se petition for post-conviction relief in the Circuit Court for Howard County and raised these allegations of error:

(A) trial counsel rendered ineffective assistance with respect to 18 issues and faced a conflict of interest;
(B) the trial court made prejudicial comments in the presence of the jury;
(C) the prosecution employed improper pre-trial and trial tactics; and
(D) appellate counsel was ineffective for failing to raise all relevant issues on appeal.

ECF No. 8-3 at 7-21. On February 13, 2013 and August 12, 2013, Leftwich filed pro se supplements to his post-conviction petition. ECF No. 8-1 at 16-17. On February 7, 2014, Leftwich filed an additional supplement through counsel, raising a single issue: that trial counsel rendered ineffective assistance by incorrectly informing him that the State's key witness would not be present to testify, thus prompting him to reject the State's plea offer and elect to proceed to trial. See Id. at 18; ECF No. 8-8 at 21. In total, Leftwich raised 56 allegations in his petition for post-conviction relief, including those raised in supplements. See id at 3-21.

         The circuit court heard Leftwich's post-conviction petition on December 19, 2013, March 6, 2014, June 2, 2014, and June 9, 2014. See ECF No. 8-1 at 18-19. By order entered on April 8, 2015, the Circuit Court for Howard County denied Leftwich post-conviction relief. ECF No. 8-7.

         Subsequently, Leftwich filed an application for leave to appeal the denial of his post-conviction petition, raising the following claims:

(A) the post-conviction court erred when it disregarded evidence that was obtained in violation of Leftwich's Fourth, Fifth, Sixth, and Fourteenth Amendment rights and which was used to procure his arrest and conviction;
(B) the post-conviction court erred when it disregarded evidence of Leftwich's illegal arrest, which was made without probable cause and which provided an ...

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