Pitts v. Armstead

          MEMORANDUM

          JAMES K. BREDAR CHIEF JUDGE.

         Petitioner Rodney Chester Pitts, Jr. (hereinafter referred to as “Pitts”), seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2010 convictions in the Circuit Court for Wicomico County. This matter has been fully briefed. ECF No. 25. 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, 15 F.3d 438');">215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For reasons that follow, Pitts's petition for habeas corpus will be denied and dismissed with prejudice.

         Background and Procedural History

         Pitts was indicted on May 10, 2010, and charged with solicitation to commit first-degree murder, solicitation to commit first-degree assault, solicitation to commit second-degree assault, solicitation to intimidate a witness, intimidation of a witness, and obstruction of justice. ECF No. 25, Filed Separately Exhibit No. 1. The charges arose out of letters Pitts sent to his girlfriend Latoya Robinson and his cousin Jordan Criner, while he was awaiting trial at the Wicomico County Detention Center (“WCDC”) on a second-degree assault charge stemming from an altercation with Robinson. Id., Filed Separately Exhibit 9. Pitts filed a motion to suppress the letters to Criner, arguing that they were seized in violation of his Fourth Amendment rights. The motion was heard before Judge W. Newton Jackson on August 20, 2010. The Circuit Court denied the motion, finding that Pitts did not have an objectively reasonable expectation of privacy in the letters and, even if he did so, that expectation was outweighed by the Wicomico County Detention Center's reasonable security needs. ECF No. 25, Filed Separately Exhibit 2, p. 43.

         Pitts's jury trial occurred over a two-day period from October 20 to October 21, 2010, with Circuit Court Judge Kathleen L. Beckstead presiding. Id., Filed Separately Exhibits 3-4.

         The facts adduced at trial as recounted by the Court of Special Appeals of Maryland are as follows:

While incarcerated at the WCDC awaiting trial on a second-degree assault charge arising from an altercation with Robinson, Pitts sent two letters to Robinson and two letters to Criner. These letters formed the basis of the charges before the circuit court. The letters to Robinson were date stamped January 5, 2010 and February 24, 2010. Both letters asked Robinson to drop her charges against Pitts and to refuse to testify against him. In the second letter to Robinson, Pitts also threatened to file perjury charges against Robinson's mother based on her expected testimony.

On March 2, 2010, Pitts sent a letter to Criner, which asked Criner to take steps to prevent Robinson from testifying at Pitts's trial for second-degree assault. In the letter, Pitts suggested that Criner attack Robinson, kidnap her, shoot at her house, or kill her. Pitts told Criner that he could not think straight in jail. When Pitts placed the letter in the WCDC mail system, the letter was in a sealed envelope with Criner's address and Pitts's return address on the envelope.

Prior to Pitts mailing the first letter to Criner, the WCDC began monitoring all of Pitts's outgoing mail pursuant to the WCDC's policy of reviewing the mail of validated gang members and those affiliated with validated gang members. Thus, when Pitts sent the first letter to Criner, Officer Richard Elliott, a member of the WCDC intelligence unit, intercepted the letter and read it as part of his regular duties. Upon determining that the letter discussed harming another person, Ofc. Elliott notified the Wicomico Bureau of Investigation (“WBI”) and turned the letter over to Detective Taylor, of the Wicomico County Sheriff's Department, on assignment to the WBI. Det. Taylor subsequently passed the letter on to Sergeant Cook, a member of the Maryland State Police Homicide Unit.

On March 5, 2010, Sgt. Cook and Trooper Steve Peters, of the WBI, visited Criner at his home. The two officers explained the contents of the letter to Criner and had Criner write a response which was dictated by Sgt. Cook. The response asked Pitts how much money he would pay if Criner performed the acts requested in Pitts's letter. Sgt. Cook hand-delivered the response to the WCDC with instructions to deliver the letter to Pitts and to be alert for future correspondence.

Several days later, Ofc. Elliott intercepted a second letter from Pitts to Criner. In this letter, Pitts instructed Criner not to kill Robinson; however, Pitts offered $300-$500 to have someone shoot at Robinson's parents' house, $300 to have Robinson shot in the leg, and $150 to have Robinson pistol-whipped. Ofc. Elliott turned the second letter over to Sgt. Cook, who sent both letters to the crime lab for analysis. On March 16, 2010, Ofc. Elliott searched Pitts's cell, seized several letters, and forwarded them to the crime lab.

         ECF No. 25, Filed Separately Exhibit 9, pp. 3-6 (footnote omitted).

         The jury heard testimony from WCDC Intelligence Officer Richard Elliott, Latoya Robinson, Maryland State Police (MSP) Crime Scene Technician Sam Woods, MSP latent print examiner expert Timothy Ostendarp, MSP forensic scientist Diane Lawder, Wicomico County Sheriff's Detective Chris Taylor, MSP Officer Scott Cook, and defendant Rodney Pitts. Id., Filed Separately Exhibits 3 & 4. On October 21, 2010, a jury acquitted Pitts of solicitation to commit first-degree murder, but found him guilty on the remaining counts. Id., Filed Separately Exhibit 4, pp. 210-11. On December 16, 2010, Circuit Court Judge Kathleen Beckstead sentenced Pitts to a term of twenty years' incarceration as to solicitation to commit first-degree assault, merged the other counts of solicitation to commit second-degree assault, solicitation to intimidate a witness, and intimidation of a witness, and sentenced Pitts to a five-year sentence on the obstruction of justice count, to run concurrently with the twenty-year sentence. Id., Filed Separately Exhibit 5, pp. 22-23.

         On direct appeal to the Court of Special Appeals, Pitts, through counsel, raised the following claims:

I. The motions court erred by failing to suppress sealed, outgoing mail from a pre-trial detention center, which was seized in violation of Mr. Pitts' Fourth Amendment rights.

II. The trial court erred when it prevented the defense from eliciting testimony from Mr. Pitts that was probative of his intent, a central issue in the case.

III. The trial court erred when it denied the defense motion for judgment of acquittal pertaining to direct witness intimidation, count five, because the evidence did not support the charge of direct witness intimidation “on or about” March 11, 2010.

         ECF No. 25, Filed Separately Exhibit 6, p. 2.

         In an unreported opinion filed on May 10, 2012, the Court of Special Appeals of Maryland affirmed Pitts's convictions, rejecting his claims of error. Id., Filed Separately Exhibit 9. Pitts's self-represented petition for a writ of certiorari was summarily denied by the Court of Appeals of Maryland on August 21, 2012. ECF No. 25, Filed Separately Exhibits 10 & 11.

         During the pendency of his direct appeal, Pitts filed a petition for post-conviction review in the Circuit Court for Wicomico County raising multiple claims of ineffective assistance of counsel. He subsequently supplemented his petition to present trial court error and prosecutorial misconduct grounds. ECF No. 25, Filed Separately Exhibits 12-13. On February 21 and July 11, 2013, Pitts appeared before Circuit Court Judge Leah J. Seaton for his post-conviction hearing. Id., Filed Separately Exhibits 14-15. At the post-conviction hearing, Pitts testified regarding the ineffectiveness of trial counsel James Murray, trial court error, and prosecutorial misconduct. Id., Filed Separately Exhibit 14, pp. 33-143. During the second day of the hearing, Pitts's defense attorney, James Murray, testified. Id., Filed Separately Exhibit 15, pp. 11-72. On July 31, 2013, Judge Seaton issued an exhaustive 34-page opinion denying post-conviction relief. Noting that Pitts had filed seven self-represented post-conviction petitions, some of which were filed after the commencement of the hearing, without counsel's signature and without a certificate of service, Judge Seaton only considered Pitts's original petition and his petition filed on January 24, 2013. Id., Filed Separately Exhibit 16. Pitts's application for leave to appeal the denial of post-conviction relief raised claims that exculpatory evidence was withheld (a Google map); that the State failed to produce all of its evidence prior to trial; that the State failed to properly examine witnesses; that the trial court erred in failing to discharge the defense attorney; and that counsel failed to perform his duties. ECF No. 25, Filed Separately Exhibit 17. On September 14, 2014, the Court of Special Appeals of Maryland summarily denied the application. Id., Filed Separately Exhibit 18.

         In his original and supplemental federal petitions for writ of habeas corpus, filed prior to the respondents' answer, Pitts raises the following claims as generously construed by the court:^{[1" name="FN1" id= "FN1">1]}(1) his WCDC cell was subject to an illegal search and seizure; (2) the prosecution committed misconduct by (a) failing to correct Latoya Robinson's trial testimony regarding her unfamiliarity with his cousin Jordan Criner and the inconsistent statements of MSP Officer Cook regarding his control and production of letters, (b) withholding a video recording, “mail cover, ” gang-point sheet, and Google map as part of discovery, and (c) contaminating and tampering with evidence; (3) defense counsel was ineffective as he (a) did not question the State's handwriting expert's conclusions that were made without obtaining a handwriting sample from Pitts, (b) had himself and Pitts stand during the course of the state's handwriting expert Diane Lawder's testimony, (c) did not obtain a handwriting expert, and (d) failed to file an additional discovery request in regard to a Google Map;^[2] (4) the trial judge (a) was biased due to her familiarity with the evidence in his other criminal case and should have removed herself and (b) failed to grant his request for renewed counsel; (5) he received an illegal sentence; and (6) he was actually innocent of the offense. ECF Nos. 1, 6-8, 12, 20, & 23.

         THRESHOLD CONSIDERATIONS

         Timeliness, Exhaustion and Procedural Default

         The respondents do not contend, and the court does not find, that the petition was filed outside the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). Further, insofar as Pitts is reasserting his appellate and post-conviction issues, the claims are exhausted for the purpose of federal habeas corpus review.

         Before a petitioner may seek habeas relief in federal court, he must exhaust each claim presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy, 455 U.S. 509, 521 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider the claim. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. § 2254(b) and (c).^[3] In Maryland, this may be accomplished by raising certain claims on direct appeal and other claims by way of post-conviction proceedings. Exhaustion is not required if, at the time a federal habeas corpus petition is filed, petitioner has no available state remedy. See Teague v. Lane, 489 U.S. 288, 297-98 (1989).

         Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, whether it be by failing to raise the claim in post-conviction proceedings or on direct appeal, or by failing timely to note an appeal, the procedural default doctrine applies. See Coleman v. Thompson, 1 U.S. 722');">501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v. Carrier, 477 U.S. 478, 489-91 (1986) (failure to raise claim on direct appeal); Murch v. Mottram, 1');">409 U.S. 41, 46 (1972) (failure to raise claim during post-conviction); Bradley v. Davis, 1 F.Supp. 479');">551 F.Supp. 479, 481 (D. Md. 1982) (failure to seek leave to appeal denial of post-conviction relief). A procedural default also may occur where a state court declines “to consider the merits [of a claim] on the basis of an adequate and independent state procedural rule.” Yeatts v. Angelone, 166 F.3d 255');">166 F.3d 255, 260 (4th Cir. 1999). As the United States Court of Appeals for the Fourth Circuit has explained:

If a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim. See Coleman v. Thompson, 1 U.S. 722');">501 U.S. 722, 731-32 (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.” Id. at 735 n.1.

Breard v. Pruett, 134 F.3d 615');">134 F.3d 615, 619 (4th Cir. 1998).

         If a procedural default has occurred, 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 miscarriage of justice, i.e., the conviction of one who is actually innocent.^[4] See Murray, 477 U.S. at 495-96; Breard, 134 F.3d at 620. “Cause” consists of Asome objective 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 at 620 (quoting Murray, 477 U.S. at 488) (alteration in original). Even where 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, 13 U.S. 298');">513 U.S. 298, 314 (1995). A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer “available” to him. See 28 U.S.C. § 2254(b); Engle v. Isaac, 107');">456 U.S. 107, 125-26, n.28 (1982).

         For reasons to be discussed, the court finds that several of Pitts's claims are procedurally defaulted.

         APPLICABLE LEGAL STANDARD

         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, 1 U.S. 320');">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, 170');">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 fair minded disagreement.”)); Virginia v. LeBlanc, __ U.S. __,, 137 S.Ct. 1726');">137 S.Ct. 1726, 1728 (2017).

         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).

         Under the “unreasonable application” analysis of § 2254(d)(1), 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. 86, 101 (quoting Yarborough v. Alvarado, 1 U.S. 652');">541 U.S. 652, 664 (2004)). “Rather, that application must be objectively unreasonable.” Id. Thus, “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 785 (internal quotation marks omitted). Further 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 habeas court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id. “[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, 599 U.S 766, 773 (2010).

         The habeas statute provides that “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 v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is especially true where state courts have “resolved issues like witness credibility, which are ‘factual determinations' for purposes of Section 2254(e)(1).” Id. at 379.

         ANALYSIS

         “Illegal Search and Seizure” of Evidence.

         Pitts challenges the search and seizure of letters from his WCDC cell. The law concerning Fourth Amendment claims in federal habeas corpus proceedings is well established and well-known to this court. “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted).

         Although Stone did not define the phrase “full and fair opportunity to litigate, ...