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Boone v. Miller

United States District Court, D. Maryland

March 20, 2018

WAYNE BOONE, #357-769, Petitioner,
v.
RICHARD MILLER, Warden and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         Self-represented Petitioner Wayne Boone filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 2, 2015. ECF No. 1. The Petition challenges Boone's 2001 conviction in the Circuit Court for Baltimore City, Maryland for three counts of attempted first degree murder. Id.; ECF No. 3-1, p. 1. Respondents filed a limited answer in which they sought dismissal of the Petition as being time-barred under 28 U.S.C. § 2244(d)(1)-(2). ECF No. 3. Subsequently, Boone filed a reply, arguing that his claim is not time-barred because he has presented a colorable claim of actual innocence and that the one-year period runs from the date on which the facts supporting the claim could have been discovered through the exercise of due diligence. ECF No. 5. Pursuant to an Order of this court, Respondents filed a supplemental answer addressing the merits of Petitioner's claims. ECF No. 10. Thereafter, Boone filed another reply. ECF No. 16. For the reasons that follow, Boone's Petition is denied and will be dismissed, and a certificate of appealability will not issue. 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 a hearing under 28 U.S.C. §2254(e)(2)).

         BACKGROUND

         On November 5, 2001, Boone entered an Alford[1] plea in the Circuit Court for Baltimore City to three counts of attempted first-degree murder. ECF No. 1, p.1; ECF No. 3-1, pp. 1, 5, 9. Once it was determined that the plea was acceptable and that Boone was entering the plea knowingly and voluntarily, the State offered the following facts supporting the plea:

[A]t approximately 11:40 p.m. on August 4th of 2000, Mr. Alan Michael, Jr. was sitting outside of 2708 Hollins Ferry Road in Baltimore City, State of Maryland. He was currently residing there in the basement. The house, 2708 Hollins Ferry, belonging to his aunt and uncle, Mark and Kathy Bryant.
While waiting outside for a friend, Alan Michael was approached by the Defendant, Terrance Boone.[2] The Defendant asked for a cigarette. Mr. Michael--and asked Mr. Michael if he had ever been robbed. Mr. Michael stated no. The Defendant had his arm inside his shirt implying he had a gun and stated “You are being robbed.”
The Defendant ordered Mr. Michael to walk towards the back of the house towards a small field. Mr. Michael gave the Defendant approximately $47.00 U.S. Currency. The Defendant ordered Mr. Michael to walk ahead of him, directed him through a couple of alleys to the Hollinswood Inn located at 2039 Annapolis Road. There, the Defendant instructed Mr. Michael to dial a phone number. Mr. Michael did that, handed the phone to the Defendant. At the end of the call, the Defendant ordered Mr. Michael to walk, directed him back in the same direction towards 2708 Hollins Ferry Road.
The Defendant then ordered Mr. Michael to take him into the house at 2708 Hollins Ferry. They entered the dwelling through the basement door, then upstairs to the first floor. There, the Defendant who was thought to be armed with a gun, ordered Mr. Michael to give him two knives off the counter in the kitchen. Mr. Michael was then ordered to tie up his uncle, Mark Bryant. The Defendant ordered Mrs. Bryant to lie on the floor.
The Defendant then took a set of car keys and a wallet with approximately $60.00 U.S. currency that belonged to Mr. Mark Bryant. He then ordered Mr. Michael to lie on the floor. Once Mr. Michael was on the floor, the Defendant used a knife to cut his throat. The Defendant then used a knife to cut Mr. Mark Bryant's throat.
As Mrs. Bryant was on the floor, he ordered her to get up and told her her husband was dead and if she did not believe him, to call his name. Mrs. Bryant called for her husband, got no response. The Defendant then took Mrs. Bryant into the living room where Mr. Michael was laying in a pool of blood. The Defendant stated, “He's dead, too. If you don't cooperate, I'll kill you, too.” The Defendant had her kneel on her hands and knees, removed her underwear. The Defendant began to touch her breast. He then stabbed her three times in the back. At this point, Mr. Mark Bryant jumped up and lunged towards the Defendant yelling. The Defendant then fled from the house with Mr. Bryant trying to chase him.
During the course of the investigation, Detective Adams . . . got an anonymous tip that the person responsible for the cutting of these three victims was Terrance and lived on Southdene Avenue. The detective was familiar with the Defendant, Terrance Boone, who at the time was residing at 2573 Southdene Avenue. The detective then put together a photograph array and on August 7th of 2000 showed that to Alan Michael, Jr. He was unable to identify anyone from the photographic array.
On August 8th, Detective Adams accompanied Mr. Michael to the police headquarters where he did a computer composite picture of the suspect. Detective Adams, once seeing the composite, showed the same photographic array to Mr. Michael again and asked him to cover up the top portion of, of any of the suspects in the array's head to see if he could identify anyone and at that time, Mr. Alan Michael, Jr. identified the Defendant, Terrance Boone, seated to my left with his defense counsel here at the trial table as the person that he believed had cut their throats on August 4th and into the early morning hours of August 5th of 2000.
Subsequent to that, as part of the investigation, on August 15th of 2000, the police department interviewed one Benny Twait (phonetic) who indicated that she had had a conversation with the same Defendant, Terrance Boone, here at the trial table, about this incident and that that conversation took place on August 8th of 2000 and that Mr. Boone relayed the facts to her as to what happened on that date and time, that he had approached Alan Michael, Jr., forced him into the house, had cut all, all three person's throats, and gave a rather detailed description to her.
After that, Ms. Twait (phonetic), having been arrested on suspicion of prostitution charges, relayed this information to the police and gave a taped statement to that effect and is available here for trial today.
The Defendant has been identified for the record. All these events did occur in the City of Baltimore. All the victims were taken to Shock Trauma to be treated for their injuries and all are doing rather well now as a result of these injuries. Those are the facts in support of the plea.

ECF No. 1-2, pp. 39-44. No. DNA evidence tied him to the scene of the crime. See ECF No. 10-3, p. 5.

         Thereafter, the circuit court found Boone guilty of all three counts of attempted first degree murder. ECF No. 1-2, p. 45. He was sentenced to serve 50 years in prison, with all but eight years suspended, followed by five years of probation. Id. Boone did not file for leave to appeal the entry of his guilty plea and sentence. ECF No. 1, pp. 2-3.

         Boone served the executed portion of his sentence and was released to probation. See ECF Nos. 1-3 & 3-1. He was thereafter convicted of a separate crime in this court, which violated his probation in the underlying Maryland case. See ECF No. 1, p. 12; ECF No. 1-2, p. 3. As a result, on July 10, 2009, Boone was sentenced in state court to serve the remaining 42 years in prison.[3] ECF No. 3-1, p. 2.

         On June 18, 2010, Boone filed a petition for post-conviction relief, which he later supplemented, alleging that:

1. His Alford plea was induced by trial counsel's coercion and was not made knowingly, voluntarily, or intelligently;
2. He was denied of his Sixth Amendment constitutional right to effective assistance of counsel because counsel: (a) lacked diligence and failed to advocate for Boone; (b) was incompetent in failing to maintain communication; (c) failed to argue against the State's withholding of witnesses and statements; (d) failed to argue for suppression of a questionable photo identification; (e) failed to file a petition seeking leave to appeal, as well as a motion for modification of sentence, as requested by Boone; and (f) failed to advise Boone of exculpatory DNA evidence and his possible defenses;
3. There was prosecutorial misconduct through overzealous prosecution of Boone despite exculpatory evidence; and
4. The evidence was insufficient.

ECF Nos. 3-1, p. 4; 10-1; 10-2. The circuit court denied Boone's petition on January ...


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