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Webb v. Green

United States District Court, D. Maryland

September 28, 2018

ANTHONY S. WEBB, SR., #404312, Petitioner,
v.
WARDEN KATHLEEN GREEN et al., Respondents.

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         Anthony Webb, a Maryland prisoner, filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. §2254. ECF 1 (the “Petition”). Webb also filed exhibits with his Petition. Webb, who is self represented, asserts numerous claims. Id.

         Respondents filed an answer (ECF 5), with exhibits. They assert that all but one of Webb's claims are procedurally defaulted. ECF 5. Webb was granted an additional 28 days to file a response addressing the allegation that his claims are procedurally defaulted. ECF 9; ECF 10. The court explained to Webb that, “[i]f 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.” ECF 9 at 3 (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998)). Webb filed his response. ECF 12.

         Upon review of the pleadings and exhibits, no hearing is necessary in this case. 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)). For the reasons that follow, the Petition shall be denied and a certificate of appealability shall not issue.

         I. Background

         On May 16, 2012, after a jury trial had begun, Webb entered an Alford plea in the Circuit Court for Baltimore County on the charges of conspiracy to distribute heroin, conspiracy to distribute cocaine, and possession of a firearm by a convicted felon. ECF 1 at 1-2; ECF 5-1. In accordance with the plea agreement Webb was sentenced to serve 25 years in prison without parole for conspiracy to distribute heroin; 20 years, suspended, for the cocaine offense; and a concurrent five-year non-parolable sentence for the firearms charge. ECF 5-4 at 31-32.

         Webb's initial attempt to file a direct appeal of his conviction was dismissed by the Maryland Court of Special Appeals as untimely. ECF 5-1 (docket entries); ECF 12-2 (post-conviction transcript). Webb filed a petition for post-conviction relief in the Circuit Court for Baltimore County on June 3, 2013. ECF 5-2; ECF 12-2. Following a hearing, a consent order was issued on June 24, 2014, granting Webb the right to file a belated application for leave to appeal the entry of his guilty plea. The remaining post-conviction claims were withdrawn by Webb. ECF 12-2 at 24-25.

         Webb filed the belated appeal on July 22, 2014, through counsel. In his belated application for leave to appeal, Webb alleged that (1) the trial court denied him his right to allocution at sentencing and (2) his plea was not voluntary because he was not provided enough time to consider the plea offer. ECF 1-1 at 7-9.

         On January 13, 2015, in an unreported opinion, the Court of Special Appeals summarily denied the application for leave to appeal. ECF 1-1 at 4-6. The mandate issued on February 13, 2015. Id. Webb's conviction became final on May 14, 2015, the date his time to seek certiorari review in the Supreme Court expired. Respondents do not contend, nor does this court find, that the Petition is untimely.

         II. Claims in this Court

         Webb raises the following claims in his habeas petition: (1) the court failed to “file a ‘Notice of Enhancement' and serve it to [Webb] at least fifteen (15) days before trial;” (2) the court never held an evidentiary hearing to allow Webb to view all of the evidence so that he could make an informed decision on whether to go to trial or take a plea deal; (3) there was no valid waiver of a jury trial; (4) Webb was not provided an opportunity to speak and present information in mitigation of punishment; (5) the court erred in accepting the guilty plea without proof of all elements of the crime; (6) the court erred when it did not require an adequate statement of facts to support the guilty plea; (7) the court erred when it failed to find out if Webb was coerced into taking the plea and threatened Webb with an 80 year sentence; (8) the court did not establish it had jurisdiction over the criminal case; (9) the court allowed the state to use illegally seized evidence collected pursuant to an invalid search warrant because it did not specify the places to be searched; (10) the court failed to question the defendant on the record about the nature of his charges. ECF 1 at 6-8.

         III. Allocution claim

         Webb presented his claim that the trial court denied him his right to allocution at sentencing to both the Circuit Court and the Court of Special Appeals. Webb claims that the trial court's failure to allow his allocution is a violation of his federal constitutional right of due process. ECF 12 at 11. He claims that the transcript of his plea does not support a finding that the trial court advised him that this was his only opportunity to speak, and his attorney did not ask him if he had any comments. Id. at 10-11. In his Petition, Webb asserts that his opportunity for allocution would have afforded him the chance to provide information in mitigation of punishment. ECF 1 at 7.

         The plea transcript reflects that Webb was advised regarding the length of the sentence imposed as follows:

THE COURT: The next would be whether or not there was a sentence that was legal, and that's call (sic) the legality of sentence. Now because of the statutory requirement, the sentence carries ordinarily would be a 20 year sentence, but because of the number of offenses and the State having served notice, it is enhanced. There's a ...

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