United States District Court, D. Maryland
J. HAZEL, UNITED STATES DISTRICT JUDGE
answer to the above-entitled Petition for Writ of Habeas
Corpus Respondents seek denial of the relief sought. ECF No.
6. Petitioner Marvin Terrell Carter filed a Reply (ECF No. 8)
as well as a Motion for Summary Judgment. ECF No. 7. No.
hearing is necessary to resolve the matters pending.
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 reasons to
follow, the Petition shall be dismissed and the pending
Motion for Summary Judgment denied.
was convicted of three counts of burglary and two counts of
malicious destruction of property in the Circuit Court for
Montgomery County following a jury trial. At a pre-trial
hearing, Carter moved for a substitution of counsel,
insisting that the State had not turned over all discovery.
ECF No. 6-2 at 7-10. Carter's trial counsel, a member of
the public defender's office, explained that Carter was
referring to GPS evidence that did not exist because a
warrant was never issued for police to pursue it.
Id. at 11. Counsel further explained that the State
did not intend to use the phone pinging evidence gathered in
the context of another burglary case in Prince George's
County. Id. The trial court ruled, pursuant to Md.
Rule 4-215(e), that Carter did not have a meritorious reason
for discharging his counsel, noted that counsel had prepared
a complete and thoughtful pre-trial motion to sever and that
discovery was requested and provided. Id. at 18-19.
The trial court further noted that Carter simply wanted a
different attorney and would disagree with any attorney
appointed. Id. The court was unmoved by Carter's
pending Attorney Grievance Commission complaint he filed
against appointed counsel and referred to the complaint as
frivolous. Id. Carter was given a choice to
discharge his counsel and proceed pro se, or to keep
assigned counsel; Carter chose to proceed pro se.
another pre-trial hearing, the court considered several
motions Carter filed to suppress evidence, to return
property, to sever the counts in the indictment which
concerned four different burglaries at three different
stores, to reconsider the matter regarding trial counsel, and
for bond review. ECF No. 6-3 at 6-15. The court granted
Carter's motion to compel the detention center where he
was being held to arrange for Carter to view all of the video
discs that the State intended to introduce into evidence at
trial. Id. at 21. Carter's motion to suppress
all evidence removed from his car, but not listed on the
search warrant was denied. Id. at 26. The court also
denied the motion to sever the counts because the evidence as
to each count was relevant to a common plan or scheme.
Id. The court viewed Carter as too great a flight
risk to allow for his release on bond pending trial despite
the problems incarceration presented in terms of his choice
to represent himself at trial. Id. The court denied
Carter's motion to appoint new counsel. Following the
court's decision, a jury was chosen and trial began.
Id. at 21-36 (judge's explanation of general
trial procedure and pre-emptory challenges to Carter);
id. at 36-153 (jury voir dire).
Evidence Produced at Trial
Golden China Restaurant
State first presented evidence regarding the burglary of the
Golden China Restaurant, which took place on March 30, 2012.
The police officer who responded to the scene following a
phoned-in report of a burglary was Officer Mi Ley. ECF No.
6-4 at 165-87. Ley testified he could not find any signs of a
break-in on the doors or windows of the restaurant.
Id. at pp. 166-67. During a search of the scene, a
flashlight and a latex glove were found along with a shoe
print on a stack of wrapping paper located near an air vent
in the kitchen. Id. at 173. On the roof of the
restaurant, another similar shoe print was seen next to the
air vent. Id. at 177. Ley testified that the air
vent was big enough for an average sized person to fit into.
Id. at 178. The video surveillance taken inside the
restaurant showing the actual burglary was then played for
the jury. Id. at 179-80.
was also provided concerning the processing of the latex
glove found at the scene. Detective Paul Craine testified
that a buccal swab, explained as a collection of the DNA
cells from the inside of a person's cheek, was taken of
Carter for purposes of comparing it to any DNA found at the
scene. ECF No. 6-4 at 154-64. Ryan Costello testified that he
swabbed the latex glove to collect any DNA that might be on
ECF No. 6-5 at 25-29. Jennifer McMurray, a forensic scientist
with the Montgomery County Crime Lab, testified that she
compared the DNA taken from the buccal swab of Carter with
the DNA found on the latex glove at the Golden China
Restaurant and concluded that the two DNA samples matched at
every comparison level. Id. at 46-51. During a
search of Carter's car, police found a box of latex
gloves in the trunk. Id. at 61- 62.
Wang, the owner of the Golden China Restaurant, testified
that she had locked the doors the previous night; and that
she left twenty one-dollar bills and six five-dollar bills in
the cash register, all of which was gone the next morning.
ECF No. 6-4 at 190-91.
Goshen Beer and Wine Store
Goshen store was burglarized in a similar manner on January
13, 2012, and Officer John Witherstein was the responding
officer. ECF No. 6-5 at 74-77. He testified there were no
signs of forced entry at the doors or windows, but that he
noticed there was an access shaft when he was on the roof of
the store investigating. Id. at 75-76.
employees from the Goshen store testified. Nirmal Patel,
whose parents own the store, testified that the store had 12
to 14 video surveillance cameras inside and this burglary was
captured on those cameras. ECF No. 6-5 at 91-95. The video
was then played for the jury without objection from Carter.
Id. at 94.
Patel, who worked as a manager at the Goshen store, testified
that five or six cartons of cigarettes, priced at $65.99 per
carton, along with $4000 in lottery scratch off tickets were
stolen. Id. at 95-106. She was uncertain regarding
the amount of cash stolen from the store. Id. at
Nonis, who also worked at the Goshen store, testified that at
the time of the burglary there was two to three-thousand
dollars in cash in the office, $400 in each of six cash
registers, and a box containing cash, all of which were gone
after the burglary. Id. at 107- 17.
Glenmont Beer and Wine Store
Glenmont store was burglarized on January 20, 2008 and on
April 10, 2011. Both burglaries were captured on surveillance
video. ECF No. 6-6 at 68-69. Officer Oscar Jerome testified
that for the January 20, 2008 burglary the suspect gained
entry into the store through the roof vent. Id. at
40-48. Through Jerome's testimony, still pictures from
the surveillance video were introduced, as well as the
surveillance video itself. Id. Chung Lee, the owner
of Glenmont, testified that following the January 20, 2008
burglary his store was left in disarray and there was cash
missing as well as lottery tickets, and cigarettes.
Id. at 53-67.
Marvin Walker responded to the scene on April 10, 2011, when
the Glenmont store had again been burglarized. ECF No. 6-6 at
32-39. Walker noted no damage to the doors and windows and
after reviewing surveillance video, determined the suspect
had come in through the sky vent. Id. at 34-36.
Also, based on his review of the video, Walker developed a
description of the suspect. Id. at 35-36. Chung Lee
also testified with regard to the April 10, 2011 burglary of
his store; and confirmed that the same thing happened this
time with cash, cigarettes, and lottery tickets being stolen,
and added that phone cards were taken. Id. at p. 59.
Lee claimed that $14, 000 in cash was stolen and provided
authentication of the two video surveillance recordings
inside the store during the burglary before they were shown
to the jury without objection. Id. at 59, 68-69.
Defense's Case in Chief
focused his defense on a theory of misidentification and
limited most of his questions on cross-examination of the
business owners to whether they had seen him before.
See ECF No. 6-5 at 94-95; ECF No. 6-6 at 66. Carter
also questioned Officer Walker about the suspect description
he developed after watching the video surveillance. ECF No.
6-6 at 37-39.
called Detective Darrell Farewell, Officer Fernandez,
Detective Burgess, Lt. Robert Carter, Detective Heather Ives,
Mildred and Gilbert Jones (Carter's parents), and Officer
Kye Pak as witnesses during his case in chief.
the testimony of Detective Farewell, Carter established that
the investigation into the April 10, 2011 burglary was
suspended on April 19, 2011. ECF No. 6-6 at 17-27. Farewell
also testified that there was no forensic evidence collected
after the burglary and admitted the arrest warrant was issued
one year later on April 18, 2012. Id.
Fernandez was also called as a witness by Carter. Fernandez
responded to the January 13, 2012 Goshen Beer and Wine
burglary call ten days after the burglary occurred. ECF No.
6-6 at 71-72. Fernandez explained that he viewed the
surveillance video and developed a description of the suspect
based on that. Id. at 74-75. He also testified that
he communicated with other Montgomery County police officers
regarding the established pattern of night time commercial
rooftop burglaries. Id. at 77-78. Carter offered
into evidence an email from Fernandez that theorized the same
suspect committed a burglary at Family Beer and Wine, an
offense with which Carter was not charged. Id. at
79-80. Although the trial judge clarified for Carter three
times that by introducing the document into evidence Carter
was implicating himself in another crime and that he would
not have allowed the state to introduce such a document,
Carter acknowledged the trial judge's concerns and stated
he still wished to move forward with introducing it.
Burgess was also called as witness by Carter and, similar to
the Fernandez email, Burgess was asked to authenticate an
email he authored regarding the burglaries. ECF No. 6-6 at
113-16. Again, the trial judge cautioned Carter that the
content of the email was inculpatory, but Carter insisted on
entering it into evidence. Id.
Robert Carter was called to testify about another police
officer's use of GPS technology in her investigation of
the Golden China burglary. ECF No. 6-6 at 119-21. Upon
objection lodged by the State, the trial court stopped
Carter's examination of the police officer and explained
the matter had been settled at pre-trial. Id. at
121. The trial judge further noted that he was not going to
let Carter cause a mistrial. Id.
Heather Ives was called to the stand and questioned about the
search warrants obtained for Carter's car. ECF No. 6-7 at
16-19. The trial court sustained an objection to the line of
questioning because the matters regarding the search warrants
and the evidence obtained upon their execution had already
been by the court prior to the trial. Id.
called his mother and his step father, Mildred and Gilbert
Jones, to testify about his appearance from 2010 to the
present. Id. at 20-34. Through his mother's
testimony, Carter established that he had always maintained
facial hair. Id. at 20-27.
Kye Pak was called as a witness by Carter and Carter
proffered that the testimony would involve an investigation
of a burglary at the New Hampshire Beer and Wine, a crime for
which Carter was not charged. Id. at 49-58. Carter
wanted to elicit testimony that police believed the same
suspect was involved in all of the burglaries, but the
State's objection on grounds of relevance was sustained.
Id. at 52.
maintained that the trial court had not provided him with
enough assistance to get his witnesses to court via subpoena
and had asked for more assistance. ECF No. 6-6 at 123-24.
When the State pointed out that some of the witnesses Carter
had listed had never been issued a subpoena, Carter's
request for additional assistance was denied. Id.
The following day in court, Carter raised objections
regarding the material provided to him by the State during
discovery, insisting that the State had not provided him with
an unedited version of the Golden China video nor had they
provided him with copies of the GPS warrants. ECF No. 6-7 at
5-12. During the course of argument, the State provided the
trial court with a 17-page letter written by Carter to the
State's Attorney stating in part that he knew what he was
doing when he fired his attorney. Id. at 13. When it
denied Carter's motions, the trial court noted that it
appeared Carter was attempting to cause a mistrial, and that
there had never been any GPS warrants issued nor had any GPS
devices been placed on his car. Id. at 15.
end of Officer Pak's testimony, Carter again raised the
issue regarding unavailable witnesses who he wished to call.
ECF No. 6-7 at 58-60. The witnesses Carter asked for had not
been subpoenaed, thus the court forced Carter to rest his