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Harris v. Moyer

United States District Court, D. Maryland

October 22, 2018

JERMAINE D. HARRIS, Petitioner,
v.
STEPHEN T. MOYER, Secretary, Maryland Department of Public Safety and Correctional Services, WAYNE A. WEBB, Commissioner, Maryland Department of Corrections, FRANK B. BISHOP, Warden of the North Branch Correctional Institution, Cumberland, Maryland, and THE ATTORNEY GENERAL OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.

         Petitioner Jermaine Harris, an inmate at the North Branch Correctional Institution in Cumberland, Maryland, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 to collaterally attack his 2009 conviction for first degree murder and related charges in the Circuit Court for Wicomico County, Maryland. Having considered the submitted materials, the Court finds that no hearing is necessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; D. Md. Local R. 105.6; Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000). For the reasons set forth below, the Petition is DENIED and DISMISSED.

         BACKGROUND

         On October 30, 2008, Harris was convicted after a jury trial in the Circuit Court for Wicomico County ("the Circuit Court") of first degree murder, second degree murder, conspiracy to commit murder, and related firearms charges relating to the shooting death of Jesse Gay on February 29, 2008. The jury found Harris not guilty of first degree assault. On March 12, 2009, Harris was sentenced to two consecutive life sentences for first degree murder and conspiracy to commit murder and a consecutive 20-year sentence for use of a handgun in the commission of a crime of violence.

         On direct appeal, Harris presented the following questions to the Court of Special Appeals of Maryland:

1. Whether the trial court erroneously prohibited Harris from having two witnesses, Michael Lawson and Rodney Terry, invoke their Fifth Amendment privilege in the presence of the jury or, alternatively, erroneously failed to advise the jury that the witnesses had invoked their Fifth Amendment privilege.
2. Whether the trial court erroneously permitted a lay witness to present expert testimony concerning cell phone records and cell phone tower locations.
3. Whether the evidence was legally sufficient to support the conviction for conspiracy to commit murder where there was no independent corroboration of the accomplice's testimony.
4. Whether the jury's verdict of guilty of first degree murder and not guilty of first degree assault constituted a legally inconsistent verdict, which is no longer permissible in Maryland.

         On June 29, 2011, the Court of Special Appeals affirmed Harris's conviction. Harris filed a petition for a writ of certiorari with the Court of Appeals of Maryland which was denied on October 25, 2011.

         On June 24, 2013, Harris filed a petition for post-conviction relief in the Circuit Court. The claims asserted, as amended and supplemented, were that trial counsel was ineffective for: (1) failing to object to the court permitting a lay witness to give expert opinion testimony about cell phone technology and cell tower locations; (2) failing to object to the rendering of the apparently inconsistent verdicts of guilty on the charge of first degree murder but not guilty on the charge of first degree assault; (3) failing to object to jury instructions on "aiding and abetting" as a theory of liability as not warranted by the evidence; (4) failing to request jury instructions regarding a witness pleading guilty, a witness invoking the Fifth Amendment right against self-incrimination, and the jury's duty to deliberate; (5) failing to interview and call as a trial witness Brykeshia Johnson; and (6) the cumulative effect of these errors.

         After a hearing, the post-conviction court denied the petition on January 17, 2014. On February 12, 2014, Harris filed an application for leave to appeal the denial of post-conviction relief in which he asserted the arguments that trial counsel was ineffective for: (1) failing to object to a lay witness providing expert opinion testimony about the operation of cell phone technology and cell tower locations; (2) failing to object to the rendering of apparently inconsistent verdicts; and (3) failing to request a jury instruction regarding witnesses invoking the Fifth Amendment. The application was summarily denied on September 30, 2014. On September 8, 2015, Harris's motion for reconsideration was denied, and the Court of Special Appeals issued its mandate.

         DISCUSSION

         In his Petition to this Court, Harris raises the following claims for relief:

1. The trial court erred when it permitted a lay witness to testify regarding cellular phone technology and tower locations in violation of state and federal law.
2. Trial counsel was ineffective by failing to object to a lay witness providing expert opinion testimony about the operation of cell phone technology and cell tower location.
3. Trial counsel was ineffective by failing to object to the admission of call records from Harris's phone service provider and to expert testimony relating to those records.
4. Trial counsel was ineffective by failing to refute the State's aiding and abetting theory of liability.
5. Appellate counsel was ineffective by failing to argue that the admission of hearsay testimony from government witnesses Nathaniel Kellam and Krista Wilson violated the Constitution.
6. Trial counsel was ineffective when counsel failed to investigate, interview, and call as a trial witness Harris's girlfriend, Brykeshia Johnson.
7. Trial counsel was ineffective when counsel failed to review the jury instructions, object to certain instructions, and request relevant instructions.
8. Trial counsel was ineffective when counsel failed to object to the inconsistent ...

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