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Jordan v. State

United States District Court, D. Maryland

March 13, 2019

DELONTE JORDAN, #362-617, Petitioner,
v.
STATE OF MARYLAND, Respondent.

          MEMORANDUM OPINION

          James K. Bredar Chief Judge.

         On August 8, 2016, Petitioner Delonte Jordan, filed the instant 28 U.S.C. § 2254 habeas corpus application attacking his conviction and sentence for armed robbery, conspiracy to commit armed robbery, and second-degree assault entered in the Circuit Court for Montgomery County. ECF 1.[1] Respondents filed an Answer arguing that Jordan's sole claim regarding the sufficiency of the evidence has been procedurally defaulted and he is otherwise not entitled to habeas relief. ECF 6. Jordan was notified of his right to file a reply. ECF 7. Jordan filed a reply solely arguing that the prosecutor improperly commented on his failure to testify, a claim not raised in his initial petition. ECF 8. 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)). For the reasons to follow, the Petition will be denied and dismissed with prejudice.

         Background and Procedural History

         On August 20, 2009, Jordan was indicted on charges of armed robbery, conspiracy to commit armed robbery, and second-degree assault. ECF 6-1. The events giving rise to these charges, as summarized by the Court of Special Appeals of Maryland, follow:

The State's theory of prosecution was that during the early morning hours of July 22, 2009, three men, appellants [Francis Mbewe and Delonte Jordan] and Demetris Henry, robbed a 7-Eleven convenience store in Silver Spring. During the robbery, Mbewe watched the front door of the store, Jordan pointed a gun at the store clerk, and Henry took the money from the register. Because the robbers covered their faces with t-shirts, eyewitnesses to the robbery were unable to identify them. The State's evidence consisted of circumstantial evidence, including the expert testimony of a K-9 tracker. The defense argued lack of criminal agency. Appellant Mbewe was the sole witness for the defense. Viewing the evidence in the light most favorable to the State, the prevailing party, the following was elicited at trial.
Around 5:40 a.m. on July 22, 2009, the 7-Eleven convenience store at the corner of Briggs Chaney Road and Old Columbia Pike was robbed. A store clerk and two patrons inside the store and one patron outside the store at the time of the robbery testified for the State.[3] The store clerk testified that he was standing next to the cash register when three men entered the store with t-shirts covering their heads, hiding their faces. The clerk testified that the first man stood in front of the counter and pointed a gun at him; the second man jumped over the counter and ran up to him; and the third man stood near the front door. The robber who had jumped over the counter hit the clerk in the head a few times and demanded that he open the register. The clerk did as he was told. That robber took what was later determined to be $45.43 from the register. The robbers then fled.
A store patron testified that he was at the back of the store when he heard a lot of commotion and observed three men robbing the store. The men had t-shirts over their faces; two of the men wore black t-shirts, one of the men wore what the patron thought was a white t-shirt. A second patron testified that he was near the front door when three black men with shirts covering their heads rushed into the store. He tried to exit the store but the third robber told him to “get down, get down.” The patron apparently did not move fast enough so that robber stomped on him two or three times, forcing him to the ground. Around this time, a third patron had pulled into the parking lot of the store. As she was getting out of her car, she saw three men run out of the store with t-shirts over their heads. Two of the men had black t-shirts over their heads; one had a white t-shirt. She saw the three men run to the left of the store and down an embankment that led to some woods.
The robbery took less than 30 seconds. Neither the clerk nor the three patrons were able to identify the robbers. The store surveillance system recorded the robbery. The tape was played for the jury and admitted into evidence as well as photographs from the tape. The tape and photographs showed a black man wearing a white sleeveless shirt with a light gray shirt covering his head running into the store with a gun. It showed a second black man without a shirt on but with a black t-shirt covering his head jump onto the counter to get to the register. Because of the angle of the camera, the third robber was not shown on the film. After the robbers fled, the store clerk immediately called the police, who responded within five minutes. Based on the officers' conversations with the clerk and patrons, the police broadcast a description of the robbers and secured the perimeter of the building.
Corporal Paul Kukucka, a fifteen-year veteran with the Montgomery County K-9 unit, and Saber, his German Shepherd, arrived shortly thereafter. Corporal Kukucka testified extensively as to his and Saber's training and experiences in tracking. Corporal Kukucka, who was accepted as an expert in the field of K-9 tracking, explained that he and Saber initially went through 14 weeks of training, and that every three weeks they reinforce their skills by attending a ten-hour class. Additionally, they spend six hours every month refreshing their skills.
The corporal testified that humans lose skin cells at a rate of 40, 000 per minute, and his dog tracks scent from the skin cells and crushed vegetation. Corporal Kukucka explained that when brought to an area to track, he places his dog in a tracking harness that has a twenty-foot line. The tracking harness signals to the dog that he is to track. The long lead line requires the dog to pull the corporal hard to signal the corporal to follow him.
Corporal Kukucka testified that after he was given a description of the suspects and the area where the suspects were last seen fleeing, he retrieved Saber from his car, put him in his harness, and brought him to the left of the building. It was just after 6:00 a.m. and the day was clear. He instructed Saber to track, and the dog began to do so “immediately.” The corporal testified that it was a fresh scent, explaining:
Having an area where you respond to the scene within a reasonable amount of time, and I consider this an extremely reasonable amount of time, and you put the dog down. And when he starts to pick up on something immediately, it's a fresh, it's a fresh scent.
Corporal Kukucka testified that Saber pulled him behind the 7-Eleven to a fence line leading to some woods. The dog started to “air scent, ” raising his head in the air to catch the scent. The corporal added that a scent blown off an object creates a cone of scent and a dog will move from side to side trying to pinpoint the object.
Corporal Kukucka testified that after air scenting, Saber started moving toward the wooded area. The Corporal looked up and saw three black men looking at him while hiding in the wooded area behind a tree. Two of the men were wearing dark t-shirts, one was wearing a light-colored t-shirt. The corporal announced, “Montgomery County Police K-9, stop, or I'm going to release the dog.” The men fled deeper into the woods. The corporal radioed his location to other officers in the area and Saber began tracking again. Saber tracked through the woods and into a field. At that point, the corporal heard rustling as if someone was going back into the woods. The corporal explained why he continued to follow his dog and not to force his dog to follow the rustling noise:
Because there's one thing that a good K-9 will always do, and every instructor will always tell you is, always trust your dog, trust, trust your dog. So, he was on an active, he was on an active scent, I didn't want to pull him off it to check out the noise. . . .
So, trusting my dog, I stayed with him, since he was working an active scent[.]
The corporal and Saber continued to track the suspects through the field and into a residential area. When they were about 40 yards from the back of a house, the corporal saw two of the three men he had seen earlier “hunched” down behind a support column underneath a deck. As the corporal got closer, he gave another K-9 warning but the two men again fled. The corporal again radioed his location, and he and Saber continued to track the suspects. Saber tracked the suspects across several residential streets when the corporal saw the two men running toward a wood pile. The suspect wearing a white t-shirt hid behind the wood pile while the suspect wearing a light gray t-shirt continued running. Other officers arrived on the scene and while one officer arrested Jordan behind the wood pile, another arrested Mbewe, who had run a short distance further.
The chase had lasted about an hour and the suspects were arrested near a residential community next to the strip mall in which the 7-Eleven was located. The police took pictures of the men upon their arrest. The men were then taken to a police station and searched. The police recovered $95 from Jordan's person. Both men smelled of alcohol.
Corporal Kukucka testified that after Jordan and Mbewe were arrested, Saber rested while other K-9 units searched the area for the third suspect and the gun. They found neither. Corporal Kukucka then had Saber search the area for items that might have been involved in the robbery. During that search, they discovered an encampment about 100 yards to the left from where the corporal had given the suspects his first K-9 warning. The encampment contained a chair, a couple of crates to sit on, a fire pit, and a couple of hundred beer cans. Corporal Kukucka testified that Saber never alerted to the area while tracking the suspects, and when Saber was in the encampment he showed “no interest whatsoever of any scent in that area[.]”
Corporal Kukucka testified that in his expert opinion Saber picked up the robbers scent from the 7- Eleven and had never lost it. The corporal identified the appellants in court as the two suspects he had tracked. The 7-Eleven manager testified that he was familiar with the appellants - they were patrons of his store. No usable fingerprints were found at the crime scene but a shoe print was taken from the counter where the second robber had jumped onto the counter to get to the cash register. Demetris Henry was arrested two days later. The print from Henry's shoe was compatible with the print taken from the counter.
Mbewe was the only witness to testify for the defense. He admitted to recent prior convictions for statutory rape and distributing marijuana. He testified that at the time of the robbery, he had charges pending against him and that he lived at the encampment. He explained that because of the pending charges, his mother had filed a protective order against him so he could not live at her home. The night before the robbery, he and a group of six to eight men were drinking at the encampment. He admitted to knowing both Jordan and Henry. Jordan was at the gathering; Henry was not. At some point, Mbewe fell asleep in a chair but was awoken when he heard Corporal Kukucka issue his K-9 warning. He ran because he thought he might be arrested - he had been drinking underage (he was 19 years old) and he did not want his Pretrial Services “to violate him” because he was not living with his mother. According to Mbewe, he ran only a couple of yards before stopping, and while running he noticed that Jordan was running alongside of him. On cross-examination, Mbewe admitted that when he was arrested he had lied to the police and told them he did not know Jordan.

         After a jury trial in the Circuit Court for Montgomery County, Jordan was convicted of armed robbery, conspiracy to commit armed robbery, and second-degree assault. Id. at 1; ECF 6-7. On April 20, 2010, Jordan was sentenced to an aggregate fifteen years' imprisonment. ECF 6-8.

         Jordan filed a timely Notice of Appeal, along with his co-defendant Francis Mbewe, arguing that the evidence was insufficient to sustain his convictions; the trial court erred when it responded to a jury question asking about whether there could be a hung jury on the guilt of Francis Mbewe; and that the prosecutor improperly commented on Jordan's failure to testify. ECF 6-9 at 2. In an unreported opinion filed on October 12, 2011, the Court of Special Appeals affirmed Jordan's judgments of conviction. ECF 6-11. Jordan's petition for writ of certiorari to the Maryland Court of Appeals raised ...


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