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Davis v. Bishop

United States District Court, D. Maryland

April 17, 2019

LARRY DAVIS, #361580 Petitioner,
v.
FRANK BISHOP, WARDEN, et at, Respondents.

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE

         A response to the petition for writ of habeas corpus with exhibits was filed in the above-captioned case. The question of discovery has been resolved, and the matter is now ready for review. The court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Local Rule 105.6 (D. Md. 2018); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (stating that the petitioner is not entitled to a hearing under 28 U.S.C. §2254(e)(2)). For the reasons that follow, the court denies the petition and declines to issue a certificate of appealability.

         Factual and Procedural History

         Self-represented Petitioner Larry Davis is challenging his 2010 jury convictions[1] in the Circuit Court for Baltimore City for attempted first-degree murder, attempted second-degree murder, attempted first-degree assault, second-degree assault, reckless endangerment, and knowing possession of incendiary material with intent to create a destructive device.[2] The incident leading to the convictions, which were affirmed by the Court of Special Appeals of Maryland, occurred on the afternoon of April 11, 2006, when Davis's former girlfriend found him lying on the ground behind her car, looking as if he were working under the vehicle. ECF 8-11 at p. 4. When she screamed and ran, Davis gave chase, caught her by the arm, and threatened to kill her. Id. Her screams brought police response and Davis, who ran into nearby woods, was found, identified by the victim, and arrested. Idat p. 5 A search of the scene located articles of clothing identified as Davis's and a duffle bag containing fuel cells with wires attached to them, a large black rubber-band, sulfuric acid sealed in a bag, pliers, wire-cutters, and a receipt from Standard Carpet to Davis's contracting company, which bore Davis's signature. Id. at pp. 4-5.

         A yellow canister found duct-taped to the muffler of the victim's car was suspected to be an explosive device; the bomb squad was called and a nearby hospital was placed on lock-down. Id. at p. 6. Officer Bryan Bacon of the Baltimore City Police Department Special Operations Unit, Emergency Services Bomb Squad "determined that the item was a small propane tank of the type used by contractors for sweating pipes during plumbing jobs." Id. at p. 6. Wire and duct tape had been used to attach the tank to the car's tail pipe. Id. Officer Bacon removed and "x-rayed the gas cylinder, which he believed to contain MAPP gas, a type of propane that bums hotter than regular propane." Id. at p. 6. At trial, Officer Bacon testified that had the car been driven with the canister attached to the tail pipe,, the canister likely would have ruptured, and if that had happened, there would have been" a large incendiary explosion" and possibly an ignition of the car's gas tank, which may have blown up the rear of the car and injured the driver, as well as any people in the immediate area. Id.atpp. 6-7.

         Davis, who discharged counsel andundertook his own representation mid-way -through -his second trial, id. at p. 7 n. 8, unsuccessfully moved for judgment of acquittal on the charge of possessing incendiary material with intent to create a destructive device at the close of the State's case, arguing that no witness had verified that the tank attached to the car contained MAPP gas, and that ""[b]ecause the police department's x-ray of the canister showed only some type of liquid inside . . . there.was no evidence that the canister contained incendiary material," id. At p. 7. "The State countered that there was nothing to suggest that the cylinder contained anything other than the substance it was labeled to contain, an extremely flammable MAPP gas." Id. at p. 7. The court denied Davis's motion and the jury convicted him. Id.

         Following his unsuccessful direct appeal, [3] Davis sought certiorari in the Court of Appeals of Maryland, arguing that the Court of Special Appeals's decisions regarding the following were in error: (1) sufficiency of the evidence supporting conviction of possession of incendiary material; (2) sufficiency of the evidence supporting conviction for attempted first-degree murder; and (3) amendment of count 3 of the indictment from first-degree assault to attempted first-degree assault. ECF 8-12 at pp. 1-2. On September 24, 2012, the Court of Appeals denied Davis's petition for writ of certiorari. Davis v. State, 428 Md. 544 (Md. 2012).

         While the petition for certiorari was pending, on September 7, 2012, Davis Filed a self-represented motion for new trial, later supplemented, ECF 8-14 at pp. 5-7, asserting that: (1) he recently had obtained the chain of custody form which established that evidence presented at trial was not what it purported to be, id. at p. 8; (2) prior to discharge, counsel at Davis's second trial performed ineffectively by failing to obtain the chain of custody form, ECF 8-16 at p. 11; and (3) the evidence was not sufficient to sustain his convictions, id. at p. 15. The motion was denied, and Davis's appeal to the Court of Special Appeals was denied in an unreported opinion on May 21, 2015. ECF 8-17. The mandate issued on June 22, 2015. Id. at p. 15. Further review was denied by the Court of Appeals on September 28, 2015. See Davis v. State, 445 Md. 5, 122 A.3d 975 (table) (Md. 2015). The Supreme Court denied certiorari review on May 2, 2016. See Davis v. Maryland, 136 S.Ct. 1833 (mem.), 194L.Ed.2d 837 (2016).

         On August -30, 2016, Davis filed a petition for post-conviction relief. As supplemented, the petition raised the following claims:

1. Trial counsel was ineffective for failing to file motions to compel certain evidence be produced, including an x-ray of a metal cylinder and a chain of custody report regarding that cylinder;
2. The prosecutor knowingly suppressed this x-ray and chain of custody evidence;
3. The prosecutor committed misconduct by providing the trial court with "false indictment information" and false information regarding a prior ruling;
4. Appellate counsel was ineffective for failing to object to the amendment of Davis's charges from first-degree assault to attempted first-degree assault;
5. The trial court committed misconduct by (a) making a biased ruling during a motion for judgment of acquittal and (b) allowing the amendment to the charges referenced above; and
6. Appellate counsel was ineffective for (a) failing to present a plain error claim relating to the jury instructions, and (b) failing to present a claim relating to the trial court's denial of Davis's motion for new trial made after the verdict.

ECF 8-19. The petition was denied on February 28, 2017. ECF 8-20. Davis raised these claims in his application for leave to appeal the denial of post-conviction relief. ECF 8-21. The application was denied by the Court of Special Appeals on October 3, 2017, with the mandate issuing December 12, 2017. ECF 8-22.

         Allegations in this Court

         Davis presents the following grounds for relief:

1. The prosecutor committed misconduct by suppressing the chain of custody form and an x-ray and by eliciting police officer testimony in violation of Maryland Rules 5-701[4] and 5-702;[5]
2. Trial counsel was ineffective for failing to subpoena the chain of custody form prior to his first trial;
3. Appellate counsel was ineffective for failing to raise the trial court's abuse of discretion as plain error; and
4, The trial court abused its discretion by making a biased ruling during Davis3 s motion for judgment of acquittal and amending the jury instructions to reflect the offense of attempted first-degree assault rather than simply first-degree assault.

ECF at pp. 7-8. Respondents argue that Davis's claim regarding prosecutorial misconduct in violation of Maryland Rules 5-701 and 5-702 is procedurally defaulted and otherwise fails to state a cognizable federal claim and that Davis's remaining claims are procedurally barred or without merit.[6]

         Standard ...


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