Circuit Court for St. Mary's County Case No.
Wright, Reed, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
would be challenging to declare that in this case the 1986
decision of Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69, is robustly alive and well. The
mundane reality, however, is that in this case, the raising
of a Batson issue is but an opportunistic
afterthought on tenuous life-support. Even without
Batson, however, the appellant's criminal
history has a stubborn vitality of its own that is slowly
hardening into local legend.
Scourge Of Lexington Park
appellant is Antonio Warren Gantt. His specialty is bank
robbery. For a town the size of Lexington Park (population
11, 626 as of the census of 2010), the appellant was for a
decade a one-man crime wave. Prior to the two bank robberies
which we will be mentioning in fuller detail, the appellant
had already compiled a not insignificant criminal history.
The first of the actual bank robberies occurred on September
24, 2007, at the Lexington Park branch of the Maryland Bank
and Trust. The appellant, single-handedly, walked up to a
teller and demanded cash in hundreds and fifties, threatening
to kill the teller if she did not comply. The teller turned
over to him approximately $22, 000. The appellant was not
immediately apprehended and remained at large to strike
weeks later, on October 31, 2007, the appellant, again
single-handedly, robbed the same Lexington Park branch of the
Maryland Bank and Trust for yet a second time, making off on
that occasion with between $43, 000 and $44, 000. Eight
separate witnesses identified him at trial. Three of the
tellers were sprayed with gasoline and ordered to go into the
back room where the money was stored. The appellant
threatened to "kill [them] and burn the bank down"
if they did not follow his orders. The appellant herded them
into the vault and shut the door. On that occasion, however,
the bank manager was able to turn over to the appellant $1,
000 in "bait money." The appellant was shortly
November 18, 2008, a St. Mary's County jury convicted the
appellant of the October 31, 2007, bank robbery. On the next
day, November 19, 2008, another St. Mary's County jury
convicted the appellant of the September 24, 2007, bank
robbery. At a joint sentencing for both sets of convictions
on January 16, 2009, the appellant was sentenced, as a
subsequent offender, to concurrent terms of life imprisonment
without parole for each of the bank robberies.
appellant took a consolidated appeal to this Court. In an
unpublished opinion, we concluded that Rule 4-215 had been
violated because the appellant had been permitted to
discharge his counsel without having been informed that he
was facing the possible sentence in each case of life without
parole. Gantt v. State, No. 2704, September Term,
2008, filed on August 24, 2010.
indication of the local reaction to the reversals may be had
from the August 23, 2011, article in the St. Mary's
County Enterprise which quoted one of the exasperated
trial judges, upon being informed of the reversals, as
saying, "I think the Court of Special Appeals made a
very stupid decision . . . . It's obvious I hate him. I
think he should be hung. Go get me a
September 6, 7, and 8, 2011, the appellant was retried for
the October 31, 2007, bank robbery by a St. Mary's County
jury, presided over by Judge Karen H. Abrams. The appellant
was again convicted. The appellant then took his second
appeal to this Court. Gantt v. State, No. 1871,
September Term, 2011, filed on April 1, 2013. In a footnote,
the opinion of this Court on that occasion took note of the
"less than amicable" feeling of the appellant
toward the judiciary.
The mood throughout this pre-trial hearing was less than
amicable. At one point the appellant requested that he
be at the trial in civilian clothing. In declining that
request, Judge Abrams reminded the appellant that he had
actually been bound and shackled at his first trial. At
one point Judge Abrams advised him that as a pro
se defendant, he was "going to have to show
respect for the court or be removed from the
courtroom." The appellant responded:
MR. GANTT: You bitch. You are a bitch. You are a real
bitch. I never came into this courtroom and did
anything. These officers tazed me and they tape me up.
You have the nerve to chastise me about if I act up? You
were the ones who abused me. I never abused anyone. So I
don't want to hear that shit. We want to go to trial,
let's go to trial. Don't chastise me like I
came into this courtroom and did something to someone. You
want me - you got blood on your -
the cast of characters (the appellant) and the mood of the
local community. Feelings were running high.
that second trial of September 6, 7, and 8, 2011, for the
October 31, 2007, bank robbery and that second appeal to this
Court will be examined in full detail. In that appeal, the
appellant raised five contentions. In response to one of the
contentions, this Court vacated the enhanced sentence for two
of the armed robbery convictions, but we otherwise affirmed
the convictions. On the sentencing remand, Judge Abrams
sentenced the appellant to a term of 20 years on each of the
armed robbery convictions, the sentences to run concurrently.
Calhoun v. State, 46 Md.App. 478, 488-89, 418 A.2d
1241 (1980), affd, 290 Md. 1, 425 A.2d 1361 (1981);
State v. Taylor, 329 Md. 671, 674, 621 A.2d 424
December 13, 2013, the appellant filed a pro se
Petition for Post-Conviction Relief. Supplemental Petitions
followed on December 20, 2013; on September 26, 2014; on
December 27, 2016; and on November 1, 2017. On November 9,
2017, the appellant withdrew all grounds for Post-Conviction
Relief not set forth in the "November Supplement."
Post-Conviction hearing was held before Judge Steven I. Platt
on November 9, 2017. On December 21, 2017, Judge Platt filed
his order, which permitted the appellant to file a belated
Motion for Modification with respect to two counts and which
permitted the appellant to file a belated Application for
Review of Sentence by a Three Judge Panel. He otherwise
denied the Petition for Post-Conviction Relief in all
four issues before Judge Platt at the Post-Conviction
hearing, two of them alleged that appellate counsel had been
inadequate for failing to raise issues on the second appeal
to this Court from the September 8, 2011, conviction for the
October 31, 2007, bank robbery. One of the alleged
inadequacies of appellate counsel was the failure to appeal
the rejection of the appellant's ostensible
Batson challenge, the alleged inadequacy now before
us. The other alleged appellate inadequacy was counsel's
failure to appeal from the denial of the appellant's
motion for a change of venue based on the intemperate remarks
of the first trial judge to the local newspaper upon the
reversal of both bank robbery convictions. The appellant is
not now challenging that second alleged appellate inadequacy.
January 9, 2018, the appellant filed an Application for Leave
to Appeal to this Court based on his chagrin at failing to
prevail at the Post-Conviction hearing. That application was
granted on July 17, 2018. In what is now his third appeal to
this Court, the appellant raises a single contention:
post conviction court erred in denying Appellant's claim
of ineffective assistance of appellate counsel for failing to
raise his meritorious Batson issue on direct appeal.
v. Washington: The Two-Pronged Test
1984, the universally accepted test for measuring the Sixth
Amendment adequacy of counsel, both trial and appellate, has
been Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674. In thoroughly analyzing
Strickland, this Court in State v. Gross,
134 Md.App. 528, 760 A.2d 725 (2000), affd,
Gross v. State, 371 Md. 334, 809 A.2d 627 (2002),
focused on its two-pronged character.
The fountainhead is Strickland v. Washington. After
pointing out that the "benchmark for judging any claim
of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result," the Supreme Court went on to establish the
now classic two-pronged test for making such a
determination. It referred to the two distinct elements
that had to be analyzed as the "performance
component" and the "prejudice
component" of the "ineffectiveness
134 Md.App. at 550 (emphasis supplied; citations omitted).
number of Maryland cases, incidentally, have discussed and
applied Strickland and its two-pronged test.
Wiggins v. State, 352 Md. 580, 600-03, 724 A.2d 1
(1999); Oken v. State, 343 Md. 256, 283-95, 681 A.2d
30 (1996); Gilliam v. State, 331 Md. 651, 664-86,
629 A.2d 685 (1993); State v. Thomas, 328 Md. 541,
616 A.2d 365 (1992); Williams v. State, 326 Md. 367,
605 A.2d 103 (1992); State v. Thomas, 325 Md. 160,
169-73, 178-88, 599 A.2d 1171 (1992); Bowers v.
State, 320 Md. 416, 424- 31, 578 A.2d 734 (1990);
State v. Colvin, 314 Md. 1, 5-7, 14-19, 548 A.2d 506
(1988); State v. Calhoun, 306 Md. 692, 728-38, 511
A.2d 461 (1986); State v. Tichnell, 306 Md. 428,
433-57, 509 A.2d 1179 (1986); Harris v. State, 303
Md. 685, 496 A.2d 1074 (1985); State v. Purvey, 129
Md.App. 1, 5-27, 740 A.2d 54 (1999), cert. denied,
357 Md. 483, 745 A.2d 437 (2000); and Cirincione v.
State, 119 Md.App. 471, 483-509, 705 A.2d 96, cert.
denied, 350 Md. 275, 711 A.2d 868 (1998).
prevail on a claim that the constitutionally guaranteed
assistance of counsel was inadequate, a defendant must
satisfy both the performance component and the prejudice
component of Strickland. The defendant, moreover,
has the burden of proof with respect to each.
itself pointed out that the defendant's burden on the
performance prong is to prove that counsel's
representation was so deficient as to undermine the
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the
466 U.S. at 687 (emphasis supplied).
State v. Gross, we pointed out that the standard for
appellate comparison is not an "ideal" but only a
Strickland then admonished that counsel is not to be
measured against an ideal standard but is to be assessed in
terms of whether his lawyerly assistance was
"reasonable" and that that is to be measured
"under prevailing professional norms[.]"
134 Md.App. at 551.
was very clear, moreover, that counsel's performance must
be measured against prevailing professional norms.
As all the Federal Courts of Appeals have now held, the
proper standard for attorney performance is that of
reasonably effective assistance. . . . When a
convicted defendant complains of the ineffectiveness of
counsel's assistance, the defendant must show that
counsel's representation fell below an objective standard
The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.
466 U.S. at 687-88 (emphasis supplied; citations omitted).
State v. Gross, we made it clear that the appellate
review of counsel's performance must be highly
In guarding against too facile a finding of deficient
performance by trial counsel, the Supreme Court circumscribed
after-the-fact review, by post-conviction court and appellate
court alike, with a number of cautionary admonitions. One of
those is that "judicial scrutiny of counsel's
performance must be highly deferential" and that
reviewing courts should be especially careful not to
judge a performance through the distorting lens of
134 Md.App. at 552 (emphasis supplied).
the standard of review of the adequacy of a performance,
Strickland left no doubt.
It is all too tempting for a defendant to
second-guess counsel's assistance after conviction
or adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689 (emphasis supplied; citations omitted).
fact that a given trial tactic proves to be unsuccessful,
moreover, does not ipso facto establish
that the defendant was prejudiced. Strickland is
[Ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the
defendant affirmatively prove prejudice . . . .
466 U.S. at 693 (emphasis supplied). Strickland went
The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
466 U.S. at 694 (emphasis supplied).
Oken v. State, 343 Md. 256, 681 A.2d 30 (1996), the
Court of Appeals discussed Strickland's
In order to establish prejudice, Oken must show that there is
a substantial possibility that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.
343 Md. at 284 (emphasis supplied).
Of Appellate Counsel
inevitable variations in its appellate application,
Strickland's two-pronged test for the adequacy
of counsel operates as surely at the appellate level as it
does at the trial level. As this Court observed in State
The two-pronged test enunciated in Strickland
applies to claims of ineffective assistance of appellate
counsel just as surely as it does to claims of ineffective
assistance of trial counsel.
Although the basic principles enunciated by
Strickland remain the same, whether applied to a
trial performance or an appellate performance, the juridical
events to which those principles apply obviously differ
somewhat depending on the operational level being
134 Md.App. at 556 (emphasis supplied; citations omitted).
and recurring issue at the appellate level is the selection
of which issues, out of a larger totality of issues, to raise
on appeal. In Jones v. Barnes, 463 U.S. 745, 103
S.Ct. 3308, 77 L.Ed.2d 987 (1983), the Supreme Court was
assessing the constitutional adequacy of appellate lawyering.
The United States Court of Appeals for the Second Circuit had
granted habeas corpus relief because an attorney had
failed to raise on appeal a non-frivolous argument
specifically requested by a defendant. In reversing the
Second Circuit, the Supreme Court pointed out that the
strategic selection of which appellate issues to raise and
which to ignore is one entrusted to the strategic judgment of
appellate counsel and is not a matter for second-guessing by
an appellate court.
There can hardly be any question about the importance of
having the appellate advocate examine the record with a view
to selecting the most promising issues for review. This
has assumed a greater importance in an era when oral argument
is strictly limited in most courts-often to as little as 15
minutes-and when page limits on briefs are widely
imposed. Even in a court that imposes no time or page
limits, however, the new per se rule laid down by
the Court of Appeals is contrary to all experience and logic.
A brief that raises every colorable issue runs the risk
of burying good arguments-those that, in the words of
the great advocate John W. Davis, "go for the
jugular," Davis, The Argument of an Appeal 26
A.B.A.J. 895, 897 (1940)-in a verbal mound made up of
strong and weak contentions.
463 U.S. at 752-53 (emphasis supplied; citation omitted).
Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91
L.Ed.2d 434 (1986), the Supreme Court reaffirmed the tactical
role of appellate counsel in assessing the relative strengths
and weaknesses of various arguments and in then choosing, as
a matter of trial tactics, which to push and which to ignore.
After conducting a vigorous defense at both the guilt and
sentencing phases of the trial, counsel surveyed the
extensive transcript, researched a number of claims, and
decided that, under the current state of the law, 13 were
worth pursuing on direct appeal. This process of
"winnowing out weaker arguments on appeal and focusing
on" those more likely to prevail far from being evidence
of incompetence, is the hallmark of effective appellate
477 U.S. at 535-36 (emphasis supplied).
appellate level, the prejudice prong as well as the
performance prong must be satisfied. Smith v.
Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756
(2000), makes it clear that the burden remains on the
defendant to demonstrate prejudice at the appellate level by
showing that had the unraised argument been raised, the
appeal would probably have been successful.
If Robbins succeeds in such a showing [of a deficient
performance], he then has the burden of
demonstrating prejudice. That is, he must show a
reasonable probability that, but for his counsel's
unreasonable failure to file a merits brief, he would
have prevailed on his appeal.
528 U.S. at 285 (emphasis supplied).
Newton v. State, 455 Md. 341, 168 A.3d 1 (2017),
Judge Adkins wrote for the Court of Appeals:
As to the performance prong, "[t]he Sixth Amendment does
not require an attorney to argue every possible issue on
appeal." . . . . Therefore, appellate counsel
"need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to
maximize the likelihood of success on appeal."
455 Md. at 363 (emphasis supplied; citations omitted).
Selection Of Appellate Issues
relativistic world, the manager who has both a Ruth and a
Cobb in his starting line-up will not be second-guessed for
having left even a DiMaggio on the bench. Appellate counsel
are well advised to be highly selective in choosing
contentions and then to go with the best. Even good
contentions may prudently be ignored if they are less than
the best. As this Court noted in State v. Gross:
We are not suggesting for a moment that Gross's claims
with respect to the DNA evidence were frivolous. An
effective performance by appellate counsel, however,
does not require that every claim, even if non-frivolous,
be raised on appeal. Smith v. Robbins observed in this
[A]ppellate counsel who files a merits brief
need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal.
134 Md.App. at 562-63 (some emphasis supplied; citation
The Supreme Court similarly observed in Jones v.
Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues.
463 U.S. at 751-52 (emphasis supplied). The Supreme Court
quoted with approval from the 1980 Manual of the Association
of the Bar of the City of New York on practice before the
"[A] brief which treats more than three or four
matters runs serious risks of becoming too diffuse and
giving the overall impression that no one claim of error can
463 U.S. at 752 n.2 (emphasis supplied).