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Pevia v. Bishop

United States District Court, D. Maryland

July 26, 2019

DONALD PEVIA, Petitioner,
v.
WARDEN FRANK BISHOP and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE

         Donald Pevia, a Maryland prisoner, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his 2011 conviction in the Circuit Court for Carroll County, Maryland for second-degree murder of an eight-month-old child; first-degree child abuse resulting in death; and related offenses. ECF 1. Pevia, who is self-represented, also filed exhibits, docketed collectively at ECF 1-1.

         Pevia presents numerous contentions. In sum, he contends that the evidence was legally insufficient to support his convictions; his attorneys rendered ineffective assistance; and the State trial court, the State appellate court, and the State post-conviction court committed a host of errors. See ECF 1.

         Respondents, Warden Frank Bishop and the Maryland Attorney General, filed an Answer (ECF 8), along with numerous exhibits. In their view, Pevia has not presented any basis for relief under 28 U.S.C. § 2254(d). Pevia replied (ECF 9), and was given an additional opportunity to supplement his response (ECF 13), which he did on April 9, 2018. ECF 14. On November 13, 2018, Pevia filed a Motion to Supplement and Amend Complaint. ECF 15. The motion shall be granted.[1]

         I shall refer to ECF 1, ECF 14, and ECF 15 collectively as the “Petition.” No. hearing is necessary to resolve the Petition. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2018); 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 that follow, I shall deny the Petition. A certificate of appealability shall not issue.

         I. Factual and Procedural History

         At the outset of the trial in the Circuit Court for Carroll County, defense counsel advised Pevia of his right to a jury trial and the nature of a jury trial. ECF 8-2 at 6-7.[2] Pevia elected to waive his right to a jury trial, and the trial judge “note[d] the waiver . . . .” Id. at 7. As a result, Pevia was tried by the court, without a jury, on March 28-April 1, 2011. See ECF 8-1 at 6-7; ECF 8-2 to 8-6. Judge J. Barry Hughes presided.

         The facts at Pevia's trial were summarized by the Maryland Court of Special Appeals, Pevia v. State, No. 1132, Sept. Term 2011 (filed July 1, 2013) (unpublished), as follows, ECF 8-11 at 3-8:

On June 30, 2008, Ky'leigh Rogers was born to Angela Mabe and Charles Rogers, who were not married.[] At the time of her birth, she and her parents lived together at Angela's grandparents' house in Sykesville, Maryland. A month later, Rogers moved out and Angela started dating appellant [Pevia]. In December 2008, Angela and Ky'leigh moved from Angela's grandparent's house to appellant's mother's house. In January 2009, however, appellant, Angela, and Ky'leigh returned to Angela's grandparents' house. This is where Ky'leigh lived until her death.
The living arrangements in the home were that Ky'leigh, Angela, and appellant lived in the basement of the house. Angela's twin sister, Dakota Mabe, had a bedroom on the first floor where she lived with her boyfriend, Rodney Harris, and her four-year-old daughter. The grandmother, who was physically limited and could not go up or down stairs, also had a bedroom on the first floor; the grandfather's bedroom was on the second floor. Eight months after her birth, on March 3, 2009, Ky'leigh died.
By all accounts, Ky'leigh was generally a happy, healthy baby until a few weeks before her death. Dr. Jennifer Kottra, Ky'leigh's pediatrician since she was born, testified that Angela brought Ky'leigh in for all well-child visits and vaccinations and that her development was on track. On February 9, three weeks before Ky'leigh's death, Angela brought Ky'leigh in to see Dr. Kottra because Ky'leigh was congested and was running a fever. During the visit, Dr. Kottra noted some tiny red dots on Ky'leigh's face, but she saw no bruising. Dr. Kottra explained that the dots could have been caused by a virus or by smothering, strangulation, or shaking. She asked Angela if anyone could be shaking Ky'leigh, and Angela replied that she did not think so. Nonetheless, Dr. Kottra sent Angela to an ophthalmologist to check for retinal hemorrhages to rule out child abuse. The subsequent tests were negative. The pediatrician saw Ky'leigh for a follow up visit ten days later on February19. Ky'leigh had no fever, her congestion was much improved, and the red dots had faded. The pediatrician testified that Ky'leigh was “active and alert and playful” during the visit, and she again saw no bruising.
The week before Ky'leigh died, Angela testified that she took her to two different hospitals. Angela explained that Ky'leigh had extreme sensitivity on her left side and Angela heard “popping” or “clicking” sounds from that side. Angela admitted that she lied to the medical personnel on both occasions, telling them that Ky'leigh had fallen off a bed, which was untrue. She testified that she feared Ky'leigh was being abused and was scared that Child Protective Services might take her daughter away from her.
At the first hospital, appellant refused to get out of the car. After Ky'leigh was checked in, he and Angela began arguing, and appellant demanded that they leave. The argument escalated. While out by the car, appellant grabbed Angela around the throat, which he had done “a few times” before and yelled that they were leaving “because he wasn't going back to jail[.]” They then left without Ky'leigh being seen by any medical staff. Angela admitted that in January she and appellant began “arguing a lot” about money, appellant's heroin addiction, and his stealing her money to buy drugs. Appellant did not work, and most days Angela drove him to Baltimore where he purchased heroin for his drug addiction.
The weekend before Ky'leigh died, Angela's mother, Susan Sharpe, watched Ky'leigh. She noticed scrapes and bruises on Ky'leigh's face and chin, and that she flinched when picked up. Ms. Sharpe also noticed bruises on Ky'leigh's feet and ribs, and fingerprints on her thighs. Although Ky'leigh sat up and played some during the visit, Ms. Sharpe thought Ky'leigh was in pain. When she returned Ky'leigh to Angela, Ms. Sharpe expressed her concern and suggested that she and Ky'leigh move in with her. That did not happen.
Around 9:30 a.m. on the day of Ky'leigh's death, Angela asked Dakota, who was several months pregnant, to watch Ky'leigh. Angela then took appellant to Baltimore so he could buy heroin. Dakota, her daughter, and Harris, as well as the grandmother, were at the house. According to Dakota, Ky'leigh seemed fine- she was sitting on the bed, smiling, and watching Harris play hand puppets with her. Around 11:00 a.m., Dakota heard the door slam and then Angela and appellant arguing in the basement. A few minutes later, Angela came upstairs and asked Dakota to keep an eye on appellant, who she said had threatened to commit suicide. Dakota was not overly concerned about this information, believing that it was just appellant's way of getting Angela's attention. Before leaving, Angela observed Ky'leigh smiling, sitting up on the bed with Dakota caring for her. Shortly thereafter, Harris also left. Ky'leigh took a nap.
Around 12:30 p.m., appellant came upstairs and said he was taking Ky'leigh downstairs. He took Ky'leigh, who began to cry loudly, and her bottle and her walker and headed downstairs. Dakota called Angela to make sure it was all right if appellant had Ky'leigh; Angela said it was okay. Less than two hours later, around 2:15 p.m., appellant brought Ky'leigh upstairs and handed her to Dakota. Ky'leigh was limp, she did not move, her eyes were barely open, and she was breathing heavily. Appellant said he did not know what was wrong with her and then walked out of the room. Dakota immediately called 911.
Paramedics arrived at 2:30 p.m. and found Ky'leigh very lethargic and in respiratory distress. She was immediately taken to the hospital where she went into cardiac arrest. At the hospital and while awaiting news about Ky'leigh, appellant told Angela's and Dakota's younger sister that while in the basement, he dozed while Ky'leigh was in her walker. At some point, Ky'leigh started crying, and he got up. He fed her a bottle on the bed and “she just looked like she went into a daze and wasn't breathing right.” Similarly, appellant told Dakota at the hospital that Ky'leigh was sitting in her walker when “she started acting funny.”
After about 90 minutes of emergency resuscitation, Ky'leigh was pronounced dead. An autopsy was done the following day. Dr. Russell Alexander, the medical examiner, testified that although it was very unusual for an eight-month-old to have any bruises at all, Ky'leigh had 42 bruises on her body, 13 of them about her head. Additionally, she had skull fractures on both sides of her head, six recent rib fractures, and 16 older rib fractures. He opined that the older rib fractures could have occurred between two to five weeks before her death. Also, Ky'leigh's liver and spleen were torn, which he explained would have resulted in significant internal bleeding. She had bruised lungs caused by a blow or squeeze to the chest and tearing inside both her upper and lower lips. He explained that the blows causing the head injuries, the internal injuries, and the rib fractures were of “significant force.” The injuries, however, were not due to the efforts by the hospital medical personnel to save her life. He added that the severity of the injuries observed on Ky'leigh are seen in cases of child abuse, from “a high speed car wreck, [or] falling from a . . . four or five story window[.]”
Dr. Alexander testified that Ky'leigh's death was due to all her injuries but some were more significant and “rapidly life threatening.” The rapidly life threatening injuries included the torn spleen on one side of her abdominal cavity and her torn liver on the other that caused internal bleeding; the broken ribs to both sides of her chest that would have made it difficult to breathe, and the blows to the head that fractured the skull on both sides. He testified that the injuries could have been inflicted at the “extreme” outside estimate of 12 hours before her death but were “more likely” inflicted within “minutes to an hour or so” before her death. He added that a child with her injuries “would not have been acting in a normal way” because of the pain and that the injuries to the liver and spleen would have resulted in an “immediate[] . . . change in behavior[.]” He added that the “constellation of injuries” had an “asphyxia component[.]” Specifically, he noted the torn upper and lower lips, bruising on the neck, and spots on the left eye. He testified that someone could have smothered her or placed their hand over her mouth and nose, and such asphyxiation “could render that person unconscious very, very rapidly[.]”
After both parties had presented their evidence and arguments, the trial court made more than 15 pages of findings of fact. The court stated that it could not credit much of Angela's testimony due to her admitted lies to hospital personnel when seeking medical treatment for Ky'leigh the week prior to her death. The court found Dakota's testimony credible, noting that she loved Ky'leigh “very much and would not have harmed her.” The court found that between 11:00 a.m. and 12:30 p.m., Ky'leigh was in Dakota's care, sitting up and acting normally. Between 12:30 p.m. and 2:15 p.m., while in appellant's sole care, her physical condition rapidly deteriorated. Based on the evidence presented, the trial court found that Ky'leigh's fatal injuries occurred during this time.

         Thereafter, on April 20, 2011, Pevia was found guilty of second-degree murder, first-degree child abuse resulting in death, and related offenses. See ECF 8-1 at 8; ECF 8-14 at 2, ¶ 4. On July 5, 2011, he was sentenced to a total of 60 years in prison. ECF 8-1 at 8-9.

         Pevia appealed his conviction to the Maryland Court of Special Appeals, presenting a single question for review: “Is the evidence sufficient to establish Mr. Pevia's guilt beyond a reasonable doubt?” ECF 8-9 (Appellant's Brief) at 4.[3] In an unreported opinion filed on July 1, 2013, the Maryland Court of Special Appeals affirmed Pevia's convictions. ECF 8-11, Pevia v. State, No. 1132, Sept. Term 2011 (July 1, 2013).

         Pevia then filed a petition for writ of certiorari to the Maryland Court of Appeals. ECF 8-12 at 1-10. That court denied the petition on October 21, 2013. Id. at 11. Pevia did not seek further review in the United States Supreme Court.

         In the interim, on August 23, 2013, in the Circuit Court for Carroll County, Pevia filed a pro se petition for post-conviction relief. See ECF 8-13. He also filed a supplemental petition, through counsel, on October 22, 2014. ECF 8-14.[4]

         As supplemented, litigated, and construed, the petition alleged that: (A) trial counsel was ineffective for (1) failing to impeach Rodney Harris, (2) failing to impeach Angela Mabe, (3) failing to exclude prior “bad acts” evidence, (4) failing to challenge the trial court's noncompliance with Maryland Rule 4-246, (5) failing to file a motion for modification of sentence, and (6) based on the cumulative effect of these errors; (B) appellate counsel was ineffective for failing to challenge the trial court's noncompliance with Maryland Rule 4-246; and (C) the trial court failed to comply with Maryland Rule 4-246 when accepting Pevia's jury trial waiver. See ECF 8-13; ECF 8-14; ECF 8-15.

         The State court (Daniels, J.) held a hearing on the post-conviction petition on December 10, 2014. See ECF 8-1; ECF 15. The post-conviction court issued a Memorandum Opinion and Order on July 2, 2015. ECF 8-1; ECF 8-15. It granted Pevia the right to file a belated motion for reconsideration of sentence but otherwise denying his petition for post-conviction relief. Id.

         On August 5, 2015, Pevia filed an application in the Maryland Court of Special Appeals, for leave to appeal the denial of post-conviction relief. ECF 8-16. He presented only two contentions.[5] First, he alleged that the post-conviction court erred in concluding that trial counsel was not ineffective for failing to challenge the trial court's noncompliance with Maryland Rule 4-246. Id. at 1. Second, he claimed that the post-conviction court erroneously determined that evidence of defendant's prior “bad acts” did not “taint” the verdict. Id. at 2. On March 8, 2016, the appeallate court denied Pevia's application; the mandate issued on April 8, 2016. ECF 8-17.

         On April 23, 2016, Pevia filed his Petition in this court. ECF 1.[6] He claims that there was “inadequate evidence” to support his guilty verdict, and thus the Maryland Court of Special Appeals erred in affirming his judgment of conviction and the post-conviction court erred in denying relief. Id. at 18-19. In addition, Pevia contends that the post-conviction court erred in failing to find that trial counsel rendered ineffective assistance. Id. at 19. Specifically, Pevia claims that counsel failed “to submit evidence at trial, alert [the trial judge] of Mr. Harris [sic] perjured testimony, properly cross examin[e] Angela Mabe of perjured testimony, ” and adequately inform the trial judge “to comply with Md. Rule 4-246.” Id.

         On November 13, 2018, Pevia filed a “Motion To Supplement And Amend Complaint.” ECF 15. He seeks to present an additional question: “Did [the trial judge] error [sic] when he failed to note Petitioner's waiver of jury trial was [made] knowingly and willingly?” Id. at 1. Relying on the Maryland Court of Appeals' decision in Valonis v. State, 431 Md. 551, 66 A.3d 661 (2013), Pevia argues that the trial court violated Maryland Rule 4-246, because it failed to find that Pevia knowingly and voluntarily waived his right to a jury trial. Id.

         II. Standard of Review

         In order for Pevia to pursue federal habeas review, he must have exhausted his right to relief in State court. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 510 (1982). In Maryland, a claim may be exhausted either on direct appeal or in post-conviction proceedings.

         To exhaust a claim on direct appeal in non-capital cases, a defendant must assert the claim in an appeal to the Maryland Court of Special Appeals and then to the Maryland Court of Appeals by way of a petition for a writ of certiorari. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating that exhaustion requirement is satisfied by “giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”); Md. Code, §§ 12-201, 12-301 of the Courts and Judicial Proceedings Article (“C.J.”). To exhaust a claim through post-conviction proceedings, it must be raised in a petition filed in the circuit court and in an application for leave to appeal to the Maryland Court of Special Appeals. See id.; Md. Code, § 7-109 of the Criminal Procedure Article (“C.P.”). If the Court of Special Appeals denies the application, then no further review is available and the claim is exhausted. C.J. § 12-202.

         As a further precondition to federal habeas review, a properly presented and exhausted claim must not be procedurally defaulted. Procedural default occurs when the petitioner failed to present the claim to the highest state court with jurisdiction to hear it, and the state courts would now find that the petitioner cannot assert that claim. Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001); Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).

         Thus, any failure to raise a claim on direct appeal constitutes a procedural default that bars presentation of the claim, unless the petitioner can demonstrate “cause and actual prejudice resulting from the errors of which he complains, ” or “actual innocence.” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)); see Bousley v. United States, 523 U.S. 614, 621 (1998) (“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”) (internal quotations and citations omitted); see also Dretke v. Haley, 541 U.S. 386, 393 (2004); Reed v. Farley, 512 U.S. 339, 354 (1994) (stating that where the petitioner “failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes ‘cause' for the waiver and shows ‘actual prejudice resulting from the alleged . . . violation.'”) (citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986).[7] Procedural default also occurs where a state court declines to consider the merits of a claim on the basis of an adequate and independent state procedural rule. Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999); see also Gray v. Zook, 806 F.3d 783, 798 (4th Cir. 2015) (“When a petitioner fails to comply with state procedural rules and a state court dismisses a claim on those grounds, the claim is procedurally defaulted.”).

         To overcome a procedural default, the petitioner must demonstrate cause and prejudice, or show that a failure to review the claim will result in a fundamental miscarriage of justice. Gray, 806 F.3d at 798. Under the “cause and prejudice” standard, the petitioner must show: (1) cause for not raising the claim of error on direct appeal; and (2) actual prejudice from the alleged error. Bousley, 523 U.S. at 622; see also Dretke, 541 U.S. at 393; Reed, 512 U.S. at 354; Frady, 456 U.S. at 167-68.

         In order to show cause for failure to raise a claim of error on direct appeal, a petitioner must prove that “some objective factor external to the defense such as the novelty of the claim or a denial of effective assistance of counsel” impeded efforts to raise the issue earlier. Coleman v. Thompson, 501 U.S. 722, 753 (1991); see also Carrier, 477 U.S. at 492 (“[C]ause . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim.”); Mikalajunas, 186 F.3d at 493 (movant must demonstrate “something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel”). Additionally, the alleged error cannot simply create “a possibility of prejudice, ” but must be proven to work to the petitioner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170 (emphasis in original). Put another way, prejudice does not support relief from a procedural default, in the absence of a showing of cause. Carrier, 477 U.S. at 494; Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).

         Of import here, this court may grant a petition for a writ of habeas corpus only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 1 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In Larry v. Branker, 552 F.3d 356, 368 (4th Cir. 2009), the Court said: “[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, ...


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