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Washington v. Bishop

United States District Court, D. Maryland

August 5, 2019

FRANK BISHOP, et al., Respondents.


          George L. Russell III United States District Judge

         THIS MATTER is before the Court on Petitioner Trendon Washington's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (2018) (ECF No. 1), as supplemented (ECF No. 6) (the “Petition” or “Habeas Petition”). The Petition is ripe for disposition, and no hearing is necessary. 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) (noting that a petitioner is not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons that follow, the Court will deny the Petition and decline to issue a Certificate of Appealability.

         I. BACKGROUND

         Washington challenges his conviction for conspiracy to commit murder for which the Circuit Court for Baltimore City, Maryland (“Circuit Court”) sentenced him to life in prison. (Pet. Writ Habeas Corpus [“Pet.”] at 1-2, ECF No. 1[1]; Resp. Ex. 2 [“1st Ct. Spec. App. Op.”] at 1, 3, Washington v. Shearin [“Washington I”], No. JFM-15-128 (D.Md. closed Feb. 24, 2015), ECF No. 7-2).

         On June 13, 2007, Washington was charged with conspiracy to murder, first-degree murder, second-degree murder, and related handgun offenses in the death of Ricardo Paige, who was shot six times in his Baltimore home in March 2007. (1st Ct. Spec. App. Op. at 1; Resp'ts' Resp. Ex. 1 [“State Court Docket”] at 1, ECF No. 12-1).

         During voir dire on January 12, 2009, the Circuit Court posed an “anti-CSI effect”[2] question to the potential jurors:

If you have watched movies, television shows or read any material, fiction or non-fiction, in which scientific evidence was used to solve crimes, and you have an opinion or belief that without scientific evidence or specific forms of scientific evidence, for example, but not limited to fingerprints or DNA, you could not find a Defendant guilty regardless of the evidence presented, please rise.

(Resp't's Resp. Ex. 2 [“Jan. 12, 2009 Trial Tr.”] at 29, ECF No. 12-2). Washington's trial counsel did not object to the question, and the Circuit Court proceeded to ask several more questions, (see id. at 29-43), before eventually picking a jury, which Washington's counsel accepted, (id. at 271).

         At trial, a firearms expert testified that two shell casings found at the crime scene were fired from the handgun police recovered from Washington at the time of his arrest. (1st Ct. Spec. App. Op. at 1). Jamal Fulton, who pleaded guilty to conspiracy to murder Paige, testified that Washington believed Paige had stolen his drugs. (Id. at 2). Fulton testified that Washington told him that he had to “do something” with Paige and that Fulton told Washington that he should “do it in the dark” and “do it up.” (Id.). Two days later, Fulton asked Washington what happened to Paige, and Washington told him that he “took care of him, ” meaning that he had killed Paige. (Id.). Latonya Odom, Fulton's girlfriend, testified that she heard Washington say that he was “going to get” Paige. (Id.). The State also called Washington's twin brother, Tremaine Washington, as a witness, but he refused to answer most of the prosecutor's questions. (Id. at 3). Detective James Lloyd then testified that he interviewed Tremaine Washington on May 16, 2007 and November 20, 2008. (Id.). The Circuit Court admitted the tape recordings of those interviews into evidence over defense counsel's objection. (Id.). In the May 16, 2007 tape recording, Tremaine Washington stated that his brother had told him that Paige had stolen from him and that his brother shot Paige multiple times. (Id.). In the November 20, 2008 interview, Tremaine Washington said his brother had admitted to shooting Paige with a .45 caliber gun because Paige had stolen drugs from him. (Id.).

         On January 20, 2009, the Circuit Court instructed the jury, including about the presumption of innocence and the meaning of reasonable doubt. (Jan. 20, 2009 Trial Tr. at 16-17, ECF No. 12-3). On January 21, 2009, the jury found Washington guilty of conspiracy to murder Paige, but it was unable to return a unanimous verdict on the murder and handgun charges. (State Court Docket at 1; 1st Ct. Spec. App. Op. at 3).

         On direct appeal to the Court of Special Appeals of Maryland, Washington presented three questions for review: (1) “Did the trial court err in denying his motion to suppress the handgun and statements he made at the time of arrest?”; (2) “Did the trial court err in admitting hearsay evidence?”; and (3) Does the record fail to reflect that the jury convicted appellant of conspiracy to commit murder in the first degree?” (1st Ct. Spec. App. Op. at 1). On June 30, 2010, the Court of Special Appeals affirmed Washington's convictions. (Id. at 34). On October 22, 2010, the Court of Appeals of Maryland declined Washington's petition for writ of certiorari. (Pet. at 9).

         On August 23, 2011, Washington filed a post-conviction petition in the Circuit Court. (Pet. Ex. 1 [“1st Post-Convict. Mem. & Op.”] at 1-3, 5, ECF No. 1-1). In his post-conviction petition, Washington argued that he received ineffective assistance of counsel at trial under Strickland v. Washington, 466 U.S. 668 (1984), because his attorney failed to object to the judge's voir dire pertaining to anti-CSI effect, which poisoned the jury and deprived him of a fair trial. (Id.). The State countered that Washington had not objected to the question at trial, and therefore he had not preserved the issue for appeal; that the question was harmless because the judge instructed the jury that the State has the burden to prove Washington's guilt beyond a reasonable doubt; and that the jury instruction was proper under prevailing law at the time and that trial counsel had no duty to anticipate changes in the law. (Id. at 5-6).

         On May 16, 2012, the Circuit Court conducted a hearing, and on August 29, 2012, granted Washington post-conviction relief. (1st Post-Convict. Mem. & Op. at 8-9; Criminal Case Online Docket at 3; Sept. 2, 2014 Order, Cir.Ct.Balt.City [“2d Post-Convict. Mem. & Op.”], ECF No. 12-4). Relying on Charles & Drake v. State, 997 A.2d. 154 (Md. 2010), the Circuit Court concluded that Washington had proven that his trial counsel was ineffective and ordered a new trial. (1st Post-Convict. Mem. & Op. at 6-9). In Charles & Drake, the trial court asked a similar question of the venire panel: “[I]f you are currently of the opinion or belief that you cannot convict a defendant without “scientific evidence, ” regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise . . . .” (Id. at 6). On appeal, the Court of Appeals of Maryland determined that use of the word “convict” in the question suggested that was the jury's only option regardless of whether scientific evidence was presented, thereby depriving the defendants in that case of a fair and impartial jury. (Id. at 6 (citing Charles & Drake, 997 A.2d. at 162)). The Circuit Court concluded that Washington's trial counsel's “failure to object to the non-neutral voir dire question was a deficiency that prejudiced [his] case.” (Id. at 8). The Circuit Court rejected the State's waiver argument on the basis of Washington's testimony that he only became aware of the error after reviewing the trial transcript and researching the governing law. (Id.).

         The State appealed. (See Resp. Ex. 4 [“Ct. Spec. App. Remand Order”], Washington I, ECF No. 7-4). On November 6, 2013, the Court of Special Appeals vacated the grant of post-conviction relief in light of State v. Stringfellow[3] and remanded the case to the Circuit Court for further consideration. See State v. Washington, No. 1572, Application for Leave to Appeal (Post Conviction) (Md. Ct. Spec. App.) (Sept. Term 2012); see also Ct. Spec. App. Remand Order at 1-2; 2d Post-Convict. Mem. & Op. at 2. Based on Stringfellow, the Court of Special Appeals held that in Washington's case, “the post conviction court did not make a first-level finding of fact as to whether there was a reasonable possibility that the challenged voir dire question contributed to the guilty verdict.” (Id. at 2).

         On September 2, 2014, the Circuit Court, on remand, denied Washington post-conviction relief. (2d Post-Convict. Mem. & Op. at 1, 7). The Circuit Court considered Washington's analogy to Charles & Drake, 997 A.2d. at 154, but stated that Charles & Drake was decided “several months after [Washington's] trial and the law does not require lawyers to anticipate changes in the law.” (Id. at 5 (citing Prokopis v. State, 433 A.2d 1191 (Md.Ct.Spec.App. 1981)). The Circuit Court, therefore, concluded that trial counsel acted within the reasonable standard expected at the time of Washington's trial and his representation was not deficient under Strickland. (Id.).

         The Circuit Court explained, in three key respects, how Stringfellow dictated the outcome of Washington's post-conviction case. First, the Stringfellow court held that objections to voir dire questions “are waived if not preserved appropriately at the time the trial court empanels the jury.” (Id. at 5-6 (quoting Stringfellow, 425 Md. at 471)). Because Washington did not object to the jury when it was empaneled, he waived any objection he may have had as to the scientific evidence voir dire question. (Id. at 6). Second, the Stringfellow court found any error to be harmless because the trial court followed the scientific evidence question by asking the venire panel if they would be able to render a fair and impartial verdict based upon the evidence presented in the courtroom and the law. (Id.). At Washington's trial, the court correctly instructed the jury about the presumption of Washington's innocence and the State's burden to prove him guilty beyond a reasonable doubt. (Id.). Third, the Circuit Court noted that, in Stringfellow, defense counsel attacked the lack of scientific evidence during closing arguments, which the Court of Appeals considered to be the most significant factor in ...

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