United States District Court, D. Maryland
L. Russell III United States District Judge
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.
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; 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).
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).
voir dire on January 12, 2009, the Circuit Court posed an
“anti-CSI effect” 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).
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.).
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).
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).
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).
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.).
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 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).
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.).
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