United States District Court, D. Maryland
W. GRIMM, UNITED STATES DISTRICT JUDGE
is James Brown's pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. S 2254, challenging his
2013 convictions in the Circuit Court for Worcester County,
Maryland for burglary and related offenses. ECF Nos. 1, 13,
21. Respondents filed an answer, asserting that Brown's
claims are procedurally defaulted and otherwise provide no
grounds for federal habeas relief. ECF Nos. 8, 10, 25. Brown
filed a reply in opposition. ECF No. 25. 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; Loc. R. 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. S
2254(e)(2).. After considering the submission,, I will deny
the petition. A certificate of appealability shall not issue.
BACKGROUND AND PROCEDURAL HISTORY
January 10, 2013, a jury in the Circuit Court for Worcester
County convicted Brown of first-degree burglary, third-degree
burglary, fourth-degree burglary, theft, and malicious
destruction of property. See Docket 3-5, ECF No.
10-1. The court sentenced him to concurrent sentences of 20
years of imprisonment on the first-degree burglary
conviction, 10 years of imprisonment on the theft conviction,
and 60 days in county jail for the malicious destruction of
property conviction. See Id. The court also imposed
a $500 fine and ordered him to pay $170 in court costs for
malicious destruction of property. The remaining convictions
were merged. Id.
August 1, 2011, Theodore Elliott's home was burglarized.
When Elliot came home from work, he found the back door was
open and the door frame appeared to have been pried open.
Missing items included three guitars, an amplifier, a laptop,
12 to 15 Playstation 3 video games, several guitar cases, and
a Ryobi screw gun with two batteries. See Aug. 2014
Ct. Spec. App. Op. 1-2, ECF 8-2. Several of these items were
found for sale at a thrift store on August 3, 2011, and were
returned to Elliott. see id at 2-3.
morning of the burglary, a witness named Alexis Butler, who
was at her aunt's home - about 1.3 miles from
Elliott's home - saw Brown pull into the driveway in a
silver truck. Id. at 2. Brown was wearing a cutoff
t-shirt, shorts, and black gloves. Trial Tr. 144-45, ECF
21-1. Butler observed that Brown had left his truck running
and was carrying a crowbar and entered the house through the
back door. Id. Butler spoke to Brown for 10 to 15
minutes. Id. at 148. Brown told her that he was a
plumber and an elderly lady had called about a leak.
Id. at 145-46. Butler testified that when Detective
Robert Trautman presented her a photo array she identified
Brown from the photographs in "[n]ot even five
seconds." Id. at 149, 161.
Trautman testified that when he had asked Elliott if he knew
anyone who could have committed the crime, Elliott mentioned
that he suspected a man known to him as "Chuck
Morgan." Id. at 193. During the investigation,
Trautman showed Butler a photograph of Morgan. Id.
Butler said she did not think Morgan was the man who broke
into the house. Id; Post-Conviction R. 14-15, ECF
trial, Butler identified Brown as the man she had seen on
August 1, 2011. See Aug. 2014 Ct. Spec. App. Op. 2
n.1. Brown testified at trial and denied burglarizing
Elliott's home. See Trial Tr. 204-05. He
testified that although the thrift store was run by the
ministry he founded, he was not closely involved with its
operation and was unaware that it was selling property stolen
from Elliott's home. See Id. at 201-05; Aug.
2014 Ct. Spec. App. Op. 3.
cross-examination, concerning his contact before trial with
an individual named John McLean, Brown said he told McLean
that he did not have to come to court because "[w]hat I
didn't want him to do was come here and perjure himself
by saying that I was with him in Easton [at the time the
burglary occurred] when I never told him to say that."
Trial Tr. 216; see Aug. 2014 Ct. Spec. App. Op. 3.
The State called McLean in rebuttal. McLean testified that
Brown asked him to falsely testify in court that they had
been together the entire day on August 1, 2011. See
Trial Tr. 225-27. McLean testified that after he decided he
was not willing to lie, Brown asked him not to appear in
court. Id; Aug. 2014 Ct. Spec. App. Op. 3.
appealed his convictions, presenting four questions for
review: (1) whether the trial court erred by failing to grant
the defense's motions for a mistrial; (2) whether the
trial court erred by admitting unduly prejudicial hearsay
evidence that Brown's name was seen on bills, banking
statements, and other papers in and around the premises where
the stolen property was located; (3) whether the trial court
erred by permitting the State to introduce extrinsic evidence
that Brown asked a witness to lie for him in another case in
direct contravention of Md. Rule 5-608(b); and (4) whether
Brown's sentence for malicious destruction of property
must be merged with his sentence for first-degree burglary.
See Aug. 2014 Ct. Spec. App. Op. 1; Appellant's
Br. 2, ECF No. 21-2.
unreported opinion, filed on August 11, 2014, the Court of
Special Appeals affirmed Brown's convictions.
Id. On November 20, 2014, the Court of Appeals of
Maryland denied Brown's petition for a writ of
certiorari. Brown v. State, 103 A.3d 593 (Md. 2014);
see also ECF No. 8-3.
September 19, 2014, Brown petitioned for post-conviction
relief in the Circuit Court for Worcester County, raising
claims of ineffective assistance of counsel and prosecutorial
misconduct. Brown asserted his trial counsel provided
ineffective assistance by failing to: object to an improper
identification; present evidence that his truck was a color
other than silver; present alibi evidence; notify him of what
charges were being tried on January 10, 2013; subpoena
defense witnesses; notify him of the State's additional
witnesses; investigate a separate suspect; impeach a witness
with prior convictions; request that witnesses be
sequestered; cross-examine State's witness Alexis Butler
effectively; present receipts for the purchase of guitars;
object to the State's questioning of him at trial in
regard to John McLean; and object to phone call evidence
admitted at trial. Brown also claimed the prosecutor
committed misconduct by failing to disclose McLean's
criminal record, improperly obtaining a postponement, and
using false and/or inadmissible evidence against him.
Post-Conviction R. 3-14.
Circuit Court held a hearing on the petition on October 14,
2015, and denied relief on December 21, 205.. Id. at
13-14, 26. Brown on February 18, 2016, filed an application
for leave to appeal the denial. Id. at 27-50; Sept.
2016 Ct. Spec. App. Order 1-2, ECF No. 14-1. On September 19,
2016, the Court of Special Appeals dismissed Brown's
application, determining it lacked jurisdiction because the
application was untimely. See Sept. 2016 Ct. Spec.
App. Order 1-2.
petition for federal habeas relief, Brown asserts claims of
ineffective assistance of trial counsel, prosecutorial
misconduct, trial court error, and post-conviction court
error. He claims trial counsel was ineffective in failing to:
(1) object to an improper pretrial identification; (2)
present evidence that his truck was not silver; (3) present
alibi evidence; (4) notify him of the charges that were being
tried on January 10, 2013; (5) subpoena defense witnesses;
(6) notify him of additional State's witnesses; (7)
investigate a separate suspect; and (8) object to phone call
evidence. See Pet. 15-26, ECF NO.1. Brown also
asserts claims of prosecutorial misconduct for: (9)
improperly calling a State witness to identify him before
trial without defense counsel present; (10) improperly
obtaining a postponement; and (11) failing to disclose State
witness John McLean's criminal record. Id. at
15-17. Additionally, Brown asserts that (12) his
post-conviction counsel was ineffective in failing to
subpoena a witness and (13) the prosecutor committed perjury
at the post-conviction hearing. Id. at 19, 28.
Respondents assert these claims are procedurally defaulted
and otherwise are without merit. April 2017 Answer 21-24, ECF
supplement to the petition, Brown asserts the same claims of
trial court error he presented on direct appeal - namely,
that the trial court erred by: (14) failing to grant him a
mistrial; (15) admitting evidence that his name was on bills,
banking statements, and other papers in and around the
premises where the stolen property was located; and (16)
permitting the State to introduce extrinsic evidence that
Brown asked a witness to lie for him in contravention of Md.
Rule 65-608(B); and (17) neglecting to merge his sentence for
malicious destruction of property.See Suppl. 1-2,
2-20, ECF No. 13; Appellant's Br. 2. Respondents have not
asserted these claims are procedurally defaulted.
2254 states that a district court "shall entertain an
application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a).
exhaustion doctrine, codified at 28 U.S.C. S 2254(b)(1),
"is principally designed to protect
the state courts' role in the enforcement of federal law
and prevent disruption of state judicial proceedings. Under
our federal system, the federal and state courts are equally
bound to guard and protect rights secured by the
Constitution." Rose v. Lundy, 455 U.S. 509, 518
(1982) (internal citations, footnote, and quotation marks
omitted). Moreover, "it would be unseemly in our dual
system of government for a federal district court to upset a
state court conviction without an opportunity to the state
courts to correct a constitutional violation."
Id. (quoting Darr v. Burford, 339 U.S. 200,
204 (1950)). Thus, the Supreme Court has cautioned litigants:
"before you bring any claims to federal court, be sure
that you first have taken each one to state court."
Id. at 520; see also O'Sullivan v.
Boerckel, 526 U.S. 838, 839 (1999) ("Federal habeas
relief is available to state prisoners only after they have
exhausted their claims in state court." (citing S
O'Sullivan v. Boerckel, the Supreme Court
stated: "To . . . 'protect the integrity' of the
federal exhaustion rule, we ask not only whether a prisoner
has exhausted his state remedies, but also whether he has
properly exhausted those remedies, i.e.,
whether he has fairly presented his claims to the state
courts." 526 U.S. at 848 (internal citation omitted);
see also Id. at 844 ("Section 2254(c) requires
only that state prisoners give the state courts a fair
opportunity to act on their claims."). The inquiry,
then, is "(w]hether a prisoner who fails to present his
claims in a petition for discretionary review to a state
court of last resort has properly presented his
claims to the state courts," and where the answer to
this question is "no," the conclusion follows that
the petitioner "has procedurally defaulted his
claims." Id. at 848. Stated differently,
"state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." Id. at 845. The
O'Sullivan Court noted, however, that:
In this regard, we note that nothing in our decision today
requires the exhaustion of any specific state remedy when a
State has provided that that remedy is unavailable. Section
2254(c), in fact, directs federal courts to consider whether
a habeas petitioner has "the right under the law of
the State to raise, by any available procedure, the
question presented." (Emphasis added.) The exhaustion
doctrine, in other words, turns on an inquiry into what
procedures are "available" under state law. In sum,
there is nothing in the exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a given
procedure is not available.
Id. at 847-48; see also Breard v. Pruett,
134 F.3d 615, 619 (1998) ("A procedural default also
occurs when a habeas petitioner fails to exhaust available
state remedies and 'the court to which the petitioner
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred.'" (quoting Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991))). A procedural default also may
occur when 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 Breard, 134 F.3d at 619.
claim is procedurally defaulted, a federal court may not
address the merits of a state prisoner's habeas claim
unless the petitioner can show: (1) both cause for the
default and prejudice that would result from failing to
consider the claim on the merits; or (2) that failure to
consider the claim on the merits would result in a
fundamental miscarriage of justice, i.e., the
conviction of one who is actually innocent. See Murray v.
Carrier, 477 U.S 478, 495-96 (1986). "Cause"
consists of "some objective factor external to the
defense [that] impeded counsel's efforts to raise the
claim in state court at the appropriate time."
Breard, 134 F.3d at 620. To demonstrate prejudice, a
habeas petitioner must show "not merely that the errors
at his trial created a possibility of prejudice, but
that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions." United States v.
Frady, 456 U.S. 152, 170 (1982); see also
Carrier, 477 U.S. at 494 (quoting Frady). Even
when a petitioner fails to show cause and prejudice for a
procedural default, a court still must consider whether it
should reach the merits of a petitioner's claims in order
to prevent a fundamental miscarriage of justice. See
Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
assert that Brown's claims of ineffective assistance of
counsel (Claims 1-8) and prosecutorial misconduct (Claims
9-11), as well as his claims relating to the post-conviction
proceedings (Claims 12-13), are procedurally defaulted
because these claims were not raised before the state
post-conviction court at the appellate level. See
April 2017 Answer 21; see also Sept. 2016 Suppl.
Answer 4, ECF No. 10. Brown raised these claims before the
Circuit Court in his petition for post-conviction relief, and
they were denied on their merits. Post-Conviction R. 18-26.
Brown takes issue with the Court of Special Appeals'
subsequent dismissal of his application for leave to appeal
the denial of his petition, seemingly arguing that the
Circuit Court did not promptly send him a copy of its
decision denying post-conviction relief as required by Md.
Rule 4-407(c), that he was unaware of the Circuit Court's
decision until January 15, 2016, and that his lateness in
filing the application was due to no fault of his own.
See Pet. 20-21; Jan. 2016 Mot. to Reissue 2-3, ECF
Court of Special Appeals premised its ruling on the Maryland
Rules of Procedure:
Pursuant to Maryland Rule 8-204(b)(2)(A), applicant had 30
days, or until January 20, 2016, to file an application for
leave to appeal. Applicant's application for leave to
appeal was entered on the docket on February 18, 2016.
Pursuant to Maryland Rule 1-204(a) a circuit court lacks the
authority to extend the filing deadline for an application
for leave to appeal. The requirement in Maryland Rule
8-204(b)(2)(A) that an application for leave to appeal be
filed within thirty days after entry of judgment is
jurisdictional. Keys v. State, 195 Md.App. 19, 27-28
(2010). If the requirement is not met, this Court does not
acquire jurisdiction, and the application for leave to appeal
must be dismissed. Id.
Sept. 2016 Ct. Spec. App. Order 1.
appellate court premised its determination on the Maryland
Rules of Procedure, which are independent state procedural
rules. A federal district court has no authority to alter or
amend the state appellate court's ruling on an issue of
state procedural law. A federal habeas court generally is
unable to review a federal constitutional claim that was
"procedurally defaulted" due to the defendant's
failure to raise the claim in accordance with state law
requirements. Johnson v. Lee, 136 S.Ct. 1802, 1803
(2016); see also Yeatts 166 F.3d at 260 (noting that
a procedural default may occur on the basis of an adequate
and independent state procedural rule). Of import here, Brown
does not assert in his response that he is actually innocent,
nor does he identify grounds sufficient to find cause and
prejudice to excuse the procedural default. Accordingly,
claims 1 through 13 will be denied and dismissed because they
are procedurally defaulted.
noted above, a petition for a writ of habeas corpus may be
granted only for violations of the Constitution or laws of
the United States. 28 U.S.C. S 2254(a) (stating "a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States").
federal court may not grant a writ of habeas corpus unless
the state's adjudication on the merits: (1)
"resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States" or (2) "resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding." Id. S 2254(d). A state
adjudication is "contrary to" clearly established
federal law under S 2254(d)(1) where the state court
"arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law" or
"confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at a
result opposite to [that of the Supreme Court]."
Williams v. Taylor, 529 U.S. 362, 405 (2000). Under
the "unreasonable application analysis," a
"state court's determination that a claim lacks
merit precludes federal habeas relief so long as
'fairminded jurists could disagree' on the
correctness of the state court's decision."
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). In other words, "a federal habeas court may not
issue the writ simply because [it] concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly." Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Williams, 529 U.S. at 411).
2254(d)(2), "a state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance." Wood v. Allen, 558 U.S. 290, 301
(2010). "[E]ven if 'reasonable minds reviewing the
record might disagree' about the finding in
question," a federal court may not conclude that the
state court decision was based on an unreasonable
determination of the facts. Id. (quoting Rice v
Collins, 546 U.S. 333, 341-42 (2006)).
"a determination of a factual issue made by a State
court shall be presumed to be correct," and the
petitioner bears "the burden of rebutting the
presumption of correctness by clear and convincing
evidence." S 2254(e)(1). "Where the state court
conducted an evidentiary hearing and explained its reasoning
with some care, it should be particularly difficult to
establish clear and convincing evidence of error on the state
court's part." Sharpe v. Bell, 593 F.3d
372, 378 (4th Cir. 2010). This is especially true where the
state court has "resolved ...