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Brown v. Flood

United States District Court, D. Maryland

August 20, 2019

JAMES BROWN, Petitioner
v.
JAMES FLOOD, JR., and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents

          MEMORANDUM OPINION

          PAUL W. GRIMM, UNITED STATES DISTRICT JUDGE

         Pending is James Brown's[1] 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.[2] 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.[3] 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On 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.

         Summary of Facts

         On 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.

         On the 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.

         Detective 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 No. 8-4.

         At 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.

         On 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.

         Procedural History

         Direct Appeal

         Brown 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.

         In an 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.

         Post Conviction Petition

         On 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.

         The 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.

         PETITIONERSS CLAIMS

         In this 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 No. 21.

         In his 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.[4]See Suppl. 1-2, 2-20, ECF No. 13; Appellant's Br. 2. Respondents have not asserted these claims are procedurally defaulted.

         DISCUSSION

         Section 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).

         Threshold Considerations

         Exhaustion

         The exhaustion doctrine, codified at 28 U.S.C. S 2254(b)(1), [5]"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 2254(b)(1), (c))).

         Procedural Default

         In 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.

         When a 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).

         Respondents 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 No. 25-7.

         The 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.

         The 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.[6] Accordingly, claims 1 through 13 will be denied and dismissed because they are procedurally defaulted.[7]

         Legal Standard

         As 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").

         A 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).

         Under S 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)).

         Further, "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 ...


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