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Graham v. Webster

United States District Court, D. Maryland

September 6, 2019

EDWARD GRAHAM, Petitioner
v.
DARYL WEBSTER and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Pending is Petitioner Edward Graham's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, claiming the trial court lacked jurisdiction to convict and sentence him. Respondents filed a limited Answer, which they supplemented at direction of the court, seeking summary dismissal of the Petition. ECF No. 8, 19. Graham opposes dismissal of the Petition. ECF 10, 20.[1] After reviewing the submissions, the Court concludes there is no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; see also 28 U.S .C. §2254(e)(2). For reasons set forth herein, the Petition is DENIED. A Certificate of Appealability shall not issue.

         BACKGROUND AND PROCEDURAL HISTORY

         In this Petition, Graham challenges his 20, 11 judgment of conviction entered by the Circuit Court for Wicomico County after he pleaded guilty to possession of 28 grams or more of heroin with intent to distribute (in violation of Md. Code Ann., Crim. Law §5-612 (hereinafter C.L. §))[2] and unlawful possession of a firearm. State of Maryland v. Edward Norris Graham, No. 22-K-11-000070 (Cir. Ct. Wicomico Cty).[3] ECF 1, ECF 8-1 at 2.[4] Pursuant to the plea agreement, Graham was sentenced to 20 years of imprisonment with all but ten years suspended for possession of a controlled dangerous substance with intent to distribute and a consecutive 5 year term of imprisonment for unlawful possession of a firearm, for a total executed sentence of fifteen years. ECF 1 at 1, ECF 8-2 at 2; ECF 8-3.

         Graham filed an Application for Leave to Appeal his plea and sentence, arguing his plea was not entered knowingly and intelligently because he believed his maximum sentencing exposure was five years imprisonment. ECF 1 at 2; ECF 8-3 at 1-6. On January 13, 2015, the Court of Special Appeals of Maryland denied the Application for Leave to Appeal in a summary per curiam decision. Graham v. State, No. 2963 (CSA, September Term 2011); see also ECF 8-1 at 16, ECF 8-3 at 7.

         During the time his Application for Leave to Appeal was proceeding, Graham filed, on September 30, 2011, a Motion to Correct an Illegal Sentence ("First Motion to Correct"), arguing among other things that his sentence was illegal because it exceeded five years, which he contended was the maximum sentence for that crime. ECF 8-2 at 3. On October 5, 2011, the Circuit Court for Wicomico County denied the First Motion to Correct. ECF 19-1 at 17. Graham appealed this ruling to the Court of Special Appeals of Maryland, asserting: (1) his sentence for possession of a large quantity of heroin with intent to distribute was illegal because the offense carried a maximum penalty of five years imprisonment; (2) his guilty plea lacked factual basis; (3) his total sentence exceeded the guidelines without justification; (4) the court did not provide reasons for denying his motion; and (5) his consecutive sentence for unlawful possession of a firearm was illegal because both offenses involved substantially the same harm. ECF 8-2 at 2, n. 1 and at 3-4. On December 17, 2013, the Court of Special Appeals of Maryland affirmed the Circuit Court's decision. Graham v. State, (No. 1873, Sept. Term 2011); see also ECF 8-2 at 5. The mandate issued on January 16, 2014. The Court of Appeals of Maryland denied further review on April 21, 2014. Graham v. State, 437 Md. 638 (2014).

         On June 15, 2015, Graham filed a pro se Petition for Post Conviction Relief which was later amended by counsel and supported with a memorandum of law. ECF 8-4 at 12-27. Graham's allegations in the Petition included that he was unlawfully convicted of the heroin offense under C.L. §5-612 because he had been charged using language that alleged an "intent to distribute" and his sentence exceeded the maximum sentence. ECF 19-1 at 50-51.[5] The Circuit Court held a hearing on the Post-Conviction Petition on November 19, 2015. ECF 19-1 at 8.

         While his Petition for Post Relief was pending, Graham filed another Motion to Correct an Illegal Sentence on May 3, 2016 ("Second Motion to Correct"). Graham argued in the Second Motion to Correct that his conviction under C.L. §5-612 was invalid, and the Circuit Court lacked subject matter jurisdiction over the issue because that count of the indictment, Count One, alleged intent to distribute: The Circuit Court denied the Second Motion to Correct on October 25, 2016, by marginal order. ECF 19 at 8, n. 7; ECF 19-1 at 8.

         On October 25, 2016, the Circuit Court also denied Graham's Petition for Post Conviction Relief.[6] ECF 19-1 at 8; ECF 19-1 at 49-64. In rejecting Graham's claim that his conviction under Count One was illegal, the Circuit Court stated:

Petitioner has asserted two issues under his first allegation of error. The first is that the sentence imposed by the Trial Court was illegal. The second is that the conviction itself was illegal. As to the first issue, the law provides that any allegation of error that has been finally litigated may not be relitigated by a post conviction petition. § 7-106 of the Act.[7] An allegation is "finally litigated" when the Court of Appeals or the Court of Special Appeals makes a decision on the merits on either a direct appeal or upon consideration of an application for leave to appeal. Hunt v. State, 345 Md. 122, 165, cert, denied, 521 U.S. 1131 (1997). On his appeal to the Court of Special Appeals [from the denial of the First Motion to Correct], Petitioner claimed that his sentence under Count One was illegal. The Court of Special Appeals affirmed the Circuit Court holding that his sentence under Count One was legal. Edward Graham v. State of Maryland, unreported No. 1873. September Term 2011, filed December 17, 2013. Therefore, the first issue in this allegation has been finally litigated.
The second issue that Petitioner alleges under this section is that the indictment was defective for including outdated language from a version of Section 5-612 of the Criminal Law Article of the Annotated Code of Maryland which was repealed in 2005, several years prior to the conduct from which Petitioner was charged. Namely, the charging document contained the following language: "in sufficient quantity... to indicate an intent to distribute the same." Count One (1) specifically alleged:
THAT EDWARD N. GRAHAM, on or about the 14th day of January, 2011, in Wicomico County, State of Maryland, did unlawfully possess a controlled dangerous substance of Schedule I, to wit: Heroin in sufficient quantity, to wit; 28 grams or more, to indicate an intent to distribute same, contrary to the form of the Act of Assembly in such cases made and provided, against the peace, government and dignity of the State.

ECF 19-1 at 53-54; see also ECF 1 at 8. Graham cited in support Robinson v. State, 353 Md. 683, 707 (1999), which held that "where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense." ECF 19-1 at 54. The Circuit Court found no merit to the argument:

Petitioner is correct that the language of intent is not included in Section 5-612 of the Criminal Law Article of the Annotated Code of Maryland. Petitioner is mistaken, however, as to the repercussions of this fact. The legislative notes to Section 5-612 state that "(b) of this section, the former reference to an aggregate act of 'of manufacturing, distribution, dispensing, or possessing with intent to distribute' is deleted for brevity and as implicit" (Emphasis added), Maryland legislation makes it clear that the intent to distribute language in the Volume Dealer statute is perfunctory in its presence. It is implicit and understood that the element of intent to distribute has already been met when a person has satisfied all other elements of the Volume Dealer statute. Petitioner's argument is one of legislative semantics and is without merit. On August 10, 2011, the Petitioner knowingly, intelligently, and voluntarily admitted his guilt to Count One of the criminal indictment. Thus, the Circuit Court for Wicomico County had jurisdiction to adjudicate the offense.

ECF 19-1 at 54-55.

         Graham did not file an Application for Leave to Appeal the Circuit Court's decision denying the Petition for Post Conviction Relief.[8]

         On November 16, 2016, Graham filed a self-represented notice of appeal specifically stating that he was appealing the October 25, 2016, denial of his Second Motion to Correct. ECF 91 -1 at 65, 66-105. On January 2, 2018, the Court of Special Appeals issued an unreported opinion affirming the Circuit Court of Wicomico County's denial of Graham's Second Motion to Correct. See Edward N. Graham v. State of Maryland, No. 2074, Sept. Term 2016 (filed January 2, 2018). ECF 19-1 at 106-110. In its opinion, the Court of Special Appeals rejected Graham's contention that C.L. §5-612 was repealed in 2005, explaining that "[a]lthough the legislature amended the statute in'2005, it did not repeal it." ECF 19-1 at 108. The Court explained that when Graham pleaded guilty in 2011, C.L. § 5-612(a) provided: "A person may not manufacture, distribute, dispense, or possess:... (5) 28 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium." [footnote omitted] The Court continued:

[Graham] asserts that the indictment charging a violation of C.L. §5-612 included a notation that appellant possessed more than 28 grams of heroin "to indicate an intent to distribute[.]" He, therefore, claims that his indictment was flawed because an intent to distribute was not an element of the offense. The inclusion of "to indicate an intent to distribute" in appellant's indictment is not fatal to his plea to a violation of C.L. §5-612 because that language was mere surplusage. See Vines v. State, 40 Md.App. 658, 661-62 (1978) (classifying inclusion of incorrect section number in indictment as "non-essential and mere surplusage"), aff'd, 285 Md. 369 (1979); Smith v. State, 35 Md.App. 49, 53 (1977) (noting that inclusion of unnecessary words when indictment fully informed defendant of the charged crime was surplusage").
[Graham] also contends that the court imposed an illegal sentence by imposing a sentence of more than five years, which he believes is the statutory maximum. [Graham] has made this argument before and we rejected it in an unreported opinion. See Graham v. State, No. 1873, Sept. Term 2011 [], (filed December 17, 2013) ("He first claims that his sentence for possession of a controlled dangerous substance with intent to distribute is illegal, because the offense 'carries a maximum penalty of 5 years.' We disagree."). Accordingly, this issue has been previously ruled upon and is the law of the case. See Bait. Cnty. v. Fraternal Order of Police, Bait. Cnty. Lodge No. 4, 449 Md. 713, 729 (2016) ("'[O]nce an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case.'"(quoting Scott v State 379 Md. 170, 183(2004))).

ECF 19-1 at 108-109; ECF 8-2. The mandate issued on February 2, 2018. ECF 19-1 at 110.

         Graham sought further review by filing a Petition for Certiorari in the Court of Appeals of Maryland on February 21, 2018. On April 20, 2018, the Court of Appeals dismissed the Petition as untimely filed. See Graham v. State,454 Md. 587 (2018). The Court also ...


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