United States District Court, D. Maryland
RUSSELL KELSCOE HARDEN, Prisoner identification No. 360746, Petitioner,
FRANK B. BISHOP, JR., Warden, and ATTORNEY GENERAL OF MARYLAND, Respondents.
THEODORED. CHUANG UNITED STATES DISTRICT JUDGE
Kelscoe Harden, a prisoner confined at North Branch
Correctional Institution in Cumberland, Maryland, has filed a
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. S
2254. By his Petition, Harden challenges his 2009 conviction
in the Circuit Court for Anne Arundel County, Maryland on two
counts of first degree murder and related offenses. The
Petition is fully briefed, and the Court finds that no
hearing is necessary. See Rule 8(a), Rules Governing
Section 2254 Cases in the United States District Courts; D.
Md. Local R. 105.6; Fisher v. Lee, 215 F.3d 438, 455
(4th Cir. 2000). For the reasons set forth below, the Court
will dismiss the Petition as procedurally defaulted.
November 4, 2009, following a five-day jury trial in the
Circuit Court for Anne Arundel County, Harden was convicted
of two counts of first degree murder, two counts of attempted
first degree murder, conspiracy to commit first degree
murder, and related handgun offenses. On December 23, 2009,
Harden was sentenced to five consecutive life. sentences
without the possibility of parole on the murder counts, plus
20 years of imprisonment on the handgun offenses.
11, 201, , the Maryland Court of Special
Appeals affirmed Hardenss conviction. On October 25, 2011,
the Maryland Court of Appeals denied Hardenss petition for a
writ of certiorari. See Harden v. State, 422 Md. 354
(2011). On October 1, 2012, the United
States Supreme Court denied Hardenss petition for a writ of
certiorari to that Court. See Harden v. Maryland,
133 S.Ct. 116 (2012).
January 23, 203,, Harden filed a state petition for
post-conviction relief in the Circuit Court for Anne Arundel
County ("the Circuit Court") in which he asserted
23 claims for relief based on ineffective assistance of
counsel, prosecutorial misconduct,, and judicial misconduct..
Following a three-day hearing, the Circuit Court issued a
41-page opinion on November 5, 2015, addressing each of the
claims raised and denying the state petition. Harden filed an
application for leave to appeal the denial ofthe state
petition for post-conviction relief, which was received by
the Court of Special Appeals on December 11, 2015, after the
30-day deadline for filing the application. Md. Rule
8-204(b)(2). The Court of Special Appeals dismissed the
appeal on March 14, 2016 on the grounds that Hardenss
application was untimely filed.
Petition to this Court, which was timely filed, Harden claims
that he was denied a public trial; he was denied the
effective assistance of trial and appellate counsel; the
prosecutor engaged in misconduct;; and the trial court erred
when it did not excuse a prospective juror for cause. As to
his ineffective assistance of counsel claims, Harden argues
that trial counsel was ineffective by failing to object to
the denial of a public trial; failing to offer an exculpatory
letter as evidence; failing to assert Hardenss right to a
speedy trial under state law; failing to investigate certain
evidence; and failing to object to improper closing argument.
Harden claims appellate counsel was ineffective for failing
to raise claims that Harden was denied a public trial and
that he was denied peremptory challenges based on the failure
to excuse certain jurors for cause. As for prosecutorial
misconduct,, Harden asserts that the prosecutor deceived the
court regarding a postponement,, failed to disclose
exculpatory evidence, engaged in improper closing argument,
and used the rule on sequestration of witnesses to deny
Harden a public trial.
claim that Hardenss Petition should be dismissed because his
claims have been procedurally defaulted. Specifically,
Respondents argue that all of the claims raised in the
Petition are procedurally defaulted because none were raised
on direct appeal, and the claims that were raised in the
state post-conviction petition were not reviewed at the state
appellate court level.
is procedurally defaulted if a "state court clearly and
expressly bases its dismissal of a habeas petitioners claim
on a state procedural rule, and that procedural rule provides
an independent and adequate ground for dismissal."
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
A claim has also been procedurally defaulted where a
petitioner has failed to present it to the highest state
court with jurisdiction to hear it, whether by failing to
raise the claim on direct appeal or in post-conviction
proceeding,, or by failing to timely note an appeal. See
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)
(failure to timely note an appeal); Murray v.
Carrier, 477 U.S. 478, 490-91 (1986) (failure to raise a
claim on direct appeal); Murch v. Mottram, 409 U.S.
41, 46-47 (1972) (failure to raise a claim in a state
petition for post-conviction relief); Bradley v.
Davis, 551 F.Supp. 479, 482 (D. Md. 1982) (failure to
seek leave to appeal the denial of postconviction relief). In
addition, a procedural default has occurred when a
habeas petitioner did not present the claim to a
state court, and the state court "to which the
petitioner would be required to present his claims . .
. would now find the claims procedurally
barred." Breard, 134 F.3d at 619 (quoting
Coleman, 501 U.S. at 735 n.l).
none of the claims in Hardenss Petition were presented on
direct appeal. The claim of ineffective assistance of counsel
for failing to invoke Hardenss right to a speedy trial was
also not raised in the state petition for post-conviction
relief and can no longer be asserted in such a proceeding,
such that it is procedurally defaulted. See Breard,
134 F.3d at 619. Although the remaining claims in the
Petition appear to have been asserted in Hardenss state
petition for postconviction relief, Harden did not properly
appeal the denial of these claims to the Maryland Court of
Special Appeals in that his application for leave to appeal
was dismissed as untimely. In Coleman, the Supreme
Court held that where a petitioners appeal of the denial of a
state habeas petition was inadvertenlly filed too
late, the claims raised in that state petition were
procedurally defaulted, because the state court's
dismissal of the appeal was based on an independent and
adequate state procedural rule. See Coleman, 501
U.S. at 749-50. Where this case presents the precise scenario
at issue in Coleman, the Court finds that Hardenss
claims are procedurally defaulted.
claim that the Maryland Court of Special Appeals improperly
dismissed his appeal does not alter this conclusion. Harden
asserts that his application for leave to appeal the denial
of his state petition was actually timely because although it
was not received by the court until December 11, 2015, he
delivered it to prison authorities for mailing on December 1,
2015, before the December 7, 2015 filing deadline. Harden
argues that the court unreasonably failed to apply the
"prison mailbox rule, " the federal rule that
prisoner filings are deemed to have been filed on the date
they are deposited for mailing within the prison. See
Houston v. Lack, 487 U.S. 266, 275 (1988); United
States v. Dorsey, 988 F.Supp. 917, 919-20 (D. Md. 1998)
(holding that a petition shall be deemed to have been filed
on the date it was deposited with prison authorities for
mailing under the prison mailbox rule). In support of his
argument, Hardin submits exhibits documenting his efforts to
mail the application for leave to appeal to the state court
prior to the deadline.
at the time that Harden was seeking to file his application
for leave to appeal in December 2015, Maryland did not follow
the prison mailbox rule. At that time, Maryland generally
deemed the date of filing to be the date the clerk received
the filing, not the date when it was mailed. Hackney v.
State,184 A.3d 414, 426 (Md. 2018). In May 2018, the
Maryland Court of Appeals adopted the prison mailbox rule as
"the law in Maryland for post-conviction petitions filed
by unrepresented prisoners, " and held that it was
applicable to "the case before us and all other pending
cases where the relevant question has been preserved for
appellate review." Hackney v. State, 184 A.3d
414, 421 (Md. 2018). As of the date of that decision,
Hardenss state petition and application for leave to appeal
were no longer pending in the Maryland courts. Thus, ...