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stating that "[t]o the extent that claims . . . were not presented in the state courts or preserved in petitioner's applications for leave to appeal from the denial of appellate or post conviction relief" the petitioner is procedurally defaulted from asserting such claims on federal habeas review absent a showing of cause and prejudice
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CIVIL ACTION S 01-1675
November 9, 2001
MEMORANDUM
Now before the Court is the petition of Maryland prisoner Keith L. Williams for habeas corpus relief (Paper No. 1); petitioner's memorandum in support thereof (Paper No. 3); and the State's Answer thereto. (Paper No. 10). After review of these papers, the Court finds 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 the reasons that follow, the petition will be denied and dismissed with prejudice.
Procedural History
On August 12, 1993, a Montgomery County Circuit Court jury found petitioner guilty of burglary, two counts of armed robbery, two counts of kidnaping; use of a handgun in the commission of a crime of violence; and theft over $300.00. ( See Paper No. 10, Exhibit 1 at 9 and Exhibit 4 at 78-79). On October 5, 1993 the trial court sentenced petitioner to a total of seventy years' incarceration. ( Id., Exhibit 1 at 10 and Exhibit 5 at 20-21).
As noted by the Maryland Court of Special Appeals, during the early evening of September 7, 1992, an armed assailant stole a vehicle from Jean Parry in front of her Alexandria, Virginia apartment building. Nearly three hours later, two strangers, one carrying a semiautomatic pistol, walked into the home of James and Elizabeth Midgley, directing the Midgleys to remain quiet and lie on the floor. After taking certain valuables from the home, the robbers drove both Midgleys to an ATM machine to empty their bank accounts. Mr. Midgley rode with one of the men in a vehicle later identified as Jean Parry's stolen Honda. The second man accompanied Mrs. Midgley in her car. The robbers then permitted the Midgleys to return to their car, and drove off in the Honda. The Midgleys immediately reported the incident. Four days later, petitioner was arrested in Prince George's County in Ms. Parry's bullet-damaged Honda. His arrest, carried on Washington-area television broadcasts, featured petitioner emerging handcuffed from a police cruiser and surrounded by three uniformed police officers. See Paper No. 10, Exhibit 8 at 1-3. Mr. Midgley testified at trial that his wife was watching the news and, upon seeing the broadcast, jumped up to tell him that "they have got one. I have just seen him on the news." The video was reviewed by the jury at trial. Trial counsel neither objected to the admission of the extrajudicial and in-court identifications made by Mrs. Midgley, nor argued that the extrajudicial identification was unreliable or suspect. Id. at 8.
On appeal, petitioner through counsel argued that (1) the evidence was insufficient to sustain the handgun charge; (2) evidence that Mrs. Midgley saw television footage showing petitioner should have been excluded from evidence; (3) evidence of television news footage showing petitioner under arrest in another jurisdiction portrayed him in an impermissibly prejudicial light; and (4) the trial judge abused her discretion by refusing to grant a continuance before petitioner was sentenced. ( Id., Exhibit 6). Petitioner's convictions were upheld by the Maryland Court of Special Appeals in an unreported per curiam opinion filed August 1, 1994. ( Id., Exhibit 8). Petitioner sought certiorari review in the Maryland Court of Appeals, arguing that the lower appellate court erred in not considering issues that were not properly preserved, and reiterating his claim that the trial court erred by not granting a continuance prior to sentencing. ( Id., Exhibit 9 at 2). On December 7, 1994, the Maryland Court of Appeals denied certiorari. ( Id., Exhibit 10).
On March 11, 1997, petitioner sought post conviction relief in the Montgomery County Circuit Court. On April 13, 2000, the post conviction court denied relief in a written opinion. ( Id., Exhibit 13). Petitioner then sought leave to appeal the denial of post conviction relief, raising claims concerning (1) his identification by eyewitnesses; (2) trial counsel's failure to object to evidence from a television broadcast; (3) trial counsel's failure to impeach the victims with evidence of prior inconsistent statements; (4) trial counsel's failure to interview the State's witnesses; (5) trial counsel's failure to test the validity of the arrest warrant; (6) trial court error in admitting "other crimes" evidence; (7) trial court error in admitting a photo array; and (8) prosecutorial misconduct in presenting two witnesses whose testimony was partly at odds. ( Id. Exhibit 14). On April 27, 2001, the Maryland Court of Appeals summarily denied the application for leave to appeal. ( Id. Exhibit 15).
See Paper No. 10, Exhibit 11 at 3. The petition later was amended by counsel. Id., Exhibit 12. Petitioner raised eight ineffective assistance of counsel claims, as well as a due process claim concerning admission of a photo array shown to Ms. Parry, and a claim concerning prosecutorial misconduct.
In the instant petition, petitioner asserts that he received ineffective assistance of counsel, due to counsel's failure to:
1. object to identification evidence involving the television footage showing petitioner being led away in handcuffs;
2. object to in-court identification by the victims;
3. object to evidence concerning the Virginia crime; and
4. properly cross exam the victims concerning inconsistencies in their testimony.
Petitioner also alleges:
5. prosecutorial misconduct based on the use of false testimony at trial; and due process violations, resulting from:
6. the Midgleys' presence in the courtroom despite a sequestration order, prior to their identification testimony;
7. the trial court's reversal of a prior decision suppressing the use of a photo of petitioner; and
8. the trial court's improper admission of all identification evidence, as well as the television news footage showing petitioner's arrest.
( See Paper No. 1 at 5-6(a)).
Threshold Considerations Timeliness
The instant petition was filed within the 365 day period set forth in 28 U.S.C. § 2244(d).
Exhaustion of State Remedies
Under Rose v. Lundy , 455 U.S. 509 (1982), before a petitioner may seek habeas relief in federal court, he must exhaust each claim presented to the federal court by pursuing remedies available in state court. This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider the claim. 28 U.S.C. § 2254(b) and (c). In Maryland, this may be accomplished by proceeding with certain claims on direct appeal (and thereafter seeking certiorari to the Court of Appeals) and with other claims by way of a post conviction petition, followed by petitioning the Court of Special Appeals for leave to appeal.
Petitioner no longer has any state direct review or collateral review remedies available to him with respect to the claims raised in this Court. For this reason, his claims will be considered exhausted for the purpose of federal habeas corpus review.
Procedural Default
In their answer, respondents assert that petitioner is procedurally defaulted from asserting his third, fourth, fifth and eighth claims. To the extent that claims three, five and eight were not presented in the state courts or preserved in petitioner's applications for leave to appeal from the denial of appellate or post conviction relief, respondents are correct. Thus, the claims may be barred from consideration on the merits here, under the procedural default doctrine. Claim four, however, appears to have been presented and preserved for federal habeas corpus review.
The procedural default doctrine ensures that "state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding." Picard v. Connor , 404 U.S. 270, 276 (1971). In Wainwright v. Sykes , 433 U.S. 72 (1977), the Court held that consideration of a claim in a petition for habeas corpus can be barred by failure to comply with state procedural rules, unless the petitioner makes a showing of cause for the failure and prejudice resulting from the failure. And in Harris v. Reed , 489 U.S. 255(1989), the Court emphasized that a federal court has the responsibility to determine whether a state court in fact based its denial of relief on procedural grounds. However, in Teague v. Lane , 489 U.S. 288 (1989), the Court determined that the rule announced in Harris v. Reed , assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding. Id. at 299. Thus, claims which have never been presented in the state courts — or claims which were not exhausted properly in the state courts — are procedurally defaulted if presentation of the claims in state court would be barred by state procedural rules. Collier v. Jones , 910 F.2d 770 (11th Cir. 1990).
This Court may consider procedurally defaulted claims alleging constitutional violations on the merits only if petitioner shows either (1) cause for the procedural default and actual prejudice arising out of the violation of federal law, Wainwright , 433 U.S. at 87, or (2) a resulting fundamental miscarriage of justice if the federal court does not consider the claims. Gray v. Netherland , 518 U.S. 152, 162-63 (1996); Coleman v. Thompson , 501 U.S. 722, 750 (1991). Here, petitioner has provided no explanation as to "cause" to justify procedural default of his third, fifth and eighth claims.
Even though petitioner has failed to establish cause and prejudice for his procedural default, this Court must still consider whether it should reach the merits of petitioner's defaulted claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo , 513 U.S. 298 (1995). The miscarriage of justice standard is directly linked to innocence. Id. at 320. Innocence is not an independent claim; rather, it is the "gateway" through which a petitioner must pass before a court may consider constitutional claims which are defaulted. Id. The miscarriage of justice exception applies where a petitioner shows that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986); Schlup, supra. To meet this standard petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. Schlup, 513 U.S. at 320.
Schlup observes that
a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare . . . To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.Id.
Using the Schlup rationale, petitioner has failed to present the type of evidence which could satisfy the difficult standard set forth in Schlup , and indeed a review of the record does not suggest that such evidence exists. Thus petitioner has failed to overcome the procedural bar as to these four claims, as those claims are set forth in the instant petition.
Analysis of Petitioner's Undefaulted, Cognizable Claims
Because the present petition was filed after April 24, 1996, it is to be decided under amendments to the habeas corpus statutes contained in the Anti-Terrorism and Effective Death Penalty Act ["AEDPA"].Under the AEDPA, federal courts no longer can correct error in state court proceedings, but must instead exercise a more limited review, set forth in 28 U.S.C. § 2254(d)(1) and (2) (as amended). The statute provides a new analytical framework for determining whether the state court's findings concerning a claim raised on federal habeas corpus review is correct.
Section 2254(d) now provides that:
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.
In reviewing petitioner's attack on his state court conviction, this Court must presume that factual determinations made by the state court are correct. Petitioner then bears the burden of rebutting this presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In Lindh v. Murphy , 521 U.S. 320, 333 n. 7 (1997), the Supreme Court characterized Section 2254(d) as a "new, highly deferential standard for evaluating state court rulings." In Williams v. Taylor , 120 S.Ct.1495 (2000), Justice O'Connor, speaking for the majority, further elucidated that standard, stating that:
Section 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under Section 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1523. Justice O'Connor indicated that "the phrase `clearly established Federal law, as determined by the Supreme Court of the United States' . . . refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision." Id. Furthermore, she indicated that:
[u]nder Section 2254(d)(1)'s `unreasonable application clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."Id. at 1522. In other words, "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1521. With these standards in mind, the undersigned will address the five undefaulted, cognizable claims now before this Court.
Claims 1, 2 and 6: Ineffective Assistance of Trial Counsel
Petitioner claims ineffective assistance of trial counsel based on counsel's failure to object to identification evidence involving the television footage of his arrest and his identification at trial by the victims. To establish such claim, petitioner must show that "counsel's representation fell below an objective standard of reasonableness" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 694 ((1984). With regard to the first prong of this test, this Court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. All circumstances are to be considered, and this Court's scrutiny of counsel's conduct must be "highly deferential." Id. at 688-89. Even if counsel committed a professionally unreasonable error, relief can be granted only if "counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell , 506 U.S. 364, 372 (1993).
Petitioner first contends that trial counsel failed to object to the identification evidence provided by television news footage showing him handcuffed and in police custody. The post conviction court reviewed this claim in light of Strickland , and found as follows:
At the post conviction hearing, [defense counsel] testified he did not file a Motion to Suppress the identification because there was no State action involved in the identification. However, he believe it was unfair for the jury to see his client in custody and handcuffed, and further, the tape prejudiced the jury by its implication of guilt. The State's rationale for introducing the video was to bolster Mrs. Midgley's in-court identification. This Court finds that there was no legal basis to file a Suppression Motion and that the probative value of the video outweighed any unfair prejudice.
( See Paper No. 10, Exhibit 13 at 8, 14). The post conviction court correctly recognized that there was no legal basis for suppression of evidence leading to an eyewitness's identification, inasmuch as such evidence is highly probative.
Petitioner also contends that trial counsel was ineffective because [i]dentification evidence of the victims was admitted at trial." In essence, he faults counsel for failing to determine, by way of an evidentiary hearing outside the presence of the jury, whether the Midgleys' testimony was tainted by pretrial confrontations. The post conviction court ruled as follows:
The Midgleys were in [c]ourt the day before the trial commenced when [p]etitioner was at the defense table. Petitioner argues that this confrontation was analogous to a "show-up" and impermissibly suggestive.
Petitioner alleges that his due process rights were violated because the State failed to establish with "clear and convincing" evidence that the in-court identification of [p]etitioner by both Mr. [and] Mrs. Midgley was not based on the pretrial courtroom confrontation. A Rule on Witnesses was in effect from the beginning of the pretrial suppression hearing 98/10/93) and was still in effect throughout jury selection. ( Id. at 97). The Midgleys testified that they saw [p]etitioner seated with his attorney prior to jury selection. Previously, Mr. Midgley failed to pick [p]etitioner's photo from a photo array, and Mrs. Midgley's only pretrial identification of [p]etitioner was from a newscast. Both made positive in-court [identifications] of [p]etitioner. [Defense counsel] did not seek an evidentiary hearing to determine if the viewing was so suggestive as to make the in-court ID unreliable.
The Supreme Court and the Court of Special Appeals have held that a "show up" identification is not per se violative of due process. The test of admissibility is "whether under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive." Webster v. State , 299 Md. 581, 601 (1984), quoting Neil v. Biggers , 409 U.S. 188, 199 (1972). The five factors to be considered regarding the admissibility of the identification are: (1) the witness' opportunity to see the suspect at the crime scene; (2) the witness' degree of attention to the suspect; (3) the accuracy of the witness' prior description of the suspect; (4) the witness' certainty at the confrontation, and (5) the length of time between the incident and the confrontation. . . .
Given the length of time the Midgleys spent with [p]etitioner at the crime scene, and the certainty of their identification when confronting [p]etitioner in the courtroom, this Court does not find that an evidentiary hearing would have produced a result favorable to [p]etitioner.
( See Paper No. 10, Exhibit 13 at 6-7). The post conviction court's analysis of the facts and case law is correct, and will be upheld here.
Petitioner also contends that counsel failed to effectively cross examine Mrs. Midgley by impeaching her with prior inconsistent statements. The post conviction court found that:
At co-defendant Francis' trial, Mrs. Midgley testified that Francis drove around with her, but she could not remember who had the gun. At [p]etitioner's trial, Mrs. Midgley identified [p]etitioner as the robber who stayed downstairs, and the robber with the gun.
Only at [p]etitioner's trial did Mrs. Midgley testify that [p]etitioner was the man with the gun. As a rebuttal witness, co-defendant Francis testified in corroboration that [p]etitioner was the man with the gun.
From a review of the transcripts of the two trials, this [c]ourt finds that [defense counsel] made tactical decisions regarding cross-examination that are impossible to second-guess.
( See Paper No. 10, Exhibit 13 at 9). This Court concurs. The Midgleys were sympathetic victims, and attempts to shred their credibility likely would have backfired on the defense. Furthermore, defense counsel acted reasonably in focusing the jury's attention elsewhere, given the fact that at the time of arrest, petitioner was in possession of a gun (albeit one that was later found to be a pellet gun). This allegation provides no basis for habeas corpus relief.
Claim 4: Prosecutorial Misconduct
Petitioner next complains that the prosecutor failed to correct testimony known to be false, claiming that the "victims . . . testified at [the] previous trial of co-defendant [Francis] that they didn't remember who had the gun," but that at petitioner's trial, they testified that petitioner had the gun. The post conviction court found no evidence to support this claim ( see Paper No. 10, Exhibit 13 at 14). While the knowing use of false testimony is a violation of due process, see United States v. Bagley , 473 U.S. 667. 678 (1985), mere inconsistencies in testimony are insufficient to warrant relief. See Stockton v. Virginia , 852 F.2d 986 (4th Cir. 1975). Such is the case here.
Claim 7: Due Process Violation Regarding Admission of Photograph
The post conviction examined petitioner's claim concerning admission of his photograph into evidence, and found as follows:
A. The Admission of the Photo Array of the Virginia Witness
Judge Raker conducted an evidentiary hearing and ruled that the jury would not hear the fact that the victim of the Virginia car jacking, Ms. Parry . . . had picked [p]etitioner's photo in a photo array. The rational[e] was that the police officer's actions made the identification impermissibly suggestive.
Judge Raker did allow testimony [that] Ms. Parry . . . had narrowed down selection to two pictures, one of which was that of [p]etitioner.
This court finds that [defense counsel] argued the Motion to Suppress and [p]etitioner has not basis to complain.
( See Paper No. 10, Exhibit 13 at 12-13). The undersigned notes that the trial court did allow the photograph to be admitted as part of a larger photo array, then noted that "there is no testimony that 1(c) is the person" in the photograph, or the person who committed the car jacking. ( Id., Exhibit 3 at 76-77). Given that the Parry car jacking occurred just hours prior to the abduction and robbery of the Midgleys, and that the Parry car was identified as the vehicle used by petitioner at the Midgley crime scene, it is apparent that the admission of the photograph did not impugn fundamental fairness or infringe specific constitutional protections, in violation of Gaskins v. McKellar , 916 F.2d 941, 949 (4th Cir. 1990) and Grundler v. North Carolina , 283 F.2d 798, 802 (4th Cir. 1960).
The Court has reviewed the entire record and finds no basis for relief. Accordingly, the instant petition for habeas corpus relief will be denied and the above-captioned case dismissed with prejudice.
ORDER
In accordance with the foregoing Memorandum, IT IS this 9th day of November, 2001 by this Court hereby ORDERED:1. That the petition for habeas corpus relief filed by Keith L. Williams IS DENIED and DISMISSED;
2. That the Clerk of Court CLOSE this case; and
3. That the Clerk of Court MAIL a copy of this Order, together with the foregoing Memorandum, to petitioner and to Assistant Attorney General Celia Anderson Davis.