ELLEN L. HOLLANDER, District Judge.
Donald Pevia, a Maryland prisoner, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his 2011 conviction in the Circuit Court for Carroll County, Maryland for second-degree murder of an eight-month-old child; first-degree child abuse resulting in death; and related offenses. ECF 1. Pevia, who is self-represented, also filed exhibits, docketed collectively at ECF 1-1.
Pevia presents numerous contentions. In sum, he contends that the evidence was legally insufficient to support his convictions; his attorneys rendered ineffective assistance; and the State trial court, the State appellate court, and the State post-conviction court committed a host of errors. See ECF 1.
Respondents, Warden Frank Bishop and the Maryland Attorney General, filed an Answer (ECF 8), along with numerous exhibits. In their view, Pevia has not presented any basis for relief under 28 U.S.C. § 2254(d). Pevia replied (ECF 9), and was given an additional opportunity to supplement his response (ECF 13), which he did on April 9, 2018. ECF 14. On November 13, 2018, Pevia filed a Motion to Supplement and Amend Complaint. ECF 15. The motion shall be granted.
I shall refer to ECF 1, ECF 14, and ECF 15 collectively as the "Petition." No hearing is necessary to resolve the Petition. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 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. §2254(e)(2)).
For the reasons that follow, I shall deny the Petition. A certificate of appealability shall not issue.
At the outset of the trial in the Circuit Court for Carroll County, defense counsel advised Pevia of his right to a jury trial and the nature of a jury trial. ECF 8-2 at 6-7.
The facts at Pevia's trial were summarized by the Maryland Court of Special Appeals, Pevia v. State, No. 1132, Sept. Term 2011 (filed July 1, 2013) (unpublished), as follows, ECF 8-11 at 3-8:
Thereafter, on April 20, 2011, Pevia was found guilty of second-degree murder, first-degree child abuse resulting in death, and related offenses. See ECF 8-1 at 8; ECF 8-14 at 2, ¶ 4. On July 5, 2011, he was sentenced to a total of 60 years in prison. ECF 8-1 at 8-9.
Pevia appealed his conviction to the Maryland Court of Special Appeals, presenting a single question for review: "Is the evidence sufficient to establish Mr. Pevia's guilt beyond a reasonable doubt?" ECF 8-9 (Appellant's Brief) at 4.
Pevia then filed a petition for writ of certiorari to the Maryland Court of Appeals. ECF 8-12 at 1-10. That court denied the petition on October 21, 2013. Id. at 11. Pevia did not seek further review in the United States Supreme Court.
In the interim, on August 23, 2013, in the Circuit Court for Carroll County, Pevia filed a pro se petition for post-conviction relief. See ECF 8-13. He also filed a supplemental petition, through counsel, on October 22, 2014. ECF 8-14.
As supplemented, litigated, and construed, the petition alleged that: (A) trial counsel was ineffective for (1) failing to impeach Rodney Harris, (2) failing to impeach Angela Mabe, (3) failing to exclude prior "bad acts" evidence, (4) failing to challenge the trial court's noncompliance with Maryland Rule 4-246, (5) failing to file a motion for modification of sentence, and (6) based on the cumulative effect of these errors; (B) appellate counsel was ineffective for failing to challenge the trial court's noncompliance with Maryland Rule 4-246; and (C) the trial court failed to comply with Maryland Rule 4-246 when accepting Pevia's jury trial waiver. See ECF 8-13; ECF 8-14; ECF 8-15.
The State court (Daniels, J.) held a hearing on the post-conviction petition on December 10, 2014. See ECF 8-1; ECF 15. The post-conviction court issued a Memorandum Opinion and Order on July 2, 2015. ECF 8-1; ECF 8-15. It granted Pevia the right to file a belated motion for reconsideration of sentence but otherwise denying his petition for post-conviction relief. Id.
On August 5, 2015, Pevia filed an application in the Maryland Court of Special Appeals, for leave to appeal the denial of post-conviction relief. ECF 8-16. He presented only two contentions.
On April 23, 2016, Pevia filed his Petition in this court. ECF 1.
On November 13, 2018, Pevia filed a "Motion To Supplement And Amend Complaint." ECF 15. He seeks to present an additional question: "Did [the trial judge] error [sic] when he failed to note Petitioner's waiver of jury trial was [made] knowingly and willingly?" Id. at 1. Relying on the Maryland Court of Appeals' decision in Valonis v. State, 431 Md. 551, 66 A.3d 661 (2013), Pevia argues that the trial court violated Maryland Rule 4-246, because it failed to find that Pevia knowingly and voluntarily waived his right to a jury trial. Id.
In order for Pevia to pursue federal habeas review, he must have exhausted his right to relief in State court. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 510 (1982). In Maryland, a claim may be exhausted either on direct appeal or in post-conviction proceedings.
To exhaust a claim on direct appeal in non-capital cases, a defendant must assert the claim in an appeal to the Maryland Court of Special Appeals and then to the Maryland Court of Appeals by way of a petition for a writ of certiorari. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating that exhaustion requirement is satisfied by "giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); Md. Code, §§ 12-201, 12-301 of the Courts and Judicial Proceedings Article ("C.J."). To exhaust a claim through post-conviction proceedings, it must be raised in a petition filed in the circuit court and in an application for leave to appeal to the Maryland Court of Special Appeals. See id.; Md. Code, § 7-109 of the Criminal Procedure Article ("C.P."). If the Court of Special Appeals denies the application, then no further review is available and the claim is exhausted. C.J. § 12-202.
As a further precondition to federal habeas review, a properly presented and exhausted claim must not be procedurally defaulted. Procedural default occurs when the petitioner failed to present the claim to the highest state court with jurisdiction to hear it, and the state courts would now find that the petitioner cannot assert that claim. Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001); Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
Thus, any failure to raise a claim on direct appeal constitutes a procedural default that bars presentation of the claim, unless the petitioner can demonstrate "cause and actual prejudice resulting from the errors of which he complains," or "actual innocence." United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)); see Bousley v. United States, 523 U.S. 614, 621 (1998) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.") (internal quotations and citations omitted); see also Dretke v. Haley, 541 U.S. 386, 393 (2004); Reed v. Farley, 512 U.S. 339, 354 (1994) (stating that where the petitioner "failed properly to raise his claim on direct review, the writ is available only if the petitioner establishes `cause' for the waiver and shows `actual prejudice resulting from the alleged . . . violation.'") (citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986).
To overcome a procedural default, the petitioner must demonstrate cause and prejudice, or show that a failure to review the claim will result in a fundamental miscarriage of justice. Gray, 806 F.3d at 798. Under the "cause and prejudice" standard, the petitioner must show: (1) cause for not raising the claim of error on direct appeal; and (2) actual prejudice from the alleged error. Bousley, 523 U.S. at 622; see also Dretke, 541 U.S. at 393; Reed, 512 U.S. at 354; Frady, 456 U.S. at 167-68.
In order to show cause for failure to raise a claim of error on direct appeal, a petitioner must prove that "some objective factor external to the defense such as the novelty of the claim or a denial of effective assistance of counsel" impeded efforts to raise the issue earlier. Coleman v. Thompson, 501 U.S. 722, 753 (1991); see also Carrier, 477 U.S. at 492 ("[C]ause . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim."); Mikalajunas, 186 F.3d at 493 (movant must demonstrate "something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel"). Additionally, the alleged error cannot simply create "a possibility of prejudice," but must be proven to work to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170 (emphasis in original). Put another way, prejudice does not support relief from a procedural default, in the absence of a showing of cause. Carrier, 477 U.S. at 494; Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).
Of import here, this court may grant a petition for a writ of habeas corpus only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 1 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). In Larry v. Branker, 552 F.3d 356, 368 (4th Cir. 2009), the Court said: "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
"The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determinations made on the scene by the trial judge." Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2022 (2015) (internal marks and citations omitted). In Nicolas v. Atty. Gen. of Maryland, 820 F.3d 124, 129 (4th Cir. 2016), the Fourth Circuit explained:
This court "must presume that the state court's factual findings are correct unless the petitioner rebuts those facts by clear and convincing evidence," and this court "cannot disturb the state court's ruling simply because it is incorrect; it must also be unreasonable." Nicolas, 820 F.3d at 129; see also Harrington v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. § 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 issues like witness credibility, which are `factual determinations' for purposes of Section 2254(e)(1)." Id.
For a state court's decision to be contrary to established federal law, the state court must have arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or must have confronted facts that are "materially indistinguishable from a relevant Supreme Court" case but nevertheless arrived at the opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000); see Barnes v. Joyner, 751 F.3d 229, 238 (4th Cir. 2014); Lovitt v. True, 403 F.3d 171, 178 (4th Cir. 2005). Notably, a federal court "may not issue the writ simply because [the court] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly." Lovitt, 403 F.3d at 178 (quoting Williams, 529 U.S. at 411). Rather, the state court's application of federal law must be unreasonable, not merely incorrect. Id.; see Barnes, 751 F.3d at 238-39 (state court's decision is an unreasonable application of clearly established federal law when the state court identifies the correct governing principle but unreasonably applies that principle to the facts).
Under section 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. This standard was "meant to be" one that is "difficult to meet . . . ." Richter, 562 U.S. at 102.
Pevia argues that the trial court erred in convicting him; the Maryland Court of Special Appeals erred in upholding his convictions; and the State post-conviction court also erred. He maintains that the evidence was insufficient to sustain the convictions. In his view, his convictions were based "solely on circumstantial evidence." ECF 1 at 18-19.
According to Pevia, the evidence at trial supported "two different theories" and when there are "multiple possibilities . . . its [sic] impossible to specifically determine which one is 100% truth." Id. at 18-19, 22. Although Pevia acknowledges Dr. Alexander's testimony that it was unlikely Ky'leigh sustained her injuries in the preceding 12 hours (id. at 14), and that Ky'leigh's "level of consciousness changed" while in Pevia's care (id. at 17), Pevia maintains that his conviction was unsupported because the trial judge improperly credited the testimony of the State's witnesses, (id. at 15).
Respondents urge the Court to deny Pevia's request for federal habeas relief on this basis. See ECF 8. As to Pevia's claim that the evidence was insufficient, Respondents assert that the Court of Special Appeals correctly concluded that the trial court's verdict was unassailable. Id. at 22. And, they maintain that the Court of Special Appeals' determination was a reasonable application of federal law. Id.
On direct appeal, the Court of Special Appeals rejected Pevia's claim that the evidence was legally insufficient to sustain the verdicts. As the State puts it, ECF 8 at 20, that "ruling survives scrutiny" under 28 U.S.C. § 2254(d), for the reasons thoroughly presented by the State appellate court. See ECF 8-11.
The standard of review for a sufficiency of the evidence claim on habeas corpus is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find essential elements of crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court must consider circumstantial as well as direct evidence and allow the government the benefit of all reasonable inferences from the facts proven to the facts sought to be established. United States v. Tresvant, 677 F.2d 1018 (4th Cir. 1982). And, the determination of the credibility of each witness is within the sole province of the fact finder. United States v. Saunders, 886 F.2d 56 (4th Cir. 1989); Pigford v. United States, 518 F.2d 831 (4th Cir. 1975).
"In assessing a state prisoner's habeas claims, we look to `the last reasoned decision of a state court addressing the claim.'" Lawlor v. Zook, 909 F.3d 614, 626 (4th Cir. 2018) (quoting Woodfolk v. Maynard, 857 F.3d 531, 544 (4th Cir. 2017) (internal quotation marks omitted)). In this case, Pevia presented his sufficiency claim to the Maryland Court of Special Appeals. That court rejected the claim, stating as follows, ECF 8-11 at 8-13:
The Court of Special Appeals' decision was not based on an unreasonable determination of the facts in light of the evidence presented in Pevia's trial. As Pevia acknowledges, Dr. Alexander testified that although he believed it was possible, he did not "think it is really likely" that Ky'leigh sustained her fatal injuries in the 12-hour period preceding her time alone with Pevia. ECF 8-3 at 39; ECF 1 at 14. Respondents correctly point out that the testimony of Dr. Alexander, together with the witnesses who observed Ky'leigh in the 12 hours preceding the 9-1-1 call at 2:15 p.m., provided an ample foundation for the trial court's finding that Pevia was alone with Ky'leigh when she became limp and unresponsive. Based upon Ky'leigh's normal behavior while she was with Dakota, the trial court fairly concluded that Ky'leigh began to lapse into unconsciousness within minutes of the infliction of the fatal blows, during which time she was in the sole custody of Pevia.
With regard to Pevia's contention that the evidence supported "multiple possibilities," the Court of Special Appeals properly noted that "`[w]here it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence.'" ECF 8-11 at 10 (quoting State v. Suddith, 379 Md. 425, 447 (2004)). As previously stated, the inference made by the trial court in Pevia's case was supported by the evidence. And, "even if reasonable minds reviewing the record might disagree about the finding in question," this court may not conclude that the State court's decision was based on an unreasonable determination of the facts. Wood, 558 U.S. at 301.
And, to the extent that there were any conflicts in the evidence, the trial court properly resolved them. As the Court of Special Appeals explained, "`[w]eighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder'" and "contradictions in testimony go to the weight of the testimony and credibility of the evidence, rather than its sufficiency." ECF 8-11 at 10-11 (citing Stanley, 351 Md. at 750). Because the trial court had an evidentiary basis for finding that Ky'leigh's injuries were inflicted between 12:30 and 2:15 p.m., when Ky'leigh was in Pevia's sole custody, its finding was not clearly erroneous. Accordingly, Pevia has not set forth a basis for relief under 28 U.S.C. § 2254(d).
In sum, the evidence at trial was quite substantial, and not insufficient. "[S]ubstantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Borgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc); see also Untied States v. Rodriguez-Soriano, ___ F.3d ___, 2019 WL 3308546, at *2 (4th Cir. July 24, 2019); United States v. Kasai, 736 F. App'x 414, 415 (4th Cir. 2018); United States v. Cowden, 882 F.3d 464, 474 (4th Cir. 2018).
In his Petition, Pevia claims that defense counsel was ineffective for failing "to submit evidence at trial, alert [the trial judge] of Mr. Harris [sic] perjured testimony, properly cross examin[e] Angela Mabe of perjured testimony" and adequately inform the trial judge "to comply with Md. Rule 4-246." ECF 1 at 19.
With regard to Pevia's contention that he received ineffective assistance of counsel, Respondents contend that only two of those claims were exhausted in State post-conviction proceedings; because the rest of the claims were not exhausted, they are now procedurally defaulted. ECF 8 at 22-23. As to the exhausted claims regarding trial counsel's alleged failure to exclude prior "bad acts" evidence and failure to challenge the trial court's noncompliance with Maryland Rule 4-246, Respondents argue that counsel was not deficient and the post-conviction court properly rejected Pevia's claims.
I shall review the legal standard and then address each of Pevia's claims, in turn.
The Sixth Amendment to the Constitution guarantees a criminal defendant the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis, ____ U.S. ____, 137 S.Ct. 759, 775 (2017); United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019). Ineffective assistance of counsel is a well recognized basis for post-conviction relief. See generally Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).
To mount a successful challenge based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test set forth in Strickland, 466 U.S. at 687-88. See Williams v. Taylor, 529 U.S. 362, 390 (2000); United States v. Winbush, 922 F.3d 227, 229 (4th Cir. 2019); United States v. Carthorne, 878 F.3d 458, 465 (4th Cir. 2017); United States v. Powell, 850 F.3d 145, 149 (4th Cir. 2017). First, the petitioner must show that counsel's performance was deficient. Second, the petitioner must show that he was prejudiced by the deficient performance. Strickland, 466 U.S. at 687; see Buck, 137 S. Ct. at 775; Chaidez v. United States, 568 U.S. 342, 348 (2013); Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Hill v. Lockhart, 474 U.S. 52, 57 (1985); Winbush, 922 F.3d at 229; Powell, 850 F.3d at 149; United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015); United States v. Dyess, 730 F.3d 354, 361 (4th Cir. 2013); Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 2011); see, e.g., United States v. Baker, 719 F.3d 313, 318 (4th Cir. 2013).
The first prong is known as the "performance prong," which relates to professional competence. The petitioner must demonstrate that his attorney's performance fell "below an objective standard of reasonableness," as measured by "prevailing professional norms." Strickland, 466 U.S. at 688; see Harrington v. Richter, 562 U.S. 86, 104 (2011); Powell, 850 F.3d at 149. The central question is whether "an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 690).
The Supreme Court recently reiterated that the "first prong sets a high bar." Buck, 137 S. Ct. at 775; see also Powell, 850 F.3d at 149. In Padilla, the Court said, 559 U.S. at 371: "Surmounting Strickland's high bar is never an easy task." Notably, a "lawyer has discharged his constitutional responsibility so long as his decisions fall within the `wide range of professionally competent assistance.'" Buck, 137 S.Ct. at 775 (citation omitted). Consequently, the performance prong is "`difficult'" to establish. Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (quoting James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)).
To satisfy the high bar, the burden is on the petitioner to establish "`that counsel made errors so serious that his "counsel" was not functioning as the "counsel" guaranteed by the Sixth Amendment.'" Richter, 562 U.S. at 88 (quoting Strickland, 466 U.S. at 687). Notably, "the Strickland standard must be applied with scrupulous care," Richter, 562 U.S. at 105, and "the standard of judging counsel's representation is a most deferential one." Id. Indeed, "[k]eenly aware of the difficulties inherent in evaluating counsel's performance, the Supreme Court has admonished that courts `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lawrence, 517 F.3d at 708 (quoting Strickland, 446 U.S. at 689); see Cullen v. Pinholster, 563 U.S. 170, 189 (2011); Richter, 562 U.S. at 104; Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015).
Second, the petitioner must show that his attorney's deficient performance "prejudiced [his] defense." Strickland, 466 U.S. at 687. To satisfy the "prejudice prong," a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; see also Buck, 137 S. Ct. at 776; Lafler, 566 U.S. at 163; Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceedings. Strickland, 466 U.S. at 687. However, a petitioner is not entitled to post-conviction relief based on prejudice where the record establishes that it is "not reasonably likely that [the alleged error] would have made any difference in light of all the other evidence of guilt." Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
A court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697. Nor must a court address both components if one is dispositive. Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). This is because failure to satisfy either prong is fatal to a petitioner's claim. As a result, "there is no reason for a court...to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
Although Pevia presented several claims of ineffective assistance of counsel in State post-conviction proceedings in the Circuit Court (ECF 8-13; ECF 8-14), he presented only two in his application to the Court of Special Appeals for leave to appeal: that trial counsel was ineffective for (1) failing to exclude prior "bad acts" evidence and (2) failing to challenge the trial court's noncompliance with Maryland Rule 4-246. ECF 8-16. To the extent Pevia is now attempting to reassert claims of ineffective assistance of counsel beyond those two contentions, such claims are unexhausted and are procedurally defaulted.
As explained, supra, the exhaustion requirement is satisfied by "giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. To exhaust a claim through post-conviction proceedings, it must be raised in a petition filed in the Circuit Court and in an application for leave to appeal to the Court of Special Appeals. See C.P. § 7-109. Although Pevia raised numerous claims of ineffective assistance of counsel in his post-conviction petition filed in the Circuit Court, he presented only two of them in his application for leave to appeal. Therefore, he satisfied the exhaustion requirement only as to the two claims mentioned above.
The unexhausted claims are procedurally defaulted, as Pevia failed to present them in his application for leave to appeal and the state courts would now find that he cannot assert those claims. See Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001); accord Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (stating that a procedural default 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 (citation omitted)).
Accordingly, I shall proceed to address only the claims that have been exhausted and not procedurally defaulted.
As indicated, claims for relief premised on ineffective assistance of counsel are assessed under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. To prevail, the petitioner must demonstrate both that his counsel's performance was deficient, and that the deficient performance prejudiced his defense. Id. at 687. A strong presumption of adequacy attaches to counsel's conduct such that a petitioner alleging ineffective assistance must show that the proceeding was rendered fundamentally unfair due to his counsel's errors. Id. at 689, 700. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.
In the context of a Strickland claim previously litigated in state court and then raised in a federal habeas petition, a petitioner must also show that the state court's determination was contrary to or involved an unreasonable application of clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). "State court findings of fact made in the course of deciding an ineffectiveness claim" are presumptively correct. Strickland, 446 U.S. at 698; see also 28 U.S.C. § 2254(e)(1). The petitioner must rebut this presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In rejecting Pevia's claim that his attorney failed to object to prior bad acts evidence, the post-conviction court stated, ECF 8-15 at 9-11:
With regard to counsel's failure to object to the "prior bad acts" evidence, Pevia did not show that counsel's trial strategy was unreasonable. As Respondents point out, the status of the victim's health at the time of death was a relevant fact, not evidence of a prior bad act. Pevia has not shown how the State used this evidence in violation of Maryland Rule 5-404. Neither has he shown that the State would not have met the admissibility requirements had a Rule 5-404 objection been made by counsel. More important, there is no proof that this evidence contributed to the trial court's verdict. In the absence of proof of deficient conduct or prejudice, it was, under Strickland, reasonable for the post-conviction court to reject Pevia's claim.
Pevia's other claim is predicated on Maryland Rule 4-246(b). It governs the trial court's procedure for accepting a criminal defendant's waiver of his right to trial by jury. The rule provides:
Pevia contends that his counsel was ineffective for failing to object to the trial court's noncompliance with Maryland Rule 4-246. The post-conviction court stated, ECF 8-15 at 14:
The post-conviction court's rulings regarding Pevia's ineffective assistance of counsel claims withstand scrutiny under 28 U.S.C. § 2254(d). At a minimum, Pevia has failed to show that his attorney's performance was deficient. Moreover, both of his claims turn entirely on the post-conviction court's application of Maryland law, and the court's conclusion that trial counsel acted reasonably under prevailing Maryland law at the time of Pevia's trial forecloses relief. See Estelle, 502 U.S. at 67-75 (confirming that federal habeas relief is not available for errors of state law, and that it is not the province of a habeas corpus court to reexamine a state court's acknowledgment of a state law issue).
Maryland Rule 4-246(b) was amended in 2008 to make clear that the trial court must expressly find on the record at a hearing that a defendant's waiver is knowing and voluntary. See Valonis v. State, 431 Md. 551, 562, 66 A.3d 661, 667 (2013). In Valonis, decided on May 20, 2013, i.e., after Pevia was sentenced, the Maryland Court of Appeals recognized that the amendment to the Rule "ensures that an explicit determination is made and enhances our review of what actually transpired in the trial court. In turn, the reviewing process will become more streamlined and efficient." Id. at 565, 66 A.3d at 669. Because a defendant maintains a constitutional right to be tried by a jury, the amendment was intended to "provide[] further safeguards to ensure that the decision is in actuality the defendant's own knowing, voluntary, and personal choice." Id. at 563, 66 A.3d at 668. Consequently, the Valonis Court vacated the conviction and remanded for a new trial, without reaching whether contemporaneous objection at the waiver hearing was required to preserve the issue for appellate review.
In ruling on Pevia's post-conviction petition, the State court concluded that because the Court of Appeals of Maryland had not yet made clear that counsel was required to object contemporaneously at the time of the waiver hearing, counsel was not ineffective. ECF 8-15 at 14. The post-conviction court was not unreasonable in stating that counsel cannot be found ineffective for failing to adhere to a requirement that did not exist at that time. Indeed, in Nalls v. State, 437 Md. 674, 89 A.3d 1126 (2014), the Maryland Court of Appeals announced that, "[g]oing forward," failure to object contemporaneously to the trial court's lack of findings under Rule 4-246(b) will result in the defendant having waived the issue for future review.
The post-conviction court's conclusion that counsel acted reasonably under prevailing State law at the time of Pevia's trial forecloses relief on this claim. See Estelle, 502 U.S. at 67-68 (inquiry as to whether state court erred under state law "is no part of a federal court's habeas review of a state conviction"; federal court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States"). Moreover, the post-conviction court's reasoning is not contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).
Claims under Strickland's performance prong are "evaluated in light of the available authority at the time of counsel's allegedly deficient performance." Carthorne, 878 F.3d at 466. "A lawyer does not perform deficiently by failing to raise novel arguments that are unsupported by then-existing precedent." Morris, 917 F.3d at 823; see United States v. Mason, 774 F.3d 824, 830 (4th Cir. 2014) ("We have consistently made clear that we do not penalize attorneys for failing to bring novel or long-shot contentions."). As the Court said in Morris, 917 F.3d at 823, counsel does not fall below Strickland's standard of reasonableness "by failing to anticipate changes in the law, or to argue for an extension of precedent. See, e.g., United States v. Dyess, 730 F.3d 354, 363 (4th Cir. 2013); Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir. 1983)."
To be sure, it is now clear that a contemporaneous objection must be lodged to preserve a claim concerning a trial judge's failure to make an express finding of waiver of the right to a jury trial. But, Pevia's counsel was not ineffective for failing to raise an objection that was not clearly required at the time. See Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995); accord Lenz v. Washington, 444 F.3d 295, 307 (4th Cir. 2006) (stating that "the case law is clear that an attorney's assistance is not rendered ineffective because he failed to anticipate a new rule of law"). Pevia is not entitled to habeas relief on this ground.
In his Motion to Supplement and Amend, Pevia argues that the trial court erred in failing to comply with Rule 4-246(b), because it failed to determine that his waiver of a jury trial was made knowingly and voluntarily. ECF 15. Pevia waived the right to challenge this error because he failed to object at the time; thus, procedural default on this basis applies here. See Nalls, 437 Md. at 685-90, 89 A.2d at 685-691. Even if Pevia's procedural default were excused, however, the claim itself fails to present a question of federal or constitutional law sufficient to justify habeas relief.
Construed most favorably to Pevia, his claim is a challenge to the sufficiency of the Rule 4-426 colloquy. However, the rule violation itself does not automatically entitle petitioner to habeas relief. He must also demonstrate that the state rule violation infringes upon a specific constitutional right that amounts to a "fundamental defect which inherently results in a complete miscarriage of justice." Hailey v. Dorsey, 580 F.2d 112, 115 (4th Cir. 1978) (internal marks and citation omitted); Sumrall v. Simms, 230 F.3d 1354, 2000 WL 1283077, at *1 (2000) (4th Cir. 2000) (per curiam).
At most, Pevia's assertion is that the trial court's failure to follow Rule 4-246(b) infringed on his due process rights. See ECF 15. He is mistaken. Rule 4-246(b) is a procedural rule designed to aid the appellate courts in reviewing the sufficiency of jury trial waivers. Nalls, 437 Md. at 688; Valonis, 431 Md. at 565. It sets out the procedure for memorializing the waiver, but does not itself vest Pevia with an independent constitutional right stemming from having his waiver memorialized in a particular way. Therefore, I cannot conclude that the trial court's alleged lack of compliance with Rule 4-246(b) alone amounts to a violation of a constitutional right.
Under both federal and Maryland law, a waiver of jury trial right must be voluntarily, knowingly, and intelligently made. Johnson v. Zerbst, 304 U.S. 458, 464 (1938); see also Brady v. United States, 397 U.S. 742, 748 (1970); United States v. Boynes, 515 F.3d 284, 286 (4th Cir. 2008) ("The constitutional imperative is this, no less and no more: the waiver must be knowing, intelligent, and voluntary."). Indeed, the Maryland jury trial waiver procedure is more exacting than the federal requirement. See Md. Rule 4-246(b); Boynes, 515 F.3d at 286.
Pevia's right to be tried by a jury implicates the Sixth and Fourteenth Amendments of the United States Constitution. See Field v. Sheriff of Wake Cty., N.C., 831 F.2d 530 (4th Cir. 1987). But, Pevia "may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution, including . . . the right to a jury trial." United States v. Jennings, 323 F.3d 263, 275 (4th Cir. 2003) (internal marks and citations omitted), so long as the waiver is knowing and voluntary. Id. at 275-76. Pevia was advised on the record by his attorney of his right to be tried by a jury and all of the concomitant rights. ECF 8-2 at 5-7. Further, he was told that trial before the judge would essentially replace the 12 jurors with the judge alone as finder of fact. Id. Pevia was then expressly asked whether it was his intention to waive the right to a jury and he responded "yes." Id.
The record in this case does not support that Pevia's waiver itself was constitutionally defective. See United States v. Boynes, 515 F.3d 284, 286 (4th Cir. 2008) ("Although we reiterate our view that it is much preferable for a district court to insure itself on the record before accepting the defendant's jury waiver, it is not a constitutional imperative."). Indeed, given the inflammatory nature of the allegations, in which Pevia was accused of the murder of an eight-month-old child, it was clearly a matter of trial strategy to proceed before a judge, who was arguably less likely to be influenced or swayed by the horrific nature of the crime. Pevia's claim fails.
Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Because the accompanying Order is a final order adverse to the applicant, 28 U.S.C. § 2253(c)(1) requires issuance of a certificate of appealability before an appeal can proceed.
A certificate of appealability may issue if the prisoner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court rejects constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a petition is denied on procedural grounds, the petitioner may meet the standard by showing that reasonable jurists "would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and "whether the district court was correct in its procedural ruling." Id.
Pevia has failed to satisfy this standard on any of his claims. Therefore, a certificate of appealability shall not issue.
For the foregoing reasons, the court will grant Pevia's Motion to Supplement and Amend Complaint, deny his Petition for Writ of Habeas Corpus, and decline to issue a certificate of appealability. A separate Order follows.
