DEBORAH K. CHASANOW, District Judge.
Petitioner Brian Christopher Cooper
This case is ready for disposition. Upon review, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 cases in the United States District Courts; Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to hearing under 28 U.S.C. § 2254(e)(2)). For the reasons set forth below, the court will deny and dismiss the petition with prejudice.
Cooper was convicted of the April 16, 2002, murder of Elliott Scott, who died of multiple stab wounds. ECF No. 7-4. On November 13, 2006, a jury sitting in the Circuit Court for Baltimore City found Cooper guilty of first degree murder. The jury acquitted Cooper on the charges of carrying a concealed dangerous weapon and openly carrying a dangerous weapon with intent to injure. The court sentenced Cooper to serve life in prison. ECF No. 1, ECF No 7-4 pp. 2-7.
Cooper, through counsel, appealed his judgment of conviction to the Court of Special Appeals of Maryland, raising the following questions:
ECF No. 1 p. 3.
On March 19, 2009, the Court of Special Appeals affirmed Cooper's conviction. ECF No. 7-4. The court held that Cooper's direct challenge to the consistency of the verdicts was not preserved for appellate review because no objection to the verdict was made at trial. ECF No. 7-4 pp. 7-8. Second, the court found that the trial court did not err in instructing the jury. Id. at 8-12. Third, the court found that the trial court erred partially with regard to admitting prior statements of a witness, but found this error harmless beyond a reasonable doubt. Id. at 12-18. Fourth, the court found that the trial court's decision not to admit the prior statements in their entirety was not an abuse of discretion. Id. at 18-21. Lastly, the court held that although the trial court abused its discretion by admitting evidence that Cooper knew he was a suspect in the case, the error was harmless beyond a reasonable doubt. Id. at 21-23.
Cooper filed a Petition for Writ of Certiorari, which the Court of Appeals of Maryland denied on June 19, 2009. ECF No. 7-5. In his Petition for Certiorari, Cooper raised essentially the same questions he presented to the Court of Special Appeals:
ECF No. 7-5 pp. 4-5.
Cooper filed this petition on January 28, 2010, presenting the following claims:
ECF No. 1 p. 7; see also ECF No. 9 pp. 2-3.
On April 20, 2010, Respondents filed an Answer seeking dismissal of the petition for lack of exhaustion. ECF No. 7. Respondents also argued that Cooper's second and fourth claims were broader than the claims Cooper presented on direct appeal. Specifically, Respondents asserted that Cooper's second ground raised a new ineffective assistance of counsel claim which was unexhausted because the Sixth Amendment ground was not raised on direct appeal and his fourth ground raised new Sixth and Fourteenth Amendment claims which were unexhausted because Cooper only raised the claim under the Fifth Amendment on direct appeal. ECF No. 7 pp. 10-11.
In response, Cooper filed a motion to strike, seeking to withdraw the non-exhausted claims without prejudice. ECF No. 8. On June 14, 2010, the court addressed the exhaustion issue, placed Cooper on notice of the consequences of striking the unexhausted grounds and his available options, and granted him additional time to inform the court how he wished to proceed. ECF No. 9.
On June 23, 2010, Cooper filed a motion to stay. ECF No. 10. Cooper acknowledged that his ineffective assistance of counsel claims had not been exhausted in the state courts and he asked the court to exercise its discretion under Rhines v. Weber, 544 U.S. 269 (2005), to stay his case pending exhaustion of his claims on state post-conviction review. Cooper indicated that he was requesting assistance from the Office of the Maryland Public Defender Collateral Review Division in filing his post-conviction petition and would provide a quarterly update to the court "by way of status report any stipulation imposed by the court as to his progress." ECF No. 10 p. 2.
On July 7, 2010, after determining that there was good cause to stay this matter while Cooper completed state court review, the court dismissed the motion to strike as moot and granted the motion to stay. ECF No. 11. The court ordered review held in abeyance, administratively closed this case pending Cooper's exhaustion of state court remedies, and directed Cooper to file status reports at three-month intervals. ECF No. 11.
Cooper initially filed routine status reports. After December 1, 2014, however, he submitted one "progress report" and a show cause response, both in reply to court orders. ECF No. 32, 36. In correspondence received by the court on March 3, 2017, Cooper informed the court that he filed his post-conviction petition in September of 2016, and was waiting to hearing from the Office of the Maryland Public Defender. ECF No. 37. The state court docket indicates that Cooper's initial post-conviction petition was filed in June of 2011 and "withdrawn" on June 27, 2012. Cooper filed a second post-conviction petition on January 15, 2013, which was "closed" on August 29, 2016. Cooper's third post-conviction petition, filed on October 11, 2016, was "closed" on August 14, 2017. See State v. Cooper, Case Number 102161036 (Cir. Ct. for Balt. City).
The court lifted the stay and reopened the case on September 6, 2017. ECF No. 38. Respondents were directed to file a supplemental response addressing the grounds presented in the petition, which they did on November 17, 2017. ECF No. 41. In their supplemental response, Respondents aver that Cooper no longer has direct appeal or state post conviction remedies available in regard to the claims in his petition. ECF No. 41 p. 6. Cooper filed a reply on December 8, 2017. ECF No. 43. Because Cooper's reply indicated that he needed additional time to draft the reply due to his limited access to the prison library, the court issued an Order on May 21, 2018, granting him until June 15, 2018, to supplement the reply. ECF No. 44. Cooper did not file a supplement to his reply and the deadline for doing so has long expired.
The 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). Violations of state law which do not infringe on specific federal constitutional protections are not cognizable under § 2254. See Estelle v. McGuire, 502 U.S. 62 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Weeks v. Angelone, 176 F.3d 249, 262 (4th Cir.1999) ("when a petitioner's claim rests solely upon an interpretation of state case law and statutes, it is not cognizable on federal habeas review").
Habeas petitions are examined under a deferential standard of review. The habeas statute provides:
Nicolas v. Atty. Gen. of Maryland, 820 F.3d 124, 129 (4th Cir. 2016) (internal quotation marks and citation omitted) (quoting 28 U.S.C. § 2254(d). The habeas court "must presume that the state court's factual findings are correct unless the petitioner rebuts those facts by clear and convincing evidence," and the court "cannot disturb the state court's ruling simply because it is incorrect; it must also be unreasonable." Id.
A state court's decision is contrary to established federal law when the state court has arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or 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 Lovitt v. True, 403 F.3d 171, 178 (4th Cir. 2005); Barnes v. Joyner, 751 F.3d 229, 238 (4th Cir. 2014). 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). 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; application of federal law must be objectively unreasonable, not merely incorrect).
Further, procedurally defaulted claims are not subject to substantive federal habeas corpus review unless certain exceptions apply to excuse the procedural default. A claim is procedurally defaulted when a petitioner has failed to present it 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) (quoting Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998)). Procedural default also occurs 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 Gray v. Zook, 806 F.3d 783, 798 (4th Cir. 2015) ("When a petitioner fails to comply with state procedural rules and a state court dismisses a claim on those grounds, the claim is procedurally defaulted."). Procedural default may be excused if a petitioner can demonstrate (1) both cause for the procedural default and that he will suffer prejudice if the claims are not considered on their merits; or (2) failure to consider the defaulted claim(s) would result in a miscarriage of justice, i.e. the conviction of someone who is actually innocent of the offenses. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Gray, 806 F.3d at 709; Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998).
Respondents argue that Cooper's first three claims are not cognizable and otherwise fail on the merits. Additionally, they argue that Cooper's first, second and fourth grounds claims are procedurally defaulted
Cooper claims: 1) the trial court committed error by accepting inconsistent verdicts under Price v. State, 405 Md. 10 (2008) and 2) the Court of Special Appeals should have reversed his conviction on the grounds of inconsistent verdicts because trial counsel objected to the jury instructions although trial counsel failed to object to the inconsistent verdict.
The trial transcript shows that shortly after the jury retired for deliberations, it sent a question to the court asking whether it could find Cooper not guilty on the weapons charges (counts three and four) and find him guilty on the first degree murder charge (count one).
Transcript, ECF No. 41-3 p. 230.
On direct appeal, Cooper claimed the jury verdict was inconsistent and impermissible in light of the Court of Appeals of Maryland's then recent decision in Price, 405 Md. 10, which held that inconsistent verdicts would no longer be permitted in criminal cases. ECF No. 7-2 p. 13, ECF No. 7-4. The Court of Appeals made the holding applicable to "similarly situated cases on direct appeal where the issue was preserved." Price, 405 Md. at 29. Cooper argued that if it was error to accept inconsistent verdicts over defense counsel's objection, then it was error to instruct the jury, over defense counsel's objection, that it may return inconsistent verdicts. ECF No. 7-2 at 12. The Court of Special Appeals rejected Cooper's claim because defense counsel did not object to the verdict after it was announced by the jury, counsel had objected only to the court's jury instructions. The court noted that that although Cooper's case was on direct appeal at the time Price was decided, defense counsel did not preserve the issue for review by objecting when the verdict was announced. ECF No. 7-4 p. 9.
Cooper's second claim of error was that the trial court erred by instructing the jury in a manner to permit inconsistent verdicts. ECF No. 7-4 p. 10. The Court of Special Appeals found counsel's objection sufficient to preserve this issue for review. ECF No. 7-4 p. 10. The court determined that the circuit court did not commit error by instructing the jury that they could acquit on the weapons charges and convict on the murder charge because the inconsistency in this case was factual, rather than legal. ECF No. 7-4 pp. 11-13. The Court of Special Appeals' opinion reads in part:
ECF No. 7-4 p. 13.
Inconsistent jury verdicts are permitted in federal criminal prosecutions. See United States v. Powell, 469 U.S. 57 (1984). The states need not follow this practice. See Edwards v. Bishop, Civil Action No. RDB-15-1888, 2017 WL 193186 *9-10 (January 18, 2017). Cooper's first and second claims are based on state law precedent. As such, they do not state a cognizable claim on federal habeas review. To the extent Cooper intends to raise a Sixth Amendment ineffective assistance claim based on trial counsel's failure timely to object to the inconsistent verdicts, Cooper did not raise this claim during post-conviction proceedings or does not provide cause to excuse his failure to do so. Thus, the ineffective assistance claim is procedurally defaulted. For these reasons, the court finds no grounds to award habeas relief based on claims one or two.
Cooper's third claim is that the trial court violated the doctrine of verbal completeness
The police contacted Alexander, who on April 26, provided a taped statement describing what he had observed on April 16
At trial, Alexander testified that he later heard that Scott had been stabbed, but he did not come forward because he did not want to get involved. Transcript, ECF No. 41-2 p. 188. During Alexander's testimony, the prosecution moved to introduce portions of a taped statement Alexander made to police on April 26, 2002, and parts of his testimony from the first trial. Over defense counsel's objection, the trial court admitted two portions of Alexander's prior out-ofcourt statements as substantive evidence, finding he was reluctant to testify. Transcript, ECF No. 41-2 pp 192.
Cooper argued on direct appeal that the statements were not actually inconsistent and therefore inadmissible as substantive evidence under Maryland Rule 5-802. ECF No. 7-2 p. 22-32; ECF No. 7-4 p. 14. Cooper also claimed that the trial court erred by refusing to admit the statements in their entirety, contrary to Maryland's doctrine of verbal completeness. ECF No. 7-2 p. 32. The Court of Special Appeals examined Alexander's statements, finding the admission harmless error. The court ruled:
ECF No. 7-4 p. 19.
Evidentiary rulings such as those at issue here are generally considered state law matters. See Estelle, 502 U.S. at 72; Spencer v. Murray, 5 F.3d 758, 763 (4th Cir. 1993) (denying a claim regarding the reliability of evidence, which invoked neither a constitutional provision nor a constitutional right, because of the failure to state a federal claim); Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (discussing a state court's evidentiary ruling must implicate a habeas petitioner's federal constitutional rights to be cognizable for federal habeas review). Even if the admission of evidence were improper, it would only violate a defendant's constitutional rights if the ruling "by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Cooper does not make such a showing. Accordingly, this claim provides no basis for federal habeas relief.
Lastly, Cooper claims that failure to turn himself in was not admissible as consciousness of guilt and admission of the evidence, violated his rights under the Fifth, Sixth, and Fourteenth Amendments and should not have been presented to the jury. Respondents counter that Cooper did not present these constitutional claims on direct appeal; thus, they are procedurally defaulted. Respondents argue that, to the extent Cooper is reasserting the claim he presented on direct appeal, the claim he raised was predicted on state law, and therefore is not cognizable on federal habeas review. ECF No. 41 at 11.
Cooper claimed on direct appeal that the trial court erred in admitting the following testimony by Tony Alexander:
ECF No. 7-4 at 22-23. The Court of Special Appeals rejected Cooper's claim of error, stating:
ECF No. 7-4 pp. 23-24.
Cooper's claim of evidentiary error is premised on state law and provides no grounds for the award of federal habeas relief. Further, as Respondents correctly note, constitutional error is harmless when "it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Neder v. United States, 527 U.S. 1, 15 1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). In Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003), the Supreme Court opined that, where a state court found a constitutional error harmless, habeas relief could not be granted unless the state court applied harmless-error review in an "objectively unreasonable" manner. In Cooper's case, the state court provided a well-reasoned harmless error analysis explaining why the trial court's error had no impact on the verdict. Cooper's guilt was supported the evidence adduced at trial. This claim provides no grounds for relief under 28 U.S.C. § 2254(d).
Rule 11(a) of the Rules Governing § 2254 Cases states that the district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant" in such cases. 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, a habeas petitioner must make a substantial showing of the denial of a constitutional right. Buck v. Davis, 137 S.Ct. 759, 773 (2017); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects constitutional claims on the merits, a petitioner satisfies this standard by demonstrating that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Buck, 137 S. Ct. at 773. When a petition is denied on procedural grounds, the petitioner meets this 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." Slack, 529 U.S. at 484. Cooper has not made the requisite showing. Therefore, the court declines to issue a Certificate of Appealability. Cooper may request that the United States Court of Appeals for the Fourth Circuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003).
For these reasons, the court will by separate order deny and dismiss the petition and decline to issue a Certificate of Appealability.
ECF No. 7-4 p. 20.
