PETER J. MESSITTE, District Judge.
Pending is Petitioner Edward Graham's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, claiming the trial court lacked jurisdiction to convict and sentence him. Respondents filed a limited Answer, which they supplemented at direction of the court, seeking summary dismissal of the Petition. ECF No. 8, 19. Graham opposes dismissal of the Petition. ECF 10, 20.
In this Petition, Graham challenges his 2011 judgment of conviction entered by the Circuit Court for Wicomico County after he pleaded guilty to possession of 28 grams or more of heroin with intent to distribute (in violation of Md. Code Ann., Crim. Law §5-612 (hereinafter C.L. §))
Graham filed an Application for Leave to Appeal his plea and sentence, arguing his plea was not entered knowingly and intelligently because he believed his maximum sentencing exposure was five years imprisonment. ECF 1 at 2; ECF 8-3 at 1-6. On January 13, 2015, the Court of Special Appeals of Maryland denied the Application for Leave to Appeal in a summary per curiam decision. Graham v. State, No. 2963 (CSA, September Term 2011); see also ECF 8-1 at 16, ECF 8-3 at 7.
During the time his Application for Leave to Appeal was proceeding, Graham filed, on September 30, 2011, a Motion to Correct an Illegal Sentence ("First Motion to Correct"), arguing among other things that his sentence was illegal because it exceeded five years, which he contended was the maximum sentence for that crime. ECF 8-2 at 3. On October 5, 2011, the Circuit Court for Wicomico County denied the First Motion to Correct. ECF 19-1 at 17. Graham appealed this ruling to the Court of Special Appeals of Maryland, asserting: (1) his sentence for possession of a large quantity of heroin with intent to distribute was illegal because the offense carried a maximum penalty of five years imprisonment; (2) his guilty plea lacked factual basis; (3) his total sentence exceeded the guidelines without justification; (4) the court did not provide reasons for denying his motion; and (5) his consecutive sentence for unlawful possession of a firearm was illegal because both offenses involved substantially the same harm. ECF 8-2 at 2, n. 1 and at 3-4. On December 17, 2013, the Court of Special Appeals of Maryland affirmed the Circuit Court's decision. Graham v. State, (No. 1873, Sept. Term 2011); see also ECF 8-2 at 5. The mandate issued on January 16, 2014. The Court of Appeals of Maryland denied further review on April 21, 2014. Graham v. State, 437 Md. 638 (2014).
On June 15, 2015, Graham filed a pro se Petition for Post Conviction Relief which was later amended by counsel and supported with a memorandum of law. ECF 8-4 at 12-27. Graham's allegations in the Petition included that he was unlawfully convicted of the heroin offense under C.L. §5-612 because he had been charged using language that alleged an "intent to distribute" and his sentence exceeded the maximum sentence. ECF 19-1 at 50-51.
While his Petition for Post Relief was pending, Graham filed another Motion to Correct an Illegal Sentence on May 3, 2016 ("Second Motion to Correct"). Graham argued in the Second Motion to Correct that his conviction under C.L. §5-612 was invalid, and the Circuit Court lacked subject matter jurisdiction over the issue because that count of the indictment, Count One, alleged intent to distribute. The Circuit Court denied the Second Motion to Correct on October 25, 2016, by marginal order. ECF 19 at 8, n. 7; ECF 19-1 at 8.
On October 25, 2016, the Circuit Court also denied Graham's Petition for Post Conviction Relief.
ECF 19-1 at 53-54; see also ECF 1 at 8. Graham cited in support Robinson v. State, 353 Md. 683, 707 (1999), which held that "where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense." ECF 19-1 at 54. The Circuit Court found no merit to the argument:
ECF 19-1 at 54-55.
Graham did not file an Application for Leave to Appeal the Circuit Court's decision denying the Petition for Post Conviction Relief.
On November 16, 2016, Graham filed a self-represented notice of appeal specifically stating that he was appealing the October 25, 2016, denial of his Second Motion to Correct. ECF 91-1 at 65, 66-105. On January 2, 2018, the Court of Special Appeals issued an unreported opinion affirming the Circuit Court of Wicomico County's denial of Graham's Second Motion to Correct. See Edward N. Graham v. State of Maryland, No. 2074, Sept. Term 2016 (filed January 2, 2018). ECF 19-1 at 106-110. In its opinion, the Court of Special Appeals rejected Graham's contention that C.L. §5-612 was repealed in 2005, explaining that "[a]lthough the legislature amended the statute in 2005, it did not repeal it." ECF 19-1 at 108. The Court explained that when Graham pleaded guilty in 2011, C.L. §5-612(a) provided: "A person may not manufacture, distribute, dispense, or possess: ... (5) 28 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium." [footnote omitted] The Court continued:
ECF 19-1 at 108-109; ECF 8-2. The mandate issued on February 2, 2018. ECF 19-1 at 110.
Graham sought further review by filing a Petition for Certiorari in the Court of Appeals of Maryland on February 21, 2018. On April 20, 2018, the Court of Appeals dismissed the Petition as untimely filed. See Graham v. State, 454 Md. 587 (2018). The Court also denied his subsequent Motion for Reconsideration. ECF 19-1 at 112, 127, 133.
In his Petition Graham asserts: 1) his conviction and sentence are invalid due to lack of subject matter jurisdiction; 2) his "constitutional and due process and civil rights are being violated";
At the crux of Graham's Petition, is his contention that he was convicted under a "repealed" state criminal statute, which thereby rendered his conviction and sentence invalid. Respondents counter that Graham's claim may be summarily dismissed because Graham's claim is not cognizable on federal habeas review, was not exhausted before the state courts, was rejected in state court on independent and adequate states grounds as untimely, so that it is procedurally defaulted, and his allegations are without merit.
Respondents explain that prior to 2005, C.L. §5-612 was a sentencing enhancement provision that applied to certain convictions under a separate statute, C.L. § 5-602, which prohibits distributing controlled dangerous substances (CDS) or possessing CDS with intent to distribute. The pre-2005 version of C.L §5-612 provided that a "person who violates [C.L] § 5-602" with amounts of CDS in excess of specified drug-specific thresholds would be subject to the "enhanced penalty" of a five-year mandatory minimum sentence." The threshold amount for heroin was 28 grams. See C.L. 5-612(a)(5).
In 2005, the Maryland General Assembly amended C.L. §5-612 to make it a "standalone" offense rather than a sentencing enhancement. ECF 19 at 17.
The habeas statute at 28 U.S.C. § 2254 states that a district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Absent violation of a Federal constitutional right, a habeas petitioner fails to state a cognizable claim for relief. Wilson v. Corcoran, 562 U.S. 1, 14 (2011) ("Federal courts may not issue writs of habeas corpus to state prisoners whose confinement does not violate federal law.").
Because they are governed by state law, state jurisdictional issues generally do not fall within the scope of the Constitution, laws, or treaties of the United States. See Wright v. Angelone, 151 F.3d 151, 156-158 (4th Cir.1998) (noting that a claim "when pared down to its core rests solely upon" interpretation of state law and statutes, "it is simply not cognizable on federal habeas review"). Further, "defects in an indictment do not deprive a court of its power to adjudicate a case ... [and] `that the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment.'" United States v. Cotton, 535 U.S. 625, 630-31 (2002) (quoting United States v. Williams, 341 U.S. 58, 66 (1951)). As the decisions of the Maryland courts as summarized above clearly demonstrate, the language about "intent to distribute" in Graham's indictment was mere surplusage. As a matter of state law, the indictment was not infirm, nor did it deprive the court of jurisdiction to convict and sentence Graham pursuant to his guilty plea. Accordingly, Graham's claims, so premised, fail to state a cognizable claim for federal habeas review.
Insofar as Graham claims he was convicted and sentenced under a "repealed statute" in violation of the "Ex Post Facto Clause," (ECF 1 at 8), the Court shall treat this claim as referring to Article I, § 10 of the Constitution, which provides the states may not pass any "ex post facto Law."
Additionally, had Graham asserted a cognizable federal claim, he did not exhaust it before the Maryland courts.
The exhaustion doctrine, codified at 28 U.S.C. § 2254(b)(1),
In O'Sullivan, the Supreme Court stated: "To ... `protect the integrity' of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts." 526 U.S. at 848 (internal citation omitted); see also id. at 844 ("Section 2254(c) requires only that state prisoners give the state courts a fair opportunity to act on their claims."). The inquiry, then, is "[w]hether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts. Because we answer this question `no,' we conclude that [petitioner] has procedurally defaulted his claims." Id. at 848. Stated differently, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 845. The O'Sullivan Court noted, however, that:
Id. at 847-48; see also Breard v. Pruettt, 134 F.3d 615, 619 (1998) (quoting Coleman v. Thompson, 501 U.S. 722, 375 n.1 (1991)) ("A procedural default also 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.'").
When a claim is procedurally defaulted, a federal court may not address the merits of a state prisoner's habeas claim unless the petitioner can show: (1) both cause for the default and prejudice that would result from failing to consider the claim on the merits; or (2) that failure to consider the claim on the merits would result in a fundamental miscarriage of justice, i.e., the conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "Cause" consists of "`some objective factor external to the defense [that] impeded counsel's efforts to raise the claim in State court at the appropriate time.'" Breard, 134 F.3d at 620. In order to demonstrate prejudice, a habeas petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (quoting Frady). Even when a petitioner fails to show cause and prejudice for a procedural default, a court must still consider whether it should reach the merits of a petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
When presenting his lack of jurisdiction claim before the State courts of Maryland, Graham presented them as violations of state, no federal law. In his Second Motion to Correct and on appeal from its denial, he based his arguments on state statutes and state law.
Under these facts, the Court finds that Graham did not properly exhaust a federal claim in state court, and because he can no longer exhaust the claim, it is procedurally defaulted. The procedural bar, provides an independent and adequate state-law ground for the conviction and sentence, thus preventing federal habeas review of the claim.
It bears noting too that had Graham argued a federal claim before the state courts, it would be procedurally defaulted on another ground. Graham presented his claims before the state courts in his Post Conviction Petition and in his Second Motion to Correct. Graham did not file an application for leave to appeal the Circuit Court's denial of the Petition for Post Conviction Relief, thereby defaulting the claims asserted in the Petition. See O'Sullivan, 526 U.S. at 847 (finding procedural default where the time for filing an appeal in state court had passed). To be sure, Graham appealed the denial of the Second Motion to Correct to the Court of Special Appeals, which ruled on the merits of his claims. Graham, however filed his Petition for Certiorari after the filing deadline, it was dismissed by the Court of Appeals "on the grounds of lateness." ECF 19-1 at 127.
In his Reply, Graham does not show cause and prejudice or a miscarriage of justice sufficient to excuse the procedural default. ECF 20; see also ECF 10. Graham does not suggest that an external factor hindered him from presenting a federal claim before the state courts or from filing a timely petition for certiorari in the Court of Appeals. Moreover, Graham does not show prejudice because his conviction is predicated on whether he possessed the requisite amount of heroin, an amount he admitted in his guilty plea, regardless of whether he intended to distribute it. Graham makes no sufficient allegation of actual innocence to suggest a fundamental miscarriage of justice to excuse procedural default. Accordingly, the Court will deny and dismiss the Petition.
When a district court dismisses a habeas petition, a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where, as is the case here, a district court dismisses a habeas petition solely on procedural grounds, a petitioner satisfies this standard by demonstrating "(1) that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (internal quotation marks omitted); see Buck v. Davis, 137 S.Ct. 759, 773 (2017). Because Petitioner fails to satisfy this standard, the Court declines to issue a certificate of appealability.
For these reasons, the Court will in a separate Order to follow, DENY and DISMISS the Petition. A certificate of appealability will not issue.
28 U.S.C. § 2254(b)(1).
