CATHERINE C. BLAKE, District Judge.
Pending is Saul Williams' ("Williams") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents, the Warden of Western Correctional Institution
Williams, an inmate at Western Correctional Institution in Cumberland, Maryland, and who is self-represented in this proceeding, is challenging his convictions for possession with the intent to distribute cocaine, possession of cocaine, conspiracy to distribute cocaine, and possession with intent to distribute drug paraphernalia following a jury trial in the Circuit Court for Baltimore County, Maryland. In 2009, Williams, a repeat offender, was sentenced to twentyfive years of imprisonment for the possession with intent to distribute cocaine conviction; a concurrent term of five years of imprisonment, suspended, for the conspiracy conviction; and two consecutive years of imprisonment for the possession with the intent to distribute drug paraphernalia conviction. The remaining conviction was merged at sentencing. (Ex. 1, p. 1).
Williams appealed his convictions, raising two questions of trial court error on direct appeal in the Court of Special Appeals of Maryland:
(Ex 6, pp. 1, 4; see also Exs. 4, 5).
The Court of Special Appeals summarized the facts adduced at trial as follows:
(Ex. 6, pp. 1-4) (footnotes in original omitted). On January 4, 2011, the Court of Special Appeals affirmed the decision of the trial court. (Ex. 6).
Williams, proceeding pro se, filed a petition for writ of certiorari in the Court of Appeals of Maryland, presenting the following issues:
(Ex. 7, p. 2). On April 25, 2011, the Court of Appeals summarily denied the petition, stating there was no showing that certiorari review was desirable and in the public interest. (Ex. 8).
On May 13, 2011, Williams filed a petition for post-conviction relief in the Circuit Court for Baltimore County which he later supplemented. (Ex. 1, p. 9; Ex. 9).
On November 8, 2012, a hearing on the post-conviction petition was held before the Honorable Ruth A. Jakubowski. (Ex. 12). As argued and supplemented at the hearing, Williams claimed his trial counsel was ineffective by: 1) "opening the door"
Williams, proceeding pro se, filed an application for leave to appeal the denial of postconviction relief. He asserted his trial counsel's examination of state witness Bernard Dennis "opened the door" to testimony about his prior bad acts, in addition to Dennis's prior consistent statement to the police.
In this petition for federal habeas corpus relief, Williams claims trial counsel provided constitutionally ineffective assistance. Specifically, he alleges his trial counsel was ineffective by: 1) opening the door, during cross-examination of Bernard Dennis, to the admission of prior bad acts evidence involving Williams; 2) failing to argue the prejudicial effect of the prior bad acts evidence when admitted; 3) failing to investigate the case sufficiently, including failing to file a motion to suppress the search warrant for lack of probable cause; and 4) failing to cross-examine witnesses effectively. (ECF 1, pp. 5-11).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts may not grant a petitioner's habeas petition where the state court adjudicated the petitioner's habeas claims on the merits unless the state court's decision: 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." 28 U.S.C. § 2254(d). This standard is "highly deferential" and "difficult to meet." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
A state adjudication is contrary to clearly established federal law under § 2254(d)(1) where the state court 1) "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or 2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). "[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Barnes v. Joyner, 751 F.3d 229, 238 (4th Cir. 2014) (citing White v. Woodall, _ U.S. _, 134 S.Ct. 1697, 1699 (internal quotation marks omitted)). Further under § 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).
The habeas statute also provides that "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 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).
To establish a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must show: 1) counsel's performance was deficient, and 2) the performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The standard is "highly deferential." Id. at 689.
Under the first prong, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is limited on habeas review because a defendant must overcome the "`strong presumption' that counsel's strategy and tactics fall `within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). "There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect." Harrington, 562 U.S. 86, 109 (internal quotation marks and citation omitted). "[W]hen a petitioner's habeas corpus claim is based on alleged ineffective assistance of counsel . . . . [t]he AEDPA standard and the Strickland standard are dual and overlapping. . ." and the two standards are applied "simultaneously rather than sequentially." Lee v. Clarke, 781 F.3d 114, 123 (4th Cir. 2015), (citing Harrington v. Richter, 562 U.S. 86 (citations omitted). Because both standards of review are "`highly deferential' to the state court's adjudication . . . `when the two apply in tandem, the review is doubly so.'" Id. (citing and quoting Richter, 131 S.Ct. at 788).
To satisfy the prejudice prong of an ineffective assistance of counsel claim, a petitioner must show 1) counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable, and 2) there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 694. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Using this framework, Williams' claims of ineffective assistance of counsel will be considered in turn.
Williams faults his trial counsel Jennifer Aist for her cross-examination of state's witness Bernard Dennis ("Dennis") as opening the door to "otherwise impermissible evidence."
Williams describes the information elicited during cross-examination as:
(ECF No. 1, p. 6).
In response to questions posed by trial counsel during cross-examination, Dennis testified he met Williams prior to January 31, 2008, and had previously purchased drugs from Swan between five and ten times. (Ex. 3, pp. 18-19). Trial counsel asked him, "You said you talked on the phone to [Williams]. How do you know it was [Williams] and not somebody else." Id. at. 20. Dennis replied, "I knew his voice. I spoke to him before I knew who it was. It was his number." Id. at 21. Later at the post-conviction hearing, trial counsel explained her strategy in posing the question was to discredit Dennis by showing he was a drug user. (Ex. 12, p. 94).
Trial counsel asked Dennis whether the State offered him a deal in exchange for his testimony against Williams. (Ex. 3, pp. 21-23). Dennis testified he had not received a plea offer from the State and charges were pending against him. Id. Defense counsel then asked Dennis if he realized his testimony could jeopardize his case, to which he replied, "I've already written a statement. So whatever is on this statement is going to be the statement. I'm just telling the truth." Id. at 23.
Later, the trial court ruled defense counsel's questions had opened the door to the prosecutor's inquiry on re-direct about Dennis's prior relationship with Williams. (Ex. 3, pp. 27-28). On re-direct, Dennis testified that he had bought drugs from the same woman in the past and made arrangements to buy drugs by "calling JR," the name he called Williams. Id. at 24. This prompted a bench conference, during which the prosecutor asked to inquire into Dennis's relationship with Williams because defense counsel had "opened the door" to the inquiry. Id. at 25. Outside the presence of the jury, the prosecutor asked Dennis about his relationship with Williams, and Dennis answered, "I had bought drugs from him in the past." Id. at 27. After argument from Williams' counsel and over her objection, the trial court allowed the questioning. Id. at 27-28. Before the jury, when asked about his relationship with Williams, Dennis testified, over objection, "I bought drugs from him." Id. at 31. Dennis' statement to the police was also admitted, over defense objection, during the prosecutor's re-direct examination of Dennis, as a prior consistent statement offered to rehabilitate Dennis' credibility. Id. at 29-33; Ex. 4, App. 8-9.
Williams also claims trial counsel's representation was deficient based on her cross-examination of Detective Duckworth which "opened the door" to allow the prosecution to elicit information about the length of the investigation and surveillance. (ECF. No. 1, pp. 9-11). Williams argues this "detrimental error" was not the product of sound trial strategy. (ECF. No. 1, p. 11).
During her cross-examination of Detective Duckworth, trial counsel established that during the execution of the search warrant, police found a woman, Schanchez Lachol Roberson, inside Williams' residence. (Ex. 2, pp. 160, 168). Trial counsel asked whether Roberson was charged with possession of the cocaine that was found in the residence, and Duckworth testified that Roberson was charged with possession of marijuana and drug paraphernalia, but not possession of cocaine. Id. at 160, 167-68. On re-direct, the prosecutor asked Duckworth to explain why Roberson was not charged with possession of cocaine. Id. at 169. Duckworth testified that he had never seen Roberson at Williams' residence before during surveillance. Id. During re-cross, defense counsel asked Duckworth, "Did you conduct surveillance at that address every day?" Id. at 170. Duckworth answered "No." Id. Over defense counsel's objection, the trial court permitted the prosecutor to ask Duckworth on re-direct how long he had been conducting surveillance, and he testified the investigation started in October of 2007. Id. at 170-172.
In rejecting the petition for state post-conviction relief, the Circuit Court for Baltimore County stated:
(Ex. 13, pp. 5-6; see also Ex. 3, pp. 11-33; Ex. 4, App. 8-9).
At the post-conviction hearing, trial counsel Aist testified that she is the circuit court supervisor for the Office of the Public Defender for Baltimore County and has extensive experience as a defense attorney. (Ex. 12, p. 76). She told the post-conviction court that she did not plan to bring out Williams' prior bad acts during trial, but rather intended to use cross-examination to discredit state witness testimony. (Ex. 12, p. 94). After considering Aist's testimony and the trial transcript, the post-conviction court concluded that Williams had failed to show trial counsel's questioning of state witnesses Dennis and Duckworth fell below an objective standard of reasonableness and also had failed to overcome the presumption that counsel's actions constituted sound trial strategy. (Ex. 13, p. 6).
Defense counsel's determinations concerning witness examination fall within the ambit of trial strategy that federal habeas courts are not inclined to second-guess. See United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). Decisions about questioning witnesses require the balancing of risks and benefits and therefore warrant "enormous deference" from reviewing courts. Id.; see also United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 2010).
The state post-conviction court's determination that defense counsel's cross-examination was based on sound trial strategy and professional judgment is supported by the record and entitled to the highly deferential review mandated under the habeas statute and as interpreted by case law. The trial and post-conviction transcripts show that defense counsel's cross-examination was intended to discredit Dennis by highlighting his drug use and by suggesting that he was testifying for the prosecution in hopes of securing a deal from the State. (Ex. 3 pp. 21-23; Ex. 12, p. 94). Williams has not sustained his burden to show the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). As there is no demonstration of constitutionally deficient representation, the state court decision will not be disturbed and habeas corpus relief will be denied as to this claim.
Although the state post-conviction court did not reach the prejudice prong of Strickland in its discussion of this claim, it bears noting the other evidence introduced against Williams at trial was ample, and he fails to show a reasonable probability that but for the testimony at issue here, the outcome of his trial would have been different. See Strickland, 466 U.S. at 694. The evidence at trial showed that Williams, acting in concert with others, possessed and distributed cocaine and drug paraphernalia in Room 3, 8326 Old Philadelphia Road. Dennis testified that he knew Williams' phone number and called him on January 31, 2008, to buy cocaine. Williams told Dennis that he had cocaine to sell, and he directed Dennis to meet Swan, an individual Dennis had met before, and from whom he purchased cocaine on January 31, 2008. In addition, execution of the search warrant on Williams' residence produced 15 baggies of suspected crack cocaine, rent receipts indicating Williams had rented and resided in the room, and an "owe sheet." Further, when Dennis was arrested on January 31, 2008, after the police observed him meeting with Swan in the parking lot of the liquor store near Williams' residence, police recovered two baggies of suspected cocaine from Dennis, packaged the same way as the baggies seized from Williams' residence. For these reasons, no prejudice, as is required under Strickland, is shown.
Next, Williams claims the trial court's "numerous harmful errors" resulted in a "snowball effect" which cumulatively prejudiced him and altered the outcome of his trial. (ECF No. 1, p. 7). "The huge effect of impermissible testimony and statements substantially overshadowed the defense attempts to salvage reasonable doubt. At the start of trial, the state had a shady state witness and uncertain detective." Id.
Williams argued on direct appeal that the trial court erred by admitting evidence of his relationship with Dennis. (Ex. 6, p. 1). The Court of Special Appeals determined Williams waived the issue by failing to advance it in the trial court. Id. at 12-13. The Court of Special Appeals further found that the evidence elicited by the prosecutor on re-direct questioning was relevant and admissible "in response to defense counsel's attack on Dennis's credibility." Id. at 12. The court observed that even if the issue were not waived, the evidence was properly admitted by the trial court because testimony about Dennis' relationship with Williams was "highly probative of Dennis's ability to identify Williams as the person who arranged the drug transaction with Swan over the telephone, given that there was little direct evidence tying Williams to the actual sale of the drugs." Id. at 14. The court concluded that, given the highly probative nature of the evidence, it was not an abuse of discretion for the trial court to find that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, and thus admit it. Id.
By the same token, the Court of Special Appeals held the testimony developed during the prosecutor's re-direct questioning of Duckworth about the length of the investigation and surveillance was properly admitted because counsel had sought to establish the cocaine in the apartment belonged to Roberson, not Williams. (Ex. 6, p. 17). The prosecutor elicited testimony from Duckworth that Roberson was a visitor to Williams' residence and Duckworth had not seen her previously, refuting the possibility that the cocaine belonged to her. Id. By establishing Duckworth did not conduct surveillance of the property every day, the defense called into question Duckworth's premise for stating Roberson was merely a visitor. Id. In response the State was permitted to elicit testimony concerning the length of the investigation. Id. The Court of Appeals found that even if the issue had been preserved, the trial court would not have abused its discretion in permitting the testimony because it was "highly probative of Roberson's status in the residence" and "whether the cocaine belonged to her or Williams." Id. at 18. Thus, the trial court had not "abused its discretion in finding the probative value was not `substantially outweighed by the danger of unfair prejudice.'" Id.
The state post-conviction court found Williams' claim of ineffective assistance for failing to argue prejudice unavailing, stating:
(Ex. 13, pp. 6-7).
Williams' allegations of prejudice are conclusory and fail to demonstrate prejudice arising from the conduct of trial counsel. See, e.g., Fields v. Attorney General of Maryland, 956 F.2d 1290, 1297 (4th Cir. 1992) (petitioner bears the burden of establishing prejudice). The postconviction court's determinations that trial counsel's performance was not deficient and Williams did not suffer prejudice are reasonable and entitled to deference under the standard for evaluating petitions under 28 U.S.C. § 2254. The factual findings of the state court are supported by the record. Given the limited scope of federal habeas review, the state post-conviction court's rejection of this claim of ineffective assistance of counsel shall not be disturbed. See 28 U.S.C. § 2254(d).
Insofar as Williams also claims that he is entitled to relief based on the cumulative effect of "numerous harmful errors," his claim provides no grounds for relief. First, the claim is procedurally defaulted. Williams raised a claim of ineffective assistance for cumulative error in his application for leave to appeal to the Court of Special Appeals, and as previously discussed, the application was denied summarily. (Ex. 14, p. 4; Ex. 15). Because this claim was not presented to the state post-conviction court, it is procedurally defaulted from habeas review. See e.g. Coleman v. Thompson, 501 U.S. 722, 749-50, (1991) (stating where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, the procedural default doctrine applies).
Second, there is no merit to Williams' claim of cumulative error. Pursuant to the cumulative error doctrine, "[t]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990); see also United States v. Martinez, 277 F.3d 517, 532 (4th Cir.2002); United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009). Generally, if a court "determine[s] . . . that none of [a defendant's] claims warrant reversal individually," it will "decline to employ the unusual remedy of reversing for cumulative error." United States v. Fields, 483 F.3d 313, 362 (8th Cir.2007). To reverse for cumulative error, the errors must "so fatally infect the trial that they violated the trial's fundamental fairness." Basham, 561 F.3d at 330 (quoting United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)). In the Fourth Circuit, the cumulative error doctrine is not generally recognized because "legitimate cumulative-error analysis evaluates only the effect of matters actually determined to be constitutional error, not the cumulative effect of all of counsel's actions deemed deficient." Fisher v. Angelone, 163 F.3d 835, 852 n. 9 (4th Cir.1998); see also Arnold v. Evatt, 113 F.3d 1352, 1364 (4th Cir. 1997); Higgs v. United States, 711 F.Supp.2d 479, 552 (D. Md. 2010) (in the context of collateral review, review based on the cumulative effect of errors is available only where individual constitutional errors are found). Having found no ineffective assistance of trial counsel, there is no constitutional error to apply a cumulative analysis.
Williams complains counsel was ineffective for failing to adequately investigate his case. The state post-conviction court rejected this claim as follows:
(Ex. 13, p. 11).
Williams faults counsel for failing to file a motion to suppress the search warrant of his residence for lack of probable cause. (ECF No. 1, pp. 7-8). In rejecting this allegation, the state post-conviction court said:
The state post-conviction court also found unavailing Williams' claim of ineffective assistance for failure to thoroughly interview the State's witnesses prior to trial. The postconviction court opinion reads:
(Ex. 13, p. 10).
In sum, the state post-conviction court found that trial counsel's performance was neither deficient nor resulted in prejudice to Williams. It further determined that Williams presented no credible evidence that trial counsel had failed to investigate his case or thoroughly interview State's witnesses prior to trial.
Upon review of the post-conviction transcript, the court finds the state court's decision to credit trial counsel's testimony was reasonable and well-supported by the record. Trial counsel testified at the post-conviction hearing that she subpoenaed State witnesses Tiffany Swan and Schanchez Roberson in an attempt to investigate them. (Ex. 12, pp. 68-69). Trial counsel filed a motion in limine to suppress evidence. Id. at 46, 73; see also Ex. 2, pp. 6-10. Trial counsel reviewed police and lab reports. (Ex. 12, p. 75). She met with Williams several times prior to trial. Id. at 78-79. Further, Williams presents no evidence that the search warrant lacked sufficient probable cause. Id. at 61, 66-67. "Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing." Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), overruled on other grounds by, Gray v. Netherland, 518 U.S. 152, 165-66 (1996). Absent demonstration of deficient representation and resultant prejudice as Strickland and its progeny require, Williams has not met his burden to show constitutionally ineffective assistance of counsel. Accordingly, relief will be denied as to this claim.
Lastly, Williams claims trial counsel rendered ineffective assistance by failing "to pursue all avenues of questioning." (ECF No. 1, p. 9). He asserts trial counsel had a "clear opportunity" to question the police detectives who testified at trial about their surveillance of him, including "failed control buys." Id. at 9-10. Williams avers the police never witnessed him conducting any transactions or involved in suspicious behavior. Id. at 9-10. He claims counsel "failed to highlight . . . that it was very highly probative of Detectives to assume Miss Roberson was a new arrival and couldn't have been a participant." Id. at 10.
The state post-conviction court rejected this claim and stated:
(Ex. 13, pp. 7-8).
Developing a defense strategy necessarily includes deciding which questions to ask the witnesses at trial. Gonzalez v. United States, 553 U.S. 242, 249 (2008). Had trial counsel asked police detectives on cross-examination about their observations of Williams during their several month surveillance, the prosecutor probably would have asked them on re-direct about their surveillance in greater detail and why a search and seizure warrant had issued. (Ex. 2, pp. 140-148, 171-172). As earlier noted, in response to trial counsel's motion in limine, the court ruled that police witnesses were limited to testifying about what they had observed on January 31, 2008. (Ex. 2, p. 9). If counsel had posed questions on cross-examination about police observation of Williams and "failed control buys," as Williams would have preferred, the prosecutor likely would have asked for relief from the court's ruling on the motion in limine. Williams' allegation that his trial counsel failed to effectively cross-examine witnesses does not justify relief. "[T]actical decisions such as what questions to ask of witnesses are `virtually unchallengeable.'" Mosely v. United States, 2011 WL1230888 at *2 (D. Md. March 29, 2011) (quoting Powell v. Kelly, 562 F.3d 656, 670 (4th Cir. 2009)) (quotation marks omitted). The court finds the state court's determination involved neither an unreasonable application of the law nor an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). The state court's decision is entitled to deference and will not be disturbed. Accordingly, federal habeas corpus relief will be denied as to this claim.
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). To meet this burden, an applicant must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has failed to make a substantial showing he was denied a constitutional right, and this court finds that reasonable jurists would not find the denial of habeas relief in this case debatable. Therefore, a certificate of appealability shall not issue.
For the foregoing reasons, the court concludes the state post-conviction court's decision rejecting these claims was neither contrary to clearly established federal law, as determined by the United States Supreme Court, nor involved an unreasonable application of that law. The petition provides no grounds for habeas corpus relief and will be denied. A separate order follows denying the petition and declining to issue a certificate of appealability.
(Ex. 4 at App. 8-9).
