CATHERINE C. BLAKE, District Judge.
Jason Eric Grimes, through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a sentence imposed on April 20, 2006, in the Circuit Court for Kent County, Maryland.
On February 7 and 8, 2006, Grimes was tried in the Circuit Court for Kent County before Judge Raymond Beck, Sr. on charges of attempted kidnapping, second-degree assault, false imprisonment, and reckless endangerment. (ECF No. 3-1 at 10.) The relevant facts developed at Grimes's trial were summarized as follows by the Court of Special Appeals of Maryland:
(ECF No. 1-2 at 1-8 (footnotes omitted).)
The jury acquitted Grimes of attempted kidnapping but convicted him of second-degree assault, false imprisonment, and reckless endangerment. (ECF No. 1-5 at 255.) After the verdict was read, Judge Beck stated that he would visit the jurors to personally thank them for their service and "see if [they] have any questions [he] can answer." (Id.) Neither the prosecutor nor defense counsel objected. (Id. at 256-57.)
At Grimes's sentencing on April 20, 2006, the scope of Judge Beck's discussion with the jurors was revealed to the prosecutor and defense counsel during the following discussion:
(ECF No. 1-7 at 28-29.) Just before delivering Grimes's sentence, Judge Beck further stated, "[t]he jury came that close to finding you guilty of attempted kidnapping. I'll tell you that. They didn't, so it's not before us, but it was close." (Id. at 39.) Judge Beck then sentenced Grimes to ten years' incarceration for second-degree assault
On direct appeal, Grimes asserted, among other things, that Judge Beck abused his discretion and denied Grimes his constitutional rights by sentencing him based on the court's ex parte conversations with the jury as to why he was acquitted of attempted kidnapping. Grimes therefore sought to have his sentence vacated. In an unreported opinion filed on November 14, 2008, the Court of Special Appeals affirmed Grimes's conviction and sentence, and in so doing indicated that "[b]ecause the Maryland Rules provide adequate grounds for resolution of the issues . . . [it] need not reach [Grimes's] constitutional arguments." (ECF No. 1-2 at 18.) The court concluded that while "a court may not consider ex parte communications in making a sentencing determination," it is "the improper judicial use of information gleaned from [the] ex parte communication, not merely the communication itself, that constitutes reversible error." (Id. at 24.) Declining to directly resolve the propriety of the communication, the court found that the trial court did not use it in arriving at its sentencing determination, and that any error would be harmless. (Id. at 25-26.)
Grimes filed a petition for a writ of certiorari with the Court of Appeals of Maryland seeking further review. (ECF No. 3-5.) The Court of Appeals of Maryland denied Grimes's petition on March 13, 2009, (ECF No. 3-6), and Grimes's judgment of conviction became final for direct appeal purposes on June 11, 2009, "when the period for filing a petition for a writ of certiorari in the United States Supreme Court expired," Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).
On June 1, 2010, Grimes filed a petition for post-conviction relief in the Circuit Court for Kent County. Grimes claimed that his sentence (1) was imposed in violation of his right to be present at all stages of the proceedings under the Sixth and Fourteenth Amendments; (2) was imposed in violation of his due process right to know in advance of the sentencing hearing the information that would be used in sentencing him and to contest the accuracy of that information; and (3) resulted from a violation of his right to effective assistance of counsel under the Sixth and Fourteenth Amendments. (ECF No. 3-7 at 2-3.)
On October 15, 2010, Kent County Circuit Court Judge Paul Bowman held a hearing on the claims raised in Grimes's post-conviction petition. Judge Beck testified as a witness. Judge Bowman denied relief on December 9, 2010, holding that Grimes's first two constitutional arguments had been "finally litigated" on direct appeal such that a state procedural rule, Md. Code Ann., Crim. Proc. § 7-102(b)(2), barred their relitigation, and that Grimes failed to establish ineffective assistance of counsel. (ECF No. 1-3 at 4-6.) On January 7, 2011, Grimes filed an application for leave to appeal the ruling, asserting the same claims raised at the circuit court level. On May 25, 2012, the Court of Special Appeals summarily denied the application.
Meanwhile, Grimes was paroled under the sentence at issue in this case in the summer of 2009, and was placed on probation. Grimes, who indicates that he has "a serious substance abuse problem, relapsed and committed three petty theft offenses in June 2010," resulting in two theft convictions. (ECF No. 1 at 3.) As a result of these convictions and another conviction for malicious destruction of property, Grimes's parole and probation were revoked. On December 3, 2010, Judge Bowman imposed the suspended, consecutive sentence of five years' imprisonment for Grimes's conviction for false imprisonment.
Grimes filed a petition for a writ of habeas corpus in this court on May 30, 2012, challenging his custody and asserting the same claims raised in his state post-conviction petition.
Under 28 U.S.C. § 2244(d)(1), "[a] 1-year period of limitation [applies] to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." Grimes's conviction became final on June 11, 2009. He filed his state petition for postconviction relief on June 1, 2010, suspending the limitations period ten days before it expired. See Harris, 209 F.3d at 327 ("[U]pon conclusion of direct review of a judgment of conviction, the one-year period within which to file a federal habeas petition commences, but the running of the period is suspended for the period when state post-conviction proceedings are pending in any state court."). The Court of Special Appeals denied his application for leave to appeal on May 25, 2012, and he filed his petition in this court on May 30, 2012, with five days remaining in the one-year limitations period. Accordingly, Grimes's petition is timely.
Before a petitioner may seek habeas relief in federal court, he must have exhausted each claim presented to the federal court by seeking review of the claim in the highest state court with jurisdiction to consider the claim. See 28 U.S.C. § 2254(b)-(c). "[A] prisoner does not have `to ask the state for collateral relief, based on the same evidence and issues already decided by direct review.'" O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (citation omitted). Rather, "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. Grimes has done so here, and therefore has fully exhausted the claims presented.
Grimes has raised an issue concerning the standard of review the court must apply to his claims. "The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 131 S.Ct. 770, 783 (2011). An application for writ of habeas corpus may be granted only "on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "If an application includes a claim that has been `adjudicated on the merits in State court proceedings,' § 2254(d), an additional restriction applies." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). That restriction limits the availability of a habeas corpus remedy to situations where the state adjudication (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)(1)-(2). The Supreme Court has described these standards as "difficult to meet," Richter, 131 S. Ct. at 786, and "highly deferential," Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997), and the "[p]etitioner carries the burden of proof," Pinholster, 131 S. Ct. at 1398.
As to § 2254(d)(1), "[i]n this context, `clearly established law' signifies `the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Howes v. Fields, 132 S.Ct. 1181, 1187 (2012) (citation omitted). "And an `unreasonable application of' those holdings must be `objectively unreasonable,' not merely wrong; even clear error will not suffice." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (citation omitted). Indeed, the "state prisoner must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. 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). "[E]ven if `reasonable minds reviewing the record might disagree' about the finding in question, `on habeas review that does not suffice to supersede the trial court's determination.'" Id. (citation and ellipsis omitted).
In addition, under 22 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." This standard is "arguably more deferential" to state courts than the one set out in § 2254(d)(2). Wood, 588 U.S. at 301. Though the Supreme Court has expressly declined to "define[ ] the precise relationship between § 2254(d)(2) and § 2254(e)(1)," Burt v. Titlow, 134 S.Ct. 10, 15 (2013), the Fourth Circuit has explained that "[b]oth provisions apply independently to all habeas petitions," Winston v. Kelly, 592 F.3d 535, 555 (4th Cir. 2010). Accordingly, where a petitioner's claim was previously adjudicated on the merits by a state court the petitioner must demonstrate both that a state court's factual finding was incorrect by clear and convincing evidence, and that it was objectively unreasonable in light of the record before the court. Id. "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).
Grimes argues that the state courts did not adjudicate his constitutional claims on the merits, and therefore § 2254(d)'s deferential review does not apply. To support his argument that this court should instead review his claims de novo, he points to the state appellate court's statement that "[b]ecause the Maryland Rules provide adequate grounds for resolution of the issues," the court "need not reach [Grimes's] constitutional arguments." (ECF No. 1-2 at 18.)
The court will assume without deciding that Grimes's federal claims were not adjudicated on the merits under § 2254(d). Viewing his claims de novo, the court finds that any error was harmless, and that his claims must therefore fail.
To surmount the applicable harmless error standard, Grimes must show that the error
Even if the trial court erred, this court has no grave doubt that the asserted error was harmless. The trial court made clear that the sentence stemmed not from the jury's reasons for acquitting Grimes of attempted kidnapping, but from the nature of the assault. As the court stated at the sentencing hearing, Grimes "stalked Mrs. Hilfiker
Because the court is confident that any error was harmless, the court will deny Grimes's petition for habeas corpus based on the trial court's asserted violations of his constitutional right to be present at all stage of criminal proceedings and of his due process right to know in advance of the sentencing hearing the information that would be used in sentencing him and to contest the accuracy of that information.
To maintain a claim of ineffective assistance of counsel, Grimes must show that "counsel's performance was deficient" and this "deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). "A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance. Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 689). "Strickland does not guarantee perfect representation, only a `reasonably competent attorney.'" Richter, 131 S. Ct. at 791 (quoting Strickland, 466 U.S. at 687). Prejudice exists only where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 684.
Where § 2254(d)(1) applies and the issue is whether the state court has unreasonably applied Strickland to an ineffective assistance of counsel claim, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Richter, 131 S. Ct. at 785. Review is therefore "doubly deferential": a federal habeas court must defer to a state court's reasonable grant of deference to trial counsel's performance. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Indeed, "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Richter, 131 S. Ct. at 786.
The state court assessed Grimes's claim of ineffective assistance of counsel as follows:
(ECF No. 1-3 at 5-6.) Grimes argues that his Sixth Amendment claim was based on trial counsel's failure to seek a continuance or the disqualification of Judge Beck, not on counsel's failure to object strenuously enough. He says the court therefore rejected an argument he did not make, and such a circumstance cannot constitute a merits determination.
This argument fails. The state court's determination that "[t]here was no error and, therefore, nothing to preserve," is enough to show that Grimes's claim of ineffective assistance of counsel was adjudicated on the merits. If a summary order devoid of analysis constitutes an adjudication on the merits, Richter, 131 S. Ct. at 784-85, surely this sentence must suffice. In any event, however, Grimes's claim of ineffective assistance of counsel fails under both the deferential review set out in § 2254(d) and de novo review.
At the post-conviction hearing, Grimes's trial counsel, Jane Miller, testified that she was surprised when she learned at sentencing that jurors had told Judge Beck why they acquitted Grimes of attempted kidnapping. (ECF No. 1-6 at 13.) Upon reflection, Miller testified that she made a "mistake" by not seeking a continuance of the sentencing hearing. (Id. at 15.) Miller did not state what use, if any, she would have made of the continuance.
Judge Beck, testifying for the State at the post-conviction hearing, stated that he met with the jury as a courtesy for approximately ten minutes following the verdict. (Id. at 20, 22-23.) Specifically, he wanted to ask the jurors about their experience, thank them for their service, and answer questions they might have. (Id. at 22-23, 30.) Judge Beck recalled that, without his prompting, "some or more members of the jury told [him] that they had some difficulty with the [attempted] kidnapping charge," in particular, the "asportation" element. (Id. at 23, 30.) As to why he sentenced Grimes to the statutory maximum ten years in prison for second-degree assault, Judge Beck testified as follows:
(Id. at 28-29.) Judge Beck reiterated: "There was nothing that I took into consideration regarding attempted kidnaping. I based it on the nature and extent of the assault." (Id. at 29.)
The post-conviction court's statement of reasons denying Grimes his requested relief cited Strickland, reiterated that Judge Beck had not erred, and concluded that because "[t]here was no error," trial counsel's failure to act did not constitute ineffective assistance of counsel. (ECF 1-3 at 6.) This determination was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement," Richter, 131 S. Ct. at 786-87, and Grimes cites no authority to support his position that counsel was compelled by constitutional standards to seek a continuance or request Judge Beck's recusal. Accordingly, Grimes's claim of ineffective assistance of counsel fails under the review required by § 2255(d).
Under de novo review, Grimes's claim fails on the prejudice prong. The court has already explained why it is confident that the sentencing judge's conversation with the jury did not cause the judge to give Grimes a sentence longer than he would have had the conversation not taken place. Those reasons apply with equal force here. The judge made clear that it was the nature of the assault, not the jury's reasons for acquitting Grimes of attempted kidnapping, that led the judge to reach a sentencing determination. The nature of the assault remains the same regardless of whether Grimes's counsel sought a continuance or recusal. Grimes is not entitled to relief on his claim of ineffective assistance of counsel.
A certificate of appealability shall not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that an assessment of the constitutional claims is debatable and that any dispositive procedural ruling dismissing such claims is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). Reasonable jurists would not find Grimes's claims debatable, and the court will therefore not issue a certificate of appealability.
For the reasons stated above, Grimes's petition for writ of habeas corpus will be denied and dismissed, and a certificate of appealability shall not issue. A separate order follows.
Here, the state appellate court focused primarily on Maryland Rule 4-326(d), which concerns a judge's duty to notify the parties of any communication with the jury, and Maryland Rule 16-813, Canon 3(B)(6) of the Maryland Code of Judicial Conduct (now codified, in a slightly modified form, in Maryland Rule 16-813, Code of Judicial Conduct Rule 2.9), which bars a judge from initiating, permitting, or considering ex parte communications or other communications made outside the presence of the parties. The court's statement that it "need not reach [Grimes's] constitutional arguments" makes sense only if the court interpreted the Maryland Rules to incorporate Grimes's arguments under the Fourteenth Amendment. Otherwise, a finding that the sentencing judge's actions did not violate the Maryland Rules would do nothing to eliminate the need to analyze Grimes's Fourteenth Amendment claims. Indeed, a long line of Maryland precedent recognizes that the protections afforded by the Maryland Rules for a defendant's right to be present for every stage of his trial go beyond those of the Fourteenth Amendment. See, e.g., Winder v. State, 765 A.2d 97, 122-23 (Md. 2001) (citing Williams v. State, 438 A.2d 1301, 1306 (Md. 1981), for the proposition that "a criminal defendant's right to be present at every stage of his trial is a common law right [and] is to some extent protected by the Fourteenth Amendment to the United States Constitution"). Further the Court of Appeals of Maryland has specifically recognized that Maryland Rule 4-326(d) "codifies" the right of a criminal defendant to be present at every stage of his trial protected by the Fourteenth Amendment, common law, and Article 5 of the Maryland Declaration of Rights. State v. Harris, 53 A.3d 1171, 1179 (Md. 2012).
The appellate court's reliance on Smith v. State, 498 A.2d 284 (Md. Ct. Spec. App. 1985), further supports the conclusion that the court viewed its discussion of the Maryland Rules as incorporating Grimes's federal claims. Smith blended a discussion of due process with several of the Maryland Rules, essentially treating the two areas of law as interchangeable. Id. at 288-89. The court ultimately focused on "what the judge [did] as a result of" an improper communication, i.e., the "effect of the communication," id. at 288, and held that the judge's actions constituted a "denial of due process," id. at 289. The appellate court in Grimes's case cited Smith for the proposition that "it is the improper judicial use of information gleaned from ex parte communication, not merely the communication itself, that constitutes reversible error." (ECF No. 1-2 at 24.) Focusing its inquiry on what the sentencing judge did as a result of his communication with the jury, the court held that he did not use the communication in arriving at his sentence. (Id. at 25-26.) Because the court relied so heavily on Smith, a case that treated the Maryland Rules as incorporating relevant due process protections, it is likely that the court also viewed the relevant Maryland Rules as incorporating Grimes's due process arguments, and that is why the court stated that it "need not reach" those arguments. (Id. at 18.)
Grimes's claims would fail to satisfy the standard of review set out in § 2254(d). As to Grimes's argument that the trial court violated his asserted right to be present at all stages of criminal proceedings, Grimes concedes that the Supreme Court has not examined the constitutionality of a post-verdict, pre-sentence discussion between a judge and juror. (See Grimes Reply 11, ECF No. 6 (stating that "the only court to have expressly considered the constitutionality of such communications" is a New Jersey state court).) Certainly no Supreme Court case has held that the type of error here (to the extent one existed) "was so lacking in justification" that it was "well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. The same is true for Grimes's argument that the trial court violated his asserted right to know in advance of the sentencing hearing the information that would be used in sentencing him and to contest the accuracy of that information: there is no clearly established law, as articulated by the holdings of the Supreme Court, making clear that the trial judge's actions here violated due process.
