ROGER W. TITUS, District Judge.
Christopher Witcher ("Witcher") filed a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 30, 2013,
ECF No. 1, at 4.
Upon review of the pleadings, the Court finds no need for an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2013); Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts. For the reasons that follow, the Petition will be deemed timely but nonetheless denied on the merits and dismissed. A certificate of appealability shall not issue.
The Court of Special Appeals of Maryland, in an unreported opinion affirming Witcher's convictions, set forth the following summary of the evidence produced at Witcher's trial:
Witcher v. State, No. 1172, at *1-*3 (Md. App. Sept. 10, 1999).
On July 18, 1996, after a jury trial in Prince George's County, Witcher was convicted of first degree murder, conspiracy to commit murder, and solicitation of Perry to commit murder. ECF No. 8-1, at 6. He was acquitted of solicitation of Sovann to commit murder. Id. Witcher was sentenced on January 3, 1997 to imprisonment for life without the possibility of parole. Id. at 7. On August 3, 1998, he filed a belated notice of appeal,
Witcher filed a pro se petition for post-conviction review in the Circuit Court on July 19, 2000. ECF No, 8-1, at 11. On April 17, 2001, that petition was withdrawn without prejudice. Id. at 13. On December 29, 2006, Witcher filed a counseled petition in the Circuit Court, amended on February 16, 2010. Id. Following hearings January 20, 2011 and May 19, 2011, the circuit court denied post-conviction relief on January 10, 2012. Id. at 14-16. On January 25, 2012, Witcher filed a request for en banc review. Id. at 16. The appellate court affirmed the circuit court's decision in an order filed on April 25, 2013, thereby rendering Witcher's post-conviction proceedings final. Id. at 16-17; see also Md. R. Civ. P. 2-551(h).
As previously noted, Witcher filed the instant Petition for writ of habeas corpus in this Court on October 30, 2013. Respondents filed their answer on March 3, 2014. ECF No. 8. Because it appeared that the Petition was untimely, on November 7, 2014, the Court ordered Witcher to file a show cause response as to why his § 2254 Petition should not be dismissed as time-barred. ECF No. 10. Witcher filed his response on December 1, 2014, arguing that the Petition was timely pursuant to 28 U.S.C. § 2244(d). ECF No. 11. The Court subsequently directed Respondents to file additional documents, as the pleadings and exhibits did not indicate when Witcher presented his current claims to the circuit court on post-conviction review. ECF No. 13. Respondents filed the additional documents on May 27, 2015. ECF No. 15.
The Court must first address the timeliness of the Petition. A one-year statute of limitations applies to habeas petitions in non-capital cases for a person convicted in a state court. 28 U.S.C. § 2244(d)(1) (2013). This one-year period is, however, tolled while properly filed post-conviction proceedings are pending and may otherwise be equitably tolled. See 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). In this case, Witcher has neither asserted, nor do the pleadings suggest, any circumstances that would justify equitable tolling. Rather, Witcher asks that timeliness be considered pursuant to § 2244(d)(1)(D), under which the statute of limitations begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); see also ECF No. 11, at 2.
Witcher states that "in researching my post conviction I Found My `Brady' Issues, State failed to Disclose `two statements.'" ECF No. 11, at 2. Similarly, counsel states that in reviewing Witcher's police file, he uncovered two police department inter-office memoranda which were not disclosed to trial counsel or otherwise brought to the jury's attention during Witcher's trial. ECF No. 15-2, at 7-8. In response to the Court's order to file supplemental material, Respondents submitted a copy of Witcher's July 19, 2000, post-conviction petition; a copy of Witcher's February 16, 2010, amended post-conviction petition; and a transcript of the post-conviction hearing. ECF No. 15. They were unable to obtain a copy of the December 2006 post-conviction application, despite specific request to the Clerk of the Prince George's County Circuit Court. Id.
The July 2000 pro se post-conviction application, ECF No. 15-1, did not include any Brady claims; those claims were raised in the February 2010 amended post-conviction application, ECF No. 15-2. However, whether those claims were raised in the previous December 2006 petition cannot be determined. Thus, the Court is only slightly better off than it was before it issued its Order directing Respondents to file the documents noted above.
The circuit court's January 10, 2012 Opinion and Order of the Court denying Witcher's petition for post-conviction relief, however, provides some insight regarding the 2006 post-conviction petition, although not specifically when the factual predicate of Witcher's claims was discovered. See 28 U.S.C. § 2244 (d)(1)(D). The court stated in a footnote that:
ECF No. 8-11, at 1 n.1.
Based on the foregoing, the Court cannot determine with certainty the timeliness of Witcher's petition. Therefore, the Court will assume—in Witcher's favor—that the claims were unearthed within a year prior to December 29, 2006, rendering the Petition timely, and the Court will address the merits of Witcher's claims. Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
The federal habeas statute, 28 U.S.C. § 2254, as amended, sets forth a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447, 455 (2005). The standard is "difficult to meet," and requires courts to give state-court decisions the benefit of the doubt. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted); see also Harrington v. Richter, 562 U.S. 86, 102 (2011) ("If this standard is difficult to meet, that is because it was meant to be."). Petitioner carries the burden of proof to meet this standard. See Pinholster, 131 S. Ct. at 1398.
A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: 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) (2013).
A state adjudication is contrary to clearly established federal law under § 2254(d)(1) where the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or "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). Under the "unreasonable application" analysis of § 2254(d)(1), a "state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "[A] federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly." Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at 411). "Rather, that application must be objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409). Thus, "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410).
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). "[E]ven if [r]easonable minds reviewing the record might disagree about the finding in question," a federal habeas court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id. (second alteration in original) (internal quotation marks and citation omitted).
The habeas statute 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).
Witcher presents three related claims for the Court's review: (1) the State failed to disclose "Brady" material; (2) the circuit court erred in denying post-conviction relief by not recognizing the materiality of suppressed exculpatory evidence; and (3) the State violated the due process clauses of the Fifth and Fourteenth Amendments. ECF No. 1, at 6. Because the claims are all based on an alleged "Brady" violation, they are addressed together.
In Brady v. Maryland, defense counsel had asked the prosecution to allow him to examine statements made by Brady's accomplice. 373 U.S. at 84. Several statements were shown to defense counsel, but one, in which the accomplice admitted to committing the homicide of which he and Brady were accused, was withheld and discovered by the defense only after Brady's trial had ended and his conviction had been affirmed. Id. The Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87.
Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (internal citations and quotation marks omitted).
There are three fundamental components to a Brady claim: (1) "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching";
(2) the "evidence must have been suppressed by the State"; and (3) the evidence must be material to the defense, that is, "prejudice must . . . ensue[]." Walker v. Kelly, No. 08-11, 2009 WL 4877761, at *8 (4th Cir. Dec. 16, 2009) (quoting Strickler, 527 U.S. at 281-82) (alterations in original).
In the instant case, the documents at issue consisted of two inter-departmental memoranda from within the Prince George's County Police Department. The first, dated February 22, 1996, was entitled "Update on Tatia Brennan Murder Investigation and Prosecution." ECF No. 8-11, at 6. The second,
As described by the circuit court, the January memorandum read as follows:
ECF No. 8-11, at 6-7 (alterations in original). Witcher argued to the circuit court that "Sovann's January 17, 1996 statement to police would have `aided in destroying Sovann's credibility before the jury because they would have learned of yet another inconsistent statement he had made.'" Id. at 10. According to Witcher, admission of this statement would have "bolstered" the defense's theory that Allen ordered the killing, not Witcher. Id. Thus, he argued that the document was "exculpatory in nature and would have materially altered the jury's finding of guilt against him." Id. at 5; see also ECF No. 15-3, at 10.
The circuit court first found there was no question that the January memorandum was available and should have been disclosed. ECF No. 8-15, at 11-12; see also ECF No. 15-4, at 30-31 (concession by assistant state's attorney at Witcher's post-conviction hearing that January memorandum should have been disclosed).
Next, the circuit court addressed whether the substance of the January memorandum was exculpatory "by tending to negate or mitigate the guilt of Witcher." ECF No. 8-11, at 12. The court determined that the information was "clearly exculpatory" within the ambit of Brady "as it had the potential to exonerate Witcher." Id.
Third, the circuit court turned to the materiality of the January memorandum: "when evaluated in the context of the entire record, does it create a reasonable doubt that did not otherwise exist." Id. at 13. On the other hand, "[i]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Id. (quoting Agurs, 427 U.S. 97, 114 (1976)) (italics omitted). The court determined that "[t]he failure of the State to disclose this document did not deprive Witcher of his constitutional right to a fair trial as he was able to confront Sovann on cross-examination and to question him on who ordered Sovann to kill Ms. Brennan." Id. at 15. The circuit court quoted from defense counsel's cross-examination of Sovann regarding another statement Sovann had made to the police in which he stated that Shawnte Perry told him Allen made the call to kill Ms. Brennan. Id. The court found this testimony "to be dispositive of this matter." Id. The Opinion and Order of Court states:
Witcher, and had it been used at trial to cross-examine Sovann, it is difficult to see how the presence of this information would have materially altered the judgment of the jury. Witcher's trial counsel was well able to cross-examine Sovann about the discrepancies in his testimony and his bias. Most critically, Witcher's trial counsel elicited from Sovann the conflicting evidence that Witcher and Allen both appeared to have ordered Sovann to kill Brennan. Sovann was thus impeached at trial by his prior inconsistent statements. Additionally, Sovann admitted that he was facing sentencing on his own first degree murder conviction and thus may have had a motive to give testimony favorable to the State. The non-disclosed January 17, 1996 memorandum would have done little to further tarnish Sovann's credibility with the jury. Rather, the January 17, 1996 memorandum would have been cumulative evidence. Indeed, Witcher, in his petition, notes that Sovann's statement in the January 17, 1996 memorandum would have resulted in the jury learning "of yet another inconsistent statement."
Id. at 17-18.
This Court cannot say that the circuit court's decision on the merits "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 "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). The state post-conviction court discussed at length the standard by which materiality must be judged, as articulated by the United States Supreme Court in Brady v. Maryland and its progeny and as interpreted by the Maryland appellate courts which, in turn, relied upon applicable Supreme Court cases. The circuit court then correctly applied that standard. Its application of "clearly established Federal law" was neither incorrect nor unreasonable. Id.
Moreover, it cannot be said that the circuit court unreasonably determined the facts "in light of the evidence presented in the State court proceeding." Id. Over a two-day period, the court conducted an evidentiary hearing and heard argument. ECF Nos. 15-3, 15-4. This Court presumes that the state court's determination of factual issues is correct. 28 U.S.C. § 2254(e)(1). Simply put, Witcher has not met his "burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Sharpe, 593 F.3d at 378.
The circuit court's determination that the January memorandum was not material to the jury's guilty verdict is presumptively correct, and Witcher has not overcome that presumption. Nor has he established that the circuit court unreasonably applied existing federal law to the facts of Witcher's case. Accordingly, this Court will not overturn the state court's findings that, absent materiality, there was no Brady violation.
Witcher may not appeal this Court's denial of relief under § 2254 unless it issues a certificate of appealability. See 28 U.S.C. § 2253(c) (2012); Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). A certificate of appealability will not issue without a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El, 537 U.S. at 337. Under this standard, Witcher must show that "jurists of reason could have resolved this claim differently." Rowsey v. Lee, 327 F.3d 335, 341 (4th Cir. 2003) (citing Miller-El, 537 U.S. at 336). This Court has assessed the claims in Witcher's petition and found them deficient. No reasonable jurist could find merit in any of his claims, and thus no certificate of appealability shall issue.
For the reasons stated herein, Witcher's petition for writ of habeas corpus is DENIED and DISMISSED and a certificate of appealability shall not issue. A separate order follows.
