RICHARD D. BENNETT, District Judge.
On April 14, 2014,
On February 24, 2009, after a bench trial in the Circuit Court for Wicomico County, Quesenberry was convicted of multiple counts of burglary, attempted rape, and related sexual offenses. (ECF No. 1, pp. 1-2; Resp. Ex. 4, pp. 225-26, 228-29).
Quesenberry filed a pro se petition for post-conviction relief in the circuit court on January 25, 2012. (ECF No. 1, pp. 4, 6; Resp. Ex. 11, p. 3).
Quesenberry filed the instant Petition on April 14, 2014.
Quesenberry presents three claims for this Court's review: first, that he was denied due process because the DNA Collection Act was circumvented; second, that his due process rights under the Sixth and Fourteenth Amendments were violated because he was denied compulsory process of obtaining witnesses in his favor due to the circuit court's denial of his motion to suppress; and third, his Fourth, Fifth, and Fourteenth Amendment rights were violated because he was arrested without probable cause, all evidence obtained was illegally used at trial, and he was denied a Franks
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)[
Id. at 847-48.
Respondents argue that Quesenberry's third ground for relief, that his rights were violated because he was arrested without probable cause, all evidence obtained was illegally used at trial, and he was denied a Franks hearing regarding probable cause, is unexhausted. (ECF No. 4, pp. 11, 19). Quesenberry acknowledges that the claim has not been presented to the state courts. (ECF No. 1, p. 10). As already noted, § 2254(c) provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). It appears that Quesenberry is precluded from doing so now, because under Maryland law a petitioner may bring only one petition for post-conviction relief. See Md. Code Ann. Crim. Proc., § 7-103(a). Therefore, the claims contained in Quesenberry's third ground for relief have been procedurally defaulted.
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 at 495-96 (1986). "Cause" consists of "some 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 615, 620 (4th Cir. 1998). 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 (1995). Whether Quesenberry has demonstrated cause and prejudice for failing to present the claims to the state courts, or that a fundamental miscarriage of justice will occur if this Court does not address the claims, will be discussed infra.
An application for writ of habeas corpus may be granted only for violations of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Section 2254(d) provides that:
28 U.S.C. 2254(d). The statute sets forth a "highly deferential standard for evaluating state-court rulings, Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and is "difficult to meet," Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
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" under 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 v. Richter, 562 U.S. 101 (2011)(quoting Yarborough.v Alvarado, 541 U.S. 652, 664 (2004)). Thus, "an unreasonable application of federal law is different from an incorrect application of federal law. Id. at 785 (internal quotation marks omitted).
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," id., a federal court may not conclude that the state court decision was based on an unreasonable determination of the facts, id. "[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).
The habeas statute provides that "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 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). This is especially true where the state court has "resolved issues like witness credibility, which are `factual determinations' for purposes of Section 2254(e)(1)." Id. at 379. Quesenbery's claims will be examined under this framework.
Quesenberry argues that:
(ECF No. 1, p. 11). The result, Quesenberry stated in his April 30, 2012 amended/supplemental state petition, was a wrongful conviction. (Resp. Ex. 9; Resp. Ex. 11, p. 11).
It is clear that Quesenberry is alleging a violation of state law, not a federal constitutional or statutory violation. As such, the claim is not cognizable under § 2254. See 28 U.S.C. § 2254(a) (noting 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."); id. § 2254(d) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (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."). Quesenberry states that his first claim of error is "based on "Due Process Grounds," (ECF No. 1, p. 9), and argued at the January 31, 2013, hearing that he was denied due process of law because "the procedures weren't followed under the rules," (ECF No. 13-1, p. 57), in that the DNA used at trial was not verified, id. at 36, 56-57. The mere reference to due process in the context of an alleged violation of Maryland laws and/or rules, however, is not enough to bring the claim within the ambit of § 2254.
Even if cognizable, the claim would fail on the merits. Quesenberry presented the identical claim to the post-conviction court in a pro se amended/supplemental post-conviction petition filed on April 30, 2012. (Resp. Ex. 9; Resp. Ex. 10, p. 2). After noting that this petition was filed after his counseled petition and was not signed by counsel, in violation of Maryland court rules, the circuit court stated that it would, nonetheless, consider all allegations raised in Quesenberry's multiple petitions other than those withdrawn in open court. (Resp. Ex. 11, p. 2).
The court rejected Quesenberry's DNA claim, stating:
(Resp. Ex. 11, pp. 11-12)(footnotes omitted).
As is clear from the post-conviction court's Statement of Reasons and Order, the court thoroughly analyzed Quesenberry's argument regarding §§ Sections 2-508 and 2-510 of the DNA Collection Act. Id. It found that Quesenberry had misconstrued the above sections of the act. Id. at 12. There is no mention of a federal constitutional or statutory violation in the state court's opinion, id. at 11-12, nor did Quesenberry make any such argument before that court, (ECF No. 13-1). "It is not the province of a federal habeas court to reexamine state court determinations on state-law questions." Oken v. Nuth, 64 F.Supp.2d 488, 500 (D. Md. 1999)(quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Therefore, there is no basis for relief pursuant to 28 U.S.C. § 2254(d)(1).
Moreover, as noted above, the circuit court found, based on the testimony of the state's expert witness, that the DNA swab voluntarily given by the Petitioner was matched to the DNA taken from the crime scene, not to the DNA database sample taken as a result of his prior conviction. (Resp. Ex. 11, pp. 6, 12.) A state court's factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1). Quesenberry provided no evidence at the post-conviction hearing that a database sample was used at trial,
The flaw in Quesenberry's argument, as the circuit court found, is that no database DNA was used. It is clear from the trial testimony that the DNA used at trial was taken from the sample taken from Quesenberry's saliva found on the victim and the buccal swab taken from Quesenberry. (Resp. Ex. 4, pp. 169-93). The statute, therefore, was not implicated. There is no reason to disturb the post-conviction court's conclusions, and, as a result, Quesenberry's first claim for relief must fail.
Next, "Petitioner alleges his due process rights were violated under the 6th and 14th amendments because: Petitioner was denied Compulsory process of obtaining witnesses in his favor due to the Court's order denying his motion to suppress." (ECF No. 1, p. 15). In his Reply, Quesenbery states: "Petitioner's Constitutional Rights [were] violated under Ground Two in his Petition because facts show that his witness's testimony, which is evidence to support his defense on the contested issue was not considered by the trier of fact at his trial and appeal in this case." (ECF 5, p. 3.).
At the post-conviction hearing, in response to questions from his attorney, Quesenberry argued:
(ECF No. 13-1, pp. 71-72; see also ECF No. 1, p. 16).
The post-conviction court found:
(Resp. Ex. 11, pp. 18-19).
It cannot be said that the circuit court's findings "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," 28 U.S.C. § 2254(d)(1), 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," id. § 2254(d)(2). Again, therefore, the Court finds no basis to question the state court's findings.
Finally,
(ECF No. 1, p. 18). In essence, Quesenberry's argument is that if he had the recording of the 911 call made by Christine Sifford, the victim's mother, to the police he could cast doubt on arresting officer Scott Willey's statement of probable cause. (ECF No. 13-1, pp. 29-31).
As previously noted, this claim has been procedurally defaulted. Therefore, the Court may not address the claim unless Quesenberry can show both cause for the procedural default and prejudice resulting from this Court's failure to consider the claim on the merits, or, alternatively, that failure to consider the merits of the claim would result in a fundamental miscarriage of justice. Murray, 477 U.S. at 495-96. "Cause" consists of some factor external to the defense that impeded a petitioner's efforts to raise the claim in the state courts at the appropriate time. Breard, 134 F.3d at 620.
(ECF No. 5, p. 5; see also ECF No. 1, p. 29). Reading Quesenberry's Reply liberally, as it must, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court assumes that Quesenberry contends that he has also addressed the prejudice prong:
(ECF No. 5, p. 5).
It appears that Quesenberry is alleging cause based on the State's failure to follow up on the 911 call and provide it to him. During the post-conviction hearing, during questioning by his counsel regarding issues raised in his final pro se amended/supplemental petition filed December 27, 2012, he testified as follows:
(ECF No. 13-1, pp. 29-30). He subsequently stated:
Id., p. 49.
Asked about the existence of a 911 call at the post-conviction hearing, the Assistant State's Attorney responded:
(ECF No. 13-1, pp. 51-52).
While Quesenberry did eventually write a letter to the Assistant State's Attorney, as noted above it was contained in his final pro se amended/supplemental petition dated December 27, 2012. (Resp. Ex. 9). He also wrote a letter to the Department of Emergency Services, dated June 18, 2013, in which, in a footnote, he requested a record of the 911 call. (ECF No. 1, p. 29). His criminal case docket, however, does not reflect that he made any efforts prior to December, 2012, to obtain a record of the call, (Resp. Ex. 1), nor has he provided any evidence that he did so. By the time he sent his inquiry to the Department of Emergency Services, it was too late. (ECF 1, p. 29)(noting that 911 records were maintained for a period of 180 days).
The Court finds that Quesenberry has failed to show cause for his failure to present his third ground for relief as a specific claim to the state courts. A such the claim is procedurally defaulted. The existence of the call was known to him as early as Officer Willey's August 11, 2008, Statement of Probable Cause. (ECF No. 1, pp. 32-33). The call was the subject of testimony at his trial. (Resp. Ex. 4, p. 86). Quesenberry did nothing to obtain a record of the call until 2012, instead relying on the Assistant State's attorney to produce any record of the call.
Because Quesenberry has not shown cause for the procedural default, the Court need not address the question of prejudice.
In any event, Quesenberry's third ground for relief would fail on the merits, even if it were properly before the Court. See 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 first part of Quesenberry's argument is that there was no probable cause to arrest him. (ECF No. 1, p. 18).
Quesenberry raised the lack of probable cause for his arrest, on a different basis, at the state post-conviction hearing. (Resp. Ex. 11, p. 12; Resp. Ex. 13-1, pp. 61-62).
Officer Willey's Statement of Probable Cause reads, in part, as follows:
(ECF No. 1, p. 32). At the post-conviction hearing, Quesenberry testified that "he never had a description of a white male of me, naming me as the suspect. His description is a white male wearing blue shorts no shirt. He detained me." (ECF No. 13-1, p. 47). Quesenberry continued, "And then it says in the statement of probable cause specifically then later identified as Patrick J. Quesenberry." Id. Quesenberry charges that Officer Willey "trumped up his own probable cause statement of a description and detained me." Id.
There is no basis for Quesenberry's assertion that Officer Willey "trumped up," id., or "fabricated," id., p. 51, the description of the suspect. As the post-conviction court found with respect to Quesenberry's other argument regarding probable cause, this is nothing more than a "bald and unsupported allegation," (Resp. Ex. 11, p. 12). It is pure speculation to assume that Mrs. Sifford's 911 call to the Salisbury Police Department contained anything other than a description of a white male wearing blue shorts and no shirt.
The second part of this ground for relief is that, because Quesenberry was arrested without probable cause, "all evidence obtained [was] illegally used at trial. . . ." (ECF No. 1, p. 18). Because the Court has already found Quesenberry's argument regarding probable cause for his arrest to be baseless, it follows that any evidence obtained after that arrest was procured legally. In the interest of completeness, however, the Court addresses this portion of the claim.
Quesenberry does not specify what evidence was "illegally used at trial." However, prior to trial the defense filed motions to suppress statements he made to police shortly after his arrest as well as the results of a buccal swab taken at the detention center. (ECF No. 1, p. 20). That is the only evidence referenced in the Petition with regard to suppression.
As noted previously, at the state post-conviction hearing Quesenberry challenged whether there was probable cause and the evidence obtained as a result of that arrest, albeit on a different basis. (Resp. Ex. 11, p. 12). The circuit court's analysis regarding that argument is equally applicable here:
(Resp. Ex. 11, p. 13).
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court addressed the question of whether a federal court should consider a claim that evidence obtained by an illegal search and seizure was introduced at his trial, when he has previously been afforded an opportunity for full and fair litigation of his claim in the state courts, in ruling on a petition for habeas corpus relief filed by a state prisoner. Id. at 469. The Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial." Id. at 482; see also Doleman v. Muncy, 579 F.2d 1258, 1262 (4th Cir. 1978)(quoting Stone).
In Doleman, the Fourth Circuit held that:
579 F.2d at 1265 (internal citations omitted).
Quesenberry argues that his opportunity for full and fair litigation of his Fourth Amendment claim was impaired because the state court denied his request for a continuance, thereby preventing him from developing the factual basis of the claim. (ECF No. 20, p. 3). However, the absence of a record of the 911 call did not hinder Quesenberry's ability to argue to the post-conviction court that, because it was unclear which "Sifford" made the 911 call, probable cause for his arrest was lacking. Moreover, despite not possessing a record of the call, he was still able to present his allegations regarding the description given in that call to the postconviction court. Finally, his ability to present other evidentiary arguments was not impaired in any way. Based on the foregoing, the Court concludes that Quesenberry had an opportunity to litigate the issue of the 911 call in the state courts but failed to do so in a timely manner.
The state courts did not incorrectly or unreasonably apply clearly established federal law or unreasonably determine the facts based on the evidence before them. It is clear that Quesenberry had a full and fair opportunity to litigate any arguments that because there was no probable cause for his arrest, any evidence resulting therefrom was illegally obtained. He had a motions hearing before trial. He could have made the above argument to the motions judge during that hearing. He had the opportunity to do so. Quesenberry did make the argument to the post-conviction court, even without the 911 call. The post-conviction court denied his petition. Quesenberry appealed both denials to the Court of Special Appeals, which also denied them. That the current claim is based on a different factual predicate is of no moment. In essence, the claim is the same. Therefore, the Court finds that this issue, too, has been finally litigated and is not appropriate for post-conviction relief.
Lastly, in the third portion of this claim, Quesenberry argues he was denied the right to have a Franks v. Delaware hearing challenging Officer Willey's probable cause. (ECF No. 1, p. 18). As noted previously, Quesenberry alleges that Officer Willey committed perjury in that he fabricated his description of Quesenberry in his Statement of Probable Cause. (ECF No. 13-1, p. 50). During the post-conviction hearing he stated: "I believe that if I was given the opportunity to obtain that 911 record that I could cast reasonable doubt, that I could have a Franks Delaware hearing, that his information was false and erroneous." Id. at 46; see also id. at 48.
438 U.S. at 155-56. The court elaborated on its holding as follows:
Id. at 171-72 (footnote omitted).
It is clear that Quesenberry has not made the required showing. The Court has already found that there is no support in the record for Quesenberry's allegation that Officer Willey "trumped up" his description of Quesenberry. Further, as also noted previously, it is pure speculation that the description given by Mrs. Sifford is at odds with the description given to Officer Willey by dispatch, as Quesenberry assumes. Moreover, having already found that Officer Willey had probable cause to arrest Quesenberry, by extension Quesenberry would have had no basis to request a Franks hearing. Accordingly, Quesenberry's third ground for relief is rejected in its entirety.
Arguably, Quesenberry has procedurally defaulted his first claim and failed to present cognizable claims with respect to his second and third grounds for relief. In any event, Quesenberry's claims fail on the merits, giving due deference to the state court's factual findings. The Petition, therefore, is
A Certificate of Appealability ("COA") will not issue because Quesenberry has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2); see Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Courts. A separate order follows.
(ECF No. 1, p. 2).
28 U.S.C. § 2254(b)(1).
Id.
Id. (citations omitted).
