DEBORAH K. CHASANOW, District Judge.
Self-represented Petitioner Wayne Boone filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 2, 2015. ECF No. 1. The Petition challenges Boone's 2001 conviction in the Circuit Court for Baltimore City, Maryland for three counts of attempted first degree murder. Id.; ECF No. 3-1, p. 1. Respondents filed a limited answer in which they sought dismissal of the Petition as being time-barred under 28 U.S.C. § 2244(d)(1)-(2). ECF No. 3. Subsequently, Boone filed a reply, arguing that his claim is not time-barred because he has presented a colorable claim of actual innocence and that the one-year period runs from the date on which the facts supporting the claim could have been discovered through the exercise of due diligence. ECF No. 5. Pursuant to an Order of this court, Respondents filed a supplemental answer addressing the merits of Petitioner's claims. ECF No. 10. Thereafter, Boone filed another reply. ECF No. 16. For the reasons that follow, Boone's Petition is denied and will be dismissed, and a certificate of appealability will not issue. The court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. §2254(e)(2)).
On November 5, 2001, Boone entered an Alford
ECF No. 1-2, pp. 39-44. No DNA evidence tied him to the scene of the crime. See ECF No. 10-3, p. 5.
Thereafter, the circuit court found Boone guilty of all three counts of attempted first degree murder. ECF No. 1-2, p. 45. He was sentenced to serve 50 years in prison, with all but eight years suspended, followed by five years of probation. Id. Boone did not file for leave to appeal the entry of his guilty plea and sentence. ECF No. 1, pp. 2-3.
Boone served the executed portion of his sentence and was released to probation. See ECF Nos. 1-3 & 3-1. He was thereafter convicted of a separate crime in this court, which violated his probation in the underlying Maryland case. See ECF No. 1, p. 12; ECF No. 1-2, p. 3. As a result, on July 10, 2009, Boone was sentenced in state court to serve the remaining 42 years in prison.
On June 18, 2010, Boone filed a petition for post-conviction relief, which he later supplemented, alleging that:
ECF Nos. 3-1, p. 4; 10-1; 10-2. The circuit court denied Boone's petition on January 31, 2014. ECF No. 1-3.
Thereafter, Boone filed an application for leave to appeal the denial of post-conviction relief to the Court of Special Appeals of Maryland, arguing that:
ECF No. 1-4. The Court of Special Appeals summarily denied Boone's application in an unreported opinion filed on July 18, 2014, with the mandate issuing on August 18, 2014. ECF No. 3-2.
By his Petition for writ of habeas corpus filed in this court, Boone claims that he is being detained in state custody illegally.
Preliminarily, Respondents contend that Boone's Petition was not timely filed. ECF No. 3. Respondents assert that Boone's judgment of conviction became final for direct appeal purposes on December 5, 2001, and thus, he had until December 5, 2002, to file a timely federal habeas corpus petition. Id. at p. 4. According to Respondents, because Boone did not file his Petition within that time frame, and because there were no properly filed state post-conviction or other collateral proceedings related to Boone's case pending in state court that would have tolled the limitations period, Boone's current Petition is time-barred under 28 U.S.C. § 2244(d). Id.
In replying to Respondents' assertion, Boone states that there is newly-discovered evidence that establishes his innocence in the form of a bloody handprint recovered from the crime scene, which detectives believed belonged to the person responsible for the crime and which did not match Boone's handprint. ECF No. 5, p. 3. Boone contends that the State withheld this evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and avers that he only became aware of its existence in 2010, while his petition for post-conviction relief was pending. ECF No. 16, p. 2.
A one-year statute of limitations applies to habeas petitions in non-capital cases for persons convicted in state court. See 28 U.S.C. § 2244(d)(1); Wall v. Kholi, 562 U.S. 545, 550 (2011). Section 2244(d)(1) provides that:
Pursuant to § 2244(d)(2), "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." The limitation period may also be subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000). As recognized by the Supreme Court in Pace v. DiGuglielmo, 544 U.S. 408, 416 n.8 (2005), the general limitation applies to the application as a whole, but certain subsections require a "claim-by-claim consideration." Subsection (D) is one of those.
Here, the date on which the factual predicate of the claims relying on Petitioner's discovery of the purportedly exculpatory DNA could have been discovered through the exercise of due diligence was in 2010, while Boone's petition for post-conviction relief was pending. Thus, the statute of limitations for filing a petition in this court raising those claims did not begin to run until after the judgment of the post-conviction court became final, on August 18, 2014, when the Court of Special Appeals's mandate denying Boone's application for leave to appeal the denial of post-conviction relief issued. See 28 U.S.C. § 2244(d)(1)-(2). Boone filed the instant Petition on February 2, 2015, within the one-year limitations period. As such, Boone's Petition is not time-barred as to those claims, and the court shall proceed to address the merits of them. On the other hand, the second aspect of his ineffective representation claim, namely that counsel failed to advise him of the nature and elements of the charge against him, does not depend on any newly discovered evidence and is time barred, unless Petitioner can overcome that bar based on actual innocence.
An application for writ of habeas corpus may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). The federal habeas statute at 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("Act"), 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). In order to obtain relief on his ineffectiveness claims, the petitioner must show that the adjudication of such claims at the state court level:
28 U.S.C. § 2254(d). The Act further provides that:
§ 2254(e)(1).
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's]." Williams v. Taylor, 529 U.S. 362, 405 (2000) (citation omitted). 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. 86, 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. (emphasis and citation omitted).
Boone claims that his trial counsel rendered ineffective assistance by failing to advise him of the existence of "exculpatory DNA evidence." ECF No. 1, pp. 5, 7. When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Representation is deficient if it falls below "an objective standard of reasonableness." Id. at 688. To satisfy this first prong, it must be demonstrated that counsel's performance was not "within the range of competence normally demanded of attorneys in criminal cases." Id. at 687 (citations omitted). The standard for assessing such competence is "highly deferential" and has a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 669. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. 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). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.
A showing of prejudice requires that 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. Strickland, 466 U.S. at 690-94. "The benchmark of an ineffective assistance claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686. A strong presumption of adequacy attaches to counsel's conduct, so strong in fact that a petitioner alleging ineffective assistance of counsel must show that the proceeding was rendered fundamentally unfair by counsel's affirmative omissions or errors. Id. at 696. Thus, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.
With regard to Boone's claim that trial counsel failed to inform him of exculpatory DNA evidence, the post-conviction court denied relief, stating:
ECF No. 1-3, pp. 13-14.
Boone has not shown how the adjudication of his post-conviction claims resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law; nor has he shown how it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented during the post-conviction hearing.
As to the palm print, Boone argues before this court that defense counsel could have discovered the evidence "by viewing the docket entries and seeing that a warrant was issued for [his] DNA." ECF No. 16, p. 7. However, nowhere in his petition for post-conviction relief, amended petition, and supplemental petition did he allege this information. At most, Boone asserted that a bloody palm print existed and that "trial counsel failed to discuss" it with him. As the post-conviction court correctly noted, Boone did not contend that trial counsel was aware of the palm print's existence. See ECF Nos. 10-1, 10-2; see also ECF No. 1-3, p. 14. During the post-conviction hearing, Boone acknowledged only that "the State had a duty to further investigate the case," in support of his prosecutorial misconduct claim. ECF No. 10-4, p. 22.
Based upon this record, the post-conviction court's ruling survives scrutiny under 28 U.S.C. § 2254(d). As previously stated, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. Here, the post-conviction court noted that trial counsel's performance was not deficient, and Boone has failed to satisfy the standard set forth in Strickland. Having reviewed the record in light of the deferential standard of review applicable to 28 U.S.C. § 2254 proceedings, the court concludes that the state post-conviction court's decision did not involve an unreasonable application of federal law or an unreasonable determination of the facts.
Boone also advances a claim of actual innocence. While a federal habeas petitioner may assert a claim of actual innocence to overcome a procedural bar to review, Schlup v. Delo, 513 U.S. 298, 326 (1995), or to overcome the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations, McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the Supreme Court has not resolved whether a non-capital prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence, Id. at 392. Regardless, Boone has failed to meet the "extraordinarily high" standard required for relief, either as a basis to overcome the limitations bar for part of his ineffective representation claim or as a standalone claim. See Herrera v. Collins, 506 U.S. 390, 417 (1993).
The United States Court of Appeals for the Fourth Circuit has stated:
Wilson v. Greene, 155 F.3d 396, 404-05 (4th Cir. 1998) (internal citations omitted). Because Boone entered an Alford plea, "to show `actual innocence,' he must show that he was factually innocent" of the charges against him. Lyons v. Lee, 316 F.3d 528, 533 n.5 (4th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 624 (1998) ("In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges.")).
To be credible, a claim of actual innocence must be based on reliable evidence not presented at trial. Schlup, 513 U.S. at 324. "Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Id. at 315-17. New evidence may consist of "exculpatory scientific evidence, credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical evidence." Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.1999) (citation omitted). The new evidence must be evaluated with any other admissible evidence of guilt. Wilson, 155 F.3d at 404-05. The new evidence must do more than undermine the finding of guilt; it must affirmatively demonstrate innocence. Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999).
Here, Boone has not presented any new evidence that demonstrates his innocence. He states that in 2010, he learned that exculpatory DNA evidence existed "in the form of a bloody handprint that was found at the scene of the crime and does not belong to either the Petitioner or the victims." ECF Nos. 1-4, p. 5; 16, p. 2. He further states that:
ECF No. 16, p. 2. Boone, however, has not presented a copy of the affidavit and warrant to support his allegations.
At most, before this court is an assertion that had Boone known about the existence of the bloody handprint, he would not have pleaded guilty and would have insisted on going to trial. That assertion, however, is insufficient "in the absence of a showing sufficient to satisfy Schlup's actual innocence gateway." Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir. 1995). It does not amount to "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Schlup, 513 U.S. at 316. Therefore, Boone has not made the requisite showing to warrant the relief he seeks.
The Petition for habeas corpus relief will be denied and this case dismissed. 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). When a district court rejects constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court dismisses a habeas petition on procedural grounds, a Certificate of Appealability will not issue unless the petitioner can demonstrate both "(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) (quoting Slack, 529 U.S. at 484). Because Boone fails to satisfy these standards, the court declines to issue a certificate of appealability. A separate order follows.
