PAUL W. GRIMM, District Judge.
Jamaal Garvin Alexis, currently confined at North Branch Correctional Institution in Cumberland, Maryland, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The Petition challenges Alexis's 2010 conviction in the Circuit Court for Prince George's County, Maryland for second-degree murder, use of a handgun in the commission of a crime of violence, armed robbery, two counts of theft, conspiracy to commit theft, and two counts of solicitation to obstruct justice. Id.; State Ct. Docket 9-11, 44-46, ECF No. 4-1. Respondents filed a Response in which they sought dismissal of the Petition on the basis of non-exhaustion, ECF No. 4, and Alexis filed a Reply, ECF No. 6.
On February 9, 2018, the Court provided Alexis an opportunity to to file a reply, explaining why his claims are not procedurally barred. ECF No. 7. Alexis sought an extension of time to file his reply (ECF No. 8), which was granted to and including April 30, 2018 (ECF No. 9), but Alexis did not file a reply. An evidentiary hearing is not necessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Loc. R. 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)). For the reasons that follow, Alexis's Petition is denied and dismissed, and a certificate of appealability shall not issue.
In October of 2010, Alexis was tried before a jury in two consolidated cases in the Circuit Court for Prince George's County. State Ct. Docket 7-8, 42-43. The facts at Alexis's trials, as summarized by the Court of Appeals of Maryland, are:
Alexis v. State, 87 A.3d 1243, 1246-48 (Md. 2014) (footnotes omitted); see also State Ct. Docket 4-9.
In Case Number CT08-0504X, Alexis was convicted of second-degree murder, armed robbery, use of a handgun in the commission of a crime of violence, conspiracy to commit theft, and two counts of theft. Alexis, 87 A.3d at 1245. In Case Number CT09-1040B, he was convicted of two counts of solicitation to obstruct justice. Id. On December 14, 2010, Alexis was sentenced to serve 140 years in prison. Id.
Alexis appealed his judgment of conviction to the Court of Special Appeals of Maryland, raising, through counsel, the following issues:
See Pet. 2, ECF No. 1; Appellant's State Ct. Br. 2, ECF No. 4-2. In a reported opinion filed on February 27, 2013, the Court of Special Appeals affirmed Alexis's convictions. See Alexis v. State, 61 A.3d 104 (Md. Ct. Spec. App. 2013).
Thereafter:
Appellant's State Ct. Reply Br. 4, ECF No. 4 (citations to exhibits omitted); see also Cert. Pet. (with counsel) 3, ECF No. 4-6; Cert. Pet. (pro se) 1, ECF No. 4-7; Alexis v. State, 68 A.3d 286 (Md. 2013); Pet'r's Resp. 2, ECF No. 6; Alexis, 87 A.3d 1243. Alexis did not file a petition for writ of certiorari to the United States Supreme Court, nor did he file any post-conviction petitions. Pet. 3.
In his Petition for Writ of Habeas Corpus filed in this Court, Alexis claims that he is being detained in state custody illegally
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). The standard is "difficult to meet," and requires federal courts to give state-court decisions the benefit of the doubt. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted); see also Virginia v. LeBlanc, ___ U.S. ___, ___, 137 S.Ct. 1726, 1728 (2017); White v. Woodall, ___ U.S.___, ___, 134 S.Ct. 1697, 1702 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011) (state prisoner must show state court ruling on claim 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")). 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).
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, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 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 reasonable 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. "[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) (citation omitted). Thus, "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 562 U.S. at 101 (emphasis 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). This is especially true where state courts have "resolved issues like witness credibility, which are `factual determinations' for purposes of Section 2254(e)(1)." Id. (citation omitted).
As a threshold matter, a petitioner seeking habeas relief in federal court must exhaust the remedies available in state court. 28 U.S.C. § 2254(b)(1) (2012); Rose v. Lundy, 455 U.S. 509, 510 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider the claim. See 28 U.S.C. § 2254(c). For a person convicted of a criminal offense in Maryland, this may be accomplished either on direct appeal or in post-conviction proceedings. To exhaust a claim on direct appeal in non-capital cases, a defendant must assert it in an appeal to the Court of Special Appeals of Maryland and then to the Court of Appeals of Maryland by way of a petition for a writ of certiorari. See Md. Code Ann., Cts. & Jud. Proc. §§ 12-201, 12-301 (West 2011). To exhaust a claim through post-conviction proceedings, it must be raised in a petition filed in the Circuit Court and in an application for leave to appeal to the Court of Special Appeals. Md. Code Ann., Crim. Proc. § 7-109. If the Court of Special Appeals denies the application, there is no further review available and the claim is exhausted. Md. Code Ann., Cts. & Jud. Proc. § 12-202.
Respondents assert that Alexis's Petition should be dismissed because he did not raise three of his constitutional claims on appeal and did not initiate state post-conviction proceedings, such that he has failed to exhaust state remedies as to those claims. Resp. 10. This Court provided Alexis with the opportunity to respond to the argument that his claims have not been exhausted. ECF No. 5. He did so, arguing that all of his claims had been exhausted and urging the Court not to dismiss his Petition. ECF No. 6.
I agree with Respondents and adopt their analysis:
Resp. 9-10 (footnote omitted).
Indeed, "[u]nder Rose [v. Lundy, 455 U.S. 509, 510, 522 (1982)], federal district courts must dismiss mixed habeas petitions." Pliler v. Ford, 542 U.S. 225, 230 (2004) (emphasis added). Because the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations for filing a habeas petition in federal court, 28 U.S.C. § 2244(d)(1),
Pliler, 542 U.S. at 230.
Certainly, there are exceptions in which "a federal district court has discretion to stay the mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition." Stanley v. Bishop, No. GLR-14-2028, 2017 WL 3189407, at *4 (D. Md. July 27, 2017) (citing Rhines v. Weber, 544 U.S. 269, 271-72, 276 (2005)). But, "stay and abeyance should be available only in `limited circumstances' . . . . when the district court determines (1) there was good cause for the petitioner's failure to exhaust his claims first in state court," (2) the unexhausted claims are not "plainly meritless," and (3) the petitioner did not "engage[] in abusive litigation tactics or intentional delay." Id. at *4-5 (quoting Rhines, 544 U.S. at 277).
Here, Petitioner, who insists that he did exhaust his claims, has not shown good cause for his actual failure to exhaust three of his four claims. Therefore, stay and abeyance is not appropriate. This mixed petition must be dismissed. See Pliler, 542 U.S. at 230; Rose, 455 U.S. at 510.
The Court could give Alexis the opportunity to voluntarily dismiss his unexhausted claims and avoid dismissal, so that he could pursue only his exhausted claim in this Court. Doing so would be futile, however, because that claim is without merit.
Alexis claims that his Sixth Amendment right to counsel was violated when the trial court disqualified his counsel of choice, Harry Tun, because Tun had previously represented Amadu Jalloh, one of the State's witnesses, in a separate matter. Pet. 5-6. Alexis notes that the trial court discharged Tun even though Tun "arranged for another lawyer to cross-examine [Jalloh]." Id.
The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The Supreme Court has recognized that
Wheat v. United States, 486 U.S. 153, 159 (1988) (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983); Jones v. Barnes, 463 U.S. 745 (1983)). Therefore, the constitutional right to choose one's own counsel is circumscribed in several important respects. Id. For example, a defendant may not "insist on the counsel of an attorney who has a previous or ongoing relationship with an opposing party, even when the opposing party is the Government." Id. Trial courts are thus
Id. at 163. "The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court." Id. at 164. The trial court is "free to disqualify counsel even if the defendant is willing to waive a conflict of interest because of the judiciary's `independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.'" United States v. Basham, 561 F.3d 302, 323 (4th Cir. 2009) (quoting Wheat, 486 U.S. at 160).
Prior to Alexis's trial, the State moved to disqualify Tun as defense counsel, asserting a conflict of interest between Tun's representation of Alexis and his prior representation of Jalloh, as Tun could use information he learned as Jalloh's attorney to question him in Alexis's trial. Alexis, 87 A.3d at 1249. On April 10, 2009, the trial court held a hearing to address various motions, including the motion to disqualify defense counsel. Id. at 1250. After hearing arguments from the parties, the court stated:
Id. at 1250-51.
The trial court did not abuse its discretion in disqualifying Tun. After hearing from both parties, the trial court determined that Tun's duty of loyalty to Jalloh continued. As both the Court of Appeals and Court of Special Appeals acknowledged, "there was a conflict of interest that could not be cured . . . [and] the risk of conflict outweighed [Alexis's] right to counsel of choice." Id. at 1257; Alexis, 61 A.3d at 121. "Moreover, the trial judge `was not required to adopt use of co-counsel as a solution where the court perceived that the risk of conflict would persist.'" Alexis, 87 A.3d at 1257 (quoting Alexis, 61 A.3d at 121 and citing United States v. Agosto, 675 F.2d 965, 974 (8th Cir.1982) as "explain[ing] why appointment of co-counsel [for the purpose of cross-examination of a witness] is not always a cure-all").
The state courts' findings survive scrutiny. The Court of Appeals's affirmance of the trial court's discharge of Tun was based on a reasonable application of clearly established federal law as determined by the Supreme Court. Wheat, 486 U.S. at 164 (stating that a trial court "must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict"); see also Basham, 561 F.3d at 323 (noting that the Fourth Circuit has previously "upheld a district court's decision to disqualify counsel who had previously represented a witness at his current client's trial, United States v. Williams, 81 F.3d 1321, 1324-25 (4th Cir. 1996), and reversed for abuse of discretion a district court's failure to disqualify counsel who had represented the prosecution's "star witness" in a prior trial, Hoffman v. Leeke, 903 F.2d 280, 288-90 (4th Cir.1990)).
Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant" in such cases. A certificate of appealability may issue only if the petitioner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Buck v. Davis, 137 S.Ct. 759, 773 (2017). 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 petition is denied on procedural grounds, the petitioner must show that reasonable jurists "would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and "whether the district court was correct in its procedural ruling." Id. at 478. Because Alexis has not made a substantial showing of a denial of his Constitutional rights and reasonable jurists would not debate the correctness of the procedural ruling in this case, which involved application of well-established case law, a certificate of appealability shall be denied. See 28 U.S.C. § 2253(c)(2).
For the foregoing reasons, the Court will deny Alexis's Petition for Writ of Habeas Corpus and decline to issue a Certificate of Appealability. A separate order follows.
