Lowe v. Green et al

Filing 16

MEMORANDUM filed. Signed by Judge James K. Bredar on 4/18/2013. (c/m 4/19/2013)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROBERT LOWE,

*
Petitioner,

v.

*

KATHLEEN GREEN, et al.,

CIVIL ACTION NO. JKB-11-2899

*

Respondents.

*
***
MEMORANDUM

Now before the court is a petition for habeas corpus relief filed by Robert Lowe (ECF
No. 1), respondents= answer thereto (ECF No. 10) and petitioner’s reply (ECF Nos. 13 & 14).
After review of these documents, the court finds no need for an evidentiary hearing. See Rule
8(a), Rules Governing Section 2254 Cases in the United States District Courts. For the reasons
to follow, the petition will be denied and dismissed with prejudice.
Factual and Procedural History
Petitioner was charged in the Circuit Court for Wicomico County with several drug
related offenses. On March 12, 2007, a hearing was held on petitioner’s motion to suppress
evidence seized by law enforcement authorities. ECF No. 10, Ex. 2. The motion was denied.
Id. On April 11, 2007, petitioner was tried before a jury. The facts developed at trial as
recounted by the Court of Appeals of Maryland follow:
At the jury trial held on April 11, 2007, Cpl. King’s testimony was
consistent with his testimony at the suppression hearing. The State
also called Trooper Elin and Sergeant Jason Yankalunas (“Sgt.
Yankalunas”) of the Salisbury Police Department to corroborate
the actions of the police at the scene of the arrest. Trooper Elin
testified that, upon his arrival, he saw Lowe exit the vehicle and
run. Trooper Elin chased Lowe on foot and apprehended him
behind the residence at 606 Truitt Street. Trooper Elin also
recovered the brown paper bag, along with seven individual bags
containing powder and crack cocaine.

Lowe and the passenger were placed under arrest. According to
Cpl. King, a search of Lowe incident to arrest yielded “$218.15 of
U.S. currency and a Motorola Nextel cell phone.” Further, the
contents of the bags were examined and found to be “174.7 grams
of crack cocaine and 69.1 grams of powder cocaine.” Sgt.
Yankalunas, who testified as an expert in narcotics valuation,
identification and investigation, and the common practices of users
and dealers of controlled dangerous substances, stated that the
street value of the crack cocaine seized was between $3,000 and
$6,000, while the value of the powder cocaine was between $2,000
and $6,000. Sgt. Yankalunas also opined that the amount of
cocaine seized was not consistent with personal consumption. No
one testified on behalf of Lowe either at the suppression hearing or
at the jury trial.

Id., Ex. 7, pp. 3-4.
Petitioner was convicted of possession of cocaine with intent to distribute, possession
with intent to distribute a large amount of cocaine, possession of cocaine, possession of crack
cocaine with the intent to distribute, and possession of crack cocaine. Id., Ex. 3, pp. 219-22. He
was sentenced, on May 18, 2007, to a 20-year term of incarceration, the first 10 years to be
served without parole. Id., Ex. 4, pp. 39-43.
Petitioner noted a timely appeal wherein he raised the following claims:
1.

Did the trial court err in denying petitioner’s motion to suppress? and

2.

Did the trial court err in sentencing petitioner as a subsequent offender?

Id., Ex. 5, p. 1.
Petitioner’s convictions were affirmed on March 17, 2009. Id., Ex. 7. Petitioner’s
request for further review of his Fourth Amendment claims by way of petition for writ of
certiorari filed in the Court of Appeals of Maryland was denied on June 19, 2009. Id., Ex. 8-10.
While petitioner’s direct appeal was pending, he instituted state post-conviction
proceedings. Id., Ex. 1 & 11. In a petition filed on June 12, 2007, he argued ineffective
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assistance of trial counsel for failing to (1) communicate with him adequately and devise an
effective strategy; (2) cross-examine witnesses properly; and (3) challenge the State’s evidence
through suppression hearings. Id., Ex. 11 & 12. On September 8, 2010, petitioner filed a motion
to correct illegal sentence. Id., Ex. 1. A hearing was held on October 7, 2010, to consider the
claims raised in both the post-conviction petition and motion to correct illegal sentence. On
November 23, 2010, the court entered an opinion denying relief. Id.
Petitioner, pro se, filed an application for leave to appeal the adverse ruling of the postconviction court. He alleged that (A) trial counsel was ineffective for failing to (1) prepare an
effective defense; (2) have the canine officer testify at the suppression hearing; (3) have all
evidence fingerprinted; and (4) investigate the relevant sentencing statute; (B) his sentence was
illegal because he was sentenced under the wrong statute; and (C) the post-conviction court erred
by not replacing the prosecutor who sent him a disparaging letter. Id., Ex. 1 & 13. Petitioner
failed to pay the filing fee. He was notified by the court of this deficiency but failed to cure it
and, for that reason, the court struck petitioner’s application for leave to appeal. Id., Ex. 1 & 14.
Petitioner did not file a notice of appeal in regard to the denial of his motion to correct an illegal
sentence. Id., Ex. 1.
In the instant petition, petitioner maintains that (A) he was subjected to an unlawful
search and seizure; (B) his sentence is illegal; (C) trial counsel was ineffective for failing to (1)
communicate with him properly; (2) have all physical evidence fingerprinted; (3) subpoena the
canine officer to testify at the suppression hearing; and (4) be informed of the law with regard to

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sentencing; (D) the prosecutor engaged in misconduct by sending him a disparaging letter; and
(E) the canine officer stole property from petitioner.1 ECF Nos. 1 & 4.
Threshold Considerations
Timeliness & Exhaustion of State Remedies
Respondents do not contend, and the court does not find, that the petition was filed
outside the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). Further, petitioner
no longer has any direct review or collateral review remedies available to him under state law
with respect to the claims raised in this court. His claims are timely and deemed exhausted for
the purpose of federal habeas corpus review.
Procedural Default
Before a petitioner may seek habeas relief in federal court, he must exhaust each claim
presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy,
455 U.S. 509, 521 (1982). This exhaustion requirement is satisfied by seeking review of the
claim in the highest state court with jurisdiction to consider the claim. See O=Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. § 2254(b) and (c). In Maryland, this may be
accomplished by raising certain claims on direct appeal and with other claims by way of postconviction proceedings. Exhaustion is not required if at the time a federal habeas corpus petition
is filed the Petitioner has no available state remedy. See Teague v. Lane, 489 U.S. 288, 297-98
(1989).
Where a petitioner has failed to present a claim to the highest state court with jurisdiction
to hear it, whether it be by failing to raise the claim in post-conviction proceedings or on direct
1

In his motion to amend petition which was granted by the court (ECF Nos. 12 & 13), petitioner appears to have
abandoned the claim regarding the stolen property. He indicates his claims are: “1. Fourth Amendment Violation; 2.
Confined Under an Illegal Sentence; 3. Ineffective Assistance of Counsel; and 4. Prosecutorial Misconduct.” Id.

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appeal or by failing to timely note an appeal, the procedural default doctrine applies. See
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v.
Carrier, 477 U.S. 478, 491 (1986) (failure to raise claim on direct appeal); Murch v. Mottram,
409 U.S. 41, 46 (1972) (failure to raise claim during post-conviction); Bradley v. Davis, 551 F.
Supp. 479, 481 (D. Md. 1982) (failure to seek leave to appeal denial of post-conviction relief).
The procedural default doctrine bars consideration of a claim in a petition for habeas
corpus in the absence of a showing of cause and prejudice or actual innocence. See Murray, 477
U.S. at 495; Wainwright v. Sykes, 433 U.S. 72, 86 (1977). Even where a petitioner fails to show
cause and prejudice for a procedural default a court must still consider whether it should reach
the merits of the petitioner=s claims in order to prevent a fundamental miscarriage of justice. See
Schlup v. Delo, 513 U.S. 298, 314 (1995); Bostick v. Stevenson, 589 F.3d 160, 164 (4th Cir.
2009). The miscarriage of justice standard is directly linked to innocence. Schlup, 513 U.S. at
320.

Innocence is not an independent claim; rather, it is the "gateway" through which a

petitioner must pass before a court may consider constitutional claims which are defaulted. Id. at
315. The miscarriage of justice exception applies where a petitioner shows that "a constitutional
violation has probably resulted in the conviction of one who is actually innocent." Murray, 477
U.S. at 496.
Respondents argue that all of petitioner’s claims, save his Fourth Amendment claim, are
procedurally defaulted. The court agrees.
On direct appeal, petitioner alleged his sentence was illegally enhanced. The claim was
rejected by the Maryland Court of Special Appeals; however, petitioner did not seek review of
that court’s determination when he filed a petition for writ of certiorari in the Maryland Court of
Appeals. Id., Exs. 5-10.
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In state post-conviction proceedings, petitioner again challenged the legality of his
sentence and raised the previously set forth claims of ineffective assistance of counsel. All of the
claims were rejected by the post-conviction court. Petitioner filed a timely application for leave
to appeal, but did not comply with the filing fee requirement, and the application was struck. As
such, these claims were not properly raised in the Court of Special Appeals and are deemed
procedurally defaulted. Further, the denial of petitioner’s motion to correct an illegal sentence
was reviewable by filing a notice of appeal, which petitioner did not file. Id., Ex. 1. This claim
was likewise not raised in all appropriate state courts and is deemed procedurally defaulted.
Petitioner’s claims that the canine officer stole property and that the prosecutor engaged
in misconduct were not properly presented to the state court for review. Petitioner does not have
any meaningful state court review available to him. ECF No. 10. As such, these claims are also
deemed procedurally defaulted. See Mackall v. Angelone, 131 F.3d 442, 449-50 (4th Cir. 1997)
(en banc) (deeming procedurally defaulted a claim that was not presented to state appellate court,
where presentation of claim in state court would now be fruitless).
Petitioner was given an opportunity to explain why these claims should not be
procedurally defaulted.

ECF No. 11. Petitioner has responded. ECF No. 13.

Petitioner

asserts he has little or no knowledge of the law and attempted to exhaust his claims. Id. The
court concludes that petitioner has failed to demonstrate cause and prejudice with regard to
exhaustion of these claims. Furthermore, actual innocence is not apparent from the record. The
grounds are defaulted and shall not be addressed on the merits.

Alternatively, even assuming

petitioner’s claims were properly before this court, the detailed reasoning of the state appellate

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and post-conviction courts, which is supported legally and factually, precludes granting relief by
way of federal habeas corpus review.2
Standard of Review for Petitioner’s Remaining Claim
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 sets forth a Ahighly 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 (2005). This
standard is not only “highly deferential” but also “difficult to meet.” Cullen v. Pinholster, 131 S.
Ct. 1388, 1398 (2011); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
A federal court may not grant a writ of habeas corpus unless the state=s adjudication on
the merits 1) Aresulted 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) Aresulted 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 [that of 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 ‘fair-minded

2

The court notes that the claim regarding illegal sentencing exclusively concerned state law and is not cognizable
on federal habeas review.

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jurists could disagree’ on the correctness of the state court's decision.” Harrington, 131 S. Ct. at
786 (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).
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, 130 S. Ct. 841, 849 (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] 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, 130 S. Ct. 1855, 1862 (2010).
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. at 379.
Petitioner maintains that his rights under the Fourth Amendment were violated.
suppression hearing was held on petitioner’s claim.

The facts adduced at the hearing as

recounted by the Court of Special Appeals on petitioner’s direct appeal are as follows:
8

A

At the suppression hearing held on March 12, 2007, Corporal Jason King (“Cpl.
King”) of the Salisbury Police Department testified on behalf of the State. Cpl.
King stated that, on May 4, 2006, at approximately 7:30 p.m., he was in an
unmarked patrol vehicle conducting a routine patrol in the area of Truitt Street
when he observed a four-door Ford vehicle parked in front of the residence at 516
Truitt Street. According to Cpl. King, the vehicle was stopped in the roadway for
a couple of minutes, blocking the northbound lane of Truitt Street — a two-lane
road that has no shoulder for stopping —although 516 Truitt Street had a vacant
driveway. A person then came out of the house, entered the vehicle, and sat in the
front seat on the passenger side.
Then, the vehicle pulled into the driveway of 531 Truitt Street. Cpl. King noticed
a “no trespassing” sign on the door of the residence and decided to conduct a
traffic stop regarding both the trespassing and the traffic violation.
Upon approaching the vehicle, Cpl. King asked the driver, Lowe, for his license
and registration. Cpl. King testified that he became very suspicious of the car’s
passengers because: (1) Lowe had his license and paperwork readily available; (2)
the vehicle was rented in Philadelphia, Pennsylvania; (3) the vehicle’s paperwork
had a “significant cash deposit” listed in the amount of $1,000; (4) the vehicle
was not rented under Lowe’s name, but listed Lowe as a secondary driver and the
renter was not present; and (5) Lowe’s carotid artery was “pounding Profusely”
although “[t]he temperature outside was about 72 degrees.”
Cpl. King returned to his patrol car, where he called for a K-9 unit, ran the
standard checks on Lowe’s driver’s license, inspected the car’s rental agreement,
and wrote out a traffic warning. According to Cpl. King, it normally takes him
approximately “six to eight minutes, ten upwards,” to write a warning, depending
on the speed of dispatch and how long it takes to get the record check completed.
The K-9 officer, Trooper Neil Elin (“Trooper Elin”), arrived as Cpl. King was reapproaching the vehicle to issue Lowe the warning. As Trooper Elin was getting
out of his car, Cpl. King saw Lowe and the passenger look over their shoulders
and throw something into the center console compartment. Cpl. King believed
that they did this in reaction to seeing the K-9 unit’s arrival. Upon being asked
what was placed in the center console, Lowe “opened the console back up,
grabbed a brown paper bag and ran from the car.”
ECF No. 10, Ex. 8, pp. 1-3
The trial court denied petitioner’s motion to suppress, finding that there was a basis for
conducting a traffic stop and that the stop was not extended in order to allow time for the canine

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unit to arrive. Id. Ex. 2. The Court of Special Appeals likewise found that the traffic stop was
lawful and was not improperly prolonged to allow for the canine unit to arrive. Id., Ex. 7.
The law concerning Fourth Amendment claims in federal habeas corpus proceedings is
well established and familiar to this court. "[W]here the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or
seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes
omitted).
[A] district court, when faced with allegations presenting Fourth
Amendment claims, should, under the rule in Stone v. Powell,
supra, first inquire as to whether or not the petitioner was afforded
an opportunity to raise his Fourth Amendment claims under the
then existing state practice. This may be determined, at least in
this Circuit, from the relevant state statutes, the applicable state
court decisions, and from judicial notice of state practice by the
district court. Second, . . . when the district court has made the
'opportunity' inquiry, it need not inquire further into the merits of
the petitioner's case, when applying Stone v. Powell, supra, unless
the prisoner alleges something to indicate that his opportunity for a
full and fair litigation of his Fourth Amendment claim or claims
was in some way impaired.
Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir. 1978); see also Mueller v. Angelone, 181 F.3d
557, 570 n.8 (4th Cir. 1999) (recognizing continued application of Stone post-AEDPA);
Grimsley v. Dodson, 696 F.2d 303, 304 (4th Cir.1982) (AStone v. Powell marked, for most
practical purposes, the end of federal court reconsideration of Fourth Amendment claims by way
of habeas corpus petitions where the petitioner has the opportunity to litigate those claims in
state court.@).
The record shows that petitioner was provided with the opportunity to fully litigate his
Fourth Amendment claims. Petitioner challenged the validity of the search and seizure by filing,
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through counsel, a motion to suppress. An evidentiary hearing was held in the circuit court and
the motion was denied. Petitioner raised the same issue in his direct appeal to the Court of
Special Appeals which, after thoroughly examining the facts surrounding the seizure of the
evidence, as well as the legal reasoning of the circuit court, upheld the trial court=s denial of
petitioner=s motion to suppress. Clearly, petitioner had a full and fair opportunity to litigate the
legality of the search in the Maryland courts.
Conclusion
The instant petition for habeas corpus relief will be denied and this case dismissed by
separate Order. When a district court dismisses a habeas petition, a certificate of appealability
may issue Aonly if the applicant has made a substantial showing of the denial of a constitutional
right.@

28 U.S.C. § 2253(c)(2).

A prisoner satisfies this standard by demonstrating “that

reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004); (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Miller-el v. Cockrell, 537 U.S. 322, 336 (2003) citations omitted. Petitioner
does not satisfy this standard, and the court declines to issue a certificate of appealability.

Dated this 18th day of April, 2013

BY THE COURT:

/s/
James K. Bredar
United States District Judge

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______