Horner v. Shearin et al

Filing 167

MEMORANDUM. Signed by Chief Judge James K. Bredar on 4/9/2020. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MATTHEW JAMES HORNER,

*

Petitioner,

*

v.

*

WARDEN BOBBY P. SHEARIN, et
al.,

*

Respondents.
*

*

CIVIL NO. JKB-12-2582

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM
On February 5, 2020, this Court granted Petitioner Matthew Horner’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (2/5/20 Order, ECF No. 151.) In its analysis, the
Court concluded Horner was entitled to the writ because during his trial, his constitutional rights
under Patton v. United States, 281 U.S. 276 (1930) and Brady v. Maryland, 373 U.S. 83 (1963)
had been violated. (Mem. Op. at 40, ECF No. 150.) The Court directed Respondents (“the State”)
to release Horner by April 5, 2020 unless the United States Court of Appeals for the Fourth Circuit
granted a superseding stay of execution or the State elected to retry Horner and obtained from
Maryland state courts a decision denying him bail and/or release pending retrial. (2/5/20 Order.)
Three weeks later, on February 26, 2020, the State filed a motion to alter or amend the
judgment (Mot. Amend, ECF No. 154), a motion to stay the judgment pending appeal (Mot. Stay,
ECF No. 153), and a motion to substitute the public officer respondent (Mot. Substitute, ECF No.
152). Two and a half weeks later, on March 15, 2020, the State also filed a motion to include
Horner’s sentencing transcript in the record for its stay motion. (Mot. Include Tr., ECF No. 159.)

Before the Court could rule on these motions, the State filed a notice of appeal on March
27, 2020.1 (Not. Appeal, ECF No. 162.) Because the deadline by which the State was required to
comply with the Court’s order was approaching and the Court was uncertain as to the scope of its
jurisdiction in light of the notice of appeal, the Court extended the deadline by which the State was
required to comply with the Court’s order by an additional 60 days. (4/1/20 Order, ECF No. 166.)
The State then moved to withdraw without prejudice its motion before the Fourth Circuit, which
the Fourth Circuit granted. (4CA ECF Nos. 7, 8, U.S.C.A. Case No. 20-6426.) The Court now
addresses the State’s four pending motions.
The Court will deny the State’s motion to alter or amend the judgment, grant the motion to
include Horner’s sentencing transcript, deny the motion to stay the judgment, and grant the motion
to substitute the public officer respondent.
I.

Motion to Alter or Amend
The State makes two requests in its motion to amend. First, it asks the Court to decide

Horner’s claims under Strickland v. Washington, 466 U.S. 668 (1984), which the Court declined
to do in its prior opinion. (Mot. Amend at 3–4.) Second, it asks the Court to strike the third and
fourth numbered paragraphs in its order granting Horner a writ of habeas corpus; the State contends
the instructions contained in these two paragraphs exceed the bounds of the Court’s authority. (Id.
at 4–5.) Horner opposes the motion. (Opp’n Mot. Amend, ECF No. 155.)
A. The Strickland Claims
In its February 5, 2020 decision, the Court declined to consider Horner’s Strickland claims
on the merits and instead denied the claims without prejudice. (Mem. Op. at 39.) The Court’s

1

The notice of appeal stated that the appeal was “from the order entered on February 5, 2020, conditionally
granting a writ of habeas corpus to Petitioner.” (Not. Appeal at 1, ECF No. 162.) It was not until several days later
when the State’s filings were posted on the Fourth Circuit’s docket that it became apparent the State was seeking an
emergency stay of the Court’s judgment. (4CA ECF No. 1, U.S.C.A. Case No. 20-6426.)

2

reasoning was that it was not necessary to analyze the Strickland claims because the Court had
already concluded that Horner was entitled to relief under both Patton and Brady. (Id.) The State
contends this was clear error because the denial of the Strickland claims without prejudice raised
“a substantial question [as to] whether the Court’s February 5, 2020 order [was] a final judgment,
and therefore appealable.” (Mot. Amend at 3.) The State further argues that even if declining to
address the Strickland claims on the merits was not a clear error of law, it did result in “a manifest
injustice” that should be remedied by the Court now ruling on those claims. (Id. at 13.)
First, it was not clear error for the Court to decline to rule on Horner’s Strickland claims:
the Court’s order granting the writ of habeas corpus was a final appealable order regardless of
whether the Court addressed the Strickland claims on the merits. The parties heavily dispute
whether the Fourth Circuit’s decision in GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170 (4th
Cir. 2007) authorized the approach the Court took here or whether the Fourth Circuit has been
silent on this issue. (See Opp’n Mot. Amend at 4–6; Reply Mot. Amend at 3–6, ECF No. 158.)
But even if the Fourth Circuit has not directly addressed this issue, as the State contends, other
circuits overwhelmingly have sanctioned the approach the Court took here. As Horner points out,
the First, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have all held that “[a]n
order granting a petition for a writ of habeas corpus is ordinarily considered a final judgment, even
if the district court does not address all of the petitioner’s claims.” Sprosty v. Buchler, 79 F.3d
635, 645 (7th Cir. 1996); accord Burks v. Kelley, 881 F.3d 663, 666 (8th Cir. 2018); Swanson v.
DeSantis, 606 F.3d 829, 833 (6th Cir. 2010); Foxworth v. Maloney, 515 F.3d 1, 3 (1st Cir. 2008);
Blazak v. Ricketts, 971 F.2d 1408, 1410–12 (9th Cir. 1992) (per curiam); Washington v. Champion,
52 F.3d 339, at *1 (10th Cir. 1995) (unpublished); Young v. Herring, 777 F.2d 198, 202 (5th Cir.
1985); Blake v. Kemp, 758 F.2d 523, 525 (11th Cir. 1985). The State concedes this line of authority

3

exists but contends there is a “circuit split” and cites two cases that it alleges stand for the opposite
proposition: Broussard v. Lippman, 643 F.2d 1131 (5th Cir. 1981) and Stewart v. Bishop, 403 F.2d
674 (8th Cir. 1968). (Mot. Stay at 10.) Neither of these cases is on point, however, as the reason
the orders in these cases were not final was because the district courts did not actually take the
final step of granting habeas relief, which the Court did do here. Consistent with the clear authority
on point, the Court concludes it was not clear error to decline to rule on Horner’s Strickland claims
after concluding Horner was entitled to the writ on two other grounds.
As for whether the Court’s decision not to address the Strickland claims resulted in a
“manifest injustice,” even if was not a clear error of law, the Court again agrees with Horner. The
State is correct that some courts have said it is best practices for a district court to address every
claim in a habeas petition to avoid the potential for piecemeal litigation. See Clisby v. Jones, 960
F.2d 925, 938 (11th Cir. 1992). But the Court believes piecemeal litigation is unlikely here. The
Court has already concluded that Horner is entitled to relief for two independent reasons. Given
the facts in this case, the Court believes reversal on either ground is unlikely, but reversal on both
grounds even more so. And even in the unlikely event the Court is reversed on both grounds, it
sees no basis for concluding the State would be subject to a “manifest injustice” if it had to
participate in further litigation related to the Strickland claims.
In sum, it was not “clear error” or a “manifest injustice” for the Court not to rule on
Horner’s Strickland claims. It declines to amend its judgment by ruling on those claims now.
B. The Third and Fourth Paragraphs of the Court’s Order
In the Court’s February 5, 2020 order, the Court took several actions, including: granting
Horner’s petition for a writ of habeas corpus (paragraph two), vacating Horner’s conviction and
sentence (paragraph three), and stating that within 60 days, “the State shall afford Matthew James

4

Horner the opportunity, after he has been fully and properly advised by counsel, to make an
election as to whether to have a jury trial or a court trial for the charges against him” (paragraph
four). (2/5/20 Order.)
The State contends that the Court’s instructions in paragraphs three and four were too
prescriptive and violated principles of federalism. (Mot. Amend at 14–18.) The State asserts this
amounted to a clear error of law and asks the Court to strike paragraphs three and four from the
order. (Id. at 18.)
The Court will not strike these paragraphs. The State’s general description of the law is
correct: in the habeas context, principles of federalism are implicated, and the extent to which a
federal district court can prescribe actions that should be taken by a state court is limited. See Fay
v. Noia, 372 U.S. 391, 431 (1963), overruled in part by Wainwright v. Sykes, 433 U.S. 72 (1977)
(A federal court “cannot revise the state court judgment; it can act only on the body of the
petitioner.”) For example, federal courts can exceed their authority if they attempt to commute a
sentence, see Duhamel v. Collins, 955 F.2d 962, 968 (5th Cir. 1992), or order a state court to
reinstate an appeal, see Barry v. Brower, 864 F.2d 294, 301 (3d Cir. 1988).
But the Court did not exceed its bounds here. The Fourth Circuit has repeatedly upheld
orders from district courts that, as is the case here, vacate a conviction after granting a habeas
petition. See, e.g., Wolfe v. Clarke, 691 F.3d 410, 426 (4th Cir. 2012); see also Woodall v.
Pettibone, 465 F.2d 49, 53 (4th Cir. 1972) (explaining that juveniles who had been
unconstitutionally tried as adults in Maryland state courts had “a right to have their convictions
vacated and declared null and void” by a federal district court). It has similarly upheld orders from
district courts that, as is the case here, vacate a sentence after granting a habeas petition. See, e.g.,
Bennett v. Stirling, 170 F. Supp. 3d 851, 855 (D.S.C.), aff’d, 842 F.3d 319 (4th Cir. 2016). Absent

5

any authority that the Court exceeded its power in vacating Horner’s conviction and sentence, the
Court will not strike paragraph three from the order.
The Court will not strike paragraph four from the order either.2 This paragraph merely
provides that the state court must correct the constitutional deficiency the Court identified: that is,
the State, if it elects to retry Horner, must give him the opportunity to make an election as to
whether to have a jury trial. (2/5/20 Order.) To the extent this statement was prescriptive, it was
merely prescribing that retrial proceedings be carried out “in a way that comports with
constitutional dictates.” See Henderson v. Frank, 155 F.3d 159, 168 (3d Cir. 1998). Such an
approach is consistent with the boundaries of federalism. See Hilton v. Braunskill, 481 U.S. 770,
775 (1987) (“[F]ederal courts may delay the release of a successful habeas petitioner in order to
provide the State an opportunity to correct the constitutional violation found by the court.”)
(emphasis added).
In sum, the Court will not strike paragraphs three or four from the February 5, 2020 order.
Because the Court also declines the State’s request to adjudicate Horner’s Strickland claims on the
merits, it will deny the State’s motion to amend.3
II.

Motion to Stay & Motion to Include Sentencing Transcript
On February 26, 2020, the State moved to stay the Court’s judgment pending appeal.4

(Mot. Stay at 1.) In the motion, the State made several references to the transcript of Horner’s
sentencing. (Id. at 11–13.) Several weeks later, the State realized that the sentencing transcript it

2

In saying here that the Court will not strike paragraph four, the Court means that it will not strike the substance
of this paragraph; the Court has already extended the deadline referenced in this paragraph in a separate order. (4/1/20
Order.)
3
The Court recognizes that the ongoing Covid-19 pandemic has significantly reduced operations in state and
federal courts. The State has not indicated, however, that the challenges associated with the pandemic will make it
impossible to comply with the timeline laid out in the Court’s order. Unless the State indicates otherwise, the Court
will continue to assume that the pandemic does not pose such a barrier.
4
The State had not yet filed an appeal at the time it filed the motion to stay but indicated that it would file an
appeal after the Court addressed its motion to amend the judgment. (Mot. Stay at 2 n.2.)

6

had referenced was not in the record and moved to include it for the purpose of the stay motion.
(Mot. Include Tr. at 2.) Horner opposes the motion to include the sentencing transcript (Opp’n
Mot. Include Tr., ECF No. 164) and the motion to stay the judgment (Opp’n Mot. Stay, ECF No.
156).
The Court will consider the sentencing transcript. Under Habeas Rule 5(c), a respondent
“must attach” to its answer to a petition “parts of the transcript that the respondent considers
relevant.” Rules Governing § 2254 Cases, Rule 5, 28 U.S.C.A. foll. § 2254. The parties agree
that the State did not comply with this rule with respect to the sentencing transcript. But the text
of the rule does not explicitly provide the consequences of violating it and neither party cites any
authority that sheds light on this question.
Because the consequences of violating this rule are unclear, the Court will consider the
transcript, but, consistent with the State’s request, will only consider it with respect to the State’s
stay motion. Horner will not be prejudiced by this decision because, as explained below, the
contents of the transcript will not ultimately affect the Court’s decision with respect to the stay
motion.
Having concluded the Court will consider the transcript, the Court now turns to the motion
to stay itself. If a court grants a writ of habeas corpus and the government appeals, Federal Rule
of Appellate Procedure 23(c) provides that “[w]hile a decision ordering the release of a prisoner is
under review, the prisoner must . . . be released” unless a court orders otherwise. There is, in other
words, a “presumption” that when a court grants a writ of habeas corpus, the prisoner will be
released. Hilton, 481 U.S. at 774.
This presumption, however, “can be overcome if the traditional factors regulating the
issuance of a stay weigh in favor of granting a stay.” O’Brien v. O’Laughlin, 557 U.S. 1301, 1302

7

(2009). These factors are: “(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Hilton, 481 U.S. at 776. Courts also consider
several habeas-specific factors: whether the petitioner is a flight risk, whether the petitioner
will pose a threat to the public upon release, and the State’s interest in rehabilitation and
maintaining custody pending appeal. Id. at 777.
Having concluded Horner is entitled to the writ, the Court now considers whether these
factors are enough to overcome the “presumption” that Horner should be released. See id. at 774.
The Court considers the relevant factors in turn.
A. The Likelihood of Success on Appeal
Where a state can show that it has a “strong likelihood of success on appeal,” or even can
establish a “substantial case on the merits,” this factor can weigh in favor of granting a stay. Id. at
778. “Where the State’s showing on the merits falls below this level, the preference for release
should control.” Id.
The State has not shown it has a strong likelihood of succeeding on appeal nor has it made
a substantial case on the merits. The State identifies three primary reasons it is likely to prevail on
appeal: (1) the Court’s use of Patton was unprecedented and debatable, (2) the Court’s proceduraldefault analyses misapprehended Maryland’s postconviction law, and (3) the Court’s Brady
analyses did not address the postconviction court’s factual findings. (Mot. Stay at 5–8.) Having
reviewed the State’s arguments underlying each of these three contentions, the Court does not
discern any arguments that were not already addressed in the Court’s prior opinion. For the reasons
stated in that opinion, the Court does not believe these contentions have merit.

8

The Court does, however, note the State’s overarching point: states are generally wellpositioned when appealing a district court’s issuance of a writ of habeas corpus because district
courts must apply a highly deferential standard to state-court rulings, and appellate courts then
review a district court’s conclusions, including the application of that deference, de novo. (Id. at
4–5.) But any structural advantage the State has is limited by the fact that the Court granted the
writ here for two independent reasons. Accordingly, for the State to prevail on appeal, the
appellate court will have to reverse this Court on two different grounds. This diminishes the State’s
ability to establish a “substantial case on the merits.” See Franklin v. Duncan, 891 F. Supp. 516,
520 (N.D. Cal. 1995) (concluding the state could not establish a “substantial case on the merits”
even though it had a “plausible appellate position” on one ground because the state lacked plausible
appellate positions on the other grounds on which the court granted relief).
For these reasons, the Court concludes this factor weighs against granting a stay. Where a
state cannot make the requisite showing with respect to this factor, “the preference for release
should control.” Hilton, 481 U.S. at 778. The Court still considers the remaining factors in the
stay analysis, but it notes the importance of this factor in its eventual decision.
B. Irreparable Harm to the State
The Court discerns two arguments from the State as to why it will be irreparably harmed
if the judgement is not stayed: (1) Horner is a flight risk, so if he is released and flees, the State’s
ability to preserve his conviction or obtain a new conviction would be irreparably harmed,5 and
(2) if the judgment is not stayed, the State may not be able to resolve its appeal before a retrial is
completed, which would render its appeal moot. (Mot. Stay at 9–10, 13.)

5

The State did not address flight risk in its discussion of irreparable harm (and instead addressed it as a
separate factor), but because many courts consider it relevant to the irreparable harm analysis, the Court will discuss
it here. See, e.g., Boyles v. Weber, Civ. No. LLP-04-4134, 2007 WL 2684872, at *2 (D.S.D. Sept. 7, 2007).

9

With respect to the State’s first argument, there is no reliable evidence before the Court
that Horner poses a flight risk. The only evidence the State offers to support its position is Richard
Shaffer’s statement from fifteen years ago that while Horner was in jail pending trial, Horner told
Shaffer that he would abscond to Mexico if he were to obtain pretrial release. (Id. at 13 (citing
Sentencing Tr. at 26, ECF No. 160.)) Shaffer’s testimony has changed numerous times during the
course of this case, and Shaffer at one point stated in a sworn affidavit that he manufactured
incriminating information about Horner in order to obtain a lighter sentence in his own case. (See
ECF No. 51.) Because the State offers no evidence beyond Shaffer’s problematic testimony, there
is not a sufficient basis on which to conclude Horner poses a flight risk.
The Court agrees, however, that it is possible (though not necessarily likely) that retrial
proceedings could be completed before the State’s appeal is resolved. It also recognizes that the
State has an interest in maintaining custody pending appeal. In general, a state’s interest in
maintaining custody “will be strongest where the remaining portion of the [petitioner’s] sentence
to be served is long, and weakest where there is little of the sentence remaining to be served.”
Hilton, 481 U.S. at 777. Here, Horner has served approximately fourteen years of a life sentence.
The State, therefore, has a strong interest in maintaining custody.
Accordingly, even though there is not enough evidence to find that Horner is a flight risk,
the Court concludes this factor weighs in favor of granting a stay. The weight that the Court gives
this factor is limited, however, by the Court’s conclusion that the State has not made a substantial
case on the merits.
C. Substantial Injury to Horner
“The interest of the habeas petitioner in release pending appeal [is] always substantial . . .”
Hilton, 481 U.S. at 777. This holds true here; Horner has served almost fourteen years on a

10

conviction with at least two underlying constitutional violations. He would be substantially injured
if the judgment is stayed.
D. The Public Interest
The State contends that granting a stay is in the public interest because if Horner is released,
he poses a danger to the public, particularly his former wife, LaRaine Smith. (Mot. Stay at 11–
13.) There is not, however, sufficient reliable evidence in the record to support this conclusion.
First, several of the State’s arguments with respect to this factor rely on the testimony of Shaffer
and Smith. (Id.) As explained in the Court’s prior opinion, these witnesses have changed their
testimony numerous times in recent years and have alternatively recanted and un-recanted their
testimony. (See Mem. Op. 24–26, 30–37.) The Court declines to rely on their testimony in
deciding whether Horner poses a danger to the public or to Smith. For similar reasons, the Court
will not rely on Horner’s conviction for attempted murder: because his conviction was based
largely on the testimony of Shaffer and Smith—and no physical or forensic evidence tied Horner
to the attempted murder—the Court does not deem his conviction a reliable metric of his
dangerousness.
The Court is also not convinced that Horner’s prior two convictions for assault establish
that he is a present danger. According to the State, these convictions occurred in the early 1990s
and were in “unrelated cases,” which the Court assumes means they did not involve Smith. (Mot.
Stay at 11; Sentencing Tr. at 30.) Given the age of these convictions (almost 30 years) and the
lack of involvement of Smith, the Court does not believe they are reliable indicators that Horner
poses a present danger to her or to other members of the public.
The Court takes the State’s assertions about the history of domestic violence in Horner and
Smith’s marriage very seriously. (Mot. Stay at 12.) Indeed, law enforcement has corroborated

11

Smith’s accounts of domestic violence in the marriage. (See ECF No. 43-8 at 13.) But even if
incidents of domestic violence did occur years ago, such incidents do not necessarily bar a
petitioner from being released. See Franklin, 891 F. Supp. at 522 (explaining that testimony that
petitioner had abused his family members more than 20 years earlier was not a good indicator of
petitioner’s present dangerousness).
In short, the relevant inquiry requires the Court to consider whether Horner poses a present
danger to the public if released, not whether he posed a danger to the public in the past. See Hilton,
481 U.S. at 777. Here, the State does not allege that Horner has made any threats to Smith during
the fourteen years he has been in prison, or that he has committed any acts of violence during the
time he has been incarcerated.6 Absent such evidence, there is not a sufficient basis on which the
Court can conclude that Horner poses a present danger to his wife or other members of the public.
Therefore, this factor weighs against a stay. If the State elects to retry Horner, a state court
will of course be free at a bail hearing to revisit the question of whether Horner should be released,
and if so, whether certain conditions of release are appropriate to ensure Smith’s safety.
In sum, the first, third, and fourth factors weigh against a stay, and the second factor weighs
in favor of a stay. After weighing the relative importance of each factor, and the “presumption”
that a successful habeas petitioner should be released pending appeal, Hilton, 481 U.S. at 774, the
Court concludes a stay is not warranted and it will deny the State’s motion.
III.

Motion for Automatic Substitution of Public-Officer Respondent

6

The State does contend that Horner attempted “before and after being arrested on the attempted-murder
charge . . . to steal [Smith’s] laptop, swipe her login credentials, access her email, and surveil her communications.”
(Mot. Stay at 12.) The State argues this conduct revealed Horner’s intent to maintain “access and influence over
[Smith] even while he was in prison.” (Id.) Even if the underlying factual contentions are true, the Court is not
convinced that Horner’s conduct at the time of his arrest is proof that he presently poses a danger to Smith.

12

The State asserts that in the time since the filing of Horner’s second amended petition,
responsibility for the facility in which Horner resides has shifted from Warden Bobby P. Shearin
to Acting Warden Jeffrey Nines. (Mot. Substitute at 1.) The State has moved to substitute the
primary respondent in this case from Warden Shearin to Acting Warden Nines and to reform the
case caption accordingly. (Id. at 1–2.) See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)
(explaining that in a traditional habeas case, “the proper respondent is the warden of the facility
where the prisoner is being held”). Horner does not oppose the motion. (ECF No. 157.) The
Court will grant the motion.
IV.

Conclusion
For the foregoing reasons, an Order shall enter denying the State’s motion to alter or amend

the judgment, granting the motion to include Horner’s sentencing transcript, denying the motion
to stay, and granting the motion to substitute the public officer respondent.
DATED this 9th day of April, 2020.
BY THE COURT:

/s/
James K. Bredar
Chief Judge

13