Wesley, Sr v. Hershberger et al

Filing 13

MEMORANDUM. Signed by Judge James K. Bredar on 4/27/2015. (c/m 4/27/15)(kr, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

GARY A. WESLEY, SR.,
Petitioner,
v.

*
* CIVIL ACTION NO. JKB-13-2037

GREGG HERSHBERGER, et al.,
Respondent.

*
***
MEMORANDUM

A response to the petition for writ of habeas corpus with exhibits was filed in the abovecaptioned case. The matter is now ready for dispositive review. 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. 2014); 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 to follow, the petition will be denied.
Factual and Procedural History
Gary A. Wesley, Sr., was convicted by a jury of the second degree murder and second
degree assault of his wife, Teresa Reed Watson, in the Circuit Court for Baltimore County. ECF
No. 10, Ex. 5, pp. 1-3, Ex. 11, pp. 5-6. The facts demonstrated during the trial, as summarized by
the Court of Special Appeals of Maryland, are as follows:
On February 2, 2006, appellant killed his wife, Teresa Reed Watson Wesley
during a domestic dispute. Evelyn (Joy) Watson, the adopted daughter of the
victim from a previous marriage, and Kailani Amerson, a twenty-four-year-old
who lived with the Wesleys at their home, testified that earlier in the evening of
February 1, appellant was involved in a verbal altercation with Mrs. Wesley and
"Andre," a family friend.

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Ms. Amerson testified that appellant accused Andre of "lying to his wife, saying
that he was using drugs." When appellant grabbed Andre, Mrs. Wesley separated
them. Arrangements were made for appellant to pack up his belongings and "for
him to go and stay with Andre." According to Ms. Amerson, both men left the
house but returned separately. After another argument broke out between
appellant and Mrs. Wesley, Mrs. Wesley called the police. This was the first of
three times that the police were summoned to the Wesleys' house that night. The
police arrived and then left after things apparently calmed down.
Later, after appellant hit himself in the head, he called the police and complained
that his wife was beating him, prompting a second visit by the police. After the
police left, according to Amerson, "everybody pretty much went about their
normal routine, taking their showers, getting ready for bed." Mrs. Wesley "went
back into the bedroom and closed the door." That did not, unfortunately, end the
dispute between appellant and his wife.
In fact, it soon took a violent turn. When Mrs. Wesley approached appellant with
the pills he had asked her to get for him, appellant "rushed her and she lost her
balance and fell in against . . . her desk that was against the wall by the door" of
the room she used as an office. "It looked like he was hitting her," testified Ms.
Amerson. When Amerson tried to assist Mrs. Wesley during this struggle,
appellant "flung" her against the wall, "pretty much like a rag doll." Then,
Amerson "looked up to see that he was stabbing" Mrs. Wesley with a “kitchen
knife." Unable to stop appellant, she "started screaming."
Ms. Watson testified that, at approximately 11 p.m. that night, she awoke to her
mother's screams. Ms. Amerson told Watson that Mrs. Wesley had been stabbed
and was "bleeding all over." Watson immediately called 911.
After stabbing Mrs. Wesley, appellant left the house. But, in attempting to drive
away in the family car, he crashed the vehicle into Joy Watson's car. Although
Amerson and others tried to hold the door closed, appellant "kicked it in,"
"snatched" a piece of the doorframe off, and "came after" Amerson and others in
the house, "scream[ing] he was going to kill us all." Appellant then resumed his
assault on Mrs. Wesley, as she lay incapacitated in the office.
When the police arrived, appellant locked himself in the office with his wife and
threatened to cut her throat if they entered. The ensuing standoff, during which
appellant beat, cut, and stabbed his wife, lasted approximately two hours.
Officer Don Markuso of the Baltimore County Police Department was second on
the scene. He testified that he and other responding officers
began to scream and holler, . . . police, stop, . . . talk to us, tell us
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what's going on. We could hear all the hitting, the punching, the
kicking, the screaming. We could hear the female screaming and it
seemed after every . . . time you would hear that skin on skin, you'd
hear this . . . really bad scream. We could hear the male yelling at
her, . . . bitch, shut up, you did this to me, this is your fault, you
ruined me, you ruined my life, you ruined my marriage and it was
just a barrage of this screaming and hitting and punching and it was
. . . a lot of commotion all at one time.
Officer Markuso also heard Mrs. Wesley tell appellant that she loved him and did
not want to die. When Mrs. Wesley's voice faded, Markuso asked to enter and
help her. Appellant replied, "she's not dead enough yet." Shortly thereafter,
appellant opened the door and police officers found Mrs. Wesley dead on the
floor. The medical examiner determined that Mrs. Wesley suffered seven stab
wounds, 147 cutting wounds, and multiple blunt force injuries.
Testifying in his own defense, appellant complained that Mrs. Wesley repeatedly
made false accusations about him to the police. According to appellant, after
police left for the second time, Mrs. Wesley called him into her office and then
lunged at him with a knife from her desk. After he was able to ultimately wrench
the knife from her, he stabbed her in self-defense, he claimed. He explained the
"taunting” statements he made to the police before killing Mrs. Wesley because
he wanted them to "kick the door down" and kill him, making his wife regret what
she had put him through.
In support of appellant's self-defense claim, the defense pointed to evidence that
appellant's palm print was found on the blade of the knife and cited an incident on
November 27, 1983,when appellant was stabbed by an unidentified assailant with
scissors fifteen times on the left side of his neck. Appellant testified that the
trauma he experienced from that attack made him feel that he was in "imminent
danger" when Mrs. Wesley approached him with a knife.
ECF No. 10, Ex. 5, pp. 2-5 (footnote omitted).
Petitioner was sentenced to a total term of 40 years’ incarceration. Id., Ex. 1 & 5. He
noted a timely appeal raising the following claims in the Court of Special Appeals:
1. Did the circuit court violate Appellant’s right to a speedy trial pursuant to Maryland
Rule 4-271?
2. Did the trial court err in refusing to admit Kailani Amerson’s prior statement?
3. Did the trial court err in not admitting a relevant transcript into evidence?
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4. Did the trial court commit plain error in instructing the jury on reasonable doubt?
Id., Ex. 5, p. 2.
Petitioner’s convictions were affirmed on August 14, 2009. Id., Ex. 5. Petitioner filed a
self-represented petition for writ of certiorari raising the same four claims. Id., Ex. 6. The
petition was denied on November 13, 2009. Id., Ex. 7.
Petitioner filed for state post conviction relief on February 25, 2010. Id., Ex. 1 & 8. The
petition, as amended and construed by the post-conviction court, alleged trial counsel error in
failing to
1. Obtain (and the prosecutor to provide) a written transcript of the police interview of
Kailani Amerson;
2. Object to the trial judge’s reasonable doubt instruction;
3. Object to the trial judge’s “cross-examination” of Ms. Amerson;
4. Prepare for a motions hearing on March 8, 2007;
5. Object to the judge’s determination to withhold deciding Petitioner’s eligibility for
life without parole until after a verdict;
6. Impeach a witness’s (Ms. Amerson) prior inconsistent statement;
7. Object to the use of inflammatory crime scene photos of the victim;
8. Object to an inconsistent verdict, as Petitioner was never charged with second degree
assault;
9. Introduce to the jury Petitioner’s history of impaired mental health;
10. Object to jury instructions and statements by the prosecutor which improperly shifted
the burden to the Defendant to disprove malice;
11. Move for a speedy trial and failure to move for dismissal based on speedy trial
violation/invalid postponement;
12. Cross-examine effectively/impeach the State’s witness with her prior inconsistent
statement;
13. Interview State’s witnesses;
14. Hire a private investigator;
15. Investigate the State’s case given that the eyewitness could not have seen the event
from her location;
16. Object to a jury instruction;
17. Object to a legally inconsistent verdict;
18. Request a pre-sentence investigation (PSI).
19. Prepare for sentencing;
20. Present mitigating factors and evidence of diminished capacity;
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21. Call or prepare sentencing witnesses, including a psychiatrist;
22. File a Motion for Modification or Reduction of Sentence; and
23. Test the piece of splintered doorframe for blood/DNA.
ECF 10, Ex. 11, pp. 3-5. Petitioner also alleged the State erred in failing to
1.
2.
3.
4.
5.

Reduce Ms. Amerson’s interview to a written transcript;
Provide a written transcript of an eyewitness’s testimony;
Disclose exculpatory and/or impeachment evidence;
Disclose impeachment evidence in police/prosecution files;
Play for the jury the entire DVD recording of Petitioner’s interview with police, i.e.,
playing only two of the twelve clips, thereby violating Fundamental Fairness.

Petitioner also claimed: 1. prosecutorial misconduct; 2. violation of his Fifth Amendment right to
counsel by failing to stop the police interview upon Defendant’s request for an attorney; 3. illegal
conviction for second degree assault, as the statute of limitations had run; and 4. failure of the
trial court to properly instruct the jury. Id.
The petition was denied on May 21, 2012, by the Circuit Court for Baltimore County.
Id., Ex. 11.

Petitioner filed an application for leave to appeal the post-conviction court’s

decision, alleging that (A) the post-conviction judge failed to recuse himself; (B) the
postponement granted by the trial court on July 10, 2006, was invalid under the Maryland rules;
(C) trial counsel was ineffective for failing to file a motion for modification of sentence; (D) the
prosecutor unfairly played only two “clips” from a DVD; and (E) his Miranda rights were
violated because he was questioned after he invoked his right to an attorney. Id., Ex. 12.
Petitioner’s application for leave to appeal was denied summarily by the Court of Special
Appeals. The Court’s mandate issued on May 9, 2013. Id., Ex. 13.

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Here, petitioner maintains that (1) the postponement of his trial on July 10, 2006, violated
his rights; and (2) his trial counsel was ineffective for failing to file a motion for modification of
sentence. ECF 1.
Timeliness, Exhaustion of State Remedies, Procedural Default
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), or that any of
petitioner’s claims have been procedurally defaulted. Further, petitioner no longer has any state
direct review available to him with respect to the claims now before the court; thus, the court
finds the claims are exhausted for the purpose of federal habeas corpus review.
Standard of Review
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 “highly deferential” and “difficult to meet.” Cullen v. Pinholster, 563 U.S. __, ___,
131 S. Ct. 1388, 1398 (2011); see also White v Woodall, ___U.S.__, 134 S. Ct 1697, 1702
(2014) (quoting Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770, 786-87 (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) Aresulted in a decision that was contrary to, or involved an unreasonable application
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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 [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, 131 S. Ct. at
786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Rather, that application must
be objectively unreasonable.” Id. 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, 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

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incorrectly.” Renico v. Lett, 599 U.S 766, 773 (2010) (quoting Williams v. Taylor, 529 U.S. 362,
410 (2000)).
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.
The Antiterrorism and Effective Death Penalty Act (AEDPA) erects a formidable barrier
to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA
requires “a state prisoner [to] show that the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an error ... beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,___, 131 S. Ct. 770, 786–87
(2011). “If this standard is difficult to meet”—and it is—“that is because it was meant to be.” Id.,
786. A federal court reviewing a habeas petition will not lightly conclude that a State's criminal
justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the
remedy. Id., 786 (internal quotation marks omitted).
Analysis
Under Maryland law there is a requirement that the prosecution bring a defendant to trial
within 180-days of the appointment of counsel or the appearance of counsel unless a

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postponement for good cause shown is granted by the trial court. See Md. Rule 4-271(a)(1). The
assertion that the state law, 180-day requirement has been violated does not implicate petitioner=s
Sixth Amendment right to a speedy trial. Assuming the violation occurred, it is not a cognizable
claim for federal habeas corpus relief. See Estelle v. McGuire, 503 U.S. 62, 67- 68 (1991). A[I]t
is not the province of a federal habeas court to reexamine state-court determinations on state-law
questions. In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.@ Id. In the absence of
a claim of a federal constitutional violation, the claim is not cognizable. See 28 U.S.C. § 2254(a)
(a federal court may entertain a state prisoner’s habeas petition “only on the ground that he is in
custody in violation of the Constitution or law or treaties of the United States.”).
To the extent petitioner claims his right to a speedy trial guaranteed by the Sixth Amendment
of the U.S. Constitution was violated, the claim nevertheless fails. The Sixth Amendment
guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ...
trial.” Despite the breadth of the amendment’s language, some delay of trial is constitutionally
permissible. See Doggett v. U.S., 505 U.S. 647, 651 (1992).
In order to determine if petitioner’s Sixth Amendment right to a speedy trial was violated,
four factors must be considered. The four factors to be considered are the length of the delay, the
reason for the delay, the timeliness of the assertion of the right, and the actual prejudice suffered
as a result of the delay. See Barker v. Wingo, 407 U.S. 514, 532 (1972). The Court cautioned,
We regard none of the four factors identified above (length of delay,
reason for delay, defendant's assertion of his right, and prejudice to
the defendant) as either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such other
circumstances as may be relevant. In sum, these factors have no
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talismanic qualities; courts must still engage in a difficult and
sensitive balancing process. But, because we are dealing with a
fundamental right of the accused, this process must be carried out
with full recognition that the accused's interest in a speedy trial is
specifically affirmed in the Constitution.
Id. at 533 (footnote omitted).
Prejudicial effect of a delay includes oppressive pretrial incarceration, anxiety of
defendant, and, most importantly, impairment of the ability to prepare a defense.

See Moore v.

Arizona, 414 U.S. 25 (1973).
Between diligent prosecution and bad-faith delay, official negligence
in bringing an accused to trial occupies the middle ground. While not
compelling relief in every case where bad-faith delay would make
relief virtually automatic, neither is negligence automatically tolerable
simply because the accused cannot demonstrate exactly how it has
prejudiced him.
Doggett, 505 U.S. at 656-57.
In rejecting petitioner’s claim regarding the delay of his trial, the state court found not
only that the judge who granted the delay was in fact authorized to do so under Maryland law,
contrary to petitioner’s assertion, but that the postponement judge found good cause to postpone
petitioner’s trial. The postponement was requested by petitioner’s counsel, over petitioner’s
objection, due to petitioner’s lack of cooperation with defense counsel, petitioner’s desire for
new counsel, petitioner’s request for additional investigation, and counsel’s desire to have
petitioner’s competency examined. ECF 10, Ex. 5, p. 5, pp. 3-11.
In rejecting petitioner’s claim regarding the delay of his trial, the court of appeals noted
that petitioner, “not his defense counsel—created the need for such a delay, by requesting a
change of counsel and further investigation approximately one month before the scheduled trial
date. The [postponement] court made it clear the purpose of the postponement was to allow
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defense counsel to accommodate appellant’s requests” (Id., p. 12) as well as to reconsider
petitioner’s competency. Id., p. 12-13.
Petitioner’s trial deadline, under Maryland law, was September 9, 2006. He was tried on
April 23, 2007. The length of the delay was not unreasonable. While petitioner timely asserted
his right to a speedy trial, the reason for the delay was occasioned by his own conduct, and he
has demonstrated no actual prejudice suffered as a result of the delay. Accordingly, he is not
entitled to habeas relief on this claim.
As to petitioner’s claim that his trial attorney erred in not filing a motion for modification
of sentence, his claim also fails. 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. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
The second prong requires the court to consider whether there was Aa reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different.@
Id. at 694. 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. Although
Astrategic choices made after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable,@ it is equally true that Astrategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.@ Id. at 690-91. Where circumstances are such
that counsel should conduct further investigation to determine Awhether the best strategy instead
would be to jettison [a chosen] argument so as to focus on other, more promising issues,@ failure
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to conduct

further investigation can amount to constitutionally deficient assistance.

See

Rompilla v. Beard, 545 U.S. 374, 395 (2005) (O=Connor, J., concurring). Counsel should be
strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment, and the burden to show that counsel’s performance
was deficient rests squarely on the defendant. See Burt v. Titlow, ____ U.S. ____, 134 S. Ct. 10,
17 (2013).
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.
See Strickland, 466 U.S. at 687, 694. “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 on as having produced a just result.” Id. at 686. It is not enough “to
show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
Counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687; Harrington, 131 S. Ct. at 787–88 (citing Strickland, 466 U.S. at 687). A
determination need not be made concerning the attorney's performance if it is clear that no
prejudice would have resulted had the attorney been deficient. Strickland, 466 U.S. at 697.
Petitioner’s claim provides no ground for relief as petitioner had no constitutional right to
counsel in connection with the motion for reconsideration of sentence. See Wainwright v. Torna,
455 U.S. 586, 586-88 (1982) (per curiam) (confirming that a criminal defendant cannot complain
about ineffective assistance where the defendant has no constitutional right to counsel in pursuit
of discretionary relief).
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Moreover, the state post-conviction court rejected petitioner’s claim, finding that
petitioner did not ask counsel to file a motion for modification on his behalf. The state court
found that trial counsel did not have per se responsibility to file the motion in the absence of a
request by petitioner. Moreover, trial counsel had filed, on petitioner’s behalf, a Notice of
Appeal, Motion for New Trial, and Motion for Review of Sentence by a three-judge panel. Trial
counsel indicated that he did not believe the trial judge would modify his own sentence and since
the three-judge panel could not exceed the sentence rendered in this case, the three-judge panel
was the better avenue to seek review of petitioner’s sentence. The post-conviction court found
counsel’s decision a reasonable tactical decision. ECF No. 10, Ex. 11, pp. 21-22. These findings,
supported by the record, are presumed correct. Applying these facts to Strickland, petitioner is
not entitled to relief. The state court’s determination shall not be disturbed.
Conclusion
The record establishes, and this court determines, that petitioner is not entitled to federal
habeas relief.

There is no basis for finding constitutional deficiencies in the state court

proceedings, and petitioner has failed to rebut the presumption of correctness of the findings of
fact underlying the rejection of his grounds for relief.
Additionally, a certificate of appealability is not warranted as it 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). The petitioner “must demonstrate 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) (citation and internal quotation marks omitted), or that “the issues presented are
adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327
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(2003). Because this court finds that there has been no substantial showing of the denial of a
constitutional right, a certificate of appealability shall be denied. See 28 U.S.C.§ 2253(c)(2).
Accordingly, the petition shall be dismissed with prejudice and a certificate of
appealability shall not issue. A separate order follows.

Date: April 27, 2015

/s/
James K. Bredar
United States District Judge

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