Handy v. Bishop, Jr. et al
MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 12/18/2015. (c/m 12/18/15 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARK GREGROY HANDY, SR.
FRANK B. BISHOP, JR., et al.
Civil Action No. RDB-14-1820
In their initial answer to the above-captioned Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. §2254, Respondents asserted that the petition was subject to dismissal
because some of the claims asserted were not exhausted. ECF 3. Upon review of Petitioner’s
Reply (ECF 5) in which he asserted all of the claims raised were exhausted and, to the extent a
claim was considered unexhausted, he waived consideration of that claim, this Court required
Respondents to supplement the Answer with additional records and to address the merits of the
claims asserted. ECF 12. Respondents filed the amended Answer (ECF 16) and Petitioner has
filed additional motions which remain pending (ECF 14 and 19). 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. 2011); 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 set forth below, the Petition for Writ of Habeas Corpus shall be denied and a Certificate
of Appealability shall not issue.
Petitioner filed a Motion for Default Judgment (ECF 14) based on his assertion that
Respondents had failed to timely file the supplemental response as required by this Court’s
Order. Respondents, however, sought and were granted an extension of time in which to file the
supplemental response. See ECF 13 and 15. Petitioner’s Motion for Default Judgment shall
therefore be denied.
Petitioner filed a Motion to Dismiss and Reply to Respondents’ Answer (ECF 19)
asserting in part that because Respondents failed to address the merits of his claim that counsel
was ineffective for failing to anticipate changes in the law in the supplemental response, they are
in default and he is entitled to federal habeas relief on this ground alone. Petitioner seeks
dismissal of Respondents’ Answer and entry of default judgment in his favor. Id.
Respondents’ Supplemental Response shall be considered with the initial Response in
totality. The failure to address the claim asserted is not fatal to Respondents’ claim that federal
habeas relief is unwarranted and, for reasons set forth more fully below, the claim asserted by
Petitioner is without merit. The Motion to Dismiss shall be denied, but the Reply shall be
considered in the context of the dispositive review of the claims raised.
Facts Established at Trial
Petitioner Mark Gregory Handy, Sr. (“Handy”) was tried before a jury in the Circuit
Court for Baltimore City on February 4 and 5, 2008.
ECF 16 and Ex. 13 and 14 (trial
transcripts). Handy was convicted on charges of attempted first degree murder, attempted
second degree murder, first degree assault, and second degree assault. ECF 3 at Ex. 1 and 2. On
April 1, 2009, Handy was sentenced to life in prison on the attempted first degree murder
conviction and sentenced to concurrent terms on the remaining convictions. ECF 16 at Ex. 15
At trial it was established that Handy was acquainted with the victim’s wife, Tyra Brown
Bell,1 and had given her a ride home in late August or early September of 2006. ECF 16 at Ex.
13, pp. 190 - 192. Mrs. Bell testified she had known Handy for about seven or eight years
through a mutual friend. Id. at p. 190. She further testified that at the time she entered Handy’s
car she had in her possession her cell phone which was equipped with a “chip” owned by her
sister. Id. at p. 194. Mrs. Bell explained that she realized the phone was missing as soon as she
got home, but could not call Handy because the phone did not accept incoming calls and she did
not have Handy’s phone number, nor did she have an additional phone to call him if she had it.
Id. at pp. 194 – 95.
Mrs. Bell testified that she saw Handy again and asked for the phone back, but he
claimed he did not have it with him and would return it later. Id. at pp. 194 - 95. Later, while
Mrs. Bell was in Alabama, she received a phone call from her sister, who was irate over her
phone bill. Id. at pp. 196 - 97. Mrs. Bell recalled that the carrier for the cell phone service
would not turn the service off on the phone until they “caught” Handy using the phone, despite
her sister’s report that the phone had been lost. Id. at p. 197. Mrs. Bell also recalled that the bill
was approximately $1500. Id.
In order to assist her sister, Mrs. Bell called some of the phone numbers on the cell phone
bill in an effort to get a message to Handy that he was responsible for the bill and that she needed
to see him as soon as possible. Id. at pp. 198 - 200.
Following those calls, Mrs. Bell stated that
Handy came to her apartment on October 3, 2006, approximately five days after she had
contacted the numbers reflected on the bill.
Id. at p. 201.
She explained he arrived at
At the time of trial, Ms. Bell was married to the victim Rodney Bell, but at the time the crime was
committed she was his girlfriend.
approximately 4:30 in the afternoon and, in addition to herself, four of her minor children and
Rodney Bell were at the apartment. Id. at 201 - 202.
Mrs. Bell recounted that she heard a banging on her door and initially thought it was her
neighbors upstairs, but her two year old child told her someone was at the door. Id. at p. 202.
Mrs. Bell looked out her window, recognized Handy’s silver Lexus parked outside, and
concluded that it was Handy at the door. Id.
Mrs. Bell stated that when she opened the door, Handy took a swing at her but she moved
in time to avoid contact. Id. at pp. 202 - 203. Although Mr. Bell was also near the door at the
time, he did not witness Handy taking a swing at Mrs. Bell. Id. at pp. 203 - 205. Mrs. Bell and
Handy engaged in an argument about the phone bill. Handy offered a credit card to pay the bill,
but Mrs. Bell explained that payment of the bill would need to be addressed with her sister. Id.
at pp. 209 - 10. Mrs. Bell then went back into the house to retrieve Rodney Bell’s cell phone so
she could call her sister and resolve the issue regarding the bill. Id. at p. 211.
According to Rodney Bell’s testimony, he was attempting to mediate the dispute between
Handy and Mrs. Bell. ECF 16 at Ex. 14, pp. 59 – 60. When he heard Mrs. Bell ask Handy why
he swung at her, Mr. Bell turned his attention to Handy to ask him why he had done that. Id. at
pp. 60 - 61. At this point in the encounter, Mrs. Bell testified that her child had begun climbing
the steps to where the three were standing and she turned her attention to the child. ECF 16 at
Ex. 13, p. 212. Mrs. Bell recalled hearing sounds of a “tussle.” Id.
Mr. Bell testified that at the moment Mrs. Bell turned away, Handy stabbed him and the
two began fighting. ECF 16 at Ex. 14, pp. 62 - 63. Mr. Bell testified he was “fighting for his
life” and did not realize at first how badly he had been hurt. Id. at p. 63. When he realized he
was seriously hurt, Mr. Bell ran across the street to a wooded area, but Handy followed him and
continued to stab him. Id. at pp. 63 – 64. Mr. Bell recalled hearing Mrs. Bell screaming at
Handy to stop his assault and he testified that when Handy stopped stabbing him, he was
standing at the place where he ran to escape. Id. at pp. 70 and 73. At that point Mr. Bell said he
was holding his side together and when he looked down he could see the food he had eaten
earlier that day seeping out of the wound in his abdomen, along with copious amounts of blood.
Id. at pp. 70 – 72 and 74. Neither Mr. or Mrs. Bell could describe the knife used by Handy to
stab Mr. Bell.2 Id. at Ex. 13, p. 218; Ex. 14, p. 92.
Over objection by defense counsel, Mr. Bell stood before the jury shirtless and pointed
out all the scars he had incurred as a result of the stabbing, as well as those caused by the
numerous surgeries he required. ECF 16 at Ex. 14, pp. 65 – 69. Additionally, both Mr. and Mrs.
Bell provided testimony regarding the nature of Mr. Bell’s injuries and the medical procedures
he underwent. Id. at Ex. 13 at pp. 228 – 241; Ex. 14 at pp. 75 – 81. The testimony was
permitted over objection by defense counsel. During Mr. Bell’s testimony, the trial court issued
a cautionary instruction to the jury reminding them that Mr. Bell was not a physician and that his
testimony was only his understanding of his medical situation.3 Id. at Ex. 14, p. 79.
The defense’s theory of the case was that Handy did not commit the assault on Mr. Bell;
rather, Mrs. Bell assaulted Mr. Bell after Handy left.
On cross-examination, Mrs. Bell was
asked about a proceeding in the District Court for Baltimore City where she pled guilty to
possession of a deadly weapon and received probation before judgment. Id. at Ex. 14 pp. 20 – 33.
In that proceeding, evidence that Mrs. Bell was in possession of a machete on April 3, 2007, was
On cross-examination, Mr. Bell was question about his testimony from the April case involving Mrs. Bell’s
possession of a machete. ECF 16, Ex. 14 at pp. 91 – 93. At that proceeding, Mr. Bell had stated under oath that his
injuries from the October 3rd incident had been caused by a machete. Id. at p. 92. He explained, however, that he
never saw the knife and that he was later told by Mrs. Bell and others he had been stabbed by a machete. Id. at p.
Hospital records documenting Mr. Bell’s injuries and extensive surgeries were entered into the record by
the State without a supporting witness’s testimony. ECF 16, Ex. 14, pp. 123 – 24, 131.
established. Id. at p. 24. Mrs. Bell admitted on cross-examination that police had come to her
home on that date and she was holding the machete because she did not know who was in the
home as it was dark. Id. at p. 25. She further admitted, and Mr. Bell confirmed, that the machete
had been in their bedroom for quite some time for purposes of home protection.
denied ever threatening Mr. Bell with the machete or having it in her possession on the date Mr.
Bell was seriously injured. Id. at pp. 29 – 30. Testimony was elicited from both Mr. and Mrs.
Bell to the effect that at the time of this assault their relationship was blossoming and that they
were in love, having met four months prior, but the injuries sustained by Mr. Bell put a strain on
their relationship. ECF 16 at Ex. 14, pp. 34 – 38 (redirect of Mrs. Bell), pp. 82 – 83 (direct of
Mr. Bell), and pp. 106 – 107 (redirect of Mr. Bell). The issues they were experiencing resulted
in the altercation that took place on April 13, 2007. Id.
The jury returned guilty verdicts on the charges of attempted first and second degree
murder and first and second degree assault. ECF 16 at Ex. 14, p. 188. On the charge of wear,
carry a deadly weapon with the intent to injure, the jury found Handy not guilty. Id. at pp. 188 –
89. Handy was sentenced on April 1, 2008. Id. at Ex. 15. Defense counsel raised the issue of
the seeming inconsistency in the verdicts during argument on the defense’s motion for a new
trial. Id. at pp. 27 – 28. Specifically, counsel pointed out that if the jury found Handy guilty of
the attempted murder and assault charges, that would necessarily imply that a deadly weapon
was used in the crime, but the jury found him not guilty on the weapon offense. Id. The State’s
Attorney then offered an explanation for the not guilty verdict on the weapon offense, pointing
out that the charge was “carried openly with intent to injure” and both Mr. and Mrs. Bell testified
they never saw the knife. Id. at p. 28. He then opined that the jury perhaps took the phrase
“carried openly” literally. Id.
In the context of the defense motion for a new trial, the trial judge asked the State’s
Attorney to obtain copies of the cell phone bill for the court’s review. ECF 16 at Ex. 15, pp. 6 15. The trial judge explained he had a “hang up” on the issue of the phone records in response to
defense counsel’s question regarding why the records were being discussed. Id. at p. 14. The
pattern of phone calls, as well as the numbers called, supported the State’s theory that the assault
was spawned by a dispute over the bill and Handy’s possession of the phone.
Additionally, counsel met with a medical examiner, Dr. Fowler, at the behest of the trial
judge. Id. at p. 16, see also ECF 19-1 at pp. 31 – 32 (letter from Judge Bernstein to Dr. Fowler).
During that meeting, Dr. Fowler discussed with counsel the likelihood of whether the wounds
inflicted on Mr. Bell could have been inflicted by the machete Mrs. Bell admitted to possessing.
ECF 16 at Ex. 15, pp. 16 – 17. Defense counsel reported to the trial judge that Dr. Fowler could
not exclude the machete as the weapon that caused the injuries suffered by Mr. Bell, but he also
could not definitively say it was the weapon used in the attack.
Id. at pp. 17 – 19. The State’s
Attorney, however, that most of what Dr. Fowler said discounted the machete as the weapon
used based on the nature of the wounds to Mr. Bell’s abdomen and spleen. Id. at pp. 20 – 21.
Specifically, the State’s Attorney represented that it was Dr. Fowler’s opinion that had a machete
been used in the attack, damage to the ribs would have been expected but none was noted. Id. at
pp. 22 – 24. Both counsel agreed that Dr. Fowler’s opinion was that anything from an average
steak knife, with a blade over four inches, could have caused Mr. Bell’s injuries. Id. at pp. 25 –
26. The court subsequently denied the defense motion for new trial (id. at p. 40) and sentenced
Handy to serve life imprisonment on attempted first degree murder with concurrent terms for the
remaining counts. Id. at pp. 53 – 54.
State Appellate and Collateral Review
On direct appeal, Handy raised the following questions:
Did the trial court err in allowing the jury to return inconsistent verdicts of
guilty on the attempted murder charges but not guilty on the charge of openly
wearing or carrying a deadly weapon with intent to injure?
Did the trial court err in allowing the prosecutor to make improper and
prejudicial comments in closing argument that deprived appellant of a fair
Did the trial court err in allowing Mr. and Mrs. Bell to give expert medical
Did the trial court err in refusing to give a jury instruction on imperfect selfdefense?
Did the trial court err in failing to merge appellant’s convictions and sentences
for attempted second degree murder and second degree assault?
ECF 3 at Ex. 2, p. 2.
In its April 14, 2010 unreported opinion, the Court of Special Appeals merged the
judgments for attempted second degree murder and second degree assault into the judgments for
attempted first degree murder and first degree assault and otherwise affirmed the conviction.
ECF 3 at Ex. 2. Handy filed a petition for writ of certiorari with the Maryland Court of Appeals
which was denied on July 23, 2010. Id. at Ex. 3.
On October 7, 2010, Handy filed a petition for post-conviction relief in the Circuit Court
for Baltimore City. ECF 3 at Ex. 4; ECF 16 at Ex. 16 and 17. In the petition, as supplemented,
Handy alleged trial counsel was ineffective for failing to: object to an improper voir dire
question; present evidence or argument regarding Handy’s identity defense; file a motion for
modification of sentence; and file for review by a three-judge panel. ECF 16 at Ex. 16, pp. 3 – 4;
Ex. 17, pp. In addition, Handy claimed that appellate counsel was ineffective for failing to raise
a plain error challenge to the trial court’s voir dire. Id. With respect to the “voir dire” issue,
Handy alleged that the trial judge erred when he asked potential jurors to stand if they felt they
could not convict in the absence of scientific evidence, regardless of other evidence presented
and regardless of his instruction on the law. ECF 16 at Ex. 16, pp. 4 – 6. The question asked by
Judge Bernstein referenced the television show “CSI Miami” and Law and Order, and
characterized those shows as “fiction and fantasy.” Id. at p. 7. In response to the question, one
potential juror stood. Id.
On August 19, 2013, the post-conviction court granted Handy the right to file a belated
motion for modification of sentence and for three-judge panel review and otherwise denied the
relief sought. Id.
Handy filed an application for leave to appeal the post-conviction court’s decision with
the Court of Special Appeals. ECF 3 at Ex. 5. In his application Handy alleged that trial counsel
was ineffective for failing to object to a “CSI” voir dire question and by failing to introduce
exculpatory medical records. Id. The application for leave to appeal was summarily denied by
the Court of Special Appeals on May 16, 2014. ECF 3 at Ex. 6. Handy filed a motion for
reconsideration of that denial on June 2, 2014, which remained pending at the time of
Respondents’ initial answer. Id. at Ex. 7.
Claims Raised in this Court
In the Petition for Writ of Habeas Corpus filed in this Court, Handy claims that: the trial
court erred in allowing the jury to return an inconsistent verdict; the trial court erred when it
allowed the prosecutor to make improper and prejudicial comments during closing argument; the
trial court erred when it allowed lay witnesses to provide expert testimony; and counsel provided
ineffective assistance. ECF 1 at pp. 5 – 6. Handy’s ineffective assistance of counsel claim
consists of the following grounds: trial counsel was ineffective when he failed to object to the
CSI voir dire question, failed to present evidence to support Handy’s identity defense, and failed
to anticipate changes in the law. Id. at pp. 6 – 7. Handy contends that the post-conviction court
erred when it found trial counsel was not ineffective for failing to utilize medical records that
were exculpatory because at the post-conviction hearing trial counsel admitted he missed a
record where a psychiatrist stated that the victim told her that he was stabbed by his wife. Id. at
p. 7. Each of these grounds for relief are addressed below.
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). The standard
is “difficult to meet,” and requires courts to give state-court decisions the benefit of the doubt.
Cullen v. Pinholster, 563 U.S. 170, __, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks
and citations omitted); see also 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 fair minded
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).
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, 562 U.S. at
103 (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, 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] 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, 599 U.S. 766, 773 (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.
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 562 U.S. at 103. “If this standard is difficult to meet”—
and it is—“that is because it was meant to be.” Id., 102. 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. (internal quotation
Trial Court Error Claims
Handy claims that the trial court erred by allowing the jury to return an inconsistent
verdict; allowing the prosecutor to make improper and prejudicial comments during closing
argument; and allowing lay witnesses to provide expert testimony. These alleged errors were
addressed by the Court of Special Appeals in its opinion affirming Handy’s convictions and
were, in the appellate court’s view, unpreserved for its review with respect to the first two
allegations and without merit with respect to the third. ECF 3 at Ex. 2.
With respect to the inconsistent verdict, the Court of Special Appeals noted that Handy
“waived his challenge to any inconsistent verdicts by failing to make a timely and specific
objection, either at the time the verdicts were rendered or thereafter.” ECF 3 at Ex. 2, p. 7. The
court further noted that the Court of Appeals’ opinion upon which Handy relied, specifically
noted that while legally inconsistent verdicts were no longer permissible, the court’s holding was
made retroactive only to “similarly situated cases on direct appeal where the issue was
preserved.” Id. at p. 8, citing Price v. State, 405 Md. 10, 29 (2008). The Court of Appeals noted
in Price that “we should not permit the defendant to accept the jury’s lenity in the trial court,
only to seek a windfall reversal on appeal by arguing that the jury’s verdicts are inconsistent.”
Id. In Handy’s case, the Court of Special Appeals noted that his “failure to object to the verdicts
may be construed as a strategic decision not to challenge any perceived inconsistency, because
the acquittal on the weapon charge worked to his favor.” ECF 3 at Ex. 2, p. 10. Finally, the
Court of Special Appeals noted that “[g]iven the evidence, the jury could have concluded that,
although [Handy] wore or carried the weapon, he did not do so openly.” Id. at p. 13. Thus, the
not guilty verdict on the charge of openly carrying a deadly weapon “was not factually
inconsistent with the guilty verdicts on the attempted murder and assault charges.” Id.
Handy’s claim that the trial court erred when it allowed the prosecutor to “impugn
defense counsel’s integrity by characterizing his closing argument as ‘horrible’ and ‘shameful’”
was also addressed by the Court of Special Appeals. ECF 3 at Ex. 2, p. 15. The comments made
by the State’s Attorney were made in rebuttal to defense counsel’s closing argument that Mr.
Bell’s injuries were the result of Mrs. Bell attacking him with a machete. The Court of Special
Appeals reviewed the transcript and concluded that “the prosecutor’s suggestion that defense
counsel wrongly sought to prosecute Ms. B[ell] for the crime was directed at the defense theory
of the case, not at defense counsel’s personal character or credibility.” Id. at p. 21. The court
noted that while defense counsel objected on unspecified grounds when the prosecutor argued
that defense counsel presented himself as a would-be prosecutor of Mrs. Bell, the remark did not
warrant reversal of Handy’s convictions as it did not exceed the bounds of legitimate advocacy
and unfairly prejudice the jury against Handy. Id., citing Lee v. State, 405 Md. 145, 165 (2008).
The issue regarding alleged impermissible medical testimony related to the testimony of
both Mr. and Mrs. Bell regarding the injuries sustained by Mr. Bell and the subsequent surgeries
he required. The Court of Special Appeals analyzed both the in-court demonstration where Mr.
Bell removed his shirt in front of the jury, revealing the scars he sustained and the testimony
provided by Mr. and Mrs. Bell regarding his medical condition. In the appellate court’s view,
the trial court did not abuse its discretion by permitting the shirtless demonstration in court
because it “aided the jury in determining whether [Handy] attacked Mr. Bell with sufficient
deliberation and premeditation to convict him of attempted first degree murder.” ECF 3 at Ex. 2,
p. 26. The court further noted that “such evidence could support a finding that, even if [Handy]
did not have enough time to form a premeditated intent to kill during the initial attack, the
serious nature and location of the stab wounds inflicted during the second attack sufficiently
established a premeditated intent to kill.” Id. , see also id. at p. 24, quoting Smallwood v. State,
343 Md. 97, 104 (1996) (“[A]n intent to kill may be inferred from the use of a deadly weapon
directed at a vital part of the human body.”).
With regard to the testimony provided by Mr. and Mrs. Bell about Mr. Bell’s medical
condition, the Court of Special Appeals disagreed with Handy that the testimony amounted to
improper expert testimony by lay witnesses. The court cited Maryland Rule 5-701 which
permits lay witnesses to testify regarding their direct perceptions of events and explained that
Mr. and Mrs. Bell “merely recounted what they perceived Mr. Bell’s medical treatments to have
been.” ECF 3 at Ex. 2, p. 29. Additionally, the court noted that the trial court gave a limiting
instruction clarifying for the jury that the purpose of the testimony was not to give an expert
medical opinion, but merely to explain what the witnesses understood Mr. Bell’s medical
situation to be. Id.
The asserted grounds for federal habeas relief do not state a federal claim. The issues
regarding the verdicts, closing argument, and testimony were resolved on the basis of state law
and are state law claims. Violation of a state law which does not infringe upon a specific
constitutional right is cognizable in federal habeas corpus proceedings only if it amounts to a
Afundamental defect which inherently results in a complete miscarriage of justice@. Hailey v.
Dorsey, 580 F.2d 112, 115 (4th Cir. 1978) (quoting Hill v. United States, 368 U. S. 424, 428
(1962). There is no evidence of such a fundamental defect in the case sub judice and federal
habeas relief shall be denied on the grounds asserted.
Ineffective Assistance of Counsel Claims
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.
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
further investigation can amount to constitutionally deficient assistance.
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
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; see also Harrington, 562 U.S. at 104 (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.
Handy’s ineffective assistance of counsel claim consists of the following grounds: trial
counsel was ineffective when he failed to object to the CSI voir dire question, failed to present
evidence to support Handy’s identity defense, and failed to anticipate changes in the law. ECF 1
at pp. 6 – 7.
Handy’s claim regarding the voir dire commentary is based on the following statement
made by the trial judge:
Now, I’m going to assume based on prior experience that many of you watch
way too much television, including the so called, realistic crime shows like,
you know, Law and Order and CSI Miami, and CSI Glen Burnie and the rest of
them. Now I trust you understand that these crime shows are fiction and
fantasy. And for dramatic effect they purport to rely upon “scientific
evidence” to convict guilty persons.
Well, this is acceptable as fantasy, as entertainment. You must not allow these
fantasies to interfere with your duties as a juror. Therefore, if you are currently
of the opinion that you cannot convict a Defendant without “scientific
evidence” regardless of the other evidence in the case and regardless of the
instructions I give you as law, please stand.
ECF 3, Ex. 4, p. 4 (citing Tr. 2/4/08, p. 29). Defense counsel did not object and Handy asserts
that this was ineffective assistance of counsel in light of the fact that the Maryland appellate
courts found a similar voir dire question impermissible because it “’suggested that the jury’s only
option was to convict, regardless of whether scientific evidence was adduced.’” Id. at p. 5,
quoting Charles & Drake v. State, 414 Md. 726, 737 (2010).
The post-conviction court acknowledged that the case law cited by Handy were appellate
decisions on cases where the trials took place at the same approximate time as his trial. ECF 3 at
Ex. 4, p. 5. In those two cases the defense attorneys objected to similar voir dire questions and,
in Handy’s view, his defense counsel should have also recognized of the potential for adverse
consequences to him posed by the question. Id., citing Charles & Drake and McFadden & Miles
v. State, 197 Md. App. 238 (2011). The post-conviction court rejected Handy’s argument
because, “[a]s the appellate courts have repeated on numerous occasions, trial counsel is not
responsible for anticipating changes in the law.” ECF 3 at Ex. 4, p. 5. At the time of Handy’s
trial, there had been no ruling by the appellate courts regarding the CSI voir dire question. In
light of the fact that there was “no evidence . . . indicating that there was any prevailing
professional norm to object to a CSI voir dire question at the time of [Handy’s] trial,” the postconviction court found that counsel’s performance was not deficient. Id. at p. 6. “The mere fact
that some attorneys were objecting to similar voir dire questions is insufficient to prove that the
failure to object to a CSI voir dire question fell below an objective standard of reasonableness.”
Id. The post-conviction court’s application of the Strickland standard is without error and there
is no basis for federal habeas relief stated with this asserted ground.
Handy alleges that trial counsel was ineffective for failing to introduce or otherwise
utilize certain medical records that indicate Mr. Bell’s injuries were caused by Mrs. Bell. He
further contends that the post-conviction court erred when it found trial counsel was not
ineffective in this regard in light of trial counsel’s admission at the post-conviction hearing that
he missed a record where a psychiatrist stated that the victim told her that he was stabbed by his
wife. ECF 1 at p. 7. At issue were two medical records which Handy has provided to this Court
as exhibits. ECF 19-1 at p. 9 (affidavit of Nia Sipp, M.D.) and pp. 33 – 34 (“final report” by
Thorsten Fleiter, M.D.).
The psychotherapy progress note made by Dr. Sipp on December 27,
2006, states in pertinent part that “P[atien]t stabbed by GF ex fiancé, who remains free.” Id. at p.
9. The notes made by Dr. Fleiter in reference to his treatment of Mr. Bell states “machete injury
last year with multiple surgeries” regarding Mr. Bell’s medical history. Id. at pp. 33 – 34. These
records, in Handy’s view, would have established that he was not the perpetrator, rather Mrs.
Bell was the assailant. At the post-conviction hearing, Handy testified that when he arrived at
the Bell’s home, only Mrs. Bell was present and when Mr. Bell arrived, the two began arguing.
ECF 3 at Ex. 4, p. 10. Handy further testified that Mr. Bell was angry because he believed
something sexual was going on between Handy and Mrs. Bell and that Mr. Bell hit her during
the course of their argument. Id. After Mrs. Bell was struck, Handy claimed she went into the
bedroom and Handy then left. Id.
The post-conviction court noted it was “not persuaded that trial counsel was ineffective
for failing to utilize the two medical records.” ECF 3, Ex. 4, p. 10. The court correctly noted
that Strickland requires both deficient performance and prejudice. Id. Assuming counsel’s
performance was deficient in failing to introduce the records, Handy was not prejudiced by it
because trial counsel “presented significant evidence in support of the defense theory of the case,
and specifically presented evidence that implicated [Mrs. Bell] as the potential perpetrator.” Id.
Moreover, the post-conviction court noted that the medical reports at issue were “ambiguous and
unlikely to have been particularly helpful at trial.” Id. at p. 11.
Dr. Sipp testified by phone in the post-conviction case and stated that while she did not
have specific recollection of the December meeting between herself and Mr. and Mrs. Bell, she
believed her notes indicate that Mrs. Bell was present. Id. Dr. Sipp further explained that “her
notes indicated that [Mr. Bell] was angry at the person who stabbed him, and if the person who
stabbed him was the person in the room, Dr. Sipp would have referred directly to the person in
the room, rather than to ‘GF ex fiance’ to describe the individual.” Id. The post-conviction court
observed that “[g]iven the significant ambiguity regarding this note, the court is not persuaded
that the use of this note or Dr. Sipp’s testimony would have a significant probability of altering
the outcome of the trial.” Id. The court concluded that beyond mere speculation, the evidence
which was omitted was not sufficient to undermine confidence in the outcome of the trial as
required by Strickland. Id. The post-conviction court’s application of Strickland to the facts of
this case is without error and the asserted ground for federal habeas relief must fail.
Upon review of the Petition For Writ Of Habeas Corpus, the Response along with the
exhibits submitted, as well as Petitioner=s reply, this Court determines that Handy is not entitled
to federal habeas relief. There is no basis upon which to find constitutional deficiencies in the
state court proceedings, Petitioner having failed to rebut the presumption of correctness of the
findings of fact underlying the rejection of his grounds for post-conviction or appellate relief.
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). 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 (2003). Because this Court finds that
there has been no substantial showing of the denial of a constitutional right, a certificate of
appealability shall not issue. See 28 U. S.C.§ 2253(c)(2).
A separate Order follows.
December 18, 2015
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
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