Edwards v. Bishop et al
MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 1/18/2017. (c/m 1/18/17 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSEPH W. EDWARDS, #346-493,
WARDEN FRANK BISHOP and
The ATTORNEY GENERAL FOR THE
STATE OF MARYLAND,
CIVIL ACTION NO. RDB-15-1888
Joseph W. Edwards filed this timely, self-represented Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, attacking his June 30, 2007 conviction from the Circuit Court for
Charles County, Maryland for first-degree felony murder and related offenses.
Respondents, the Warden of North Branch Correctional Institution where Edwards is confined
and the Attorney General of the State of Maryland, filed an Answer. (ECF 16). Edwards,
through counsel, submitted an Amended Petition (ECF 25), prompting an additional Response
(ECF 29) and Reply. (ECF 32).
Having reviewed the parties’ submissions, the Court finds no need for an evidentiary
hearing.1 See Rule 8(a), Rules Governing Section 2254 Cases in the United States District
Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F. 3d 438, 455 (4th Cir.
2000) (petitioner not entitled to a hearing under 28 U.S.C. §2254(e)(2)). For the reasons set forth
herein, the Court shall DENY and DISMISS the Petition with prejudice and SHALL NOT
ISSUE a Certificate of Appealability.
Accordingly, Edwards’ Request for Hearing (ECF 33) is denied.
On February 2, 2007, Edwards was charged in the Circuit Court for Charles County with
first-degree felony murder, first-degree premeditated murder, robbery with a dangerous
weapon, conspiracy to commit first-degree murder, conspiracy to commit first-degree assault,
conspiracy to commit robbery with a dangerous weapon, first-degree assault, and use of a
handgun in the commission of a crime of violence in connection with the death of Steven
Edwards also was charged with attempted first-degree premeditated murder,
attempted second-degree murder, robbery with a dangerous weapon, conspiracy to commit
first-degree murder, conspiracy to commit robbery with a dangerous weapon, conspiracy to
commit first-degree assault, first-degree assault, and use of a handgun in the commission of a
crime of violence in connection with the shooting of Steven Windley. (ECF 16, Ex. 1 at pp. 310). The facts adduced at Edwards’ jury trial, summarized by the Court of Special Appeals of
On December 28, 2006 around 11:30 p.m., Steven McGregor, Steven Windley,
and three other men were in and around a car in the 3200 block of Westdale
Court in Waldorf. They were approached by [appellant], and four other men. As
a result of the ensuing events, Mr. McGregor was shot and killed, and Mr.
Windley was shot and paralyzed. The surviving victims, as well as three of
[appellant’s] accomplices, testified at trial.
Marco Coates, who was in the car with Mr. McGregor and Mr. Windley,
offered the following account of the events leading up to the shooting. On
December 28, he, Robert Barbour, and Mr. Windley drove to a basketball
tournament in Calvert County in Mr. Barbour’s blue Dodge Magnum. After
the tournament, Mr. McGregor joined them, and they drove back to Waldorf. In
Waldorf, they saw Timothy Grimes in the Westdale Court area and picked him up.
Eventually, Mr. Barbour, who was driving, parked in the 3200 block of Westdale
Court, and Mr. Coates and Mr. Grimes got out of the car to smoke.
Mr. Coates explained that either Mr. Barbour or Mr. McGregor got a phone call.
About thirty seconds later, five men came from behind the town homes around the
court. Mr. Coates saw a “big, big” chrome gun and heard shots. He and Mr.
Grimes then “took off.” Initially, Mr. Coates hid behind a bush. He soon crept
back towards the car, however, and got underneath an Expedition. From his
position underneath the SUV, Mr. Coates saw the men kicking Mr. Barbour in the
face and saw the men trying to take Mr. Windley’s jacket.
In addition to shots from the chrome gun, Mr. Coates testified that he heard shots
from another gun. Some shots were fired at the tires, and some shots were fired
directly into the car. As the five men were leaving, one man came back and fired a
final shot into the car from behind the passenger seat. The five men then returned
from the direction they came.
After the men left, Mr. Coates returned to the car. Mr. McGregor had a bullet in
his head. Mr. Windley was face down on the ground and could not get up.
Mr. Coates stated that he had known [appellant] for three years. Despite the fact
that the man with the chrome gun wore a mask that covered his face from the
nose down, Mr. Coates claimed that [appellant] was that man. Mr. Coates also
identified [appellant] as the person who fired the final shot into the car. According
to Mr. Coates, [appellant] was wearing a black, gray and red North Face jacket.
He had light skin and wore his hair in long “twisties.”
Robert Barbour, who was the driver of the car, also testified. His account
follows. After Mr. Barbour and the car’s other occupants picked up Timothy
Grimes, they went to Janelle Love’s court. She was outside, and they asked her for
cigarettes. While they were there, Mr. Barbour received a call from Angel Park.
Ms. Park asked him if he had any “weed.” When he said no, she asked who was
with him, and he told her. She then asked where they were, and he told her that too.
Ms. Park said she would call him back. At some point, Mr. Barbour and his
companions left Ms. Love’s court and went to Mr. Windley’s court.
About two minutes after the first call, Ms. Park called Mr. Barbour again. She
asked where they were, and Mr. Barbour told her they were at Mr. Windley’s court.
Ms. Park told him that she would come through in about five minutes.
About one to two minutes after the second call Mr. Barbour heard a “loud
boom” Mr. Barbour ducked his head and tried to start the car. As he did so, he and
Mr. Windley were pulled out of the car. Mr. Barbour said that the men asked,
“Where the money at?” One man went through his pockets, while another man
stood over him. Afterwards, Mr. Barbour discovered that $15 dollars and his
Sprint Razor phone were taken. Mr. Barbour testified that someone tried to take
Mr. Windley’s jacket, but stopped when he realized Mr. Windley had been shot.
After a man wearing a red and black North Face jacket pointed a chrome gun
inside the car and shot, the men ran off.
Timothy Grimes offered his account of the shooting as well. Mr. Grimes
testified that he and Mr. Coates were smoking “weed” outside Mr. Barbour’s
car when five men walked up. Mr. Grimes saw a “big old chrome gun.” When
the person holding that gun fired, he and Mr. Coates ran. While he was running,
Mr. Grimes slipped and fell. As he lay on the ground, he heard multiple gun
shots, none of which were as loud as the first one. Once Mr. Grimes caught his
breath, he got up and ran to the end of a section of town houses. As he started to get
up again, he heard one final shot, which sounded liked [sic] the first shot he heard.
Mr. Grimes did not identify [appellant] as one of the men who approached
the car. He did testify, however, that he had seen [appellant] around one or two
o’clock on December 28. Mr. Grimes explained that he was driving when he saw
[appellant] in a car with Angel Park. Mr. Grimes testified that when he pulled
next to [appellant’s] car, [appellant] pulled out a “big old chrome gun” and
pointed it at him. Once [appellant] realized who Mr. Grimes was, he put the gun
down. According to Mr. Grimes, the gun that he saw that afternoon looked like the
gun he saw later that night.
Mr. Windley, who was paralyzed as a result of the shooting, also testified.
After Mr. Barbour parked in front of Mr. Windley’s house, Mr. Windley
passed out. He woke up to gun shots and to Mr. McGregor yelling at Mr.
Barbour to pull off. Mr. Windley explained that the passenger side window was
shot out, and a silver gun came in the window. Mr. McGregor got shot, and Mr.
Windley tried to open the door. When the gun pointed in Mr. Windley’s direction,
he put up his right arm and was shot in that arm. Mr. Windley was able to
unlock the door. As he leaned out, he was shot in the back and fell out of the
Mr. Windley testified that he was able to pull himself under the truck parked next
to them. Once he was under the truck, someone pulled him out and tried to take
his jacket and chain. Mr. Windley held on with his good arm. Mr. Windley testified
that he could see a group of guys kicking and beating Mr. Barbour. He told the
men to leave Mr. Barbour alone and to come take his jacket. The men came over
and again tried to take his jacket. Mr. Windley testified that the men then started
running. As they did, one man came back, jumped over him, and shot one more
time. Mr. Windley testified that he had two cell phones when he was shot. After
the shooting, one phone was missing.
In addition to the victims, three of [appellant’s] accomplices, including Angel Park,
testified. On December 28, Ms. Park picked up [appellant], who was “just about
like” her boyfriend, from his parents’ house in Waldorf. [Appellant] had
“dreads” and was wearing a red and black North Face jacket. While they were
driving, they saw Timothy Grimes, who pulled up beside them. [Appellant]
pulled out a gun before he realized who it was. When he saw that it was Mr.
Grimes, he put the gun away.
After the encounter with Mr. Grimes, Ms. Park and [appellant] drove to
Washington, D.C. to pick up Gator, whose real name is Dewayne Thomas. They
then drove to Kennebec Street to pick up Eugene Green and Darryl Smith.
Next, they drove to Alexis Jordan’s house, where [appellant] and Mr. Smith got
into Mr. Jordan’s car. At that point, both cars drove to Clay Terrace, where Mr.
Smith got some PCP. Mr. Smith gave one “dipper” to her and Mr. Green, and he
kept one “dipper” for the other car. The group then proceeded to a restaurant.
While there, Mr. Thomas got into her car.
Both cars then drove to Waldorf, where [appellant] directed her to drive through
three or four neighborhoods. At some point, Ms. Park got a call from Tiera Gray
who was looking for her boyfriend, Mr. McGregor. Ms. Gray asked for J-Rock’s
number. After that call, Ms. Park drove to the Thai Seafood bar, where she
received a call from [appellant]. Ms. Park, in turn, called Mr. Barbour, whose
nickname was Pearl, and asked for J-Rock’s number. She also asked about some
“weed” and found out where Mr. Barbour was and who he was with. Ms. Park then
called [appellant] and told him what she had learned. Next, Ms. Park called Mr.
Barbour back and told him that she was on her way.
At that point, the cars drove to a neighborhood she knew as Coventry so that
[appellant], Mr. Green, Mr. Thomas, Mr. Smith and Mr. Jordan could rob Mr.
Barbour. After she parked, everyone except herself and the female who was
driving Mr. Jordan’s car got out. The men went towards the playground and
were gone for less than ten minutes. Ms. Park heard several gunshots. Not long
after that, everyone ran back to her car. They left the area and went back to
While they were at Kennebec Street, Ms. Park received a call from Janell Love
asking who she was with and what she was doing. Ms. Park told Ms. Love that she
was at her aunt’s house. [Appellant] then told Ms. Park that she needed to go to
where she told Ms. Love she was.
Janae West, who drove Alexis Jordan’s car, also testified. According to Ms.
West, Mr. Jordan came to her house on December 28 and asked her to drive his
car. She complied and drove Mr. Jordan, [appellant] and another “boy” to
Waldorf. When they arrived at a town house community, she and the woman who
drove the other car parked. Ms. West testified that all of the males got out of
the cars and went around the corner behind some houses. They were gone for
approximately ten minutes, during which time she heard gun shots. About two
minutes after hearing the shots, the men came back. [Appellant], Mr. Jordan and
the other man got into Mr. Jordan’s car, and they left.
Eugene Green testified as well. According to Mr. Green, [appellant] called him
on December 28 and asked him to come “chill” at the apartment on Kennebec
Street. When he arrived, Ms. Park and Mr. Thomas were also there. [Appellant]
asked if he wanted to, go to Waldorf, and he [said] “yes.” According to
Mr. Green, [appellant] said that they were going to Waldorf to “chill,” but he also
said that if he saw Pudge and “someone else” he was going to rob them. Mr. Green
and Mr. Thomas drove to Waldorf in Angel Park’s car, and [appellant], Darryl
Smith and Mr. Jordan went in a car with another female.
When they got to Waldorf, the two cars parked at the Thai Seafood “go-go.”
While they were there, Ms. Park got a phone call. [Appellant] asked Ms. Park who
she was talking to and told her to take him “to whoever she was talking to.”
The cars then drove to a location he knew as “AV.” The women stayed in the car,
and the men walked towards a playground. They followed a path and ended up in
a parking lot. Mr. Green saw Mr. Coates using the bathroom. [Appellant], who was
wearing a red and black North Face jacket, a mask and a hoodie, fired a silver gun
in the air. According to Mr. Green, [appellant] pointed the gun at Mr. Coates. At
that point, Mr. Green left and went back to the car. About five minutes later, the
other men came back. Everyone got in the cars, and they left. As they were
leaving the area, they saw a police car.
Darryl Smith, who was the last accomplice to testify, testified as follows.
Mr. Green and [appellant] came to his home on Kennebec Street on December 28.
[Appellant’s] girlfriend picked them up, and they drove to D.C., where Mr. Thomas
joined them. [Appellant] talked to Mr. Thomas about going to Waldorf to beat up
someone named Dejuan. They all then drove to Alexia Jordan’s house. After
making other stops, the two cars drove to Waldorf.
At first, they went to a gas station. Then, they drove through some town homes
looking for Dejuan and Pudge. Next, they went to a store, where Mr. Smith and
Mr. Jordan bought ski masks, one of which they gave to [appellant]. After
getting the masks, they drove through some more town homes. [Appellant] said
he saw who he was looking for, so they drove to the back of the town homes,
parked and got out.
The men then walked through some woods and past a playground. When they
heard some guys laughing in the parking lot, [appellant] pulled down his mask,
and they all ran towards the Dodge Magnum. According to Mr. Smith,
[appellant]] and Mr. Jordan were the only people who had guns. [Appellant] fired
once into the air with a silver revolver. He then ran to the right rear passenger
door, opened it, and said, “Whoa.” Mr. Jordan fired multiple shots in the back
of the car. [Appellant] then pistol whipped someone in the car. Everyone ran back
the way they came.
Mr. Smith testified that when he, Mr. Thomas and [appellant] got into Angel’s car
[appellant] had two cell phones and some money in his hand. Eventually, both
cars went back to Kennebec Street. There, [appellant] told [Ms. Jordan] to get
rid of the guns. Mr. Smith stated that at some point [appellant] had told him
the gun was a .357.
When Mr. Windley testified, he stated that he saw Mr. McGregor with a cell phone
prior to the shooting. Similarly, Mr. Barbour testified that he saw Mr. McGregor
talking on his cell phone before the shooting. When the police searched Mr.
McGregor’s pockets after the shooting, however, they did not recover a cell
Mr. Smith testified that when the men returned to Kennebec Street after the
shooting, he took the cell phones from [appellant], broke them and threw them in
some bushes. Detective Chris Shankster responded to 904 Kennebec after the
shooting. There, he recovered a cellular telephone battery from the ground. The
battery was compatible with only an LG CU500 cell phone. Detective
Shankster also met with Mr. McGregor’s girlfriend, Ms. Gray, after the shooting.
She gave him a box for an LG CU500 Cingular telephone and told the detective
that it was the box Mr. McGregor’s cell phone had come in.
(ECF 16, Ex. 9). Based on this evidence, the jury convicted Edwards of first-degree felony
murder, first-degree assault, and illegal use of a handgun with respect to victim Steven McGregor,
and first-degree assault and illegal use of a handgun with respect to victim Steven Windley. ( Id.; see
also Ex. 1). Edwards was sentenced to life imprisonment for the first-degree felony murder of
McGregor, a consecutive 20-year sentence for the first-degree assault of Windley, and two 20year sentences for the handgun convictions, one of which was to run concurrent to the life
sentence and the other to run concurrent to the first-degree assault sentence.2 (Id., Ex. 1 at pp. 310, Ex. 9 at p. 1).
On direct appeal, Edwards raised the following questions:
(1) Was the jury’s verdict of guilty of felony murder inconsistent with its
verdict of not guilty of robbery with a danger weapon, and must the felony
murder conviction be reversed as a result?
(2) Did the trial court commit plain error in instructing the jury on felony
(3) Did the trial court err when it sent a note to the jury without first informing
Edwards and his counsel and when it thereafter did not disclose the jury’s
response to Edwards and his counsel?
Edwards was acquitted of all charges relating to Robert Barbour, Timothy Grimes, and Marco Coates. (Id.).
(4) Did the trial court err in failing to disclose to defense counsel the fact that
a juror may have seen Edwards being transported? and
(5) Did the trial court abuse its discretion in denying Edwards’ motion for a
(ECF 16, Exs. 7-9).
In its March 11, 2009 unreported opinion, the Court of Special Appeals
affirmed Edwards’ judgment of conviction. The appellate court found Edwards’ inconsistent
verdict argument unpreserved. (Id., Ex 9 at p. 23). Although finding the jury instruction
argument also unpreserved, the appellate court noted it “intertwined . . . with his first contention”
regarding the inconsistent verdicts, and addressed it, declining to recognize plain error. (Id.).
Edwards’ request for certiorari review by the Maryland Court of Appeals was denied on June
12, 2009.3 (Id., Ex. 10).
On May 27, 2010, Edwards filed a petition for post-conviction relief in the Circuit Court
for Charles County. (ECF 16, Ex. 1 at p. 20). The petition, as amended, claimed trial counsel
was ineffective for failing to (1) preserve the record for appeal, (2) object properly to
inconsistent verdicts, (3) object to the absence of instructions related to attempted robbery and
attempted armed robbery, (4) cross-examine Marco Coates effectively, and (5) obtain a jury
instruction on second-degree felony murder. (Id., Ex. 11, 12). Following an October 13, 2011
hearing, the post-conviction court denied relief as to all grounds raised in an opinion and order
filed on July 3, 2014. (Id., Ex. 1, 13).
Edwards filed an application for leave to appeal the post-conviction court’s decision with
the Court of Special Appeals, reiterating his claims that trial counsel was ineffective for failing to
(1) object properly to inconsistent verdicts on felony murder and armed robbery, (2) object to the
Edwards’ judgment became final for direct appeal purposes on September 10, 2009, when the time for seeking
review in the Supreme Court of the United States expired. See Sup. Ct. Rule 13.1 (requiring petition for writ of
certiorari to be filed within 90 days of the date of judgment from which review is sought).
absence of instructions related to attempted robbery and attempted armed robbery, and (3) obtain
a jury instruction on second-degree felony murder. Edwards also argued relief should be granted
based on the cumulative effect of those errors. (ECF 16, Ex. 14). On June 8, 2015, the Court of
Special Appeals summarily denied Edwards’ application for leave to appeal.4 (Id., Ex. 1 at p.
CLAIMS PRESENTED HERE
Edwards now asserts that trial counsel was ineffective for (1) failing to object properly
and timely to an inconsistent verdict, (2) failing to object to the absence of instructions related to
attempted robbery and attempted armed robbery, (3) failing to object to the absence of a jury
instruction on second-degree felony murder, and (4) the cumulative effect of these errors. (ECF
25). Each of these grounds for relief was fully examined in post-conviction proceedings and thus
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, 181 (2011) (internal quotation marks and citations
omitted); see also White v Woodall, __ U.S.__, __, 134 S. Ct 1697, 1702 (2014), quoting
The court’s mandate issued on July 8, 2015. (ECF 16, Ex. 1 at p. 24).
Respondents argue that claims that trial counsel was ineffective for failing to request jury instructions presented in
the amended petition (ECF 25 at p. 9) differ from the claims that trial counsel was ineffective for failing to object to
the absence of these instructions raised in state post-conviction proceedings, and that restatement of the claims
mandate they be rejected under the procedural default doctrine. (ECF 29 at p. 9). This parsing of language amounts
to a distinction without a difference. This Court shall consider the claims on the merits.
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). 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.” Richter, 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), enacted in 1996 and
codified at 28 U.S.C. § 2254, 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.”
Richter, 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 marks omitted).
When a petitioner alleges ineffective assistance of counsel, he must show both that
counsel’s performance was deficient and that the deficient performance prejudiced his or her
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The second prong requires
the court to consider whether there was “a 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; see Burt v.
Titlow, 134 S. Ct. 10, 17 (2013). Although “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable,” it is equally true that
“strategic choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690–91. Where circumstances are such that counsel should conduct
further investigation to determine “whether the best strategy instead would be to jettison [a
chosen] argument so as to focus on other, more promising issues,” failure to conduct further
investigation can amount to constitutionally deficient assistance. See Rompilla v. Beard, 545
U.S. 374, 395 (2005) (O’Connor, J., concurring).
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 Richter, 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.
All of Edwards’ claims hinge on an assertion of ineffective assistance of trial counsel.
With respect to the first-degree felony murder charge, Edwards argues trial counsel needed to do
one of two things. First, if counsel believed that there was adequate proof before the jury that
Edwards committed attempted robbery, he needed to demand that the jury receive an instruction
for that charge. If, on the other hand, counsel believed that there was not adequate proof of
attempted robbery before the jury, he needed to — once the jury returned an acquittal on armed
robbery but convicted him on first-degree felony murder — immediately object to the legally
inconsistent verdict so as to preserve the error for review. Counsel did neither.
Further, Edwards argues that counsel was oblivious to the fact that the charges in the case
provided a basis for an instruction to the jury on a lesser offense, second-degree felony murder,
which would carry a maximum sentence of only 30 years in prison, rather than life incarceration.
He contends that because the jury was likely to find that he was guilty of first-degree assault and
that a murder had occurred during the commission of that offense, he needed to protect against
the possibility that the jury would improperly convict him of first-degree felony murder rather
than second-degree felony murder. Edwards now complains that counsel neglected to even
consider these circumstances and options, much less request the necessary instructions, and that
these deficiencies in representation greatly prejudiced him.
Finally, Edwards argues that he was deprived of his right to have the jury instructed on
all the elements of a felony-murder charge and was deprived of his opportunity to have the
appellate court apply recent favorable law concerning inconsistent verdicts to his case and
reverse his convictions. As a result of these cumulative errors, he will spend the rest of his life in
prison, rather than serve a maximum of 30 years of incarceration. Edwards asserts there is a
reasonable probability that, had counsel performed sufficiently, the result of the prosecution
would be different. He asks this Court to exercise its habeas corpus power to vacate his sentence
and order a new trial.
As previously noted, Edwards was convicted of first-degree felony murder, first-degree
assault, and illegal use of a handgun with respect to victim Steven McGregor, and first-degree
assault and illegal use of a handgun with respect to victim Steven Windley. 6 In addition to his
claim concerning inconsistent verdicts, Edwards’ ineffective assistance claims also address the
lack of instructions related to attempted robbery, attempted armed robbery, and second-degree
felony murder, crimes for which Edwards was never charged. The statutory provisions for these
crimes inform both the inconsistent verdict and the jury instruction aspects of Edwards’
ineffective assistance claims, and are set forth below.
Maryland defines murder in the first degree, Md. Code Ann., Crim. Law Art., § 2-201 as:
(1) a deliberate, premeditated, and willful killing;
(2) committed by lying in wait;
(3) committed by poison; or
(4) committed in the perpetration of or an attempt to perpetrate:
Edwards was acquitted of first-degree premeditated murder, robbery with a dangerous weapon, conspiracy to
commit first-degree murder, conspiracy to commit first-degree assault, and conspiracy to commit robbery with a
dangerous weapon with regard to McGregor, and acquitted of attempted first-degree premeditated murder, attempted
second-degree robbery, robbery with a dangerous weapon, conspiracy to commit first-degree murder, conspiracy to
commit robbery with a dangerous weapon, conspiracy to commit first-degree assault with regard to Windley. (ECF
16, Ex. 1 at pp. 3-10, Ex. 9 at p. 1).
(ix) robbery under § 3-402 or § 3-403 of this article.
Thus, first-degree murder can be premeditated, or it can occur during the commission of a
felony. The penalty upon conviction of first-degree murder, whether premeditated or committed
during a felony, is imprisonment for life, with or without the possibility of parole. Id. at § 2201(b).
In contrast, second-degree murder is defined generally under § 2-204(a) as “[a] murder
that is not in the first degree under § 2-201. A person who commits murder in the second degree
is guilty of a felony and on conviction is subject to up to thirty years’ imprisonment.” See Md.
Code Ann., Crim. Law Art., § 2-204(b).
Robbery is defined in § 3-401(b) as action to deprive by withholding property of another:
(2) for a period that results in the appropriation of a part of the property’s value;
(3) with the purpose to restore it only on payment of a regard or other compensation; or
(4) to dispose of the property or use or deal with the property in a manner that makes it
unlikely that the owner will recover it.
Section 3-402(a) makes it a crime to commit or attempt to commit robbery.” Under § 3402(b), “[a] person who violates this section is guilty of a felony…” and, pursuant to § 3-402(b),
may be sentenced to 15 years’ imprisonment. Similarly, § 3-403(b) states that “[a] person may
not commit or attempt to commit robbery under § 3-402 . . . (1) with a dangerous weapon,” and
denotes that conviction under the statute constitutes a felony subject to 20 years’ imprisonment.
Assault in the first degree is defined in § 3-202 as follows:
(a) Prohibited. –
(1) A person may not intentionally cause or attempt to cause
serious physical injury to another.
(2) A person may not commit an assault with a firearm, including
(i) a handgun, antique firearm, rifle, shotgun, . . .
(iv) a regulated firearm, . . .
(b) Penalty. –
A person who violates this section is guilty of the felony of assault
in the first degree and on conviction is subject to imprisonment not
exceeding 25 years.
Edwards correctly points out that he was acquitted of premeditated murder but convicted
of felony murder, which requires a guilty finding of one of the statutorily enumerated offenses
(such as robbery) outlined in the first-degree murder statute. His conviction of first-degree
assault is not among the crimes enumerated in the statute as a crime supporting a felony murder
conviction. This anomaly provides the basis for his ineffective assistance claims, both in the
context of the inconsistent verdict claim and his argument concerning a lack of jury instructions.
The United States Supreme Court’s decision in United States v. Powell, 469 U.S. 57
(1984), recognized that an inconsistent jury verdict may stand as a possible exercise of lenity by
jurors. Respondents argue that because an inconsistent verdict claim does not assert a violation
of federal law, it is not cognizable for § 2254 review. (ECF 16 at pp. 22-23).
Although inconsistent jury verdicts may stand in federal criminal prosecutions, the States
need not follow this practice. Maryland’s departure from Powell was first announced while
Edwards’ direct appeal was pending.7 See Price v. State, 405 Md. 10, 19 (2008), see also
McNeal v. State, 426 Md. at 458 (2012) (“legally inconsistent verdicts are those where a
defendant is acquitted of a ‘lesser included’ crime embraced within a conviction for a greater
offense.”). In Price, the Court of Appeals held that while legally inconsistent verdicts were no
On direct appeal, Edwards claimed that the trial court improperly accepted what he perceived to be an inconsistent
verdict. The appellate court recognized that this contention was unpreserved, but nonetheless addressed it as
intertwined with another unpreserved contention of trial court error for failure to instruct the jury on “attempted
robbery.” The appellate court found no basis to exercise its discretion to consider these claims under its plain error
exception. (ECF 25, Ex. 4 at pp. 22-24).
longer permissible, the court’s holding was made retroactive only to “similarly situated cases on
direct appeal where the issue was preserved.” Id. 405 Md. at 29. 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.”
Claims that do not assert a violation of federal or constitutional law generally are not
cognizable in federal court.
See generally Wilson v. Corcoran, 131 S. Ct. 13, 14 (2011)
(“Federal courts may not issue writs of habeas corpus to state prisoners whose confinement does
not violate federal law.”); Spencer v. Murray, 18 F.3d 237, 239-40 (4th Cir. 1994) (claim
regarding admissibility of evidence that neither relied upon a constitutional provision, nor
mentioned a constitutional right as infringed, did not state federal claim). Had his claim been
preserved, Edwards’ conviction might have been overturned on direct appeal, based on state law.
The claim, however, was not preserved, and as presented here does not run afoul of federal or
constitutional law. Thus, it provides no basis for habeas corpus relief under 28 U.S.C.
More compelling are Edwards’ claims of ineffective assistance based upon counsel’s
failure to move for specific jury instructions regarding several of the underlying felony charges.
Cases cited by Edwards show that prior to AEDPA, this Circuit held trial counsel’s
failure to object to a lack of instruction on a predicate felony to be “constitutionally deficient.”
See Luchenburg v. Smith, 79 F.3d 388, 393 (4th Cir. 1996) (erroneous jury charge may form
basis of habeas claim, either independently or in conjunction with ineffective assistance of
counsel claim, where instruction “so infected the entire trial that the resulting conviction violates
due process” by rending trial fundamentally unfair) (citing Cupp v. Naughten, 414 U.S. 141, 147
(1973)); see also Whalen v. United States, 445 U.S. 684, 693-94 (1980) (felony murder based
upon killing in the course of committing rape requires proof of all elements of offense of rape).
The pre-AEDPA standard for collateral review of errors in instructions to which no
contemporaneous objection was made and no error was assigned on direct appeal was a “cause
of actual prejudice” standard, see United States v. Frady, 456 U.S. 152, 167-68 (1982), and the
“degree of prejudice required [was] a showing that based upon an evaluation of the totality of the
events at trial, the instructional error ‘by itself so infected the entire trial that the resulting
conviction violates due process.’” Id. at 169; (citing Henderson v. Kibbe, 431 U.S. 145, 154
(1977) (quoting Cupp, 414 U.S. at 147); see also Fulton v. Warden, Md. Penitentiary, 744 F.2d
1026, 1032 (4th Cir. 1984) (quoting Henderson, 431 U.S. at 147). In effect, the petitioner must
show a substantial likelihood that the jury would have reached a different verdict if the proper
instructions had been given and, consequently, the error in instructions resulted in a fundamental
miscarriage of justice. See Frady, 456 U.S. at 172; Henderson, 431 U.S. at 155-57; Fulton, 744
F.2d at 1032-33.
This standard of review outlined by Edwards has been subsumed and restated by the
AEDPA standards previously noted. Edwards’ arguments must, therefore, be examined in the
context of post-AEDPA precedent.
Jury Instruction with Regard to Attempted Robbery
At trial, the State argued that the murder victim, McGregor, was shot during an armed
robbery, and Edwards should be convicted of first-degree felony murder in connection with his
role as a participant in the robbery.
Although Edwards was charged with robbery with a
dangerous weapon and conspiracy to commit robbery with a dangerous weapon (charges on
which he was acquitted), he never was charged with attempted robbery, and the jury was not
instructed on the offense. The jury acquitted Edwards of armed robbery, yet convicted him of
first-degree felony murder.
Trial counsel did not request the jury be instructed on lesser offenses such as seconddegree murder or attempted robbery, and did not object at trial when the jury returned a verdict
of first-degree murder while concurrently failing to convict Edwards of robbery and conspiracy
to commit robbery with a dangerous weapon. Instead, after the jury was discharged and prior to
sentencing, counsel argued unsuccessfully that the verdicts were inconsistent and that as a result
of the trial court’s failure to instruct the jury on the elements of attempted robbery, the felony
murder conviction should be stricken. (ECF 25, Ex. 3 at pp. 10-15; ECF 16, Ex. 6 at pp. 18-19).
The trial court declined to do so, and instead construed counsel’s belated argument as a “motion
to set aside the verdict,” noted the jury was properly instructed on the law, and found that
inconsistent verdicts were tolerated under Maryland law. (ECF 16, Ex. 6 at p. 20).
The appellate court found the argument that the trial court failed to instruct the jury on
the elements of attempted robbery unpreserved, but nonetheless examined the issue, which it
found “intertwined” with Edwards’ argument
(also unpreserved) concerning inconsistent
verdicts. The court noted that Maryland law defines a legally inconsistent verdict as occurring
when “an acquittal on one charge is conclusive as to an element which is necessary to and
inherent in a charge on which a conviction has occurred,” citing Price, 405 Md. at 38 (internal
quotation omitted). Notwithstanding the inconsistency, the appellate court did not take issue
with the verdict as rendered, noting that the jury was told by the trial court that it could find
Edwards guilty of felony murder if he committed or attempted to commit a robbery (emphasis in
the original). (ECF 25, Ex. 4 at p. 25).
In the context of a failure to give appropriate jury instructions, the appellate court
declined to exercise its plenary discretion under Maryland Rule 4-325(e) “to notice plain error
material to the rights of a defendant, even if the matter was not raised in the trial court.” (ECF
16, Ex. 9 at p. 26). The appellate court found that:
. . . for purposes of a felony murder conviction, and assuming an instruction
on the underlying felony is required, the jury was instructed as to armed
robbery and the necessary intent, the vital elements. As highlighted above,
on at least six occasions, the court instructed the jury that to find felony
murder, it had to find that the killing occurred when appellant or another
participating in the crime with him, committed or attempted to commit a
robbery. [Emphasis in original]. Attempt, in that context, was likely
understood by the jury; thus, we do not find the compelling, extraordinary,
or exceptional circumstances necessary to exercise our discretion.
(Id., p. 27).8
At post-conviction, Edwards argued that trial counsel was ineffective for failing to object
to the absence of a jury instruction on attempted robbery or attempted armed robbery and in
failing to timely object to the resultant inconsistent verdict. The post-conviction court examined
the jury instruction issue in light of the trial record and post-conviction hearing testimony,
finding as follows:
In Petitioner’s fourth allegation, he claims that trial counsel was ineffective
by not objecting to the Court’s failure to instruct the jury concerning
attempted robbery and attempted armed robbery. Petitioner argues that, but
for counsel’s error, the outcome of Petitioner’s trial would have been
During jury instructions of Petitioner’s trial, Judge Chappelle
enumerated the elements of simple robbery and robbery with a dangerous
weapon (Tr. Transcript, 6-29-07 at 34-36). The instruction on “robbery”
was given as robbery was the underlying felony to the first degree murder
charge. Judge Chappelle also gave an instruction for “attempt” in regards
to Petitioner’s attempted murder charge, stating:
“What is an attempt, the definition of an attempt?
The defendant is charged with the crime of attempted murder.
The actual instructions are outlined in the appellate opinion, ECF 16, Ex. 9 at pp. 13-15.
Attempt is a substantial step beyond mere preparation
toward the commission of a crime. In order to convict the
defendant of attempted murder, the State must prove, one,
that the defendant took a substantial step beyond mere
preparation towards the commission of the crime of
attempted murder, and two, that the defendant intended to
commit the crime of attempted murder” (Tr. Transcript,
6-29-07 at 38).
Petitioner argues that the Judge did not explain the
elements of attempted robbery or attempted armed
robbery even though they were underlying crimes which
could have supported a felony murder conviction.
Petitioner was not charged with attempted robbery or
attempted armed robbery. As those offenses were not
enumerated charges, instructions for those offenses were
not given. Instructions regarding simple robbery and
robbery with a dangerous weapon, as robbery with a
dangerous weapon as a separate enumerated offense, were
given to the jury, along with hard copies for deliberations.
The Court finds no error in the instructions. Petitioner’s
allegation is without merit.
(ECF 16, Ex. 13 at 8-9).
Edwards contends that the state court findings are deficient. Noting that Respondents
take the position that there was “overwhelming evidence”9 that Edwards attempted to
commit a robbery (ECF 29 at 11 n. 1), Edwards questions why the State did not charge him with
attempted robbery, did not otherwise submit the offense of attempted robbery to the jury, and did
Respondents’ position is supported by the evidence; trial testimony produced substantial evidence that the group
that included Edwards intended to rob someone in the group that included MacGregor, and took a substantial step
toward doing so. Angel Park testified that the group went to the location of the crime to rob Robert Barbour.
Eugene Aaron Green, another member of the group of assailants, testified that Edwards directed the group to
Waldorf, and stated that if he encountered “Pudge,” “he was going to rob him.” Darryl Smith, another member of
the group of attackers, testified that after driving through the townhouse community once, the group went to a
nearby store and bought two ski masks, one of which was given to Edwards. Victims Barbour and Windley both
testified that the assailants rifled their pockets and unsuccessfully attempted to take Windley’s jacket and “chain.”
Windley further testified that one of his two cell phones was missing after the incident. Smith testified that after the
shootings, he saw Edwards holding two cell phones, some money, and an ID. Smith broke up the cell phones and
threw them in some bushes near his home. A cell phone battery was later recovered from those bushes which, it was
stipulated, could only be used in the model of cell phone that McGregor was known to carry. (ECF 16, Ex. 8 at pp.
not request a jury instruction on attempted robbery. Edwards argues that the trial produced a
near-total absence of specific allegations of attempted robbery, and accordingly disputes the
State’s contention that the predicate crime for his felony murder charge actually was
attempted robbery. (ECF 32 at p. 2).
Edwards further argues in the alternative that even if there was sufficient evidence to
sustain allegations that he had committed robbery, trial counsel’s performance was
constitutionally inadequate. He posits that if there was any possibility that the jury would rely
on attempted robbery to convict him of felony murder, counsel had a duty to ensure that the jury
was specifically instructed as to the elements of that crime. Edwards asks this Court to
examine the ineffective assistance claim based on trial counsel’s failure to “object to the jury
instructions as given” or “request an ‘attempt’ instruction,” which resulted in the state court’s
finding that counsel failed to “preserve the issue for appellate review.” (ECF 25, Ex. 4, p. 26).
In support, Edwards cites Luchenburg, 79 F.3d at 390-391. In 1985, Luchenburg was
charged in Maryland state court with first-degree rape, first-degree sexual offense, common
law assault, carrying a deadly weapon (a knife), and use of a handgun during the commission
of a crime of violence in the assault of his estranged wife at gunpoint, and the rape of his sisterin-law at gunpoint and knifepoint. Luchenburg was acquitted of the rape and sexual offense
charges against his sister-in-law, including the knife charge, and convicted for assaulting his
wife and using a handgun during commission of crime of violence. Although Luchenburg was
acquitted of the predicate crimes of violence, the trial court did not throw out the conviction on
the compound handgun charge, and sentenced Luchenburg to 20 years imprisonment on that
charge (the maximum term possible), as well as a consecutive ten-year sentence on the assault
On collateral review, Luchenburg contended that his trial counsel was ineffective for
failing to “object to the court’s failure to explicitly instruct the jury” that it had to find the
petitioner guilty of a predicate crime of violence before it could convict him of a compound
handgun charge. Following federal habeas corpus review, the Honorable William M. Nickerson
adopted a United States Magistrate Judge's report and recommendation to grant federal habeas
corpus relief. On appeal, the United States Court of Appeals for the Fourth Circuit defined
Luchenburg’s argument as a “claim of ineffective assistance of trial counsel for failing to take
issue with the circuit court’s jury instruction[,]” see id. at n. 2, and then analyzed trial counsel’s
“failure to object and request” a proper instruction, id. at 393.
The Fourth Circuit found
ineffective assistance where counsel failed to request an expanded instruction that more
accurately explained to the jury that, under Maryland law, it could not convict a defendant of a
compound handgun charge unless it first found him guilty of predicate crime of violence, and
that common-law assault was not a predicate “crime of violence.” The appellate court found that
trial counsel should have objected to the trial court's instruction and requested an expanded
instruction that more accurately explained to the jury (1) that it could not convict Luchenburg of
the compound handgun charge unless it first found him guilty of a predicate crime of violence,
and (2) that common law assault is not a predicate “crime of violence.” Thus, the circuit court's
instructions rendered Luchenburg's trial fundamentally unfair, and trial counsel's failure to object
was constitutionally deficient, because a reasonable probability existed that but for his failure to
object and request an expanded instruction, the result of the proceeding would have been
Citing Fitzgerald v. Thompson, 943 F.2d 463, 468 (4th Cir. 1991), the Fourth Circuit
found that if counsel had requested instructions to the jury that it could only return a guilty
verdict on the compound handgun charge if it first convicted the defendant on a predicate crime
of violence, and that common law assault is not a predicate crime of violence, the trial court
would have been required to so instruct; the instructions would be binding on the jury; and the
jury would have followed the instructions. In light of his acquittal on the predicate crimes of
violence, Luchenburg established a reasonable probability that the jury, had they received the
proper instructions, would also have acquitted him on the compound handgun charge.
Relying on Luchenburg, Edwards argues that because attempted robbery was “an
essential ingredient” to the charge of felony murder under Maryland law, see Newton v.
State, 280 Md. 260, 267 (1977), it was imperative for the trial court to explain the elements of
attempted robbery in conjunction with its explanation of the elements of felony murder, and
trial counsel’s failure to object to the incomplete or absent instruction on attempted robbery
amounted to ineffective assistance under the Sixth Amendment. This Court is not persuaded that
such prejudice is demonstrated here.
The Luchenburg court’s analysis focused on the obvious harm that resulted to the
defendant, concluding that it was reasonably probable that a different verdict would have been
rendered. As noted by the post-conviction court in Edwards’ case:
In Petitioner’s fourth allegation, he claims that trial counsel was
ineffective by not objecting to the Court’s failure to instruct the jury
concerning attempted robbery and attempted armed robbery. Petitioner
argues that, but for counsel’s error, the outcome of Petitioner’s trial would
have been different.
During jury instructions of Petitioner’s trial, Judge Chappelle
enumerated the elements of simple robbery and robbery with a
dangerous weapon (Tr. Transcript, 6-29-07 at 34-36). The instruction on
“robbery” was given as robbery was the underlying felony to the first
degree murder charge. Judge Chappelle also gave an instruction for
“attempt” in regards to Petitioner’s attempted murder charge, stating:
“What is an attempt, the definition of an attempt?
The defendant is charged with the crime of attempted
Attempt is a substantial step beyond mere preparation
toward the commission of a crime. In order to convict the
defendant of attempted murder, the State must prove, one,
that the defendant took a substantial step beyond mere
preparation towards the commission of the crime of
attempted murder, and two, that the defendant intended to
commit the crime of attempted murder” (Tr. Transcript,
6-29-07 at 38).
Petitioner argues that the Judge did not explain the elements
of attempted robbery or attempted armed robbery even though
they were underlying crimes which could have supported a felony
murder conviction. Petitioner was not charged with attempted
robbery or attempted armed robbery. As those offenses were not
enumerated charges, instructions for those offenses were not
given. Instructions regarding simple robbery and robbery with a
dangerous weapon, as robbery with a dangerous weapon was a
separate enumerated offense, were given to the jury, along with hard
copies for deliberations.
The Court finds no error in the
instructions. Petitioner’s allegation is without merit.
Id. at 8-9. In essence, an instruction on attempt was provided, even though attempted robbery or
attempted armed robbery were not charged. Given the trial testimony, it is clear that one or
more of Edwards’ cohorts robbed or attempted to rob the victims, that Edwards was one of two
shooters, and that after the shooting, Edwards had the decedent’s cell phone and some money in
his hand. Edwards cannot make a showing that it was reasonably probable that a different
verdict would have been rendered had the lesser-included offenses been further defined during
Further, this Court cannot rely on the Luchenburg standard of review, given the
evolution of case law following the 1996 enactment of AEDPA. Under the current standard of
habeas corpus review, a state court decision is “contrary to” clearly established federal law if the
state court “arrives at a conclusion opposite to that reached by the [U.S. Supreme] Court on a
question of law or if the state court decides a case differently than the [U.S. Supreme] Court has
on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. at 412-13. As to
whether a state court decision is an “[‘objectively’] unreasonable application” of clearly
established federal law, the state court must “identif[y] the correct governing legal principle from
the [Supreme] Court's decisions but unreasonably appl[y] that principle to the facts of the
prisoner's case., id. at 410, and “state-court judgments must be upheld unless, after the closest
examination of the state-court judgment, a federal court is firmly convinced that a federal
constitutional right has been violated.” Id. at 389 (emphasis added). Federal habeas relief is
precluded, “so long as ‘fairminded jurists could disagree’ on the correctness of the state court's
decision.” Richter, 562 U.S. at 88, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Under AEDPA, federal habeas relief for any claim adjudicated on the merits in state court
is prohibited, unless one of the exceptions listed in § 2254(d) is met. Premo v. Moore, 562 U.S.
115, 121 (2011). Here, the relevant exception would permit relitigation where the earlier state
decision resulted from an ‘unreasonable application of clearly established federal law, id.; 28
U.S.C. § 2254(d)(1), and the state court factual determination cannot be deemed “unreasonable”
merely because this Court would reach a different conclusion. Wood v. Allen, 558 U.S. 290, 301
(2010) (citation omitted); 28 U.S.C. § 2254(d)(2). In other words, under § 2254(d), the question
is whether there is any reasonable argument that trial counsel met Strickland’s deferential
standard. Premo, 562 U.S. at 122.
In disputing counsel’s alleged error in failing to advocate for jury instructions on
attempted robbery, Respondents adopt the state post-conviction court’s understanding that
“Petitioner was not charged with attempted robbery or attempted armed robbery. As those
offenses were not enumerated charges, instructions for those offenses were not given.” (ECF
16 at p. 10).
Edwards counters this argument based on the Maryland Pattern Jury Instructions and
Mumford v. State, 19 Md.App. 640 (C.S.A. 1974).
He contends that regardless of
whether a defendant charged with felony murder is also expressly charged with the
predicate felony, the jury must be instructed on the predicate felony because it is itself an
element of felony murder. (ECF 25 at pp. 11-13).
Mumford, a fifteen-year-old female, was convicted of first-degree murder for her role in
the burglary of a home. While Mumford was burglarizing the home, she also assisted in the
robbery of the homeowner, who had pulled into her garage during the event only to be robbed,
raped, and murdered by Mumford’s cohorts. While the Mumford court acknowledged that
under Maryland law, a defendant who acts with others to perpetrate a felony may be found
guilty of felony murder without being indicted and convicted of an underlying felony, id. at 643,
it nonetheless found that under the facts of the case, the jury should have been instructed that
Mumford could be found guilty of felony murder only if there were a direct causal connection
between the homicide and the felony for which she was convicted (robbery). Id. at 644. Unlike
the facts of Mumford, a direct causal connection exists here; Edwards clearly was identified as
one of two masked gunmen acting with accomplices during a robbery that resulted in the death
of a victim.10
Edwards notes that Maryland courts have recently reiterated that instructing on a predicate felony requires
instructing on the specific elements of that felony. See Austin v. State, Md. Ct. Spec. App., Sept. Term 2013,
No. 1172 at 11-12 (Dec. 23, 2014) (unreported) (“the trial court’s failure to instruct the jury as to the elements of
robbery or attempted robbery — which would thereby constitute a failure to properly instruct the jury as to the
elements of felony murder — renders this case the rare situation for which plain error review is appropriate”).
Austin provides no basis for relief; as pointed out by the appellate court reviewing Edwards’ conviction, the trial
court did instruct the jury as to the felony charged (robbery), and also instructed generally as to attempted robbery
(which was not charged).
Edwards asks this Court to disregard the state post-conviction court’s “cursory and
empty reasoning” and determine
representation when his attorney failed to ensure that a jury was instructed on every element
of the crime that sent him to prison for life, based on “the state of the law as it existed at the
time of . . . trial [which] required that the jury be instructed on all the elements of the crime of
felony murder, including the elements of the predicate felony,” so that the jury would have had
a full and correct understanding of the charges. (ECF 32 at p. 5). Alternatively, he contends that
had the trial court refused to give the instruction, the issue would have been preserved for
appeal. (Id.). Edwards argues the alleged error is therefore directed squarely at his counsel’s
performance, which deprived him of constitutional protections during the trial. He notes that
this Court has recognized that an attorney’s failure to ensure that a jury is instructed on
the elements of a crime is a mistake of constitutional magnitude, citing Ruiz v. United States,
146 F. Supp. 3d 726, 733 (D. Md. 2015) (failure to ensure instruction on mens rea element),
and Moore v. Garraghty, 932 F.2d 963 (4th Cir. 1991) (unpublished); Luchenburg, 79 F.3d at
393. Respondents counter that because Edwards was not charged with the predicate offense of
attempted robbery, “there was no reasonable basis for trial counsel to object to the absence”
of instructions on the elements of attempted robbery.
Whether a failure to request a particular jury instruction constitutes deficient performance
under federal law requires more than a simple failure to raise a claim, actual prejudice must be
demonstrated. See Strickland, 466 U.S. at 691 (“An error by counsel even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.”); see also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)
(“The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset
the adversarial balance between defense and prosecution that the trial was rendered unfair and
the verdict rendered suspect”). As noted above, the jury was instructed on attempted robbery,
and the facts adduced at trial provide a sufficient basis for a finding that Edwards committed a
felony murder in conjunction with his cohorts’ actions, which included robbery of the victims.
This allegation of error provides no basis for habeas corpus relief pursuant to 28 U.S.C. §§
2254(d)(1) and (2).
Jury Instruction with Regard to Second-Degree Murder
The allegation that counsel rendered ineffective assistance by failing to request a jury
instruction concerning second-degree murder was first raised in Edwards’ second supplement to
his petition for post-conviction relief. (ECF 16, Ex. 13 at p. 3). Because counsel did not request
such instruction, which Edwards categorizes as a lesser variety of felony murder, he was exposed
upon conviction to a life sentence. Had he instead been convicted of second-degree murder, that
conviction carried a maximum 30 year term of incarceration.
The post-conviction court summarized counsel’s testimony as follows. At the postconviction hearing, counsel explained that he did not request a second-degree felony murder
instruction because it would have added an additional charge to the already substantial 31-count
charging document, and counsel did not want to provide yet another reason upon which a jury
could find Edwards guilty. (Id. at p. 9). Counsel also admitted that at the time of trial in 2007,
he did not know that a first-degree assault could serve as an underlying felony in support of a
second-degree felony murder conviction under Maryland law.11 (ECF 25, Ex. 13 at p. 15). The
post-conviction court credited counsel’s testimony as to the explanation concerning the length of
See Roary v. State, 385 Md. 217, 230 (2005) (first-degree assault is proper underlying felony to support a seconddegree murder conviction). This Court notes that Roary also holds that felony murder in any degree does not
require that the defendant actually commit the murder. Id. at 229.
the indictment, finding it constituted a “valid, tactical reason for not requesting a second degree
felony murder instruction” (ECF 16, Ex. at p. 9), ignored counsel’s proclaimed ignorance of the
law, and found Edwards’ contention that the jury would have convicted him of a lesser offense
“merely speculative and without merit.” (Id. at p. 10).
Edwards now argues that the post-conviction court’s determination is erroneous, because
counsel could not have strategically refrained from requesting an instruction on second-degree
felony murder when he did not even know that it would have been appropriate to request the
charge in the case. Edwards also contends that even if one were to predict that, had counsel
known the instruction was warranted (even though he did not) he would have refrained from
requesting it anyway, that decision would not be constitutionally acceptable, citing DeCastro v.
Branker, 642 F.3d 442, 451 (4th Cir. 2011) (”we ask whether the strategy counsel chose was
objectively reasonable”). Edwards posits that given the specific facts of his case and the
possibility that the jury would find that he had committed a first-degree assault, it was
unreasonable for counsel to risk that a jury would convict him of first-degree felony murder
when only a conviction on second-degree felony murder was legally sustainable as a result
of the assault conviction. Thus, he argues, he suffered prejudice because he was sentenced to
life imprisonment, rather than a maximum of 30 years. (ECF 32 at 11-15). Edwards cites
United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988) to support his contention that he
had a right to an instruction on second-degree murder.
Dornhofer was convicted of receiving child pornography by mail. On appeal, he argued
that the district court erred in refusing to instruct the jury as to his theory of the case, i.e., that his
purchase and receipt of the material was inadvertent and, alternatively, that possession of
obscenity in the home is constitutionally protected. The appellate court found the trial court
provided an adequate instruction as to the knowing and willful receipt of child pornography, and
that no instruction was required as to possession of obscenity in the home, because the crime
charged involved his knowing receipt of child pornography in the mail,
and not merely
possession of it. Id., 859 F.2d at 1199.
Edwards’ reliance on Dornhofer is misplaced. As noted by Respondents, Edwards’
defense was that he was not the shooter who committed the murder and was not even present at
the scene, not that the crime committed was a lesser form of murder. (ECF 16, Ex. 6, pp. 103150; ECF 29 at p. 16).
Given the facts adduced at trial, Edwards was not prejudiced by trial counsel’s failure to
request a second-degree murder instruction. Habeas corpus relief is not required pursuant to 28
U.S.C. §§ 2254(d)(1) or (2).
Cumulative Effect of Errors
In his final claim, Edwards asserts entitlement to relief based on the cumulative effect of
trial counsel’s errors. This claim is foreclosed as a matter of law. See Fisher v. Angelone, 163
F.3d 835, 852–853 (1998) (rejecting cumulative effect analysis on ground that ineffective
assistance of counsel claims are to be reviewed individually, not collectively). A cumulative
error analysis would apply only to the effect of those matters actually determined to be
constitutional error and not the cumulative effect of all matters alleged or deemed deficient. Id.
Having examined the state court rulings and having independently examined the record, this
Court is satisfied that when applying the Strickland standard to the instant allegations of trial
counsel’s allegedly deficient performance, Edwards has not demonstrated the prejudice
necessary to establish his trial attorney’s ineffectiveness. See 28 U.S.C. § 2254(d); see also
Stamper v. Muncie, 944 F.2d 170, 178 (4th Cir. 1991). The state courts’ rejection of Edwards’
claims are neither contrary to clearly established federal law, nor did they involve an
unreasonable application of that law.
Having failed to rebut the presumption of correctness according to the findings of fact
made by the state courts in rejecting his claims for appellate and post-conviction relief, Edwards
is not entitled to federal habeas relief. Further, there is no basis upon which to find constitutional
deficiencies in the state court proceedings.
While he may appeal this determination, he must first obtain a Certificate of
A COA may issue Aonly if the applicant has made a substantial
showing of the denial of a constitutional right.@ 28 U.S.C. ' 2253(c)(2). A 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 there has been no
substantial showing of the denial of a constitutional right, this Court declines to issue a COA.12
See 28 U. S.C.§ 2253(c)(2).
A separate Order follows.
Date: January 18, 2017
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
Edwards may request a COA from the United States Court of Appeals for the Fourth Circuit.
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