Leftwich v. Foxwell et al
MEMORANDUM. Signed by Judge Catherine C. Blake on 1/10/2018. (jb5, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RORY LEFTWICH, #1029673,
RICKY FOXWELL and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Civil Action No. CCB-17-274
Rory Leftwich, currently confined at the Maryland Correctional Training Center in
Hagerstown, Maryland, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254. ECF No. 1. The petition challenges Leftwich’s 2011 conviction in the Circuit Court for
Howard County, Maryland for fourth-degree burglary, theft under $1,000, and rogue and
vagabond. Id. The Attorney General filed a response arguing that the petition should be denied
on the merits. ECF No. 8. Subsequently, Leftwich filed a reply to the response (ECF No. 11), as
well as a motion for appropriate relief (ECF No. 13).
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. 2016).
For the reasons that follow, Leftwich’s petition will be dismissed and his motion for appropriate
relief will be denied.1 A certificate of appealability will not issue.
Leftwich also has filed a motion for appointment of counsel (ECF No.12), which shall be denied. There is no
Sixth Amendment right to counsel to pursue a petition for habeas corpus. See Pennsylvania v. Finley, 481 U.S. 551,
555 (1987). A court may provide counsel for an indigent inmate pursuing a petition for habeas corpus if “the court
determines that the interests of justice so require.” 18 U.S.C. § 3006A(2)(B). Rule 6(a) of the Rules Governing §
2254 Cases provides that a court may appoint counsel if it is “necessary for effective discovery,” while Rule 8(c)
mandates that counsel be appointed “[i]f an evidentiary hearing is required.” In this matter, Leftwich has adequately
presented his claims, discovery is not warranted, and an evidentiary hearing is not necessary.
The facts at Leftwich’s jury trial in the Circuit Court for Howard County, as adduced by
the Court of Special Appeals of Maryland, are summarized as follows. Early in the morning on
November 17, 2010, Detective Brown of the Harford County Sherriff’s Department conducted
surveillance of Leftwich’s residence in Edgewood, Maryland.
ECF No. 8-2 at 7.
approximately 12:20 a.m., Detective Brown observed Leftwich’s pick-up truck depart from the
residence and proceed on Maryland Route 152 near the intersection of Interstate 95. Id. at 7.
Detective Brown followed the truck as it traveled south on Interstate 95, west on Interstate 695,
Interstate 70, Maryland Route 29, and west on Maryland Route 99 into Howard County, before
heading down a “no outlet” street. Id. at 7-9. After waiting for about 10 minutes, Detective
Brown saw the truck, driven by Leftwich, return to Maryland Route 99. Id. Leftwich continued
to turn onto nearby streets, disappearing for 10 to 29 minutes at a time. Id. Detective Brown
saw no other passengers in the truck, but observed bags and packages in the passenger seat. Id.
at 7, 11.
Detective Brown followed the truck as it returned to Edgewood in Harford County. Id. at
11. Along the way, the truck made three stops at gas stations, where Leftwich exited the vehicle
and used a credit card to pay for gas. Id. Detective Brown called ahead to another detective,
who arrested Leftwich when he reached his residence. Id. Detective Brown then executed a
search and seizure warrant for Leftwich’s truck and person, and seized over fifty items. Id.
On the morning of November 17, 2010, Corporal Raymond Conner of the Howard
All exhibits referenced were filed by respondents and are docketed at ECF No. 8. Leftwich did not file any
exhibits. Citations are to the pagination found on the Court’s electronic docket.
County Police Department arrived at Leftwich’s residence after receiving a call that “Harford
County had some property pertaining to some addresses in Howard County.” ECF No. 8-2 at 25.
After conducting a brief review of the seized property, Corporal Conner believed that the
property belonged to Howard County residents. Id. He then contacted the likely owners to ask
them to claim their property. Id.
Seven Howard County residents testified that on November 17, 2010, upon inspection of
their vehicles, they discovered that several items were missing. Id. at 13-23. Some of those
residents identified the missing articles from photographs of the items seized from Leftwich on
the morning of his arrest. Id. at 19-23.
Leftwich did not testify at trial. ECF No. 1 at 2. The jury convicted him of six counts of
theft under $1,000, seven counts of rogue and vagabond, and two counts of fourth-degree
burglary. ECF No. 8-2 at 5. He was sentenced to serve a total of 21 years in prison, or one
sentence of three years’ imprisonment as to each of the seven victims. See id at 5 n.2.
Leftwich raised two issues on appeal to the Court of Special Appeals of Maryland: 1)
whether the evidence was sufficient to sustain his convictions for fourth-degree burglary and
rogue and vagabond; and 2) whether he was improperly convicted of both fourth-degree burglary
and theft based on the same acts with respect to two victims. ECF No. 8-2 at 5. By unreported
opinion filed on December 4, 2012, the Court of Special Appeals affirmed all but two of
Leftwich’s convictions, making no impact on the sentence as imposed. Id at 47. Leftwich then
filed a petition for a writ of certiorari, which the Court of Appeals of Maryland denied on March
26, 2013. See ECF No. 8-1 at 17.3
On July 5, 2012, while his direct appeal was pending in the Court of Special Appeals,
Leftwich filed a pro se petition for post-conviction relief in the Circuit Court for Howard County
and raised these allegations of error:
(A) trial counsel rendered ineffective assistance with respect to 18 issues and faced a
conflict of interest;
(B) the trial court made prejudicial comments in the presence of the jury;
(C) the prosecution employed improper pre-trial and trial tactics; and
(D) appellate counsel was ineffective for failing to raise all relevant issues on appeal.
ECF No. 8-3 at 7-21. On February 13, 2013 and August 12, 2013, Leftwich filed pro se
supplements to his post-conviction petition. ECF No. 8-1 at 16-17. On February 7, 2014,
Leftwich filed an additional supplement through counsel, raising a single issue: that trial counsel
rendered ineffective assistance by incorrectly informing him that the State’s key witness would
not be present to testify, thus prompting him to reject the State’s plea offer and elect to proceed
to trial. See id. at 18; ECF No. 8-8 at 21. In total, Leftwich raised 56 allegations in his petition
for post-conviction relief, including those raised in supplements. See id at 3-21.
The circuit court heard Leftwich’s post-conviction petition on December 19, 2013, March
6, 2014, June 2, 2014, and June 9, 2014. See ECF No. 8-1 at 18-19. By order entered on April
Respondents incorrectly state that “Leftwich did not file a petition for writ of certiorari” to the Court of Appeals.
ECF No. 8 at 6-7. Nonetheless, they concede that “Leftwich’s petition need not be dismissed for failure to satisfy
the exhaustion requirement set forth in 28 U.S.C. § 2254 (b)-(c)” because “whether or not Leftwich has presented
his current contentions to all appropriate state courts, he no longer has direct appeal or state post-conviction
remedies available with respect to the claims that he now raises in this Court.” Id. at 11-12.
8, 2015, the Circuit Court for Howard County denied Leftwich post-conviction relief. ECF No.
Subsequently, Leftwich filed an application for leave to appeal the denial of his postconviction petition, raising the following claims:
(A) the post-conviction court erred when it disregarded evidence that was obtained in
violation of Leftwich’s Fourth, Fifth, Sixth, and Fourteenth Amendment rights
and which was used to procure his arrest and conviction;
(B) the post-conviction court erred when it disregarded evidence of Leftwich’s illegal
arrest, which was made without probable cause and which provided an illegal pretrial identification;
(C) the post-conviction court erred in failing to conclude that the jury polling
procedure employed in Leftwich’s trial was unconstitutional;
(D) the post-conviction court erred in failing to conclude that Leftwich’s sentence is
violative of the Fifth Amendment; and
(E) the post-conviction court erred in failing to conclude that Leftwich’s trial counsel
was constitutionally ineffective by: (1) failing to communicate all plea offers; (2)
failing to prepare pre-trial sentencing guidelines for comparison purposes; and (3)
providing false and/or incorrect and/or misleading advice concerning the strength
and weakness of the State’s case.
ECF No. 8-9 at 7-8. On July 11, 2016, the Court of Special Appeals issued a mandate denying
Leftwich’s application for leave to appeal. ECF No. 8-10.
In Leftwich’s federal petition for habeas corpus relief, he claims ineffective assistance on
the part of his trial attorney. See ECF No. 1 at 7. First, Leftwich alleges that trial counsel’s
incorrect advice concerning the State’s evidence and witnesses “was misleading and
constitutionally prejudicially deficient,” and hindered his ability to make a knowing and
intelligent decision as to whether he should accept the plea offer. ECF No. 1 at 7. Second,
Leftwich contends that during the plea bargaining stage, his defense counsel “failed to prepare
pretrial sentencing guidelines and communicate and/or effectively advise the petitioner his risk
exposure to incarceration via the applicable guidelines.” Id. Accordingly, Leftwich argues that
the post-conviction court erred in denying him post-conviction relief, and likewise, the appellate
court erred in denying his application for leave to appeal. See id. at 8.
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, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“Act”), sets forth a “highly 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, 455 (2005). In order
to obtain relief on his ineffectiveness claims, the petitioner must show that the adjudication of
such claims at the state court level:
(1) resulted 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) resulted 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). The Act further provides that:
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and
28 U.S.C. § 2254(e)(1).
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’s].” Williams v.
Taylor, 529 U.S. 362, 405 (2000) (citation omitted). 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 v. Richter, 562 U.S. 86, 101 (2011) (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. (emphasis and citation omitted).
Leftwich argues that his trial counsel rendered constitutionally ineffective representation
by: (1) giving incorrect information concerning the State’s evidence which hindered his ability to
make a knowing and intelligent decision regarding the plea offer; and (2) failing to effectively
prepare, communicate, and advise him of the applicable sentencing guidelines.
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.”
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Representation is deficient if it falls below “an objective standard of reasonableness.” Id.
at 688. To satisfy this first prong, it must be demonstrated that counsel’s performance was not
“within the range of competence normally demanded of attorneys in criminal cases.” Id. at 687
(citations omitted). The standard for assessing such competence is “highly deferential” and has a
“strong presumption that counsel’s conduct falls within a wide range of reasonable professional
assistance.” Id. at 689. A federal court’s consideration of ineffective assistance of counsel
claims arising from state criminal proceedings is limited on habeas review due to the deference
accorded trial attorneys and state appellate courts reviewing their performance. A defendant
must overcome the “‘strong presumption’ that counsel’s strategy and tactics fall ‘within the wide
range of reasonable professional assistance.’” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir.
2001) (quoting Strickland, 466 U.S. at 689). “When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
A showing of prejudice requires that there was a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have been different.
Strickland, 466 U.S. at 694. “The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied upon as having produced a just result.”
Id. at 686.
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 695-6. Thus, “[a] fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689.
Leftwich’s claims of ineffective assistance of counsel will be analyzed under these
Leftwich claims that trial counsel was deficient for informing him that Cpl. Conner, the
State’s key witness, would not be testifying because Cpl. Conner’s wife was having a baby at the
time of the scheduled trial. See ECF No. 1-1 at 22. According to Leftwich, trial counsel
informed him that the circuit court denied the State’s postponement request and further
“advised” him that she did not think the State could prove its case without Cpl. Conner’s
testimony. Id. Leftwich avers that, as a result, he rejected the State’s plea offer of seven years’
incarceration4 and opted instead to proceed to trial, where Cpl. Conner did, in fact, testify. Id. at
17, 23. Thereafter, Leftwich was found guilty and was sentenced to 21 years in prison.
During the post-conviction hearing, trial counsel testified regarding this issue and
recalled that she had told Leftwich that Cpl. Conner, who was “essentially part of the chain of
custody of the evidence was on the bubble list as to whether he would be a witness” because his
“wife was due any day to have [a] baby and it looked like it was likely to come sometime during
the middle of this trial.” Tr. at 26-27, ECF No. 15-4.
Trial counsel also stated that she told
Leftwich, “without . . . Detective [Conner] there was going to be a break in that chain that could
play out in his favor.” Id. at 27. Trial counsel further testified that the State “offered a cap of
five years” which Leftwich’s mother believed Leftwich should accept. Id. at 28. When trial
counsel informed Leftwich, however, he “indicated . . . that he did not want to deal” despite his
mother’s advice. Id. at 29.
In addition, trial counsel recalled that the State had filed a request for postponement,
which the circuit court denied. Id. at 30. Trial counsel testified that when she asked Leftwich
Leftwich also states that he later discovered that “the prosecutor ultimately amended the original plea offer of 7
years to a 5-year cap as . . . they were having trouble securing other witnesses . . . .” ECF No. 1-1 at 30.
whether he wanted the trial postponed, she advised him that “it was in our best interest if he still
wanted a trial to stick with what we had because there was this chance that Detective [Conner]
wasn’t going to be able to testify.” Id. at 30-31.
Leftwich presented this ineffective assistance claim to the post-conviction court, which
rejected it as follows:
It is clear from the testimony of [trial counsel] and [the prosecutor] that,
pretrial as well as through the morning of the second day of trial, the best
information was that the Detective was not going to be there but that, in fact, he
was able at the last minute to arrange to be there. So the original information that
he would be unavailable was not false at the times furnished, pretrial or by the
morning of the second day of trial, it was merely overtaken by change in events.
Mr. Leftwich ultimately made a tactical decision to go forward with the
trial, and placed the bet to take the chance that the Detective would be unavailable
based on the best information to that effect at the time furnished. Unfortunately
for him, he lost that bet.
This situation comes nowhere close to that in Williams v. State, 326 Md.
367 (1992) wherein trial defense counsel in discussing a plea offer to his client
failed to inform him that if found guilty at trial, he was facing a 25 year
As to these Allegations, a review of the record reveals that neither the
State nor his trial counsel provided information that was false at the times given,
as the Petitioner asserts. As sometimes happens with the dynamics of a trial and
pregnancies, witnesses and babies are able to show up at times when they are
projected not to. Because of their related exigencies the delivery of babies, like
trials, are not always predicable with certainty. Thus, this Court rules that since
these statements were not false at the time made, they did not [satisfy] the first
prong of Strickland so as to constitute ineffective assistance of counsel, i.e., a
failure to meet acceptable standards of professional competency or the equivalent
for Post Conviction purposes.
Applicable law provides that if trial counsel has a sound tactical reason for
his actions or inactions, a post-conviction court may not deem the action or
inaction deficient. State v. Matthews, 58 Md. App. 243 (1984). Finding no false
information was relayed by trial counsel, here going to trial instead of taking a
plea, and withdrawing the Motion for Mistrial on the hopes that a key witness
would not appear because the witness’s wife was to deliver a child the next day,
was ultimately the Petitioner’s significant tactical decision, which the holding in
Treece [v. State, 313 Md., 665 (1988)] makes clear was Petitioner/Defendant’s to
make. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
placed the burden upon a petitioner to show that a claimed deficient act could not
be excused as a trial tactic. Thus, the appropriateness of acts or omissions as trial
tactics is a matter which the petitioner must rebut; it is not a defense the State has
to prove. The genesis of the concept that a trial counsel could be excused for his
actions on the ground that the action was an appropriate trial tactic was first
mentioned in the case of Woodell v. State, 223 Md. 89, 96 (1960).
To qualify as a sound trial tactic, three requirements must be met:
The action or inaction was intentional.
It was reasonable for trial counsel to have believed that the action
or inaction would produce desired objective. It must be shown that
there was a reasonable basis for trial counsel to have believed that
the action would produce the desired objective.
The objective was worthwhile.
This Court finds that three criteria were met. There was no false
information provided, but information which was relayed and acted upon was that
there was a true possibility at the time relayed to Petitioner that the key police
witness might not appear, which the Petitioner heard and made the ultimate
decision to go forward with trial and withdraw the Mistrial Motion. The situation
changed, as the witness was able to appear; thus, Allegations as set out were not
Strickland violations. State v. Jourdan, 22 Md. App. 648 (1974), rev’d on other
grounds, 275 Md. 195 (1975). See also United States v. Cronic, 466 U.S. 648,
656-57 n.19 (1984) and Wiggins v. State, 352 Md. 580, 608, cert. denied, 528
U.S. 832 (1999)[.]
ECF No. 8-7 at 169-75.
The post-conviction court’s ruling survives scrutiny under 28 U.S.C. § 2254(d). The
decisions of counsel may be subject to second-guessing with the benefit of hindsight; however,
tactical and strategic choices made by counsel after due consideration do not constitute
ineffective assistance of counsel, and there is a strong presumption that counsel’s conduct was
within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689.
Here, the post-conviction court correctly noted that trial counsel’s advice was not incorrect or
misleading at the time it was given, and was based on a sound trial strategy. Thus, trial counsel’s
performance was not deficient, and Leftwich has failed to satisfy the standard set forth in
Strickland. Having reviewed the record in light of the deferential standard of review applicable
to 28 U.S.C. § 2254 proceedings, the court concludes that the state post-conviction court's
decision did not involve an unreasonable application of federal law or an unreasonable
determination of the facts.
Next, Leftwich asserts that trial counsel provided ineffective assistance by failing to
prepare pretrial sentencing guidelines and to effectively advise him of “his risk exposure to
incarceration via the applicable guidelines.” ECF No. 1 at 7. Specifically, Leftwich claims that
it was unreasonable for trial counsel to rely upon the “single larceny doctrine” in arguing that
Leftwich should receive a single three-year sentence as to all counts. ECF No. 1-1 at 39.
According to Leftwich, trial counsel’s belief that the doctrine would apply amounts to
“substandard performance” under Strickland, and does not excuse her failure to prepare pretrial
sentencing guidelines. Id. at 40.
It is unclear whether Leftwich presented this exact claim to the post-conviction court.5
During the post-conviction hearing, however, trial counsel recalled the theory upon which she
proceeded with respect to attempting to mitigate the punishment for Leftwich as “the single
Respondents attached as exhibits Leftwich’s post-conviction petition as well as three supplements, but neither
party attached his fourth supplement. The appendix to the statement of reasons memorandum denying postconviction relief, entered on April 8, 2015, however, outlines 56 allegations of error, none of which appear to align
with this claim. See ECF No. 8-8 at 3-21. That appendix does not refer to the fourth supplement, filed on April 7,
2014. See id.; ECF No. 8-1 at 18.
larceny doctrine.” Tr. at 56, ECF No. 15-4. Trial counsel stated that she asked the circuit court
to consider all counts as “one course of event,” warranting a three-year sentence with the
sentence for each count running concurrently. Id.
Leftwich also testified, albeit with regard to his claim that trial counsel “was deficient in
not attacking the multiplicity and duplicity of the charging document.” Tr. at 105, ECF No. 153. When asked whether trial counsel “attempted to convince a court that this was just one big
crime not eight small crimes,” Leftwich responded that trial counsel “should have argued the
Blockburger [v. United States, 284 U.S. 299 (1932)] issue instead.” Id. at 106. Leftwich also
argued that he should have been charged with only one count of rogue and vagabond because he
“only committed one crime,” to which the court stated:
And you know what, the attorney makes that argument, and the Court
doesn’t buy it, that’s not ineffective assistance of counsel. That may be error on
the part of the judge, but that’s not ineffective assistance of counsel.
You take the shot. A lot of lawyers argue things, sometimes, and, you
know, we don’t buy it all the time. Sometimes we’re right, sometimes we’re
wrong, you know. That’s life.
Id. at 91-92.
The post-conviction court thus concluded that trial counsel had sound tactical reasons for
her action, a determination that is supported by the record.
The fact that the tactic was
unsuccessful or that Leftwich disagrees with his attorney’s strategy does not establish ineffective
assistance of counsel.
See Strickland, 466 U.S. at 689.
The post-conviction court’s
determination that counsel’s actions were not constitutionally deficient is entitled to deference
and will not be disturbed.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district court
“must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” A certificate of appealability may issue only if the petitioner has made a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Buck v. Davis, 137
S. Ct. 759, 773 (2017). To meet this burden, an applicant must show that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). Leftwich has failed to make a substantial showing he was denied a
constitutional right, and this court finds that reasonable jurists would not find the denial of
habeas relief in this case debatable. Therefore, a certificate of appealability shall not issue.
For these reasons, the court concludes the petition provides no grounds for habeas corpus
relief. A separate order follows denying the petition and Leftwich’s motions, and declining to
issue a certificate of appealability.
Catherine C. Blake
United States District Judge
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