Hammond v. Wolfe, Warden

Filing 53

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 7/5/2023. (ybs, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JURONE HAMMOND

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Petitioner

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v

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WARDEN JOHN S. WOLFE and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND

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Respondents

Civil Action No. RDB-17-3721

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*
***
MEMORANDUM OPINION

Respondents have filed a Supplemental Answer in response to this Court’s Order of March
16, 2023, directing them to address the claim identified by the Fourth Circuit in its decision
remanding this case. ECF No. 48. Because Respondents assert that Petitioner’s ineffective
assistance of counsel claim is untimely, Petitioner was given an opportunity to demonstrate any
basis for excusing the delay. ECF No. 51. On April 28, 2023, Petitioner filed his Reply. ECF No.
52. No hearing is necessary for the determination of the matters pending. See Rule 8(a), Rules
Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md.
2021); 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 stated below, the Petition shall be dismissed and a
certificate of appealability shall not issue.
BACKGROUND
On December 15, 2017, Petitioner Jurone Hammond, through counsel Laura Rhodes, filed
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging that the Circuit Court
for Prince George’s County failed to consider Hammond’s youth and its attendant characteristics
before sentencing him to three concurrent life sentences plus a consecutive term of fifteen years.

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ECF No. 1 at 19. Hammond relied on the Supreme Court’s decisions in Miller v. Alabama, 567
U.S. 460 (2012) and Montgomery v. Louisiana, 577 U.S. 190 (2016) to support his argument that
the sentencing court’s failure to consider “transient immaturity” versus “irreparable corruption”
amounted to a violation of Hammond’s constitutional rights under the Eighth Amendment. ECF
No. 1 at 19-20, quoting Miller, 567 U.S. at 472. In tandem with his petition, Hammond moved for
a stay and abeyance of his petition to enable his counsel to return to State court to exhaust his
claim. ECF No. 2. This Court granted the stay after it determined that a stay of these proceedings
did not run afoul of the cautionary language in Rhines v. Weber, 544 U.S. 269, 277 (2005) which
warns a stay should only be used in limited circumstances because it “effectively excuses a
petitioner’s failure to present his claims.” Id. This Court determined that Hammond had no
opportunity to present his Montgomery claim to the appropriate Maryland courts for review before
the timely filing of this petition and staying this matter did not operate to excuse an idle failure to
pursue the claims presented. ECF No. 8 at 4-5.
This Court additionally found that Hammond’s Miller/Montgomery claim was timely filed
because the Petition was filed within one year of the Supreme Court’s decision in Montgomery
taking into account the period of time Hammond’s claim was tolled while State court proceedings
were pending. ECF No. 8 at 3-4, see also 28 U.S.C. § 2254(d)(2). Specifically, when the
Montgomery decision was issued, Hammond was in the process of litigating post-conviction
claims. Id. at 4. This Court declined Respondents’ invitation to find that the Maryland Court of
Appeals (N.K.A. Maryland Supreme Court) erroneously considered Hammond’s Petition for Writ
of Certiorari on its merits. Id.

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The facts established at Hammond’s jury trial were briefly summarized by the Maryland
Court of Special Appeals (N.K.A. Appellate Court of Maryland) in its opinion affirming the trial
court’s denial of a “reverse waiver” to juvenile court.
[T]he State established that the victim owed the appellant ten dollars for drugs
she had purchased from him on another occasion. When she did not repay him
on demand, he dragged her by the hair into a friend’s apartment. Once inside
the apartment, he burned her hands and wrists with a heated knife, poured
alcohol over the burns, and forced her to engage in oral, vaginal, and anal sex.
Appellant was sixteen years and four months old when he committed the
offenses.
ECF No. 1-11 at 2.
Relevant to the issue remanded to this Court, Hammond filed a pro se status report on June
10, 2019, stating he had uncovered new evidence based on a revelation in a 2015 hearing on his
motion to reopen post-conviction proceedings. ECF No. 14. According to Hammond, he was
denied his right of choice of counsel by the Public Defender’s office by virtue of an office policy
that denied defendants the option of discharging counsel. Id. Specifically, he stated that:
[M]y trial counsel’s best friend and supervisor . . . testified that the reason my
trial counsel did not apprise my trial judge of my wish to discharge trial counsel
(and hire private counsel), and did not inform me of my right to confront my
trial judge, was intentional and due to a “office policy” that she had implemented
because she personally believed that defendants should not have the right to pick
and choose which attorneys represented them at trial.
Id. at 3 (emphasis in original). Hammond claimed that because he was told prior to trial that the
judge would not allow him to discharge counsel and hire private counsel, his family abandoned
plans to hire an attorney to represent him. Id. at 1. Hammond argues that the existence of this
office policy created a conflict of interest for his trial attorney because counsel was forced to
“choose the unethical and illegal ‘office policy’ of his personal friend and supervisor, or his ethical
obligations and rights of his client.” Id. at 4. He relies on Weaver v. Massachusetts, 582 U.S. 286
(2017) for the supposition that he need not show prejudice occurring as a result of trial counsel’s
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failure to allow him to discharge counsel in favor of private counsel because it is a structural defect
in the trial. Id.
In subsequent pro se status reports Hammond indicated that he had a dispute with his
attorney, Laura Rhodes, regarding the propriety of filing a petition for a writ of actual innocence
in state court. ECF Nos. 15, 16. This Court issued an Order on August 28, 2019, requiring
Hammond’s counsel to file a response to the allegations he raised in his status reports. ECF No.
17.
Ms. Rhodes filed a status report together with an affidavit filed under seal. ECF No. 18;
ECF No. 19. Counsel detailed difficulties she had encountered in obtaining funding to adequately
present Hammond’s case in state court including the need for expert testimony and a need for a
neuropsychological expert as well as “significant differences between Mr. Hammond and
[counsel] as to what arguments to make” which had stalled progress in state court proceedings.
ECF No. 19. Based on those differences, Ms. Rhodes indicated she could not proceed in state
court with Hammond’s case. ECF No. 18 at 2.
Following counsel’s status report, Hammond continued to file pro se status reports stating
that “newly discovered evidence” established he was denied counsel of choice due to trial
counsel’s refusal to withdraw or to initiate procedures to withdraw, based on the office policy.
ECF Nos. 20, 21 and 23. In a pro se status report filed on March 2, 2020, Hammond claimed that
he was denied counsel of choice because after he fired his trial attorney, the trial attorney refused
to withdraw from the case and also failed to inform the court that Hammond wanted to discharge
him. ECF No. 24. Additionally, Hammond claimed that Ms. Rhodes had told him she would
withdraw from his case completely if he continued to insist on pressing his claims regarding his
trial attorney and the Office of the Public Defender. Id. at 2. Hammond surmised that Ms. Rhodes’

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position was grounded on the fact that Hammond’s trial attorney and his supervisor were now
“very powerful and respected judges in Maryland.” Id. In another pro se status report, Hammond
explained his ineffective assistance of counsel claim as follows:
At trial, I was represented by the office of the public defender. I wish to preface
this with two points.
(1) I did not want to testify. The court went off record prior to me going to the
bathroom and I was asked if I wished to testify and I told them “no” and the
judge said “O.K.”
When I came back from the bathroom my counsel told me that the judge said I
had to testify and once back on the record, the judge clarified this with my
attorney, without inquiring if this change of position was my own. I did not want
to testify at no point!
(2) As I was represented by counsel[,] I could not represent my claim of
innocence “pro se.” Therefore that responsibility fell onto the burdens and
obligations of trial counsel to present it as a defense.
Instead, my trial counsel conceded my guilt in spite of me begging him not to.
This position of counsel was his from his introduction as my attorney,
throughout my sentence (and even collateral review). . . . Ultimately[,] this is
the reason that I decided to discharge my public defender to hire private counsel
of my choice, well before my trial began. He was my adversary not my public
defender. . . .
Pretrial[,] I did everything that I knew to be right to discharge my public
defender. I fired him in person, through correspondence, and third person.
I wrote to each of his supervisors apprising them of my intentions.
I even request[ed] (in accordance [with] the law) from each of them, what steps
I needed to take to discharge my public defender and hire private counsel.
During that period, I was under the logical impression that I had to go through
the Public defender’s Office to obtain any lawyer, private or public defender.
This was based off the fact that my co-defendant hired her private attorney
through that office and she told me that.
In the State of Maryland, attorneys of a defendant, or any “officer of the court,”
is obligated to apprise the court of a defendant’s pretrial request to discharge his

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public defender. To not do so is a denial of that defendant’s mandatory right to
a Maryland Rule 4-215(e) inquiry. . . .
***
I explained this to Mrs. Rhodes that the testimony of the Hon. Maureen
Lamasney as my trial counsel’s supervisor, was newly discovered and could not
otherwise been known to us, without her volunterness [sic]. I went on to explain
that Hon. Lamasney testified that the reason that my trial counsel or any of his
other supervisors did not inform my trial judge of my desires to discharge my
public defender and hire private counsel, or to respond to my request for
information on the matter (in accordance with State and federal law), was
because she implemented and enforced an office policy that forbade any of her
associate attorneys from honoring these legal obligations because she didn’t
want it to look as though her attorneys at her public defenders office [were]
incapable of doing [their] jobs. Creating an actual conflict of interest.
ECF No. 25 at 2-5 (emphasis in original) (citations omitted).
The office policy Hammond references was explained by Ms. Lamasney at the February
12, 2015 hearing on Hammond’s motion to reopen post-conviction proceedings. She stated during
her testimony that the Prince George’s County Public Defender’s Office had a policy “not to
reassign a case at the request of a defendant.” ECF No. 1-9 at 41. The rationale behind the policy
was to “maintain . . . control over the assignment process,” explaining that if every defendant was
allowed to pick and choose their lawyers there would be no consistent assignment policy. Id. She
further indicated that she had read “thousands” of letters from defendants requesting a new attorney
and surmised that most were the result of “personality conflict, or control issues, or the desire to
get a continuance” but if an attorney had come to her with a request to be taken off a case it could
be reassigned depending on the reason for the request. Id. at 41-42. Ms. Lamasney added that this
policy was a statewide office policy and that she was unaware of any caselaw in existence in 1996
or 1997 that required notification of the court that the defendant was requesting a new attorney.
Id. at 46. During cross-examination she explained that when a defendant continued to insist on
firing their trial attorney, they were advised that they would need to “take the public defender you

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are assigned or you are free to hire your own attorney” and “if you can’t afford to hire your own
attorney you will get a public defender, but it will be our choice, not your choice.” Id. at 47.
In light of the various status reports indicating Hammond had abandoned the sole claim
that warranted a stay and abeyance, the stay was lifted in an Order dated June 1, 2020. ECF No.
26. Hammond then filed an amended pro se Petition on July 20, 2020. ECF No. 30. He raised
two claims of ineffective assistance of trial counsel: (1) “trial counsel (burdened by an actual
conflict of interest) caused [Hammond] to have [his] right to counsel of choice denied”; and (2)
“trial counsel’s law firm’s illegal office policy caused [Hammond] to be denied [his] right to
counsel of choice.” Id. at 4. Hammond accompanied his amended petition with a Motion to
Reconsider the Order lifting the stay. ECF No. 31. As grounds for reconsideration Hammond
claimed he was not being uncooperative with his attorney, Ms. Rhodes; rather he simply wanted
to exhaust all claims in the state courts so they may be raised in this Court. Id. at 4. Based on
these assurances, Hammond asked this Court to reconsider the Order lifting the stay to allow him
to exhaust his ineffective assistance of counsel claims. Id. at 6.
In denying Hammond’s motion, this Court observed that:
Mr. Hammond’s choice to pursue his right of counsel claim through a Petition
for Writ of Actual Innocence in the State courts removes the rationale for the
stay and abeyance issued in this case. His claim, that he was not permitted to
discharge appointed counsel, is not filed within one-year of “the date on which
the constitutional right asserted was initially recognized by the Supreme Court”
and to the extent he seeks to add such a claim to the petition pending in this
Court, the claim is not timely raised. 28 U.S.C. § 2244(d)(1)(C). The only claim
for which this matter was stayed for the purpose of allowing Mr. Hammond to
exhaust State remedies was the claim grounded on the Supreme Court’s
announcement of rights pertaining to persons who received discretionary life
sentences as juvenile offenders in Montgomery v. Louisiana, (2016). It now
appears that Mr. Hammond intends to abandon that claim and due diligence for
pursuing the claim in State court can no longer be attributed to him, foreclosing
any cognizable rationale for a continued stay in this case. While the wisdom of
Mr. Hammond’s decision to do so is not readily discernible, it is his right to

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abandon or pursue any claims he wishes to present. However, his decision has
stripped away any basis for this case to continue to be stayed.
ECF No. 35 at 2-3.
On February 22, 2021, Hammond appealed the dismissal of his petition to the Fourth
Circuit Court of Appeals. ECF No. 38. On September 13, 2022, the Court of Appeals issued a
judgment dismissing the appeal and remanding the matter to this Court. ECF No. 45. It is the
appellate court’s view that this Court had not “resolved all claims as to all parties” and therefore
it did not have jurisdiction over the appeal. ECF No. 45-1 at 2, quoting Porter v. Zook, 803 F.3d
694, 696 (4th Cir. 2015) (emphasis in original). This Court was directed to “consider Hammond’s
argument that his attorney provided ineffective assistance by essentially abandoning Hammond at
trial and conceding Hammond’s guilt without his consent.” Id.
In response to this Court’s Order to respond to the claim referenced by the Court of
Appeals, Respondents assert that the claim is barred by the one-year filing limitation, is not subject
to statutory or equitable tolling, and Hammond has not established a credible actual innocence
claim. ECF No. 50. In his Reply, Hammond argues that the claims he is raising are not subject to
time constraints because they are “fundamental constitutional rights.” ECF No. 52.
STANDARD OF REVIEW
A.

Statute of Limitation

A Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is subject to the
one-year filing limitation provisions found in § 2244, which provides that the filing period runs
from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;

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(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
“[T]he one year limitation period is also subject to equitable tolling in ‘those rare instances
where -- due to circumstances external to the party’s own conduct -- it would be unconscionable
to enforce the limitation against the party and gross injustice would result.’” Hill v. Braxton, 277
F.3d 701, 704 (4th Cir. 2002) quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
To be entitled to equitable tolling, a federal habeas petitioner must establish that either some
wrongful conduct by Respondents contributed to his delay in filing his petition or that
circumstances that were beyond his control caused the delay. See Harris, 209 F.3d at 330. A
federal habeas petition does not toll the one-year limitation period. See Duncan v. Walker, 533
U.S. 167, 175 (2001) (a federal habeas petition is not an application for State post-conviction or
other collateral review within the meaning of § 2244(d)(2) and therefore does not toll the limitation
period while it is pending).
B.

Actual Innocence

Actual innocence is an “equitable exception to § 2244(d)(1), not an extension of the time
statutorily prescribed.” McQuiggin v. Perkins, 569 U.S. 383, 391 (2013) (emphasis in original).
“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims

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on the merits notwithstanding the existence of a procedural bar to relief.” Id. at 392. The merits
of a petition which is concededly time-barred, may be reached if “new evidence shows ‘it is more
likely than not that no reasonable juror would have convicted [the petitioner].’” Id. at 395, quoting
Schlup v. Delo, 513 U.S. 298, 329 (1995). In the context of an untimely petition, “[u]nexplained
delay in presenting new evidence bears on the determination whether the petitioner has made the
requisite showing.” Perkins, 569 at 399. “It would be bizarre to hold that a habeas petitioner who
asserts a convincing claim of actual innocence may overcome the statutory time bar
§ 2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit
of [his] petition.” Id. “This rule, or fundamental miscarriage of justice exception, is grounded in
the equitable discretion of habeas courts to see that federal constitutional errors do not result in the
incarceration of innocent persons.” Id. at 392.
Whether a petitioner has satisfied the miscarriage of justice exception requires the
reviewing court to consider “all the evidence, old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under rules of admissibility that would govern
at trial.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted). The new
evidence must be evaluated with any other admissible evidence of guilt. Wilson v. Greene, 155
F.3d 396, 404-05 (4th Cir. 1998). “‘To be credible, a claim of actual innocence must be based on
reliable evidence not presented at trial.” Schlup, 513 U.S. at 324. “Without any new evidence of
innocence, even the existence of a concededly meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits
of a barred claim.” Id. at 315–17.
The Supreme Court “caution[ed], however, that tenable actual-innocence gateway claims
are rare: ‘A petitioner does not meet the threshold requirement unless he persuades the district

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court that, in light of the new evidence, no juror acting reasonably would have voted to find him
guilty beyond a reasonable doubt.’” Perkins, 569 U.S. at 386 (brackets omitted) (quoting Schlup,
513 U.S. at 329; House, 547 U.S. at 538; Wilson, 155 F.3d at 404 (“Claims of actual innocence . .
. should not be granted casually.”) (internal citations omitted). To sustain a credible claim of actual
innocence a Petitioner must marshal “new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented
at trial.” Schlup, 513 U.S at 324. “Because such evidence is obviously unavailable in the vast
majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324. The
gateway actual innocence “standard is demanding and permits review only in the extraordinary
case.” House, 547 U.S. at 538 (citation omitted); see, e.g., Perkins, 569 U.S. at 401 (“We stress
once again that the [actual innocence] standard is demanding.”); Wilson, 155 F.3d at 404 (“Claims
of actual innocence . . . presented . . . as gateways to excuse a procedural default . . . should not be
granted casually.”).
“At the same time, though, the [actual innocence] standard does not require absolute
certainty about the petitioner’s guilt or innocence.” House, 547 U.S. at 538. “Rather, the petitioner
must demonstrate that more likely than not, in light of new and reliable evidence, no reasonable
juror would find him guilty beyond a reasonable doubt.” Teleguz v. Zook, 806 F.3d 803, 809 (4th
Cir. 2015) (citing House, 547 U.S. at 538). The actual innocence determination “requires a holistic
judgment about all the evidence and its likely effect on reasonable jurors applying the reasonabledoubt standard.” House, 547 U.S. at 539 (internal citations and quotations omitted); Finch v.
McKoy, 914 F.3d 292 (4th Cir. 2019).
In reviewing the record, the Court must “make a probabilistic determination about what
reasonable, properly instructed jurors would do.

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The Court’s function is not to make an

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independent factual determination about what likely occurred, but rather to assess the likely impact
of the evidence on reasonable jurors.” House, 547 U.S. at 538 (internal citations and quotations
omitted). The petitioner must “demonstrate that the totality of the evidence would prevent any
reasonable juror from finding him guilty beyond a reasonable doubt, such that his incarceration is
a miscarriage of justice. Only if petitioner passes through the actual innocence gateway by
satisfying this standard, can this Court consider and reach the merits of his claims.” Teleguz, 689
F.3d at 329 (internal citations omitted).
C.

Ineffective assistance of counsel
When a petitioner alleges a claim of ineffective assistance of counsel, he must show both

that counsel's performance was deficient and that the deficient performance prejudiced his defense.
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.
Because the instant petition is subject to the provisions of the federal habeas statute, 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“Act”),
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.
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28 U.S.C. § 2254(d)(Supp.1997). 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 convincing evidence.
§ 2254(e)(1).
As the Supreme Court held in Strickland v. Washington, supra, “a state court conclusion
that counsel rendered effective assistance of counsel is not a finding of fact binding on the federal
court to the extent stated by [former] 28 U.S.C. § 2254(d)[ now § 2254(e)(1)].” Id. at 698. Rather,
“although state court findings of fact made in the course of deciding an ineffectiveness claim are
subject to the deference requirement of § 2254[(e)(1)], . . . both the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of law and fact.” Id. It follows,
then, that § 2254(e)(1) applies to the state court's conclusion that the petitioner’s trial counsel
rendered effective assistance of counsel and this Court may not grant relief on this claim as long
as the state court denied the claim based on a reasonable application of the Strickland standard to
the facts presented in the state court proceeding.
ANALYSIS
As explained below, Hammond’s ineffective assistance of counsel claim alleging that
counsel abandoned him during trial is untimely. Further, if the claim had been filed in a timely
manner, it would fail on the merits.
A.

Timeliness
The date Hammond’s conviction became final by the conclusion of direct review is April

21, 1998, or fifteen days after the Appellate Court of Maryland issued its mandate on April 6,
1998. Absent another basis for calculating the one-year filing limitation, Hammond’s time for
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filing a federal habeas petition expired one-year later, on April 21, 1999.

See 28 U.S.C.

§ 2244(d)(1)(A). As noted, this Court found Hammond’s petition as originally filed to be timely
because it was filed within one-year of “the date on which the constitutional right asserted was
initially recognized by the Supreme Court,” the right asserted was newly recognized, and the
Supreme Court’s decision was made “retroactively applicable to cases on collateral review.” 28
U.S.C. § 2244(d)(1)(C). Specifically, this Court found that the only claim asserted by Hammond
in his petition was that he was improperly subjected to a life sentence despite his status as a juvenile
in contravention to the Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012) and
Montgomery v. Louisiana, 577 U.S. 190 (2016).
Hammond then abandoned his Miller/Montgomery claim and now asserts an ineffective
assistance of counsel/choice of counsel claim which this Court previously found untimely.
Specifically, Hammond claims that his trial attorney provided ineffective assistance of counsel by
essentially abandoning him and conceding his guilt at trial without his consent. ECF Nos. 25 at 3,
33 at 3, and 45-1 at 2. This claim is not subject to the limitation calculation under § 2244(d)(1)(C),
rather, it is subject to the limitations period noted in § 2244(d)(1)(A) and must have been filed
within one-year of the date the judgment became final. The timeliness of Hammond’s original
claim did not revive his ineffective assistance of counsel claim. “If claims asserted after the oneyear period could be revived simply because they relate to the same trial, conviction, or sentence
as a timely filed claim, AEDPA’s limitation period would have slim significance.” Mayle v. Felix,
545 U.S. 644, 662 (2005), see also Fielder v. Varner, 379 F.3d 113, 122 (3rd Cir. 2004); Bachman
v. Bagley, 487 F.3d 979, 984–85 (6th Cir. 2007); Souliotes v. Evans, 622 F.3d 1173, 1179–80 (9th
Cir. 2010) (vacated on other grounds); Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012);

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Prendergast v. Clements, 699 F.3d 1182, 1187–88 (10th Cir. 2012); Zack v. Tucker, 704 F.3d 917,
926 (11th Cir. 2013).
Hammond states that he was unaware of the factual predicate of his ineffective assistance
of counsel/abandonment claim until a 2015 hearing to reopen post-conviction proceedings
produced testimony about an office policy in place at the Office of the Public Defender for Prince
George’s County. He thereby implies that the claim is subject to the limitation calculation found
in § 2244(d)(1)(D), requiring a § 2254 petition to be filed within one-year of “the date on which
the factual predicate of the claim or claims presented could have been discovered through the
exercise of due diligence.” Hammond received two letters from the Office of the Public Defender
during his trial in 1997, responding to his complaints about his trial attorney and denying his
requests to remove his trial attorney from his case. ECF No. 1-7 at 29-30 (July 26, 2011 PostConviction Transcript).1 Even if the timeliness of this claim is governed by § 2244(d)(1)(D), it is
still untimely as Hammond was aware of the facts underlying the claim during his trial. Thus, the
conclusion that he did not know the factual predicate underlying his choice of counsel claim until
the 2015 hearing is not persuasive, nor can Hammond demonstrate due diligence in presenting this
claim.
Alternatively, Hammond asserts that he is actually innocent based on newly discovered
evidence, i.e., the office policy. This is not the type of evidence contemplated for support of an
actual innocence claim. Examples of the type of new evidence that have been found to satisfy the
actual innocence gateway standard are: (1) new DNA evidence and expert testimony “call[ing]
into question” the “central forensic proof connecting [the petitioner] to the crime,” as well as

1

During this same hearing, Hammond alleged that his trial attorney was “not trying to win his case” and that his
attorney had “put in no effort to win his case at all.” ECF No. 1-7 at 29.

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“substantial evidence pointing to a different suspect,” House, 547 U.S. at 540-4̈1; (2) “sworn
statements of several eyewitnesses that [the petitioner inmate] was not involved in the crime” and
affidavits “that cast doubt on whether [the petitioner inmate] could have participated” in the
offense, Schlup, 513 U.S. at 331; (3) a third party’s consistent and repeated statement that the third
party committed the offense, Jones v. McKee, No. 08 cv 4429, 2010 WL 3522947, at *9-1̈0 (N.D.
Ill. Sept. 2, 2010); Carringer v. Stewart, 132 F.3d 463, 478-7̈9 (9th Cir. 1997) (finding that the
petitioner opened the actual innocence gateway where another person testified under oath that he
committed the offense and separately boasted to other individuals that he set-up the petitioner);
and (4) documentary evidence indicating that the petitioner was in another country on the day of
the offense and five affidavits from individuals stating that the petitioner was outside the country
at the precise time of the offense, see Garcia v. Portuondo, 334 F. Supp. 2d 446, 452-5̈6 (S.D.N.Y.
2004). See generally Schlup, 513 U.S. at 324 (providing the Supreme Court's statement that
examples of sufficient new reliable evidence for a gateway claim include “exculpatory evidence,
trustworthy eyewitness accounts, or critical physical evidence”).
The existence of the office policy, which is innocuous on its face, does not establish that
Hammond did not engage in the behavior at issue; that the victim consented;2 or that no crime
occurred. There is no viable actual innocence gateway claim before this Court that would serve to
excuse the untimeliness of the ineffective assistance of counsel claim and therefore the merits of
the claim may not be reached.

2

Hammond makes reference to a witness who was inside the apartment during the incident leading to his arrest and
claims this witness would testify the victim consented to the sexual encounter with Hammond. ECF No. 15 at 3. The
witness he refers to was his co-defendant who testified at the trial. Id. Although he states the witness gave his trial
attorney an affidavit exonerating him, such affidavit is not in the record before this Court, nor was trial counsel
confronted about such an affidavit at either the post-conviction hearing or the motion to re-open hearing. ECF No. 17, 1-8, and 1-9. This bald claim, unaccompanied by any statement under oath from that witness, does not amount to
“evidence” upon which an actual innocence claim may rest. See Teleguz, 806 F.3d at 809 (new evidence must
demonstrate that it is more likely than not that no reasonable juror would conclude that petitioner is guilty beyond a
reasonable doubt).

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Hammond’s assertion that there is no time limitation on claims regarding a fundamental
constitutional right is not an accurate statement of the law. Hammond relies in part on the Supreme
Court’s decision in Weaver v. Massachusetts, 582 U.S. 286 (2017) for the proposition that his
inability to select counsel of choice is a structural defect for which he need not demonstrate
prejudice. See ECF No. 16 at 4. In that case, the Court noted in pertinent part that:
[A]n error has been deemed structural if the effects of the error are simply too
hard to measure. For example, when a defendant is denied the right to select his
or her own attorney, the precise effect of the violation cannot be ascertained.
Because the government will, as a result, find it almost impossible to show that
the error was harmless beyond a reasonable doubt, . . . the efficiency costs of
letting the government try to make the showing are unjustified.
Id. at 295–96 (internal quotation marks and citations omitted). Whether Hammond would be
required to submit proof that prejudice resulted from the ineffective assistance of counsel if the
merits of his claim could be addressed has no impact on the timeliness of his federal habeas
petition, nor does it offer a basis for this Court to reach the merits despite the untimely filing.
Further, it was well established long before Hammond’s trial that criminal defendants are
constitutionally entitled to counsel of choice and that criminal defendants are entitled to discharge
counsel. See Wheat v. United States, 486 U.S. 153, 159 (1988) (recognizing that “the right to
select and be represented by one's preferred attorney is comprehended by the Sixth Amendment”);
Powell v. State of Ala., 287 U.S. 45, 53 (1932) (“It is hardly necessary to say that the right to
counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his
own choice.”); see also Faretta v. California, 422 U.S. 806, 834-36 (1975) (concluding that the
Sixth Amendment entitles a criminal defendant to waive counsel and represent himself).
B.

Ineffective Assistance of Counsel
To the extent that the Fourth Circuit’s remand requires this Court to address the merits of

Hammond’s ineffective assistance of counsel claim, the Court directs attention to the November
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6, 2015 Opinion and Order denying Hammond’s motion to re-open post-conviction proceedings.
ECF No. 1-16. There, Hammond claimed that trial counsel was ineffective for failing to: object
to the admission of the victim’s medical records on grounds they were hearsay not falling within
any exception and were unreliable due to internal inconsistencies; inform the court of his request
to discharge counsel; and properly advise him of the benefits of accepting a plea offer of four to
nine years’ incarceration. Id. at 5-7.
Hammond’s first claim centered on the fact that the State did not call as a witness the doctor
who examined the victim at the Prince George’s Sexual Assault Center, which should have
prompted counsel to object to the records coming in on hearsay grounds. Id. at 5. He further
alleged that the records were prepared in anticipation of the criminal trial and do not satisfy any
hearsay exception. Id. Lastly, he claimed the records showed that there were no positive findings
of gynecological trauma, but the jury was nevertheless led to believe that the victim was raped.
Id. at 6. Trial counsel testified at the hearing that while he did not recall why he didn’t argue that
“the medical record showed no signs of anogenital trauma and no checked findings of
gynecological trauma . . . it would have been his practice to be familiar with all the evidence that
came into trial, including the medical record at issue.” Id. at 7. The state argues that it was “likely”
the medical record would have been admitted on an exception to the hearsay rule, “including
present sense impression and excited utterance” and that had the treating physician been available
to testify, the “testimony could have been more damaging than the medical record.” Id. at 8.
The state court found that Hammond’s first ineffective assistance of counsel claim did not
result in prejudice to Hammond. ECF No. 1-16 at 11. The court observed:
Looking first to the medical records, there were any number of grounds under
which they might have been admitted. More importantly, those records
contained what readily appears to be exculpatory material beneficial to
Petitioner and therefore without prejudice to him. The argument that they should
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not have been admitted due to many inconsistencies within the records is a
matter for argument at best. That argument does not go to authenticity.
Additionally, a review of the entire record shows that the evidence, with or
without the medical records, was overwhelming.
Id. The state court’s application of the Strickland standard to the facts presented is reasonable and
would not be a basis for federal habeas relief under § 2254(e)(1) had the claim been timely filed.
In his second claim, Hammond argued that trial counsel and his supervisor should have
informed the court of his multiple requests to discharge counsel. ECF No. 1-16 at 6. Hammond
claimed unfair prejudice resulted from this failure because “given trial counsel’s failure to
investigate [his] case and his failure to make use of the available medical evidence to bolster his
defense, there is a significant possibility that the [trial court] would have found that [he] had a
meritorious reason for wanting to discharge his trial attorney.” Id. During his testimony at his
first post-conviction hearing, Hammond expressed his opinion that public defenders “work more
with the State than with the defendant;” and that they weren’t “really trying to help me.” ECF No.
1-7 at 30-31. During the hearing on the motion to reopen, Hammond testified that he had a heated
argument with his attorney the first time he met him and decided that day to fire him because they
were not communicating well. ECF No. 1-9 at 17.
Judge Maureen Lamasney, former District Public Defender for Prince George’s County,
testified that at the time of Hammond’s trial the office policy was not to reassign a case at the
request of a defendant because it “was the only way to maintain control over the assignment
process.” ECF No. 1-16 at 9. Additionally, the public defender’s office did not, as a practice,
notify the court of a defendant’s request to remove his attorney from his case “to protect the client
from the possible perception that the client was being unreasonable.” Id.
In rejecting this claim, the state court observed that:

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Petitioner’s basic complaint suggests a personality conflict. Had this issue been
communicated to the trial judge, it would be difficult at best to find that this was
a meritorious basis for discharging counsel. Thus, once again, there is a lack of
prejudice to Petitioner. Furthermore, quite understandably, the prevailing norm
at that time was not to communicate the request to the Court.
Id. at 12. This analysis is also not an unreasonable application of the Strickland standard to the
facts of the case and, if this claim were not time-barred, it would not be an adequate basis for
federal habeas relief.
Hammond’s third claim concerns his allegation that trial counsel told him to reject a plea
offer wherein he would have pleaded guilty to second-degree rape and possession with intent to
distribute in exchange for a sentence between four and nine years. ECF No. 1-16 at 7. At the
hearing on the motion to re-open, a letter from Hammond to his trial attorney was introduced which
stated that trial counsel had stated that he was not interested in a plea offer because he did not
believe the victim would show up for trial. ECF No. 1-8 at 56. Hammond also claimed that trial
counsel told him he would win the case and Hammond would be acquitted. ECF no. 1-16 at 7. In
earlier proceedings, Hammond stated that he would not consider a plea deal that required him to
plead guilty to a rape charge. ECF No. 1-7 at 23. Trial counsel testified at the post-conviction
hearing that he discussed the plea offer with Hammond. ECF No. 1-7 at 41. During the hearing
for the motion to re-open, trial counsel reiterated that his general practice would be to communicate
all plea offers to a client and to inform the client of the maximum penalty at issue. ECF No. 1-8
at 55.
Neither the post-conviction court nor the court considering Hammond’s motion to re-open
credited Hammond’s recollection of the plea offer issue. The post-conviction court noted that
Hammond was essentially complaining that his attorney did not urge him strongly enough to
accept the plea offer, but that counsel was not “under any duty to yell at him, to pressure him.”

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ECF No. 1-7 at 73. The court further noted that “if anybody made an error in judgment, it was the
defendant not accepting what appears to be an extremely favorable treatment” and found no
deficiency in the manner in which counsel conveyed the offer and explained it. Id.
The court considering the motion to re-open found that “the plea offer was in fact
communicated to Petitioner” and was “also satisfied that Petitioner rejected the offer.” ECF No.
1-16 at 12. The court also found that Hammond’s claim that counsel advised him to reject the
offer lacked credibility; rather, the court was “satisfied that Petitioner believed the victim would
not appear to testify and was adamant in his refusal to accept the plea offer.” Id.
Both decisions involved findings of fact and determination of witness credibility which are
entitled to the deference requirement found in § 2254(e)(1). The state court’s determination in this
regard is presumed correct and Hammond fails to rebut that presumption. Thus, even if this claim
had been raised in a timely manner, it would not be a viable basis for federal habeas relief.
CONCLUSION
Based on the above analysis, this Court finds that Hammond’s ineffective assistance of
counsel claim is time-barred and is otherwise without merit. A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2); see Buck v. Davis, 580 U.S. 100, 115 (2017). The petitioner “must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (citation and internal
quotation marks omitted), or that “the issues presented are adequate to deserve encouragement to
proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because this Court finds that
there has been no substantial showing of the denial of a constitutional right, a certificate of
appealability shall be denied. See 28 U.S.C.§ 2253(c)(2). Petitioner may still request that the

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United States Court of Appeals for the Fourth Circuit issue such a certificate. See Lyons v. Lee,
316 F.3d 528, 532 (4th Cir. 2003) (considering whether to grant a certificate of appealability after
the district court declined to issue one).
A separate Order dismissing the petition and declining a certificate of appealability follows.

__7/5/2023_____
Date

_______/s/________________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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