French v. Bishop et al
Filing
22
MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 3/27/2020. (c/m 3/27/2020)(ko, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARK FRENCH
*
Petitioner
*
v
*
FRANK B. BISHOP, JR. and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND
*
*
Respondents
*
Civil Action No. RDB-18-879
***
MEMORANDUM OPINION
Petitioner Mark French filed this Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for attempted first degree murder, robbery, and two
counts of use of a handgun in a felony from the Circuit Court for Baltimore County, Maryland.
ECF 1 at 1. Respondents filed an Answer asserting that the one claim raised by French does not
merit federal habeas relief because the claim concerns a matter of State law only and any
constitutional claim implied by the petition has been waived. ECF 4 at 29. French filed a Reply
disputing Respondents’ assertion. ECF 20.
No hearing is necessary to resolve the matters pending before this Court. 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 stated below, the Petition for Writ of
Habeas Corpus shall be denied and a certificate of appealability shall not issue.
Background
I.
Trial and Conviction
French was tried by a jury in the Circuit Court for Baltimore County in connection with
the October 31, 19931 armed robbery of Brian Sherry and the shooting of police officer James
Beck. Evidence produced at trial through the testimony of Brian Sherry established that he was
robbed after a woman in a pick-up truck that was following him down Pulaski Highway pointed a
gun out of the window and demanded he turn down Chesaco Avenue. ECF 4-2 at 167. When Mr.
Sherry stopped his car in a church parking lot the woman, who he later identified as Heather
Kendall, came up to his car and demanded his wallet, but Mr. Sherry refused. Id. at 169-70.
Another car pulled in behind them and the other driver ran to the side of Mr. Sherry’s car, stuck a
black automatic pistol through the window and demanded that Mr. Sherry do what Ms. Kendall
told him to do. Id. at 170-71. Mr. Sherry gave Ms. Kendall his wallet which contained $43; Ms.
Kendall took the money, returned the wallet, and fled the scene along with her accomplice. Id. at
172. Mr. Sherry described the pick-up truck that Ms. Kendall and her accomplice drove and
explained he later saw the same truck at a Royal Farm store. Id. at 174.
Baltimore County Police Officer James Beck was shot later that same evening. Officer
Beck was in a patrol car in the area of Pulaski Highway and was accompanied by a ride-along
student, Sandra Lowery, who witnessed the shooting and testified for the State. ECF 4-2 at 181201. Ms. Lowery explained that there was a call on the radio to be on the lookout for a brown
Ford truck with wooden racks. Id. at 184. Ms. Lowery and Officer Beck saw a truck fitting that
1
French asserts, and Respondents do not dispute, that when he was granted a new appeal by the post-conviction
court on February 20, 2015, the one-year filing deadline for federal habeas relief began anew. ECF 1 at 3 and 5. The
Court of Special Appeals denied French’s request for relief on June 10, 2016 and his petition for writ of certiorari filed
with the Court of Appeals was denied October 21, 2016. ECF 4-10 and 4-11. His petition for writ of certiorari filed
with the United States Supreme Court was denied on October 2, 2017. ECF 1 at 5. French filed his petition in this
Court on March 20, 2018. Id. at 6 (signature and date).
2
description during their travel on Pulaski Highway and saw two people inside the truck. Id. at
185-6. Officer Beck followed the truck, turned on the overhead lights, and the truck pulled over
immediately. The driver of the truck, later identified as Mark French, rolled down his window and
the passenger, Heather Kendall, did not move. Id. at 186. Beck approached the truck with his
right hand on his gun; when he got slightly ahead of the front of his car, the driver of the truck
spun his right arm and part of his head out of the window and began firing the gun. Id. 187; 205.
Officer Beck testified that he saw the muzzle flash from the first shot and felt pain in his
left shoulder, causing him to stagger backward. ECF 4-2 at 205. He felt a second pain in his chest
area and began to try to get between the two vehicles. Id. He could not recall the third shot, but
said he later found out it hit him in the chest and caused him to fall to the ground between the two
vehicles. Id. Officer Beck recalled hearing the tires squealing as the pick-up truck raced off;
hearing voices around him reassuring him; and the sound of a helicopter landing, but could not
remember anything else until a month and a half later. Id. at 207. He testified that he was
hospitalized in Shock Trauma for two and a half months and then hospitalized at “Good Sam” for
therapy to treat nerve damage to his arm and legs which he stated is permanent.2 Id. at 208. Officer
Beck also testified that the medications he received in the hospital worked on his central nervous
system which caused the messages relayed from his ears to his brain to no longer work, leaving
him with progressive hearing loss. Id.
2
Dr. Steven Z. Turney, the surgeon who treated Officer Beck, testified that the initial assessment included a
partially collapsed right lung as well as blood in the right chest cavity. A chest tube was inserted to alleviate the
pressure and to help Officer Beck breathe. Three bullets were seen on x-ray: one in the left shoulder and two in the
lower back. Dr. Turney explained that one bullet went through Officer Beck’s right lung and another lodged in his
left shoulder; the third bullet went through his abdomen on the right side, shattering a rib. The rib fragments had
perforated both the small and large intestines in several places, causing the contents to leak into the abdominal cavity.
Officer Beck was placed on an artificial lung because he was dying and his condition was deteriorating rapidly. ECF
4-3 at 88-96.
3
Detective Michael Peregoy investigated the armed robbery of Mr. Sherry as well as the
shooting of Officer Beck and testified for the State at trial. ECF 4-3 at 3-34. Detective Peregoy
recovered 9 mm spent cartridges from the scene as well as bullet fragments recovered from Officer
Beck’s body that were provided to him by a nurse at Shock Trauma. Id. at 14; 16-18. The police
department elicited help from the public in identifying and locating the suspects involved in the
shooting. Id. at 14. To assist in identifying the perpetrators, a forensic sketch artist worked with
Brian Sherry to draw a composite sketch of the female who robbed him. Id. The Ford truck was
recovered from the backyard of Lisa Morton’s home. Id. at 19. Business cards with Mark French’s
name on them were found inside the truck. Id. at 23. After defense counsel cross-examined
Detective Peregoy regarding the number of trucks that were called in matching that description
and suggesting that not enough was done to develop more suspects (id. at 27-33), Detective
Peregoy explained that all trucks reported as fitting the description and possible persons
responsible were ruled out. Id. at 33-34.
Lisa Morton testified that Mark French came to her house on October 31, 1993, the day
after the shooting at approximately 11 a.m., and told her he had taken $1600 for a roofing job he
had not done and came across the guy who paid him which resulted in a shoot-out. ECF 4-3 at 57.
She further testified that French had three guns with him: a .9mm Glock, a .38, and a .22. Id. at
59. French was holding the .9mm Glock in his hand and told Ms. Morton that it was dirty because
he used it in the shoot-out. Id. at 60. Later in the evening, the news came on with a story about
the shooting featuring the composite sketch and describing a white male involved in a police
shooting; French was in the kitchen and came into living room to hear the news, he asked them to
turn up the volume. Id. at 62. French said the sketch looked like Heather; Ms. Morton responded:
“don’t tell me that you shot the police.” French told Ms. Morton that “it was either me or him.”
4
Id. at 63. French then told Ms. Morton about going to Pulaski Highway for Heather to pick up a
“John” so they could rob him. Id. French said the “John” called the police and before they could
get away, the police had come up to the truck and French shot the police officer with the .9 mm
Glock. Id. at 64. The following morning, Ms. Morton went to University Hospital and spoke with
the police officers3 who were with Officer Beck to report what French had told her and to tell them
his truck was in her backyard. Id. at 67-68.
A tactical response team from the Baltimore City Police performed a raid on Lisa Morton’s
house on November 1, 1993, with the objective of locating the alleged suspect in Officer Beck’s
shooting and arresting him. ECF 4-3 at 98-108. The tactical team entered the house with a
battering ram and found a white male, later identified as Mark French, in the kitchen. Id. at 99100. French was taken to the floor, handcuffed, and taken into custody. Id. at 101. In addition,
Heather Kendall was found in the same house. Id. at 108. After French was handcuffed, he was
searched and .9 mm bullets were found in his left front pocket. Id. at 111-12. In addition, a black
.9 mm Glock was recovered from a dish drainer on the side of the kitchen sink. Id, at 116.
Additional evidence connecting Mark French to the crime was introduced through the
testimony of Detective Walter Clipper of the Baltimore County Police; Jonathan Murphy for whom
French worked; and William (“Bill”) Martin, French’s coworker. A burglary had occurred at the
home of Jonathan and Dawn Murphy one-day prior to the robbery of Mr. Sherry and the shooting
of Officer Beck.4 In addition to investigating the burglary, Detective Clipper was also a part of
3
On cross-examination Lisa Morton admitted that she used and sold drugs, but denied she reported her
conversation with French in order to collect the reward money. ECF 4-3 at 71-84. Rather, she testified on redirect
that her brother had been murdered and although people knew who did it and why, nobody stepped forward. She
stated she reported French to the police in order to assist the family of Officer Beck; something nobody did for her
family in similar circumstances. ECF 4-3 at 86-87.
4
French was also charged with burglary and daytime housebreaking in a separate case; those charges were
placed on the stet docket following the guilty verdict in the attempted first-degree murder case. See ECF 4-4 at 83-4.
A pre-trial motion to sever, filed by the defense, was granted as to the burglary and breaking and entering which
5
the search and arrest team that went to Lisa Morton’s house because he had information that
evidence pertaining to the break-in was inside that house. ECF 4-3 at 126. The property stolen
mainly consisted of rifles, shotguns, a couple of handguns, and cash. Id. When Ms. Morton’s
house was searched, approximately ten firearms, handcuffs, and magazines for rifles were located
in the basement. Id. at 126-7. Also recovered from the residence was a 35 mm camera with the
name “Dawn” on it believed to belong to Dawn Murphy. Id. at 127-8. The magazines recovered
were determined to belong to Jonathan Murphy. Id. at 128. Under cross-examination Detective
Clipper admitted that Dawn Murphy’s initial report to police was that she thought French or his
brother broke into their house because they were doing work on the house along with other people
including Bill Martin. Id. at 139. Detective Clipper never spoke to Bill Martin, did not observe
the handgun in the kitchen, and did not ask the Murphy’s if the Glock belonged to them. Id. at
140, 143-45.
Jonathan Murphy testified that he had hired French to put siding, gutters, and a new roof
on his home. ECF 4-3 at 152. The week before October 31, 1993, the work was near completion
and Mr. Murphy struck up a conversation with French about his gun collection which he showed
to French. Id. at 153-54. Mr. Murphy told French and Kendall that he and his wife were going to
a Halloween party on Saturday October 30, 1993. Id. at 156. When they returned from the party
at approximately 1:00 a.m., the saw their house had been burglarized and all the guns that were
not locked up had been stolen. Id. at 157. In addition, Mr. Murphy stated that his wife Dawn
Murphy is an auxiliary police officer and handcuffs, mace, and a vest belonging to her were
missing. Id. at 158.
occurred on October 30, 1993. ECF 4-2 at 21. The motion was denied for severance of the armed robbery and
attempted murder charges because in the trial court’s view they constituted “one transaction occurring all relatively
within the same time” and “the defendant is not entitled to a severance of those two events.” Id.
6
Bill Martin testified that he worked on the Murphy’s house the week before Halloween,
1993. ECF 4-3 at 166. Mr. Martin worked for French for one and a half years and claimed that
after French had seen Mr. Murphy’s guns stated that “he could sell the guns to his nigger friends
in the City where he bought drugs.” Id. at 167. Under cross-examination it was established that
Mr. Martin frequently drove the truck that was used during the commission of the crime, but he
said he never took the truck home. Id. at 170. Rather, French would pick him up at his house and
then Martin would drive to their worksite.5 Id. Mr. Martin also testified that there were only one
set of keys to the truck. Id. at 172. Police came to Mr. Martin’s house the day after the break-in
at the Murphy’s house; Mr. Martin’s girlfriend let the police into the house and they looked around
but did not search the house. Id. at 173. According to Mr. Martin, the police came to his house
because French gave them his name and address and told them he was the one driving the truck
the night before in an attempt to implicate Mr. Martin in the crime. Id. at 173-4.
Timothy Ostendarp, a latent print examiner with the Maryland State Police Crime Lab,
testified as an expert that latent prints lifted from the truck matched both Mark French and Heather
Kendall. ECF 4-3 at pp. 180-9.
Also testifying as an expert witness was Joseph Kopera,6 who worked for the Ballistics
Unit of the Maryland State Police. ECF 4-3 at 192-207. During the voir dire to qualify Mr. Kopera
as an expert witness, Mr. Kopera stated that he held an engineering degree from the University of
5
It was established through the testimony of Marion Louise Suggs that French did not have a valid driver’s
license and that he hired Mr. Martin to drive the truck and pick up supplies. ECF 4-3 at 49. Ms. Suggs testified that
Bill Martin sometimes took the truck home and that French had told her Martin robbed someone and when the police
pulled him over he shot the police officer. Id.at 49; 44-45.
6
Joseph Kopera, who testified as an expert in hundreds of criminal trials in and around Maryland, was later
discovered to have falsified his educational credentials. Kulbicki v. State, 207 Md. App. 412, 430 (2012) rev’d on
other grounds by 440 Md. 33 (2014) (noting that parties stipulated that Kopera had lied about his credentials as he
had not earned degrees in engineering as he alleged and had never been accepted to University of Maryland or
Rochester Institute of Technology). After his fraud was discovered, Kopera committed suicide. Id. at n.9.
7
Maryland and from Rochester Institute of Technology. Id. at 193-4. Mr. Kopera further testified
that he graduated from the FBI Academy with certifications in firearms identification and
gunpowder residue, he was on the Board of Directors for the Association of Firearm and Tool
Mark Examiners, and on staff of several colleges in the local area teaching in the fields of
criminology and forensic science. Id. at 194. Following the voir dire, Mr. Kopera was accepted
as an expert and testified that the bullets and cartridge casings recovered from the scene where
Officer Beck was shot were fired from the Glock recovered during Mark French’s arrest. Id. at
201. He further testified that the bullets recovered from Officer Beck’s body were also fired from
the same Glock. Id. Cross examination of Mr. Kopera focused on the commonality of the
ammunition found in French’s possession. Id. at 202-7.
At the close of the State’s evidence, and after French’s Motion for Judgment of Acquittal
was denied (ECF 4-3 at 209-10), French was advised regarding his rights to testify and to remain
silent and chose not to testify. Id. at 212. The defense offered no evidence. Id. at 214.
The jury returned a guilty verdict on first degree attempted murder, robbery, and two counts
of use of a handgun in the commission of a felony. ECF 4-4 at 80-81.
On May 25, 1994, French was sentenced to serve life with consecutive sentences totaling
35 years, the first ten years of the consecutive sentences without possibility of parole. ECF 4-5 at
21-22. His request for a recommendation for commitment to Patuxent was denied as the trial judge
believed that facility was not secure enough for the type of sentence imposed. Id. at 22.
II.
Appeals and Post-Conviction
A.
First Direct Appeal
On March 28, 1995, the Maryland Court of Special Appeals issued an unpublished opinion
affirming French’s conviction. ECF 4-6. On appeal, French raised one issue: Did the trial court
8
err in denying a motion in limine to exclude his prior burglary conviction Id. at 2. French’s claim
concerned the testimony of Detective Clipper and Jonathan Murphy regarding the prior break-in
and the items stolen during the burglary. Id. at 4. The appellate court observed that the “[g]eneral
rule is if the trial judge rules to admit the evidence the opposing party must object at the time the
evidence is actually offered to preserve the issue for appellate review.” Id. at 4; citing Prout v.
State, 311 Md. 348, 356 (1988), also citing Hickman v. State, 76 Md. App. 111, 117 (1988).
Turning to French’s claim, the court observed that:
The motion in limine was denied at the start of trial on April 11, 1994. The
testimony relating to the burglary was not offered until the following day, after
a lunch recess. The court did not restate its ruling on the motion in limine prior
to the testimony at issue. Because appellant did not object when the evidence
was offered, the issue has not been preserved for our review. Hickman, 76 Md.
App. at 118.
For the benefit of counsel, we add one final point. Evidence of other crimes may
be admitted when it tends to show ‘the identity of the person charged with the
commission of a crime on trial.’ Ross v. State, 276 Md. 664, 669-70 (1976).
The type of evidence that may be admitted under the identity exception includes
evidence of ‘the defendant’s prior theft of a gun, car or other object used in the
offense on trial.’ Cross v. State, 282 Md. 468, 477 (1978).
ECF 4-6 at 5-6.
B.
Post-Conviction Petition
In 2014, French filed a Petition for Post-Conviction Relief in the Circuit Court for
Baltimore County asserting numerous claims for relief, including a claim of ineffective assistance
of appellate counsel for failing to raise the claim that the trial court erred by failing to comply with
Md. Rule 4-215(e) after it received a letter from French stating he wished to discharge trial counsel
and for failing to raise a claim that the verdict was defective. See ECF 11-1 at 40-92; 124-37 (postconviction transcript); ECF 4-7 (post-conviction court’s decision). The post-conviction court
found that appellate counsel’s performance was deficient and granted French a new appeal limited
9
to the issues of whether the trial court erred when it failed to comply with Md. Rule 4-215(e) and
the flawed verdict. ECF 4-7 at 38-39. Relief was denied on all other claims.7 With regard to the
ineffective assistance of appellate counsel for failing to raise the discharge of counsel claim, the
post-conviction court observed:
‘The two-pronged test enunciated in Strickland applies to claims of ineffective
assistance of appellate counsel just as surely as it does to claims of ineffective
assistance of trial counsel.’ State v. Gross, 134 Md. App. 528, 556 (2000). While
appellate counsel ‘is not require[d] . . . to advance every conceivable argument
on appeal which the trial record supports,’ id. at 562 (quoting from Gray v.
Greer, 800 F.2d 644, 647 (7th Cir. 1986)), ‘when ignored issues are clearly
stronger than those presented . . .[,] the presumption of effective assistance of
counsel [will] be overcome,’ id. (quoting from Gray 800 F.2d at 646). Where
deficient performance of appellate counsel has been established, prejudice can
be established by demonstrating that there was a ‘substantial possibility’ of
success had an issue been raised on appeal. Id. at 555-56. In his case, Petitioner
has met both prongs of the test enunciated in Gross and this Court will grant
Petitioner a second appeal to the Court of Special Appeals.
With respect to the performance of appellate counsel, this Court looks to whether
the ‘ignored’ issue of the failure of the trial court to conduct the colloquy
required by Md. Rule 4-215(e) was ‘clearly stronger’ than the sole issue raised
in Petitioner’s actual appeal, whether the trial court erred in denying Petitioner’s
motion in limine regarding a prior burglary Petitioner was alleged to have
committed. See Gross, 134 Md. App. at 562. The Court of Special Appeals
denied the appeal actually filed by Petitioner in a brief, unreported opinion of
slightly more than four pages. See French v. State, No. 1277, Sept. Term 1994
(COSA unreported op., filed March 28, 1995) (per curiam). The Court of
Special Appeals, citing to well-established Maryland law, held that the issue
raised in Petitioner’s appeal had not been preserved for review. See French at
3-4. The Court of Special Appeals also strongly implied, in a final paragraph
that is entirely dicta, that, had it reached the merits of Petitioner’s appeal, it
7
French raised thirteen claims for post-conviction relief, including the two claims the post-conviction court
found meritorious. The remaining claims were (1) ineffective assistance of trial counsel for: (a) failure to inform the
trial judge French wanted to discharge him (ECF 4-7 at 10-13); (b)failure to properly investigate credentials of Joseph
Kopera (id. at 13-18); (c) failure to file a motion for modification of sentence (id. at 18-20); (d) failure to object to the
flawed delivery of the verdict on attempted murder (id. at 21-23); (e) failure to cross-examine witnesses regarding the
manufacturer of the ammunition recovered from French’s pockets (id. at 35-36); (f) failure to request removal of an
allegedly biased juror (id. at 36-38); (2) the State failed to comply with discovery requirements (id. at 23-25); (3) the
trial court engaged in judicial misconduct for failing to address the request to discharge counsel (id. at 32-33); (4) he
was deprived of a fundamentally fair trial because of the perjured testimony of Kopera (id. at 33-34); (5) the trial court
committed judicial misconduct when the trial judge failed to take corrective action upon hearing the flawed verdict
(id. at 34-35); and (6) the flawed reading of the verdict rendered it a nullity entitling French to a new trial (id. at 3839).
10
would have summarily rejected the appeal on the basis of other well-established
Maryland law. See French at 4-5. In light of the ease with which the Court of
Special Appeals rejected the appeal which Petitioner actually filed, this Court
has no difficulty concluding that the issue raised by that appeal was not a
“strong” issue.
ECF 4-7 at 26-27 (brackets and ellipses in original). By comparison, the post-conviction court
found that French’s potential claim for appellate review regarding his request for discharge of
counsel not being properly addressed by the trial court was a strong one under well-established
Maryland law. Id. at 28-31. French’s letter, received by the trial court on April 8, 1994, seeking
to discharge his trial attorney, John Henderson, was unequivocal and listed reasons for his desire
to do so. Id. at 28. And, under Md. Rule 4-215(e), the trial court was required to permit French
to explain the reasons for his request to discharge counsel and either (1) find the reasons
meritorious and continue the case or (2) find the reasons without merit and inform French that the
trial would proceed, but he would not be represented by counsel. Id. at 30. That colloquy did not
take place on the record in French’s case. Id.
The issue regarding the flawed verdict concerned the manner in which the trial court clerk
asked the jury foreman to read the verdict for the attempted murder count. The following occurred:
THE CLERK:
Mr. Foreman, would you stand. What say you in case
number 93-CR-4253, State of Maryland versus Mark P. French, as to attempted
murder of James Beck. Not guilty or guilty as charged.
THE FOREPERSON: Guilty as charged.
THE CLERK:
As to the use of a handgun in the commission of a felony,
namely, attempted first degree or attempted second degree murder. Not guilty
or guilty as charged?
THE FOREPERSON: Guilty as charged.
ECF 4-4 at 80. French was charged with both first degree and second degree attempted murder
which was indicated on the verdict sheet provided to the jury. Because the clerk did not specify
11
whether the attempted murder count the foreman was asked about was first or second degree,
French argued that the verdict was defective and a legal nullity. ECF 11-1 at 131-3.
The post-conviction court first found that trial counsel was not ineffective for failing to
raise an objection to the defective verdict because “even assuming it was a deficient act for . . .
trial counsel to fail to object” the claim fails due to a lack of prejudice to French caused by that
failure to object. ECF 4-7 at 22. The post-conviction court noted that the “Verdict Sheet makes it
clear that, had Petitioner’s trial counsel objected to the flawed verdict, the trial court would merely
have corrected the error of the courtroom clerk and a proper verdict of guilty on Attempted First
Degree Murder would have been entered.” Id., citing Kelly v. State, 162 Md. App. 122, 152 (2005),
rev’d on other grounds by 392 Md. 511 (2006).
With respect to appellate counsel’s failure to raise the flawed verdict issue on appeal, the
post-conviction court held that the “verdict in Petitioner’s case was flawed and the flaw was not
capable of correction by the hearkening of the verdict.” ECF 4-7 at 31. Further, the failure of trial
counsel to object to the flawed verdict did not waive the issue for appeal under State v. Santiago,
412 Md. 28, 41-2 (2009). Id. The court then opined that “[i]n light of the well-established case
law on the requirement that an oral verdict whether a defendant is being convicted of First Degree
or Second Degree Murder . . ., Petitioner would have had a ‘substantial possibility’ of achieving
success with this issue on appeal.” Id. (citations omitted). Having already concluded that the issue
actually raised on appeal was lacking in merit, the post-conviction court concluded that appellate
counsel rendered ineffective assistance of counsel by failing to raise the flawed verdict claim on
appeal. Id. at 32.
C.
Second Appeal (granted by post-conviction court)
12
As noted, French’s second, new appeal was limited to the two issues his first appellate
counsel failed to raise. The Maryland Court of Special Appeals rendered an unpublished opinion
on June 10, 2016, denying relief on both claims. ECF 4-10. The appellate court, after reviewing
the content of French’s April 8, 1994 letter to the trial court asking the court to “hear my motion
to dismiss John J. Henderson as my counsel” (id. at 2-3), analyzed the discharge of counsel claim
as follows:
On the morning of April 11, 1994, the case was called for trial before the
Honorable James T. Smith, Jr. Both of appellant's defense counsel were in
attendance. A reference in the transcript to discussions among the court and
counsel ‘in camera’ indicates that there had been conversations in chambers
before the case was called. At the outset of the pretrial proceedings on the
record, Judge Smith confirmed that, except for two pending motions (namely,
the defendant's motions for severance and for exclusion of his criminal record),
and a motion for sequestration of witnesses, ‘all open motions’ had been
‘withdrawn.’ There was no express discussion of appellant's motion to
discharge Mr. Henderson, but appellant was present when Judge Smith
confirmed that, other than the three motions he mentioned, all other open
motions had been withdrawn. And the record reflects that appellant was
provided numerous opportunities to speak to the court.
ECF 4-10 at 5-6. Significant to the appellate court’s analysis was the pre-trial colloquy during
which the trial judge stated the following:
THE COURT: It is my understanding that there are two motions, in addition to
a motion for sequestration of witnesses. One is a motion for severance of various
counts, the Defendants motion for severance of counts which I will have you
describe in just a second, and another is a motion in limine relating to the
criminal record of the Defendant.
Other than those two motions, are all open motions withdrawn?
MR. HENDERSON: Yes, they are, Your Honor.
THE COURT: Let the record reflect that all open motions are withdrawn
other than those described by the court. I’ll hear from you on your motion
for severance, Mr. Henderson or Mr. Gordon.
13
Id. at 6-7 (emphasis in original). The record reflects that French was in the courtroom at the time
this exchange took place. Later in the pre-trial proceedings, after a jury trial was elected, French
was advised by the trial court as follows:
THE COURT: Counsel, would you approach the bench? Mr. French, would
you also approach the bench?
(WHEREUPON, COUNSEL AND THE DEFENDANT APPROACHED THE
BENCH AND THE FOLLOWING ENSUED)
THE COURT: Mr. French, I want you to understand that you have the absolute
right to be present at all bench conferences when the lawyers come up to the
bench. Do you understand that you have that right?
THE DEFENDANT: Yes, sir.
THE COURT: I would like to have this understanding with you. If you want
to attend a bench conference if we have a bench conference, you just come up
with your lawyer. If you do not want to attend a particular bench conference,
you just remain at the trial table. If you remain at the trial table I will assume
that for that bench conference only you have elected to waive or give up your
right to be present. Is that agreeable with you.
THE DEFENDANT: Yes, sir?
THE COURT: That does not mean that if you stay at the trial table for one
bench conference that you can’t come up afterwards. You can come up if you
want or stay at the trial table if you want. Do you understand?
THE DEFENDANT: Yes, sir.
ECF 4-10 at 10-11. In concluding that French’s discharge of counsel claim was not preserved for
appellate review, the appellate court relied on the “affirmative statement that all other motions had
been ‘withdrawn’” and that under Maryland law “withdrawing a motion, an affirmative act of
commission as opposed to an act of omission, constitutes a waiver rather than a forfeiture.” Id. at
16, citing Carroll v. State, 202 Md. App. 487, 514 (2011). The court also observed that:
At the time the trial judge in this case expressly confirmed in open court that all
open motions (other than the three specifically identified) had been withdrawn,
appellant was present and was also represented by a second attorney who was
14
never the subject of a motion to discharge. Neither appellant nor Mr. Gordon
took issue with the court’s statement that all other motions had been withdrawn.
And despite having numerous opportunities to renew the motion to discharge
Mr. Henderson, appellant never did so. Under the circumstances he waived the
motion to discharge Mr. Henderson, and the court did no err in failing to conduct
further discussions on the record relative to the motion.
ECF 4-10 at 16-17.
With respect to the defective verdict claim, the Court of Special Appeals found that the
clerk’s omission of the words “first degree” was “corrected when the jury was asked to hearken to
the verdict.” Id. at 17. When the clerk asked the jury to hearken to the verdict the omitted words
were included and the jury “responded affirmatively” when asked to confirm. Id. The appellate
court noted that French had relied on Williams v. State, 60 Md. 402, 403-4 (1883) for his position
that the hearkening was insufficient to correct the defective pronouncement, but “more recent cases
from the Court of Appeals make clear that a verdict can be corrected during the hearkening.” Id.
at 17-18, citing State v. Santiago, 412 Md. 28, 38 (2009). The court concluded that French’s
“verdict was not finalized until the jury hearkened to it” and when the jury was hearkened it
“confirmed its verdict that [French] was guilty of attempted first degree murder, as clearly reflected
on the verdict sheet, and accurately stated in the clerk’s hearkening inquiry.” Id. at 19.
D.
Claim in this Court
In his Petition for Writ of Habeas Corpus filed with this Court, French raises one claim,
that his motion to discharge counsel was not properly addressed by the trial court. See ECF 1 at
5; ECF 1-1 at 26. French’s Memorandum of Law in support of his Petition also goes into depth
regarding the reasons he wanted counsel removed, his asserted educational disabilities that
prevented him from raising the issue with the trial court, that the state courts’ actions violated his
Sixth Amendment right to counsel because there was an irreconcilable conflict between French
15
and trial counsel, and generally reiterates his claims of ineffective assistance of counsel in a bid to
establish “prejudice” for the failure to entertain his motion to remove counsel. ECF 1-1 at 26-35.
Respondents assert that the issue presented to the state courts regarding his motion to
discharge counsel was a matter of state-law that is not cognizable on federal habeas review and to
the extent that French is raising a constitutional claim, that claim has been defaulted. ECF 4 at 16.
Respondents also argue that any constitutional challenge asserted with regard to the State court’s
ruling on this claim survives scrutiny under 28 U.S.C. § 2254(d).
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, 572 U.S.415, 419-20 (2014), quoting Harrington v. Richter, 562 U.S.
86, 103 (2011) (state prisoner must show state court ruling on claim presented in federal court was
“so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fair minded disagreement.”).
A federal court may not grant a writ of habeas corpus unless the state’s adjudication on the
merits: 1) Aresulted in a decision that was contrary to, or involved an unreasonable application 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
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contrary to clearly established federal law under § 2254(d)(1) where the state court 1) “arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or 2)
“confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the “unreasonable application” analysis under 2254(d)(1), a “state court's
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court's decision.” Harrington, 562 U.S.. at 101
(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] 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,
559 U.S 766, 773 (2010).
Analysis
French’s discharge of counsel claim that was first presented to the post-conviction court
and later was the subject of a newly granted direct appeal, relied entirely on the contours and
requirements of Maryland State law. Specifically, the error assigned to the trial court by French
in his discharge of counsel claim was the failure to abide by Maryland Rule 4-215(e). See ECF
17
11-1 at 124-30 (Post-Conviction Transcript).
Further, the post-conviction court’s decision
granting relief on the claim in the form of a second appeal and the Court of Special Appeals’
decision were also based entirely on the application and interpretation of Maryland law. See ECF
4- 9 at 25-31 (post conviction court’s decision) and ECF 4-10 at 14-17 (Court of Special Appeals
decision). Violation of a state law which does not infringe upon a specific constitutional right is
cognizable in federal habeas corpus proceedings only if it amounts to a “fundamental defect which
inherently results in a complete miscarriage of justice.” Hailey v. Dorsey, 580 F.2d 112, 115 (4th
Cir. 1978) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)), cert. denied, 440 U.S. 937
(1979), see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal
habeas corpus court to reexamine state court determinations on state law questions.”).
In his Reply, French asserts that “it is unreasonable for the Respondents to state this violates
only a State rule or law” because “Md. Rule 4-215(e) was made to protect a defendant’s Sixth
Amendment rights.” ECF 20 at 2, citing Johnson v. State, 355 Md. 420, 426 (1999) (holding trial
court erroneously found criminal defendant waived his right to counsel by failing to comply with
application procedures for representation by public defender’s office). French’s reliance on the
Johnson decision does not assist his argument as the decision focused on Maryland Rule 4-215(a),
setting forth requirements of a trial court when a defendant makes a first appearance without
counsel, and did not address the Md. Rule 4-215(e), governing the colloquy to take place when a
criminal defendant requests permission to discharge an attorney whose appearance has been
entered. The difference in the two sections of the rule cannot be overlooked. In the first instance
the criminal defendant is unrepresented by counsel and the trial court is charged with ensuring he
or she is well aware of their rights. Md. Rule 4-215(a). In the second instance the criminal
defendant is represented by counsel and the trial court is charged with ensuring he or she knows
18
what will occur if counsel is discharged without cause. Md. Rule 4-215(e). French cites to no
legal precedent stating that the colloquy required by Md. Rule 4-215(e) is mandated by the United
States Constitution, nor can he. Thus, the state courts were never presented with a Sixth
Amendment claim in the context of French’s motion to discharge counsel and this Court may not
revisit the matter. Estelle, 502 U.S. at 67-68. Having found no cognizable federal claim for relief,
the Petition for Writ of Habeas Corpus shall be denied.
A certificate of appealability may issue Aonly if the applicant has made a substantial
showing of the denial of a constitutional right.@ 28 U. S.C. ' 2253(c)(2); see Buck v. Davis, 137
S.Ct. 759, 773 (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 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 follows.
____3/27/2020__________
Date
___________/s/____________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE
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