Green v. Warden et al

Filing 10

MEMORANDUM OPINION. Signed by Judge Julie Rebecca Rubin on 3/25/2024. (c/m 03/26/2024 - bw5s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RICH A. GREEN,
Petitioner,
v.

Civil Action No.: JRR-23-1584

WARDEN,
MARYLAND ATTORNEY GENERAL,
Respondents.
MEMORANDUM OPINION
Petitioner pro se Rich A. Green filed this Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 challenging his conviction for distribution of a controlled dangerous substance
following his guilty plea in the Circuit Court Allegany County, Maryland. ECF 1. Respondents
filed an Answer asserting that the Petition should be dismissed because the claims are procedurally
defaulted or are otherwise non-cognizable. ECF 8. Although he was given an opportunity to file
a Reply to the Answer, Green has not filed anything further in this case. ECF 9. No hearing is
necessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts
and Local Rule 105.6 (D. Md. 2023); 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 that follow, the
Petition shall be dismissed and a certificate of appealability shall not issue.
I.

Background
On November 27, 2017, Green was indicted in the Circuit Court for Allegany County of

nine counts of drug-related offenses. ECF 8-1 at 18 (docket sheet). Green’s panel attorney entered
an appearance on May 29, 2018. Id. at 28.

On August 8, 2018, Green filed a pro se motion complaining that his defense counsel was
ineffective for failing to furnish him with a copy of the State’s discovery material until August 7,
2018, and what was given to him was incomplete. ECF 8-1 at 29-31. He claimed he had not been
given adequate time to review the discovery materials and that he was not allowed to review the
audio or video surveillance as he had requested. Id. He asked for the court to postpone his case
so that he could review the discovery materials and obtain new counsel. Id.
On August 21, 2018, new counsel, Murray M. Blum, entered his appearance on Green’s
behalf. ECF 8-1 at 32.
On September 11, 2018, Green pleaded guilty to one count of distribution of a controlled
dangerous substance pursuant to an agreement with the State whereby all other counts would be
nolle prosequi. ECF 8-1 at 14. At the hearing Green told the court about his concerns regarding
the State’s evidence and expressed dissatisfaction with his former attorney, Sean Patrick
Gallagher, and his current attorney, Murray M. Blum. ECF 8-2 at 5-8. In summary, Green
expressed his dismay over telling his attorney that the date and time on a video surveillance
recording was incorrect and that Mr. Blum had informed the State of the error. Id. Based on this
information, Green believed his attorney was working with the State because after Blum told the
State about the error, he informed Green that the State would be changing the date of the video.
Id. Green also took issue with the fact that the discovery materials did not include the chemical
analysis report. Id. He expressed his belief that the “justice system of Allegany County” was
setting him up “for the second time this year.” Id. According to Green, Mr. Blum was the fourth
attorney he had and “none of them want[ed] to defend me.” Id. He claimed all of his defense
attorneys had revealed every strength of his defense to the State. Id.

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Mr. Blum responded to Green’s grievances and explained that the State intended to
introduce video surveillance from September 21st and that he may have mistakenly told Green the
video was from September 14th. ECF 8-2 at 10. Notwithstanding the error on the date, Mr. Blum
told the court that there was a video depicting Green and that Green knew what was on the video.
Id. at 10-11.
The court sought to clarify whether Green wished to discharge counsel and noted that
Green’s complaints were not really relevant given his stated intent to plead guilty. ECF 8-2 at 810. Green indicated he wanted to keep Mr. Blum as his attorney, and he wanted to plead guilty.
Id at 11-12.
The State provided the following facts that, if the matter had gone to trial, it expected to
establish beyond a reasonable doubt.
[T]he State would have offered testimony from Senior Trooper Trent Lewis of
the Maryland State Police, currently assigned to C3I Narcotics. He would have
testified that on September 21, 2017, acting in an undercover capacity, he made
contact with Richard Andre Green . . . . The reason he made contact was for the
distribution of controlled dangerous substances, specifically cocaine. At
approximately 3:00 in the afternoon, Trooper Lewis pulled up in front of 144
Wood Street, [Frostburg], Allegany County, Maryland . . . . At that time he text
Mr. Green that he was out front. Mr. Green came out approximately one minute
later and proceeded to the Trooper’s vehicle. He got inside the vehicle. The
Trooper handed Mr. Green one hundred dollars and Mr. Green handed the
Trooper three small bags of what the Trooper knew to be cocaine. Evidence
would have shown that indeed, Mr. Green had dominion and control over the
cocaine, knew its illicit nature and/or general substance, and that indeed, it was
cocaine. It was sent down to the Maryland State Police Crime Lab, and came
back as cocaine.
ECF 8-2 at 34-35. The State added that Green sold the cocaine for one hundred dollars. Id. at 35.
During the plea colloquy conducted, Green complained that the chemical analysis report
was not produced until one year had passed and asked why it had taken so long. ECF 8-2 at 1516. In response, the State’s Attorney advised that the State had provided the analysis to Green’s

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former attorney, Mr. Gallagher when it was received on August 10, 2018. Id. at 16. The State
further reminded the court that “[r]egardless of whether Mr. Gallagher gave Mr. Green the analysis
or not, the State did indeed provide Mr. Gallagher with the lab analysis.” Id. at 17.
As part of the colloquy, Mr. Blum explained to Green that his guilty plea meant he would
not be entitled to an automatic appeal, but he could file an application for leave to appeal for
limited reasons. ECF 8-2 at 22. Mr. Blum explained the limited reasons the appellate court might
consider were whether the trial court had jurisdiction; whether the court imposed an illegal
sentence; whether counsel provided effective assistance; and whether Green’s guilty plea was
voluntary. Id. 22-23, 28-29. When Mr. Blum asked Green if he was satisfied with his services,
Green indicated that, while not perfect, he appreciated Mr. Blum’s efforts; affirmed that they had
discussed the primary evidence the State would rely upon; and affirmed his understanding that his
answers regarding counsel’s representation made it unlikely that the appellate court would
consider an ineffective assistance of counsel claim raised by Green. Id. at 28-29. The court
accepted Green’s guilty plea and entered a verdict. Id. at 34-36.
On August 19, 2018, the trial court denied as moot Green’s “Motion to Show In[e]ffective
Assistance of Counsel” and for postponement. ECF 8-1 at 30 (marginal order). On December 11,
2018, Green was sentenced to 14 years with all but 7 years suspended and 5 years of probation.
ECF 8-1 at 13. Green filed an application for leave to appeal on January 7, 2019. ECF 8-1 at 3739. In his application filed with the Maryland Court of Special Appeals (now known as the
Appellate Court of Maryland), Green alleged that the “Maryland Criminal Discovery Rules (Rules
4-262 and4-265 + 4-301) were broken and/or were not honored on September 11, 2018.” Id. at
38. Green further noted that he “filed Ineffective Assistance of Counsel” in this case as well as

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another unrelated case also prosecuted in Allegany County. Id. The application for leave to appeal
was denied without opinion on March 7, 2019; the mandate issued on April 8, 2019. Id. 50-52.
On March 4, 2019, Green filed a pro se petition for post-conviction relief raising eight
claims: (1) information was withheld by one of his attorneys; (2) conflicts of interests should have
been raised prior to counsel entering an appearance on his behalf; (3) the motions he filed pursuant
to Md. Rule 4-252 were ignored; (4) discovery was not complete; (5) Md. Rules 4-262, 4-263, and
4-301 regarding discovery were violated; (6) the State never provided discovery evidence
requested; (7) the State changed the date of the alleged offense from September 14, 2017 to
September 21, 2017; and (8) the forensic analysis was not provided until September 11, 2018.
ECF 8-1 at 47. Two additional claims were added by post-conviction counsel on August 26, 2019:
(9) Green did not enter a knowing and voluntary plea; and (10) trial counsel rendered ineffective
assistance of counsel when he failed to properly advise Green he was waiving his right to allege
any legal or factual challenges to the State’s case. Id. at 55 (supplemental petition).
A post-conviction hearing was held on August 27, 2019. ECF 8-4. Green agreed to
withdraw his post-conviction petition in this case as well as the other separate case on the condition
that the State agree for Green to undergo an evaluation pursuant to MD. CODE ANN., HEALTH GEN.
§ 8-505. Id. at 5. The State also agreed not to oppose a commitment to a drug treatment facility
pursuant to § 8-507 following Green’s evaluation. Id. at 7. During a colloquy performed by
Green’s counsel, he indicated that he understood he was withdrawing his petition with prejudice
meaning he could not file for post-conviction relief again. Id. at 7-8. Green accepted all the terms
of the agreement. Id. at 8. A consent order was issued on August 30, 2019. ECF 8-1 at 63.
Green was later evaluated and committed to the custody of the Maryland Department of
Health for substance abuse pursuant to § 8-507. ECF 8-1 at 64-67. When Green filed his petition

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in this Court he was on probation until November 26, 2024, but was not in prison. Id. at 82. On
July 18, 2023, one month after this petition was filed, Green had a hearing in the Circuit Court for
Allegany County on a motion for modification of his probation and, after the State offered no
opposition to the modification, his probationary period was “closed out as satisfactory.” Id. at 27.
Although Green is no longer in custody, he was subject to state supervision at the time he filed this
petition and was therefore in custody for purposes of habeas corpus relief under 28 U.S.C. § 2254.
Probation supervision satisfies the custody requirement for seeking habeas relief. Jones v.
Cunningham, 371 U.S. 236, 240-43 (1963), see also Woodfolk v. Maynard, 857 F.3d 531, 539 (4th
Cir. 2017) (“It is well settled that the ‘in custody’ requirement applies at the time a petition is
filed.”); Griffin v. Baltimore Police Dept., 804 F.3d 692, 697 (4th Cir. 2015) (“The habeas ‘in
custody’ requirement . . . applies only at the time of filing, not throughout the case.”).
In the petition filed with this Court, Green alleges he is entitled to habeas relief because
(1) the video surveillance has no time and date stamp and is not from the date alleged by the State;
(2) the forensic report was dated October 10, 2017 and when Green told his attorney, his attorney
told the State about it; (3) ineffective assistance of counsel when defense counsel “conspired with
the State to have [Green] set up for failure;” and (4) the State added documents to discovery
materials over a year after Green informed his attorney the discovery packet was incomplete. ECF
1 at 5.
II.

Discussion
A.

Cognizability of Claims

To be entitled to federal habeas relief Green must raise a claim that he was either denied a
constitutional right or federal law was violated in connection with his State criminal conviction.
Absent such an allegation, the Petition fails to state a cognizable claim for relief. Wilson v.

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Corcoran, 562 U.S. 1 (2011) (holding courts may not issue writs of habeas corpus to prisoners
whose confinement does not violate federal law.”); Spencer v. Murray, 18 F.3d 267, 239-40 (4th
Cir. 1995) (holding where petitioner alleged error in admissibility of evidence, without reference
to any constitutional right infringed, petitioner failed to state a claim). Allegations of State law
violations do not give rise to a federal question. See 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”), see also Weeks v. Angelone, 176 F.3d 249, 252 (4th Cir. 1999) (“when a
petitioner’s claim rests solely upon an interpretation of state case law and statutes, it is not
cognizable on federal habeas review.”); Torrence v. Lewis, 60 F.4th 209, 213-14 (4th Cir. 2023)
(federal habeas petitioner may not receive relief “solely for an error of state law”). Green’s claims
regarding the State’s alleged violation of Maryland Rules of procedure for discovery in a criminal
case do not implicate a federal constitutional right and therefore provide no basis for federal habeas
relief.
B.

Effect of Guilty Plea

Additionally, Green’s conviction was the result of a guilty plea, which is presumed to be
valid under well-established principles of law. Parke v. Raley, 506 U.S. 20, 29 (1992). Green
must “rebut the presumption of regularity that attaches to his guilty plea,” otherwise he is
“presumed to have waived his right to trial.” U.S. v. Locke, 932 F.3d 196, 199 (4th Cir. 2019), see
also U.S. v. Fitzgerald, 820 F.3d 107, 110 (4th Cir. 2016) (“It is the general rule that when a
defendant pleads guilty he waives all non-jurisdictional defects in the proceedings conducted prior
to entry of the plea, and thus has no non-jurisdictional ground upon which to attack that judgment
except the inadequacy of the plea.”). “[A] defendant's decision to plead ‘guilty generally involves
a conscious decision to accept both the benefits and burdens of a bargain [and][t]hat decision

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[should] not be lightly undone by buyer's remorse on the part of one who has reaped advantage
from the purchase.’” Christian v. Ballard, 792 F.3d 427, 454 (4th Cir. 2015), quoting U.S. v. Fugit,
703 F.3d 248, 260 (4th Cir. 2012). Green’s claims that challenge the sufficiency of the State’s
evidence and that allege his trial attorneys conspired with the State are waived and no exception
to this rule is evident from the record before the Court. See Class v. U.S., 538 U.S. 174, 180 (2018)
(exception to guilty plea waiver recognized where court had no power to enter the conviction or
to impose the sentence).
C.

Ineffective Assistance of Counsel

Green raises a claim of ineffective assistance of counsel, which implicates the Sixth
Amendment to the United States Constitution. This claim, however, is procedurally defaulted.
Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear
it, whether it be by failing to raise the claim in post-conviction proceedings or on direct appeal, or
by failing to timely note an appeal, the procedural default doctrine applies. See Coleman v.
Thompson, 501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v. Carrier, 477
U.S. 478, 489-91 (1986) (failure to raise claim on direct appeal); Murch v. Mottram, 409 U.S. 41,
46 (1972) (failure to raise claim during post-conviction); Bradley v. Davis, 551 F. Supp. 479, 481
(D. Md. 1982) (failure to seek leave to appeal denial of post-conviction relief). A procedural
default also may occur where a state court declines “to consider the merits [of a claim] on the basis
of an adequate and independent state procedural rule.” Yeatts v. Angelone, 166 F.3d 255, 260 (4th
Cir. 1999).
As the Fourth Circuit has explained:
If a state court clearly and expressly bases its dismissal of a habeas petitioner’s
claim on a state procedural rule, and that procedural rule provides an independent
and adequate ground for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim. See Coleman v. Thompson, 501 U.S. 722, 7318

32 (1991). A procedural default also occurs when a habeas petitioner fails to
exhaust available state remedies and “the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred.” Id. at 735 n.1.
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
If a procedural default has occurred, a federal court may not address the merits of a state
prisoner’s habeas claim unless the petitioner can show (1) both cause for the default and prejudice
that would result from failing to consider the claim on the merits, or (2) that failure to consider the
claim on the merits would result in a miscarriage of justice, i.e. the conviction of one who is
actually innocent. 1 See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Breard, 134 F.3d at 620.
“Cause” consists of “some objective factor external to the defense [that] impeded counsel’s efforts
to raise the claim in state court at the appropriate time.” Id. quoting Murray, 477 U.S. at 488.
Even where a petitioner fails to show cause and prejudice for a procedural default, a court must
still consider whether it should reach the merits of a petitioner’s claims in order to prevent a
fundamental miscarriage of justice. See Schlup v. Delo, 513 U S. 298, 314 (1995).
Green claims that his defense attorneys conspired with the State to set him up for failure at
trial. ECF 1 at 6. Green did not raise this claim in his application for leave to appeal his guilty
plea and he withdrew his petition for post-conviction relief with prejudice.

While Green

mentioned that he had “filed Ineffective Assistance of Counsel” in his application for leave to
appeal, he did not explain how counsel rendered ineffective assistance.

1

Absent such an

Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate
constitutional claim upon which they request habeas relief. Murray v. Carrier, 477 U.S. at 496. “[When] a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court
may grant the writ even in the absence of a showing of cause for the procedural default.” Id.; see also Reid v. True,
349 F.3d 788, 806 (4th Cir. 2003). Petitioners who wish to use a claim of actual innocence as a gateway to raising an
otherwise defaulted constitutional claim must demonstrate by a preponderance of the evidence that a reasonable juror
could not have convicted the petitioner in light of the new evidence. Buckner v. Polk, 453 F.3d 195, 199-200 (4th Cir.
2006).

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explanation, the claim is not properly raised for the Appellate Court of Maryland to consider the
merits of the claim. See MD. RULE 8-204(b)(3) (requiring application for leave to appeal to contain
a concise statement of the reasons why the judgment should be reversed or modified). Moreover,
claims of ineffective assistance of counsel are more appropriately raised in post-conviction
proceedings where a record can be developed regarding trial counsels’ reasons for actions taken
during the trial. See Bailey v. State, 464 Md. 685, 705 (2019) (noting trial record did not clearly
illuminate why counsel’s actions were ineffective), see also Robson v. State, 257 Md. App. 421,
463 (2023) (claim of ineffective assistance is more appropriately made in a post-conviction
proceeding). As noted, Green withdrew his petition for post-conviction with prejudice. Thus, his
claim of ineffective assistance of counsel is procedurally defaulted.
While this Court may still reach a claim that is procedurally defaulted in limited
circumstances, those circumstances do not exist in this case. Green has not offered any argument
or evidence to support an actual innocence claim, nor does this Court find that a manifest injustice
would result absent habeas relief in this case. Accordingly, the Petition must be denied.
D.

Certificate of Appealability

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); 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).

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Green 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).
III.

Conclusion
The Petition for Writ of Habeas Corpus shall be denied and a certificate of appealability

shall be declined by separate Order which follows.

/S/
March 25, 2024
Date

_____________________________
Julie R. Rubin
United States District Judge

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