Johnson v. Shearin et al

Filing 19

MEMORANDUM OPINION (c/m to Petitioner 1/15/13 sat). Signed by Chief Judge Deborah K. Chasanow on 1/15/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANTHONY JOHNSON
:
v.

:

Civil Action No. DKC 10-2527

:
BOBBY SHEARIN, et al.
:
MEMORANDUM OPINION
Petitioner Anthony Johnson, proceeding

pro se, commenced

this action on September 13, 2010, by filing an application for
a

writ

of

conviction

habeas
on

corpus

charges

challenging
first-degree

of

his

2006

murder

state

and

handgun in the commission of a crime of violence.
Respondents

Bobby

Shearin,

Warden

of

the

use

court
of

a

(ECF No. 1).
North

Branch

Correctional Institution, and Douglas F. Gansler, the Attorney
General of the State of Maryland, opposed the application (ECF
No. 13), and Petitioner filed a reply (ECF No. 15).

Having

reviewed the parties’ submissions, including the transcripts of
the

underlying

proceedings,

being deemed necessary.

the

court

now

rules,

no

hearing

See Rule 8(a), Rules Governing Section

2254 Cases in the United States District Courts; Local Rule
105.6; see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000)
(petitioner

not

entitled

to

a

hearing

under

28

U.S.C.

§

2254(e)(2)).

For the reasons set forth below, the petition will

be denied.
I.

Background
By an indictment filed March 17, 1997, Petitioner Anthony

Johnson was charged, inter alia, with first-degree murder and
use

of

related

a

handgun

to

the

in

the

February

commission
4,

1997,

of

death

a
of

crime

of

violence

Anthony

Jackson.

Petitioner remained at large until in or around November 2005.
Following two motions hearings, the case proceeded to a jury
trial in June 2006 in the Circuit Court for Prince George’s
County, Maryland.
A.

Trial

The State’s principal witness at trial was Yvonne Kelly, a
fifty-one-year-old crack cocaine user who was, at that time,
incarcerated on drug possession charges.

Kelly testified that,

on February 4, 1997, she hosted a gathering of individuals –
most of whom were drug dealers – at an apartment in Laurel,
Maryland.

A number of people came and went at various points,

but among those present for most of the day was fourteen-yearold

Mark

McRae,

Jr.,

and

twenty-year-old

Anthony

Jackson.

Jackson was a drug dealer to whom McRae, Jr., had introduced
Kelly approximately one year earlier.
and

Jackson

had

established

a

During that time, Kelly

business

relationship

whereby

Kelly referred drug purchasers to Jackson in exchange for crack
2

cocaine and cash.

McRae, Jr., was the son of Kelly’s boyfriend,

Mark McRae, Sr., who was also present at various times.

All of

Kelly’s guests were smoking marijuana, and some of them had
given Jackson money for crack cocaine and were “waiting for
their product to come back, but their product never came back.”
(ECF No. 13, Ex. 4, at 149).

According to Kelly, they were

“unhappy” because “[t]hey had customers that were waiting to be
served.”

(Id.).

Approximately ten individuals were present when Petitioner
arrived

at

between

7:00

and

8:00

p.m.

Kelly

did

not

know

Petitioner, but McRae, Sr., told her he was Jackson’s brotherin-law.

Kelly saw Petitioner “walk[] back to the bedroom [where

Jackson was located], and then he sat down, and then he got up
and he walked back outside.

And then he came back in, and he

asked [Jackson] to walk outside with him because he wanted to
talk with him.”

(Id. at 132).

Petitioner was at the apartment

for “[n]o more than maybe five or ten minutes” when he walked
outside with Jackson.

(Id.).

At all times while he was inside

the apartment, Kelly observed Petitioner as having “one hand in
his jacket and the other hand . . . free.”

(Id.).

Shortly after Petitioner and Jackson exited the front door,
Kelly walked from a nearby couch and opened the door in order to
close an outside “storm door,” which had to be “slam[med] . . .
in order for it to shut.”

(Id. at 134).
3

When she did, she

observed Petitioner and Jackson “just standing [alone] . . . in
front of the door.”
jacket pockets.
couch

and,

shots.”

(Id.).

Petitioner had both hands in his

After closing the door, Kelly returned to the

approximately

(Id. at 135).

three

minutes

later,

“heard

three

Upon opening the door again, she found

Jackson “lying on the sidewalk” in a pool of blood (id. at 136)
and saw a white, four-door sedan “pull away going down the . . .
one-way

street”

occupants
(Id.

at

of
159).

(id.

the

at

138).

vehicle,

but

Immediately

She

was

observed

after

the

unable

“two
shots

present at the apartment fled the scene.

to

people”
were

see

the

inside.

fired,

all

McRae, Sr., drove

Kelly and his two children – McRae, Jr., and eleven-year-old
Jermaine Thompson – to a nearby hotel.
Detective

Richard

McLaughlin

of

the

Laurel

Police

Department was the lead investigator of Jackson’s murder.

He

testified that, upon his arrival at the crime scene, he observed
paramedics

unsuccessfully

attempting

to

revive

Jackson,

who

“appeared to [have] a bullet hole in the head and there [were]
multiple bullet holes . . . to the upper torso.”

(Id. at 181).

Jackson was pronounced dead at the scene.1

1

The parties later stipulated to the admission of an
autopsy report.
According to the prosecutor during closing
arguments, the report showed that Jackson was shot five times:
“One in the temple, three in the stomach, the midsection, and
one in the leg.” (ECF No. 13, Ex. 5, at 102).
4

Lieutenant Robert Mapp was among those assisting Detective
McLaughlin in the investigation.

On February 7 – three days

after the shooting – he interviewed Kelly at the Laurel police
station.

Lieutenant

Mapp

testified

that

he

recorded

the

interview, which was approximately forty to forty-five minutes
in duration, on a micro-cassette recorder kept in plain view on
a table as they spoke in an interview room.

When the interview

was complete, he gave the tape to a secretary, who transcribed
it and returned the recording and transcript to Lieutenant Mapp.
As was his “standard practice” at the time, Lieutenant Mapp
reviewed the tape and transcript to ensure that the transcript
was accurate.

(ECF No. 13, Ex. 5, at 24).

transcript

of

the

Lieutenant

Mapp

interview

verified

by

the

it

was

that

Upon being shown a

prosecutor
a

“fair

and

at

trial,

accurate”

representation of what transpired during his interview of Kelly.
(Id. at 26).
into evidence.

A portion of the interview transcript was admitted
(Id. at 28).2

Approximately
one
month
after
the
shooting,
having
developed Petitioner as a suspect, Detective McLaughlin showed
Kelly a photographic array containing six photographs, including
that of Petitioner. Kelly positively identified Petitioner, as
well as two other photographs, as depicting individuals she
“recognized.”
(ECF No. 13, Ex. 4, at 187).
When she was
subsequently recalled by the State, Kelly testified that the
photographic array admitted into evidence was not the same one
she was shown in 1997. (ECF No. 13, Ex. 5, at 47-48).
2

Along with the transcript of Kelly’s prior testimony at a
related trial in 1997, the interview transcript was a
5

Following

Lieutenant

recalled by the State.
a

related

reflected

trial
in

prosecutor,

in

three

Mapp’s

testimony,

Yvonne

Kelly

was

Kelly acknowledged that she testified at
1997

pages

conflicted

in

and
of

that

her

transcript
some

testimony at Petitioner’s trial.

prior
shown

respects

testimony,
to

with

her
her

by

as
the

initial

She insisted that “[t]here’s

significant piece of evidence for the State, as it reflected
that, contrary to her initial testimony, Kelly witnessed
Petitioner shoot Jackson outside the front door of the
apartment.
Prior to the second day of trial, the State
announced its intention to recall Kelly after entering the
transcript into evidence through Lieutenant Mapp.
During an
extended colloquy outside the presence of the jury, defense
counsel objected on numerous grounds, including that it was
impossible to authenticate the transcript because the audiotape
was missing and that, in any event, the transcript was
inadmissible hearsay.
The court rejected those arguments,
finding that the transcript was admissible as a prior
inconsistent statement pursuant to Md. Rule 5-802.1(a):
The Court finds that the statements,
although hearsay, come under an exception to
the hearsay rule, again provided that the
proper foundation is laid.
The Court finds
that they are probative in nature, and that
if the defense is given an opportunity to
cross-examine Ms. Kelly and Detective Mapp
regarding those statements or those portions
of her statement as previously noted, that
due process will be satisfied. And it will
again be up to the triers of fact to assess
Ms.
Kelly’s
credibility
and
those
statements.
(ECF No. 13, Ex. 5, at 19).
During the same colloquy, the trial judge ruled that the
prosecutor could question Kelly about inconsistent testimony she
gave during the 1997 trial of another defendant related to the
same events.
6

some

things

.

transcript]”
transcript

.

(id.
was

.
at

I

didn’t

say

that

36-37),

but

an

admitted

into

[were]

put

excerpt

evidence.3

of

in

the

Kelly

[the
trial

further

acknowledged giving a statement to police at the Laurel police
station shortly after the shooting.
there

was

any

recording

device

She denied, however, that

present

at

the

time

of

the

interview and disputed the accuracy of the interview transcript.4

3

During closing argument, the prosecutor read a portion of
Kelly’s prior testimony to the jury:
I went to close the storm door to lock the
door, but it must have [drawn] their
attention or something, and both of them
turned
around.
And
then
I
[saw]
[Petitioner] raise his hand up. He had his
hands in his pockets. Then I [saw] his hand
go up and both of them turned around. When
he shot, when he shot the door, and all I
heard was a shot. And I shut the door and I
started screaming and everybody in the house
just left.
(Id. at 101).
4

During closing argument, the prosecutor read extensively
from Kelly’s interview transcript:
I went to close the storm door.
I went to
close – the door must have distracted both
of them because he turned, both of them
turned around, I just [saw] the guy shoot
him . . . and then I just closed the door
and went to scream out. I said somebody is
getting shot. That’s when I heard two more
shots and everybody in the house started
scattering. . . . I [saw] the guy named
Architect [i.e., Petitioner’s street name].
. . . All I [saw] was his hand go up like
that and shot him right there . . . in the
7

After two days of testimony, the case was submitted to the
jury.

The following day, the jury returned a verdict finding

Petitioner guilty of first-degree murder and use of a handgun.
On June 21, 2006, Petitioner was sentenced to life imprisonment,
plus a consecutive term of twenty years.5
B.

Appeal

Petitioner noted a timely appeal in the Court of Special
Appeals of Maryland, presenting the following questions:
1.
Did the circuit court judge who granted
the State’s motion for continuation comply
with § 6-103 of the Criminal Procedure
Article of the Maryland Code and Maryland
Rule 4-271?
2.
Did
the
trial
court
err
in
not
obtaining a personal waiver from appellant
of his right to testify or remain silent?
3.
Did the trial court err in admitting
transcript excerpts of a witness’s taperecorded interview with police?
4.
Was the evidence sufficient to sustain
appellant’s convictions?
5.
Did
the
prosecutor
prosecutorial misconduct?

engage

in

head. . . . He went running to the car. He
went running to the white Honda, jumped in
and drove off.
(Id. at 100-01).
5

At sentencing, Petitioner expressed dissatisfaction with
his trial counsel’s representation insofar as his attorney
purportedly “withdrew his objection to Ms. Yvonne Kelly’s . . .
prior inconsistent statement that was admitted as substantive
evidence.” (ECF No. 13, Ex. 7, at 5).
8

6.
Did
the
trial
court
abuse
its
discretion by admitting a photographic array
that included appellant’s mug shot?
(ECF No. 13, Ex. 10, at 2 (footnote omitted)).
On June 3, 2008, the intermediate appellate court issued an
unreported
relevant

decision
to

Petitioner’s

the

affirming
instant

argument

that

Petitioner’s

application,
the

the

interview

conviction.
court

The transcript of Kelly’s statements
contemporaneously
recorded
electronically
[was] a true and accurate reflection of her
statements
to
Lieutenant
Mapp.
The
recording was transcribed verbatim by a
secretary at the police department and then
returned to Lieutenant Mapp, who testified
that he reviewed the transcript and compared
it with the tape-recording to make sure it
contained no errors.
He concluded that the
transcript
was
a
“fair
and
accurate”
reflection of the corresponding electronic
version.
Consistent with Nance [v. State,
331 Md. 549 (1993)], the transcript bears
sufficient
trustworthiness
of
Kelly’s
recounting of her personal knowledge of the
events in question because it was based on
her recorded statement.
It is reliable
because it is a reflection of Kelly’s own
words.
Kelly was available at trial for
appellant to cross-examine her regarding
those
prior
statements.
Thus,
the
transcript of Kelly’s taped statement was
correctly admitted under Rule 5-802.1(a).

9

rejected

transcript

erroneously admitted:

As

was

(Id. at 21-22).6
failed

to

The court further determined that Petitioner

preserve

inconsistent

an

statement

argument

that

violated

admission

his

rights

of

the
under

prior
the

Confrontation Clause of the Sixth Amendment, but nevertheless
opined that such an argument “would not have prevailed even if
it had been preserved”:
The Confrontation Clause is implicated
when the declarant does not testify at
trial. Crawford [v. Washington, 541 U.S. 36
(2004)].
In Cooley v. State, 157 Md.App.
101, 108-11 (2004), rev’d on other grounds,
385 Md. 165 (2005), former Chief Judge
Murphy articulated that prior inconsistent
statements by “turncoat witnesses” may be
received
as
substantive
evidence
under
Maryland
Rule
5-802.1(a)(3)
and
Nance,
supra, without violating the Confrontation
Clause. Accord, Adams v. State, 165 Md.App.
352 (2005).
(Id. at 22).

6

Maryland Rule 5-802.1(a) provides:
The following statements previously made by
a witness who testifies at the trial or
hearing and who is subject to crossexamination concerning the statement are not
excluded by the hearsay rule:
(a) A statement that is inconsistent with
the declarant’s testimony, if the statement
was (1) given under oath subject to the
penalty of perjury at trial, hearing, or
other proceeding or in a deposition; (2)
reduced to writing and was signed by the
declarant; or (3) recorded in substantially
verbatim
fashion
by
stenographic
or
electronic means contemporaneously with the
making of the statement[.]
10

In rejecting Petitioner’s challenge to the sufficiency of
the evidence, the appellate court explained:
The jury, as the fact-finder, necessarily
reconciled Kelly’s earlier statements with
her testimony on the witness stand by making
a credibility assessment of which version
[it] believed was accurate.
In Kelly’s
earlier version, she stated that she saw
appellant shoot Jackson before escaping in a
white
Honda
Accord
and
she
identified
[Petitioner] from the photo array.
Even if
the
jury
rejected
Kelly’s
earlier
statements, her testimony on the witness
stand was sufficient for the jury to
circumstantially find all elements of the
crimes for which [Petitioner] was convicted.
She testified that the entire time that
[Petitioner] was inside of the apartment his
hand was inside his jacket pocket, that
[Petitioner]
and
Jackson
went
outside
together approximately three minutes before
the shooting and that, when she opened the
door, she observed Jackson laying on the
ground and there was nobody else in sight.
It [was] reasonable for the jury to infer
that [Petitioner] was carrying a gun and
that he was the culprit.
Regardless of
which version of events that the jury
accept[ed] as true, viewing the evidence in
the light most favorable to the prosecution,
a rational trier of fact could have found
all of the essential elements, beyond a
reasonable doubt, to support a conviction.
(Id. at 25).
With

regard

to

Petitioner’s

prosecutorial

misconduct

challenge related to certain questions posed to Kelly, the court
found this claim was unpreserved insofar as a contemporaneous
objection was not made by defense counsel.

Furthermore, noting

that the record reflected that Petitioner was advised of his
11

right to testify and that, after consultation with counsel, he
elected

not

[trial]

court

right

to

to

do

so,

properly

testify

and

the

appellate

accepted
was

court

determined,

[Petitioner’s]

not

required

to

waiver

“the

of

further

his

advise

[Petitioner] when, evidently, his counsel had already done so.”
(Id. at 17).
Petitioner sought further review in the Court of Appeals of
Maryland, which denied his petition for writ of certiorari on
August 26, 2008.
C.

(ECF No. 13, Ex. 12).

State Postconviction Application

Petitioner

next

commenced

a

collateral

attack

on

his

conviction in the Circuit Court for Prince George’s County.
a

hearing

addressed

held

on

October

approximately

assistance

of

prosecutorial

trial
misconduct

22,

2009,

sixteen

a

circuit

allegations

counsel,
raised

of

appellate
by

court

At

judge

ineffective

counsel,

Petitioner

in

and
his

postconviction application and multiple supplements thereto.
In

rejecting

Petitioner’s

allegation

that

his

counsel

rendered ineffective assistance by failing to argue that the
admission of the interview transcript violated his rights under
the Confrontation Clause, the judge explained:
I can’t find that your Sixth Amendment right
to confront witnesses is violated with
respect to Ms. Kelly because even though
that statement may have been made outside of
your presence, she was at trial.
She
12

testified; [you] certainly had a right to
confront her; I believe [c]ounsel did; so, I
don’t see how you can maintain that you have
an argument or legal basis based on a
violation of the [C]onfrontation [C]lause
because she was at trial, and the fact that
she . . . had no one present when she gave
the statement to the [p]olice, you are not
entitled
to
have
someone
present
when
someone gives a statement to the [p]olice.
The right to confront her [is] in the trial
proceeding, and you had that.
(ECF

No.

13,

Ex.

16,

at

100).

Regarding

counsel’s

alleged

failure to object to the admission of the same evidence on other
grounds,
argued

the

postconviction

strenuously

at

court

trial

noted
that

that
the

defense

counsel

transcript

was

inadmissible:
There was a discussion about it before the
[trial] [j]udge as to whether it was a
reliable
transcription
of
the
recorded
statement.
[Counsel] said the tape was not
available, and the [t]rial [j]udge was
satisfied
that
the
transcript
was
sufficiently reliable in the form that it
exists, and therefore, it was admitted
without signature, which is really what you
are getting at. And to that end, it doesn’t
matter whether the transcript was certified
or not.
It was found to be substantially
credible
by
[the
trial
judge]
and,
therefore,
admitted,
and
the
Court
of
Special Appeals didn’t find that as error.
And this [c]ourt doesn’t find any error by
[trial counsel] in the way he handled the
matter.
(Id. at 110-11).
In
counsel

addressing

Petitioner’s

failed

object

to

to

allegations

certain
13

that

comments

his

made

trial
by

the

prosecutor

during

his

closing

argument

and

certain

questions

posed by the prosecutor to Kelly, the court ruled:
I fail[] to see from the evidence what
misconduct
the
prosecution
committed.
Certainly, in closing argument you argue the
facts.
You bring out inconsistencies, and
you suggest[] inferences.
Those are all
permitted, and as [counsel] testified [at
the postconviction hearing], there is a
broad latitude to [c]ounsel in terms of how
they argue[] the inconsistencies of the
evidence.
You may not agree with it, Mr.
Johnson, and that’s fine, but they are
permitted to argue these things because the
[j]ury determines the facts, and they can
draw inferences from the facts.
. . . .
The other issue was that Ms. Kelly had
testified that she was afraid of no one . .
. or nobody at trial, and you indicated that
there was no evidence that you had ever made
Ms.
Kelly
afraid.
You
felt
it
was
inappropriate
for
the
[p]rosecutor
to
suggest that. I fail to see where there is
some shortcoming on [defense counsel’s] part
in not objecting to the statements made by
the [p]rosecutor.
(Id. at 118-19).
Petitioner

sought

review

of

the

postconviction

court’s

denial of his postconviction application in the Court of Special
Appeals.
2010.

His petition for leave to appeal was denied on July 7,

(ECF No. 13, Ex. 19).

14

D.

Federal Habeas Corpus Petition

In this court, Petitioner timely filed an application for
habeas corpus relief, pursuant to 28 U.S.C. § 2254, raising the
following grounds:
1.
That
his
trial
counsel
rendered
ineffective assistance of counsel by:
a. Failing to object to the admission of
the Kelly interview transcript on the
ground that it violated his right to
confront witnesses against him;
b. Failing to file a motion to compel the
State to produce the audiotape of Kelly’s
statement; and
c. Failing to object to the admission of
the interview transcript because it was
not authenticated and certified as a true
copy of the audiotape;
2.
That
the
prosecutor
committed
misconduct, in violation of Petitioner’s
rights under the Fourteenth Amendment, by
arguing facts unsupported by the evidence,
misstating the evidence, and misleading the
jury;
3.
That
his
conviction
was
based
on
unsworn testimony in the form of Kelly’s
prior inconsistent statement;
4.
That the trial court erred by failing
to obtain a personal waiver from Petitioner
of his right to testify; and
5.
That the state postconviction court’s
ruling was an unreasonable determination of
the evidence presented.

15

(ECF No. 1-1, at 6-7).7
II.

Standard of Review
An application for a 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).

Section 2254 sets forth a “highly

deferential standard for evaluating state-court rulings.”

Lindh

v. Murphy, 521 U.S. 320, 333 n. 7 (1997); see also Bell v. Cone,
543 U.S. 447, 455 (2005) (quoting Lindh).

This standard is

“difficult to meet” and “demands that state-court decisions be
given the benefit of the doubt.”

Cullen v. Pinholster, --- U.S.

----, ----, 131 S.Ct. 1388, 1398 (2011) (quoting Harrington v.
Richter,

---

U.S.

----,

----,

131

S.Ct.

770,

786

(2011);

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
A

federal

court

may

not

grant

a

writ

of

habeas

corpus

unless the state’s adjudication on the merits: (1) “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined
by the Supreme Court of the United States”; or (2) “resulted in
a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.”

28 U.S.C. § 2254(d).

A state adjudication is

contrary to clearly established federal law, within the meaning
7

Petitioner also alleged a speedy trial violation, but
later withdrew the claim, acknowledging that it was procedurally
defaulted. (ECF No. 15, at 17).
16

of

§

2254(d)(1),

when

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].”
v. Taylor, 529 U.S. 362, 405 (2000).
application”

analysis,

a

“state

Williams

Under the “unreasonable

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, 131 S.Ct. at 778 (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

marks omitted; emphasis removed).
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, ----, 130 S.Ct. 841, 849 (2010).
“[E]ven

if

‘[r]easonable

minds

reviewing

the

record

might

disagree’ about the finding in question, ‘on habeas review that
does

not

suffice

determination.’”
341-42 (2006)).

to

supersede

the

trial

court’s

.

.

.

Id. (quoting Rice v. Collins, 546 U.S. 333,
A federal habeas court “may not issue the writ

simply because [it] concludes in its independent judgment that
17

the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.”

Renico v. Lett, ---

U.S. ----, ----, 130 S.Ct. 1855, 1862 (2010) (quoting Williams,
529

U.S.

at

411)

(internal

marks

omitted).

application must be ‘objectively unreasonable.’”

“Rather,

that

Id. (quoting

Williams, 529 U.S. at 409).
The

federal

habeas

corpus

statute

provides

that

“a

determination of a factual issue made by a State court shall be
presumed to be correct,” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and convincing
evidence.”
conducted

28 U.S.C. § 2254(e)(1).
an

evidentiary

hearing

and

“Where the state court
explained

its

reasoning

with some care, it should be particularly difficult to establish
clear and convincing evidence of error on the state court’s
part.”

Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010).

This

is especially true where state courts have “resolved issues like
witness

credibility,

which

are

purposes of Section 2254(e)(1).”

‘factual

determinations’

for

Id. at 379 (quoting Wilson v.

Ozmint, 352 F.3d 847, 858 (4th Cir. 2003)).
III. Analysis
A.

Ineffective Assistance of Counsel

To succeed on an ineffective assistance of counsel claim, a
petitioner must show both that his counsel’s performance was
deficient

and

that

the

deficient
18

performance

prejudiced

his

defense.
(1984).
there

See

Strickland

v.

Washington,

466

U.S.

668,

687

The second prong requires the court to consider whether

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 adequate

representation attaches to counsel’s conduct – so strong, in
fact,

that

a

petitioner

alleging

ineffective

assistance

must

show that the proceeding was rendered fundamentally unfair as a
result of counsel’s omissions or errors.
state

court

conclusion

that

Id. at 696.

counsel

rendered

“[A]

effective

assistance of counsel is not a finding of fact binding on the
federal

court

to

the

extent

2254(d) [now § 2254(e)(1)].”
findings

of

fact

made

stated

by

Id. at 698.
in

the

[former]

18

U.S.C.

§

Rather, “state court

course

of

deciding

an

ineffectiveness claim are subject to the deference requirement
of

§

2254[(e)(1)],

.

.

.

[and]

both

the

performance

and

prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact.”
2254(d)(1)
conclusion

applies
that

to

the

Petitioner’s

Id.
state
trial

It follows, then, that §
postconviction
counsel

did

not

court’s
render

ineffective assistance, and this court may not grant relief as
long as the state court denied the claims based on a reasonable
application of the Strickland standard to the facts presented at
the postconviction proceeding.
19

Petitioner contends that his trial counsel’s performance
was constitutionally deficient due to his failure to object on
proper grounds to the admission into evidence of a portion of
the transcript prepared from the tape-recorded interview Kelly
gave to police three days after the murder.

Specifically, he

faults his counsel for failing to argue (1) that the transcript
“was

inadmissible

under

the

[C]onfrontation

[C]lause

of

the

Sixth Amendment” (ECF No. 1-1, at 11); (2) that “the alleged
out-of-court

declaration

Kelly

made

to

the

police

was

not

admissible under Md. Rule 5-802.1(a)(3)” (id. at 16); and (3)
that

the

transcript

was

not

properly

authenticated

without

admission of the audiotape and in the absence of any signature
or certification.
In support of his Confrontation Clause argument, Petitioner
relies principally on California v. Green, 399 U.S. 149 (1970).
Green involved a witness, Porter, who gave one version of the
relevant
Officer

events
Wade;

preliminary

during
another

hearing;

an

interview

version
and,

at

with

a

police

during

his

trial,

claimed

officer,

testimony
to

at

have

a
no

recollection of certain events.

The prosecutor was permitted to

refresh

with

Porter’s

recollection

his

prior

inconsistent

testimony at the preliminary hearing and to call Officer Wade as
a witness to testify regarding what Porter had told him during
the interview.

On appeal, Green argued that the admission of
20

both categories of evidence – Porter’s prior testimony and his
out-of-court statement to Officer Wade – violated his rights
under the Confrontation Clause.
The

Supreme

Court

disagreed.

Regarding

the

prior

testimony, the Court unequivocally held that “nothing in the
Confrontation Clause prohibited the State from . . . relying on
[Porter’s] prior testimony [at the preliminary hearing] to prove
its case against Green.”

Green, 399 U.S. at 168.

As to the

out-of-court statement, the Court explained:
[T]he Confrontation Clause does not require
excluding from evidence the prior statements
of a witness who concedes making the
statements, and who may be asked to defend
or
otherwise
explain
the
inconsistency
between his prior and his present version of
the events in question, thus opening himself
to full cross-examination at trial as to
both stories.
Id.

at

164.

consideration

Nevertheless,
of

a

“narrow

the

Court

question

remanded
.

.

.

the

case

for

concerning

the

admissibility of Porter’s statements to Officer Wade”:
In the typical case to which the California
court addressed itself, the witness at trial
gives a version of the ultimate events
different from that given on a prior
occasion.
In such a case, . . . we find
little reason to distinguish among prior
inconsistent statements on the basis of the
circumstances
under
which
the
prior
statements were given. . . . Here, however,
Porter claimed at trial that he could not
remember the events that occurred after
respondent telephoned him and hence failed
to give any current version of the more
21

important events
statement.

described

in

his

earlier

Whether Porter’s apparent lapse of
memory so affected Green’s right to crossexamine as to make a critical difference in
the application of the Confrontation Clause
in this case is an issue which is not ripe
for decision at this juncture.
The state
court
did
not
focus
on
this
precise
question, which was irrelevant given its
broader and erroneous premise that an outof-court
statement
of
a
witness
is
inadmissible
as
substantive
evidence,
whatever the nature of the opportunity to
cross-examine at trial.
Nor has either
party addressed itself to the question. Its
resolution depends much upon the unique
facts in this record, and we are reluctant
to proceed without the state court’s views
of
what
the
record
actually
discloses
relevant to this particular issue.
What is
more, since we hold that the admission of
Porter’s preliminary hearing testimony is
not barred by the Sixth Amendment despite
his apparent lapse of memory, the reception
into evidence of the Porter statement to
Officer Wade may pose a harmless-error
question
which
is
more
appropriately
resolved by the California courts in the
first instance.
Green, 399 U.S. at 168-70 (footnote omitted).
Observing that the Court was unable to find that Porter’s
out-of-court statement was admissible under the Confrontation
Clause,

Petitioner

insists

that

Green

admissibility of Porter’s prior testimony.

addressed

only

the

He further asserts

that “the out-of-court declaration allegedly made by Kelly to
the police is identical to the out-of-court declaration Porter
made to [O]fficer Wade in [Green].”
22

(ECF No. 1-1, at 15).

Thus, according to Petitioner, “[u]nder Green, it is conceivable
that [the] out-of-court declaration made to the police is not
admissible under the Confrontation Clause because it was not
taken under oath and subject to cross-examination.”
contends

that

his

trial

counsel’s

(Id.).

representation

He
was

constitutionally infirm for failing to argue this point.
Petitioner

misapprehends

the

import

of

Green.

At

his

trial, Kelly did not claim that she had no recollection of the
critical events, as Porter did in Green.

Rather, she testified

that she saw Petitioner, with his hands in his pockets, talking
with

Jackson

Because

Kelly

on

her

front

previously

porch

told

just

before

Lieutenant

the

Mapp,

shooting.

during

the

interview, that she saw Petitioner raise his hand and shoot
Jackson before running to a car, this was a “typical case” in
which “the witness at trial gives a version of the ultimate
events different from that given on a prior occasion.”
399 U.S. at 168.

Green,

In such circumstances – where the witness

“concedes making the [prior] statements,” as Kelly did here –
Green makes clear that the witness “may be asked to defend or
otherwise

explain

the

inconsistency

between

[her]

prior

and

[her] present version of the events in question, thus opening
himself to full cross-examination at trial as to both sides.”
Id. at 164.

That is precisely what happened at Petitioner’s

23

trial,

and

Green

does

not

mandate

an

alternative

result.8

Accordingly, Petitioner’s trial counsel could not have rendered
ineffective assistance in failing to object on the ground of the
Confrontation

Clause,

as

the

postconviction

court

properly

found.
Petitioner’s

arguments

that

his

counsel

rendered

ineffective assistance by failing to exclude the admission of
the interview transcript on other grounds – i.e., by moving to
compel production of the audiotape, and/or by failing to object
that the transcript was not authenticated or certified as a true
copy – are also unavailing.

Initially, the record reflects that

defense counsel made the trial court aware that the audiotape
was not available – thus, it would have made little sense to
move to compel it – and argued that, in its absence, “there is
no real test of the validity or the v[e]racity of the contents
of that statement.”
argued

that

credence

to

there
the

(ECF No. 13, Ex. 5, at 5).
was

“insufficient

introduction

of

indicia

this

.

.

electronic

He further
.

to

give

statement”

because it was not signed or otherwise adopted by the witness.

8

Crawford v. Washington, 541 U.S. 36 (2004), another case
cited by Petitioner, is not to the contrary.
In Crawford, 541
U.S. at 68, the Supreme Court held that the admission of
“testimonial” hearsay violates the Confrontation Clause where
the declarant is unavailable and the defendant had no “prior
opportunity for cross-examination.”
Where, as here, the
declarant (i.e., Kelly) is available for cross-examination, the
concerns addressed in Crawford are not implicated.
24

(Id. at 8; see also id. at 13 (“there is nothing that would
reflect whether or not it was the declarant’s intention to adopt
that statement, and there’s no way to test it at this point”)).
Moreover,

Petitioner’s

statement
under

did

Md.

not

trial

qualify

Rule

as

5-802.1(a)

counsel
a

prior

and

maintained

that

inconsistent

Nance,

and

the

statement

attempted

to

distinguish the case law cited by the prosecutor in support of
his argument to the contrary.
Over defense counsel’s objections, the trial court found
there was sufficient indicia that the transcript of Lieutenant
Mapp’s interview of Kelly was reliable, noting the officer’s
testimony that he reviewed the tape and transcript shortly after
it was made and his affirmation that the transcript admitted
into

evidence

was

a

true

and

accurate

transpired during the interview.

reflection

of

what

While Kelly later testified

that the interview was not recorded and that the transcript was
inaccurate, she acknowledged that the interview took place and,
implicitly,

that

trial testimony.

the

transcript

conflicted

with

her

initial

Thus, there was a basis for finding that she

gave a prior inconsistent statement and that the statement was
electronically recorded.
was

not

court

available
credited

authenticity

and

to

While it is true that the recording

authenticate

the

Lieutenant

Mapp’s

found

the

that

25

transcript,

testimony

out-of

court

as

the

trial

to

statement

its
was

admissible pursuant to Md. Rule 5-802.1(a).

Moreover, the Court

of Special Appeals considered this issue on appeal and affirmed
the trial court’s ruling.
This court is not permitted to second-guess a trial court’s
evidentiary ruling on

habeas corpus

review.

See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a
federal habeas court to reexamine state-court determinations on
state-law

questions”;

rather,

the

court

concerns

itself

only

with “deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”); Lewis v. Jeffers, 497
U.S. 764, 780 (1990) (“[f]ederal habeas corpus relief does not
lie for errors of state law.”); Sharpe v. Bell, 593 F.3d 372,
383 (4th Cir. 2010) (“It is beyond the mandate of federal habeas
courts . . . to correct the interpretation by state courts of a
state’s
regarding

own

laws.”).

the

admission

The

sole

of

Kelly’s

question

before

out-of-court

the

court

statement

is

whether Petitioner received the effective assistance of trial
counsel, as required by the Sixth Amendment.

The instant record

reflects that Petitioner’s counsel did raise the arguments that
Petitioner now contends he did not, and the fact that those
arguments were ultimately unsuccessful is of no real consequence
at this stage.

Accordingly, there is no basis for disturbing

26

the state postconviction court’s finding that Petitioner’s trial
counsel did not render constitutionally ineffective assistance.9
B.

Prosecutorial Misconduct

Petitioner

also

takes

prosecutor at his trial.

issue

with

the

conduct

of

the

Specifically, he argues that “the

prosecutor testified without being subject to cross-examination”
in the following ways:
(1) The prosecutor asked questions which
implie[d] a factual predicate which he
kn[ew] he [could not] support by evidence,
when he asked Ms. Kelly [if she was] scared
of
the
Petitioner,
(2)
The
prosecutor
expressed his personal belief as to [the]
falsity of Kelly’s trial testimony, and
intentionally argued on the basi[s] of facts
outside the record, when he argue[d] [during
his summation] that Kelly [was] testifying
differently at trial compared to her prior
statement[s] to the police because she [was]
scared of the Petitioner, [and] (3) The
prosecutor
intentionally
misstated
the
evidence and misled the jury as to the
inferences it may draw, when he argued that
the petitioner was the only one outside
9

Because the court finds that the performance of
Petitioner’s trial counsel was not deficient – that is, that
Petitioner cannot satisfy the first prong of Strickland – it
does not reach the question of whether Petitioner was prejudiced
as a result of any such deficiency. It bears mention, however,
that even if some error that allowed the admission of Kelly’s
out-of-court statement had been found, the jury was still
presented with the witness’s prior testimony, which Petitioner
appears to concede was properly admitted.
While the out-ofcourt statement may have provided more detail, its substance was
essentially the same as the prior testimony – i.e., both
statements reflect that Kelly saw Petitioner shoot Jackson.
Thus, it would be unlikely that Petitioner could establish a
Sixth Amendment violation because he could not show sufficient
prejudice stemming from admission of the out-of-court statement.
27

before the victim was shot, and that Kelly
made a mistake with the color of the car
leaving the scene after the shooting.
(ECF No. 1-1, at 39).10

Respondents contend that Petitioner’s

claim in this regard is procedurally defaulted.
Where a petitioner has failed to present a claim to the
highest state court with jurisdiction to hear it – whether by
failing to raise the claim in postconviction proceedings or on
direct 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

Mottram,

409

to

U.S.

raise
41,

46

claim
(1972)

on

direct

(failure

appeal);

Murch

v.

to

claim

at

raise

postconviction); Bradley v. Davis, 551 F.Supp. 479, 481 (D.Md.
1982) (failure to seek leave to appeal denial of postconviction
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
10

Petitioner further argues that the prosecutor’s conduct
in this regard was in violation of various ethical rules.
28

his federal habeas claim.
See Coleman [501
U.S. at 731-32].
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,

conviction of one who is actually innocent.
U.S. at 495-96; Breard, 134 F.3d at 620.11

i.e.,

the

See Murray, 477

“Cause” consists of

“some objective factor external to the defense [that] impeded
counsel’s

efforts

appropriate time.”

to

raise

the

claim

in

state

court

at

the

Breard, 134 F.3d at 620 (quoting Murray, 477

11

Habeas petitioners may use an actual innocence claim to
excuse the procedural default of a separate constitutional claim
upon which they request habeas relief. See Murray, 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.
th
True, 349 F.3d 788, 806 (4 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. See
Buckner v. Polk, 453 F.3d 195, 199-200 (4th Cir. 2006).
29

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).
On direct appeal, Petitioner faulted the prosecutor for his
questioning of Ms. Kelly.

Specifically, he argued:

[T]he State asked Kelly whether she was,
“Scared of the defendant?”
The witness
answered, “No.
I’m just scared period.”
(T. 6/13/03 at 167).
After Kelly was
recalled by the State the following day, she
was again asked by the prosecutor, “Are you
scared of the defendant?”
Kelly replied,
“No, I’m not scared of nobody.” (T. 6/14/06
at 49).
Such questioning was tantamount to
the prosecutor testifying without being
subject to cross-examination by the defense,
in violation of Appellant’s confrontation
and cross-examination rights under the Sixth
Amendment.
(ECF No. 13, Ex. 8, at 32).

Finding that “[d]efense counsel

objected the first time that the question was asked, but not the
second time,” the Court of Special Appeals determined that “the
issue was not preserved” for its review.
at 26-27).

(ECF No. 13, Ex. 10,

In his petition for a writ of certiorari, Petitioner

asked the Court of Appeals to review whether the intermediate
appellate

court

“err[ed]

by

not

misconduct issue as plain error.”

30

reviewing

the

prosecutorial

(ECF No. 13, Ex. 11, at 2).

Before
numerous,

the

state

lengthy

postconviction

motion

papers.

court,
At

Petitioner

the

outset

filed

of

the

postconviction hearing, the court sought to identify all of the
issues

pending

before

it.

With

respect

to

the

issue

of

prosecutorial misconduct, the following exchange ensued:
THE COURT: The eighth ground is that
Trial Counsel failed to object to the
Prosecutor’s
improper
questions
and
arguments? Is that it?
[PETITIONER]:
No,
everything, Your Honor.

that’s

not

Failed
to
object
to
the
improper
argument
and
questions
because
the
Prosecutor stated that Ms. Kelly was afraid.
There was no evidence on the record
that either me or anybody threatened her or
did anything to make her afraid.
[THE COURT]: He didn’t object?
[PETITIONER]: Right, [the prosecutor
was] arguing stuff that [was] not [i]n the
record.
(ECF

No.

13,

Ex.

16,

at

7).

At

the

conclusion

of

the

preliminary identification of issues to be addressed, the court
inquired as to whether it had identified all of Petitioner’s
issues:
THE COURT: Is there something that I
missed that you can refer me to in your
supplement?
[PETITIONER]: Prosecutorial
was also raised on plain error.

31

misconduct

THE COURT: That is what you are saying.
[Is there] [s]omething in your supplement to
the Petition that I left out?
[PETITIONER]: Yes, you didn’t say the
prosecutorial misconduct.
THE COURT: So, that’s it?
[PETITIONER]:
That’s
it,
confrontation clause violation.

and

the

THE COURT: Are there any scenarios,
factual scenarios[,] that you are referring
to in support of what you are saying?
[PETITIONER]: Same grounds, Your Honor.
THE COURT: All the stuff I just said?
That’s what I’m trying to get at.
[PETITIONER]: Sorry, Your Honor.
THE
COURT:
Anything
different,
factually different that you are complaining
of?
[PETITIONER]: No, Ma’am.
(Id. at 10-11).

As noted, the postconviction court addressed

Petitioner’s claims and found no objectionable conduct on the
part

of

the

prosecutor,

thereby

rejecting

Petitioner’s

claim

that his counsel rendered ineffective assistance by failing to
object.

(ECF No. 13, Ex. 16, at 118-19).

Thus,
prosecutor’s

Petitioner

argued

improper

prosecutorial misconduct.

on

questioning

direct
of

appeal
Kelly

that

amounted

the
to

Before the postconviction court, he

claimed that his trial counsel rendered ineffective assistance

32

for failing to object to remarks made by the prosecutor during
closing arguments.

The argument he now raises – i.e., that the

prosecutor committed misconduct in both his questioning of Kelly
and in making certain comments during his closing argument –
consists partially of the question he raised in the appellate
court (regarding the questioning of Kelly) and partially of a
question not directly presented to any state court (comments
during

closing

regarding

by

The

questioning

the

defaulted

argument).

of

virtue

of

the

aspect
Kelly

of
has

intermediate

finding that it was unpreserved.

Petitioner’s
been

claim

procedurally

appellate

court’s

See Wainwright v. Sykes, 433

U.S. 72, 86-87 (1977) (the “failure to timely object . . .
amount[s] to an independent and adequate state procedural ground
which . . . prevented [habeas] review”).

Moreover, Petitioner’s

argument

–

in

the

postconviction

court

i.e.,

ineffective

assistance for failing to object during closing arguments – is
not

the

same

as

the

one

he

now

raises

–

i.e.,

that

the

prosecutor’s misconduct in closing violated his constitutional
rights.

Thus,

this

claim

is

unexhausted,

see

Joseph

v.

Angelone, 184 F.3d 320, 328 (4th Cir. 1999) (“In order to avoid
procedural default [of a claim], the substance of [the] claim
must have been fairly presented in state court”), and, if he has
any means of doing so, Petitioner is required to return to state
court to raise it, see Rose v. Lundy, 455 U.S. 509, 515 (1982)
33

(“federal courts should not consider a claim in a habeas corpus
petition until after the state courts have had an opportunity to
act”).

Nevertheless, where, as here, a petitioner would be

precluded from returning to state court and raising the claim,
he has procedurally bypassed the opportunity for relief and a
federal

habeas

court

is

barred

from

considering

absent a showing of cause and actual prejudice.
F.3d at 619.

the

claim,

See Breard, 134

“In such an instance, the exhaustion requirement

is ‘technically met’ and the rules of procedural bar apply.”
Whitt v. McCall, Civ. No. 3:09-998-CMC-JRM, 2010 WL 1027626, at
*5 (D.S.C. Feb. 22, 2010) (quoting Matthews v. Evatt, 105 F.3d
907 (4th Cir. 1997)); see also Coleman, 501 U.S. at 735 n. 1;
Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone,
100 F.3d 353, 363 (4th Cir. 1996)).
Having

determined

that

Petitioner’s

prosecutorial

misconduct claim is procedurally defaulted, Petitioner must show
cause for his failure to raise the claim in state court and
actual

prejudice

resulting
justice

therefrom,

will

result

or

that

if

the

a

fundamental

miscarriage

of

claim

is

not

addressed.

See Murray, 477 U.S. at 486 (“the mere fact that

counsel failed to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it, does
not constitute cause for a procedural default”).

34

Petitioner has

not made the requisite showing, nor could he under the facts of
this case.
It is unquestionably true that “[a] fair trial in a fair
tribunal

is

a

basic

requirement

of

Murchison, 349 U.S. 133, 136 (1955).

due

process.”

In

re

Likewise, it is axiomatic

that prosecutors are held to a high standard of fairness.

A

prosecuting attorney “is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be
done.”
order

Berger v. United States, 295 U.S. 78, 88 (1935).
to

establish

prejudicial

misconduct,

the

In

alleged

misconduct must have “so infected the trial with unfairness as
to

make

the

resulting

conviction

a

denial

of

due

process.”

Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also United
States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010).

In order to

prevail on a claim of prosecutorial misconduct, a petitioner
“must show (1) ‘that the prosecutor’s remarks or conduct were
improper’ and (2) ‘that such remarks or conduct prejudicially
affected his substantial rights so as to deprive him of a fair
trial.’”

Caro, 597 F.3d at 624-25 (quoting United States v.

Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)).

35

Petitioner’s

primary

contention

is

that

the

prosecutor

inappropriately argued during his summation that, despite her
assertions to the contrary, Kelly was afraid of Petitioner and
this was the reason for her inconsistent testimony.
state

postconviction

entitled,

during

his

court

explained,

closing

argument,

the
to

As the

prosecutor
highlight

was

factual

inconsistencies and suggest inferences that the jury could draw.
Consistent with that function, the prosecutor acknowledged that
Kelly

denied

being

suggested otherwise.

afraid,

but

argued

that

her

demeanor

The postconviction court found that this

characterization of the evidence was permissible because “the
[j]ury determines the facts, and [it] can draw inferences from
the facts.”

(ECF No. 13, Ex. 16, at 118).

The court further

determined that there was nothing inherently objectionable about
the prosecutor asking Kelly if she was afraid, particularly in
light of her inconsistent statement to police and her testimony
at

a

prior

trial.

Moreover,

the

court

explained

that

the

prosecutor was entitled to argue that Kelly erroneously believed
that the car she saw leaving the scene was white when, in fact,
it was gold in color, and that he did not misstate the evidence
when he argued that Petitioner was alone with Jackson on the
front porch at the time of the shooting.
In

sum,

the

analysis

of

the

postconviction

court

makes

clear that Petitioner’s claim does not warrant a waiver of the
36

procedural

default

doctrine.

Accordingly,

the

merits

of

Petitioner’s prosecutorial misconduct claim will not be reached.
C.

Sufficiency of the Evidence

Petitioner

further

contends

that

the

only

evidence

supporting his conviction was the “unsworn prior inconsistent
statement

allegedly

made

by

Kelly

to

the

police,”

which

he

characterizes as “the only testimony that stated that Yvonne
Kelly saw [him] shoot the victim.”

(ECF No. 1, at 44).

While

he acknowledges that this claim was raised on direct appeal, he
asserts that the Court of Special Appeals did not address it on
the

merits.

admissibility
addressed

To

the

extent

of

Kelly’s

herein.

that

this

out-of-court

Insofar

as

the

claim

focuses

statement,

it

claim

on

the

has

been

challenges

the

sufficiency of the evidence, it was addressed on the merits by
the appellate court.
In

considering

a

challenge

to

the

sufficiency

of

the

evidence on federal habeas corpus review, the relevant question
is whether, after viewing the evidence in a light most favorable
to the prosecution, a rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).

See

The court must

consider both circumstantial and direct evidence and allow the
government the benefit of all reasonable inferences from the
evidence adduced at trial.

See United States v. Tresvant, 677
37

F.2d

1018,

1021

(4th

Cir.

1982).

More

importantly,

in

the

context of this case, the determination of the credibility of
each witness lies within the sole province of the jury and is
not subject to review.

See United States v. Saunders, 886 F.2d

56, 60 (4th Cir. 1989); Pigford v. United States, 518 F.2d 831,
836 (4th Cir. 1975).
In considering Petitioner’s appeal, the Court of Special
Appeals applied a similar standard when it observed that it was
not the role of the appellate court to re-weigh the evidence.
It noted that the only concern was whether there was sufficient
evidence to show – directly, circumstantially, or by rational
inference – that Petitioner was guilty of the offenses charged
beyond a reasonable doubt.

The appellate court determined that

the evidence adduced at trial satisfied this standard: “Even if
the jury rejected Kelly’s earlier statements, her testimony on
the

witness

stand

circumstantially
appellant

was

find

was
all

sufficient
elements

convicted.”

(ECF

for

the

of

the

crimes

No.

13,

Ex.

10,

jury
for

to
which

at

25).

Specifically, her testimony established that Petitioner kept one
hand in his jacket pocket at all times while he was inside the
apartment; that Petitioner and Jackson were talking alone on the
front

porch

just

before

the

shooting;

and

that,

after

the

shooting, she saw Jackson lying on the ground and no one else
present.

Thus, the Court of Special Appeals explained, it was
38

reasonable for the jury to infer that Petitioner had a gun and
shot

the

victim.

unassailable.

The

reasoning

of

the

appellate

court

is

The evidence supporting Petitioner’s conviction

was constitutionally sufficient.
D.

Personal Waiver of the Right to Testify

Petitioner’s claim that the trial court erred when it did
not obtain a personal waiver from him regarding his right to
testify or remain silent was also addressed by the Court of
Special Appeals.
Petitioner’s

The intermediate appellate court observed that

reliance

on

Tilghman

v.

State,

117

Md.App.

542

(1997), as requiring the trial court to question the defendant
in

person

regarding

a

waiver

of

the

right

to

testify,

was

misplaced.

The court explained that Tilghman addresses a self-

represented

defendant’s

requires

that

court

waiver

of

advise

the

to

the

right

to

testify

and

defendant

of

his

her

or

constitutional right to testify under those circumstances.

A

trial court does not have the same obligation when the defendant
is represented by counsel, however, because it is reasonable to
infer
The

that

attorneys

appellate

court

have

explained

concluded

that,

those
at

rights

adequately.

Petitioner’s

trial,

counsel informed the court that he advised Petitioner of his
right to testify and that Petitioner waived that right.
No. 13, Ex. 10, at 15-16).

39

(ECF

For purposes of federal habeas corpus relief, Petitioner’s
claim that an independent waiver colloquy was required in order
for

his

waiver

relief.

The

to

be

United

effective

States

does

Court

of

not

state

Appeals

a

for

claim
the

for

Fourth

Circuit has observed that “this court and the majority of our
sister circuits have clearly held that ‘[t]o waive the right [to
testify], all the defendant needs to know is that a right to
testify

exists,’

and

the

[trial]

court

need

defendant of the right nor obtain a waiver.”

not

advise

the

United States v.

Sharp, 400 Fed.Appx. 741, 749 (4th Cir. 2010) (quoting United
States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991)); see also
Sexton v. French, 163 F.3d 874, 882 (4th

Cir. 1998) (“trial

counsel,

responsibility

not

the

court,

has

the

primary

for

advising the defendant of his right to testify”; thus, “the
burden of ensuring that a criminal defendant is informed of the
nature and existence of the right to testify rests upon trial
counsel”).

Accordingly, Petitioner’s claim regarding personal

waiver of the right to testify does not present a basis for
habeas corpus relief.
E.

Unreasonable Determination of Facts

Petitioner further asserts, as an alternative ground for
relief, that the state postconviction court’s conclusion that
there

were

relief

was

no

meritorious

erroneous

grounds

because

it
40

warranting

failed

to

postconviction

account

for

“the

multitude of evidence presented to the [s]tate court” in his
postconviction application.
in

this

regard

is

(ECF No. 1-1, at 49-50).

belied

by

the

His claim

postconviction

hearing

transcript, which clearly reflects that the state court went to
great lengths to ensure that all claims raised by Petitioner in
numerous

postconviction

submissions

were

considered.

In

rendering its oral decision at the conclusion of the hearing,
the court addressed each of Petitioner’s claims and explained,
in detail, why relief could not be granted.
for

a

finding

that

this

decision

was

There is no basis
unreasonable,

and

Petitioner’s claim to the contrary is without merit.
IV.

Conclusion
For the foregoing reasons, Petitioner’s application for a

writ of habeas corpus will be denied.

The court is further

required to consider whether the issuance of a certificate of
appealability is warranted.

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).

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.
41

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 will not issue.

See 28 U.S.C. §

2253(c)(2).
A separate order will follow.

________/s/_________________
DEBORAH K. CHASANOW
United States District Judge

42