Shultz v. Morgan et al
Filing
18
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/3/14. (jf2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RANDY T. SHULTZ, # 324-839
*
Petitioner
*
v
*
PHILIP MORGAN, Warden, et al.1
Civil Action No. DKC-11-3652
*
Respondents
*
***
MEMORANDUM OPINION
Pending is Randy T. Shultz’s (“Shultz”) petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Respondents, by their counsel, have filed a response with exhibits
(Resp. ECF No. 13), to which Shultz, who is self-represented, has replied. (Reply, ECF No. 16).
After considering the pleadings, exhibits, and applicable law, the court determines a hearing is
unnecessary. See Local Rule 105.6 (D. Md. 2011); Rule 8, “Rules Governing Section 2254
Proceedings in the United States District Courts”; see also Fisher v.. Lee, 215 F.3d 438, 455 (4th
Cir. 2000) (stating there is no entitlement to a hearing under 28 U.S.C. § 2254(e)(2)).
BACKGROUND
Shultz is challenging his convictions in 2004 for armed robbery, attempted theft, and two
handgun offenses after a jury trial in the Circuit Court for Prince George’s County. (Resp. ECF
No. 13, Ex. 4 at 5-9). On December 9, 2004, the Circuit Court sentenced him to serve 55 years
of incarceration. (Ex. 5 at 11-12).2 The facts adduced at trial were summarized by the Court of
Special Appeals of Maryland as follows:
1
Philip Morgan was Warden of Western Correctional Institution where Schultz was incarcerated at the time the
Petition was filed. Richard J. Graham, Jr. is presently Warden of the Western Correctional Institution.
2
All exhibits cited were filed by Respondents unless otherwise specified.
The State presented evidence that, in August 2001, appellant robbed four
teenagers in Suitland, Maryland. Three of the four victims testified for the State:
Robin Yates, her cousin Nikkia Lewis, and their friend Alexander McLeod.
Appellant’s defense was misidentification.1 The evidence, viewed in the light
most favorable to the State, established the following events.
At 3:00 in the morning in question, Yates and Lewis were standing behind
a blue Honda outside of their apartment complex talking to McLeod and Fred
Cooper, another friend. Yates noticed a man, later identified as appellant, park a
yellow Volvo near them, get out of the car, and walk around a building. The next
thing she knew, Yates looked up and saw appellant pointing a black handgun at
her and McLeod with a bandanna wrapped around his hand. Yates was about six
feet away from appellant; McLeod was about one foot away from appellant,
standing between appellant and Yates.
Appellant told Lewis and Cooper to walk toward the back of the car where
Yates and McLeod were standing. All victims put their hands in the air, either by
instruction or automatically. Appellant quickly told them to put their hands down
because it looked like they were signaling the police; they complied. Appellant
instructed them to give him their money. Lewis and Cooper handed him some
money; Yates and McLeod did not. Lewis gave him a ten-dollar bill, a five-dollar
bill, and three one-dollar bills.
Appellant then asked Cooper for his watch. When Cooper protested,
appellant hit Cooper on the head with the gun. At that time, Yates, Lewis, and
Cooper ran, leaving McLeod behind. Yates and Lewis ran to their apartment
where Lewis’s mother called the police. A police officer arrived a few minutes
later.
When the other three teenagers fled, McLeod backed away from appellant,
who had his gun pointed at McLeod. McLeod eventually turned, walked about
forty feet away, and hid behind a car. From that position, McLeod watched
appellant get into and out of the blue Honda and then walk toward an apartment
building. He then observed appellant return to the car and sit inside. A police car,
apparently driven by Sergeant Dave Hayes, subsequently passed appellant, after
which appellant got out of the car and ran.
By then, Cooper had rejoined McLeod. The two teenagers saw another
police car coming toward them. Corporal Michael Ober of the Prince George’s
County Police Department was driving that car. He stopped and told the two
teenagers to get inside. They told the corporal what had happened and that
another police car had just driven past appellant. The corporal notified Sergeant
Hayes over the radio that he had just driven past the robber.
Sergeant Hayes turned his car around and drove back in the direction from
which he came. As the sergeant approached appellant, appellant started walking
2
and then running away from him. The sergeant saw appellant run into and out of
the apartment building on Silver Park Drive. Meanwhile, Corporal Ober had
returned to where McLeod and Cooper had spotted appellant, and he directed
them to point out appellant if they saw him. McLeod spotted appellant and told
the officer, “That’s him.”
Once McLeod and Cooper positively identified appellant as the robber, he
was arrested. From appellant’s front pocket the police recovered two ten-dollar
bills, three five-dollar bills, and four one-dollar bills. The police also recovered a
neatly folded $100.00 bill inside appellant’s cell phone case.
The blue Honda was processed for fingerprints, and although two
fingerprints were recovered, neither matched appellant’s. The police discovered
that the car was stolen. A K-9 unit, which was brought to the area, discovered a
gray bandanna wrapped around a black handgun next to the same apartment
building that Sergeant Hayes had seen appellant run into and out of. The gun was
loaded with a bullet in the chamber.
The four teenagers were taken to a police station where they each gave
written statements and described the robber.2 Yates, Lewis, and McLeod
identified appellant in court as the robber. They described the robber and the gun
in a similar fashion, and they testified that they had no doubt in their mind that
appellant was the robber. The three teenagers also identified a picture of the gun
and the bandanna as that used in the robbery.
_________________
1
Appellant testified that he did not commit the robberies and that he was present
in the vicinity to purchase marijuana. Appellant’s girlfriend corroborated
appellant’s explanation on the stand for why he was present near the crime scene.
Appellant’s cell-mate, Derrick Waddy, testified that he, not appellant, committed
the robberies. Waddy admitted that he was incarcerated pending trial for two
armed robberies and that he had been convicted in 2002 for robbery and had a
probation violation pending for which he risked serving twenty years.
2
Each victim was placed in a different room at the police station and, while there,
each provided a written statement. Yates wrote that the robber was a light-skinned
black male, 5’7 or 5’8, 175 pounds, “wearing a black cap, light blue jeans, gray
“Old Navy” T-shirt, and white tennis shoes. Lewis wrote that the robber was a
light-skinned black male, 5’8-5’’10 tall, weighing 145 pounds, wearing a black
hat, gray Old Navy t-shirt, blue jeans, white shoes, and having a short haircut, a
“low cut beard,” and a moustache. McLeod wrote that the robber was a lightskinned black male with a short haircut, beard, and moustache wearing a gray
shirt with “[s]ome type of symbol” on it, blue jeans and white shoes, and he was
5’9” and weighed about 155 pounds.
Ex. 8 at 1-4.
3
PROCEDURAL HISTORY
Shultz, by his counsel, appealed his conviction to the Court of Special Appeals of
Maryland, presenting three questions for review: 1) Did the trial court err in failing to explain the
concept of reasonable doubt in its instructions to the jury; 2) Did the court err in failing to
provide an identification instruction; and 3) Did the trial court err in considering, for purposes of
sentencing, evidence of prior charges not resulting in convictions. (Ex. 6 at 2; see also Ex. 7-8).
Shultz’s convictions were affirmed by unreported opinion filed on August 7, 2006. (Ex.
8). Shultz filed a Petition for a Writ of Certiorari in the Court of Appeals of Maryland in which
he raised a single question: “Does the failure to explain the concept of reasonable doubt to a jury
constitute error which should be reviewed even in the absence of an objection at trial?” (Ex. 9.)
The Court of Appeals denied review on November 13, 2006. (Ex. 10).
On March 2, 2007, Shultz filed a Petition for Post-Conviction Relief in the Circuit Court
for Prince George’s County. On March 12, 2009, the court held a hearing on the Petition. (Ex.
14). The post-conviction court outlined Shultz’s claims as: A) ineffective assistance of trial
counsel for: 1) failing to obtain complete discovery or bring out at trial that he wanted to provide
a statement to the police, 2) failing to object to the State nol prossing counts, 3) failing to ensure
that bench conferences were confidential, 4) failing to object to the testimony of Fred Cooper, 5)
failing to object to the reasonable doubt instruction, 6) failing to request an instruction on
eyewitness identification, 7) failing to object to the sentencing court’s consideration of prior bad
acts, 8) failing to request a voir dire question regarding handgun crimes, 9) failing to utilize
peremptory challenges competently, 10) failing to advise him of his right to remain silent, 11)
failing to object to the instruction on direct and circumstantial evidence, 12) failing to object to
impeachment evidence, 13) failing to request a missing witness instruction, 14) failing to renew a
4
motion for acquittal at the close of the case, and 15) the cumulative effects of these errors; B)
ineffective assistance of appellate counsel for failing to raise on appeal claims: 1) that the police
refused to take his statement, 2) that the State improperly nol prossed counts, 3) that the court
failed to sequester witnesses, 4) challenging the denial of the judgment of acquittal, 5) that he
was not advised of his right to remain silent; 6) challenging the courts instructions on direct and
circumstantial and consideration of prior bad acts, and 7) challenging the court’s failure to
instruct eyewitness identification and missing witnesses; C) trial court error for 1) issuing a
defective reasonable doubt instruction, 2) denying him his right of confrontation, 3) failing to
sequester witnesses, 4) denying his motion for judgment of acquittal with respect to victim Fred
Cooper, 5) failing to advise on direct and circumstantial evidence, 6) failing to issue a missing
witness instruction, 7) mishandling his impeachment by way of prior convictions, 8) failing to
advise him of his right to remain silent, and 9) improperly instructing the jury on its
consideration of his prior convictions. (Ex. 14 at 11-25; see also Ex. 11-13 & 15). The two issues
argued by Shultz’s post-conviction counsel at the hearing were whether trial counsel rendered
ineffective assistance by failing to object to the reasonable doubt instruction and by failing to
request an eyewitness identification instruction. (Ex.14 at 29-36). By opinion and order filed on
January 4, 2010, the circuit court denied all allegations presented at the hearing. (Ex. 15).
Shultz sought leave to appeal the post-conviction court’s decision by alleging trial
counsel was ineffective for failing to 1) object to the incomplete reasonable doubt instruction, 2)
request an instruction on eyewitness identification, and 3) object to sentencing court’s
consideration of prior bad acts. (Exhibit 16).
The Court of Special Appeals of Maryland
summarily denied leave to appeal by unreported opinion filed on July 6, 2011. (Ex. 17).
5
PETITIONER’S CLAIMS
Shultz presents the following claims in this Petition: A) the trial court erred 1) by failing
to explain reasonable doubt to the jury, 2) by failing to issue an identification instruction, and 3)
by considering prior charges not resulting in a conviction in imposing its sentence; and B) trial
counsel was ineffective for 1) failing to object to the trial court’s reasonable doubt instruction,
and 2) failing to object to the absence of an identification instruction. (Petition, ECF No. 1 at 57). 3
PROCEDURAL DEFAULT
As a threshold matter, this Petition is reviewed subject to the doctrine of procedural
default which ensures “state courts have had the first opportunity to hear the claim sought to be
vindicated in a federal habeas proceeding.” Picard v. Connor, 404 U.S. 270, 276; see also 28
U.S.C. § 2254(b)(1)(A) (requiring exhaustion of remedies available in state court). 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. 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, 46–47 (1972) (failure to raise claim during post-conviction); Bradley v. Davis, 551 F. Supp.
479, 482 (D. Md. 1982) (failure to seek leave to appeal denial of post-conviction relief). When a
3
Schultz also requests DNA testing of the handgun and bandana. (Petition, ECF No. 1 at 6, ¶ D) To the extent he
is requesting discovery, the request shall be denied as good cause has not been demonstrated. Habeas petitioners
are not entitled to discovery as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule
6(a) of the “Rules Governing Section 2254 Cases in the United District Courts” provides that discovery may be
permitted in a habeas proceeding upon a showing of “good cause.” If this request were considered a claim for
habeas relief, it has not been raised before the state courts and is dismissible for lack of exhaustion as is required
under 28 U.S.C. § 2254(b)-(c); see also O'Sullivan v. Boerckel, 526 U.S. 838, 846 (1999) (explaining the purpose of
exhaustion is to give “state courts a full and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts”).
6
claim is procedurally defaulted, 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. See Schlup v. Delo, 513 U.S. 298, 314 (1995); Murray, 477 U.S. at 495–96;
Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998). “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.” Breard, 134 F.3d at 620 (quoting Murray, 477 U.S. at 488) (internal quotation
marks omitted). Shultz sets forth no allegations of fact to excuse procedural default by showing
cause and prejudice. Although he asserts that he is actually innocent, he points only to the trial
testimony of Mr. Waddy and his request for DNA testing. Neither is sufficient to demonstrate
actual innocence. (Pet. Reply ECF No. 16).
STANDARD OF REVIEW
Shultz’s claims will be analyzed under the statutory framework of the federal habeas
statute at 28 U.S.C. § 2254 which sets forth a “highly deferential standard for evaluating statecourt rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997); see also Bell v. Cone, 543 U.S.
447, 455 (2005). The standard is “difficult to meet,” and requires courts to give state-court
decisions the benefit of the doubt. Cullen v. Pinholster, __U.S. __, __, 131 S.Ct. 1388, 1398
(2011) (internal quotation marks and citations omitted); see also White v Woodall,
U.S.__,
134 S. Ct 1697, 1699 (2004), quoting Harrington v. Richter, __U.S. __, __, 131 S. Ct. 770, 78687 (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 fairminded disagreement.”).
7
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 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, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[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, (2010) (quoting Williams, 529 U.S. at 411). “Rather,
that application must be objectively unreasonable.” Id. Thus, “an unreasonable application of
federal law is different from an incorrect application of federal law.” Harrington, 131 S.Ct. at
785 (internal quotation marks and citation omitted).
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
8
state court decision was based on an unreasonable determination of the facts. Id. (internal
quotation marks and citation omitted).
The habeas 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.” 28 U.S.C. § 2254(e)(1). “Where
the state court conducted an evidentiary hearing and 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 ‘factual determinations' for
purposes of Section 2254(e)(1).” Id. at 379 (quoting 28 U .S.C. § 2254(e)(1)). Shultz’s claims
will be analyzed under these standards.
DISCUSSION
I.
CLAIMS OF TRIAL COURT ERROR
A.
REASONABLE DOUBT INSTRUCTION
Shultz’s first claim is that the trial court failed to “explain the concept of ‘reasonable
doubt’ in its instructions to the jury” because the instructions did not include the third paragraph
of the Maryland Pattern Jury Instructions. (Petition, ECF No. 1, at 5; see also Trial Trans. ECF
No. 3 at 155-56).4 This claim does not allege a violation of federal law or a constitutional right;
4
The trial court’s reasonable doubt instruction was virtually identical to the first and second paragraphs of the
Maryland Criminal Pattern Jury Instructions, MPJI-CR 2:02, at 18 (1995) and was presented to the jury as follows:
The Defendant is presumed to be innocent of the charges, and this presumption remains with
the Defendant throughout every stage of the trial. It’s not overcome unless you are convinced,
beyond a reasonable doubt, that the Defendant is guilty. The State has the burden of proving the
guilt of the Defendant beyond a reasonable doubt. This burden remains on the State throughout
the trial.
9
thus, it does not state a cognizable claim for federal habeas review. See Estelle v. McGuire, 502
U.S. 62, 67–68 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) (“it is not the
province of a federal habeas corpus court to reexamine state court determinations on state law
questions.”); see also Wilson v. Corcoran, 131 U.S. 13, 16 (2011) (per curiam) (stating federal
courts may not issue writs of habeas corpus to state prisoners whose confinement does not
violate federal law); 28 U.S.C. § 2254(a) (authorizing a federal court to entertain a state
prisoner's habeas petition “only on the ground that [s]he is in custody in violation of the
Constitution or laws or treaties of the United States”).
In Estelle v. McGuire, 502 U.S. at 71-72, the Supreme Court specifically ruled that the
correctness of state pattern jury instructions does not present a federal question. A violation of
state law which does not infringe upon a specific constitutional right is not cognizable on federal
habeas review unless it amounts to “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)).
Shultz argued on direct appeal that the trial court’s reasonable doubt instruction
constituted reversible error. (Ex. 6 at 14-15.). Declining to notice plain error by exercising its
The Defendant is not required to prove his innocence; however, the State is not required to
prove guilt beyond all possible doubt nor are they required to prove it to a mathematical certainty.
The State is not required to negate every conceivable circumstance of innocence.
(Trial Trans. Ex. 3 at 155-56). The third paragraph of the pattern jury instructions was not read to the jury.
It reads:
A reasonable doubt is a doubt founded upon reason. It is not a fanciful doubt, a whimsical
doubt or a capricious doubt. Proof beyond a reasonable doubt requires such proof as would
convince you of the truth of a fact to the extent that you would be willing to act upon such belief
without reservation in an important matter in your own business or personal affairs. However, if
you are not satisfied of the defendant’s guilt to that extent, then reasonable doubt exists and the
defendant must be found not guilty.
(Ex. 6 at 14-15, citing MPJI-Cr. 2:02; see also Ex. 7 at 4-5).
10
discretion5 to overlook the failure to object to the instruction at trial, the Court of Special
Appeals stated:
Appellant challenges the court’s reasonable doubt instruction. He has no
quarrel with the court’s instruction to the jury on the concept of reasonable doubt;
he attacks instead the court’s failure to define what that concept means. He points
out that the instruction that was given virtually mirrors the first two paragraphs of
the three paragraph instruction set forth in the Maryland Pattern Jury InstructionsCriminal (MJPI-CR”). See MPJI-CR 2:02. He cries foul because the instruction
given did not include the third paragraph of the pattern jury instruction. [Footnote
omitted]
There are several reasons why we decline to excuse appellant’s failure to
object to the reasonable doubt instruction or to request a more complete
instruction. First, the instruction that was given is not incorrect, as far as it goes.
Second, absent a request (and none was made in this case), the trial court
was not required to define reasonable doubt for the jury. See Wills v. State, 329
Md. 370, 382, 384 (1993) (holding that an instruction properly defining
“reasonable doubt’ is required if requested); Lansdown v State, 287 Md. 232, 243
(1980) (same). Consequently, we cannot say that the error complained of is, in
fact, error at all, much less error that is egregious. [Emphasis in original].
(Ex. 8 at 6-7).
The Court of Special Appeals distinguished Schultz’s case from those relied on in his
brief. Those cases, unlike Schultz’s, involved instructions that misled or confused the jury or
lowered the burden of proof. See id. at 7. Thus, as a third reason for declining to recognize plain
error, the court stated there was “nothing” to suggest that Shultz “was deprived of a fair trial. Id.
at 8. Lastly, the court reasoned that no good explanation had been provided for defense counsel’s
failure to object to the instruction. (Ex. 8 at 8-9).
In light of the above, even were this claim cognizable as presented, which it is not, it does
not provide grounds for habeas corpus relief under 28 U.S.C. § 2254(d).
5
The instruction
Maryland Rule 4-325(e) provides that “[n]o party may assign as error the giving or the failure to give an
instruction unless the party objects on the record promptly after the court instructs the jury….. An appellate court, on
its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions,
material to the rights of the defendant, despite a failure to object.” (ECF No. 8 at 5).
11
correctly informed the jury that Shultz was presumed to be innocent throughout every stage of
the trial, the presumption was not overcome unless the State carried its burden of convincing
them beyond a reasonable doubt of his guilt, and Shultz was not required to prove his innocence.
(Ex 3 at 155-56; Ex 8 at 6-9).
B.
IDENTIFICATION INSTRUCTION
Shultz’s next claim is that the trial court committed error by failing to instruct the jury on
eyewitness identification. (Petition, ECF No. 1 at 5). On direct review, the Court of Special
Appeals declined to review this issue for plain error, noting that “the Court of Appeals has made
clear that such an instruction is committed to the exercise of the court’s discretion, even when the
instruction is requested.” (citing Gunning v. State, 347 Md. 332, 350 (1997) (emphasis in
original). (Ex. 6 and 8). The Court of Special Appeals added that it could not discern why lack
of an identification instruction constituted plain error if not requested at trial. (Ex 8 at 10).
Shultz did not request review of this decision by petitioning for a Writ of Certiorari in the Court
of Appeals of Maryland. (Ex. 9).
Shultz does not identify what federal constitutional right or provision has allegedly been
violated, and therefore fails to state a cognizable claim on federal habeas corpus review. See
supra at 9-10. Consequently, this claim will be dismissed.
Assuming arguendo the claim were cognizable, it would be dismissed as procedurally
defaulted because Shultz did not raise this claim before all appropriate state courts and does not
show cause and prejudice or actual innocence. See supra at 6-7.
C.
CONSIDERATION OF A PRIOR CHARGE
Shultz posits the sentencing court impermissibly considered a prior charge against him
which had not resulted in conviction. (Petition, ECF No. 1 at 6). On direct appeal, the Court of
12
Special Appeals found the claim unpreserved for appellate review and meritless. Shultz did not
pursue this claim in his Petition for Writ of Certiorari (Ex. 9). Accordingly, the claim is
procedurally barred and will be dismissed.
In any event, the claim provides no grounds for habeas relief. Before imposing sentence,
the trial court stated:
THE COURT: I have read the presentence investigation. I have read the
recommendations, but I found most compelling—at 35, your prior
involvement, first one page, then the next page, then the next page, then the
next page. Found it very interesting that in your motor vehicle violations
Judge Femia gave you a PBJ [probation before judgment] after all the
attempted murder and the robberies. I just found that interesting. I don’t
think that has anything to do with it. You all obviously are able to talk him
into doing that. I read your health concerns and they are there.
Defense counsel then indicated that in an unrelated case, Shultz had been acquitted of murder.
The sentencing court immediately responded that was “[n]ot a fact [it] considered at all.” The
court acted to assure defense counsel that no charges against Shultz that resulted in acquittals
were considered in imposing sentence.
THE COURT: All right. But when you look at the total history of the
involvements, the guilty findings, the nature of the guilty findings, escape,
violations of probation, shotgun charges, then consider those are guilty those
are the guilties. Then, considering he had just been released from prison
before, just before this happened, I mean matter of days almost, I conclude
that the gentleman is, in fact, a danger to the community.
(Ex. 8 at 11-14; see also Ex. 5 at 8-10).
Maryland’s intermediate appellate court observed that an attack upon the court’s
sentencing considerations requires an objection at the time of sentencing, and none was raised in
this case. (Ex. 8 at 13). “To the contrary, the colloquy we quoted above suggests that any
concern that appellant might have had about the court’s consideration of charges not resulting in
convictions dissipated upon discussion of the subject with the court.” Id. Finding no merit to the
13
allegation of error, the Court of Special Appeals added “[t]he [trial] court stated that it was not
considering appellant’s charges for which he was acquitted or those charges that were nolle
prossed. The court only considered ‘the total history of [appellant’s] involvements, the guilty
findings, the nature of the guilty findings, escape, violations of probation, . . . [that] those are the
guilities.” Id. at 14. The state court’s determination is clearly substantiated by the record and
provides no grounds to award habeas relief.
II.
INEFFECTIVE ASSISTANCE CLAIMS
A defendant has a constitutional right to the effective assistance of counsel. In order to
establish counsel rendered ineffective assistance, it must be shown that 1) counsel's
performance was deficient, and 2) the performance prejudiced the defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
Representation is deficient if it falls below “an
objective standard of reasonableness.” Id. at 688.
To satisfy the first part of this standard, a petitioner must demonstrate counsel's
performance was not “within the range of competence normally demanded of attorneys in
criminal cases.” Id. at 687 (internal quotation marks and citation omitted). The standard for
assessing such competence is “highly deferential” and there is a “strong presumption that
counsel's conduct falls within a wide range of reasonable professional assistance.” Id. at 689. A
defendant must overcome the “‘strong presumption’ that counsel's strategy and tactics fall
‘within the wide range of reasonable professional assistance.’ ” Burch v. Corcoran, 273 F.3d
577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). “There is a strong presumption
that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than
sheer neglect.” Harrington, 131 S.Ct. at 790 (internal quotation marks and citation omitted).
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the
14
two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S.Ct. at 788 (internal citations
omitted).
“When § 2254(d) applies, the question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland's deferential standard.” Id.
A showing of prejudice requires that 1) counsel's errors were so serious as to deprive the
defendant of a fair trial whose result is reliable, and 2) there was a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceedings would have been different.
See Strickland, 466 U.S. at 687, 694. “The benchmark [of an ineffective assistance claim] must
be whether counsel's conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Id. at 686. It is not enough “to
show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
Counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. at 687; Harrington, 131 S.Ct. at 787–88 (citing Strickland, 466 U.S. at 687). A
determination need not be made concerning the attorney's performance if it is clear that no
prejudice would have resulted had the attorney been deficient. Strickland, 466 U.S. at 697.
Shultz faults his trial counsel for failing to object to the trial court’s reasonable doubt
instruction, and failing to object to the absence of an identification instruction. (Petition, ECF
No. 1 at 6). At the post-conviction hearing, trial counsel Thomas Mooney testified to having no
recollection whether the last paragraph of the reasonable doubt instruction was omitted. (Ex 14 at
5). Mooney added that had he noticed the omission at the time, he would have objected. Id. at
5-6. On redirect examination, Mooney indicated that the verdict sheet provided for a finding of
not guilty as well as guilty. Id. at 10.
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The post-conviction court ruled ‘[t]hese issues were argued on appeal and the Court of
Special Appeals, in a 2006 opinion, ruled on the merits. As such, these claims have been finally
litigated and cannot be the subject of Post-Conviction Relief.” (Ex. 15 at 8).
As discussed earlier, the Court of Special Appeals ruled the reasonable doubt instruction
was not defective and there was no failure by the trial court to issue an eyewitness instruction.
The Court of Special Appeals expressly noted that the absence of the instructions at issue did not
prejudice Shultz because the instructions that were provided allowed the jury to properly assess
the evidence. (Ex. 8 at 6-11). The record further shows that the jury was instructed correctly
regarding the presumption of innocence and the State’s requirement to prove Shultz’s guilt
beyond a reasonable doubt. (Ex. 3 at 155-56). The trial court also instructed the jury concerning
its duty to evaluate direct and circumstantial evidence and assess witness testimony. Id. at 15861. Most importantly, “nothing about” Shultz’s case suggests he was deprived of a fair trial. (Ex.
8 at 8).
Moreover, Shultz fails to allege how counsel’s representation in regard to these
instructions prejudiced the outcome of his case as Strickland requires. For these reasons, these
claims do not provide grounds for habeas corpus relief. Shultz has not satisfied his burden to
show ineffective assistance of counsel and these claims will be denied.
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). To meet this burden, an
applicant must show that “reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Shultz has failed to make a
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substantial showing he was denied a constitutional right, and this court finds that reasonable
jurists would not find the denial of habeas relief in this case debatable. Therefore, a Certificate
of Appealability shall not issue.
CONCLUSION
For the foregoing reasons, the court concludes the Petition provides no grounds for
habeas corpus relief. A separate Order denying the Petition and declining to issue a Certificate
of Appealability follows.
October 3, 2014
Date
__________/s/________________
DEBORAH K. CHASANOW
United States District Judge
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