Fogle v. Stouffer et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 2/10/2017. (kns, Deputy Clerk)(c/m 2/13/17)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

ANTHONY FOGLE,
Prisoner Identification No. 362-741,
Petitioner,
v.
J. MICHAEL STOUFFER,
Warden of Roxbury Correctional Institution,
and
BRIAN E. FROSH,
Attorney General of the State of Maryland,

Civil Action No. TDC-15-0355

Respondents.

MEMORANDUM OPINION
Anthony

Fogle,

currently

confined

at the

Roxbury

Correctional

Institution

in

Hagerstown, Maryland, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.c.

S 2254.

The Petition challenges Fogle's 2010 conviction in the Circuit Court for Baltimore

County, Maryland for armed robbery and a related handgun offense.

At the Court's request,

Respondents filed an Answer in which they sought dismissal of the Petition on the basis that
Fogle's claims are not cognizable and cannot be considered due to procedural default. Pursuant
to an Order of this Court, Fogle filed a Response to the Answer. For the reasons set forth below,
the Petition is dismissed.
BACKGROUND
On April 9, 2010, Fogle was convicted by a jury in the Circuit Court for Baltimore
County, Maryland of three counts of armed robbery, three counts of illegal use of a handgun, and
theft. He was sentenced on April 30, 2010 to 30 years of imprisonment.

Fogle filed a notice of

appeal to the Court of Special Appeals of Maryland on May 18, 2010.
pending, Fogle filed a petition for post-conviction
County, Maryland on March 24, 2012.

While his appeal was

relief in the Circuit Court for Baltimore

He then requested that the Court of Special Appeals

dismiss his appeal because he had not timely filed his brief and to allow him to proceed in
seeking post-conviction relief, the proceedings for which were postponed pending the outcome
of his appeal. Accordingly, the Court of Special Appeals dismissed the appeal on July 11,2012.
Fogle's

post-conviction

petitions, asserted that:
defendant's

petition to the Circuit Court, as amended by supplemental

(1) the trial court violated Maryland Rule 4-215( e), which governs a

request to discharge counsel, by failing to inquire into the reasons for Fogle's

request for a new attorney; (2) his trial and appellate counsel were ineffective; (3) there was
insufficient

evidence to support his convictions;

(4) the docket entries in his case were

inaccurate; (5) the jury instructions were improper because the trial judge did not instruct the
jury that charging documents

are not evidence; (6) the trial judge engaged in improper

communications with the jury after deliberations began; (7) the trial court abused its discretion
by postponing the case beyond the 180 days provided by Maryland law; (8) Fogle was unable to
prepare a defense because the trial court granted or waived motions without his knowledge; and
(9) there was an inconsistent verdict.

Following a hearing, the Circuit Court denied post-

conviction relief on September 30, 2013.

Fogle filed an application for leave to appeal the

Circuit Court's decision, which the Court of Special Appeals denied.
On February 1, 2015, Fogle submitted the instant Petition, which was received and
docketed by this Court on February 9, 2015. Because the Petition is dated February 1,2015, it is
deemed filed as of that date. See Houston v. Lack, 487 U.S. 266, 270-76 (1988); United States v.
Dorsey, 988 F. Supp. 917, 919-20 (D. Md. 1998) (holding that a petition shall be deemed to have

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been filed on the date it was deposited with prison authorities for mailing under the prison
mailbox rule); see also United States v. McNeill, 523 F. App'x 979, 982-83 (4th Cir. 2013).
DISCUSSION
In his Petition to this Court, Fogle claims that:

(1) he was subject to an inconsistent

verdict; (2) the court improperly accepted a waiver of jury trial and set a trial date without
providing him an initial appearance or an attorney; (3) the court failed to rule on his double
jeopardy claim; and (4) the court failed to comply with Maryland Rule 4-215(e).

Respondents

argue that Fogle's claims should be denied for reasons including procedural default, failure to
state a basis for relief, and failure to provide factual support.
I.

Exhaustion of State Remedies
As a threshold matter, a petitioner seeking habeas relief in federal court must exhaust the

remedies available in state court. 28 U.S.C.
510 (1982).

S 2254(b)(1)

(2012); Rose v. Lundy, 455 U.S. 509,

This exhaustion requirement is satisfied by seeking review of the claim in the

highest state court with jurisdiction to consider the claim. See 28 U.S.C.
For a person convicted

of a criminal

offense

S 2254(c).

in Maryland,

accomplished either on direct appeal or in post-conviction proceedings.

exhaustion

may be

To exhaust a claim on

direct appeal in non-capital cases, a defendant must assert it in an appeal to the Court of Special
Appeals of Maryland and then to the Court of Appeals of Maryland by way of a petition for a
writ of certiorari.

See Md. Code Ann., Cts. & Jud. Proc.

SS

12-201, 12-301 (West 2011). To

exhaust a claim through post-conviction proceedings, a defendant must assert it in a petition filed
in the Circuit Court where the inmate was convicted within 10 years of the date of sentencing.
See Md. Code Ann., Crim. Proc.

SS

7-101 to -103 (West 2011).

After a decision on a post-

conviction petition, further review is available through an application for leave to appeal filed

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with the Court of Special Appeals.

Id.

S

7-109.

If the Court of Special Appeals denies the

application, there is no further review available and the claim is exhausted. Md. Code Ann., Cts.
& Jud. Proc.

S

12-202. If the application is granted, but relief is denied on the merits of the

claim, a petitioner must then file a petition for writ of certiorari to the Court of Appeals of
Maryland. See Williams v. State, 438 A,2d 1301,1304-05 (Md. 1981).
Respondents state that Fogle no longer has available direct appeal or state post-conviction
remedies for any of the claims raised here. The Court agrees. Fogle filed an appeal to the Court
of Special Appeals for the direct review of his convictions, and upon its dismissal he did not seek
further review by the Court of Appeals of Maryland.

As for post-conviction

remedies, the

Circuit Court denied his petition for relief, and his application for leave to appeal was denied.
Accordingly, Fogle has exhausted state court remedies.

See 28 U.S.C.

S

2254(b)(1); see also

Alston v. State, 40 A,3d 1028, 1033-35 (Md. 2012) (stating that a petitioner is limited to one
petition for post-conviction relief arising out of a trial unless reopening the case is necessary to
avoid a miscarriage of justice).
II.

Procedural Default
Where a petitioner

has exhausted his available state remedies, a court must then

determine whether the procedural default doctrine applies to bar federal review of one or more of
his claims.

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 on direct appeal or in post-conviction
proceedings, or by failing to timely note an appeal, the procedural default doctrine applies. See
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v.
Carrier, 477 U.S. 478, 490-91 (1986) (failure to raise claim on direct appeal); Murch v.
Mottram, 409 U.S. 41, 46-47 (1972) (failure to raise claim in state petition for post-conviction

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relief); Bradley v. Davis, 551 F. Supp. 479, 482 (D. Md. 1982) (failure to seek leave to appeal
denial of post-conviction relief). Specifically, a claim is procedurally defaulted 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 dismissal."

Breard v.

Pruett, 134 F.3d 615, 619 (4th Cir. 1998). A procedural default has also occurred when a habeas
petitioner did not present the claim to a state court, and the state court "to which the petitioner
would be required to present his claims ... would now find the claims procedurally barred." ld.
at 619 (quoting Coleman, 501 U.S. at 735 n.1).
If a procedural default has occurred, a federal court may still address the merits of a state
defendant's

habeas claim if the petitioner can show both cause for the default and actual

prejudice that would result from failing to consider the claim on the merits.

See Murray, 477

U.S. at 494-95; Breard, 134 F.3d at 620. "Cause" consists of "'some objective factor external to
the defense [that] impeded counsel's efforts' to raise the claim in state court at the appropriate
time." Breard, 134 F.3d at 620 (quoting Murray, 477 U.S. at 488). To demonstrate prejudice,
the petitioner must show "not merely that the errors at ... trial created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions."

Murray, 477 U.S. at 494 (quoting United States v. Frady,

456 U.S. 152, 170 (1982)).
Procedural default may also be excused if the failure to consider the claim on the merits
would result in a miscarriage of justice, as demonstrated by a showing that "a constitutional
violation has probably resulted in the conviction of one who is actually innocent."

Murray, 477

U. S. at 496. '''To be credible,' a claim of actual innocence must be based on reliable evidence
not presented at trial."

Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup v.

5

Delo, 513 U.S. 298, 324 (1995)). New evidence may consist of "exculpatory scientific evidence,
credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical
evidence." Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citation omitted). The new
evidence must do more than undermine the finding of guilt; it must affirmatively demonstrate
innocence.

Phillips v. Fergusqn, 182 F.3d 769, 774 (10th Cir. 1999).

To invoke the actual

innocence exception to the procedural default doctrine, a petitioner "must show that it is more
likely than not that no reasonable juror would have convicted him in light of the new evidence."
Schlup v. Delo, 513 U.S. 298, 327 (1995).
Here, Fogle's claims have been procedurally defaulted.

First, Fogle .asserts that the trial

court improperly accepted an inconsistent verdict in that the jury acquitted him of carrying a
handgun but convicted him of armed robbery and illegal use of a handgun.

The state post-

conviction court, however, found that "the Petitioner waived this allegation when he failed to
raise this argument on appeal" in that he prevented the Court of Special Appeals from reviewing
the claim because the court dismissed Fogle's appeal at his request. Am. Statement Reasons and
Order 19, Resp'ts'

Answer Ex. 4, ECF No. 10-4; see also Murray, 477 U.S. at 491-92.

Likewise, the state post-conviction court found that Fogle waived his allegation concerning the
failure to comply with Maryland Rule 4-215( e) because he chose to dismiss his direct appeal.
Fogle's remaining claims were not raised either on direct appeal or in a post-conviction
petition.

Fogle's claim that the trial court "improperly accepted [a] waiver to jury trial without

providing defendant [with] an initial appearance or an attorney" was not raised on direct appeal
or post-conviction review. Pet. 6, 8, 10. Similarly, the record reveals that Fogle did not raise, in
either proceeding, his claim that the trial court failed to rule on the merits of his "motion to

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dismiss the indictment on grounds of double jeopardy."

Id.; see id. at 6, 8. Accordingly, a state

court would now find these claims to be barred.
Neither exception to the procedural default bar applies.

As to cause and prejudice,

nothing in the record suggests that Fogle's procedural default was due to external circumstances.
Fogle also presents no new evidence to support his claim of innocence. Instead, he argues that at
the time of his July 17, 2009 arrest for the armed robbery of the M&T Bank in the Liberty Court
Shopping Center, he had a four-inch gray beard. He states that although he was identified at trial
by one witness, none of the witnesses to the crime who stated that "they got a good look at the
gunman" ever described a gray beard. Pet'r's Resp. 2, ECF No. 15. He then posits that "(i]fthe
gunman's face was not covered entirely, the only feature that would have stood out would have
been a 4" gray beard."

Id. These representations are insufficient to establish actual innocence

and db not provide a basis for excusing Fogle's procedural default.
III.

Cognizability
The Court notes that at least two of Fogle's claims would fail as a matter oflaw even if

they were not procedurally defaulted. First, his inconsistent verdict claim is not cognizable.
a claim of relief under presented under

S 2254

For

to be cognizable for review, the petitioner must

assert a violation of federal law. See Wilson v. Corcoran, 562 U.S. 1,1 (2010) ("Federal courts
may not issue writs of habeas corpus to state prisoners whose confinement does not violate
federal law."); Spencer v. Murray, 18 F.3d 237, 239 & n.5 (4th Cir. 1994) (denying a claim
regarding the reliability of evidence, which invoked neither a constitutional provision nor a
constitutional right, because of the failure to state a federal claim). Because inconsistent verdicts
in criminal trials are permitted under federal law, Fogle has not identified a violation of federal
law. See United States v. Powell, 469 U.S. 57,68-69 (1984). Second, Fogle's allegation as to a

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waiver to trial by jury is inscrutable in light of the fact that he was, in fact, tried by a jury, and
there is no indication that he waived such a right.
To the extent that Fogle has asserted a separate claim that his trial date was set without
his appearance or the appearance of an attorney, Fogle arguably presented that claim on state
post-conviction

review to the extent that it was referenced in his argument concerning his

inability to prepare a defense as a result of the trial court's actions. This claim fails, however,
because it does not suggest a violation of federal law. Accordingly, the claim is not cognizable
on federal habeas review. In any event, the record shows that the trial court granted a motion for
a joint trial on September 1, 2009, which was then vacated at counsel's request because Fogle
"did not have counsel at the time the Order was signed" and had not received notice of the
motion. Am. Statement Reasons and Order 17-18. The State then renewed its motion for a joint
trial, which was then granted at a motions hearing with both Fogle and his attorney present. The
trial date of April 6, 2010 was also set after Fogle's attorney had entered his appearance and with
Fogle present.
IV.

Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district court

"must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant" in such cases.
applicant, 28 U.S.C.

S

Because the accompanying

2253(c)(l)

Order is a final order adverse to the

requires issuance of a certificate of appealability before an

appeal can proceed.
A certificate of appealability may issue if the petitioner has made a "substantial showing
of the denial of a constitutional right."

28 U.S.C.

S 2253(c)(2).

When a district court rejects

constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that

8

..
"reasonable jurists would find the district court's

assessment

of the constitutional

claims

debatable or wrong." Slack v. McDaniel, 529 U.S. 473,484 (2000). When a petition is denied
on procedural grounds, the petitioner must show that reasonable jurists "would find it debatable
whether the petition states a valid claim of the denial of a constitutional right" and "whether the
district court was correct in its procedural ruling." !d. at 478.
Here, Fogle's claims are dismissed on procedural grounds, and this Court finds that Fogle
has not made the requisite showing to warrant a certificate of appealability.
declines to issue a certificate of appealability.

The Court therefore

Fogle may still request that the United States

Court of Appeals for the Fourth Circuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528,
532 (4th Cir. 2003) (considering whether to grant a certificate of appealability after the district
court declined to issue one).
CONCLUSION
For the foregoing reasons, the Court dismisses the Petition for Writ of Habeas Corpus
with prejudice and declines to issue a certificate of appealability. A separate Order shall issue.

Date: February 10,2017
THEODORED.
United States Distr

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