Clayborne v. Warden

Filing 14

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/22/2017. (kns, Deputy Clerk)(c/m as directed 3/23/17)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM CHARLES CLAYBORNE,1
#368-289,

*

Petitioner,

*

v.

*

WARDEN, et al.,

*

Respondents.

Civil Action No. PWG-16-1024

*
***
MEMORANDUM OPINION

Pending before the Court is Petitioner William Charles Clayborne’s Petition for Writ of
Habeaus Corpus arising out of his January 2011 conviction for the murder of Zachary
Thompson. Among other things, Clayborne attacks the conviction because he claims that his
waiver of a unanimous verdict was not knowing and voluntary. Respondents have filed a
Limited Answer to the Petition, asserting that Clayborne raised unexhausted claims not subject to
substantive federal habeas corpus review. Ltd. Answer, ECF No. 9. I granted Clayborne an
opportunity to respond, ECF No. 10, which he has done, Pet’r’s Reply, ECF No. 11; Pet’r’s
Supp. Reply, ECF No. 12. The Court has reviewed the filings, and no hearing is necessary. See
Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; 28 U.S.C. §
2254(e)(2). For the reasons set forth below, the Petition shall be denied as to all claims except
for the claim related to the waiver of a unanimous verdict.
Background
In January 2011, a Circuit Court for Baltimore City jury convicted Clayborne of

1

Petitioner’s name appears in the record as both “William Claybourne” and “William
Clayborne.”

first-degree murder. Claybourne v. State, 61 A.3d 841, 844 (Md. Ct. Spec. App. 2013). The
circumstances surrounding the verdict were unusual. During deliberations, the jury could not
reach a unanimous decision. Id. at 848. Clayborne waived his right to a unanimous verdict, and
he and the State agreed to accept a majority verdict. Id. at 849–51. The jury found Clayborne
guilty of first-degree murder by an eleven-to-one vote and of unlawfully carrying a dangerous
weapon by a unanimous vote. Id. at 851. Clayborne was sentenced to life imprisonment with all
but 25 years suspended. Id.
On direct appeal, Clayborne raised three claims:
1.

Was his waiver of his right to a unanimous verdict knowing and voluntary?

2.

Did the trial court abuse its discretion when it permitted testimony that one of the
State’s key witnesses had expressed concerns about her safety?

3.

Under the “facts of the case” doctrine, was the evidence insufficient to sustain
Clayborne’s conviction for openly carrying a dangerous weapon?

Id. at 845.

The Maryland Court of Special Appeals affirmed the conviction.

Id. at 867.

Clayborne filed a Petition for Writ of Certiorari raising the same questions, and the Maryland
Court of Appeals denied further review. Claybourne v. State, 68 A.3d 286 (Md. 2013).
While his certiorari request was pending, Clayborne filed a petition for post-conviction
relief in the Circuit Court for Baltimore City. Cir. Ct. Balt. City Docket 12, ECF No. 9-1. He
later withdrew that petition, id. at 14, but filed a second post-conviction petition on June 17,
2014, id. at 15, 18. The Petition for Post-Conviction Relief alleged ineffective assistance of trial
counsel for: (1) objecting to a cautionary instruction; (2) failing to move for judgment of
acquittal following the State’s case; (3) failing to challenge inconsistent verdicts; (4) failing to
interview alibi witnesses; (5) failing to seek suppression of State’s witness Valerie Leak’s
testimony or demand that she undergo a psychiatric examination; (6) failing to move to suppress

2

evidence; (7) failing to move for disclosure of criminal records of the State’s witnesses; (8)
failing to handle DNA evidence properly; (9) failing to request an instruction on involuntary
manslaughter due to hot-blooded response; (10) failing to investigate impeachment evidence of
Valerie Leak; (11) failing to consult with Clayborne about filing a motion for modification of his
sentence; and (12) failing to address the rule which requires a court to read all contents of any
jury communication to both parties. Cir. Ct. Balt. City Docs. 11–12, ECF No. 6-5.2 The Petition
also alleged ineffective assistance of appellate counsel for failing to allege that insufficient
evidence was presented to support the convictions. Id. at 12. Finally, the Petition alleged
prosecutorial misconduct for: (1) presenting noncredible witnesses; (2) making improper
remarks; and (3) presenting false evidence. Id. at 11.
The post-conviction court granted Clayborne’s request to file a belated request for
modification of his sentence but denied all other relief. Id. at 39.3 Clayborne did not file a
timely application for leave to appeal the denial of post-conviction relief.4 Instead, he sought
federal habeas corpus review within the one-year limitations period provided by 28 U.S.C. §
2244(d)(1). See Pet., ECF No. 1.
Clayborne’s Petition, as supplemented, sets forth a number of grounds for relief that: (A)
the verdict was inconsistent; (B) his waiver of an unanimous verdict was not knowing and
intelligent; (C) the trial court failed to give an instruction on voluntary manslaughter; (D) witness

2

Page number for citations to the Circuit Court for Baltimore City documents refer to the
CM/ECF page numbers.
3

Clayborne later filed a Motion for Modification, which was denied. Id. at 8–9.

4

The post-conviction court rendered its decision on October, 23, 2015. Accordingly, the
proceedings became final on November 22, 2015. See Md. Code Ann., Crim. Proc. § 7-109(a).
On February 16, 2016, the Court of Special Appeals dismissed Clayborne’s untimely application
for leave to appeal. Md. Ct. Spec. App. Feb. 18, 2016 Order, ECF No. 9-5.
3

testimony amounted to hearsay; (E) the photographic identification array was suggestive; (F) the
police and prosecutor falsified DNA evidence; (G) there was no evidence of premeditated
murder; (H) prosecution witness Angela Gibbs’s trial testimony was not credible; (I) the
prosecutor committed misconduct by suggesting that Gibbs was afraid of Clayborne;

(J)

a

murder weapon was never found; (K) prosecution witness Valerie Leak was incompetent; (L)
newly discovered evidence not previously disclosed by the State and obtained under the
Maryland Public Information Act (“MPIA”), Md. Code Ann., State Gov’t § 10-611 to -628,
shows all witnesses presented perjured and inconsistent testimony; (M) although he responded in
the negative at trial, Clayborne was in fact on psychiatric medication at the time of trial; and (N)
the trial court failed to properly instruct the jury as to reasonable doubt. Pet. 1–2; First Supp.
Pet. 6, 22, ECF No. 3; Second Supp. Pet. 8–12, 14–15, ECF No. 5; Third Supp. Pet. 2–3, ECF
No. 6; Pet’r’s Reply 1; Pet’r’s Supp. Reply 4.5
Discussion
Exhaustion
Respondents argue that the Petition must be dismissed because it contains exhausted
claims. Habeas petitioners must exhaust available state remedies before seeking relief in federal
court. 28 U.S.C. § 2254(b)(1), (c). In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court
held that the habeas statute’s exhaustion requirement is one of “total exhaustion,” meaning that
petitions that contain both exhausted and unexhausted claim (i.e. “mixed petitions”) are not
entitled to federal habeas review. Id. at 522; see also Granberry v. Greer, 481 U.S. 129, 134–35
(1987) (recognizing that the exhaustion requirement is not a jurisdictional prerequisite to federal

5

Page numbers for citations to the Petition, as supplemented, and the Reply, as
supplemented-which contain additional allegations that I will construe as raised in the
Petition—refer to the CM/ECF page numbers.
4

habeas corpus relief, but rather a matter of comity). State-court remedies are also exhausted if
they once were but are no longer available. Woodford v. Ngo, 548 U.S. 81, 92–93 (2006).
Although Maryland permits an individual to file only one post-conviction petition per trial or
sentence, Md. Code Ann., Crim. Proc, § 7-103, the state allows a court to “reopen a
post-conviction proceeding that was previously concluded if the court determines that the action
is in the interests of justice,” Md. Code Ann., Crim. Proc. § 7-104. Accordingly, a prisoner who
raises new claims in a habeas petition may yet have state remedies available to him, even if he
has previously filed a petition for post-conviction relief in state court. Stokes v. Bishop, No.
RDB-12-840, 2014 WL 1320139, *3 (D. Md. Mar. 27, 2014).
Clayborne’s claim concerning waiver of a unanimous verdict (ground B) was presented
on direct appeal and in Clayborne’s Petition for Certiorari to the Court of Appeals, Claybourne,
61 A.3d at 845; Pet. Writ Cert. 1, ECF No. 9-4.6 This ground is fully exhausted. But it appears
that Clayborne did not raise grounds (D), (E), (F), (J), (L), (M), or (N) in either his direct appeal
or in his Petition for Post-Conviction Relief. See Claybourne, 61 A.3d at 845; Cir. Ct. Balt. City
Docs. 11–12. Thus, Clayborne presents a “mixed” petition.
As a result, Respondents argue that the Petition must be dismissed. Ltd. Answer 11–12.
But a “mixed” petition may proceed if the petitioner withdraws his unexhausted claims. Rose,
455 U.S. at 520 (noting that a habeas petitioner “can always amend the petition to delete the
unexhausted claims, rather than returning to state court to exhaust all of his claims”); Guthrie v.
Warden, 683 F.2d 820, 821 n.1 (1982) (“[E]xplicit abandonment of . . . unexhausted claims early
in the case is the functional equivalent to an amendment of [the] petition. Like a formal
amendment, such an express withdrawal purge[s] the petition of the unexhausted claims.”). In
6

Page numbers for citations to the Petition for Writ of Certiorari refer to the CM/ECF page
numbers.
5

his Reply, Clayborne indicates that if the Court finds any of his claims unexhausted that he
would “withdraw from the reopening of . . . post conviction proceedings.” Pet’r’s Reply 1.
Accordingly grounds (D), (E), (F), (J), (L), (M), and (N) will be treated as “purged” from the
Petition, and dismissal is not required. Guthrie, 683 F.2d at 821 n.1.
Procedural Default
Clayborne raised the remaining grounds for habeas relief—(A), (C), (G), (H), (I), and
(K)—in his Petition for Post-Conviction Relief. Cir. Ct. Balt. City Docket 11–12. But after the
post-conviction court denied relief for all but one of his claims, Clayborne did not file a timely
appeal. Md. Ct. Spec. App. Order (dismissing application for leave to appeal pursuant to Md.
Rule 8-602(a)(3), which authorizes dismissal for failure to file an appeal within the time limit
prescribed by the Rules). Accordingly, these claims are technically exhausted. Woodford, 548
U.S. at 92–93 (noting “state-court remedies are “technically exhausted” where “the prisoner
failed to comply with the deadline for seeking state-court review or for takin an appeal of those
remedies” but that the claims may nevertheless be barred under procedural-default doctrine).
The appellate court’s dismissal of Clayborne’s post-conviction appeal would seem to fall
squarely within the procedural-default doctrine. This judicially-crafted rule generally prohibits
habeas review where “the last state court rendering a judgment in the case rests its judgment on
[a] procedural default.” Harris v. Reed, 489 U.S. 255, 262 (1989). Although the Limited Answer
does not raise procedural default as basis for dismissal of any of the asserted grounds for relief,
see Ltd. Answer, “a federal habeas court possesses the authority, to decide a petitioner’s claim on
the basis of procedural default despite the failure of the state . . . to preserve or present the issue
properly.”

Yeats v. Angelone, 166 F.3d 255, 261–62 (4th Cir. 1999).

Particularly since

Clayborne has preemptively addressed the issue, see Pet’r’s Supp. Reply 2–3, I will consider

6

whether habeas review is warranted for grounds (A), (C), (G), (H), (I), or (K).
Where, as here, a procedural default has occurred, a federal court may not address the
merits of a state prisoner’s habeas claim unless the petitioner can show (1) both cause for the
default and prejudice that would result from failing to consider the claim on the merits, or (2)
that failure to consider the claim on the merits would result in a miscarriage of justice, i.e. the
conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 495–96
(1986); Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998).
“Cause” consists of “some objective factor external to the defense [that] impeded [the
petitioner’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). Clayborne addresses this element by stating that his
self-represented application for leave to appeal the denial of post-conviction relief was sent in
error directly to the Court of Special Appeals without first seeking permission from the
post-conviction court, and thus deemed untimely. Pet’r’s Supp. Reply 2–3. Clayborne’s lack of
legal knowledge is not sufficient “cause” for the default.7 Wilson v. Johnson, No. 1:08cv794
(LMB/TRJ), 2009 WL 2243708, *3 (E.D. Va. July 22, 2009) (“Courts universally hold that the
fact that a petitioner is untrained in the law or unfamiliar with a court’s procedural rules does not
provide a basis for establishing cause.”).
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). “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
7

Absent cause, I need not examine the issue of prejudice.
7

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). Clayborne contends that previously undisclosed information
obtained under the MPIA shows that witnesses’ trial testimony deviated significantly from
earlier statements to the police.

Pet’r’s Supp. Reply 4.

He suggests that tapes exist to

substantiate his claim that witnesses “Ella Green” and “Valerie Leaks,” who I take to be
witnesses Valerie Leak and Ella Gregg, “both gave statements to detectives that someone else
committed this crime,” but he has not supplied evidence to support this claim.8 Id. at 5.
Clayborne has only provided me with photocopies of CDs that contain this purportedly
exculpatory information but has not provided the CDs themselves for review. But even if the
CDs back up his claims, Clayborne cannot prove by a preponderance that no reasonable juror
would have convicted him in light of this information. Although Leak and Gregg were key
witnesses in the trial, see Claybourne, 61 A.3d at 845–46, 847, the State also produced a
statement from Angela Gibbs identifying Clayborne as the murderer, id. at 846–47. Gibbs
recanted the statement at trial, but the State attempted to impeach her trial testimony by eliciting
testimony that she had asked to go into witness protection after giving the statement. Id. at 847.
Additionally, a forensic examiner provided DNA evidence linking Clayborne to the crime and
estimated that “the chances that an unrelated individual in the African American population
could have been a contributor to [a] mixture [of the victim and the assailant’s DNA] was
approximately one in 34.2 million.” Id. at 847–48. Although Clayborne argues that the court
erred by permitting testimony concerning Gibbs’s safety concerns, the Maryland Court of
Appeals disagreed. Id. at 862. Clayborne also insists that the DNA results “were falsified,”
8

Clayborne claims he provided the evidence to his former counsel, Melissa McDonnell, of the
Maryland Public Defender’s Office, Collateral Review Division. Pet’r’s Supp. Reply 5.
McDonnell will be provided a courtesy copy of this Opinion in the hope that any relevant
material in her possession will be promptly returned to Clayborne.
8

Pet’r’s Reply 4, but as I already indicated, he has failed to exhaust that claim and has waived
consideration of it. I find that a reasonable juror could have convicted Clayborne based on
Gibbs’s statement and the DNA evidence. Accordingly, the remaining grounds for relief for
relief are procedurally defaulted and will not be considered.
Conclusion
Clayborne’s claim that his waiver of a unanimous verdict was not knowing and voluntary
is exhausted, and Respondents shall answer the merits of that claim. The remaining claims are
either unexhausted and withdrawn or are procedurally defaulted.
A separate Order follows.

Date: March 22, 2017

/S/
Paul W. Grimm
United States District Judge

9