Lee v. State of Maryland
Filing
22
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 2/21/2019. (c/m 2/22/19 sp2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
JEROME LEE,
*
Petitioner
*
v.
*
STATE OF MARYLAND,
*
Respondent
Case No. GJH-16-2677
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***
MEMORANDUM OPINION
Petitioner Jerome Lee challenges the legality of his Maryland State conviction on charges
of theft under one-thousand dollars, kidnapping, and false imprisonment pursuant to 28 U.S.C.
§2254. ECF No. 1. Respondent seeks dismissal of the petition without a hearing on the basis that
the petition does not raise a cognizable claim warranting federal habeas relief. ECF 9. The Court
finds no need for a hearing in this matter. See Rule 8(a), Rules Governing Section 2254 Cases in
the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v.
Petitioner, 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 stated below, the Court denies the petition and declines to issue a
certificate of appealability.
I.
BACKGROUND
A. Petitioner’s Trial
Petitioner and his co-defendant Jamal Richards were indicted on charges of first degree
rape, multiple sex offense charges, assault, robbery, theft under one-thousand dollars, false
imprisonment, and kidnapping. The two received separate trials. Petitioner was acquitted on
charges of rape, sex offense, assault and robbery, but was found guilty by a jury of the theft, false
imprisonment and kidnapping counts. Richards was convicted of first-degree rape, three counts of
first-degree sex offense, robbery, kidnapping, and false imprisonment; he was sentenced to an
aggregate sentence of 55 years. See ECF No. 9 at 7, n. 2.1 The evidence and testimony presented
at trial are outlined below.
The victim in this case, Barbara Lessio, is a resident of Italy and was temporarily residing
in Towson, Maryland, working as an au pair. On the evening of May 21, 2010, she went to a bar
in Baltimore, Maryland with three other friends including Elizabeth Dillard, who testified at trial.
ECF No. 9-2 at 180-88 (direct testimony). Ms. Dillard explained that she and Lessio left a bar
called “Gin Mill” at approximately 2 a.m. the following morning, after last call at the bar. Id. at
183. Dillard testified that she and Lessio took a cab back to Dillard’s apartment in downtown
Baltimore. Id. Dillard explained that once they arrived at her apartment building, Lessio indicated
that she wanted to go back to her home in Towson, so Dillard left Lessio in the cab, went to her
apartment, and promptly fell asleep. Id. at 190-2 (cross-examination). When Dillard awoke the
next morning, she noticed numerous missed calls from Lessio on her cellphone. Id. at 193
(redirect).
Lessio testified that after Dillard got out of the cab, she learned that the cab fare back to
Towson would be fifty dollars or more. ECF No. 9-3 at 16. Lessio then exited the cab and
unsuccessfully searched for Dillard and tried to contact both Dillard and another friend on the
phone. Id. at 17. She explained that she saw a car parked on the street, walked over to it, and began
talking to the two men inside: Richards and Petitioner. Id. at 17-18. Lessio recalled that Richards
was in the driver’s seat, and Petitioner was in the front passenger seat. Id. at 18. She asked the two
men if they would be willing to give her a ride home, and they agreed. Id. Although Lessio gave
1
Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
2
them an address to put into the GPS on a cellphone, they claimed the GPS did not work; by this
time, Lessio was in the backseat of the car. Id. at 19.
Lessio testified that she was in the car a short while before Petitioner climbed into the
backseat with her and began touching her thighs inappropriately and would not stop despite her
requests. Id. at 20-21. She testified that Petitioner then pushed her down on the seat and vaginally
raped her twice, then forced her to perform fellatio. Id. at 22-24. Lessio recalled that each time she
attempted to raise her head and pull away, Petitioner slapped her in the face and on the head and
kept his hands on her head. Id. at 25.
Lessio testified that Richards stopped the car near a park after Petitioner had finished. Id.
at 25-26. Lessio testified that she, Richards, and Petitioner got out of the car and the two men led
her down the hill at the park where Petitioner again forced her to perform oral sex while Richards
raped her vaginally and anally. Id. at 26-27. Lessio recalled that one of the two men went through
her purse, removing her camera, phone, wallet with credit cards, cash and debit card. Id. at 28-29.
As they approached the road, Lessio saw a van driving down the street and ran towards it, trying
to stop it so she could get assistance. Id. at 29-30. But the van only slowed down, and Lessio
testified that Richards and Petitioner grabbed her and drug her back to the car. Id.
Richards again took the driver’s seat and drove the car to a gas station, where he used
Lessio’s debit card to put gas in the car. Id. at 31. Lessio testified that she did not give either man
permission to use her debit card. Id. Lessio stated that she first gave the men the wrong PIN
number. Id. at 32. After they discovered the PIN would not work, Lessio stated that Petitioner told
her that if she wanted “to see the sun tomorrow,” she would need to provide them with the correct
number. Id. at 33. Lessio complied and Petitioner exited the car to use the debit card while Richards
stayed in the car. Id. at 34. She testified that her debit card was used at least twice that evening. Id.
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Lessio stated that after he used the debit card, Petitioner got into the backseat with her and again
forced her to perform fellatio. Id. at 35. Richards then moved to the back seat and forced Lessio to
perform fellatio. Id. Lessio said that Petitioner was not wearing a condom during any of the times
he forced her to perform oral sex. Id.
Richards and Petitioner were both in the front seat when Richards drove the car to another
area that was also unknown to Lessio and let her out of the car. Id. at 37. Lessio did not have her
cellphone and testified that she asked Petitioner to give her camera back to her as it had been a
birthday gift, but he refused. Id. at pp. 37-38. Lessio recalled walking to a car stopped at a red light
and asking the man driving to call for help. Id. at p. 38.
A Baltimore City Police Officer responded to a call made by the man Lessio had
encountered at the stoplight and took Lessio to a police station and then to a hospital. Id. at 38-39,
see also ECF No. 9-5 at 38-39 (cross-examination of Officer Roberto Cornejo). Lessio was
examined at the hospital, where she met with Detective Mundy of the Baltimore City Police. ECF
No. 9-3 at 40-41. Approximately one week later, Lessio found the ATM receipts in her purse which
she provided to Detective Kerry Snead who had been assigned as the primary investigating officer
in the case. Id. at 43. Lessio positively identified both Richards and Petitioner in two separate
photographic arrays provided to her by Detective Snead. Id. at 45-48.
Additional testimony from witnesses for the State established that Lessio’s examination at
Mercy Medical Center revealed lacerations on her labia, lacerations to the top of her anus, and
bruising to the top of her thigh down toward the middle of her thigh and to her ankle. ECF No. 93 at 116-119 (direct testimony of Nira Mitchell, NP). Evidence collected during Lessio’s exam
included vaginal cultures, photographs of the bruising to her legs, and collection of her underwear
and tights for testing. Id. at 113, 120. Additionally, oral swabs were taken from Richards and
4
Petitioner, and swabs were taken from the backseat driver’s side and the middle of the backseat of
the 2009 Grand Marquis Richards was driving. Id. at 141-45. Because the presence of sperm was
detected on the waistband of the tights Lessio was wearing, it was sent for DNA testing along with
the swabs from the car. Id. at 144, 146.
The DNA analysis of the physical evidence collected revealed that the stain from Lessio’s
tights matched the DNA sample provided by Petitioner. ECF No. 9-4 at 9-27. Through latent print
analysis of the ATM receipts, and comparison with known fingerprints from Richards and
Petitioner, it was established that both Richards’ and Petitioner’s fingerprints were on the receipts.
Id. at 36-46. A Bank of America employee authenticated records of the multiple ATM transactions.
ECF No. 9-5 at 6-19.
Police recovered Lessio’s camera at a pawn shop during their investigation. The owner of
the pawn shop testified that the camera was pawned by Petitioner. ECF No. 9-4 at 61-69. Petitioner
testified at trial and provided a much different description of his interaction with Lessio. ECF No.
9-5 at 42-68 (direct testimony). Petitioner stated that when Lessio got into the car, he was in the
front passenger seat of the car, wearing sunglasses, and sleeping with the seat reclined because he
had a headache. Id. at 49. He testified that he spoke to Lessio from the front seat and did not move
to the backseat until he asked her if it was okay to do so and she confirmed it was okay. Id. at 52.
He also testified that Lessio had an accent but that he did not have any trouble understanding what
she was saying, and that after talking for five to ten minutes, Petitioner asked Lessio for oral sex.
Id. at 54-55. According to Petitioner, Lessio agreed to perform oral sex but asked him to wear a
condom, which she provided. Id. Petitioner testified that after he had ejaculated, Lessio threw the
condom out of the window of the car. Id. at 56. Petitioner then testified that he gave her 25 dollars,
5
which she used to pay Richards to drive her wherever she wanted to go. Id. at 57. Petitioner recalled
that he then returned to the front seat where he went back to sleep. Id.
Petitioner claims that when he awoke, the car was parked one block behind the Alameda
Shopping Center in East Baltimore at Belvedere and Loch Raven and he was the only one in the
car. Id. at 58. He saw that the keys were still in the ignition, sat in the car for a few minutes, lit a
cigarette, and got out of the car. Id. at 59. Petitioner recalled that he saw Richards and Lessio
walking out of an apartment complex, but stated that he knew nothing else about where they had
gone or what they had done. Id. He claimed that Richards and Lessio walked to the car and both
got into the car voluntarily. Id. at 60.
Petitioner also testified that Lessio provided her ATM card to Richards voluntarily so that
he could put gas in the car. Id. Petitioner explained that he believed the subsequent ATM
transactions using Lessio’s debit card were made pursuant to an agreement between Richards and
Lessio. Id. at 62. He also stated that he got no money from any of the transactions and that his
fingerprints were only on the ATM receipts because Richards had handed him a pack of cigarettes
with the receipts on top of the cigarette pack. Id. at 63. Petitioner also testified that he did not steal
Lessio’s camera, but that she had left it in the car; he later pawned it because he did not want to be
in possession of the camera, as he was unaware of what had occurred between Lessio and Richards.
Id. at 63-65. Petitioner stated that they left Lessio at the intersection of Loch Raven and Cold
Spring because she had asked to get out of the car there. Id. at 65.
The jury found Petitioner not guilty on all charges related to the sexual assault on Lessio,
as well as the robbery and assault charges, but found Petitioner guilty of theft under one thousand
dollars, kidnapping, and false imprisonment. ECF No. 9-7 at 10-14. At the sentencing proceeding,
counsel for the State and the defense engaged in lengthy argument regarding whether the false
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imprisonment count should merge with the kidnapping count and what effect, if any, non-merger
would have on sentencing. ECF No. 9-8 at 5-19 (State’s argument); id. at 20-30 (Defense
argument). The trial court resolved the issue in favor of the State, holding that the false
imprisonment count related to the initial period of time Lessio was in the car and was not allowed
to leave. Id. at 38. The kidnapping charge, on the other hand, related to the period of time when
she managed to run away from the two men in the park, and Petitioner and Richards had forcibly
put her back into the car. Id. at p. 38. The trial court then expressed its belief that “Mr. Lee’s
involvement in this case made it possible for the horrific sexual offenses to occur for which the
co-defendant was found guilty” and that he had “altered the nature of the interaction and
transformed it into a sexual interaction or nightmare.” Id. Based on the court’s view that “the
circumstances accompanying this crime are of such unusual aggravation the punishment ought to
be unusually severe,” Petitioner was sentenced to an aggregate term of 85 years. Id. at 39.
B. Direct Appeal
On appeal to the Maryland Court of Special Appeals, Petitioner presented the following
questions for the appellate court’s review:
Should the offenses of false imprisonment and kidnapping merge pursuant to the
required evidence test, thereby capping Appellant’s sentence to thirty years for
the greater offense?
Did the trial court consider impermissible sentencing criteria when it determined
[Petitioner’s] sentence?
Did the sentences imposed by the trial court constitute cruel and unusual
punishment?
ECF No. 9-12 at 2 (Court of Special Appeals unpublished opinion).
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The appellate court found no error in the trial court proceedings and affirmed Petitioner’s
convictions and sentence.2 Petitioner filed a petition for writ of certiorari with the Maryland Court
of Appeals that was denied without opinion. ECF No. 9-13.
C. Post-Conviction
On April 8, 2014, Petitioner filed a post-conviction petition in the Circuit Court for
Baltimore City and raised claims of ineffective assistance of trial counsel based on his view that:
counsel failed to effectively litigate the issue of whether false imprisonment and kidnapping
merged; failed to properly litigate issue of whether the offenses were based on specific separate
acts; failed to move for a mistrial because the same judge presided over co-defendant’s trial; failed
to effectively assert that it was improper for the sentencing judge to consider the outcome of the
co-defendant’s trial at sentencing; failed to preserve for appellate review the issue of whether the
trial court considered impermissible sentencing criteria; failed to effectively assert that if the
kidnapping and false imprisonment counts did not merge the sentence imposed by the trial court
was so grossly disproportionate to the sentencing guidelines that it constituted cruel and unusual
punishment in violation of the U.S. Constitution and Article 25 of the Maryland Declaration of
Rights; failed to notify Petitioner of a plea offer he might have accepted; failed to effectively assert
that it was improper for the trial court to consider co-defendant’s rape and sexual offense
convictions when imposing sentence; and failed to object to the trial court’s comments, questions,
and considerations at sentencing thereby failing to preserve the issue for appellate review. ECF
No. 9-17 at 1-2 (Post-conviction court’s Statement of Reasons and Order). On June 22, 2015, postconviction relief was denied by the Circuit Court following a hearing on June 18, 2015. Id. at 3.
2
The content of the appellate court’s decision, as well as the post-conviction court’s decision, are discussed in
more detail infra.
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Petitioner’s July 21, 2015 application for leave to appeal the order denying post-conviction relief
was denied on June 21, 2016. ECF 9-1 at 13.
Here, by his Petition filed pursuant to 28 U.S.C. §2254, Petitioner claims that his trial
attorney was ineffective because counsel failed to litigate the issue of whether false imprisonment
and kidnapping would merge as a matter of law, and did not argue that the Blockburger3 evidence
test was the proper standard to apply to this case. ECF No. 1 at 5. Petitioner also asserts that the
trial court considered impermissible criteria when imposing his sentence; erred when the trial judge
was the same judge presiding over Richards’ trial which produced a decidedly different outcome;
and trial counsel should have moved for a mistrial based on the trial judge presiding over Richards’
trial. Id. at p. 7. Petitioner did not file a memorandum in support of his claims, nor did he file a
reply despite being provided the opportunity to do so. See ECF No. 2 at ¶ 3 (Show Cause Order).
II.
STANDARD OF REVIEW
An application for 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). The federal habeas statute at 28
U.S.C. § 2254 sets forth a Ahighly 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 (2005). The standard
is “difficult to meet,” and requires courts to give state-court decisions the benefit of the doubt.
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted);
see also White v Woodall, 572 U.S. 415, 419-20 (2014) (state prisoner must show state court ruling
on claim presented in federal court was “so lacking in justification that there was an error well
3
Though the petition references the “Blockbuster” evidence test, given the context and the issues presented by
Petitioner’s petition, the Court assumes this is a reference to the Supreme Court’s decision in Blockburger v. U.S., 284
U.S. 299 (1932).
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understood and comprehended in existing law beyond any possibility for fair minded
disagreement.”) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
A federal court may not grant a writ of habeas corpus unless the state’s adjudication on the
merits: 1) Aresulted 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)
Aresulted 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 § 2254(d)(1)’s “unreasonable application” analysis, 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, 562 U.S. at 101 (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 quotation marks
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 state court
decision was based on an unreasonable determination of the facts. Id. “[A] federal habeas court
may not issue the writ simply because [it] concludes in its independent judgment that the relevant
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state-court decision applied established federal law erroneously or incorrectly.” Renico v. Lett,
559 U.S 766, 773 (2010).
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.
III.
DISCUSSION
When a petitioner alleges a claim of ineffective assistance of counsel, he must show both
that counsel's performance was deficient and that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The second prong requires the Court to
consider whether there 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
adequacy attaches to counsel's conduct, and a petitioner alleging ineffective assistance of counsel
must show that the proceeding was rendered fundamentally unfair by counsel's affirmative
omissions or errors. Id. at 696.
As the Supreme Court held in Strickland, "a state court conclusion that counsel rendered
effective assistance of counsel is not a finding of fact binding on the federal court to the extent
stated by [former] 28 U.S.C. ' 2254(d)[ now § 2254(e)(1)]." Id. at 698. Rather, "although state
court findings of fact made in the course of deciding an ineffectiveness claim are subject to the
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deference requirement of § 2254[(e)(1)], . . . both the performance and prejudice components of
the ineffectiveness inquiry are mixed questions of law and fact." Id. It follows, then, that §
2254(d)(1) applies to the state court's conclusion that the petitioner's trial counsel rendered
effective assistance of counsel and this Court may not grant relief on this claim as long as the state
court denied the claim based on a reasonable application of the Strickland standard to the facts
presented in the state court proceeding.
Petitioner claimed that his trial counsel did not effectively advocate for merger of the false
imprisonment conviction and the kidnapping conviction. The post-conviction court rejected this
claim, observing that trial counsel had zealously advocated for merger of these convictions. ECF
No. 9-17 at 8-10. The post-conviction court quoted at length counsel’s argument to the trial court.
Id. at 10. Indeed, counsel argued extensively:
Your Honor, relative to the issue of merger there is no doubt that the crimes of
false imprisonment and kidnapping merge. If we take the required elements test
and we look at what the elements are of each crime. The crime of kidnapping
calls for the defendant to have confined or detained the victim. Calls for the
defendant to move the victim from one place to another and what I think is kind
of repetitive, the third element that the defendant both confine and move the
victim against her will. That the defendant used force, threat of force, deception
to accomplish that confinement and detention and that the defendant be moved
without with the intent -- that the defendant move the victim with the intent to
carry or conceal.
False imprisonment defendant confined or detained the victim, an element of
kidnapping. False imprisonment, the victim was confined or detained against her
will, an element of kidnapping. False imprisonment that the confinement or
detention was accomplished by force, threat of force or deception, an element of
kidnapping. The two offenses merge. There is no question. They have the same
elements except the kidnapping has more elements than false imprisonment. It
is a lesser included offense.
What the State is trying to do is say that we have no doubt a lesser included
offense but during the course of this alleged two hour situation where Ms. Lessio
started out voluntarily getting into a car and a situation involved where she was
confined and acts were committed, that this somehow can bisect or dissect itself
into two separate offenses and it's impossible.
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I mean it would be as if there were a robbery where where (sic) the robber goes
up to the victim and hits the victim over the head and then bends down and picks
up wallet. And we say well there is an assault, we're going to sentence you for
the assault and the wallet had a thousand dollars in it so we're going to sentence
you for the maximum -- for the fifteen years for a theft and we're going to
sentence you for the ten years for the assault and we're going to give you 25
years. We're going to give you more than we could. We're going to sentence you
for two separate crimes.
It's like larceny. I mean, kidnapping like larceny is a continuing offense. I mean
by its very nature it is a continuing offense, that being that the defendant moved
the victim with the intent to carry or conceal. So the State is trying to say that
this kidnapping began or the false imprisonment began at some point then
stopped and turned into the other crime.
But Ms. Lessio was put in the car. She testified that when Mr. Lee hopped over
the back seat and began touching her in an untoward feeling that she asked him
to stop, that then a sexual- offense occurred. She was confined to that car. I
mean, she was confined against her will. Somebody according to her allegedly
was holding her down. The car was moving. She was being confined against her
will. All of the elements, she was being detained. She was being moved from
one place to another. She was being confined and with the intent of the
defendants at that point to do that and the State is trying to say well, that's one
offense and then the car stops and she gets out and then she's forced back into
the car that is another offense.
But. it's one continuing offense. There is -- I don't see how we can bisect them.
There's no question that they merge. The State is not happy that they merge so
the State is trying to bisect them. You can bisect virtually any crime that you
want that has more than one element and if there's any time difference then you
can say well we can sentence you for two or three different crimes.
ECF No. 9-8 at 20-23.
That the trial court ruled in favor of the State despite counsel’s efforts to persuade the court
otherwise does not render counsel’s performance ineffective for purposes of a Sixth Amendment
claim. The post-conviction court’s rejection of this claim was without error and does not present a
valid claim for federal habeas relief.
Petitioner’s assertion that trial counsel should have argued the Blockburger standard is
without merit. In Blockburger, the Supreme Court held that, “where the same act or transaction
13
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact which
the other does not.” 284 U.S. at 304. Blockburger thus applies where a single act violates more
than one statute. Here, the state courts determined that there were two distinct offenses which were
indicted separately.
The Maryland Court of Special Appeals addressed this merger claim in its opinion rejecting
the claimed error. The appellate court observed in pertinent part that:
“‘The doctrine of merger of offenses is premised in part on the Double Jeopardy
Clause of the Fifth Amendment of the U.S. Constitution.’” Jones-Harris v State,
179 Md. App. 72, 98 (2008) (quoting Abeokuto v. State, 391 Md. 289, 352-53
(2006)). The Double Jeopardy Clause guarantees “constitutional protection
against (l) a second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; (3) and multiple punishment
for the same offense.” Parks v. State, 287 Md. 11, 74-15 (1980) (citation
omitted)
The required evidence test is generally the appropriate test for determining
whether the different offenses at issue merge and are treated as one offense for
Double Jeopardy purposes. Dixon v. State, 364 Md. 209, 236 (2001) (citations
omitted). See also Sifrit v. State, 383 Md. ll6, 137 (2004); Holbrook v. State, 364
Md. 354,369-70 (2001); Veney v. State, 227 Md. 608, 613-14 (1962). Under the
required evidence test, “‘if all of the elements of one offense are included in the
other offense, so that only the latter offense contains a distinct element or distinct
elements, the former merges into the latter.’” McGrath v. State, 356 Md. 20, 23
(1999) (quoting Snowden v. State, 32l Md. 672, 617 (1991))
If the Court determines that a merger is required, “separate sentences are
normally precluded. Instead a sentence may be imposed only for the offense
having the additional element or elements.” McGrath, 356 Md. at 24 (citation
omitted); see also Miles v. State, 349 Md. 215, 220 (1998).
*****
Where each of the offenses, even though stemming from one episode, are
separately committed as the result of distinct acts or violations, separate
convictions and sentences are appropriate. State v. Boozer, 304 Md. 98, 105
(1985). “The courts of this country have had little difficulty in concluding that
separate acts resulting in separate insults to the person of the victim may be
separately charged and punished even though they occur in close proximity to
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each other and even though they are part of a single criminal episode or
transaction.” Id., see generally State v. Stouffer, 352 Md. 97 (1998) (discussing
when asportation for purpose of carrying out a crime will support a separate
conviction for kidnapping). Further, in Graham v. State, 117 Md. App. 280, 290
(1997), this Court determined that, because the jury found that there were “two
separate assaults, based on the evidence and instructions, such that there were
two separate insults to the person of the victim,” the trial court properly
sentenced appellant separately for two counts of assault.
The record and testimony from Lessio and Jenkins clearly demonstrates two
distinct acts. We agree with the State that the period when Lessio entered the car
and Jenkins came into the backseat with Lessio constituted the false
imprisonment. Serially, the kidnapping occurred after Lessio left the car and
attempted to stop the van by the park when Jenkins and Richards “brought [her]
back to the car” and carried her away to be assaulted and robbed. These two
events established two distinct acts and insults against Lessio. For these reasons,
we conclude that the crimes of false imprisonment and kidnapping are separate
and distinct crimes and accordingly merger was not required in this case.
ECF No. 9-12 at pp. 7, 10-11. The finding of fact that the false imprisonment and kidnapping
convictions pertained to separate and distinct acts is entitled to this Court’s deference. See 28
U.S.C. §2244(d)(2), see also Wood v. Allen, 558 U.S. 290, 301 (2010) (federal habeas court may
not find state court’s finding of fact unreasonable even if reasonable minds may differ on result).
Petitioner also claims that it was error for the same judge to preside over both his trial and
his co-defendant’s trial. This claim was not raised on direct appeal, but was raised in his postconviction petition in the context of an ineffective assistance of counsel claim. Petitioner also states
an ineffective assistance of counsel claim in this Court regarding this issue, asserting that counsel
erred when he did not move for a mistrial. The post-conviction court explained that “[t]he Court
of Appeals has noted that information acquired by a judge during a prior judicial proceeding
involving a co-defendant does not require disqualification in a defendant’s trial due to potential
prejudice.” ECF No. 9-17 at 11 (citing Boyd v. State, 321 Md. 69, 76 (1990)). Further, the postconviction court noted that Petitioner had failed to “set forth any evidence that the trial judge
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acquired specific information in the co-defendant’s case that would prevent the trial judge from
being fair and impartial.” Id.
Failure of trial counsel to make a motion that has no basis in fact or law does not constitute
a viable basis for an ineffective assistance of counsel claim. Under Strickland there must be “a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 694. The failure to make a frivolous motion or to make
ethically improper arguments does not establish that there was an unprofessional error, nor is there
a possibility that the result of the trial would have been different had the motion been made. See
Horne v. Peyton, 356 F.2d 631, 633 (4th Cir. 1966) (fact that counsel could have done more is
insufficient for reversal absent any showing of harmful consequences). The claim that having the
same trial judge preside over both Petitioner and Richards’ trials was error does not present a basis
for federal habeas relief.
Petitioner also assigns error to the trial court because, in his view, the judge considered the
outcome in Richards’ case when Petitioner was being sentenced. ECF No. 1. Petitioner raised this
claim on direct appeal. The Court of Special Appeals first noted that there was no objection raised
at the sentencing proceeding regarding the court’s comments and therefore Petitioner’s claim was
not properly preserved. ECF No. 9-17 at 12 (citing Ellis v. State, 185 Md. App. 522, 550 (2009)).
However, the appellate court noted that even had the claim been preserved, “the result would be
unchanged.” Id. at 13. The court explained that:
“‘[A] defendant's sentence should be individualized to fit the offender and not
merely the crime. Consequently, [a] defendant's sentence should be premised
upon both the facts and circumstances of the crime itself and the background of
the individual convicted of committing the crime.’” Ellis, 185 Md. App. at 552
(quoting Jennings v State, 339 Md. 675, 683 (1995)). See also State v.
Dopkowski, 325 Md. 671, 679 (1992). A trial judge may base his or her sentence
on “perceptions . . . derived from the evidence presented at the trial, the
demeanor and veracity of the defendant gleaned from his various court
16
appearances, as well as the data acquired from such other sources as the
presentence investigation or any personal knowledge the judge may have gained
from living in the same community as the offender.” Jennings,339 Md. at 68485 (citation omitted).
“[A] sentencing judge in a criminal proceeding is ‘vested with virtual boundless
discretion.’” Dopkowski, 325 Md. at 679 (quoting Logan v. State, 289 Md.
460,480 (1981)). A judge “is accorded this broad latitude to best accomplish the
objectives of sentencing-punishment, deterrence and rehabilitation.” Id. (citing
Johnson v. State, 274 Md. 536, 540 (1975)). Appellate review of a criminal
sentence in Maryland is “extremely limited.” Teasley v. State, 298 Md. 364, 370
(1984) (citations omitted).
There is nothing in the record to indicate that the sentencing judge impermissibly
took into account the convictions of Richards. Rather, the sentence relates to
[Petitioner’s] involvement in the crime. During sentencing the judge said, “the
Court does believe that [Petitioner's] involvement in this case made it possible
for the horrific sexual offenses to occur for which the co-defendant was found
guilty. So in essence I believe that he altered the nature of the interaction and
transformed it into a sexual interaction or nightmare.” The trial court believed
“that the circumstances accompanying this crime are of such unusual
aggravation that the punishment ought to be unusually severe.”
We agree. There is nothing to suggest that the sentencing judge's considerations
were impermissible or constituted an abuse of discretion as sentencing judges
are given very broad discretion.
ECF No. 9-12 at pp. 14-15. There is nothing in the Court of Special Appeals’ decision that suggests
it misapplied established federal law in rejecting this claim. Thus, the claim presented to this Court
does not state a claim for federal habeas relief.
Lastly, Petitioner asserts his sentence constitutes cruel and unusual punishment under the
Eighth Amendment. ECF No. 1. The Court of Special Appeals, in rejecting this claim, first noted
that:
Under the Eighth Amendment of the United States Constitution, “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” “The Eighth Amendment encompasses a narrow
proportionality principle prohibiting ‘grossly disproportionate’ sentences.” State
v. Stewart, 368 Md. 26, 31 (2002) (quoting Hamelin v. Michigan, 501 U.S. 957,
997 (1991) (Kennedy, J., concurring)). However, “[t]he Eighth Amendment
does not require strict proportionality between crime and sentence. Rather it
17
forbids only extreme sanctions that are grossly disproportionate to the crime.”
Ewing v. California, 538 U.S. 11, 23 (2003).
ECF No. 9-12 at 15. The court noted that the trial judge not only has virtually boundless discretion
in imposing a sentence due to his unique position of being informed of the particular circumstances
of the case and the ability to evaluate individuals before the court, but in this instance was correct
in its observation that Petitioner “made it possible for the horrific sexual offenses to occur.” Id. at
17-18. The court then concluded that “[g]iven the cruel and degrading nature of the crime and
[Petitioner’s] involvement, the sentence does not appear to be ‘truly egregious.’” Id. at 18.
Nothing in the appellate court’s decision indicates that its conclusion was an unreasonable
application of well-established law. Petitioner has failed to present a viable Eighth Amendment
claim regarding his sentence. Federal habeas relief will be denied on this claim.
IV.
CONCLUSION
A certificate of appealability may issue Aonly if the applicant has made a substantial
showing of the denial of a constitutional right.@ 28 U. S.C. ' 2253(c)(2); see Buck v. Davis, 137
S.Ct. 759, 773 (2017). The petitioner “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (citation and internal quotation marks omitted), or that “the issues
presented are adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). Because this Court finds that there has been no substantial showing of the
denial of a constitutional right, a certificate of appealability shall be denied. See 28 U. S.C.§
2253(c)(2). Petitioner may still request that the United States Court of Appeals for the Fourth
Circuit issue such a certificate. See Lyons v. Petitioner, 316 F.3d 528, 532 (4th Cir. 2003)
(considering whether to grant a certificate of appealability after the district court declined to issue
one).
18
A separate Order denying and dismissing the Petition and declining to issue a certificate of
appealability follows.
February 21, 2019
Date
____/s/________________________
GEORGE J. HAZEL
UNITED STATES DISTRICT JUDGE
19
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