Yates v. Bishop
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 10/10/2019. (c/m 10/11/2019 heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WARREN JEROME YATES, #360364
FRANK B. BISHOP, JR. and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Civil Action No. PX-16-3437
Petitioner Warren Jerome Yates challenges his 2009 conviction in the Circuit Court for
Baltimore County for second degree felony murder and related offenses pursuant to 28 U.S.C. §
2254, primarily contending that he received ineffective assistance of counsel. ECF No. 1. The
Petition is ready for resolution and the Court has determined it need not hold a hearing. See Loc.
R. 105.6; see also Rule 8(a), Rules Governing Section 2254 Cases in the United States District
Courts; Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under
28 U.S.C. § 2254(e)(2)). For the following reasons, the Court denies the Petition and declines to
issue a certificate of appealability.
Yates, along with his co-defendant Donald Kohler, stood trial for felony murder and drug
distribution offenses arising from an incident that occurred on January 7, 2009. The evidence at
trial demonstrated that Kohler had purchased four pounds of marijuana from Yates. Kohler gave
cash in a bag in exchange for the marijuana. After Kohler left, Yates discovered the cash was
counterfeit and chased after Kohler. Id. at 1074. Witnesses testified to having seen Yates run after
Kohler into an alley, heard gunshots, and then saw Yates running back toward them. Yates then
got into a car with another individual, to whom Yates ultimately disclosed that he had fired the
gun shortly before. ECF No. 12-11 at p. 130-32 (Tx. 10/8/2009). A single shot hit and killed
bystander Shirley Worcester.
A jury sitting in the Circuit Court for Baltimore County convicted Yates of second degree
felony murder, using a handgun during the commission of a violent crime, drug trafficking with a
firearm, marijuana distribution, conspiracy to distribute marijuana, and first-degree assault. On
December 7, 2009, the Circuit Court sentenced Yates to 95 years’ confinement. See Yates v. State,
33 A. 3d 1071, 1074 (Md. App. 2011).
Yates appealed his convictions, challenging the admission of certain hearsay statements,
the sufficiency of the evidence on the felony murder and handgun offenses, and substantive jury
instructions. Yates, 33 A. 3d at 1071. On December 22, 2011, the Court of Specials of Maryland
affirmed the convictions in a reported opinion. Yates, 33 A. 3d at 1072; see also ECF No. 12-3.
Thereafter, the Court of Appeals of Maryland affirmed the decision of the Court of Special
Appeals. Yates v. State, 55 A.3d 25 (Md. 2012).
On October 22, 2013, Yates moved for post-conviction relief in the Circuit Court for
Baltimore County, raising eighteen claims of ineffective assistance of counsel. The Circuit Court
for Baltimore County held a hearing on the Petition for Post-Conviction Relief and, by order filed
on June 26, 2015, denied relief except as to whether trial counsel was ineffective for failing to file
a timely motion for a new trial. Yates was permitted to file a belated motion for new trial. ECF
No. 12-7 at p. 21. Yates applied for leave to appeal the denial of post-conviction relief which the
Court of Special Appeals denied on July 28, 2016. ECF Nos. 12-8, 12-9.
Yates next filed his federal habeas petition on October 14, 2016. ECF No. 1. In it, Yates
presses only two of the ineffectiveness claims raised previously: that counsel was ineffective for
failing to (1) request voir dire questions concerning juror biases regarding handgun use and
narcotics offenses; and (2) move for judgment of acquittal sufficient to preserve certain arguments
for appeal regarding sufficiency of evidence. ECF No. 12-7 at pp. 3 ¶4, 4 ¶ 12. Because neither
is availing, the Petition must be denied.
Standard of Review
This Court may grant a petition for a writ of habeas corpus only to address violations of
the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal court reviewing a
habeas petition that a state court has adjudicated previously must give “considerable deference to
the state court decision,” and may not grant habeas relief unless the state court arrived at 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 ‘a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’” Nicolas v. Att’y Gen. of Md., 820 F.3d 124, 129 (4th Cir. 2016)
(quoting 28 U.S.C. § 2254(d)). In reviewing the Petition, the Court “must presume that the state
court’s factual findings are correct unless the petitioner rebuts those facts by clear and
convincing evidence,” and “cannot disturb the state court’s ruling simply because it is incorrect;
it must also be unreasonable.” Id.
For a state court’s decision to be contrary to established federal law, the state court must
have arrived at a conclusion contrary to the United States Supreme Court on a question of law or
must have confronted facts that are “materially indistinguishable from a relevant Supreme Court”
case but nevertheless arrived at the opposite result. Williams v. Taylor, 529 U.S. 362, 405
(2000); see Lovitt v. True, 403 F.3d 171, 178 (4th Cir. 2005); Barnes v. Joyner, 751 F.3d 229,
238 (4th Cir. 2014). As to an unreasonable determination, a federal court “may not issue the writ
simply because that court concludes in its independent judgment that the relevant state-court
decision applied established federal law erroneously or incorrectly.” Lovitt, 403 F.3d at 178
(quoting Williams, 529 U.S. at 411). Rather, the Petitioner show that the state court’s ruling was
“so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Barnes, 751 F.3d at 238 (quoting
White v. Woodall, 572 U.S. 415, 419–20 (2014)).
At base, for a § 2254 claim to be cognizable, the petitioner must assert a violation of
federal statutory law or of the United States Constitution. See Wilson v. Corcoran, 562 U.S. 1, 1
(2010); Larry v. Branker, 552 F.3d 356, 368 (4th Cir. 2009) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”) (quoting Estelle v. McGuire, 502 U.S. 62,
67–68 (1991)). “The role of a federal habeas court is to guard against extreme malfunctions in
the state criminal justice systems, not to apply de novo review of factual findings and to
substitute its own opinions for the determinations made on the scene by the trial judge.” Davis v.
Ayala, 135 S. Ct. 2187, 2202 (2015) (internal marks and citations omitted).
Every accused enjoys the Sixth Amendment right to “the effective assistance of counsel.”
Garza v. Idaho, 139 S. Ct. 738, 743-44 (2019) (citing Strickland v. Washington, 466 U.S. 668, 686
(1984)). Challenges to the effectiveness of criminal counsel are reviewed under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Pursuant to Strickland, a petitioner must
demonstrate both that his counsel’s performance was deficient, and that the deficient performance
prejudiced his defense. Strickland at 687. A strong presumption of adequacy attaches to counsel’s
conduct such that a petitioner alleging ineffective assistance must show that the proceeding was
rendered fundamentally unfair due to counsel’s errors. Id. at 689, 700. “A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689.
In the context of a Strickland claim previously litigated in state court, a petitioner also must
show that the state court’s determination was contrary to or involved an unreasonable application
of clearly established Federal law, or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). “State court findings of
fact made in the course of deciding an ineffectiveness claim” are presumptively correct.
Strickland, 446 U.S. at 698; see also 28 U.S.C. § 2254(e)(1). A petitioner must rebut this
presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “The
standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two
apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (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.
Yates contends that counsel was ineffective in failing to conduct adequate voir dire and in
failing to raise certain arguments for judgment in his favor at the close of the evidence. ECF No.
1 at p. 6; No. 1-1 at pp. 3-4, 17. The Court addresses each ground separately.
Voir Dire Questions
Yates faults trial counsel for failing to ask the jury venire about biases regarding handgun
use and violations of narcotics laws. ECF No.1-1; ECF No. 1 at p. 6. Yates maintains that such
questions aim “directly at biases related to [his] alleged criminal acts, which when uncovered, will
disqualify a juror if the bias is so strong as to impair the juror’s impartiality.” See Thomas v. State,
775 A.2d 406, 414 (Md. Ct. Sp. App. 2001), aff’d, 798 A.2d 566 (Md. App. 2002), abrogated by
Pearson v. State, 86 A.3d 1232, 1241-1242 (Md. App. 2014). Yates also argues that the postconviction court’s contrary determination constitutes an unreasonable application of Strickland.
In rejecting Yates’ arguments, the post-conviction court relied on Curtin v. State, 903 A.2d
922 (App. Md. 2006). ECF No. 12-7 at p. 7. In Curtin, the defendant argued that he did not
participate in an alleged robbery, and alternatively, that a fake gun was used to commit the robbery,
precluding criminal liability. The defendant challenged the trial court’s refusal to ask about
whether potential jurors harbored any biases regarding use of handguns. Disagreeing with the
defendant, the Curtin court reasoned that the jury’s determination was limited to accepting or
rejecting the State’s evidence demonstrating the gun was used in the commission of the crime.
ECF No. 12-7 at pp. 4-8. Accordingly, because the Curtin jurors did not need to determine whether
the Defendant possessed the gun or even used the gun, any biases harbored toward individuals
who used handguns would have no bearing on the deliberations. ECF No. 12-7 at p. 7.
In Yates’ case, the post-conviction court reasoned that “[l]ike the Defendant in Curtin,
[Yates] maintained he was not the person who shot the victim,” and thus “the jury was charged
with accepting or rejecting whether [Yates] used a gun during the commission of certain crimes.”
Accordingly, “[w]hether a venireperson had strong feelings about handguns,” the court concluded
“would not render that person more or less likely to convict Petitioner of the charges.” Given the
facts of the case and defense, the failure to request a question about biases about handgun use , did
not amount to ineffectiveness of counsel in the court’s view. Id. at p. 8.
With regard to counsel failing ask the venire about their views on the drug laws, the postconviction court likewise highlighted that Yates had defended the distribution of marijuana charge
on similar grounds – that he was not the person who had distributed the drugs. ECF No. 12-7 at
9. “[T]he jurors were only required to determine whether they accepted the State’s evidence that
Petitioner, and not someone else, was the person who was distributing marijuana.” Id. The Court
concluded that Yates could not demonstrate counsel was ineffective for failing to ask a voir dire
question of marginal relevance.
On this record, this Court finds no grounds to upset the post-conviction court’s
determination that Yates received constitutionally adequate representation, even though counsel
did not request these particular voir dire questions.6 The record also flatly contradicts Yates’
assertion that trial counsel failed to participate in voir dire. In fact, Yates’ trial counsel participated
Yates argues at length that Thomas v. State compels a different result. ECF No. 13 at 10. This Court disagrees.
Strictly speaking, Thomas involves the application of state law, and does not directly implicate the standard for
assessing adequacy of counsel under the Sixth Amendment. Contrary to Yates’ urging, see ECF No. 13 at 11, this
Court need not, nor should not, attempt to determine whether the state post-conviction court correctly interpreted
state law. See Larry v. Branker, 552 F.3d 356, 368 (4th Cir. 2009) (“[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”) (quoting
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)).
actively in jury selection and joined in side bar discussions during the process. ECF No. 12-10 at
pp. 15, 17, 18, 34, 68, 72, 91, 108, 121, 123, 124, 125, 128, 130, 132-148, 151-152. Potential
jurors were also asked about whether they had been either victims of or witness to violent crime,
and about their ability to be fair and impartial. ECF No. 12-10 at pp. 89, 95-96, 102-103, 115,
119. Thus, the post-conviction court rightfully saw no grounds upon which counsel’s failure to
press Yates’ questions of choice rendered the representation constitutionally deficient.
Under these circumstances, the Court finds that Yates has not demonstrated the state court
decision to be contrary to, or an unreasonable application of, clearly established Federal law, or
was based on an unreasonable determination of the facts in light of the evidence presented to the
state court. See 28 U.S.C. § 2254(d)(1)-(2). The Petition must be denied as to this claim.
B. Motion for Judgment of Acquittal
Defense counsel moved for judgment of acquittal on all counts at the conclusion of the
state’s case. Regarding the felony murder offense, counsel argued that no evidence demonstrated
that the shooting death of Worcester and distribution of marijuana offenses were related, thus
compelling acquittal. ECF No. 12-11 at pp. 237-238 (Tr. Tx. 10/8/2009). The Court denied the
motion. Counsel then renewed the motion at the close of evidence, arguing broadly that events
occurring after the distribution offense could not support the felony murder charge. ECF No. 1212 at pp. 45-47. Counsel further argued that the state produced insufficient evidence to put the
case to the jury. Id. at pp. 47, 62. The trial court denied the second motion for acquittal. Id. at p.
At the post-conviction phase, the court determined that the motion for judgment of acquittal
reached all counts and that the arguments in support fell within “the range of reasonably
professional competent assistance.” ECF No. 14-4 at pp. 18-19. The court further noted that Yates
did not prevail because sufficient evidence existed to support the verdict on all counts. Id.
This Court finds no ground on which to upset the post-conviction court’s conclusions.
Nothing in the record demonstrates that the state court’s decision was contrary to, an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States or was based on an unreasonable determination of the facts in light of the evidence presented
to the state court in order to warrant the award of federal habeas corpus relief. See 28 U.S.C. §
2254(d)(1)-(2). Accordingly, the Petition must be denied on this ground.
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.” To obtain a certificate of appealability, a habeas petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Buck v. Davis,
137 S. Ct. 759, 773 (2017); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). When a district
court rejects constitutional claims on the merits, a petitioner satisfies this standard by
demonstrating that “jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Buck, 137 S. Ct. at 773 (citation omitted).
Yates has not made the requisite showing. Accordingly, the Court declines to issue a
certificate of appealability. Yates may still request that the United States Court of Appeals for the
Court issue such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003).
For the foregoing reasons, the Petition is denied. A separate Order follows.
October 10, 2019
United States District Judge
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