Shim v. Bishop et al

Filing 11

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/25/2018. (c/m 6/25/2018 heps, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

FABIAN SHIM,
Petitioner,
v.
Civil Action No. TDC-16-3979

FRANK B. BISHOP, JR., Warden, and
ATTORNEY GENERAL OF
THE STATE OF MARYLAND,
Respondents.

MEMORANDUM OPINION
Fabian

Shim, currently

confined

at the North Branch Correctional

Institution

in

Cumberland, Maryland, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
~ 2254. The Petition challenges Shim's 2013 conviction in the Circuit Court for Prince George's
County, Maryland for first degree murder. At the Court's request, Respondents filed an Answer
to the Petition, and Shim filed a Reply to the Answer.

For the reasons set forth below, the

Petition is denied and dismissed.
BACKGROUND
On April 18, 2013, Shim was convicted by a jury in the Circuit Court for Prince George's
County of first degree murder.

He was sentenced on June 25, 2013 to life imprisonment.

On

appeal to the Court of Special Appeals of Maryland, Shim argued that: (l) the trial court erred in
limiting the scope of re-cross examination of Michael Stewart, a prosecution witness; and (2) the
trial court erred in admitting into evidence several prior consistent statements of two witnesses,
Selwyn Alleyne and Valerie Nichols. On April 13,2016, the Court of Special Appeals affirmed

Shim's conviction.

Shim raised the same claims in a Petition for Writ of Certiorari to the Court

of Appeals of Maryland, which was denied on July 12,2016.
On November 10, 2016, Shim submitted the instant Petition, which was received and
docketed by this Court on December 13, 2016.
2016, it is deemed filed as of that date.

Because the Petition is dated November 10,

See Houston v. Lack, 487 U.S. 266, 275-76 (1988)

(holding that a prisoner's filing shall be deemed to have been filed on the date it was deposited
with prison authorities for mailing); United States v. Dorsey, 988 F. Supp. 917, 919-20 (D. Md.
1998) (citing Houston).

DISCUSSION
In the Petition, Shim presents the same arguments he raised before the Court of Special
Appeals of Maryland.

Specifically, he asserts that: (1) the trial court erred in limiting the scope

of Stewart's re-cross examination; and (2) the trial court erred in admitting into evidence several
prior consistent statements of Alleyne and Nichols. According to Shim, both errors violated his
right to due process of law under the Fifth and Fourteenth Amendments to the United States
Constitution.

Respondents assert that the Petition should be denied because Shim's claims do

not assert a cognizable basis for federal habeas relief, one claim cannot be considered based on
the doctrine of procedural default, and the state court properly decided the claims.

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 "giv(ing] the state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the State's
established appellate review process."

O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Here,

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Shim filed raised his claims on direct appeal to the Court of Special Appeals.

When his

conviction was affirmed, he sought and was denied further review of these claims by the Court
of Appeals of Maryland. Thus, he has exhausted state court remedies.
II.

Legal Standard
A petition for a writ of habeas corpus may be granted only for violations

Constitution or laws of the United States. 28 U.S.C.

S 2254(a).

of the

The federal habeas statute sets

forth a highly deferential standard for evaluating state court rulings, under which state court
decisions are to "be given the benefit of the doubt."

Bell v. Cone, 543 U.S. 447, 455 (2005);

Lindh v. Murphy, 521 U.S. 320,333 n.7 (1997). A federal court may not grant a writ of habeas
corpus unless the state court'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 United States Supreme Court; 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.

S

2254(d).

"[A] 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, 599 U.S 766, 773 (2010).

The state court's

application

of federal law must be "objectively

unreasonable."

Id.

Furthermore, under

S 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). The fact that "reasonable minds reviewing the record
might disagree about the finding in question" is not enough to deem a state court's factual
determination unreasonable.

Id.

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The relevant state court determination

for review is the last "explained"

state court

decision to consider the claim. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). Here, that
decision is the opinion of the Court of Special Appeals of Maryland on direct appeal. See Shim
v. State, No. 0940 (Md. Ct. Spec. App. Apr. 13, 2016). Shim's claims for federal habeas relief
will therefore be reviewed in the context of the analysis of the Court of Special Appeals on the
same claims asserted here.
III.

Re-Cross Examination
Shim first argues that the trial court erred by barring certain questions on re-cross

examination of Stewart, a witness who generally testified that he found the body of the deceased
victim when he came to work.

On direct examination, the prosecution elicited testimony that

Stewart had pending charges for murder, possession of a controlled dangerous substance, and
possession of a handgun, but that he did not receive any benefit or promise of any benefit
relating to those charges in exchange for his testimony in Shim's case. On cross examination,
defense counsel asked no questions about those pending charges but instead focused only on
Stewart's observations regarding a vehicle that he saw at his workplace the night before he
discovered the victim's body.

On redirect examination, the prosecution asked only a single

question, whether it was possible that Stewart saw that vehicle but not its "special license plate
and body damage," to which Stewart responded, "That's a possibility."

4/11/13 Trial Tr. at 20,

ECF No. 6-5. When defense counsel then sought to question Stewart about his prior convictions
during re-cross examination, the trial court sustained the prosecution's objection, concluding that
although it would have allowed such questioning on cross examination, defense counsel had
made the tactical decision not to pursue the issue on cross examination, and it went beyond the
scope of redirect examination.

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Respondents first argue that this claim is not cognizable for review by this Court because
it does not allege a violation federal law. For a claim of relief under presented under

S 2254

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) (declining to consider a habeas claim regarding the reliability of DNA
evidence because ofthe failure to allege a violation of a federal right). Although Shim generally
asserted in his Petition that the limitation on re-cross examination violates his due process rights
under the Fifth and Fourteenth Amendments, he did not articulate specifically how the limitation
violated those provisions.

However, in his Reply, Shim cited federal case law and specifically

invoked the Confrontation Clause of the Sixth Amendment to the United States Constitution.
Similarly, he referenced the Confrontation Clause and federal case law in his brief to the Court
of Special Appeals. Accordingly, the Court declines to dismiss this claim as not cognizable.
On the merits, however, Shim's claim fails.

In his federal constitutional claim, Shim

cites United States v. Caudle, 606 F.2d 451 (4th Cir. 1979), in which the court held that "[t]o
deny re-cross examination on matter first drawn out on redirect is to deny the defendant the right
of any cross-examination

as to that new matter."

Id. at 458.

He also invokes United States v.

Riggi, 951 F.2d 1368 (3d Cir. 1991), in which the court held that "[w]hen material new matters
are brought out on redirect examination, the Confrontation Clause of the Sixth Amendment
mandates that the opposing party be given the right of recross-examination

on those new

matters." Id. at 1375 (citation omitted). In denying Shim's claim on direct appeal, however, the
Court of Special Appeals found that after the prosecution's
examination

relating to Stewart's

observations

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single question on redirect

of the vehicle, the trial court would have

permitted re-cross examination on that topic.

This finding was reasonable.

See 28 U.S.C.

S

2254(d); Renico, 599 U.S at 773. Thus, there was no denial of the opportunity to question the
defendant about any "new matter" first raised on redirect examination that arguably could
implicate federal constitutional rights.
Rather, the Court of Special Appeals concluded that the trial court properly exercised its
discretion to bar questioning about Stewart's prior criminal convictions because that topic was
beyond the scope of direct examination.

Under Maryland Rule 5-611, cross-examination

is

generally "limited to the subject matter of the direct examination and matters affecting the
credibility of the witness." Md. Rule 5-611(b)(1).

This rule mirrors Federal Rule of Evidence

611, which limits the scope of cross examination to "the subject matter of the direct examination
and matters affecting the witness's credibility."

Fed. R. Evid. 611(b).

Although Stewart's

pending criminal charges could relate to his credibility, defense counsel was afforded the
opportunity to question on that topic on cross examination.

The Court of Special Appeals'

conclusion that such a topic was properly excluded from re-cross examination when redirect
examination did not address that issue was a reasonable reading of the Maryland Rules of
Evidence, and, by extension, its broader conclusion that this claim did not warrant a new trial, for
constitutional reasons or otherwise, was reasonable.

See 28 U.S.C.

S 2254(d);

Renico, 599 U.S

at 773. Shim has offered no new basis upon which to conclude that such a denial of re-cross
examination as beyond the scope of redirect examination would violate either the Confrontation
Clause or the Due Process Clause. Accordingly, the Court will deny the Petition as to Shim's
claim relating to re-cross examination.

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IV.

Prior Consistent Statements
Second, Shim claims that the trial court's decisions to permit the prosecution to elicit

testimony about prior consistent statements of two witnesses, Alleyne and Nichols, violated his
constitutional rights.

Specifically, Shim contends that the trial court should not have admitted

the prior consistent statements because the witnesses made those statements after the motive to
fabricate arose.
Alleyne, who was Shim's friend, testified that on Friday, November 10, 2006, the night
of the murder, he drove Shim to two Federal Express facilities before dropping him off at
another location to pick up his friend's BMW.

On cross examination, Alleyne acknowledged

that he had told the police six months after the murder that he had dropped Shim off to pick up
the BMW earlier in the week and that he did not remember what specific day he drove Shim to
the Federal Express locations, and that prior to giving these statements, the police told him that
he should cooperate or he would be charged with crimes relating to the murder. During redirect
examination, the prosecution attempted to elicit a prior consistent statement from Alleyne, to
which Shim objected because that statement was given after Alleyne was interrogated by the
police and, therefore, had a motive to fabricate. The trial court sustained Shim's objection after
noting that the prosecution's

question was too vague.

The prosecution then elicited from

Alleyne, without objection, that he had dropped Shim off to pick up the BMW both on
November 10, 2006 and at an earlier point mid-week.
At trial, Nichols testified that Shim, who was her fiance, had previously threatened to kill
her.

During cross examination, Nichols admitted that she had told the grand jury that other

people heard Shim threaten to kill her, a fact which was notable because at trial, no one else
testified to having heard the threat.

On redirect examination, the prosecution elicited from

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Nichols, over defense counsel's objection, testimony that she had told the grand jury about
Shim's threat.

Defense counsel argued that her statement to the grand jury was not a prior

consistent statement because her grand jury testimony occurred after a dispute had arisen
between Shim and Nichols over $5,000, which Shim alleged was Nichols's motive to testify
falsely. However, the court ruled that where defense counsel had elicited a certain statement that
Nichols made to the grand jury relating to the threat, Nichols's prior consistent statement to the
grand jury was admissible under the doctrine of verbal completeness.
Nichols had also acknowledged on direct examination that she had not been completely
accurate when she spoke to the police on November 11, 2006, because she was stressed and
confused.

When she admitted under cross examination that her trial testimony that Shim

returned home at 2:30 a.m. on November 11, 2006 differed from what she initially told police
about the time when Shim returned home that night, the prosecution elicited testimony on
redirect examination that she had told the grand jury the same account she told at trial, and that
she had told the police certain details she did not state to the grand jury.

Although defense

counsel objected on the grounds that these statements were similarly made after Nichols had a
motive to fabricate, the court allowed the testimony under Maryland Rule 5-616, which provides
that a "witness whose credibility has been attacked may be rehabilitated by ...

evidence of the

witness's prior statements that are consistent with the witness's present testimony, when their
having been made detracts from the impeachment."
A.

Md. Rule 5-616(c)(2).

Procedural Default

First, Shim's claim regarding the admission of Alleyne's prior consistent statement has
been procedurally defaulted.

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

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procedural rule provides an independent and adequate ground for dismissal."

Breard v. Pruett,

134 F.3d 615,619 (4th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722,731-32

(1991)).

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 v.

Carrier, 477 U.S. 478, 494-95 (1986); 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."
U. S. at 495-96.

Murray, 477

'''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. Delo, 513 U.S. 298, 324 (1995)).
On direct appeal, the Court of Special Appeals denied Shim's claim regarding Alleyne's
statement on the grounds that it was not properly preserved. That court noted that the trial court
sustained Shim's initial objection, but Shim failed to preserve his argument when he did not ask
for a continuing objection and did not object to the State's further questioning that elicited the
prior consistent statement.

Specifically, the court invoked Maryland Rule 4-323(a), which

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provides in relevant part that "[a]n objection to the admission of evidence shall be made at the
time the evidence is offered or as soon thereafter as the grounds for objection became apparent.
Otherwise, the objection is waived."

Md. Rule 4-323(a).

It also relied on Maryland Rule 8-

131(a), which provides that "[0 ]rdinarily, the appellate court will not decide any other issue
unless it plainly appears by the record to have been raised in or decided by the trial court." Md.
Rule 8-131(a).

Because the Court of Special Appeals decided this issue based on an adequate

and independent state law ground, habeas review is barred as to that claim. See Coleman, 501
U.S. at 729-30 (holding that where the defendant failed to satisfy a state procedural requirement,
habeas review is unavailable because that procedural determination rests on an independent and
adequate state ground).
Neither exception to the procedural default bar applies.

As to cause and prejudice,

nothing in the record suggests that Shim's procedural default was due to external circumstances.
Shim also presents no new evidence to support his claim of innocence.

Where Shim has

provided no basis for excusing his procedural default, the Court will dismiss the prior consistent
statement claim relating to Alleyne as procedurally defaulted.

B.

Cognizability

Although

Shim raised a federal constitutional

argument

relating

to the re-cross

examination claim, he has not done so for the prior consistent statement claims.

Other than

mentioning federal due process rights, Shim relies primarily on the Maryland Rules of Evidence
and does not offer any legal basis to support the claim that the admission of prior consistent
statements violated federal rights.
constitutional deprivation."

Thus, he has not met his "burden of showing a substantial

Clayton v. Haynes, 517 F.2d 577, 578 (4th Cir. 1975) (stating that it

was error for the district court to grant relief based upon nothing more than allegations in the

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petition).

Shim's reference to the Federal Rules of Evidence and federal case law interpreting

those rules is of no consequence, because his state trial was plainly governed by the Maryland
Rules of Evidence. See Md. Rule 5-l01(a) (stating that the Maryland Rules of Evidence "apply
to all actions and proceedings in the courts of this State").
Moreover, Shim did not reference due process or other federal rights when he raised the
prior consistent statement claims on direct appeal, instead relying entirely on state rules of
evidence and state case law. Accordingly, the Court of Special Appeals did not address federal
rights in denying those claims.

Under these circumstances,

the Court finds that the prior

consistent statement claims do not raise a cognizable claim for relief through a federal habeas
petition. See Spencer, 18 F.3d at 239 n.5 (stating that a district court does not entertain a claim
for federal habeas relief where no federal constitutional claim on the issue was presented on
direct appeal to the state's highest court).
In any event, the Court notes that, based on a review of the record, the Court of Special
Appeals'

conclusion

that the trial court properly admitted the prior consistent

statements

pursuant to Maryland Rule 5-616 was not an unreasonable application of the law. See 28 U.S.C.
~ 2254(d); Renico, 599 U.S at 773.
Nichols's

testimony

challenged

As the Court of Special Appeals noted, the portions of

by Shim were admissible

under the doctrine

of verbal

completeness and to rehabilitate the witness's credibility as authorized by Maryland Rule 56l6(c)(2).
V.

Certificate of Appealability
Rule ll(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.

Because the accompanying

11

Order is a final order adverse to the

applicant, 28 U.S.C.

S

2253(c)(l)

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."

S

28 U.S.C.

2253(c)(2).

When a district court rejects

constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that
"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, the Court finds that Shim has not made the requisite showing to warrant a
certificate of appealability and thus declines to issue one. Shim 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 denies and dismisses the Petition for Writ of Habeas
Corpus with prejudice and declines to issue a certificate of appealability.

A separate Order shall

Issue.

Date: June 25, 2018

yg; .~-~ ..
THEODORE CHUA;
D.
United States District Judge

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