Matthews v. Bishop et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paula Xinis on 12/12/2019. (c/m 12/13/2019 heps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARRELL MATTHEWS, #370-2931
Petitioner.
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v.
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FRANK BISHOP, Jr., Warden, et al.,
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Respondents.
Civil No. PX-17-0036
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MEMORANDUM OPINION
Darrell Matthews brings this habeas corpus petition pursuant to 28 U.S.C. § 2254,
challenging his 2011 murder conviction primarily on the grounds that he received ineffective
assistance of counsel. ECF No. 1. The Petition is ready for resolution and no hearing is necessary.
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). For the following reasons, the
Court denies the Petition and declines to issue a certificate of appealability.
I.
Background
In May 2011, Petitioner Matthews stood trial for first-degree attempted murder, first-
degree assault, and weapons offenses in the Circuit Court for Montgomery County. The evidence
at trial2 demonstrated that on August 15, 2009, Matthews shot Augustus Williams, Jr. in the
shoulder and chest at close range. Williams identified his assailant as Matthews to a bystander
who rendered first aid. An acquaintance of Matthews, Antoine Johnson, also identified Matthews
as the shooter. ECF No. 6-2 at 132–134, 140–144, 183, 186, 189–192, 229, 234–236. The State
1
Petitioner is also known as Darryll Matthews. See Matthews v. State, 432 Md. 469 (2013).
Matthews’s second trial is the subject of this opinion. His first trial ended in a mistrial because of juror
misconduct. See State v. Matthews, Case No. 114155C (Mont. Cty. Cir. Ct.),
http://casesearch.courts.state.md.us/casesearch/inquiry (last viewed Oct. 25, 2019).
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also admitted cell site evidence to corroborate Matthews whereabouts at the time of the shooting.
ECF No. 6-2 at 76–79, 85–87.
Matthews was tried before a jury who found him guilty on all counts. On July 21, 2011,
the Circuit Court sentenced Matthews to life imprisonment on the attempted first degree murder
conviction; a consecutive twenty-year term for the use of a handgun during the commission of the
crime; and two consecutive five year terms for possession of a regulated firearm by a prohibited
person. ECF No. 6-6 at 19. Matthews appealed his convictions, challenging the denial of merger
as to the two firearm offenses as well as the trial court’s refusal to declare a mistrial after the jurors
announced a deadlock in deliberations. See Matthews v. State, No. 1442 (unreported, Sept. Term
2011, Feb. 22, 2013); see also ECF No. 6-9. The Maryland Court of Special Appeals vacated one
of Matthews’s convictions for possession of a regulated firearm but otherwise affirmed the
judgment in an unreported opinion. Id. The Maryland Court of Appeals denied further review on
July 5, 2013. Matthews v. State, 432 Md. 469 (2013).
On October 3, 2014, Matthews moved for post-conviction relief in the Circuit Court for
Montgomery County, contending that trial counsel provided ineffective assistance based on an
array of omissions, including failure to request DNA and GSR testing on evidence found at the
scene; failure to seek suppression of victim identification testimony and to introduce Antoine
Johnson’s prior out-of-court signed statement; failure to seek a lesser-included-offense jury
instruction and missing witness instruction; failure to object to the state’s closing argument; and a
variety of claimed errors related to deliberations and sentencing. Matthews also challenged the
effectiveness of appellate counsel for failing to raise on appeal the propriety of State’s closing
argument referencing witnesses who did not testify at trial. ECF No. 6-10 at 4–11, 14–20, 11–13.
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After a hearing, the Montgomery County Circuit Court denied relief except as to whether
trial counsel was ineffective for failing to file for review of sentence. The Court granted Matthews
leave to seek review of sentence within thirty days from the date of its order. ECF No. 6-10 at 21.5
On August 12, 2015, Matthews requested that Court of Special Appeals review his claims
of ineffective assistance based on: (1) trial counsel’s failure to request a jury instruction on a lesser
included offense of second-degree attempted murder; (2) counsel’s waiver of Matthews’ personal
appearance in court to address a jury note; and (3) the failure to object to aspects of the State’s
closing argument. ECF No. 6-11 at 8. On February 4, 2016, the Court of Special Appeals ordered
the State to address whether the post-conviction court erred by not finding counsel ineffective for
failure to object or otherwise attempt to cure the State’s remarks in rebuttal regarding Matthews’
failure to call any witnesses. ECF No. 6-12 at 1. The State, in response, singularly argued that
Matthews’ application for leave to appeal was time-barred and generally meritless. ECF No. 612. Although the Court of Special Appeals rejected that the petition was time barred, it nonetheless
summarily denied the application for leave to appeal. ECF No. 6-14.
Matthews thereafter filed a timely federal habeas Petition in this Court, arguing that the
trial court erred in denying his motion for new trial. ECF No. 1. Matthews also resurrects his
ineffectiveness arguments regarding the lion’s share of claims raised in his state post-conviction
proceeding. ECF No. 1-1, 1-2. The claims are thus exhausted as having been presented in
Matthews’ post-conviction proceedings and in his application for leave to appeal and not
Because post-conviction counsel did not receive a copy of the court’s order until April 29, 2015, counsel was
unable to file an application for review of sentence within 30 days as ordered. On May 12, 2015, Matthews moved
to reopen the post-conviction proceeding. ECF 6-1, dkt. no. 373. On May 27, 2015, the Circuit Court granted the
requested relief for the limited purpose of “re-dating the order” so that petitioner could file a timely motion for
review of sentence. ECF No. 6-1, dkt. no. 374. Matthews thereafter moved for sentencing reconsideration which
was denied, and his original sentence was affirmed without a hearing on October 13, 2015. ECF No. 6-1, dkt. no.
387.
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procedurally defaulted. Nonetheless, for the reasons stated below, the Petition must be denied in
its entirety.
II.
Standard of Review
This Court may grant a petition for a writ of habeas corpus only to address violations of
the United States Constitution or laws of the United States. 28 U.S.C. § 2254(a) (2018) 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)). In reviewing the decisions of the post-conviction court, this Court 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)). Further, this 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);
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see also 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 must 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)). “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).
III.
Analysis
A. Trial Court Error
Matthews first argues that the trial court erred in denying his motion for new trial based on
the jury’s inability to reach a verdict after several hours of deliberation. ECF No. 1-2 at 1. This
closely parallels Matthews’s direct appeal argument that the trial court abused its discretion by not
declaring a mistrial during the first evening of deliberations when the jury announced it was
deadlocked. ECF No. 6-7, at 14–21; ECF No. 6-9, at 8–20. The Court of Special Appeals
determined that the trial court was well within his discretion to continue deliberations. ECF No.
6-9 at 18.
In reframing his earlier argument, Matthews does not assert that the trial court’s error was
one of federal constitutional magnitude. Nor could he. The claim squarely involves the exercise
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of the trial court’s discretion to allow further deliberations. Absent violation of a federal
constitutional right, a habeas petitioner fails to state a cognizable claim for relief. 28 U.S.C. §
2254(a); see also Wilson, 562 U.S. at 1; Spencer, 18 F.3d at 239-40. Thus, the Court denies
Matthews’ petition on this ground.
B. Prosecutorial Misconduct
Matthews next argues that the State engaged in prosecutorial misconduct, justifying the
grant of habeas relief. Undoubtedly, “[a] fair trial in a fair tribunal is a basic requirement of due
process,” In re Murchison, 349 U.S. 133, 136 (1955), and so prosecutors must comport themselves
accordingly. See Berger v. United States, 295 U.S. 78, 88 (1935). Prosecutorial misconduct is
actionable when it “so infected the trial with unfairness as to make the resulting conviction a denial
of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also United States v. Caro,
597 F.3d 608, 624 (4th Cir. 2010). To succeed on this claim, Matthews “must show (1) ‘that the
prosecutor’s remarks or conduct were improper’ and (2) ‘that such remarks or conduct
prejudicially affected his substantial rights so as to deprive him of a fair trial.’” Caro, 597 F.3d at
624–25 (quoting United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002). Matthews presents
two misconduct claims here.
Matthews first contends that the State committed reversible error by shifting the burden of
production to the defense during rebuttal argument. The State argued:
You can’t go on about how this person didn’t come in and this person didn’t
come in and not produce the ones you talked about the whole time. Where is
Patrice Smith, the girlfriend he was with? Where is his brother, Jacob Chase?
She just talked about him. Where is he at? Jeffrey Thomas? Pootie??
ECF No. 6-4 at 107–08. The post-conviction court, citing Waddington v. Sarausad, 555 U.S. 179,
193 (2009), found that these statements had not misled the jury as to the State’s burden of proof.
Specifically, the court determined that these comments taken as whole did not implicate Matthews’
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right to remain silent or the choice not to mount an affirmative defense, and thus did not render
the trial fundamentally unfair. See Smith v. Phillips, 455 U.S. 209, 219 (1982) (citing Brady v.
Maryland, 373 U.S. 83, 87 (1963) (aim of due process “is not punishment of society for the
misdeeds of the prosecutor but avoidance of an unfair trial to the accused”)).
This finding is supported by the record. The challenged statements were brief and in
response to Matthews’s counsel arguing at length that the “social milieu” caused many
eyewitnesses to avoid testifying at trial. ECF No. 6-4 at 104–07. Furthermore, the comments were
limited, rhetorical, and designed to highlight the illogic of defense counsel’s argument. The
comments were not suggestive of burden shifting. Accordingly, Matthews cannot meet the heavy
burden of showing that such comments so infected his trial as to deprive him constitutional due
process.
Matthews also challenges that the State’s rebuttal closing argument violated his
Sixth Amendment right to confrontation. In rebuttal, the prosecutor argued:
Ladies and gentlemen, you’ve already been here for three days. Do you really
want to hear about a patrol officer that came and put tape around a house and
there was nobody there? I set up a perimeter here and I directed traffic and I
didn’t allow cars. I don’t think you wanted to hear all that. I mean that’s why
patrol officers aren’t here.
ECF No. 6-4 at 108–09. Matthews maintains that the prosecutor’s comments, suggestive of what
the patrol officer may have said if called, stripped Matthews of his right to confront the witness.
See also ECF No. 6-15 at 21.
The Court begins by noting that the statements, in fairness, represent not what a witness in
fact had said, but rather a rhetorical, if not theatrical, explanation for why the jury’s fact-finding
mission would not be advanced by calling the patrol officers. The State simply underscored that
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such officers were responsible for ministerial tasks and lacked any probative evidence. In this
respect, the argument is clearly not “testimony” and cannot fairly be read otherwise.
However, even if the Court assumes that the State’s comment is tantamount to an out-ofcourt statement which Matthews could not meaningfully challenge, that error is harmless. Lilly v.
Virginia, 527 U.S. 116, 140 (1999). On habeas review, an error is harmless unless the error visited
a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrhamson, 507 U.S. 619, 623 (1993) (quoting Kotteakas v. United States, 328 U.S. 750, 776
(1946)). In assessing whether error is harmless, the Court considers: (1) “the importance of the
witness’[s] testimony in the prosecution’s case,” (2) “whether the testimony was cumulative,” (3)
“the presence or absence of evidence corroborating or contradicting the testimony of the witness
on material points,” (4) “the extent of cross-examination otherwise permitted,” and (5) “the overall
strength of the prosecution’s case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
The post-conviction court, confronting this very issue, concluded that no basis existed to
find the prosecutor’s statements influenced the verdict. Nothing in the record sufficiently upends
this sound analysis. Thus, the Court denies Matthews’ Petition on this ground.
C. Ineffective Assistance of Counsel
The Court next turns to Matthews’ array of ineffectiveness challenges. 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 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, 466 U.S. at 687. A strong presumption of adequacy attaches to counsel’s conduct such
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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.
Matthews presents nine claims of ineffective assistance of trial counsel and one as to
appellate counsel. ECF No. 1 at 6; ECF No. 1-1 3–4, 17). Each claim is addressed separately
below.
i.
Witness identification
Matthews contends that law enforcement’s out-of-court identification procedures
compromised the reliability of the victim’s identification at trial of Matthews as the perpetrator.
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Impermissibly suggestive pretrial identification procedures compromise “a defendant’s right to
due process,” thus warranting exclusion of any in-court identification testimony. Manson v.
Brathwaite, 432 U.S. 98, 113 (1977); Neil v. Biggers, 409 U.S. 188, 198 (1972).
Because Matthews and the victim knew one another before the shooting, the out-of-court
identification did not infect the victim’s in-court identification; accordingly, the post-conviction
court concluded that the attorney did not err in failing to challenge the in-court identification. The
post-conviction Court further found that because several other eye witnesses identified Matthews
as the assailant, Matthews did not demonstrate that he was prejudiced by the introduction of the
challenged evidence. ECF No. 6-10 at 4–5. The Court must credit the post-conviction court’s
finding as presumptively correct. Matthews has simply provided no basis for this Court to find
habeas relief is warranted on this ground.
ii.
Failure to request DNA and GSR testing
Matthews next challenges defense counsel’s decision not to request DNA or other forensic
testing on a black glove found at the scene. ECF No. 1-1, 1-2; ECF No. 6-3 at 11, 19. Lead
detective, Janice Bates, testified that a citizen found the glove at the scene and gave it to a patrol
officer. Bates further testified that because the glove had been recovered from a citizen who gave
it to the police, she had no confidence as to who else may have handled the glove before it was
tagged and bagged as evidence. ECF No. 6-3 at 11, 13. Because of this potential contamination,
no forensic testing was performed on the glove. ECF No. 6-3 at 20.
The post-conviction court ruled that counsel’s “failure” to press for such testing
amounted to a reasoned, strategic decision, not a deficiency in performance. The record supports
the court’s determination. Defense counsel, in fact, vigorously argued that the State’s failure to
test the glove should raise suspicion as to the viability of the State’s case. ECF No. 6-4 at 98,
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104 (“Isn’t Gus Williams worth it, a GSR test?”). In this respect, defense counsel had the best of
all worlds: counsel could argue that that failure to test the glove undermined the State’s case
without risking that actual testing would have produced incriminating results. Thus, this record
presents no grounds to arrive at a different conclusion. Alternatively, the post-conviction court
determined that even if the glove had been tested, the risk of contamination meant that the
presence of DNA belonging to someone else provided little evidentiary value to Matthews. ECF
No. 6-10 at pp. 5-6. On this record, this Court finds no grounds to upset the post-conviction
court’s determination that Matthews suffered no prejudice under Strickland based on trial
counsel’s strategy.
iii.
Antoine Johnson’s written statement to police
Johnson at trial identified Matthews as the person who shot Williams. ECF No. 6-2 at 189–
91. Johnson further testified that after the shooting, he saw Matthews moving toward the back of
Johnson’s parked car. ECF No. 6-2 at 209. On cross-examination, counsel directed Johnson to
his prior statement that he had given Detective Burgess on August 16, 2009, in which Johnson said
that after the shooting, Matthews walked to the car next to Johnson’s and sat on that car’s trunk.
ECF No. 6-2 at 212–14.
As here, Matthews argued to the post-conviction court that counsel should have introduced
Johnson’s signed prior statement into evidence. The post-conviction court, after reviewing the
written statement in its entirety,9 found that counsel “had good reason not to introduce [it] into
evidence” as it “is highly inculpatory.” ECF No. 6-10 at 7. The court thus reasoned that counsel
properly used the statement solely for impeachment purposes, and any failure to introduce the
entire statement was neither ineffective assistance or prejudicial. Matthews provides no argument
9
The written statement is not part of the record before this Court.
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to rebut this finding. Thus, defense counsel’s strategic decision to not seek introduction of
Johnson’s entire statement does not amount to ineffective assistance.
iv.
Jury instructions on lesser included offense and missing witnesses
Matthews argues that counsel’s failure to request a lesser-included offense instruction for
attempted second-degree murder as well as a missing witness instruction, in light of the
prosecutor’s closing rebuttal argument, amounted to ineffective assistance. “[U]pon proper
request, a defendant is entitled to an instruction submitting to the jury any theory of defense for
which there is a foundation in the evidence.” United States v. Hicks, 748 F.2d 854, 857 (4th Cir.
1984) (citations omitted). However, the question on collateral attack is whether the failure to give
the challenged instruction so infected the entire trial that the resulting conviction violated due
process. Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir. 1983).
The post-conviction court correctly noted that in Maryland, a jury may consider lesserincluded offense so to avoid the possibility that jurors would convict the defendant of a more
serious offense because they mistakenly believe that they had no other option. State v. Bowers,
349 Md. 710, 722 (1998). The post-conviction court ruled that this risk did not exist for Matthews
because he had also been charged with first-degree assault. Accordingly, the jury had the option
of convicting Matthews solely of the less serious assault offense. ECF No. 6-10 at 7-8. Based on
the jurors’ ability to exercise this option, the post-conviction court found nothing “patently
unreasonable” about trial counsel’s failure to ask for the lesser-included offense instruction. ECF
No. 6-10 at 8. The Court sees no basis on which it could disagree with the post-conviction court’s
determination.
As to the missing witness instruction, the post-conviction court reasoned that once again,
counsel made a strategic decision not to seek such an instruction so as to avoid underscoring
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Matthews’ own failure to call witnesses. The post-conviction court also reasoned that the jury had
been properly instructed on the state’s burden of proof, and that it must presume the jury had
followed that instruction. ECF No. 10-6 at 9; ECF No. 10-4 at 60–61, 65–66. Thus, the failure to
ask for this instruction did not prejudice Matthews.
Again, Matthews has failed carry the heavy burden of demonstrating that the postconviction court’s decision is contrary to, or an unreasonable application of, clearly established
federal law, or that it is rooted in an unreasonable determination of the facts in light of the evidence
presented to the state court. 28 U.S.C. § 2254(d)(1)-(2). The Court must therefore deny the
Petition on this ground as well.
v.
Waiving Matthews’ presence following the first jury note
Matthews contends that his counsel was deficient in waiving his presence when the jury
submitted its first note requesting review of a witness’s prior statement not substantively in
evidence. ECF No. 6-4 at 126. A defendant maintains a Sixth Amendment right to appear
personally at all proceedings which present any opportunity to defend himself, United States v.
Gagnon, 470 U.S. 522, 526–26 (1985), or where his exclusion would interfere with his opportunity
for cross-examination. Kentucky v. Stincer, 482 U.S. 730, 736 (1987). The post-conviction court
found that counsel’s failure to insist on Matthews’ presence did not prejudice him, even if it was
error. The trial court properly responded to the note, and thus Matthews’ absence did not, and
could not, have altered the outcome of deliberations. This Court sees no error of constitutional
magnitude to upset the post-conviction court’s determination. Relief is denied on this ground as
well.
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vi.
The third jury note
Matthews also challenges defense counsel’s handling of the deadlock note received at
10:00 p.m. on the first day of deliberations. The note read in its entirety: “We have continued our
deliberations and find that we are irretrievably deadlocked 11 to 1. We do not believe that further
consideration of this matter will result in any change in opinion.” ECF No. 6-4 at 136. The
prosecutor suggested that the jury be released and ordered to return in the morning. The defense
moved for a mistrial, arguing that the jury had communicated several times to the court it was
deadlocked. The trial court denied the defense motion, and released the jury with direction to
return in the morning to resume deliberations.
Matthews contends, as he did to the post-conviction court, that counsel should have insisted
that the court obtain the the guilty/not guilty breakdown of the 11 to 1 split. ECF No. 6-10 at 20.
As the post-conviction court rightly noted (ECF No. 6-10 at 10), the request Matthews sought is
improper under Maryland law and would have been denied. Smoot v. State, 31 Md. App. 138, 150
(1976). This Court sees no basis to find that defense counsel’s failure to request that the trial court
violate clearly established Maryland law could ever support habeas relief. See 28 U.S.C. §
2254(d)(1) - (2). The Petition must be denied on these grounds.
vii.
The State’s closing argument
Matthews next argues that his counsel’s performance fell below minimum standards
because she failed to object to the “totality” of the State’s rebuttal argument. To place this
argument in context, the Court sets out the sequence of the arguments at issue. The prosecutor
argued:
You can’t go on about how this person didn’t come in and this person didn't
come in and not produce the ones you talked about the whole time. Where is
Patrice Smith, the girlfriend he was with? Where is his brother, Jacob Chase?
She just talked about him. Where is he at? Jeffrey Thomas? Pootie?
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ECF No. 6-4 at 107-08.
Matthews’ counsel did not object. The prosecutor continued:
But who is he with August 15th? He’s with Pootie and he’s with his brother,
okay? And his brother has this vague address. He lives in the Baltimore area.
Well, that really narrows it down. The only person who is going to know
where . . . are these two. He’s not here.
ECF No. 6-4 at 108.
Defense counsel objected which the court overruled. Next, the prosecutor argued:
Now the excuse as to I was with my girlfriend, well, where is she? She didn't
come in to say he was with her. All right. The reason, I submit to you, that
there is no testimony from Patrice Smith . . . .
ECF No. 6-4, at 115. Once again, defense counsel objected, which the court overruled. Id.
Matthews argued to the post-conviction court that failure to object to the “the totality” of
the State’s closing arguments” amounted to ineffective assistance because counsel failed to
preserve the question of the prosecutor’s inappropriate comments for appeal. ECF 6-15 at 30–36.
On this very argument, the post-conviction court explained that “[w]hen assessing a claim of
ineffective assistance for failure to preserve an appellate claim, a reviewing court must
necessarily look at the merits of the underlying claim. ECF No. 6-10 at 15–16. The Court
recognized that in this respect “ Strickland’s performance and prejudice prongs naturally
overlap, because the questions of whether counsel’s performance was adequate and whether it
prejudiced Defendant both will tu r n on the viability of the omitted claims, i.e., whether there
is a reasonable possibility of success. An advocate renders ineffective assistance only when he
or she fails to preserve a claim that would have had a substantial possibility of resulting in a
conviction reversal.” Id. Ultimately, the court denied relief, concluding that the unpreserved
claim was not one which would have a “substantial possibility” in reversing Matthews’ conviction.
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This Court, after independently reviewing the record, cannot conclude that the post-conviction
court’s determination was unreasonable in any sense. Thus, the Matthews’ ineffectiveness claim
as to his appellate counsel will not be disturbed here. 28 U.S.C. § 2254(d).
viii.
Sentencing
Matthews also challenges defense counsel’s performance at his sentencing. Even though
the State strongly advocated for imposition of the maximum allowable sentence, Matthews’
counsel called no witnesses to testify on Matthews’s behalf, despite Matthews having requested
that counsel call his mother and his children’s mother. ECF No. 10-15 at 11–13. Matthews
contended at the post-conviction hearing that such witnesses could provide critical evidence in
mitigation, (ECF No. 10-6 at 18; ECF No. 10-15 at 38–39), however Matthews’ counsel never
proffered to the post-conviction court the substance of the information which the witnesses would
have offered.
Consequently, the post-conviction court found that Matthews failed to overcome his
burden to establish deficient performance. The Court reasoned that testimony “designed to
humanize the Defendant would have altered the sentencing outcome” in light of Matthews
extensive criminal history and the sentencing court’s determination that “‘this was a case of
straight-up, premeditated, willful, deliberate attempt to commit murder in the first degree.’” ECF
No. 6-10 at 19. The post-conviction court, therefore, determined that Matthews failed to show a
substantial possibility that even if the witnesses had testified, it would have changed the outcome.
This court finds no reason to disagree with this determination.
ix.
Ineffective assistance of appellate counsel
As to Matthews’ complaints regarding the effective assistance of appellate counsel, the
United States Supreme Court has made clear that an indigent defendant does not have a
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constitutional right to compel his appointed appellate counsel to raise every conceivable claim on
appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). The high Court has observed that
“[e]xperienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at
most on a few key issues.” Id. at 751–52.
Appellate counsel did not raise the claim concerning the prosecutor’s closing arguments
previously discussed. ECF No. 6-4 at 107–08. The post-conviction court found no error, reasoning
that appellate counsel properly focused on meritorious arguments regarding merger of counts and
the trial court’s refusal to declare a mistrial after the jury indicated it was deadlocked. ECF No. 610 at 16–17. This Court must defer to the findings of fact by the post-conviction court and, in light
of those facts, its rejection of Matthews is a reasonable application of the law to the facts.
x.
Cumulative error
Matthews’s final ineffective assistance claim focuses on the cumulative effect of the abovediscussed errors which, according to Matthews, rendered the trial unfair. Generally, courts
recognize that “[t]he cumulative effect of two or more individually harmless errors has the
potential to prejudice a defendant to the same extent as a single reversible error.” United States v.
Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); see also United States v. Martinez, 277 F.3d 517,
532 (4th Cir. 2002); United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009). In the context
of a habeas petition raising ineffectiveness claims, however, the United States Court of Appeals
for the Fourth Circuit has held that “an attorney’s acts or omissions ‘that are not unconstitutional
individually cannot be added together to create a constitutional violation.’” Fisher v. Angelone,
163 F.3d 835, 852 & n.9, 853 (4th Cir. 1998) (quoting Wainwright v. Lockhart, 80 F.3d 1226, 1233
(8th Cir 1996)); see also Arnold v. Evatt, 113 F.3d 1352, 1364 (4th Cir. 1997); Higgs v. United
17
States, 711 F.Supp.2d 479, 552 (D. Md. 2010) (in the context of collateral review, cumulative error
doctrine applies to individual constitutional errors).
Discussing Matthews’s claims collectively, the post-conviction court aptly noted that the
case reflects the “mathematical law that twenty times nothing is still nothing.” ECF No. 6-10 at
11, citing Gilliam v. State, 331 Md. 651, 686 (1993). Likewise, this Court’s thorough review of
the record evidence and proceedings below presents no basis to find a constitutional violation by
aggregating a series of claims that, at best, assert errors not of constitutional magnitude. Thus, the
post-conviction court’s cumulative error analysis is neither contrary to clearly established federal
law, nor did it involve an unreasonable application of that law pursuant to 28 U.S.C. § 2254(d).
Matthews requested relief based on the claimed errors taken cumulatively is thus denied.
IV.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases provides that “the district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” 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); 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).
Matthews has not made the requisite showing. Accordingly, the Court declines to issue a
certificate of appealability. Matthews 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).
18
For the foregoing reasons, the Petition is denied. A separate Order follows.
12/12/19
Date
/S/
Paula Xinis
United States District Judge
19
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