Calhoun-El v. State
| Decision Date | 04 June 2020 |
| Docket Number | No. 3175,3175 |
| Parties | JAMES A. CALHOUN-EL v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Montgomery County
Case No. 26250C
UNREPORTED
Meredith, Wells, Wright, Alexander (Senior Judge, Specially Assigned), JJ.
Opinion by Meredith, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
James A. Calhoun-El, appellant, is an inmate at Jessup Correctional Institution, having been convicted in the Circuit Court for Montgomery County on November 3, 1981, of two murders. See Calhoun v. State, 297 Md. 563 (1983), cert. denied sub nom. Tichnell v. Maryland, 466 U.S. 993 (1984).1
In the decades since his 1981 convictions, Calhoun-El has filed multiple unsuccessful requests for postconviction relief, and made several trips to the appellate courts.
His most recent appearance in this Court resulted in the issuance of a reported opinion in Calhoun-El v. State, 231 Md. App. 285 (2016), cert. denied, 452 Md. 527 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 457 (2017). In that case, Calhoun-El sought to take advantage of the change in Maryland law flowing from Unger v. State, 427 Md. 383 (2012), and its progeny, relative to jury instructions that, at one point in this State's history, had advised jurors that they were judges of the facts and the law, based upon a statement to that effect in Article 23 of the Maryland Declaration of Rights.2
In an opinion of the Court of Appeals filed on December 17, 1980—eleven months before Calhoun-El's trial—the Court of Appeals held that Article 23's mandate for juries to serve as judges of the law was not "all-inclusive, but . . . much more limited [in] scope." Stevenson v. State, 289 Md. 167, 177 (1980). The Stevenson Court concluded that, despite the seemingly broad language in Article 23, that provision of the Maryland constitution does not offend the due process guarantee of the Fourteenth Amendment of the United States Constitution because matters such as "the presumption of innocence and the prohibition on inferring anything from [the defendant's] silence," as well as "the State's burden of proof [to prove guilt] beyond a reasonable doubt . . . are not within the jury's Article 23 law-judging function, but are the subject of binding instructions by the judge." Id. at 188.
But Calhoun-El's trial counsel did not argue at his trial in 1981 that his trial judge's jury instructions regarding jurors being "judges of the law" were in conflict with the Court of Appeals's decision in Stevenson. And that was not one of the issues reviewed on appeal when his convictions were first affirmed by the Court of Appeals in 1983.
Three decades later, when the Court of Appeals recognized in Unger in 2012 that the clarification of Maryland law in Stevenson "set forth a new interpretation of Article 23 and established a new state constitutional standard," 427 Md. at 411, the Court of Appeals paved the way for persons who had been convicted prior to Stevenson to challenge convictions if the jury had been instructed that the trial judge's instructions onthe law were advisory only. Even though Calhoun-El's trial took place eleven months after Stevenson was filed, Calhoun-El sought to take advantage of Unger's change in the law by filing a motion to reopen his postconviction proceeding on July 5, 2012. His motion to reopen was denied by the circuit court, and, although we granted his application for leave to appeal in order to review his argument as to whether his instructions were contrary to the law as clarified by Stevenson, we ultimately concluded that the failure of his attorney to preserve the issue at trial was, as a matter of law, a waiver of the right to challenge the court's error via postconviction proceedings. Calhoun-El, 231 Md. App. at 299 ("we conclude as a threshold matter that appellant's claims were waived" . Consequently, we affirmed the denial of that 2012 motion to reopen his postconviction proceedings. We did not decide the merits of Calhoun-El's argument that the instructions given in his case would not pass muster under current standards of review of the advisory-only issue. We noted in footnote 5 that the instructions "were not a model of clarity," although we also observed that the trial judge made an effort to distinguish the portion of the instructions that were "advisory." We did not address whether the failure of trial counsel to object to the instructions relative to the jurors being "judges of the law" was ineffective assistance of counsel; that issue was not raised in the 2012 motion to reopen, and was not before us when we issued our opinion in 2016.
On September 11, 2018, Calhoun-El filed a detailed petition for postconviction relief that led to this appeal.3 Armed with this Court's 2016 opinion that his trial attorney's failure to object to the advisory language in the jury instructions constituted a waiver of his right to claim directly in postconviction proceedings that the trial court committed a constitutional error, Calhoun-El argued in September 2018—for the first time, he contends—that he is entitled to postconviction relief because it was ineffective assistance of counsel for his trial attorney not to object to the court's "advisory" jury instructions, and ineffective assistance for appellate counsel and postconviction counsel not to adequately raise this issue previously. Cf. Shortall v. State, 237 Md. App. 60, 81 (2018) (), aff'd, 463 Md. 324 (2019).
Calhoun-El's 2018 motion to reopen was summarily denied by the Circuit Court for Montgomery County on October 15, 2018, without a hearing.
After the circuit court denied Calhoun-El's 2018 motion to reopen his postconviction proceedings, and its order was docketed on October 15, 2018, Calhoun-El attempted to file an application for leave to appeal ("AFLA") challenging the denial of his motion to reopen his postconviction proceedings. Calhoun-El also filed a request for a waiver of the prepayment of costs for the AFLA that he was attempting to file in the Circuit Court for Montgomery County, arguing poverty based upon his incarceration. On January 4, 2019, the circuit court denied Calhoun-El's request for a waiver of the prepayment of costs associated with filing his AFLA, and did not transmit the AFLA to this Court. This timely appeal from that action of the circuit court followed.
Calhoun-El presents the following questions for our review, which we have reordered for our analysis:
For reasons we will explain herein, we will vacate the judgment of the circuit court and remand the case with instructions to enter an order waiving the prepayment of costs associated with filing Calhoun-El's AFLA, and, thereafter, to transmit Calhoun-El's AFLA to this Court. At this point, we are not ruling upon the merits of the issues inCalhoun-El's AFLA; at this point, we decide merely that the AFLA should be filed, with prepayment of filing fees waived, and the AFLA should be transmitted to this Court for further consideration.
On November 3, 1981, a jury sitting in the Circuit Court for Montgomery County found Calhoun-El guilty of first-degree premeditated murder of a Montgomery County police officer, first-degree felony murder of a civilian, attempted murder of a second civilian, two counts of use of a handgun in the commission of a felony or crime of violence, robbery with a deadly weapon, and storehouse breaking. Calhoun-El was sentenced to death for the murder of the police officer, a term of life imprisonment for the murder of a civilian, 30 years of imprisonment for the attempted murder of a second civilian, 15 years of imprisonment for each of the handgun violations, and 20 years of imprisonment for robbery with a deadly weapon, all sentences to be served consecutive to each other. He was also sentenced to a concurrent term of 10 years of imprisonment for storehouse breaking. Calhoun-El noted a direct appeal.
Because the death penalty was imposed in Calhoun-El's case, his direct appeal was considered by the Court of Appeals. The Court of Appeals affirmed Calhoun-El's convictions and death sentence in Calhoun v. State, 297 Md. 563 (1983).
On January 7, 1985, Calhoun-El filed his first petition for postconviction relief to challenge the validity of his convictions. See Dkt. No. 364. He asserted numerous claims of error regarding the assistance of trial counsel, the jury selection process, severalof the trial court's instructions to the jury, the prosecutor's closing argument, and his sentencing proceeding. Pertinent to the instant appeal, Calhoun-El claimed that he was entitled to a new trial because the trial court erred when it instructed the jury that some of its instructions were advisory, which, according to Calhoun-El, made the instructions "potentially misleading" and gave the jury "wider latitude than should have been permitted." The postconviction court quoted the following...
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