Dame v. Smith

• Docket Number: Civil Action ELH-21-3038
• Decision Date: 26 May 2023
• Parties: FRANCIS NGUESSI DAME, Petitioner, v. WARDEN CHRISTOPHER SMITH, ATTORNEY GENERAL BRIAN E. FROSH, Respondents.
• Court: U.S. District Court — District of Maryland

1

FRANCIS NGUESSI DAME, Petitioner, v. WARDEN CHRISTOPHER SMITH, ATTORNEY GENERAL BRIAN E. FROSH, Respondents.

Civil Action No. ELH-21-3038

United States District Court, D. Maryland

May 26, 2023

MEMORANDUM OPINION

Ellen L. Hollander United States District Judge

Petitioner Francis Nguessi Dame, a Maryland prisoner, has filed a Petition For Writ of Habeas Corpus. ECF 1 (the “Petition”). Respondents are Warden Christopher Smith and the Maryland Attorney General, who filed an answer to the Petition, asserting that the claims are procedurally defaulted and without merit. ECF 5. Their submission includes several exhibits. Petitioner filed a reply. ECF 11.

No hearing is required. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2021); see also 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 reasons that follow, I shall deny the Petition. And, a certificate of appealability shall not issue.

I. Procedural Background

Dame was charged on August 26, 2016, in the Circuit Court for Harford County, with two counts of sexual abuse of a minor and one count of engaging in child sexual abuse in a continuing course of conduct over a period of 90 days or more. ECF 5-1 at 12-13. After a jury trial, presided over by the Honorable M. Elizabeth Bowen, Dame was convicted on May 12, 2017, of all three counts. ECF 5-1 at 1. On September 7, 2017, he was sentenced to 25 years' incarceration for sexual abuse of a minor by a household member, which was merged with the sentence for sexual abuse of a minor by a person having temporary care custody, or responsibility of a minor. Id. at 5-7, 14. He was also sentenced to 30 years' incarceration for sexual abuse of a minor in a continuing course of conduct, which was imposed consecutively, but suspended. Thus, Dame was sentenced to a total sentence of 55 years' incarceration, with all but 25 years suspended. ECF 5-1 at 5-7, 14, 32, 185. Id. at 5-6, 14.

On September 18, 2017, Dame filed a Motion to Reconsider Sentence pursuant to Md. Rule 4-245(e). Id. at 25. It remains pending.

Dame filed a timely notice of appeal. Id. at 22. He asked one question, id. at 33: “Did the trial court err and/or abuse its discretion in allowing the prosecutor to cross-examine Mr. Dame about a highly prejudicial text message that the prosecutor acknowledged was ‘not admissible in evidence'”?

The Maryland Court of Special Appeals^[1] issued an unreported opinion on February 5, 2019, affirming Dame's convictions. Id. at 98-115. The court held that the trial court acted within its discretion in allowing the questioning “because Dame's affirmative response obviated the need for extrinsic proof, and, in any case, the State could have proved that Dame solicited V.M. for sex via text messaging through V.M.'s testimony.” Id. at 99. The court's mandate issued on March 27, 2019. Id. at 140. Dame filed a timely petition for writ of certiorari to the Maryland Court of Appeals (id. at 116), which was denied on April 19, 2019. Id. at 142.

Dame, pro se, filed a petition for post-conviction relief on May 12, 2020. ECF 5-1 at 145. He asserted the following claims, id.:

I. Trial counsel rendered ineffective assistance by failing to object to the prosecutor's “Golden Rule” argument.

II. Trial counsel rendered ineffective assistance by failing to object to the prosecutor's soliciting testimony regarding Petitioner's arrest.

III. Trial counsel rendered ineffective assistance by failing to object to the prosecutor's repetitive manner of questioning its key witness.

IV. Trial counsel rendered ineffective assistance by failing to object to the prosecutor's improper cross-examination questions.

V. Cumulative effect of trial counsel's errors.

A hearing was held on the petition on November 23, 2020. Id. at 189. Dame was represented by counsel. No witnesses were called to testify; only legal arguments were presented. Id. On March 17, 2021, the post-conviction court, Judge Kevin Mahoney, issued a written opinion in which he denied the petition for post-conviction relief. Id. at 189-201. I discuss the opinion, infra.

Dame filed a timely application for leave to appeal the denial of his post-conviction petition. Id. at 202-12. The application was summarily denied on July 28, 2021, with the court's mandate issuing on August 27, 2021. Id. at 214-16.

Dame filed the instant Petition on November 29, 2021. ECF 1. He asserts the following grounds: (1) “Trial Court erred and/or abused its discretion in allowing the prosecutor to crossexamine Mr. Dame about a highly prejudicial text message that the prosecutor acknowledged was ‘not admissible as evidence.' Petitioner's right to Due Process of the Law was violated when the Courts did not adhere to its own rules for its State's law”; (2) he received ineffective assistance of trial counsel, in violation of the Sixth Amendment, when his attorney “failed to make several objects [sic] during . . . trial.” These include, according to petitioner, the following: a) the failure to object to the prosecutor's “Golden Rule” argument; (b) the prosecutor's solicitation of testimony regarding Dame's arrest; (c) the repetitive manner of questioning of the State's “key witness”; and (d) the failure of defense counsel to object to the prosecutor's “improper cross-examination question.” Dame also asserts that (3) the cumulative effect of counsel's errors rendered Dame's trial unfair and unreliable. ECF 1 at 2-5.

II. Factual Background

As noted, the Maryland Court of Special Appeals affirmed Dame's conviction. Judge Andrea Leahy, writing for the panel, recounted the facts, in detail, as follows, ECF 5-1 at 100-09 (alterations in original):

The Family

V.M. was five years old when she and her older brother, F.J., came from Cameroon to join their mother in the United States in 2003. They lived with their mother and Dame, mother's boyfriend, who V.M. referred to as “Dad.” Mother and Dame then had three children together: two daughters, I.D. and R.D., and a son, S.D. Mother worked two jobs while Dame worked sporadically in building maintenance and property management. While mother worked, V.M., the oldest daughter, and Dame, were largely responsible for raising the children.

V.M., mother, R.D., and I.D. described the family dynamic similarly. They related that Dame favored V.M., buying her clothes, accessories, jewelry, and food. According to mother, Dame would gladly take V.M. to her after school activities, but would not take F.M. to his, forcing mother to leave work to drive F.M. to his activities. And V.M. related that Dame would not pay attention to her siblings, but made sure that her “needs were met, very, very fast.” Dame gave V.M. a key to the home mailbox so that she could pick up the items he purchased for her when she got home from high school, preventing her mother from finding out about those purchases.

Sexual Abuse

V.M. testified that Dame began molesting her when she was 10 years old. She had a detailed recollection of the first time she wore a pink skirt and a blue shirt and was sleeping in the same bedroom as her sisters. Dame entered her bedroom, sat on the side of her bed, and felt inside her underwear, in her crotch area, and on her butt. From the time she was 10 years old until she was 16 years old, whenever Dame hugged V.M., he would “grind his penis against [her] vagina.” Dame also carried V.M., put her on his lap in front of a computer, and felt her “vagina and chest area.” The touching took place in the parents' bedroom, either in the closet or behind the bed. In the beginning, V.M. disliked the touching but did not understand that it was wrong. As V.M. grew older, Dame told her that he was her best friend and that the touching was normal.

Dame called V.M. to his bedroom verbally or by text, and told her to distract her siblings by turning on the TV, raising its volume, and putting food out for them. Dame's texts would instruct her to go to his room, saying “I'm feeling horny,” or “I need help with this, can you come and see me.” Dame told V.M. to lock the door and would then check the door himself to ensure that it was locked properly.

When V.M. was 14 years old, Dame began to perform oral sex on her. V.M. estimated that Dame performed oral sex on her at least 200 times. Dame eventually forced V.M. to perform oral sex on him. The next year, Dame began to vaginally rape her, three to four times per week, while mother was at work. V.M. testified that the rapes began when Dame discovered that she was gay, so that he could “turn [her] straight.” He told her this was “the process.” The first few months of “the process” entailed reading Bible verses and reading about why being gay was wrong; the latter months entailed Dame raping V.M. so that she would experience “sexual intercourse with a man.” V.M. volunteered to have intercourse with a classmate, but Dame refused, insisting that she “had to do it with him because he was the most fit, he was the most experienced and he would know how to handle a woman.”

V.M. described enduring these encounters by “laying [sic] in bed pretty much like dead,” and said that Dame would scold her for not “participating.” He yelled at V.M. and asked, “[d]o you not want to turn straight?” V.M. testified that the reason the family moved from Riverside to Havre de Grace was so that she could attend school in a different district away from her lesbian friends. The rapes continued for about one year. V.M. estimated that Dame raped her “[a]t least” 200 times.

Dame communicated with V.M. primarily through texts. V.M. explained that Dame texted her “24/7, every day,” and that “it was always him just screaming at [her]

...