Graham v. State of Maryland

• Decision Date: 27 June 1978
• Docket Number: Civ. A. No. M-77-1427.
• Citation: 454 F. Supp. 643
• Parties: Paul McAndrew GRAHAM v. STATE OF MARYLAND.
• Court: U.S. District Court — District of Maryland

454 F. Supp. 643

Paul McAndrew GRAHAM v. STATE OF MARYLAND.

Civ. A. No. M-77-1427.

United States District Court, D. Maryland.

June 27, 1978.

Paul McAndrew Graham in pro per.

Charles G. Bernstein, Federal Public Defender, and Lawrence A. Arch, Asst. Federal Public Defender, Baltimore, Md., for plaintiff.

Francis B. Burch, Atty. Gen. and John P. Stafford, Jr., Asst. Atty. Gen., Baltimore, Md., for defendant.

JUDGMENT ORDER

JAMES R. MILLER, Jr., District Judge.

Upon consideration of the Report and Recommendation of the United States Magistrate dated May 31, 1978, and since no objections have been filed within the time allowed by law, see 28 U.S.C. § 636; Local Rule 81 (D.Md.1977), it is this 27th day of June, 1978, by the United States District Court for the District of Maryland ORDERED:

1. That the Report and Recommendation of the Magistrate is accepted by the Court, and, upon de novo consideration, is adopted by the Court in all respects.

2. That judgment shall be entered for petitioner.

3. That the petitioner shall be released from custody to the extent that he is held as a result of the conviction of murder on September 28, 1970, provided, however, that the petitioner may be continued in custody pending a retrial within ninety days of this date on said charge, if the State chooses so to do.

MEMORANDUM AND RECOMMENDATION

CLARENCE E. GOETZ, Magistrate.

This case was referred to me for consideration of the pending motions by Order of the Honorable James R. Miller, Jr., United States District Judge, entered herein pursuant to Local Rule 80 on September 28, 1977. A hearing on the pending motions was held on May 17, 1978, and evidence was taken.

I. BACKGROUND

This is the third petition for habeas corpus relief in this Court by Mr. Graham. He was denied relief in both of the previous petitions, on grounds unrelated to the single contention presented in the instant case. Graham v. Warden, No. M-75-1092 (D.Md. Dec. 5, 1975), aff'd, No. 76-8026 (4th Cir. Nov. 3, 1977) (per curiam); Graham v. Warden, Maryland Penitentiary, No. 74-986 (D.Md. Dec. 16, 1974).

The issue in this case concerns petitioner's allegation that the trial judge's instructions to the jury placed an unconstitutional burden upon him to prove his alibi defense in contravention of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

The historical facts of this case are fully set forth in Graham v. Warden, M-75-1092, supra, and need not be recounted here in detail except as to proceedings subsequent to that case.

Petitioner was convicted on September 28, 1970 of murder and robbery with a deadly weapon. In the appeal from the trial court's denial of his sixth petition for post conviction relief, petitioner's conviction for robbery with a deadly weapon was vacated as violative of double jeopardy principles. The Court of Special Appeals, relying on Newton v. State, 280 Md. 260, 373 A.2d 262 (1977), found that petitioner's conviction for robbery with a deadly weapon could not co-exist with the murder conviction, because the murder was based on a felony-murder theory, and the robbery charge thus became a lesser included offense of the murder. Graham v. State, No. 73, September Term, 1977, filed July 8, 1977.

II. EXHAUSTION OF STATE REMEDIES

Before a federal court may entertain objections to state criminal proceedings by way of habeas corpus, the prisoner must first demonstrate that he has exhausted any state remedies available to him. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

The respondent's answer, filed herein on September 7, 1977, indicates that petitioner had not previously presented the issue raised in this petition to the state courts of Maryland and further, that petitioner's seventh post conviction petition was then pending in the state courts. Thus, this Court was urged to stay consideration of this petition until the post conviction action was concluded.

I am of the opinion that petitioner has fully exhausted his state remedies with regard to the single issue presented in this petition. The documents submitted at the May 17 hearing show conclusively that the state courts have twice considered this issue. The doctrine of "exhaustion of state remedies" is one of comity, designed to give the states the first opportunity to apply controlling legal principles to the facts bearing upon the constitutional claims of a state criminal defendant before any application for relief is made to the federal judiciary. United States v. Pate, 359 F.2d 749 (7th Cir. 1966). The state courts have been given that opportunity, and the exhaustion doctrine requires no more.

III. WAIVER

The state courts which have treated the issue of waiver in this case have determined that petitioner has waived his rights on this issue. Under some circumstances, habeas corpus applicants have been held to have forfeited their right to federal habeas corpus relief by failing to pursue state methods of correction of trial error. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Accordingly, it is necessary to consider whether petitioner has waived any rights which he may have. For purposes of analysis, a distinction must be drawn between waiver of state remedies and waiver of federal constitutional rights.

A. State Remedies

A finding by a state court that a prisoner has waived his rights under post conviction procedure to litigate a claim of trial error has a two-fold impact. First, it bears on the issue of exhaustion of state remedies. As in this case, despite the fact that the merits of the claim are not thereby considered, it can have the effect of exhausting state remedies.

Judge Cole held, in petitioner's fifth post conviction action, that petitioner waived the right to contest the erroneous alibi instruction issue because he had failed to raise the issue in any of his earlier petitions.

The opinion of Judge Cole on post conviction, and the exhibits submitted at the hearing on May 17, 1978 reveal that petitioner raised this issue in his fourth post conviction petition, which was consolidated with Graham's state habeas corpus petition. With respect to this issue, Judge Cole held:

If the petitioner could have raised the issues in an earlier proceeding but failed to do so, he bears a burden to show special circumstances which would account for the omission. The petitioner, having neglected to raise these issues seasonably, has waived all right to raise them in the instant petition. It is particularly obvious that petitioner could have raised his fourth contention, respecting jury instructions, in an early proceeding, since his first petition raised a similar issue regarding jury instructions.

Graham v. Warden of Maryland Penitentiary, No. 2279, Criminal Court of Baltimore City, filed April 26, 1976.¹ It is stipulated by the parties that the petition was filed in February, 1976. Petitioner, who was unrepresented at the time, took no appeal from Judge Cole's ruling. In sum, because petitioner could have raised the issue before petition number five and did not, he was held to have waived it in petition number five. In effect, it is a state determination that there is not, at least by way of that proceeding, an "available and effective" state remedy. 28 U.S.C. § 2254 (1976).

The second effect of a state finding of waiver is that the constitutional error itself may be waived for federal habeas corpus purposes.

B. Federal Constitutional Issue

Recently, in Wainwright v. Sykes, supra, the Supreme Court had occasion to consider the effect of a state criminal defendant's failure to utilize the corrective procedures available in the state by way of a contemporaneous objection at trial to his contested confession. The Court, noting the need for finality in criminal prosecutions and the need to prevent piecemeal litigation of issues properly before a single forum, held that, absent a showing of "cause" for the failure to pursue the state remedy and "prejudice" resulting therefrom, a state prisoner may be deemed to have waived his rights based on an alleged trial error of constitutional import. 433 U.S. at 87-91, 97 S.Ct. 2497.²

In this case, there are, in effect, three waivers which must be analyzed. The first is petitioner's failure to object to the alibi instruction at trial.

1.

The short answer to this question, which has not been seriously contested, is that petitioner's failure to object at trial was occasioned by the novelty of the principles enunciated in Mullaney v. Wilbur, supra. The appellate courts of Maryland have repeatedly held that Mullaney errors occurring in trials held prior to the Mullaney decision were plain error, not waived by the defendant's failure to object. Evans v. State, 28 Md.App. 640, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976); State v. Grady, 276 Md. 178, 345 A.2d 436 (1975); Brown v. State, 29 Md.App. 1, 349 A.2d 359 (1975). Of course, the Mullaney holding has been held to be fully retroactive. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). As petitioner's trial was held in 1970, he cannot be held to have waived this allegation by failure to make timely objection at trial.

The recent decision in Dooley v. Sheffer, 572 F.2d 994 (4th Cir. 1978), requires no different result. The court, relying on a footnote in the Hankerson decision, 432 U.S. at 244 n. 8, 97 S.Ct. 2339, found that an erroneous instruction in a pre-Mullaney trial could be deemed waived if the state courts declined to consider the issue, as a matter of state procedure, for failure to object at trial. A limitation evident within that note is applicable to and distinguishes this case. As in Hankerson, the state in Evans and its progeny has uniformly considered instructions violative of Mullaney as plain error, cognizable on direct appeal despite the failure to object, so long as the trial...