Grandison v. Corcoran, No. S 99-937.

• Decision Date: 06 January 2000
• Docket Number: No. S 99-937.
• Citation: 78 F.Supp.2d 499
• Parties: Anthony GRANDISON v. Thomas CORCORAN, Warden J. Joseph Curran, Attorney General of the State of Maryland.
• Court: U.S. District Court — District of Maryland

Page 499

78 F.Supp.2d 499

Anthony GRANDISON v. Thomas CORCORAN, Warden J. Joseph Curran, Attorney General of the State of Maryland.

No. S 99-937.

United States District Court, D. Maryland.

January 6, 2000.

COPYRIGHT MATERIAL OMITTED

Mary E. Davis, Davis and Davis, Christopher M. Davis, Davis and Davis, Washington, DC, for Anthony Grandison, petitioners.

Anthony Grandison, Baltimore, MD, pro se.

Annabelle L. Lisic, Office of the Attorney General, J. Joseph Curran, Jr., Office of the Attorney General, Baltimore, MD, for Thomas Corcoran, Warden of the Maryland Correctional Adjustment Center and the Maryland Penitentiary, J. Joseph Curran, Attorney General of the State of Maryland, respondents.

MEMORANDUM OPINION

SMALKIN, District Judge.

Anthony Grandison is a prisoner of the State of Maryland, under a sentence of death arising out of his conviction of the murder for hire of two individuals who, he thought, were to be witnesses against him in a federal criminal prosecution. The evidence at his trial showed that he hired a Mr. Evans to actually carry out the murders of David Scott Piechowicz and Cheryl Piechowicz. (The intended female victim, Cheryl Piechowicz, was not working with her husband on the date of the murders, so Susan Kennedy, substituting for her, was killed in her stead.)

Mr. Grandison's trial on the merits, his sentencing, and his resentencing have generated a substantial body of reported and unreported case law. The latest major opinion is Grandison v. State (Grandison III), 341 Md. 175, 670 A.2d 398 (1995), cert. denied, 519 U.S. 1027, 117 S.Ct. 581, 136 L.Ed.2d 512 (1996), in which a full discussion of the facts and of the prior judicial treatments of Mr. Grandison's case can be found. For the present, it is sufficient to note that Mr. Grandison has filed a federal habeas corpus petition, attacking the resentencing phase and guilt-innocence phase of his trial, as well as various appellate proceedings. The present petition, filed April 5, 1999, by counsel, is 83 pages long. It raises a total of 31 contentions. He has also filed, pro se, two supplements, asserting additional contentions, as well as a number of ancillary filings and letters. The respondents have answered, with relevant transcripts and opinions, and the petitioner has submitted a comprehensive reply. No oral hearing is needed in this Court.

Before proceeding to the merits, the Court will establish the standard of review to be employed in this case. In that the present petition was filed after April 24, 1996, it is to be decided under Chapter 153 of Title 28 of the United States Code, as amended by the so-called Anti-Terrorism and Effective Death Penalty Act (the AEDPA). Brown v. Angelone, 150 F.3d 370 (4th Cir.1998). The AEDPA made a number of substantial amendments to prior habeas corpus law dealing with review of state convictions under 28 U.S.C. § 2254. The federal courts no longer have a roving commission to discern and "correct" error in state court proceedings, but must exercise a more limited review, as prescribed in 28 U.S.C. § 2254(d)(1) and (2), as amended. The statute now provides that the federal court cannot grant habeas corpus relief to a person in state custody on any claim that was adjudicated on the merits in a state court proceeding unless the adjudication either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the 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. section 2254(d). This statutory standard applies, inter alia, to the Sixth Amendment ineffective-assistance-of-counsel claims that frequently predominate in federal habeas corpus cases. See, e.g., Henderson v. Frank, 155 F.3d 159, 163 (3d Cir.1998). Furthermore, where the state court has made a finding of fact, that finding is entitled to a presumption of correctness, which can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Fourth Circuit has had occasion to interpret and apply amended Section 2254(d) in several cases, principally Green v. French, 143 F.3d 865 (4th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999). Explicating the "unreasonable application" language of Section 2254(d)(1), the Fourth Circuit held that that test is satisfied only where no reasonable jurist could determine an issue of law the way the state court did. Green, 143 F.3d at 870-71. The Court is aware that the Supreme Court has granted certiorari in a Fourth Circuit case that applies the Green test just cited, i.e., Williams v. Taylor, 163 F.3d 860 (4th Cir.1998), cert. granted, ___ U.S. ___, 119 S.Ct. 1355, 143 L.Ed.2d 516 (1999). Therefore, this Court, having reviewed the pertinent portion of the certiorari petition in that case and the authorities cited therein, just to be on the cautious side, will utilize the test adopted by the most liberal Circuit opinion interpreting Section 2254(d)(1), viz., Matteo v. Superintendent, 171 F.3d 877 (3d. Cir.)(en banc), cert. denied, ___ U.S. ___, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999), where the Third Circuit adopted an "objectively unreasonable" test, saying, "The federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 889-90. See also, O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998).

Bearing this principle in mind, the Court turns to the petitioner's lead contention, viz., that he was denied effective assistance of counsel in connection with the resentencing hearing.

Petitioner's argument that he was deprived of the effective assistance of counsel differs from the run-of-the-mill ineffective assistance claim in a highly significant respect. Ordinarily, a court analyzing such a claim applies the familiar test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to counsel's actual performance at a trial, hearing, or other critical phase of a criminal prosecution. In the present case, Mr. Grandison fired all counsel whose performance is under attack prior to the resentencing hearing. Specifically, Mr. Grandison had fired Messrs. Alan Drew and Harry Trainor on August 27, 1993, with leave of court (even though the court found no meritorious reason for him to do so). Grandison III, 341 Md. at 199 n. 7, 670 A.2d 398. After petitioner was allowed to fire Messrs. Drew and Trainor, Messrs. Tuminelli and Purpura were assigned to represent him. Id. After Grandison had expressed dissatisfaction with the services of Tuminelli and Purpura because they wished to pursue a line of defense to the death penalty that Grandison did not agree with, Grandison asked for yet a new assignment of counsel only a week prior to the resentencing. When the trial court refused to assign new counsel, Mr. Grandison refused either to proceed with Tuminelli and Purpura or to represent himself. This resulted in a finding by the resentencing court that Grandison had waived his right to counsel (although Tuminelli was appointed as stand-by counsel), and that Grandison "had chosen, by default, to represent himself." Grandison III, 341 Md. at 199-200, 670 A.2d 398.

Mr. Grandison was no stranger to representing himself. As the Court of Appeals noted in Grandison III, 341 Md. at 200, n. 9, 670 A.2d 398, Mr. Grandison had represented himself at his trial in the present case and at his federal criminal trials.

At first blush, it is difficult to understand how an attorney who has been fired can be charged with Strickland incompetence. The petitioner's argument that an attorney can be so charged is premised on the case of United States v. Fessel, 531 F.2d 1275 (5th Cir.1976). In that case, a criminal defendant with a history of psychiatric treatment and of having once actually been found incompetent to stand trial, specifically requested his court-appointed counsel to prepare an insanity defense. After the trial began, Fessel asserted his right to self-representation. The trial court allowed counsel to withdraw, but denied Fessel a continuance. Among other things, the Fifth Circuit held on appeal that counsel had a duty in preparation for trial to pursue an insanity defense, and to seek the appointment of a psychiatric expert under the federal Criminal Justice Act (CJA). The court held that, under the facts in Fessel's case, where the only issue to be decided was the defendant's sanity, it was obvious that counsel should have utilized the provision of the CJA to procure psychiatric testimony in aid of that defense. Fessel, 531 F.2d at 1279.

This case does not even begin to present circumstances close to that in Fessel. There is no indication at all here that Mr. Grandison wished to pursue an insanity defense or even to present evidence that his mental status in any way constituted a mitigating factor against the death penalty. Furthermore, there is no indication at all that counsel should have independently pursued a mental-status line of defense or mitigation as to the death penalty. Mr. Purpura, before he was let go, had made an informed and intelligent decision not to pursue a mental health strategy at sentencing, having been informed by Mr. Dantes (another of Grandison's prior attorneys) that petitioner would not allow it, and having also made the tactical judgment that the line of defense that he planned to assert at the resentencing hearing (related to the question of whether Grandison actually ordered the killings), was the best alternative available to him.

Unlike the situation in Fessel, where counsel was discharged during the trial, Mr. Grandison rejected counsel more than a week prior to the commencement of his resentencing. It is impossible to know what information...