Hunt v. Smith

• Decision Date: 27 June 1994
• Docket Number: Civ. No. S 94-1276.
• Parties: Flint Gregory HUNT v. Sewall SMITH, J. Joseph Curran.
• Court: U.S. District Court — District of Maryland

856 F. Supp. 251

Flint Gregory HUNT v. Sewall SMITH, J. Joseph Curran.

Civ. No. S 94-1276.

United States District Court, D. Maryland.

June 27, 1994.

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Judith R. Catterton, Catterton, Kemp & Mason, Rockville, MD and Thomas C. Morrow, Jensen, Morrow & Hassani, Towson, MD, for plaintiff.

J. Joseph Curran, Jr., Atty. Gen. of Maryland and Gwynn X. Kinsey, Jr., Asst. Atty. Gen., Office of the Atty. Gen., Cr. Appeals Div., Baltimore, MD, for defendants.

MEMORANDUM OPINION

SMALKIN, District Judge.

This case involves a habeas corpus petition, filed by counsel on behalf of the petitioner, the convicted murderer of a Baltimore City policeman. The petitioner awaits execution of a death sentence. The facts of the murder are fully set forth, and prior judicial proceedings are fully chronicled, in the opinions of the Court of Appeals of Maryland that have affirmed petitioner's conviction and his capital re-sentencing. See Hunt v. State, 312 Md. 494, 498-99, 540 A.2d 1125, 1126-27 (1988), and 321 Md. 387, 583 A.2d 218 (1990), cert. denied, ___ U.S. ___, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991). Preceding the filing of this petition, a state post-conviction petition (PCPA) was denied by the trial court and leave to appeal was then denied by the highest appellate court of Maryland, the Court of Appeals. The Supreme Court refused to review that denial on certiorari, ___ U.S. ___, 114 S.Ct. 1206, 127 L.Ed.2d 554 (1994). This 94-page petition, with 36 exhibits, followed. The respondent has answered the petition with all relevant transcripts and opinions, and the petitioner has filed an amendment and a reply. No evidentiary hearing is deemed necessary under Rule 8, Rules Governing Section 2254 Cases, in view of the fully developed record from the Maryland courts, as more particularly set forth below in connection with discussion of 28 U.S.C. § 2254(d). In light of the extensive briefing, no oral hearing on the petition is deemed necessary. Local Rule 105.6, D.Md.

The Court first addresses petitioner's invitation to expand the federal constitution to make full state-court appellate review of post-conviction denials mandatory, rather than permitting discretionary review (as in Maryland). The Court declines that invitation.

It has long been the rule that the federal constitution confers no right to a direct appeal from a criminal conviction. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The ancient rule of McKane, applied to direct appeals, has survived recent constitutional scrutiny in this Circuit, conducted through the twentieth century microscope of due process. Billotti v. Legursky, 975 F.2d 113, 115-17 (4th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1578, 123 L.Ed.2d 146 (1993). As a corollary principle, it is so clear as never to have been stated as a direct holding that there is no right to an appeal from the denial of post-conviction relief. Although a number of cases hold that errors and irregularities in connection with state post-conviction proceedings are not cognizable on federal habeas review, see, e.g., Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.1988), those cases are not exactly on point here, where the contention goes not to the conduct of a particular post-conviction proceeding, but the absence of it.

None of the constitutional arguments advanced in this connection by the petitioner has sufficient merit to warrant separate discussion, save one, which has insufficient merit to warrant relief. In particular, there is some merit to the argument that due process should, in capital cases, allow for one mandatory full appellate review of the conviction and sentence as a matter of right and out of fundamental fairness, because, otherwise, due to claim forfeiture rules and the lack of federal habeas review of state law questions, dispositive review of state law issues might forever be foregone. But, Maryland law already provides for such a mandatory full appeal on the merits, as to both phases of death penalty cases, and such review was had in fact in this case.

The question then becomes whether due process and fundamental fairness require that there be full appellate review of post-conviction decisions. The answer is no. First, as to any pure issue of law cognizable on federal habeas corpus, which must by definition be a federal constitutional issue, the federal trial and appellate courts undertake de novo review, making the state appellate process essentially inconsequential as to those federal law issues. Second, on mixed questions of fact and federal law, such as the adequacy of counsel questions that pervade this and most other federal habeas corpus cases, the only factual determinations that are of consequence are those of historical fact made by the state courts, which federal law presumes to be correct if the state court proceedings afforded a full and fair opportunity to be heard, 28 U.S.C. § 2254(d). In determining whether the findings should be given presumptive weight under § 2254(d), state appellate review is inconsequential, because the federal habeas court must independently determine whether § 2254(d)'s presumption is operative in a particular case. As for the purely legal determinations in Sixth Amendment cases, these are made de novo in the federal courts, as was made clear in Clozza v. Murray, 913 F.2d 1092, 1100 (4th Cir.1990), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991).

Consequently, there is simply no good reason to alter years of fundamental understanding about the relationship of the state and federal judicial processes by imposing upon the states a constitutional requirement that they afford plenary appellate review in capital — or any other — post-conviction cases. This discussion also demonstrates that there is no basis to award the relief sought in petitioner's first amendment to his petition, viz., an order from this Court that the Court of Appeals of Maryland grant full review of the post-conviction proceedings.

Petitioner next contends that his rights were violated by the state court's refusal to charge the re-sentencing jury that he was eligible for a sentence of life without parole. This contention borders on the frivolous because, as a matter of Maryland law, he was not so eligible. The Court of Appeals of Maryland, in a decision not open to federal collateral review, has determined as a matter of Maryland law that the sentence of life without parole cannot be imposed upon a person convicted before the effective date of the governing statute, viz., July 1, 1987, as was Mr. Hunt. Collins v. State, 318 Md. 269, 298, 568 A.2d 1, 15, cert. denied, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 805 (1990). The question of whether Collins was rightly or wrongly decided is not and cannot be before this federal habeas Court, and the simple fact that, under Maryland law, the sentence of life imprisonment without parole could not have been imposed on this petitioner puts the quietus upon his second contention.

Petitioner's next contention is that he was wrongly deprived of pretrial disclosure of potentially exculpatory evidence, in violation of the rule in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in the form of a police report describing the presence of a marijuana cigarette in the ash tray of the stolen car occupied by Hunt before the shooting of the policeman. Upon review of the opinion of the post-conviction judge on this point, Pet.Exh. 1, at 37-38, the Court agrees that there was no evidence produced to the effect that the State failed to disclose evidence of the cigarette butt, a finding supported by the record of the postconviction hearing. That hearing was a full and fair proceeding, with counsel provided to the petitioner, that lasted for days. Thus, the state court judge's finding is entitled to acceptance here, there being no indication that any of the statutory criteria for rejecting it, as laid out in 28 U.S.C. § 2254(d), are present in this case. Furthermore, on de novo review, this Court is satisfied that there is no reasonable probability that this evidence would have changed the outcome. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. In this regard, though not binding, the state post-conviction judge's discussion, Pet.Exh. 1 at 26-27, is instructive, and this Court quite agrees that evidence of Hunt's possible use of marijuana could not conceivably have affected the outcome of this trial, in which his use of other, more powerful drugs was before the jury and relied upon, unsuccessfully, as a defense. To the extent that petitioner argues that the butt itself should have been preserved, the argument lacks merit. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

The petitioner's next contentions are many, and they all are made under the Sixth Amendment's guarantee of the right to counsel. That guarantee, of course, is fleshed out by the requirement that counsel, at all stages of the proceeding, furnish competent representation, which means representation within the range reasonably to be expected of counsel in criminal cases. This is an objective criterion. Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984). There is, of course, a presumption of competence, and the inferior federal courts have been instructed in Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065, to be highly deferential in reviewing the performance of counsel, eschewing the temptation to second-guess unsuccessful tactics. Even if the petitioner demonstrates that counsel's performance was professionally deficient, relief is not to be given under ...