Johnson v. State of Maryland, Civ. No. 73-576-W.

Decision Date15 December 1976
Docket NumberCiv. No. 73-576-W.
Citation425 F. Supp. 538
PartiesJerome JOHNSON v. STATE OF MARYLAND et al.
CourtU.S. District Court — District of Maryland

Jerome Johnson, pro se.

Francis B. Burch, Atty. Gen. of Md., John P. Stafford, Jr., Mary Elizabeth Kurz, Asst. Attys. Gen., Baltimore, Md., for defendants.


WATKINS, District Judge.

Petitioner, Jerome Johnson, is presently incarcerated in the Maryland Penitentiary under a sentence of life imprisonment for rape. Petitioner was convicted by a jury on August 26, 1969, in the Circuit Court for Kent County, the Honorable George B. Rasin presiding. No appeal was taken from that conviction.

In 1972, Johnson filed an application for post conviction relief which resulted in an evidentiary hearing before Judge H. Kenneth Mackey. On June 23, 1972, the Petitioner was denied the desired relief and he subsequently sought leave to appeal that decision. The Court of Special Appeals denied his application on October 24, 1972 in a thorough and reported opinion, Johnson v. Warden, 16 Md.App. 227, 295 A.2d 820 (1972).

In the instant action, Johnson has petitioned the Court for a writ of habeas corpus. Construing his complaint in the liberal fashion mandated by Ham v. North Carolina, 471 F.2d 406 (4 Cir. 1973); cf. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the Court has determined that Johnson alleges the following different grounds on the basis of which he believes his imprisonment to be unconstitutional:

1. The petit jury, which convicted Petitioner, was not asked on voir dire whether any member thereof harbored any racial prejudice toward the defendant;

2. The Petitioner was not advised of his right to an appeal and to a review of his sentence;

3. The prosecution suppressed material, exculpatory evidence;

4. There was insufficient evidence to maintain Petitioner's conviction;

5. (a) In regard to allegations Nos. 1 thru 3, Petitioner's attorney was incompetent in failing to prevent or to remedy those errors;

(b) Also, as to No. 4, his attorney failed to give adequate representation in that he did not move for a judgment of acquittal and, thus, waived Petitioner's right to obtain appellate review of the sufficiency of the evidence.

6. Johnson was not afforded a full and fair hearing by the trial court on the issue of the voluntariness of his confession, and, in fact, that confession was not voluntarily given and was inadmissible.

7. The instructions of the trial judge to the jury as to how it should treat the confession were in some manner inadequate.

8. After the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had rendered Petitioner's original death sentence invalid, his resentencing to life imprisonment was "illegal."

Before a state prisoner can demand consideration by this Court of his claims in a habeas corpus petition, he must have exhausted all of his available and effective options for relief in the state courts. 28 U.S.C. § 2254; Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Ganger v. Peyton, 379 F.2d 709 (4 Cir. 1967). With regard to most of his allegations, Petitioner has exhausted, inasmuch as all but a few were explicitly rejected by the Maryland Court of Special Appeals, Johnson, supra. Furthermore, the remaining averments may be viewed as having been implicitly considered by that court as necessary to its rejection of the others. Nevertheless, whether Petitioner has exhausted his state remedies as to each specific claim is of little present consequence. The principle of exhaustion is a matter of comity rather than jurisdiction. Picard, supra, 404 U.S. at 275, 92 S.Ct. 509; Wright v. Maryland Penitentiary, 429 F.2d 1101 (4 Cir. 1970). Thus, exhaustion is not a necessary antecedent to this Court's power to dismiss claims which are patently frivolous and those few which are presented here, but which were not explicitly rejected in Johnson, supra, appear to be such. Jenkins v. Fitzberger, 440 F.2d 1188 (4 Cir. 1971); Nash v. Maryland, 371 F.Supp. 801, 803 (D.Md.1973). The various allegations will be treated seriatim.

Voir Dire
The Supreme Court, in Ham v. South Carolina, 409 U.S. 524, 527 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), stated that the Fourteenth Amendment required, in certain circumstances, that the court interrogate . . . the jurors upon the subject of racial prejudice. However, the Court noted that, in light of the trial court's "broad discretion as to the questions to be asked on voir dire," a brief, general question as to racial prejudice would appear to be sufficient. 409 U.S. at 527 93 S.Ct. 848.

United States v. Robinson, No. 74-1979 (4 Cir., decided April 24, 1975) (slip opinion at 3). Petitioner complains that the jury at his trial was not appropriately questioned as to possible racial bias.

Clearly, Johnson is mistaken; the transcript from his trial shows that the judge inquired of the jury, as follows:

Now the . . . question is, in a case where the charge is an alleged rape and where the alleged victim is a white person and the accused is a black person, is there any reason why you cannot render a fair and impartial verdict based solely on the evidence in the case which is adduced in the courtroom during the trial? Is there any person who would have any problem rendering a fair and impartial verdict with the accused being a black man and the alleged victim being a white woman?

(Tr. at 3.) There was no response from the jurors. The questions asked by the trial judge more than met the suggestion of the Fourth Circuit in United States v. Johnson, 527 F.2d 1104, 1107 (4 Cir., 1975): "A general query whether any juror is unable to judge the case fairly because of race, creed or color of the defendant should suffice." This allegation is thus without merit.

Failure to Advise of Right to an Appeal And to a Review of Sentence

Petitioner complains that he was advised neither of his right to an appeal, nor of his right to a review of sentence. As to the latter contention, Johnson is again clearly mistaken. The transcript of Johnson's trial and sentencing reveals that the judge thoroughly explained to Petitioner that he had a right to request such a review and the manner in which such a review was conducted. Further, the judge twice inquired as to whether Johnson understood that explanation. In response, Petitioner twice answered, "Yes sir." (Tr. at 482.)

Johnson also alleges that he was not advised of his right to appeal his conviction. The Fourth Circuit first held such a right to exist in 1969, stating:

An indigent defendant is entitled to have counsel after his trial has been concluded for at least as long as it is necessary for counsel to advise him of his right to appeal and the manner and time in which to appeal . . . unless the trial court has advised the defendant in this regard and shouldered the burden which is otherwise that of counsel.

Nelson v. Peyton, 415 F.2d 1154, 1157-58 (4 Cir. 1969), cert. denied sub nom., Cox v. Nelson, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970). The court in Nelson intended "to guarantee that no defendant will waive his right to appeal without full awareness of its existence and extent, by imposing an absolute requirement on court or counsel to furnish the information." Shiflett v. Virginia, 447 F.2d 50, 54 (4 Cir. 1971) (emphasis added), cert. denied, 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462 (1972). As to precisely what information must be conveyed to the convicted defendant in order to ensure that he has been accorded his rights in this respect, any doubts are resolved within the Nelson opinion itself:

If the omissions of counsel have not been supplied by advice imparted by the trial court as to 1 the right to appeal, and 2 the manner and 3 the time in which to appeal, a defendant's Sixth Amendment right, as made applicable to the states by the Fourteenth Amendment, has been violated.

Nelson, supra, at 1158 (emphasis and numeration added; footnote deleted).

In the instant case, the record shows that Johnson was fully informed of his rights. Petitioner's counsel, immediately after sentencing, addressed the following remark to the court in Johnson's presence: "Your Honor, I would like to advise the defendant that he has 30 days in which to file an appeal in this case." (Tr. at 481.) In addition, counsel mailed a letter to Petitioner dated that same day, the text of which stated:

This is to again advise you that you have thirty days from this date in which to appeal your conviction in Kent County. If you desire to do so, notify the Clerk of the Circuit Court for Kent County, Court-house, Chestertown, Maryland.

(Tr. of Post Conviction Appeal, at 79.) There can be no doubt that Johnson was fully informed of his "right to appeal and the manner and time in which to appeal." This claim is thus without merit.

Suppression of Evidence

Johnson's third allegation of error concerns the fact that Petitioner apparently had syphilis at the time of the rape, but that his victim did not contract the disease. Johnson contends that this evidence was exculpatory and that it was suppressed by the prosecution in contravention of the Supreme Court's ruling in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, the Court stated:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violated due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Id. at 87, 83 S.Ct. at 1196.

The undisputed testimony of Johnson's trial attorney, given at the post conviction appeal hearing before Judge Mackey, demonstrates that this contention is frivolous. Counsel testified that he, not the prosecutor, discovered Petitioner's condition, and that, soon thereafter, he informed the prosecutor of this fact as a gesture of concern for the victim of the rape. He...

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