Merzbacher v. Shearin
| Decision Date | 30 July 2010 |
| Docket Number | Civil Action Nos. AMD 07-67,Civil Action Nos. AMD 06-516 |
| Citation | 732 F.Supp.2d 527 |
| Parties | John Joseph MERZBACHER, Plaintiff v. Bobby SHEARIN, Warden, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Henry Mark Stichel, Gohn Hankey and Stichel LLP, Baltimore, MD, for Plaintiff.
Edward John Kelley, Office of the Attorney General of Maryland, Baltimore, MD, for Defendants.
Petitioner John Joseph Merzbacher was convicted by a jury in the Circuit Court for Baltimore City of child rape and related offenses and is serving, concurrently, multiple life sentences. In this action, he seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Merzbacher alleges, inter alia, that he was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. Specifically, he alleges that each of his two trial attorneys failed to tell him about, and failed to counsel him fully as to his options in connection with, a pre-trial offer of a plea agreement tendered by the state in which the state agreed to recommend, and a judge of the Circuit Court had agreed to impose, a sentence of ten years incarceration (hereinafter, "the ten-year offer" or "the offer").1
At the conclusion of an eight-year state post-conviction proceeding, which included an evidentiary hearing extending over several days and an appeal to an intermediate state appellate court (which remanded forfurther factfinding by the post-conviction court), the state post-conviction court denied relief. In denying Merzbacher's claim, the state post-conviction court relied on information outside the proceeding's evidentiary record in finding that one of Merzbacher's attorneys, now deceased, had a reputation for dishonesty. Based on counsel's reputation, the court found that the lawyer was a liar and that she committed perjury in her testimony during the post-conviction hearing when she testified under oath that she had failed to advise Merzbacher of the ten year offer or to discuss it with him.2 Consequently, the court made a finding, which it acknowledged was contrary to all the direct evidence of record, that counsel advised Merzbacher of the ten-year offer. Furthermore, upon the remand of the case by the intermediate state appellate court, the post-conviction court found, without taking additional evidence, that counsel had fully discussed the offer with Merzbacher and that a fully-informed Merzbacher had rejected it.
The principal issues presented before this court are procedural and substantive. Procedurally, the questions presented are: (1) whether Merzbacher has clearly and convincingly rebutted the presumption of correctness that attends the state post-conviction court's findings that (a) his counsel advised him of the state's offer of a plea agreement and (b) his counsel fully informed him of his options in deciding whether to accept or reject the offer, see 28 U.S.C. § 2254(e)(1); and (2) whether the state post-conviction court's "decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." See 28 U.S.C. § 2254(d)(2). Substantively, if but only if Merzbacher succeeds on the procedural issues, the questions presented are: (1) whether Merzbacher has shown that his attorneys provided constitutionally deficient assistance; and, if so, (2) whether their deficient performance prejudiced him, that is, whether he has shown "a reasonable probability" that, but for counsels' "unprofessional errors," he would have pled guilty rather than proceed to trial. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The court has held a non-evidentiary hearing and counsel for the parties have filed extensive memoranda. The court has carefully pondered the matter in light of the parties' contentions, mindful of the heightened deference it must accord to state court decisions such as the one at bar, deference that federal law explicitly mandates in habeas claims instituted pursuant to 28 U.S.C. § 2254. For the reasons set forth within, the court finds and concludes that Merzbacher has carried his heavy burden to establish a right to relief. Accordingly, the court shall grant the writ. Specifically, the court shall order the state to return the case to the status quo ante and afford Merzbacher an opportunity to accept or reject its prior offer of a plea agreement. As explained within, however, before Merzbacher gains full relief, a judge of the circuit court must express a willingness to carry out the undertaking of his or her former colleague who bound himself, but perhaps not the court as a whole, to impose a sentence of ten years incarceration should Merzbacher elect to plead guilty pursuant to a fully negotiated plea agreement.
Merzbacher was indicted in the Circuit Court for Baltimore City on three counts of carnal knowledge of a female child underthe age of 14 years, one count of perverted practice, one count of rape, and one count of sexual child abuse. The victim of his offenses was Elizabeth Murphy. The Maryland Court of Appeals summarized the background of the prosecution as follows:
Joseph Merzbacher and Elizabeth Murphy first encountered each other in 1972 when Merzbacher was a teacher at the Catholic Community Middle School of Baltimore ("CCMS"). Murphy, who was eleven years at the time, was his student. According to Murphy, Merzbacher subjected her to three years of sexual, physical, and emotional violence. The torment ended when Murphy left CCMS in 1975. She did not reveal the substance of these attacks to anyone for some time. In 1979, she informed Sister Eileene Weisman of Merzbacher's behavior, but to no avail. She did so again in 1988, again without result. That same year Murphy sought advice from Father William Mannion, a former classmate of hers at CCMS. Mannion agreed to speak with Murphy at length about her experiences with Merzbacher. After doing so, Mannion reported the incidents to officials of the Archdiocese of Baltimore.
See Merzbacher v. State, 346 Md. 391, 697 A.2d 432, 434-35 (1997) (footnotes omitted).
The ten-year offer surfaced in the following manner. At the conclusion of one of several pretrial motions hearings, in December 1994, counsel for Merzbacher and prosecutors from the Office of the State's Attorney for Baltimore City met, in the absence of Merzbacher, in the chambers of the then presiding judge, the Honorable Clifton T. Gordy. It is undisputed that during this session, the prosecutors offered to Merzbacher through his lawyers, Christina Gutierrez (Merzbacher's retained counsel and the lead attorney) and William Kanwisher (Merzbacher's assigned public defender), an opportunity to plead guilty in consideration for which the prosecutors would recommend a sentence of ten years of incarceration.3 See Transcript of August 10, 2004, at 26. Specifically, the offer would have permitted Merzbacher to plead guilty to an unspecified number of indictment counts and receive a ten-year sentence in exchange for the state's nolle proesequi of an additional 15 or 16 indictments. It is undisputed that in the course of the December 1994 chambers conference, Judge Gordy bound himself to impose such a sentence. No plea agreement was ever consummated and, indeed, the record discloses that there was never a discussion of any plea agreement between or among counsel ever again.
The case went forward to trial before a jury presided over by the Honorable Robert I.H. Hammerman.4 The jury convicted Merzbacher on all counts on June 8, 1995. Merzbacher's motion for a new trial was denied on July 21, 1995, and he was sentenced to four concurrent life terms, withan additional ten-year term to run concurrently.
On direct appeal, Merzbacher raised the following claims:
Rejecting these assignments of error, the Court of Special Appeals of Maryland affirmed the judgment in an unreported opinion. Thereafter, the Court of Appeals of Maryland granted Merzbacher's petition for certiorari as to the following three issues: (1) the reasonable doubt instruction; (2) admission of the "bad acts" evidence; and (3) exclusion of favorable evidence. On July 28, 1997, the Court of Appeals affirmed the judgment of the Court of Special Appeals. Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997).
On July 20, 1998, Merzbacher filed a petition for post-conviction relief in the circuit court. In his petition, Merzbacher argued, inter alia, that his attorneys, Gutierrez and Kanwisher, provided constitutionally ineffective assistance when they failed to convey the ten-year offer to him and when they failed to advise him fully as to his options in respect to the ten-year offer.
The case was assigned to the Honorable William D. Quarles, who heard preliminary matters in the post-conviction proceeding. The state filed a motion for recusal of Judge Quarles and in April 2000, Judge Quarles granted the motion and recused.5 The matter was reassigned to the Honorable John N. Prevas. The court held evidentiary hearings and, eventually, oral argument, on several dates between October 31, 2000, and February 1, 2001. During the hearing, the court heard testimony regarding: (1) whether the state actually extended the ten-year offer to Merzbacher (through his attorneys); (2) whether Merzbacher's attorneys failed to convey the offerto Merzbacher for his consideration; (3) whether Merzbacher's attorneys fully and accurately advised Merzbacher of his...
To continue reading
Request your trial
- Meyer-Chatfield v. Century Bus. Servicing, Inc.
- Darby v. United States, Cr. No. 5:07-1253-MBS-1
-
Ambling Mgmt. Co. v. Univ. View Partners, LLC
... ... ECF No. 186. Because University View does not oppose this motion, see ECF No. 191, it will be granted. 3. See, e.g., Merzbacher v. Shearin, 732 F. Supp. 2d 527, 558 n.13 (D. Md. 2010) (citation and internal quotation marks omitted); Weinstein v. Islamic Rep. of Iran, 175 F ... ...