Danny Thompson v. Douglas Gansler ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6364
DANNY EUGENE THOMPSON,
Petitioner – Appellant,
v.
DOUGLAS F. GANSLER, Attorney General for the state of Maryland,
Respondent – Appellee,
and
PATRICIA GOINS-JOHNSON, Warden, Patuxent Institution Correctional Mental
Health Center - Jessup,
Respondent.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge. (1:14-cv-01268-WMN)
Argued: March 20, 2018 Decided: May 21, 2018
Before WYNN, FLOYD, HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Floyd
and Judge Harris concurred.
ARGUED: Stephen Bennett Mercer, RAQUINMERCER, LLC, Rockville, Maryland,
for Appellant. Edward John Kelley, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF: David W. Lease,
SMITH, LEASE & GOLDSTEIN, LLC, Rockville, Maryland, for Appellant. Brian E.
Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
In 2008, Petitioner Danny Eugene Thompson (“Petitioner”) stood trial in the
Circuit Court for Baltimore County, Maryland, for, among other things, murder and
armed robbery. At the end of his trial, the jury returned legally inconsistent verdicts, in
violation of Maryland law. However, Petitioner’s trial counsel did not object to the
verdicts. In state post-conviction proceedings, Petitioner alleged that his trial counsel’s
failure to object constituted ineffective assistance under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984). The state court concluded that
although Petitioner’s trial counsel performed deficiently by failing to object to the jury’s
inconsistent verdicts, his counsel’s deficient performance did not result in any prejudice.
Petitioner then sought relief in federal district court under 28 U.S.C. § 2254. The
district court denied Petitioner relief, but nonetheless granted him a certificate of
appealability. Because we agree with the state court’s conclusion that trial counsel’s
deficient performance did not result in any prejudice, we affirm the denial of Petitioner’s
request for relief.
I.
The evidence at Petitioner’s trial revealed the following. On the morning of May
10, 2008, Carlos Santay—a Guatemalan native who worked the night shift as a motel
housekeeper—returned home from work and found his pregnant girlfriend in labor.
However, Santay’s girlfriend was not yet ready to leave for the hospital. Thus, in
preparation for their eventual hospital trip, Santay left home and drove to a nearby gas
3
station to purchase enough fuel to transport his girlfriend to the hospital. At the gas
station, then-seventeen-year-old Petitioner approached Santay and offered to sell him a
music CD. Santay declined the offer.
Santay then walked to the cashier’s booth and took out his wallet to pre-pay for
gas. Petitioner, standing nearby, noticed several twenty-dollar bills inside Santay’s wallet
and attempted to steal the wallet. Santay resisted, and a struggle ensued. During the
struggle, Petitioner pulled out a knife and stabbed Santay to death. Petitioner then fled
the scene, taking off with a small piece of Santay’s wallet and no cash.
The police arrested Petitioner a few days later. While in custody, Petitioner
confessed to killing Santay, but stated that he never intended to stab him. According to
Petitioner, he intended only to “snatch” Santay’s wallet and run. Petitioner claimed that
he pulled out the knife only after Santay resisted his efforts.
On March 18, 2009, Petitioner stood trial in the Circuit Court for Baltimore
County, Maryland, on, inter alia, the following counts: (1) attempted robbery with a
dangerous weapon (“attempted armed robbery”); (2) robbery with a dangerous weapon
(“armed robbery”); (3) first-degree felony murder; and (4) first-degree premeditated
murder. 1 At trial, Petitioner—through counsel—conceded that he killed Santay. 2 But
Petitioner argued that Santay was the unfortunate victim of a “snatching” gone awry, not
1
Petitioner also was charged with second-degree murder, second-degree depraved
heart murder, and involuntary manslaughter. However, the jury did not return verdicts on
these counts.
2
Petitioner did not testify at trial.
4
armed robbery, because Petitioner lacked the intent to rob or kill Santay. Thus, Petitioner
contended that his actions warranted a conviction for manslaughter or second-degree
murder—not first-degree premeditated murder or felony murder.
In rebuttal, the State argued that, regardless of Petitioner’s original intent, the
attempted “snatching” morphed into armed robbery once Santay resisted and Petitioner
overcame his resistance. Therefore, in the State’s view, Petitioner’s actions warranted, at
the very least, convictions for both armed robbery and first-degree felony murder.
The trial court instructed the jury as follows regarding armed robbery, attempted
armed robbery, and first-degree felony murder:
In order to convict the Defendant of attempted robbery with a dangerous
weapon, the State must prove all of the elements of robbery and must also
prove that the Defendant committed the robbery by using a dangerous
weapon.
***
Robbery is the taking and carrying away of the property from someone else
by force or threat of force with the intent to deprive the victim of the
property. In order to convict the Defendant of robbery, the State must
prove theft, that is, that the Defendant took the property by force or threat
of force, and that the Defendant intended to deprive the victim of the
property.
***
If there is any injury to the person of the owner in the taking of the property
or if he resists the attempt to rob him and his resistance is overcome, there
is sufficient violence to make the taking robbery however slight the
resistance. In other words, sufficient force must be used to overcome
resistance and the mere force that is required to take possession when there
is no resistance is not enough.
***
Attempt. Attempt is a substantial step beyond mere preparation toward the
commission of a crime. In order to convict the Defendant of attempted
robbery with a dangerous weapon, the State must prove that the Defendant
took a substantial step beyond mere preparation toward the commission of
the crime of robbery with a dangerous weapon and that the Defendant
intended to commit the crime of robbery with a dangerous weapon.
5
***
In order to convict the Defendant of robbery with a dangerous weapon the
State must prove all of the elements of robbery and must also prove that the
Defendant committed the robbery by using a dangerous weapon.
***
In order to convict the Defendant of first degree felony murder the State
must prove that the Defendant attempted to commit the felony of robbery
with a dangerous weapon, that the Defendant killed the victim and that the
act resulting in the death of the victim occurred during the attempted
commission of the felony, that is, robbery with a dangerous weapon.
Transcript of Proceedings, ECF No. 39-1, at 70:15–73:1 (formatting altered). During
deliberations, the jury sent a message to the trial court requesting clarification on the
word “attempted.” Id. at 131:23–32:4. Around this same time, the parties also
discovered a typographical error in the instruction regarding felony murder. Id. at 134:1–
10. Specifically, the instruction omitted the phrases “committed or attempted to commit”
and “the commission or attempted commission.” See id. Accordingly, the trial court
provided the jury with corrected written instructions and orally instructed the jury as
follows with respect to felony murder:
[Y]ou will see that in order to find the Defendant guilty of first degree
felony murder, you would have to find that he committed or attempted to
commit the felony of robbery, that he did, in fact, kill the victim, and that
the act resulting in the death of the victim occurred during the commission
or attempted commission of a felony.
Transcript of Proceedings, ECF No. 39-2, at 4:2–9 (emphases added).
On March 23, 2009, the jury convicted Petitioner of armed robbery and felony
murder, and acquitted him of attempted armed robbery and first-degree premeditated
murder. Petitioner’s counsel did not object to the verdicts. Petitioner’s counsel then filed
a motion for a new trial on grounds unrelated to this appeal. The trial court denied the
6
motion. Petitioner thereafter was sentenced to life imprisonment, with all but fifty years
suspended.
Petitioner appealed his conviction to the Maryland Court of Special Appeals.
There, he raised several issues, but did not assert that the jury verdicts rendered in his
case—not guilty of attempted armed robbery, but guilty of armed robbery and felony
murder—were legally inconsistent. The Court of Special Appeals affirmed his
conviction. Petitioner subsequently filed a Petition for Writ of Certiorari to the Court of
Appeals of Maryland. The Court of Appeals denied his petition.
Petitioner then sought relief in the same court where his trial was conducted, the
Circuit Court for Baltimore County. Accordingly, in this new posture the Circuit Court
served as the state post-conviction review court (“state PCR court”). There, Petitioner
alleged, inter alia, that his trial counsel rendered constitutionally ineffective assistance by
failing to object to the fact that the jury rendered legally inconsistent verdicts, in violation
of Maryland law. According to Petitioner, his trial counsel’s failure to object to the
inconsistent jury verdicts constituted ineffective assistance of counsel, depriving
Petitioner of his Sixth Amendment right to effective counsel under the United States
Constitution.
The state PCR court held a hearing on November 28, 2012. During this hearing,
Petitioner’s trial counsel testified that, at the time of Petitioner’s trial, she was unaware of
the Court of Appeals of Maryland’s decision issued nine months prior in Price v. State,
949 A.2d 619, 627–30 (Md. 2008). In that case, the Court of Appeals abrogated long-
standing Maryland common law by holding that, upon objection by a defendant, legally
7
inconsistent jury verdicts in criminal cases “shall no longer be allowed.” Id. at 630.
Petitioner’s trial counsel testified that she would have objected to the verdicts returned at
Petitioner’s trial had she been aware of Price v. State. Petitioner, who also was present at
the hearing, testified that trial counsel never discussed the issue of inconsistent verdicts
with him. Petitioner testified further that he would have challenged the inconsistency of
his verdicts had he known the verdicts violated Maryland law.
The state PCR court analyzed Petitioner’s ineffective-assistance claim under the
standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and concluded
that “trial counsel’s failure to object to Petitioner’s legally inconsistent verdicts, on
account of her admitted ignorance of the law, constituted a deficient performance.” J.A.
at 181. Nevertheless, the state PCR court denied relief to Petitioner, as it found that
Petitioner had not been prejudiced by his counsel’s deficient performance. Specifically,
the state PCR court was convinced “beyond a reasonable doubt that, had an objection
been made, the jury would have simply been instructed on the range of permissible
verdicts, and would then have returned a guilty verdict on attempt in addition to the guilty
verdicts for armed robbery and felony murder.” Id. at 183–84.
Petitioner then petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254in the U.S. District Court for the District of Maryland. In his petition, Petitioner argued
that the state PCR court unreasonably applied Strickland, “engaged in impermissibl[e]
speculation,” and “usurped the role of the jury” when it concluded that Petitioner suffered
no prejudice as a result of his trial counsel’s deficient performance. Id. at 168.
8
The State responded that the decision whether to object to legally inconsistent
verdicts is a matter of trial strategy, because the result of a timely objection—further jury
deliberation—necessarily places the defendant at risk of being convicted of an additional
count. Thus, in the State’s view, the state PCR court erred when it found that trial
counsel performed deficiently. Nevertheless, the State agreed with the state PCR court’s
conclusion that Petitioner did not suffer prejudice from his trial counsel’s performance.
The district court denied Petitioner’s petition. In so doing, the district court
rejected the state PCR court’s conclusion that Petitioner’s trial counsel had performed
deficiently by failing to object to the jury verdicts. Instead, the district court concluded
that Petitioner failed to establish his trial counsel’s deficient performance because, “[i]n
light of the jury’s finding that [Petitioner] was guilty of committing robbery, not
attempting one, it was clear that the jury had rejected the defense’s argument that the
State’s evidence did not support all the elements of robbery.” Id. at 256. Thus, in the
district court’s view, “[t]rial counsel’s failure to object to the inconsistent
verdicts . . . was neither constitutionally deficient nor did it result in prejudice to
[Petitioner].” Id.In addition, the district court initially denied Petitioner a certificate of
appealability, reasoning that Petitioner had failed to make “a substantial showing of the
denial of a constitutional right.” Id. at 257 (quoting 28 U.S.C. § 2253(c)(2)). However,
Petitioner subsequently filed a motion to alter or amend the district court’s judgment,
arguing, inter alia, that the district court should issue a certificate of appealability
because “reasonable jurists could disagree with the decision made.” Id. at 262. The
9
district court thereafter agreed and thus granted Petitioner’s request for a certificate of
appealability, which Petitioner used to note this timely appeal. Id. at 264.
On appeal, Petitioner contends that the district court erred in denying his Section
2254 petition because the state PCR court unreasonably applied Strickland. His
argument proceeds as follows: the jury verdicts returned at trial—guilty of armed robbery
and felony murder yet not guilty of attempted armed robbery—are legally inconsistent
and therefore objectionable under Maryland law; his trial counsel performed deficiently
by failing to object, resulting in Strickland prejudice; the state PCR court correctly
determined that his counsel’s performance was deficient but unreasonably concluded that
Petitioner suffered no prejudice as a result; and, finally, the district court erred in
concluding that there was neither deficient performance nor prejudice.
The State disagrees. In its view, the district court properly denied Petitioner’s
petition because the state PCR court’s denial of Petitioner’s ineffective assistance claim
was not unreasonable under Strickland.
II.
We review de novo a district court’s denial of relief under Section 2254. Teleguz
v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012). In so doing, we apply the same standard
the district court was required to apply. Jones v. Sussex I State Prison, 591 F.3d 707, 712
(4th Cir. 2010). Because this appeal concerns a petition for relief under Section 2254,
our review of the state court’s decision is constrained by the “highly deferential” standard
set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
10
U.S.C § 2254(d). Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015). In particular, under
AEDPA, federal courts may not grant habeas relief in a Section 2254 action unless the
underlying state-court adjudication:
(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 of the United States; 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. § 2254(d).
With respect to Section 2254(d)(1), “[a] state court’s decision is ‘contrary to’
clearly established federal law only if it is ‘substantially different’ from the relevant
Supreme Court precedent; it is ‘an unreasonable application of’ clearly established
federal law only if it is ‘objectively unreasonable.’” Wolfe v. Johnson, 565 F.3d 140, 159
(4th Cir. 2009) (quoting Williams (Terry) v. Taylor, 529 U.S. 362, 405, 409 (2000)).
Additionally, the Supreme Court has explained that the term “unreasonable” as used in
Section 2254(d)(1) means something more than merely “incorrect.” Williams (Terry),
529 U.S. at 410. As to Section 2254(d)(2), the Supreme Court has explained that “a
state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” Wood v. Allen, 558
U.S. 290, 301 (2010). In other words, to obtain habeas corpus relief in federal court
under either section, “a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
11
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
We review Petitioner’s ineffective-assistance claim based on the standard
articulated in Strickland. The Sixth Amendment of the United States Constitution
guarantees “the right to the effective assistance of counsel.” Strickland, 466 U.S. at 686.
A claim of constitutionally ineffective assistance has two components. “First, the
defendant must show that counsel’s performance was deficient. . . . Second, the defendant
must show that the deficient performance prejudiced the defense.” Id. at 687. If a
defendant fails to satisfy either component, such failure ends our analysis. Id.“The first prong—constitutional deficiency—is necessarily linked to the practice
and expectations of the legal community.” Padilla v. Kentucky, 559 U.S. 356, 366
(2010). Accordingly, Petitioner must demonstrate that his counsel’s representation “fell
below an objective standard of reasonableness,” judged in light of “prevailing
professional norms.” Strickland, 466 U.S. at 688. Put differently, “[t]his requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
Even if Petitioner proves deficient performance, he must still show “prejudice”—
that is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. In
making this showing, Petitioner need not demonstrate that his counsel’s unprofessional
errors more likely than not altered the outcome of the case. Id. at 693. However, it is
12
also “not enough for the defendant to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id (emphasis added). Instead, trial counsel’s errors
must be “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687.
Our Strickland analysis—a deferential analysis in its own right—must be viewed
through the deferential lens of Section 2254(d). Accordingly, when we review a state
court’s decision on a claim of ineffective assistance, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable.” Harrington, 562
U.S. at 101. As the Supreme Court explained, “[e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Id.
at 105. This is because “[t]he standards created by Strickland and § 2254(d) are both
highly deferential, . . . and when the two apply in tandem, review is doubly so.” Id.
(internal citations and quotation marks omitted). In other words, when we evaluate a
claim of ineffective assistance within the strictures of Section 2254, we must “give[] both
the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S.
12, 15 (2013). Consequently, so long as “fairminded jurists could disagree on the
correctness of the state court’s decision,” a petitioner is not entitled to federal habeas
relief. Harrington, 562 U.S. at 101 (internal quotation mark omitted).
Guided by these legal principles, we turn to the case before us.
A.
As a threshold matter, the State argues that Petitioner’s appeal should be dismissed
because the district court erred in granting him a certificate of appealability. Specifically,
13
the State argues that Petitioner failed to make a “substantial showing of the denial of a
constitutional right”—a prerequisite to the issuance of the certificate. See 28 U.S.C.
§ 2253(c)(2). Thus, the State maintains, the district court never should have issued the
certificate, and we should correct its error by rescinding the certificate and dismissing
Petitioner’s appeal. In response, Petitioner argues that the State waived its right to
challenge the issuance of the certificate by failing to file a cross-appeal. We agree with
Petitioner.
“An appellee who does not take a cross-appeal may ‘urge in support of a decree
any matter appearing before the record, although his argument may involve an attack
upon the reasoning of the lower court.’” Jennings v. Stephens, 135 S. Ct. 793, 798
(2015) (quoting United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924)). “But
an appellee who does not cross-appeal may not ‘attack the decree with a view either to
enlarging his own rights thereunder or of lessening the rights of his adversary.’” Id.(quoting Am. Ry., 265 U.S. at 435). Put differently, in determining whether a cross-
appeal is necessary to advance an argument on appeal, the dispositive inquiry is whether
an appellee who has not filed a cross-appeal is trying to enlarge its own rights or lessen
the appellant’s rights. If the appellee wishes to do either, then the appellee is required to
cross-appeal the district court’s judgment. If not—that is, if the appellee is simply
attacking (or supporting) the lower court’s reasoning—then no cross-appeal is required.
This requirement is well-settled. See, e.g., id. at 798–99 (holding that prisoner
was not required to cross-appeal or seek certificate of appealability when the state
appealed district court’s grant of habeas corpus to prisoner on one ground—allowing for
14
his release or re-sentencing—and prisoner sought affirmance on alternative ground that
would have resulted in identical relief); El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473,
479–80 (1999); United States v. Burch, 781 F.3d 342, 344 (6th Cir. 2015) (“As the
government’s goal is to restrict Burch’s right to appeal and not to ‘support’ the rest of the
district court’s judgment . . . the government should have appealed the district court’s
order beforehand.” (citing Jennings, 135 S. Ct. at 798)); Remijas v. Neiman Marcus Grp.,
LLC, 794 F.3d 688, 697 (7th Cir. 2015) (concluding that defendant-appellee’s alternative
argument that plaintiff-appellant failed to state a claim under Fed. R. Civ. P. 12(b)(6)
required cross-appeal when district court dismissed plaintiff-appellant’s claim without
prejudice for lack of Article III standing); Thurston v. United States, 810 F.2d 438, 447
(4th Cir. 1987) (rejecting government’s argument that the district court erred in awarding
$200 in attorney fees to plaintiff where government raised argument in its response brief
but failed to file cross-appeal).
In this case, the district court denied Petitioner relief under Section 2254 but
nonetheless issued him a certificate of appealability. Absent such a certificate, “an
appeal may not be taken to the court of appeals from . . . the final order in a habeas
corpus proceeding in which the detention complained of arises out of process issued by a
State court.” 28 U.S.C. § 2253(c)(1)(A). Thus, the issued certificate granted Petitioner
the right to appeal the district court’s decision. The State, without cross-appealing the
district court’s judgment, now urges us to rescind Petitioner’s certificate. In other words,
the State seeks to lessen (or deprive altogether) Petitioner’s right to appeal. For us to
consider its argument on this point, the State was required to file a cross-appeal or some
15
other form of timely objection. The State failed to do so. Therefore, we proceed to the
merits of Petitioner’s claim. 3
B.
We first address whether Petitioner’s trial counsel performed deficiently under
Strickland. The state PCR court thought so, concluding that, “under the circumstances of
this case, . . . trial counsel’s failure to object to Petitioner’s legally inconsistent verdicts,
on account of her admitted ignorance of the law, constituted a deficient performance.”
J.A. 181. But the district court disagreed. In particular, the district court stated that while
trial counsel’s failure to object to the presence of legally inconsistent verdicts is a “viable
basis for some relief” under Maryland law, it “is not a federal, constitutional error.” Id. at
260. From this observation, the district court concluded that “failure by . . . counsel to
raise an objection based on state law does not constitute performance that [is] deficient
3
During oral argument, the State for the first time contended that 28 U.S.C.
§ 2253(c)(2) was a “jurisdictional” requirement, requiring this Court to independently
determine that the district court properly issued the certificate of appealability. See Oral
Argument at 13:15–14:50. Not so. As the Supreme Court has explained,
Section 2253(c)(2) speaks only to when a [certificate of appealability] may
issue—upon ‘a substantial showing of the denial of a constitutional right.’
It does not contain § 2253(c)(1)’s jurisdictional terms. . . . And it would be
passing strange if, after a [certificate of appealability] has issued, each court
of appeals adjudicating an appeal were dutybound to revisit the threshold
showing and gauge its ‘substantial[ity]’ to verify its jurisdiction. That
inquiry would be largely duplicative of the merits question before the court.
Gonzalez v. Thaler, 565 U.S. 134, 143 (2012) (internal citation omitted). Of course, that
Section 2253(c)(2) is “nonjurisdictional does not mean that it is not mandatory or that a
timely objection can be ignored.” See id. at 146. But it does mean that the State must
raise a “timely objection” to the issuance of the certificate. Id. (emphasis added).
16
for purposes of federal habeas relief.” Id. at 260–61. We disagree with the district
court’s analysis.
First, although it is true that Petitioner’s legally inconsistent verdicts were
objectionable under state law only, see United States v. Powell, 469 U.S. 57, 64–65
(1984), whether counsel’s failure to object resulted in deficient performance is, of course,
a question of federal constitutional law, see Strickland, 466 U.S. at 687. Put differently,
“the issue of ineffective assistance—even when based on the failure of counsel to raise a
state law claim—is one of constitutional dimension.” Alvord v. Wainwright, 725 F.2d
1282, 1291 (11th Cir. 1984), superseded by statute on other grounds, Insanity Defense
Reform Act of 1984, 18 U.S.C. § 17; see also Fagan v. Washington, 942 F.2d 1155, 1158
(7th Cir. 1991) (Posner, J.) (“[T]he constitutional right to counsel, and its derivative right
that counsel be at least minimally effective, is unrelated to the source—whether state or
federal—of the defendant’s defenses.”); cf. Estelle v. McGuire, 502 U.S. 62, 67–68
(1991) (concluding that federal habeas relief is not available for errors violating
California law, but is available for errors that violate “federal constitutional rights”).
Here, Petitioner’s claim is predicated on an alleged violation of his Sixth Amendment
right to effective counsel. Therefore, it is cognizable under Section 2254(d).
Additionally, much of the district court’s independent review of trial counsel’s
performance rests on erroneous reasoning. To begin, the district court incorrectly
conflated Strickland’s deficient performance and prejudice components. In particular, in
reviewing whether Petitioner established deficient performance, the district court relied in
part on language found in Strickland, stating that “[a]n error by counsel even if
17
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” J.A. 256 (quoting Strickland, 466
U.S. at 691)). But this language goes toward the prejudice component of Strickland—
namely, whether there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. It does not determine whether trial counsel’s performance “fell below an objective
standard of reasonableness,” judged against “prevailing professional norms,” id. at 688—
the cornerstone inquiry of deficient performance.
The district court’s conclusion also runs counter to the myriad controlling opinions
standing for the proposition that acts or omissions made by counsel under a mistaken
belief or an ignorance of law are rarely—if ever—“reasonable” in light of prevailing
professional norms. See, e.g., Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) (per
curiam) (“The trial attorney’s failure to request additional funding in order to replace an
expert . . . because he mistakenly believed that he had received all he could get under
Alabama law constituted deficient performance.”); Williams (Terry), 529 U.S. at 395–96
(finding deficient performance when capital attorneys “failed to conduct an investigation
that would have uncovered extensive [mitigation evidence], not because of any strategic
calculation but because they incorrectly thought that state law barred access to such
records”); Kimmelman v. Morrison, 477 U.S. 365, 385–87 (1986) (finding deficient
performance when “[c]ounsel’s failure to request discovery . . . was not based on
‘strategy,’ but on counsel’s mistaken beliefs that the State was obliged to take the
initiative and turn over all of its inculpatory evidence to the defense and that the victim’s
18
preferences would determine whether the State proceeded to trial after an indictment had
been returned”); see also United States v. Carthorne, 878 F.3d 458, 467 (4th Cir. 2017)
(“Of course, counsel may have a strategic reason for not raising a particular objection but,
in the absence of such a reason, the failure to raise an objection that would be apparent
from a thorough investigation is a significant factor in evaluating counsel’s
performance.”); Gray v. Branker, 529 F.3d 220, 232 (4th Cir. 2008) (finding deficient
performance when “there [was] no indication that [trial counsel] understood that expert
mental health evidence could be critical to the jury’s decision on sentencing” and “failure
to investigate in this area was unreasonable under prevailing professional norms”);
Vinson v. True, 436 F.3d 412, 419 (4th Cir. 2006) (“On habeas review, a federal court
generally credits plausible strategic judgments in the trial of a state case. . . . Of course,
we would not regard as tactical a decision by counsel if it made no sense or was
unreasonable under prevailing professional norms.” (internal citation and quotation marks
omitted)); Thomas-Bey v. Nuth, 67 F.3d 296 (4th Cir. 1995) (unpublished after argument)
(per curiam) (finding trial counsel performed deficiently when counsel’s consent to a
post-trial, pre-sentencing interview of defendant by a prosecution-employed psychiatrist
was not based on trial strategy but rather “complete ignorance” of the fact that the
psychiatrist was employed as an expert for the prosecution).
The district court also erred in accepting the State’s argument that Petitioner’s trial
counsel may have made a deliberate strategic choice to refrain from objecting to the
legally inconsistent verdicts, as an objection could have resulted in the jury redeliberating
and ultimately convicting Petitioner of an additional felony—namely, attempted armed
19
robbery. By not objecting, the State continues, trial counsel’s “inaction actually saved
Petitioner from an additional felony conviction.” Appellee’s Br. at 32 (emphasis added).
We disagree.
To begin, the district court’s conclusion that trial counsel’s decision not to object
reflected a strategic choice runs contrary to her unrebutted testimony—credited by the
state PCR court—that had she been aware of the precedent rendering the legal
inconsistent verdicts unlawful she would have objected. Consequently, the testimony of
Petitioner’s trial counsel expressly contradicts the State’s postulate that her failure to
object reflected a trial strategy. Because she was unaware that legally inconsistent
verdicts violated Maryland law, Petitioner’s trial counsel was “not in a position to make
an informed strategic choice” about whether to object to the jury’s verdicts. Gray, 529
F.3d at 231 (internal brackets omitted).
Additionally, the State’s trial strategy argument ignores the fact that—even in the
worst-case scenario—had the jury redeliberated and thereafter convicted Petitioner of an
attempted armed robbery count, that count simply would have “merged” into the armed
robbery count. See Nicolas v. State, 44 A.3d 396, 405–406 (Md. 2012); McGrath v.
State, 736 A.2d 1067, 1068–69 (Md. 1999). 4 In other words, because the jury had
already found him guilty of armed robbery and first-degree felony murder, Petitioner
4
An illustration of merger is present in this case. Because Petitioner’s conviction
for first-degree felony murder was predicated on his conviction for armed robbery, his
armed robbery conviction “merged” with the felony murder conviction, and he was
punished for the latter only. See J.A. 4–5.
20
faced no additional consequences resulting from a conviction for attempted armed
robbery. Thus, there was no downside to trial counsel raising a timely objection to the
legally inconsistent verdicts.
By contrast, as Petitioner correctly argues, there was “tremendous upside” to a
timely objection. Appellant’s Br. at 26. Had that occurred, the jury would have re-
deliberated and may have returned a new verdict acquitting Petitioner of armed robbery
and felony murder. By failing to object—based on ignorance, not strategy—Petitioner’s
trial counsel unreasonably deprived him of the opportunity to have the jury deliberate
further on whether he was, in fact, guilty of robbery (and by extension, felony murder).
Accordingly, we agree with the state PCR court’s conclusion that, under the
circumstances of this case, Petitioner’s trial counsel performed deficiently when she
failed to object to the legally inconsistent verdicts.
C.
Having agreed with the state PCR court’s finding of deficient performance, we
next consider whether the state PCR court unreasonably applied Strickland in concluding
that Petitioner failed to show prejudice as a result of his counsel’s deficient performance.
In denying Petitioner post-conviction relief, the state PCR court concluded that it
was “convinced beyond a reasonable doubt that, had an objection been made, the jury
would have simply been instructed on the range of permissible verdicts, and would then
have returned a guilty verdict on attempt in addition to the guilty verdicts for armed
robbery and felony murder.” J.A. 183–84. Petitioner argues that the state PCR court
engaged in “pure speculation” when it reached this conclusion. Appellant’s Br. at 26–28.
21
We disagree. In concluding that Petitioner failed to show prejudice, the state PCR court
relied on the evidence presented against Petitioner at trial, as well as the verdicts returned
by the jury. This determination did not amount to “an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d), as the Supreme Court has construed that provision.
For one thing, as the state PCR court observed, the jury simply was not instructed
that a conviction for armed robbery necessarily entails a conviction for attempted armed
robbery; nor was the jury instructed that its verdicts must be legally consistent.
Additionally, the state PCR court reasonably relied on the fact that the jury returned a
guilty verdict against Petitioner on the armed robbery count in addition to a guilty verdict
on the felony murder count. The trial court’s felony murder instruction made clear that
the jury first must find Petitioner guilty of a predicate felony—namely, attempted armed
robbery or armed robbery—to return a guilty verdict against him on the first-degree
felony murder count:
[I]n order to find the Defendant guilty of first degree felony murder, you
would have to find that he committed or attempted to commit the felony of
robbery, that he did, in fact, kill the victim, and that the act resulting in the
death of the victim occurred during the commission or attempted
commission of a felony.
Transcript of Proceedings, ECF No. 39-2, at 4:3–9 (emphases added). Thus, it was not
unreasonable for the state PCR court to conclude that the jury clearly expressed its belief
that Petitioner was guilty of armed robbery when it returned guilty verdicts on both the
armed robbery and felony murder counts.
22
Had the jury returned two verdicts only—one convicting Petitioner of armed
robbery and another acquitting him of attempted armed robbery—Petitioner’s claim may
have been stronger. But the jury convicted Petitioner of armed robbery and felony
murder, with the latter crime requiring a preliminary finding that Petitioner was guilty of
either attempting or committing armed robbery. This additional conviction supports the
finding that the jury did, in fact, determine that Petitioner was guilty of committing armed
robbery. Based on these particular circumstances, we do not find unreasonable the state
PCR court’s conclusion that Petitioner failed to show a reasonable probability that, but
for his trial counsel’s failure to object to the legally inconsistent verdicts, the result of his
trial would have been different. See Strickland, 466 U.S. at 694–96. Accordingly, the
state PCR court reasonably applied Strickland in denying Petitioner relief.
III.
For reasons stated above, the judgment of the district court is
AFFIRMED.
23