Colvin-El v. Nuth ( 1999 )

Filed: June 29, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 98-27(L)
(CA-97-2520-8-AW)
Eugene Sherman Colvin-El,
Petitioner - Appellee,
versus
Eugene Nuth, etc., et al,
Respondents - Appellants.
O R D E R
The court amends its opinion filed June 17, 1999, as follows:
On the cover sheet, section 4, line 3 -- “J. Frederick Motz,
Chief District Judge” is deleted.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EUGENE SHERMAN COLVIN-EL,
Petitioner-Appellee,
v.
EUGENE NUTH, Warden; J. JOSEPH
CURRAN, JR.,
No. 98-27
Respondents-Appellants.
JOHN MARVIN BOOTH; WESLEY
EUGENE BAKER; KENNETH LLOYD
COLLINS; STEVEN H. OKEN,
Amici Curiae.
EUGENE SHERMAN COLVIN-EL,
Petitioner-Appellant,
v.
EUGENE NUTH, Warden; J. JOSEPH
CURRAN, JR.,
No. 98-29
Respondents-Appellees.
JOHN MARVIN BOOTH; WESLEY
EUGENE BAKER; KENNETH LLOYD
COLLINS; STEVEN H. OKEN,
Amici Curiae.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-97-2520-8-AW)
Argued: April 8, 1999
Decided: June 17, 1999
Before WILKINSON, Chief Judge, and NIEMEYER
and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished opin-
ion. Judge Niemeyer wrote the opinion, in which Chief Judge Wilkin-
son and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Annabelle Louise Lisic, Assistant Attorney General,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellant. Jose Felipe Anderson,
Baltimore, Maryland; John H. Morris, Jr., Baltimore, Maryland, for
Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney General of
Maryland, Criminal Appeals Division, OFFICE OF THE ATTOR-
NEY GENERAL, Baltimore, Maryland, for Appellant. Nevett Steele,
Jr., Michael J. Gentile, Towson, Maryland, for Amicus Curiae Booth;
Gary W. Christopher, Assistant Federal Public Defender, Baltimore,
Maryland; William B. Purpura, Baltimore, Maryland, for Amicus
Curiae Baker; Peter E. Keith, GALLAGHER, EVELIUS & JONES,
Baltimore, Maryland; Charles G. Bernstein, Baltimore, Maryland;
Neil Ian Jacobs, Rockville, Maryland, for Amicus Curiae Collins;
Fred Warren Bennett, CATHOLIC UNIVERSITY LAW SCHOOL,
Washington, D.C., for Amicus Curiae Oken.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Eugene Colvin-El was convicted by the State of Maryland for the
murder of Lena Buchman and sentenced to death. Acting on Colvin-
2
El's petition for writ of habeas corpus filed under 28 U.S.C. § 2254,
the district court granted the petition on a claim of ineffective counsel
and ordered Maryland to provide Colvin-El with another sentencing
hearing. The court denied all other claims that Colvin-El alleged in
his petition. Because we conclude that the state court's decision deny-
ing Colvin-El post-conviction relief on this basis was a reasonable
application of Strickland v. Washington, 466 U.S. 668 (1984), we
reverse the district court's order insofar as it granted the writ and
affirm all other aspects.
I
At 2:30 p.m. on September 9, 1980, Lena Buchman, 82, who had
arrived from Florida during the morning to visit her daughter, Marjo-
rie Surell, at her home in Pikesville, Maryland, was found brutally
murdered. Buchman had been stabbed approximately 28 times with
a serrated knife taken from the kitchen of the Surell home. After hav-
ing arrived at Surell's home at 11:00 a.m., Buchman had lunch with
Surell's daughter, Susan Rubin, who then left at 1:00 p.m. Buchman
was found in a pool of blood in the front hallway of Surell's home
one and one-half hours later by a neighbor, who, when noticing that
Surell's dog was loose, entered the front door. The screen door was
unlocked and the inner wooden door was open.
Police investigating that day found the glass in the rear basement
door broken, and the door unlocked. The glass from the door had been
removed from the window and had been stacked on the stairwell.
Police recovered numerous clear fingerprints from these pieces of
broken glass. Police also found an ironing board, which had been kept
leaning against the door, lying flat on the floor. The door would only
open approximately four inches because a metal storage cabinet
blocked it from opening further. Before leaving that day, Susan Rubin
had been downstairs and seen that the door at that time was closed
and that the ironing board was leaning against it. Marjorie Surell like-
wise noticed this condition earlier the same morning.
Police found the serrated knife at the foot of the basement stairs.
The master bedroom of Surell's home had been ransacked, and jew-
elry and two watches were reported stolen. The jewelry and the
watches were readily identifiable as they had been appraised a couple
3
of months earlier. Other jewelry was recovered from the driveway.
Police recovered Buchman's purse from the kitchen and removed a
fingerprint from a piece of paper on a notepad in the purse.
A neighbor interrogated by police on the day of the murder told
police that she observed two black males walk past her house at about
2:00 p.m., that another black male had ridden by on a bicycle, and
that a white female was in the neighborhood "appear[ing] to be col-
lecting or doing a survey." Another neighbor told police that a bicycle
found by police in Surell's driveway was his and that he had seen it
last in his yard about 2:15 p.m. on the day of the murder.
Four months after the murder, Colvin-El, who is black, was
arrested for an unrelated breaking and entering. At the time of his
arrest, he was carrying an identification card issued by the Maryland
Motor Vehicle Administration which gave his name as Eugene Sher-
man Colvin and his address at 615 Brice Street. It also included a pic-
ture of Colvin-El. Fingerprints taken from Colvin-El following this
arrest matched those taken from the broken glass at Surell's house.
Subsequently uncovered transaction sheets from pawn shops in the
vicinity showed that on September 17, 1980, eight days after Mrs.
Buchman's murder, Colvin-El pawned two watches. The transaction
recorded the identification card number of Colvin-El, and both
watches were readily identifiable as those taken from Surell's home
-- one by serial number.
Colvin-El was arrested for the Buchman murder and the state trial
court appointed attorney Robert Payne to represent him. Payne and
Colvin-El, however, had a poor relationship, and Colvin-El maintains
in his brief that prior to trial he and Payne jointly moved to end their
relationship, a request that he claims the state court denied. This,
however, does not appear in the record.
At trial, police detectives maintained that Colvin-El entered Sur-
ell's home through the basement door where Colvin-El's prints had
been found. Payne, however, did not challenge this theory by cross-
examining the detectives on the fact that the door could open only
approximately four inches. Additionally, Payne did not bring out evi-
dence that might have suggested that other persons seen in the neigh-
borhood on the day of the murder might have been perpetrators.
4
Payne also did not suggest the possibility of some other perpetrator
based on the unidentified fingerprint found on the piece of paper in
Mrs. Buchman's purse, which was shown not to have been that of
Colvin-El. Finally, Payne failed to offer evidence that jewelry had
been found by police outside of the house in the driveway.
Colvin-El chose not to testify and Payne put on no proof during the
guilt phase of the trial. Colvin-El was convicted of first degree mur-
der, robbery with a deadly weapon, and daytime housebreaking. In
answers to special interrogatories, the jury found that Colvin-El's first
degree murder conviction was based on (1) premeditation, (2) a kill-
ing committed in connection with a robbery, and (3) a killing commit-
ted in connection with a daytime housebreaking. Any one of these
findings was sufficient to support the verdict of murder in the first
degree. After a separate sentencing hearing, the jury sentenced
Colvin-El to death.
Colvin-El's conviction and sentence were upheld by the Maryland
Court of Appeals, Colvin v. State, 472 A.2d 953 (Md. 1984) ("Colvin
I"), and the United States Supreme Court denied Colvin-El's petition
for writ of certiorari, 469 U.S. 873 (1984).
On post-conviction review, the Circuit Court for Anne Arundel
County denied relief in connection with the guilt phase of trial based
on various grounds, including the alleged ineffectiveness of counsel
for not presenting evidence relating to other possible perpetrators.
Payne testified that he believed the evidence of other suspects might
have been important, but that he acceded to Colvin-El's wishes.
Payne stated, "Mr. Colvin, earlier in the case, told me that he didn't
want other people brought into it as he wasn't there. He didn't want
anyone to think that he was there with someone else." The circuit
court, however, vacated Colvin-El's death sentence and ordered a
new capital sentencing hearing because three convictions obtained
while Colvin-El was between the ages of 16 and 18 should not have
been presented to the jury during the sentencing proceeding. Both the
State of Maryland and Colvin-El appealed and the Maryland Court of
Appeals affirmed. State v. Colvin, 548 A.2d 506 (Md. 1988) ("Colvin
II"). It agreed with the circuit court that the three earlier convictions
should not have been introduced and ruled that resentencing was
required also because the jury form used in the sentencing was uncon-
5
stitutional. The court declined to decide Colvin-El's claim that Payne
had been ineffective as Colvin-El's counsel because the court found
that any alleged ineffectiveness did not prejudice Colvin-El at the
guilt portion of his trial. None of the information that Payne failed to
present to the jury could have created a reasonable doubt that Colvin-
El was not at least a burglar and an accomplice in the murder, leaving
him liable for first degree felony murder. The court noted that the
matters that Colvin-El's attorney allegedly should have presented
related only to whether Colvin-El should receive the death penalty.
Since this issue was to be decided by a new jury at another sentencing
hearing, the court concluded that Colvin-El could show no prejudice.
During the resentencing proceeding, the jury was required to
assume that Colvin-El had been properly convicted of first degree
murder, but it was required to determine four issues: (1) whether
Colvin-El was a principal in the first degree in the murder, a legal pre-
requisite to receipt of the death penalty; (2) whether the murder was
committed during a robbery or attempted robbery; (3) whether there
were any mitigating circumstances; and (4) whether the aggravating
circumstances outweighed the mitigating circumstances. Colvin-El v.
State, 630 A.2d 725, 728 (Md. 1993) ("Colvin III"). The jury received
evidence on all four of these issues, including (1) victim impact evi-
dence, (2) Colvin-El's prior convictions, (3) evidence put on by
Colvin-El of sightings of persons considered by the beholders to be
"suspicious," and (4) evidence of other persons suspected of break-
ins. Colvin-El also told the jury that "I did not go into the Surell's
house, rob, hurt, or kill Ms. Buchman." The court instructed the jury
on how to apply the evidence to the questions presented to it.
The resentencing jury found that Colvin-El was a principal in the
first degree -- that is, that he had actually done the stabbing -- and
that the murder was committed during a robbery. The jury found no
statutory mitigating factors, but found one nonstatutory mitigating
factor, that Colvin-El did not premeditate the murder. Additionally,
one or more, but less than all 12 of the jurors found that Colvin-El
was not likely to be a threat to others in prison society and that
Colvin-El had some qualities that could be socially constructive
within prison society. The jury unanimously found, however, that the
aggravating circumstances outweighed the mitigating circumstances
and sentenced Colvin-El to death. On appeal from this second sen-
6
tencing hearing, the Maryland Court of Appeals affirmed. Colvin III,
630 A.2d 725.
In August 1997, Colvin-El filed a petition for writ of habeas corpus
in the district court, alleging a broad range of constitutional deficien-
cies in his state trials, including principally the ineffectiveness of
counsel and the insufficiency of the evidence. Although the district
court rejected all but one of Colvin-El's claims, it agreed with Colvin-
El that he was entitled to yet another sentencing hearing and that the
hearing had to be bifurcated. The issue of whether Colvin-El was a
principal in the first degree would have to be litigated first, and only
then, if the answer to that question was yes, would the issue of
whether Colvin-El should be given the death penalty be decided. The
district court's conclusion was based on its initial conclusion that
Colvin-El's counsel was ineffective in the guilt phase of trial in fail-
ing to bring to the attention of the jury evidence suggesting the pres-
ence of additional perpetrators. Because counsel did not introduce that
evidence during the guilt phase, it had to be presented to the second
jury during sentencing phase to determine whether Colvin-El was a
principal in the first degree. The district court reasoned that because
the second jury was required both to decide whether Colvin-El was
a principal in the first degree and to consider the aggravating and mit-
igating factors relating to whether he should be executed, the decision
on principalship was tainted by the jury's learning of Colvin-El's
prior robbery convictions. The district court concluded that this poten-
tial prejudice could only be eliminated by resentencing Colvin-El in
a bifurcated sentencing proceeding.
The district court found no merit to any of Colvin-El's other con-
tentions and it rejected Maryland's contention that Colvin-El's peti-
tion for the writ of habeas corpus was time-barred by 28 U.S.C.
§ 2263. Its rejection of this defense was based on the fact that Mary-
land had not "opted in" to Chapter 154 of Title 28 and thus was not
entitled to the benefit of the limitations period imposed by § 2263.
The State of Maryland filed this appeal, and Colvin-El filed a
cross-appeal.
II
In reviewing the district court's order on a petition filed under 28
U.S.C. § 2254, we must determine whether the district court erred in
7
concluding that the State of Maryland's decision to execute Colvin-El
was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court" or
"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). "[T]he writ [of habeas corpus] should issue only if the state
court's resolution of a question of pure law rests upon an objectively
unreasonable derivation of legal principles from the relevant supreme
court precedents, or if its decision rests upon an objectively unreason-
able application of established principles to new facts." Green v.
French, 143 F.3d 865, 870 (4th Cir. 1998).
The State of Maryland contends that the district court erred in con-
cluding that the Maryland courts' method for resolving Colvin-El's
ineffectiveness of counsel claim was an unreasonable application of
clearly established federal law. Under clearly established federal law,
a defendant claiming ineffective assistance of counsel must establish
two prongs. First, he must show that his "counsel made errors so seri-
ous that counsel was not functioning as the ``counsel' guaranteed the
defendant by the Sixth Amendment." Strickland v. Washington, 466
U.S. 668, 687 (1984). Second, the defendant must show "that coun-
sel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Id. Because a defendant claiming inef-
fective assistance of counsel must establish both prongs, Maryland
argues that Colvin-El's petition should have been dismissed because
he failed as a matter of law to establish the prejudice prong.
Rather than making the determination of whether Colvin-El's
counsel was in fact ineffective within the meaning of Strickland, the
Maryland Court of Appeals observed that any prejudice from the
alleged ineffectiveness would be eliminated by the resentencing of
Colvin-El which the Court of Appeals had found was necessary for
unrelated reasons. The district court disagreed with the Maryland
Court of Appeals. Accordingly, we must now determine whether the
Maryland Court of Appeals' conclusion that Colvin-El suffered no
prejudice for any alleged ineffective assistance of counsel because of
the resentencing was an "unreasonable application" of federal law.
See 28 U.S.C. § 2254(d).
Colvin-El's claim of ineffectiveness was based principally on the
failure of his counsel to pursue evidence during the guilt phase of his
8
trial that might have pointed to other participants. In particular, he
contended that his counsel was ineffective in failing to present evi-
dence (1) that there were other "suspicious" individuals in the neigh-
borhood on the day Mrs. Buchman was murdered, (2) that a
fingerprint of someone other than Colvin-El was found on a page in
a notepad in Mrs. Buchman's purse, (3) that some jewelry had been
dropped in the Surells' driveway, and (4) that the basement door
opened only approximately four inches. This evidence-- particularly
the additional fingerprint and evidence of other suspicious persons in
the neighborhood -- could arguably suggest that others in addition to
Colvin-El might have taken part in the burglary of the Surell home.
The Maryland Court of Appeals concluded, however, that the evi-
dence would not have permitted a reasonable jury to find that Colvin-
El was not a participant in the burglary during which the murder
occurred. And this participation alone would have been sufficient
under Maryland law for a conviction on the charge of murder in the
first degree. See Stevens v. State, 192 A.2d 73, 78 (Md. 1963). The
omitted evidence did not suggest that Colvin-El was not at the scene.
On the contrary, the evidence showed that Colvin-El's fingerprints
were left on the broken window in the back door to the Surell home
and that the back window had been broken between 1:00 p.m. and
2:30 p.m. on the date of the murder. Moreover, during the same
period, Surell's master bedroom was ransacked and two watches
stolen, which were pawned several days later by Colvin-El. Accord-
ingly, the Maryland Court of Appeals concluded that any ineffective-
ness of counsel could only have prejudiced the sentencing phase of
Colvin-El's trial, and would be cured by resentencing, where the jury
would have to determine whether Colvin-El was a principal in a first
degree murder. See Maryland Rule 4-343(g); Colvin II, 548 A.2d at
514 & n.5.
Rejecting this argument as an unreasonable application of
Strickland, the district court concluded that the resentencing of
Colvin-El did not eliminate the prejudice which resulted from the
assumed ineffective assistance of Colvin-El's counsel during the guilt
phase. It reasoned that because the resentencing jury was made privy
to Colvin-El's prior burglary convictions when it made the determina-
tion of whether he was a principal in the first degree, the criminal his-
tory evidence put Colvin-El in a less favorable light than he would
9
have been had the principalship issue been determined by the jury
during the guilt phase of the original trial where the evidence of prior
convictions would not yet have been in evidence. This reasoning fails
for two reasons.
First, the evidence of principalship would not necessarily have
come in during the guilt phase even on a complete retrial. It was not
a necessary element of the first degree murder charge and was neces-
sary only to determine whether the death penalty could be imposed.
Maryland procedure expressly recognizes this. See Md. Rule 4-
343(g).
Second, during the resentencing of Colvin-El, the jury was care-
fully instructed about which evidence to consider in determining
whether he was guilty of being a principal in the first degree. More-
over, it was admonished not to consider the aggravating or mitigating
evidence in that determination. In particular, the jury was instructed:
The laws of this State require that you begin your deliber-
ations by reaching a determination as to this issue of first
degree principalship. This decision must be based only on
the evidence presented to you, which concerns how the mur-
der actually was committed, how it took place. You may not
consider among yourselves any of the aggravating or miti-
gating evidence presented in this case before you have
determined whether the State of Maryland has proven
beyond a reasonable doubt that Mr. Colvin-el was a princi-
pal in the first degree of the murder of Mrs. Lena
Buc[h]man.
For example, you may not discuss or consider Mr.
Colvin-el's prior convictions until and unless you ha[ve]
conclusively determined that he was a principal in the first
degree. Similarly, you cannot consider Mr. Colvin-el's fam-
ily background, his institutional history, the presentence
investigation report, which was entered into evidence and
which is one of the exhibits that will be with you, or any of
those matters referred to in Section III of the Findings and
Sentencing Determination Sheet called "mitigating circum-
stances."
10
You may not consider any of these things that I have just
talked about until and unless you decide the issue with
regard to principalship, and that issue being whether the
State has met its burden of proving to your satisfaction
beyond a reasonable doubt that Mr. Colvin-el was a princi-
pal in the first degree to the murder of Mrs. Lena
Buc[h]man.
There is no evidence in the record to suggest that the jury did not
follow these instructions, and therefore, we must presume that the
jury followed them. Thus, when the jury considered the issue of prin-
cipalship in the first degree, it would not have considered the prior
convictions relevant, and Colvin-El suffered no prejudice. See
Strickland, 466 U.S. at 694 (When "making the determination
whether the specified errors resulted in the required prejudice, a court
should presume . . . that the judge or jury acted according to law").
Since Colvin-El is unable to show any prejudice resulting from his
ineffectiveness allegations, he certainly cannot carry the burden of
showing that the Maryland Court of Appeals' decision in this regard
was "an unreasonable application" of Strickland. Accordingly, we
conclude that the district court erred in granting Colvin-El's petition
for writ of habeas corpus on this ground.
III
On his cross appeal, Colvin-El challenged the district court's rul-
ings on several of its other points. His principal claim is that there was
insufficient evidence upon which to base a jury verdict that he was
the principal in the first degree. See Jackson v. Virginia, 443 U.S. 307(1979). In support of this contention, Colvin-El argues that (1) the fin-
gerprint evidence found on a page in the notepad in Mrs. Buchman's
purse indicates that there was an additional (or different) perpetrator,
and (2) a police detective's testimony, that the basement door could
only open approximately four inches, indicates that the basement door
was not the point of entry. The Maryland courts, however, rejected
these arguments through an entirely reasonable analysis. As to the fin-
gerprints on the notepad, the Maryland Court of Appeals stated:
That fingerprint was on a single piece of paper that was
recovered by the police from a small notepad that was in
11
Mrs. Buchman's large, canvas handbag which was found on
the counter in the Surells' kitchen. The police found the
handbag open. On the top of the inside of the handbag was
an open wallet. Attached as part of the outside of the wallet
was an open change purse. The only money in the wallet
consisted of a few coins in the change purse.
The piece of paper, measuring approximately three and
one-half inches by six inches, has writing on one side, divis-
ible into three categories. The top section is a shopping list
reading "Tegrin, Mylanta, Kaopectate [and] tape." The sec-
ond section is a note saying in part, "give to Alberta," with
the balance not decipherable but possibly reading,"promise
cat paid." Mrs. Surell identified the handwriting on these
two portions of the note as that of her mother, Mrs. Buch-
man, who had a friend in Florida named Alberta. The third
section of the note was a name, Edith Kellerman. That hand-
writing was not the handwriting of Mrs. Buchman, and Mrs.
Surell did not know who Edith Kellerman was.
Colvin-El's argument to the jury was that the unidentified
fingerprint indicates the presence of some other person in
the kitchen where the knife was obtained with which Mrs.
Buchman was murdered. That argument failed with the jury,
and it also fails to render the State's evidence legally insuffi-
cient as to first degree principalship. A reasonable juror
could conclude that the unidentified fingerprint was left by
the person who wrote the name Edith Kellerman. In any
event, the jury was not compelled to find that, either before
or after killing Mrs. Buchman, the person who opened the
handbag, wallet, and change purse also went through her
notebook and was sufficiently fascinated with the medicines
that Mrs. Buchman took that that person impressed a clear
fingerprint on the slip of paper while reading it.
Colvin III, 630 A.2d at 730-31. In short, the Court of Appeals con-
cluded that the single fingerprint on a piece of paper in a notepad in
Mrs. Buchman's handbag does not demonstrate that Colvin-El did not
stab Mrs. Buchman. Nor does it render the other evidence in the case
insufficient to support the jury's finding.
12
As to the limited opening capacity of the basement door -- approx-
imately four inches -- the Maryland Court of Appeals found that the
evidence did not undermine the jury's conclusion that Colvin-El
stabbed Mrs. Buchman. The court said,
There is no dispute that entry was gained and that Mrs.
Buchman was murdered in the course of the robbery inside
of the house. Rejecting the conclusion drawn by the police
[that the basement door was] the point of entry does nothing
to place one or more persons, other than Colvin-el, in the
home.
Id. at 731. During the short period between 1:00 p.m. and 2:30 p.m.
on September 9, 1980, the window in the back basement door of the
Surell home was broken and the door opened. Also during this period,
the house was entered; a knife was taken from the Surell kitchen and
used to stab Mrs. Buchman 28 times; the master bedroom was ran-
sacked and jewelry and watches were stolen. Two particularly indict-
ing items of evidence aim only at Colvin-El as the perpetrator. First,
Colvin-El's fingerprints were clearly found on the glass at the base-
ment door placing him at the scene during the relevant period. And
second, Colvin-El pawned the two watches that were stolen from
inside the Surell home during the relevant period. In the absence of
other evidence, this evidence indicates that the person whose finger-
print was on the broken glass in the home is also the person who stole
the two watches and who murdered Mrs. Buchman. Colvin-El has
never claimed that any other person was with him when he broke the
glass and obtained the watches. While the burden of proof was always
entirely upon the State to prove beyond a reasonable doubt that
Colvin-El personally stabbed Mrs. Buchman to death, the absence of
evidence pointing to any other person leaves unchallenged the evi-
dence pointing solely to Colvin-El. Indeed, instead of offering any
explanation or argument as to why he was at Surell's home or how
he obtained the stolen watches, Colvin-El advanced the theory that he
was never at Surell's home, a theory that is entirely inconsistent with
the evidence.
In addition, it should be noted that the same detective who esti-
mated that the basement door could open only four inches also said
that his estimate was an approximation and that he believed that the
13
opening was large enough for a person, although not all persons, to
pass through. Colvin-El, at 5'7" and 135 pounds, was a relatively
small person. If Colvin-El did not enter through the small opening, he
found another point of entry to obtain the watches. Either way, the
evidence points to him and only him as the burglar and the killer.
IV
Finally, Colvin-El contends that the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963) at his original trial by failing to dis-
close information, including the existence of the fingerprint on the
notepad and the fact that a comparison had shown that the fingerprint
was not Colvin-El's. In Colvin-El's third state post-conviction pro-
ceeding, the Maryland circuit court found, as a matter of fact, that
Colvin-El had been given this material by the prosecution. The dis-
trict court, citing the presumption of correctness due to state courts
under 28 U.S.C. § 2254(d) agreed. Colvin-El has presented us with no
evidence that he did not receive the disputed materials. Accordingly,
we affirm the district court's holding on this issue.
In summary, we conclude that Colvin-El has not established any
basis for federal habeas relief under Strickland v. Washington,
Jackson v. Virginia, or Brady v. Maryland, and accordingly his peti-
tion for a writ of habeas corpus must be denied. In that regard we
affirm the district court's order in part and reverse in part, and remand
with instructions that the district court enter an order denying the peti-
tion.
In light of our ruling, we need not reach the State's argument that
Colvin-El's petition was untimely under 28 U.S.C. § 2263.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
14