Burrus v. Weber

1

DARRELL BURRUS, Petitioner, v. WARDEN RONALD S. WEBER, and MARYLAND ATTORNEY GENERAL Respondents.

Civil Action No. SAG-20-2109

United States District Court, D. Maryland

April 12, 2023

MEMORANDUM OPINION

Stephanie A. Gallagher, United States District Judge.

Petitioner Darrell Burrus has filed a Petition for Writ of Habeas Corpus. ECF 1 (the “Petition”). Respondents are the Warden of Western Correctional Institution and the Maryland Attorney General, who filed a Limited Answer to the Petition asserting that the claims are time-barred. ECF 6. Upon Order of the Court (ECF 9), Respondents filed a Supplemental Answer maintaining that Burrus's claims are time-barred but also contending his claims lack merit. ECF 10. No hearing is required. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2021); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons that follow, I shall deny the Petition. A certificate of appealability shall not issue.

Background

Burrus was indicted on October 20, 2010 in Baltimore City on multiple counts in connection with a shooting that resulted in three men being injured. ECF 6-1 at 33. Burrus proceeded to trial by jury in January of 2012. ECF 10-1; 10-2; 10-3 10-4; 10-5; 10-6; 10-7; 108. The jury found him guilty inter alia, of attempted first degree murder and use of a handgun in the commission of a crime of violence. ECF 10-8 at 74-78. On March 12, 2012, Burrus was sentenced to an aggregate ninety-five years' incarceration. ECF 10-9 at 42. The Appellate Court of Maryland^[1] described the facts as follows:

Joshua Woods testified that on September 6, 2010, he was at Dana Castor's mother's house for a Labor Day cookout with his cousins, Castor & Marcus Brown, and a friend, “Fat Ral.” Woods testified that at approximately 8:00 p.m. he drove with Castor, Brown, Fat Ral, and his brother, Raymond Green, to pick up another cousin, Cleasia, from the playground at Lafayette and Payson. It was Woods' testimony that there was a big block party occurring at Lafayette and Payson and when they pulled up and Fat Ral got out, someone started shooting at them. Woods then drove to Bon Secour Hospital and encountered police officers. Everyone but Marcus Brown got out and walked into the hospital, but Brown had suffered seven gunshot wounds and was badly injured. Thereafter, Woods responded to the police station and participated in a photo array procedure with Detective Riker. Woods did not identify [ Burrus] in court and said he didn't know the people who shot them.

Dana Castor testified that he was at his mother's house for a cookout on the Labor Day in question with his family, including his cousins Marcus Brown, Joshua Woods, Raymond, and Fat Ral. Castor testified that he went to pick up his other cousin in a van with the others, and after making their rounds they got to Lafayette and Payson where the party was happening. Castor said that while waiting for Fat Ral to come back to the van, he saw two males come out of the dark and “shots rang out.” Castor testified that he never saw their faces, observing only that one was “darker,” and one was “lighter.”

Officer Roderick Henry testified that on September 6, 2010, he was at Bon Secour Hospital when a van pulled up and three occupants stated they had been shot. The three occupants were Mr. Castor, Mr. Brown, and Mr. Woods.

Frank Sanders, a mobile evidence technician, responded to Bon Secour, took photographs of Messrs. Woods and Castor, and tested their hands for gunshot residue. Mr. Sanders also visited Mr. Brown in shock trauma, took photographs of him, and conducted gunshot residue tests. Mr. Sanders responded to a reported shooting at 900 North Payson Street where he recovered .40- and .9-millimeter casings.

Rodney Montgomery, a technician, inspected the victims' vehicle, recovered projectiles, swabs of blood, and fingerprints. The parties stipulated that fingerprint comparisons with [Burrus] and his co-defendant, James Johnson, yielded “no results.”

Detective Jonathan Riker was the lead investigator. He interviewed witnesses, including several interviews of Mr. Castor. He testified that, from a photo array, Mr. Castor identified [Burrus] and his co-defendant as the shooters. Detective Michael Lind, who assisted Detective Riker, testified that Mr. Castor was presented with a photo array in accordance with usual protocol, and he then gave a recorded statement. Detective George Cannida testified that he was present during the identification procedure.

At trial, Mr. Castor described his pre-trial interviews with Detective Riker, stating that Detective Riker first showed him a single photo, not an array. Subsequent to the initial identification, he had doubts, and recanted. At trial, he testified that he did not see [Burrus] fire a weapon and was not sure he saw [Burrus] at all on September 6, 2010.

Several other witnesses testified. An examination of the casings revealed that the .9 millimeter bullets were fired from the same weapon, and the .40 caliber bullets were fired from a single, but different, weapon. The State's theory was that [Burrus], using the .9 millimeter weapon, shot Mr. Brown, and [Burrus]'s codefendant, using the .40 millimeter weapon, shot Mr. Woods.

Mr. Brown recovered from the shooting, but on November 17, 2010, he was shot and killed by the same .9 millimeter weapon that was used in the September 6 shooting. The State's theory was that [Burrus] ordered the “hit” on Mr. Brown. This was based on several recorded telephone calls made by [Burrus] while incarcerated and awaiting trial.

ECF 6-1 at 262-64.

The day after he was sentenced, on March 13, 2012, Burrus filed a counseled Motion for Modification of Sentence to be Held Sub Curia. Id. at 185-87. Burrus asked the circuit court to hold the motion in abeyance until future events would justify a hearing and an order of modification. Id.

Burrus appealed his conviction and sentence to the Appellate Court of Maryland, asserting two errors: (1) the trial court erred in failing to grant his motion for a mistrial or new trial based on juror misconduct; and (2) the trial court erred in permitting the introduction of certain evidence.

The Appellate Court of Maryland affirmed Burrus's conviction and sentence on March 18, 2014. Id. at 262-71. The Supreme Court of Maryland denied Burrus's petition for certiorari on July 21, 2014 (Id. at 297) and the United States Supreme Court denied his petition for certiorari on November 3, 2014. Burrus v. Maryland, 574 U.S. 985 (2014).

Burrus filed a pro se petition for post-conviction relief on May 31, 2017 (Id. at 320-335), which was supplemented by counsel on June 11, 2018. ECF 6-1 at 336-358. A hearing was held on November 19, 2018. Id. at 378.^[2] In February, 2019, the circuit court granted post-conviction relief on Burrus's claims that his trial counsel was ineffective for failing to object to a voir dire question about scientific evidence. Id. at 376-90. Specifically, the circuit court found that the voir dire question at issue suggested that the jury's only option was to convict, which violated Burrus's right to fair and impartial jury. Id. at 381-83. The circuit court vacated Burrus's convictions and ordered a new trial. Id. at 389.

The Appellate Court of Maryland granted the state's application for leave to appeal. Id. at 391-402; 411. On September 3, 2019, the Appellate Court of Maryland remanded the matter back to the circuit court with instructions to reconsider its ruling in light of State v. Armstead, 235 Md.App. 392 (2018). On remand, the circuit court held a hearing on November 6, 2019 (Id. at 416) and issued an Order on February 19, 2020, denying Burrus's post-conviction petition. Id. at 41327. The circuit court found that it originally erred in granting relief because Burrus failed to prove that the outcome of his trial would have been different if his trial counsel had objected to the voir dire question. Id. at 422-26. The Appellate Court of Maryland denied Burrus's application for leave to appeal on July 9, 2020. Id. at 436-37.

Burrus filed his federal habeas corpus petition in July, 2020. ECF 1. He raises two grounds for relief: (1) ineffective assistance of counsel for failure to object to the improper scientific evidence voir dire question, and (2) the trial court erred by failing to grant his motions for a mistrial and a new trial based on juror misconduct.

Timeliness

Respondents filed a Limited Answer on October 9, 2020, urging the Court to dismiss Burrus's Petition as untimely. ECF 6. Respondents' Limited Answer advances an argument that Burrus's March 16, 2012 Motion for Modification did not toll the statute of limitations because it was merely a “placeholder,” which Burrus asked the circuit court to hold sub curia. Id. at 20-27. Upon review of the Limited Answer, the Court directed the Respondents to supplement their response and address the merits of Burrus's claims. ECF 9. Respondents filed a Supplemental Answer on November 18, 2021, addressing the merits of Burrus's claims but continuing to argue that his Petition was untimely. ECF 10 at 3.

Respondents advanced the same “placeholder” argument in this Court in the matter of Maietta v. Gelsinger, No PX-18-2185. On November 4, 2020, Judge Xinis issued an Order unequivocally rejecting the merits of Respondents' position:

The United States Court of Appeals for the Fourth Circuit Court in Mitchell v. Green . . . squarely held that sentence modification motions brought pursuant to Md. Rule 4-345 amount to a collateral proceeding which does statutorily toll the applicable limitations period. See Mitchell v. Green, 922 F.3d 187, 198 (4th

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