Golden v. Shearin

DAVID DAVON GOLDEN, #337160 Petition v. WARDEN BOBBY SHEARIN and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents

Civil Action Case No. PJM-11-86

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

October 28, 2013

MEMORANDUM OPINION

Before the court is self-represented Petitioner David Davon Golden's ("Golden") Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his conviction in the Circuit Court for Baltimore City, Maryland for first-degree assault and related offenses. ECF No. 1.¹ Respondents Bobby Shearin, Warden of North Branch Correctional Institution and Douglas Gansler, Attorney General of the State of Maryland, by their counsel, have filed a Response (ECF No. 11) to which Golden has filed a Reply. (ECF Nos. 24-31).² After reviewing the parties' submissions, including the transcripts of the underlying proceedings, the Court now rules, a hearing deemed unnecessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Local Rule 105.6; see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (stating a petitioner not is entitled to a hearing under 28 U.S.C. § 2254 (e) (2)). For reasons set forth below, the Petition will be denied.

BACKGROUND

A. Claims Presented

Golden presents the following claims for federal habeas corpus relief: 1) the prosecutor made improper comments during closing argument; 2) trial counsel provided ineffective assistance by failing to object to the prosecutor's improper comments during closing argument; and 3) the trial court abused its discretion by failing to issue a self-defense instruction based on the State's evidence. ECF No. 1.

B. Trial

Golden was tried before a jury sitting in the Circuit Court for Baltimore City for the the attempted murders of Kobi Farmer, James Crawford, and Baltimore City Police Officer Marcus Simpson. Exhibit 13 at 3. The Court of Special Appeals of Maryland summarized the facts adduced at trial as follows:

This case involves an incident that took place on August 14, 2003 in Baltimore City. The State's evidence showed that Baltimore City police officer Marcus Simpson was assisting police and fire fighters at the scene of a fire on East Durham Street. Simpson heard the sounds of gunfire coming from the 1600 block of East Durham, and he turned to look in that direction.

As he looked toward the origin of the gunfire, Officer Simpson saw a man with his arm extended. The man was firing a handgun, and he saw a "muzzle flash" coming from the man. At the first shot, Simpson immediately ran toward the gunman, who in turn fled down the street. Simpson chased the gunman, closing to within fifteen to twenty feet from the gunman. The chase continued for several blocks until the gunman sat down on a step. When Simpson accosted the man, the gunman fired in the officer's direction but missed. He attempted to fire a second round at the policeman, but the weapon misfired. The weapon was, apparently out of ammunition, and the gunman threw it on the ground and fled.

Simpson remained with the handgun until backup officers arrived. He then searched for the gunman and arrested him shortly thereafter. Thegunman was later identified as Golden. A second officer, Samuel Bowden, recovered five shell casings from the scene. Also recovered were a bullet fragment and a pair of jeans. The number of shell casings corresponded with the number of shots Simpson heard. The police also found a .380 caliber semiautomatic handgun approximately one and one-half blocks away near North Chapel Street. Forensic evidence established that the shells came from rounds that were fired by the handgun that was recovered from North Chapel Street.

One of the assault victims was Kobi Farmer. Farmer is an acquaintance of Golden, and had been prosecuted for shooting Golden during an incident on October 29, 2002. Twelve minutes of Farmer's testimony was not recorded, including all of the direct examination and a portion of cross-examination, and the trial judge reconstructed his testimony from contemporaneous notes. According to the trial judge's notes, Farmer recalled little of the events of that night. Farmer did remember that he was with a companion, James Crawford, when he was shot.

Although Farmer had previously been shown a photo array and had identified Golden as the gunman, he testified that he did not know his assailant. He told officers that "Bucket" was the name of his assailant. Farmer denied that he saw Golden on the night of the shooting. Farmer's testimony was vague, and he was not certain whether he might have been armed that evening. He testified on cross-examination that it was "possible" that he had been armed that night. He also admitted that he was in the area of North Durham Street that night "looking for trouble." He had also been threatening Golden because the latter would be testifying at Farmer's upcoming trial involving his assault against Golden on October 29, 2002.

There was testimony that gunshot residue was detected on both Farmer's and Golden's hands. As noted above, twelve minutes of Farmer's testimony was not recorded. The recording equipment began to function during Farmer's cross-examination:

BY [DEFENSE COUNSEL]:

Q ? the specifics of what happened on the day that you were shot?

A I mean, I remember some of the specifics. I know that I came around on Durham street, you know, looking for trouble that night, you know.

Q Let me stop you there. When you say you were looking for trouble, isn't it true that on that day that you came to Durham Street, you had a .380 caliber handgun?

A It's possible.

Q Isn't it true that prior to the day of, the day when you were shot, that you were making threats to Mr. Golden regarding your upcoming trial?

A Yes, that's true.

Q You didn't want his testifying at that trial, did you?

A No.

Q And the day you were shot, it happened just a few weeks before you were scheduled to go to trial?

A Correct.

Q At some point, you learned that you had gunshot residue on your hands, correct?

A Yes.

Q On the night, the night that you got shot?

A Right.

Q Do you know how that got there?

A I mean, I don't know for a fact, but, I mean, it could have been from a weapon that got fired. I ?

[DEFENSE COUNSEL]: Your Honor, I have no further questions.

Golden testified on his behalf. He recalled that he was walking on Durham Street when he was approached by Farmer and Crawford. Farmer and Crawford "boxed [Golden] in" and threatened him about his testimony against Farmer in the trial involving the 2002 shooting. Golden said that Farmer was intoxicated, and that the confrontation began with "just a little bit of arguing[.]" Golden recounted thatthe argument escalated and he sensed, judging from Farmer's posture and language, that he was going to pull out a handgun. According to Golden:

A Well, when he pulled out the weapon, out of fear, I guess, that's why I'm still here today, I rushed him. And when I rushed him, I'm not sure if ? I'm not sure how the gun went off, but the gun went off. And we, like, tussling. And he falls back on the steps, and some kind of way I ended up with it. And ?

Q What did you do when you ended up with the gun?

A Well, Mr. Crawford was grabbing me. And I'm like trying to get away from both of them. And another dude, I'm not sure what his name is, and I just turned around and, I guess used it.

Q When you say used it, you mean you ?

A Well, Mr. Crawford was grabbing me. And I'm like trying to get away from both of them. And another dude, I'm not sure what his name is, and I just turned around and, I guess used it.

Q When you say used it, you mean you ?

A As in I fired it.

Q What were you doing while you were firing the gun?

A I fired low just to stop them, really. But, and I was just running. He ripped me out of my shirt. I'm just running.

Q After the point ... when you were firing where Mr. Farmer and Mr. Crawford, were, after you ran from the scene, did you ever fire that weapon again?

A No, sir. I know all the shells was gone in front of them because I thought they were still going to shoot back. I thought they had another gun. And once, and I'm like running and ?I I don't ? it just I'm so ? I'm under the pressure of, you know, my life about to be taken again. This guy [Farmer] had already shot me and left me dead, left me for dead once. He hit me in my face. I suppose it died.

**********

Q Okay. And where did you get shot?

A In the face, in the shoulder, and in the stomach.

Q And did you know Mr. Crawford before that day?

A No.

Golden continued to fire until he ran out of bullets. He then fled the scene, running for two or three blocks before he threw the gun away in an alley. No one was following him, and he continued to walk away. Golden denied seeing Officer Simpson while he was running, and also denied firing a shot at him. He testified that, instead, when officers approached him, he did not resist and put his hands up.

ECF No. 11, Exhibit 9 at 2-6.

At the conclusion of the State's case, there was discussion as to whether Golden was entitled to a self-defense instruction based solely on the State's evidence, and the trial court ruled that the State's evidence did not support the instruction. ECF No. 11, Exhibit 3 at 108-21. Golden later testified in the case. After the close of evidence, the trial court instructed the jury on self-defense. ECF No. 11, Exhibit 3 at 107-43; Exhibit 4 at 35-37.

Golden was found guilty of first-degree assault, use of a handgun in the commission of a felony, possession of a regulated firearm by a prohibited person, and unlawfully carrying a handgun in connection with the shooting of Kobi Farmer. ECF No. 11, Exhibit 4 at 93-103. Golden was acquitted of all charges relating to James Crawford and Officer Marcus Simpson. On July 24, 2006, Golden was sentenced to serve a total of forty years imprisonment. ECF No. 11, Exhibit 5 at 14-17.

C. Appeal

Golden noted a direct appeal to the Court of Special Appeals of Maryland, raising thefollowing questions: 1) whether the trial court erred in...