4th U.S. Circuit Court of Appeals affirms Md.'s death-penalty for

Daily Record, The (Baltimore), Nov 29, 2001 by Daily Record Staff Legal Affairs Writer

A Prince George's County man convicted and sentenced to death for the 1995 double murder of an elderly couple in their home -- and who has exhausted all his post-conviction remedies -- lost his bid for habeas corpus relief yesterday.

The 4th U.S. Circuit Court of Appeals rejected claims by Heath William Burch that Maryland's death-penalty scheme is unconstitutional under Apprendi v. New Jersey, a 2000 Supreme Court decision which held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.

"Because his judgment of conviction was final well before the Court's decision in Apprendi, and because Apprendi does not apply retroactively to cases pending on collateral review, Burch cannot obtain any federal habeas corpus relief under Apprendi," wrote Judge Robert B. King for the court, affirming the U.S. District Court in Baltimore.

But even if the court could address Burch's argument, "his contention would fail," King added in a footnote. "In explaining the basis and reach of Apprendi, Justice [John Paul] Stevens rejected the notion that Apprendi rendered state death-penalty statutes unconstitutional."

Gary E. Bair, chief of the criminal appeals division in the attorney general's office, praised the opinion.

"The court said it's not going to reach the issue, but if it did, they'd say Apprendi doesn't apply," Bair said. "Our argument is that Apprendi doesn't apply because the death penalty is prescribed by Maryland law."

Bair said the opinion will not directly affect other Maryland cases before the Court of Appeals claiming that Apprendi invalidates the state's death-penalty statute. Last month, the state's top court heard arguments in Oken v. Maryland that Apprendi should be applied retroactively and invalidate the state's death-penalty scheme as unconstitutional.

"Maryland is only bound by the Supreme Court, not the 4th Circuit," Bair noted. "It's persuasive authority, but not binding authority."

Burch's attorney, H. Mark Stichel, said he will either petition the 4th Circuit for en banc review or file a petition for certiorari to the Supreme Court.

"Given the 4th Circuit's jurisprudence on Apprendi, the only way we'll get a decision is from the Supreme Court on whether Apprendi applies retroactively in post-conviction cases," Stichel said. "Several circuits have taken the same view and others have taken different views. So there's enough difference for the Supreme Court to decide."

Other arguments

The appeals court also rejected Burch's claims that a single verdict form submitted to the sentencing jury violated his right to due process; that he received ineffective assistance of counsel at trial; and that a juror's reading of the Bible during the jury's sentencing deliberations violated his constitutional rights.

Burch broke into a neighbor's house in Capitol Heights in March 1995 and stabbed Robert Davis, 72, more than 30 times with a pair of scissors. He then attacked Davis' 78-year-old wife, Cleo, in the kitchen as she tried to call police. He left in the victims' pickup truck with four guns and $105 taken from the house.

WHAT THE COURT HELD

Case: Heath William Burch v. Thomas R. Corcoran, 4th U.S. No. 01- 4. Published. Opinion by King, J. Decided Nov. 28, 2001.

Issue: Did the district court err in denying habeas corpus relief by dismissing appellant's contention that sentencing provisions of Maryland's death-penalty statute are unconstitutional under the Supreme Court's holding in Apprendi v. New Jersey?

Holding: No; affirmed. Because appellant's judgment of conviction was final well before the Court's decision in Apprendi, and because Apprendi does not apply retroactively to cases pending on collateral review, appellant cannot obtain any federal habeas corpus relief under Apprendi

Counsel: H. Mark Stichel for appellant; Ass't AG Annabelle L. Lisic for appellees.