Merzbacher v. Shearin (732 F. Supp. 2d 527, 2010)

Citations

732 F. Supp. 2d 527

Full opinion text

MEMORANDUM OPINION

ANDRE M. DAVIS, District Judge.

Petitioner John Joseph Merzbacher was convicted by a jury in the Circuit Court for Baltimore City of child rape and related offenses and is serving, concurrently, multiple life sentences. In this action, he seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Merzbacher alleges, inter alia, that he was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. Specifically, he alleges that each of his two trial attorneys failed to tell him about, and failed to counsel him fully as to his options in connection with, a pre-trial offer of a plea agreement tendered by the state in which the state agreed to recommend, and a judge of the Circuit Court had agreed to impose, a sentence of ten years incarceration (hereinafter, “the ten-year offer” or “the offer”).

At the conclusion of an eight-year state post-conviction proceeding, which included an evidentiary hearing extending over several days and an appeal to an intermediate state appellate court (which remanded for further factfinding by the post-conviction court), the state post-conviction court denied relief. In denying Merzbacher’s claim, the state post-conviction court relied on information outside the proceeding’s evidentiary record in finding that one of Merzbacher’s attorneys, now deceased, had a reputation for dishonesty. Based on counsel’s reputation, the court found that the lawyer was a liar and that she committed perjury in her testimony during the post-conviction hearing when she testified under oath that she had failed to advise Merzbacher of the ten year offer or to discuss it with him. Consequently, the court made a finding, which it acknowledged was contrary to all the direct evidence of record, that counsel advised Merzbacher of the ten-year offer. Furthermore, upon the remand of the case by the intermediate state appellate court, the post-conviction court found, without taking additional evidence, that counsel had fully discussed the offer with Merzbacher and that a fully-informed Merzbacher had rejected it.

The principal issues presented before this court are procedural and substantive. Procedurally, the questions presented are: (1) whether Merzbacher has clearly and convincingly rebutted the presumption of correctness that attends the state post-conviction court’s findings that (a) his counsel advised him of the state’s offer of a plea agreement and (b) his counsel fully informed him of his options in deciding whether to accept or reject the offer, see 28 U.S.C. § 2254(e)(1); and (2) whether the state post-conviction court’s “decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C. § 2254(d)(2). Substantively, if but only if Merzbacher succeeds on the procedural issues, the questions presented are: (1) whether Merzbacher has shown that his attorneys provided constitutionally deficient assistance; and, if so, (2) whether their deficient performance prejudiced him, that is, whether he has shown “a reasonable probability” that, but for counsels’ “unprofessional errors,” he would have pled guilty rather than proceed to trial. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The court has held a non-evidentiary hearing and counsel for the parties have filed extensive memoranda. The court has carefully pondered the matter in light of the parties’ contentions, mindful of the heightened deference it must accord to state court decisions such as the one at bar, deference that federal law explicitly mandates in habeas claims instituted pursuant to 28 U.S.C. § 2254. For the reasons set forth within, the court finds and concludes that Merzbacher has carried his heavy burden to establish a right to relief. Accordingly, the court shall grant the writ. Specifically, the court shall order the state to return the case to the status quo ante and afford Merzbacher an opportunity to accept or reject its prior offer of a plea agreement. As explained within, however, before Merzbacher gains full relief, a judge of the circuit court must express a willingness to carry out the undertaking of his or her former colleague who bound himself, but perhaps not the court as a whole, to impose a sentence of ten years incarceration should Merzbacher elect to plead guilty pursuant to a fully negotiated plea agreement.

I. FACTUAL AND PROCEDURAL HISTORY

A. Merzbacher’s Offense Behavior

Merzbacher was indicted in the Circuit Court for Baltimore City on three counts of carnal knowledge of a female child under the age of 14 years, one count of perverted practice, one count of rape, and one count of sexual child abuse. The victim of his offenses was Elizabeth Murphy. The Maryland Court of Appeals summarized the background of the prosecution as follows:

Joseph Merzbacher and Elizabeth Murphy first encountered each other in 1972 when Merzbacher was a teacher at the Catholic Community Middle School of Baltimore (“CCMS”). Murphy, who was eleven years at the time, was his student. According to Murphy, Merzbacher subjected her to three years of sexual, physical, and emotional violence. The torment ended when Murphy left CCMS in 1975. She did not reveal the substance of these attacks to anyone for some time. In 1979, she informed Sister Eileene Weisman of Merzbacher’s behavior, but to no avail. She did so again in 1988, again without result. That same year Murphy sought advice from Father William Mannion, a former classmate of hers at CCMS. Mannion agreed to speak with Murphy at length about her experiences with Merzbacher. After doing so, Mannion reported the incidents to officials of the Archdiocese of Baltimore.

See Merzbacher v. State, 846 Md. 391, 697 A.2d 432, 434-35 (1997) (footnotes omitted).

B. The Failed Plea Offer, Trial and Appeal

The ten-year offer surfaced in the following manner. At the conclusion of one of several pretrial motions hearings, in December 1994, counsel for Merzbacher and prosecutors from the Office of the State’s Attorney for Baltimore City met, in the absence of Merzbacher, in the chambers of the then presiding judge, the Honorable Clifton T. Gordy. It is undisputed that during this session, the prosecutors offered to Merzbacher through his lawyers, Christina Gutierrez (Merzbacher’s retained counsel and the lead attorney) and William Kanwisher (Merzbacher’s assigned public defender), an opportunity to plead guilty in consideration for which the prosecutors would recommend a sentence of ten years of incarceration. See Transcript of August 10, 2004, at 26. Specifically, the offer would have permitted Merzbacher to plead guilty to an unspecified number of indictment counts and receive a ten-year sentence in exchange for the state’s nolle proesequi of an additional 15 or 16 indictments. It is undisputed that in the course of the December 1994 chambers conference, Judge Gordy bound himself to impose such a sentence. No plea agreement was ever consummated and, indeed, the record discloses that there was never a discussion of any plea agreement between or among counsel ever again.

The case went forward to trial before a jury presided over by the Honorable Robert I.H. Hammerman. The jury convicted Merzbacher on all counts on June 8, 1995. Merzbacher’s motion for a new trial was denied on July 21, 1995, and he was sentenced to four concurrent life terms, with an additional ten-year term to run concurrently.

On direct appeal, Merzbacher raised the following claims:

1. Whether the trial court propounded an erroneous reasonable doubt instruction;

2. Whether the trial court committed prejudicial error in its admission of “bad acts” evidence;

3. Whether the trial court committed prejudicial error when it excluded evidence favorable to the defense; and

4. Whether the trial court failed to conduct an adequate voir dire.

Rejecting these assignments of error, the Court of Special Appeals of Maryland affirmed the judgment in an unreported opinion. Thereafter, the Court of Appeals of Maryland granted Merzbacher’s petition for certiorari as to the following three issues: (1) the reasonable doubt instruction; (2) admission of the “bad acts” evidence; and (3) exclusion of favorable evidence. On July 28, 1997, the Court of Appeals affirmed the judgment of the Court of Special Appeals. Merzbacher v. State, 346 Md. 391, 697 A.2d 432 (1997).

C. The State Post-Conviction Proceedings

On July 20, 1998, Merzbacher filed a petition for post-conviction relief in the circuit court. In his petition, Merzbacher argued, inter alia, that his attorneys, Gutierrez and Kanwisher, provided constitutionally ineffective assistance when they failed to convey the ten-year offer to him and when they failed to advise him fully as to his options in respect to the ten-year offer.

The case was assigned to the Honorable William D. Quarles, who heard preliminary matters in the post-conviction proceeding. The state filed a motion for recusal of Judge Quarles and in April 2000, Judge Quarles granted the motion and recused. The matter was reassigned to the Honorable John N. Prevas. The court held evidentiary hearings and, eventually, oral argument, on several dates between October 31, 2000, and February 1, 2001. During the hearing, the court heard testimony regarding: (1) whether the state actually extended the ten-year offer to Merzbacher (through his attorneys); (2) whether Merzbacher’s attorneys failed to convey the offer to Merzbacher for his consideration; (3) whether Merzbacher’s attorneys fully and accurately advised Merzbacher of his options in deciding whether to accept or reject the ten-year offer; and (4) whether Merzbacher could show there was a “reasonable probability” that he would have accepted the offer and pled guilty had he been fully advised of his options. The substance of the testimony is set forth below and throughout this opinion.

1. Testimony by the Principals

Gutierrez, Kanwisher, Judge Gordy and Roberta Siskind, one of the Assistant State’s Attorneys who prosecuted the case, all testified in the post-conviction proceeding and each confirmed, without equivocation, that the ten-year offer was extended to Merzbacher through his attorneys. Assistant State’s Attorney Siskind testified as follows, in part:

Q: Ms. Siskind, there’s no question in your mind though that the State conveyed a plea agreement to the Defense. Is that correct?

A: I don’t know — I don’t really know how to characterize this because it was more of a way of starting a discussion but yes, we said — the Judge said to us, what amount of time are you thinking of? We said ten years for a group of cases if he plead guilty to them.

Q: And had Mr. Merzbacher been present and walked in to the room that day and said, yes, I accept to enter a plea of guilty and accept a ten year sentence, the plea would have been consummated at that time, correct?

A: Well, I think there would have been a little more. We would have had to sit down and decide exactly which ones he would have been pleading to, but yes.

Q: And as a result of that plea, it would have eliminated all of the cases.

A: Correct.

Transcript of November 9, 2000, at 65:23-64:16.

Judge Gordy testified as follows, in part:

Q: Do you recall what it is you said that actually got the discussion under way?

A: I think I said to the State, had they made any offers in this case to the Defense in reference to a plea and I think that’s what initiated this discussion which was not a long, all night discussion, but that initiated a discussion.

Q: And in response to your question, what did you hear?

A: The Assistant State’s Attorney, who at the time was Ms. May, in the presence of Ms. Siskind said that the State had considered or would consider an offer of ten years in prison.

Q: What, if any, details were worked out regarding the parameters of the plea? I know you said ten years, but ten years to what? How was it structured?

A: I don’t remember any discussions as to structure. The ten years was, kind of, out there and I never heard back from anyone and the end of the term came and the case went to trial.

Transcript of November 9, 2000, hearing at 77:13-25; 81:4-10.

Gutierrez testified as follows, in part:

Q: Now, was there a plea offered to you by the State in this case?

A: There was a plea offered. I guess I’d rather characterize it as that it was put on the table clearly by Judge Gordy after consultation with us and the State. The number did not emanate from the State but they essentially agreed to the offer that was made.

Q: So Judge Gordy was participating. He was playing as how would you describe his role as being active in trying to broker a plea between the State and the Defense in this case?

A: Yes. Very much so, particularly in light of the issue of severance having — or at least us viewing it, as having certainly lite (sic) a fire under everyone to see if they could find a way.

Q: And what was the plea that was ultimately brokered or suggested by Judge Gordy that was acquiesced to by the State that was conveyed to you as a result of all of those discussions? What was your understanding of what that plea was?

A: It was a plea to one, I think it was one Count, it might have been two Counts, to rape and child abuse in the Liz Murphy case for ten years. And that all of the other cases, however many there were, fifteen or sixteen of them would all be nol prossed.

Q: Now as a criminal defense attorney, did you interpret this to be a firm offer made by the State to you?

A: Yes

Transcript of October 31, 2000, hearing at 20:18-21:21.

Kanwisher testified as follows, in part:

Q: Now, after the case got started, the venue was determined and some time prior to trial, were there any plea negotiations in this case?

A: There was a conference in Judge Gordy’s chambers, specifically.

Q: And was a plea offer extended to the defense by the State in this case?

A: Yes.

Q: And what was your understanding of the plea that was being offered by the State to the Defense?

A: Well, the State was proceeding upon a case involving an alleged victim called Elizabeth Murphy. That was their first choice of cases to try. And, as I recall, it was after one of the motions hearings that we had there in chambers, and there was a discussion about whether or not the case could be plead out, or actually all of the cases. I believe, I don’t hold me to this, but I think it was 16 separate cases, and whether a resolution could be reached regarding all of those ... And ultimately the plea was that Mr. Merzbacher, if he chose to, would plead guilty to the Elizabeth Murphy case, receive a sentence of ten years, and all of the remaining cases would be nol prossed. And that was my understanding of the plea offer.

Q: Now, as a defense attorney, you’re aware of the difference between plea negotiations and a plea offer, are you not?

A: Yes.

Q: And, in this instance, how would you characterize the result of your discussions? Were they a plea offer or plea negotiations?

A: It was an offer, because of the way it was left at the end, it clearly was, the ball clearly was in our court. There was an understanding of, I took away from the meeting an understanding that it was, like okay, there we are. And then Ms. Gutierrez and I were in a sense, it seems to me, it was communicated clearly to us that now we were to act on this. And, that was my clear understanding of what had happened by the end of that meeting.

Transcript of October 31, 2000, hearing at 58:17-60:14.

As set forth above, and as found by the post-conviction court, see Transcript of August 10, 2004, at 26:19-20 (“THE COURT: ... I indicate in the opinion there was an offer, there just wasn’t an agreement.”) it is undisputed that the state made the ten-year offer. Thus, to a very significant extent, Merzbacher’s entitlement to state post-conviction relief hinged on whether his attorneys conveyed the ten-year offer to him and, equally important, whether they adequately advised him of his options in respect to the ten-year offer. See cases cited supra n. 1.

Both Gutierrez and Kanwisher testified, unequivocally, that neither of them ever counseled Merzbacher regarding his options and the advisability of accepting or rejecting the ten-year offer. In fact, according to their testimony, neither of them ever even told Merzbacher about the ten-year offer. Essentially, counsel rejected the offer without input from their client. Gutierrez gave the following testimony regarding the reasons for her failure to inform Merzbacher of the ten-year offer:

Q: And what prevented you from conveying this plea to Mr. Merzbacher?

A: Well, I can’t quite point to one thing. That’s why I think it [i.e., the meeting in Judge Gordy’s chambers] was around the same time. On January 15, without planning whatsoever, I was forced to move my law office, literally overnight. And that created a great burden on me. Also in January I was in the middle of hearings in front of Judge Ferris, an administrative law judge in Anne Arundel County in the case against Laurie Cook. Those hearings took well over 200 hours and had been started about the second week of December.

A: And those hearings, because it took me literally 200 hours, was backing me up to the wall. And I had recently concluded the case of Jacqueline McClean, whose hearings ended I think on the 18th of December. So, I was under a tremendous amount of stress, being forced to literally move overnight to a new place and reset up my practice in the middle of keeping going what I was keeping going, was very stressful. I have no recollection of telling Billy Kanwisher to do it. I’m sure I thought that I should have told him. And it was in my mind, but it’s clear to me that I didn’t do that. And I assumed that he did. And the next several months were very hectic for me just trying to keep my own practice going.

Transcript of October 31, 2000, hearing at 22:20-23:23.

Kanwisher explained his inaction this way, in part:

A: The dynamics of the situations were that Ms. Gutierrez was not only the lead counsel, she was the chosen counsel of Mr. Merzbacher. And, I was in some respects, I came late to the case and I was the Public Defender, an appointee. To go [sic] Mr. Merzbacher and persuasively recommend him to take that particular plea, which, at the time, I though [sic] should have been done, I was not in the best position to be the most persuasive member of the defense team to do so.

Q: During the course of this case you and Ms. Gutierrez actually consulted about what your role would be, what her role would be, correct?

A: Yeah, I mean in a ... There wasn’t ever a list or — I mean it was sort of understood. And I would do most of the grunt work and she would do most of the court work. I mean that was the basic delineation of tasks.

Q: Can you recall whether they were say, any major decisions which you actually made in the case as opposed to say Ms. Gutierrez

A: No.

Q: It was always something that the two of you worked out together?

A: At least. We communicated pretty well at the time. And yeah, we pretty much discussed every, I would think major decision in the case.

Transcript of October 31, 2000, hearing at 61:2-10; 65:23-66:5, 67:14-69:11 (emphasis added).

2. The First Post-Conviction Opinion

After the evidentiary record closed, the post-conviction court did not issue its findings of fact and conclusions of law for more than two years. Finally, on or about April 1, 2003, the court denied Merzbacher’s petition in a memorandum opinion and order filed on that date.

In its opinion, the post-conviction court first focused on Williams v. State, 326 Md. 367, 605 A.2d 103 (1992), an important state post-conviction case. In Williams, the Maryland Court of Appeals, applying Strickland, held that the defendant was denied the effective assistance of counsel guaranteed by the federal and state constitutions. Williams and a codefendant, Alton D. Grimes, Jr., were charged with kidnapping and other offenses; they were represented by the same lawyer. At the commencement of the trial, the state offered both defendants a plea agreement pursuant to which the defendants would plead to an indictment count for which the maximum sentence was ten years. When defense counsel advised the defendants of the plea offer, Grimes “adamantly refused it,” and Williams stated that he “wanted to do what Mr. Grimes would.” (Grimes had retained the attorney and was paying the legal fees for both defendants.) Id. at 108.

At the time the plea agreement was offered, defense counsel did not know, although he had reason strongly to suspect, that Williams, if convicted, was subject to the state “three time loser” law. In fact, upon Williams’s conviction after a jury trial, the state filed the appropriate notice of enhanced punishment and Williams received a sentence of 25 years. The circuit court subsequently granted Williams post-conviction relief based on its finding that Williams had been denied the effective assistance of counsel because his counsel failed to advise him of the possibility of the enhanced sentence, thereby depriving Williams of important information bearing on the advisability of his acceptance or rejection of the state’s plea offer. The Maryland Court of Special Appeals reversed the post-conviction court in an unreported opinion, apparently on the theory that the plea offer had been a “take it or leave it offer” to Grimes and Williams jointly, and inasmuch as Grimes rejected the offer, there was no opportunity for Williams to accept it. That being so, the intermediate appellate court concluded, Williams suffered no prejudice under a Strickland analysis.

The Court of Appeals granted Williams’s petition for certiorari, reversed the judgment of the intermediate appellate court, and remanded the case to the circuit court with directions that Williams be permitted to accept the foregone plea agreement. The Court of Appeals unhesitatingly rejected the intermediate appellate court’s speculation that the offer of a plea agreement had been a joint offer, incapable of acceptance by Williams alone, because the record contained no evidence to support that assertion. Thus, the court proceeded to evaluate the Strickland claim. In so doing, the Court of Appeals cited to the plethora of federal and state cases which stand for the unremarkable proposition that, “[a] trial attorney performs deficiently when he or she does not disclose to the client that the State has made a plea offer.” Id. Further the court cited to such cases holding that deficient performance is also shown where “a trial attorney who, while disclosing the plea offer, provides the defendant with incomplete or misleading information with regard to the offer.” Id. The court found that counsel had provided deficient performance in his representation of Williams.

The Court of Appeals then examined the issue of prejudice, the second prong of a Strickland claim. The court stated: “Whether prejudice actually occurs requires consideration of the proof offered by the client regarding what would have been done with proper and adequate advice.” Id. at 109. Ultimately, the court concluded that “the evidence of prejudice in this case is ample.” In so holding, the court reasoned as follows:

Unlike the State, the petitioner does not believe that in order to prevail, it is necessary that the record contain “objective” evidence that he was prejudiced, that is, that he would have accepted the plea agreement offered by the State. He endorses the position enunciated in People v. Pollard, supra, 282 Cal.Rptr. [588] at 594 [ (1991) ]: “[t]he defendant must show that but for the failure to convey the offer or to misadvise concerning the law, it is reasonably probable that the defendant would have accepted the offer.” On the other hand, it is enough, the petitioner asserts, that “counsel’s failure to inform the petitioner of the consequences of going to trial precluded him from making a knowing and intelligent decision to accept the offer.” In other words, it is his inability to make an informed choice that is the critical fact, not whether, on an objective basis, he would have reached a different conclusion. In either case, the petitioner maintains that we need not look for “objective” evidence of his intention. All that is required is that the totality of the evidence supports an inference that the outcome “may well” have been different had he been fully and accurately informed.

There are cases that eschew “subjective, self-serving” statements by a defendant, instead looking for, and relying on, objective evidence that the defendant would have acted differently upon being apprised adequately of the situation .... Other courts have refused to characterize the evidence required to show prejudice as either “subjective” or “objective” and have looked to the “facts of each case” to see if “there is at least an inference from the evidence” that such prejudice exists .... [Some cases] charaeterize[ ] those cases as simply presuming prejudice from the fact that acceptance of a plea offer available to the defendant would have resulted in more favorable treatment than he or she actually received. These cases may be viewed, and we so view them, as focusing on an important fact from which the inference could be drawn that the defendant with more, or better, information, would have acted differently. In any case, the attempt is to determine whether, but for the deficient performance by counsel, there is a substantial possibility that the defendant would have accepted the plea agreement.

In Turner, the “objective” evidence found sufficient was the defendant’s response to a two year plea offer by proposing a one year counter offer and the lower court’s finding that the defendant was under the control of his attorney, who, with only a slight change in his advice, could have ensured a plea. 858 F.2d at 1206. In Lewandowski [v. Makel], when previously clearly advised as to the consequences of going to trial, the defendant had pled guilty. The court viewed that fact as objective evidence that, “with competent legal counsel and advice, it is reasonable to believe that when faced with the real possibility of going to trial on first degree murder, petitioner would have changed his mind and withdrawn his appeal to vacate his plea.” 754 F.Supp. [1142] at 1150 [ (W.D.Mich.1990) ].

In the case sub judice, the plea offer is certainly more favorable than the sentence the petitioner actually received. Furthermore, the record reflects that, when previously fully and accurately advised, in light of his criminal history, of the consequences of testifying, the petitionerfollowing counsel’s advice, elected not to testify. And the petitioner has, after the fact, indicated that had he been told of the possible mandatory sentence, he would have accepted the plea. Upon our independent constitutional appraisal of this record ... it may be inferred that, had he been as clearly and fully advised concerning the potential mandatory sentence as he was concerning the consequences of testifying, the petitioner “may well” have opted to accept the plea agreement, i.e., there is at least a “substantial possibility” that the outcome would have been different. The inference is supported by “objective” evidence — the petitioner’s prior acceptance of his counsel’s advice to remain silent.

Id. at 109-10 (some citations omitted; footnotes omitted; brackets and emphases added).

Inexplicitly, the Merzbacher post-conviction court did not find the Court of Appeals’ analysis in Williams particularly helpful in its assessment of Merzbacher’s claim. With respect, but in all candor, this court finds the post-conviction court’s attempt to distinguish Williams largely incoherent:

In Williams, the favorable offer was conveyed and accepted;[] the prejudice arose from the state’s inartful invocation of a mandatory sentencing statute to block one co-defendant for [sic] availing himself of the plea offer because the co-defendant wanted to go to trial, while the offer was not conditional on being contingent on both defendants accepting the offer. A differently worded offer would have avoided the prejudice found by the Court of Appeals in Williams. When the ontological status of either the existence (or ripeness) of an offer and/or the communication of a ripened offer to the client is at issue, it is inadvisable to take at face value the testimony of client and counsel that occurred in private, within the confines of the attorney-client privilege, as memories will invariably be clouded by wishful thinking.

2006 Opinion at 46. The post-conviction court then cites and quotes over four pages from some of the federal and state cases, many of them cited in Williams, supra, (and many of which actually cite Williams) which have examined the issue of whether and how the Strickland prejudice prong is best analyzed.

Finally, on page 51 of its 57 page 2006 Opinion, the post-conviction court turned to Merzbacher’s claim and rejected it. The court made a series of findings which in combination pointed to its ultimate findings that neither Gutierrez nor Merzbacher testified truthfully when they testified that Gutierrez never disclosed the plea offer to Merzbacher and fully discussed it with him. The court stated:

In the instant case, the only three factors that work in the Petitioner’s favor are as follows:

1)The disparity between the sentence discussed in the plea offer and the ultimate sentence imposed;

2) [T]he fact that the Petitioner did not testify in his defense; and

3) [Petitioner and counsel’s testimony at the post conviction hearing that his plea offer was even [sic] conveyed.

Each factor, standing alone, or without countervailing circumstances could generate the same result as Williams supra.

2006 Opinion at 51. Despite the above favorable findings supportive of Merzbacher’s claim, the post-conviction court ultimately concluded that “viewing the totality of circumstances in this instance, even applying the Williams-Napper standard, it is impossible for this Court to conclude that Petitioner would have ever plead guilty to anything even if a nascent offer had ripened into a fully articulated plea agreement prior to trial.” Id. That is, so far as this court is able to discern, the post-conviction court concluded that Merzbacher had failed to establish both the deficient performance prong as well as the prejudice prong of his Sixth Amendment ineffective assistance of counsel claim. This conclusion was based on the following subsidiary findings by the court, so far as this court is able to ascertain:

(1) Merzbacher “avidly and vociferously maintained his innocence,” including to his wife; 2006 Op. at 45;

(2) No final plea agreement ever was reached;

(3) Merzbacher had been facing civil claims brought against him by his victims;

(4) The state’s case was not a strong case and Merzbacher had a “good chance of successfully maintaining his defense;” Id. at 52;

(5) Merzbacher’s evidence offered “no cogent reason ... as to why he would have dramatically changed his strategy and accepted ten years in prison.” Id.

But the conclusive factor for the post-conviction court was the credibility of Merzbacher’s lawyer, Gutierrez. The court found that Gutierrez committed perjury at the post-conviction hearing and lied on the stand “to protect Merzbacher:”

It is with a very heavy heart that I must conclude that the Ms. Gutierrez, who shortly afterwards consented to disbarment and is now suffering terminally from the effect of uncontrolled diabetes and multiple sclerosis, (I wish I could have waited and been disrespectful to her posthumously) committed perjury in the post-conviction hearing. Sadly, she is simply not worthy of belief. Her concern [sic] was riddled with controversies surrounding her lack of candor. See In re Application of Maria C., 294 Md. 538, 451 A.2d 655 (1982) (Smith, J., dissenting). She was admitted to the bar despite a negative report by the character committee because she concealed two shoplifting convictions; the court explaining that she did so because she was depressed because she was a battered spouse.; [sic] she was accused of lying to Judge Quarles in the Adnan Syed case; she consented to disbarment and the Client Securities Trust Fund asserted claims of $325,000 in fees that Ms. Gutierrez accepted from clients and gave no service to in return). Sarah Koenig, Attorney is Drawing Numerous Complaints, The Baltimore Sun, July 19, 2001 at IB, 2B., Law Notes — Gutierrez Claims Grows, The Daily Record, Sept. 24, 2001 at IB.

Regarding Ms. Gutierrez, who claimed at the post-conviction hearing that she forgot to tell Petitioner about the ten year offer because she had to move out of her office quickly, causing her to be disorganized (despite her meticulous presentation of a forceful defense at trial) and because she was consumed defending another teacher on sexual abuse allegations in Anne Arundel County. In the Jackie McLean case, at about the same time, she maneuvered Judge Joseph Kaplan to reassign the case to Judge Donald Gilmore, so that she could get a binding offer of probation and avoid a jury trial with Judge Elsbeth Bothe. If Ms. Gutierrez and Petitioner wanted to plead to ten years then, she had the manipulative skills to consummate it. Now, it appears there will be no willing takers.

Id. at 52-53 (emphasis added). The post-conviction court stated, as to the ten-year offer: “I hold that it, as much of it as was fleshed out, was communicated, in private, despite assertions to the contrary, and was and would always have been rejected, but for the ultimate conviction and sentence.” Id. at 55.

3. The Application for Leave to Appeal

On May 1, 2003, Merzbacher filed a timely application for leave to appeal to the Court of Special Appeals. Therein, Merzbacher argued that the post-conviction court violated Maryland Rule 5-201 (“Judicial Notice of Adjudicative Facts”), his constitutional right to confront witnesses, and his right to a full and fair hearing. He also alleged that the post-conviction court erred in concluding that he failed to establish that he had been deprived of effective assistance of counsel when his trial counsel failed to inform him of the ten-year offer.

The Court of Special Appeals of Maryland remanded the case to the post-conviction court without an opinion and without affirming or reversing the judgment. The court’s order stated as follows, in full:

IT APPEARING that the hearing judge found as. a fact that trial counsel did inform the applicant of the State’s guilty plea offer, but did not make any findings as to (1) what advice — if any — trial counsel actually gave applicant as to whether the plea should be accepted, and (2) whether counsel’s advice — or lack therefore — constituted “ineffective assistance of counsel,” it is this 11th day of March, 2004, by the Court of Special Appeals, ORDERED that the captioned case be remanded without affirmance or reversal so that the circuit court can decide in the first instance the following two questions:

1. Whether [Merzbacher] is entitled to post-conviction relief on the ground that trial counsel, Christina Gutierrez, failed to properly advise the applicant of his options regarding the guilty plea offer; and

2. Whether [Merzbacher] is entitled to post-conviction relief on the ground that his trial counsel, William Kan-wisher, failed to assure that the applicant was fully and properly advised of his options regarding the guilty plea offer?

(06-516, P. 3, Ex. 7).

4. The Second Post-Conviction Opinion

Upon the remand, Merzbacher and the state filed supplemental memoranda and the post-conviction court held a non-evidentiary hearing on August 10, 2004, and the matter was submitted for decision.

By February 24, 2006, some 18 months after the case had been submitted, the post-conviction court had not issued its decision on the issues identified by the Court of Special Appeals. Accordingly, Merzbacher filed a 28 U.S.C. § 2254 application for habeas corpus relief in this court. (Case No. 06-516, the record of which is incorporated by reference herein.) Merzbacher argued that this court should excuse the exhaustion requirement based on the inordinate delay in the state post-conviction process. See 28 U.S.C. § 2254(b) (1) (B) (ii) (providing that a habeas petitioner does not have to exhaust state court remedies where “circumstances exist that render such process ineffective to protect the rights of the applicant”).

Finally, on June 26, 2006, while Merzbacher’s § 2254 petition was pending in this court, the post-conviction court reissued its 2003 Opinion with minor changes together with a supplemental opinion which again denied relief. The supplemental opinion was an eight page document which purported to address the issues identified in the remand order of the Court of Special Appeals.

In this second opinion, the post-conviction court found and concluded that Merzbacher was not entitled to post-conviction relief on the ground that Kanwisher provided ineffective assistance of counsel. The court found that Kanwisher was “out of the loop on the issue.” The court reasoned that Kanwisher was not constitutionally ineffective because not every lawyer on a legal team has an equal obligation to inform the client of any reasonable plea offer, and in this case Gutierrez shouldered the responsibility:

In relation to the issues as to whether his trial co-counsel, William Kanwisher, failed to assure that the applicant was fully and properly advised of his options regarding the guilty plea offer; Mr. Kanwisher testified at the post-conviction hearing that the nature of the relationship among himself, Gutierrez, and Merzbacher was that he was to assist at the trial with trial oriented tasks. He did not have sufficient privity with Merzbacher to undertake to second-guess Gutierrez and double check if she had conveyed any plea offer to Merzbacher. His testimony on that issue was essentially that he was out of the loop, as he was merely assisting Mr. Gutierrez.

Although Maryland Rules of Professional Conduct, Rule 1.4, Communication, requires that counsel inform the client of any reasonable plea offer for consideration, it does not create a multiple, parallel obligation that each additional lawyer who joins the team retrace the steps and reassure himself and the client that all appropriate steps have been followed. Nothing in Rule 1.4 or cases that annotate it implies that the obligation applies to a single attorney or to an attorney unit, and each member of the attorney team, especially those non-lead attorneys with ancillary functions.

Therefore, Mr. Kanwisher did not fail to provide ineffective assistance of counsel by not becoming involved with Ms. Gutierrez in the plea discussion aspect of the representation or undertaking to individual cover the offer with the client himself. No violation of the effective assistance of counsel clause contemplated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is to be found here.

2006 Supp. Op. at 1-2.

The court next addressed whether Gutierrez failed to advise Merzbacher of his options regarding the plea offer. The court stated that “that subject matter is fairly covered by the memorandum of the court dated March 25, 2003 at pages 10-54 (especially at page 51).” Id. at 2. The court also summarized three findings of fact that it made in the prior opinion:

To summarize what was said [in the earlier opinion], this Court found the following facts:

1. Merzbacher engaged in wishful thinking when he testified at the post-conviction hearing that he was not apprised of the plea offer.

2. Kanwisher was out of the loop on the issue and cannot shed light on what occurred.

3. Gutierrez committed perjury at the post-conviction hearing when she testified that she never advised Merzbacher of the offer, that she was so busy managing her office that she forgot to, and that the subject of a guilty plea never came up.

Because the Court believes neither Merzbacher nor Gutierrez with respect to this assertion, it draws the inference from the totality of the circumstances in the record that the offer was discussed andrejected.[ ]

Id. at 2-3 (emphasis added).

The court then undertakes to justify its reliance on non-record “facts” in finding that Gutierrez committed perjury at the post-conviction hearing. The court analogized the inference of perjury to the use of res ipsa loquitur in a negligence case, stating that the analogy here is “that the event (body of testimony in the post-conviction hearing and original reason for appeal) being the equivalent of the accident and the truthfulness or lack there of being equivalent to the negligence.” Id. at 3. The court continued:

Obviously there is no precedent for making [the res ipsa loquitur] analogy but when faced with an impossibility you have to start somewhere. As indicated on page 51 of this Court’s original opinion, the entire theme of the record for appeal is that Petitioner avidly and vociferously maintained his innocence. He brutally asserted through his counsel over and over again that Murphy and the other students were hysterical and had fabricated these allegations. The record makes it clear that Petitioner could not face his wife and admit to these allegations. He was at that time, still subject to numerous civil suits.

Id. (first emphasis added).

In conclusion, the court drew “the inference that silence was [sic] on the issue of a guilty plea was not attributable to a lack of discussion about it between Merzbacher and Gutierrezf.]” Id. The court stated that the inference was based on four facts: (1) the parties were no longer before Judge Gordy; (2) the offer was never firmed up in terms of details; (3) “[Gutierrez] immediately told Merzbacher that [the ten-year option] was available, he rejected it, and they proceeded as they did because it was not acceptable!,]” id. at 4, and (4) it “seem[ed] contrary to human psychology to believe that she so compartmentalized the discussion about the ten years ... that she would ... persistently forget to mention it at some point[.] Id. at 3-4.

The post-conviction court then returned to whether it impermissibly relied on information outside the record when it rejected Gutierrez’s testimony as not credible. The court stated:

The first problem with [the argument that the court impermissibly used facts outside the record] is if the case is remanded for a new finding of fact as to Ms. Gutierrez’s credibility; the state will obviously offer extrinsic evidence impeaching her, such as that relied on by the court for the court to assess her credibility. It is difficult to imagine that an appellate court would engage in a form of gamesmanship that says the state did not introduce this evidence, the court improperly relied on certain facts, that the court must be insulated from these facts and never consider them again, even if the analysis as to her credibility is strained as the result of the suppression of those facts.

Those facts might not technically be subject to judicial notice under Maryland Rule 5-201(b) as facts not subject to reasonable dispute that are generally known within the territorial jurisdiction or as described by Lynn McLain, Maryland Evidence State and Federal § 201:4b, (2d. Ed. West 2001), as the “Everyone Around Here Knows That” Category. The data are indeed adjudicable facts. The facts that appeared in the record of this post conviction are the record itself (the reason for Judge Quarles recusal); the Daily Record, and the Baltimore Sun (the Client Security Trust fund issue); and a Court of Appeals opinion (the bar admission controversy). Judicial notice is appropriate when the facts are self evidence and notorious, A & H Transp. Inc. v. Mayor and City Council of Baltimore et al., 249 Md. 518, 530, 240 A.2d 601, 607 (1968), but by the same token the facts underlying the circumstances, especially relating to extenuating circumstances, may be said that they are notorious. Lerner v. Lerner Corp., 132 Md.App. 32, 40-41, 750 A.2d 709, 714 (2000) (declining to take judicial notice of corporation’s offer to sell stock because its accuracy is subject to reasonable dispute and cannot be as readily and accurately entertained). There appears to be a distinction between judicial notice and judicial knowledge, see Wilhelm v. State, 272 Md. 404, 439, 326 A.2d 707, 728 (1974) (In a broad sense the term ‘judicial notice is used to denote both judicial knowledge (which courts possess) and common knowledge (which every informed individual possess) ....); Smart v. Graham, 179 Md. 476, 484, 20 A.2d 574, 578 (1941) (concerning publicity surrounding the sale of the Hotel Rennert); Franklin v. State, 12 Md. 236, 245 (1858) (thrust of debates which took place at constitutional conventions).

Federal case law establishes that a federal court will take judicial notice of among other things court records, especially those in the same court pertaining to the same parties. McLain, supra 201:6, St. Louis Baptist Temple v. Fed. Deposit Ins., 605 F.2d 1169, 1172 (10th Cir.1979) (“federal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and limited to the federal judicial system, if theses [sic] proceedings have a direct relation to matters at issue”).

The Court of Appeals addressed this concept of relying on facts not formally in evidence in Evans v. State, 333 Md. 660, 637 A.2d 117 (1994), where in arguing for the death penalty the state mentioned that another inmate had escaped from the maximum security institute. The Court acknowledged that “[I]t is true that a prosecutor ordinarily may not comment on matters not in evidence, but it is proper for counsel to argue to the jury even though evidence of such facts has not been formally introdueedmatters of common knowledge or matter of which the court can take judicial notice.” citing Wilhelm v. State, 272 Md. 404, 438, 326 A.2d 707, 728 (1974). Id. at 679[, 637 A.2d 117]. The Court cites seven newspaper article [sic] about the escape and recapture, Evans, 333 Md. At 680-81, concluding that considering the wealth of publicity given the escape and recapture and its temporal proximity to Evans re-sentencing hearing, the prosecutor’s reference to Harry Dean’s escape from “Super Max” as in Wilhelm, “was but a direction by him to the jury of the fact that was within their common knowledge.” Wilhelm, 272 Md. at 440[, 326 A.2d 707],

The facts eroding Gutierrez’s credibility were comparably notorious and contemporaneous.

Making this credibility assessment on this basis is no more than resorting to the common knowledge of the vicinage and to require otherwise would strain the fact-finding process.

Id. at 5-8.

Ultimately, the post-conviction court rejected Merzbacher’s claim for habeas relief for a second time. After the issuance of the second opinion, on August 29, 2006, this court dismissed without prejudice Merzbacher’s February 24, 2006, § 2254 action, explaining that petitioners seeking habeas relief in federal court must completely exhaust each claim presented to the federal court through remedies available in state court. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Since Merzbacher still retained his right to seek leave to appeal the circuit court’s order to the Maryland Court of Special Appeals, he had not yet exhausted all of his available state court remedies, and could not yet pursue his claim in federal court.

On July 26, 2006, Merzbacher filed a timely application for leave to appeal in the Court of Special Appeals of Maryland, seeking review of the circuit court’s June 26, 2006, order. On January 2, 2007, the Court of Special Appeals of Maryland summarily denied his application for leave to appeal. Merzbacher thereby exhausted all of the state remedies that were available to him. See Md. Cts. & Jud. Proc.Code 12-202. On January 8, 2007, Merzbacher filed the instant action.

II. THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996

Because this action was filed after April 24, 1996, it must be assessed under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA states, in pertinent part.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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). (emphasis added). Furthermore, subsection (e)(1) provides:

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

Plainly, the AEDPA circumscribes this court’s role. In Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court characterized § 2254(d) as a “new, highly deferential standard for evaluating state court rulings.” Federal courts’ collateral review of state court decisions must be consistent with the respect due state courts in our federal system. A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2); see generally Miller-El v. Cockrell, 537 U.S. 322, 340-41, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In reviewing Merzbacher’s attack on his state court convictions, this court presumes that factual determinations made by the state court are correct, and Merzbacher bears the burden of rebutting this presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). A federal habeas court may only overturn a state court’s credibility judgments when the state court’s error is “stark and clear.” Cagle v. Branker, 520 F.3d 320, 324-25 (4th Cir.2008) (citing Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)).

The state court makes such an error under § 2254(d)(2) when its determination of facts is “objectively unreasonable.” The Fifth Circuit recently provided a useful summary of the present state of AEDPA jurisprudence of relevance to this case:

[AEDPA] governs a federal habeas court’s review of a state prisoner’s claims that were adjudicated on the merits in state court. 28 U.S.C. § 2254(d).... Two provisions of the AEDPA deal with factual determinations of state courts. Relief is warranted under § 2254(d)(2) if the state court’s “adjudication of the claim ... 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.” The second provision, § 2254(e)(1), provides that a state court’s factual findings are presumed to be correct, unless the petitioner rebuts them with clear and convincing evidence.

Fields v. Thaler, 588 F.3d 270, 273 (5th Cir .2009).

The court further explained:

Although a lack of fair support in the record was sufficient to rebut a presumptively correct factual finding under pre-AEDPA law, the AEDPA increased the level of deference due to a state court’s factual findings.... The Third Circuit has held that “[sjilence in the record is insufficient to overcome” the § 2254(e)(1) presumption of correctness .... [T]here is currently a split among the circuits regarding the applicability of § 2254(d)(2) and § 2254(e)(1). In Miller-El I, the Supreme Court held that it was incorrect for this court “to merge the independent requirements of § 2254(d)(2) and (e)(1).” 537 U.S. at 341, 123 S.Ct. 1029. The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions.

In Rice v. Collins, 546 U.S. 333, 339, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), the Court noted that the parties disagreed about whether and when the § 2254(e)(1) presumption was applicable during a § 2254(d)(2) review, but declined to resolve the disagreement.

In a case decided prior to Miller-El I, this court described the two provisions in a manner very similar to the Supreme Court’s description in Miller-El I:

Whereas § 2254(d)(2) sets out a general standard by which the district court evaluates a state court’s specific findings of fact, § 2254(e)(1) states what an applicant will have to show for the district court to reject a state court’s determination of factual issues. For example, a district court may find by clear and convincing evidence that the state court erred with respect to a particular finding of fact, thus rebutting the presumption of correctness with respect to that fact. See § 2254(e)(1). It is then a separate question whether the state court’s determination of facts was unreasonable in light of the evidence presented in the state court proceeding. See § 2254(d)(2). Thus, it is possible that, while the state court erred with respect to one factual finding under § 2254(e)(1), its determination of facts resulting in its decision in the case was reasonable under § 2254(d)(2).

Valdez v. Cockrell, 274 F.3d 941, 951 n. 17 (5th Cir.2001).

The Third, Fourth, Seventh, and Eighth Circuits appear to have a similar understanding of these AEDPA provisions that govern review of state court factual determinations .... See Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004) ( “the language of § 2254(d)(2) and § 2254(e)(1) implies an important distinction: § 2254(d)(2)’s reasonableness determination turns on a consideration of the totality of the ‘evidence presented in the state-court proceeding,’ while § 2254(e)(1) contemplates a challenge to the state court’s individual factual determinations, including a challenge based wholly or in part on evidence outside the state trial record.” (citing Valdez and Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.2004))); Lenz v. Washington, 444 F.3d 295, 300 (4th Cir.2006) (in determining whether state court’s conclusion is an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, court presumes state court’s factual findings to be correct unless rebutted by clear and convincing evidence); Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007) (Notwithstanding assumption that petitioner has overcome presumption of correctness of two factual statements of state court by clear and convincing evidence, “it does not necessarily follow that the state court adjudication was based on an unreasonable determination of facts because subsection (d)(2) instructs federal courts to evaluate the reasonableness of the state court decision ‘in light of the evidence presented in the State court proceeding’ ”); BenYisrayl v. Buss, 540 F.3d 542, 549 (7th Cir.2008) (§ 2254(e)(1) provides mechanism for proving unreasonableness under § 2254(d)(2); if petitioner shows that state court determined an underlying factual issue against clear and convincing weight of evidence, petitioner has gone a long way towards proving that it committed unreasonable error).

The Ninth Circuit has held that § 2254(d)(2) applies when a petitioner challenges the state court’s findings based entirely on the state record, and that § 2254(e)(l)’s presumption of correctness and clear-and-convincing standard of proof apply only when the habeas petitioner presents new evidence for the first time in federal court. Taylor, 366 F.3d at 999-1000; see also Kesser v. Cambra, 465 F.3d 351, 358 n. 1 (9th Cir.2006) (en banc). The Eleventh Circuit observed that “the plain language of § 2254 does not provide the basis for such a distinction.” Prevatte v. French, 547 F.3d 1300, 1304 n. 1 (11th Cir.2008). The First Circuit noted that the relationship between § 2254(d)(2) and § 2254(e)(1) has caused confusion and has not yet been definitely resolved. See Teti v. Bender, 507 F.3d 50, 57-58 (1st Cir.2007).

This term, the Supreme Court is considering a case involving the applicability of § 2254(d)(2) and § 2254(e)(1). Wood v. Allen, 542 F.3d 1281 (11th Cir. 2008), cert. granted, — U.S.-, 129 S.Ct. 2389, 173 L.Ed.2d 1291 (2009). In that case, the petitioner, Wood, argued that in a case which is based only on evidence that was presented in state court, the habeas court should apply only § 2254(d)(2), and that § 2254(e)(1) applies only in cases involving evidence that was not presented in state court. The respondent argued that § 2254(e)(1) applies in every case, irrespective of whether the evidence was presented in state court.

Id. at 278-80 (some alterations added). (In the end, the Supreme Court found it inadvisable to address in Wood the interplay between § 2254(d)(2) and § 2254(e)(1). See Wood v. Allen,— U.S. -, 130 S.Ct. 841, 851, — L.Ed.2d-(2010)).

More recently still, the Fourth Circuit has provided further guidance as to the interplay between § 2254(d)(2) and § 2254(e)(1):

Section 2254(d) provides AEDPA’s framework for reviewing habeas petitions:

(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.

Section 2254(d)(1) describes the standard of review to be applied to claims challenging how the state courts applied federal law, while § 2254(d)(2) describes the standard to be applied to claims challenging how the state courts determined the facts. Both provisions direct federal courts to assess the reasonableness of the state court determinations, and both assessments must be made in light of the evidence the state courts had before them. The only limitation on § 2254(d)’s application is that the claims submitted must have been “adjudicated on the merits” in state court.

For a state court’s factual determination to be unreasonable under § 2254(d)(2), it must be more than merely incorrect or erroneous .... It must be sufficiently against the weight of the evidence that it is objectively unreasonable.

An apparent tension between § 2254(d)(2) and § 2254(e)(1) arises because the latter section provides an alternate and seemingly inconsistent standard for review of state court factual determinations:

This section does not concern itself with the reasonableness of factual determinations by the state courts but with the correctness or incorrectness of those determinations. It further assigns a burden of proof to the petitioner — clear and convincing evidence — for negating them. Finally, unlike § 2254(d), there are no limitations on the application of § 2