author: FRANK A. KAUFMAN, Chief Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. OCEAN CITY POLICE DEPARTMENT.
    Civ. No. K-84-4448.
    United States District Court, D. Maryland.
    June 30, 1985.
    Johnny J. Butler, Acting Gen. Counsel, and E.E.O.C., Washington, D.C., Gerald S. Kiel, Regional Atty., Frederick P. Charleston, Supervisory Trial Atty., and E.E.O.C., Baltimore, Md., for plaintiff.
    Richard T. Sampson, Kathleen Pontone and Semmes, Bowen and Semmes, of Baltimore, Md., for defendant.
   FRANK A. KAUFMAN, Chief Judge.

On December 6, 1983, the Equal Employment Opportunity Commission (EEOC) issued a subpoena duces tecum to the Ocean City Police Department (Respondent), requiring the production of certain data allegedly necessary to the investigation of a charge of discrimination filed against Respondent by Keith Wright. That subpoena was issued after Respondent had failed to respond fully to the EEOC’s requests for data.

On December 16, 1983, Respondent filed a Petition to Revoke or Modify the Subpoena. On March 10, 1984, the EEOC issued its Determination on Respondent’s petition, denying the request to revoke the subpoena in its entirety, and modifying the subpoena only as to the time limit for compliance. On August 3, 1984, the General Counsel for the EEOC affirmed the Determination issued by EEOC’s Baltimore District office, and directed Respondent to provide the requested data by September 7, 1984. To date, Respondent has failed to comply with the subpoena. In that context, the EEOC instituted this case in which it has filed an Application for Enforcement of Subpoena Duces Tecum.

On December 10, 1984, this Court ordered Respondent to appear on January 22, 1985, to show cause why this Court should not require Respondent to comply with the subpoena. Subsequently, on December 10, 1984, Respondent opposed in writing EEOC’s subpoena enforcement action, the EEOC filed a written rebuttal, and a nonevidentiary hearing was held on the record on June 7, 1985. At the conclusion of that hearing, this Court informed counsel that it would enter an Order enforcing the subpoena as soon as it could prepare and file the within opinion and such Order.

I

Keith Wright alleges, inter alia, that he has been discharged by Respondent because of Wright’s race, that only 9 of the 75 officers on the police force were black, and that while on the force, he was continuously harassed. Wright was discharged on April 14, 1981. On November 19, 1981, he completed an EEOC “Intake Questionnaire,” and on December 16, 1981, he signed a formal “Charge of Discrimination.” That formal charge was received by the EEOC on December 21, 1981, 251 days after April 14, 1981, the date of the discharge. At no time did Wright file any charge with the Maryland Commission on Human Rights (MCHR); nor did the EEOC ever refer this matter to the MCHR.

Section 706(b) of Title VII of the. Civil Rights Act of 1964 authorizes the EEOC to conduct investigations of potential violations of the Act:

Whenever a charge is filed by ... a person claiming to be aggrieved ..., alleging that an employer ... has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge ... on the employer ... within ten days, and shall make an investigation thereof ... [i]f the Commission determines after such investigation that there is not reasonable cause to believe the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action ... [i]f the Commission determines after such investigation that there is reasonable cause to believe that such charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion ...

Section 709(a) of Title VII, as amended, 42 U.S.C. § 2000e-8(a), provides that the Commission may have “access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.” Section 710 of Title VII, 42 U.S.C. § 2000e-9, authorizes the Commission to obtain information relevant to discriminatory charges and to issue subpoenas requiring the testimony of witnesses and the production of evidence. Section 710 also confers upon any district court of the United States the jurisdiction to issue an order of compliance to any person refusing to obey a subpoena. Id.

The EEOC is entitled to access only to evidence “relevant to the charge under investigation,” Section 2000e-8(a). The following legislative history reveals that that limitation upon the EEOC’s authority is not, as Justice Marshall wrote in EEOC v. Shell Oil Company, 466 U.S. 54, 104 S.Ct. 1621, 1629, 80 L.Ed.2d 41 (1984), “accidental”:

“It is important to note that the Commission’s power to conduct an investigation can be exercised only after a specific charge has been filed in writing. In this respect the Commission’s investigatory power is significantly narrower than that of the Federal Trade Commission or of ■the Wage and Hour Administrator, who are authorized to conduct investigations, inspect records, and issue subpenas [sic] whether or not there has been any complaint of wrongdoing.” 110 Cong.Rec. 7214 (1964) (citations omitted).

In Shell Oil, after quoting that passage from the legislative history, Justice Marshall concluded that:

we must strive to give effect to Congress’ purpose in establishing a linkage between the Commission’s investigatory power and charges of discrimination. If the EEOC were able to insist that an employer obey a subpoena despite the failure of the complainant to file a valid charge, Congress’ desire to prevent the Commission from exercising unconstrained investigative authority would be thwarted. Accordingly, we hold that the existence of a charge that meets the requirements set forth in § 706(b) ... is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC.

Id. (footnote omitted). Accordingly, in order to establish entitlement to the grant of its written petition to enforce the subpoena in question, the EEOC must show that a valid charge was duly filed by Wright.

II.

Section 2000e-5(c), 42 U.S.C. states in part:

In the case of an alleged unlawful employment practice occurring in a State ... which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice ... no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated ... (emphasis added).

Section 706(e) of Title VII, 42 U.S.C. Section 2000e-5(e) provides in part:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed within three hundred days after the alleged unlawful employment practice occurred____

The State of Maryland, through the MCHR, has established a state agency capable of affording relief from discrimination. Thus, Maryland is a Title VII “deferral” state in which the extended 300-day period for filing charges applies. Soble v. University of Maryland, 572 F.Supp. 1509, 1512 (D.Md.1983), citing to Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670, 680 n. 26 (D.Md.1979).

In this case, Wright did not file a charge with the EEOC within the 180 day period or with the MCHR within the applicable state limitations period. Herein, the question arises as to whether, in order to invoke the extended 300-day federal filing period, a claimant must file a state charge within the state limitations period. The Maryland limitations period, pursuant to Article 49(b) of the Annotated Code of Maryland, Section 9(a), is 180 days.

In Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), Justice Stevens wrote in his majority opinion as follows (at 809-10, 100 S.Ct. at 2488-89):

The question in this Title VII case is whether Congress intended the word “filed” to have the same meaning in subsections (c) and (e) of § 706 of the Civil Rights Act of 1964, 78 Stat 260, as amended in 1972, 86 Stat 104-105, 42 USC §§ 2000e-5(c) and (e) [42 USCS §§ 2000e-5(c) and (e) ]. The former subsection prohibits the filing of an unfair employment practice charge with the federal Equal Employment Opportunity Commission (EEOC) until after a state fair employment practices agency has had an opportunity to consider it. The latter subsection requires that in all events the charge must be filed with the EEOC within 300 days of the occurrence. We hold that a literal reading of the two subsections gives full effect to the several policies reflected in the statute.

In Mohasco, the dissatisfied employee filed a letter-complaint with the EEOC 291 days after his discharge. The matter was promptly referred by the EEOC to the New York State Division of Human Rights, id. at 810, 100 S.Ct. at 2489. That referral constituted a filing of the complaint by the EEOC on behalf of the complainant, id. at 810, 100 S.Ct. at 2492. The New York state agency completed its own proceedings 351 days after the date of discharge, id. at 812, 817, 100 S.Ct. at 2490, 2492. In that factual context, Justice Stevens, on behalf of a 6-3 majority, noted that “the question” was whether the receipt of the letter by the EEOC constituted a filing with the EEOC within the meaning of Section 706(e), and then wrote:

The answer is supplied by subsection (c), which imposes a special requirement for cases arising in deferral States: “no charge may be filed under subsection [ (b) ] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated____” Thus, in terms, the statute prohibited the EEOC from allowing the charge to be filed on the date the letter was received. Although, as the Court held in Love v. Pullman Co., supra [404 U.S. 522, 525, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972)], it was proper for the EEOC to hold respondent’s “complaint in ‘suspended animation,’ automatically filing it upon termination of the State proceedings,” 404 US at 526 [92 S.Ct. at 618] (emphasis added), that means that the charge was filed on the 351st day, not the 291st. By that time, however, the 300-day period had run and the filing was therefore untimely.

Id. at 817, 100 S.Ct. at 2492-93 (footnote omitted).

Earlier in his opinion, (at 815-16, 100 S.Ct. at 2492) (footnote omitted), Justice Stevens concluded that Section 706(e)

allows a filing with the EEOC after 180 days if “the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice____”

Elaborating, Justice. Stevens commented that

a complainant in a deferral State having a fair employment practices agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved. If a complainant files later than that (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300-day period.

Id. at 814 n. 16, 100 S.Ct. at 2491 n. 16 (emphasis added). Further, id. at 816, n. 19, 100 S.Ct. at 2492 n. 19, Justice Stevens added that “Congress included no express requirement that state proceedings be initiated by any specific date” and that “we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include, ... at least when dealing with ‘a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.’ Love v. Pullman Co., 404 U.S. 522, 527 [92 S.Ct. 616, 619, 30 L.Ed.2d 679].”

In Hedman v. Coppin State College, 35 F.E.P. Cases 7 (D.Md.1982), the question arose as to whether certain claims of discriminatory employment practices were barred by limitations. In holding that they were so barred, Judge Ramsey wrote (at 11):

If the charge must be filed with the state fair employment practices agency under 42 U.S.C. § 2000e-5(c), the time for filing an EEOC charge is extended to 300 days. Mohasco Corp. v. Silver, 447 U.S. 807, 810 [100 S.Ct. 2486, 2489, 65 L.Ed.2d 532] 23 FEP Cases 1 (1980). The State of Maryland has established a deferral agency — the Maryland Commission on Human Relations (MCHR) — with authority to provide relief from unlawful employment practices. Article 49B, § 9(a) of the Annotated Code of Maryland provides that to be timely, a charge must be filed with the MCHR within six months of the alleged discriminatory conduct. Neither Hedman nor Grattan claim to have filed charges with the MCHR within six months of the alleged discriminatory conduct. Charges of discrimination, however, in both cases were filed with the EEOC within 180 days of their terminations.
In Mobley v. Acme Markets, Inc., supra, 473 F.Supp. [851] at 857 [ (D.C.Md. 1979)], the U.S. District Court for this District, relying on the Court of Appeals for the Fourth Circuit’s decision in Doski v. M. Goldseker Co., 539 F.2d 1326, 12 FEP Cases 1751 (4th Cir.1976), held that to trigger the longer, 300-day time limit for filing charges with the EEOC, state charges must be timely filed under state law. Accord, Battle v. Clark Equipment, Brown Trailer Division, 524 F.Supp. 683, 686, 27 FEP Cases 830 (N.D.Ind.1981) (and the numerous cases cited therein). The Supreme Court’s subsequent decision in Mohasco Corp. v. Silver, supra, does not require a different result. In Mohasco, the Supreme Court noted that a claimant in a deferral state was not required to file a charge of discrimination with the state’s deferral agency within 180 days to benefit from the 300-day period for filing a charge with the EEOC. In that case, however, the plaintiff filed timely charges with the New York deferral agency under that state’s one year limitations period. Thus, Mohasco did not disturb the principal first stated in this district in Mobley that plaintiffs who fail to file timely charges with deferral state agencies cannot take advantages of Section 706(e)’s 300-day limitation.

In Soble v. University of Maryland, 572 F.Supp. 1509, 1512-14 (1983), Judge Miller set forth the following analysis and conclusions:

In Oscar Mayer & Co. v. Evans, 441 U.S. 750 [99 S.Ct. 2066, 60 L.Ed.2d 609] (1976), the plaintiff failed to file her age discrimination charge with Iowa’s State Civil Rights Commission within Iowa’s 120 day age discrimination statute of limitations period. The Supreme Court concluded that Section 633(b) of the ADEA required grievants to resort to state administrative proceedings before bringing a suit in federal court. Id. at 754-58 [99 S.Ct. at 2070-72]. Justice Brennan, writing for the majority, concluded that:
“exhaustion of state remedies under the ADEA could be met by an untimely filing of a charge with the state agency, for the federal statute did not provide that the prerequisite state charge must be filed within the time limitation prescribed by state law. See 441 U.S. at 759 [99 S.Ct. at 2073].’’
By the language used in the majority opinion, it does not appear that the Supreme Court in Oscar Mayer confined its holding to state limitations of less than 180 days.1
This court, as well as several other courts, in interpreting language in the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 626(d) similar to the section of Title VII, 42 U.S.C. § 2000e-5(e) at issue here, has held that 300 days is to be allowed for filing an age discrimination claim in federal court in deferral states even if no charge of discrimination has been filed with the appropriate state agency within the limitations period established by the state of 180 days, (citations omitted).
In Mohasco Corp. v. Silver, 447 U.S. 807 [100 S.Ct. 2486, 65 L.Ed.2d 532], the Supreme Court held that a plaintiff need not have filed a charge with the appropriate state agency within 180 days of his discharge in order to take advantage of the extended 300 day filing period available under Title VII____
Although in Mohasco the state limitations period was greater than 180 days, the Supreme Court thereafter vacated and remanded for reconsideration in light of Mohasco two circuit court opinions which barred ADEA claims for failure to file with a state agency within the 180 day state limitations period. Ciccone [v. Textron, Inc.], 449 U.S. 914 [101 S.Ct. 311, 66 L.Ed.2d 143 (1980)]; Ewald [v. The Great Atlantic and Pacific Tea Co., Inc.], 449 U.S. 914 [101 S.Ct. 311, 66 L.Ed.2d 143 (1980)]. Citing these cases and also noting that the language and purpose of these sections of Title VII and the ADEA are similar, see Zipes v. Transworld Airlines, Inc., 455 U.S. 385 [102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)]; Oscar Mayer, 441 U.S. 750 [99 S.Ct. 2066, 60 L.Ed.2d 609]; Citicorp Person-To-Person Fin. Corp. v. Brazell, 658 F.2d 232 (4th Cir.1981), subsequent cases have concluded that Title VII claims are not barred despite a grievant’s failure to file a charge with the state agency within a state limitations period of 180 days. See Jones v. Airco Carbide Chemical Co., 691 F.2d 1200 (6th Cir.1982); Hall v. Ledex, Inc., 669 F.2d 397 (6th Cir.1982); Owens v. Ramsey Corp., 656 F.2d 340 (8th Cir.1981), Wiltshire v. Standard Oil Co., 652 F.2d 837 (9th Cir.1981), cert. denied, 455 U.S. 1034 [102 S.Ct. 1737, 72 L.Ed.2d 153] (1982) [other citations omitted] ____
Because Title VII, unlike the ADEA which permits simultaneous filings with both the EEOC and the state agency, requires that the charge with the EEOC may not be instituted until 60 days after commencing the state charge, 42 U.S.C. § 2000e-5(c) [footnote 2 omitted], in Mohasco, the Supreme Court concluded that in deferral states a grievant who files her Title VII charge with the appropriate state agency within 240 days from the date of the alleged unlawful employment practice has timely filed her charge with the state agency so as to permit review by the EEOC if filed there within the 300 day deadline____
This 240 day limitations period has not, however, been retroactively applied. Wiltshire [v. Standard Oil Company of California], 652 F.2d [837, 840-42 (9th Cir.1981)]; Hall [v. Ledex, Inc.] 669 F.2d [397, 399 (6th Cir.1982)]. Rather, courts have concluded, after reviewing the requirements for retroactive application of a decision in light of Chevron Oil Co. v. Huson, 404 U.S. 97 [92 S.Ct. 349, 30 L.Ed.2d 296] (1971), see also Stovell v. Denno, 388 U.S. 293 [87 S.Ct. 1967, 18 L.Ed.2d 1199] (1967), that claimants filing a charge containing Title VII claims with the EEOC before June 23, 1980 (the date of the Mohasco decision) are entitled to the 300 day rather than the 240 day extended period for the prerequisite filing with the state agency. Wiltshire, 652 F.2d at 842.
After reviewing the cases decided under the ADEA and Title VII, this court concludes that grievants in deferral states need not file a charge with a state agency within the state limitations period in order to obtain the benefit of the extended period of filing with the EEOC available in Title VII under 42 U.S.C. § 2000e-5(e). Prior to June 23, 1980, claimants are entitled to the 300 day rather than the 240 day, extended period for filing with the EEOC.

In Haller v. Butler Shoe Corporation, 595 F.Supp. 998, 999-910 (D.Md.1984), Judge Northrop reviewed the issue and adopted Judge Miller’s position, observing:

In Soble v. University of Maryland, 572 F.Supp. 1509 (D.Md.1983), Judge Miller addressed and rejected the exact same argument raised by the defendant herein. In Soble, one of the issues was whether “plaintiff’s failure to file a charge with Maryland’s state agency within the 180-day state limitations period results in the plaintiff being denied the benefits of the extended federal filing period.” Id., at 1512. After a thorough analysis of the applicable law, the Court held:
[T]his court concludes that grievants in deferral states need not file a charge with a state agency within the state limitations period in order to obtain the benefit of the extended period of filing with the EEOC available in Title VII under 42 U.S.C. § 2000e-5(e).
Id., at 1514.
Defendant, aware that the Soble decision is directly contrary to its position, argues that Soble is inconsistent with other decisions of this District and that Soble was wrongly decided. The Court rejects these arguments. First, Soble was predicated on the decision rendered in Mohasco Corp. v. Silver, 447 U.S. 807 [100 S.Ct. 2486, 65 L.Ed.2d 532] (1980). The decisions reached by this District Court prior to that controlling Supreme Court decision are not persuasive on the issue raised herein. Thus Soble is more than just the most recent decision on this issue, it is the only decision that includes Mohasco in its analysis.
Second, the Court is not convinced that Soble was wrongly decided____ Soble provides a better reading of Mohasco and is more in line with other decisions that have addressed the issue and rejected the restrictive approach urged by the defendant. See, e.g., Smith v. Oral Roberts Evangelistic Ass’n, Inc., 731 F.2d 684 (10th Cir.1984) [other citations omitted]. Further support for the Soble decision can be found in the EEOC’s Code of Federal Regulations as revised in 1981 to conform to the Mohasco decision. 29 C.F.R. § 1601.13(a)(3) (1981).

Herein, this Court, fully persuaded by Soble and Haller, holds that Wright did not need to have filed his charge with MCHR within Maryland’s 180-day limitations period in order to benefit from the extended 300-day federal filing period accorded to claimants in deferral states.

Respondent contends that, in any event, Wright’s charge was untimely initiated with the EEOC for the additional reason that, since that charge was filed with the EEOC 251 days after the discriminatory act, if the EEOC had then referred it to the MCHR, the EEOC would still have had to wait 60 days to allow for state processing before the EEOC could have considered the claim at the federal level. Thus, argues Respondent, Wright’s charge cannot be deemed to have actually been filed with the EEOC prior to 300 days after the alleged discriminatory act. The answer to that position is that the EEOC and the MCHR are parties to a work sharing agreement. Pursuant to that agreement, the MCHR waived its right to “exclusive” processing of charges filed initially with the EEOC, and thereby relieved the EEOC of any need either to wait 60 days for state processing or to wait until state processing had terminated if Wright had, or the EEOC had, as neither in fact did, filed Wright’s charge with the MCHR.

Paragraph 4c of the Worksharing Agreement between the EEOC and the MCHR provides in part:

The EEOC will take primary responsibility for processing all charges originally received by EEOC____ In addition, EEOC will process the following charges:
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6. All charges covered under Title VII which are received by EEOC beyond six (6) months but before 300 days after the alleged violation.
Paragraph 4d of that Agreement states: In order to facilitate early resolution of charges, the [MCHR] hereby waives its exclusive rights to specific periods of initial processing which have been granted to the [MCHR] by Title VII for those charges assigned by this Agreement to EEOC for initial processing.

Section 1601.13(c), 29 C.F.R. of the EEOC’s Procedural Rules and Regulations, provides:

Pursuant to section 705(g)(1) and section 706(b) of Title VII, the Commission shall endeavor to enter into agreements with 706 Agencies and other fair employment practice agencies to establish effective and integrated resolution procedures. Such agreements may include, but need not be limited to, cooperative arrangements to provide for processing of certain charges by the Commission, rather than by the 706 Agency____

Those same regulations also contain the following:

A 706 Agency may waive its right to the period of exclusive processing of charges provided under section 706(c) of Title VII with respect to any charge or category of charges____
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Where the document on its face constitutes a charge within a category of charges over which the 706 Agency has waived its rights to the period of exclusive processing ... the charge is deemed to be filed with the Commission upon receipt of the document. Such filing is timely if the charge is received within 300 days from the date of the alleged violation.

“[T]he ‘administrative interpretation of [Title VII] by the enforcing agency is entitled to great deference.’ ” Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971); quoted in Doski v. Goldseker Co., 539 F.2d 1326, 1332 (4th Cir.1976). In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 64, n. 4, 100 S.Ct. 2024, 2031, n. 4, 64 L.Ed.2d 723 (1980), Justice Blackmun, noting provisions of Title VII which “evidence the policy of promotiong federal-state cooperation in enforcement,” quoted specifically, inter alia, Title VII’s authorization to the EEOC “to enter into worksharing agreements with those [State and local] agencies [charged with administering fair employment practice laws of the state] to facilitate the processing of complaints.” In Thompson v. International Association of Machinists and Aerospace Workers, 580 F.Supp. 662, 665-66 (D.D.C.1984). Judge Green wrote that:

[I]n the District of Columbia the EEOC’s deferral function is altered considerably by a worksharing agreement between the EEOC and OHR. The terms of that agreement provide that each agency will take primary responsibility for processing all charges of which it is the original recipient ... and, “to facilitate the early resolution of charges,” the OHR has “waived its exclusive rights to specific periods of initial processing” granted by Title VII for charges assigned by the agreement to EEOC for initial processing....
* * * * * *
In effect, by entering the worksharing agreement with EEOC, OHR [the Office of Human Rights of the District of Columbia] is deemed to have “terminated” its review function within the meaning of § 2000e-5(c).

Finally, Respondent urges that if the worksharing agreement between the EEOC and the MCHR is valid, there is no need in this case, in which Wright filed only with the EEOC and not with the MCHR, to give effect to the 300-day period provided for in Section 706(e). Respondent contends that Maryland is not a deferral state with regard to such a charge since the EEOC did not need to wait for the MCHR to act. Defendant’s said approach finds support in Douglas v. Red Carpet Corporation of America, 538 F.Supp. 1135, 1138-39 (E.D.Pa.1982) and Klausner v. Southern Oil Company of New York, Inc., 533 F.Supp. 1335, 1338-39 (N.D.N. Y.1982) but is seemingly rejected in Yeung v. Lockheed Missiles & Space Co., 24 F.E.P. Cases 1070 (N.D.Cal.1980) and is not consistent with the result or the reasoning in Soble. Defendant’s said approach also is in conflict with Haller. In the absence of any opinion of the Fourth Circuit indicating the views of that Court, this Court, finding Soble and Haller to be convincing, is not prepared to follow Douglas and Klausner. Rather, the view which this Court believes is correct is a simple one which laymen, unaided by attorneys, can rely upon in Title VII cases when instituting a case in a federal court, i.e., that in a deferral state with a worksharing agreement of the type in existence between the EEOC and the MCHR, the complainant can timely file the federal court action if he does so within 300 days of the alleged discriminatory discharge.

In sum, this Court holds that since Wright filed his complaint with the EEOC within 300 days after the alleged discriminatory conduct occurred, Wright’s complaint was timely filed.

       "In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection [ (b) ] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority." 86 Stat 104.

       “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.” 86 Stat 105.

       Defendants do not contest the timeliness of Hedman’s termination and equal pay claims and Grattan’s termination claim, the principal claims made in these lawsuits. As counsel for plaintiffs noted at the hearing, it is not critical in these cases whether 180 days or 300 days is the appropriate limitations, since plaintiffs’ claims, in large part, are either well within 180 days of their filings or well beyond 300 days of their filings with the EEOC.

       For an outline of the division on this issue which has existed among the lower federal courts, see Baruah v. Young, 536 F.Supp. 356, 361-62, 31 FEP Cases 1609 (D.Md.1982).

      . See also Equal Employment Opportunity Commission v. Pattin-Marion, 588 F.Supp. 41 (S.D.Ill. 1984), citing, inter alia (at 44), to Soble.

      . The effective date of that agreement is February 10, 1981. See Exhibit 2 to Reply Memorandum filed in this case on February 11, 1985, by the EEOC.

      . Respondent takes the position that the Works-haring Agreement is null and void because it violates the requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553(b), (c) and (d), which requires that administrative agencies submit proposed rules for publication in the Federal Register in order to give interested parties an opportunity to comment. Assuming arguendo only that the regulation calling for the worksharing agreements is of the type covered by the cited sections of the APA, the regulation was, in fact, published in the Federal Register. 30 F.R. 8407 (as amended 46 F.R. 43037). As to the worksharing agreement itself, there is no statutory or case authority suggesting the need for it to have been published in the Federal Register.

      . See also Gunn v. Dow Chemical, 522 F.Supp. 1172 (S.D.Ind.1981) (state proceedings terminated where state agency waived its right to exclusive opportunity to resolve charge in worksharing agreement with EEOC); Morgan v. Sharon Pennsylvania Board of Education, 445 F.Supp. 142 (W.D.Pa.1978); Steissberger v. Rockwell International Corp., 29 F.E.P. Cases 1273 (E.D. Wash.1982); Yeung v. Lockheed Missiles & Space Co., 504 F.Supp. 422 (N.D.Cal.1980) (all holding that state agencies’ waivers in works-haring agreements with the EEOC are equivalent to termination of state proceedings.)

      . In Lopez v. Sears, Roebuck and Company, 493 F.Supp. 801 (D.Md.1980), Judge Miller held that because of the Work Sharing Agreement then in effect between the EEOC and the MCHRC (706 Agency), the filing of the claimant's charge with the EEOC 212 days after the allegedly discriminatory discharge did not trigger the application of the extended 300-day filing period. In so holding, Judge Miller wrote:
      Under the terms of the Work Sharing Agreement, the MCHRC [Montgomery County Humans Relations Commission] would not act on the charge until the EEOC had 'resolved' the matter. In these circumstances, the plaintiff’s charge was submitted to the MCHRC for informational purposes, with no contemplation on the part of the agencies that the MCHRC would process the plaintiff's case. Accordingly, the charges were never actually 'instituted' with the MCHRC, within the meaning of § 2000e-5(e), since there was no filing with an intent that the MCHRC would process the charge. Thus, the 180-day filing period is applicable in this case.

        Id. at 805.
      By way of contrast, in the within case, the Work Sharing Agreement between the MCHR and the EEOC during the time period relevant to this case by its own terms stated specifically that the EEOC would process "all charges covered under Title VII which are received by EEOC beyond six months but before 300 days after the alleged violation.” See supra at 1140. Thus, the agreement itself contemplates that any charge filed with the EEOC prior to 300 days is valid and timely. The Work Sharing Agreement in Lopez, on the other hand, made no reference to the 300-day time limitation; the only relevant passage of the agreement in Lopez (copy thereof has been placed in court file in this case) states simply that “[the state agency] hereby waives its exclusive right to process [the charges for which the EEOC would take primary responsibility] for 60 days, as provided in Section 706(c) of Title VII of the Civil Rights Act of 1964, as amended, so that [the] EEOC can take immediate action on such charges.” The agreement does not suggest that any charge filed within 300 days is necessarily timely.
      In addition, Section 1601.13, 29 C.F.R., cited supra, provides that when a state agency "has waived its rights to the period of exclusive processing ... the charge is deemed to be ... timely if the charge is received [by the EEOC] within 300 days from the date of the alleged violation.” That regulation was not issued by the EEOC until October 1, 1981. The Lopez case was decided in May, 1980, when no such language was included in Section 1601.13 of the EEOC regulations then in effect. 29 C.F.R. 1601.13(d)(2)(iii) simply provided at that time that:
      Where the document is submitted to the Commission more than 180 days from the date of the alleged violation but within 300 days and within the period of limitation of the appropriate 706 agency, the Commission shall process the document in accordance with paragraph (d)(1) of this section and shall assume jurisdiction 60 ... days after the 706 agency proceedings have been commenced, except that where the Commission is earlier notified of the termination of the State proceedings, it shall immediately assume jurisdiction upon receipt of such notice.
      By way of contrast with the situation in Lopez, the current EEOC regulations and the specific provisions of the Work Sharing Agreement in effect in the instant case indicate that the filing of Wright’s charge with the EEOC 251 days after the allegedly discriminatory discharge triggers the application of the extended 300-day filing period, thus rendering Wright’s charge valid and timely.

      . The EEOC contends that because Wright completed the EEOC’s Section 706(e) “Intake Questionnaire" within 219 days of Wright's discharge, his charge was timely even if the EEOC had been compelled to wait out the 60-day referral period before deeming the charge "filed" under Section 706(e). That alternate contention need not be reached herein. However, it is noted that the EEOC did not, in fact, ever refer either Wright’s formal charge or the Intake Questionnaire which Wright completed to the MCHR. Accordingly, the question arises as to whether, if the worksharing agreement does not waive deferral by the EEOC to await state processing, the formal charge or the Intake Questionnaire constitutes a valid charge. Because this Court holds herein that the waiver provided by the worksharing agreement eliminates the need for the EEOC to await the passage of 60 days, there is no need in this case to reach the EEOC’s contention regarding the Intake Questionnaire.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel CAREY v. STATE OF MARYLAND.
    Civ. No. K-84-329.
    United States District Court, D. Maryland.
    July 1, 1985.

      Daniel F. Goldstein and Carmen D. Hermandez, Baltimore, Md., for plaintiff.
    Diane G. Goldsmith, Asst. Atty. Gen., Baltimore, Md., for defendant.
   FRANK A. KAUFMAN, Chief Judge.

Carey, seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254, challenges his conviction on May 18,1976 in the Criminal Court of Baltimore City (now the Circuit Court for Baltimore City) for robbery with a deadly weapon and the use of a handgun in the commission of a violent crime. Judge Marshall A. Levin, who presided during Carey’s jury trial, sentenced Carey to fourteen and one-half years imprisonment for the robbery charge and to a consecutive five-year term for the handgun violation. On August 19, 1981, plaintiff filed a petition for a writ of habeas corpus with this Court. On January 31, 1983, this Court dismissed that petition without prejudice because of lack of exhaustion of state remedies. Thereafter, after unsuccessfully seeking Maryland Post Conviction Act relief at the trial and appellate levels within the court system of the State of Maryland, plaintiff again filed a petition for a writ of habeas corpus in this Court, setting forth six claims for relief: (1) the trial court erred in permitting the prosecutor to comment on Carey’s postarrest silence; (2) the trial court erred in refusing to give a requested Telfaire jury instruction; (3) by inquiring into Carey’s financial situation and the disclosure thereof to Carey’s defense counsel, the prosecutor infringed upon the attorney-client relationship, thereby preventing effective assistance of counsel; (4) plaintiff was not given Miranda warnings; (5) plaintiff’s convictions constituted double jeopardy; (6) the trial court erred in permitting the state prosecutor to impeach his own witness.

The relevant facts are not in dispute. William L. Linthicum testified at trial that at about 8:30 a.m. on November 4, 1974, he was robbed at gunpoint of $440 while making insurance collections. The assailant escaped despite pursuit. In January, 1975, Linthicum viewed a photographic array and tentatively selected one photograph as being that of his assailant. At trial, Linthicum testified that when he selected the photograph, he told the police that it was not a positive identification, “But if I ever see him in person, I’ll know him when I see him again.” Trial Transcript (Tr.), May 13-14, 1976, at 36. The photograph was not that of Carey. At a subsequent line-up in which the man whose photograph Linthicum had selected and Carey both appeared, Linthicum was unable to identify his assailant.

On February 1, 1975, Linthicum was working in a shoe store when he recognized plaintiff, who was a customer in the store, as his assailant. Linthicum told a clerk to call the police and approached plaintiff. After Linthicum accused Carey of being the assailant, Carey left the store. Linthicum pursued Carey, who was subsequently apprehended by the police after a three to four block chase. A police officer testified that upon being arrested, Carey “became very belligerent, and began swinging his arms wildly.” Id. at 59. At the trial, plaintiff denied being the assailant; also, during the trial, Mr. Linthicum positively identified Carey as the assailant. On cross-examination, Linthicum remained adamant that Carey was the assailant. Id. at 138-39, 153-55.

I.

COMMENT ON POSTARREST SILENCE

During cross-examination by the state prosecutor of Carey, the following line of questioning ensued:

MR. KATZ: What happened when the police stopped you?
DEPENDANT CAREY: I started acting all wild and everything.
MR. KATZ: What?
DEFENDANT CAREY: I started acting all wild and everything, I was innocent and it hurt me to my heart to have them say I robbed somebody.
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MR. KATZ: The fact that you were that someone who had been charged with armed robbery, you are telling the ladies and gentlemen that you didn’t do it and you were only scared because you are on parole, why did that make you act wild?
DEFENDANT CAREY: I was acting wild.
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DEFENDANT CAREY: I think anybody would act wild when somebody would tell you to get your hands up against the wall and you’re on parole.
MR. KATZ: As a matter of fact, you are on parole until 1980?
A Yes.
Q And because you are on parole you started fighting the police?
A I didn’t fight them, they didn’t say I fought them in the statement.
MR. KATZ: What was the reason you were swinging your arms?
DEFENDANT CAREY: I didn’t want them to put handcuffs on me.
MR. KATZ: Why were you swinging your arms?
DEFENDANT CAREY: I wasn’t swinging my arms exactly.
MR. KATZ: Why didn’t you want them to put handcuffs on you?
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DEFENDANT CAREY: I was staying away, I wasn’t swinging at them, but I didn’t want them to put handcuffs on me. It would have been something different if I was trying to go up beside their heads and threw uppercuts and jabs, something like that.
MR. KATZ: Was Mr. Linthicum there? DEFENDANT CAREY: Yes, he was there.
MR. KATZ: How many officers were there?
DEFENDANT CAREY: I think before the cruiser there was three or four.
MR. KATZ: You have quite a temper, don’t you, Mr. Carey?
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DEFENDANT CAREY: No, I don’t have no temper, sir.
MR. KATZ: Why didn’t you just stand there and tell the officers you hadn’t done anything?
MR. MURPHY: Objection, Your Hon- or.

Tr., May 17, 1976, at 68-70.

Defense counsel timely objected to the final question, and thereupon moved for a mistrial on the grounds that the question impermissibly sought to have the jury draw the inference that an innocent person would not have remained silent at the time of arrest. The state’s position is that the question was not substantively directed at guilt, but rather at impeachment of the immediately preeeeding explanation offered by the defendant for his conduct at the time of the arrest.

The prosecution may not use, as substantive evidence, a defendant’s postarrest silence in the exercise of “his Fifth Amendment privilege when he is under police custodial interrogation.” Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1625 n. 37, 16 L.Ed.2d 694 (1966). However, such silence may, under certain circumstances, be used as the basis of attempted impeachment of a defendant by the prosecutor.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Justice Powell cited to eases including Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), in which the Supreme Court “permitted use for impeachment purposes of post-arrest statements that were inadmissible as evidence of guilt because of an officer’s failure to follow Miranda’s dictates.” Doyle, 426 U.S. at 617, 96 S.Ct. at 2244. In Doyle, Justice Powell held that:

while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Id. at 618, 96 S.Ct. at 2245 (footnote omitted). Subsequently, in Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), Justice Powell, in the course of permitting the use of prearrest, pre-Miranda silence to impeach an exculpatory story offered for the first time at trial, wrote

Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted____ Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.

In Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982), the Court noted in a per curiam opinion that it had characterized “Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him,” and held:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.

Id. at 607, 102 S.Ct. at 1312.

In this litigation, the question arises as to whether the purpose of the prosecutor’s use of Carey’s silence was to impeach trial testimony of Carey, or, as Carey contends, was elicited by the prosecutor to establish substantive evidence of guilt. Both the trial court and the Court of Special Appeals of Maryland concluded that “the purpose for which [the question] was asked was not to impinge [on Carey’s] Fifth Amendment right [to silence] but was to rebut his assertion that he ran solely because he was afraid about his parole.” State v. Carey, No. 1190, slip op. at 3-4 (Md.Ct.Spec.App. Mar. 18, 1981) (per curiam), cert. denied, by the Md.Ct.App. No. 70, slip order (Md. May 27, 1981). The record sufficiently supports that conclusion. A review of the record indicates that, as the Maryland trial and appellate courts have determined, the question to which Carey objects was directed at Carey’s explanation of his departure from the store. In Fletcher, the Supreme Court reversed the Sixth Circuit’s holding that it was a violation of due process for the prosecution three times to question the defendant as to why he did not go to the police with an exculpatory story directed at the merits of the offense. See Fletcher, 658 F.2d 1126, 1129 n. 5 (1981), rev’d, 455 U.S. at 603, 102 S.Ct. at 1310. In the within litigation, the question was directed at Carey’s exculpatory story as to why he left the store. During Carey’s trial, the prosecutor asked the question only once, did not receive an answer from Carey, and did not again refer to Carey’s silence. Fletcher teaches that-such questioning of Carey was not impermissible in a setting in which no Miranda warnings were given.

II. FAILURE TO GIVE TELFAIRE INSTRUCTION

The problems and dangers associated with the use of eyewitness identification testimony have long been recognized. See, e.g., United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) (“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”); see generally S. Saltzburg, American Criminal Procedure 513-79 (2d ed. 1984); Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969 (1977). In the light of these dangers, the Fourth Circuit and the District of Columbia Circuit have called upon federal district courts to give the Telfaire instruction, pursuant to which the jury is cautioned to consider such testimony with great care.

In the within litigation, the state trial court refused, upon request by Carey’s trial counsel, to give the model Telfaire instruction, Tr., May 17, 1976, at 172, instead charging the jury that:

I further instruct you that the testimony of a single eyewitness to a crime, or a single witness to a crime, is sufficient to convict if you believe it beyond a reasonable doubt. I further instruct you in respect to identification testimony, you may regard that with some caution and care, that is another way of expressing the beyond a reasonable doubt rule.

Tr., May 17, 1976, at 166. On post-conviction review, the Circuit Court for Baltimore City held that the wording of the instruction was within the discretion of the trial court, and was sufficient. Carey v. State, No. P.C.P.A. 3819, slip op. at 3-4 (Md. Cir.Ct. Sept. 19, 1983). Carey contends that the trial court’s refusal to give the full model Telfaire instruction violated his right to due process, and that the trial court’s instruction failed appropriately to focus the jury’s attention upon the circumstances of the identification and the prior inconsistent identifications.

“A necessary predicate for the granting of federal habeas relief ... is a determination by the federal court that [petitioner’s] custody violates the Constitution, laws, or treaties of the United States____” Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975). See also Layer v. Lyles, 598 F.Supp. 95, 102 (D.Md.1984), aff'd, 767 F.2d 912 (4th Cir.1985). Those federal Circuits which have adopted the Telfaire instruction have done so not on the basis of due process, but rather in the exercise of supervisory power over the administration of criminal justice in the United States District Courts. See, e.g., Holley, 502 F.2d at 275 (“In Telfaire the District of Columbia Circuit adopted generally for judges within the district a model instruction____ We now do likewise as to the district judges in this circuit.”). In no case has a federal court held that due process requires the Telfaire instruction. See Jones v. Smith, 599 F.Supp. 1292, 1304 (S.D.Ala.1984).

Principles of federal criminal procedure developed under the supervisory power of the Courts of Appeals do not necessarily constitute constitutional requirements. As Justice Rehnquist wrote in Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), after reviewing the virtually unanimous hostility of the Circuits to the instruction that “[e]very witness is presumed to speak the truth,” id. at 142, 94 S.Ct. at 398:

The appellate courts were, in effect, exercising the so-called supervisory power of an appellate court to review proceedings of trial courts and to reverse judgments of such courts which the appellate court concludes were wrong.
Within such a unitary jurisdictional framework the appellate court will, of course, require the trial court to conform to constitutional mandates, but it may likewise require it to follow procedures deemed desirable from the viewpoint of sound judicial practice although in nowise commanded by statute or by the Constitution. Thus even substantial unanimity among federal courts of appeals that the instruction in question ought not to be given in United States district courts within their respective jurisdictions is not, without more, authority for declaring that the giving of the instruction makes a resulting conviction invalid under the Fourteenth Amendment. Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,” but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Id. at 146, 94 S.Ct. at 400.

More recently, in Fletcher v. Weir, 455 U.S. 603, 605, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982), the Court observed:

The principles which evolved on the basis of decisional law dealing with appeals within the federal court system are not, of course, necessarily based on any constitutional principle. Where they are not, the States are free to follow or to disregard them so long as the state procedure as a whole remains consistent with due process of law.

Herein, in the face of Carey’s due process challenge to the state trial court’s refusal to give the Telfaire instruction, this federal court must

accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artifieal isolation, but must be viewed in the context of the overall charge____ While this does not mean that an instruction by itself may never rise to the level of constitutional error, ... it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits, in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.

Cupp, 414 U.S. at 146-47, 94 S.Ct. at 400-01 (citations omitted).

Thus, seemingly, jury instructions will seldom form a basis for federal habeas relief. Williams v. Lockhart, 736 F.2d 1264, 1267 (8th Cir.1984). The specific problem raised by the within petition has recently been addressed by two courts. In Williams, the Eighth Circuit, which in its supervisory role, “strongly recommended” that the Telfaire instruction be given by the district courts within that circuit, id. at 1267 n. 2, held that the federal habeas petitioner had “not carried the heavy burden of establishing that any alleged error in the instructions rose to the level of constitutional significance.” Id. at 1268. As in the within litigation, the state trial court in Williams had specifically refused to give a Telfaire instruction. Id. at 1266. Similarly, in Jones v. Smith, 599 F.Supp. 1292 (S.D.Ala.1984), Chief Judge Hand held: “Failure to give the requested [Telfaire ] instruction does not rise to the level of a constitutional violation. Even courts that are in favor of this instruction have not gone so far.” Id. at 1304.

In the within litigation, the state trial judge’s lengthy jury charge repeatedly emphasized the requirement that the prosecution prove its case “beyond a reasonable doubt and to a moral certainty.” Tr., May 17, 1976, at 163; see also id. at 162-65; carefully stressed the need for the jury to assess the credibility of testimony, see id. at 165; and, as noted, supra, “further instructed the jury that] in respect to identification testimony, you may regard that with some caution and care ____” Id. at 166. Under those circumstances and in the light of the case law reviewed supra, the trial court’s refusal to give the Telfaire instruction requested by Carey’s counsel has not “so infected the entire trial that the resulting conviction violates due process.” Cupp, 414 U.S. at 147, 94 S.Ct. at 400.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The framework for analysis of assistance of counsel claims is provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Briley v. Bass, 750 F.2d 1238, 1247 (4th Cir.1984) (Wilkinson, J.). In Strickland, 466 U.S. at -, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, Justice O’Connor held that the defendant “must identify the acts or omissions of counsel” alleged to have constituted ineffective assistance of counsel and that as an initial matter, the defendant must demonstrate that he was so prejudiced by the ineffectiveness of counsel “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result ... would have been different.” Id. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. That standard governs review both on direct appeal and in federal habeas proceedings. Id. at-, 104 S.Ct. at 2070, 80 L.Ed.2d at 700.

The sole specific allegation of ineffective assistance of counsel raised by Carey in the within case arises from the prosecution’s inquiry into the financial status of Carey at the time of the robbery. On direct examination, defense counsel asked Carey

Q When you came out of prison did you have any money?
A All together I had about $500 — I had $450 in the bank, the Maryland National Bank.

Tr., May 17, 1976, at 47. On cross examination, the prosecution examined Carey as follows:

MR. KATZ: You said you had $450 in the bank the latter part of November, is that right?
DEFENDANT CAREY: I had saved it from some part of ’70 on up.
MR. KATZ: Isn’t it really correct that that $450 was the money that you took from Mr. Linthicum?
MR. MURPHY: Objection, Your Hon- or.
THE COURT: Overruled.
DEFENDANT CAREY: That was income tax money that had come back on time. I was working when I got arrested, I saved it for four years. All you got to do is to check the bank to find that out, you ain’t got to take my word for it.
MR. KATZ: Did you tell your lawyer that before this trial started?
MR. MURPHY: Objection, Your Hon- or.
THE COURT: Overruled.
DEFENDANT CAREY: I told him that—
MR. MURPHY: Objection, Your Hon- or.
MR. KATZ: Yes or no?
THE COURT: Just a minute, the question is a legitimate one. You may answer the question and if you want to explain, by all means explain.
DEFENDANT CAREY: Yes, sir. I did about three days ago.

Id. at 78-79.

Carey contends that the prosecution’s inquiry into his disclosure to his own attorney of his financial situation violated Carey’s Sixth Amendment right to effective assistance of counsel, and that that alleged error was compounded by the trial court’s comment that the question was “a legitimate one,” Tr., May 17, 1976, at 79. Carey contends that the question permitted the jury to infer that Carey’s counsel could take the stand to vouch for Carey’s trial testimony.

“The essence of the Sixth Amendment right to effective assistance of counsel is, indeed, privacy of communication with counsel.” United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981) (Merhige, J.). However, as Justice White held in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), albeit in a different context, even when the government has deliberately infringed upon the attorney-client relationship, a defendant is required to demonstrate “prejudice, or the substantial threat thereof,” id. at 365, 101 S.Ct. at 668, before an indictment may be dismissed. See also Layer v. Lyles, 598 F.Supp. 95, 104 (D.Md.1984), aff'd, 767 F.2d 912 (4th Cir.1985), holding that “[t]he mere possibility of a violation of” petitioner’s right to effective counsel did not “provide a basis for federal habeas corpus relief.” Thus, Carey must show prejudice “sufficient to undermine confidence in the outcome” of the trial as a predicate to federal habeas corpus relief. Strickland, 466 U.S. at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

The subject of petitioner’s financial situation did not again arise during testimony, and was thereafter first referred to during closing argument by defense counsel:

Now, as to this business about the money in the bank, remember the State asked Daniel Carey, is it true that you had $450 that you said you had in the bank that actually came from the robbery, remember that? Well, it seems to me where there is a case where and liberty is a very delicate matter, the convincing way of showing that to be an untruth would be to ask what bank he had the money in and get the bank record and show you the bank records. Now, he didn’t do that, all he was asking him was a leading accusatory question, he didn’t produce any documentary evidence to prove otherwise.

Tr., May 17, 1976, at 136.

During his rebuttal closing argument, the prosecutor discussed the financial issue as follows:

Ladies and gentlemen, ask yourselves what was the motive? I don’t know what the man’s motive was. I guess the most common motive in robbing someone is money. Did the defendant need money? You bet he did. He said his job was on strike at that time, he was out of work and he needed money. I don’t know how much money he has in the bank, but that’s for you to believe because I think when you consider as to how he changed his story as to how there was an identification and how he agreed that was totally made up, that is that he had a lot of money in the bank and was secure financially and didn’t have to rob anybody.

Id. at 158.

The burden of showing that an alleged interference with the attorney-client relationship infringed upon a defendant’s Sixth Amendment rights is a heavy one. In this litigation, there was a substantial amount of other evidence to support a verdict of guilty, most importantly the testimony of the victim, Mr. Linthicum. Furthermore, defense counsel was the first to raise the issue of Carey’s financial situation both during testimony and closing arguments. Carey does not allege that his counsel’s actions in doing so constituted ineffective assistance of counsel. In addition, this Court may not and will not “second-guess the outcome” of trial strategy decisions made by counsel. Briley, 750 F.2d at 1247. In this litigation, after holding an evidentiary hearing, the Circuit Court for Baltimore City on post-conviction review concluded that the prosecution’s inquiry did not interfere with effective assistance of counsel. Such findings, while not binding upon this court, are to be accorded significant weight.

In the light of the record in this case, and the teachings of applicable case law, the prosecution’s inquiry did not so prejudice Carey’s rights as to permit him to obtain federal habeas corpus relief herein.

IV. CAREY’S OTHER ALLEGATIONS OF ERROR

Carey’s three additional allegations of error are: (1) he was not given Miranda warnings at the time of his arrest; (2) he was subjected to double jeopardy; (3) the trial court erred by allowing the state to impeach its own witness.

A. Miranda Warnings

During post-conviction proceedings, Carey contended that he was not given Miranda warnings at the time of his arrest. However, while Carey was in police custody he was not interrogated and no statements by petitioner were introduced by the state at • trial. Accordingly, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not require that Carey should have been warned of his Miranda rights, but rather prohibits the state from introducing statements made during custodial interrogation unless such warnings had been provided. Id. at 444, 86 S.Ct. at 1612. In the absence of the admission of any such statements at trial, no Miranda -type error occurred herein.

B. Double Jeopardy

Carey maintains that his conviction for, and sentencing to consecutive sentences for, both robbery with a deadly weapon and the use of a handgun in the commission of a crime of violence constituted double jeopardy. Under Maryland law, those two offenses are treated as separate and do not merge. Couplin v. State, 37 Md.App. 567, 579-82, 378 A.2d 197 (Md.Ct. Spec.App.1977), cert. denied, 281 Md. 735 (1978).

In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court considered essentially the same contention of a federal habeas petitioner who had been convicted of robbery in the first degree with a deadly weapon and also of “armed criminal action.” Id. at 361, 103 S.Ct. at 675. “[T]he Missouri Supreme Court has construed the two statutes at issue as defining the same crime.” Id. at 368, 103 S.Ct. at 679. In Hunter, Chief Justice Burger held that “simply because two criminal statutes may be construed to proscribe the same conduct,” id. at 368, 103 S.Ct. at 679, does not mean that cumulative punishments pursuant to those statutes violates the Double Jeopardy Clause if the legislature intended cumulative punishment under those statutes.

The Maryland courts have on numerous occasions affirmed that in adopting the handgun statute Maryland’s legislature intended to authorize punishment for that offense separate from the underlying offense. See, e.g., Whack v. State, 288 Md. 137, 149, 416 A.2d 265 (1980), appeal dismissed, 450 U.S. 990, 101 S.Ct. 1688, 68 L.Ed.2d 189 (1981); Couplin v. State, supra; Bremer v. State, 18 Md.App. 291, 344-45, 307 A.2d 503 (1973), cert. denied, 269 Md. 755 (1973), cert. denied, 415 U.S. 930, 94 S.Ct. 1440, 39 L.Ed.2d 488 (1974). Accordingly, Carey’s double jeopardy contention is without merit.

C. State’s Impeachment of its own Witness

Carey’s final allegation is that the trial court erred in impeaching its own witness, Mr. Linthicum, with respect to prior inconsistent photographic identifications. Under federal law, the prosecution may impeach its own witnesses. Fed.R.Evid. 607. Whether or not Maryland law permits a party to impeach its own witness, see General Motors Corp. v. Lahocki, 286 Md. 714, 727, 410 A.2d 1039 (1980), is of no consequence herein, since “a ‘mere error of state law' is not a denial of due process,” Engle v. Isaac, 456 U.S. 107, 121 n. 21, 102 S.Ct. 1558, 1568 n. 21, 71 L.Ed.2d 783 (1982) (O’Connor, J.). “[Qjuestions concerning the admissibility of evidence are matters of state law and are not reviewable in a federal habeas corpus proceeding unless the asserted error infringed a specific constitutional protection or was so prejudicial as to deny due process.” Wallace v. Lockhart, 701 F.2d 719, 724 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 340, 78 L.Ed.2d 308 (1984). See also Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983).

For the reasons set forth in this opinion, this court will file an Order denying the habeas corpus relief sought by Carey.

      . The Court of Special Appeals of Maryland has permitted "cross-examination [of a defendant] concerning 'pre-arrest silence' with respect to exculpatory testimony offered by a defendant for the first time at the trial on the merits." Robeson v. State, 39 Md.App. 365, 369, 386 A.2d 795 (Md.Ct.Spec.App.1978), aff’d, 285 Md. 498, 403 A.2d 1221 (Md.1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980).

      . The District of Columbia Circuit in United States v. Telfaire, 469 F.2d 552, 558-59 (D.C.Cir. 1972), set forth a model instruction for use in cases involving eyewitness identification testimony. The Fourth Circuit has adopted the same model instruction for use in the district courts within this Circuit. See United States v. Holley, 502 F.2d 273, 277-78 (4th Cir.1974) (Craven, J.) (setting forth the Telfaire instruction as an appendix to the opinion). See also United States v. Greene, 591 F.2d 471 (8th Cir.1979); United States v. Revels, 575 F.2d 74 (4th Cir. 1978); United States v. Kavanagh, 572 F.2d 9 (1st Cir.1978); United States v. Butcher, 557 F.2d 666 (9th Cir.1977); United States v. O’Neal, 496 F.2d 368 (6th Cir.1974); United States v. Fernandez, 456 F.2d 638 (2d Cir.1972); United States v. Barber, 442 F.2d 517 (3d Cir.1971), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971).

      . In Carey’s post-conviction challenge in the Circuit Court for Baltimore City, that court concluded that the prosecutor’s line of questioning did not violate the Sixth Amendment because Carey's voluntary testimony on direct examination waived his attorney-client privilege with regard to that issue. State v. Carey, P.C.P.A. No. 3819, slip op. at 3 (Md.Cir.Ct. Sept. 19, 1983). Herein, this court need not reach that issue.