Nicolas v. Smith et al

Filing 153

MEMORANDUM filed. Signed by Judge Richard D Bennett on 3/30/2015. (kr, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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RICHARD A. NICOLAS,
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Petitioner,
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v.
Civil Action No. RDB-06-2637
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THE ATTORNEY GENERAL OF
THE STATE OF MARYLAND, et al.,
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Respondents.
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MEMORANDUM OPINION
Petitioner Richard A. Nicolas, by counsel, has petitioned pursuant to 28 U.S.C. §
2254 for habeas corpus relief and challenges his 1997 conviction after a jury trial in the
Circuit Court for Baltimore City for the first-degree murder of his two-year old daughter and
a related handgun offense. On the evening of Friday, July 26, 1996, Richard Nicolas, an
emergency medical technician (“EMT”), was in his car in Baltimore City with his two-year
old daughter Aja. The evening ended in tragedy as Aja was killed by a gunshot wound to the
head. It is undisputed in this case that Nicolas ran to a nearby Texaco gasoline station to call
911, as this was before cell phones were prevalent. By the time paramedics and police
officers arrived at the scene, Aja was dead.
Nicolas was taken to the police station where he cooperated by consenting to
questioning and to a search of his apartment. He told police authorities that he had taken Aja
to see the movie “Pinocchio.” Mr. Nicolas stated that while he was driving Aja home after
the movie another driver bumped his car. After pulling over to the left side of a side street,
the other vehicle pulled up along the passenger side of Nicolas’ car and a heated argument

ensued. Nicolas contended that as he exited and came around the back of his car, he heard a
gunshot and the other car sped away. Despite his description of the events, Nicolas was
ultimately charged with Aja’s murder.
At his trial in the Circuit Court for Baltimore City which began on June 6, 1997, the
State’s theory was that Nicolas shot Aja in the car before the movie and then fabricated a
story about road rage gone wrong.1 This theory relied on the testimony of Dr. Dennis Chute,
the State medical examiner who performed the autopsy on Aja; Dr. Chute suggested that the
lividity pattern2 on Aja’s body showed that she had been dead for at least two hours before
Nicolas called 911. Thus, the state reasoned Nicolas shot Aja around 7:45 p.m., giving him
sufficient time to see the movie to create an alibi and dispose of the gun. Nicolas, however,
testified that Aja was shot around 9:45 p.m. that evening. Nicolas was ultimately convicted
of first-degree murder, and he was sentenced to life without parole, plus 20 years.
Sometime in 2008 or 2009, counsel representing Nicolas in his federal habeas corpus
proceedings obtained documents under the Maryland Public Information Act, Maryland
Code, General Provisions Art. §§ 4–101 to 4–601,3 identifying two previously undisclosed
witnesses, Jennifer McKinsey and Richard Benson. Both were guests at a Holiday Inn near

1
The State’s theory implied a motive that Nicolas did not want to support Aja and was the
beneficiary of a children’s life insurance policy. Nicolas, however, testified that he called Aja every
day from the time she was one year old because she lived with her mother and it was important for
him that she realize she had a good father in her life. Witnesses testified at trial that Nicolas was a
devoted and loving father.

2

Lividity or livor mortis results after blood in the body stops flowing and starts to settle to the
lowest parts of the body, causing discoloration.
3

The Maryland Public Information Act was previously codified at Md. Code, State Gov’t Art. §§ 10601 to 10-628. The current version, now part of the new “General Provisions” Article, became
effective October 1, 2014. See Waterkeeper Alliance, Inc. v. Maryland Dep’t of Agriculture, 439 Md. 262,
267 n.1 (2014).
2 

where Aja was shot on July 26, 1996. When police interviewed Jennifer McKinsey on the day
after the shooting, McKinsey said that she heard a loud popping sound like a gun shot
around 9:45 p.m.. Similarly, Richard Benson told police that he heard a loud sound like a car
backfiring or exploding while in the hotel parking lot on July 26, 1996, at about 10:00 p.m..
This timeline paralleled the time Nicolas testified his daughter was shot by someone in a
second car. The Benson and McKinsey witness statements were not provided to defense
counsel, and would have provided key and material information for his defense.
Petitioner’s case, initiated nearly a decade ago, now comes before this Court for a
third time, having been stayed on two prior occasions in order for Petitioner to return to the
state courts for the purpose of exhausting all of his various claims. In his Amendment to,
and Second Supplemental Memorandum of Law in Support of, Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 145), Petitioner presently advances the
following four habeas claims: (1) his trial counsel provided ineffective assistance by failing to
become sufficiently educated about lividity evidence and by failing to rebut the state’s expert
at trial; (2) his trial counsel provided ineffective assistance by requesting or failing to object
to the court’s dual inference instruction; (3) gunshot residue (“GSR”) evidence admitted at
trial is now recognized as unreliable; and (4) he was convicted in violation of his due process
rights because favorable and material evidence, specifically the witness statements of Richard
Benson and Jennifer McKinsey, were withheld in violation of Brady v. Maryland, 373 U.S. 83
(1963) in which the Supreme Court held that supression by the prosecution of evidence
favorable to an accused violates due process of law.
The parties’ submissions have been reviewed and this Court held a hearing on

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February 24, 2015. For the reasons that follow, Petitioner Richard A. Nicolas’s Petition for
Writ of Habeas Corpus (ECF No. 1) along with his Amendment to, and Second
Supplemental Memorandum of Law in Support of, Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 is GRANTED IN PART AND DENIED IN PART.
Specifically, the Petition is granted with respect to Petitioner’s Brady claim, and it is denied
with respect to all other claims. The failure of the State to provide the Benson and
McKinsey witness statements to defense counsel prior to trial violated due process of law
and calls into question the result of that trial, undermines confidence in its outcome, and did
not result in a jury verdict worthy of confidence. Accordingly, Petitioner’s conviction and
sentence are VACATED, and the case is remanded to the Circuit Court for Baltimore City
for a new trial.
BACKGROUND
In 1997, Nicolas was convicted of first degree murder and use of a handgun in the
commission of a crime of violence in connection with the death of his two-year old daughter
Aja. The State’s theory of the case was that Nicolas had killed his daughter in order to cash
in on a life insurance policy and then attended a movie in order to create an alibi. Nicolas
contended, however, that an unknown driver had bumped his car on the way home from the
movie theater and that, after he pulled over and engaged in a heated altercation, the driver
shot his daughter and drove off. At trial, an important piece of the State’s evidence was the
expert testimony of Dr. Dennis Chute, the Medical Examiner, who testified that the lividity
(or pooling of blood) in Aja’s left side and back indicated a time of death two hours earlier
than Petitioner claimed.

The State also relied upon evidence of gunshot residue on

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Petitioner’s hands and various inconsistencies in Petitioner’s story.
The Court of Special Appeals of Maryland affirmed Mr. Nicolas’s convictions in an
unreported opinion, Richard Nicolas v. State, No. 1485, Sept. Term, 1997 (filed December 21,
1998), and the Court of Appeals of Maryland denied a Petition for Writ of Certiorari on
April 16, 1999. Mr. Nicolas filed pro se a Petition for Post-Conviction Relief on July 1, 1999,
in the Circuit Court for Baltimore City, which was later supplemented with the help of the
public defender’s office. Following a hearing held on July 22, 2005, the Circuit Court for
Baltimore City denied post-conviction relief on October 20, 2005. Mr. Nicolas’s Application
for Leave to Appeal was summarily denied by the Maryland Court of Special Appeals on
November 30, 2005.
Mr. Nicolas, acting pro se, then filed a Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 in this Court on October 10, 2006, raising multiple claims.4 A review of
the case by assigned counsel revealed additional issues that counsel believed could warrant
post-conviction relief. Accordingly, Nicolas filed a motion to stay the proceedings in this
Court so that these new claims could be exhausted in state court. On February 9, 2010, this
Court granted Mr. Nicolas’s motion to stay the proceedings. On March 12, 2010, Mr.
Nicolas, through counsel, filed a Motion to Reopen Post-Conviction Case in the Circuit
Court for Baltimore City, raising additional claims and facts that had not been presented in

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The original named Respondents were the Attorney General of the State of Maryland and James
Smith, the Warden of the Jessup Correctional Institution. Petitioner is currently imprisoned at the
Western Correctional Institution, where Richard J. Graham, Jr. is the current warden. Accordingly,
this Court will direct the Clerk to add Richard J. Graham, Jr. as a Respondent in his official capacity
and to remove the other named Respondents (Bobby Shearin and Frank Bishop). See Fed. R. Civ.
Pro. 25 (“An action does not abate when a public officer who is a party in an official capacity dies,
resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is
automatically substituted as a party. . . . The court may order substitution at any time, but the
absence of such an order does not affect the substitution.”).
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his initial post-conviction petition. In a written memorandum issued without a hearing, the
Circuit Court for Baltimore City, Judge Stuart R. Berger presiding, denied Mr. Nicolas’s
Motion to Reopen Post-Conviction Case. On July 15, 2011, the Court of Special Appeals
summarily denied Mr. Nicolas’s Application for Leave to Appeal the denial of his Motion to
Reopen Post-Conviction Case.
Mr. Nicolas then returned to this Court.

Nicolas was granted discovery and

thereafter submitted his First Supplemental Memorandum of Law in this Court. (ECF No.
116). In its Second Limited Answer to Petition for Writ of Habeas Corpus (ECR No. 117),
the State argued that the use of new materials uncovered by this Court’s in camera review of
the State’s files altered some of Mr. Nicolas’s underlying habeas claims to the point where
they were now unexhausted; the State suggested that the Maryland state courts should have
an opportunity to evaluate his claims in light of the new evidence. After a hearing on the
question of exhaustion, this Court issued an Order and Memorandum opinion on September
24, 2012 staying and holding the case in abeyance to permit Mr. Nicolas to exhaust his Brady
and lividity (ineffective assistance of counsel) claims in State court, and granting Mr. Nicolas
leave to amend his Petition for Writ of Habeas Corpus to include his gunshot residue
(“GSR”) claim. (ECF Nos. 126 & 127)
Thus, on November 14, 2012, Mr. Nicolas filed a second Motion to Reopen Post
Conviction Proceeding in the Circuit Court for Baltimore City. A hearing was held on March
7, 2013. The Circuit Court denied Mr. Nicolas’s Motion to Reopen on April 2, 2013, and
the Maryland Court of Special Appeals denied Mr. Nicolas’ application for leave to appeal a
year later on April 2, 2014. Mr. Nicolas then timely petitioned for a writ of certiorari in the

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Court of Appeals of Maryland, which the Court of Appeals denied on July 21, 2014.
Mr. Nicolas presently advances the following four habeas claims: (1) his trial counsel
provided ineffective assistance by failing to become sufficiently educated about lividity
evidence and by failing to rebut the state’s expert at trial; (2) his trial counsel provided
ineffective assistance by requesting or failing to object to the court’s dual inference
instruction; (3) gunshot residue (“GSR”) evidence admitted at trial is now recognized as
unreliable; and (4) he was convicted in violation of his due process rights because favorable
and material evidence, specifically the witness statements of Richard Benson and Jennifer
McKinsey, were withheld in violation of Brady v. Maryland. Nicolas contends that he has now
fully exhausted all of his habeas claims in State court, so they are now ripe for review in this
Court.
STANDARD OF REVIEW
An application for writ of habeas corpus may be granted only for violations of the
Constitution or laws of the United States. 28 U.S.C. § 2254(a). The federal habeas statute at
28 U.S.C. § 2254 sets forth a “highly deferential standard for evaluating state-court rulings.”
Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447 (2005). This
standard is “difficult to meet,” and requires federal courts to give state-court decisions the
benefit of the doubt. Cullen v. Pinholster, __U.S. __, __, 131 S. Ct. 1388, 1398 (2011) (internal
quotation marks and citations omitted); see also White v Woodall, 2014 WL 1612424, * 4 (April
23, 2014, U.S.__, 134 S. Ct 1697, quoting Harrington v. Richter, __U.S. __, __, 131 S. Ct. 770,
786-87 (2011) (state prisoner must show state court ruling on claim presented in federal
court was “so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.”).
A federal court may not grant a writ of habeas corpus unless the state’s adjudication
on the merits: 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). A state adjudication is contrary to clearly established federal law under
§ 2254(d)(1) where the state court 1) “arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law,” or 2) “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to
[the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the “unreasonable application” analysis under § 2254(d)(1), a “state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” Harrington, 131 S. Ct.
at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, “an unreasonable
application of federal law is different from an incorrect application of federal law.” Id. at 785
(internal quotation marks omitted).
Further under § 2254(d)(2), “a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849 (2010). “[E]ven if
reasonable minds reviewing the record might disagree about the finding in question,” a
federal habeas court may not conclude that the state court decision was based on an

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unreasonable determination of the facts. Id. “[A] a federal habeas court may not issue the
writ simply because [it] concludes in its independent judgment that the relevant state-court
decision applied established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S
766, 773, 130 S. Ct. 1855, 1862 (2010).
The habeas statute provides that “a determination of a factual issue made by a State
court shall be presumed to be correct,” and the petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
“Where the state court conducted an evidentiary hearing and explained its reasoning with
some care, it should be particularly difficult to establish clear and convincing evidence of
error on the state court’s part.” Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is
especially true where state courts have “resolved issues like witness credibility, which are
‘factual determinations’ for purposes of Section 2254(e)(1).” Id. at 379.
DISCUSSION
Mr. Nicolas presently advances the following four habeas claims: (1) his trial counsel
provided ineffective assistance by failing to become sufficiently educated about lividity
evidence and by failing to rebut the state’s expert at trial; (2) his trial counsel provided
ineffective assistance by requesting or failing to object to the court’s dual inference
instruction; (3) gunshot residue (“GSR”) evidence admitted at trial is now recognized as
unreliable; and (4) he was convicted in violation of his due process rights because favorable
and material evidence, specifically the witness statements of Richard Benson and Jennifer
McKinsey, were withheld in violation of Brady v. Maryland.
a) INEFFECTIVE ASSISTANCE OF COUNSEL - LIVIDITY

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Petitioner argues that the state courts unreasonably concluded that his counsel was
not ineffective for failing either to become educated about lividity or to call a rebuttal
witness.5 To state a Sixth Amendment claim of ineffective assistance of counsel, a petitioner

5
The state court first addressed this issue on Petitioner’s original Motion for Post-Conviction
Relief. Ruling from the bench, Judge Allison found:
The third allegation of error also goes to the ineffectiveness of assistance of
counsel based on counsel’s alleged failure to engage an expert to rebut the State’s
testimony from Dr. Shutt [sic] with respect to lividity, and in particular, the time
affixing of lividity, which he, Dr. Shutt, testified was around two hours.
The petitioner, in this petition and at the time of the evidentiary hearing,
contends that that testimony was wrong, that lividity set in at four to six hours,
which would have set the time of lividity much earlier. As a preliminary matter, this
Court does not find as a factual matter that Dr. Shutt was incorrect. But even if he
was, it is of no moment, of no relevance in this case, because establishing lividity
earlier would not have helped the petitioner at trial.
The theory of the petitioner’s case was that it was a drive-by shooting of his
daughter after the theater and obviously before he called 911. There was an
approximately 12-minute time period there, so establishing lividity at a far earlier
time rather than the two-hour time was totally inconsistent with his theory of
defense, his theory of the case. There was no reason for his trial counsel to attempt
to establish lividity at four to six hours rather than approximately two hours, because
it did not fit in any way with his theory of the defense. In fact, it would have
accentuated the inconsistency in his defense.
For this reason, the Court is denying the petition based on the allegation of
ineffectiveness of counsel regarding the failure to obtain an expert to rebut Dr.
Shutt.
Oct. 20, 2005 Hr’g Tr. at 2-4. Subsequently, Petitioner raised the issue again on his Motion to
Reopen Post-Conviction Case. In denying that motion, Judge Berger ruled:
Petitioner alleges his trial and post conviction counsel were ineffective in
addressing the medical forensic evidence presented by the State. At trial, the
Petitioner presented an alternative theory for of [sic] how the death of his daughter
occurred. According to the Petitioner, a white man drove up next to his vehicle and
started an argument in which racial epithets were exchanged. The other man fired a
gun into Petitioner’s truck, and a bullet struck his daughter, killing her at
approximately 9:45 pm. The Petitioner claimed to have immediately left the vehicle
and run to a nearby gas station to call the police. However, the State presented
evidence at trial through the testimony of Dr. Dennis Chute, the State’s assistant
Medical Examiner, that the victim had been shot well before 9:45 pm, and had in
fact been laying on her side for possibly two hours before the police were called.
The State also presented evidence through expert Daniel Van Gelder that the
Petitioner had gunshot residue (GSR) on his hand on the night of the murder,
consistent with having recently fired a gun.
The Petitioner asserts that trial counsel were ineffective for failing to object
to the lividity testimony of Dr. Chute on the basis that the State never provided the
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defense with Dr. Chute’s time of death estimate, and for failing to request a recess in
order to retain their own forensic pathologist to challenge Dr. Chute’s theory. The
Petitioner also asserts that post conviction counsel was ineffective in his handling of
forensic testimony at the post conviction hearing. At the post conviction hearing, in
an attempt to attack the State’s theory of the time of death, defense expert Dr. Isador
Mihalakis testified as to the time of when lividity might become fixed. The
Petitioner now contends that this further muddled the issue rather than clarifying it.
It is now the Petitioner’s position that post conviction counsel should have elicited
testimony from Dr. Mihalakis regarding the inappropriateness of using lividity to
determine time of death at all.
...
This Court rejects the Petitioner’s contentions. Inasmuch as the autopsy
report stated that lividity was fixed, the Petitioner had sufficient information to know
that time of death would be at issue. Indeed, the Petitioner’s counsel cross-examined
Dr. Chute on the lividty issue at trial. According to the State, the Petitioner’s counsel
consulted with a pathologist but decided not to call him as a witness. Furthermore,
the post conviction counsel’s attempt to attack the State’s theory of the time of death
can hardly be deemed ineffective assistance of counsel.
These decisions of experienced defense counsel clearly fall within the ambit
of trial strategy that reviewing courts are not inclined to second-guess.
Aug. 18, 2010 Mem. Op. (Berger, J.) at 5-7. The issue was raised for a final time in Petitioner’s
second Motion to Reopen Post-Conviction Proceedings, and Judge Geller ruled accordingly:
2.
Trial Counsel
The lividity testimony given by the State’s expert witness, Dr. Dennis Chute,
during Petitioner’s trial advanced the State’s theory that the victim died two hours
before Petitioner claimed her death occurred. Petitioner argues that his trial counsel
was ineffective by failing to challenge this testimony. Although this issue was
considered by The Honorable Stuart R. Berger on Petitioner’s first Motion to
Reopen, Petitioner claims that a letter procured through an in camera review
constitutes new evidence that the lividity testimony was not credible and should have
been refuted.
First, Petitioner claims his trial counsel was ineffective by failing to object to
Dr. Chute’s testimony based on a discovery violation. Although the State argues this
claim is waived because it was not raised during the original post-conviction, this
Court notes that Judge Berger addressed this issue on the first Motion to Reopen.
This Court concurs with Judge Berger’s analysis and adopts it herein.
Petitioner argues that while the prosecution did provide defense counsel with
the autopsy report that mentioned lividity, prosecutors did not inform the defense
that it planned to use this information to establish time of death. Judge Berger
concluded, "Inasmuch as the autopsy report stated that lividity was fixed, the
Petitioner had sufficient information to know that time of death would be at issue."
August 18, 2010 Memorandum Opinion at 7. Judge Berger’s analysis is equally valid
today. Defense counsel was not ineffective for failing to object because a reasonable
attorney may have decided that since he had access to the autopsy report, there was
no basis for a discovery objection. Because counsel acted in an objectively reasonable
fashion, there is no need to consider prejudice.
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Next, Petitioner claims trial counsel was ineffective for failing to effectively
cross-examine Dr. Chute or call a rebuttal expert. Failure to call a rebuttal expert
when the prosecution presents a witness who directly contradicts the defense theory
may be grounds for an ineffective assistance claim. See Duncaon v. Ornoski, 528 F.3d
1222, 1235 (9th Cir. 2008). While Judge Berger already examined and rejected these
claims, new evidence related to this matter was discovered during the federal in
camera review. At issue are letters written by the prosecution to team to Dr. Chute,
the lividity expert, and to Officer Hannah, the police officer at the scene of the
crime. The Dr. Chute letter stated that lividity was "the whole case" and that the
prosecutors were "100%" certain that his testimony won the case. (Motion to
Reopen at Ex. 18(LL)). The letter to Officer Hannah stated, "It is only because you
did move [Aja’s body] that the Medical Examiner saw the fixed lividity on her left
side and her back when the autopsy was done. This fact was the whole case."
(Motion to Reopen at Ex. 1 8(KK)). The prosecution further states, "We learned
from an unimpeachable source that the defense did not spot the significance of Dr.
Chute’s findings before we raised the issue in open court." (Id.).
While the letters evidence an unnecessary and distasteful display of glee, this
unfortunate conduct does not make transform [sic] the objectively reasonable
performance of trial counsel into ineffective assistance of counsel. Even if the
prosecution is correct that defense counsel was unprepared for Dr. Chute’s analysis
of the lividity, it does not follow that the subsequent actions they took were
objectively unreasonable. Trial transcripts reveal that counsel obtained admissions
from Dr. Chute that he could not tell if lividity fixed first on Aja’s left side or on her
back, that other factors could affect lividity, and that Aja’s body could have been
placed on her side after being removed by the Office of the Medical Examiner. Jr.
June, 17, 1997, at 185, 191, 201). The State also notes that trial counsel consulted its
own forensic pathologist and chose not to call him to testify. Counsel is not
ineffective every time it is surprised by the opposing counsel’s line of questioning. It
is reasonable for an attorney who is surprised by testimony to conduct a crossexamination that produces admissions, to consult with another expert, and to use
independent legal judgment as to whether the consulting expert should be called to
testify.
Petitioner also argues that a letter from Dr. Chute obtained by Petitioner’s
counsel while pursuing the first Motion to Reopen demonstrates that counsel was
ineffective. This letter, which states that lividity alone should not be used to
determine time of death, is also insufficient to establish an ineffective assistance
claim. Dr. Chute asserts that other evidence, like when the victim was last seen, rigor
and calor mortis, environmental conditions, and other factors should also be
considered. (Motion to Reopen at Ex. 14(G)). In Petitioner’s trial, defense counsel
presented evidence that the victim was alive after 7:00 pm when her picture was
taken at a photo booth, and presented evidence on calor mortis (body temperature).
Even if Dr. Chute did not specifically testify to these factors, there were facts other
than the lividity testimony that the jury could consider to determine what time Aja
died. Considering all arguments and evidence known at the time of trial and
discovered at various points thereafter, this Court concludes that defense counsel
acted in an objectively reasonable manner and that Petitioner has not established an
ineffective assistance of trial counsel claim.
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must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984).
See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The first, or “performance” prong, of the
test requires a showing that defense counsel’s representation was deficient and fell below an
“objective standard of reasonableness.” Strickland, 466 U.S. at 688. There is a strong
presumption that counsel’s actions fell within the “wide range of reasonable professional
assistance.” Id. at 688-89. The second, or “prejudice” prong, requires that defendant
demonstrate that his counsel’s errors deprived him of a fair trial—a trial whose result is
reliable. Id. at 687.
“Surmounting Strickland’s high bar is never an easy task,” as “the standard for judging
counsel’s representation is a most deferential one.” Harrington v. Richter, 562 U.S. 86, 105
(2011). When the ineffective assistance issue arises in the context of a prisoner’s challenge
to a state court’s application of Strickland under § 2254, the district court’s review is even
more deferential:
The standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review is
doubly so. The Strickland standard is a general one, so the range
of reasonable applications is substantial. Federal habeas courts
must guard against the danger of equating unreasonableness

3. Post-Conviction Counsel
Petitioner argues that post-conviction counsel was ineffective for "muddying
the waters" further with their expert testimony on lividity. Petitioner states that the
testimony was overly confusing and that counsel never asked the crucial question of
whether lividity is a reliable method to determine time of death.
While new counsel retained by Petitioner for this stage of proceedings may
disagree with the strategy employed, it cannot be said that post-conviction counsel
acted in an objectively unreasonable manner. It is not for this Court to second-guess
strategic decisions by postconviction counsel. For a strategic reason based on
conversations with the expert or other knowledge, counsel may have decided to
focus on other aspects of the expert’s report. Since counsel acted in an objectively
reasonable fashion, there is no need to consider prejudice.
Mar. 29, 2013 Mem. Op. at 2-6 (Geller, J.)
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under Strickland with unreasonableness under § 2254(d). When §
2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.
Harrington, 562 U.S. at 105 (internal quotation marks and citations omitted).
Keeping this “doubly” deferential standard in mind, the Court turns to the state
courts’ ruling that Petitioner’s attorneys provided effective assistance with respect to the
lividity issue.

Petitioner asserts that his trial attorneys provided deficient performance

because they failed to call a rebuttal witness when Dr. Chute provided expert testimony that
directly contradicted Petitioner’s theory of the case. Petitioner asserts that his trial counsel
did not understand the import of Dr. Chute’s testimony, and as a result, his attorneys only
briefly cross-examined Dr. Chute because they were unprepared for his testimony.
Notably, the petitioner in Harrington made a similar argument, asserting that his
attorney was caught off-guard by the prosecution’s use of expert testimony and that his
attorney should have consulted an expert in order to buttress his version of events. In that
case, the Supreme Court noted: “Rare are the situations in which the wide latitude counsel
must have in making tactical decisions will be limited to any one technique or approach. It
can be assumed that in some cases counsel would be deemed ineffective for failing to
consult or rely on experts, but even that formulation is sufficiently general that state courts
would have wide latitude in applying it.” Harrington, 562 U.S. at 106 (internal quotation
marks and citations omitted); see also Hudson v. Lafler, Civ. No. 04-cv-74001-DT, 2006 WL
162541, at *4 (E.D. Mich. June 8, 2006) (denying ineffective assistance claim in § 2254

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petition based upon counsel’s alleged failure to adequately challenge prosecution’s gunshot
residue expert or to obtain an independent gunshot residue expert).
As in Harrington, the record in this case is sufficient to establish that the state court
reasonably concluded that the performance of Petitioner’s attorneys was not deficient with
respect to the lividity issues. Petitioner first raised this ineffective assistance issue in his
original petition for post-conviction relief; specifically, Petitioner asserted that Dr. Chute was
incorrect when he testified that lividity could become fixed within two hours, and he argued
that his counsel should have realized that the proper time frame was closer to four to six
hours. Judge Allison reasonably rejected this argument, finding that it could not support a
claim for ineffective assistance of counsel because an earlier time of death still contradicted
Petitioner’s theory of the case.
When Petitioner re-raised the lividity issue in his Motion to Reopen, Judge Berger
noted that Petitioner’s attorneys obtained several concessions from Dr. Chute on crossexamination and that one of Petitioner’s attorneys had consulted a forensic pathologist
before trial. In light of these findings, it was not unreasonable for Judge Berger to come to
the conclusion that Petitioner had failed to satisfy the first Strickland prong because his
attorneys’ actions comported with a reasonable trial strategy. Instead of creating a battle of
the experts, Petitioner’s counsel cast doubt on Dr. Chute’s testimony through crossexamination; indeed, counsels’ decision to cast doubt is a trial strategy worthy of the usual
deference. Cf. Harrington, 562 U.S. at 109 (“[I]t sometimes is better to try to cast pervasive
suspicion of doubt than to strive to prove a certainty that exonerates.”). Finally, because
Judge Geller rejected Petitioner’s claims in Petitioner’s second motion to reopen for the

15 

same reasons as Judge Berger, this Court finds that Judge Geller’s decision was reasonable as
well.
Thus, after reviewing the state courts’ opinions and the record in this case, it is clear
that the state courts could have reasonably concluded that the performance of Petitioner’s
counsel was not deficient with respect to the handling of the lividity issues. Because
Petitioner’s claims arise under § 2254, this is all that is necessary to bar Petitioner’s requested
relief. Cf. Harrington, 562 U.S. at 105 (“When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.”).
b) INEFFECTIVE ASSISTANCE OF COUNSEL – “DUAL INFERENCE” JURY
INSTRUCTION
Petitioner argues that he received ineffective assistance of counsel because of his
counsel’s request for or failure to object to the “dual inference” instruction given by the trial
court. The instruction given by the trial court read:
[I]n the discussion or consideration of circumstantial evidence,
when you discuss it in the jury room, if you find that the
evidence is equally consistent with innocence, as well as guilt,
then you must find the defendant innocent. He is entitled to an
inference of innocence if there is an equal finding of that which
could be guilt or that which could be innocence.
According to the Petitioner, the Court of Appeals of Maryland found that the use of a
functionally identical instruction constituted reversible error in Denson v. State, 628 A.2d 182
(Md. 1993);6 therefore, Petitioner contends that his counsel’s failure to object to and/or
acquiescence to the instruction given constitutes ineffective assistance of counsel.

6
In Denson, the Court of Appeals of Maryland found that the trial court had committed reversible
error by instructing the jury accordingly:
16 

Petitioner’s claim relating to the dual inference instruction was originally addressed by
the state court upon his original Motion for Postconviction Relief. Ruling from the bench,
the state postconviction court refused to find ineffective assistance.7

If the evidence presented to you is capable of two or more inferences of equal
weight, one consistent with guilt and one consistent with innocence, you must give
the defendant the benefit of the inference consistent with innocence.
628 A.2d at 184. The court found that the instruction “amounted to a change in the State’s burden
of proof to a preponderance of the evidence.” Id.
7
The ruling on the dual inference instruction reads as follows:
The next allegation of error is also one for ineffective assistance of counsel
for failing to object to the dual inference instruction given by the court. In Denson
versus State, 331 Md. 324 (1993), it does not forbid a dual inference instruction,
rather it states when a trial court does instruct the jury on the proposition, meaning
dual inference, it must accurately state it. The court must be careful not to mislead
or confuse the jury. That’s a [sic] page 330 to 331.
Petitioner’s counsel asked – petitioner’s trial counsel asked for a dual
inference instruction in the context of the instruction on circumstantial evidence, and
that is what they got. There was an expanded instruction given on circumstantial
evidence, and as part of that expanded instruction on circumstantial evidence, the
dual inference instruction was given.
The issue is not whether the instruction would have been error if objected to
by the defense, the question is whether the obviously strategic decision of the
petitioner’s counsel to seek this dual instruction in the context of a broader
instruction on circumstantial evidence overcomes the strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
This was not an oversight by counsel. It was not a mistake or an error. It
was a reasoned request that petitioner’s counsel had to fight for, had to fight to get
the trial judge to give, or at least argue with the trial judge to get her to give this
instruction.
And a reading of petitioner’s counsel’s closing argument reveals that it was
used to his advantage. The entire thrust of the defense’s closing argument was that
the jury was being asked by the prosecution to speculate, and that the detective and
investigators “eyeballed it.”
The dual inference instruction as given, and in the context it was given; i.e.,
pertaining to the consideration of circumstantial evidence only and not the overall
burden of persuasion, was a strategic decision of the petitioner’s lawyers, and it was
not unreasonable under the circumstances. For this reason, the petition based on the
ineffectiveness of assistance of counsel for requesting the dual inference instruction
is denied.
Resp’t Ex.4 at 4-5.
17 

This Court first notes that a state court’s failure to adhere to state law, in and of itself,
is insufficient to warrant habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We
have stated many times that ‘federal habeas corpus relief does not lie for errors of state
law.’” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))). In this case, however, Petitioner
has identified a federal right—his Sixth Amendment right to effective legal counsel—and has
identified at least one case in which the United States Court of Appeals for the Fifth Circuit
found that a habeas petitioner was entitled to relief where his attorney fails to object to a jury
instruction that had been previously rejected by a state’s high court. See Gray v. Lynn, 6 F.3d
265, 269 (5th Cir. 1993) (“[T]he failure by Gray’s counsel to object to the erroneous
instruction [on the elements of an attempted murder charge] cannot be considered to be
within the wide range of professionally competent assistance.” (internal quotation marks
omitted)).8
This Court assumes arguendo that the failure to object to a jury instruction based upon
state law can constitute deficient performance for purposes of Strickland such that relief

8
The conclusion of the United States Court of Appeals for the Fifth Circuit in Gray is somewhat
troubling in light of the United States Supreme Court’s statement in Estelle v. McGuire, 502 U.S. 62,
72 (1991), that “[f]ederal habeas courts . . . do not grant relief, as might a state appellate court,
simply because the instruction may have been deficient in comparison to the [California criminal
pattern jury instructions] model.” Id. Gray does not cite to Estelle. Thus, although a habeas
petitioner is barred from habeas relief under Estelle where his attorney objected to an erroneous state
law instruction and was overruled by the state court, Gray appears to permit a habeas petitioner to
proceed where his attorney requested or failed to object to an erroneous jury instruction involving
an issue of state law. Accordingly, under Gray, federal courts will routinely address the issue barred
by Estelle as an embedded issue in the ineffective assistance analysis.
Regardless of the Fifth Circuit’s determination of the issue, however, this Court notes that
the attorneys’ decisions in this case implicate a matter of constitutional import—the prosecution’s
obligation to present proof evidencing guilt beyond a reasonable doubt. See In re Winship, 397 U.S.
358, 364 (1970) (“[W]e explicitly hold that the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”).
18 

would be warranted under § 2254.9 Even with that assumption, however, this Court finds
that the state court’s denial of post-conviction relief in this case was ultimately not
unreasonable. In order to prevail on his ineffective assistance of counsel claim, Strickland
requires a showing of prejudice; and in order to succeed on his § 2254 habeas petition raising
an ineffective assistance issue, Petitioner must demonstrate that the state courts came to an
unreasonable conclusion on the prejudice issue. See Harrington, 562 U.S. at 102 (“Under §
2254(d), a habeas court must determine what arguments or theories supported or, as here,
could have supported, the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.”).
A criminal defendant is prejudiced by his counsel’s errors where he is deprived him
of a fair trial. Strickland, 466 U.S. at 678. Under Strickland, a petitioner “must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
When the Circuit Court for Baltimore City addressed the “dual inference” issue on
Petitioner’s original Petition for Post Conviction Relief, the court never explicitly analyzed
the second (prejudice) prong under Strickland; however, the court expressly highlighted “the
context [in which the instruction] was given; i.e., pertaining to the consideration of
circumstantial evidence only and not the overall burden of persuasion.” Resp’t’s Ex.4 at 5.
In fact, the trial court had also included lengthy instructions on the government’s burden to

9
The state court did not find that the performance of Petitioner’s counsel was deficient, reasoning
that the instruction had been given due to “the strategic decision of petitioner’s lawyers.” Resp’t
Ex.4 at 5. Specifically, the court noted that Petitioner’s counsel requested the instruction and
employed it to Petitioner’s advantage in closing arguments. Id.
19 

prove Petitioner’s guilt beyond a reasonable doubt.

Resp’t’s Ex.24 at 177-81, 187.

Moreover, during closing arguments, Petitioner’s counsel emphasized the government’s
burden of proof and noted that Petitioner had no obligation to present evidence in his
defense. Resp’t Ex.25 at 15, 54-57. These additional instructions are all the more significant
because, when addressing matters of erroneous jury instructions, this Court must consider
the instructions as a whole and within the context of the overall record of the case.

See

Estelle, 502 U.S. at 72. Because the court properly instructed the jury on the matters of the
“beyond a reasonable doubt” burden of proof and the presumption of innocence, the state
post-conviction court could have concluded that there was no reasonable probability that the
jury was misled or that the result of the trial would have been different if not for counsel’s
alleged error. See Miller v. Phillip, 813 F. Supp. 2d 470, 484 (S.D.N.Y. 2011) (finding that
counsel’s failure to object to a similar “two inference” instruction did not merit relief under §
2254 for ineffective assistance of counsel where the trial court had repeatedly reminded the
jury of the “beyond a reasonable doubt” standard); Floyd v. Grace, Civ. A. No. 06-2324, 2006
WL 6553085, at *8 (E.D. Pa. Dec. 13, 2006) (same);10 cf. Estelle, 502 U.S. at 75 (taking note of
other limiting instructions in jury charge in case where the United States Supreme Court
refused to find a denial of due process despite the use of a jury instruction that was deemed
contrary to state law). Indeed, Petitioner’s noticeable failure to articulate precisely how
counsel’s alleged errors prejudiced him in his papers buttresses this conclusion. See, e.g.,
Pet’r’s Mem. Supp. Pet. at 53, ECF No. 87 (baldly asserting that, “[b]ecause the state’s case

10
In order to streamline the citation, the Court has omitted the subsequent history of Floyd v.
Grace. The decision, a report and recommendation by United States Magistrate Judge Carol Sandra
More Wells, was supplemented, see 2010 WL 1490598 (E.D. Pa. Mar. 9, 2010), and then adopted by
the district court, see 2010 WL 1462368 (E.D. Pa. Apr. 7, 2010).
20 

against Mr. Nicolas was scant and circumstantial, there is a reasonable probability that it
affected the outcome of the trial”). In light of the record in this case, the state court could
have reasonably concluded that Petitioner failed to demonstrate sufficient prejudice to
maintain a claim of ineffective assistance of counsel;11 therefore, Harrington mandates that
this Court deny habeas corpus relief under § 2254 with respect to the “dual inference” jury
instruction.12
c) INEFFECTIVE ASSISTANCE – GUNSHOT RESIDUE
Petitioner asserts that the admission of evidence that he had gunshot residue (GSR) on his
left hand undermined the fundamental fairness of his trial. Petitioner has not identified any
clearly established federal right or provision of federal law in connection to this claim, nor

11
The same factors leading to this conclusion on ineffective assistance also provide a plausible
basis for the state court to have concluded that the inclusion of the instruction did not violate
Petitioner’s due process rights.
12

As noted above, review under § 2254 involves significant deference to the state court’s decision,
and this Court is not permitted to independently review the record to determine whether Petitioner’s
counsel was deficient. Indeed, this Court finds counsel’s request for and/or acquiescence to the
instruction given in this case to be very troubling, particularly in light of the Court of Appeals of
Maryland’s clear holding in Denson. Notably, while the state post-conviction court mentioned
Denson, it only cited the case for the principle that a dual inference instruction, when given, “must
accurately state it.” Resp’t Ex.4 at 4. However, the court never assessed whether the trial court had,
in fact, accurately stated the dual inference instruction. In Denson, the Court of Appeals of Maryland
found the trial court had erred where its instruction suggested that “two or more inferences of equal
weight” mandated a not-guilty verdict. 628 A.2d at 184. Likewise, in this case, the trial court
instructed the jury that “if you find that the evidence is equally consistent with innocence, as well as
guilt, then you must find the defendant innocent.” Clearly, both instructions imply that a not-guilty
verdict requires, at a minimum, evidence leading to inferences of equal weight.
While the above analysis suggests that the post-conviction court misapplied Maryland law,
such error is of course insufficient under Estelle and Harrington to warrant relief under § 2254.
Moreover, there is no clearly established rule originating from the United States Supreme Court
indicating that such “dual inference” instructions are impermissible as a matter of law. See Miller,
813 F. Supp. 2d at 483. The state court’s findings with respect to the ineffective assistance issue
constituted a reasonable justification for denying relief, and this fact must, unfortunately, put an end
to this Court’s inquiry on this particular issue.
21 

has this Court’s investigation revealed any such right or provision warranting the requested
relief. Accordingly, Petitioner’s gunshot residue claim fails to qualify for relief under § 2254.
See 28 U.S.C. § 2254(a).
d) BRADY V. MARYLAND ISSUE
Nicolas contends that two witnesses—Richard Benson and Jennifer McKinsey—
were interviewed by police during the investigation of his case and that those witnesses
indicated that they had heard a loud noise (similar to a gunshot or a car back-firing) in the
general vicinity where Aja’s body was found between 9:45 and 10:00 p.m.13 Nicolas argues

13
The state court summarized the statements in its March 29, 2013 memorandum opinion as
follows:
On July 27, 1996, Detectives Don Gordon, Michael Glenn, and Darryl Massey
prepared a summary of an interview with “Possible witness, Mrs. Jennifer
McKinsey.” The summary states in pertinent part,
She advised that she was going to her vehicle and observed a small
vehicle at the bottom of the hill. As she was entering her vehicle she
hers [sic] a loud popping sound like a gun shot. Mrs. McKinsey
advises as she was exiting the parking lot the car sped off.
(Motion to Reopen at Ex. 14(D)). Mr. Benson’s statements come from a summary
report and a taped interview on January 23, 1997. The pertinent portion of the
interview reads,
Mr. Benson: I noticed that there was this car sitting down by the, by
where the trucks park down there...I’m in a parking lot...
So I was just kind of looking at him because it was kinda suspicious.
Not to be prejudicial or anything, but it was a black guy sitting in the
car... I saw the dome light come on and it looked like, I don’t know if
he was reading something ... I was just standing at my door with the
key in the door, in the keyhole, and then opened my door and kind
like cracked my door but didn’t open it ... And I was still kinda just
watching over the hood of my truck which sits really high, so there’s
only one thing to see coming over the hood of the truck is my head,
you know? And I saw this flash of light and heard a bang. But I
didn’t know what it was. I mean I didn’t know if it was, I don’t know,
it was just like when I turned my head and looked at it, I guess, is
when it was really happening.
Det. Gordon: Okay, so you saw a flash of light and a bang, you heard
a loud noise?
22 

that these statements were improperly withheld in violation of his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963).
“[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or punishment.”
Brady v. Maryland, 373 U.S. 83, 87 (1963). “The Brady rule is based on the requirement of due
process. Its purpose is not to displace the adversary system as the primary means by which
truth is uncovered, but to ensure that a miscarriage of justice does not occur.” United States
v. Bagley, 473 U.S. 667, 675 (1985).

The Brady requirement extends beyond just the

prosecutor; “the knowledge of some who are part of the investigative team is imputed to
prosecutors regardless of the prosecutors' actual awareness.” United States v. Robinson, 627
F.3d 941, 951 (4th Cir. 2010).14
In order to prevail on a Brady claim, it must be established that the evidence at issue is
both favorable to the defense and that the unavailability of the evidence calls into question

Mr. Benson: Right. I thought it was, I thought the light came from
inside the car but didn’t know, and I didn’t know if maybe it was his
dome light or what it was, I really couldn’t tell.
Det. Gordon: Okay and the loud bangs sounded like what kind of
noise to you, could you tell?
Mr. Benson: It sounded like a car was blowing up, is what is sounded
like... It looked like there was some confusion in the car really
because, you know, the guy was like looking around and I guess
trying, you see, I thought maybe he was lost and was trying to figure
out where he was, I didn’t know. I thought his car backfired or
something. He was looking around and then he pulled off and went
up the street.
(Motion to Reopen at Ex. 14(F)). Both statements establish that the witnesses heard
a loud bang. Ms. McKinsey describes the bang as like a gunshot. Mr. Benson
describes it as a car blowing up or backfiring.
Mar. 29, 2013 Mem. Op. at 7-8 (Geller, J.).
14

The court noted in Robinson, however, that the scope of imputation does have some limits. In
this case, the State does not dispute these legal principles, nor has it argued that the circumstances of
this case warrant a conclusion that such knowledge such not be imputed.
23 

the result of the trial. Bagley, 473 U.S. at 678.

The Supreme Court has made it clear that

there is no distinction between exculpatory evidence and impeachment evidence in the
context of the Brady analysis. See Giglio v. United States, 405 U.S. 150, 154 (1972). There is no
requirement that the guilty finding must be overturned unless suppression of the
impeachment evidence so limited the defense’s ability to cross-examine an accusing witness
that “its suppression undermines confidence in the outcome of the trial.” Bagley, 473 U.S. at
678.
Moreover, “[e]vidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682. Thus, under the Supreme Court’s jurisprudence, “[t]he
question is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
“[T]he materiality inquiry is a context-specific determination.” Spicer v. Roxbury Correctional
Institute, 194 F.3d 547, 560 (4th Cir. 1999). The reviewing court must “evaluate the whole
case, taking into account the effect that the suppressed evidence, had it been disclosed,
would have had on the evidence considered at trial.” United States v. Ellis, 121 F.3d 908, 918
(4th Cir. 1997).
In this case, Petitioner challenges the state courts’ conclusions with respect to both
favorability and materiality.15

For the reasons that follow, this Court finds that the

15
The statements of Benson and McKinsey were first before the Circuit Court for Baltimore City
on Petitioner’s First Motion to Reopen, which was decided by Judge Berger. When Petitioner’s case
was before Judge Geller, Petitioner re-asserted that the Benson and McKinsey statements were Brady
materials, but Petitioner also presented a number of new documents—including the prosecutor’s
24 

unavailability at trial of the evidence, which was favorable to Nicolas, calls into question the
result of that trial, undermines confidence in its outcome, and did not result in a jury verdict
worthy of confidence.
1. Favorability
The issue of the statements’ favorability was raised before the Circuit Court of
Baltimore City on two separate occasions. On Petitioner’s first motion to reopen, Judge
Berger ruled that the Benson and McKinsey statements were not favorable. Specifically,
Judge Berger found that “these witnesses would have given testimony that, at best,
conflicted with the theory of the case advanced by the Petitioner,” and he further noted that
“arguably the statements by the witnesses were more consistent with the State’s theory of the
case than the defense.”16 Aug. 18, 2010 Mem. Op. at 9 (Berger, J.).

post-trial letters to Dr. Chute and Officer Hannah—that were uncovered during the discovery
period in this Court. See Pet’r’s Mot. to Reopen Post-Conviction Proceeding at 14-17, Pet’r’s Ex.
OO, ECF No. 145-4. As is clear from his opinion, Judge Geller considered the effect of Benson
and McKinsey’s statements to be an issue that had “been considered on its merits and denied.” Mar.
29, 2013 Mem. Op. at 9 (Geller, J.).
16

The relevant section of Judge Berger’s memorandum opinion reads as follows:
The Petitioner asserts that the State violated Brady v. Maryland, 373 U.S. 83
(1963) by failing to disclose to trial counsel that the police had interviewed two
witnesses who heard a loud bang around the time and near the location that the
Petitioner claimed his daughter was shot. The Petitioner claims he wasn’t provided
with the police interview transcripts of theses witnesses until a Public Information
Act request was filed years later. He claims that while the prosecutors may not have
known about these witnesses, the police did, and under Brady, police knowledge is
imputed to the State. Petitioner argues that this evidence is exculpatory and material.
The Petitioner claims that two witnesses testifying that they heard loud bangs at the
same time and in the same place where the Petitioner claimed the victim was shot
would have corroborated the Petitioner’s testimony, and would have led to an
acquittal by the jury.
The State contends that the statements given by the two witnesses were not
exculpatory in any way. The State contends that the witnesses identified a factual
scenario arguably consistent with the State’s theory that the Petitioner shot his
daughter. The State claims these witnesses identified only one truck in the area—not
25 

Aug. 18, 2010 Mem. Op. at 9 (Berger, J.). Petitioner’s subsequent application for leave to
appeal filed with the Court of Special Appeals of Maryland was denied without any
explanation on July 15, 2011. When Petitioner returned to the state courts to file his Second
Motion to Reopen Post-Conviction Proceedings, Judge Geller stated that he “[saw] the
favorability analysis of the Brady claim as unchanged since it was reviewed by the Honorable

the second vehicle containing the shooter as alleged by the Petitioner—and that the
witnesses identified the driver of the vehicle as black, not white as the Petitioner
claimed the shooter to be.
The seminal case of Brady v. Maryland, 373 U.S. 83, 87 (1963), held that “the
suppression by the prosecution of evidence favorable to an accursed upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” The Court of
Appeals stated in Harris v. State, 407 Md. 503, 521 (2009) that:
in order to establish a Brady violation, the petitioner must show that (1) the
prosecutor suppressed or withheld evidence that would have been favorable to the
defense because it (i) was exculpatory, (ii) provided a basis for mitigation of sentence,
or (iii) provided a basis for impeaching a State witness, and (2) the suppressed
evidence was material.
Furthermore, the Supreme Court has stated that there must be a “reasonable
probability” that disclosure of the suppressed evidence would have produced a
different result at trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The Petitioner is correct that the knowledge of the police is imputed to the
State. Nevertheless, the Petitioner cannot prove that the State withheld exculpatory,
mitigation, or impeachment evidence that resulted in prejudice to the Petitioner.
Clearly, if the Petitioner knew of the witnesses in question, he could have called
them to testify at trial. However, based upon the facts presented by the Petitioner,
these witnesses would have given testimony that, at best, conflicted with the theory
of the case advanced by the Petitioner. Indeed, arguably the statements by the
witnesses were more consistent with the State’s theory of the case than the defense.
As such, the Petitioner has not presented facts that if proven at a subsequent hearing
would established [sic] that the evidence was exculpatory, or that show a reasonable
probability that the evidence would have produced a different result at trial.
Accordingly, this Court finds that it would not be in the interests of justice to
reopen Petitioner’s closed post conviction proceeding to hear argument on this issue.
Aug. 18, 2010 Mem. Op. at 7-9 (Berger, J.).
26 

Stuart R. Berger.”17 Mar. 29, 2013 Mem. Op. at 9 (Geller, J.), Pet’r’s Ex. UU, ECF No. 1458. The Court of Special Appeals again affirmed the Circuit Court.18

17
The section of Judge Geller’s memorandum opinion addressing the favorability issue read as
follows:
The confounding nature of this matter’s current posture stems from
positions taken by both the State and Petitioner in the U.S. District Court that
directly contradict their arguments in this Court. The Defense argued emphatically in
federal court that state court remedies had been exhausted because the materials
disclosed in the federal court discovery process were not new, critical or significant.
By contrast, the State pressed to return to state court, arguing that the newlydisclosed materials mandated a return for exhaustion of state remedies.
Now, upon their return to this Court, the parties have each made a 180
degree turn, with the State arguing that the newly-disclosed materials are irrelevant
and the Petitioner arguing that the newly-disclosed materials have completely
changed the landscape that existed when this matter was addressed by the Honorable
Stuart R. Berger in August 2010.
Petitioner emphasized in its brief, and again in oral argument, that The
Honorable Richard D. Bennett of the U.S. District Court has opined that the facts of
this case present a “clear” Brady violation. This Court notes that, with all respect to
The Honorable Judge Bennett, he examined this matter in the context of an
exhaustion hearing — not a hearing on the merits of the Brady claim, and without the
benefit of a substantive response on the merits from the State or a complete analysis
of how the alleged Brady evidence fits within the entirety of evidence produced at
trial.
Having considered the pleadings and arguments of counsel, as well as the
entire record of this case, this Court sees the favorability analysis of the Brady claim
as unchanged since it was reviewed by the Honorable Stuart R. Berger. The newlydisclosed materials from the federal action shed light merely on the fact that the
Baltimore City Police were engaged in a thorough investigation. Judge Berger
considered the alleged Brady violation in the context of a Motion to Reopen
Postconviction, and his August 18, 2010 Memorandum Opinion set forth a
favorability analysis of the witness statements in the context of the trial evidence as a
whole. Thus, the Brady issue has been considered on its merits and denied. The
appellate court denied Defendant’s Application for Leave to Appeal. (Motion to
Reopen at Ex. 13).
Upon consideration of the additional materials produced in federal court, this Court
sees nothing to change Judge Berger’s prior ruling that “Petitioner has not presented
facts that if proven at a subsequent hearing would [have] established that the
evidence was exculpatory, or that show a reasonable probability that the evidence
would have produced a different result at trial.” August 18, 2010 Memorandum
Opinion at 9. Furthermore, this Court agrees with and adopts the analysis and
conclusions as set forth in Judge Berger’s August 18, 2010 Memorandum Opinion.
Mar. 29, 2013 Mem. Op. at 8-10 (Geller, J.), Pet’r’s Ex. UU, ECF No. 145-8.
27 

In this proceeding, Petitioner attacks the state courts’ conclusions on favorability,
arguing that the state courts misapplied settled federal law by failing to consider the
impeachment value of the suppressed statements. Petitioner also takes issue with the state
courts’ conclusion that the statements were not helpful to him and were more consistent
with the State’s theory of the case. In opposition, the State argues that the state courts
reasonably concluded that Petitioner failed to establish that the witness statements were
favorable to him. In particular, the State contends that the evidence does not qualify as
exculpatory evidence because “(1) the statements of Benson and McKinsey do not in anyway
[sic] tend to exonerate Petitioner; (2) there was no proof presented in prior state or federal
court proceedings that the defense actually would have called either Benson or McKinsey to
testify in the case had it known of the Benson and McKinsey statements; and (3) there was
no proof below that, even if called to testify, Benson and McKinsey would have testified
favorably to Petitioner, i.e., in a manner consistent with Petitioner’s defense.” Resp.’s Suppl.
Ans. at 25, ECF No. 146. The State also argues that the statements have no value as
impeachment evidence; in particular, without any further explanation, the State dismisses the
notion that the statements could have been used to impeach Dr. Chute’s lividity and time of
death testimony, stating that Petitioner’s assertion “has never been substantiated.” Id. at 26.
Finally, the State characterizes the Petitioner’s position on the favorability of the statements

18
After reviewing the prosecutors’ letters to Officer Fred Hannah (the first responding officer on
the scene) and to Dr. Chute, the Court of Special Appeals noted:
All that these letters show is that the prosecuting attorneys believed that the
evidence of the time of death was crucial to the State’s case. The letters do not, in
light of all of the evidence introduced at the trial, render the undisclosed statements
material. Therefore, we hold that the non-disclosure did not amount to a discovery
violation or warrant post-conviction relief.
See Pet’r’s Ex. WW
28 

as “ludicrous,” suggesting that “[t]he statement of Benson and McKenzie both describe a
specific and discrete set of facts that do not in any way relate to Petitioner’s accounting of
Aja’s murder.” Id.
After reviewing the parties’ submissions and the record in this case, this Court
concludes that the state courts’ various rulings are based upon an unreasonable
determination of the facts in light of the evidence presented in those proceedings.
Specifically, the state courts provided no analysis whatsoever to justify their conclusion that
the suppressed statements “conflicted with [Petitioner’s] theory of the case.” Aug. 18, 2010
Mem. Op. at 9 (Berger, J.), Pet’r’s Ex. N.; Mar. 29, 2013 Mem. Op. at 10 (Geller, J.), Pet’r’s
Ex. UU, ECF No. 145-8, (agreeing with and adopting Judge Berger’s August 18, 2010
Memorandum Opinion). As is apparent from the record in this case, the lynchpin for the
State’s premeditated murder theory was the time of death. At trial, the State theorized that
the shooting occurred some hours before Petitioner contacted authorities, while the
Petitioner asserted that the shooting occurred around 9:45 p.m.—shortly before Petitioner
contacted authorities and the police arrived on the scene. Evidence suggesting that the fatal
shot was fired around 9:45 p.m. would have contradicted the State’s theory and supported
Petitioner’s version of events. As such, there was absolutely no basis for the state courts to
conclude that the suppressed statements conflicted with Petitioner’s theory of the case.
Accordingly, this Court finds that the state court decision on the favorability of the
suppressed statements was based upon an unreasonable determination of the facts in light of
the evidence before the state court and, therefore, Petitioner has satisfied his burden under §
2254 with respect to this issue.

29 

2. Materiality
Because Judge Berger found that the suppressed statements were not favorable, he
never reached the issue of whether the suppressed statements were material. Although
Judge Geller agreed with Judge Berger on the issue of favorability, he also ruled against the
Petitioner on the issue of materiality.19 Specifically, Judge Geller summarized the evidence
against Petitioner and noted that he found it “compelling.” Mar. 29, 2013 Mem. Op. at 2122 (Geller, J.), Pet’r’s Ex. UU, ECF No. 145-8. Additionally, Judge Geller noted that “much

19
The full text of Judge Geller’s Memorandum Opinion on the issue of materiality reads as
follows:
To be material, there must be a “nondisclosure [that] was so serious that
there is a reasonable probability that the suppressed evidence would have produced a
different verdict.” Strickler, 527 U.S. at 281. The Court considers independent
evidence of guilt to determine if the suppressed evidence can actually shake
confidence in the verdict. Id. at 290-96.
The independent evidence of guilt upon which the State relies includes: 1)
Time of death evidence established through Dr. Chute’s lividity testimony and
detective testimony that the blood on Aja was dry and her body was cold when they
reached the car; 2) Petitioner possessed or previously owned at least three .357
caliber Ruger firearms and his favorite ammunition, later discovered at his home, was
the ammunition that killed Aja; 3) the lack of obvious damage to Petitioner’s bumper
that would have been consistent with the road rage defense; 4) gun residue on
Petitioner’s hand; 5) Petitioner’s inconsistent statements about the race of the
perpetrator and whether he exited the car; and 6) the Petitioner’s calm demeanor that
is inconsistent with a grieving or worried parent. The State also relied on evidence
that Aja was sitting in the front seat with her seat belt on and her head could barely
be seen from outside the car. Experts testified that it was impossible for Aja to have
been shot four inches below the top of her head by someone sitting in the driver’s
seat of another car, especially since the window next to her was up two inches.
The Court finds the evidence cited by the State to be compelling. In contrast,
the additional material disclosed in the U.S. District Court proceeding merely
demonstrates a diligent investigation by the Baltimore City Police Department.
Furthermore, much of the other non-disclosed interviews and statements contradict
Petitioner’s theory of defense or are otherwise damaging to him, and would certainly
not rise to the level where they resulted in a verdict that is not worthy of confidence.
And, as noted supra, while letters written by the prosecuting attorneys were
distasteful, they do not serve to turn non-Brady material into Brady material because
they opine on the importance of particular testimony and evidence. After considering
all of this evidence and the record as a whole, this Court finds that the undisclosed
evidence is not material and therefore no Brady violation occurred.
Mar. 29, 2013 Mem. Op. at 21-22 (Geller, J.), Pet’r’s Ex. UU, ECF No. 145-8.
30 

of the other non-disclosed interviews and statements contradict[ed] Petitioner’s theory of
defense or [we]re otherwise damaging to him,” and he rejected the notion that the
prosecutors’ letters to Officer Hannah and Dr. Chute had any relevance in the materiality
analysis. Id.
As is apparent from the state court’s summary of the prosecution’s evidence against
Petitioner, the State presented a purely circumstantial case. Noticeably absent from this
summary, however, is any consideration of the suppressed statements within the context of
Petitioner’s defense. See Monroe v. Angelone, 323 F.3d 286, 302 (4th Cir. 2003) (“In assessing
the issue of materiality, we must evaluate the importance of the Commonwealth’s
suppression of the Habeas Evidence. To do so, we first assess the Commonwealth’s
evidence that Monroe committed first-degree murder. We then weigh against this evidence
the strength of Monroe’s defense. Finally, we consider whether the Habeas Evidence, had it
been disclosed and used effectively, is likely to have affected the verdict of first-degree
murder.”). The improper consideration of only the prosecution’s evidence led the state
courts to the irrational conclusion that the statements were not material. While a review of
the record makes abundantly clear that the crux of the case against Petitioner was the lividity
testimony concerning the time of death, the import of that evidence was all the more
obvious in this case: there is written acknowledgement by the trial prosecutors in this case
that Dr. Chute’s lividity testimony was “the whole case.” See Pet’r’s Exs. KK & LL. For the
state courts to have suggested otherwise is simply unreasonable and inaccurate. Cf. Wolfe v.
Clarke, 691 F.3d 410, 424 (4th Cir. 2012) (taking note of state prosecutor’s concession at
cooperating witness’ sentencing that the habeas petitioner would “probably not have been

31 

prosecuted” but for the cooperating witness’ testimony in the context of the materiality
analysis under Brady).
Had the state court actually weighed the state’s case against the Petitioner’s defense
or considered the suppressed statements within the proper context of both the State and
defense evidence, it is clear that no fair-minded jurist could have concluded that the
suppressed statements were not material. In particular, Petitioner offered his own evidence
that undermined the evidence used by the prosecution and considered by the state courts.
At trial, Petitioner’s gunshot residue expert testified that the gunshot residue on Petitioner’s
hand could have come from a secondary transfer, and he expressly disagreed with the State’s
expert who had opined that the gunshot residue on Petitioner’s hand was “most probably”
due to firing a weapon. See Pet’r’s Suppl. Mem. Supp. Pet. at 16, ECF No. 116. Plaintiff also
offered his own expert testimony regarding blood spatter and the angle of the shooting. See
Pet’r’s Mem. Supp. Pet. at 2, 16 n.5, ECF No. 87. Another expert testified that Petitioner’s
vehicle had been involved in some incident involving contact to or collision with the rear of
his vehicle. See id. at 16 n.5. Moreover, on cross-examination, Petitioner brought out the
fact that the alleged inconsistency in Petitioner’s statements concerning the race of the
shooter was not present in the witness’ original statement to police. See id. at 12. Petitioner
also offered testimony that his calm demeanor at the scene was attributable to the fact that,
after years of corrective therapy, Petitioner had learned to speak slowly and unemotionally in
order to control a severe stutter.
In sum, the State put on a circumstantial case in which much of their evidence was
disputed. This evidence on the critical point of the State’s theory—the time of Aja’s

32 

shooting—was likely to have an effect on the outcome of Petitioner’s trial, and its
suppression has resulted in a verdict unworthy of any confidence.20 Cf. Wolfe, 691 F.3d at
424 (noting that materiality of impeachment information was “manifest” where the witness’
testimony provided the only evidence for one of the elements of the crime); Aguilar v.
Woodford, 725 F.3d 970 (9th Cir. 2013) (habeas petition granted where state officials
suppressed fact that canine had made mistaken scent identifications in previous cases in case
where the prosecutors had emphasized the scent identification as definitive proof that
petitioner was shooter and the scent identification provided the only corroborating evidence
for “shaky eyewitness identifications”); Gantt v. Roe, 389 F.3d 908, 913-16 (9th Cir. 2004)
(granting habeas relief in case where state officials failed to disclose evidence indicating
matchbook with phone number written inside that had been discovered on petitioner’s
person upon his arrest was not connected to murder victim despite prosecutor’s use of the
matchbook as circumstantial evidence that petitioner was the murderer). Accordingly, this
Court finds the state court’s decision to be an unreasonable one and will grant the
Petitioner’s petition for writ of habeas corpus on the Brady issue. While recognizing that the
writ affords an extraordinary remedy, this Court finds that the requested relief is necessary in
light of the state court’s repeated refusal to vindicate Petitioner’s due process rights under
Brady v. Maryland.21

20
The state courts’ conclusion that the evidence merely demonstrates a “thorough investigation”
by police actually favors Petitioner. The fact that the officers followed up with Benson several months
after his initial interview indicates that the State recognized the evidence as potentially significant and
felt the need to conduct a follow-up.
21

The procedural history of this case in the state system is noteworthy in this respect. Petitioner’s
Brady claim was first raised on his first motion to reopen post-conviction proceedings. Judge Berger
denied that motion without hearing and the Court of Special Appeals of Maryland summarily denied
33 

CONCLUSION
For the foregoing reasons, Petitioner Richard A. Nicolas’s Petition for Writ of
Habeas Corpus (ECF No. 1) along with his Amendment to, and Second Supplemental
Memorandum of Law in Support of, Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is GRANTED IN PART AND DENIED IN PART. Specifically, the
Petition is granted with respect to Petitioner’s Brady claim, and it is denied with respect to all
other claims. Accordingly, Petitioner’s conviction and sentence are VACATED, and the
case is remanded to the Circuit Court of Baltimore City for a new trial. However, this
Court’s Judgment will be STAYED FOR THIRTY (30) DAYS to allow for an appeal or,
absent an appeal, a decision by the Circuit Court for Baltimore City concerning the
Petitioner’s continued confinement.
A separate Order follows.
Dated:

March 30, 2015
/s/
Richard D. Bennett
United States District Judge

_

his application for leave to appeal. Thus, Petitioner’s first hearing on the Brady issue occurred after
the state courts definitively denied that the Benson and McKinsey statements constituted Brady
material.
34