Stedman v. Corcoran
Filing
30
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 4/23/2019. (c/m 4/23/19 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MERRICK BARRINGTON STEDMAN,
Petitioner,
*
*
v.
*
DAYENA CORCORAN, et al.,
*
Respondents.
Civil Action No. GLR-15-230
*
*****
MEMORANDUM OPINION
THIS MATTER is before the Court on Petitioner Merrick Barrington Stedman’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). Stedman,
an inmate confined at the North Branch Correctional Institution in Cumberland, Maryland,
seeks to attack his 1993 convictions for murder and a handgun offense arising from the
shooting of Sean Bristol. The Petition is ripe for disposition, and no hearing is necessary.
See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts;
see also 28 U.S.C. § 2254(e)(2) (2018). For reasons set forth herein, the Court will dismiss
the Petition.
I.
A.
BACKGROUND
State Court Proceedings
On August 10, 1992, Bristol was shot eight times in the 2900 block of Nicholson
Street, Hyattsville, Maryland. (Pet. Writ Habeas Corpus [“Pet.”] Ex. 6, ECF No. 1-1 at
22).1 On December 13, 1992, the State filed a two-count indictment against Stedman in the
Circuit Court for Prince George’s County, Maryland. (Pet. at 1, ECF No. 1). On June 9,
1993, a jury convicted Stedman on both counts: first-degree murder and the use of a
handgun in the commission of a felony. (Resp’ts’ Ltd. Ans. Pet. [“Ans.”] Ex. 1 at 6, ECF
No. 6-1; Pet. at 1). Stedman was sentenced to life plus twenty years on July 6, 1993. (Ans.
Ex. 1 at 7; Pet. at 1). Stedman noted a timely appeal, and on April 22, 1994, the Court of
Special Appeals of Maryland affirmed Stedman’s convictions. (Ans. Ex. 2 at 20, ECF 62). Stedman filed a petition for writ of certiorari to the Court of Appeals of Maryland,
which the court denied on September 28, 1994. See Stedman v. State, 647 A.2d 1216 (Md.
1994) (table).
On June 9, 1999, Stedman filed a petition for post-conviction relief in the Circuit
Court for Prince George’s County. (Ans. Ex. 1 at 9). On May 14, 2001, the Circuit Court
denied Stedman’s petition. (Id. at 12). After reopening Stedman’s post-conviction
proceedings, the Circuit Court again denied Stedman’s petition on April 5, 2002. (Id. at
14). On October 1, 2002, the Court of Special Appeals denied Stedman’s application for
leave to appeal the denial of post-conviction relief. (Id. at 15). The court’s mandate issued
on November 4, 2002. (Id.).
Stedman then moved to reopen his post-conviction proceedings. (Id. at 15–16). On
September 26, 2003, the Circuit Court denied Stedman’s motion. (Id. at 16). On March 19,
Citations to Exhibits to Stedman’s Petition refer to the pagination the Court’s Case
Management and Electronic Case Files (“CM/ECF”) system assigned.
1
2
2004, the Court of Special Appeals denied Stedman’s application for leave to appeal. (Id.).
The court’s mandate issued on April 19, 2004. (Id.).
On June 10, 2008, Stedman again moved to reopen his post-conviction proceedings,
this time based on affidavits from two witnesses to Bristol’s murder, Ralph Vogelson and
Reginald Baker, who averred that Stedman was not the shooter. (Id. at 17; Ans. Ex. 3 at 4–
5, ECF No. 6-3; see also Vogelson Aff., ECF No. 1-1 at 2–3; Baker Aff. ECF No. 1-1 at
5–6).2 The Circuit Court denied the motion on October 21, 2008. (Ans. Ex. 1 at 17). The
Court of Special Appeals denied Stedman’s application for leave to appeal on July 7, 2010,
with the court’s mandate issuing on August 6, 2010. (Id. at 18).
On January 18, 2011, Stedman filed a petition for writ of actual innocence in the
Circuit Court. (Id.). The Circuit Court denied the petition on February 21, 2012. (Id. at 19).
The Court of Special Appeals affirmed the Circuit Court’s decision on March 14, 2014.
(Ans. Ex. 3 at 1, 15). The Court of Appeals denied Stedman’s petition for writ of certiorari
on July 21, 2014. Stedman v. State, 96 A.3d 146 (Md. 2014) (table).
B.
Proceedings in this Court
On January 26, 2015, Stedman filed his Petition for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (the “Petition”). (ECF No. 1). On February 9, 2015, the Court entered
2
The Court notes that the Vogelson affidavit and the Baker affidavit are signed but
they are not dated. (See Vogelson Aff., ECF No. 1-1 at 2–3; Baker Aff. ECF No. 1-1 at 5–
6). The Vogelson affidavit is notarized and dated October 27, 2010. (Vogelson Aff., ECF
No. 1-1 at 2–3). Stedman asserts that he received both affidavits in 2005, (Pet. at 4), and
moved to reopen his state-postconviction proceedings in 2008 based on in part on
Vogelson’s affidavit. Thus, the significance, if any, of the October 2010 notarization of the
Vogelson affidavit is unclear.
3
an Order directing Respondents to file an Answer to the Petition. (Feb. 10, 2015 ¶ 1, ECF
No. 2). Respondents filed their Limited Answer to Petition for Writ of Habeas Corpus and
Order to Show Cause (the “Limited Answer”) on April 23, 2015, arguing that the petition
is time-barred and that it should be dismissed on that basis. (ECF No. 6).
On April 30, 2015, the Court entered an Order granting Stedman twenty-eight days
to file a Response addressing the timeliness issue. (Apr. 30, 2015 Order at 2, ECF No. 7).
The Court granted Stedman an extension of time to respond, (ECF No. 9), and on June 19,
2015, Stedman filed his Response, (ECF No. 10). In his Response, Stedman asserts that he
is pursuing an actual innocence claim, which permits the Court to consider a petition that
may otherwise be time-barred.
On November 13, 2017, the Court directed Respondents to file a supplemental
response to the petition addressing Stedman’s actual innocence claim and to supplement
the record with copies of the trial transcripts, post-conviction petitions, and post-conviction
transcripts. (Nov. 13, 2017 Order at 4, ECF No. 14). Respondents filed a Supplemental
Answer to Petition for Writ of Habeas Corpus and Order to Show Cause (the
“Supplemental Answer”) on April 2, 2018. (ECF No. 25). Respondents also filed several
supplements to the record. (See ECF Nos. 18, 20, 22, 24, 25). On April 30, 2018, Stedman
filed a Response to the Supplemental Answer. (ECF No. 28).
II.
A.
DISCUSSION
Timeliness
Respondents
contend
that
Stedman’s
Petition
is
time-barred. Under the
Antiterrorism and Effective Death Penalty Act (the “AEDPA”), a one-year statute of
4
limitations applies to habeas petitions in non-capital cases for persons convicted in state
court. See 28 U.S.C. § 2244(d)(1) (2018). The AEDPA provides, in pertinent part, that:
A [one]-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation period
shall run from the latest of—
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
*****
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
1.
Statutory Tolling
Under § 2244(d)(2), “[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation under this subsection.” 28
U.S.C. § 2244(d)(2).
Stedman’s convictions became final in 1994 before the AEDPA was signed into law
on April 24, 1996. Antiterrorism and Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996). Among the changes the AEDPA made to the law governing state habeas
petitions was the addition of a one-year statute of limitations in non-capital cases for
persons convicted in state court as detailed above. Although the AEDPA is silent as to how
this provision applies to persons whose convictions were final before the date of its
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enactment, the United States Court of Appeals for the Fourth Circuit has clarified that such
persons had one year from the effective date, i.e., until April 24, 1997, to file a petition for
writ of habeas corpus in federal court. Hernandez v. Caldwell, 225 F.3d 435, 439 (4th Cir.
2000). Like petitions filed after the AEDPA’s effective date, this one-year period is tolled
while properly filed post-conviction proceedings are pending. Hernandez, 225 F.3d at 439
(4th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); see also 28
U.S.C. § 2244(d)(2).
Here, from the enactment of the AEDPA on April 24, 1996 to the filing of his
application for post-conviction relief on June 9, 1999, Stedman had no post-conviction
proceedings pending in state court that would have served to toll the limitations period.
Thus, the federal limitations period for filing the instant Petition expired years before
Stedman began to pursue his state court post-conviction remedies. The Court, therefore,
concludes that the Petition is untimely under § 2244(d)(1)(A).
To the extent Stedman asserts that his Petition falls under 28 U.S.C. § 2244(d)(1)(D)
based on the affidavits from Baker and Vogelson, his Petition is still untimely. Stedman
procured the Baker and Vogelson affidavits in 2005. Stedman did not move to reopen state
post-conviction proceedings until June 2008, and he did not file the instant Petition until
2015. Stedman had no proceedings pending that would have tolled the limitations period
from the discovery of the Baker and Vogelson affidavits in 2005 to the filing of his motion
to reopen post-conviction proceedings in 2008. In addition, Stedman does not explain the
nearly three-year delay in presenting the evidence to a state court, nor does he explain the
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ten-year delay in presenting the evidence to this Court. Thus, the Court concludes that
Stedman’s Petition is untimely under § 2244(d)(1)(D).
2.
Equitable Tolling
The limitation period may also be subject to equitable tolling in appropriate cases.
Holland v. Florida, 560 U.S. 631, 645 (2010); Harris, 209 F.3d at 329–30. To be entitled
to equitable tolling, a habeas petitioner must show: (1) “that he has been pursuing his rights
diligently”; and (2) “that some extraordinary circumstance stood in his way and prevented
timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted) (quoting Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Fourth Circuit requires that a petitioner
asserting equitable tolling must show that the extraordinary circumstances were “beyond
his control or external to his own conduct.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)
(en banc); Whiteside v. United States, 775 F.3d 180, 185 (4th Cir. 2014) (en banc); Harris,
209 F.3d at 330. Further, equitable tolling of the strict application of the one-year statute
of limitations “must be guarded and infrequent.” Harris, 209 F.3d at 330. It is reserved for
“those rare instances where—due to circumstances external to the party’s own conduct—
it would be unconscionable to enforce the limitation period against the party and gross
injustice would result.” Id.
Stedman does not offer any specific arguments in favor of equitable tolling. The
Court will nevertheless address the issue because if Stedman is entitled to equitable tolling,
then the Court need not reach his actual innocence claim.
Here, Stedman’s conviction became final in 1994, and his window for filing a
federal habeas petition regarding his case closed in April 1997. He did not file this Petition
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until 2015—almost eighteen years later. Moreover, Stedman has offered no explanation
for the three-year delay between his receipt of the Vogelson and Baker affidavits and the
filing of his motion to reopen state post-conviction proceedings, nor has he explained the
nearly ten-year delay between his receipt of the affidavits and his filing the instant Petition.
Such delays disqualify a petitioner from receiving the benefit of equitable tolling. See
McQuiggin v. Perkins, 569 U.S. 383, 391 (2013) (holding that a nearly six-year delay in
seeking federal habeas relief after receiving witness affidavits prevented petitioner from
establishing the required diligence for equitable tolling). The Court, therefore, concludes
that Stedman is not entitled to equitable tolling.
In sum, Stedman is not entitled to statutory or equitable tolling. As a result,
Stedman’s Petition is time-barred. The Court next considers Stedman’s assertions of actual
innocence, an exception to the AEDPA’s limitations provisions.
B.
Actual Innocence Claim
Stedman asks that the Court consider his habeas claims, notwithstanding their
untimeliness, because he has demonstrated actual innocence, a gateway through which the
Court may consider untimely habeas petitions.3 Respondents contend that Stedman has
As to the Petition’s constitutional claims, Stedman asserts: (1) he was denied
effective assistance of counsel because his trial attorney failed to object to the reasonable
doubt jury instruction; and (2) Brady v. Maryland, 373 U.S. 83 (1963), violations arising
from: (a) the prosecutor failing to disclose to Stedman’s trial attorney an August 10, 1992
signed, written statement from Vogelson that was consistent with the affidavit Stedman
obtained from Vogelson in 2005; and (b) the prosecutor failing to provide Stedman’s trial
attorney Baker’s name and address despite a request for discoverable evidence.
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failed to make the requisite showing of actual innocence. At bottom, the Court agrees with
Respondents and will dismiss the Petition.
The “miscarriage of justice” or “actual innocence” exception to the AEDPA’s
limitations provisions creates a procedural mechanism through which a petitioner may
pursue his claims that are otherwise time-barred. Perkins, 569 U.S. at 399; see also Teleguz
v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (observing that an actual innocence claim is
a “procedural mechanism rather than a substantive claim”). The actual innocence exception
“is grounded in the equitable discretion of habeas courts to see that federal constitutional
errors do not result in the incarceration of innocent persons.” Perkins, 569 U.S. at 392
(internal quotation marks omitted) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
That said, claims of actual innocence presented as gateways to excuse a procedural default
“should not be granted casually.” Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998)
To establish an actual innocence claim, a petitioner must first “support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” Finch v. McKoy, 914 F.3d 292, 298 (4th Cir. 2019) (quoting
Schlup v. Delo, 513 U.S. 298, 324 (1995)). The petitioner must then establish that “the
totality of the evidence would prevent any reasonable juror from finding him guilty beyond
a reasonable doubt.” Id. (quoting Teleguz, 689 F.3d at 329). Put differently, a petitioner
does not satisfy the actual innocence exception unless he “persuades the district court that,
in light of the new evidence, no juror acting reasonably would have voted to find him guilty
beyond a reasonable doubt.” Perkins, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).
9
If the evidence is both reliable and new, the reviewing court then considers “all the
evidence, old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that would govern at trial.” House v.
Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted); see also Wilson, 155
F.3d at 404–05 (“A reviewing court must evaluate the new evidence alongside any other
admissible evidence of the defendant’s guilt . . . .”). This requires a “holistic judgment
about all the evidence and its likely effect on reasonable jurors applying the reasonabledoubt standard.” Finch, 914 F.3d 292 at 299 (quoting House, 547 U.S. at 539). Further, the
actual innocence standard “does not require absolute certainty about the petitioner’s guilt
or innocence.” House, 547 U.S. at 538.
In reviewing the total evidentiary record, the Court must “make a probabilistic
determination about what reasonable, properly instructed jurors would do.” Id. (quoting
Schlup, 513 U.S. at 329). The Court does not, however, “make an independent factual
determination about what likely occurred,” but rather “assess[es] the likely impact of the
evidence on reasonable jurors.” Id.
Courts have found that a petitioner made a credible actual innocence claim where
the petitioner provided: (1) new DNA evidence and expert testimony “call[ing] into
question” the “central forensic proof connecting [the petitioner] to the crime,” as well as
“substantial evidence pointing to a different suspect,” House, 547 U.S. at 544; (2) “sworn
statements of several eyewitnesses that [the petitioner inmate] was not involved in the
crime” and affidavits “that cast doubt on whether [the petitioner inmate] could have
participated” in the offense, Schlup, 513 U.S. at 331; (3) a third party’s consistent and
10
repeated statement that he committed the offense, Jones v. McKee, No. 08 CV 4429, 2010
WL 3522947, at *9–10 (N.D.Ill. Sept. 2, 2010); Carringer v. Stewart, 132 F.3d 463, 478–
7̈9 (9th Cir. 1997) (finding that the petitioner opened the actual innocence gateway where
another person testified under oath that he committed the offense and separately boasted to
other individuals that he set up the petitioner); and (4) documentary evidence indicating
that the petitioner was in another country on the day of the offense and five affidavits from
individuals stating that the petitioner was outside the country at the precise time of the
offense, see Garcia v. Portuondo, 334 F.Supp.2d 446, 452–56 (S.D.N.Y. 2004).
Respondents advance two arguments for why Stedman fails to establish an actual
innocence claim: (1) the Vogelson and Baker affidavits are not “newly discovered
evidence” because this evidence was available to Stedman at the time of his trial more than
twenty years ago;4 and (2) Stedman fails to meet his burden of demonstrating that “it is
more likely than not that no reasonable juror would have convicted him in the light of the
The Court notes that a circuit split exists regarding whether “new evidence” means
“newly discovered” or “newly presented.” Reeves v. Fayette SCI, 897 F.3d 154, 161–62
(3d Cir. 2018), as amended, (July 25, 2018). The Eighth Circuit has held that “evidence is
new only if it was not available at trial and could not have been discovered earlier through
the exercise of due diligence.” Amrine v. Bowersox, 238 F.3d 1023, 1028 (8th Cir. 2001).
The Seventh Circuit and Ninth Circuit have held that federal habeas petitioners may
demonstrate an actual innocence claim through “newly presented” exculpatory evidence,
that is, evidence not presented to the jury at trial. See Gomez v. Jaimet, 350 F.3d 673, 679–
80 (7th Cir. 2003); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003). Likewise, the
Courts of Appeals for the First, Second, and Sixth Circuits have intimated that petitioners
may establish actual innocence claims through newly presented evidence. See Riva v.
Ficco, 803 F.3d 77, 84 (1st Cir. 2015); Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir.
2012); Rivas v. Fischer, 687 F.3d 514, 543, 546–47 (2d Cir. 2012). The Fourth Circuit has
not addressed this issue. Accordingly, for the purposes of its analysis, the Court assumes
that Stedman’s evidence satisfies the requirement that it be “new.”
4
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new evidence.” Perkins, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). The Court
agrees with Respondents’ second argument. The Court first discusses the evidence
produced at Stedman’s 1993 trial, and then turns to the Vogelson and Baker affidavits.
1.
Trial Evidence
Stedman’s trial began on June 7, 1993, in the Circuit Court for Prince George’s
County. (Resp’ts’ Mot. Ext. Time Ex. 6 [“June 7, 1993 Tr. Transcript”], ECF No. 18-6).
During trial, the State presented several witnesses who testified about events on the night
of Bristol’s murder. Andrew Ormsby testified that he was in front of a convenience store
located on Ager Road near Riggs Road on the evening of August 10, 1992. (Id. at 1-37).
Stedman, who Ormsby described as wearing a white t-shirt and blue shorts, (id. at 1-42),
and the victim, Bristol, were both inside of the store while Ormsby was outside, (id. at 139). Although he never went into the store, Ormsby heard something going on inside the
store, and when Stedman left the store he looked angry. (Id. at 1-39–1-40). Ormsby testified
that Stedman said, “he was going to go home and get his joint.” (Id. at 1-40). While Ormsby
denied knowing what “joint” meant, (id.), another witness, Gregory Strawbridge, a friend
who was with Stedman on the night of Bristol’s murder, told the police he understood the
term to mean “gun.” (Resp’ts’ Mot. Ext. Time Ex. 5 [“June 8, 1993 Tr. Transcript”] at 245–46, 2-77, ECF No. 18-5). Strawbridge subsequently denied ever hearing the term when
he took the stand at trial. (Id. at 2-46).
Carl Proctor testified that he was in the area on the night of the shooting when he
heard gunshots. (June 7, 1993 Tr. Transcript at 1-73–1-74). He observed a white Toyota
Tercel or Dodge Colt hatchback with two doors stopped in the middle of the street. (Id. at
12
1-75). As he looked around, Proctor saw a man laying in the field in front of him and
somebody standing over the man. (Id. at 1-76). The person standing over the man had his
hands pointed down at the man. (Id.). Proctor then heard “[a] couple more shots.” (Id.).
Proctor testified that the person standing had something in his hand that “[l]ooked like a
gun,” but that he “wouldn’t swear to it.” (Id.). The person then ran across the field and got
into the front passenger side of the car that was stopped in the middle of the street and the
car drove away. (Id. at 1-76–1-77). Proctor described the shooter as “a slender black guy,
dark, about . . . five eleven to six feet,” in his “[e]arly twenties,” and wearing a “khaki color
or white t-shirt.” (Id. at 1-77).
Christopher Johnson testified that he knew both Bristol and Stedman, and that
Johnson was with Bristol on the night of the shooting. (Id. at 1-87–1-89). He testified that
when he and Bristol went into the convenience store on Ager Road, Stedman was there
wearing a white t-shirt and blue shorts. (Id. at 1-89, 1-97). Bristol and Stedman got into an
argument over “turf in the neighborhood.” (Id. at 1-90). Johnson testified that Bristol
started the argument, but Stedman did not respond, so Bristol “stepped [to Stedman],
pushed him a few times and argued and fussed.” (Id. at 1-91). Bristol left the store to go to
a different store and continued to call Stedman out so they could fight but Stedman did not
come out of the store. (Id. at 1-93).
Johnson and Bristol went to another convenience store and then walked to a bus
stop. (Id. at 1-93–1-94). They waited about ten minutes for the bus and then got on the bus.
(Id. at 1-94). When they got off the bus, a white four-door car pulled up and stopped in the
middle of the street. (Id. at 1-94–1-96). When Johnson saw a person he thought was
13
Stedman get out of the car, he “immediately ran” because of the altercation in the store.
(Id. at 1-95–1-97). Johnson ran to another store and, when he returned, Bristol had been
shot. (Id. at 1-98–1-99).5
Bristol’s cousin, Nally Roberts, testified that Bristol told him to meet him at the
convenience store on the night of the murder. (Id. at 1-109). When he arrived, Bristol was
there and Stedman was in the store on the phone. (Id. at 1-109–1-110). Roberts witnessed
the argument between Bristol and Stedman, and when Stedman came out of the store,
Roberts overheard him say he was “going to get [his] shit.” (Id. at 1-110–1-111). Roberts
told Bristol what Stedman said and advised Bristol to leave the area. (Id. at 1-113). About
five minutes after Bristol got on the bus, Roberts saw a car pull in front of the convenience
store before continuing down the road. (Id. at 1-118–1-119). Roberts saw Stedman in the
front passenger seat of a white hatchback Honda Accord, with Stedman’s cousin in the
driver’s seat. (Id. at 1-115–1-116). Another unidentified man was in the back seat of the
car. (Id. at 1-116–1-117).
After unsuccessfully attempting to invoke his Fifth Amendment right against selfincrimination, Strawbridge testified. (June 8, 1993 Tr. Transcript at 2-21, 2-24–2-26).
Strawbridge stated that on the day of the shooting, he, David Wilson, and Stedman went
shopping at a local mall and then went to the grocery store to get something to eat. (Id. at
Johnson was later recalled after the State proffered evidence that Stedman’s family
had tampered with his testimony (June 8, 1993 Tr. Transcript at 2-98–2-99). Additionally,
trial counsel testified during state post-conviction proceedings that, “Quite honestly, I
think Chris Johnson knew – I don’t want to say my client was guilty, but I think he knew
in his mind what he saw.” (Feb. 8, 2001 Post-Conviction Hearing Tr. at 32, ECF No. 183).
5
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2-27–2-28). Wilson and Stedman went into the store while Strawbridge went around the
corner. (Id. at 2-29). Strawbridge heard yelling and saw Bristol and two other men in front
of the store. (Id.). Strawbridge went into the grocery store and told Stedman that he was
going to go home. (Id.). Stedman replied that his cousin was coming to get him and agreed
to give Strawbridge a ride. (Id.).
The prosecutor confronted Strawbridge with a written statement he gave the
Hyattsville City Police on August 17, 1992, which Strawbridge said the police pressured
him into writing. (Id. at 2-32–2-33). In the statement, Strawbridge said, “I went to the front
of the store and saw [Bristol] outside the store saying to [Stedman], ‘Come on out, Bitch.
Come on out.’ [Stedman] just stood inside the store with his arms crossed.” (Id. at 2-34).
“[Stedman] said, “I’m going to kill his ass.’” (Id. at 2-35). Strawbridge further testified that
a four-door white car then came to pick him and Stedman up, and Stedman got into the
front passenger seat. (Id. at 2-36–2-37). He also told police that Stedman was wearing a
white shirt, black shoes, and blue shorts the night of the murder. (Id. at 2-41). Strawbridge
told police that he thought Stedman shot Bristol, but testified that the police told him to
make that statement. (Id. at 2-77–2-78).
Another eyewitness, Sandra Cheston, testified that the shooter was wearing “dark
shorts, either blue or black” and “a big white shirt” and described the vehicle the shooter
emerged from as a white, four-door sedan. (Id. at 2-90–2-93)
Stedman took the stand in his own defense, (June 8, 1993 Tr. Transcript at 2-140–
2-184), in a manner that was described by his own post-conviction expert as a damaging
to the defense, (Mar. 22, 2002 at H-14–H-27, ECF No. 24-1). Stedman explained that he
15
and Bristol had problems in the past arising from a “slap boxing” incident. (June 8, 1993
Tr. Transcript at 2-142–2-143). Stedman testified that on the night of the shooting he was
wearing a white t-shirt and blue shorts. (Id. at 2-170–2-171). He further testified that Bristol
came up to him and asked him why he had told someone that he, Stedman, was going to
beat Bristol up. (Id. at 2-144). Stedman denied knowing what Bristol was talking about.
(Id.). Bristol called him out to fight, but Stedman declined and called his cousin for a ride.
(Id. at 2-144–2-145). Stedman’s cousin came, in a white car, and he and Wilson left while
Bristol was still at the store. (Id. at 2-146). They dropped Strawbridge off, and then
Stedman’s cousin took Stedman to his grandmother’s house. (Id.). Stedman went to a
recreation center for about an hour to play ping pong. (Id. at 2-147). Stedman later took a
cab to his child’s mother’s house in Washington, D.C., where he spent the night. (Id.). Prior
to leaving for Washington, D.C., Stedman stopped by the apartment complex where he
lived, and everyone there told him that they heard he killed Bristol. (Id.). When he arrived
in Washington, D.C., unspecified individuals there were talking about Bristol’s shooting.
(Id. at 2-148). Stedman testified that he “got scared,” so he took the bus to New York and
got a plane ticket in another name to Jamaica. (Id.). Stedman explained that he eventually
returned to the United States because he wanted to clear his name and could not live away
from his son and family. (Id. at 2-149–2-150). Stedman expressly denied killing Bristol.
(Id. at 2-152).
Detective Mark Roski (“Detective Roski”) of the Hyattsville City Police
Department testified that on the night of the shooting he went to Stedman’s home as well
as the homes of Stedman’s grandmother and father, but could not locate Stedman. (June 7,
16
1993 Tr. Transcript at 1-58–1-59). Ultimately Detective Roski arrested Stedman on
November 3, 1992, when he disembarked from a flight coming back from Jamaica. (Id. at
1-60).
2.
Vogelson and Baker Affidavits
The police notes from 1992 indicate that Vogelson and Baker were listed among a
number of witnesses who heard gunshots but whose accounts “[varied] as to seeing a
suspect.” (Pet. Ex. 6, ECF No. 1-1 at 19). The police notes also indicate that they did not
interview Vogelson on scene, but that Vogelson provided a written statement. (Id.).
Before trial, Stedman’s trial attorney, David Simpson, hired a private investigator,
Sharon Weidenfeld, to assist with locating and interviewing witnesses. (Oct. 11, 2000 PostConviction Hearing Tr. at 16, 25, ECF No. 20-2; Feb. 8, 2001 Post-Conviction Hearing Tr.
at 9–10, ECF No. 18-3; Pet. at 4). Simpson testified that he had been provided the police
reports regarding the Bristol shooting. (Feb. 8, 2001 Post-Conviction Hearing Tr. at 7; see
also Oct. 11, 2000 Post-Conviction Hearing Tr. 7, 16–17, 24–25; Pet. Ex. 6 at 19–26). The
police reports specifically noted that several witnesses, including Vogelson and Baker, had
varying abilities to see the shooter. (Oct. 11, 2000 Post-Conviction Hearing Tr. at 26–27;
Pet. Ex. 6 at 19). Stedman and Simpson spoke about Vogelson in particular and the efforts
to locate him. (Oct. 11, 2000 Post-Conviction Hearing Tr. at 27). Weidenfeld was unable
to locate Vogelson. (Weidenfeld Aff. ¶¶ 3–4, ECF No. 18-2 at 39–40).6
6
Citations to ECF No. 18-2 refer to the pagination CM/ECF assigned.
17
After his trial, in 1995, Stedman retained Myrtle E. Wyre, who hired a private
investigator, to reinvestigate his case. (Pet. at 3; Pet. Ex. 3, ECF No. 1-1 at 8). Wyre and
the private investigator were unable to locate any of the witnesses to the shooting. (Pet. at
3). In 1996, Stedman discharged Wyre and hired Robert Law to represent him. (Id.). In
1999, Law and co-counsel David Slade hired another investigator to locate witnesses. (Id.).
This investigator was able to learn some facts about Vogelson, including his address and
grandmother’s address and phone number. (Id.; Id. Ex. 4 ECF No. 1-1 at 10).
In 2005, Stedman rehired Weidenfeld. (Pet. at 4). Weidenfeld located and acquired
affidavits from Baker and Vogelson at the time. (Pet. at 4; Vogelson Aff.; Baker Aff.).
Stedman contends that prior to 2005 he was not aware that Vogelson or Baker had evidence
favorable to him that “exonerates [him] as the shooter of [Bristol].” (Pet. at 5). According
to Stedman, it was not until 2005 that he discovered that Vogelson spoke with Detective
Roski and gave the same account to Detective Roski as contained in his affidavit. (Id.).
During Stedman’s first post-conviction proceedings in 2005, Weidenfeld filed an
affidavit indicating that Stedman’s trial attorney, Simpson, hired her in 1992–93.
(Weidenfeld Aff. ¶ 2). Simpson requested that she interview Vogelson, whose name
appeared on the police report contained in the discovery the State provided. (Id. ¶ 3). She
made “several attempts” to interview Vogelson “by going to his house and looking for
him.” (Id. ¶ 4). Weidenfeld left her card, as was her “usual practice,” but Vogelson never
contacted her and she was not able to meet him on any of her visits to his house. (Id.).
In 2005, Stedman again contacted Weidenfeld requesting that she do additional
work on his case and she agreed. (Weidenfeld Aff. ¶ 5). In 2005, she located Baker, whose
18
name appeared in a police report in discovery turned over prior to trial. (Id. ¶ 6).
Weidenfeld interviewed Baker and he gave a recorded statement of his eyewitness account
of Bristol’s murder. (Id. ¶ 7). Also in 2005, “after numerous attempts to locate and
interview” Vogelson, Weindenfeld finally located and interviewed him. (Id. ¶ 8). Vogelson
also gave a recorded statement of his account of Bristol’s murder. (Id. ¶ 9)
In his 2005 affidavit, Vogelson states that he witnessed the shooting of Bristol on
August 10, 1992. (Vogelson Aff. ¶ 1). He was able to observe the individual who shot
Bristol, who he describes as black, 5’5” or 5’6”, with a slender build; wearing a white tshirt and dark grayish or dark bluish shorts. (Id.). Vogelson further avers that the shooter
ran toward a white car that looked like 1992 Hyundai, and then jumped in the back seat of
the car which left the scene. (Id.).
The police interviewed Vogelson on the night of the shooting. (Id. ¶ 2). He gave his
name, address, and signed, written statement consistent with the description of events in
his affidavit. (Id.). Neither Stedman’s trial attorney nor Weidenfeld contacted Vogelson
prior to Stedman’s trial. (Id. ¶ 3). Vogelson was not called to testify as a witness at trial
and was not called to testify at any of Stedman’s post-conviction hearings in 2002. (Id.).
Vogelson states that he had class with, and played football with, Stedman at North
Western High School and would have recognized him if he was Bristol’s shooter. (Id. ¶ 4).
He states that Stedman did not shoot Bristol. (Id.). Vogelson avers that had he been
interviewed or subpoenaed, he would have appeared to testify, consistent with his current
statement, at trial or at the 2002 post-conviction hearing. (Id. ¶ 5).
19
In his 2005 affidavit, Baker avers that he witnessed Bristol’s shooting on August
10, 1992. (Baker Aff. ¶ 1). Baker spoke to the police that night and gave them his name
and address. (Id. ¶ 2). Like Vogelson, neither Stedman’s trial attorney nor Weidenfeld
contacted Baker prior to trial. (Id. ¶ 3). Baker also was not contacted in 2002 to testify in
Stedman’s post-conviction proceedings. (Id.). The first time Baker was interviewed about
the Bristol shooting was July 2005. (Id.). Baker states that at the time of the shooting, he
had known Stedman for two to three years and that they “lived in the same neighborhood”
but “were not friends.” (Id. ¶ 4). Nevertheless, Baker “knew who [Stedman] was and what
he looked like.” (Id.). In Baker’s view, Stedman “was not the person that shot Mr. Bristol.”
(Id.). Baker asserts that had he been interviewed or subpoenaed, he would have appeared
and testified consistent with the statement in his affidavit. (Id. ¶ 5).
In sum, the police interviewed both Baker and Vogelson the time of the shooting;
their names, but not the substance of their interviews were provided to trial counsel as part
of discovery; neither trial counsel nor Weidenfeld interviewed Baker or Vogelson prior to
trial; and neither Baker nor Vogelson was subpoenaed to appear at the trial or Stedman’s
post-conviction proceedings. Stedman’s first post-conviction counsel also did not
interview Baker or Vogelson.
1.
Analysis
At bottom, assuming that the Vogelson and Baker affidavits are “new” evidence,
Stedman nevertheless fails to establish that the affidavits are reliable or that no reasonable
juror would have found him guilty beyond a reasonable doubt in light of the affidavits.
20
a.
Reliability of the Affidavits
Evidence in support of an actual innocence claim must portray “factual innocence,
not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). While
the Court must determine whether “it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt,” Sharpe v. Bell, 593 F.3d 372, 377
(4th Cir. 2010) (quoting Schlup, 513 U.S. at 327–28), the Court “need not proceed to this
second step of the inquiry unless the petitioner first supports his or her claim with evidence
of the requisite quality,” Hill v. Johnson, 2010 WL 5476755, at *5 (E.D.Va. Dec. 30,
2010); see also Feaster v. Beshears, 56 F.Supp.2d 600, 610 (D.Md. 1999) (quoting Schlup,
513 U.S. at 316) (noting that a petitioner must first demonstrate new evidence of actual
innocence).
“[A] federal habeas court, faced with an actual-innocence gateway claim, should
count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief,
but as a factor in determining whether actual innocence has been reliably shown.” Perkins
569 U.S. at 387. In making such an assessment, “the timing of the [petition]” is a factor
bearing on the “reliability of [the] evidence” purporting to show actual innocence. Id. at
387 (quoting Schlup, 513 U.S. at 332). Rather than “treating timeliness as a threshold
inquiry,” “[u]nexplained delay in presenting new evidence bears on the determination
whether the petitioner has made the requisite showing [of actual innocence].” Id. at 385.
Considering the delay in presenting evidence as bearing on reliability “is tuned to the
exception’s underlying rationale of ensuring ‘that federal constitutional errors do not result
in the incarceration of innocent persons.’” Id. (quoting Herrera, 506 U.S. at 404).
21
In making such a determination, the Court may examine the timing of the affidavits
and the credibility that the affiants would have on the reliability of the evidence. Schlup,
513 U.S. at 329; Herrera, 506 U.S. at 417 (finding affidavits submitted eight years after
trial suspect because the petitioner failed to provide a satisfactory explanation for the
delay); see also id. at 423 (O’Connor, J., concurring) (stating that affidavits alleging actual
innocence collected ten years after the petitioner was convicted on “seemingly dispositive
evidence” are not uncommon, and that “such affidavits are to be treated with a fair degree
of skepticism”); McDowell v. Lemke, 737 F.3d 476, 483–84 (7th Cir. 2013) (stating that
“eleventh hour” self-serving affidavits containing no indicia of reliability and which are
accompanied by no reasonable explanation for the delay are inherently suspect).
In this case, despite Stedman’s repeated assertions that he pursued his claims of
actual innocence with “unwavering diligence,” (Pet. at 2, 5), the timeline of events tells a
different story. Stedman obtained the Vogelson and Baker affidavits in 2005, but he did
not move to re-open his state post-conviction proceedings until 2008. Stedman does not
explain why he waited for three years after obtaining the affidavits to do so. Stedman also
does not explain why when the Circuit Court denied his motion in 2010, he waited until
2011 to file a state petition for actual innocence. Finally, Stedman offers no explanation
for why after that petition was denied he waited several months to file the instant case.
Thus, the lack of explanation for both the delay in obtaining the affidavits as well as in
submitting the affidavits to the appropriate courts undercuts the reliability of the Vogelson
and Baker affidavits. See Herrera, 506 U.S. at 417 (noting that affidavits supporting actual
22
innocence claims obtained years after a conviction are not uncommon and should be treated
with “a fair degree of skepticism”).
Further, Baker’s affidavit lacks any specific information about Bristol’s shooting
and simply avers that “Mr. Stedman was not the person that shot Mr. Bristol.” (Baker
Aff. ¶ 4). Although Vogelson’s affidavit contains some specifics—the shooter was
“black,” “5’5, 5’6,” with a “slender build,” and “wearing a white t-shirt” and “dark grayish
or dark bluish shorts” and he “was running towards a white car that looked like a ’92
Hyundai”—these details are similar to those to which trial witnesses testified. (Vogelson
Aff. ¶ 1). Beyond these details, Vogelson provides the same conclusory statement as Baker:
“Mr. Stedman was not the person that shot Mr. Bristol.” (Id. ¶ 4). The police listed
Vogelson and Baker with the witnesses that varied in their ability to see the suspect, and
the affidavits do not explain the vantage point of each witness on the night of Bristol’s
murder. (Pet. Ex. 6 at 19). Finally, neither Vogelson nor Baker explain why they waited so
long to provide their exculpatory statements—twelve years after Stedman had been
sentenced and after Stedman had exhausted his appeals. Thus, the Court concludes that the
Vogelson and Baker affidavits are unreliable.
b.
Assessment of Trial Evidence and New Evidence
The “more likely than not” standard requires a petitioner “to make a stronger
showing than that needed to establish prejudice,” but “imposes a lower burden of proof
than the ‘clear and convincing standard.’” Schlup, 513 U.S. at 327. This standard “ensures
that petitioner’s case is truly ‘extraordinary,’ while still providing petitioner a meaningful
23
avenue by which to avoid a manifest injustice.” Id. (quoting McCleskey v. Zant, 499 U.S.
467, 494 (1991)).
Stedman contends that the prosecutors did not disclose the information contained in
the Vogelson and Baker affidavits to his attorney during the pretrial discovery process, 7
and if they had, the outcome of his trial “would have been different.” (Pet. at 5). The Court
disagrees.
Stedman’s situation does not present the extraordinary case where it is more likely
than not that no reasonable juror would have convicted him in light of the affidavits. The
Court recognizes the weaknesses in the State’s case against Stedman, including the lack of
physical evidence that tied him to the murder and the witnesses’ reluctance to identify him
as the shooter. The State did, however, present evidence of motive: that Stedman and
Bristol argued the day of the murder and that Stedman was heard to say he was going to
get his “joint” and “kill his ass.” In addition, Stedman himself testified that he had problems
with Bristol in the past arising from a slap boxing incident. Stedman also had the
opportunity to kill Bristol as evidenced by the matching independent identifications of
witnesses who placed Stedman in the white, four-door car driven by Stedman’s cousin, and
Stedman’s own testimony that he was in the area on the date and around the time of the
murder. Two witnesses testified that they believed Stedman shot Bristol: Johnson, Bristol’s
friend, who was reluctant to identify Stedman, testified that he fled from the car because
7
There is no indication in the record before the Court that Vogelson advised police
that Stedman was not the shooter. Further, the police provided Vogelson’s name to trial
counsel as part of pretrial discovery. (Oct. 11, 2000 Post-Conviction Hearing Tr. at 26–
27).
24
he believed it was Stedman that exited the vehicle; and Strawbridge, who was with
Stedman the day of the shooting, told police he believed Stedman shot Bristol. Multiple
eyewitnesses identified the shooter as wearing the same clothes that Stedman testified that
he was wearing on the day of the shooting. Additionally, Stedman admitted that he fled the
country after Bristol’s shooting.
While the Vogelson and Baker affidavits are somewhat probative, had the
information in the affidavits been presented at trial, the jury could have weighed it against
the evidence offered by the State before returning its verdict. As discussed above, Vogelson
and Baker simply aver that Stedman was not the shooter; they do not provide a description
of their vantage points the night of the shooting. A conclusory statement that Stedman was
not the shooter is not a description of the events Vogelson and Baker witnessed the night
of the shooting. In addition, coming so long after Stedman’s trial, the offered declarations
of Stedman’s innocence fall short of that which is required to demonstrate actual
innocence. Weighing the staleness of the declarations and their lack of information against
the evidence adduced at trial, the Court is not persuaded that any reasonable juror would
not have convicted Stedman in light of this evidence.8 See Blackmon v. Williams, 823 F.3d
8
Stedman is also not entitled to an evidentiary hearing to develop his actual
innocence claim. In evaluating a request for an evidentiary hearing, a district court “should
consider the particular facts raised by the petitioner in support of his actual innocence
claim.” Teleguz, 689 F.3d at 331. Stedman has not raised any facts that would entitle him
to further exploration of his actual innocence claim. In the absence of clear and convincing
evidence, it would be improper for the Court to second-guess the state court’s findings.
Cf. Teleguz, 689 F.3d at 331 (“[T]he district court is permitted under Schlup to make some
credibility assessments when . . . a state court has not evaluated the reliability of a
petitioner’s newly presented evidence that may indeed call into question the credibility of
the witnesses presented at trial.” (internal quotation marks and alterations omitted)).
25
1088, 1100–02 (7th Cir. 2016) (rejecting actual innocence claim where, eight years after
trial, witnesses claimed that they saw shooting and that the petitioner was not the shooter
because trial witnesses testified that the petitioner was the shooter).
In sum, upon a review of all of the evidence, Stedman fails to show that a reasonable
juror would be prevented from finding him guilty beyond a reasonable doubt. Stedman,
therefore, has not satisfied the threshold requirements necessary for the Court to consider
the merits of his time-barred Petition under the actual innocence exception. Accordingly,
the Court will dismiss the Petition.
C.
Certificate of Appealability
When a district court dismisses a habeas petition solely on procedural grounds, a
certificate of appealability (“COA”) will not issue unless the petitioner can demonstrate
both: (1) “that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right”; and (2) “that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Rose v. Lee, 252
F.3d 676, 684 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A litigant seeking
a COA must demonstrate that a procedural ruling barring relief is itself debatable among
jurists of reason; otherwise, the appeal would not “deserve encouragement to proceed
further.” Buck v. Davis, 137 S.Ct. 759, 777 (2017) (quoting Slack, 529 U.S. at 484). Denial
of a COA does not preclude a petitioner from seeking permission to file a successive
Moreover, even assuming the credibility of the affidavits presented, for the reasons
discussed above, it is not more likely than not that no reasonable juror would have
convicted Stedman.
26
petition or from pursuing his claims upon receiving such permission. Here, the Court will
dismiss Stedman’s Petition on procedural grounds. Based upon the Court’s analysis above,
the Court concludes that reasonable jurists would not debate whether the Court erred in its
procedural ruling. Accordingly, the Court will not issue a COA.
III.
CONCLUSION
For the foregoing reasons, the Court will dismiss Stedman’s Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). A separate Order follows.
/s/
___________________________
George L. Russell, III
United States District Judge
Entered this 23rd day of April, 2019.
27
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