Lee-El v. State of Maryland
Filing
31
MEMORANDUM OPINION. Signed by District Judge Brendan Abell Hurson on 2/7/2024. (dass, Deputy Clerk) (c/m 2/7/24)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TRAVIS E. LEE-EL,
Petitioner,
v.
Civil Action No.: BAH-21-1865
STATE OF MARYLAND,
Respondent.
MEMORANDUM OPINION
Self-represented Petitioner, Travis E. Lee-El (“Petitioner”), filed a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he challenges the validity of his convictions
and sentence in the Circuit Court for Prince George’s County, Maryland, for thirteen counts related
to the sexual abuse of a minor.1 ECF 1. The Petition is fully briefed. ECFs 1, 7, 17, 19. Upon
review of the submitted materials, the Court finds that no hearing is necessary. Loc. R. 105.6
(D. Md. 2023); Rules 1(b) and 8(a), Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons set forth below, the Petition will be DENIED.
1
Petitioner named the State of Maryland as Respondent. ECF 1, at 1. According to the online
records of the Maryland Department of Public Safety and Correctional Services, Petitioner is
currently serving his prison sentence at the Western Correctional Institution in Cumberland,
Maryland, where Ronald S. Weber is the Warden. ECF 7, at 3 n.1; see Incarcerated Individual
Locator, Md. Dep’t of Pub. Saf. & Corr. Servs., https://www.dpscs.state.md.us
/inmate/search.do?searchType=detail&id=879907858 (last visited Feb. 6, 2024). Warden Weber,
therefore, would be the proper primary Respondent in this action. Rumsfeld v. Padilla, 542 U.S.
426, 435 (2004) (stating that, in a federal habeas case, “the proper respondent is the warden of the
facility where the prisoner is being held”). This issue, however, is mooted by the Court’s dismissal
and closure of the case.
I.
BACKGROUND
A. Convictions and Sentence
On May 29, 2014, a jury in the Circuit Court for Prince George’s County found Petitioner
guilty of one count of sexual abuse of a minor, five counts of second-degree sex offense, four
counts of third-degree sex offense, one count of sodomy, one count of fourth degree sex offense,
and one count of second-degree assault, relating to the abuse of Petitioner’s 10-year-old cousin.
ECF 8-1, at 76, 161–62. The following relevant facts, as described by the Appellate Court of
Maryland (the “Appellate Court”),2 were adduced at trial:
On June 1, 2013, the victim, D.F., was staying at her father’s home in Prince
George’s County, when Travis Lee, cousin of the victim’s father, came to visit. Lee
was 49 years-old at the time of the events. He arrived at the house drunk around
midnight. The victim’s father told Lee that he could stay over, and then went to
bed. Although D.F. had her own bedroom in her father’s house, she stayed up with
Lee watching television in the living room on the night of the incident.
When Father awoke around 4:30 am, he saw Lee and the victim asleep on
different parts of the sectional sofa. Father went back to sleep. When he awoke
again between 7:30 and 8:30, he got his daughter up and ready to go to her mother’s
house, and Lee parted company with them.
After D.F. was dropped off at her mother’s home in Baltimore, she told her
mother about the abuse. D.F. said that Lee made her touch his private parts and
fondled her private parts and anus. She told her mother that “Travis had sex with
her.” According to Mother’s testimony, this is not something D.F. would say.
Mother averred that her daughter had “a sad look, . . . like she did something wrong.
She had a look [like] she did something bad, . . . [or that] something bad happened
to her.” Father and Mother immediately took their daughter to the Sinai Hospital
near the mother’s house in Baltimore.
At the hospital, the victim told the police that she was sitting on the couch
watching cartoons when Lee came over and started touching her on her legs.
2
At the November 8, 2022, general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of
Maryland and the Court of Special Appeals was renamed the Appellate Court of Maryland. The
name change took effect on December 14, 2022. This was a change in name only and does not
affect the precedential value of the opinions of the two courts issued before the effective date of
the name change.
2
Although the victim did not use the following terms, she said that Lee made oral
contact with her breast and legs and forced anal penetration with his penis and
fingers. He also forced digital vaginal penetration.
Ms. Paulette Dendy, a SAFE nurse, was accepted as an expert forensic
nurse. She saw the victim on June 3, 2013, two days after the assault. The victim
reported pain in the rectal area and vaginal area. There was swelling of the labia
and a tear in the rectum, both indicative of trauma. The forensic nurse took an oral
swab, took an external anal/perianal swab, and prepared a sexual assault kit.
1
Detective Jennifer Rio of the Prince George’s County police department sex
abuse unit obtained an arrest warrant for Lee after she met with the victim and her
parents on June 3rd. Lee was indicted on several counts of sexual offense in the
second- and third-degree, rape, sodomy, assault, and child abuse, and a trial was
held on May 28 and 29, 2014. D.F. and her mother and father testified to the above
events at trial, where D.F. specifically identified her abuser as “Cousin Travis.”
She also indicated that Lee made oral contact with her vagina and anus. Mother
testified that D.F. was developmentally delayed by about two years. She
characterized her daughter as autistic, meaning that she lacked socialization skills
and that her ability to express herself was not at the normal level for a child her age.
Ms. Nicole Miulli was accepted as an expert in serology and testified that
the victim’s anal swab was positive for sperm. The serologist confirmed the
positive result with a visual microscope test, which indicated the presence of
approximately two sperm.2 She testified that the length of time that sperm stays
around depends on if the victim washes, wipes, or used the bathroom “and how
many days it’s been since the exam was completed.”3 Ms. Miulli stated that there
was no other useful evidence from the other swabs taken during the sexual assault
forensic examination. The serologist then sent the anal swab for DNA analysis
along with swabs from the victim and Lee for comparison.
Ms. Christina Tran, an expert in forensic DNA analysis, tested the swabs
and reported results for two different cell types: epithelial cells and sperm cells.
Ms. Tran testified that the epithelial fraction of the DNA from the anal swab was
consistent with the victim’s DNA. Lee was excluded as a contributor to this portion
of the sample.4 With respect to the sperm fraction, the DNA was again consistent
with the victim, and Lee was again excluded as a contributor to the DNA profile
that Ms. Tran obtained. She stated that she found no male contributor for either of
the two samples. When questioned about this discrepancy—i.e. how the tests could
indicate a female contributor to sperm DNA—Ms. Tran said that it was possible
there was so much epithelial DNA from the victim in the sample that it masked any
other DNA.
1
SAFE is an acronym for sexual assault forensic examination—a type of forensic
examination that collects potential biological evidence on the victim’s body. SAFE
3
nurses also document any injuries and bruises that the victim may have
experienced.
2
Preliminary analysis of the vaginal swab indicated the presence of seminal fluid;
however, when Ms. Miulli conducted further testing, neither sperm nor seminal
fluid was found in the sample.
3
Nurse Dendy testified that D.F. had bathed, defecated, and wiped several times
between the date of the incident and date of the SAFE examination.
Ms. Tran described the DNA profile terminology as follows: “Included means that
it’s possible [a person] could have contributed to the sample. Excluded means that
[a person] could not have contributed to that sample. . . . When you say inclusion
or exclusion it’s based off of the DNA profile that we obtained for that particular
sample.”
4
ECF 8-1, at 77–80.
At the close of the State’s case Petitioner moved for judgment of acquittal on count two,
second-degree rape, which was granted. ECF 8-1, at 80. The jury returned a verdict of guilty on
all remaining charges. ECF 8-1, at 239. On August 8, 2014, the court sentenced3 Petitioner to one
hundred twenty-five (125) years of imprisonment.4 ECF 29-3, at 9–10.
3
The sentencing court originally mistakenly sentenced Petitioner on six counts of second-degree
sex offense, not five, and on three counts of third-degree sex-offense, not four. ECF 8-1, at 21–
22. On September 4, 2014, the court issued an order correcting the sentence. Id. The total
aggregate sentence imposed was not affected by this error. Id.
4
As described by the Appellate Court:
The court sentenced Lee as follows:
Count 1:
Sex abuse of a minor: 25 years
Counts 3-7: Second-degree sex offense: 20 years, consecutive
Counts 8-11: Third-degree sex offense: merged with Counts 3,4,5,6 and 7
Count 12:
Sodomy: 10 years, concurrent to Count 3
Count 13:
Fourth-degree sex offense: merged with Counts 3,4,5,6 and
7
Count 14:
Second-degree assault: merged with Counts 3,4,5,6 and 7
ECF 8-1, at 80.
4
B. Direct Appeal
Petitioner filed a direct appeal to the Appellate Court , in which he asserted four errors: (1)
that the trial court erred in allowing the state to misrepresent the expert testimony concerning DNA
evidence; (2) the second degree sex offense convictions based on anal and vaginal digital
penetration should be vacated because they are unlawful under the instructions given by the court;
(3) the trial court erred in sentencing because the conviction for sodomy merges into the conviction
for second degree sex offense for anal intercourse; and (4) the trial court erred in limiting the
defense’s cross-examination of the victim’s mother about a prior occurrence of sexual abuse of
D.F. ECF 8-1, at 76.
On January 19, 2016, the Appellate Court vacated the sentence for sodomy as it merged
with the second-degree sex offense but affirmed the convictions and sentence in all other respects.
Id. at 75–95. On the first question, relating to the prosecutor’s characterization of the DNA
evidence in closing,5 the Appellate Court held the circuit court did not abuse its discretion in
overruling Petitioner’s objection at trial because the “prosecutor accurately summarized the DNA
expert’s testimony and argued a reasonable inference based on other testimony at the trial.” ECF
8-1, at 85. On the second question, the Appellate Court held that because the Petitioner did not
move for judgment of acquittal on the second- and third-degree sex offenses, and because he did
not object to the verdict sheet given to the jury or object to the verdicts when returned by the jury,
he had failed to preserve his claim for review. ECF 8-1, at 87 (noting also that Petitioner did not
ask the Appellate Court to engage in plain error review). Finally, on Petitioner’s final issue, the
5
In closing, when discussing the DNA analysis of the sperm sample, the prosecutor said that
“[t]here was too much of [D.F.]’s DNA on that profile or on that sample I should say, to determine
whose DNA it was. It’s not that because it wasn’t [the Petitioner’s], [Ms. Tran] couldn’t determine
who it was.” ECF 8-1, at 85.
5
Appellate Court held the circuit court did not abuse its discretion by restricting cross examination
of the victim’s mother about an alleged prior assault the victim suffered prior to the incident in this
case because the trial court properly held the line of questioning was barred by Maryland’s rape
shield law. ECF 8-1, at 89–95.
Petitioner did not seek further review with the Supreme Court of Maryland due to what
Petitioner previously alleged was a failure on the part of his appellate counsel to inform him that
Petitioner had lost his appeal. See ECF 8-1, at 139 (indicating in a letter from the Office of the
Public Defender that Petitioner’s counsel neglected to inform Petitioner of the Appellate Court
decision in time to appeal, but notifying Petitioner he could file a belated writ or he could indicate
this error in his post-conviction petition).
C. State Post-Conviction Proceedings
On November 21, 2016, Petitioner filed a self-represented petition for post-conviction
relief in the Circuit Court for Prince George’s County pursuant to the Maryland Uniform PostConviction Procedure Act, Md. Code Ann., Crim. Proc. (“CP”) §§ 7-101 to 7-204. ECF 8-1, at
97–100. He raised three claims: (1) “ineffective assistance of counsel [for] failure to object to
instructions”; (2) “failure to properly argue a[] particularized motion for judgment of acquittal”;
and (3) “prosecutorial misconduct [related to] closing arguments.” ECF 8-1, at 97–99.
On December 27, 2019, Petitioner filed a supplemental petition for post-conviction relief,
raising seven additional issues. See ECF 8-1, at 101–26. In that supplement he argued: (1) the
State failed to prove “every fact necessary to constitute the crime”; (2) his right to a speedy trial
was denied; (3) ineffective assistance of pre-trial counsel, trial counsel, and appellate counsel; (4)
he was denied due process; (5) the DNA evidence was insufficient to sustain a conviction because
he was excluded as a contributor of the sperm sample; (6) prosecutorial misconduct for showing
6
enlarged photographs during closing argument; and (7) ineffective assistance of counsel for failure
to effectively cross examine the witnesses and failure to argue that the State did not meet its burden
of proof and that the Court denied him a fair trial by limiting inquiry on cross of the victim’s
mother concerning prior sexual assault of the victim. Id. at 101–26.
On April 24, 2019, Petitioner, through appointed counsel, Ms. Judith Jones,6 filed a second
supplemental petition. Id. at 139–59. In this petition, Petitioner asserted three claims: “(1)
Ineffective assistance of counsel for failure to object to the jury instructions for second- and thirddegree sex offenses, (2) Ineffective assistance of counsel for failure to file a motion for
modification of sentence, and (3) Ineffective assistance of counsel for failure to file a
motion/application for review of sentence by a three-judge panel.” ECF 8-1, at 151–59.
On December 9, 2019, Petitioner filed a third supplement on his own behalf in which he
included additional issues related, in part, to his post-conviction counsel. ECF 8-1, at 163–70.
These included: (1) Petitioner’s Sixth Amendment right to a fair and speedy trial was denied and
the Hicks rule was violated based on the correct date of the first entry of appearance of counsel;
(2) wrongful conviction based on insufficiency of the DNA evidence; (3) delay in post-conviction
proceedings, including post-conviction counsel’s delay in pursuing relief on Petitioner’s behalf;
and (4) ineffective assistance of post-conviction counsel. Id.
The post-conviction court held a hearing on December 3, 2020. ECF 17-2. Between the
pro se and counseled pleadings, Petitioner raised numerous claims. The presiding judge attempted
to clarify the issues that Petitioner intended the post-conviction court to adjudicate at the hearing.
Id. at 10–16. Additionally, before beginning the proceeding, Petitioner was asked if he wished to
Petitioner’s post-conviction counsel, Ms. Judith Jones, and trial counsel, Ms. Debra Jones, share
the same last name. To avoid confusion the Court will refer to Petitioner’s counsel as either “trial
counsel,” “post-conviction counsel” or Ms. Jones when the context makes the meaning clear.
6
7
continue being represented by his post-conviction counsel.7 Id. at 4–8. Petitioner stated that he
wished to proceed with his post-conviction counsel because he agreed with her on the issues she
wanted to raise, but Petitioner disagreed with post-conviction counsel’s position on three issues
and Petitioner wanted to be able to raise those issues on his own. Id. The judge indicated that
Petitioner would not be able to be represented by post-conviction counsel for some issues and to
represent himself for other issues, and ultimately four issues were agreed upon and Petitioner was
allowed to place some additional comments on the record. ECF 17-2, at 5–8.
The four allegations at issue were: (1) trial counsel was ineffective by failing to move for
dismissal on the basis of a Hicks date violation; (2) petitioner was wrongfully convicted because
the prosecutor engaged in misconduct by misrepresenting DNA evidence during closing argument;
(3) trial counsel was ineffective by failing to object to incorrect jury instructions; and (4) trial
counsel was ineffective by failing to file various post-trial motions. ECF 8-1, at 185–86. The
Circuit Court stated that “[a]ll other allegations of error were expressly abandoned by Petitioner at
the post-conviction hearing.” Id. at 186. Ultimately, the Circuit Court denied all of Petitioner’s
post-conviction claims. Id. at 185–204.
On April 20, 2021, Petitioner’s post-conviction counsel filed an application for leave to
appeal the denial of his petition, including a single claim regarding ineffective assistance of
counsel for failure to object to the jury instructions for second- and third-degree sex offenses. Id.
at 205–18. Petitioner also filed a pro se application for leave to appeal, adding the claims for
ineffective assistance of counsel for failure to file a motion to dismiss under the Hicks rule,
prosecutorial misconduct for misrepresenting the DNA evidence during closing argument,
7
Additionally, Petitioner waived his claims of ineffective assistance of post-conviction counsel
when he testified. See ECF 17-2, at 25.
8
wrongful conviction based on DNA evidence, and ineffective assistance of counsel against pretrial and trial counsel, and his post-conviction counsel, and abuse of discretion by the trial court
for limiting cross examination of the victim’s mother. Id. at 241–52. On December 16, 2021, the
Appellate Court summarily denied Petitioner’s Application for Leave to Appeal. ECF 17-1, at 3–
5. When the Appellate Court summarily denies a post-conviction petitioner’s application for leave
to appeal, no further appeal may be pursued in the Supreme Court of Maryland. See Mahai v.
State, 255 A.3d 1050, 1053 (Md. 2021) (holding Supreme Court of Maryland does not have
jurisdiction to review Appellate Court’s discretionary denial of post-conviction application for
leave to appeal post-conviction proceeding pursuant to CJP § 12-202).
On July 26, 2021, Petitioner filed the present petition for habeas relief. ECF 1. After the
State submitted its limited answer and amended answer, ECFs 7, 17, Petitioner submitted his
response in which he asserted various new arguments, including: (1) that he is of Moorish
citizenship and did not consent to charges being brought against him, ECF 19, at 2; (2) that the
victim was not credible, id. at 4; (3) that his trial counsel was ineffective for failing to investigate
and consult experts or professionals with knowledge of the victim’s mental health history, id.; and
(4) that he was under duress during the post-conviction hearing and that he was “instructed at this
hearing that [he] could not” raise all of his issues. Id., at 12–13.
II.
LEGAL STANDARDS
A. Petitions for a Writ of Habeas Corpus
A federal petition for a 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) (2018). The federal habeas statute
sets forth a highly deferential standard for evaluating state court rulings, under which state court
decisions are to “be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005); see
9
Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997). A federal court may not grant a writ of habeas
corpus unless the state court’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 United States Supreme Court; 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 court adjudication is contrary to clearly established federal law under
§ 2254(d) when 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’s].”
Williams v. Taylor, 529 U.S. 362, 405 (2000) (citation omitted). “Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413.
“[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 (2010) (quoting Williams, 529 U.S.
at 411). The state court’s application of federal law must be “objectively unreasonable.” Id.
(quoting Williams, 529 U.S. at 409). Furthermore, 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 (2010) (citation
omitted). The fact that “reasonable minds reviewing the record might disagree about the finding
in question” is not enough to deem a state court’s factual determination unreasonable. Id.
B. Ineffective Assistance of Counsel
10
The Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his
defense.” U.S. Const. amend. VI. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court held that to prevail on a claim of ineffective assistance of counsel, a petitioner must establish
two prongs: deficient performance and prejudice. Id. at 692. First, a petitioner must show that
counsel’s performance was deficient in that counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
Deficiency exists when “counsel’s representation fell below an objective standard of
reasonableness” under “prevailing professional norms.” Id. at 688; see Wiggins v. Smith, 539 U.S.
510, 521 (2003). “Judicial scrutiny of counsel’s performance must be highly deferential” and
apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. “A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id.
Second, the petitioner must show prejudice in that the deficient performance by counsel
consisted of errors that “were so serious as to deprive the defendant of a fair trial” with a reliable
result. Id. at 687. To establish such prejudice, 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. A “reasonable probability” is one “sufficient to undermine confidence
in the outcome.” Id. A petitioner is not entitled to post-conviction relief based on prejudice where
the record establishes that it is “not reasonably likely that [the alleged error] would have made any
11
difference in light of all the other evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 390
(2010).
III.
DISCUSSION
Petitioner asserts eight grounds for relief in his pro se petition: (1) ineffective assistance of
counsel for failure to file a motion to dismiss based on the Hicks rule; (2) insufficient evidence to
sustain his conviction based on the DNA and serology evidence; (3) prosecutorial misconduct
during closing argument for misrepresenting the DNA evidence testimony; (4) error by the trial
court in instructing the jury incorrectly on second- and third-degree sex offenses; (5) ineffective
assistance of counsel for failure to object to the jury instructions on second- and third-degree sex
offenses; (6) error by the trial court in limiting the defense’s cross-examination of the victim’s
mother; (7) ineffective assistance of counsel for failure to file a motion for modification of sentence
and a motion for review of sentence by a three-judge panel; and (8) ineffective assistance of postconviction counsel. ECF 1, at 2–16. Under § 2254, “each ground for relief [is] an independent
claim,” and all claims in a petition must be exhausted. Samples v. Ballard, 860 F.3d 266, 274 (4th
Cir. 2017).
In Petitioner’s Reply he seeks to include additional claims: (9) that he is of Moorish
citizenship and did not consent to charges being brought against him, ECF 19, at 2; (10) that the
victim was not credible, id. at 4; (11) that his trial counsel was ineffective for failing to investigate
and consult experts or professionals with knowledge of the victim’s mental health history, id.; and
(12) that he was under duress during the post-conviction hearing and that he was “instructed at this
hearing that [he] could not” raise all his issues. Id. at 12–13.
The Court is mindful of the well-established maxim that pro se pleadings are “liberally
construed and held to a less stringent standard than pleadings drafted by lawyers.” Conway v.
12
Kijakazi, Civ. No. 1:21-00502-JRR, 2023 WL 5153641, at *4 (D. Md. Aug. 10, 2023) (citation
omitted); Erickson v. Paradus, 551 U.S. 89, 94 (2007)). “Liberal construction means that the court
will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts
available.” Gray v. Wash. Metro. Area Transit Auth., Civ. No. DKC 16-1792, 2017 WL 511910,
at *2 (D. Md. Feb. 8, 2017) (citing Barnett v. Hargett, 174 F.3d 1128, 1132 (10th Cir. 1999)),
aff’d, 693 F. App’x 230 (4th Cir. 2017). However, “the requirement of liberal construction does
not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a
claim currently cognizable in a federal district court.” Miller v. Jack, Civ. No. 1:06CV64, 2007
WL 2050409, at *3 (N.D. W. Va. July 12, 2007) (citing Weller v. Dep’t of Social Servs., 901 F.2d
387 (4th Cir. 1990)), aff’d, 261 F. App’x 540 (4th Cir. 2008).
A. Procedural Default
As a threshold matter, Petitioners’ claims raised for the first time in reply are beyond this
Court’s review. The facts of these claims were known to Petitioner at the time he filed his petition
for a writ of habeas corpus, and petitioner neither sought nor was granted leave to amend his
original petition to add these claims. See Loc. R. 112.1(a) (D. Md. 2023) (“Petitions for habeas
corpus filed pursuant to 28 U.S.C. § 2254 and motions filed pursuant to 28 U.S.C. § 2255 shall be
governed, respectively, by the Rules Governing § 2254 Cases in the United States District Courts
and the Rules Governing § 2255 Proceedings in the United States District Courts”); Rules
Governing § 2254 Cases in the United States District Courts and the Rules Governing § 2255
Proceedings in the United States District Courts, Rule 1 (c)(1) (“The petition must . . . specify all
the grounds for relief available to the petitioner. . . .”).
Even if this court were to interpret Petitioner’s reply as an attempt to file a second or
successive federal habeas petition, Petitioner failed to “obtain an order from the appropriate court
13
of appeals authorizing the district court to consider the petition as required by 28 U.S.C. §
2244(b)(3) and (4).” Rules Governing § 2254 Cases in the United States District Courts and the
Rules Governing § 2255 Proceedings in the United States District Courts, Rule 9. Therefore, the
Court concludes that Grounds Nine, Ten, Eleven, and Twelve are procedurally defaulted.
As to Petitioner’s original habeas claims, Respondent argues that Grounds Two, Three,
Four, and Six are procedurally defaulted. ECF 17, at 60–64, 67–73, 74–76, 78–85. For the reasons
indicated below, the Court concludes that Grounds Four and Six are procedurally defaulted and
Grounds Two and Three are not.
A petitioner seeking habeas relief in federal court generally must first exhaust the remedies
available in state court. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
This exhaustion requirement is satisfied by seeking review of the claim in the highest state court
with jurisdiction to consider the claim. See 28 U.S.C. § 2254(c). For a person convicted of a
criminal offense in Maryland, exhaustion may be accomplished either on direct appeal or in postconviction proceedings. To exhaust a claim on direct appeal, a defendant must assert the claim in
an appeal to the Appellate Court of Maryland and then to the Maryland Supreme Court by way of
a petition for a writ of certiorari. See Md. Code Ann., Cts. & Jud. Proc. (“CJP”) §§ 12-201, 12301. To exhaust a claim through state post-conviction proceedings, a defendant must assert the
claim in a petition for post-conviction relief filed in the circuit court in which the defendant was
convicted within 10 years of the date of sentencing. See CP §§ 7-101 to 7-103. After a decision
on a post-conviction petition, further review is available through an application for leave to appeal
filed with the Appellate Court. Id. § 7-109. If the Appellate Court denies the application, there is
no further review available, and the claim is exhausted. CJP § 12-202.
14
Respondent argues that Grounds Two and Three are procedurally defaulted because
Petitioner dismissed these claims at the post-conviction hearing. ECF 17, at 58, 67. The record is
unclear on this point. At the start of the post-conviction hearing, the Court appeared confused by
which issues were before it. ECF 29-4, at 4–7. The confusion stemmed from the disagreement
between Petitioner and his post-conviction counsel on which claims to raise in the proceeding. See
ECF 29-4, at 5–7. In his pro se supplement to his post-conviction counsel’s supplemental petition,
Petitioner claimed that his post-conviction counsel was ineffective for failing to raise all the issues
Petitioner wished to be addressed. See ECF 8-1, at 164–70.
However, at the hearing, Petitioner indicated that he was satisfied with his post-conviction
counsel’s services overall and still desired that his post-conviction counsel raise the limited issues
post-conviction counsel felt were meritorious. ECF 29-4, at 4–5. He also stated, unequivocally,
that he still desired that his post-conviction counsel continue to represent him in the postconviction proceeding.8 Id. Petitioner also expressed a desire to raise a few issues on his own.
Id. at 7. Ultimately, Petitioner elected to have his post-conviction counsel argue on his behalf and
to also leave “some additional comments . . . on the record[.]” Id. at 25–26. When his counsel
gave him the opportunity to say whatever more he wished to say during his direct examination,
Petitioner added that he challenged the sufficiency of the evidence supporting his conviction
because the DNA results excluded him as the contributor of the sperm sample (Ground Two), and
also raised his prosecutorial misconduct claim alleging mischaracterization of the DNA evidence
in closing argument (Ground Three). See ECF 29-4, at 37–40.
8
Before his direct examination, Petitioner expressly disclaimed that he was continuing with any
claim against his post-conviction counsel, Ms. Judith Jones. ECF 29-4, at 24.
15
The post-conviction court understood that all but four claims were expressly abandoned by
Petitioner. ECF 8-1, at 185–86 (highlighting the four preserved issues as: (1) “Trial counsel
rendered ineffective assistance by failing to move to dismiss based on the Petitioner’s trial being
delayed in violation of his Hicks[] date”; (2) “Petitioner was wrongfully convicted on the basis of
the DNA evidence as there was prosecutorial misconduct in mischaracterizing the expert
testimony”; (3) “Trial counsel rendered ineffective assistance by failing to object to incorrect jury
instructions”; and (4) Trial counsel rendered ineffective assistance by failing to file a motion for
modification of sentence and/or review of sentence by a three-judge panel”). Because the record
is nebulous as to dismissal of Grounds Two and Three,9 the Court declines to find that these
grounds are procedurally defaulted based upon the dismissal of them at the post-conviction
hearing.
Next, in Ground Four Petitioner alleges trial error. ECF 1, at 9–11. Specifically, Petitioner
argues that “several of the courts[’] convictions were directly contrary to the courts[’] binding
instructions on the law.” ECF 1, at 9–10. Respondent argues that Ground Four is procedurally
defaulted because the Appellate Court dismissed Petitioner’s Ground Four argument on a state
procedural rule. ECF 17, at 74–76. A procedural default may occur where a state court declines
“to consider the merits [of a claim] on the basis of an adequate and independent state procedural
9
Respondent also contends that Ground Three, alleging prosecutorial misconduct during closing
argument, is procedurally defaulted because Petitioner did not file a petition for a writ of certiorari
with the Supreme Court of Maryland on direct appeal. ECF 17, at 72. However, Petitioner claimed
on direct appeal that the trial court erred by failing to grant his counsel’s objection to the
prosecutor’s closing argument. ECF 8-1, at 34. Here, Petitioner claims that the prosecutor
engaged in misconduct during the closing argument, which was raised as a separate claim in postconviction proceedings. ECF 8-1, at 109–12. Petitioner exhausted his state remedies by including
this claim in his application for leave to appeal. Id. at 241–52. Accordingly, the Court will address
Ground Three on the merits. However, to the extent Petitioner requests that this Court review the
trial court’s decision to overrule the objection to the prosecutor’s closing statement, ECF 1, at 13,
that argument is procedurally defaulted, as Respondent contends. ECF 17, at 67–69.
16
rule.” Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999); see also Gray v. Zook, 806 F.3d 783,
798 (4th Cir. 2015) (“When a petitioner fails to comply with state procedural rules and a state court
dismisses a claim on those grounds, the claim is procedurally defaulted.”). As the United States
Court of Appeals for the Fourth Circuit has explained, “if a state court clearly and expressly bases
its dismissal of a habeas petitioner’s claim on a state procedural rule, and that procedural rule
provides an independent and adequate ground for the dismissal, the habeas petitioner has
procedurally defaulted his federal habeas claim.” Breard v. Pruett, 134 F.3d 615, 619 (4th Cir.
1998) (citing Coleman, 501 U.S. at 731–32).
Here, the Appellate Court concluded that Petitioner’s trial counsel failed to object
contemporaneously at trial to the jury instructions on second- and third-degree sex offense and,
thus, waived any trial court error for appeal. ECF 8-1, at 85–87; see id. at 87 n.8 (noting Petitioner
did not ask the Court to engage in plain error review). Petitioner did not appeal the Appellate
Court’s preservation holding to the Supreme Court of Maryland. Because the Appellate Court
clearly and expressly dismissed Petitioner’s Ground Four claim for relief on a state ground and
because Petitioner did not exhaust the issue on direct appeal by appealing the Appellate Court’s
preservation ruling to the Supreme Court of Maryland, it is procedurally defaulted.
Next, Respondent argues that Ground Six is procedurally defaulted because Petitioner
failed to properly raise these claims with the state courts. ECF 17, at 61, 79. Ground Six alleges
trial error as well. ECF 1, at 12. Specifically, Petitioner alleges the “trial court deprived
[Petitioner] a fair trial by unduly limiting [his] attorney Ms. [Debra] Jones[’] enquiry on cross
examination of the alleged victim’s mother.” Id.
When a petitioner has failed to present a claim to the highest state court with jurisdiction
to hear it, whether by failing to raise the claim on direct appeal or in post-conviction proceedings,
17
or by failing to note a timely appeal to a state appellate court reviewing either, the procedural
default doctrine applies. See Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (declining
to review a claim not raised in a petition for a writ of certiorari to the relevant state Supreme Court);
Coleman v. Thompson, 501 U.S. 722, 749–50 (1991) (failure to note a timely appeal); Murray v.
Carrier, 477 U.S. 478, 489–91 (1986) (failure to raise a claim on direct appeal); Murch v. Mottram,
409 U.S. 41, 46 (1972) (per curiam) (failure to raise a claim during post-conviction proceedings).
As relevant here, a procedural default occurs when a habeas petitioner fails to exhaust such
available state remedies and “the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims procedurally
barred.” Breard, 134 F.3d at 619 (quoting Coleman, 501 U.S. at 735 n.1).
Ground Six, alleging the trial court erred in limiting the cross-examination of the victim’s
mother, was raised in Petitioner’s direct appeal and “finally litigated” there. ECF 8-1, at 89–95.
Petitioner failed to seek a petition for a writ of certiorari with the Supreme Court of Maryland and,
therefore, failed to exhaust this claim via direct appeal. Because Petitioner had “finally litigated”
Ground Six on direct appeal, Petitioner was barred from raising this claim of error in the postconviction proceeding. Greco v. State, 48 A.3d 816, 824 (Md. 2012) (noting Maryland’s Uniform
Post-Conviction Procedure Act “bars relief on the basis of allegations of error that have been
‘finally litigated’”). “A claim of error is considered finally litigated when [the Supreme Court of
Maryland] or the [Appellate Court] has rendered a decision on the merits thereof either on direct
appeal or upon consideration of an application for leave to appeal filed pursuant to the Post
Conviction Procedure Act.” Hunt v. State, 691 A.2d 1255, 1276 (Md. 2023); CP § 7-106(c). In
this case, Petitioner’s Ground Six became “finally litigated” when the Appellate Court issued its
18
unpublished decision on direct appeal; yet, because Petitioner failed to file a timely writ of
certiorari, Petitioner’s unexhausted claim is procedurally defaulted.
Petitioner, nevertheless, requests that any procedural default be excused. ECF 19. If a
procedural default has occurred, a federal court may not address the merits of a state prisoner’s
habeas claim unless the petitioner can show (1) both cause for the default and prejudice that would
result from failing to consider the claim on the merits; or (2) that the failure to consider the claim
on the merits would result in a miscarriage of justice, specifically, the conviction of one who is
actually innocent. See Murray, 477 U.S. at 495–96; Breard, 134 F.3d at 620. Petitioner attempts
to establish excuse under both exceptions to the procedural default doctrine.
Under the first exception, “cause” consists of “some objective factor external to the defense
[that] impeded counsel’s efforts to raise the claim in state court at the appropriate time.” Breard,
134 F.3d at 620 (quoting Murray, 477 U.S. at 488). To demonstrate prejudice, the petitioner must
show “not merely that the errors at his trial created a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see Murray, 477 U.S. at 494.
Petitioner argues his appellate counsel’s failure to timely apprise him of the Appellate
Court’s January 19, 2016, decision on direct appeal “caused” him to not seek a writ of certiorari
with the Supreme Court of Maryland. ECF 19, at 9. Petitioner attaches a letter his appellate
counsel wrote to him, apologizing for the error and advising him to contact the post-conviction
division of the public defender’s office for assistance with filing a belated petition for a writ of
certiorari with the Supreme Court of Maryland. ECF 19-1, at 2–3. Appellate counsel also
indicated that counsel’s error could be included in a post-conviction petition and indicated a
willingness to testify at the hearing on Petitioner’s behalf. Id. Petitioner also appears to fault his
19
appellate counsel for failing to continue to represent him by filing the petition for a writ of
certiorari. ECF 19, at 9.
In some circumstances, ineffective assistance of appellate counsel may excuse a procedural
default. However, “the exhaustion doctrine . . . generally requires that a claim of ineffective
assistance be presented to the state courts as an independent claim before it may be used to
establish cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 488–89 (1986)
(holding habeas petitioner’s claim was procedurally defaulted when his counsel mistakenly
omitted a particular claim from his petition for appeal); see also Edwards v. Carpenter, 529 U.S.
446, 453 (2000). “So long as a defendant is represented by counsel whose performance is not
constitutionally ineffective under the standard established in Strickland v. Washington . . . [the
Supreme Court] discern[s] no inequity in requiring him to bear the risk of attorney error that results
in a procedural default.” Murray, 477 U.S. at 488.
Above, the Court discussed the lack of clarity surrounding Petitioner’s waiver or
preservation of Grounds Two and Three at the post-conviction hearing; but that confusion notably
is not present as it relates to Petitioner’s decision to waive any argument about the ineffectiveness
of his appellate counsel. Petitioner himself never raised the issue of appellate counsel during the
hearing, see ECF 17-2, at 1–18, 26–27. Petitioner consented to proceeding on four issues, none of
which included the ineffectiveness of appellate counsel, and even when he was prompted to
provide comments on the record during this direct examination, Petitioner spoke exclusively about
the sufficiency of the DNA evidence, prosecutorial misconduct, and the Hicks date. See ECF 172, at 35–42.
Furthermore, in Petitioner’s application for leave to appeal from the post-conviction court’s
denial of post-conviction relief, it became even clearer that Petitioner had waived any claim of
20
ineffective assistance of counsel against appellate counsel, Mr. Kennedy and Mr. Saccenti. ECF
8-1, at 241–51. In Petitioner’s supplemental application for leave to appeal, under a section
entitled “Ineffective Assistance of Counsel,” Petitioner specifically identified Mr. Denton (pretrial counsel), Ms. Debra Jones (trial counsel), and Ms. Judith Jones (post-conviction counsel).
ECF 8-1, at 248. Petitioner did not name Mr. Kennedy or Mr. Saccenti, and made no mention of
appellate counsel error, indicating he affirmatively waived any such claim. Id. Thus, Petitioner’s
appellate counsel’s error cannot serve as an excuse to procedural default, when there is no finding
that appellate counsel was ineffective and when Petitioner clearly waived the issue, thereby
depriving any state court of the opportunity to consider it.
Finally, Petitioner’s claim that his appellate counsel failed to file the petition for a writ of
certiorari on his behalf cannot serve as cause to excuse his default because a criminal defendant
“has no [constitutional] right to counsel beyond his first appeal . . . .” Coleman v. Thompson, 501
U.S. 722, 756–57 (1991);10 see Davila v. Davis, 137 S. Ct. 2058, 2062 (2017) (“An attorney error
does not qualify as ‘cause’ . . . unless [it] amounted to constitutionally ineffective assistance of
counsel.”); CJP § 12-201 (stating the Supreme Court of Maryland “may issue the writ of certiorari”
(emphasis added)); Vonoppenfeld v. State, 454 A.2d 402, 405 (Md. App. 1983) (“The writ [of
certiorari] then, is not a writ of right but issues if at all as a discretionary exercise.”); Walston v.
Sun Cab Co., Inc., 298 A.2d 391, 396 (Md. 1973) (“[T]he General Assembly intended that the
certiorari procedure was to provide for a discretionary appeal.”).
10
Petitioner does not argue that the ineffectiveness of his trial counsel should excuse the procedural
default of Ground Four, claiming that the trial court erred in improperly instructing the jury on
certain second- and third-degree sex offenses. If Petitioner had made this argument, the Court
would have ultimately concluded that Ground Four lacked merit for the same reasons as Ground
Five.
21
Next, Petitioner argues any procedural default should be excused as he is “actually
innocent.” ECF 19, at 3. Under the second exception, a petitioner may obtain review of
procedurally defaulted claims if the case “falls within the ‘narrow class of cases . . . implicating a
fundamental miscarriage of justice.’” Schlup v. Delo, 513 U.S. 298, 314–15 (1995) (quoting
McCleskey v. Zant, 499 U.S. 467, 494 (1991)). Such cases are generally limited to those for which
the petitioner can show that “a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Murray, 477 U.S. at 496.
In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court recognized that in certain
exceptional cases, a compelling showing of actual innocence would enable a federal court to
consider the merits of a petitioner’s otherwise defaulted claims. Id. at 324–25. In such a case, the
Court held, new evidence may “establish sufficient doubt about [the petitioner’s] guilt to justify
the conclusion that his execution would be a miscarriage of justice unless his conviction was the
product of a fair trial.” Id. at 316 (emphasis in original). Petitioner’s is not among these
exceptional cases.
New reliable evidence of actual innocence creates a gateway for a habeas petitioner to
present procedurally defaulted federal constitutional claims by allowing an equitable exception to
the limitations provisions of 28 U.S.C. § 2244(d)(1) so as to prevent a fundamental miscarriage of
justice. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). A petitioner meets the threshold
requirement if 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.” Schlup, 513 U.S. at
329. “Without any new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred claim.” Id. at 316.
22
Petitioner fails to meet the stringent requirements for the actual innocence gateway
exception to procedural default. He offers no new evidence of his actual innocence. Petitioner
argues that the DNA evidence offered at his trial proves his innocence; however, that evidence is
not new and, therefore, cannot support a claim of actual innocence. See House v. Bell, 547 U.S.
518, 537 (2006) (finding that viable actual innocence claim must be supported by “new reliable
evidence . . . that was not presented at trial.”). More importantly, an argument as to the weight of
that evidence was squarely presented to the jury at Petitioner’s trial. Though he questions the
soundness of the jury’s evaluation of that evidence, such a challenge does not constitute grounds
to excuse default. Since Petitioner fails to establish a viable excuse for the procedural default of
Grounds Four or Six, the Court is barred from reaching the merits of these claims.
B. Merits Review
1.
Ground One
In Ground One, Petitioner contends that his pre-trial counsel11 provided ineffective
assistance by failing to move to dismiss the charges based on the “Hicks Rule” which requires trial
to be held within 180 days after the appearance of counsel or the defendant’s initial appearance,
absent postponement for good cause. See CP § 6-103; Md. Rule 4-271 (“Hicks rule”); State v.
Hicks, 403 A.2d 356, 360 (Md. 1979) (holding that dismissal is ordinarily required for violation
of the time requirement); see also Jackson v. State, 300 A.3d 169, 174 (Md. 2023) (precluding
dismissal as a remedy for Hicks violation where counsel for defendant expressly sought trial date
exceeding the Hicks date).
11
Petitioner was not represented by the same counsel for pretrial and trial proceedings. ECF 8-1,
at 187, 202.
23
Petitioner raised Ground One in his post-conviction petition and in his pro se application
for leave to appeal, and therefore, this ground is exhausted and properly before the Court. ECF 81, at 103–104, 242–44. On January 16, 2014, Petitioner’s pre-trial counsel entered a plea of “not
criminally responsible.” ECF 8-1, at 7. The docket sheet notes on January 22, 2014, that a
competency evaluation had not been completed and that the Circuit Court found “good cause to
continue the case beyond the 180-day requirement of MD Rule 4-271.” Id. at 7–8. During postconviction proceedings, Petitioner argued that he did not consent to his pretrial counsel entering
the “not criminally responsible” plea and, therefore, no good cause should have been found to
continue the case beyond the Hicks date. See ECF 8-1, at 191–93. However, Petitioner did not
call his pre-trial counsel to testify at the hearing. Id. at 192. For this reason, and because of factual
inaccuracies in Petitioner’s testimony that called his memory into question, the post-conviction
court made a factual determination that Petitioner failed to prove he did not consent to the “not
criminally responsible” plea. ECF 8-1, at 194–95. Absent clear and convincing evidence to the
contrary, the post-conviction court’s factual findings are presumed correct. See 28 U.S.C. §
2254(e)(1). Petitioner has provided no evidence to counteract this presumption. ECF 1.
The post-conviction court also concluded, based on the docket entries, that the trial date
was reasonably continued beyond 180 days so that Petitioner’s competency could be properly
evaluated. ECF 8-1, at 192–93. The post-conviction court concluded that pretrial counsel did not
perform deficiently because the requirements of the Hicks rule were properly and timely met. ECF
8-1, at 193. This Court is bound to defer to the post-conviction court’s interpretation of the Hicks
rule. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691
(1975) (holding that a state court’s interpretation of state law binds a federal court sitting in habeas
corpus).
24
Petitioner fails to establish that his pre-trial counsel’s representation was deficient. The
post-conviction court’s rejection of this claim was reasonable and consistent with well-established
federal law. This claim does not warrant federal habeas relief and will be denied.
2.
Ground Two
In Ground Two, Petitioner argues the evidence was insufficient to sustain his conviction
for various sex offenses because the serology screening excluded him as the contributor of the
sperm sample. ECF 1, at 4–6. On this basis, Petitioner asserts that he was exonerated and is
actually innocent. Id.; see also ECF 19, at 3 (stating “the evidence ultimately exonerated the
defendant”).
“A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence
only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2
(2011) (per curiam). This is so because “it is the responsibility of the jury—not the court—to
decide what conclusions should be drawn from evidence admitted at trial.” Id.
Here, the Court cannot conclude that no rational trier of fact could have agreed with the
jury. While the sperm sample “excluded” Petitioner as the contributor, the sperm sample matched
the victim’s DNA, not another male contributor’s DNA. ECF 29-2, at 32. The DNA expert offered
a rationale to explain why a sperm cell would match a female child’s DNA: the presence of the
child’s DNA overwhelmed or masked the minimal amount of male DNA. ECF 29-2, at 33. A
rational jury could believe this, particularly given the breadth of other evidence supporting that a
sexual assault occurred.
The victim’s father’s testimony demonstrated that Petitioner had the opportunity to abuse
the victim, as Petitioner was alone with the victim in the living room from approximately 1:00
a.m. until 7:30 or 8:00 a.m., and Petitioner and the victim both slept on the living room sofa. ECF
25
29-1, at 62–63. The victim immediately reported the incident to her mother, who also testified to
what her daughter told her occurred. ECF 29-1, at 83. The victim herself testified and named
Petitioner as the one who engaged in cunniligus, analingus, anal penetration, and digital vaginal
penetration. ECF 29-1, at 105–119. Her account was corroborated not only by the presence of a
sperm cell, ECF 29-2, at 32, but also by the nurses who examined her and found swelling of the
labia and a tear in the rectum, both indicative of trauma. ECF 29-1, at 130–31.
A reasonable jury could find the victim credible and believe based upon the presence of
sperm, the physical signs of trauma, the victim’s immediate reporting of the incident to her mother,
the victim’s own testimony, and the opportunity Petitioner had to commit the offense that: (1) the
sexual abuse offenses occurred; and (2) Petitioner was the perpetrator. Petitioner’s Ground Two
is dismissed.
3.
Ground Three
In Ground Three, Petitioner contends that the prosecutor engaged in misconduct during her
closing argument by misrepresenting the DNA evidence.12 Petitioner raised Ground Three in his
petition for post-conviction relief. ECF 8-1, at 109–12. The post-conviction court denied the
claim, relying on the Appellate Court’s dismissal of the similar trial error raised on direct appeal.
Id. at 195–99. The post-conviction court ruled that this allegation of prosecutorial misconduct had
already been litigated on appeal and could not be raised again at post-conviction. ECF 8-1, at 197–
98.
Petitioner also argues the prosecutor’s use of a slideshow during closing argument was
prejudicial and intended to inflame the passions of the jurors. ECF 1, at 9. Petitioner does not
indicate what was shown in the slide show and this argument was not raised in either the direct
appeal or post-conviction appeal. It is therefore procedurally defaulted. See supra III.A.
12
26
On the second day of Petitioner’s trial, the state called forensic chemist, Christina Tran
(“Tran”), to testify. ECF 29-2, at 24–36. Tran testified that she conducted DNA testing on the
anal/perianal swabs from the victim’s sexual assault kit and compared them with swabs from the
victim and Petitioner. Id. at 31. The anal/perianal swab contained epithelial cells and sperm cells.
Id. at 32–33. The epithelial cells were consistent with the victim. Id. at 32. The sperm cells
yielded a DNA profile consistent with the victim, and the Petitioner was excluded as a possible
contributor for the sperm cells. Id. When asked how it was possible that the victim’s DNA was
consistent with the sperm cells, Tran testified that it was possible that the victim’s epithelial cells
were masking any possible male DNA that was present. Id. at 33. Tran further explained that
“during serology, sperm is noted” and that she performed a “differential extraction,” a method by
which she attempts to “separate sperm versus epithelia cells. It’s not 100 percent exact science.
It’s an attempt to separate sperm versus epithelia.” Id. at 34.
During closing argument, the prosecutor made an argument utilizing Tran’s testimony (to
which Defense counsel objected):
Let’s talk about not a contributor. You heard from Christina Tran. What did she
tell you? She told you, she had to exclude the Defendant, because she could not
get a male profile. She told you that females don’t make sperm. There was too
much of [the victim’s] DNA on that profile or on that sample I should say, to
determine whose DNA it was. That’s what she was trying to tell you. It’s not that
because it wasn’t him, she couldn't determine who it was.
Id. at 67. The Appellate Court (which the post-conviction court relied upon) concluded that the
prosecutor’s statements about the DNA evidence “accurately summarized the DNA expert’s
testimony and argued a reasonable inference based on other evidence at trial.” ECF 8-1, at 197.
The test for prosecutorial misconduct in the context of closing argument is “whether the
prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
27
DeChristoforo, 416 U.S. 637, 643 (1974)). In the Fourth Circuit, in order to meet that standard,
the remarks must have, in fact, been improper and must have prejudicially affected the defendant’s
substantial rights so as to have deprived him of a fair trial. United States v. Mitchell, 1 F.3d 235,
240 (4th Cir. 1993).
Prosecutors (and all attorneys) enjoy considerable latitude in presenting arguments to a
jury. Bates v. Lee, 308 F.3d 411, 422 (4th Cir. 2002). The adversary system allows a prosecutor
to prosecute vigorously and to “strike hard blows,” but not “foul ones.” Berger v. United States,
295 U.S. 78, 88 (1935).
The nature of Petitioner’s argument is a disagreement with the
prosecutor’s interpretation of the DNA expert’s testimony. Competing views of the evidence do
not amount to a deprivation of fundamental fairness. Because the prosecutor’s argument was not
improper, Petitioner’s prosecutorial misconduct claim fails.
The post-conviction court’s dismissal of Ground Three is neither contrary to nor an
unreasonable application of federal law. Ground Three is without merit and is dismissed.
4.
Ground Five
In Ground Five, Petitioner contends that his counsel was ineffective for failing to object to
the jury instructions for second- and third-degree sex offense. ECF 1, 11. Respondent argues that
Ground Five is without merit and should be dismissed. ECF 17, at 35–48.
On December 5, 2013, Petitioner was indicted on fourteen counts. ECF 8-1, at 17–20.
Among the charges were five counts of second-degree sex offense (Counts Three, Four, Five, Six,
and Seven), and four counts of third-degree sex offense (Counts Eight, Nine, Ten, and Eleven).13
13
The indictment does not specify which unlawful acts pertain to which count. The statutory
language defining a second-degree sexual offense prohibits a sexual act “in which an object or part
of an individual’s body penetrates, however slightly, into another individual’s genital opening or
anus.” Md. Code Criminal Law Article (“CL”) §§ 3-301(e)(1)(v), 3-306(a) (2002, 2012 Repl.
Vol.). The statutory language defining a third-degree sexual offense prohibits sexual contact,
28
On the second day of Petitioner’s jury trial, the trial judge read the instructions to the jury.
ECF 29-2, at 40–50. The instructions for second-degree sex offense, id. at 48, and third-degree
sex offense, id. at 48–49, were an incorrect statement of the law. After the instructions were read,
the prosecutor advised the trial judge that the instructions for second-degree sex offense omitted
digital penetration, but Petitioner’s counsel did not object and the instructions were not changed.
ECF 29-1, at 50–51.
Ultimately the jury instructions deviated from the jury verdict form. The instructions for
second-degree sex offense included the prohibited acts of fellatio, cunnilingus, analingus, and anal
penetration. Id. at 48. However, the corresponding section on the verdict form limited the number
of acts that qualified, and asked the jury:
5.) Do you find the Defendant Guilty or Not Guilty as to Second Degree Sex
Offense (Digital - Vagina)?
6.) Do you find the Defendant Guilty or Not Guilty as to Second Degree Sex
Offense (Digital - Anal)?
ECF 8-1, at 161. The jury checked “guilty” for both Counts Five and Six. ECF 8-1, at 239.
The instructions for third-degree sex offense defined the prohibited “sexual contact” as
“penetration, however slight, by any part of a person’s body, other than the penis, mouth, or tongue
into the genital or anal opening.” ECF 29-2, at 49. The corresponding section of the verdict form
limited the number of acts that qualified, excluding digital penetration, and asked the jury:
9.) Do you find the Defendant Guilty or Not Guilty as to Third Degree Sex Offense
(Cunnilingus)?
10.) Do you find the Defendant Guilty or Not Guilty as to Third Degree Sex Offense
(Analingus)?
ECF 8-1, at 161. The jury checked “guilty” for both Counts Nine and Ten. Id. at 239.
described as “an intentional touching of the victim’s or actor’s genital, anal, or other intimate area
for sexual arousal or gratification, or for the abuse of either party.” CL §§ 3-301(f)(1), 3-307(a)(3).
29
According to the instructions given, second-degree sex offense does not include digital
penetration, but Counts Five and Six were labeled “digital” on the verdict form. The correct
Maryland pattern jury instruction for second-degree sex offense includes the act of “unlawful
penetration,” which is defined (in pertinent part) as including “part of the person’s body.” MPJICr 4:29.6.
The instructions given to the jury for third-degree sex offense specifically excluded oral
sex, but Counts Nine and Ten were labeled “cunnilingus” and “analingus” on the verdict form.
The correct Maryland pattern jury instruction for third-degree sex offense defines “sexual contact”
as “intentional touching of . . . genital or anal area . . . for the purpose of sexual arousal or
gratification . . . .” MPJI-Cr 4:29.8.
Petitioner argued on direct appeal that his convictions for Counts Five, Six, Nine, and Ten
should be reversed, but the Appellate Court did not reach the issue because Petitioner’s trial
counsel did not object to the jury instructions. ECF 8-1, at 85–87. In his post-conviction
proceedings, like here, Petitioner argued that his counsel was ineffective for failing to object to the
jury instructions. Id. at 122–24, 151–54. The post-conviction court denied the claim, finding that
Petitioner’s counsel was not deficient for failing to object. Id. at 200–202. Although Petitioner’s
trial counsel did not testify at the post-conviction hearing, the post-conviction court surmised that
it was sound strategy not to object to the jury instructions because “the jury instructions as read
were favorable to [Petitioner]” and they may have been to his benefit. Id. at 201. The postconviction court also concluded that Petitioner failed to show that he was prejudiced because the
instructions made it less likely that he would be convicted. Id.
The Supreme Court held in United States v. Gaudin that “[t]he Constitution gives a criminal
defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element
30
of the crime with which he is charged.” 515 U.S. 506, 522–23 (1995). Failure to properly instruct
the jury on each element of the charged offense violates the Sixth Amendment’s jury trial
guarantee. Neder v. United States, 527 U.S. 1, 12 (1999). The second-degree sex offense jury
instructions did not include a description of digital penetration. The third-degree sex offense jury
instructions specifically excluded oral sex. Yet, Petitioner was convicted of two counts of seconddegree offenses that were described as digital penetration on the verdict sheet and two counts of
third-degree sex offenses that were described as oral sex on the verdict sheet. This would––on its
face––appear to be error.
But the Supreme Court has also said that this type of instructional error is subject to
harmless-error review. As the Court explained in Neder, it has “often applied harmless-error
analysis to cases involving improper instructions on a single element of the offense.” 527 U.S. 1,
9. Harmless error analysis is applicable even where the trial court completely fails to instruct the
jury on a necessary element of the offense. See id. at 9–15. Where “the omitted element was
uncontested and supported by overwhelming evidence, such that the jury verdict would have been
the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17.
The victim, D.F., testified at trial that during the sexual assault, Petitioner inserted three
fingers into her anus and her vagina, ECF 29-1, at 101, and licked her vagina and anus. Id. at 105–
106. The nurse who conducted the sexual assault kit testified that D.F. confirmed that Petitioner
made oral contact with her vagina, id. at 134, and inserted his fingers into her vagina and her anus.
Id. at 134, 135. D.F. gave no answer when the nurse asked if Petitioner made oral contact with
her anus. Id. at 135. During the physical exam the nurse found swelling of the victim’s labia and
a tear in her rectum that was indicative of trauma. Id. at 129, 132. The laboratory analyst found
two sperm on the anal swab from D.F.’s sexual assault kit. ECF 29-2, at 16.
31
The defense did not put on a case in chief. See ECF 29-2, at 36–38. Rather, during closing
argument, Petitioner’s counsel argued that D.F.’s story had credibility issues and Petitioner should
be found not guilty because he was excluded as a contributor to the DNA sample. Id. at 58–67.
The victim testified to evidence establishing each element of Counts Five, Six, Nine, and
Ten. Petitioner did not contest any specific elements of these offenses, though he did contest the
victim’s entire account of the sexual assault in argument only. Objective evidence, the presence
of sperm and physical injury, indicated that a sexual assault indeed occurred. This evidence
corroborated the victim’s story.
The contested offenses are supported by such evidence that the verdict would have been
the same if the jury had been correctly instructed on the law. Because the instructional error at
issue is subject to harmless error review, and the error was harmless, counsel’s failure to object to
the erroneous jury instructions did not prejudice Petitioner.14 Ground Five is without merit and is
dismissed.
5.
Ground Seven
In Ground Seven, Petitioner contends that his trial counsel was ineffective for failing to
file a motion for modification of sentence and a motion for a review of sentence by a three-judge
panel. Petitioner raised Ground Seven in his post-conviction petition. ECF 8-1, at 154–58.
Respondent contends that Ground Seven lacks merit. ECF 17, at 57–60.
Based on Petitioner’s contradictory testimony at the post-conviction hearing, the postconviction court concluded that Petitioner’s claim that he instructed his trial counsel to file posttrial motions for modification of sentence and review of his sentence by a three-judge panel was
14
The third-degree sex offenses (Counts Nine and Ten) merged for purposes of sentencing. ECF
29-3, at 10.
32
not credible. ECF 8-1, at 203. Because Petitioner failed to prove that he requested his counsel file
the sentence-review motions, the post-conviction court dismissed Ground Seven on the deficiency
prong of the Strickland analysis. Id.
As noted above, absent clear and convincing evidence to the contrary, the post-conviction
court’s factual findings are presumed correct. See 28 U.S.C. § 2254(e)(1). Petitioner has failed to
show that the post-conviction court unreasonably applied Strickland to the facts of his case.
Ground Seven is without merit and is dismissed.
6.
Ground Eight
In Ground Eight, Petitioner contends that his post-conviction counsel was ineffective by
failing to adequately argue and present his meritorious claims and contentions.15 Respondent
contends that Ground Eight is not cognizable in federal habeas corpus review. ECF 17, at 88. The
Court agrees. Federal law explicitly prohibits relief based on ineffective assistance of postconviction counsel. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”). While the Supreme Court has recognized that ineffective
assistance of post-conviction counsel can serve as “cause” to excuse procedural defect, Trevino v.
Thaler, 569 U.S. 413, 423 (2013) (citing Martinez v. Ryan, 566 U.S. 1, 14, 16–17 (2012)), the
Supreme Court declined to “resolve whether the [Martinez] exception exist[ed] as a constitutional
matter.” Martinez, 566 U.S. at 9. Therefore, as the Court interprets Petitioner as raising a standalone claim of ineffective assistance of post-conviction counsel, ECF 1, at 15–16, consistent with
15
Specifically, he faults post-conviction counsel for: (1) not arguing that his trial attorney was
ineffective for not filing Petitioner’s habeas petition, ECF 1, at 14; (2) miscalculating Petitioner’s
Hicks date, ECF 1, at 15; (3) agreeing with the State that the DNA evidence was not exculpatory,
ECF 1, at 15; (4) the State’s belated response to the post-conviction petition, ECF 1, at 15; and (5)
failing to present all the claims Petitioner wished his counsel to present, ECF 1, at 15–16.
33
28 U.S.C. § 2254(i), that claim is not cognizable on habeas review. See, e.g., Vann v. Clendenion,
Civ. No. 119-01059(STA)(JAY), 2021 WL 5989019, at *7 (W.D. Tenn. Dec. 17, 2021) (“To the
extent [petitioner] purports to raise stand-alone challenges to post-conviction counsel’s
effectiveness, he has not stated cognizable claims.”); Emanuel v. Neven, Civ. No. 21601368(GMN)(GWF), 2020 WL 1451191, at *7 (D. Nev. Mar. 25, 2020) (“Although Coleman and
Martinez left open a constitutional question regarding a petitioner’s right to effective counsel in
post-conviction proceedings, an open question does not establish a cognizable habeas claim.”).
Petitioner’s Ground Eight is dismissed.
IV.
CERTIFICATE OF APPEALABILITY
A petitioner may not appeal the dismissal or denial of a federal habeas petition without first
receiving a certificate of appealability. 28 U.S.C. § 2253(c)(1). The Court may issue a certificate
of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the Court has denied the petition on
the merits, a petitioner must “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Upon a review of the record,
this Court finds that Petitioner has not made the requisite showing. The Court therefore declines
to issue a certificate of appealability. Petitioner may still request that the United States Court of
Appeals for the Fourth Circuit issue such a certificate. Fed. R. App. P. 22.
34
V.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Habeas Corpus will be DENIED. The
Court will decline to issue a certificate of appealability. A separate Order shall issue.
February 7, 2024
________________
Date
/s/
_____________________________
Brendan A. Hurson
United States District Judge
35
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