Donati v. Warden Foxwell et al
Filing
41
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/27/2019. (c/m 9/30/19 nu, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
MICHAEL E. DONATI,
Petitioner,
v.
WARDEN RICHARD MILLER and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Civil Action No. TDC-16-2548
Respondents.
MEMORANDUM OPINION
Petitioner Michael Donati, an inmate at Roxbury Correctional Institution in Hagerstown,
Maryland, has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
~ 2254 in which he attacks his 2012 convictions in two separate criminal cases for electronic mail
harassment, obstruction of justice, and various other offenses. The Petition is fully briefed. Upon
review of the submitted materials, the Court finds no need for an evidentiary hearing. See Rule
8(a), Rules Governing Section 2254 Cases in the United States District Courts; D. Md. Local R.
105.6. For the reasons set forth below, the Petition is DENIED and DISMISSED.
BACKGROUND
The Petition relates to two separate but related criminal cases filed in the Circuit Court for
Montgomery County, Maryland, that were addressed in a single opinion by the state postconviction court. Although Donati's filings in this Court specifically reference only one of the
two cases by case number, Case No. 119385C, the Court will treat Donati's Petition as raising
challenges to the judgments in both state cases in light of the disposition by the state post-
conviction court and in view of the timeliness considerations Donati would face ifhe attempted to
refile a separate Petition at this point.
I.
State v. Donat;, No. 118496C
The first of Donati's two cases, Case No. 118496C, arises from events that occurred on
April 10,2011 at Growlers Pub in Gaithersburg, Maryland. Alex Zeppos owned or managed the
pub, and Jason Allen owned the company that provided security at the pub. On April 10,2011,
Donati visited Growlers Pub and offered to sell marijuana to one of Allen's employees, prompting
Allen and Zeppos, with the aid of others, to remove Donati from the premises. Donati allegedly
"punched, bit, and pushed" Allen during that process. Donati v. State, 84 A.3d 156, 162 (Md. Ct.
Spec. App. 2014). Zeppos called the police, who arrested Donati. Donati was later released on
bail. Donati was charged with possession with intent to distribute marijuana and second-degree
assault. Zeppos was scheduled to be a witness at Donati's trial.
Donati was initially represented by attorneys Andrew Jezic and David Moyse. However,
in October 2011, the trial court struck their appearance on counsels' request after Assistant State's
Attorney Amy Bills told Moyse that she had received an email from an individual identifying
himself as "C. Thomas" ("the Thomas Email") claiming that Donati was innocent and naming
Jezic and Moyse as points of contact for Thomas. Jezic and Moyse were replaced by Alexander
Foster, who entered his appearance in November 2011.
On February 29, 2012, Donati was convicted after a jury trial of the drug charge but
acquitted of the assault charge.
imprisonment.
On September 7, 2012, Donati was sentenced to five years of
He filed an appeal asserting that the trial court had improperly limited cross
examination and had admitted hearsay evidence. The Maryland Court of Special Appeals affirmed
the conviction.
2
II.
State v. Donati, No. 119385C
Donati's other criminal case, Case No. l19385C, related to conduct that occurred after, and
seemingly in response to, Donati's arrest at Growlers Pub. The factual background of this case,
which Donati does not dispute, is set forth in Donati v. State, 84 A.3d 156, 161-69 (Md. Ct. Spec.
App.2014).
The Court describes those specific facts relevant to the Petition.
On April 23, 2011 at 2:25 a.m., approximately two weeks after Allen and others removed.
Donati from Growlers Pub, police received a 911 call from an anonymous caller who reported that
Allen was dealing drugs out of his residence. When Officers Nicholas Jerman and Gregory Hollis
responded to Allen's house, they observed Donati waiting in an older model minivan near Allen's
house.
When they pulled up behind the van, Donati started to drive away.
Because of the
suspicious behavior, the officers pulled over the minivan and spoke briefly with Donati before
letting him go. Meanwhile, two other police officers approached Allen's house and saw a plastic
bag with suspected marijuana and marijuana plants growing in the garden. When the front door
opened, the officers smelled marijuana and encountered Allen's roommate, who admitted that he
had ''just smoked ajoint." Id. at 164. The officers searched the house with Allen's permission but
found no evidence of marijuana growing or distribution.
Later, Officer Hollis listened to the 911
call and reviewed security footage from a security camera near the pay phone from which the call
had originated. Based on his brief conversation with Donati, Hollis recognized the caller's voice
on the 911 message and the van in the security footage as those of Donati.
From April 2011 to October 2011, Zeppos received numerous emails from multiple email
addresses,
including
taxman86@hotmail.com,
thebomb00769@yahoo.de,
pleasuredaddyI23456@gmai1.com,
backdoor.geeky .greeky .finder@hotmail.com,
and mr.yo_daddy@yahoo.com.
3
mr.tipper@yahoo.com,
ms. watcher@ymail.com,
These emails stated that Allen's
security staff was engaged in drug dealing; that if Allen's staff continued to work at Growlers, the
"establishment will not be around much longer. Up in smoke, if you know what I mean"; that the
IRS was investigating Growlers; and that Zeppos was about to be indicted. Id. at 175.
During the same time frame, various law enforcement officers, including MarylandNational Capital Park Police Chief Daren Manley and Montgomery County Police Detective
Richard
Grapes,
received
mrtpstr83@gmail.com,
mr.essex@ymail.com,
numerous
pseudonymous
emails
mr.tipper006@gmail.com,
from
addresses
such
bourbonstband@gmail.com,
as
and
claiming that Zeppos, Allen, and Growlers Pub were engaged in illegal
activity such as growing and selling marijuana, serving untaxed alcohol, and laundering drug
proceeds through the restaurant. One of the emailswas purportedly from "Clayton Thomas, III"
using the email address ••
cthomas03@hotmail.com •• and claimed that "Growlers was 'deeply
involved in the drug trade.'"
Id. at 165. Some of the other emails were sent from the same email
addresses used to send emails to Zeppos.
Law enforcement officers began to suspect that Donati was involved in sending the emails
and in the illegal drug production activity alleged in the emails. After further investigation, Donati
was arrested on October 4, 2011. Zeppos did not receive any threatening emails after Donati's
arrest.
During a post-arrest search of Donati's residence pursuant to a search warrant, police
officers found three sheets of paper with numerous e-mail addresses listed on them.
labeled
"Special
A sheet
emails..includedthefollowingaddresses:taxman86@hotmail.com.
cthomas03@hotmail.com,
jrkelly123@hotmail.com,
mr.essex@ymail.com,
mr.yo_daddy@yahoo.com,
backdoor.geeky.greekyfinder@hotmail.com.
Id. at 167.
included the email addressbourbonstband@gmail.com.
4
ms.watcher@ymail.com,
thebomb
00769@yahoo.com,
A sheet labeled "Normal
and
emails"
A forensic examination of a computer
seized from Donati's residence revealed that the computer was registered as "Bourbon St Band"
and contained one user account named "Montana," a nickname for Donati. Id. at 168. The hard
drive contained emailsbetween
••
mr.essex@ymail.com
••and Detective Grapes, and a fragment of
an email from "Mr. Tipper" addressed to Chief Manley, as well as evidence of a Hotmail account
for "Mr. Tipper." Id.
Donati was charged with various offenses relating to the communications received by law
enforcement officers and Zeppos, including, as relevant here, multiple counts of electronic mail
harassment of Zeppos, in violation of the then-applicable version of section 3-805 of the Criminal
Law Article ofthe Maryland Code. Md. Code Ann., Crim. Law
S 3-805
(LexisNexis 2012). As
in Case No. 118496C, Donati was originally represented by Jezic and Moyse, but they were
replaced by Foster following the exchange relating to the Thomas Email. Donati proceeded toa
jury trial on the same day that the verdict was entered in Case No. 118496C. During deliberations,
the jury sent a note to the judge asking for a legal definition of harassment in the context of section
3-805. The court and counsel for both parties agreed that there was no legal definition, so the court
directed the members of the jury to review the jury instructions and use their common sense.
On March 7, 2012, Donati was convicted of one count of distribution of marijuana, two
counts of obstruction of justice, two counts of making a false statement to police, two counts of
intimidating a witness, and 15 counts of electronic mail harassment of Zeppos. He was acquitted
of several counts, including multiple counts of electronic mail harassment. Donati was sentenced
to consecutive
sentences on the various counts totaling 32 years of imprisonment,
to run
consecutive to his sentence in Case No. 118496C.
After trial, Donati requested a new trial because, among other grounds, he had learned on
March 9, 2012, two days after the verdict, that the State had not disclosed the Thomas Email,
5
which he characterized as an exculpatory e-mail message, and that it no longer possessed that
email. Donati, 84 A.3d at 189-90. The trial court denied the motion.
On direct appeal, Donati argued, among other claims, that there was insufficient evidence
to support his convictions for email harassment because the evidence did not establish that he sent
the emails and that the trial court erred in denying his motion for a new trial. The Court of Special
Appeals rejected Donati's sufficiency of the evidence argument, noting that "ten of the e-mails at
issue were sent from addresses that were written down on the piece of paper seized from
appellant's basement," that a search of Donati's computer hard drive contained data about another
of the email addresses used to write to Zeppos, and that the content of the emails "provided
sufficient circumstantial evidence for the jury to determine that appellant was the author." Id. at
177. The Court of Special Appeals declined to consider the argument that the motion for a new
trial should have been granted based on the Thomas Email, because Donati had "not presented
sufficient legal or factual argument for this Court to address this claim." Id. at 190. The Court of
Special Appeals also rejected Donati's other arguments. Donati filed a petition with the Maryland
Court of Appeals for a writ of certiorari, but his request was denied on May 16,2014.
Donati v.
State, 91 A.3d 614 (Md. 2014) (table order).
III.
Postconviction Proceedings
On February 3, 2014, Donati filed a petition for post-conviction relief in Case No. 118496C
with the Circuit Court for Montgomery County. On March 4, 2014, Donati filed a petition for
post-conviction relief in his other case, Case No. 119385C. Because Donati raised the same claims
in both petitions, the state post-conviction
court considered both petitions together.
presented the following claims:
6
Donati
1.
The State committed prosecutorial misconduct when Assistant State's
Attorney Amy Bills deleted an email from someone named Clarence
Thomas that stated that Petitioner was innocent.
2.
The State committed prosecutorial misconduct when Assistant State's
Attorney Amy Bills failed to tum over a report of Officer Ceresini that the
roommate of Petitioner's accuser smelled of marijuana when Ceresini went
to their home.
3.
Petitioner was denied effective assistance of counsel because trial counsel
failed to argue that the evidence was insufficient to convict Petitioner of
harassment.
4.
Petitioner was denied effective assistance of counsel because trial counsel
failed to request a complete jury instruction on harassment and misuse of
electronic mail.
Post-Conviction Op. at 1-2, ECF No. 24-7.
The post-conviction court conducted a hearing on the petitions at which Bills, Moyse, and
Foster testified.
Bills testified that during the summer of 2011, at some point after Donati had
been charged in Case No. 118496C, but before he had been charged in Case No. 119385C, she
received an email from "a C. Thomas" which stated that "Michael Donati is innocent."
Post-
Conviction Tr. at 41, ECF No. 36-1. Later during Bills's testimony, the State introduced a copy
of the paper listing various email addresses that was recovered from Donati's house, which
included cthomas03@hotmail.com.
Bills, who was aware of the investigation into Donati for email harassment, testified that
she believed that Donati had sent the email, "got concerned that that email might have a virus on
it," and deleted the email without printing it or contacting anyone for technical assistance. ld at
41-42. Bills stated that she informed Moyse of the email within a few days of receiving it, telling
him, "I know it's your client, and I want you to tell him to knock it off and not send anymore
emai1s to me." ld at 47. She also informed Moyse that she had deleted the email and testified
7
that Moyse did not ask her to recover the email at that time. Bills further testified that once Foster
became Donati's counsel, she discussed the Thomas Email with him. She also noted that she
eventually attempted to recover the email, but that the information technology staff were unable
to do so.
Moyse testified that Bills told him of the Thomas Email during a happy hour at some point
before the second criminal case was filed. Foster testified that Moyse alerted him to the Thomas
Email after Foster began his representation of Donati and before the trials. Foster further stated
that he discussed the Thomas Email with Bills before trial, that Bills described the gist of the email
as claiming that Donati was innocent of the drug and assault charges, and that she had deleted the
email. On cross examination, Foster testified that he had not made an issue of the Thomas Email
at either trial at the request of Donati, who was aware of the email.
When asked on redirect
examination what Donati's reason was for not wanting to pursue the issue of the Thomas Email at
either trial, Foster testified that he had advised Donati that a continuance would likely ensue if he
raised the issue of the Thomas Email with the trial judge, and that Donati was insistent that he "did
not want the trial delayed, continued, or postponed" because he was in pretrial detention.
Id. at
37-38.
During argument on the state post-conviction petition, Donati's post-conviction counsel
argued that the ineffective assistance of counsel argument relating to sufficiency of the evidence
was premised on trial counsel's failure to argue that the evidence was insufficient to convict Donati
of harassment because Zeppos never told Donati to stop sending emails, Zeppos was not alarmed
or fearful as a result of the emails, and he instead believed some were "silly." Id. at 61. As for the
ineffective assistance claim based on the failure to argue for jury instruction on the definition of
harassment, Donati's post-conviction
counsel contended that trial counsel was ineffective for
8
failing to argue that, following receipt of the jury note, the jury should have been provided a
definition of harassment derived from the general harassment statute, which requires that a
defendant have the intent to "harass, alarm, or seriously annoy" the victim, and that the victim
must have requested that the defendant stop the harassing behavior. Md. Code Ann., Crim. Law
S 3-803.
The post-conviction court rejected all of Donati's arguments and denied the state petition
for post-conviction relief.
Donati filed a self-represented application for leave to appeal, in which he asserted the
same four grounds for post-conviction
relief presented to the circuit court.
Donati's post-
conviction counsel also filed a timely application for leave to appeal the post-conviction court's
rulings on the two grounds of ineffective assistance of counsel.
The Court of Special Appeals
denied Donati's application for leave to appeal, and its mandate issued on June 23, 2016.
On July 5, 2016, Donati filed his federal Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C.
S 2254.
He subsequently filed an Amended Petition, raising arguments substantially
similar to those that he presented in his state post-conviction petition. Specifically, he asserts the
following grounds for relief:
1. Prosecutorial misconduct due to the prosecutor's destruction of an exculpatory email
and failure to include the email in discovery.
2. Prosecutorial misconduct based on the prosecutor's failure to include in discovery a
note from Officer Ceresini noting that Allen's roommate smelled of marijuana.
3. Ineffective assistance of counsel based on the failure to challenge the sufficiency ofthe
evidence regarding the charges of electronic mail harassment.
4. Ineffective assistance of counsel based on the failure, in response to the jury note, to
argue for a jury instruction regarding the definition of harassment.
In his Reply, Donati argues for the first time that his trial counsel was ineffective for failing
to argue that the evidence was insufficient to sustain a conviction for electronic mail harassment
9
because the relevant statute reqUIres proof that the harassing messages constituted
"lewd,
lascivious, or obscene material," Reply at 15-16, ECF No. 26, and that trial counsel's failure to
assert Brady violations constituted ineffective assistance of counsel.
DISCUSSION
I.
Legal Standard
A 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.
S 2254(a)
(2012). 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 ofthe doubt." Bell v. Cone, 543 U.S. 447, 455 (2005); 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.
S
2254( d).
"[A] a federal habeas court may not issue the writ simply because [it] concludes in its independent
judgment that the relevant state-court decision applied established federal law erroneously or
incorrectly."
Renico v. Lett, 559 U.S 766, 773 (2010) (quoting Williams v. Taylor, 529 U.S. 362,
411 (2000)). The state court's application of federal law must be "objectively unreasonable."
Furthermore, under
S 2254( d)(2),
Id.
"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.
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II.
Prosecutorial Misconduct
In his first two grounds for relief, Donati argues that the Petition should be granted because
the prosecutor committed misconduct by destroying or failing to tum over exculpatory evidence.
"(T]he suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or punishment." Brady v. Maryland, 373
U.S. 83, 87 (1963). "The Brady rule is based on the requirement of due process. Its purpose is
not to displace the adversary system as the primary means by which truth is uncovered, but to
ensure that a miscarriage of justice does not occur."
United States v. Bagley, 473 U.S. 667, 675
(1985). There are three components of a Brady prosecutorial misconduct claim: "The evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching;
that evidence
must have been suppressed
inadvertently; and prejudice must have ensued."
by the State, either willfully
or
Banks v. Dretke, 540 U.S. 668, 691 (2004)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
The prejudice element is critical
because, "strictly speaking, there is never a real' Brady violation' unless the nondisclosure was so
serious that there is a reasonable probability that the suppressed evidence would have produced a
different verdict." Strickler v. Greene, 527 U.S. 263,281 (1999). Moreover, "(n]o due process
violation occurs as long as Brady material is disclosed to a defendant in time for its effective use
at trial." United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985) (finding
no Brady violation where the evidence at issue "was put before the jury during cross-examination
ofthe very first trial witness"). Donati asserts two alleged Brady violations.
A.
Thomas Email
First, Donati argues that his due process rights were violated when the prosecutor deleted
the Thomas Email. At the outset, the Court notes that although Donati's post-conviction counsel
11
argued that this claim applied to both criminal cases, No. 118496C and Case No. 119385C, and
Donati makes no particular distinction between the two cases as to this argument, the Thomas
Email's proclamation of Donati' s innocence could not have been exculpatory as to the second case
because, as the post-conviction court concluded and Donati does not dispute, the email was sent
before charges were filed in the second case.
In any event, even assuming that the Thomas Email could be deemed relevant to both cases,
Donati is not entitled to relief. Relying on the testimony of the prosecutor and Donati's defense
attorneys, the post-conviction court determined as a factual matter that both Donati and his attorney
were aware of the deleted email before trial. As a factual determination, the state court's finding
is presumed to be correct, and Donati has not rebutted the "presumption of correctness by clear
and convincing evidence."
28 U.S.C.
S 2254(e)(l).
Rather, the post-conviction court's factual
finding is supported by the hearing transcript. Because the prosecutor had disclosed the contents
of the email before trial, such that Donati could have raised the issue before or during trial and
perhaps obtained a favorable evidentiary ruling or jury instruction as to the significance of the
deleted email, there was no Brady violation. See Smith Grading & Paving, Inc., 760 Fold at 532.
To the extent that the destruction of the email itself, such that the actual document was not available
for use at trial, could be construed to be misconduct, the post-conviction court properly concluded
that any such violation was not material. Where the Thomas Email was sent from one of the email
addresses used in the sending of harassing emails to Zeppos or law enforcement and listed on the
paper found in Thomas's residence, the email would have been readily established to have been
sent by Donati and thus would have had little or no probative value to establish Donati's innocence.
The Petition will be denied as to the first ground for relief.
12
B.
Officer Notes
Donati also argues that the prosecutor committed misconduct by failing to turn over a note
from Officer John Ceresini relating to his visit to Allen's house on April 23, 2011. According to
Donati, Officer Ceresini's notes referenced the odor of marijuana and the admission by Allen's
roommate that he had just smoked marijuana. Presumably, such evidence would be favorable to
the defense in that it would support the argument that the claims in the various emails that Allen
was engaged in drug dealing were true and not made with the intent to harass.
As the post-conviction
court correctly noted, the substance of this note-the
marijuana at Allen's house and the admission of use by Allen's roommate-was
odor of
presented to the
jury. Officer Rick Goodale testified at trial that "[a]s soon as the front door opened, a very strong
odor of marijuana actually came out from inside the residence."
No. 24-2.
Trial Tr. at 20, Ans. Ex. 2, ECF
Officer Goodale acknowledged that Allen's roommate admitted to the responding
officers that he just smoked a joint of marijuana prior to their arrival.
Thus, even assuming that the prosecutor failed to tum over Officer Ceresini's notes, such
lack of disclosure was not material to the jury's decision because the jury received the same
evidence through another source. The Petition will be denied as to the second ground for relief.
III.
Ineffective Assistance of Counsel
In the third and fourth claims set forth in the Petition, Donati contends that his trial counsel
was ineffective for failing to argue that there was insufficient evidence to convict him on the
electronic mail harassment charges and for failing to argue for an instruction defining the term
harassment in response to a note from the jury.
In order to prevail on an ineffective assistance of counsel claim, a petitioner must meet the
two-part standard established by the Supreme Court in Strickland v. Washington, 466 U.S. 668
13
(1984). First, the defendant 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.
Second, the defendant must show that "the deficient
performance prejudiced the defense" in that "counsel's errors were so serious as to deprive the
defendant of a fair trial whose result is reliable." Id.
On the issue of deficient
performance,
a defendant
representation fell below an objective standard of reasonableness."
must show "that counsel's
Kimmelman v. Morrison, 477
U.S. 365, 375 (1986). "Judicial scrutiny of counsel's performance must be highly deferential" and
not based on hindsight. Strickland, 466 U.S. at 689. "[A] court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance."
Id.
Under the Sixth Amendment, a defendant "has a right to effective representation, not a right to an
attorney who performs his duties 'mistake-free.'"
Weaver v. Massachusetts, 137 S. Ct. 1899, 1910
(2017) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006».
On the issue of prejudice, "[t]he essence of an ineffective-assistance claim is that counsel's
unprofessional errors so upset the adversarial balance between defense and prosecution that the
trial was rendered unfair and the verdict rendered suspect." Kimmelman, 477 U.S. at 374. Thus,
in order to prevail, the petitioner must show "that there exists a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Id. at
375. A determination whether the attorney's performance was deficient need not be made if it is
clear that there was no prejudice. Strickland, 466 U.S. at 697.
"The standards created by Strickland and
S 2254( d) are both
highly deferential, and when
the two apply in tandem, review is doubly so." Harrington v. Richter, 562 U.S. 86, 105 (2011)
(internal citations omitted).
"When
S
2254( d) applies, the question is not whether counsel's
14
actions were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard." Id. .
A.
Sufficiency of the Evidence
In his third claim for relief, Donati argues that his trial counsel was ineffective for failing
to argue that the evidence was insufficient to prove that he had violated the electronic mail
harassment statute. At his post-conviction proceeding, Donati claimed that counsel was ineffective
for failing to argue that the evidence was insufficient to prove that the recipient of his emails,
Zeppos, was harassed by the emails. Donati claims that counsel failed to argue that Zeppos was
not harassed, alarmed, afraid, or fearful as a result of the emails, and that counsel did not argue
that Zeppos failed to ten Donati to stop sending harassing emails. These alleged elements of the
offense derive from the version of the electronic mail harassment statute that took effect on
October 1,2012. That amended statute provides that:
A person may not maliciously engage in a course of conduct, through the use of
electronic communication, that alarms or seriously annoys another:
(i)
With the intent to harass, alarm or annoy the other;
(ii)
After receiving a reasonable warning or request to stop by or on behalf of
the other; and
(iii)
Without a legal purpose.
Md. Code Ann., Crim Law ~ 3-805(b)(l) (LexisNexis Supp. 2018). This amended statute tracked
language from a separate, general harassment statute, section 3-803 of the Criminal Law Article,
which provides that:
A person may not follow another in or about a public place or maliciously engage
in a course of conduct that alarms or seriously annoys the other:
(l)
(2)
(3)
with the intent to harass, alarm or annoy the other;
after receiving a reasonable warning or request to stop by or on behalf of
the other; and
without a legal purpose.
15
Md. Code Ann., Crim. Law
S 3-803(a)
(LexisNexis 2012).
Here, however, the harassing emails were sent between April and October 2011, before the
amendment to the statute. Prior to October 1,2012, the statute provided only that:
A person may not use electronic mail with the intent to harass:
(l)
(2)
One or more persons; or
By sending lewd, lascivious, or obscene material.
Md. Code Ann., Crim. Law
S 3-805(b)
(LexisNexis 2012). The post-conviction court found that
under the statute in effect at the time that Donati sent the emails, there was no requirement that the
victim be alarmed or seriously annoyed by the email, or that the victim had requested that the
sender stop sending the emails.Trial
counsel could not fairly be deemed ineffective for failing to
argue for an extension of the general harassment statute to the electronic mail harassment statute,
or, at Donati's trial in March 2012, to forecast a change in the law, which occurred when the
revised statute was passed and signed in April 2012, and argue that it somehow applied
retroactively. See United States v. Morris, 917 F.3d 818, 823 (4th Cir. 2019) (finding that counsel
does not fall below Strickland's standard of reasonableness "by failing to anticipate changes in the
law, or to argue for an extension of precedent"). The post-conviction court therefore appropriately
concluded that trial counsel was not ineffective for failing to argue that elements not in effect at
the time of the offense had not been established.
At a minimum, the post-conviction
court's determination
is not contrary to or an
unreasonable application of clearly established federal law. See 28 U .S.C.
S 2254( d).
Particularly
where the post-conviction court's determination was grounded in an interpretation of state law,
this Court has no grounds to deem it unreasonable.
Cf Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (holding that federal habeas relief is not available for errors of state law, and that "it is not
16
the provInce of a federal habeas court to reexamine state-court determinations
on state-law
questions").
B.
Jury Instructions and Jury Note
For similar reasons, Donati's related claim that his trial counsel was ineffective for failing
to request a more detailed jury instruction on electronic mail harassment also fails. The trial court
provided the following instruction to the jury on electronic mail harassment:
The defendant is charged with the crime of electronic mail harassment. In order to
convict the defendant, the State must prove that the defendant used electronic mail
with the intent to harass one or more persons. Electronic mail is defined as the
transmission of information or communication by the use of a computer or other
electronic means that is sent to a person identified by a unique address that is
received by the person.
Trial Tr. at 174-75, ECF No. 24-3. During jury deliberations, the jury sent a note asking if there
was a legal definition of harassment. Both counsel and the judge agreed that there was no further
legal definition of the term, so the court, with the assent of all counsel, responded by referring the
jury back to the existing jury instructions and directing the members of the jury to use their
common sense.
The post-conviction court determined that trial counsel was not ineffective for failing to
request an instruction, as suggested by post-conviction
counsel, that would have described
harassment as contact that "alarms or seriously annoys" another person and that would have
required as an element that the victim had requested that the conduct stop. Post-Conviction Tr. at
64. As discussed above, these terms derive either from a separate general harassment statute or a
later version of the electronic harassment statute, not from the actual statute containing the charged
offense. The post-conviction court reasonably found that where the jury instruction was consistent
with the statute of conviction, Donati had not established that trial counsel's decision to agree not
17
to further define harassment, a position shared by the trial judge and the prosecutor, was a choice
outside the "wide range of reasonable professional assistance" permitted under Strickland.
U.S. at 689.
Again, the post-conviction
court's determination,
466
which was grounded in its
application of state law, at minimum, was not contrary to or an unreasonable application of clearly
established federal law. See 28 U.S.C.
IV.
S 2254(d).
New Claims
In his Reply to the Answer, Donati for the first time argues that as to the jury instruction
on the definition of harassment, his trial counsel was ineffective because he did not request that
the Court inform the jury that the harassment required the transmission of "lewd, lascivious, or
obscene material." Reply at 14-17, ECF No. 26. He also argues that his trial counsel's failure to
take action on the incidents of prosecutorial misconduct discussed above constituted ineffective
assistance of counsel.
Donati did not raise these arguments on direct appeal, in his state post-
conviction petition, or in the Petition itself. Where these claims were not asserted in the Petition,
the Court need not consider them. See Rule 2(c), Rules Governing Section 2254 Cases in the
United States District Courts (requiring that the petition must "specify all the grounds for relief
available to the petitioner"); cf Yousefi v. INS, 260 F. 3d 318, 326 (4th Cir. 2001) (finding that an
argument raised for first time in a reply brief was waived).
Moreover, where 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, or by failing to timely note an appeal, the procedural default doctrine applies.
See
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).
18
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." Breardv. Pruett, 134 F.3d 615,619 (4th Cir. 1998) (quoting Coleman, 501 U.S. at 735
n.l).
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 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. "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).
In order to demonstrate prejudice, a petitioner must show that the asserted error worked to the
petitioner's
"actual
and substantial
disadvantage,
infecting
his entire trial with error of
constitutional dimensions." Murray, 477 U.S. at 494. Even where a petitioner fails to show cause
and prejudice for a procedural default, a court must still consider whether it should reach the merits
of a petitioner's claims in order to prevent a fundamental miscarriage of justice.
See Schlup v.
Delo, 513 U. S. 298, 314 (1995).
A.
Lewd, Lascivious, or Obscene Material
Although several of the emails that were the subject of the electronic mail harassment
charges contained profanity and graphic references that arguably could be deemed "lewd,
lascivious, or obscene," not all of them contained such language.
See Donati, 84 A.3d at 176.
When provided with an opportunity to explain why there has been no procedural default or why
19
such default should be excused, Donati argued that the issue was raised on his state post-conviction
petition, that state remedies may still be available on this claim, and that to the extent that the claim
is procedurally defaulted, it is due to ineffective assistance of counsel. As for whether the issue
was raised in the state post-conviction proceedings, Donati is mistaken. There is no evidence in
the post-conviction hearing transcript, briefs, or opinion that this issue was presented to the postconviction court. Moreover, even if it had been, Donati failed to raise the issue regarding the
purported element of "lewd, lascivious, or obscene material" in his application for leave to appeal
the denial of post-conviction relief. Where the state court has already ruled on Donati's petition
for post-conviction relief, there remain no further remedies available in the state courts, which
would now find his claim procedurally barred. Md. Code Ann., Crim. Proc.
S 7-103
(LexisNexis
20 18) (allowing one petition for state post-conviction relief for each trial or sentence).
As for whether ineffective assistance of counsel constitutes cause for the procedural
default, and whether the alleged error resulted in prejudice sufficient to excuse the procedural
default, the Court finds that the argument is sufficiently flawed that the failure to raise it was not
ineffective assistance of counsel, nor did it prejudice Donati. Donati argues that his counsel was
ineffective for failing to argue that the jury should be instructed that an email communication
constitutes harassment only if it contains "lewd, lascivious, or obscene material," based on
language in the then-applicable version of the electronic mail harassment statute. See Md. Code
Ann., Crim. Law
S 3-805
(LexisNexis 2012). That statute provided that:
A person may not use electronic mail with the intent to harass:
(1)
(2)
One or more persons; or
By sending lewd, lascivious, or obscene material.
20
Id. Because the statute uses the disjunctive "or," the plain language of the statute reveals that it is
violated either if a person used email with the intent to harass "one or more persons," or with the
intent to harass "by sending lewd, lascivious, or obscene material."
See id. Where the State
needed only to establish that Donati had sent emails with the intent to harass one or more persons,
namely, Zeppos, there was no requirement that the jury find, or even be instructed on, the
alternative means of establishing a violation of the statute. Accordingly, the Court finds that the
failure of post-conviction counsel to assert this argument was not ineffective assistance that could
qualify as cause for procedural default and did not prejudice Donati so as to excuse the procedural
default.
Under the same reasoning, where "lewd, lascivious, or obscene material" was not an
element that needed to be proven, there was no "fundamental miscarriage of justice," or valid claim
of actual innocence, that would provide a basis to excuse the procedural default. See Schlup, 513
U.S. at 314.
B.
Ineffective Assistance on Brady Claims
Although this claim is different from Donati's direct claims of Brady violations, it fails for
similar reasons.
Where it was not presented to the state post-conviction
court, and those
proceedings are now complete, it was procedurally defaulted. No cause and prejudice has been
shown. Regardless of the soundness of trial counsel's decision not to raise the issue of the Thomas
Email in order to avoid a continuance opposed by Donati, there was no prejudice because, as
discussed above, the Thomas Email was plainly linked to Donati, such that its consideration during
the trial would not have advanced Donati's case.
See supra part II.A.
Likewise, there is no
prejudice arising from procedural default of any ineffective assistance claim based on the failure
to pursue Officer Ceresini' s notes, because the substance of the notes was presented to the jury for
21
its consideration.
See supra part ILB. Thus, on both issues, there is no fundamental miscarriage
of justice that would excuse the procedural default of these claims.
V.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts
provides that the district court "must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant" on a
S 2254
petition. Because the accompanying Order is a
final order adverse to the applicant, Donati must receive a certificate of appealability before an
appeal may proceed. 28 U.S.C.
S 2253(c)(l).
When a district court rejects constitutional claims on the merits, a petitioner satisfies the
standard by demonstrating that "jurists of reason could disagree with the district court's resolution
of [the] constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further." Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting
Miller-El v. Cockrell, 537 U.S. 322,327 (2003)). When a petition is denied on procedural grounds,
the petitioner meets the standard with a showing that reasonable jurists "would find it debatable
whether the petition states a valid claim of the denial of a constitutional right" and "whether the
district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Donati's claims are dismissed on both procedural grounds and the merits. Upon review of
the record, the Court finds that Donati has not made the requisite showing under the applicable
standards.
The Court therefore declines to issue a certificate of appealability.
Donati may still
request that the United States Court of Appeals for the Fourth Circuit issue such a certificate. See
Fed. R. App. P. 22(b); Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003) (considering whether to
grant a certificate of appealability after the district court declined to issue one).
22
CONCLUSION
For the foregoing reasons, the Petition for a Writ of Habeas Corpus will be DENIED and
DISMISSED.
The Court declines to issue a certificate of appealability.
A separate Order shall
Issue.
Date: September 27,2019
THEODORE D. CHUA
United States District Ju
23
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