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Prior v. Warden

United States District Court, Fourth Circuit

June 19, 2013

ELIZABETH PRIOR, #910911, Petitioner,
v.
WARDEN, Respondent.

MEMORANDUM

GEORGE L. RUSSELL, III, District Judge.

Pending is Elizabeth Prior's ("Prior") Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. ECF Nos. 1 and 7. Respondent, the Warden of the Maryland Correctional Institution for Women, by counsel, has filed a Response seeking dismissal of the Petition. ECF No. 9. Prior was provided an opportunity to reply, but has not done so. ECF No. 10. After considering the submissions, the Court concludes a hearing is unnecessary, see Local Rule 105.6 (D. Md. 2011), and will deny and dismiss the Petition.

BACKGROUND

Prior challenges her 1994 conviction in the Circuit Court for Baltimore County for first-degree murder, conspiracy to commit murder, and use of a handgun in the commission of a felony. Exs. 1 and 2.[1] On January 9, 1995, the Circuit Court for Baltimore County sentenced Prior to life in prison for first-degree murder, a concurrent life term for conspiracy to commit murder, and a consecutive 20-year prison term for use of a handgun in the commission of a felony. On direct appeal to the Court of Special Appeals of Maryland, Prior raised three claims:

1) The evidence was not legally sufficient to sustain the convictions;
2) The trial judge erroneously admitted testimony about Prior's extra-marital affairs; and
3) The trial judge erroneously allowed expert testimony by a police officer that it appeared the burglary that was allegedly coincidental with the murder had been staged.

Ex. 2 at 1.

In an unreported Opinion filed on October 11, 1995, the Court of Special Appeals of Maryland affirmed Prior's judgment of conviction, and the mandate issued on November 13, 1995. Ex. 2. Prior did not seek review of the decision. Accordingly, her convictions became final on November 28, 1995, when the time for filing a Petition for Writ of Certiorari in the Court of Appeals of Maryland expired. See Md. Rule 8-302 (stating Petition for a Writ of Certiorari must be filed in the Court of Appeals no later than 15 days after the Court of Special Appeals issues its mandate).

On April 29, 1997, Prior filed a Petition for Post-Conviction Relief in the Circuit Court for Baltimore County. On January 22, 1999, the Circuit Court held a hearing on her Petition. The claims raised and considered by the post-conviction court were: 1) Prior's trial attorney was unprepared and ineffective; 2) the State failed to give proper notice to Prior regarding its intention to use Detective Bollinger as an expert in the field of burglary; (3) the State knowingly made false statements to the trial judge regarding Bollinger's qualifications as an expert; 4) Prior's trial attorney failed to discredit Bollinger's testimony by obtaining an expert witness for the defense, relying instead on a learned treatise; 5) Prior's attorney insisted that she not testify on her own behalf; 6) Prior's attorney failed to call her 15-year old daughter, Takia Fisher, to testify about events on the evening of the alleged murder; 7) Prior's attorney made opening and closing arguments that were totally ineffective; and 8) Prior's attorney did not discuss with her the potential testimony of the State's witnesses. ECF No. 1, Att., at 1-2, (Memorandum Opinion and Order of Post-Conviction Court). On February 7, 2000, the Circuit Court denied post-conviction relief. Ex. 1, at 6. Prior did not file an Application for Leave to Appeal denial of the Post-Conviction Petition; thus, the post-conviction proceedings became final on March 8, 2000, when the time for doing so expired. See Md. Rule 8-204 (stating Application for Leave to Appeal must be filed within 30 days of the entry of judgment).

By letter dated April 3, 2007, Assistant State's Attorney Steven I. Kroll notified Prior that the late Joseph Kopera, "an expert in firearms and tool mark analysis" who had testified for the State at Prior's trial, had "misrepresented his educational background." ECF No. 1, Att. 1, (Letter from Steven Kroll to Prior dated April 3, 2007).[2] Prior appears to have contacted the Honorable Vicki Ballou-Watts concerning the letter because on April 19, 2007, Judge Ballou-Watts wrote to Prior "I am in receipt of your letter dated April 11, 2007. However, I cannot take action as requested. You may contact your attorney to explore your legal options." ECF No. 1, Ex. 1 at 8.

On October 2, 2007, Prior filed a Petition under 28 U.S.C. § 2254 in this Court, attacking her handgun conviction based on Kopera's credibility. See Prior v. Shell, Civil Action No. L-07-2669 (D. Md.). On April 25, 2008, this Court dismissed the Petition without prejudice for lack of exhaustion as to this claim.

Almost three years later on June 1, 2011, Prior submitted correspondence which this Court treated as a request for habeas corpus relief, directing her to provide additional information to show exhaustion of state court remedies. See Prior v. Warden, Civil Action No. L-11-1489 (D. Md). The case was dismissed without prejudice after Prior failed to file any supplemental information. See id.

On February 5, 2013, Prior filed a Motion to Reopen Post-Conviction proceedings in the Circuit Court for Baltimore County, asserting that she was "convicted (in part) by the testimony of firearms expert" Joseph Kopera, who subsequently committed suicide. ECF No. 1, Att. 1 at 1. Additionally, she averred: 1) she had been charged with the "contract murder' of her husband, yet the state could never furnish the person whom [Prior] had supposedly hired"; 2) the testimony given by Police Officer Baylor, who claimed to have had an intimate affair with her, amounted to a conflict of interest; 3) Carlos Ricks, a witness at trial later recanted; and 4) testimony of her marital affair was admitted at trial. ECF No. 1, Att. 1 (Motion to Reopen). On April 16, 2013, ...


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