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Hill v. Hershberger

United States District Court, Fourth Circuit

July 2, 2013

GREGG HERSHBERGER, et al., Respondents.


PETER J. MESSITTE, District Judge.

A Response to the above-captioned Petition for Writ of Habeas Corpus, along with exhibits and Petitioner's Traverse, were filed in the above-captioned case. The matter is now ready for dispositive review. The Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2011); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. ยง2254(e)(2)).


On October 2-3, 2007, Petitioner Chauncey Antonio Hill ("Hill") was tried before a jury in the Circuit Court for Anne Arundel County on charges of child abuse, second-degree rape, and related offenses. ECF No. 9, Exs. 1, 2 & 5. At trial, the State established the following facts:

In January of 2004, Latasha Jones, a thirty-four year old adult, filed a report with the Annapolis Police Department ("APD") alleging that her stepfather, Chauncey Hill, sexually abused her twenty years earlier. In response to Jones's report, Detective Jessica Hertik telephoned Hill at his residence in Virginia. Hill returned the detective's phone call from England. During the multiple phone conversations with Hill, Hill denied Jones's allegations and claimed that it was Jones who had initiated contact. Hill also indicated that he would not be returning to Virginia until June 2004. When Detective Hertik called Hill's residence in Virginia in June of 2004, Hill did not answer, and instead called back from England claiming that he would not return until July 15 when his passport expired. Detective Hertik suspended her investigation until Hill returned to the United States.
Jones testified that Hill married her mother when she was nine or ten and began living with their family. She considered Hill to be a "day-to-day father." Due to scoliosis, Jones was in a body cast during a period of her youth; the cast was removed when Jones was eleven. Shortly afterwards, around age 12, Hill began molesting her. Hill began fondling her breasts and vagina and progressed to putting his fingers inside of her vagina. This progressed to Hill putting his penis on her naked back, hands, and knees. Finally, Hill began vaginal intercourse with the underaged Jones. Jones testified that the sexual encounters occurred "like weekly" whenever Hill would (1) tell her that she was in trouble and had to stay up at night or (2) simply walk into her room at night and wake her in order to have sex. The molestings occurred at night in the living room while everyone else in the house slept.
When Jones was thirteen, she became pregnant. She gave birth to a baby girl, Tasia Hill, when she was fourteen, and testified she had no doubt in her mind that "Chauncey" (Hill) was the father of Tasia. Jones admitted that she was scared of Hill because he would repeatedly tell her that Jones's mother would never believe that he was Tasia's father. Hill would also threaten to take Tasia from her if she told. Accordingly, Jones would lie and say that Tasia's father was "a boy from school." Hill continued sexual relations with Jones after the birth of Tasia, having Jones perform oral sex on him until she was put on birth control by her mother; then the sexual intercourse resumed. Hill would tell Jones that the abuse would stop when she turned sixteen, but he continued abusing her to age twenty. Jones also testified that she was not allowed to date, have boyfriends, receive phone calls from boys, or go out at night up to age sixteen.
At age eighteen, Jones tried to move away to Virginia "to go to school, " but Hill and her mother followed her and stayed in Virginia. Jones later married and in 1992, first told her husband of Hill's sexual abuse. She asserted that she wanted to keep her abuse "a secret" until being inspired to report it in 2004, after witnessing a child at a mental health facility come forward about her own abuse.
After Hill's return from England in July 2004, Detective Hertik contacted a detective with Chesapeake, Virginia police department, David Brechtel, and arranged for a search warrant to obtain a buccal swab from Hill. Detective Brechtel secured a search warrant on September 6, 2004 and served it on Hill the same day. He went to Hill's last known address and Hill's mother answered the door. A man came downstairs after Hill's mother called for him and identified himself as "Chauncey." As Detective Hertik testified, Detective Brechtel had previously been supplied with Hill's identifying information including height, weight, race, age, hair and eye color, and full name. Detective Brechtel testified that he followed all of the standard procedures in administering the buccal swab of Hill - using gloves, putting the cotton swabs into the designated box, sealing the box with evidence tape, putting the box into the designated evidence envelope, and initialing and dating the envelope. The envelope was then submitted into the evidence closet until Detective Brechtel handed it to Detective Hertik four days later. Detective Hertik met Detective Brechtel at the Chesapeake Police Department and personally took custody of the buccal swabs. The next day, September 11, 2004, Detective Hertik placed the Hill's buccal swab into the APD's evidence locker. From September 10th to the 11th the buccal swabs remained at Detective Hertik's satellite police office at the naval station because she "hadn't gone back to the police station."
Two weeks after Hill's buccal swab was administered, Detective Hertik personally administered Latasha Jones's buccal swab before putting it into evidence. He testified that he followed all of the Maryland State Police procedures when swabbing Jones including the proper packaging techniques and writing down the chain of custody.
At the direction of Detective Hertik, Benjamin Lee, a crime lab specialist with the APD, administered the swabbing of Tasia Hill on July 29, 2004. Though Technician Lee did not specifically ask the woman (whom he swabbed) her identity, the woman identified herself to Detective Hertik as Tasia Hill before she was swabbed. Detective Hertik testified that she was present when the buccal test was taken. The detective's report erroneously indicated that the date of Tasia's buccal test was July 28th, not the actual date of July 29th. Detective Hertik acknowledged that she mistakenly "may have just mismarked the date on my report."
On September 15, 2004, Technician Lee checked Mr. Hill's swab out of evidence for the likely purposes of making sure "it was properly packaged and everything and sealed, because the labs won't take it unless it's sealed." He continued, "That's the only reason I know I would take it out, would be to check the package and make sure it's properly sealed." On September 30, 2004, after retrieving the three sets of buccal swabs from the evidence room, Technician Lee transported the evidence to BRT Laboratories in Baltimore.
At BRT, the samples were "hand-carried and brought" to Danielle Sewell, the quality assurance manager at the lab. After being qualified as an expert witness, Sewell testified that each sample is given a unique bar code, "and then the samples are put in our case folder, which is labeled. And then it's sealed with evidence tape and then initialed and dated by myself." The DNA samples were subjected to a system of checks and balances in an uncontaminated environment to "verify the profiles that are generated from the testing." Before testing the DNA samples, Sewell had checked the samples out of evidence on October 20, 2004, but could not remember why.
BRT Laboratories' Director of Molecular Technology, Francis Chiafari, and the medical director reviewed the test results. As an expert witness, Chiafari testified that "it was not possible to exclude Chauncey Antonio Hill from being the biological father of Tasia Yanica Hill." He continued, "the odds ratio was 832 to 1, which means that it's 832 times more likely or more probable that Mr. Hill is the biological father versus another individual of the same ethnic background." Mr. Chiafari determined the paternity probability to be 99.88%. When asked for his expert opinion as to the paternity of Tasia Hill, Chiafari testified that: "Given the verbal ...

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