United States District Court, D. Maryland
RICHARD A. NICOLAS, Petitioner,
THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, et al., Respondents.
RICHARD D. BENNETT, District Judge.
Petitioner Richard A. Nicolas, by counsel, has petitioned pursuant to 28 U.S.C. § 2254 for habeas corpus relief and challenges his 1997 conviction after a jury trial in the Circuit Court for Baltimore City for the first-degree murder of his two-year old daughter and a related handgun offense. On the evening of Friday, July 26, 1996, Richard Nicolas, an emergency medical technician ("EMT"), was in his car in Baltimore City with his two-year old daughter Aja. The evening ended in tragedy as Aja was killed by a gunshot wound to the head. It is undisputed in this case that Nicolas ran to a nearby Texaco gasoline station to call 911, as this was before cell phones were prevalent. By the time paramedics and police officers arrived at the scene, Aja was dead.
Nicolas was taken to the police station where he cooperated by consenting to questioning and to a search of his apartment. He told police authorities that he had taken Aja to see the movie "Pinocchio." Mr. Nicolas stated that while he was driving Aja home after the movie another driver bumped his car. After pulling over to the left side of a side street, the other vehicle pulled up along the passenger side of Nicolas' car and a heated argument ensued. Nicolas contended that as he exited and came around the back of his car, he heard a gunshot and the other car sped away. Despite his description of the events, Nicolas was ultimately charged with Aja's murder.
At his trial in the Circuit Court for Baltimore City which began on June 6, 1997, the State's theory was that Nicolas shot Aja in the car before the movie and then fabricated a story about road rage gone wrong. This theory relied on the testimony of Dr. Dennis Chute, the State medical examiner who performed the autopsy on Aja; Dr. Chute suggested that the lividity pattern on Aja's body showed that she had been dead for at least two hours before Nicolas called 911. Thus, the state reasoned Nicolas shot Aja around 7:45 p.m., giving him sufficient time to see the movie to create an alibi and dispose of the gun. Nicolas, however, testified that Aja was shot around 9:45 p.m. that evening. Nicolas was ultimately convicted of first-degree murder, and he was sentenced to life without parole, plus 20 years.
Sometime in 2008 or 2009, counsel representing Nicolas in his federal habeas corpus proceedings obtained documents under the Maryland Public Information Act, Maryland Code, General Provisions Art. §§ 4-101 to 4-601,  identifying two previously undisclosed witnesses, Jennifer McKinsey and Richard Benson. Both were guests at a Holiday Inn near where Aja was shot on July 26, 1996. When police interviewed Jennifer McKinsey on the day after the shooting, McKinsey said that she heard a loud popping sound like a gun shot around 9:45 p.m., Similarly, Richard Benson told police that he heard a loud sound like a car backfiring or exploding while in the hotel parking lot on July 26, 1996, at about 10:00 p.m., This timeline paralleled the time Nicolas testified his daughter was shot by someone in a second car. The Benson and McKinsey witness statements were not provided to defense counsel, and would have provided key and material information for his defense.
Petitioner's case, initiated nearly a decade ago, now comes before this Court for a third time, having been stayed on two prior occasions in order for Petitioner to return to the state courts for the purpose of exhausting all of his various claims. In his Amendment to, and Second Supplemental Memorandum of Law in Support of, Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 145), Petitioner presently advances the following four habeas claims: (1) his trial counsel provided ineffective assistance by failing to become sufficiently educated about lividity evidence and by failing to rebut the state's expert at trial; (2) his trial counsel provided ineffective assistance by requesting or failing to object to the court's dual inference instruction; (3) gunshot residue ("GSR") evidence admitted at trial is now recognized as unreliable; and (4) he was convicted in violation of his due process rights because favorable and material evidence, specifically the witness statements of Richard Benson and Jennifer McKinsey, were withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963) in which the Supreme Court held that supression by the prosecution of evidence favorable to an accused violates due process of law.
The parties' submissions have been reviewed and this Court held a hearing on February 24, 2015. For the reasons that follow, Petitioner Richard A. Nicolas's Petition for Writ of Habeas Corpus (ECF No. 1) along with his Amendment to, and Second Supplemental Memorandum of Law in Support of, Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is GRANTED IN PART AND DENIED IN PART. Specifically, the Petition is granted with respect to Petitioner's Brady claim, and it is denied with respect to all other claims. The failure of the State to provide the Benson and McKinsey witness statements to defense counsel prior to trial violated due process of law and calls into question the result of that trial, undermines confidence in its outcome, and did not result in a jury verdict worthy of confidence. Accordingly, Petitioner's conviction and sentence are VACATED, and the case is remanded to the Circuit Court for Baltimore City for a new trial.
In 1997, Nicolas was convicted of first degree murder and use of a handgun in the commission of a crime of violence in connection with the death of his two-year old daughter Aja. The State's theory of the case was that Nicolas had killed his daughter in order to cash in on a life insurance policy and then attended a movie in order to create an alibi. Nicolas contended, however, that an unknown driver had bumped his car on the way home from the movie theater and that, after he pulled over and engaged in a heated altercation, the driver shot his daughter and drove off. At trial, an important piece of the State's evidence was the expert testimony of Dr. Dennis Chute, the Medical Examiner, who testified that the lividity (or pooling of blood) in Aja's left side and back indicated a time of death two hours earlier than Petitioner claimed. The State also relied upon evidence of gunshot residue on Petitioner's hands and various inconsistencies in Petitioner's story.
The Court of Special Appeals of Maryland affirmed Mr. Nicolas's convictions in an unreported opinion, Richard Nicolas v. State, No. 1485, Sept. Term, 1997 (filed December 21, 1998), and the Court of Appeals of Maryland denied a Petition for Writ of Certiorari on April 16, 1999. Mr. Nicolas filed pro se a Petition for Post-Conviction Relief on July 1, 1999, in the Circuit Court for Baltimore City, which was later supplemented with the help of the public defender's office. Following a hearing held on July 22, 2005, the Circuit Court for Baltimore City denied post-conviction relief on October 20, 2005. Mr. Nicolas's Application for Leave to Appeal was summarily denied by the Maryland Court of Special Appeals on November 30, 2005.
Mr. Nicolas, acting pro se, then filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on October 10, 2006, raising multiple claims. A review of the case by assigned counsel revealed additional issues that counsel believed could warrant post-conviction relief. Accordingly, Nicolas filed a motion to stay the proceedings in this Court so that these new claims could be exhausted in state court. On February 9, 2010, this Court granted Mr. Nicolas's motion to stay the proceedings. On March 12, 2010, Mr. Nicolas, through counsel, filed a Motion to Reopen Post-Conviction Case in the Circuit Court for Baltimore City, raising additional claims and facts that had not been presented in his initial post-conviction petition. In a written memorandum issued without a hearing, the Circuit Court for Baltimore City, Judge Stuart R. Berger presiding, denied Mr. Nicolas's Motion to Reopen Post-Conviction Case. On July 15, 2011, the Court of Special Appeals summarily denied Mr. Nicolas's Application for Leave to Appeal the denial of his Motion to Reopen Post-Conviction Case.
Mr. Nicolas then returned to this Court. Nicolas was granted discovery and thereafter submitted his First Supplemental Memorandum of Law in this Court. (ECF No. 116). In its Second Limited Answer to Petition for Writ of Habeas Corpus (ECR No. 117), the State argued that the use of new materials uncovered by this Court's in camera review of the State's files altered some of Mr. Nicolas's underlying habeas claims to the point where they were now unexhausted; the State suggested that the Maryland state courts should have an opportunity to evaluate his claims in light of the new evidence. After a hearing on the question of exhaustion, this Court issued an Order and Memorandum opinion on September 24, 2012 staying and holding the case in abeyance to permit Mr. Nicolas to exhaust his Brady and lividity (ineffective assistance of counsel) claims in State court, and granting Mr. Nicolas leave to amend his Petition for Writ of Habeas Corpus to include his gunshot residue ("GSR") claim. (ECF Nos. 126 & 127)
Thus, on November 14, 2012, Mr. Nicolas filed a second Motion to Reopen Post Conviction Proceeding in the Circuit Court for Baltimore City. A hearing was held on March 7, 2013. The Circuit Court denied Mr. Nicolas's Motion to Reopen on April 2, 2013, and the Maryland Court of Special Appeals denied Mr. Nicolas' application for leave to appeal a year later on April 2, 2014. Mr. Nicolas then timely petitioned for a writ of certiorari in the Court of Appeals of Maryland, which the Court of Appeals denied on July 21, 2014.
Mr. Nicolas presently advances the following four habeas claims: (1) his trial counsel provided ineffective assistance by failing to become sufficiently educated about lividity evidence and by failing to rebut the state's expert at trial; (2) his trial counsel provided ineffective assistance by requesting or failing to object to the court's dual inference instruction; (3) gunshot residue ("GSR") evidence admitted at trial is now recognized as unreliable; and (4) he was convicted in violation of his due process rights because favorable and material evidence, specifically the witness statements of Richard Benson and Jennifer McKinsey, were withheld in violation of Brady v. Maryland . Nicolas contends that he has now fully exhausted all of his habeas claims in State court, so they are now ripe for review in this Court.
STANDARD OF REVIEW
An application for 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). The federal habeas statute at 28 U.S.C. § 2254 sets forth a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447 (2005). This standard is "difficult to meet, " and requires federal courts to give state-court decisions the benefit of the doubt. Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted); see also White v Woodall, 2014 WL 1612424, * 4 (April 23, 2014, U.S. ___, 134 S.Ct. 1697, quoting Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 786-87 (2011) (state prisoner must show state court ruling on claim presented in federal court was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
A federal court may not grant a writ of habeas corpus unless the state'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 Supreme Court of the United States"; 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 adjudication is contrary to clearly established federal law under § 2254(d)(1) where 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]." Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the "unreasonable application" analysis under § 2254(d)(1), a "state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, "an unreasonable application of federal law is ...