United States District Court, D. Maryland
J. MESSITTE, District Judge.
Dustin John Higgs's conviction for the kidnapping and
murder of Tanji Jackson, Tamika Black, and Mischann Chinn, a
jury concluded that he should receive the death penalty. His
conviction and sentence were affirmed on appeal. See
United States v. Higgs, 353 F.3d 281 (4th Cir. 2003)
cert. denied, 543 U.S. 999');">543 U.S. 999, 125 S.Ct. 627, 160
L.Ed.2d 456 (2004). The Court denied Higgs's Motion to
Vacate Pursuant to 28 U.S.C. Â§ 2255, see United
States v. Higgs, 711 F.Supp.2d 479 (D. Md. 2010). Two
years later, Higgs filed his pending Motion for Relief
pursuant to Hazel-Atlas Glass Co. v. Hartford-Empire
Co., 322 U.S. 238 (1944) and Federal Rule of Civil
Procedure 60(d). In his Motion, Higgs asks the Court to
revisit his Motion to Vacate because he claims to have
unearthed evidence from a police file that he says proves the
U.S. Government committed fraud on the Court during the Â§2255
proceedings. ECF No. 579. He also asks the Court to order
discovery. ECF No. 580. Because the Court agrees with the
Government that Higgs has failed to establish even colorable
fraud on the Court, his Motions are DENIED.
Court need not recite all the facts underlying Higgs's
conviction, but to the extent it is helpful for understanding
Higgs's pending motion, the following summary will be
evening of January 26, 1996 Higgs, Willis Haynes, and Victor
Gloria drove from Higgs's apartment in Laurel, Maryland,
to Washington, D.C. Once there, they arranged for Tanji
Jackson, Tamika Black, and Mischann Chinn and to join them at
Higgs's apartment to drink alcohol and listen to music.
In the early hours of next morning, Higgs and Jackson began
arguing, prompting Jackson to grab a knife from the kitchen.
Haynes persuaded Jackson to drop the knife but Jackson
remained angry and all three women, upset, left the apartment
on foot. As Jackson left, she supposedly made some sort of
threat against the men, which angered Higgs.
after the women left, Higgs grabbed his coat and a silver.38
caliber handgun and urged Haynes and Gloria to come with him
to catch up with the women. Higgs, Haynes and Gloria then got
into Higgs's car and, with Higgs driving, Haynes in the
front passenger seat, and Gloria behind Higgs in the back
seat, pursued the three women. Not far from Higgs's
apartment they caught up with them and ordered them into the
car, drove into the Patuxent National Wildlife Refuge, a
federal property within the jurisdiction of the United
States, and pulled over at a secluded spot. One of the young
women asked if they were trying to "make [them] walk
from there, " to which Higgs responded, "Something
like that." The women then got out of the car.
meanwhile handed his gun to Haynes, who put it behind his
back and got out of the car. Moments later, Gloria, who
remained in the back seat of the car, heard a gunshot and
wiped the mist off the back window in time to see Haynes
shoot one of the women in the chest. Gloria turned to ask
Higgs what he was doing, and saw Higgs holding the steering
wheel, watching the shootings in the rearview mirror. Gloria,
still in the back seat, put his head down and heard more
shots and the sound of women screaming. The three men then
drove away, leaving the women, all of whom had apparently
been shot, at the secluded spot.
the three men drove to the Anacostia River and threw the guns
in, then drove back to Higgs's apartment to clean the
place of evidence. Higgs and Haynes left Gloria with a
warning to "keep [his] mouth shut." Around 4:30 am,
a driver found the dead women's bodies strewn along
Maryland Route 197, which runs through the Patuxent National
Wildlife Refuge. At the scene, Park Police found
Jackson's day planner, which contained Higgs's
nickname and telephone number, as well as a note of the
street number of his apartment and the license plate number
for his car.
December 21, 1998 Higgs and Haynes were indicted on three
counts each of first-degree premeditated murder, see
18 U.S.C.A. Â§ 1111(a), first-degree murder committed in the
perpetration or attempted perpetration of a kidnapping,
see id., kidnapping resulting in death, see
18 U.S.C.A. Â§ 1201(a)(2), and using a firearm while
committing a crime of violence, see 18 U.S.C. Â§
924(c). Haynes was tried first. On August 24, 2000, after
finding him guilty on all three counts in the guilt phase,
the jury failed to reach a unanimous verdict on the death
sentence in the penalty phase. The Court thereafter sentenced
Haynes to concurrent life terms on the first-degree murder
and kidnapping counts and forty-five years consecutive on the
Higgs's separate trial, which began five weeks later, a
different jury returned guilty verdicts on all counts.
Gloria's eyewitness testimony about the night of the
murders was unquestionably significant to the jury's
deliberations. At the guilt phase of the trial, Gloria told
the jury, among other things, that following the argument
with Jackson, Higgs wanted to have the victims killed; that
he (Gloria) rode in the back seat of Higgs's car; and
that he saw Higgs hand a gun to Haynes while whispering
something to Haynes. During cross-examination, Higgs's
counsel attacked Gloria's credibility, highlighting his
criminal past, including his use and sale of drugs and his
violation of probation, previous false statements he made to
police investigating the murders, as well as his willingness
to lie to authorities in general. The jury also heard that
Gloria faced 15 years in prison for his involvement in the
triple homicide, as well as over 30 years in jail for
unrelated federal and state drug charges, and that in
exchange for his cooperation in the Higgs case, the
Government had agreed to seek a lighter sentence for Gloria
for his role in the homicides.
October 26, in the penalty phase of his case, the jury
determined that Higgs should receive the death penalty on
each of the murder and kidnapping charges. The Court entered
judgment on the jury's verdict and Higgs appealed to the
United States Court of Appeals for the Fourth Circuit, which
affirmed both the conviction and sentence. See
United States v. Higgs, 353 F.3d 281 (4th Cir. 2003)
(" Higgs I "). The Supreme Court denied
Higgs's petition for writ of certiorari. Higgs v.
United States, 543 U.S. 99, 125 S.Ct. 627, 160 L.Ed.2d
456 (2004). While his appeal was pending, Higgs filed a
Motion for a New Trial, which this Court denied, and the
Fourth Circuit affirmed. See United States v. Higgs,
95 Fed.Appx. 37 (4th Cir. 2004), cert. denied,
Higgs v. United States, 543 U.S. 1004, 125 S.Ct.
608, 160 L.Ed.2d 465 (2004) (" Higgs II
November 28, 2005, Higgs filed a 122-page Motion to Vacate
under 28 U.S.C. Â§ 2255 or in the Alternative Pursuant to 28
U.S.C. Â§ 2241 asserting twenty-five claims of
error. The only claim relevant to the motion
presently before the Court was Higgs's allegation that
the Government had failed to turn over all the material
relating to Gloria that it was required to under Brady v.
Maryland, 373 U.S. 83 (1963), Giglio v. United
States, 405 U.S. 150 (1972), and their progeny.
Pet.'s Mot. Vacate Â§ 2255, ECF No. 492. While preparing
the Â§ 2255 Motion, defense counsel claim to have learned
Gloria had been a suspect in the 1998 killing of one
Martrelle Creighton, who was stabbed during a fight in the
Baltimore Inner Harbor. In his Motion, Higgs alleged that
Gloria was not charged with this murder at the behest of the
Government in Higgs "in an effort to preserve
his status as a testifying witness in [the] federal capital
triple homicide case, " and that the Government's
failure to disclose this consideration violated Higgs's
due process rights. Pet.'s Mot. Vacate Â§ 2255 at 33, ECF
No. 492. Had the Government disclosed this alleged
understanding, Higgs argued, defense counsel would have used
it to further impeach Gloria as a witness, which would have
had a material effect on the outcome of his trial.
response, the Government described Higgs's claims as
"speculation about the Government's knowledge or
actions, " arguing that "vague descriptions of the
supposed benefits conferred on Gloria largely fail to
demonstrate any connection to this trial and federal
officials." Govt.'s Resp. Mot. Vacate Â§ 2255 at 88,
ECF No. 520. The Government further argued that
"[c]ertainly, the Constitution required the prosecutors
to disclose any consideration promised to Gloria in exchange
for his testimony" but that prosecutors "had no
duty or ability to predict, much less inform Higgs of the
benefits, or acts of grace, that coincidentally flowed to the
witness after this trial." Id. at 86. In
response to Higgs's discovery request, the Government
said "there is no evidence that [Gloria] was promised
anything other than that which he admitted at trial."
Govt.'s Resp. Mot. Disc. at 5, ECF No. 513.
Court agreed with the Government and denied Higgs's
motion in all respects, including the alleged Brady
violations regarding Gloria. See Higgs v. United
States, 711 F.Supp.2d 479 (D. Md. 2010) ("
Higgs III "). Specifically, addressing
Higgs's claim that Gloria was spared a murder charge in
Baltimore in exchange for his cooperation in the federal
trial, the Court held:
Again, pure speculation about supposed benefits cannot
substitute for hard facts. See Roane, 378 F.3d at
401. Higgs, quite simply, has failed to demonstrate any
causal connection between Gloria's testimony in this
federal case and whatever treatment he may have received in
the state jurisdictions.
Even were the Court to find that the prosecution failed to
turn over any of this evidence, and again assuming the
factual accuracy of the supposed benefits, Higgs has not
demonstrated its materiality. Gloria's credibility as a
witness was thoroughly explored and impugned by Higgs'
counsel through vigorous cross-examination. Gloria openly
confessed to an extensive criminal history, going so far as
to state that "if it is going to help Victor Gloria,
Victor Gloria will do whatever he has to do."
Unquestionably counsel established that Gloria was a witness
of dubious reliability, whose testimony the jury could weigh
accordingly. In other words, any evidence that Gloria may
have received consideration for his testimony beyond that
disclosed by the Government could not have further undermined
his already low credibility, nor would it have created a
"reasonable probability" of a more favorable
Higgs III, 711 F.Supp.2d at 508.
Court denied Higgs's motion for a certificate of
appealability and his motion for reconsideration. ECF Nos.
560, 561. Higgs sought leave to appeal from the Fourth
Circuit, which granted the certificate of appealability but
only as to one issue unrelated to Higgs's present motion.
On November 23, 2011, the Fourth Circuit denied Higgs's
appeal. United States v. Higgs, 663 F.3d 726 (4th
Cir. 2011). On December 10, 2012, the U.S. Supreme Court
denied Higgs's petition for a writ of certiorari.
Higgs v. United States, 663 F.3d 726, 133 S.Ct. 787,
184 L.Ed.2d 583 (2012).
Creighton Murder Investigation
Higgs's defense counsel continued to investigate
Gloria's potential involvement in the Creighton murder
and sought access to the investigation file of the Baltimore
Police Department (BPD). Pet's Mot. Relief R. 60(d)
"R.60(d) Mot." at 19, ECF No. 579. After some back
and forth, Higgs obtained the complete file in the spring of
Higgs and the Government differ sharply as to the
interpretation of the facts contained in the police file,
what follows is a summary of the facts upon which they appear
to agree or which appear on the face of the exhibits.
18, 1998, over two years after the Higgs/Haynes
murders and two-and-a-half months before Gloria was arrested
in connection with that case, a man named Martrelle Creighton
was killed in the Inner Harbor area of Baltimore by a single
stab wound to the neck. R.60(d) Mot., Ex. 2 at 1, ECF No.
Police soon learned that Creighton had died during an
argument between two groups of young men over a group of
young women. Id. at 3. One of the groups of men
consisted of Creighton and his friends Clarence White and
David Bishop. Id. The other group comprised Kevin
Miller, twin brothers Kevin and Keith Scott, and Victor
Gloria. Witnesses described all four men in Miller's
group as African-American, or multi-racial - in Gloria's
case, half African-American half Puerto Rican. See
R.60(d) Mot., Ex. 8 at 7, ECF No. 579-1.Various witnesses
described Gloria as well as the Scott twins as "light
skinned", and Miller as "brown skinned" or
"dark skinned." R.60(d) Mot., Ex. 6 at 3, Ex. 8 at
7-8, 10, ECF No. 579-1. Miller was described as around
six-feet tall; Gloria was described variously as between
5'7" and six feet. R.60(d) Mot., Ex. 2 at 4, Ex. 10
at 12, Ex. 11 at 8, ECF No. 579-1.
trouble in the Inner Harbor began when Creighton's group
attempted to strike up conversation with a group of three
young women, which consisted of sisters Barbara and Charnetta
Bailey, and their friend Erica Jones. R.60(d) Mot., Ex. 9 at
1, Ex. 10 at 2, ECF No. 579-1. The women, who knew nobody in
Creighton's group, were not interested. Id.
Shortly thereafter, the women began talking with Gloria's
group, whom they also had not known previously. Id.
Creighton apparently became angry that the young women were
talking to members of Gloria's group given that they had
no interest in talking to Creighton's group. Id.
As a result, Creighton began yelling at the women and
Gloria's group. See R.60(d) Mot., Ex. 6 at 2,
ECF No. 579-1.
altercation ensued. Someone in Gloria's group punched
Creighton in the neck, apparently with a knife or sharp
object of some kind, striking Creighton's carotid artery.
More punches may or may not have been thrown; other people
may have fought one another; members of Gloria's group
ran away shortly thereafter and Creighton soon died of his
Baltimore Police Department ("BPD") began to
investigate, interviewing White and Bishop (the victim's
friends) on the night of the shooting. Handwritten notes in
the police file indicate that White described how, once the
altercation began, a man with "light skin" swung at
Creighton, at which point Creighton "grabbed his neck
and was bleeding bad." R.60(d) Mot., Ex. 5 at 2, ECF No.
579-1. In contrast, Bishop, in a taped interview hours after
the killing, told how a 5'11" man with "dark
skin" punched Creighton in the neck, and a man with
"light skin" punched him in the head. R.60(d) Mot.,
Ex. 7 at 1-2, ECF No. 579-1.
week later, on July 29, BPD Detective Robert Patton
interviewed Barbara Bailey. From her conversations with the
two groups of men, Bailey knew their first names. R.60(d)
Mot, Ex. 8 at 2, ECF No. 579-1. Bailey said that before the
altercation took place, Gloria in fact ran away. Id.
at 3. She said she was walking away from the group but turned
around when the men began fighting and saw Miller, whom she
described as dark skinned, punch the victim. Id. at
3-4. She did not realize that the victim had been stabbed,
but said she did see blood all over his shirt. Id.
August 12, Detective Patton interviewed Charnetta Bailey. She
also said that before the victim was stabbed, Gloria had run
off. R.60(d) Mot., Ex. 9 at 3, ECF No. 579-1. She indicated
that she saw Miller and the victim circling each other as if
they were going to fight but turned around before any punches
were thrown. Id. She said she turned back and saw
blood, and described how Miller then boasted of having beaten
Creighton. Id. She, too, did not realize the victim
had been stabbed. Id. at 5.
mid-November, the BPD showed a photographic line-up to Bishop
and the Bailey sisters, all of whom identified the Scott
twins as part of Gloria's group. Govt.'s Resp. R.
60(d) Mot. ("Govt.'s Resp."), Ex. 5 at 1, Ex. 6
at 1, ECF Nos. 585-5, 585-6. The BPD arrested the Scott twins
on February 2, 1999. R.60(d) Mot., Ex. 3 at 2, ECF No. 579-1.
Scott twins both stated that it was Gloria who stabbed
Creighton, although they, too, did not initially realize that
Creighton had been stabbed. R.60(d) Mot., Ex. 10 at 7-10, Ex.
11 at 4-7, 11, ECF No. 579-1. The Scott twins both said that
Creighton approached Miller as though he was going to throw a
punch, at which point Gloria punched Creighton in the neck
and then ran away. R.60(d) Mot., Ex. 10 at 7-10, Ex. 11 at
4-7, 11, ECF No. 579-1. Both said neither they nor Miller
exchanged blows with Creighton. Id. The Scott twins
also indicated that they knew from the news that he knew
Gloria at that time had been incarcerated in connection with
the murder of three women in Prince George's County.
R.60(d) Mot., Ex. 10 at 11, Ex. 11 at 11, ECF No. 579-1.
Keith Scott further indicated that Gloria had been arrested
with Willis Haynes, whom Keith knew. R.60(d) Mot., Ex. 10 at
11-12, ECF No. 579-1.
point in their investigation, the BPD began discussing the
case with federal authorities involved in the
Higgs/Haynes Murder investigation and trial. The BPD
file contains a handwritten note dated February, 2, 1999 -
the same day the Scott twins identified Gloria as
Creighton's killer. That note listed the names of
Detectives Rydi Abt and Joseph Green of the United States
Park Police, along with Detective Green's office and
pager numbers. R.60(d) Mot., Ex. 14, ECF No. 579-1. It also
lists the number for the Park Police Criminal Investigations
Bureau. Id. Immediately under the names and
telephone numbers was the following notation: "Jan
96-3/B/F victims shot to death on BW Pkwy." Id.
Under that notation is the notation "Dec 98-3 arrest
made, " followed by the names of Haynes, Higgs and
Gloria, along with other identifying information.
date, February 2, 1999, Detective Green retrieved a
photographic line-up previously created by the Park Police,
which included pictures of Gloria, and provided it to the
Baltimore Police. R.60(d) Mot., Ex. 15, ECF No. 579-1. The
police file also contained a complaint dated September 9,
1996 in which the complainant alleged that Gloria had thrown
a rock at his face and pulled a knife on him outside an
Applebee's restaurant in College Park, MD. R.60(d) Mot.,
Ex. 14, ECF No. 579-1.
police file also contained a handwritten note dated February
10, 1999, which included the notation: "Case Agent for
Victor Gloria S/A Brad Shaefe FBI Calverton Office."
R.60(d) Mot., Ex. 16, ECF No. 579-1. Several additional,
undated, handwritten notes contained the names of Detectives
Green and Abt, along with telephone numbers and information
relating to the Higgs/Haynes Murders. Id.;
R.60(d) Mot., Ex. 17, Ex. 18, ECF No. 579-1. One such note
contained directions to the U.S. Park Police Headquarters.
R.60(d) Mot., Ex. 20, ECF No. 579-1.
March 19, 1999, Detective Patton showed Barbara and Charnetta
Bailey photographic line-ups of Gloria and Miller. Barbara
Bailey could not identify either man. Govt.'s Resp., Ex.
12 at 1, ECF No. 585-12. Charnetta Bailey identified Miller
but not Gloria. Govt.'s Resp., Ex. 13 at 1. As for
Miller, Charnetta Bailey identified him as one of four
suspects involved in the homicide. Id.
April 7, 1999, the BPD arrested Miller. R. 60(d) Mot., Ex. 12
at 1, ECF No. 579-1. Although some details of his testimony
differed from that of the Scott twins, Miller also said that
Gloria punched Creighton and then ran away. Id. at
5-6. Miller said that he himself then threw a punch at one of
Creighton's friends, but never hit Creighton.
Id. Miller denied stabbing Creighton and said he did
not realize when he began fighting that Creighton had been
stabbed, and that it was only when the Scott twins called him
after their arrest and "told him everything" that
he learned about the stabbing. Id at 6. Miller told
Detective Patton that he had talked with the Scotts at least
three times since they were arrested because they wanted him
to "be their witness" and give them some
"lawyer money." Id. at 15. Miller also
said he received a letter from the Scotts while they were in
jail, and talked to their girlfriends. Id. at 16. He
said he talked with the Scotts about the case over the phone,
and described how "their girlfriends told me everything
about their statements and stuff." Id.
file also contained a handwritten note dated one week later,
August 14, 1999, the author of which was Mark Cohen, then
chief homicide prosecutor in the Baltimore City State's
Attorney's Office. The note read as follows:
Re Victor Gloria
1 I spoke to AUSA Deborah Johnston concerning Victor Gloria
on 4/12/99. She told me that Gloria pled guilty to AAF in
triple murder case that his plea agreement is sealed. The
two Co-[Defendants] Willis Haynes Dustin Higgs have trial
date of 2-7-2000. Because plea agreement is sealed, she ...