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United States v. Higgs

United States District Court, D. Maryland

June 29, 2016

UNITED STATES OF AMERICA, Respondent,
v.
DUSTIN JOHN HIGGS, Petitioner Civ. No. PJM-05-3180

          MEMORANDUM OPINION

          PETER J. MESSITTE, District Judge.

         Following 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. § 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 §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.

         I.

         Background

         The 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 helpful.

         On the 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.

         Shortly 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.

         Higgs 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.

         Afterwards, 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.

         On December 21, 1998 Higgs and Haynes were indicted on three counts each of first-degree premeditated murder, see 18 U.S.C.A. § 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. § 1201(a)(2), and using a firearm while committing a crime of violence, see 18 U.S.C. § 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 firearm offenses.

         At 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.[1]

         On 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 ").

         The § 2255 Proceedings

         On November 28, 2005, Higgs filed a 122-page Motion to Vacate under 28 U.S.C. § 2255 or in the Alternative Pursuant to 28 U.S.C. § 2241 asserting twenty-five claims of error.[2] 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 § 2255, ECF No. 492. While preparing the § 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 § 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. Id.

         In 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 § 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.

         The 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 verdict.

Higgs III, 711 F.Supp.2d at 508.

         The 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).

         The Creighton Murder Investigation

         Meanwhile, 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 2012. Id.

         Because 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.

         On July 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. 579-1.

         Baltimore 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.

         The 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.

         An 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 wound.

         The 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.

         About a 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. at 4.

         On 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.

         In 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.

         The 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.

         At some 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. Id.

         On that 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.

         The 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.

         On 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.[3] Id.

         On 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.

         The BPD 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[4]. The note read as follows:

Bobby,
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 ...

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