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Gray v. Stouffer

United States District Court, D. Maryland

October 28, 2016



          Catherine C. Blake United States District Judge.

         By order dated November 16, 2015, the above-captioned petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 was stayed pending petitioner's exhaustion of state remedies. (ECF No. 25). The stay was lifted on March 2, 2016, upon representation by petitioner that he no longer had state proceedings pending. (ECF No. 29). The stay was reinstated on May 6, 2016, when it became clear petitioner still had an application for leave to appeal pending in the Maryland Court of Special Appeals. (ECF No. 35). The stay was again lifted on June 20, 2016, upon receipt of evidence that appellate review had concluded. (ECF No. 41). The parties have further briefed the issues pending before this court. (ECF Nos. 42 & 43). No hearing is deemed necessary for the matters pending. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (holding that petitioner was not entitled to a hearing under 28 U.S.C. §2254(e)(2)).


         Petitioner was convicted by a jury of first degree rape and battery in the Circuit Court for Howard County on April 24, 1986. On July 18, 1986, petitioner was sentenced to serve life for the first degree rape and a five year concurrent term for battery. Petitioner filed an appeal to the Court of Special Appeals alleging that discriminatory peremptory challenges were used to eliminate black jurors. See Gray v. State, 317 Md. 250, 562 A.2d 1278, 1280 (1989). The Court of Special Appeals remanded the case with instructions to determine if petitioner had enough evidence for a prima facie showing of racial discrimination. Id. The lower court held that petitioner had failed to make such a showing and petitioner appealed. Id. Petitioner's appeal was denied and his convictions affirmed by the Court of Special Appeals on July 18, 1988. The Court of Appeals granted his petition for writ of certiorari and affirmed the conviction on September 8, 1989. See Gray v. Sowers, et al., Civil Action No. CCB-07-1095 (D. Md. 2007) (denying habeas petition as successive); see also Gray v. Gee, Civil Action No. CCB-97-332 (D. Md. 1997) (denying habeas relief for failure to exhaust claims).

         The instant petition was filed following the Fourth Circuit Court of Appeals' decision granting petitioner leave to file a second or successive petition under 28 U.S.C. §2244(b)(3)(C). (ECF No. 1 at 1 (In re: Isaac Gray, No. 14-478 (4th Cir. December 18, 2014))). In the motion filed with the Fourth Circuit, petitioner asserted that “newly discovered evidence from the U.S. Department of Justice and the Office of the Inspector General creates a credible showing of actual innocence and allows the petitioner to pursue his constitutional claims on the merits notwithstanding the existence of a procedural bar to relief.” (In re: Isaac Gray, No. 14-478 at 2, ECF No. 1-1). The newly discovered evidence pertains to a memorandum issued by the United States Department of Justice concerning testimony provided by FBI laboratory examiners in criminal cases prior to 1999. (Id. at 6). The memorandum noted that in some cases “the FBI laboratory examiners exceeded the limits of science by overstating the conclusions that may appropriately be drawn from a positive association between evidentiary hair and a known hair sample.” (Id. at 6-7).

         In petitioner's case, FBI Special Agent Michael Malone testified at trial regarding microscopic hair analysis. (In re: Isaac Gray, No. 14-478 at 4, n. 2). Petitioner asserts in his memorandum in support of the petition filed in this court that reliance on Malone's testimony, which he characterizes as perjured, constituted a miscarriage of justice and calls into question the validity of the outcome of his trial. He further claims that his trial transcripts were improperly withheld from him by the State when it erroneously claimed they had been destroyed and consequently prohibited him from presenting this claim in post-conviction proceedings. (In re: Isaac Gray, No. 14-478 at 5).

         State Court Proceedings

         On April 16, 2013, petitioner filed his third motion to re-open post-conviction proceedings in the Circuit Court for Howard County, Maryland. (ECF No. 20-2). On July 12, 2015, the state court denied the motion based on its view that petitioner waived the allegations of error presented “because [he] has had several prior opportunities to raise the allegations therein but intelligently and knowingly failed to do so.” (ECF No. 20-5). The court concluded that it was “not in the interest of justice to reopen post conviction proceedings.” Id. Petitioner's application for leave to appeal the ruling was denied by the Court of Special Appeals of Maryland. (ECF No. 20-6).

         In March of 2013, petitioner was informed by the State of Maryland that the trial testimony of Agent Malone would be sent to the Department of Justice for review of the microscopic hair comparison analysis testimony. (ECF No. 17-1 at 24). The Department of Justice issued the results of that review in September of 2014 and confirmed that a report or testimony regarding microscopic hair comparison analysis containing erroneous statements was used in petitioner's criminal trial. (Id. at 1).

         On May 20, 2014, petitioner filed a petition for writ of actual innocence in the Circuit Court for Howard County. (ECF No. 20-7 at 1). On January 9, 2015, a hearing was held on the petition for actual innocence.[1] (ECF No. 20-12). At the hearing, petitioner attempted to withdraw the matter without prejudice because the Fourth Circuit had granted authorization for petitioner to file a second or successive petition in this court. (Id. at 6-7). The state court noted that the only claim asserted in the actual innocence petition was the claim regarding the microscopic hair analysis admitted into evidence at petitioner's trial. (Id.) The court then granted the State's motion to dismiss the petition on the grounds that petitioner had not asserted actual innocence[2] in the petition and that he had admitted his guilt to the crimes for which he was convicted on three prior occasions. (Id. at 15-16). Petitioner did not appeal this decision.

         On June 15, 2015, following this court's order staying proceedings to permit exhaustion of the claims asserted, petitioner filed a motion to reopen state post-conviction proceedings in the Howard County Circuit Court. (ECF No. 42-3). In his motion to reopen, petitioner claimed that Agent Malone's testimony at trial overstated the reliability of the hair comparison analysis prejudicing his case, and that the prosecutor engaged in prejudicial misconduct by presenting Malone's testimony. (Id.)

         In response to petitioner's motion to reopen, the State asserted that the testimony provided by Malone in this case was reasonable and not perjurious, and there was substantial other evidence presented at trial to support petitioner's guilt. (ECF No. 43-2 at 5-6). The State summarized the evidence produced at trial as follows:

On July 1, 1985, shortly before noon, Georganne Derick was near the Vantage Point area walking on a bicycle path towards the Columbia Mall. Petitioner, carrying a towel and wearing blue shorts and socks with white stripes, approached her. When he was within reach of Ms. Derick, Petitioner put a knife to her throat and put the towel around her head. Petitioner repeatedly threatened to slit Ms. Derick's throat as he dragged her through the brush off the path. Petitioner placed a rubber or plastic skull cap over Ms. Derick's face before undressing, sexually assaulting, and raping her. During the events surrounding the rape, Ms. Derick lied to Petitioner and told [him] that she was a social worker in Baltimore City.
Detective Witte testified that on August 26, 1985, Ms. Derick selected a photograph of Petitioner as the man that “could be the guy” during a photographic array including seven photos. Petitioner's photograph was the only one that Ms. Derick singled out, but she subsequently advised that any of three other photographs could have been the rapist. At trial, Ms. Derick positively and emphatically identified Petitioner as her rapist.
On August 26, 1985, Howard Count Police Officer Martin Eppard arrested Petitioner as he was jogging out of [a] bicycle path onto Little Patuxent Parkway near Vantage Point Road. This was the same area and the same path where Petitioner raped Ms. Derick on July 1, 1985. Upon his arrest, Petitioner was carrying a folded towe[l] wrapped around a knife. Petitioner was also wearing sneakers, white socks with blue stripes, and blue running shorts when he was arrested. During the trial, Ms. Derick identified those articles of clothing as looking like the items he wore during the rape.
Jamal Jawara, a man who was incarcerated with Petitioner in the months preceding this trial also testified for the State. Mr. Jawara testified that Petitioner offered him “five hundred dollars to make sure that [Miss Derick] . . . did not appear in court.” Petitioner was seeking assistance because “he felt as though that if Miss Derick came to court to testify against him that she could identify him as the one who raped her.” Petitioner told Mr. Jawara that Ms. Derick worked in Baltimore City. Petitioner provided to Mr. Jawara a note with Ms. Derick's physical description written on it. Petitioner stipulated that he wrote that description.
Petitioner also testified in his defense. Petitioner denied raping Ms. Derick or having ever seen her prior to the trial. He explained the note containing Ms. Derick's description as a mere dictation of Mr. Jawara's description of Ms. Derick. Petitioner admitted that he had not received any writings describing Ms. Derick, where she lives, or her occupation. Petitioner also denied remembering anything specific about his activities on July 1, 1985. However, knowing that police had receipts of his purchases, Petitioner did admit to owning “a rubber skull type device, as described by Miss Derick” that he purchased at a store that sells theatrical makeup kits. Petitioner advised that he made the purchase because he was “going to case a course as an elective in theatrics.” Petitioner also admitted to purchasing costume sideburns, a chinbeard, hairspray and a makeup kit.

(ECF No. 42-2 at 1-3 (transcript cites omitted)).

         The testimony provided by Agent Malone in petitioner's case was that a single “head hair” found on Ms. Derick's dress had the “exact same twenty characteristics and the exact same arrangement as the head hairs of Mr. Gray.” (Id. 5). Malone then concluded that the hair found on Ms. Derick's dress “microscopically matches the head hairs of Mr. Gray.” (Id.). The State argued, however, that Malone's testimony, when viewed in its totality, did not overstate the evidence and included a warning to the jury against drawing any conclusions that his testimony was mathematically certain. (Id. at 6). The State argued that the other evidence against petitioner was overwhelming and he would have been convicted absent Malone's testimony. (Id. at 6-7).

         The State also noted that petitioner had admitted his guilt of the crime after the trial's conclusion. (Id. at 7). First, during an interview with Agent Russell Cook for purposes of petitioner' pre-sentence investigation, petitioner admitted his guilt and explained that he was “angry inside at his first wife, his father and because he felt he was a failure at his second marriage.” (Id.) Cook further noted that petitioner expressed “a great deal of remorse for what he put the victim through.” (Id.) Second, petitioner wrote in a letter dated October 3, 1989, addressed to the Honorable Robert Fisher that his “behavior was inexcusable towards my victim and I am earnestly remorseful, for my past behavior.” (Id.) Lastly, petitioner wrote a letter dated November 10, 2007, ...

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