United States District Court, D. Maryland
Catherine C. Blake United States District Judge.
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.
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).
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).
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).
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).
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).
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. (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 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.
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.)
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
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)).
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).
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, ...