Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cole v. Bishop

United States District Court, D. Maryland

October 18, 2017

RONNELL VERNON COLE, #323-990 Petitioner
v.
FRANK B. BISHOP, Warden, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

         On July 25, 2017, Petitioner Ronnell Vernon Cole filed this 28 U.S.C. § 2254 habeas corpus petition attacking his 2004[1] convictions in the Circuit Court for Baltimore County, Maryland, for attempted first degree murder and unlawful use of a handgun in commission of a crime of violence. The Circuit Court sentenced Cole to life imprisonment plus a consecutive term of twenty years. Petition, ECF No. 1. Respondents filed an Answer seeking dismissal of the Petition as an unauthorized successive petition under 28 U.S.C. § 2244(b)(3)(A). Answer, ECF No. 2. Cole filed a Reply. Pet. Reply, ECF No. 4. Cole argues in his Reply that the Petition is not successive because he is actually innocent and there is newly discovered evidence that supports his claim of actual innocence. Id.

         After considering the pleadings, exhibits, and applicable law, this Court finds a hearing unnecessary. See Local Rule 105.6 (D. Md. 2016); Rule 8, Rules Governing Section 2254 Proceedings in the United States District Courts. For reasons to follow, the Petition will be DISMISSED without prejudice for lack of jurisdiction.

         Background

         On August 20, 2010, Cole filed his first §2254 petition attacking his attempted first degree murder and first degree assault convictions. Cole v. Shearin, PJM-10-2316, ECF No. 1. Cole raised four claims for review: (1) the post conviction judge abused his discretion by not allowing a continuance or the withdrawal of the petition without prejudice; (2) trial counsel provided ineffective assistance in failing to call “an alibi witness;” (3) trial counsel provided ineffective assistance in failing to object to the victim's photo array identification; and (4) trial counsel provided ineffective assistance in failing to object to the victim's trial testimony. Id. This Court found the first claim non-cognizable on federal habeas review and the remaining claims procedurally defaulted. Id.; Memorandum Opinion, ECF No. 15. On December 15, 2011, this Court denied the Petition and declined to issue a Certificate of Appealability. Id., ECF No. 16. Cole did not appeal.

         In May 2014, Cole filed a Petition for Writ of Actual Innocence, or in the Alternative, to Reopen Post Conviction Proceedings in the Circuit Court for Baltimore County. See Cole v. Maryland, Case No. 03-K-03-003705 Statement of Reasons (Cir. Ct. for Baltimore County, June 3, 2016); ECF No. 1-1. On March 31, 2015, the Circuit Court denied the Petition for Actual Innocence, but granted the Motion to Reopen Post Conviction Proceedings. Cole appealed the denial of the Petition for Writ of Actual Innocence, but the denial was upheld by the Court of Special Appeals of Maryland by unreported opinion. Statement of Reasons, ECF No. 1-1 at 2.

         Pursuant to the granting of the Petition to Reopen Post Conviction Proceedings, Cole filed a Petition for Post Conviction Relief in the Circuit Court for Baltimore County. In the Petition for Post Conviction Relief, Cole presented claims based on the testimony of Timothy Gilpin, a key prosecution witness. Gilpin had testified at trial that he received nothing in return for providing his testimony. There was however, a report prepared by the Baltimore County Police Department which indicated that during his interview Gilpin explained he had a drug addiction problem and asked for help in gaining admission to a long-term rehabilitation program. Statement of Reasons, ECF 1-1 at 2 and n. 1.

         In his Post-Conviction Petition, Cole alleged: (1) the State's failure to disclose the report constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) trial counsel was ineffective for failing to use the report to impeach Gilpin's credibility; and (3) the State violated his right to due process by failing to correct Gilpin's testimony which it knew was false. Statement of Reasons, ECF 1-1 at 2-3.

         The Circuit Court of Baltimore County held a hearing on the Petition on April 18, 2016, and denied post-conviction relief on June 3, 2016. In its Statement of Reasons, the Circuit Court concluded that the State had in fact provided a copy of the police report with Gilpin's statement to the defense. Further, Circuit Court held that even if counsel's failure to use the report to impeach Gilpin amounted to deficient performance, Cole had not demonstrated he was prejudiced as a result because the “State's evidence of Petitioner's guilt was so overwhelming that there is not a substantial possibility that the final verdict could have been affected.” Statement of Reasons, ECF 1-1 at 6. Specifically, the evidence showed that the victim had positively identified Cole as the shooter in a photo array after the shooting, identified the shooter in open court at trial, came face-to-face with Cole just hours before the shooting, and was familiar with Cole. A second witness for the state also identified Cole. A third witness, Cole's former girlfriend, testified that on the night of the shooting Cole had told her that was going to a party in the area where the shooting occurred and, after his arrest, Cole called his girlfriend and told her there was a gun in her driveway underneath the tire of a car. Cole instructed that his brother would pick the gun up, which he did. Cole's girlfriend testified the gun was a revolver, and the State's firearms expert testified the bullets recovered from the shooting were most likely from a revolver. Id. at 6-8.

         Regarding the due process violation, the Circuit Court noted that if the prosecution knew or should have known its case included perjured testimony, then a reversal of the conviction is warranted if there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Statement of Reasons, ECF 1-1 at 9 (citing Wilson v. State, 768 A.2d 675, 682, 684-85 (2001). As summarized by the Circuit Court, Gilpin testified that he did not ask for help with pending charges, was not promised anything in return for his testimony, and was motivated to testify by the gruesomeness of the crime. Statement of Reasons, ECF 1-1 at 9-10. The Circuit Court determined none of these statements were known by the State to be untrue. Id. at 9. Further, the Circuit Court stated that

While the report reflects that Mr. Gilpin had certainly indicated he would like help getting into a drug treatment program, there was no indication that he would need that in return for his statement. Nor is the fact that he asked for help getting into drug treatment the same as asking for help with his pending charges. The police report does not indicate that Mr. Gilpin was promised drug treatment, only that he requested it, so his testimony that there were no promises and no deal was truthful. The report does not indicate that drug treatment was the motivation for his testimony, only that he did request help.

         Statement of Reasons, ECF 1-1 at 9-10. Thus, the Circuit Court concluded the State had no definite knowledge Gilpin's testimony was false and had no duty to correct his statement.

         Discussion

         Under 28 U.S.C. §2244, a petitioner may only file a second or successive habeas corpus petition if he has first moved the appropriate circuit court for an order authorizing the district court to consider his application. See 28 U.S.C. §2244(b)(3); Felker v. Turpin, 83 F.3d 1303, 1305-07 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.