United States District Court, D. Maryland
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
25, 2017, Petitioner Ronnell Vernon Cole filed this 28 U.S.C.
§ 2254 habeas corpus petition attacking his
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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