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Syed v. State

Court of Special Appeals of Maryland

March 29, 2018

ADNAN SYED
v.
STATE OF MARYLAND STATE OF MARYLAND
v.
ADNAN SYED

          Circuit Court for Baltimore City Case Nos. 199103042 to 046

          Woodward, C.J., Wright, Graeff, JJ. [*]

          Woodward, C.J.

         TABLE OF CONTENTS

         I. BACKGROUND ........................................................................................................... 5

         A. Trial …………… ........................................................................................... 5

         1. Day of the Murder ……………………………… ..................................... 6

         a. Morning of January 13, 1999 ………..…………… .......................... 6

         b. Midday ………… ………………………………………………….. 6

         c. Afternoon ………………………………………………………….. 7

         d. Evening …………………………………………………………. 10

         e. Nighttime ………………………………………………………….… 12

         2. Forensic Evidence ....................................................................................... 14

         3. Verdict and Appeal .................................................................................... 16

         B. Post-Conviction Proceedings ............................................................................. 16

         THE STATE'S PROCEDURAL QUESTIONS … ...................................................... 21

         I. The Scope of this Court's May 18, 2015 Remand Order ………………………. 21

         A. Background …………………………………………………………………. 21

         B. Contentions …….………………………… ..................................................... 24

         C. Analysis ……………………………………………………………………. 25

         II. The Reopening of Syed's Post-Conviction Proceeding .......................................... 27

         A. Background …………..……………………………………………………… 27

         B. Contentions ……..……………………… ....................................................... 28

         C. Analysis ……………..………………………………………………….…… 29

         III. Waiver of Syed's Claim of Ineffective Assistance of Counsel Pertaining to the Cell Tower Location Evidence ............................. 35

         A. Legal Background .......................................................................................... 35

         B. Reopened Post-Conviction Proceeding ............................................................ 41

         C. Contentions on Appeal ……………………………………………………… 42

         D. Analysis ……………..……………………… …………………….…… ..... 43

         SYED'S QUESTIONS ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL............................................................... 54

         Standard of Review …………………………………………… ........................54

         I. Trial Counsel's Failure to Pursue a Plea Deal with the State ……………………. 55

         A. Background …………………………………………………………………. 55

         B. Memorandum Opinion I ………………………………………………….… 58

         C. Analysis …………………………………………………………………… 59

         II. Trial Counsel's Failure to Investigate McClain as a Potential Alibi Witness …. 61

         A. Background ……………………………………………………………….. 61

         1. First Hearing………………………………………………………….… 61

         2. First Appeal ………………………………………………………...… 64

         3. Second Hearing ………………………………………………………… 65

         4. Memorandum Opinion II …………………………………………….. 73

         B. Deficient Performance ……………………………………………………. 74

         1. Contentions ……………………………………………………………. 74

         2. Relevant Case Law ………………………………………………………76

         3. Analysis ………………………………………………………………… 85

         C. Prejudice ……………………………………………………………………. 94

         1. Contentions …………………………………………………….………. 95

         2. Analysis ………………………………………………………………. 96

         D. Conclusion ………………………………………………………………….104

         Hae Min Lee ("Hae")[1] was last seen on the afternoon of January 13, 1999, at Woodlawn High School in Baltimore County, Maryland. Less than a month later, on February 9, 1999, Hae's body was discovered in a shallow grave in Leakin Park located in Baltimore City, Maryland. Through investigation, Baltimore City authorities came to believe that appellant/cross-appellee, Adnan Syed, was responsible for Hae's death and charged Syed with first degree murder and related crimes.

         On February 25, 2000, a jury in the Circuit Court for Baltimore City returned verdicts of guilty against Syed for first degree murder, kidnapping, robbery, and false imprisonment. The court subsequently sentenced Syed to life imprisonment for first degree murder, thirty years for kidnapping (to run consecutive to the life sentence), and ten years for robbery (to run consecutive to the life sentence but concurrent to the thirty years for kidnapping). The conviction for false imprisonment was merged for sentencing purposes. On direct appeal, this Court affirmed the convictions in an unreported opinion, and in June 2003, the Court of Appeals denied Syed's petition for writ of certiorari. Syed v. State, No. 923, Sept. Term 2000 (filed March 19, 2003), cert. denied, 376 Md. 52 (2003).

         The unusual procedural posture of this case began ten years after Syed's convictions, when he filed a petition for post-conviction relief on May 28, 2010. After a two-day hearing, the circuit court denied all nine of Syed's claims for post-conviction relief in January 2014.

         Syed filed a timely application for leave to appeal to this Court, which we granted on February 6, 2015. After considering Syed's request to remand his appeal because of a newly obtained affidavit from Asia McClain, a potential alibi witness, we remanded the case to the circuit court by order dated May 18, 2015, for that court to decide whether to reopen Syed's post-conviction proceeding. We stayed the remaining question raised in Syed's appeal.

         On remand, the circuit court reopened Syed's post-conviction proceeding and conducted a five-day evidentiary hearing in February 2016. Ultimately, the circuit court granted Syed a new trial on the grounds of ineffective assistance of trial counsel[2] for counsel's failure to properly challenge the reliability of the evidence relating to the location of Syed's cell phone at the time that incoming calls were received on the night of the murder.

         The State filed a timely application for leave to appeal on August 1, 2016, and Syed filed a conditional cross-application for leave to appeal. We granted both applications, lifted the stay imposed pertaining to Syed's original appeal, and consolidated the appeals. Accordingly, we will consider the questions and issues raised in both appeals, which we have rephrased and organized into the following questions:[3]

         The State's Procedural Questions:

1. Did the post-conviction court abuse its discretion by exceeding the scope of this Court's May 18, 2015 remand order?
1. Was [Syed's] trial counsel constitutionally ineffective when she failed to investigate a potential alibi witness, then told [Syed] that "nothing came of" the alibi witness?
2. Was [Syed's] trial counsel constitutionally ineffective when [Syed] asked her to seek a plea offer, but counsel failed to do so, and counsel falsely reported back to [Syed] that the State refused to tender an offer?

         The State's Appeal Issues - No. 1396-2016:

1. Whether the post-conviction court abused its discretion in reopening the post-conviction proceeding to consider Syed's claim that his trial counsel's failure to challenge the reliability of the cell phone location data evidence, based on the cell phone provider's "disclaimer" about the unreliability of incoming calls for location purposes violated Syed's Sixth Amendment right to the effective assistance of counsel.
2. Whether the post-conviction court erred in finding that Syed had not waived his claim regarding trial counsel's failure to challenge the reliability of the cell phone location data for incoming calls by failing to raise it earlier.
3. Whether the post-conviction court erred in finding that Syed's trial counsel's failure to challenge the State's cell phone location data evidence, based on the cell phone provider's "disclaimer, " violated Syed's Sixth Amendment right to effective assistance of counsel.

         Syed's Cross-Appeal Issue - No. 1396-2016:

1. Whether the post-conviction court erred in concluding that - despite the finding Syed's trial counsel rendered ineffective assistance in failing to investigate a potential alibi witness - counsel's deficient representation did not violate Syed's Sixth Amendment right because Syed was purportedly not "prejudiced."
2. Did the post-conviction court abuse its discretion when it reopened Syed's post-conviction proceeding to consider the claim of ineffective assistance of counsel for trial counsel's failure to properly challenge the reliability of the cell tower location evidence?
3. Did the post-conviction court err by determining that Syed did not waive his ineffective assistance of counsel claim pertaining to trial counsel's failure to properly challenge the reliability of the cell tower location evidence?[4]

         Syed's Questions on His Claims of Ineffective Assistance of Counsel:

1. Did the post-conviction court err by holding that Syed's right to effective assistance of counsel was not violated when trial counsel failed to pursue a plea deal with the State?
2. Did the post-conviction court err by holding that Syed's right to effective assistance of counsel was not violated when trial counsel failed to investigate McClain as a potential alibi witness?

         For the reasons set forth below, we affirm the judgment of the circuit court, but do so by concluding that Syed's Sixth Amendment right to effective assistance of counsel was violated by trial counsel's failure to investigate McClain as a potential alibi witness. Accordingly, we remand the case for a new trial.

         BACKGROUND

         A. Trial

         At trial, [5] the State's theory was one of a scorned lover. The State described Syed as resentful when Hae ended her and Syed's on-again, off-again relationship in November of 1998. According to the State, this resentfulness only grew after Syed discovered that at the beginning of January 1999, Hae had begun dating Donald Cliendinst ("Don"). To make matters worse, Hae's new relationship quickly became common knowledge among students and teachers at Woodlawn High School, where both Hae and Syed were enrolled as students in the Magnet program for gifted students.

         The State theorized that sometime before the school day ended on January 13, 1999, Syed asked Hae for a ride so that he could pick up his car at the repair shop, knowing that she would say yes. During that ride, Syed, a regular operator of Hae's Nissan Sentra, drove them to the Best Buy parking lot situated off Security Boulevard in Baltimore County, a location frequented by them during their courtship. Central to the State's theory was that Syed murdered Hae between 2:15 p.m. and 2:35 p.m. in the Best Buy parking lot by strangling her and then placing her body in the trunk of her car. The State adduced evidence showing that later that night, Syed and Jay Wilds (the State's key witness) buried Hae's body in Leakin Park.

         A summary of the evidence adduced at trial in a light most favorable to the State is set forth below.

         1. The Day of the Murder

         a. Morning of January 13, 1999

         At 10:45 a.m. on January 13, 1999, Syed used his newly purchased cell phone[6] to call Wilds's home phone. Syed asked Wilds if he had any plans that day, to which Wilds replied that he needed to go to the mall to purchase a birthday present for his girlfriend. Syed stated that he would give Wilds "a lift." Later that morning, Syed arrived at Wilds's house in a tan four-door Honda Accord, and the two drove to Security Square Mall.

         After shopping, Syed told Wilds that he had to get back to school, because his lunch period was ending. During the drive to school, Syed told Wilds "how [Hae] made him mad, " and declared, "I'm going to kill that bitch . . . ." Wilds dropped Syed off at school, and Syed permitted Wilds to drive his car and keep Syed's cell phone. Syed said that he would give Wilds a call when he was ready to be picked up.

         b. Midday

         As Wilds was leaving school, he used Syed's phone to call his close friend, Jennifer Pusateri, to see if he could come over to her house. Syed's cell phone records indicate that a call was placed to Pusateri's phone at 12:07 p.m. Pusateri's brother answered the phone and told Wilds to come over, even though Pusateri was still at work. Pusateri was supposed to leave work around noon but was delayed that day. While at Pusateri's house, Wilds received a call from Syed, who stated that he was not ready to be picked up yet but that he needed to be picked up "at like 3:45 or something like that[.]"

         When Pusateri got home from work, she observed that Wilds had a cell phone with him and had driven a tan four-door car to her house. Pusateri also noted that Wilds "wasn't acting like [he] normally acts[, ]" and "[h]e wasn't as relaxed as he normally is[.]"

         c. Afternoon

         Aisha Pittman, Hae's best friend, said that she saw Hae "[r]ight at the end of the school day at 2:15 [p.m.] in Psychology class." When Pittman saw Hae, Hae was talking to Syed. Rebecca Walker, a student and friend of Hae and Syed, said that she too "saw [Hae for] a few seconds after class let out" at 2:15 p.m. that day. Walker said that she "saw [Hae] heading towards the door [that would have led to where her car was parked] but [ ] did not see [Hae] actually leave." Hae told Walker that "she had to be somewhere after school." But Hae did not say where she was going.

         Inez Butler Hendricks, a teacher and athletic trainer at Woodlawn High School, saw Hae at the concession stand in the gym lobby at "about 2:15, 2:20 [p.m]." She recalled that Hae was wearing "[a] little short black skirt, light colored blouse, [ ] black heels[, and] . . . some [clear] nylon stockings [on her legs]" that day.[7]

         Young Lee, ("Young"), Hae's brother, stated that Hae was supposed to pick up their cousin from elementary school around 3:00 p.m. that day. Young discovered that Hae had not picked up the cousin when the elementary school called to notify him that the cousin needed to be picked up.

         Meanwhile, Wilds received a phone call from Syed. According to Wilds, "[Syed] asked [him] to come and get him from Best Buy." Syed's cell phone records indicate an incoming call was received at 2:36 p.m.[8]

         Upon receiving the call from Syed, Wilds stated that he went straight to Best Buy where he saw Syed standing next to a pay phone wearing a pair of red gloves. Syed instructed Wilds to drive to the side of the building and park the car next to a gray Nissan Sentra, which was later identified as Hae's car. Wilds got out of the car and walked towards Syed. Syed asked Wilds if he was "ready for this." According to Wilds, Syed "opened the trunk and [Hae] was dead in the trunk."

         Syed then closed the trunk and instructed Wilds to follow him as he drove Hae's car. In a self-described state of bewilderment, Wilds followed Syed to the Interstate 70 Park and Ride where Syed parked Hae's car. Syed got into the driver's seat of his car and drove away with Wilds as a passenger. Syed asked Wilds if he wanted to go buy some marijuana, to which Wilds agreed.

         On their way to the house of Patrick Furlow, Wilds's friend and marijuana dealer, Wilds made a call to Pusateri to see if she knew if Furlow was home; Pusateri replied that she did not. Syed's cell phone records indicate that a call was made to Pusateri's phone at 3:21 p.m.

         During their drive to Furlow's house, Syed also made a call to Nisha Tanna, a friend of his who lived in Silver Spring. Syed asked Wilds if he wanted to talk to Tanna and passed the cell phone to Wilds. Not feeling like talking, Wilds said, "hello, my name is Jay" and passed the phone back to Syed. According to Tanna, Syed asked her how she was doing and then "put his friend Jay [Wilds] on the line, and he basically asked the same question." Syed's cell phone records indicate that a call was made to Tanna's phone at 3:32 p.m.

         Wilds called Furlow at 3:59 p.m. and learned that he was not home. At this point, Syed and Wilds changed course and drove to Forest Park to purchase marijuana. Wilds stated that he called Pusateri to see if she knew if Kristina Vinson, [9] a mutual friend of Pusateri and Wilds, was home. Syed's cell phone records indicate that a call was made to Pusateri's phone at 4:12 p.m.

         Syed told Wilds that he wanted to go to track practice at Woodlawn High School, because "he needed to be seen."[10] During the ride to Woodlawn High School, Syed expressed that "it kind of hurt him but not really, and when someone treats him like that, they deserve to die." Syed asked: "How can you treat somebody like that, that you are supposed to love?" Wilds stated that Syed spoke about the murder and confessed that "he thought [Hae] was trying to say something to him like apologize or say she was sorry, and that she had kicked off the turn signal in the car, and he was worried about her scratching him on the face or something like that . . . ."[11] When they arrived at Woodlawn High School, Syed told Wilds, "mother-fuckers think they are hard, I killed somebody with my bare hands."

         Wilds then drove to Vinson's apartment to smoke marijuana and debate with himself about what to do. Wilds received a call from Syed on the cell phone half an hour later saying that he was at school ready to be picked up, and Wilds left Vinson's apartment to retrieve Syed.

         d. Evening

         Wilds stated that, after he picked up Syed, they both went to Vinson's apartment. Vinson stated that Wilds and Syed arrived at her apartment around 6:00 p.m. According to Vinson, it was memorable, because "they were acting real shady when they got there." While they were at Vinson's apartment, Wilds recalled that Syed received three phone calls. The first call was from Hae's parents asking if Syed knew where Hae was, to which he stated, "I haven't seen Hae, I don't know where she is, try her new boyfriend."

         Wilds said that the second call occurred when "Hae's cousin or someone had called back[, ] but it was the wrong number. They thought it was the new boyfriend's number[, ] and it was his cellphone number or something like that." Young testified that "[he] looked around the house to look for [Hae's] friends' phone numbers and such, " and discovered a phone number listed in Hae's diary as "443 253-9023."[12] Young called that phone number believing that it was the number of Hae's new boyfriend, Don, because the sheet of paper had "Don" written all over it. After talking for a while, Young realized that he was speaking to Syed, because he recognized Syed's voice. Young asked Syed "if he knew where [Hae] was, or where she could be." According to Young, Syed did not say whether he knew where Hae was.

         The third phone call, according to Wilds, was "from a police officer who was asking about Hae." Officer Scott Adcock testified that he called Syed between 6:00 p.m. and 6:30 p.m. and spoke to him for "no more than three to four minutes." Syed responded to the police officer stating, "I don't know where Hae is." Syed also "advised [him] that he did see her at school and that [Hae] was going to give him a ride home from school, but he got detained and felt that she probably got tired of waiting for him and left."

         Vinson testified that after receiving the last phone call, Syed said, "they're going to come talk to me" and then "ran out of the apartment." According to Vinson, Wilds "jumped up and ran out of the apartment, too." Vinson looked out the window of her apartment and observed Syed and Wilds drive away. Syed's cell phone records indicate that three incoming calls were received by Syed's cell phone at 6:07 p.m., 6:09 p.m., and 6:24 p.m.

         e. Nighttime

         Wilds recounted that after leaving Vinson's apartment, Syed drove them to Wilds's house. There, Syed told Wilds that he needed his help getting rid of Hae's body, stating that "he knew what [Wilds] did, " and "how [he] did it[.]" Fearing that this comment was a threat to report Wilds to the police for his drug dealing, Wilds agreed to help. Syed then "grabbed two shovels and put them in the back seat of his car. [Wilds] got in [Syed's] car with him." The two went back to the Interstate 70 Park and Ride where Syed got out of his car and got into Hae's parked car. Wilds followed Syed, and they drove around for forty-five minutes, ultimately arriving at Leakin Park.

         Wilds stated that, because he was supposed to meet Pusateri at 7:00 p.m. that evening, he paged her to tell her that he was going to be late for their meeting. Syed's cell phone records indicate that a call was made to Pusateri's pager number at 7:00 p.m.

         When Syed and Wilds arrived at Leakin Park, Syed parked Hae's car on a nearby hill, got into his car, and instructed Wilds to drive down the hill. They then went about 150 feet[13] into the woods and used the shovels to begin digging.

         Wilds stated that, "while we were digging, [Pusateri] had called back, and [Syed] just told her [Wilds] was busy now and hung up the phone." Pusateri testified that at 7:00 p.m. she received "a page from [Wilds, ] and it was a voice message." She was confused by Wilds's page and "didn't understand the message [about] where [Wilds] wanted [her] to pick him up and what time. So [she] thought that it was necessary to call him." When she called the number on her caller I.D., "[s]omeone answered the phone and said [Wilds] will call me when he was ready for me to come and get him. He was busy." Syed's cell phone records indicate an incoming call was received at 7:09 p.m. Abraham Waranowitz, the State's expert in "cell phone network design and functioning[, ]" testified that this call registered with cell site "L689B[, ]" which was the strongest cell site for the location of Hae's body in Leakin Park.

         After digging the grave, Wilds and Syed went back to Syed's car and put the shovels in the passenger side. Wilds then drove up the hill and parked behind Hae's car. According to Wilds, "[Syed] asked me for like five to ten minutes, he was like I don't think I'm going to be able to get her out by myself, I think I need your help." When Wilds responded that he was not going to help, Syed drove Hae's car down the hill.

         Soon thereafter, Syed came back up the hill, parked Hae's car, got into his car, and told Wilds that they needed to bury Hae. Wilds returned with Syed to the woods where Hae was "laying kind of twisted face down." While they were burying the body, Syed received another phone call. Wilds did not know who the caller was, but noted that part of the conversation was not in English. Syed's cell phone records indicate an incoming call was received at 7:16 p.m. and registered with the same cell site, "L689B."

         After Wilds and Syed finished burying Hae's body, Syed put the shovels in his car, and they drove up the hill to Hae's parked car. Syed drove away in Hae's car, with Wilds following behind driving Syed's car. Wilds recalled that the two

traveled towards the [C]ity on Route 40 and some of the back streets. We cut north and south, up and down roads. [Syed] pulled into like this alcove in the back of a whole lot of apartments. He parked [Hae's] car and came back to his vehicle. [14] At that time, I told him just flat out to take me home. He started driving me home.

         Wilds further testified that Syed stopped his car at Westview Mall where he threw Hae's wallet, prom picture, and other possessions into a dumpster. Wilds then told Syed to pull behind Value City in Westview Mall where he threw the two shovels into a dumpster.[15]

         Wilds stated that he paged Pusateri, and she testified that she received a page to pick Wilds up from Westview Mall around 8:00 p.m. Pusateri testified further that she picked Wilds up from the Value City in Westview Mall about ten to fifteen minutes after receiving his page. When Wilds got into her car, "the first thing he said was like put on your seat belt and let's go." When they left the parking lot, Wilds confessed that he had something to tell her that she could not tell anybody. Wilds then disclosed that Syed had strangled Hae in the Best Buy parking lot and that he had seen Hae's body in the trunk of a car.

         2. Forensic Evidence

         Although there were no eyewitnesses to the murder, there was forensic evidence that the State theorized linked Syed to the crimes. Margarita Korell, M.D., an assistant medical examiner at the Office of the Chief Medical Examiner in Baltimore City, was accepted as "an expert in forensic pathology" at trial. Dr. Korell testified that on February 10, 1999, she performed an autopsy on Hae. Dr. Korell opined that "the cause of death was strangulation" and that the manner of death was "[h]omicide." Dr. Korell noted that the hyoid bone in Hae's neck was broken, and the strap muscles of the neck showed hemorrhaging, which indicated that pressure had been applied to the skin on the neck. Dr. Korell stated that in her experience, "if [ ] pressure [is applied] on the neck for ten seconds or so, " that could lead to unconsciousness and death within "a couple of minutes."

         Romano Thomas, a crime lab technician with the Baltimore City Police Department Mobile Crime Lab Unit, testified that on February 28, 1999, he supervised the inspection of Hae's vehicle. Thomas stated that one of the items recovered from the car was a map of the Leakin Park area that was torn out of a map book. The torn out piece was found in the rear seat area of the vehicle.

         Sharon Talmadge, an employee at the Baltimore City Police Department Latent Print Unit, testified that her duties were to "evaluate partial latent prints to determine if they [were] suitable for comparison." Talmadge would "then compare suitable partial latent prints to the prints of victims, suspects[, ] or defendants. [She would also] process physical evidence to determine if there [were] any partial latent prints on that particular piece of evidence." Talmadge said that she was asked to determine if there were any partial latent prints on the map and map book that were recovered from Hae's vehicle. Talmadge made a comparison to Syed and Wilds, and testified that "[a] partial latent print developed on the back cover of the map [book] . . . was identified as an impression of the left palm of [ ] Syed."

         3. Verdict and Appeal

         After six weeks of trial, the jury spent only about three hours deliberating before finding Syed guilty on February 25, 2000, of the charges of first degree murder, robbery, kidnapping, and false imprisonment. Syed was sentenced on June 6, 2000, to a total term of life imprisonment plus thirty years.

         On direct appeal, Syed did not challenge the sufficiency of the State's evidence pertaining to any of his convictions. See Syed v. State, No. 923, Sept. Term 2000, slip op. at 1 (filed March 19, 2003), cert. denied, 376 Md. 52 (2003). Instead, he raised numerous evidentiary issues and alleged violations of Brady v. Maryland, 373 U.S. 83 (1963). Id. at 1-2. In an unreported opinion, filed on March 19, 2003, this Court found no merit to Syed's contentions and affirmed all of his convictions. Id. at 57. The Court of Appeals denied Syed's petition for writ of certiorari on June 20, 2003.

         B. Post-Conviction Proceedings

         On May 28, 2010, Syed filed a petition for post-conviction relief, and later supplemented his petition on June 27, 2010. Syed raised nine claims of ineffective assistance of counsel concerning trial counsel, sentencing counsel, and appellate counsel, which the post-conviction court summarized as follows:

I. Trial counsel failed to establish a timeline that would have disproved the State's theory and shown that [Syed] could not have killed [Hae] in the manner described by [the] State[']s witness Jay Wilds[;]
II. Trial counsel failed to call or investigate an alibi witness, Asia McClain, who was able and willing to testify;
III. Trial counsel failed to move for a new trial based on the statements of Asia McClain, which exonerated [Syed];
IV. Trial counsel failed to adequately cross-examine Deborah Warren, a State witness;
V. Trial counsel failed to approach the State about a possible plea deal;
VI. Trial counsel failed to inform [Syed] of his right to request a change of venue;
VII. Trial counsel failed to investigate the State's key witness, Jay Wilds, for impeachment evidence;
VIII. Appellate counsel failed to challenge testimony of [the] State's expert witness that strayed outside of his expertise; and
IX. [Syed's] counsel at sentencing failed to request that the [sentencing court] hold [Syed's] hearing on Motion for Modification of Sentence in abeyance.[16]

         On October 11, 2012, and October 25, 2012, a post-conviction hearing was held ("first hearing"). In a Memorandum Opinion and Order ("Memorandum Opinion I"), issued on January 6, 2014, the post-conviction court denied Syed post-conviction relief.

         On January 27, 2014, Syed filed a timely application for leave to appeal to this Court, which requested that we review "(1) whether his trial counsel rendered ineffective assistance [of counsel] by failing to interview or even contact Asia McClain, a potential alibi witness; and (2) whether [his trial counsel rendered ineffective assistance of counsel by] failing to pursue a plea offer and purportedly misrepresenting to Syed that she had." On January 20, 2015, Syed supplemented his application for leave to appeal, requesting that this Court remand the case for additional fact-finding in light of an affidavit by McClain, dated January 13, 2015. In that affidavit, McClain reaffirmed her recollection of seeing Syed at the Woodlawn Public Library at the time that the State alleged that Syed murdered Hae. McClain also stated in the affidavit that in telephone conversations with the Assistant State's Attorney, Kevin Urick, she was discouraged from attending the first hearing.

         After granting leave to appeal on February 6, 2015, and receiving briefs from both the State and Syed, this Court, on May 18, 2015, issued an order staying Syed's appeal on the issue of ineffective assistance of trial counsel for failure to pursue a plea offer. We further granted Syed's request to remand the case to the circuit court for further proceedings pursuant to the Uniform Postconviction Procedure Act ("UPPA"), Maryland Code (2001, 2008 Repl. Vol.), § 7-109(b)(3)(ii)(2) of the Criminal Procedure Article ("CP") and Maryland Rule 8-604(a)(5), (d). In our order, we instructed the post-conviction court to consider reopening the post-conviction proceeding if Syed were to file a motion to reopen within 45 days of our order.

         On remand, on June 30, 2015, Syed filed, pursuant to CP § 7-104, a Motion to Reopen Post-Conviction Proceedings ("Motion to Reopen"), based upon the January 13, 2015 affidavit of McClain. On August 24, 2015, Syed filed a "Supplement to Motion to Re-Open Post-Conviction Proceedings" ("Supplement"), requesting that the post-conviction court reopen the post-conviction proceeding to consider new claims of ineffective assistance of trial counsel and a Brady violation concerning the reliability of certain cell tower location evidence admitted at trial. The State filed a consolidated response, and Syed, in turn, filed a reply. The post-conviction court granted Syed's request to reopen his post-conviction proceeding to consider those "issues raised by McClain's January 13, 2015 affidavit[, ] and [Syed's] Supplement concerning the matter of cell tower location reliability."

         On February 3, 2016, the post-conviction court began a five-day hearing ("second hearing") to consider the aforementioned issues raised by Syed, and on June 30, 2016, the post-conviction court issued its "Memorandum Opinion II." In this opinion, the post-conviction court first considered the issue of "[w]hether trial counsel's alleged failure to contact McClain as a potential alibi witness violated [Syed's] Sixth Amendment right to effective assistance of counsel." On this issue, the post-conviction court concluded that Syed's trial counsel was deficient by failing to investigate McClain as a potential alibi witness but that such deficiency did not prejudice Syed. Accordingly, the post-conviction court denied Syed post-conviction relief on that claim.

         Next, the post-conviction court considered "[w]hether the State withheld potentially exculpatory evidence related to the reliability of cell tower location evidence in violation of the disclosure requirements under Brady." The post-conviction court ruled that Syed had waived this claim by failing to raise it in his petition for post-conviction relief and accordingly, denied post-conviction relief.[17]

         Lastly, the post-conviction court considered Syed's claim that "trial counsel's alleged failure to challenge the reliability of the cell tower location evidence violated [his] Sixth Amendment right to effective assistance of counsel." The post-conviction court first held that Syed had not knowingly and intelligently waived this claim. On the merits, the post-conviction court determined that the performance of Syed's trial counsel was deficient because of her failure to cross-examine Waranowitz concerning a fax cover sheet for Syed's cell phone records that contained a disclaimer stating: "Any incoming calls will NOT be considered reliable information for location." The post-conviction court then concluded that such deficiency was prejudicial to Syed, because the State's case relied heavily on placing Syed at Leakin Park at the alleged time of the burial of Hae's body. Accordingly, on this issue, the post-conviction court granted Syed's petition for post-conviction relief. The court vacated Syed's convictions and granted him a new trial.

         On August 1, 2016, the State filed a timely application for leave to appeal to this Court. Syed then filed a conditional application for leave to cross-appeal. On January 18, 2017, this Court issued an order granting the State's application for leave to appeal and Syed's conditional application for leave to cross-appeal. We further lifted the stay of Syed's first appeal imposed by our remand order and consolidated the appeals.

         Additional facts will be provided as they become necessary to the resolution of the questions presented in the case sub judice.

         THE STATE'S PROCEDURAL QUESTIONS

         I. Did the Post-Conviction Court Abuse Its Discretion by Exceeding the Scope of This Court's May 18, 2015 Remand Order?

         A. Background

         In our May 18, 2015 remand order, this Court wrote, in relevant part:

The purpose of the stay and the remand is to provide Syed with the opportunity to file with the circuit court a request, pursuant to § 7-104 of the Criminal Procedure Article of Md. Code, to re-open the previously concluded post-conviction proceeding in light of [ ] McClain's January 13, 2015, affidavit, which has not heretofore been reviewed or considered by the circuit court. Moreover, because the affidavit was not presented to the circuit court during Syed's post-conviction proceeding, as it did not then exist, it is not a part of the record and, therefore, this Court may not properly consider it in addressing the merits of this appeal. This remand, among other things, will afford the parties the opportunity to supplement the record with relevant documents and even testimony pertinent to the issues raised by this appeal.
We shall, therefore, remand the case to the circuit court, without affirmance or reversal, to afford Syed the opportunity to file such a request to re-open the post-conviction proceedings. In the event that the circuit court grants a request to re-open the post-conviction proceedings, the circuit court may, in its discretion, conduct any further proceedings it deems appropriate. If that occurs, the parties will be given, if and when this matter returns to this Court, an opportunity to supplement their briefs and the record.
Accordingly, it is this 18th day of May 2015, by the Court of Special Appeals,
ORDERED that the above-captioned appeal be and hereby is STAYED; and it is further
ORDERED that [Syed's] request for a remand to the circuit court is GRANTED and the case be and hereby is REMANDED to the Circuit Court for Baltimore City, without affirmance or reversal, for the purpose set forth in this Order; and it is further
ORDERED that [Syed] shall file his motion to re-open the closed post-conviction proceeding within 45 days of the date of this Order and, if he fails to do so, the stay shall be lifted and this Court will proceed with the appeal without any reference to or consideration of [Syed's] Supplement to Application for Leave to Appeal or any documents not presently a part of the circuit court's record; and it is further
ORDERED that, after taking any action it deems appropriate, the circuit court shall forthwith re-transmit the record to this Court for further proceedings.

(Emphasis added).

         As authorized by our remand order, Syed timely filed the Motion to Reopen, which was based on the McClain affidavit. Almost two months later, however, Syed filed the Supplement that raised, among other things, a claim of ineffective assistance of counsel pertaining to trial counsel's failure to properly challenge the reliability of the cell tower location evidence, which claim had never been raised before in any proceeding arising out of the charges against Syed. In the Supplement, Syed explained why such claim should be heard at the same time as the claim raised in his Motion to Reopen:

[A]s a matter of judicial economy, the [c]ourt should consider this issue now. If it does not, and if Syed's conviction is not vacated on the alibi issue, Syed would have to raise the issue in a successive motion to re-open post-conviction proceedings. Not only could this lead to another separate proceeding, but it could lead to another appeal. It is in the interest of all parties to resolve this matter - and get to the heart of the problem - once and for all. Now is the time to do so.

         In its consolidated response, the State acknowledged that Syed appeared to be advocating for his Supplement to be considered as a new motion to reopen under CP § 7-104, but argued that the post-conviction court should not reopen, because the issue concerning the failure of trial counsel to properly challenge the reliability of the cell tower location evidence had "been repeatedly waived."

         In its "Statement of Reasons" regarding Syed's Motion to Reopen and Supplement, the post-conviction court first observed that "[t]his [c]ourt may reopen [Syed's] previously concluded post-conviction proceedings if the [c]ourt determines that reopening the matter is in the interests of justice. Crim. Pro. § 7-104." With respect to Syed's Motion to Reopen, which was based on the McClain affidavit, the court determined, "in its own discretion, " that "reopening the post-conviction proceedings would be in the interests of justice for all parties[, ]" because "[t]his [would] allow [Syed] to introduce the January 13, 2015 affidavit from McClain, the potential testimony of McClain, and relevant evidence concerning [Syed's] claims of ineffective counsel and alleged prosecutorial misconduct during the post-conviction proceedings, " and also would give the State "an equal opportunity to introduce testimony and other evidence to refute [Syed's] claims."

         Next, the post-conviction court addressed Syed's Supplement, and stated in relevant part:

[Syed] also moves this [c]ourt to reopen the post-conviction proceedings to allow him to raise the issue of cell tower location reliability, which is not currently before the Court of Special Appeals and was not raised at the previously concluded post-conviction proceedings. Although this [c]ourt is aware that the Court of Special Appeals issued a limited remand, the Remand Order provided this [c]ourt with the discretion to conduct any further proceedings it deems appropriate.

(Emphasis added).

         The post-conviction court concluded by ordering that "[Syed's] Motion to Reopen [ ] and Supplement thereto is hereby GRANTED[.]" (Bold emphasis in original) (italic emphasis added).

         B. Contentions

         The State argues that the post-conviction court abused its discretion when it exceeded the scope of this Court's remand order by reopening Syed's post-conviction proceeding to consider issues that were not raised in the first hearing, and not the subject of our remand order. The State interprets the scope of our remand order as follows: "the plain and natural reading of the order gave the post-conviction court considerable discretion to conduct a full range of proceedings, so long as they were related to [ ] McClain and the issue of Syed's alibi defense." From that reading of the "limited" remand order, the State concludes that to allow the court to reopen Syed's post-conviction proceeding and consider any issue other than those arising out of the McClain affidavit would run counter to the order's purpose and would constitute "an open invitation to litigate unpreserved issues altogether unconnected to McClain and the issue of an alibi."[18]

         Syed responds that this Court delegated to the post-conviction court the latitude to "conduct further proceedings it deem[ed] appropriate." In Syed's view, our remand order was sufficiently broad to allow the post-conviction court to reopen Syed's post-conviction proceeding for any reason that it deemed was in the interests of justice.

         C. Analysis

         This Court concludes that the post-conviction court did not exceed the scope of our May 18, 2015 remand order. In remanding Syed's appeal, we did not require that the post-conviction court reopen Syed's previously concluded post-conviction proceeding. Instead, we provided Syed "with the opportunity to file" with the post-conviction court a motion, pursuant CP § 7-104, "to re-open the previously concluded post-conviction proceeding in light of [ ] McClain's January 13, 2015, affidavit." Syed did in fact take such opportunity by filing the Motion to Reopen, which was based on McClain's affidavit.

         Upon Syed's filing of the Motion to Reopen, the post-conviction court was required by the remand order to decide whether to reopen the post-conviction proceeding under CP § 7-104. CP § 7-104 states: "The court may reopen a post[-]conviction proceeding that was previously concluded if the court determines that the action is in the interests of justice." Here, the post-conviction court decided to grant the Motion to Reopen, because the reopening of the post-conviction proceeding to consider the issues raised by the McClain affidavit would be "in the interests of justice for all parties." In the instant appeal, the State does not challenge the post-conviction court's granting of the Motion to Reopen.

         The remand order goes on to provide that "[i]n the event that the circuit court grants a request to re-open the post-conviction proceedings, the circuit court may, in its discretion, conduct any further proceedings it deems appropriate." Because the post-conviction court granted Syed's Motion to Reopen, the court was specifically authorized to "conduct any further proceedings it deem[ed] appropriate."

         As the State properly points out, the authority granted by our remand order for the post-conviction court to "conduct further proceedings it deem[ed] appropriate" was not a carte blanche grant for the court to hear any matter raised by the parties. Here, however, the Supplement was, in effect, a separate motion to reopen the post-conviction proceeding under CP § 7-104 for the court to consider, among other things, a new claim of ineffective assistance of counsel, namely, the failure of trial counsel to properly challenge the reliability of the cell tower location evidence. Clearly, as Syed suggests, it would be in the interests of judicial economy for the post-conviction court to hear both of Syed's claims of ineffective assistance of trial counsel under CP § 7-104 in one proceeding. Therefore, under the circumstances of the instant case, the post-conviction court acted within the scope of the May 18, 2015 remand order to conduct a "further proceeding[]" regarding the Supplement.

         Nevertheless, because we conclude that the Supplement is a separate motion to reopen under CP § 7-104, there is a condition precedent to the post-conviction court's consideration of the Supplement with the Motion to Reopen - the court must determine whether a reopening for the Supplement is in the "interests of justice." See CP § 7-104. As will be discussed, infra, the post-conviction court exercised its discretion and concluded that the reopening of the post-conviction proceeding to consider the Supplement was "in the interests of justice." We shall now turn to the issue of whether the post-conviction court abused its discretion in so doing.

         II. Did the Post-Conviction Court Abuse Its Discretion When It Reopened Syed's Post-Conviction Proceeding to Consider the Claim of Ineffective Assistance of Counsel for Trial Counsel's Failure to Properly Challenge the Reliability of the Cell Tower Location Evidence?

         A. Background

         As previously stated, the post-conviction court first granted Syed's Motion to Reopen concerning his claim of ineffective assistance of counsel for trial counsel's failure to investigate a potential alibi witness, McClain. After recognizing its authority under the remand order "to conduct any further proceedings it deems appropriate[, ]" the post-conviction court stated, in relevant part:

After careful consideration of the parties' pleadings, this [c]ourt in the exercise of its discretion, concludes that reopening the post-conviction proceedings to allow [Syed] to raise the issue of cell tower location reliability and supplement the record with relevant materials would be in the interests of justice. The issue of cell tower location reliability is premised upon [Syed's] claims of ineffective assistance of counsel and potential prosecutorial misconduct during trial, which are grounds for reopening the post-conviction proceedings under Maryland law. [Gray v. State, 388 Md. 366, 382 n.7 (2005)]. [The State] can, of course, submit relevant materials to rebut [Syed's] claims.
ORDERED, that this [c]ourt shall limit its consideration to:
2) Relevant evidence relating to a) trial counsel's alleged failure to cross[-]examine [the State's] expert on the reliability of the cell tower location evidence and b) potential prosecutorial misconduct during trial[.]

         (Bold emphasis in original) (italic emphasis added).

         B. Contentions

         The State argues that the post-conviction court abused its discretion by reopening the post-conviction proceeding to consider the claim of ineffective assistance of trial counsel raised in the Supplement, because "there was no new evidence, no change in law, no connection to the reason for the remand, and no excuse for why the claim was not raised earlier." Recognizing that Maryland appellate courts have interpreted the "interests of justice" standard to give wide discretion to a post-conviction court to consider whether to reopen a previously concluded post-conviction proceeding, the State, nevertheless, contends that, "the 'interests of justice' standard must operate as a standard." (Emphasis in original). According to the State, if "the 'interests of justice' standard is satisfied whenever [an] attorney[ ] can conjure a 'potentially meritorious' claim based on a decades- old record, despite there being no new evidence, no change in the law, no misconduct, and no other special circumstances, then the 'interests of justice' standard amounts to no standard at all."[19]

         Syed responds that the interests of justice standard has been interpreted to give a post-conviction court broad discretion in determining whether it is in the interests of justice to reopen a post-conviction proceeding. Acknowledging that the Court of Appeals gave examples of meritorious reasons to reopen a post-conviction proceeding in Gray v. State, 388 Md. 366 (2005), Syed argues that those examples are just examples, and a post-conviction court is not required to grant a motion to reopen only on grounds that Maryland courts have heretofore suggested are proper. Syed further points out that the State cannot cite to any case where a post-conviction court's reopening of a post-conviction proceeding has been overturned on appeal.

         C. Analysis

         We begin by briefly reciting the history of CP § 7-103, which governs a petition for post-conviction relief, and its relationship to CP § 7-104. This Court has articulated such history as follows:

Since the enactment of the UPPA in 1958, the General Assembly has acted to limit the number of post[-]conviction petitions that a person may file for each conviction. Originally, the UPPA "did not place any limit on the number of post[-]conviction petitions which a petitioner was entitled to file." Mason v. State, 309 Md. 215, 217-18, 522 A.2d 1344 (1987). But, effective July 1, 1986, Art. 27, § 645A was amended by adding subsection (a)(2), which provided that a "person may not file more than two petitions, arising out of each trial, for relief under this Subtitle, " Grayson v. State, 354 Md. 1, 3, 728 A.2d 1280 (1999).
In 1995, the General Assembly again changed the number of petitions that could be filed to challenge a particular conviction. By Ch. 110 of the Acts of 1995, which primarily amended provisions relating to the death penalty, (I) and (II) were added to subsection (a)(2) and subsequently codified as Art. 27, [§] 645A(a)(2)(i) and (iii). Under subsection (a)(2)(i), a person was permitted to "file only one petition[, ] arising out of each trial, " id. at 4, 728 A.2d 1280, and subsection (a)(2)(iii) provided that "[t]he court may in its discretion reopen a post[-]conviction proceeding that was previously concluded if the court determines that such action is in the interests of justice." Id.
In 2001, the UPPA was repealed and reenacted at CP §§ 7-101 et seq. The provision relating to the reopening of a post[-]conviction proceeding is now codified at CP § 7-104 and contains "new language derived without substantive change." Revisor's Note. The words "in its discretion" were "deleted as surplusage." Id.

Gray v. State, 158 Md.App. 635, 645-46 (2004), aff'd, 338 Md. 366 (2005).

         We further noted that

[t]here are significant differences between the filing of a petition for post[-]conviction relief and a request to reopen a post[-]conviction proceeding. For example, a person is entitled, as a matter of right, to file one post[-]conviction petition. CP § 7-103(a). The reopening of a closed post[-]conviction proceeding, however, is at the discretion of the circuit court. CP § 7-104.
Also, as a matter of right, a person filing a petition for post[-]conviction relief is entitled to a hearing and the assistance of counsel. CP § 7-108(a); Md. Rule 4-406(a). A request that a post[-]conviction proceeding be reopened does not entitle a person to either. Under the statute, the circuit court determines if a hearing and the assistance of counsel "should be granted." CP § 7-108(b)(1). Md. Rule 4-406(a) provides that, in the absence of a stipulation that the applicable facts and law justify the requested relief, the circuit court may not reopen a proceeding or grant relief without a hearing, but a request to reopen can be denied without a hearing.

Id. at 645.

         The Court of Appeals has determined that the proper standard of review for a ruling on a motion to reopen is an abuse of discretion standard, which

is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ways. . . . [A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of untenable grounds, violative of fact and logic, and against the logic and effect of facts and inferences before the court.

Gray, 388 Md. at 383-84 (alternations in original) (emphasis added) (internal quotation marks omitted).

         Relevant to the instant appeal, the Court of Appeals has discussed the meaning of the ...


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