United States District Court, D. Maryland
JERMAINE D. HARRIS, Petitioner,
STEPHEN T. MOYER, Secretary, Maryland Department of Public Safety and Correctional Services, WAYNE A. WEBB, Commissioner, Maryland Department of Corrections, FRANK B. BISHOP, Warden of the North Branch Correctional Institution, Cumberland, Maryland, and THE ATTORNEY GENERAL OF MARYLAND, Respondents.
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
Jermaine Harris, an inmate at the North Branch Correctional
Institution in Cumberland, Maryland, has filed a Petition for
a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 to
collaterally attack his 2009 conviction for first degree
murder and related charges in the Circuit Court for Wicomico
County, Maryland. Having considered the submitted materials,
the Court finds that no hearing is necessary. See
Rule 8(a), Rules Governing Section 2254 Cases in the United
States District Courts; D. Md. Local R. 105.6; Fisher v.
Lee, 215 F.3d 438, 455 (4th Cir. 2000). For the reasons
set forth below, the Petition is DENIED and DISMISSED.
October 30, 2008, Harris was convicted after a jury trial in
the Circuit Court for Wicomico County ("the Circuit
Court") of first degree murder, second degree murder,
conspiracy to commit murder, and related firearms charges
relating to the shooting death of Jesse Gay on February 29,
2008. The jury found Harris not guilty of first degree
assault. On March 12, 2009, Harris was sentenced to two
consecutive life sentences for first degree murder and
conspiracy to commit murder and a consecutive 20-year
sentence for use of a handgun in the commission of a crime of
direct appeal, Harris presented the following questions to
the Court of Special Appeals of Maryland:
1. Whether the trial court erroneously prohibited Harris from
having two witnesses, Michael Lawson and Rodney Terry, invoke
their Fifth Amendment privilege in the presence of the jury
or, alternatively, erroneously failed to advise the jury that
the witnesses had invoked their Fifth Amendment privilege.
2. Whether the trial court erroneously permitted a lay
witness to present expert testimony concerning cell phone
records and cell phone tower locations.
3. Whether the evidence was legally sufficient to support the
conviction for conspiracy to commit murder where there was no
independent corroboration of the accomplice's testimony.
4. Whether the jury's verdict of guilty of first degree
murder and not guilty of first degree assault constituted a
legally inconsistent verdict, which is no longer permissible
29, 2011, the Court of Special Appeals affirmed Harris's
conviction. Harris filed a petition for a writ of certiorari
with the Court of Appeals of Maryland which was denied on
October 25, 2011.
24, 2013, Harris filed a petition for post-conviction relief
in the Circuit Court. The claims asserted, as amended and
supplemented, were that trial counsel was ineffective for:
(1) failing to object to the court permitting a lay witness
to give expert opinion testimony about cell phone technology
and cell tower locations; (2) failing to object to the
rendering of the apparently inconsistent verdicts of guilty
on the charge of first degree murder but not guilty on the
charge of first degree assault; (3) failing to object to jury
instructions on "aiding and abetting" as a theory
of liability as not warranted by the evidence; (4) failing to
request jury instructions regarding a witness pleading
guilty, a witness invoking the Fifth Amendment right against
self-incrimination, and the jury's duty to deliberate;
(5) failing to interview and call as a trial witness
Brykeshia Johnson; and (6) the cumulative effect of these
hearing, the post-conviction court denied the petition on
January 17, 2014. On February 12, 2014, Harris filed an
application for leave to appeal the denial of post-conviction
relief in which he asserted the arguments that trial counsel
was ineffective for: (1) failing to object to a lay witness
providing expert opinion testimony about the operation of
cell phone technology and cell tower locations; (2) failing
to object to the rendering of apparently inconsistent
verdicts; and (3) failing to request a jury instruction
regarding witnesses invoking the Fifth Amendment. The
application was summarily denied on September 30, 2014. On
September 8, 2015, Harris's motion for reconsideration
was denied, and the Court of Special Appeals issued its
Petition to this Court, Harris raises the following claims
1. The trial court erred when it permitted a lay witness to
testify regarding cellular phone technology and tower
locations in violation of state and federal law.
2. Trial counsel was ineffective by failing to object to a
lay witness providing expert opinion testimony about the
operation of cell phone technology and cell tower location.
3. Trial counsel was ineffective by failing to object to the
admission of call records from Harris's phone service
provider and to expert testimony relating to those records.
4. Trial counsel was ineffective by failing to refute the
State's aiding and abetting theory of liability.
5. Appellate counsel was ineffective by failing to argue that
the admission of hearsay testimony from government witnesses
Nathaniel Kellam and Krista Wilson violated the Constitution.
6. Trial counsel was ineffective when counsel failed to
investigate, interview, and call as a trial witness
Harris's girlfriend, Brykeshia Johnson.
7. Trial counsel was ineffective when counsel failed to
review the jury instructions, object to certain instructions,
and request relevant instructions.
8. Trial counsel was ineffective when counsel failed to
object to the inconsistent ...