United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE
Jerome Lee challenges the legality of his Maryland State
conviction on charges of theft under one-thousand dollars,
kidnapping, and false imprisonment pursuant to 28 U.S.C.
§2254. ECF No. 1. Respondent seeks dismissal of the
petition without a hearing on the basis that the petition
does not raise a cognizable claim warranting federal habeas
relief. ECF 9. The Court finds no need for a hearing in this
matter. 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.
Petitioner, 215 F.3d 438, 455 (4th Cir. 2000)
(petitioner not entitled to a hearing under 28 U.S.C.
§2254(e)(2)). For the reasons stated below, the Court
denies the petition and declines to issue a certificate of
and his co-defendant Jamal Richards were indicted on charges
of first degree rape, multiple sex offense charges, assault,
robbery, theft under one-thousand dollars, false
imprisonment, and kidnapping. The two received separate
trials. Petitioner was acquitted on charges of rape, sex
offense, assault and robbery, but was found guilty by a jury
of the theft, false imprisonment and kidnapping counts.
Richards was convicted of first-degree rape, three counts of
first-degree sex offense, robbery, kidnapping, and false
imprisonment; he was sentenced to an aggregate sentence of 55
years. See ECF No. 9 at 7, n. 2. The evidence and
testimony presented at trial are outlined below.
victim in this case, Barbara Lessio, is a resident of Italy
and was temporarily residing in Towson, Maryland, working as
an au pair. On the evening of May 21, 2010, she went to a bar
in Baltimore, Maryland with three other friends including
Elizabeth Dillard, who testified at trial. ECF No. 9-2 at
180-88 (direct testimony). Ms. Dillard explained that she and
Lessio left a bar called “Gin Mill” at
approximately 2 a.m. the following morning, after last call
at the bar. Id. at 183. Dillard testified that she
and Lessio took a cab back to Dillard's apartment in
downtown Baltimore. Id. Dillard explained that once
they arrived at her apartment building, Lessio indicated that
she wanted to go back to her home in Towson, so Dillard left
Lessio in the cab, went to her apartment, and promptly fell
asleep. Id. at 190-2 (cross-examination). When
Dillard awoke the next morning, she noticed numerous missed
calls from Lessio on her cellphone. Id. at 193
testified that after Dillard got out of the cab, she learned
that the cab fare back to Towson would be fifty dollars or
more. ECF No. 9-3 at 16. Lessio then exited the cab and
unsuccessfully searched for Dillard and tried to contact both
Dillard and another friend on the phone. Id. at 17.
She explained that she saw a car parked on the street, walked
over to it, and began talking to the two men inside: Richards
and Petitioner. Id. at 17-18. Lessio recalled that
Richards was in the driver's seat, and Petitioner was in
the front passenger seat. Id. at 18. She asked the
two men if they would be willing to give her a ride home, and
they agreed. Id. Although Lessio gave them an
address to put into the GPS on a cellphone, they claimed the
GPS did not work; by this time, Lessio was in the backseat of
the car. Id. at 19.
testified that she was in the car a short while before
Petitioner climbed into the backseat with her and began
touching her thighs inappropriately and would not stop
despite her requests. Id. at 20-21. She testified
that Petitioner then pushed her down on the seat and
vaginally raped her twice, then forced her to perform
fellatio. Id. at 22-24. Lessio recalled that each
time she attempted to raise her head and pull away,
Petitioner slapped her in the face and on the head and kept
his hands on her head. Id. at 25.
testified that Richards stopped the car near a park after
Petitioner had finished. Id. at 25-26. Lessio
testified that she, Richards, and Petitioner got out of the
car and the two men led her down the hill at the park where
Petitioner again forced her to perform oral sex while
Richards raped her vaginally and anally. Id. at
26-27. Lessio recalled that one of the two men went through
her purse, removing her camera, phone, wallet with credit
cards, cash and debit card. Id. at 28-29. As they
approached the road, Lessio saw a van driving down the street
and ran towards it, trying to stop it so she could get
assistance. Id. at 29-30. But the van only slowed
down, and Lessio testified that Richards and Petitioner
grabbed her and drug her back to the car. Id.
again took the driver's seat and drove the car to a gas
station, where he used Lessio's debit card to put gas in
the car. Id. at 31. Lessio testified that she did
not give either man permission to use her debit card.
Id. Lessio stated that she first gave the men the
wrong PIN number. Id. at 32. After they discovered
the PIN would not work, Lessio stated that Petitioner told
her that if she wanted “to see the sun tomorrow,
” she would need to provide them with the correct
number. Id. at 33. Lessio complied and Petitioner
exited the car to use the debit card while Richards stayed in
the car. Id. at 34. She testified that her debit
card was used at least twice that evening. Id.
Lessio stated that after he used the debit card, Petitioner
got into the backseat with her and again forced her to
perform fellatio. Id. at 35. Richards then moved to
the back seat and forced Lessio to perform fellatio.
Id. Lessio said that Petitioner was not wearing a
condom during any of the times he forced her to perform oral
and Petitioner were both in the front seat when Richards
drove the car to another area that was also unknown to Lessio
and let her out of the car. Id. at 37. Lessio did
not have her cellphone and testified that she asked
Petitioner to give her camera back to her as it had been a
birthday gift, but he refused. Id. at pp. 37-38.
Lessio recalled walking to a car stopped at a red light and
asking the man driving to call for help. Id. at p.
Baltimore City Police Officer responded to a call made by the
man Lessio had encountered at the stoplight and took Lessio
to a police station and then to a hospital. Id. at
38-39, see also ECF No. 9-5 at 38-39
(cross-examination of Officer Roberto Cornejo). Lessio was
examined at the hospital, where she met with Detective Mundy
of the Baltimore City Police. ECF No. 9-3 at 40-41.
Approximately one week later, Lessio found the ATM receipts
in her purse which she provided to Detective Kerry Snead who
had been assigned as the primary investigating officer in the
case. Id. at 43. Lessio positively identified both
Richards and Petitioner in two separate photographic arrays
provided to her by Detective Snead. Id. at 45-48.
testimony from witnesses for the State established that
Lessio's examination at Mercy Medical Center revealed
lacerations on her labia, lacerations to the top of her anus,
and bruising to the top of her thigh down toward the middle
of her thigh and to her ankle. ECF No. 9-3 at 116-119 (direct
testimony of Nira Mitchell, NP). Evidence collected during
Lessio's exam included vaginal cultures, photographs of
the bruising to her legs, and collection of her underwear and
tights for testing. Id. at 113, 120. Additionally,
oral swabs were taken from Richards and Petitioner, and swabs
were taken from the backseat driver's side and the middle
of the backseat of the 2009 Grand Marquis Richards was
driving. Id. at 141-45. Because the presence of
sperm was detected on the waistband of the tights Lessio was
wearing, it was sent for DNA testing along with the swabs
from the car. Id. at 144, 146.
analysis of the physical evidence collected revealed that the
stain from Lessio's tights matched the DNA sample
provided by Petitioner. ECF No. 9-4 at 9-27. Through latent
print analysis of the ATM receipts, and comparison with known
fingerprints from Richards and Petitioner, it was established
that both Richards' and Petitioner's fingerprints
were on the receipts. Id. at 36-46. A Bank of
America employee authenticated records of the multiple ATM
transactions. ECF No. 9-5 at 6-19.
recovered Lessio's camera at a pawn shop during their
investigation. The owner of the pawn shop testified that the
camera was pawned by Petitioner. ECF No. 9-4 at 61-69.
Petitioner testified at trial and provided a much different
description of his interaction with Lessio. ECF No. 9-5 at
42-68 (direct testimony). Petitioner stated that when Lessio
got into the car, he was in the front passenger seat of the
car, wearing sunglasses, and sleeping with the seat reclined
because he had a headache. Id. at 49. He testified
that he spoke to Lessio from the front seat and did not move
to the backseat until he asked her if it was okay to do so
and she confirmed it was okay. Id. at 52. He also
testified that Lessio had an accent but that he did not have
any trouble understanding what she was saying, and that after
talking for five to ten minutes, Petitioner asked Lessio for
oral sex. Id. at 54-55. According to Petitioner,
Lessio agreed to perform oral sex but asked him to wear a
condom, which she provided. Id. Petitioner testified
that after he had ejaculated, Lessio threw the condom out of
the window of the car. Id. at 56. Petitioner then
testified that he gave her 25 dollars, which she used to pay
Richards to drive her wherever she wanted to go. Id.
at 57. Petitioner recalled that he then returned to the front
seat where he went back to sleep. Id.
claims that when he awoke, the car was parked one block
behind the Alameda Shopping Center in East Baltimore at
Belvedere and Loch Raven and he was the only one in the car.
Id. at 58. He saw that the keys were still in the
ignition, sat in the car for a few minutes, lit a cigarette,
and got out of the car. Id. at 59. Petitioner
recalled that he saw Richards and Lessio walking out of an
apartment complex, but stated that he knew nothing else about
where they had gone or what they had done. Id. He
claimed that Richards and Lessio walked to the car and both
got into the car voluntarily. Id. at 60.
also testified that Lessio provided her ATM card to Richards
voluntarily so that he could put gas in the car. Id.
Petitioner explained that he believed the subsequent ATM
transactions using Lessio's debit card were made pursuant
to an agreement between Richards and Lessio. Id. at
62. He also stated that he got no money from any of the
transactions and that his fingerprints were only on the ATM
receipts because Richards had handed him a pack of cigarettes
with the receipts on top of the cigarette pack. Id.
at 63. Petitioner also testified that he did not steal
Lessio's camera, but that she had left it in the car; he
later pawned it because he did not want to be in possession
of the camera, as he was unaware of what had occurred between
Lessio and Richards. Id. at 63-65. Petitioner stated
that they left Lessio at the intersection of Loch Raven and
Cold Spring because she had asked to get out of the car
there. Id. at 65.
jury found Petitioner not guilty on all charges related to
the sexual assault on Lessio, as well as the robbery and
assault charges, but found Petitioner guilty of theft under
one thousand dollars, kidnapping, and false imprisonment. ECF
No. 9-7 at 10-14. At the sentencing proceeding, counsel for
the State and the defense engaged in lengthy argument
regarding whether the false imprisonment count should merge
with the kidnapping count and what effect, if any, non-merger
would have on sentencing. ECF No. 9-8 at 5-19 (State's
argument); id. at 20-30 (Defense argument). The
trial court resolved the issue in favor of the State, holding
that the false imprisonment count related to the initial
period of time Lessio was in the car and was not allowed to
leave. Id. at 38. The kidnapping charge, on the
other hand, related to the period of time when she managed to
run away from the two men in the park, and Petitioner and
Richards had forcibly put her back into the car. Id.
at p. 38. The trial court then expressed its belief that
“Mr. Lee's involvement in this case made it
possible for the horrific sexual offenses to occur for which
the co-defendant was found guilty” and that he had
“altered the nature of the interaction and transformed
it into a sexual interaction or nightmare.”
Id. Based on the court's view that “the
circumstances accompanying this crime are of such unusual
aggravation the punishment ought to be unusually severe,
” Petitioner was sentenced to an aggregate term of 85
years. Id. at 39.
appeal to the Maryland Court of Special Appeals, Petitioner
presented the following questions for the appellate
Should the offenses of false imprisonment and kidnapping
merge pursuant to the required evidence test, thereby capping
Appellant's sentence to thirty years for the greater
Did the trial court consider impermissible sentencing
criteria when it determined ...