United States District Court, D. Maryland
K. BREDAR, CHIEF JUDGE
McNeal, a self-represented Maryland prisoner, seeks habeas
corpus relief pursuant to 28 U.S.C. § 2254 (2012),
challenging his sentence for attempted first-degree murder
and related offenses. ECF Nos. 1, 2. Respondents have filed a
Response, ECF No. 10, and the § 2254 Petition is ripe
for review. After reviewing the Petition and Response, the
Court finds no need for an evidentiary hearing. See
Rule 8(a), Rules Governing Section 2254 Cases in the
United States District Courts; Local Rule 105.6; see
also Fisher v. Lee, 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 set forth below, the Petition
shall be denied and a certificate of appealability shall not
2004, Petitioner was convicted by a jury of attempted
first-degree murder and related offenses. ECF No. 10-7 at 2.
At Petitioner's original sentencing hearing, the State
asserted that Petitioner had three prior convictions for
crimes of violence and was therefore subject to a statutory
minimum of 25 years' imprisonment without the possibility
of parole (hereinafter, "active minimum
requirement"). Id. at 2-3; see Md.
Code. Ann., Crim. Law § 14-101 (2002). Petitioner was
sentenced to 40 years' imprisonment, the first 25 years
of which were to be served without the possibility of parole,
for the attempted first-degree murder conviction; he received
merged or concurrent sentences for his related convictions.
Id. at 3-4.
2012, Petitioner filed a petition for post-conviction relief
("PCR") arguing that he was not subject to the
active minimum requirement because the prior convictions
triggering the active minimum requirement were not committed
by Petitioner but were instead committed by someone else with
the same name or someone intentionally using Petitioner's
name as his own. Id. at 4. Ultimately, at a hearing
on the petition, the State "conceded that 'at least
one' of the predicate convictions was not McNeal's
but was that of another person using McNeal's name and
State Identification Number." Id.; see ECF No.
10-2 at 4. Pursuant to a mutually agreed upon plan,
Petitioner voluntarily withdrew his PCR petition with
prejudice and the hearing judge granted an oral motion to
correct an illegal sentence and ordered that Petitioner
receive another resentencing hearing. ECF No. 10-2 at 19-20.
However, before implementing this plan, the hearing judge
cautioned Petitioner that it did not necessarily follow that
Petitioner would receive the same or a lesser sentence upon
resentencing, only that the court would be precluded from
considering the wrongly attributed predicate offence that
helped to trigger the active minimum requirement.
Id. at 13-15, 18-19.
resentencing hearing was held on March 21, 2013. The State
recounted that the attempted murder occurred as the victim,
Petitioner's ex-girlfriend, was driving close to her
home. Petitioner rear-ended the victim's car before
"fir[ing] a shot through [the victim's] rear
window." ECF No. 10-3 at 11. This shot did not strike
However, [the Petitioner] then pulled alongside [the
victim's car] - she was directly in front of her home at
that point and was attempting to leave her vehicle and run in
the house where her mother was waiting [with] her younger
brother. And Mr. McNeal pulled alongside, preventing her
escape from the driver's side and then fired an
additional five rounds into that car striking her all five
Id. at 11-12. The victim also testified at the
hearing as to her lasting physical and mental health problems
caused by the shooting, as well as her fears that Petitioner
might harm her and her children when released. Id.
at 8-9. Accordingly, the State sought a sentence of 40
years' imprisonment, with the first 15 years to be served
without the possibility of parole. ECF No. 10- 3 at 15.
counsel argued that the guidelines range for the attempted
first-degree murder conviction was 18 to 25 years'
imprisonment. Id. at 17. Counsel contended that a
guidelines sentence would be appropriate and argued that a
sentence less than the 40 years sought by the state was
appropriate because "the only thing that's changed
[from Petitioner's original sentencing] is his previous
record is lower, [so] it just makes sense that the sentence
itself should also be lower." Mat 18, 28.
gave an allocution, focusing solely on the fact that he was
not the perpetrator of at least one of the crimes that had
been used as a predicate to trigger the active minimum
requirement at his original hearing. Id. at 23-26.
He asserted that the State had committed a
Brady violation by "withholding" from
Petitioner's original sentencing hearing the arrest
records corresponding with the predicate offenses.
Id. at 26. The court reminded Petitioner that it had
already ruled in Petitioner's favor on the issue of
whether the predicate offenses were rightly attributable to
Petitioner. Id. at 27. Petitioner nonetheless
continued with his line of reasoning, stating:
My question is under - is that I'm not indeed the
defendant. So under Power versus Cannon, they say if you can
prove that you're not indeed the defendant under these
two cases, you're supposed to be discharged from custody.
So what I'm saying is if the state's attorney
perjured herself, that's on her. I don't have nothing
to do with that. But what I'm saying today here: I am the
victim today. Because I'm serving ten years, eight months
and 16 days on a sentence that is not me.
Id. at 27-28. The court asked the parties to return
in a month and a half, explaining that "given the very
grievous nature of the underlying crimes, but also the
obvious considerations for justice with respect to Mr.
McNeal's position, I want to consider in further detail
the matters that have been brought before the Court this
morning." Id. at 29.
8, 2013, the court sentenced Petitioner to 40 years'
imprisonment, dating from Petitioner's original arrest
date of August 5, 2002. ECF No. 10-4. However, unlike
Petitioner's initial sentence, this sentence did not
include a requirement that any portion of Petitioner's
sentence be served without ...