United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
Pevia, a Maryland prisoner, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging
his 2011 conviction in the Circuit Court for Carroll County,
Maryland for second-degree murder of an eight-month-old
child; first-degree child abuse resulting in death; and
related offenses. ECF 1. Pevia, who is self-represented, also
filed exhibits, docketed collectively at ECF 1-1.
presents numerous contentions. In sum, he contends that the
evidence was legally insufficient to support his convictions;
his attorneys rendered ineffective assistance; and the State
trial court, the State appellate court, and the State
post-conviction court committed a host of errors.
See ECF 1.
Warden Frank Bishop and the Maryland Attorney General, filed
an Answer (ECF 8), along with numerous exhibits. In their
view, Pevia has not presented any basis for relief under 28
U.S.C. § 2254(d). Pevia replied (ECF 9), and was given
an additional opportunity to supplement his response (ECF
13), which he did on April 9, 2018. ECF 14. On November 13,
2018, Pevia filed a Motion to Supplement and Amend Complaint.
ECF 15. The motion shall be granted.
refer to ECF 1, ECF 14, and ECF 15 collectively as the
“Petition.” No. hearing is necessary to resolve
the Petition. See Rule 8(a), Rules Governing
Section 2254 Cases in the United States District Courts
and Local Rule 105.6 (D. Md. 2018); 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)).
reasons that follow, I shall deny the Petition. A certificate
of appealability shall not issue.
Factual and Procedural History
outset of the trial in the Circuit Court for Carroll County,
defense counsel advised Pevia of his right to a jury trial
and the nature of a jury trial. ECF 8-2 at 6-7. Pevia elected to
waive his right to a jury trial, and the trial judge
“note[d] the waiver . . . .” Id. at 7.
As a result, Pevia was tried by the court, without a jury, on
March 28-April 1, 2011. See ECF 8-1 at 6-7; ECF 8-2
to 8-6. Judge J. Barry Hughes presided.
facts at Pevia's trial were summarized by the Maryland
Court of Special Appeals, Pevia v. State, No. 1132,
Sept. Term 2011 (filed July 1, 2013) (unpublished), as
follows, ECF 8-11 at 3-8:
On June 30, 2008, Ky'leigh Rogers was born to Angela Mabe
and Charles Rogers, who were not married. At the
time of her birth, she and her parents lived together at
Angela's grandparents' house in Sykesville, Maryland.
A month later, Rogers moved out and Angela started dating
appellant [Pevia]. In December 2008, Angela and Ky'leigh
moved from Angela's grandparent's house to
appellant's mother's house. In January 2009, however,
appellant, Angela, and Ky'leigh returned to Angela's
grandparents' house. This is where Ky'leigh lived
until her death.
The living arrangements in the home were that Ky'leigh,
Angela, and appellant lived in the basement of the house.
Angela's twin sister, Dakota Mabe, had a bedroom on the
first floor where she lived with her boyfriend, Rodney
Harris, and her four-year-old daughter. The grandmother, who
was physically limited and could not go up or down stairs,
also had a bedroom on the first floor; the grandfather's
bedroom was on the second floor. Eight months after her
birth, on March 3, 2009, Ky'leigh died.
By all accounts, Ky'leigh was generally a happy, healthy
baby until a few weeks before her death. Dr. Jennifer Kottra,
Ky'leigh's pediatrician since she was born, testified
that Angela brought Ky'leigh in for all well-child visits
and vaccinations and that her development was on track. On
February 9, three weeks before Ky'leigh's death,
Angela brought Ky'leigh in to see Dr. Kottra because
Ky'leigh was congested and was running a fever. During
the visit, Dr. Kottra noted some tiny red dots on
Ky'leigh's face, but she saw no bruising. Dr. Kottra
explained that the dots could have been caused by a virus or
by smothering, strangulation, or shaking. She asked Angela if
anyone could be shaking Ky'leigh, and Angela replied that
she did not think so. Nonetheless, Dr. Kottra sent Angela to
an ophthalmologist to check for retinal hemorrhages to rule
out child abuse. The subsequent tests were negative. The
pediatrician saw Ky'leigh for a follow up visit ten days
later on February19. Ky'leigh had no fever, her
congestion was much improved, and the red dots had faded. The
pediatrician testified that Ky'leigh was “active
and alert and playful” during the visit, and she again
saw no bruising.
The week before Ky'leigh died, Angela testified that she
took her to two different hospitals. Angela explained that
Ky'leigh had extreme sensitivity on her left side and
Angela heard “popping” or “clicking”
sounds from that side. Angela admitted that she lied to the
medical personnel on both occasions, telling them that
Ky'leigh had fallen off a bed, which was untrue. She
testified that she feared Ky'leigh was being abused and
was scared that Child Protective Services might take her
daughter away from her.
At the first hospital, appellant refused to get out of the
car. After Ky'leigh was checked in, he and Angela began
arguing, and appellant demanded that they leave. The argument
escalated. While out by the car, appellant grabbed Angela
around the throat, which he had done “a few
times” before and yelled that they were leaving
“because he wasn't going back to jail[.]”
They then left without Ky'leigh being seen by any medical
staff. Angela admitted that in January she and appellant
began “arguing a lot” about money,
appellant's heroin addiction, and his stealing her money
to buy drugs. Appellant did not work, and most days Angela
drove him to Baltimore where he purchased heroin for his drug
The weekend before Ky'leigh died, Angela's mother,
Susan Sharpe, watched Ky'leigh. She noticed scrapes and
bruises on Ky'leigh's face and chin, and that she
flinched when picked up. Ms. Sharpe also noticed bruises on
Ky'leigh's feet and ribs, and fingerprints on her
thighs. Although Ky'leigh sat up and played some during
the visit, Ms. Sharpe thought Ky'leigh was in pain. When
she returned Ky'leigh to Angela, Ms. Sharpe expressed her
concern and suggested that she and Ky'leigh move in with
her. That did not happen.
Around 9:30 a.m. on the day of Ky'leigh's death,
Angela asked Dakota, who was several months pregnant, to
watch Ky'leigh. Angela then took appellant to Baltimore
so he could buy heroin. Dakota, her daughter, and Harris, as
well as the grandmother, were at the house. According to
Dakota, Ky'leigh seemed fine- she was sitting on the bed,
smiling, and watching Harris play hand puppets with her.
Around 11:00 a.m., Dakota heard the door slam and then Angela
and appellant arguing in the basement. A few minutes later,
Angela came upstairs and asked Dakota to keep an eye on
appellant, who she said had threatened to commit suicide.
Dakota was not overly concerned about this information,
believing that it was just appellant's way of getting
Angela's attention. Before leaving, Angela observed
Ky'leigh smiling, sitting up on the bed with Dakota
caring for her. Shortly thereafter, Harris also left.
Ky'leigh took a nap.
Around 12:30 p.m., appellant came upstairs and said he was
taking Ky'leigh downstairs. He took Ky'leigh, who
began to cry loudly, and her bottle and her walker and headed
downstairs. Dakota called Angela to make sure it was all
right if appellant had Ky'leigh; Angela said it was okay.
Less than two hours later, around 2:15 p.m., appellant
brought Ky'leigh upstairs and handed her to Dakota.
Ky'leigh was limp, she did not move, her eyes were barely
open, and she was breathing heavily. Appellant said he did
not know what was wrong with her and then walked out of the
room. Dakota immediately called 911.
Paramedics arrived at 2:30 p.m. and found Ky'leigh very
lethargic and in respiratory distress. She was immediately
taken to the hospital where she went into cardiac arrest. At
the hospital and while awaiting news about Ky'leigh,
appellant told Angela's and Dakota's younger sister
that while in the basement, he dozed while Ky'leigh was
in her walker. At some point, Ky'leigh started crying,
and he got up. He fed her a bottle on the bed and “she
just looked like she went into a daze and wasn't
breathing right.” Similarly, appellant told Dakota at
the hospital that Ky'leigh was sitting in her walker when
“she started acting funny.”
After about 90 minutes of emergency resuscitation,
Ky'leigh was pronounced dead. An autopsy was done the
following day. Dr. Russell Alexander, the medical examiner,
testified that although it was very unusual for an
eight-month-old to have any bruises at all, Ky'leigh had
42 bruises on her body, 13 of them about her head.
Additionally, she had skull fractures on both sides of her
head, six recent rib fractures, and 16 older rib fractures.
He opined that the older rib fractures could have occurred
between two to five weeks before her death. Also,
Ky'leigh's liver and spleen were torn, which he
explained would have resulted in significant internal
bleeding. She had bruised lungs caused by a blow or squeeze
to the chest and tearing inside both her upper and lower
lips. He explained that the blows causing the head injuries,
the internal injuries, and the rib fractures were of
“significant force.” The injuries, however, were
not due to the efforts by the hospital medical personnel to
save her life. He added that the severity of the injuries
observed on Ky'leigh are seen in cases of child abuse,
from “a high speed car wreck, [or] falling from a . . .
four or five story window[.]”
Dr. Alexander testified that Ky'leigh's death was due
to all her injuries but some were more significant and
“rapidly life threatening.” The rapidly life
threatening injuries included the torn spleen on one side of
her abdominal cavity and her torn liver on the other that
caused internal bleeding; the broken ribs to both sides of
her chest that would have made it difficult to breathe, and
the blows to the head that fractured the skull on both sides.
He testified that the injuries could have been inflicted at
the “extreme” outside estimate of 12 hours before
her death but were “more likely” inflicted within
“minutes to an hour or so” before her death. He
added that a child with her injuries “would not have
been acting in a normal way” because of the pain and
that the injuries to the liver and spleen would have resulted
in an “immediate . . . change in behavior[.]”
He added that the “constellation of injuries” had
an “asphyxia component[.]” Specifically, he noted
the torn upper and lower lips, bruising on the neck, and
spots on the left eye. He testified that someone could have
smothered her or placed their hand over her mouth and nose,
and such asphyxiation “could render that person
unconscious very, very rapidly[.]”
After both parties had presented their evidence and
arguments, the trial court made more than 15 pages of
findings of fact. The court stated that it could not credit
much of Angela's testimony due to her admitted lies to
hospital personnel when seeking medical treatment for
Ky'leigh the week prior to her death. The court found
Dakota's testimony credible, noting that she loved
Ky'leigh “very much and would not have harmed
her.” The court found that between 11:00 a.m. and 12:30
p.m., Ky'leigh was in Dakota's care, sitting up and
acting normally. Between 12:30 p.m. and 2:15 p.m., while in
appellant's sole care, her physical condition rapidly
deteriorated. Based on the evidence presented, the trial
court found that Ky'leigh's fatal injuries occurred
during this time.
on April 20, 2011, Pevia was found guilty of second-degree
murder, first-degree child abuse resulting in death, and
related offenses. See ECF 8-1 at 8; ECF 8-14 at 2,
¶ 4. On July 5, 2011, he was sentenced to a total of 60
years in prison. ECF 8-1 at 8-9.
appealed his conviction to the Maryland Court of Special
Appeals, presenting a single question for review: “Is
the evidence sufficient to establish Mr. Pevia's guilt
beyond a reasonable doubt?” ECF 8-9 (Appellant's
Brief) at 4. In an unreported opinion filed on July 1,
2013, the Maryland Court of Special Appeals affirmed
Pevia's convictions. ECF 8-11, Pevia v. State,
No. 1132, Sept. Term 2011 (July 1, 2013).
then filed a petition for writ of certiorari to the Maryland
Court of Appeals. ECF 8-12 at 1-10. That court denied the
petition on October 21, 2013. Id. at 11. Pevia did
not seek further review in the United States Supreme Court.
interim, on August 23, 2013, in the Circuit Court for Carroll
County, Pevia filed a pro se petition for post-conviction
relief. See ECF 8-13. He also filed a supplemental
petition, through counsel, on October 22, 2014. ECF
supplemented, litigated, and construed, the petition alleged
that: (A) trial counsel was ineffective for (1) failing to
impeach Rodney Harris, (2) failing to impeach Angela Mabe,
(3) failing to exclude prior “bad acts” evidence,
(4) failing to challenge the trial court's noncompliance
with Maryland Rule 4-246, (5) failing to file a motion for
modification of sentence, and (6) based on the cumulative
effect of these errors; (B) appellate counsel was ineffective
for failing to challenge the trial court's noncompliance
with Maryland Rule 4-246; and (C) the trial court failed to
comply with Maryland Rule 4-246 when accepting Pevia's
jury trial waiver. See ECF 8-13; ECF 8-14; ECF 8-15.
State court (Daniels, J.) held a hearing on the
post-conviction petition on December 10, 2014. See
ECF 8-1; ECF 15. The post-conviction court issued a
Memorandum Opinion and Order on July 2, 2015. ECF 8-1; ECF
8-15. It granted Pevia the right to file a belated motion for
reconsideration of sentence but otherwise denying his
petition for post-conviction relief. Id.
August 5, 2015, Pevia filed an application in the Maryland
Court of Special Appeals, for leave to appeal the denial of
post-conviction relief. ECF 8-16. He presented only two
contentions. First, he alleged that the post-conviction
court erred in concluding that trial counsel was not
ineffective for failing to challenge the trial court's
noncompliance with Maryland Rule 4-246. Id. at 1.
Second, he claimed that the post-conviction court erroneously
determined that evidence of defendant's prior “bad
acts” did not “taint” the verdict.
Id. at 2. On March 8, 2016, the appeallate court
denied Pevia's application; the mandate issued on April
8, 2016. ECF 8-17.
April 23, 2016, Pevia filed his Petition in this court. ECF
He claims that there was “inadequate evidence” to
support his guilty verdict, and thus the Maryland Court of
Special Appeals erred in affirming his judgment of conviction
and the post-conviction court erred in denying relief.
Id. at 18-19. In addition, Pevia contends that the
post-conviction court erred in failing to find that trial
counsel rendered ineffective assistance. Id. at 19.
Specifically, Pevia claims that counsel failed “to
submit evidence at trial, alert [the trial judge] of Mr.
Harris [sic] perjured testimony, properly cross examin[e]
Angela Mabe of perjured testimony, ” and adequately
inform the trial judge “to comply with Md. Rule
November 13, 2018, Pevia filed a “Motion To Supplement
And Amend Complaint.” ECF 15. He seeks to present an
additional question: “Did [the trial judge] error [sic]
when he failed to note Petitioner's waiver of jury trial
was [made] knowingly and willingly?” Id. at 1.
Relying on the Maryland Court of Appeals' decision in
Valonis v. State, 431 Md. 551, 66 A.3d 661 (2013),
Pevia argues that the trial court violated Maryland Rule
4-246, because it failed to find that Pevia knowingly and
voluntarily waived his right to a jury trial. Id.
Standard of Review
order for Pevia to pursue federal habeas review, he must have
exhausted his right to relief in State court. 28 U.S.C.
§ 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 510
(1982). In Maryland, a claim may be exhausted either on
direct appeal or in post-conviction proceedings.
exhaust a claim on direct appeal in non-capital cases, a
defendant must assert the claim in an appeal to the Maryland
Court of Special Appeals and then to the Maryland Court of
Appeals by way of a petition for a writ of certiorari.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (stating that exhaustion requirement is satisfied by
“giv[ing] the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process”); Md. Code, §§ 12-201, 12-301 of the
Courts and Judicial Proceedings Article (“C.J.”).
To exhaust a claim through post-conviction proceedings, it
must be raised in a petition filed in the circuit court and
in an application for leave to appeal to the Maryland Court
of Special Appeals. See id.; Md. Code, § 7-109
of the Criminal Procedure Article (“C.P.”). If
the Court of Special Appeals denies the application, then no
further review is available and the claim is exhausted. C.J.
further precondition to federal habeas review, a properly
presented and exhausted claim must not be procedurally
defaulted. Procedural default occurs when the petitioner
failed to present the claim to the highest state court with
jurisdiction to hear it, and the state courts would now find
that the petitioner cannot assert that claim. Mickens v.
Taylor, 240 F.3d 348, 356 (4th Cir. 2001); Breard v.
Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
any failure to raise a claim on direct appeal constitutes a
procedural default that bars presentation of the claim,
unless the petitioner can demonstrate “cause and actual
prejudice resulting from the errors of which he complains,
” or “actual innocence.” United States
v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing
United States v. Mikalajunas, 186 F.3d 490, 492-93
(4th Cir. 1999)); see Bousley v. United States, 523
U.S. 614, 621 (1998) (“Habeas review is an
extraordinary remedy and will not be allowed to do service
for an appeal.”) (internal quotations and citations
omitted); see also Dretke v. Haley, 541 U.S. 386,
393 (2004); Reed v. Farley, 512 U.S. 339, 354 (1994)
(stating that where the petitioner “failed properly to
raise his claim on direct review, the writ is available only
if the petitioner establishes ‘cause' for the
waiver and shows ‘actual prejudice resulting from the
alleged . . . violation.'”) (citation omitted);
Murray v. Carrier, 477 U.S. 478, 485
(1986). Procedural default also occurs where a
state court declines to consider the merits of a claim on the
basis of an adequate and independent state procedural rule.
Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir.
1999); see also Gray v. Zook, 806 F.3d 783, 798 (4th
Cir. 2015) (“When a petitioner fails to comply with
state procedural rules and a state court dismisses a claim on
those grounds, the claim is procedurally defaulted.”).
overcome a procedural default, the petitioner must
demonstrate cause and prejudice, or show that a failure to
review the claim will result in a fundamental miscarriage of
justice. Gray, 806 F.3d at 798. Under the
“cause and prejudice” standard, the petitioner
must show: (1) cause for not raising the claim of error on
direct appeal; and (2) actual prejudice from the alleged
error. Bousley, 523 U.S. at 622; see also
Dretke, 541 U.S. at 393; Reed, 512 U.S. at 354;
Frady, 456 U.S. at 167-68.
order to show cause for failure to raise a claim of error on
direct appeal, a petitioner must prove that “some
objective factor external to the defense such as the novelty
of the claim or a denial of effective assistance of
counsel” impeded efforts to raise the issue earlier.
Coleman v. Thompson, 501 U.S. 722, 753 (1991);
see also Carrier, 477 U.S. at 492 (“[C]ause .
. . requires a showing of some external impediment preventing
counsel from constructing or raising the claim.”);
Mikalajunas, 186 F.3d at 493 (movant must
demonstrate “something external to the defense, such as
the novelty of the claim or a denial of effective assistance
of counsel”). Additionally, the alleged error cannot
simply create “a possibility of prejudice,
” but must be proven to work to the petitioner's
“actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170 (emphasis
in original). Put another way, prejudice does not support
relief from a procedural default, in the absence of a showing
of cause. Carrier, 477 U.S. at 494; Engle v.
Isaac, 456 U.S. 107, 134 n.43 (1982).
import here, this court may grant a petition for a writ of
habeas corpus only for violations of the Constitution or laws
of the United States. 28 U.S.C. § 2254(a); see
Wilson v. Corcoran, 562 U.S. 1, 1 (2010); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). In Larry v.
Branker, 552 F.3d 356, 368 (4th Cir. 2009), the Court
said: “[I]t is not the province of a federal habeas
court to reexamine state court determinations on state law
questions. In conducting habeas review, ...