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Donati v. Miller

United States District Court, D. Maryland

September 27, 2019

MICHAEL E. DONATI, Petitioner,



         Petitioner Michael Donati, an inmate at Roxbury Correctional Institution in Hagerstown, Maryland, has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in which he attacks his 2012 convictions in two separate criminal cases for electronic mail harassment, obstruction of justice, and various other offenses. The Petition is fully briefed. Upon review of the submitted materials, the Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; D. Md. Local R. 105.6. For the reasons set forth below, the Petition is DENIED and DISMISSED.


         The Petition relates to two separate but related criminal cases filed in the Circuit Court for Montgomery County, Maryland, that were addressed in a single opinion by the state postconviction court. Although Donati's filings in this Court specifically reference only one of the two cases by case number, Case No. 119385C, the Court will treat Donati's Petition as raising challenges to the judgments in both state cases in light of the disposition by the state post- conviction court and in view of the timeliness considerations Donati would face if he attempted to refile a separate Petition at this point.

         I. State v. Donati, No. 118496C

         The first of Donati's two cases, Case No. 118496C, arises from events that occurred on April 10, 2011 at Growlers Pub in Gaithersburg, Maryland. Alex Zeppos owned or managed the pub, and Jason Allen owned the company that provided security at the pub. On April 10, 2011, Donati visited Growlers Pub and offered to sell marijuana to one of Allen's employees, prompting Allen and Zeppos, with the aid of others, to remove Donati from the premises. Donati allegedly "punched, bit, and pushed" Allen during that process. Donati v. State, 84 A.3d 156, 162 (Md. Ct. Spec. App. 2014). Zeppos called the police, who arrested Donati. Donati was later released on bail. Donati was charged with possession with intent to distribute marijuana and second-degree assault. Zeppos was scheduled to be a witness at Donati's trial.

         Donati was initially represented by attorneys Andrew Jezic and David Moyse. However, in October 2011, the trial court struck their appearance on counsels' request after Assistant State's Attorney Amy Bills told Moyse that she had received an email from an individual identifying himself as "C. Thomas" ("the Thomas Email") claiming that Donati was innocent and naming Jezic and Moyse as points of contact for Thomas. Jezic and Moyse were replaced by Alexander Foster, who entered his appearance in November 2011.

         On February 29, 2012, Donati was convicted after a jury trial of the drug charge but acquitted of the assault charge. On September 7, 2012, Donati was sentenced to five years of imprisonment. He filed an appeal asserting that the trial court had improperly limited cross examination and had admitted hearsay evidence. The Maryland Court of Special Appeals affirmed the conviction.

         II. State v. Donati, No. 119385C

         Donati's other criminal case, Case No. 119385C, related to conduct that occurred after, and seemingly in response to, Donati's arrest at Growlers Pub. The factual background of this case, which Donati does not dispute, is set forth in Donati v. State, 84 A.3d 156, 161-69 (Md. Ct. Spec. App. 2014). The Court describes those specific facts relevant to the Petition.

         On April 23, 2011 at 2:25 a.m., approximately two weeks after Allen and others removed Donati from Growlers Pub, police received a 911 call from an anonymous caller who reported that Allen was dealing drugs out of his residence. When Officers Nicholas Jerman and Gregory Hollis responded to Allen's house, they observed Donati waiting in an older model minivan near Allen's house. When they pulled up behind the van, Donati started to drive away. Because of the suspicious behavior, the officers pulled over the minivan and spoke briefly with Donati before letting him go. Meanwhile, two other police officers approached Allen's house and saw a plastic bag with suspected marijuana and marijuana plants growing in the garden. When the front door opened, the officers smelled marijuana and encountered Allen's roommate, who admitted that he had "just smoked a joint." Id. at 164. The officers searched the house with Allen's permission but found no evidence of marijuana growing or distribution. Later, Officer Hollis listened to the 911 call and reviewed security footage from a security camera near the pay phone from which the call had originated. Based on his brief conversation with Donati, Hollis recognized the caller's voice on the 911 message and the van in the security footage as those of Donati.

         From April 2011 to October 2011, Zeppos received numerous emails from multiple email addresses, including,,,,,, and These emails stated that Allen's security staff was engaged in drug dealing; that if Allen's staff continued to work at Growlers, the "establishment will not be around much longer. Up in smoke, if you know what I mean"; that the IRS was investigating Growlers; and that Zeppos was about to be indicted. Id. at 175.

         During the same time frame, various law enforcement officers, including Maryland-National Capital Park Police Chief Daren Manley and Montgomery County Police Detective Richard Grapes, received numerous pseudonymous emails from addresses such as,,, and, claiming that Zeppos, Allen, and Growlers Pub were engaged in illegal activity such as growing and selling marijuana, serving untaxed alcohol, and laundering drug proceeds through the restaurant. One of the emails was purportedly from "Clayton Thomas, III" using the email address "" and claimed that "Growlers was 'deeply involved in the drug trade.'" Id. at 165. Some of the other emails were sent from the same email addresses used to send emails to Zeppos.

         Law enforcement officers began to suspect that Donati was involved in sending the emails and in the illegal drug production activity alleged in the emails. After further investigation, Donati was arrested on October 4, 2011. Zeppos did not receive any threatening emails after Donati's arrest. During a post-arrest search of Donati's residence pursuant to a search warrant, police officers found three sheets of paper with numerous e-mail addresses listed on them. A sheet labeled "Special emails" included the following addresses:,,,,,, thebomb, and Id. at 167. A sheet labeled "Normal emails" included the email address A forensic examination of a computer seized from Donati's residence revealed that the computer was registered as "Bourbon St Band" and contained one user account named "Montana," a nickname for Donati. Id. at 168. The hard drive contained emails between "mr.essex" and Detective Grapes, and a fragment of an email from "Mr. Tipper" addressed to Chief Manley, as well as evidence of a Hotmail account for "Mr. Tipper." Id.

         Donati was charged with various offenses relating to the communications received by law enforcement officers and Zeppos, including, as relevant here, multiple counts of electronic mail harassment of Zeppos, in violation of the then-applicable version of section 3-805 of the Criminal Law Article of the Maryland Code. Md. Code Ann., Crim. Law § 3-805 (LexisNexis 2012). As in Case No. 118496C, Donati was originally represented by Jezic and Moyse, but they were replaced by Foster following the exchange relating to the Thomas Email. Donati proceeded to a jury trial on the same day that the verdict was entered in Case No. 118496C. During deliberations, the jury sent a note to the judge asking for a legal definition of harassment in the context of section 3-805. The court and counsel for both parties agreed that there was no legal definition, so the court directed the members of the jury to review the jury instructions and use their common sense.

         On March 7, 2012, Donati was convicted of one count of distribution of marijuana, two counts of obstruction of justice, two counts of making a false statement to police, two counts of intimidating a witness, and 15 counts of electronic mail harassment of Zeppos. He was acquitted of several counts, including multiple counts of electronic mail harassment. Donati was sentenced to consecutive sentences on the various counts totaling 32 years of imprisonment, to run consecutive to his sentence in Case No. 118496C.

         After trial, Donati requested a new trial because, among other grounds, he had learned on March 9, 2012, two days after the verdict, that the State had not disclosed the Thomas Email, which he characterized as an exculpatory e-mail message, and that it no longer possessed that email. Donati, 84 A.3d at 189-90. The trial court denied the motion.

         On direct appeal, Donati argued, among other claims, that there was insufficient evidence to support his convictions for email harassment because the evidence did not establish that he sent the emails and that the trial court erred in denying his motion for a new trial. The Court of Special Appeals rejected Donati's sufficiency of the evidence argument, noting that "ten of the e-mails at issue were sent from addresses that were written down on the piece of paper seized from appellant's basement," that a search of Donati's computer hard drive contained data about another of the email addresses used to write to Zeppos, and that the content of the emails "provided sufficient circumstantial evidence for the jury to determine that appellant was the author." Id. at 177. The Court of Special Appeals declined to consider the argument that the motion for a new trial should have been granted based on the Thomas Email, because Donati had "not presented sufficient legal or factual argument for this Court to address this claim." Id. at 190. The Court of Special Appeals also rejected Donati's other arguments. Donati filed a petition with the Maryland Court of Appeals for a writ of certiorari, but his request was denied on May 16, 2014. Donati v. State, 91 A.3d 614 (Md. 2014) (table order).

         III. Postconviction Proceedings

         On February 3, 2014, Donati filed a petition for post-conviction relief in Case No. 118496C with the Circuit Court for Montgomery County. On March 4, 2014, Donati filed a petition for post-conviction relief in his other case, Case No. 119385C. Because Donati raised the same claims in both petitions, the state post-conviction court considered both petitions together. Donati presented the following claims:

1. The State committed prosecutorial misconduct when Assistant State's Attorney Amy Bills deleted an email from someone named Clarence Thomas that stated that Petitioner was innocent.
2. The State committed prosecutorial misconduct when Assistant State's Attorney Amy Bills failed to turn over a report of Officer Ceresini that the roommate of Petitioner's accuser smelled of marijuana when Ceresini went to their home.
3. Petitioner was denied effective assistance of counsel because trial counsel failed to argue that the evidence was insufficient to convict Petitioner of harassment.
4. Petitioner was denied effective assistance of counsel because trial counsel failed to request a complete jury instruction on harassment and misuse of electronic mail.

Post-Conviction Op. at 1-2, ECF No. 24-7.

         The post-conviction court conducted a hearing on the petitions at which Bills, Moyse, and Foster testified. Bills testified that during the summer of 2011, at some point after Donati had been charged in Case No. 118496C, but before he had been charged in Case No. 119385C, she received an email from "a C. Thomas" which stated that "Michael Donati is innocent." Post-Conviction Tr. at 41, ECF No. 36-1. Later during Bills's testimony, the State introduced a copy of the paper listing various email addresses that was recovered from Donati's house, which included

         Bills, who was aware of the investigation into Donati for email harassment, testified that she believed that Donati had sent the email, "got concerned that that email might have a virus on it," and deleted the email without printing it or contacting anyone for technical assistance. Id. at 41-42. Bills stated that she informed Moyse of the email within a few days of receiving it, telling him, "I know it's your client, and I want you to tell him to knock it off and not send anymore emails to me." Id. at 47. She also informed Moyse that she had deleted the email and testified that Moyse did not ask her to recover the email at that time. Bills further testified that once Foster became Donati's counsel, she discussed the Thomas Email with him. She also noted that she eventually attempted to recover the email, but that the information technology staff were unable to do so.

         Moyse testified that Bills told him of the Thomas Email during a happy hour at some point before the second criminal case was filed. Foster testified that Moyse alerted him to the Thomas Email after Foster began his representation of Donati and before the trials. Foster further stated that he discussed the Thomas Email with Bills before trial, that Bills described the gist of the email as claiming that Donati was innocent of the drug and assault charges, and that she had deleted the email. On cross examination, Foster testified that he had not made an issue of the Thomas Email at either trial at the request of Donati, who was aware of the email. When asked on redirect examination what Donati's reason was for not wanting to pursue the issue of the Thomas Email at either trial, Foster testified that he had advised Donati that a continuance would likely ...

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