United States District Court, D. Maryland
K. Bredar, Chief Judge.
April 26, 2017, petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254, petitioner Anthony Jerome
Mills challenges his convictions for robbery and assault. ECF
1, 3 & 4. Respondent seeks dismissal of the petition
without a hearing because it fails to present a meritorious
claim. ECF 6. Mills filed a reply requesting a hearing on his
claims. ECF 7. For the reasons stated below, the court
dismisses the petition and denies Mills's request for a
hearing. 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)).
was charged with robbery, second-degree assault, first-degree
assault, first-degree burglary, third-degree burglary, and
theft in connection with an incident that took place at the
home of Maria Matamoros. ECF 6-6 at 19. Mills stood
trial before a jury in the Circuit Court for Prince
George's County on September 12 and 13, 2007. The
evidence against him consisted of the victim's
identification of Mills as the person who assaulted her in
her home; no other evidence was presented at trial.
Matamoras testified that on March 18, 2002, she resided at
152 Ames Road in Silver Spring, Maryland. ECF 6-4 at 36.
Through an interpreter, Ms. Matamoras testified that as she
exited her car in the parking lot of the apartment complex
where she lived, she was approached by a Black man who asked
her for directions; she told him how to get to University
Boulevard in response to his inquiry. Id. at 38-39.
speaking with the man in the parking lot, Ms. Matamoras went
into her apartment and had been there less than five minutes
when she heard a knock on the door. Id. at 39-40.
Upon answering the door, she recognized the man as the same
man who had approached her in the parking lot; he was now
asking if he could use her phone. Id. at 40-41. Ms.
Matamoras retrieved her cordless phone and brought it to the
door, but the man asked her for a pen and paper as soon as
she returned. Id. at 43. When she returned to the
door after retrieving a pencil and paper, he punched her in
the face and pushed the door open, causing her to fall
backwards to the floor. Id. at 44. She described how
he came into her apartment, grabbed her by her neck with both
hands, lifted her feet from the floor, and began screaming at
her to give him money. Id. at 47, Ms, Matamoras then
testified that he dragged her through the apartment, still
holding her by her neck, which made it difficult for her to
breathe. Id. at 49-50. As they approached her
bedroom, she described going limp and losing consciousness.
Id. at 52. When she regained consciousness, she saw
that her purse, which had been on her bed, was now gone as
was her assailant. Id. at 52.
asked about her ability to see her assailant, Ms. Matamoras
explained that although he was wearing a baseball cap it did
not obscure his face. ECF 6-4 at 41-2. When she was first
approached in the parking lot, it was approximately 1:00
p.m., and when he was standing at her door asking to use the
phone, there was full daylight coming through a large nearby
window. Id. at 41. She also testified that she was
face to face with her assailant both when he was standing at
the door and when he came into her apartment and assaulted
her. Id. at 40; 42-43. She further stated that, due
to the traumatic nature of the experience, she would never
forget her assailant's face. Id. at 61.
four months after the assault, Michael Rubin, a Prince
George's County police officer, came to Ms.
Matamoras's apartment and showed her a photographic
array. ECF 6-4 at 58. She identified Mills from the photo
array. She testified that Rubin had translated the
instructions for viewing the array to Spanish and that she
had understood she was not required to identify anyone
depicted in the array. Id. at 59-63. She testified
that she wrote her initials and the date under each
photograph and circled one photograph because it was the
picture of the man who attacked her. Id. at 61.
only other witness to testify for the State was Michael
Rubin. ECF 6-4 at 80-101. Rubin testified that Ms.
Matamoras's apartment is located in Prince George's
County. Id. at 81. During the course of the
investigation, Rubin stated that while fingerprints were
recovered from the crime scene, nothing of value was
recovered and therefore none were matched to Mills or anyone
else. Id. at 84. Rubin located the photographs that
were used to create the photographic array and transferred
them to another investigator familiar with computer graphics,
who then scanned the photos and altered the filler photos to
make them look similar to the photo of Mills. Id. at
86, 88. After the array was created, Rubin took it to Ms.
explained that while he was not fluent in Spanish, he could
speak it well enough at the time that he understood her
questions, could answer the questions, and was able to
translate the instructions for viewing the array into
Spanish. ECF 6-4 at 90-91; 95. Once the instructions were
understood, Rubin presented the photo array card to Ms.
Matamoras face-down. Rubin testified that he asked Ms.
Matamoras to write her initials and the date underneath each
photograph to be certain she actually looked at every
picture. Id. 96-97. On a separate document, she
wrote "el sospechoso es el numero ires" which
translates to "the suspect is number three."
Id. at 98. Mills's picture was the photograph
she chose. Id. at 99. Following her identification
of Mills, Rubin completed an application for statement of
charges against Mills. Id. at 101.
of Rubin focused on whether other leads for other possible
suspects were investigated; whether fingerprints collected
from the crime scene were used to develop other suspects; and
whether photographs of the other suspects developed during
the investigation were included in the photograph array. ECF
6-4 at 102-14. Rubin admitted that Ms. Matamoras described
her assailant as being between the ages of 25 and 30, while
Mills was almost 44 years old at the time of the offense.
Id. He also stated during cross-examination that he
did not know Mills's photograph was altered before being
put into the array. Id. On redirect, Rubin explained
that two other suspects had been eliminated as possibilities
for committing the assault and robbery against Ms. Matamoras.
Id. at 114-26.
testified on his own behalf and was the only witness to
testify for the defense. ECF 6-4 at 129-47. During his
testimony, he claimed that he was in New Jersey with a lady
friend the day before the offense, recalled they had gone to
church together, and said he did not return home to Maryland
until the afternoon of March 18, 2002. Id. at 130.
Mills also recalled that he had injured his shoulder at work
in February, a month prior to the date of the incident.
Id. at 145. He claimed that the injury to his
shoulder was still painful as of March 18, 2002, and he could
not move his arm. Id. at 1464-7. In support of his
claim that his shoulder had been injured, medical records
including records of Mills's attendance at physical
therapy sessions were introduced and provided to the jury.
cross-examination, Mills could not recall the address of the
woman he went to see in New Jersey (id. at 15 0);
could not remember the name of the church, but said they
arrived around noon (id. at 151); and could not
recall the name of the hotel where he stayed (id. at
153). Mills did recall, however, that he left New Jersey on
March 18, 2002, and arrived home around 12:30 or 1:00.
Id. at 155. He maintained that when he arrived home,
he went for a run wearing a sling on his arm and claimed that
running helped his body heal faster. Id. at 156-57.
He acknowledged that his shoulder injury did not prevent him
from traveling to New Jersey, running regularly, or
continuing to work as a truck driver. Id. at 147,
deliberating, the jury returned a verdict of guilty on all
counts. ECF 6-6 at 81-83. On December 7, 2007, Judge
Wallace sentenced Mills to serve 15 years for the robbery
count; 10 years for second-degree assault, consecutive to the
sentence imposed for robbery; and 20 years for first-degree
burglary, consecutive to the first two sentences imposed. ECF
6-7 at 17. Mills was advised that because the crimes he was
convicted of were crimes of violence, he would not be
eligible for parole until he had served 50% of the time
imposed. Id. at 17-18.
direct appeal to the Court of Special Appeals, Mills raised
the following issues:
1. Whether the trial court erred when venue was appropriate
in Montgomery County instead of Prince George's County.
2. Whether the trial court erred in denying a motion to
continue trial when an alibi witness was discovered but with
insufficient time to procure her via subpoena for trial.
3. Whether the trial court erred in allowing the introduction
of evidence to include an old, outdated photograph of
Appellant with the notation "Not for
identification," a suggestive photo array, and a
Spanish-language interpreted document.
4. Whether it was prejudicial for the prosecutor to make
statements about Appellant during closing arguments which
were not part of the factual record and then present
inappropriate information on Appellant at sentencing.
5. Whether Appellant's sentence was unreasonable and/or
6. Whether it was ineffective assistance of counsel for
Appellant's trial counsel to forego investigation of the
case, fail to research an alibi witness, and fail to object.
ECF 6-9 at 2.
unreported opinion dated December 15, 2008, the Court of
Special Appeals affirmed Mills's conviction. Mills v.
State, Sept. Term 2007, No. 2585 (Md. Ct. Spec. App.
Dec. 15, 2008) (unreported) at ECF 6-11. Mills filed a
petition for writ of certiorari with the Maryland Court of
Appeals, raising two issues: whether the trial court erred in
failing to dismiss the case for improper venue; and whether
the trial court erred in admitting an impermissibly
suggestive photographic array. ECF 6-12 at 3. On April 10,
2009, the Court of Appeals issued an order denying
certiorari. Id. at 1.
February 19, 2010, Mills filed a petition for post-conviction
relief in the Circuit Court for Prince George's County.
Prior to a hearing on June 23, 2011,  Mills supplemented the
petition for post-conviction relief three times. Following
the first post-conviction hearing, the matter was continued
at Mills's request and remained pending for four years.
On January 25, 2015, Mills, through counsel, filed a
"consolidated and amended petition for post-conviction
relief," with the intent to "consolidate, clarify
and amend all previous claims for relief." ECF 6-13. The
petition raised 17 grounds for relief:
1. Petitioner's Sixth Amendment rights to counsel were
violated when the Court denied Petitioner's Motion to
Discharge Counsel and grant Petitioner a postponement in
violation of Maryland Rule 4-215(e).
2. Appellate counsel rendered ineffective assistance of
counsel by failing to raise the issue of Petitioner's
Sixth Amendment violation on appeal.
3. Trial counsel rendered ineffective assistance of counsel
by failing to investigate and present exculpatory evidence
with respect to Theresa Douglas (now and hereinafter Theresa
4. Trial counsel rendered ineffective assistance of counsel
by failing to investigate and present exculpatory evidence
with respect to the handwriting on a photo array by the
5. Trial counsel rendered ineffective assistance of counsel
by failing to investigate and interview persons present
during the identification procedure by the victim.
6. Trial counsel rendered ineffective assistance of counsel
by failing to object to an erroneous j ury instruction.
7. Trial counsel rendered ineffective assistance of counsel
by failing to properly cross examine the victim and challenge
the identification of Petitioner.
8. Trial counsel rendered ineffective assistance of counsel
by failing to properly cross examine Detective Rubin
regarding his investigation.
9. Trial counsel rendered ineffective assistance of counsel
by failing to give a sufficient closing argument.
10. Trial counsel rendered ineffective assistance of counsel
by failing to move to dismiss the matter for improper venue
in a timely manner.
11. Trial counsel rendered ineffective assistance of counsel
by failing to challenge an in court ...