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Mills v. Warden

United States District Court, D. Maryland

October 21, 2019

ANTHONY JEROME MILLS, Petitioner,
v.
WARDEN, Respondent.

          MEMORANDUM OPINION

          James K. Bredar, Chief Judge.

         In his 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)).

         Prior State Proceedings

         Mills 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.

         Ms. Matamoras testified that on March 18, 2002, she resided at 152 Ames Road in Silver Spring, Maryland.[1] 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.

         After 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.

         When 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.

         Approximately 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.

         The 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. Matamoras's apartment.

         He 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.

         Cross-examination 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.

         Mills 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.

         Under 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, 168.

         After 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.

         On 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 excessive.
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.

         In an unreported opinion[2] 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.

         On 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, [3] 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 Hobbs).
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 victim.
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 ...

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