State v. Ebb

Hotten, J. We consider whether a petition filed under Maryland Code, Criminal Procedure Article (“Crim. Proc.”) § 8-301 was improperly denied prior to a hearing, when the petition alleged “newly discovered evidence” that a trial witness stated, twenty years later, that he “lied[.]” In 1993, Jeffrey D. Ebb, Sr. (“Respondent”) was convicted of two counts of felony murder, one count of attempted murder, one count of attempted armed robbery, and three counts of first-degree assault, stemming from a 1992 armed ⁶³⁸ robbery that resulted in two deaths. Respondent was sentenced to life without parole for the murders, and additional periods of incarceration for the remaining unmerged offenses. At trial, Jerome House-Bowman (“Mr. House-Bowman”) testified regarding Respondent’s intent to commit an armed robbery and identified Respondent as the individual who shot the victims.

Twenty years later, Mr. House-Bowman, in a signed statement, alleged that he “lied” during Respondent’s trial “to save [his] niece, (Stephanie Stevenson) from prosecution and conviction .... ” Based on Mr. House-Bowman’s recantation, Respondent filed a pro se petition for writ of actual innocence under Crim. Proc. § 8-301, alleging that Mr. House-Bowman’s recantation constituted “newly discovered evidence” that created a “substantial or significant possibility that the result [of Respondent’s trial] may have been different.” Respondent appealed, and the Court of Special Appeals reversed the circuit court, concluding Respondent was entitled to a hearing on the merits of his petition. For the reasons that follow, we shall vacate the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND I. Underlying Criminal Proceedings On the afternoon of November 28, 1992, a gunman entered Brodie’s Barbershop in Catonsville, Maryland.

During the course of an attempted robbery, two people were killed and another was wounded. Witnesses identified Respondent as the gunman. At a six-day trial, the State called several witnesses, including Stephanie Stevenson (“Ms. Stevenson”) who testified regarding Respondent’s criminal agency. Ms. Stevenson also testified that she participated in the attempted robbery, but that Respondent was the person who shot all three victims.

Ms. Stevenson’s testimony was corroborated by Mr. House-Bowman, her uncle. Mr. House-Bowman testified that sometime in December 1992, Respondent told Mr. House-Bowman, in confidence, that Respondent was involved in the “[b]arber- ⁶³⁹ shop murder,” and that “it first started out as a robbery. It was supposed to be a robbery and somehow it got fouled up and [Respondent] had to shoot two people.” Mr. House-Bowman also testified that Respondent told him that Respondent knew where the money was kept in the barbershop, which was why he decided to rob it. Mr. House-Bowman also stated that Respondent described to him in detail how Respondent escaped from the barbershop after he shot the victims.

At trial, the State also introduced into evidence a Browning semi-automatic 9 mm pistol that was alleged to have been used during the course of the incident, and purchased by Todd Timmons from Respondent sometime in November 1992. Additionally, the State called Joseph Kopera (“Mr. Kopera”), a ballistics and firearm expert employed by the Maryland State Police Crime Laboratory, who testified that all the spent cartridge casings and bullets recovered from the bodies of the victims were fired from the same Browning semi-automatic 9mm pistol that was introduced into evidence. Respondent was convicted of two counts of first-degree felony murder, one count of attempted second-degree murder, one count of attempted armed robbery, and three counts of first-degree assault. The court imposed a sentence of life without the possibility of parole on the murder counts, and imposed an additional 80 years of incarceration, to run concurrently, as to the remaining unmerged counts.

Respondent’s convictions were upheld in an unreported, per curiam opinion in the Court of Special Appeals. See Jeffrey D. Ebb, Sr. v. State of Maryland, No. 1809, Sept. Term, 1994 (filed July 20, 1994). This Court granted Respondent’s petition for writ of certiorari, and also upheld his convictions. See Ebb v. State, 341 Md. 578 , 671 A.2d 974 (1996), overruled on other grounds by Calloway v. State, 414 Md. 616 , 996 A.2d 869 (2010). 1 ⁶⁴⁰ Respondent subsequently filed postconviction petitions in 1997 and in 2007, but withdrew both without prejudice prior to a hearing.

Respondent also filed a petition for writ of actual innocence in 2011, based on the trial testimony of Mr. Rop-era—the ballistics expert. That petition was denied after a hearing in the Circuit Court for Montgomery County. The denial of Respondent’s petition was affirmed on appeal in an unreported opinion in the Court of Special Appeals. See Jeffrey D. Ebb, Sr. v. State of Maryland, No. 1342, Sept. Term, 2012 (filed June 16, 2014).

II

Petition for Writ of Actual Innocence On May 7, 2015, Respondent filed a new petition for writ of actual innocence, pro se, in the Circuit Court for Montgomery County. In the new petition, Respondent alleged that one of the witnesses from his original trial, Mr. House-Bowman, “recanted his statement and testimony[.]” Respondent attached a statement 2 from Mr. House-Bowman, dated January 5, 2013, which stated in relevant part, “I lied, in court, at the trial of Jeffrey Edd [sic] to save my niece, [Ms. Stevenson] from prosecution and conviction, facing her, I just did not tell the truth at the trial, I was trying to help my niece.” On July 17, 2015, the circuit court denied Respondent’s petition without a hearing. In its order, the circuit court concluded that Respondent’s petition contained “merely impeaching evidence, and not material evidence, because [Respondent] was linked to the crime by several other witnesses—including eye witnesses.” The circuit court noted that: Stephanie Stevenson testified in detail about [Respondent’s] involvement in the crime, and Charles Dunlop, an eye witness, identified [Respondent] from photographs. Kevin Johnson, another eyewitnesses [sic], testified that he recog ⁶⁴¹ nized the [Respondent] as the shooter in this case when he saw [Respondent’s] picture on the news and notified the police.

More importantly, ballistics reports linked the murder weapon to [Respondent]. On July 24, 2015, Respondent filed a motion for reconsideration that was denied in an order dated August 26, 2015. In its denial, the circuit court reiterated there was “overwhelming evidence, independent from Mr. House-Bowman’s testimony, supporting] [Respondent’s] conviction. This evidence includes testimony from [Respondent’s] accomplice, two eye witnesses, and [a] ballistic report[ ] that linked the murder weapon to [Respondent].” Thereafter, Respondent filed a timely notice of appeal to the Court of Special Appeals.

III

Court of Special Appeals’ Reversal The Court of Special Appeals, in an unreported opinion, reversed the circuit court’s denial of Respondent’s petition without a hearing. See State of Maryland v. Jeffrey D. Ebb, Sr., No. 1427, Sept. Term, 2015, 2016 WL 3002469 (filed May 25, 2016). The Court concluded that an individual who is convicted of a crime and eligible to file a petition for a writ of actual innocence under Crim. Proc. § 8-301, “is entitled to a hearing on the merits of the petition, provided that the petition sufficiently pleads grounds for relief under the statute, includes a request for a hearing, and complies with the filing requirements of [Crim.

Proc.] § 8-301(b).” See Douglas v. State, 423 Md. 156, 165 , 31 A.3d 250, 255 (2011); State v. Hunt, 443 Md. 238, 250-51 , 116 A.3d 477, 484 (2015). The Court noted that a petition is not required to prove the petitioner’s assertions, but rather, that the trial court is obligated to view the facts asserted in the light most favorable to the petitioner, and required to hold a hearing if “the allegations could afford a petitioner relief, [assuming] those allegations would be proven at a hearing.” Ebb , No. 1427, Sept. ⁶⁴² Term 2016 at 6 (quoting Hunt, 443 Md. at 251 , 116 A.3d at 484 )). The Court also noted that in Douglas , we held: [A] trial court may dismiss a petition without a hearing when one was requested, pursuant to [Crim. Proc.] § 8-301(e)(2), only when a petitioner fails to satisfy the pleading requirement.

The pleading requirement mandates that the trial court determine whether the allegations could afford a petitioner relief, if those allegations would be proven at a hearing, assuming the facts in the light most favorable to the petitioner and accepting all reasonable inferences that can be drawn from the petition. That is, when determining whether to dismiss a petition for writ of actual innocence without a hearing pursuant to [Crim. Proc.] § 8-301(e)(2), provided the petition comports with the procedural requirements under [Crim. Proc.] § 8-301(b), the trial court must consider whether the allegations, if proven, consist of newly discovered evidence that “could not have been discovered in time to move for a new trial under Maryland Rule 4-331” and whether that evidence “created a substantial or significant possibility that the result [of the trial] may have been different. [Crim.

Proc.] § 8-301(a), Douglas, 423 Md. at 180 , 31 A.3d at 264 . The Court concluded that the trial court erred in resolving the petition without a hearing because Petitioner met the pleading requirement by “alleging facts that theoretically could have resulted in a different trial.” Ebb , No. 1427, Sept. Term 2016 at 9. The Court also noted that in Douglas , we described the analysis the circuit court is obligated to undertake when a petition has satisfied the procedural pleading requirements of Crim. Proc. § 8-301.

Id. at 10. We concluded in Douglas that Crim. Proc. § 8-301 “authorizes the trial court to dismiss a petition for writ of actual innocence without a hearing even though one was requested, if the court concludes that the allegations, if proven, could not entitle a petitioner to relief.” Id. (quoting Douglas, 423 Md. at 185 , 31 A.3d at 267 .

The Court concluded that the circuit court erred in denying Respondent’s petition on the grounds that Mr. House-Bowman’s recantation was “merely impeaching” because “[i]f, in fact, a ⁶⁴³ material witness has recanted testimony about facts that played a significant role in the case, that recantation could be evidence that is directly exculpatory and not ‘merely impeaching.’ ” Id. at 11. The Court also held that, “ ‘[A]s long as a court could reasonably conclude that the newly-discovered evidence, if believed, could create a substantial or significant possibility of a different result, the court may not dismiss a petition’ based upon a characterization of the new evidence as merely impeaching.” Id. at 12 (quoting Snead v. State, 224 Md.App. 99, 113 , 119 A.3d 137, 145 (2015)). The Court reversed the circuit court’s denial of Respondent’s petition, vacated the judgment, and remanded the case for further proceedings. The State noted a timely Petition for Writ of Certiorari to this Court, which was granted on September 2, 2016.

STANDARD OF REVIEW The standard of review is de novo when appellate courts consider the legal sufficiency of a petition for writ of actual innocence that was denied without a hearing. Hunt, 443 Md. at 247 , 116 A.3d at 482 . DISCUSSION I. Petition’s Compliance with Pleading Requirements Contained in Crim. Proc. § 8-301(b) and Md. Rule 4-332(d) a.

Pleading Requirements for Petitions of Writ of Actual Innocence i. Crim. Proc. § 8-301 In 2009, the General Assembly enacted Crim. Proc. § 8-301 to address the statutory gap for convicted defendants who could not secure postconviction relief because they obtained newly discovered evidence that was either non-biologi ⁶⁴⁴ cal, 3 or discovered after the one year limitation in Maryland Rule 4-331.

See Smallwood v. State, 451 Md. 290, 313-20 , 152 A.3d 776, 789-93 (2017) (discussing Crim. Proc. § 8-301’s legislative history). Crim. Proc. § 8-301 contains specific pleading requirements for a petition.

Sub-section (b) requires a petition to include the following: (b) A petition filed under this section shall: (1) be in writing; (2) state in detail the grounds on which the petition is based; (3) describe the newly discovered evidence; (4) contain or be accompanied by a request for hearing if a hearing is sought; and (5) distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions. Additionally, sub-section (e) provides: (e) (1) Except as provided in paragraph (2) of this subsection, the court shall hold a hearing on a petition filed under this section if the petition satisfies the require ⁶⁴⁵ ments of subsection (b) of this section and a hearing was requested. (2) The court may dismiss a petition without a hearing if the court finds that the petition fails to assert grounds on which relief may be granted. In Douglas , we concluded that Crim.

Proc. § 8-301 only “requires that a petition ‘assert’ grounds for relief, it does not require the petitioner to satisfy the burden of proving those grounds in the papers submitted.” Douglas, 423 Md. at 179 , 31 A.3d at 264 ; see also Hunt, 443 Md. at 251 , 116 A.3d at 484 (quoting Douglas, 423 Md. at 179 , 31 A.3d at 264 ). Additionally, “[njothing in the language of the statute requires more than that a petitioner plead those assertions [in sub-section (b) ] before the hearing requirement [in sub-section (e) ] is triggered.” Douglas, 423 Md. at 180 , 31 A.3d at 264 . 4 We concluded, therefore, that, the statute establishes only a burden of pleading grounds for relief, not of proving them, and that a trial court may dismiss a petition without a hearing when one is requested, pursuant to [Crim. Proc.] § 8-301 (e)(2), only when a petitioner fails to satisfy the pleading requirement. The pleading requirement mandates that the trial court determine whether the allegations could afford petitioner relief, if those allegations would be proven at a hearing, assuming the facts in the light most favorable to the petitioner and accepting all reasonable inferences that can be drawn from the petition.

Id.; see also Hunt, 443 Md. at 251 , 116 A.3d at 484 (quoting Douglas, 423 Md. at 180 , 31 A.3d at 264 ). We also recognized in Douglas the persuasive value of holding a hearing in cases brought under Crim. Proc. § 8-301. Id. at 181, 31 A.3d at 265 (citing Jackson v. State, 358 Md. 612, 625 , 751 A.2d 473, 479-80 (2000)).

In Douglas , we quoted Jackson at length, explaining: ⁶⁴⁶ [The right to a hearing] represents an assessment by us of the significance of the matter under consideration, at least to the parties, and, given that significance, of their right, if they choose to exercise it, to present directly to the court, viva voce, the reasons why they should prevail. It is a recognition that personal, vocal communication with the judge may not only itself be a more effective means of persuasion than written documents that may be read hurriedly and not fully appreciated or understood, but that a hearing offers at least a limited opportunity for dialogue, allowing for clarification, for greater precision, for addressing concerns harbored and expressed by the judge. It is a right that, ordinarily, may be waived, but when not waived, we are loathe, in the absence of extraordinary circumstances, to find its denial harmless. It would often be a matter of pure speculation whether prejudice ensued— whether, had the party been given the opportunity to make his or her “pitch” at a hearing, the result may have been different—and that is much more likely the case when the decision may rest upon the resolution of factual disputes or the exercise of discretion and judgment.

Id. (quoting Jackson, 358 Md. at 625 , 751 A.2d at 479-80 ). In reviewing petitions brought under Crim. Proc. § 8-301, we also “construe liberally filings by pro se inmates, particularly when the statute involved is remedial.” Id. at 182, 31 A.3d at 266 (quoting State v. Matthews, 415 Md. 286, 298 , 999 A.2d 1050, 1057 (2010)); see also Hunt, 443 Md. at 251 , 116 A.3d at 484 (quoting Douglas, 423 Md. at 182 , 31 A.3d at 266 ).

Respondent’s petition satisfied the requirements contained in Crim. Proc. § 8-301(b). The petition complied with subsection (b)(1) and (b)(4) because it was in writing and requested a hearing. Respondent’s petition also satisfied sub-section (b)(5) because the alleged newly discovered evidence of Mr. House-Bowman’s recantation was distinct from his prior alleged ⁶⁴⁷ newly discovered evidence regarding Mr. Kopera’s perjury, 5 Finally, as discussed more fully infra, Respondent’s petition satisfied subsections (b)(2) and (b)(3) because—under the Douglas pleading standard—Respondent included in his petition Mr. House-Bowman’s statement from January 2013 that asserted he had “lied” at trial.

Respondent also provided sufficient evidence that the State relied, in part, on Mr. House-Bowman’s testimony in establishing Respondent committed several crimes for which Respondent was later convicted, thus creating a “significant or substantial possibility” that the outcome of Respondent’s trial may have been different. ii. Maryland Rule 4-332 On September 8, 2011, we adopted Maryland Rule 4-332, effective October 1, 2011, to clarify the pleading requirements under Crim. Proc. § 8-301. Specifically, Maryland Rule 4-332(d) requires a petition filed under Crim.

Proc. § 8-301 to include the following: (d) The petition shall be in writing, shall be signed by the petitioner or the petitioner’s attorney, and shall state: (1) the court in which the indictment or criminal information was filed and the file number in that case; (2) if the case was removed to another court for trial, the identity of that court; (3) each offense of which the petitioner was convicted, the date of the judgment of conviction, and the sentence imposed; (4) if the judgment was appealed, the case number in the appellate court, a concise description of the issues ⁶⁴⁸ raised in the appeal, the result, and the date of the appellate court’s mandate; (5) for each motion or petition for post-judgment relief, the court in which the motion or petition was filed, the case number assigned to each proceeding, a concise description of the issues raised, the result, and the date of disposition; (6) that the request for relief is based on newly discovered evidence which, with due diligence, could not have been discovered in time to move for a new trial pursuant to Rule 4-331; (7) a description of the newly discovered evidence, how and when it was discovered, why it could not have been discovered earlier, and, if the issue of whether the evidence could have been discovered in time to move for a new trial pursuant to Rule 4-331 was raised or decided in an earlier appeal or post-judgment proceeding, the identity of the appeal or proceeding and the decision on that issue; (8) that the newly discovered evidence creates a substantial or significant possibility, as that standard has been judicially determined, that the result may have been different, and the basis for that statement; (9) that the conviction sought to be vacated is based on an offense that the petitioner did not commit; (10) if the petitioner is not already represented by counsel, whether the petitioner desires to have counsel appointed by the court, and, if so, facts establishing indigency; (11) that a copy of the petition, together with all attachments, was mailed to the State’s Attorney of the county in which the petition was filed; (12) the relief requested; and (13) whether a hearing is requested. Sub-section (j) requires a court to hold a hearing on a petition filed under Crim. Proc. § 8-301 if the petition is not dismissed ⁶⁴⁹ under sub-section (i)(l)(A), and “if the petition substantially complies with the requirements of section (d) of this Rule and a hearing was requested.” Maryland Rule 4-332(j)(l). Under sub-section (i)(l) a court may either dismiss a petition filed under Grim.

Proc § 8-301, or, in its discretion, “[g]rant leave to amend the petition to correct the deficiency.” Maryland Rule 4-332(i)(l)(A), (B). In considering whether to grant leave to amend the petition, sub-section (h) states that, “[amendments to the petition shall be freely allowed in order to do substantial justice.” Maryland Rule 4-332(h). In discussing Maryland Rule 4-332’s pleading requirements, we clarified in Hunt that sub-section (d), in addition to requiring the recitation of certain procedural information, 6 also “elaborates on the contents of petitions for writ of actual innocence.” See Hunt, 443 Md. at 249 , 116 A.3d at 483 . We determined that petitions filed under Crim.

Proc. § 8-301 must comply with the requirements stated in sub-section (d)(6)—(9), and (12)-(13). See id. at 249-50, 116 A.3d at 483-84 . In Hunt , we considered two petitions for writ of actual innocence, only one of which—Hardy’s—was subject to Maryland Rule 4-332. 7 Id. at 254 , 116 A.3d at 486 . We concluded that Hardy’s petition complied with the pleading requirements contained in (d)(6), (7), and (9), but acknowledged that Hardy’s petition did not comply with other technical requirements contained in the Rule, including subsections (d)(3), (4), and (5).

Id. at 255 , 116 A.3d at 487 . Despite the procedural deficiencies, we held the circuit court was not required to dismiss Hardy’s petition because Mary-land Rule 4-332(i)(l) provides a “relief valve” for the circuit court to avoid dismissal of a petition if the petition “complies] substantially with the requirements of [subjsection (d) [of Maryland Rule 4-332.]” See id. at 255-56 , 116 A.3d at 487 . We ⁶⁵⁰ also noted that no appellate decision considering petitions filed after October 1, 2011, dismissed those petitions for lack of compliance with the more technical requirements of Rule 4-332. See id. at 256 , 116 A.3d at 487 .

Rather, “[w]here petitions were dismissed, it was for more substantive violations of other requirements.” Id. (citing Ward v. State, 221 Md.App. 146, 168-70 , 108 A.3d 507, 520-21 (2015); Yonga v. State, 221 Md.App. 45, 64 , 108 A.3d 448, 459 (2015), [aff'd 446 Md. 183 , 130 A.3d 486 (2016)]; Jackson v. State, 216 Md.App. 347, 364-65, 373-75 , 86 A.3d 97, 107, 112-13 (2014); Keyes v. State, 215 Md.App. 660, 666, n. 3 , 84 A.3d 141, 144, n. 3 (2014)). In the case at bar, Respondent’s petition satisfied the more technical requirements contained in Maryland Rule 4-332, including those in subsection (d)(1), (3), (4), (5), (11), (12), and (13). 8 We also note that Maryland Rule 4-332(d)(2) is not ⁶⁵¹ applicable under the facts before us because Respondent’s criminal case was not removed to another court for trial. Turning to the substantive requirements contained in Mary-land Rule 4-332, we noted in Hunt that Maryland Rule 4-332(d)(6) “elaborates on [Crim.

Proc.] § 8-301(b)(3)’s ‘newly discovered evidence’ requirement, adding that a petition for writ of actual innocence must allege that the newly discovered evidence, ‘with due diligence, could not have been discovered’ in time to move for a new trial pursuant to [Maryland] Rule 4-331.” Hunt, 443 Md. at 254 , 116 A.3d at 486 . In Respondent’s petition, he alleges that the newly discovered evidence in his case was that the “[p]rosecut[or’s] material witness [Mr. House-Bowman] recanted his statement and testimony on January 5, 2013, under penalties of perjury.” Respondent also included in his Memorandum of Law and Facts in Support of Petition for Writ of Actual Innocence, the statement that, “[Mr. House-Bowman], did not come forward until January 5, 2013, twenty years after [Respondent’s] trial. Thus, [Mr. House-Bowman’s] false testimony could not have been discovered in time to move for a new trial under [Maryland] Rule 4-331.” In his brief, Respondent noted that a defendant convicted on perjured testimony “would have no way of knowing that a witness who falsely implicated him under oath would later come forward and recant.” As Respondent argues, a reasonable inference can be drawn that Mr. House-Bowman’s recantation was not available to Respondent until Mr. House-Bowman contacted Respondent and volunteered to recant. We conclude, therefore, that these statements are sufficient to satisfy the pleading requirement of Maryland Rule 4-332(d)(6).

We concluded in Hunt that Hardy’s petition satisfied Mary-land Rule 4-332(d)(7) because the petitioner attached a Baltimore Sun article that raised questions about Mr. Kopera’s academic qualifications and an affidavit from the public de ⁶⁵² fender who represented the petitioner that recounted her discovery of Mr. Kopera’s misrepresentations, and this information was included in his petition. See Hunt, 443 Md. at 254-55 , 116 A.3d at 486 . Here, Respondent attached the statement from Mr, House-Bowman recanting his original testimony to his petition, and in his petition he alleged that “[Mr. House-Bowman] has now come forward to renounce the testimony and statements he gave against Petitioner and revealed they were all false.” Respondent also noted in his petition that “[o]n January 5, 2013, Mr. Floyd Turpin, a private investigator, conducted an interview with [Mr. House-Bowman]. During this interview, [Mr. House-Bowman] signed an affidavit, recanting his statement and testimony at trial, which constitutes newly discovered evidence.” We conclude the statements included in Respondent’s petition and the attachment of Mr. House-Bowman’s recantation statement are sufficient to satisfy the pleading requirement in Maryland Rule 4-332(d)(7).

Additionally, as discussed more fully infra, we conclude Respondent’s petition also satisfied the requirement in Maryland Rule 4—332(d)(8) requiring the alleged newly discovered evidence to create a substantial or significant possibility that the result in Respondent’s trial may have been different. The parties both acknowledge that Respondent’s petition does not comply with the requirement in subsection (d)(9) that the petition include an averment “that the conviction sought to be vacated is based on an offense that the petitioner did not commit.” Maryland Rule 4-332(d)(9). The State also argues that Respondent’s evidence “is so lacking in specificity that one cannot even find an implicit protestation of innocence in the pleading” as we concluded in McGhie v. State. See 449 Md. 494, 509, n. 6 , 144 A.3d 752, 761, n. 6 (2016).

In contrast, Respondent argues that because we found in McGhie there was no “jurisdictional concern with the lack of an averment of innocence[,]” id. our holding “lends support to the conclusion that ‘substantial’ compliance does not