Syed v. State

Panel: Woodward, C.J., Wright, Graeff, JJ. * Woodward, C.J. ¹⁹¹ TABLE OF CONTENTS I. BACKGROUND ...196 A. Trial...196 1. Day of the Murder...197 a. Morning of January 13, 1999...197 b. Midday...197 c.

Afternoon...198 d. Evening...201 e. Nighttime...202 2. Forensic Evidence...204 3.

Verdict and Appeal...205 B. Post-Conviction Proceedings...206 THE STATE'S PROCEDURAL QUESTIONS ...210 I. The Scope of this Court's May 18, 2015 Remand Order ...210 A. Background...210 B. Contentions...213 ¹⁹² C. Analysis...214 II. The Reopening of Syed's Post-Conviction Proceeding ...215 A. Background...215 B. Contentions...216 C. Analysis...217 III. Waiver of Syed's Claim of Ineffective Assistance of Counsel Pertaining to the Cell Tower Location Evidence ...223 A. Legal Background...223 B. Reopened Post-Conviction Proceeding...229 C. Contentions on Appeal...230 D. Analysis...231 SYED'S QUESTIONS ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ...240 Standard of Review ...241 I. Trial Counsel's Failure to Pursue a Plea Deal with the State ...241 A. Background...241 B. Memorandum Opinion I...244 C. Analysis...245 II. Trial Counsel's Failure to Investigate McClain as a Potential Alibi Witness ...246 A. Background...246 1.

First Hearing...246 2. First Appeal...249 ⁸⁶⁵ 3. Second Hearing...250 4. Memorandum Opinion II...258 B. Deficient Performance...259 1.

Contentions...259 2. Relevant Case Law...260 ¹⁹³ 3. Analysis...269 C. Prejudice...276 1. Contentions...278 2.

Analysis...278 D. Conclusion...285 Hae Min Lee ("Hae") 1 was last seen on the afternoon of January 13, 1999, at Woodlawn High School in Baltimore County, Maryland. Less than a month later, on February 9, 1999, Hae's body was discovered in a shallow grave in Leakin Park located in Baltimore City, Maryland. Through investigation, Baltimore City authorities came to believe that appellant/cross-appellee, Adnan Syed, was responsible for Hae's death and charged Syed with first degree murder and related crimes. On February 25, 2000, a jury in the Circuit Court for Baltimore City returned verdicts of guilty against Syed for first degree murder, kidnapping, robbery, and false imprisonment.

The court subsequently sentenced Syed to life imprisonment for first degree murder, thirty years for kidnapping (to run consecutive to the life sentence), and ten years for robbery (to run consecutive to the life sentence but concurrent to the thirty years for kidnapping). The conviction for false imprisonment was merged for sentencing purposes. On direct appeal, this Court affirmed the convictions in an unreported opinion, and in June 2003, the Court of Appeals denied Syed's petition for writ of certiorari. Syed v. State , No. 923, Sept. Term 2000 (filed March 19, 2003), cert. denied , 376 Md. 52 , 827 A.2d 114 (2003).

The unusual procedural posture of this case began ten years after Syed's convictions, when he filed a petition for post-conviction relief on May 28, 2010. After a two-day hearing, the circuit court denied all nine of Syed's claims for post-conviction relief in January 2014. ¹⁹⁴ Syed filed a timely application for leave to appeal to this Court, which we granted on February 6, 2015. After considering Syed's request to remand his appeal because of a newly obtained affidavit from Asia McClain, a potential alibi witness, we remanded the case to the circuit court by order dated May 18, 2015, for that court to decide whether to reopen Syed's post-conviction proceeding. We stayed the remaining question raised in Syed's appeal.

On remand, the circuit court reopened Syed's post-conviction proceeding and conducted a five-day evidentiary hearing in February 2016. Ultimately, the circuit court granted Syed a new trial on the grounds of ineffective assistance of trial counsel 2 for counsel's failure to properly challenge the reliability of the evidence relating to the location of Syed's cell phone at the time that incoming calls were received on the night of the murder. The State filed a timely application for leave to appeal on August 1, 2016, and Syed filed a conditional cross-application for leave to appeal. We granted both applications, lifted the stay imposed pertaining to Syed's original appeal, and consolidated the appeals.

Accordingly, we will consider ⁸⁶⁶ the questions and issues raised in both appeals, which we have rephrased and organized into the following questions: 3 The State's Procedural Questions : ¹⁹⁵ 1. Did the post-conviction court abuse its discretion by exceeding the scope of this Court's May 18, 2015 remand order? 2. Did the post-conviction court abuse its discretion when it reopened Syed's post-conviction proceeding to consider the claim of ineffective assistance of counsel for trial counsel's failure to properly challenge the reliability of the cell tower location evidence? 3. Did the post-conviction court err by determining that Syed did not waive his ineffective assistance of counsel claim pertaining to trial counsel's failure to properly challenge the reliability of the cell tower location evidence? 4 Syed's Questions on His Claims of Ineffective Assistance of Counsel : ¹⁹⁶ 1.

Did the post-conviction court err by holding that Syed's right to effective assistance of counsel was not violated when trial counsel failed to pursue a plea deal with the State? 2. Did the post-conviction court err by holding that Syed's right to effective assistance of counsel was not violated when trial counsel failed to investigate McClain as a potential alibi witness? For the reasons set forth below, we affirm the judgment of the circuit court, but do so by concluding that Syed's Sixth Amendment right to effective assistance of counsel was violated by trial counsel's failure to investigate McClain as a potential ⁸⁶⁷ alibi witness. Accordingly, we remand the case for a new trial.

BACKGROUND A. Trial At trial, 5 the State's theory was one of a scorned lover. The State described Syed as resentful when Hae ended her and Syed's on-again, off-again relationship in November of 1998. According to the State, this resentfulness only grew after Syed discovered that at the beginning of January 1999, Hae had begun dating Donald Cliendinst ("Don"). To make matters worse, Hae's new relationship quickly became common knowledge among students and teachers at Woodlawn High School, where both Hae and Syed were enrolled as students in the Magnet program for gifted students.

The State theorized that sometime before the school day ended on January 13, 1999, Syed asked Hae for a ride so that he could pick up his car at the repair shop, knowing that she would say yes. During that ride, Syed, a regular operator of Hae's Nissan Sentra, drove them to the Best Buy parking lot situated off Security Boulevard in Baltimore County, a location ¹⁹⁷ frequented by them during their courtship. Central to the State's theory was that Syed murdered Hae between 2:15 p.m. and 2:35 p.m. in the Best Buy parking lot by strangling her and then placing her body in the trunk of her car. The State adduced evidence showing that later that night, Syed and Jay Wilds (the State's key witness) buried Hae's body in Leakin Park.

A summary of the evidence adduced at trial in a light most favorable to the State is set forth below. 1. The Day of the Murder a. Morning of January 13, 1999 At 10:45 a.m. on January 13, 1999, Syed used his newly purchased cell phone 6 to call Wilds's home phone. Syed asked Wilds if he had any plans that day, to which Wilds replied that he needed to go to the mall to purchase a birthday present for his girlfriend.

Syed stated that he would give Wilds "a lift." Later that morning, Syed arrived at Wilds's house in a tan four-door Honda Accord, and the two drove to Security Square Mall. After shopping, Syed told Wilds that he had to get back to school, because his lunch period was ending. During the drive to school, Syed told Wilds "how [Hae] made him mad," and declared, "I'm going to kill that bitch ...." Wilds dropped Syed off at school, and Syed permitted Wilds to drive his car and keep Syed's cell phone. Syed said that he would give Wilds a call when he was ready to be picked up. b.

Midday As Wilds was leaving school, he used Syed's phone to call his close friend, Jennifer Pusateri, to see if he could come over to her house. Syed's cell phone records indicate that a call was placed to Pusateri's phone at 12:07 p.m. Pusateri's brother answered the phone and told Wilds to come over, even though ¹⁹⁸ Pusateri was still at work. Pusateri was supposed to leave work around noon but was delayed that day.

While at Pusateri's house, Wilds received a call from Syed, who stated that he was not ready to be picked up yet but that he needed to be picked up "at like 3:45 or something like that[.]" ⁸⁶⁸ When Pusateri got home from work, she observed that Wilds had a cell phone with him and had driven a tan four-door car to her house. Pusateri also noted that Wilds "wasn't acting like [he] normally acts[,]" and "[h]e wasn't as relaxed as he normally is[.]" c. Afternoon Aisha Pittman, Hae's best friend, said that she saw Hae "[r]ight at the end of the school day at 2:15 [p.m.] in Psychology class." When Pittman saw Hae, Hae was talking to Syed. Rebecca Walker, a student and friend of Hae and Syed, said that she too "saw [Hae for] a few seconds after class let out" at 2:15 p.m. that day.

Walker said that she "saw [Hae] heading towards the door [that would have led to where her car was parked] but [ ] did not see [Hae] actually leave." Hae told Walker that "she had to be somewhere after school." But Hae did not say where she was going. Inez Butler Hendricks, a teacher and athletic trainer at Woodlawn High School, saw Hae at the concession stand in the gym lobby at "about 2:15, 2:20 [p.m]." She recalled that Hae was wearing "[a] little short black skirt, light colored blouse, [ ] black heels[, and] ... some [clear] nylon stockings [on her legs]" that day. 7 Young Lee, ("Young"), Hae's brother, stated that Hae was supposed to pick up their cousin from elementary school around 3:00 p.m. that day. Young discovered that Hae had not picked up the cousin when the elementary school called to notify him that the cousin needed to be picked up. Meanwhile, Wilds received a phone call from Syed.

According to Wilds, "[Syed] asked [him] to come and get him from ¹⁹⁹ Best Buy." Syed's cell phone records indicate an incoming call was received at 2:36 p.m. 8 Upon receiving the call from Syed, Wilds stated that he went straight to Best Buy where he saw Syed standing next to a pay phone wearing a pair of red gloves. Syed instructed Wilds to drive to the side of the building and park the car next to a gray Nissan Sentra, which was later identified as Hae's car. Wilds got out of the car and walked towards Syed. Syed asked Wilds if he was "ready for this." According to Wilds, Syed "opened the trunk and [Hae] was dead in the trunk." Syed then closed the trunk and instructed Wilds to follow him as he drove Hae's car.

In a self-described state of bewilderment, Wilds followed Syed to the Interstate 70 Park and Ride where Syed parked Hae's car. Syed got into the driver's seat of his car and drove away with Wilds as a passenger. Syed asked Wilds if he wanted to go buy some marijuana, to which Wilds agreed. On their way to the house of Patrick Furlow, Wilds's friend and marijuana dealer, Wilds made a call to Pusateri to see if she knew if Furlow was home; Pusateri replied that she did not.

Syed's cell phone records indicate that a call was made to Pusateri's phone at 3:21 p.m. During their drive to Furlow's house, Syed also made a call to Nisha Tanna, a friend of his who lived in Silver Spring. Syed asked Wilds if he wanted to talk to Tanna and passed the cell phone to Wilds. Not feeling like talking, Wilds said, "hello, my name is Jay" and passed the phone back to Syed.

According to Tanna, Syed asked her how she was doing and then ⁸⁶⁹ "put his friend Jay [Wilds] on the line, and he basically asked the same question." Syed's cell phone records indicate that a call was made to Tanna's phone at 3:32 p.m. ²⁰⁰ Wilds called Furlow at 3:59 p.m. and learned that he was not home. At this point, Syed and Wilds changed course and drove to Forest Park to purchase marijuana. Wilds stated that he called Pusateri to see if she knew if Kristina Vinson, 9 a mutual friend of Pusateri and Wilds, was home. Syed's cell phone records indicate that a call was made to Pusateri's phone at 4:12 p.m.

Syed told Wilds that he wanted to go to track practice at Woodlawn High School, because "he needed to be seen." 10 During the ride to Woodlawn High School, Syed expressed that "it kind of hurt him but not really, and when someone treats him like that, they deserve to die." Syed asked: "How can you treat somebody like that, that you are supposed to love?" Wilds stated that Syed spoke about the murder and confessed that "he thought [Hae] was trying to say something to him like apologize or say she was sorry, and that she had kicked off the turn signal in the car, and he was worried about her scratching him on the face or something like that ...." 11 When they arrived at Woodlawn High School, Syed told Wilds, "mother-fuckers think they are hard, I killed somebody with my bare hands." ²⁰¹ Wilds then drove to Vinson's apartment to smoke marijuana and debate with himself about what to do. Wilds received a call from Syed on the cell phone half an hour later saying that he was at school ready to be picked up, and Wilds left Vinson's apartment to retrieve Syed. d. Evening Wilds stated that, after he picked up Syed, they both went to Vinson's apartment. Vinson stated that Wilds and Syed arrived at her apartment around 6:00 p.m.

According to Vinson, it was memorable, because "they were acting real shady when they got there." While they were at Vinson's apartment, Wilds recalled that Syed received three phone calls. The first call was from Hae's parents asking if Syed knew where Hae was, to which he stated, "I haven't seen Hae, I don't know where she is, try her new boyfriend." Wilds said that the second call occurred when "Hae's cousin or someone had called back[,] but it was the wrong number. They thought it was the new boyfriend's number[,] and it was his cellphone number or something like that." Young testified that "[he] looked around the house to look for [Hae's] friends' phone numbers and such," and discovered a phone number listed in ⁸⁷⁰ Hae's diary as "443 253-9023." 12 Young called that phone number believing that it was the number of Hae's new boyfriend, Don, because the sheet of paper had "Don" written all over it. After talking for a while, Young realized that he was speaking to Syed, because he recognized Syed's voice.

Young asked Syed "if he knew where [Hae] was, or where she could be." According to Young, Syed did not say whether he knew where Hae was. The third phone call, according to Wilds, was "from a police officer who was asking about Hae." Officer Scott Adcock testified that he called Syed between 6:00 p.m. and 6:30 p.m. and spoke to him for "no more than three to four minutes." Syed responded to the police officer stating, "I don't know ²⁰² where Hae is." Syed also "advised [him] that he did see her at school and that [Hae] was going to give him a ride home from school, but he got detained and felt that she probably got tired of waiting for him and left." Vinson testified that after receiving the last phone call, Syed said, "they're going to come talk to me" and then "ran out of the apartment." According to Vinson, Wilds "jumped up and ran out of the apartment, too." Vinson looked out the window of her apartment and observed Syed and Wilds drive away. Syed's cell phone records indicate that three incoming calls were received by Syed's cell phone at 6:07 p.m., 6:09 p.m., and 6:24 p.m. e. Nighttime Wilds recounted that after leaving Vinson's apartment, Syed drove them to Wilds's house.

There, Syed told Wilds that he needed his help getting rid of Hae's body, stating that "he knew what [Wilds] did," and "how [he] did it[.]" Fearing that this comment was a threat to report Wilds to the police for his drug dealing, Wilds agreed to help. Syed then "grabbed two shovels and put them in the back seat of his car. [Wilds] got in [Syed's] car with him." The two went back to the Interstate 70 Park and Ride where Syed got out of his car and got into Hae's parked car. Wilds followed Syed, and they drove around for forty-five minutes, ultimately arriving at Leakin Park. Wilds stated that, because he was supposed to meet Pusateri at 7:00 p.m. that evening, he paged her to tell her that he was going to be late for their meeting.

Syed's cell phone records indicate that a call was made to Pusateri's pager number at 7:00 p.m. When Syed and Wilds arrived at Leakin Park, Syed parked Hae's car on a nearby hill, got into his car, and instructed Wilds to drive down the hill. They then went about 150 feet 13 into the woods and used the shovels to begin digging. ²⁰³ Wilds stated that, "while we were digging, [Pusateri] had called back, and [Syed] just told her [Wilds] was busy now and hung up the phone." Pusateri testified that at 7:00 p.m. she received "a page from [Wilds,] and it was a voice message." She was confused by Wilds's page and "didn't understand the message [about] where [Wilds] wanted [her] to pick him up and what time. So [she] thought that it was necessary to call him." When she called the number on her caller I.D., "[s]omeone answered the phone and said [Wilds] will call me when he was ready for me to come and get him.

He was busy." Syed's cell phone records indicate an incoming call was received at 7:09 p.m. Abraham Waranowitz, the State's expert in "cell phone ⁸⁷¹ network design and functioning[,]" testified that this call registered with cell site "L689B[,]" which was the strongest cell site for the location of Hae's body in Leakin Park. After digging the grave, Wilds and Syed went back to Syed's car and put the shovels in the passenger side. Wilds then drove up the hill and parked behind Hae's car.

According to Wilds, "[Syed] asked me for like five to ten minutes, he was like I don't think I'm going to be able to get her out by myself, I think I need your help." When Wilds responded that he was not going to help, Syed drove Hae's car down the hill. Soon thereafter, Syed came back up the hill, parked Hae's car, got into his car, and told Wilds that they needed to bury Hae. Wilds returned with Syed to the woods where Hae was "laying kind of twisted face down." While they were burying the body, Syed received another phone call. Wilds did not know who the caller was, but noted that part of the conversation was not in English.

Syed's cell phone records indicate an incoming call was received at 7:16 p.m. and registered with the same cell site, "L689B." After Wilds and Syed finished burying Hae's body, Syed put the shovels in his car, and they drove up the hill to Hae's parked car. Syed drove away in Hae's car, with Wilds following behind driving Syed's car. Wilds recalled that the two traveled towards the [C]ity on Route 40 and some of the back streets. We cut north and south, up and down roads. ²⁰⁴ [Syed] pulled into like this alcove in the back of a whole lot of apartments.

He parked [Hae's] car and came back to his vehicle. [ 14 ] At that time, I told him just flat out to take me home. He started driving me home. Wilds further testified that Syed stopped his car at Westview Mall where he threw Hae's wallet, prom picture, and other possessions into a dumpster. Wilds then told Syed to pull behind Value City in Westview Mall where he threw the two shovels into a dumpster. 15 Wilds stated that he paged Pusateri, and she testified that she received a page to pick Wilds up from Westview Mall around 8:00 p.m.

Pusateri testified further that she picked Wilds up from the Value City in Westview Mall about ten to fifteen minutes after receiving his page. When Wilds got into her car, "the first thing he said was like put on your seat belt and let's go." When they left the parking lot, Wilds confessed that he had something to tell her that she could not tell anybody. Wilds then disclosed that Syed had strangled Hae in the Best Buy parking lot and that he had seen Hae's body in the trunk of a car. 2. Forensic Evidence Although there were no eyewitnesses to the murder, there was forensic evidence that the State theorized linked Syed to the crimes.

Margarita Korell, M.D., an assistant medical examiner at the Office of the Chief Medical Examiner in Baltimore City, was accepted as "an expert in forensic pathology" at trial. Dr. Korell testified that on February 10, 1999, she performed an autopsy on Hae. Dr. Korell opined that "the cause of death was strangulation" and that the manner of death was "[h]omicide." Dr. Korell noted that the hyoid bone in Hae's neck was broken, and the strap muscles of the neck showed hemorrhaging, which indicated that pressure had been ²⁰⁵ applied to the skin on the neck. Dr. Korell stated that in her experience, "if [ ] pressure [is applied] on the neck for ten seconds ⁸⁷² or so," that could lead to unconsciousness and death within "a couple of minutes." Romano Thomas, a crime lab technician with the Baltimore City Police Department Mobile Crime Lab Unit, testified that on February 28, 1999, he supervised the inspection of Hae's vehicle.

Thomas stated that one of the items recovered from the car was a map of the Leakin Park area that was torn out of a map book. The torn out piece was found in the rear seat area of the vehicle. Sharon Talmadge, an employee at the Baltimore City Police Department Latent Print Unit, testified that her duties were to "evaluate partial latent prints to determine if they [were] suitable for comparison." Talmadge would "then compare suitable partial latent prints to the prints of victims, suspects[,] or defendants. [She would also] process physical evidence to determine if there [were] any partial latent prints on that particular piece of evidence." Talmadge said that she was asked to determine if there were any partial latent prints on the map and map book that were recovered from Hae's vehicle. Talmadge made a comparison to Syed and Wilds, and testified that "[a] partial latent print developed on the back cover of the map [book] ... was identified as an impression of the left palm of [ ] Syed." 3.

Verdict and Appeal After six weeks of trial, the jury spent only about three hours deliberating before finding Syed guilty on February 25, 2000, of the charges of first degree murder, robbery, kidnapping, and false imprisonment. Syed was sentenced on June 6, 2000, to a total term of life imprisonment plus thirty years. On direct appeal, Syed did not challenge the sufficiency of the State's evidence pertaining to any of his convictions. See Syed v. State , No. 923, Sept. Term 2000, slip op. at 1 (filed March 19, 2003), cert. denied , 376 Md. 52 , 827 A.2d 114 (2003).

Instead, he raised numerous evidentiary issues and alleged ²⁰⁶ violations of Brady v. Maryland , 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Id. at 1-2. In an unreported opinion, filed on March 19, 2003, this Court found no merit to Syed's contentions and affirmed all of his convictions. Id. at 57.

The Court of Appeals denied Syed's petition for writ of certiorari on June 20, 2003. B. Post-Conviction Proceedings On May 28, 2010, Syed filed a petition for post-conviction relief, and later supplemented his petition on June 27, 2010. Syed raised nine claims of ineffective assistance of counsel concerning trial counsel, sentencing counsel, and appellate counsel, which the post-conviction court summarized as follows: I. Trial counsel failed to establish a timeline that would have disproved the State's theory and shown that [Syed] could not have killed [Hae] in the manner described by [the] State[']s witness Jay Wilds[;] II. Trial counsel failed to call or investigate an alibi witness, Asia McClain, who was able and willing to testify; III.

Trial counsel failed to move for a new trial based on the statements of Asia McClain, which exonerated [Syed]; IV. Trial counsel failed to adequately cross-examine Deborah Warren, a State witness; V. Trial counsel failed to approach the State about a possible plea deal; VI. Trial counsel failed to inform [Syed] of his right to request a change of venue; VII. Trial counsel failed to investigate the State's key witness, Jay Wilds, for impeachment evidence; ⁸⁷³ VIII.

Appellate counsel failed to challenge testimony of [the] State's expert witness that strayed outside of his expertise; and ²⁰⁷ IX. [Syed's] counsel at sentencing failed to request that the [sentencing court] hold [Syed's] hearing on Motion for Modification of Sentence in abeyance. [ 16 ] On October 11, 2012, and October 25, 2012, a post-conviction hearing was held ("first hearing"). In a Memorandum Opinion and Order ("Memorandum Opinion I"), issued on January 6, 2014, the post-conviction court denied Syed post-conviction relief. On January 27, 2014, Syed filed a timely application for leave to appeal to this Court, which requested that we review "(1) whether his trial counsel rendered ineffective assistance [of counsel] by failing to interview or even contact Asia McClain, a potential alibi witness; and (2) whether [his trial counsel rendered ineffective assistance of counsel by] failing to pursue a plea offer and purportedly misrepresenting to Syed that she had." On January 20, 2015, Syed supplemented his application for leave to appeal, requesting that this Court remand the case for additional fact-finding in light of an affidavit by McClain, dated January 13, 2015. In that affidavit, McClain reaffirmed her recollection of seeing Syed at the Woodlawn Public Library at the time that the State alleged that Syed murdered Hae.

McClain also stated in the affidavit that in telephone conversations with the Assistant State's Attorney, Kevin Urick, she was discouraged from attending the first hearing. After granting leave to appeal on February 6, 2015, and receiving briefs from both the State and Syed, this Court, on May 18, 2015, issued an order staying Syed's appeal on the issue of ineffective assistance of trial counsel for failure to pursue a plea offer. We further granted Syed's request to remand the case to the circuit court for further proceedings pursuant to the Uniform Postconviction Procedure Act ²⁰⁸ ("UPPA"), Maryland Code (2001, 2008 Repl. Vol.), § 7-109(b)(3)(ii)(2) of the Criminal Procedure Article ("CP") and Maryland Rule 8-604(a)(5), (d).

In our order, we instructed the post-conviction court to consider reopening the post-conviction proceeding if Syed were to file a motion to reopen within 45 days of our order. On remand, on June 30, 2015, Syed filed, pursuant to CP § 7-104, a Motion to Reopen Post-Conviction Proceedings ("Motion to Reopen"), based upon the January 13, 2015 affidavit of McClain. On August 24, 2015, Syed filed a "Supplement to Motion to Re-Open Post-Conviction Proceedings" ("Supplement"), requesting that the post-conviction court reopen the post-conviction proceeding to consider new claims of ineffective assistance of trial counsel and a Brady violation concerning the reliability of certain cell tower location evidence admitted at trial. The State filed a consolidated response, and Syed, in turn, filed a reply.

The post-conviction court granted Syed's request to reopen his post-conviction proceeding to consider those "issues raised by McClain's January 13, 2015 affidavit[,] and [Syed's] Supplement concerning the matter of cell tower location reliability." On February 3, 2016, the post-conviction court began a five-day hearing ("second hearing") to consider the aforementioned issues raised by Syed, and on June 30, ⁸⁷⁴ 2016, the post-conviction court issued its "Memorandum Opinion II." In this opinion, the post-conviction court first considered the issue of "[w]hether trial counsel's alleged failure to contact McClain as a potential alibi witness violated [Syed's] Sixth Amendment right to effective assistance of counsel." On this issue, the post-conviction court concluded that Syed's trial counsel was deficient by failing to investigate McClain as a potential alibi witness but that such deficiency did not prejudice Syed. Accordingly, the post-conviction court denied Syed post-conviction relief on that claim. Next, the post-conviction court considered "[w]hether the State withheld potentially exculpatory evidence related to the ²⁰⁹ reliability of cell tower location evidence in violation of the disclosure requirements under Brady ." The post-conviction court ruled that Syed had waived this claim by failing to raise it in his petition for post-conviction relief and accordingly, denied post-conviction relief. 17 Lastly, the post-conviction court considered Syed's claim that "trial counsel's alleged failure to challenge the reliability of the cell tower location evidence violated [his] Sixth Amendment right to effective assistance of counsel." The post-conviction court first held that Syed had not knowingly and intelligently waived this claim. On the merits, the post-conviction court determined that the performance of Syed's trial counsel was deficient because of her failure to cross-examine Waranowitz concerning a fax cover sheet for Syed's cell phone records that contained a disclaimer stating: "Any incoming calls will NOT be considered reliable information for location." The post-conviction court then concluded that such deficiency was prejudicial to Syed, because the State's case relied heavily on placing Syed at Leakin Park at the alleged time of the burial of Hae's body.

Accordingly, on this issue, the post-conviction court granted Syed's petition for post-conviction relief. The court vacated Syed's convictions and granted him a new trial. On August 1, 2016, the State filed a timely application for leave to appeal to this Court. Syed then filed a conditional application for leave to cross-appeal.

On January 18, 2017, this Court issued an order granting the State's application for leave to appeal and Syed's conditional application for leave to cross-appeal. We further lifted the stay of Syed's first appeal imposed by our remand order and consolidated the appeals. Additional facts will be provided as they become necessary to the resolution of the questions presented in the case sub judice . ²¹⁰ THE STATE'S PROCEDURAL QUESTIONS I. Did the Post-Conviction Court Abuse Its Discretion by Exceeding the Scope of This Court's May 18, 2015 Remand Order? A. Background In our May 18, 2015 remand order, this Court wrote, in relevant part: The purpose of the stay and the remand is to provide Syed with the opportunity to file with the circuit court a request, pursuant to § 7-104 of the Criminal Procedure Article of Md. Code, to re-open the previously concluded post-conviction proceeding in light of [ ] McClain's January 13, 2015, affidavit , which has not heretofore been reviewed or considered by the circuit court.

Moreover, because the affidavit was not presented to the ⁸⁷⁵ circuit court during Syed's post-conviction proceeding, as it did not then exist, it is not a part of the record and, therefore, this Court may not properly consider it in addressing the merits of this appeal. This remand, among other things, will afford the parties the opportunity to supplement the record with relevant documents and even testimony pertinent to the issues raised by this appeal. We shall, therefore, remand the case to the circuit court , without affirmance or reversal, to afford Syed the opportunity to file such a request to re-open the post-conviction proceedings. In the event that the circuit court grants a request to re-open the post-conviction proceedings, the circuit court may, in its discretion, conduct any further proceedings it deems appropriate.

If that occurs, the parties will be given, if and when this matter returns to this Court, an opportunity to supplement their briefs and the record. Accordingly, it is this 18 th day of May 2015, by the Court of Special Appeals, ORDERED that the above-captioned appeal be and hereby is STAYED; and it is further ²¹¹ ORDERED that [Syed's] request for a remand to the circuit court is GRANTED and the case be and hereby is REMANDED to the Circuit Court for Baltimore City, without affirmance or reversal, for the purpose set forth in this Order; and it is further ORDERED that [Syed] shall file his motion to re-open the closed post-conviction proceeding within 45 days of the date of this Order and, if he fails to do so, the stay shall be lifted and this Court will proceed with the appeal without any reference to or consideration of [Syed's] Supplement to Application for Leave to Appeal or any documents not presently a part of the circuit court's record; and it is further ORDERED that, after taking any action it deems appropriate, the circuit court shall forthwith re-transmit the record to this Court for further proceedings. (Emphasis added). As authorized by our remand order, Syed timely filed the Motion to Reopen, which was based on the McClain affidavit.

Almost two months later, however, Syed filed the Supplement that raised, among other things, a claim of ineffective assistance of counsel pertaining to trial counsel's failure to properly challenge the reliability of the cell tower location evidence, which claim had never been raised before in any proceeding arising out of the charges against Syed. In the Supplement, Syed explained why such claim should be heard at the same time as the claim raised in his Motion to Reopen: [A]s a matter of judicial economy, the [c]ourt should consider this issue now. If it does not, and if Syed's conviction is not vacated on the alibi issue, Syed would have to raise the issue in a successive motion to re-open post-conviction proceedings. Not only could this lead to another separate proceeding, but it could lead to another appeal.

It is in the interest of all parties to resolve this matter-and get to the heart of the problem-once and for all. Now is the time to do so. ²¹² In its consolidated response, the State acknowledged that Syed appeared to be advocating for his Supplement to be considered as a new motion to reopen under CP § 7-104, but argued that the post-conviction court should not reopen, because the issue concerning the failure of trial counsel to properly challenge the reliability of the cell tower location evidence had "been repeatedly waived." In its "Statement of Reasons" regarding Syed's Motion to Reopen and Supplement, ⁸⁷⁶ the post-conviction court first observed that "[t]his [c]ourt may reopen [Syed's] previously concluded post-conviction proceedings if the [c]ourt determines that reopening the matter is in the interests of justice. Crim. Pro. § 7-104." With respect to Syed's Motion to Reopen, which was based on the McClain affidavit, the court determined, "in its own discretion," that "reopening the post-conviction proceedings would be in the interests of justice for all parties[,]" because "[t]his [would] allow [Syed] to introduce the January 13, 2015 affidavit from McClain, the potential testimony of McClain, and relevant evidence concerning [Syed's] claims of ineffective counsel and alleged prosecutorial misconduct during the post-conviction proceedings," and also would give the State "an equal opportunity to introduce testimony and other evidence to refute [Syed's] claims." Next, the post-conviction court addressed Syed's Supplement, and stated in relevant part: [Syed] also moves this [c]ourt to reopen the post-conviction proceedings to allow him to raise the issue of cell tower location reliability, which is not currently before the Court of Special Appeals and was not raised at the previously concluded post-conviction proceedings.

Although this [c]ourt is aware that the Court of Special Appeals issued a limited remand, the Remand Order provided this [c]ourt with the discretion to conduct any further proceedings it deems appropriate . (Emphasis added). The post-conviction court concluded by ordering that "[Syed's] Motion to Reopen [ ] and Supplement thereto is ²¹³ hereby GRANTED [.]" (Bold emphasis in original) (italic emphasis added). B. Contentions The State argues that the post-conviction court abused its discretion when it exceeded the scope of this Court's remand order by reopening Syed's post-conviction proceeding to consider issues that were not raised in the first hearing, and not the subject of our remand order.

The State interprets the scope of our remand order as follows: "the plain and natural reading of the order gave the post-conviction court considerable discretion to conduct a full range of proceedings, so long as they were related to [ ] McClain and the issue of Syed's alibi defense." From that reading of the "limited" remand order, the State concludes that to allow the court to reopen Syed's post-conviction proceeding and consider any issue other than those arising out of the McClain affidavit would run counter to the order's purpose and would constitute "an open invitation to litigate unpreserved issues altogether unconnected to McClain and the issue of an alibi." 18 ⁸⁷⁷ Syed responds that this Court delegated to the post-conviction court the latitude to "conduct further proceedings it deem[ed] appropriate." In Syed's view, our remand order was ²¹⁴ sufficiently broad to allow the post-conviction court to reopen Syed's post-conviction proceeding for any reason that it deemed was in the interests of justice. C. Analysis This Court concludes that the post-conviction court did not exceed the scope of our May 18, 2015 remand order. In remanding Syed's appeal, we did not require that the post-conviction court reopen Syed's previously concluded post-conviction proceeding. Instead, we provided Syed "with the opportunity to file" with the post-conviction court a motion, pursuant CP § 7-104, "to re-open the previously concluded post-conviction proceeding in light of [ ] McClain's January 13, 2015, affidavit." Syed did in fact take such opportunity by filing the Motion to Reopen, which was based on McClain's affidavit.

Upon Syed's filing of the Motion to Reopen, the post-conviction court was required by the remand order to decide whether to reopen the post-conviction proceeding under CP § 7-104. CP § 7-104 states: "The court may reopen a post[-]conviction proceeding that was previously concluded if the court determines that the action is in the interests of justice." Here, the post-conviction court decided to grant the Motion to Reopen, because the reopening of the post-conviction proceeding to consider the issues raised by the McClain affidavit would be "in the interests of justice for all parties." In the instant appeal, the State does not challenge the post-conviction court's granting of the Motion to Reopen. The remand order goes on to provide that "[ i ] n the event that the circuit court grants a request to re-open the post-conviction proceedings , the circuit court may, in its discretion, conduct any further proceedings it deems appropriate." Because the post-conviction court granted Syed's Motion to Reopen, the court was specifically authorized to "conduct any further proceedings it deem[ed] appropriate." As the State properly points out, the authority granted by our remand order for the post-conviction court to "conduct ²¹⁵ further proceedings it deem[ed] appropriate" was not a carte blanche grant for the court to hear any matter raised by the parties. Here, however, the Supplement was, in effect, a separate motion to reopen the post-conviction proceeding under CP § 7-104 for the court to consider, among other things, a new claim of ineffective assistance of counsel, namely, the failure of trial counsel to properly challenge the reliability of the cell tower location evidence.

Clearly, as Syed suggests, it would be in the interests of judicial economy for the post-conviction court to hear both of Syed's claims of ineffective assistance of trial counsel under CP § 7-104 in one proceeding. Therefore, under the circumstances of the instant case, the post-conviction court acted within the scope of the May 18, 2015 remand order to conduct a "further proceeding[ ]" regarding the Supplement. Nevertheless, because we conclude that the Supplement is a separate motion to reopen under CP § 7-104, there is a condition precedent to the post-conviction court's consideration of the Supplement with the Motion to Reopen-the court must determine whether a reopening for the Supplement is in the "interests of justice." See CP § 7-104. As will be discussed, ⁸⁷⁸ infra , the post-conviction court exercised its discretion and concluded that the reopening of the post-conviction proceeding to consider the Supplement was "in the interests of justice." We shall now turn to the issue of whether the post-conviction court abused its discretion in so doing.

II

Did the Post-Conviction Court Abuse Its Discretion When It Reopened Syed's Post-Conviction Proceeding to Consider the Claim of Ineffective Assistance of Counsel for Trial Counsel's Failure to Properly Challenge the Reliability of the Cell Tower Location Evidence? A. Background As previously stated, the post-conviction court first granted Syed's Motion to Reopen concerning his claim of ineffective assistance of counsel for trial counsel's failure to investigate a potential alibi witness, McClain. After recognizing ²¹⁶ its authority under the remand order "to conduct any further proceedings it deems appropriate[,]" the post-conviction court stated, in relevant part: After careful consideration of the parties' pleadings, this [c]ourt in the exercise of its discretion, concludes that reopening the post-conviction proceedings to allow [Syed] to raise the issue of cell tower location reliability and supplement the record with relevant materials would be in the interests of justice. The issue of cell tower location reliability is premised upon [Syed's] claims of ineffective assistance of counsel and potential prosecutorial misconduct during trial, which are grounds for reopening the post-conviction proceedings under Maryland law. [ Gray v. State , 388 Md. 366 , 382 n.7, 879 A.2d 1064 (2005) ]. [The State] can, of course, submit relevant materials to rebut [Syed's] claims. * * * ORDERED, that this [c]ourt shall limit its consideration to: * * * 2) Relevant evidence relating to a) trial counsel's alleged failure to cross[-]examine [the State's] expert on the reliability of the cell tower location evidence and b) potential prosecutorial misconduct during trial[.] (Bold emphasis in original) (italic emphasis added).

B. Contentions The State argues that the post-conviction court abused its discretion by reopening the post-conviction proceeding to consider the claim of ineffective assistance of trial counsel raised in the Supplement, because "there was no new evidence, no change in law, no connection to the reason for the remand, and no excuse for why the claim was not raised earlier." Recognizing that Maryland appellate courts have interpreted the "interests of justice" standard to give wide discretion to a post-conviction court to consider whether to reopen a previously concluded post-conviction proceeding, the State, nevertheless, contends that, "the 'interests of justice' standard must operate as a standard ." (Emphasis in original). According to the State, ²¹⁷ if "the 'interests of justice' standard is satisfied whenever [an] attorney[ ] can conjure a 'potentially meritorious' claim based on a decades-old record, despite there being no new evidence, no change in the law, no misconduct, and no other special circumstances, then the 'interests of justice' standard amounts to no standard at all." 19 ⁸⁷⁹ Syed responds that the interests of justice standard has been interpreted to give a post-conviction court broad discretion in determining whether it is in the interests of justice to reopen a post-conviction proceeding. Acknowledging that the Court of Appeals gave examples of meritorious reasons to reopen a post-conviction proceeding in Gray v. State , 388 Md. 366 , 879 A.2d 1064 (2005), Syed argues that those examples are just examples, and a post-conviction court is not required to grant a motion to reopen only on grounds that Maryland courts have heretofore suggested are proper. Syed further points out that the State cannot cite to any case where a post-conviction court's reopening of a post-conviction proceeding has been overturned on appeal.

C. Analysis We begin by briefly reciting the history of CP § 7-103, which governs a petition for post-conviction relief, and its ²¹⁸ relationship to CP § 7-104. This Court has articulated such history as follows: Since the enactment of the UPPA in 1958, the General Assembly has acted to limit the number of post[-]conviction petitions that a person may file for each conviction. Originally, the UPPA "did not place any limit on the number of post[-]conviction petitions which a petitioner was entitled to file." Mason v. State , 309 Md. 215 , 217-18, 522 A.2d 1344 (1987). But, effective July 1, 1986, Art. 27, § 645A was amended by adding subsection (a)(2), which provided that a "person may not file more than two petitions, arising out of each trial, for relief under this Subtitle," Grayson v. State , 354 Md. 1 , 3, 728 A.2d 1280 (1999).

In 1995, the General Assembly again changed the number of petitions that could be filed to challenge a particular conviction. By Ch. 110 of the Acts of 1995, which primarily amended provisions relating to the death penalty, (I) and (II) were added to subsection (a)(2) and subsequently codified as Art. 27, [§] 645A(a)(2)(i) and (iii). Under subsection (a)(2)(i), a person was permitted to "file only one petition[,] arising out of each trial," id. at 4 , 728 A.2d 1280 , and subsection (a)(2)(iii) provided that "[t]he court may in its discretion reopen a post[-]conviction proceeding that was previously concluded if the court determines that such action is in the interests of justice." Id. In 2001, the UPPA was repealed and reenacted at CP §§ 7-101 et seq.

The provision relating to the reopening of a post[-]conviction proceeding is now codified at CP § 7-104 and contains "new language derived without substantive change." Revisor's Note. The words "in its discretion" were "deleted as surplusage." Id. Gray v. State , 158 Md. App. 635 , 645-46, 857 A.2d 1176 (2004), aff'd , 388 Md. 366 , 879 A.2d 1064 (2005). We further noted that [t]here are significant differences between the filing of a petition for post[-]conviction relief and a request to reopen a post[-]conviction proceeding. ⁸⁸⁰ For example, a person is entitled, ²¹⁹ as a matter of right, to file one post[-]conviction petition.

CP § 7-103(a). The reopening of a closed post[-]conviction proceeding, however, is at the discretion of the circuit court. CP § 7-104. Also, as a matter of right, a person filing a petition for post[-]conviction relief is entitled to a hearing and the assistance of counsel.

CP § 7-108(a) ; Md. Rule 4-406(a). A request that a post[-]conviction proceeding be reopened does not entitle a person to either. Under the statute, the circuit court determines if a hearing and the assistance of counsel "should be granted." CP § 7-108(b)(1). Md. Rule 4-406(a) provides that, in the absence of a stipulation that the applicable facts and law justify the requested relief, the circuit court may not reopen a proceeding or grant relief without a hearing, but a request to reopen can be denied without a hearing.

Id. at 645, 857 A.2d 1176 . The Court of Appeals has determined that the proper standard of review for a ruling on a motion to reopen is an abuse of discretion standard, which is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ways.... [A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective.

That, we think, is included within the notion of untenable grounds, violative of fact and logic, and against the logic and effect of facts and inferences before the court. ²²⁰ Gray , 388 Md. at 383 -84 , 879 A.2d 1064 (alterations in original) (emphasis added) (internal quotation marks omitted). Relevant to the instant appeal, the Court of Appeals has discussed the meaning of the phrase "interests of justice:" The phrase "interests of justice" has been interpreted to include a wide array of possibilities. See Love v. State , 95 Md. App. 420 , 427, 621 A.2d 910 , 914 (1993) (mentioning a long list of reasons for granting a new trial in the interests of justice). While it is within the trial court's discretion to decide when "the interests of justice" require reopening, we note that some reasons for reopening could include, for example, ineffective assistance of post[-]conviction counsel or a change made in the law that should be applied retroactively.

See Oken v. State , 367 Md. 191 , 195, 786 A.2d 691 , 693 (2001) (noting Oken's motion to reopen a post[-]conviction proceeding on the basis that the Supreme Court's opinion in Apprendi v. New Jersey , 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) rendered his sentencing proceeding invalid); see Harris v. State , 160 Md. App. 78 , 862 A.2d 516 [ (2004) ] (discussing the defendant's motion to reopen post[-]conviction proceeding on the ground that he had ineffective assistance of post[-]conviction counsel, in addition to ineffective assistance of trial and appellate counsel); [ Stovall v. State , 144 Md. App. 711 , 715, 800 A.2d 31 , 34 (2002) ] (holding that a defendant may petition to reopen a post[-]conviction proceeding if post[-]conviction counsel was ineffective). Id. at 382 n.7, 879 A.2d 1064 (emphasis added). ⁸⁸¹ It is clear to us that the Court of Appeals' discussion of the phrase "interests of justice" in Gray , quoted above, reaffirmed the broad discretion accorded to trial courts in deciding, "when 'the interests of justice' require reopening[.]" See id. The Court cited to a number of cases as examples of the reasons found by the courts to support a reopening of a post-conviction proceeding. Id.

The examples cited by the Court of Appeals are just that-examples. See id. They are by no means intended to circumscribe the trial court's discretion in ²²¹ deciding whether or not the "interests of justice" warrant a reopening of a post-conviction proceeding. In the case sub judice , the post-conviction court determined that it was in the interests of justice to reopen Syed's post-conviction proceeding to consider Syed's claims that (1) trial counsel rendered ineffective assistance when she failed to properly challenge the reliability of the cell tower location evidence, and (2) the State failed to disclose potentially exculpatory evidence related to the reliability of the cell tower location evidence in violation of the State's obligation under Brady .

The aforementioned claims revolve around the AT & T fax cover sheet for Syed's phone records, which cover sheet contained a disclaimer stating that "[a]ny incoming calls will NOT be considered reliable information for location." Although trial counsel had the disclaimer at the time of trial, she never cross-examined the State's cell tower expert, Waranowitz, about the reliability of the location of Syed's cell phone based on the location of the cell tower when the cell phone received an incoming call. Also, Waranowitz filed an affidavit in which he averred that the State never gave him the disclaimer before he testified as to the phone records' reliability for determining cell phone location. Syed's claims of ineffective assistance of trial counsel and violation of Brady by the State regarding the reliability of the cell tower location evidence are clearly cognizable under the UPPA. See CP § 7-102(a). 20 If his claims were not waived, and ²²² if he adduced sufficient evidence to satisfy the test of Strickland or Brady , Syed would be entitled to the remedy of a new trial under the UPPA.

Therefore, it was not "violative of fact and logic" for the post-conviction court to conclude that reopening Syed's post-conviction proceeding to consider his claim regarding the reliability of the cell tower location evidence was in the "interests of justice." See Gray , 388 Md. at 383 -84 , 879 A.2d 1064 . Hence, the post-conviction court did not abuse its discretion in so doing. Nevertheless, the State argues that the post-conviction court abused its discretion by reopening Syed's post-conviction proceeding, because his claim regarding the reliability of the cell tower location evidence could have been raised in his petition for post-conviction relief and prosecuted ⁸⁸² at the first hearing but were not. In other words, the State contends that the decision of whether to reopen a post-conviction proceeding under CP § 7-104 necessarily includes a decision on whether the subject claim has been waived, and if so, whether the waiver can be excused under the circumstances of the case.

See, e.g. , CP § 7-106(b)(1)(ii) (stating that "[f]ailure to make an allegation of error shall be excused if special circumstances exist"). We need not decide whether the issue of waiver is part of the decisional process regarding a motion to reopen under CP § 7-104. In the instant case, the post-conviction court did not address the State's waiver argument when it decided that the reopening of the post-conviction proceeding to hear Syed's claims set forth in the Supplement was "in the interests of justice." Nonetheless, the court fully considered the waiver issue during the reopened post-conviction proceeding and ruled on that issue in its Memorandum Opinion II. Therefore, even if the post-conviction court erred by failing to address the waiver issue when it decided to reopen the post-conviction proceeding under CP § 7-104 to hear the Supplement, such error was harmless. ²²³ III.

Did the Post-Conviction Court Err by Determining That Syed Did Not Waive His Ineffective Assistance of Counsel Claim Pertaining to Trial Counsel's Failure to Properly Challenge the Reliability of the Cell Tower Location Evidence? A. Legal Background The UPPA's waiver provision in CP § 7-106(b) states as follows: (b) Waiver of allegation of error. -(1) (i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal, whether or not the petitioner took an appeal; 4. in an application for leave to appeal a conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began by the petitioner; 6. in a prior petition under this subtitle ; or 7. in any other proceeding that the petitioner began. (ii) 1. Failure to make an allegation of error shall be excused if special circumstances exist. 2.

The petitioner has the burden of proving that special circumstances exist. (2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation. (Italic emphasis in original) (bold emphasis added). In the seminal case of Curtis v. State , 284 Md. 132 , 133, 395 A.2d 464 (1978), the Court of Appeals addressed the application ²²⁴ of CP § 7-106(b), then known as Article 27, § 645A, 21 to claims of ineffective assistance ⁸⁸³ of counsel.

Because both parties in the instant appeal focus their arguments on Curtis , we shall begin with an examination of that case. In 1967, Curtis "was convicted of first degree murder ... in ... Prince George's County[;]" a conviction that was subsequently upheld on direct appeal. Id. at 134 , 395 A.2d 464 .

With the aid of counsel different from his trial and appellate counsel, Curtis filed his first petition for post-conviction relief. Id. Curtis's petition alleged several errors, but it did not contain any claim of ineffective assistance of counsel. Id.

"After a hearing on the merits, the [post-conviction] court denied relief" in 1970. Id. In 1976, when the UPPA still allowed an unlimited number of post-conviction petitions, 22 Curtis filed a second petition for post-conviction relief with the aid of new post-conviction counsel. ²²⁵ See id. at 134 , 395 A.2d 464 . In that petition, Curtis raised for the first time, among other things, the issue of ineffective assistance of trial counsel.

Id. at 134-35 , 395 A.2d 464 . Upon consideration of the State's motion to dismiss, the post-conviction court dismissed Curtis's second petition for post-conviction relief, reasoning that, because Curtis failed to raise the issue of ineffective assistance of trial counsel in his first post-conviction petition, he waived the issue. Id. at 135-36 , 395 A.2d 464 . After this Court granted Curtis leave to appeal and upheld the post-conviction court's dismissal, the Court of Appeals granted certiorari.

Id. at 136-37 , 395 A.2d 464 . The Court stated that the issue before it was whether the General Assembly, by use of the term 'waiver' in the [UPPA], intend[ed] that [that] definition of 'waiver' set forth in subsection (c) [now CP § 7-106(b) ] determine in all cases the right to raise for the first time any issue in a post[-]conviction action, regardless of the nature of prior procedural defaults, tactical decisions of counsel, or omissions of counsel[.] Id. at 141, 395 A.2d 464 . The Court determined that, because the term "waiver" possesses inherent ambiguity, the waiver provision in the UPPA did not necessary apply to "all allegations made in post[-]conviction actions." Id. at 142 , 395 A.2d 464 . The Court reasoned: If, in defining "waiver" for purposes of the [UPPA], the General Assembly intended to make subsection (c), with its "intelligent and knowing" definition, applicable every time counsel made a tactical decision or a procedural default occurred, the result could be chaotic.

For example, under such an interpretation of the statute, for a criminal defendant to be bound ⁸⁸⁴ by his lawyer's actions, the lawyer would have to interrupt a trial repeatedly and go through countless litanies with his client. One of the basic principles of statutory construction is that a statute should not be construed to lead to an unreasonable or ²²⁶ illogical result. Grosvenor v. Supervisor of Assess. , 271 Md. 232 , 242, 315 A.2d 758 (1974) ; Coerper v. Comptroller , 265 Md. 3 , 6, 288 A.2d 187 (1972) ; Pan Am. Sulphur Co. v. State Dep't of Assessments and Taxation , 251 Md. 620 , 627, 248 A.2d 354 (1968) ; Sanza v. Maryland Board of Censors , 245 Md. 319 , 340, 226 A.2d 317 (1967).

It is hardly conceivable that the Legislature, in adopting § 645A (c) [now CP § 7-106(b) ], could have intended to use the word "waiver" in its broadest sense, thereby requiring that the "intelligent and knowing" standard apply every time an issue was not raised before. Id. at 149, 395 A.2d 464 (emphasis added). The Court then turned its attention to "what type of situations the Legislature intended to" require an intelligent and knowing waiver. See id. at 142, 149 , 395 A.2d 464 .

The Court held that the UPPA's "intelligent and knowing" requirement applies "in those circumstances where [a knowing and intelligent] waiver" is required to relinquish certain fundamental constitutional rights such as the right to counsel, the right to a jury trial, the right against self-incrimination, and the right against double jeopardy. Id. at 143-44, 149 , 395 A.2d 464 . The Court cautioned, however, that not all rights are so fundamental as those rights that require a knowing and intelligent waiver. Id. at 145 , 395 A.2d 464 .

For example, even though "a defendant has a constitutional right not to be tried in [prison] attire, only by affirmatively asserting this right will it be given effect." Id. This is because when competent trial counsel represents a defendant, that counsel may determine as a matter of trial tactics to decline to invoke this right. Id. at 145-46 , 395 A.2d 464 . In addition, the Court stated that the Supreme Court has recognized that "a 'procedural default' in certain circumstances, even where a defendant may personally have been without knowledge or understanding of the matter, may result in his being precluded from asserting important rights[,]" such as a procedural requirement that a defendant timely object to the racial composition of a grand jury.

Id. at 146-47 , 395 A.2d 464 . In sum, ²²⁷ whether one is precluded from asserting a constitutional right because of what may have occurred previously, even though the failure was not "intelligent and knowing," depends upon the nature of the right and the surrounding circumstances. A defendant may forego a broad spectrum of rights which are deemed to fall within the category of tactical decisions by counsel or involve procedural defaults. Id. at 147 , 395 A.2d 464 .

The Court concluded that the term "waiver" could be said to connote the intelligent and knowing relinquishment of certain basic constitutional rights under circumstances where the courts have held that only such intelligent and knowing action will bind the defendant. In our view, the Legislature was using the word "waiver" in this narrow sense in the Maryland Post Conviction Procedure Act, Art. 27, § 645A [now CP § 7-106(b) ]. Id. at 148, 395 A.2d 464 . Returning to the case before it, the Court addressed Curtis's claim "that the representation by his trial counsel was so inadequate that he was deprived of his Sixth Amendment right to have the Assistance of Counsel for his defense." Id. at 150 , 395 A.2d 464 (internal quotation marks omitted).

The Court held "that a ⁸⁸⁵ criminal defendant cannot be precluded from having this issue considered because of his [or her] mere failure to raise the issue previously." Id. (emphasis added). The Court explained: The question of the constitutional adequacy of trial counsel's representation is governed by the Johnson v. Zerbst [ 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) ] standard of an "intelligent and knowing" waiver. Hawk v. Olson , 326 U.S. 271 , 274, 279, 66 S.Ct. 116 , 90 L.Ed. 61 (1945) ; Glasser v. United States , 315 U.S. 60 , 70-72, 62 S.Ct. 457 , 86 L.Ed. 680 (1942) ; United States v. Garcia , 517 F.2d 272 (5th Cir. 1975) ; Kelly v. Peyton , 420 F.2d 912 , 914 (4th Cir. 1969) ; Sawyer v. Brough , 358 F.2d 70 , 73-74 (4th Cir. 1966).

Consequently, subsection (c) of the [UPPA] is applicable to Curtis's contention, and it can only be deemed "waived" for ²²⁸ purposes of the [UPPA] if Curtis "intelligently and knowingly" failed to raise it previously. The proffered facts , accepted as true by the circuit court for purposes of the State's motion to dismiss on the ground of waiver, clearly disclose that Curtis did not "intelligently and knowingly" fail to previously raise the matter of his trial counsel's alleged inadequacy. Therefore, the issue cannot be deemed to have been waived. Id. at 150-51 , 395 A.2d 464 (emphasis added).

The Curtis Court's holding that the UPPA waiver provision is only applicable when allegations of error raised by a petitioner invoke a narrow set of fundamental constitutional rights has created "a dual framework" for analyzing whether a petitioner has waived a particular issue for failure to raise that issue in a previous proceeding. See Hunt v. State , 345 Md. 122 , 137-38, 691 A.2d 1255 (1997). A court must examine whether the "nature of the right involved" is recognized by the Supreme Court as requiring an intelligent and knowing waiver, and thereby a fundamental right governed by CP § 7-106(b), see id. at 137-38 , 691 A.2d 1255 , or, whether the "nature of the right involved" is a non-fundamental right and thereby governed by the "general legal principles" of waiver. See State v. Torres , 86 Md. App. 560 , 568, 587 A.2d 582 (1991) (stating that for claims invoking non-fundamental rights "waiver is determined by general legal principles.

The most significant of these principles is that the failure to exercise a prior opportunity to raise an allegation of error generally effects a waiver of the right to raise the matter at a later time."). In other words, when [a] court finds that the possibility existed for a petitioner to have previously raised a particular allegation but he [or she] did not do so, the allegation will be deemed waived because of the failure to have previously raised it only if the right upon which the allegation is premised is a non-fundamental right. Conversely, if the right upon which the allegation is premised is a fundamental right, the allegation will not be deemed waived simply because it was not raised at a prior proceeding. Fundamental rights ... may ²²⁹ be waived only where the petitioner intelligently and knowingly effects the waiver.

Wyche v. State , 53 Md. App. 403 , 407, 454 A.2d 378 (1983). 23 With the above legal ⁸⁸⁶ background in mind, we return to the case before us. B. Reopened Post-Conviction Proceeding Syed argued at the second hearing that his trial counsel rendered ineffective assistance of counsel on the ground that she failed to challenge the reliability of the cell tower location evidence by cross-examining Waranowitz about the fax cover sheet disclaimer, which stated: "Any incoming calls will NOT be reliable information for location" ("cell tower ground"). Syed asserted that the disclaimer was important, because the State relied on the cell tower location for two incoming calls to place him at the burial site after 7:00 p.m. on January 13, 1999. The State responded that Syed waived this allegation of error, because he failed to raise it during the first hearing.

In considering the State's waiver argument, the post-conviction court, relying on Curtis , stated that "the Sixth Amendment right to effective assistance of counsel [w]as a fundamental right in the context of waiver." The post-conviction court then determined that Syed had sufficiently rebutted the presumption ²³⁰ that he intelligently and knowingly waived such claim, reasoning: Although [Syed] alleged that trial counsel may have been ineffective on other grounds in his initial petition, he has never alleged that trial counsel rendered ineffective assistance for her alleged failure to challenge the State's cell tower expert with the disclaimer. More importantly, [Syed] was never advised that trial counsel may have been ineffective for her alleged failure to challenge the State's cell tower expert at trial with the disclaimer in prior proceedings. In fact, [Syed's] counsel for the post-conviction proceedings did not advise [Syed] about the issue until shortly before August 24, 2015, when counsel consulted with a cell tower expert about the potential ramifications of the disclaimer.... Since [Syed] did not know about the potential implications of trial counsel's failure to challenge the cell tower evidence, he could not have knowingly waived his right to raise the allegation.

The post-conviction court then proceeded to address the merits of such claim and granted Syed post-conviction relief. C. Contentions on Appeal The State contends that the post-conviction court erred in ruling that Syed's ineffective assistance of counsel claim was based on a fundamental constitutional right and thus required a knowing and intelligent waiver pursuant to CP § 7-106(b) and Curtis . The State asserts that the post-conviction court erroneously relied on Curtis , because in that case, Curtis never raised the issue of ineffective assistance of trial counsel in his first post-conviction petition while in the instant case, Syed did raise the issue of ineffective assistance of trial counsel at the first hearing, but failed to raise the cell tower ground. Accordingly, the State urges this Court to conclude that Syed waived his new claim of ineffective assistance of counsel.

Syed responds that the post-conviction court properly ruled that a knowing and intelligent waiver was required for Syed to ⁸⁸⁷ waive his claim of ineffective assistance of counsel pursuant to ²³¹ Curtis . Syed contends that Curtis has not been overturned, is still good law, and is not distinguishable. Moreover, Syed asserts that he did not knowingly and intelligently waive his claim of ineffective assistance of counsel on the cell tower ground, because he did not discover such ground until after this Court stayed and remanded his first appeal and his post-conviction counsel informed him of the significance of the fax cover sheet disclaimer. 24 D. Analysis In our view, the question that the State raises in the instant appeal is as follows: Where the issue of ineffective assistance of trial counsel has been raised and decided in a previous post-conviction proceeding, does a petitioner, absent a knowing and intelligent waiver, have the right to raise such issue again but on a different ground in a reopening of that proceeding? The post-conviction court answered this question by announcing that Curtis stood for the proposition that the issue of ineffective assistance of counsel may be raised a second time on a ground not raised previously, and a petitioner only waives this issue when he or she does so knowingly and intelligently as to that particular ground.

We disagree with this broad reading of Curtis . We are not aware of any decision by the Supreme Court, Court of Appeals of Maryland, or this Court holding that for waiver to apply, a petitioner in his or her first post-conviction proceeding must intelligently and knowingly waive the grounds not raised in support of a claim of ineffective assistance of counsel. Moreover, Syed has not directed our attention to any precedent to support such principle, except that of ²³² a broad reading of Curtis . Our research, however, has identified two Maryland cases that point us to the answer.

In Wyche , this Court reviewed the denial of Wyche's third petition for post-conviction relief, in which he contended "that he was denied his constitutional right to be present at his trial because he was not present when the trial judge ... reinstructed the jury." 53 Md. App. at 404 , 454 A.2d 378 . Because Wyche had failed to raise such error at trial, on appeal, or in either of his prior post-conviction petitions, the post-conviction court held that Wyche had waived his right to raise it. Id. at 404-05 , 454 A.2d 378 . Consequently, we were called upon to decide whether the post-conviction court correctly determined that there had been a waiver because of Wyche's failure to raise the claim in a prior proceeding.

Id. at 405 , 454 A.2d 378 . In our discussion of the law, we set forth a synthesis of the holdings in Curtis and its progeny regarding waiver under Article 27, § 645A. Id. at 405-06 , 454 A.2d 378 . At the conclusion of our summary of the dichotomy between the waiver of a fundamental right, which requires an intelligent and knowing waiver by the petitioner, and a non-fundamental right, which occurs from the failure to raise a violation in a prior proceeding when it was possible to do so, we added the following footnote: If an allegation concerning a fundamental right has been made and considered at a prior proceeding, a petitioner may not again raise that same allegation ⁸⁸⁸ in a subsequent post[-]conviction petition by assigning new reasons as to why the right had been violated, unless the court finds that those new reasons could not have been presented in the prior proceeding.

Id. at 407 n.2, 454 A.2d 378 . We recognize that the above footnote is dicta and that no legal authority was cited in support of it. Nevertheless, we believe that the language in the footnote identifies an important distinction in the UPPA waiver analysis. Specifically, the distinction between the issue of a violation of a fundamental right, such as a claim of ineffective assistance of counsel, and ²³³ the grounds supporting such claim where the fundamental right can be violated in many different ways.

The footnote suggests that the "intelligent and knowing" requirement for waiving a fundamental right is limited to a failure to raise a claim of a violation of that right in a prior proceeding and does not extend to the grounds for such claim where the issue has been raised in a prior proceeding. In other words, the many different grounds that may be advanced in support of a claim of a violation of a fundamental right are not themselves a fundamental right. We also find Arrington v. State , 411 Md. 524 , 983 A.2d 1071 (2009), to be instructive. In Arrington , "Arrington was convicted of second degree murder in connection with the stabbing death of Paul Simmons" in 1995 and filed his post-conviction petition in 2000.

Id. at 527, 530 , 983 A.2d 1071 . In his post-conviction petition, Arrington raised the issue of ineffective assistance of counsel on the ground of trial counsel's failure "to have the blood evidence presented in the case tested through a DNA analysis[,]" despite Arrington's request for testing. Id. at 530 , 983 A.2d 1071 . The blood evidence at trial showed only that the bloodstains on Arrington's sweatpants "were consistent with the blood type of the victim in this particular case, or any other individual with the same blood type [.]" Id. at 529 , 983 A.2d 1071 (emphasis added) (internal quotation marks omitted).

According to Arrington, DNA testing would have shown that the blood on his sweatpants was not the victim's blood. Id. at 531 , 983 A.2d 1071 . The post-conviction court, however, determined from the testimony of Arrington's trial counsel that counsel made the tactical decision not to have Arrington's sweatpants tested, because of, among other things, the risk that the DNA testing would show that the victim's blood was indeed on Arrington's sweatpants. Id. at 532-33 , 983 A.2d 1071 .

Thus the post-conviction court denied Arrington's request for a finding of ineffective assistance of counsel. Id. at 532 , 983 A.2d 1071 . In 2006, Arrington filed a motion to reopen his post-conviction proceeding and request for a new trial pursuant to ²³⁴ CP § 8-201 25 on the basis of "newly discovered DNA testing results" that proved that the blood on Arrington's sweatpants was not from the victim. Id. at 534 , 983 A.2d 1071 .

Arrington asserted that he was entitled to a new trial, because the blood evidence at trial misled the jury. Id. In addition to this claim, Arrington made claims of ineffective assistance of trial counsel based on grounds not previously raised, including, inter alia , grounds that "his trial counsel[ ] fail[ed] to cross-examine the State's expert regarding the percentage of the population that possesse[d] the blood type or enzyme at issue in the case[,]" and ⁸⁸⁹ that his trial counsel allegedly failed "to make use of critical exculpatory evidence contained in various police reports." Id. at 535 , 983 A.2d 1071 . The post-conviction court dismissed the new claims of ineffective assistance of trial counsel as waived, and the Court of Appeals quoted the post-conviction court's reasoning at length.

Id. at 539-40 , 983 A.2d 1071 . That reasoning was as follows: Petitioner also claims ineffective assistance of counsel stemming from counsel's failure to use critical exculpatory evidence contained in various police reports, as well as failure to establish the percentage of individuals having the same blood type as both Petitioner and the victim. Petitioner raised ineffective assistance of counsel at his first post[-]conviction proceeding. It is Petitioner's position that a reopening of post[-]conviction proceedings pursuant to § 8-201, ipso facto reopens all issues, regardless of any claims of waiver, abandonment or that claims have been fully litigated.

Petitioner fails to cite any authority for such a reading of § 8-201. The legislature intended § 8-201 to provide a mechanism for those with claims of "actual innocence" to utilize favorable scientific evidence at any time to prove their innocence. The statute ²³⁵ was not designed to open the floodgates of otherwise structured and constricted post[-]conviction law. Nor was it designed to provide a "super-appeal" as an end-run around the entire body of post[-]conviction law.

An additional question for the [c]ourt is whether it is in the interests of justice to reopen the issue of ineffective assistance of counsel at this juncture. Petitioner points to trial counsel's failure to utilize exculpatory information contained within certain police reports to demonstrate ineffective assistance of trial counsel. All of the information was known prior to trial, let alone prior to the first post[-]conviction hearing. Petitioner had the benefit of counsel on appeal and failed to raise these issues.

Further, Petitioner had the benefit of counsel during his initial post[-]conviction and failed to raise these issues in support of his allegation of ineffective assistance of counsel. Consequently, Petitioner has waived the right to now assert these claims. Furthermore, it would not be in the interests of justice to reopen the ineffective assistance of counsel claim where, as here, the Petitioner had access to the information complained of prior to his appeal, as well as his first post[-]conviction hearing, and failed to raise these issues in those forums. Id.

(emphasis added). On a direct appeal to the Court of Appeals, pursuant to CP § 8-201(j)(6) (2001, 2008 Repl. Vol.), Arrington argued that the post-conviction court erred in failing to reopen his post-conviction proceeding to consider his claims of ineffective assistance of counsel on new grounds. Id. at 540-42 , 983 A.2d 1071 .

In rejecting Arrington's argument, the Court stated: This Court has yet to decide whether a petitioner in a reopened post[-]conviction proceeding may raise claims that would normally be precluded under the statutory provisions about waiver in the Uniform Post[-]conviction Procedure Act ("UPPA"), CP Sections 7-101 through 7-301 (2008 Repl. Vol.). We decide today, for the reasons explained below, that a petitioner may not assert, in a post[-]conviction proceeding ²³⁶ reopened under the authority of CP Section 8-201, claims that could have been, but were not, raised in the original post[-]conviction proceeding, other than claims based ⁸⁹⁰ on the results of the post[-]conviction DNA testing. Id. at 545 , 983 A.2d 1071 .

The above language in Arrington implies that "under the statutory provisions about waiver in the [UPPA,]" id. , Arrington had waived his right to assert claims of ineffective assistance of counsel on the new grounds alleged in his motion to reopen, where (1) all of the information about the new grounds was known prior to the first post-conviction hearing; (2) Arrington had the benefit of post-conviction counsel during the initial post-conviction proceeding; and (3) his post-conviction counsel failed to raise those grounds in support of his claims of ineffective assistance of trial counsel. See id. at 539 , 983 A.2d 1071 . The issue before the Court of Appeals in Arrington was whether the waived claims of ineffective assistance of counsel could still be raised "in a post[-]conviction proceeding reopened under the authority of CP Section 8-201 [.]" Id. at 545 , 983 A.2d 1071 . The Court held that those waived claims could not be raised.

Id. Considering Curtis , Wyche , and Arrington together, we conclude that the UPPA's "intelligent and knowing" requirement for the waiver of a fundamental right is limited to situations where the issue of a violation of a fundamental right was not raised in a prior proceeding. In Curtis , the issue of ineffective assistance of counsel was not raised in the first petition for post-conviction relief. 284 Md. at 134 -35 , 395 A.2d 464 . The Court of Appeals determined that the issue of ineffective assistance of counsel was premised on a fundamental constitutional right, and thus "a criminal defendant cannot be precluded from having this issue considered because of his mere failure to raise the issue previously." Id. at 150 , 395 A.2d 464 .

In the instant case, by contrast, Syed did raise the issue of ineffective assistance of trial counsel at the first hearing. Syed's post-conviction counsel advanced seven claims that trial counsel's representation was constitutionally inadequate, each ²³⁷ on a separate ground. The cell tower ground was not one of those grounds. Consequently, the question of waiver regarding the failure to raise the issue of ineffective assistance of trial counsel is not present here.

In Curtis , the Court of Appeals identified non-fundamental rights, which can be precluded without an "intelligent and knowing" waiver, as those that "fall within the category of tactical decisions by counsel or involve procedural defaults." Id. at 147 , 395 A.2d 464 . "Tactical decisions, when made by an authorized competent attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant." 26 Id. at 150 , 395 A.2d 464 . In our view, the selection of a particular ground to support a claim of ineffective assistance of counsel is a quintessential tactical decision of counsel. Counsel must (1) decide whether the record supports a particular ground for a claim of ineffective assistance of counsel, (2) identify and develop evidence in support of such ground, (3) assess the strength of the evidence, and (4) evaluate the likelihood of success.

Therefore, although the issue of ineffective assistance of counsel is premised on a fundamental ⁸⁹¹ right under Curtis , a ground supporting that issue is not. Cf. Arrington , 411 Md. at 545 , 983 A.2d 1071 ; Wyche , 53 Md. App. at 407 n.2, 454 A.2d 378 . Accordingly, the cell tower ground supporting Syed's new claim of ineffective assistance of trial counsel is based on a non-fundamental right for the purpose of waiver under the UPPA.

As the Court of Appeals has explained: ²³⁸ As to lesser or non-fundamental rights, the petitioner will be deemed to have waived any claim of error if petitioner or petitioner's counsel failed to exercise a prior opportunity to raise it notwithstanding a lack of personal knowledge of the right of which petitioner was deprived, except when the failure to allege the error is excused by special circumstances. McElroy v. State , 329 Md. 136 , 140-41, 617 A.2d 1068 (1993) (footnote omitted). We thus conclude that, where the issue of ineffective assistance of counsel is raised in a prior proceeding, the failure to assert a particular ground in support of the issue will constitute a waiver of that ground, unless the court finds that the ground could not have been presented in the prior proceeding. 27 Our conclusion is consistent with the legislative history of the UPPA; specifically, Chapter 110 of the Acts of 1995, which reduced the number of petitions allowed to one and created the procedure for reopening a post-conviction proceeding. See Alston v. State , 425 Md. 326 , 335, 40 A.3d 1028 (2012).

In examining the legislative history of Chapter 110 of the Acts of 1995, the Court of Appeals observed that the purpose of this provision was to amend the UPPA to allow for a petitioner to have one petition for post-conviction relief but "provide a safeguard for the occasional meritorious case" through the reopening procedure, now codified in CP § 7-104. See id. The Court explained the new provision by pointing to the testimony of "the Governor's Chief Legislative Officer [ ] before the Senate Judicial Proceedings Committee on Senate Bill 340, which became Ch. 110," and was as follows: "In [1986], the General Assembly capped the number of post[-]conviction petitions to two. However, there is no apparent rationale for not limiting the defendant to one petition.

Common sense dictates that the defendant should include all grounds for relief in one petition. The ²³⁹ right to file a second post[-]conviction petition simply affords the ... defendant an unwarranted opportunity for delay. Senate Bill 340 limits the defendant to one post[-]conviction petition unless the court determines that reopening the case is necessary to prevent a miscarriage of justice." Id. at 336 , 40 A.3d 1028 (italic emphasis in original) (bold emphasis added). In addition, [t]he Chairperson of the Governor's Commission on the Death Penalty, which drafted Senate Bill 340, also testified on the Bill before the Senate Judicial Proceedings Committee.

He stated: "This amendment would reduce the number of post[-]conviction petitions from two to one, but would permit a court to reopen a previously concluded proceeding if necessary to avoid a miscarriage of justice. This balances the need for procedural safeguards with the need for stemming cost and delay. There simply is no need for routine second petitions-counsel can and should put all claims into a first petition. At the federal level, a defendant gets only one habeas corpus ⁸⁹² petition; he should not get more than one post[-]conviction petition ." Id.

(emphasis added). As we read the legislative history, the General Assembly intended that a petitioner raise all claims cognizable under the UPPA in his or her original petition. See id. To extend Curtis's requirement of a knowing and intelligent waiver from the issue of ineffective assistance of counsel to every ground that could support such claim would run counter to the legislative history and purpose of Chapter 110 of the Acts of 1995, because it would allow a petitioner to raise claims of ineffective assistance of counsel on grounds not previously raised ad infinitum .

Finally, because the cell tower ground is premised on a non-fundamental right, the failure to assert such ground at the first hearing constituted a waiver of the claim of ineffective assistance of trial counsel based on that ground, unless it was ²⁴⁰ not possible for Syed to have raised it at that time. See Wyche , 53 Md. App. at 407 n.2, 454 A.2d 378 . Syed has not argued that it was not possible for his post-conviction counsel to raise in the initial petition the claim of ineffective assistance of counsel based on the cell tower ground, and we see no support in the record for the argument that it was not possible for Syed's post-conviction counsel to assert such ground at that time. Specifically, there is no dispute that Syed's trial counsel and post-conviction counsel possessed the fax cover sheet disclaimer, which is the basis of Syed's new ineffective assistance of trial counsel claim.

Because Syed's post-conviction counsel could have raised at the first hearing the claim of ineffective assistance of counsel based on trial counsel's failure to challenge the reliability of the cell tower location evidence by cross-examining Waranowitz about the fax cover sheet disclaimer, we hold that Syed waived this claim of ineffective assistance of counsel. 28 SYED'S QUESTIONS ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL A defendant has the right to effective assistance of counsel pursuant to the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights. State v. Sanmartin Prado , 448 Md. 664 , 681, 141 A.3d 99 (2016). When a defendant claims that this right has been violated, he or she must satisfy a two-step test known as the Strickland test. Strickland v. Washington , 466 U.S. 668 , 687, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. ²⁴¹ Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Id. Standard of Review When a claim of ineffective assistance of counsel is considered on appeal, ⁸⁹³ as in this case, we apply the following standard of review: [T]he [trial] court's determinations regarding issues of effective assistance of counsel is a mixed question of law and fact. We will not disturb the factual findings of the post-conviction court unless they are clearly erroneous. But, a reviewing court must make an independent analysis to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.

In other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any.... [The appellate court] will evaluate anew the findings of the [trial] court as to the reasonableness of counsel's conduct and the prejudice suffered. As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case. Sanmartin Prado , 448 Md. at 679 , 141 A.3d 99 (some alterations in original) (internal quotation marks and citation omitted). I. Did the Post-Conviction Court Err by Holding that Syed's Right to Effective Assistance of Counsel Was Not Violated When Trial Counsel Failed to Pursue a Plea Deal With the State?

A. Background In his petition for post-conviction relief, Syed claimed, inter alia , that his trial counsel was ineffective for failing to pursue ²⁴² a plea offer. The following relevant testimony was adduced at the first hearing. Syed testified that he consistently expressed his innocence to trial counsel, but after speaking with fellow inmates at the Baltimore City jail, he was urged to ask trial counsel about the possibility of the State offering a plea. Consequently, according to Syed, he took the following actions prior to his first trial: [SYED]: [ ] I asked [trial counsel] if the State offered a plea deal.

She said no. My next question [ ] was to her, could she speak to the State's Attorney or request some type of a plea. And I explained to her that I didn't really have confidence that I'd be able to prove I was somewhere else when the murder take [sic] place and when the State's theory that the murder took place, from the information that we were getting. So that's what I asked her. [PC1 COUNSEL]: And how did she respond to your request? [SYED]: She responded in the affirmative.

And I took it to mean that, okay, she was going to ask [the State]. [PC1 COUNSEL]: And did she ever follow-up on this? [SYED]: Well, my [sic] next time that I saw her, I asked her, what was the end result? Did she get a chance to speak to the State's Attorney? And her response was, "They're not offering you a plea deal." So, when she said that, that's what it was. There was nothing else for me to ask her after that, because I believed that she went and spoke to the State's Attorney, the State's Attorney said no, and that's what it was.

After the first trial ended in a mistrial but before the second trial began, Syed recalled: [SYED]: [ ] I expressed to [trial counsel] again that, I really didn't have confidence in the case because now, my fears are confirmed that, that's essentially to me what it came down to. The perception in my mind was, this is what this case comes down to. Where was I at this time. So, I asked ²⁴³ [trial ⁸⁹⁴ counsel] once again, do you think the State will offer a deal?

Could you talk to them again? [PC1 COUNSEL]: And, did she respond? [SYED]: She responded that, they're not offering you a deal. Kevin Urick, the lead prosecutor for Syed's case, testified as to his recollection of any plea discussions, as follows: [PC1 COUNSEL]: Okay. So ... to the best of your knowledge, it's your recollection and it's [co-counsel's] recollection, that [trial counsel] never once approached either of you about a plea, a plea deal for [ ] Syed? [URICK]: That's correct. She never made any presentation other than that they were seeking a finding of actual innocence for [Syed]. [PC1 COUNSEL]: And when we spoke on the phone, you told me that you had no idea what kind of plea [ ] Syed might have received if one had been requested; is that correct? [URICK]: That is correct.

(Emphasis added). When asked whether there was any "plea bargaining policy that existed within the State's Attorney's Office" at the time of Syed's trial, Urick stated that "[t]here's never been an established plea bargaining policy. At least not in the time [he] was [t]here." Moreover, Urick explained that in a high profile case like Syed's, he would have had to take multiple steps in order to find out if he could even make a plea offer: [STATE]: Had you been asked to extend any kind of an offer in a case such as this one, how would you handle that? [URICK]: The first thing I would have done, would have been to talk to the family. In a case like this, you give even more consideration to a family of a homicide victim.

You try always to be considerate of a victim, and the victim's family in all cases. But a homicide case, it's even more so. So, I would have talked to Ms. Lee's family, see ²⁴⁴ what they thought. Then after I talked to them, I would have gone probably to Sal Fili[, Urick's supervisor and Division Chief of Felony Narcotics], and told him that we were beginning to talk about [a] plea and I was planning to go to Mark Cohen[, the head of the Homicide Unit at the time,] to discuss it....

I would have then gone to talk to Mark Cohen to see what he felt. And I'm pretty certain that in this particular case, he would have suggested that we go to Ms. Jessamy[, the Baltimore City State's Attorney at the time,] with it and see where she stood on it as well. Urick was never asked whether, after the above consultations were conducted, he would have made a plea offer to Syed. Finally, Urick recalled that he handled at least three other high profile murder cases, like Syed's, and he did not recall any plea discussions with defense counsel in those cases.

Syed called Margaret Meade as an expert in the practice of criminal defense of murder cases in the Circuit Court for Baltimore City, and she testified about her experience with the prosecutors at the State's Attorney's Office in Baltimore City. In Meade's experience, she could not "even imagine" the State not offering a plea if she were to ask for it. B. Memorandum Opinion I In its Memorandum Opinion I, the post-conviction court addressed Syed's claim of ineffective assistance of trial counsel for failure to pursue a plea offer: [T]here is nothing in the record indicating that the State was prepared to make a plea offer had trial counsel pursued such negotiations. In fact, [Syed] provided no convincing evidence ⁸⁹⁵ that a plea offer was even contemplated or discussed by the State. [Syed's] bald assertion that the policy of the State's Attorney's Office at the time was to offer plea[s] to defendants charged with murder is unfounded and is inconsistent with the State's claim that there was never a plea available in [Syed's] case.

(Emphasis added). The post-conviction court concluded that trial counsel was not deficient, and even if she was deficient, ²⁴⁵ Syed failed to prove prejudice, because there was no indication that Syed would have accepted any type of plea offer after maintaining his innocence throughout the trial and sentencing. The post-conviction court, therefore, denied Syed post-conviction relief on that claim. C. Analysis On appeal, Syed contends that trial counsel had a duty to pursue plea negotiations, and trial counsel was deficient for failing to explore a possible plea offer when Syed requested her to do so.

Moreover, Syed argues that he was prejudiced, because he "was denied the basic right to make a choice of whether to go to trial or to accept a plea bargain[,]" and had trial counsel done what Syed requested, "it is extremely likely that Syed would have had a choice" of whether to go to trial or to plea. The State responds by arguing that, "[e]ven assuming Syed raised a cognizable ineffective assistance of counsel claim, he still failed to establish that [his trial counsel] acted deficiently in the context of his case." Specifically, the State contends that Syed failed to show that the State would have made a plea offer, and there was "no evidence regarding a specific charge or sentence that Syed would have been offered[,]" much less accepted. "Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process." Lafler v. Cooper , 566 U.S. 156 , 162, 132 S.Ct. 1376 , 182 L.Ed.2d 398 (2012). Defendants do not, however, have the " right to be offered a plea ...." Id. at 168 , 132 S.Ct. 1376 (emphasis added).

Therefore, assuming that defense counsel has the duty to pursue a plea offer when requested, the failure to pursue a plea offer cannot prejudice a defendant without evidence demonstrating that, if defense counsel had requested a plea offer, the State would have made a plea offer. Cf. Delatorre v. United States , 847 F.3d 837 , 846 (7th Cir. 2017) ("Because [the defendant's] prejudice argument centers on his attorney's inability to secure a plea agreement for him, [the defendant] had to show-at a minimum-that the prosecutor ²⁴⁶ would have actually offered him a deal had his attorney been competent."). In the case sub judice , Urick testified that, if Syed's trial counsel had asked for a plea, Urick would have begun a process of speaking with Hae's family and his superiors to ascertain whether he could offer a plea.

Urick, however, was never asked whether, after completing such process, he would have made Syed a plea offer. Thus the post-conviction court was not clearly erroneous when it found that "there is nothing in the record indicating that the State was prepared to make a plea offer had trial counsel pursued such negotiations." Moreover, Urick testified that there was no "plea bargaining policy" within the State's Attorney's Office while he was there, and with regard to three high profile murder cases that he handled, Urick did not recall any plea discussions with defense counsel. On the other hand, Syed's expert stated that in her experience, the prosecutor always made a plea offer when requested and could not "even imagine a State's Attorney saying, we're not offering ⁸⁹⁶ anything." By crediting Urick's testimony, the post-conviction court had sufficient evidence to support its finding that Syed's "assertion that the policy of the State's Attorney's Office at the time was to offer plea[s] to defendants charged with murder is unfounded." Because Syed failed to prove that the State would have made him a plea offer if trial counsel had requested one, the post-conviction court correctly concluded that Syed had not established a claim of ineffective assistance of counsel based on trial counsel's failure to pursue a plea offer. We, therefore, affirm the post-conviction court's denial of relief on that claim.

II

Did the Post-Conviction Court Err by Holding that Syed's Right to Effective Assistance of Counsel Was Not Violated When Trial Counsel Failed to Investigate McClain as a Potential Alibi Witness? A. Background 1. First Hearing In his petition for post-conviction relief, Syed raised the issue of ineffective assistance of counsel for trial counsel's ²⁴⁷ failure "to call or investigate an alibi witness, Asia McClain, who was able and willing to testify[.]" On October 25, 2012, the second day of the first hearing, Syed testified that, after he was arrested on February 28, 1999, he "received two letters from [McClain] back to back." He "received these letters within the first week of being arrested," and "immediately notified" trial counsel. According to Syed, "the next time that [he] saw [trial counsel] on a visit, [he] showed her the two letters and she read them.

And [he] asked her, could she please do two things, contact [ ] McCla[in], and try to go to the library to retrieve whatever security footage was there." Syed stated that prior to the first trial, he told trial counsel's law clerk, Ali Pournader, about McClain; specifically, that "[he] remembered being in the public library with her that day from right after school, which is about 2:15 to around 2:40, 2:45'ish, close to three [p.m]." 29 Syed stated further that during the next visit he had with trial counsel, he "immediately asked her ... did [she] speak to [ ] McCla[in]?" Trial counsel responded that she had "looked into it and nothing came of it." Syed then testified that, "[w]hen I asked her, and her response was that, I asked her again, well, [trial counsel], did you go speak to her? You know, did they say that-I just began in my mind to try to understand what she meant, but she moved onto another subject." Shortly after his conviction, Syed mentioned McClain to Rabia Chaudry, a family friend who was a law student at the time. Syed stated that he "wish[ed] there was some way that [he] could [have] prove[n] that [he] was somewhere else at this time." Syed explained to Chaudry that trial counsel "checked into it and obviously it didn't pan out." At that point, Chaudry ²⁴⁸ requested Syed to send her the information about McClain, and Syed sent her copies of the two letters. Chaudry then contacted McClain by calling McClain's grandparents' phone number, listed on one of the letters.

After contacting McClain, Chaudry ⁸⁹⁷ told Syed that "McCla[in] informed her that she was never contacted." Chaudry testified at the first hearing and confirmed that she had spoken with McClain about Syed's case. Chaudry stated that during their brief phone conversation, McClain "seemed very happy that somebody was reaching out to her. And she was very willing to meet." The day following the phone conversation, Chaudry met with McClain in the parking lot of the Woodlawn Public Library. Chaudry stated that from their conversation, she "learned [ ] that, [McClain] had seen [Syed] after school that day at the library, which was next door to the school.

And she recalled the day very clearly. She recalled very specific things about the day and she had spent the time immediately after school with him for about 15, 20 minutes." Chaudry asked McClain if she would put her story down on paper, and McClain agreed. That same day, McClain signed an affidavit dated March 25, 2000, which was then notarized. Chaudry gave Syed a copy of McClain's affidavit, and Syed called trial counsel from the jail.

Syed testified: I read through the affidavit and I reminded her about the letters. And I said, [trial counsel], did you speak to her? Did you talk to her? Did you contact her?

And she said, no. And I was very upset at that point. Because I said, [trial counsel], it's the exact same time. And I asked her, did she ever try to go to the library to secure the video footage?

And she said, no. So, I became very upset with her. And I asked her, was there anything we can do at this point? And she said, no.

We need to focus on the appeal. (Emphasis added). Trial counsel did not testify at the first hearing, because she had passed away before the hearing took place. McClain also did not testify at the first hearing. ²⁴⁹ On January 6, 2014, the post-conviction court issued its Memorandum Opinion I denying Syed post-conviction relief.

The post-conviction court determined, among other things, that Syed's trial counsel was not deficient for failing to investigate McClain for two reasons. First, "the letters sent from [ ] McClain to [Syed] [did] not clearly show [ ] McClain's potential to provide a reliable alibi for [Syed]." The court explained that the letters did not state an exact time the encounter at the library took place and thus "trial counsel could have reasonably concluded that [ ] McClain was offering to lie in order to help [Syed] avoid conviction." Second, McClain's story conflicted with Syed's version of events and thus "pursuing [ ] McClain as a potential alibi witness would not have been helpful to [Syed's] defense and may have, in fact, harmed the defense's ultimate theory of the case." The post-conviction court concluded that trial counsel's failure to investigate McClain as an alibi witness was the result of sound and reasonable trial strategy, and thus was not deficient performance. 2. First Appeal On January 27, 2014, Syed filed a timely application for leave to appeal to this Court, raising two issues, one of which was whether Syed's trial counsel rendered ineffective assistance of counsel by failing to interview or even contact the potential alibi witness, McClain. As previously indicated, on January 20, 2015, Syed supplemented his application for leave to appeal, requesting that this Court remand the case back to the post-conviction court for additional fact-finding on the alibi witness issue in light of McClain's January 13, 2015 affidavit.

On February 6, 2015, this Court granted Syed's application for leave to appeal, reserving a decision on Syed's request to remand. After reviewing the briefs, Syed's supplement, and other ⁸⁹⁸ pleadings, this Court by order dated May 18, 2015, stayed Syed's appeal and remanded to the post-conviction court for Syed to file a motion to reopen the post-conviction proceeding. ²⁵⁰ 3. Second Hearing Pursuant to this Court's remand order, Syed filed a Motion to Reopen, and the post-conviction court granted the motion "to introduce the January 13, 2015 affidavit from McClain, the potential testimony of McClain, and relevant evidence concerning [Syed's] claims of ineffective counsel and alleged prosecutorial misconduct during the post-conviction proceedings[.]" The second hearing began on February 3, 2016, and lasted until February 9, 2016. At the second hearing, McClain 30 testified to being with Syed at the Woodlawn Public Library on January 13, 1999.

That day, McClain had a conversation with Syed "[s]hortly after 2:15 [p.m.]" while McClain was waiting for her boyfriend to pick her up from the library. McClain noted that Syed's demeanor was "[c]ompletely normal." The conversation lasted "about 15 to 20 minutes" and ended when McClain's boyfriend and his friend arrived to pick her up. McClain further stated that school was closed the next two days, January 14 and January 15, 1999, due to bad weather. 31 McClain testified that, after Syed was arrested on February 28, 1999, she and her friend, Justin Adger, went to Syed's house to inform his family that she had seen Syed and spoke to him at the library on January 13, 1999. On March 1, 1999, McClain wrote a letter ("first letter") to Syed.

The first letter, 32 which was admitted into evidence at the second hearing, stated the following: ²⁵¹ It's late. I just came from your house an hour ago. March 1, 1999 Dear Adnon, (hope I sp. it right) I know that you can't visitors, so I decided to write you a letter. I'm not sure if you remember talking to me in the library on Jan. 13 th , but I remembered chatting with you.

Throughout you're actions that day I have reason to believe in your innocense. I went to your family's house and discussed your "calm" manner towards them. I also called the Woodlawn Public Library and found that they have a surveillance system inside the building. Depending on the amount of time you spend in the library that afternoon, it might help in your defense.

I really would appreciate it if you would contact me between 1:00pm-4pm or 8:45pm → until ... My number is [redacted]. More importantly I'm trying to reach your lawyer to schedule a possible meeting with the three of us. We aren't really close friends, but I want you to look into my eyes and tell me of your innocense.

If I ever find otherwise I will hunt you down and wip your ass, ok friend. ⁸⁹⁹ I hope that you're not guilty and I hope to death that you have nothing to do with it. If so I will try my best to help you account for some of your unwitnessed, unaccountable lost time (2:15-8:00; Jan 13th.) The police have not been notified Yet to my knowledge maybe it will give your side of the story a particle head start. I hope that you appreciate this, seeing as though I really would like to stay out of this whole thing. Thank Justin, he gave me a little more faith in you, through his friendship and faith.

I'll pray for you and that the "REAL TRUTH" comes out in the end. "I hope it will set you free" Only trying to help Asia McClain *P.S. If necessary my grandparents line number is [redacted] . Do not call that line after 11:00 O.K. ²⁵² Like I told Justin if your innocent I do my best to help you. But if you're not only God can help you.

If you were in the library for awhile, tell the police and I'll continue to tell what I know even louder than I am. My boyfriend and his best friend remember seeing you there too. Your amiga Asia McClain (Emphasis added). McClain testified that she wrote Syed a second letter ("second letter"), dated March 2, 1999.

The second letter, 33 which was admitted into evidence at the second hearing, stated in relevant part: Adnon Syed # 992005477 301 East Eager Street Baltimore, MD. 21202 Dear Adnon, How is everything? I know that we haven't been best friends in the past, however I believe in your innocence. I know that central booking is probably not the best place to make friends, so I'll attempt to be the best friend possible. I hope that nobody has attempted to harm you (not that they will).

Just remember that if someone says something to you, that their just f**king with your emotions. I know that my first letter was probably a little harsh, but I just wanted you to know where I stode in this entire issue (on the centerline). I don't know you very well, however I didn't know Hae very well. The information that I know about you being in the library could helpful, unimportant or unhelpful to your case.

I've been think a few things lately, that I wanted to ask you: 1. Why haven't you told anyone about talking to me in the library? Did you think it was unimportant, you ²⁵³ didn't think that I would remember? Or did you just totally forget yourself? 2.

How long did you stay in the library that day? Your family will probably try to obtain the library's surveillance tape. 3. Where exactly did you do and go that day? What is the so-called evidence that my statement is up against?

And who are these WITNESSES? * * * You'll be happy to know that the gossip is dead for your associates, it's starting to get old. Your real friends are concentrated on you and your defense. I want you to know that I'm missing the instructions of Mrs. Ogle's CIP class, writing this letter. It's weird, since I realized that I saw you in the public library that day, you've been on my mind.

The conversation that we had, has been on my mind. Everything was cool that day, maybe if I would have ⁹⁰⁰ stayed with you or something this entire situation could have been avoided. Did you cut school that day? Someone told me that you cut school to play video games at someone's house.

Is that what you told the police? This entire case puzzles me, you see I have an analytical mind. I want to be a criminal psychologist for the FBI one day. I don't understand how it took the police three weeks to find Hae's car, if it was found in the same park.

I don't understand how you would even know about Leakin Park or how the police expect you to follow Hae in your car, kill her and take her car to Leakin Park, dig a grave and find you way back home. As well how come you don't have any markings on your body from Hae's struggle. I know that if I was her, I would have struggled. I guess that's where the SO-CALLED witnesses.

White girl Stacie just mentioned that she thinks you did it. Something about your fibers on Hae's body...something like that (evidence). I don't mean to make you upset talking about it...if I am. I just thought that maybe you should know.

Anyway I have to go to third period. I'll write you again. Maybe tomorrow. ²⁵⁴ Hope this letter brightens your day...Your Friend, Asia R. McClain P.S: Your brother said that he going to tell you to maybe call me, it's not necessary, save the phone call for your family. You could attempt to write back though.

So I can tell everyone how you're doing (and so I'll know too). Asia R. McClain 6603 Marott Drive Baltimore, MD 21207 Apparently a whole bunch of girl were crying for you at the jail...Big Playa Playa (ha ha ha he he he). (Emphasis added). McClain testified that no one from Syed's defense team contacted her, but had they, she would have spoken to them.

McClain stated that after Syed's conviction, Chaudry came to her house and asked if she had a conversation with Syed in the library on January 13, 1999. McClain told Chaudry that she did have a conversation with Syed, to which Chaudry requested McClain write an affidavit. The notarized affidavit, dated March 25, 2000 ("March 25, 2000 affidavit"), 34 was admitted into evidence at the second hearing and stated the following: Affidavit A.R.M. Asia McClain having been duly sworn, do depose and state: I am 18 years old. I attend college at Catonsville Community College of Baltimore County.

In January of 1999, I attended high school at Woodlawn Senior High. I have known Adnan Syed since my 9 th grade freshmen year (at high school.) On 1/13/99, I was waiting in the Woodlawn Branch Public Library. I was waiting for a ride from my boyfriend (2:20), when I spotted Mr. Syed and held a 15-20 minute conversation. We talked about his girlfriend and he seemed extremely calm and very caring.

He explained to ²⁵⁵ me that he just wanted her to be happy. Soon after my boyfriend (Derrick Banks) and his best-friend (Gerrod Johnson) came to pick me up. Spoke to Adnan (briefly) and we left around 2:40. A.R.M. ⁹⁰¹ No attorney has ever contacted me about January 13, 1999 and the above information Asia McClain 3/25/00 [signature of notary listed below] (Emphasis added).

After moving across the country to the State of Washington, McClain testified that Syed's first post-conviction counsel attempted to contact her in April of 2010. She then contacted the lead prosecutor from Syed's trial, Kevin Urick, to see if he could provide her with unbiased information as to what was going on with the case. Urick explained to her the evidence of the case, the absence of alibi witnesses at trial, and the likely result of the post-conviction proceeding. Because of Urick's advice "that it was [ ] a waste of time for [McClain] to get involved with something that was just obviously a tactic to manipulate the court system[,]" McClain did not respond to the inquiries of Syed's post-conviction counsel.

McClain stated that in January of 2014, she was contacted by National Public Radio ("NPR") and was interviewed about the case. According to McClain, the NPR podcast changed her outlook on the case and caused her to realize how important her information was. McClain contacted Syed's post-conviction counsel in December of 2014, after learning that Urick had testified at Syed's first hearing that McClain wrote the March 25, 2000 affidavit because of pressure from Syed's family. Thereafter, McClain wrote the January 13, 2015 affidavit, which was admitted into evidence at the second hearing.

The January 13, 2015 affidavit 35 stated in relevant part: ²⁵⁶ ASIA MCCLAIN 1. I swear to the following, to the best of my recollection, under penalty of perjury: 2. I am 33years old and competent to testify in a court of law. 3. I currently reside in Washington State. 4.

I grew up in Baltimore County, MD, and attended high school at Woodlawn High School. I graduated in 1999 and attended college at Catonsville Community College. 5. While a senior at Woodlawn, I knew both Adnan Syed and Hae Min Lee. I was not particularly close friends with either. 6.

On January 13, 1999, I got out of school early. At some point in the early afternoon, I went to Woodlawn Public Library, which was right next to the high school. 7. I was in the library when school let out around 2:15 p.m. I was waiting for my boyfriend, Derrick Banks, to pick me up.

He was running late. 8. At around 2:30 p.m., I saw Adnan Syed enter the library. Syed and I had a conversation. We talked about his ex-girlfriend Hae Min Lee and he seemed extremely calm and caring.

He explained that he wanted her to be happy and that he had no ill will towards her. 9. Eventually my boyfriend arrived to pick me up. He was with his best friend, Jerrod Johnson. We left the library around 2:40.

Syed was still at the library when we left. 10. I remember that my boyfriend seemed jealous that I had been talking to Syed. I was angry at him for being extremely late. 11. The 13 th of January 1999 was memorable because the following two school days were cancelled due to hazardous winter weather. ⁹⁰² 12.

I did not think much of this interaction with Syed until he was later arrested and charged in the murder of Hae Min Lee. ²⁵⁷ 13. Upon learning that he was charged with murder [sic] related to Lee's disappearance on the 13 th , I promptly attempted to contact him. 14. I mailed him two letters to the Baltimore City Jail, one dated March 1, the other dated March 2. (See letters, attached).

In these letters I reminded him that we had been in the library together after school. At the time when I wrote these letters, I did not know that the State theorized that the murder took place just before 2:36 pm on January 13, 1999. 15. I also made it clear in those letters that I wanted to speak to Syed's lawyer about what I remembered, and that I would have been willing to help his defense if necessary. 16. The content of both of those letters was true and accurate to the best of my recollection. 17.

After sending those letters to Syed in early March, 1999, I never heard from anybody from the legal team representing Syed. Nobody ever contacted me to find out my story. 18. If someone had contacted me, I would have been willing to tell my story and testify at trial. My testimony would have been consistent with the letters described above, as well as the affidavit I would later provide.

See below . * * * [Signature] ASIA MCCLAIN DATE 1/13/15 David Irwin, Esquire, was called to testify at the second hearing as an expert in criminal defense practices and Brady disclosure duties of the prosecution. Irwin opined that McClain's story was "[p]owerfully credible." Irwin explained that back in 1999, based on what trial counsel had and was on notice for, she ²⁵⁸ had to meet the minimal objective standard of reasonable defense care. She had to go talk to [ ] McClain. She had to investigate what [ ] McClain was saying and she had to then determine if-she had to investigate the two young guys that were with her.

She had to go talk to them. Somebody had to talk to those people because the testimony could have been critical. Irwin stated further that "now we know that [ ] McClain is a fabulous witness, lovely lady, credible, intelligent and she would have been material and changed the ball game's result. It's pretty obvious to me." It was Irwin's opinion that trial counsel's performance "was well below the minimum required by Strickland [.]" (Emphasis added).

Irwin concluded that McClain's testimony "was a game changer. It would have made an incredible difference in the outcome of the case. It's material. It's important.

It certainly takes away any confidence that one would have in the verdict in that case." 4. Memorandum Opinion II In addressing the deficiency prong of Strickland in its Memorandum Opinion II, the post-conviction court held that trial counsel's "failure to investigate McClain as a potential alibi witness fell below the standard of reasonable professional judgment." In reaching its holding, the post-conviction court found that after learning about McClain, trial counsel "failed to make any effort to contact McClain and investigate the bona fides of the March 1, 1999 and March 2, 1999 letters, or ascertain whether McClain's testimony would aid [Syed's] defense." According to the post-conviction court, trial counsel learned about the potential alibi witness "nearly five months ⁹⁰³ prior to trial, and thus, she had ample time and opportunity to investigate the potential alibi." The post-conviction court rejected the State's argument that trial