220 F.3d 306 (4th Cir. 2000), 99-22, Evans v. Smith

Docket Nº:99-22 (CA-97-3711-L).
Citation:220 F.3d 306
Party Name:VERNON LEE EVANS, JR., Petitioner-Appellant, v. WILLIE SMITH, Warden, United States Penitentiary, Atlanta; J. JOSEPH CURRAN, JR., Attorney General of the State of Maryland, Respondents-Appellees.
Case Date:July 17, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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220 F.3d 306 (4th Cir. 2000)

VERNON LEE EVANS, JR., Petitioner-Appellant,

v.

WILLIE SMITH, Warden, United States Penitentiary, Atlanta; J. JOSEPH CURRAN, JR., Attorney General of the State of Maryland, Respondents-Appellees.

No. 99-22 (CA-97-3711-L).

United States Court of Appeals, Fourth Circuit

July 17, 2000

Argued: May 3, 2000.

Appeal from the United States District Court for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

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COUNSEL ARGUED: Gerald Ira Fisher, FISHER & HANSEN, P.C., Washington, D.C., for Appellant. Annabelle Louise Lisic, Assistant Attorney General, Criminal Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees. ON BRIEF: A.Stephen Hut, Jr., Susan A. MacIntyre, Mark S. Morelli, WILMER, CUTLER & PICKERING, Washington, D.C., for Appellant. J. Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.

Before WILKINSON, Chief Judge, and WILKINS and WILLIAMS, Circuit Judges.

Affirmed and dismissed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Wilkins and Judge Williams joined.

OPINION

WILKINSON, Chief Judge:

Appellant Vernon Lee Evans was convicted and sentenced to death by Maryland juries for the contract murders of David Scott Piechowicz and Susan Kennedy. Evans now raises a number of claims in asking the federal courts to vacate his conviction and/or sentence. Finding no merit in these claims, we affirm the district court's denial of Evans' initial petition for habeas corpus. We also hold that Evans' claim under Brady v. Maryland, 373 U.S. 83 (1963), is a second or successive petition. As Evans has failed to meet the requirements for a second or successive petition under 28 U.S.C.§ 2244(b)(2)(B), his Brady petition must also be dismissed.

I.

Vernon Lee Evans, Jr., was hired by Anthony Grandison to kill Cheryl and David Scott Piechowicz. The Piechowiczes were scheduled to testify as witnesses against Grandison in a federal narcotics case. Grandison agreed to pay Evans $9,000 for carrying out the murders.

The Piechowiczes worked at the Warren House Motel in Baltimore County, Maryland. On April 28, 1983, Susan Kennedy, the sister of Cheryl Piechowicz, was working in Cheryl's place along with Scott Piechowicz in the motel lobby. On that day, Evans, not knowing the Piechowiczes, entered the motel with the purpose of eliminating the couple on Grandison's behalf. After a short wait, Evans shot Scott Piechowicz and Susan Kennedy in the motel lobby. Evans fired nineteen bullets at the victims with a MAC-11 machine pistol equipped with a silencer or noise suppressor. The victims died from multiple gunshot wounds.

Evans was arrested and charged with federal and state crimes. In November 1983, he was convicted in federal district court, along with Grandison, Janet Moore, and Rodney Kelly, of witness tampering and interfering with the Piechowiczes' civil rights to be witnesses in a judicial proceeding. Evans was sentenced to life and ten years in prison, with the sentences to be served consecutively.

In 1984, Evans was tried on state charges in the Circuit Court for Worcester County, Maryland. Specifically, Evans was tried for two counts of first degree

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murder, conspiracy to commit murder, and the use of a handgun in the commission of a felony or crime of violence.

During the state trial, the prosecution offered overwhelming incriminating evidence against Evans through a number of witnesses. The most damaging testimony came from Charlene Sparrow, who was Evans' girlfriend at the time of the murders. Sparrow testified that she accompanied Evans and Janet Moore to the Baltimore City Jail two days before the shooting. At the jail, Evans and Moore met with Grandison, who was awaiting his federal drug trial. Sparrow then inspected the reception desk area of the Warren House Motel. She reported to Evans concerning the people working there and the presence or absence of security features. Sparrow also obtained a room at the motel with Evans' funds at his request. On the day of the murders, Evans told Sparrow to wait for him in the car behind the motel. Just before Evans walked to the motel, Sparrow looked inside the brown canvas bag he was carrying and saw a machine gun. Some ten to fifteen minutes later, Evans returned to the car, gave the smoking MAC11 machine pistol to Sparrow, and asked her to wipe it down. Evans had also told her that he would receive $9,000 "if he knocked both of them off." Evans and Sparrow went to the mall that night to spend part of the proceeds from the murders.

Other witnesses also supplied incriminating testimony as to Evans' central role in the murders. For example, Moore testified as to her and Evans' visit to Grandison at the jail two days before the killings. Calvin Harper testified concerning the day of the murder and the two days leading up to it. Harper's testimony included a description of Evans' acquisition of the machine pistol used in the crime from Rodney Kelly and Evans' statement that he liked the gun. Several other witnesses were able to place Evans in the motel lobby during the time immediately preceding the murders. For example, Etta Horne, who worked at the motel, identified Evans as the man she saw sitting in the motel lobby shortly before the murders. Helen Kondilidis, who had entered the motel shortly before the murders, also identified Evans as the man she saw sitting in the lobby.

The jury found Evans guilty of each of the crimes with which he was charged. The jury then sentenced Evans to death on each murder count. Evans was sentenced to life in prison for the conspiracy conviction and twenty years in prison for the handgun offense. These non-capital sentences were to run consecutively to each other, as well as consecutively to Evans' federal sentences of life and ten years.

The Maryland Court of Appeals affirmed Evans' state convictions and sentences on direct appeal. See Evans v. State, 499 A.2d 1261 (Md. 1985). In June 1986, the Supreme Court denied Evans' petition for certiorari. See Evans v. Maryland, 478 U.S. 1010 (1986).

Evans filed his first petition for state post-conviction relief in 1990 in the Circuit Court for Worcester County. The court denied relief on all claims except Evans' challenge to the constitutionality of the sentencing form used for the imposition of his death sentences. The court thus ordered that Evans be re-sentenced.

In November 1992, Evans was re-sentenced on his murder convictions. Evans' counsel focused primarily on mitigation evidence at the re-sentencing hearing. After the hearing, the jury returned two death sentences. These sentences were then affirmed by the Maryland Court of Appeals. See Evans v. State, 637 A.2d 117 (Md.), cert. denied, 513 U.S. 833 (1994).

In 1995, Evans filed a second petition for state post-conviction relief in the Circuit Court for Baltimore County. Evans raised a variety of claims relating both to his re-sentencing and to prior proceedings.

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The court denied relief on all claims. The Maryland Court of Appeals then denied Evans' application for review of this decision. See Evans v. State, 693 A.2d 780 (Md.), cert. denied, 522 U.S. 966 (1997).

In November 1997, Evans filed a petition for habeas corpus in the United States District Court for the District of Maryland. Evans asserted numerous claims in his petition, including a claim that the prosecutor at Evans' guilt phase trial had exercised peremptory challenges in a racially discriminatory manner and claims of ineffective assistance on the part of re-sentencing counsel. The district court heard argument on the petition over two days in April 1998.

In April 1999, Evans filed a motion asking the district court to stay consideration of his petition so that he could exhaust a claim arising under Brady v. Maryland, 373 U.S. 83 (1963), in state court. Evans' Brady claim is based on his allegation that the state withheld an FBI report recounting an agent's witness interview with Janet Bannister. Evans contends that Bannister would testify that she saw an African American who was much taller than Evans with a duffel bag in the motel lobby and that she never saw Kondilidis in the lobby. Evans asserts that this testimony could have altered the outcome of his re-sentencing proceeding. The state counters, inter alia, that it did not withhold the report from Evans and that, in any event, nothing prevented Evans from raising this Brady claim long ago. Evans hoped to amend his habeas petition to assert this claim in federal court if the state courts denied relief.

In June 1999, the district court denied habeas relief. See Evans v. Smith, 54 F.Supp.2d 503 (D. Md. 1999). The district court also denied the motion for a stay after receiving a proffer of Bannister's testimony. Evans then filed a motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment, which the district court denied. The district court subsequently granted in part Evans' application for a certificate of appealability.

Later that year, Evans exhausted his Brady claim in the state courts. The Baltimore County Circuit Court denied without a hearing Evans' motion to reopen his post-conviction proceedings. See Evans v. State, No. 83-CR-2339 (Circuit Ct. for Baltimore County, Oct. 20, 1999). The court found that (1) Evans' allegations and affidavit were insufficient to raise the issue that the state had failed to provide exculpatory material; (2) even if the state had failed to furnish the material, Evans had failed to show that he was prevented from acquiring...

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