Petition for Writ of Certiorari — Christopher Klein, Superintendent, Department of Detention Facilities for Anne Arundel County, et al., Petitioners v. Charles Brandon Martin

Supreme Court briefJul 11, 2025

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APPENDIX

TABLE OF CONTENTS

Page

Appendix A – Court of appeals opinion (Jan.

16, 2025) ........................................1a

Appendix B – District court memorandum

opinion granting federal

habeas petition in part (Dec.

14, 2023) ......................................45a

Appendix C – District court final order

granting federal habeas

petition in part (Jan. 30,

2024) ............................................91a

Appendix D – Opinion of the Maryland

intermediate appellate court

reversing the grant of

postconviction relief (Sept.

20, 2019) ......................................93a

Appendix E – Opinion and order of the state

postconviction court granting

postconviction relief (Oct. 5,

2018) ..........................................146a

Appendix F – Opinion of the Maryland

intermediate appellate court

affirming the judgment of

conviction on direct appeal

(July 30, 2014) ...........................188a

Appendix G – Court of appeals order denying

rehearing en banc (Feb. 11,

2025) ..........................................243a

Appendix H – Constitutional and statutory

provisions involved....................244a

Appendix I – Transcript excerpts of statecourt proceedings ......................248a

April 28, 2010 trial proceedings ......................248a

Testimony of Jodi Torok .............................249a

Testimony of Jessica Higgs ........................265a

Testimony of Emmanuel Quartey .............278a

Testimony of Sgt. Richard Alban ...............288a

April 29, 2010 trial proceedings ......................302a

Testimony of Craig Robinson .....................303a

Testimony of Det. Michael Regan ..............309a

April 30, 2010 trial proceedings ......................316a

Testimony of Det. Michael Regan

(resumed) ....................................................317a

May 3, 2010 trial proceedings .........................325a

Testimony of Michael William Bradley .....326a

Testimony of Sheri Carter .........................372a

May 4, 2010 trial proceedings .........................402a

State’s closing argument ............................403a

State’s rebuttal argument ..........................423a

Appendix J – State-court trial exhibits .............441a

State’s exhibit 20 .............................................442a

State’s exhibit 21 .............................................444a

State’s exhibit 68 .............................................445a

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________

No. 24-6086

_________________

CHARLES BRANDON MARTIN,

Petitioner - Appellee,

JEFFREY NINES, Acting Warden; ATTORNEY

GENERAL OF MARYLAND,

Respondents - Appellants.

_________________

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Julie R. Rubin,

District Judge. (1:20-cv-02602-JRR)

_________________

Argued: September 24, 2024

Decided: January 16, 2025

_________________

Before NIEMEYER, GREGORY, and HEYTINS,

Circuit Judges.

_________________

Affirmed by unpublished opinion. Judge Gregory

wrote the opinion, in which Judge Heytens joined.

Judge Niemeyer wrote a dissenting opinion.

_________________

ARGUED: Andrew John DiMiceli, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellants. Nicole Houston Welindt,

SKADDEN, ARPS, SLATE, MEAGHER & FLOM

LLP, Palo Alto, California, for Appellee. ON BRIEF:

Anthony G. Brown, Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF MARYLAND,

Baltimore, Maryland, for Appellants. Shay

Dvoretzky, Parker Rider-Longmaid, Sylvia O. Tsakos,

SKADDEN, ARPS, SLATE, MEAGHER & FLOM

LLP, Washington, D.C., for Appellee.

_________________

Unpublished opinions are not binding precedent in

this circuit.

GREGORY, Circuit Judge:

This case concerns the habeas petition of Charles

Brandon Martin, who is serving a life sentence for a

conviction as an accessory before the fact to murder

in the first degree. Martin challenges his conviction

based on an undisclosed computer forensics report

that substantially undermines the testimony of a key

State witness. The court below found that the

Maryland Court of Special Appeals (hereafter “state

appellate court”) engaged in an unreasonable

application of clearly established Supreme Court

precedent in finding the suppressed report to be

immaterial under Brady v. Maryland. The district

court then ordered Martin to be released within sixty

days unless retried and convicted. The State of

Maryland appealed, and this Court stayed the order

of release pending appeal on May 20, 2024.

On review, we agree with the district court’s

determination that the state appellate court

unreasonably applied clearly established Supreme

Court precedent. We also find that the conditional

release order was not an abuse of the district court’s

discretion. Accordingly, we affirm the judgment of the

district court granting habeas relief.

On October 27, 2008, Jodi Lynne Torok was found

unconscious on her foyer floor after suffering a

gunshot wound to the head. J.A. 727. At the time, she

was two months pregnant. Id. Paramedics responded

to the scene and took Torok to the hospital, where she

would eventually survive. J.A. 728. Police recovered a

.380-caliber projectile and shell casing, Torok’s cell

phone, and a Gatorade bottle from Torok’s home. J.A.

728–30. The police found the casing and projectile

near the front door, while the Gatorade bottle was “on

the other side of the couch from where [Torok] was

found.” J.A. 1331, 1344–1345. The mouth of the

Gatorade bottle was wrapped in layers of duct tape

and white medical tape in a rectangular shape, and

there was a hole in the bottom of the bottle

surrounded by black soot. J.A. 728, 740, 2958, 2961,

2964.

Prosecutors theorized that Martin was responsible

for the attempted murder, though not necessarily the

shooter himself. See J.A. 728–29. Torok testified at

trial that she had been in a relationship with Martin

and had recently informed him that she was

pregnant.1 J.A. 727. Martin had asked Torok to obtain

an abortion, but she declined, informing Martin of her

intent “to go to court and take him for child support.”

Id. Martin was married and dating two women

beyond Torok, Sheri Carter and Maggie McFadden––

both of whom are relevant in this case. See J.A. 2258–

59. The State argued that, to protect his marriage and

other relationships, Martin needed to ensure that

Torok’s pregnancy was not carried to term. See id.

The State also presented text messages that

allegedly showed Martin was attempting to confirm

Torok was at home. Martin asked Torok “What time

do you work?”, to which she responded: “I’m off.” J.A.

1394–95. An hour later, Martin messaged “Hello.”

J.A. 1396. At 5:11 PM, roughly two hours after the

shooting, Martin sent another message: “I got some

stuff with the kids to about 7:00, so any time after.

How much did you need?” J.A. 1397–98. These

messages, in the State’s view, provided clear evidence

that Martin was involved in the shooting.

However, significant evidence countered the

State’s theory of motive. For example, Torok testified

that she had been in a romantic relationship with

another man, Emmanuel Quarterly [sic], who may

have been the father. J.A. 1259. Martin had stated in

a police interview that he highly doubted he was the

father of Torok’s child because she had a boyfriend.

J.A. 2910. And even if Martin were the father, his wife

testified that she was aware of Martin’s relationships

1 Torok lost all recollection of the day of the shooting and

roughly the month thereafter, but she was able to testify to prior

events. J.A. 728.

with other women and that he had two additional

children outside of their marriage. J.A. 2190, 2210.

As the State’s theory goes, Martin, upon learning

of Torok’s refusal to obtain an abortion, solicited his

friend, Jerry Burks, to kill Torok and assisted Burks

in the murder attempt by constructing himself, or

helping Burks to construct, a silencer made from the

Gatorade bottle found at the scene. J.A. 775. The

State first tried Burks for the attempted murder, and

a jury acquitted him on all counts. J.A. 729. After

failing to secure a conviction of Burks, the State

turned to Martin, charging him with (1) soliciting

Burks to murder Torok and (2) as an accessory before

the fact to attempted murder in the first degree.

At trial, the State presented evidence from several

relevant witnesses to show both that the Gatorade

bottle was a silencer, that Martin constructed said

silencer, and that Martin intended the silencer to be

used to kill Torok. See J.A. 729–31. Several witnesses

testified to forensic evidence linking Martin to the

Gatorade bottle and shell casing found at the scene.

David Exline, a forensic analyst, testified that he

examined the medical tape from the mouth of the

Gatorade bottle and discovered two hairs on the tape:

one from a cat, the other a human. J.A. 1499–1504,

1526. Exline testified that the tape resembled tape

found in the residence of Maggie McFadden, the

location where Martin allegedly constructed the

silencer. J.A. 1499–1504.

The human hair was then analyzed by Dr. Terry

Melton, an expert in mitochondrial DNA testing. J.A.

728, 762. Dr. Melton explained that mitochondrial

DNA can show that someone is from the same

maternal lineage, but it “can never say for sure this

hair absolutely for sure came from this person.” J.A.

1815. Dr. Melton testified that she could rule out

99.94% of North Americans as contributors to that

DNA sample, but not Martin. J.A. 1833. Dr. Melton

did acknowledge on cross-examination that this left

roughly 180,000 Americans and 30,000 people in

Maryland with the same mitochondrial DNA profile.

J.A. 1945, 1947.

The State next called Anne Arundel County senior

forensic chemist, Sarah Chenoweth, to testify about

nuclear DNA testing performed on DNA found on the

mouth of the bottle. This included DNA from “at least

three individuals,” including at least one male and

one female. J.A. 1981. Chenoweth could not rule out

Martin nor Torok as contributors to the DNA

samples. J.A. 1997. She did, however, rule out three

other individuals submitted for comparison. Id.

However, the DNA was not compared to that of

alternative suspects suggested by the Defense,

including Sheri Carter, Emmanuel Quarterly [sic],

Maggie McFadden, or Michael Bradley, the brother of

McFadden. J.A. 2003.

Arnold Esposito, an expert in firearms and

ammunition, J.A. 1587, then testified to the shell

casing collected from the scene. He concluded that the

gun used in the shooting could have come from any

one of sixteen manufacturers, including Jennings.

J.A. 1596–97. Reviewing a firearms tracing report,

Esposito testified that Martin had purchased two .380

caliber Jennings firearms in 2003. J.A. 1599–1600.

The only source of testimony about Gatorade

bottles being used as silencers came from Detective

Richard Alban, who was called to testify about

discovering the bottle at the scene. While not

rendering any opinion as to whether the bottle was or

was not a silencer, Detective Alban testified that the

bottle reminded him of a makeshift silencer he’d seen

in a Steven Seagal movie. J.A. 1336. He also testified

to having watched YouTube videos in which plastic

bottles were used to produce silencers. Id. Detective

Alban acknowledged on cross that Gatorade bottles

could be used to smoke marijuana. J.A. 1345. No other

witness––expert or otherwise––testified to Detective

Alban’s speculation that a Gatorade bottle could be

used as a silencer. While another detective at the

scene testified to not smelling marijuana in the bottle,

J.A. 1625, no testing was ever done to determine

whether marijuana or gunshot residue was present

inside. J.A. 1783.

After presenting evidence that Martin’s DNA was

present on the Gatorade bottle and Detective Alban’s

view that the bottle was a silencer, the State called

two key witnesses to link Martin to the creation of

that Gatorade bottle silencer.

The State first called Michael Bradley, who

testified that he may have seen Martin and Burks

constructing the Gatorade-bottle silencer. For

background, Bradley and his sister, Maggie

McFadden, lived together with their other siblings,

Frank and Dennis, as well as McFadden’s daughter.

J.A. 2011. Bradley knew Martin because Martin had

been dating McFadden and frequently stayed over at

their home. J.A. 2008–11. Bradley had seen Martin

with a handgun in McFadden’s room in the year prior

to the shooting. J.A. 2015–16.

Bradley testified that, on the day of the shooting,

Frank, Burks, Martin, and himself were in the house

smoking marijuana. J.A. 741–42. They “smoked five

or six blunts that day,” and Bradley was admittedly

intoxicated. Id.; J.A. 2021–22. Bradley testified that

he saw (1) Frank take white medical tape to the

kitchen, (2) Martin and Frank go upstairs to

McFadden’s room, and (3) Frank come down to

retrieve a Gatorade bottle from the kitchen and

return upstairs. J.A. 2023–24. Martin and Burks then

left the house. J.A. 2025. Bradley initially testified

that when they returned, he did not see Martin and

Frank have any conversation. J.A. 2038. But after

further prodding from prosecutors, he changed his

tune, recalling seeing Martin hand Frank a brown

paper bag and instruct Frank to “get rid of this.” J.A.

2039. Bradley never testified to seeing Martin with

white medical tape or the Gatorade bottle.

On cross examination, Bradley’s testimony was

substantially impeached beyond just his intoxication.

Bradley admitted that he received immunity from

prosecution for Torok’s shooting in exchange for his

testimony. J.A. 2041. Further, Bradley received a

benefit to his pending obstruction of justice charges in

New Jersey, though it is unclear if Bradley realized

that he received any benefit. J.A. 2047, 2053, 2297.

Bradley admitted that the New Jersey charges

stemmed from lying to the police. J.A. 2046. Bradley

also admitted that he only testified because

McFadden asked him to because “she was involved”

in the attempted murder. J.A. 2043.

The second key witness, and perhaps the most

important, was Sheri Carter. Carter had been in a

relationship with Martin for three years. J.A. 2061–

62. She testified that Martin kept a computer at her

house, and that in September or October of 2008, she

saw Martin looking up gun silencers on that

computer. J.A. 731. This computer was “unique” in

that it came from Martin’s employer, the College of

Southern Maryland (“CSM”), and had many

restrictive settings. J.A. 2065–66. This included the

inability to modify system files or download new

software without an administrator password. J.A.

2066. Carter testified that Martin “got rid of” the

computer because they “had looked up so many crazy

things on the internet that in case [her] apartment got

searched he didn’t want it found there.” J.A. 731,

2066. She also testified that she had seen Martin with

a handgun in September and October 2008. J.A. 729–

730. Carter’s testimony was the only testimony at

trial linking Martin to silencers, and her testimony

was unimpeached.

The Defense presented multiple alternative

theories of the case. To begin, Martin argued that the

bottle was not a silencer but, rather, a marijuana

smoking device. Thus, the presence of Martin’s DNA

on the bottle would not mean that he had any role in

constructing the silencer, if it even was one. See J.A.

2299–2300. This theory was corroborated by the fact

that Torok’s DNA was found on the Gatorade bottle

despite Torok’s testimony that she never drank

10a

Gatorade. J.A. 1262. The state’s silencer theory failed

to explain the presence of Torok’s DNA, but the

bottle’s use as a smoking device would explain such

presence.

Martin also pointed to several others with motive

to harm Torok due to Torok’s pregnancy, including

Quarterly [sic], who was potentially the father;

McFadden and Sheri Carter, as Martin’s disgruntled

romantic partners; and Michael and Frank Bradley,

who, again, were McFadden’s brothers.

Chief among these alternate suspects was Maggie

McFadden, whose erratic and threatening behavior

toward other women in relationships with Martin

made her a particularly compelling suspect. For

example, Sheri Carter testified about volatile

interactions she had with McFadden after McFadden

learned of Carter’s relationship with Martin. J.A.

2073. Carter testified that, in 2009, McFadden called

her and asked to meet in person. J.A. 2072. During

that meeting, McFadden told Carter that “she liked to

beat people up” and “beat [Martin] up on a regular

basis.” J.A. 2074. McFadden expressed that “if people

got in her way she, you know, knew how to take care

of it.” Id. She told Carter that she “had a gun on her

and that she’d brought it for protection because she

didn’t know what [Carter] was like.” J.A. 2073. She

even bragged that “she’d had someone shot at one

point.” J.A. 2074. After this meeting, McFadden

continued to threaten Carter on social media and

made disparaging comments about her in emails to

Carter’s employer. J.A. 2087–88. Additional evidence

also pointed to McFadden’s involvement in the

shooting, as McFadden’s friend, Steve Burnette, had

11a

lied to the police about his whereabouts during the

shooting and “was never able to explain what he was

doing” that day. J.A. 2292.

The Defense’s theory that McFadden was

responsible for the shooting was consistent with other

evidence in the record that may otherwise have

pointed toward Martin. For example, the State had

presented evidence that Martin was an avid Gatorade

drinker to link Martin to the alleged silencer, J.A.

729; however, Defense counsel highlighted that any

bottle in McFadden’s home would likely have had his

DNA on it. Rather than demonstrating Martin’s guilt,

the presence of Martin’s DNA on the bottle was

entirely consistent with anyone with access to

McFadden’s home having committed the shooting.

The State’s rebuttal to the McFadden theory was

that it was far-fetched because McFadden’s volatile

and aggressive behavior would “draw attention” to

her as a suspect. J.A. 2269. In their view, it was

simply “not logical” that someone who would

“threaten people and e-mail people and send nasty

pictures to people,” and who “had someone shot” in

the past, could have been responsible for the attempt

on Torok’s life. Id.; J.A. 2074.

Finally, the Defense also criticized investigators’

sloppy handling of the case. J.A. 2292–93. For

example, the State had repeatedly “lost” pieces of

potentially exculpatory evidence. This included street

camera footage that would have showed whether

Martin had driven toward Torok’s house that day and

a recording of a police interview in which Bradley

endorsed Martin’s stated alibi, in direct conflict with

Bradley’s trial testimony. See J.A. 1634, 2295.

12a

Detectives also repeatedly failed to conduct DNA

testing on any of the alternative suspects put forward

by Martin, instead “focusing on [Martin] from the

very first day of the investigation.” J.A. 2292.

Before the case was submitted to the jury on May

4, 2010, the State dismissed all counts except

attempted first degree murder and solicitation,

dropping the lesser included offenses to attempted

murder. J.A. 317. At closing arguments, the State

emphasized the importance of Carter’s testimony in

linking Martin to the use of the Gatorade bottle as a

silencer. The Prosecution noted Carter’s credibility,

explaining that “the things that [Carter] says are very

powerful and she is someone who is very sane and

very normal but caught up in a bad situation.” J.A.

2330. They asked:

So is anyone surprised that Sheri Carter saw

the Defendant researching silencers on the

internet? Natural place to go. Is anyone

surprised that the Defendant got rid of that

computer after the police talked to him? No, it

fits precisely with the evidence.

J.A. 2262. The Prosecution used this testimony as

evidence of Martin’s “planning” of the attempted

murder, arguing the research of silencers was

evidence of his “intent to kill.” J.A. 2276. And to

demonstrate the importance of this testimony, the

Prosecution summed up its case as follows: “If you

decide that [Martin] made that silencer and that [the]

silencer was intended to be used upon the victim then

he is guilty.” J.A. 2265–66.

13a

Carter’s testimony also yielded a jury instruction

regarding the concealment of evidence. J.A. 731. The

jury was instructed as follows:

You have heard evidence that the Defendant

removed a computer from the house of Sheri

Carter. Concealment of evidence is not enough

by itself to establish guilt but may be

considered as evidence of guilt. Concealment of

evidence may be motivated by a variety of

factors, some of which are fully consistent with

innocence. You must first decide whether the

Defendant concealed any evidence in this case.

If you find that the Defendant concealed

evidence in this case then you must decide

whether that conduct shows a consciousness of

guilt.

J.A. 2913. Crucially, this instruction allowed the jury

to infer guilt from Martin’s alleged decision to get “rid

of” of the laptop due to his search history. J.A. 731.

The only basis for this instruction was Carter’s

testimony, which even the State agreed was “highly

damaging.” J.A. 2423.

The jury found Martin guilty of attempted first

degree murder but acquitted him on the solicitation

charge. J.A. 731. Martin was sentenced to life

imprisonment. J.A. 2533. Martin directly appealed to

the Maryland intermediate appellate court, and the

verdict was affirmed. J.A. 732. His petitions for

certiorari to Maryland’s highest court and the

Supreme Court of the United States were denied. Id.

14a

After his conviction, Martin’s mother sent a public

records request to the police, which yielded a neverproduced forensic computer report analyzing five

computers belonging to Martin. J.A. 732, 2879–86.

Martin filed a postconviction claim in state court

under Brady v. Maryland based on the content of this

suppressed report. J.A. 735.

The report indicated that Detective Regan

requested forensic analysis of five computers seized

from Martin’s residence, one of which was the laptop

from the College of Southern Maryland (“CSM”) with

its many restrictive settings. J.A. 2879–86. The

computers were searched for various terms including

“handgun,” “Gatorade,” “silencer,” “contract murder,”

“murder for hire,” “homemade silencer,” and

“hitman.” J.A. 732–33. For the CSM laptop and three

others, these search terms failed to return any

results. Id.; see also J.A. 2879–86. No data could be

obtained from the fifth computer. J.A. 2886.

At a postconviction hearing, Martin’s trial counsel

testified that the report would have undermined

Carter’s testimony because it showed that the CSM

laptop was never used to research silencers, as Carter

claimed. J.A. 733. Carter had testified in detail to the

CSM laptop being the one that Martin specifically

kept at her apartment, and this report directly

contradicted her devastating testimony. J.A. 484–85.

Further, the postconviction state court held that,

given that the allegedly concealed laptop was in police

custody, there is a substantial probability that the

concealment of evidence jury instruction would not

have been given. J.A. 489, 734.

15a

At the same hearing, the State called Daniel

Giambra of the Anne Arundel Police Department to

testify to a second forensic analysis of the computer.

See J.A. 2650–51. He testified that his analysis was

limited, as the hard drive failed ten minutes into his

analysis. J.A. 2661, 2666. However, based on those

ten minutes with the computer, he formed the opinion

that the computer had not been accessed since 2005,

years prior to Torok’s shooting. Id. This opinion was

based only on the system files which, as both Martin

and Carter testified, could only be modified by an

administrator. Id.; J.A. 2065–66.

On October 5, 2018, the postconviction state

circuit court ordered a new trial, finding that a Brady

violation had occurred. J.A. 734. That court

determined that law enforcement’s failure to disclose

the report was “likely willful.” J.A. 486. The report

was both exculpatory and impeaching because it

undermined Sheri Carter’s testimony and showed

that Martin did not destroy evidence. J.A. 484–86.

Because Carter’s testimony was the only link between

Martin and homemade silencers, and the only basis

for the concealment of evidence jury instruction, the

Court found the suppression of this evidence to be

material. J.A. 734. The post-conviction court also

noted that “[Maggie] McFadden had just as much of a

motive, if not more, to get rid of [ ] Torok” than Martin

did, particularly because Martin “already had . . .

several other children out of wedlock” of which his

wife was aware. J.A. 2440–41.

The state appellate court reversed, finding that

the report was not material. J.A. 726. The court

discussed the substantial evidence it considered

16a

supportive of the verdict, including the DNA evidence

on the Gatorade bottle, the similarity of the medical

tape found on the bottle and in McFadden’s home, the

testimony of Michael Bradley, the firearms analysis,

the evidence of Martin’s motive, and text messages

from Martin to the victim which the State argued

were sent to confirm the victim was home at the time

of the shooting. J.A. 739–43. While the state appellate

court acknowledged that there would have been no

basis for the concealment of evidence jury instruction

given the report, the court nonetheless concluded that

there was no reasonable probability that trial would

have yielded a different result had the report not been

hidden. Id.

Maryland’s highest court and the Supreme Court

of the United States again denied certiorari. J.A.

2893–94.

Martin filed a petition for federal habeas relief

under 28 U.S.C. § 2254. J.A. 2894. The petition was

originally filed pro se and modified twice after

attaining two sets of counsel. J.A. 2887. Martin

asserted five claims2 before the district court,

including a claim that his conviction violated Brady v.

The other claims asserted that (1) “trial counsel was

ineffective because he failed to object to compound voir dire

questions;” (2) “trial counsel was ineffective because he failed to

object to the state’s burden-shifting closing argument;” (3) “the

trial court erred when it failed to require the state to provide a

bill of particulars;” and (4) “the state denied Martin due process

when it changed its theory of the case mid-trial.” J.A. 2894.

17a

Maryland because of the suppressed forensic laptop

report. J.A. 2894.

The district court granted Martin’s petition with

respect to the Brady claim but denied all other claims.

J.A. 2888. That court found that the state appellate

court had engaged in a Brady analysis “contrary to”

clearly established federal law and “imposed an

unreasonable application of facts to the law” when it

found that the suppressed computer report was

immaterial. J.A. 2908; see also J.A. 2911. The court

then issued a conditional order of release unless

Martin was retried within sixty days and stayed its

order for thirty days pending an appeal. J.A. 2921.

The court revised and clarified this order on January

30, 2024. J.A. 2941.

The State filed a notice of appeal and sought an

emergency stay pending appeal. The stay was granted

on May 20, 2024, ECF No. 29, and argument in this

case was heard on September 24, 2024.

II.

We review de novo the district court’s grant of

habeas relief under 28 U.S.C. § 2254(d), based on the

state record. Tucker v. Ozmint, 350 F.3d 433, 438 (4th

Cir. 2003). When a state court has adjudicated a

petitioner’s claim on the merits, we apply the

standard of review set out in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”),

which provides that federal courts may grant relief if

an individual is held “in custody in violation of the

Constitution.” 28 U.S.C. § 2254. This standard is

“highly deferential,” Lindh v. Murphy, 521 U.S. 320,

333 n.7 (1997), and “intentionally difficult to meet.”

18a

Woods v. Donald, 575 U.S. 312, 316 (2015) (quotation

marks omitted).

Under AEDPA, a federal court may not grant a

writ of habeas corpus unless the state court’s

adjudication was either (1) “contrary to, or involved

an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of

the United States”; or (2) “based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d). “‘[C]learly established Federal law’ under §

2254(d)(1) is the governing legal principle or

principles set forth by the Supreme Court at the time

the state court renders its decision.” Lockyer v.

Andrade, 538 U.S. 63, 71–72 (2003).

“[A] state court’s decision is ‘contrary to’ clearly

established federal law ‘if the state court applies a

rule different from the governing law set forth in [the

Supreme Court’s] cases.’” Appleby v. Warden, N. Reg’l

Jail & Corr. Facility, 595 F.3d 532, 535 (4th Cir. 2010)

(quoting Bell v. Cone, 535 U.S[.] 685, 694 (2002)). A

state court’s decision involves an “unreasonable

application” of clearly established federal law if it

“correctly identifies the governing legal principle from

[Supreme Court] decisions but unreasonably applies

it to the facts of the particular case.” Id. at 535–36

(quoting Bell, 535 U.S. at 694). A petitioner must

show that the state courts’ application of federal law

was “so lacking in justification that there was an error

well understood and comprehended in existing law

beyond any possibility for fair minded disagreement.”

White v. Woodall, 572 U.S. 415, 419–20 (2014)

(quoting Harrington v. Richter, 562 U.S. 86, 103

19a

(2011)). These well-established standards impose a

“high bar for habeas relief.” Virginia v. LeBlanc, 582

U.S. 91, 96 (2017).

III.

“Clearly established federal law, determined in

Brady v. Maryland, . . . and its progeny, provides that

a state violates a defendant’s due process rights when

it fails to disclose to the defendant prior to trial,

‘evidence favorable to an accused . . . where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution.’” Spicer v. Roxbury Corr. Inst., 194 F.3d

547, 555 (4th Cir. 1999) (quoting Brady v. Maryland,

373 U.S. 83, 87 (1963)). Prosecutors must “disclose

[favorable] evidence . . . even though there has been

no request [for it] by the accused,” including evidence

known only to police. Strickler v. Greene, 527 U.S.

263, 280–81 (1999); see also Kyles v. Whitley, 514 U.S.

419, 438 (1995). This is because, in the American

system, the prosecutor “is the representative not of an

ordinary party to a controversy, but of a sovereignty

. . . whose interest . . . in a criminal prosecution is not

that it shall win a case, but that justice shall be done.”

U.S. v. Bagley, 473 U.S. 667, 675 n.6 (1985) (quoting

Berger v. United States, 295 U.S. 78, 88 (1935)).

While prosecutors have a “broad duty of

disclosure [,] . . . not every violation of that duty

necessarily establishes that the outcome was unjust.”

Strickler, 527 U.S. at 281. A Brady violation, thus,

has three critical elements. First, the evidence must

be “favorable to the accused, either because it is

exculpatory, or because it is impeaching.” Id. at 281–

82. Second, the evidence “must have been suppressed

20a

by the State, either willfully or inadvertently.” Id. at

282. Lastly, the withheld evidence must be “material”

in that, were it not withheld, there is “a reasonable

probability” that the jury would have reached “a

different result.” Kyles, 514 U.S. at 434.

As for materiality, “[t]he question is not whether

the defendant would more likely than not have

received a different verdict with the evidence, but

whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of

confidence.” Id. Furthermore, this inquiry “is not a

sufficiency of the evidence test[,]” and therefore “[a]

defendant need not demonstrate that after

discounting the inculpatory evidence in light of the

undisclosed evidence, there would have been enough

left to convict.” Id. at 434–35. A court commits legal

error if it rejects a Brady claim because “the

remaining evidence is sufficient to support the jury’s

conclusions.” See Strickler, 527 U.S. at 290.

IV.

The parties agree, both here and in the courts

below, that the first two Brady elements are satisfied.

See J.A. 2909; Resp. Br 7.3 As for the first element,

3 Despite conceding the first two elements in state court and

continuing to concede that the report was impeachment

evidence, the State now attempts to argue that the report is

somehow unhelpful to Martin’s defense because he could have

theoretically been researching silencers on a different computer.

See Reply Br. 14. But the State abandoned that argument before

the state appellate court and the state appellate court accepted

that concession. See JA 733 (noting that the State had

“abandoned on appeal” any argument “that the laptop

mentioned in the Computer Analysis was not the same laptop

21a

the CSM report is both impeaching and exculpatory,

both in how it undermines the testimony of Carter

and in how it shows that Martin did not conceal

evidence, where the laptop was in possession of police.

For the second element, the evidence was

undisputedly suppressed by the State. Thus, the

dispute centers on materiality: whether the report

“undermines confidence in the outcome of the trial.”

Kyles, 514 U.S. at 434.

As discussed above, the Prosecution’s basic theory

of the case was that Martin solicited Burks to murder

Torok after learning she would not obtain an abortion,

and he helped Burks in this attempted murder by

constructing or helping construct a silencer made

from a Gatorade bottle. Evidence at trial suggested

that the Gatorade bottle was a silencer and linked

Martin to the Gatorade bottle. But the only evidence

connecting Martin to his potential construction of the

Gatorade bottle for use as a silencer was Carter’s

testimony, which was severely undermined by the

forensic computer report. The question before us is

whether any reasonable jurist could have concluded

that the suppression of this report was immaterial.

The state appellate court began by correctly

summarizing the relevant Supreme Court precedent

on materiality. J.A. 738–39. But after stating the

proper rule, the Court instead applies a different rule

entirely, concluding that even without Carter’s

discussed in Ms. Carter’s testimony”). We thus conclude that the

State has forfeited any argument that Martin could have been

researching silencers on a different computer.

22a

testimony, there was still “strong evidence of

[Martin’s] guilt.” J.A. 740–43. Despite repeating its

conclusory statements that Martin “has not met his

burden of showing that . . . there is a reasonable

probability that the result of his trial would have been

different,” J.A. 743, the court’s actual analysis goes to

the sufficiency of the evidence, an approach that Kyles

squarely rejected.

In Kyles, the Supreme Court explained that “[t]he

possibility of an acquittal on a criminal charge does

not imply an insufficient evidentiary basis to convict.”

Kyles, 514 U.S. at 435. Rather, the operative question

is whether there is a reasonable probability that one

juror would have changed their mind based on the

undisclosed evidence. Id. The majority of the Court

critiqued the dissent for applying the wrong standard,

which appeared to “assume that [the petitioner] must

lose because there would still have been adequate

evidence to convict even if the favorable evidence had

been disclosed.” Id. at 435 n.8. The Court pointed to

specific examples of the dissent’s flawed analysis,

including the dissent’s statements that the

“possibility that [an individual] planted evidence ‘is

perfectly consistent’ with [petitioner’s] guilt”; “[t]he

jury could well have believed [portions of the defense

theory] and yet have condemned petitioner because it

could not believe that all four of the eyewitnesses

were similarly mistaken”; “the Brady evidence would

have left two prosecution witnesses ‘totally

untouched’”; and that “Brady evidence ‘can be

logically separated from the incriminating evidence

that would have remained unaffected.’” Id. As the

majority explained, the dissent stated the correct rule

for materiality as being a reasonable probability of a

23a

different result. However, in its listing of evidence

that supported the verdict without analyzing the

impact of the undisclosed evidence on the entire case,

the dissent applied the rule as a sufficiency of the

evidence standard. This, the majority emphasized,

was legal error. Id.

The state appellate court makes the same error as

the dissent in Kyles, resulting in an unreasonable

application of clearly established Supreme Court

precedent. See id. (“This rule is clear.”). As appellate

courts have summarized when applying this rule, we

must “both add to the weight of the evidence on the

defense side all of the undisclosed exculpatory

evidence and subtract from the weight of the evidence

on the Prosecution’s side the force and effect of all the

undisclosed impeachment evidence.” Juniper, 876

F.3d at 568 (citations omitted). In contrast to a

sufficiency of the evidence analysis, Kyles requires

courts to “exhaustively examine[] the suppressed

evidence as well as the evidence introduced at trial

. . . then carefully assess[] what purposes the

suppressed evidence might have served and how that

evidence might have affected the jury’s consideration

of the evidence that was introduced.” Boss, 263 F.3d

at 745–46. The state appellate court did no such

thing.

As the district court noted, rather than focusing on

how the removal of Carter’s testimony might have

impacted the character of the entire case, the state

appellate court focused on

the evidence it considered supportive of the

verdict, including the mitochondrial and

nuclear DNA on the Gatorade bottle, the

24a

similar characteristics of the medical tape

removed from the Gatorade bottle, the tape

found during the search of Maggie McFadden’s

home, the testimony of Michael Bradley, the

ballistic evidence showing Martin owned a gun

that could have shot the recovered shell from

the crime scene, the State’s theory that Martin

had a motive to kill the victim, and text

messages from Martin to the victim the

morning of the shooting the State argued were

sent for the purpose of confirming the victim

was home at the time of the shooting.

J.A. 2910. The state appellate court focused on the

“substantial” evidence “connecting” Martin to the

attempted murder and focused on how a jury “could

infer” a nefarious nature to Martin’s text messages.

J.A. 740–43.

However, in contravention of what the law

requires, the state appellate court never engaged with

how the lack of evidence connecting Martin to

silencers would severely weaken the Prosecution’s

case. This should have included an analysis of

whether impeaching Carter’s testimony would

weaken the then-corroborative testimony of Michael

Bradley––an admittedly intoxicated witness with

substantial bias concerns and a pending obstruction

of justice charge for lying to the police––and how such

impeachment might instill greater belief in the

Defense’s theory that the Gatorade bottle was a

smoking device, which at the time had been

substantially undermined by Carter’s testimony that

Martin was researching homemade silencers. Nor did

the court grapple with how the Prosecution relied on

25a

and emphasized Carter’s statements and reliability in

closing arguments. The state appellate court also

entirely discounted the impact of the jury instruction

regarding Martin’s concealment of evidence, despite

agreeing that it may not have been given but for

Carter’s unimpeached testimony. J.A. 743 n.14. And,

as the district court noted, the state appellate court

disregarded or misconstrued key facts supporting its

finding there was substantial evidence of Martin’s

guilt, including Torok’s admission that her unborn

child may have been fathered by Quarterly [sic], who

she was seeing at the time, and Martin’s police

interview expressing similar doubt. J.A. 2910 n.5. By

failing to consider how Carter’s statements impacted

the State’s case as a whole, the state appellate court

did not properly analyze “whether the favorable

evidence could reasonably be taken to put the whole

case in such a different light as to undermine

confidence in the verdict.” Kyles, 514 U.S. at 434.

On appeal, the State incorrectly claims that Kyles

is the wrong framework for our analysis. Rather, it

argues that the state appellate court’s opinion

properly tracks the Supreme Court’s analysis in

Strickler v. Greene. There, the Court declined to find

that evidence that impeached the testimony of an

eyewitness was material where two other

eyewitnesses also placed the defendant at the crime

scene, and the offense of conviction “did not depend on

proof” offered in that testimony. Strickler, 527 U.S. at

292–96. While the Court did list the overwhelming

amount of evidence supporting the conviction, it did

so in the context of demonstrating the strength of the

prosecution’s case, even had the witness’s testimony

been totally discredited. Id. Strickler never purported

26a

to alter the materiality analysis. To the contrary, the

Supreme Court reiterated that it would be legal error

to find undisclosed evidence immaterial on the basis

of “the remaining evidence [being] sufficient to

support the jury’s conclusions.” Id. at 290. Thus, the

State’s argument is nothing more than an attempt to

rewrite the “clear” rule established in Kyles, as was

applied in Strickler, through selective quotes taken

out of their broader context. Furthermore, Strickler’s

facts also limit its applicability to the case now before

us. As the Supreme Court explained, the remaining

evidence in Strickler would have been untouched by

impeachment of that witness’s testimony, in stark

contrast to the case now before us, where the

Prosecution’s other evidence would have been

severely weakened by any impeachment of Carter.

Further, the witness’s testimony in Strickler was not

the basis of a jury instruction, nor was it “relied upon

by the prosecution at all during its closing argument.”

Id. at 295. These facts make Strickler a poor

comparator and the State’s argument unavailing.

Clearly established Supreme Court precedent

requires a nuanced analysis of the impact of the

suppressed evidence on both sides of the case. While

the state appellate court stated the correct rule from

Kyles v. Whitley, its application was unreasonable, as

explained by the majority opinion in Kyles itself.

In conducting our analysis of whether the state

court unreasonably applied clearly established law,

AEDPA requires us to consider whether the state

court’s application was an “error . . . beyond any

possibility for fair minded disagreement.” White, 572

27a

U.S. at 419–20. To do so, “a habeas court must

determine what arguments or theories supported, or

[] could have supported, the state court’s decision; and

then it must ask whether it is possible fairminded

jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior

decision of [the Supreme] Court.” Harrington, 562

U.S. at 102. Considering all possible arguments and

theories when applying Kyles, which we have

established is the governing law, we now conclude

that all fairminded jurists would agree that the

undisclosed forensic computer report was material.

To begin, the forensic computer report was

particularly valuable impeachment evidence because

it provided the only means of undermining Carter’s

damaging testimony. As this Court has held,

impeachment evidence is more likely to be material

under Brady when it undermines evidence of an

essential element of the offense, especially when it

provides the only significant basis for impeachment of

that evidence. See United States v. Bartko, 728 F.3d

327, 339 (4th Cir. 2013); United States v. Parker, 790

F.3d 550, 558 (4th Cir. 2015). While Carter’s

testimony was not the sole evidence for an essential

element of Martin’s conviction as an accessory before

the fact to first degree murder, it was by far the

strongest. Without Carter’s testimony, the link

between Martin and the construction of the alleged

silencer is exceedingly weak. The presence of Martin’s

DNA on the Gatorade bottle is consistent with

entirely innocuous explanations, such as simply

drinking or smoking from it. And Bradley’s testimony,

the only other evidence linking Martin to the

construction of the silencer, was already significantly

28a

undermined by his own admitted intoxication, the

substantial benefit he received in exchange for his

testimony, his history of lying to the police, and his

decision to testify only at McFadden’s urging. Thus,

Carter’s testimony was crucial both for its own merit

and in its bolstering of Bradley’s testimony. Under

clearly established precedent, any reasonable jurist

would find this to weigh strongly in favor of the

suppression of the report being material.

For further evidence of the significance of Carter’s

testimony in the State’s overall case against Martin,

the Court need look no further than the Prosecution’s

closing argument. As the Supreme Court has held,

suppressed evidence is material where it impeaches a

witness whose testimony was “stress[ed]” by the

prosecution and “uncorroborated by any other

witness.” Banks, 540 U.S. at 700; see also Dennis v.

Sec’y, Penn. Dep’t of Corr., 834 F.3d 263, 298–99 (3d

Cir. 2016) (en banc) (holding that a state court

unreasonably applied Brady when it found that

suppressed evidence that would have impeached

testimony “emphasized” by the prosecution in closing

was not material). Furthermore, the statements of

prosecutors are especially probative, as “[t]he likely

damage is best understood by taking the word of the

prosecutor” in what they “contended during closing

arguments.” Kyles, 514 U.S. at 444.

Here, the Prosecution elevated Carter’s testimony

in its closing arguments, emphasizing her reliability

and noting that “the things that [Carter] says are very

powerful and she is someone who is very sane and

very normal but caught up in a bad situation.” J.A.

2330. The prosecutor also asked whether anyone was

29a

“surprised that Sheri Carter saw the Defendant

researching silencers on the internet.” J.A. 2262. The

Prosecution used this testimony as evidence of

Martin’s “planning” of the attempted murder, arguing

the research of silencers was evidence of his “intent to

kill.” J.A. 2276. The Prosecution summed up its case

as follows: “If you decide that [Martin] made [the]

silencer and that the silencer was intended to be used

upon the victim then he is guilty.” J.A. 2265–66.

Carter’s testimony played a central role in the

Prosecution’s closing argument and entire case. Any

reasonable jurist would be compelled to find that

evidence that successfully impeaches Carter’s

testimony, at the time touted by the Prosecution as

airtight, would be material.

Further, no fairminded jurist could accept the

state appellate court’s discounting of the concealment

of evidence jury instruction simply due to the

otherwise “strong evidence of [Martin’s] guilt.” J.A.

743. That instruction is impossible to square with the

suppressed impeachment evidence that contradicts

its factual basis, as the CSM report showed that

Martin neither researched homemade silencers nor

concealed evidence. As the district court correctly

noted, the instruction “permitted the jury to infer

consciousness of guilt as to all elements of the crime

from Carter’s testimony regarding destruction of the

computer,” J.A. 2913, which, again, the forensic

report reveals never happened. The removal of this

instruction alone may likely have caused one juror to

change their mind, as such a fundamental change to

the jury’s instructions “undermines confidence in the

outcome of the trial.” Kyles, 514 U.S. at 434.

30a

We also consider the broader impact that

impeaching Carter’s testimony would have had on the

entirety of each party’s case. Such impeachment

would have painted the Prosecution’s case in an

entirely different light. Cf. Kyles, 514 U.S. at 441–54;

see also Boss, 263 F.3d at 745–46. As discussed above,

Carter corroborated the testimony of an intoxicated,

admitted liar who received a substantial benefit for

his testimony, and her testimony also turned

Detective Alban’s “mere theory” seen in a movie and

on YouTube into reality. See J.A. 2912–14. As a result,

the forensic computer report, through undermining

Carter’s testimony, would have weakened the

testimony of other State witnesses.

Additionally, impeaching Carter’s testimony also

would have likely pushed the jury toward the

Defense. This Court has found that evidence exposing

“that a major prosecution witness was testifying

falsely” is “likely” to have made the jury “more

sympathetic to [the defendant’s] entire defense.”

Monroe v. Angelone, 323 F.3d 286, 315 (4th Cir. 2003).

Carter’s impeachment would have also strengthened

the Defense’s alternative explanations of the

evidence: that the Gatorade bottle was a smoking

device, not a silencer, and that Maggie McFadden was

responsible for the attempted murder. J.A. 2004,

2072–74, 2087, 2299–2300. Carter’s unimpeached

testimony cut both arguments at their knees.

First, if Defense counsel had the opportunity at

trial to use the forensic computer report to show that

Martin had not been researching homemade

silencers, it is far more plausible that a juror would

believe that the Gatorade bottle served an alternative

31a

purpose, thus explaining away Martin’s DNA being

present on the bottle. The bottle was found on the

opposite side of the couch from where Torok was shot.

J.A. 1344–45, 2955. The soot inside the bottle was

never tested for gunshot or marijuana residue. J.A.

1783. And the bottle had saliva from three

individuals, likely including Torok. J.A. 1997. The

State never had an explanation for why Torok’s saliva

would be found inside the Gatorade bottle given that

she never drank Gatorade. J.A. 1262, 1285. Martin

did have an explanation––that it was because Torok

and Martin had both used the bottle to smoke––but

this argument was significantly undercut by Carter’s

testimony about silencers.4 A juror may have rightly

4 The State argues that the district court erred in rejecting

the state appellate court’s factual finding that the Gatorade

bottle was a silencer. Pursuant to 28 U.S.C. § 2254(e)(1), “the

federal court must assume the state court’s factual

determinations are correct unless there is clear and convincing

evidence to the contrary.” Kelley v. Bohrer, 93 F.4th 749, 755 (4th

Cir. 2024).

The state appellate court wrote that “[t]he Gatorade bottle,

which the evidence indicated was used as a silencer for the gun

used to shoot the victim, was wrapped in duct tape, with white

medical tape underneath” during a discussion of the entirety of

the evidence that remained in the absence of Carter’s testimony.

J.A. 740. The State argues that this is a factual finding, and

therefore the district court was required to accept this

interpretation of the facts as binding. This is not so.

Habeas courts adopt the “best interpretation” of ambiguous

legal or factual findings by state courts. Kelley, 93 F.4th at 756.

Nothing in the court’s discussion indicates that the state

appellate court—which was sitting in an appellate posture—was

making a factual finding. Further, the materiality analysis turns

on what the jury may have concluded if the CSM report had not

32a

questioned Detective Alban’s uncorroborated silencer

theory had Carter’s testimony been impeached with

the forensic computer report.

Second, with Carter’s testimony called into

question, it becomes far more likely that at least one

juror would have had reasonable doubt as to whether

the true culprit was Maggie McFadden. McFadden,

who was also dating Martin at the time,

demonstrated extremely erratic and violent behavior.

See J.A. 2073. As the post-conviction circuit court

noted, “McFadden had just as much of a motive, if not

more, to get rid of Ms. Torok” than Martin,

particularly because Martin “already had . . . several

other children out of wedlock” of which his wife was

aware and unbothered. J.A. 2440–41. The tape on the

bottle was like that from McFadden’s house, J.A. 741,

and the gun like that seen in McFadden’s room, J.A.

2015–16. The Defense’s theory that McFadden

attempted or solicited Torok’s murder after learning

Torok was pregnant with her lover’s child is

substantially stronger in the absence of a link

between Martin and silencers. On these facts, any

reasonable jurist would find the suppressed report to

be material.

been suppressed. It would be, arguably, legally improper for the

state appellate court to have made factual findings on the

evidence while engaging in an inquiry into whether a juror may

have come to a different conclusion as to Martin’s guilt. Because

federal courts are required to give state courts “the benefit of the

doubt” and avoid finding legal errors or contradictions when

unnecessary, id. at 757, we construe the state court’s statement

as an evidentiary description and not a misapplication of law.

33a

Carter’s testimony fundamentally altered the

character of this case. It formed the entire basis for a

devastating jury instruction, bolstered the State’s

weaker witnesses, and undermined the Defense’s

theories. Applying clearly established Supreme Court

precedent to this record, no reasonable jurist could

conclude that the suppression of the forensic

computer report was immaterial. We therefore affirm

the district court’s grant of Martin’s habeas petition.

Turning now to the conditional order of release,

the State challenges the district court’s provision of

only sixty days for retrial or release. District courts

have “broad discretion in conditioning a judgment

granting habeas relief.” Hilton v. Braunskill, 481 U.S.

770, 775 (1987). Courts of appeals “review the district

court’s formulation of an appropriate habeas corpus

remedy for abuse of discretion.” Douglas v. Workman,

560 F.3d 1156, 1176 (10th Cir. 2009); see also Wolfe v.

Clarke, 718 F.3d 277, 284–85 (4th Cir. 2013). The

“award of an unconditional writ does not, in and of

itself, preclude the authorities from rearresting and

retrying a successful habeas petitioner” after the

deadline for release expires. Id. at 288–89.

The parties provide several cases to illustrate the

spectrum of relief in similar habeas cases. The State

cites to nearly a dozen cases5 where courts provided

See, e.g., Herrera v. Collins, 506 U.S. 390, 403 (1993);

Luna v. Cambra, 311 F.3d 928, 929 (9th Cir. 2002) (remanding

“with instructions to issue the writ of habeas corpus, unless

California elects, within 90 days of the issuance of the mandate,

34a

their preferred form of relief: sixty days to decide to

retry, or 120 days to complete retrial. See Opening Br.

at 64–65. These are countered by Martin’s similarly

extensive number of cases,6 in which courts provided

the same form of relief selected by the district court

here. See Resp. Br. at 61.

The State argues it is “self-evident that 60 days to

retry a decade-old complex attempted murder case

such as this is unreasonable,” Reply Br. 26. But as

conceded at oral argument, the State has provided no

to retry [petitioner],” adding that “[a]ny such retrial shall

commence within a reasonable time thereafter”); Norde v. Keane,

294 F.3d 401, 403 (2d Cir. 2002) (remanding “with instructions

to issue the writ unless within sixty days the State elects to

retry” the petitioner); Wilson v. Sec’y, Penn. Dept. of Corr., 782

F.3d 110, 117 (3d Cir. 2015) (180 days); D’Ambrosio v. Bagley,

656 F.3d 379, 385 (6th Cir. 2011) (180 days); Woods v. Dugger,

923 F.2d 1454, 1456 (11th Cir. 1991) (180 days to resentence

petitioner); accord Wansing v. Hargett, 115 Fed. Appx. 27, 31

(10th Cir. 2004) (“Allowing 120 days for a retrial is a common

practice.”).

See, e.g., Arroyo v. Jones, 685 F.2d 35, 41 (2d Cir. 1982)

(affirming district court “decision requiring the State to release

or retry [petitioner] for attempted murder within sixty days”);

Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 260 (1978)

(affirming 60-day conditional release order); Foxworth v.

Maloney, 515 F.3d 1, 2 (1st Cir. 2008) (affirming 60-day

conditional release order); Whitehead v. Wainwright, 609 F.2d

223, 224 (5th Cir. 1980) (affirming 60-day conditional release

order but remanding due to unrelated legal error); Engel v.

Buchan, 710 F.3d 698, 701 (7th Cir. 2013) (discussing 60-day

conditional release order); see also Jones v. Cunningham, 313

F.2d 347, 353 (4th Cir. 1963) (reversing denial of habeas petition

and directing district court to enter a 60-day conditional release

order to be further stayed if the State chose to appeal to the

Supreme Court).

35a

case in which a district court’s sixty-day conditional

release order was reversed as an abuse of discretion.

The State has failed to show that sixty days is so

unreasonable as to constitute an abuse of the district

court’s broad discretion, especially in light of the

many cases cited by Martin granting this exact form

of relief.

Further, the State never moved for an extension in

the district court, and this Court looks unfavorably

upon the failure to do so. See Wolfe, 718 F.3d at 287.

If it continues to maintain that sixty days is

insufficient, the State will have the opportunity to

seek an extension from the district court on remand.

Accordingly, we find that the conditional release

order was not an abuse of the district court’s

discretion.

VI.

For the foregoing reasons, the judgment is

AFFIRMED.

36a

NIEMEYER, Circuit Judge, dissenting:

A jury in Anne Arundel County, Maryland,

convicted Charles Martin of the attempted murder of

his pregnant girlfriend, allegedly because she refused

to have an abortion. The girlfriend, Jodi Torok, told

Martin that she would have the baby and sue him for

child support. Under the State’s theory, a confederate

of Martin used Martin’s .380 caliber handgun, which

had been fitted with a silencer fabricated by Martin

from a Gatorade bottle, and shot Torok in the head at

Martin’s instruction. The Gatorade bottle had been

attached to the barrel of the gun through which the

gun would fire, thus muffling its sound. Torok

narrowly survived with her life.

The critical evidence at trial linking Martin to the

assault was the Gatorade bottle, which was found in

Torok’s apartment a few feet away from her as she lay

unconscious on the floor. Its mouth was wrapped with

tape pressed into the rectangular shape of a

handgun’s barrel, and the hole in the bottom of the

bottle projected outward, as would be created by an

exiting bullet. The bottle contained DNA matching

Martin’s and, according to eyewitness testimony,

Martin participated in fabricating the silencer. The

State asked the jury to find that Martin “was involved

in the shooting of Jodi Torok because he helped make

that silencer.” And the jury so found.

After Martin was convicted, the state court

sentenced him to life imprisonment.

Martin later filed a petition in state court for

postconviction relief, arguing, among other things,

that the State committed a violation of Brady v.

Maryland, 373 U.S. 83 (1963), by failing to disclose to

37a

him a police forensic computer analysis report, which

indicated that the police had in their custody a laptop

computer registered to “CSM” (College of Southern

Maryland), where Martin was formerly employed.

The report indicated that the police searched the

laptop for incriminating evidence but found nothing

of “investigative value.” Martin claimed that this was

important because the lack of relevant evidence on

the computer contradicted the testimony of

government witness Sheri Carter, who stated that

she had seen Martin “looking up gun silencers” on a

computer that he had gotten from a former employer

and that Martin later took the computer from her

apartment and told her that “he got rid of it.” The

forensic report indicated that when an analyst

searched for the term “silencer” and other key terms

on the CSM laptop in police possession, “no data of

investigative value” was found. But the report also

showed that the laptop subject to the report had “last

shut down” on May 18, 2005, more than three years

before Torok was shot. Nonetheless, the State

conceded that the report should have been disclosed

to Martin and had not been. It argued, however, that

while the report may have provided potential

impeachment evidence, the evidence was not material

because even if Carter’s testimony had been totally

discredited, the other evidence of Martin’s culpability

was overwhelming. The state trial court, nonetheless,

agreed with Martin and granted his petition for

postconviction relief.

On the State’s appeal, the Appellate Court of

Maryland reviewed the postconviction court’s ruling

in detail and concluded that the undisclosed evidence

was not material, thus reinstating the judgment of

38a

conviction. State v. Martin, No. 3207, 2019 WL

4567473 (Md. Ct. Spec. App. Sept. 20, 2019). The

court concluded that there was no reasonable

probability that the result of the trial would have

been different had the report been disclosed. First, it

noted that the evidence indicated that the Gatorade

bottle found near Torok had been used as a silencer,

rather than as a smoking device, as Martin had

theorized. Id. at *8. Most significantly, the State

introduced the bottle itself into evidence, allowing the

jury to see how the taped circular mouth of the bottle

had been molded into the rectangular shape of a gun

barrel and that the sides of the small hole in the

bottom of the bottle projected outward, indicating

that the hole had been formed by something passing

through the bottle. And there was also the evidence

that the bottle was recovered in Torok’s apartment a

few feet from where Torok was found lying, even

though Torok’s roommate testified (1) that neither

she nor Torok drank Gatorade or kept it in the house;

(2) that she and Torok had recently cleaned the

apartment and would never have left trash lying

around; and (3) that the bottle had not been there

when she left for work that morning.

The Appellate Court of Maryland also recognized

that “the silencer/Gatorade bottle” had been “wrapped

in duct tape, with white medical tape underneath.”

Martin, 2019 WL 4567473, at *8. And on the white

medical tape, investigators recovered a human hair

fragment with a mitochondrial DNA profile that

matched Martin’s profile. Thus, as the Appellate

Court explained, Martin “was in the 0.06 percent of

North Americans who could have left [the] hair”

recovered from in between the two layers of tape that

39a

had been wrapped around the bottle’s mouth. Id. The

court also pointed to other evidence linking Martin to

the bottle that was provided by Michael Bradley’s

testimony. Bradley stated that approximately two

hours before the shooting, he saw his brother Frank

go into the kitchen of their sister Maggie McFadden’s

house while holding some white medical tape; that he

then saw Frank and Martin go upstairs to

McFadden’s bedroom; and that he then saw Frank

run downstairs for a Gatorade bottle before returning

to the bedroom, where Martin remained. See id. at *9.

In addition, the Appellate Court noted that the white

medical tape on the bottle had the exact same

characteristics as a roll of tape recovered from

McFadden’s house, such that it could have come from

that particular roll. Id. In addition, there was

Bradley’s testimony that Martin and Jerry Burks left

the house shortly before 2:00 p.m. and that when they

returned at some point later that afternoon, Martin

handed Frank Bradley a brown paper bag and told

him to “get rid of” it. Id. That testimony, in turn, gave

extra meaning to the State’s evidence that, at the time

of the shooting, Martin owned a .380 caliber semiautomatic handgun, which was made by one of the

manufacturers that could have made the .380

handgun that was used to shoot Torok, but that

Martin’s handgun was never found. Id.

After reviewing the collective import of all of this

evidence, the Maryland Appellate Court reasonably

concluded that Martin had not established that there

was “a reasonable probability that the result of his

trial would have been different” had the forensic

computer report been disclosed to him before trial.

Martin, 2019 WL 4567473, at *9.

40a

Despite the Appellate Court’s comprehensive

decision analyzing the evidence in detail, the district

court below disagreed with the state court’s

conclusion and conducted its own factual analysis.

Indeed, rather than extending to the state court’s

decision the proper deference required by 28 U.S.C. §

2254, the district court misconstrued the state

decision, reweighed the evidence in a manner that

was contrary to the record and the state court’s

reasonable assessment of it, and found that the state

court had failed to conduct a proper Brady analysis,

even though it acknowledged that the state court

correctly set forth the Brady principles. And even as

the district court cited the § 2254 restrictions on its

review of state proceedings, it nonetheless proceeded

to violate those very restrictions.

The majority now affirms, pursuing the same

erroneous course committed by the district court —

conducting a de novo review of the evidence and

making findings — rather than assessing whether the

state court decision resulted from an “extreme

malfunction” of the state judicial system such that all

“fairminded jurists” would agree “that the state

court’s decision conflicted” with Supreme Court

precedents. Harrington v. Richter, 562 U.S. 86, 102

(2011) (cleaned up). While the majority opinion

reasonably recognizes that the undisclosed forensic

computer report could have been used to impeach

Carter’s testimony — a fact that was also

acknowledged by the state court — the majority goes

on to make its own finding, contrary to the evidence,

that Carter’s testimony “was by far the strongest”

evidence inculpating Martin, disregarding the bottle.

Supra at [27a]. It also states, again making its own

41a

finding, that “Martin’s DNA on the Gatorade bottle

[was]

consistent

with

entirely

innocuous

explanations, such as simply drinking or smoking

from it,” which are inconsistent with the evidence. Id.

Resting on its own limited analysis of a few facts, the

majority affirms the district court’s grant of a new

trial. And to do so, it had to overlook the many facts

presented to the jury that the Maryland Appellate

Court recognized as directly inculpating Martin, even

without Carter’s testimony. The majority’s opinion

simply does not recognize that the bottle was the best

evidence linking Martin to the attempted murder and

that the bottle had clearly been used as a silencer.

One does not drink from or smoke with a bottle

containing layers of tape. Moreover, the tape was

multi-layered and shaped like the barrel of a .380

caliber handgun. The bottle also had a hole in its

bottom created by something like a bullet fired

through the bottle. And the bottle had Martin’s DNA

in between the layers of tape, directly indicating his

involvement in the fabrication of the bottle as a

silencer.

In short, the majority’s opinion fails to heed the

limitations imposed on it by 28 U.S.C. § 2254.

Section 2254 provides a most narrow review by

federal courts of state court criminal proceedings, well

honoring the distinct sovereignty of the States by

authorizing interference only when the state process

clearly

tramples

well-established

federal

constitutional rights. It provides that a federal court

“shall not” grant a writ of habeas corpus “unless” the

earlier State-court decision (1) “was contrary to, or

involved an unreasonable application of, clearly

42a

established Federal law, as determined by the

Supreme Court of the United States” or (2) “was based

on an unreasonable determination of the facts.” 28

U.S.C. § 2254(d). And the Supreme Court has made

emphatically clear that this standard is to be

understood as “difficult to meet.” Harrington, 562

U.S. at 102. For our system of dual sovereignty to

retain its vitality, as the Supreme Court instructs,

state courts must remain “the principal forum” in

which “constitutional challenges to state convictions”

are asserted and adjudicated. Id. at 103.

Consequently, as the Harrington Court recognized,

federal habeas review of state criminal convictions

comes at a cost, as it “frustrates both the States’

sovereign power to punish offenders and their goodfaith attempts to honor constitutional rights.” Id.

(quoting Calderon v. Thompson, 523 U.S. 538, 555–56

(1998)). Indeed, as the Supreme Court has

characterized it, a federal court’s grant of habeas

relief to a person convicted in State court “intrudes on

state sovereignty to a degree matched by few

exercises of federal judicial authority.” Id. (cleaned

up). Thus, the Court has gone to great lengths in

defining the limited circumstances for granting

habeas pursuant to § 2254.

It has explained that federal habeas relief under §

2254 is extended to state prisoners only in those

extraordinary cases where there has been an

“extreme malfunction in the state criminal justice

system.” Harrington, 562 U.S. at 102 (cleaned up). To

this end, “§ 2254(d) stops short of imposing a complete

bar on federal-court relitigation of claims already

rejected in state proceedings,” but in lieu of a total

ban, it limits federal courts’ authority to issue the writ

43a

to cases where all “fairminded jurists” would agree

“that the state court’s decision conflicts with [the

Supreme] Court’s precedents.” Id. Thus, “[a]s a

condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state

court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an

error well understood and comprehended in existing

law beyond any possibility for fairminded

disagreement.” Id. at 103 (emphasis added); see also,

e.g., Mays v. Hines, 592 U.S. 385, 391 (2021) (per

curiam) (“The term ‘unreasonable’ [in § 2254(d)]

refers not to ‘ordinary error’ or even to circumstances

where the petitioner offers ‘a strong case for relief,’

but rather to ‘extreme malfunctions in the state

criminal justice system.’ In other words, a federal

court may intrude on a State’s ‘sovereign power to

punish offenders’ only when a decision ‘was so lacking

in justification beyond any possibility for fairminded

disagreement[.]’” (cleaned up)).

The majority opinion has simply not honored these

restrictions, as it has conducted a reanalysis of some

of the facts, ignored others, and never deferred to

those reasonably considered by the state court. While

the Appellate Court of Maryland acknowledged that

the undisclosed forensic report should have been

disclosed to enable Martin to attempt to impeach

Carter’s testimony, it concluded that the Brady

violation was not material — that there was not a

reasonable probability that the outcome would have

been different even if Carter’s testimony were entirely

excluded. This was a reasoned conclusion.

44a

Moreover, for further context, it is far from clear

that the jury would have taken the undisclosed report

to prove that Carter was lying. Instead, it could have

concluded that Martin had two different computers

from the College of Southern Maryland, an older one

that was in his home and a newer one that he had

previously kept at Carter’s apartment. Or it could

have concluded that the laptop that the police

recovered was the one Carter referenced in her

testimony, but that the fact that the last dates shown

were from 2005 indicated that its more recent data

had been lost, including its data from the period

shortly before the shooting. Either way, had the

report been disclosed, it might well have had no

impact on the jury’s assessment of Carter’s

credibility.

In short, the Appellate Court of Maryland

reasonably concluded that Martin failed to establish

that there was “a reasonable probability that the

result of his trial would have been different” had the

forensic computer report been disclosed. Martin, 2019

WL 4567473, at *9. And even if that issue were

debatable, the state court’s holding still was not “so

lacking in justification that [it] was an error . . .

beyond any possibility for fairminded disagreement.”

Harrington, 562 U.S. at 103. Yet, in a decision defying

the established standards and bereft of judicial

humility, the majority concludes that “no reasonable

jurist could conclude that the suppression of the

forensic computer report was immaterial.” Supra at

[33a].

I do not agree with this assessment, and therefore

I respectfully dissent.

45a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CHARLES BRANDON

MARTIN

Petitioner

JEFFREY NINES and

THE ATTORNEY

GENERAL OF THE

STATE OF

MARYLAND

Civil Action No.

JRR-20-2602

Respondents

MEMORANDUM OPINION

Petitioner Charles Brandon Martin filed the

instant Petition For Writ of Habeas Corpus (ECF Nos.

1, 2, 21, 30; the “Petition”) against Respondents

Warden Jeffrey Nines and Maryland Attorney

General. Respondents. The Petition was originally

filed by Martin pro se. Following his engagement of

counsel, Martin’s retained counsel submitted a

supplemental petition (ECF No. 2), which concedes

that certain of Martin’s claims in his pro se Petition

were unexhausted and clarifies that Martin proceeds

on only two claims for relief. ECF No. 21. On February

19, 2021, new/substitute counsel appeared on behalf

of Martin. ECF No. 24. New counsel sought leave to

file an amended brief, which asserts five claims for

46a

relief, including the two claims in previous counsel’s

supplemental brief. ECF Nos. 25, 28. On April 19,

2021, the Court granted Martin leave to file his

amended brief, limited to the five claims raised in the

amended brief. ECF No. 29. These five claims,

detailed below, are before the Court for disposition.1

No hearing is required. See Rule 8(a), Rules

Governing Section 2254 Cases in the United States

District Courts and Local Rule 105.6 (D. Md. 2021);

see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir.

2000) (petitioner not entitled to a hearing under 28

U.S.C. § 2254(e)(2)). For the reasons that follow, the

Petition as to Claim One is GRANTED. A certificate

of appealability shall not issue on the denial of Claims

Two, Three, Four, and Five.

BACKGROUND

A. The Trial

Martin was charged on April 3, 2009, in Anne

Arundel County, Maryland, in a ten-count indictment

related to the attempted murder of Jodi Torok. ECF

No. 5-2 at 73-77. On April 24, 2009, Martin filed a

demand for a bill of particulars, seeking to find out,

inter alia, whether the state intended to prove that he

acted as a principle to the attempted first degree

murder in the first or second degree. ECF No. 5-1 at

78-80. The trial court denied Martin’s motion at a

hearing on October 14, 2009, ruling there was no

1 Pursuant to Order of April 24, 2023 (ECF No. 35), Respondents

supplemented the record with Exhibit “E” from the

postconviction hearing (ECF No. 36-1), which is discussed in

detail, infra, in connection with Martin’s Ground One for relief.

47a

authority for the proposition that the state was

required to advise the defense of its theory of the case

in advance of trial. ECF No. 5-3 at 10-27.

A jury trial was held from April 27 through May 5,

2010. The Appellate Court of Maryland summarized

the facts adduced at trial as follows:

October 27, 2008, Jodi Lynne Torok, the

victim, was found at her home in Crofton,

Maryland, with a gunshot wound to her head.

Having survived that wound, the victim

testified, at the trial below, that she had been

in a romantic relationship with Martin, who

was married to someone else, and that about

eight or nine weeks before the shooting, she

had become pregnant with his child. After the

victim informed Martin of her condition, he

angrily demanded that she obtain an abortion.

Although she had, at first, agreed to do so, she

later changed her mind and decided to have the

baby. Upon informing Martin of her change of

mind, the victim advised him of her intention

“to go to court and take him for child support.”

Predictably, that advisement led to cooling of

their relationship.

Subsequently, on the day of the shooting, at

about 3:00 pm, the victim was talking on the

phone, at her home, with a close friend, Blair

Wolfe,4 when a man, purporting to be a

salesman, knocked on her front door. She then

ended the call to respond to the “salesman,” but

thereafter never called Ms. Wolfe back or

answered any of Wolfe’s subsequent telephone

calls. Growing increasingly concerned but

48a

unable to take any action on her own,5 Ms.

Wolfe telephoned Jessica Higgs, the victim’s

roommate, and requested that she leave work

and return home to make sure that the victim

was safe. Upon arriving at the residence that

she shared with the victim, Ms. Higgs found

the front door unlocked and the victim lying on

the foyer, unconscious and bleeding from a

gunshot wound to her head. Higgs immediately

called “911.”

When the first police officer arrived at the

victim’s residence, he secured the scene. Then,

upon entering the residence, he found the

victim, Ms. Torok, “laying in the doorway,”

“fully

clothed,”

still

breathing,

but

unresponsive. There were no signs of forcible

entry or that the victim’s personal property had

been disturbed.

When paramedics arrived at the scene, they

transported the victim to the Shock Trauma

Center at the University of Maryland Hospital

in Baltimore City, where she remained for

nearly a month. As a result of the gunshot

wound, the victim’s pregnancy was terminated,

and she suffered severe and disabling injuries.

Neither during that time nor thereafter could

she recall the events that took place, from the

end of her telephone conversation with Ms.

Wolfe on October 27th until Thanksgiving, one

month later. The evidence recovered by the

police at the scene of the shooting included a

Gatorade bottle, which appeared to be

fashioned into a home-made silencer;6 a spent

49a

projectile as well as a spent shell casing; and

the victim’s Blackberry cell phone.

Gatorade bottle/silencer

From the Gatorade bottle, police evidence

technicians extracted “a human hair” of

“Negroid origin”7 and saliva from the mouth of

the bottle. DNA testing of both linked the bottle

to Martin.8

The victim testified that neither she nor Ms.

Higgs drank Gatorade, but that Martin did and

often.9 Martin’s fondness for Gatorade was

later confirmed by the officer who drove him to

the Anne Arundel police station, who testified

that, on the way to the station, he and Martin

stopped at a convenience store, where Martin

purchased a bottle of Gatorade to drink.

Granted immunity from prosecution for the

shooting and possibly for other unrelated

charges, Michael Bradley testified that, on the

day of the shooting, he; his brother, Frank

Bradley; Martin; and Jerry Burks, an

acquaintance of Martin, were together at

Maggie McFadden’s house “about noon” and

that he observed Frank Bradley carrying “some

white . . . medical tape” and a Gatorade bottle

upstairs to McFadden’s bedroom, where he was

joined by Martin. Then, according to Michael

Bradley, Martin and Burks left together,

“approximately 1:30, 2:00” p.m., and returned

after 3:00 pm. but before 6:30 pm. the same

day.10

Finally, Sheri Carter, one of Martin’s

former girlfriends,11 testified that Martin,

50a

approximately one month before the shooting,

while at her residence, used a computer to

conduct internet research on how to assemble

a home-made silencer. She further stated that,

during the first week of November 2008,

approximately one week after the shooting and

shortly after Martin had been questioned by

police, Martin took the computer from her

apartment, telling her “that [they] had looked

up so many crazy things on the internet that in

case [Carter’s] apartment got searched

[Martin] didn’t want it found there.” Martin, in

her words, then “got rid of” the computer.

Ballistic evidence

The bullet recovered by police, a .380 caliber

bullet, and the shell casing that was found,

could have been fired, according to a State’s

expert witness, from a semi—automatic

firearm. Such a firearm could have been

manufactured by any one of sixteen different

manufacturers, which was consistent with

Martin’s purchase, in 2003, of two .380 caliber

semi—automatic handguns made by Bryco

Arms, one of those sixteen manufacturers.”12

Moreover, Sheri Carter testified that, in

September and October of 2008, the time

period just before the shooting, she had

observed Martin carrying a “small, silver,

[black-handled], semi-automatic” handgun.

The firearm itself was never found. The

testimony of Michael Bradley suggested why

that was so. According to Michael Bradley,

when Martin returned to McFadden’s home the

51a

evening of the shooting, he saw Martin give a

brown paper bag to Frank Bradley and tell

Bradley to “get rid of this.”

Victim ’s cell phone

Finally, the last of the four items found at

the victim’s residence was her Blackberry cell

phone. Text messages extracted from that

phone by police confirmed that Martin had

exchanged several text messages with the

victim on the day of the shooting.13

Martin ’s statement

The day after the shooting, Martin gave a

statement to police. During the interrogation,

Martin downplayed his relationship with Ms.

Torok, the victim, telling detectives that he did

not know her last name and that he was unsure

where she lived, but he conceded that he had

previously been to her house. And, although he

was “highly doubt[ful]” that he was the father

of the Victim’s baby, since they “hadn’t had any

contact,” he admitted to police that he had

agreed to provide money to her to “help her

out.” Finally, Martin claimed that, on the day

of the shooting, he was at home with his wife

and children until mid—day and that later he

had visited “Frankie” and “Mike” Bradley, who

were friends of his, arriving at “around” 1:00

p.m., staying with them until about 4:30 p.m.,

and then returning home.

4 At other parts of the record, her name

is spelled “Blaire Wolfe.” [The

Appellate Court of Maryland] adopt[ed]

52a

the spelling used in the State’s

discovery disclosure. Ms. Wolfe did not

testify at Martin’s trial.

5 At the time of this telephone call, Ms.

Wolfe was living in Pittsburgh.

6 The mouth of the Gatorade bottle was

wrapped with two layers of tape, and at

the bottom of the bottle was a hole. The

tape exhibited a distinct, rectangular

shape, a shape suggesting that the

mouth of the bottle had been pressed

against the barrel of a semi-automatic

handgun. Furthermore, sooty residue

lined the bottle’s inside surface at the

location of the hole, indicating that that

opening at the bottom of the bottle had

been made by an exiting bullet. It

appeared, to police, to be a home-made

silencer.

Martin is an African-American male.

Martin’s mitochondrial DNA profile

was the same as that derived from the

hair strand. One of the State’s expert

witnesses testified at trial that only

about 0.06 per cent of the population of

North America shares the same

mitochondrial DNA profile as that

derived from the hair fragment found

on the Gatorade bottle.

DNA testing of a swab of saliva taken

from the mouth of the bottle revealed

that it contained “a mixture of DNA

53a

from at least three individuals,” at

least one of whom was female and

another a male. The test results

excluded “approximately 94 percent of

the Caucasian population,” as well as

“approximately 96 percent of the

African—American population,” but

among the males, who could not be

excluded, was Martin. And, among the

females, who could not be excluded,

was the victim, Jodi Torok.

9 The victim stated that Martin drank

Gatorade “a lot.”

10 “The State’s theory was that Burks

was the shooter and that he had been

solicited by Martin. Burks was tried

separately, six months before Martin’s

trial, on charges that included

attempted first- and second-degree

murder and conspiracy to commit

murder. He was acquitted by a jury on

all counts. Five days before Martin’s

trial, the State moved in limine to

“exclude from trial any evidence that

Jerold Burks was acquitted of the

charges” in that case, and, on the day

trial commenced, the court granted

that motion. Thereafter, the State nol

prossed the conspiracy charge against

Martin.

11 In addition to his wife, Martin had at

least three girlfriends with whom he

maintained intimate relations.

54a

12 The parties stipulated that, in 2004,

one of those handguns “was transferred

to another party.”

Police technicians used a device

known as a universal memory

exchanger (“UME”), that extracts the

data stored on a cell phone, including

text messages.

ECF No. 5-1 at 211-217. Before the case was

submitted to the jury on May 4, 2010, the state

dismissed all counts, except attempted first degree

murder and solicitation to commit murder. The jury

found Martin guilty of attempted first degree murder,

but not guilty of solicitation to commit murder. ECF

No. 5-10 at 4. Martin was sentenced on December 21,

2010, to life imprisonment. ECF No. 5-13 at 84.

B. Direct Appeal

Martin noted a direct appeal to the Appellate

Court of Maryland raising seven errors. Relevant to

his federal habeas petition, Martin contended that the

trial court erred by failing to provide him with a bill

of particulars and that he was denied due process

when the state changed its theory of the case midtrial. Particularly, Martin argued that he was

prejudiced by the denial of a bill of particulars

because his defense was based on an alibi that became

worthless when the state changed its theory to

accessory before the fact during the trial. ECF 5-1 No.

at 120. The Appellate Court of Maryland affirmed

Martin’s conviction on July 30, 2014. Id. at 209-259.

Martin’s petition for certiorari to the Supreme Court

of Maryland was denied on November 20, 2014. Id. at

261-275; 284.

55a

C. Postconviction Proceedings

Martin filed a pro se petition for postconviction

relief on September 18, 2015, which he amended on

October 15, 2015. Id. at 285-307. Martin’s counsel

filed a supplemental petition on January 6, 2017. Id.

at 308-334. Pertinent to these proceedings, Martin

asserted: the state suppressed a laptop computer

forensic report in violation of Brady v. Maryland, 373

U.S. 83 (1963) (ECF No. 5-1 at 329-30); trial counsel

was ineffective for failing to object to impermissible

compound voir dire questions (Id. at 323-24); trial

counsel was ineffective for failing to object to a

burden-shifting argument in the state’s closing (Id. at

327-28); and he was denied due process when the

state changed its theory of the case mid-trial. Id. at

330-331.

The postconviction court held a hearing on June

23, 2017. ECF No. 5-14. Charles Brandon Martin, his

trial counsel, Edward Stamm, and his mother, Doris

Martin testified. The state called Detective Daniel

Giambra of the Anne Arundel digital forensics unit,

who examined the laptop related to Martin’s Brady

claim. The postconviction court issued an opinion on

October 5, 2018, granting postconviction relief on

three separate issues and ordering a new trial. ECF

No. 5-1 at 372-403. The postconviction court found

that the state suppressed exculpatory and

impeaching evidence that undermined confidence in

the outcome of the trial when it failed to produce a

forensic report analyzing a laptop that was seized

from Martin’s residence. Id. at 374-79. The

postconviction court also found that Martin’s trial

counsel was ineffective for failing to object to

56a

impermissible compound voir dire questions and

failing to object to the prosecution’s burden shifting

arguments during closing statements.2 Id. at 387-90;

393-96.

The Appellate Court of Maryland granted the

state’s application for leave to appeal the

postconviction court’s order. Id. at 458-59. On

September 20, 2019, the Appellate Court of Maryland

reversed the trial court, in toto, finding that the Brady

claim failed because the evidence was not material

and the ineffective assistance of counsel claims failed

because Martin could not show deficient performance

or prejudice. Id. at 618-60. The Supreme Court of

Maryland denied Martin’s petition for certiorari on

January 24, 2020. Id. at 707. The United States

Supreme Court denied certiorari on June 1, 2020. Id.

at 708-41; Martin v. Maryland, 140 S. Ct. 2836 (2020).

D. The Federal Petition

Martin filed his federal petition on September 9,

2020. ECF No. 1. As discussed above, five claims are

before the Court: (1) the state violated Brady v.

Maryland when it suppressed the forensic laptop

report; (2) trial counsel was ineffective because he

failed to object to compound voir dire questions; (3)

trial counsel was ineffective because he failed to

object to the state’s burden-shifting closing argument;

(4) the trial court erred when it failed to require the

state to provide a bill of particulars; and (5) the state

2 The trial court also found that Martin’s trial counsel was

ineffective for failing to file a motion to challenge his sentence

before a three-judge panel but found the issue moot considering

a new trial was granted. ECF No. 5-1 at 396-97.

57a

denied Martin due process when it changed its theory

of the case mid-trial.

II. PROCEDURAL DEFAULT

Procedural default occurs when the petitioner

failed to present the claim to the highest state court

with jurisdiction to hear it, and the state courts would

now find that the petitioner cannot assert that claim.

Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001);

Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). A

procedural default also may occur where a state court

declines “to consider the merits [of a claim] on the

basis of an adequate and independent state

procedural rule.” Yeatts v. Angelone, 166 F.3d 255,

260 (4th Cir. 1999); see also Gray v. Zook, 806 F.3d

783, 798 (4th Cir. 2015) (“When a petitioner fails to

comply with state procedural rules and a state court

dismisses a claim on those grounds, the claim is

procedurally defaulted.”). As the United States Court

of Appeals for the Fourth Circuit has explained, “if a

state court clearly and expressly bases its dismissal of

a habeas petitioner’s claim on a state procedural rule,

and that procedural rule provides an independent and

adequate ground for the dismissal, the habeas

petitioner has procedurally defaulted his federal

habeas claim.” Breard, 134 F.3d at 619 (citing

Coleman, 501 U.S. at 731-32).

For a person convicted of a criminal offense in

Maryland, exhaustion may be accomplished either on

direct appeal or in post-conviction proceedings. To

exhaust a claim on direct appeal in non-capital cases,

a defendant must assert the claim in an appeal to the

Appellate Court of Maryland and then to the Supreme

Court of Maryland by way of a petition for a writ of

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certiorari. See MD. CODE ANN., CTS. & JUD. PROC. §§

12-201, 12-301. To exhaust a claim through postconviction proceedings, a defendant must assert the

claim in a petition filed in the Circuit Court in which

the inmate was convicted within 10 years of the date

of sentencing. See MD. CODE ANN., CRIM. PROC. §§ 7101–7-103. After a decision on a post-conviction

petition, further review is available through an

application for leave to appeal filed with the Appellate

Court of Maryland. Id. § 7-109. If the Appellate Court

of Maryland denies the application, there is no further

review available, and the claim is exhausted. MD.

CODE ANN., CTS. & JUD. PROC. § 12-202).

A procedural default occurs when a habeas

petitioner fails to exhaust such available state

remedies and “the court to which the petitioner would

be required to present his claims in order to meet the

exhaustion requirement would now find the claims

procedurally barred.” Breard, 134 F.3d at 619

(quoting Coleman, 501 U.S. at 735 n.1). Maryland law

does not permit a second and successive state petition

for post-conviction relief. See MD. CODE ANN., CRIM.

PROC. § 7-103(a).

Respondents contend that Martin’s Claim Five,

arguing that his due process rights were violated

because the state changed its theory mid-trial, is

procedurally defaulted. Respondents cite to language

in the Appellate Court of Maryland’s opinion on direct

appeal noting that Martin did not argue that he was

statutorily entitled to a bill of particulars on the

charges for which he was acquitted or nolle prossed,

including assault and reckless endangerment for the

proposition that Claim Five was dismissed on

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independent state grounds.3 ECF No. 31 at 50-51. The

ambiguous language cited by Respondents in the

Appellate Court of Maryland’s opinion does not

qualify as an independent and adequate state ground

sufficient to procedurally default Claim Five because

it did not “clearly and expressly” dismiss the claim on

state grounds. It appears as though the appeals court

was acknowledging that Martin was not arguing a

statutory entitlement to a bill of particulars because

the charges entitling him to same had been dropped.

In any event, the record reflects that Martin’s

federal habeas claim was raised and addressed on

direct appeal; namely that he was denied a bill of

particulars on his principle to attempted first degree

murder charge and he was denied due process

because the state changed its theory of prosecution

mid-trial. Id. at 230-242. Respondents’ argument that

this claim is unexhausted and procedurally defaulted

Respondents rely on the Appellant Court of Maryland’s

statement, “Martin does not, however, rely upon Criminal Law

§ 3-206(b) or (d) and, in fact, makes no mention of those statutory

subsections in either his initial or reply brief. Instead, his

dispute with the State’s response to his demand for a bill of

particulars focuses specifically and only on the State’s theory of

his criminal agency with respect to the attempted murder

charges. We further presume that that is because the assault

and reckless endangerment charges were nol prossed by the

State, or, as in the case of first-degree assault, subsumed into

the greater offense, attempted first-degree murder. Moreover,

the conspiracy charge was also [nolle] prossed and thus, despite

being the focal point of much of the argument below, is no longer

a part of this case. Furthermore, Martin was acquitted of the

solicitation charge, extinguishing its relevance and removing it

from further consideration.”

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is without merit; the Court will therefore address this

claim on the merits.

III. STANDARD OF REVIEW

An application for writ of habeas corpus may be

granted only for violations of the Constitution or laws

of the United States. 28 U.S.C. § 2254(a). The federal

habeas statute at 28 U.S.C. § 2254 sets forth a “highly

deferential standard for evaluating state-court

rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n.7

(1997); see also Bell v. Cone, 543 U.S. 447 (2005). The

standard is “difficult to meet,” and requires courts to

give state-court decisions the benefit of the doubt.

Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(internal quotation marks and citations omitted); see

also White v Woodall, 572 U.S.415, 419-20 (2014)

(quoting Harrington v. Richter, 562 U.S. 86, 103

(2011) (state prisoner must show state court ruling on

claim presented in federal court was “so lacking in

justification that there was an error well understood

and comprehended in existing law beyond any

possibility for fair minded disagreement”)).

A federal court may not grant a writ of habeas

corpus unless the state’s adjudication on the merits:

(1) “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established federal law, as determined by the

Supreme Court of the United States;” or (2) “resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d). A state adjudication is contrary to clearly

established federal law under § 2254(d)(1) where the

state court (1) “arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law,”

or (2) “confronts facts that are materially

indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to [the

Supreme Court].” Williams v. Taylor, 529 U.S. 362,

405 (2000).

Under the “unreasonable application” analysis

under § 2254(d)(1), a “state court’s determination that

a claim lacks merit precludes federal habeas relief so

long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington,

562 U.S. at 101 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). Thus, “an unreasonable

application of federal law is different from an

incorrect application of federal law.” Id. at 785

(internal quotation marks omitted).

Further under § 2254(d)(2), “a state-court factual

determination is not unreasonable merely because

the federal habeas court would have reached a

different conclusion in the first instance.” Wood v.

Allen, 558 U.S. 290, 301 (2010). “[E]ven if reasonable

minds reviewing the record might disagree about the

finding in question,” a federal habeas court may not

conclude that the state court decision was based on an

unreasonable determination of the facts. Id. “[A]

federal habeas court may not issue the writ simply

because [it] concludes in its independent judgment

that the relevant state-court decision applied

established federal law erroneously or incorrectly.”

Renico v. Lett, 559 U.S[.] 766, 773 (2010).

The habeas statute provides that “a determination

of a factual issue made by a State court shall be

presumed to be correct,” and the petitioner bears “the

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burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

“Where the state court conducted an evidentiary

hearing and explained its reasoning with some care,

it should be particularly difficult to establish clear

and convincing evidence of error on the state court’s

part.” Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir.

2010). This is especially true where state courts have

“resolved issues like witness credibility, which are

‘factual determinations’ for purposes of Section

2254(e)(1).” Id. at 379.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment to the Constitution

guarantees a criminal defendant the effective

assistance of counsel. Strickland v. Washington, 466

U.S. 668, 686 (1984); see also Buck v. Davis, 137 S.Ct.

759, 775 (2017). To mount a successful challenge

based on a Sixth Amendment claim of ineffective

assistance of counsel, a petitioner must satisfy the

two-pronged test set forth in Strickland, 466 U.S. at

687-88. See Williams, 529 U.S. at 390. First, the

petitioner must show that counsel’s performance was

deficient. Second, the petitioner must show that he

was prejudiced by the deficient performance.

Strickland, 466 U.S. at 687; see Buck, 137 S. Ct. at

775.

With regard to the first prong, the petitioner must

demonstrate that his attorney’s performance fell

“below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688; see Harrington, 562 U.S.

at 104. The central question is whether “an attorney’s

representation amounted to incompetence under

‘prevailing professional norms,’ not whether it

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deviated from best practices or most common custom.”

Harrington, 562 U.S. at 88 (quoting Strickland, 466

U.S. at 690). The Supreme Court recently reiterated

that the “first prong sets a high bar.” Buck, 137 S. Ct.

at 775. Notably, a “lawyer has discharged his

constitutional responsibility so long as his decisions

fall within the ‘wide range of professionally competent

assistance.’” Id. (citation omitted). The standard for

assessing such competence is “highly deferential” and

has a “strong presumption that counsel’s conduct falls

within a wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 669. Judicial

scrutiny of counsel’s performance must be “‘highly

deferential’” and not based on hindsight. Stokes v.

Stirling, 10 F.4th 236, 246 (4th Cir. 2021) (citing

Strickland, 466 U.S. at 689).

Second, the petitioner must show that his

attorney’s deficient performance “prejudiced [his]

defense.” Id. at 687. To satisfy the “prejudice prong,”

a petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Id. at 694; see also Buck, 137 S. Ct. at 776.

“A reasonable probability is a probability sufficient to

undermine confidence in the outcome” of the

proceedings. Strickland, 466 U.S. at 687. A strong

presumption of adequacy attaches to counsel’s

conduct, so strong in fact that a petitioner alleging

ineffective assistance of counsel must show that the

proceeding was rendered fundamentally unfair by

counsel’s affirmative omissions or errors. Id. at 696.

Thus, “[a] fair assessment of attorney performance

requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the

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circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time.” Id. at 689. A petitioner is not entitled to postconviction relief based on prejudice where the record

establishes that it is “not reasonably likely that [the

alleged error] would have made any difference in light

of all the other evidence of guilt.” Berghuis v.

Thompkins, 560 U.S. 370, 390 (2010).

In evaluating whether the petitioner has satisfied

the two-pronged test set forth in Strickland, a court

“need not determine whether counsel’s performance

was deficient before examining the prejudice suffered

by the defendant as a result of the alleged

deficiencies.” Strickland, 466 U.S. at 697. Nor must a

court address both components if one is dispositive.

Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015).

This is because failure to satisfy either prong is fatal

to a petitioner’s claim. As a result, “there is no reason

for a court . . . to address both components of the

inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697.

V. ANALYSIS

A. Claim One- Violation of Brady v. Maryland

The state’s theory at trial was that Martin was an

accessory before the fact because he made or assisted

in making a homemade gun silencer out of a Gatorade

bottle that was used in the attempted murder of Jodi

Torok. To prove its theory, the state offered testimony

regarding law enforcement’s discovery of the

Gatorade bottle, lay testimony tying Martin to the

fashioning of the Gatorade bottle as a silencer, and

expert ballistics, DNA, and forensics testimony.

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Sergeant Richard Alban testified that he

discovered the Gatorade bottle at the crime scene

near the couch. ECF No. 5-5 at 125-26. When the

prosecutor asked Detective Alban what the bottle

reminded him of, he responded:

It -- in watching movies -- I like action movies and I have seen a movie where Steven Seagal

— I hate to—my wife would kill me for saying

this—but had a bottle. He used a two-liter

plastic bottle that he attached to the end of a

weapon and he fired a projectile through it in

order to—he was going around stealth. He was

not trying to get caught by — there was a

bunch of bad guys looking for him and he used

the two-liter bottle to deaden the noise of the -of his weapon being fired, and I also saw stuff

on YouTube where they show you how to make

silencers out of plastic bottles and other items.

Id. at 128.

On cross, defense counsel asked Sergeant Alban

whether he was aware that Gatorade bottles could be

used as marijuana bongs, and he acknowledged that

it would not surprise him that a Google search on

creating one would render 300,000 hits. Id. at 137.

Detective Alban was the first witness at trial to

suggest that the Gatorade bottle was a homemade

silencer. No expert witness was called by the state to

substantiate Alban’s theory or confirm the possibility

that the bottle could have been used in such a

manner.

Anne Arundel County crime scene technician

Rebecca Caliendo testified that she removed and

examined duct tape from the mouth of the Gatorade

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bottle. ECF No. 5-1 at 173-174. She conducted no

testing on the bottle or the tape, including testing for

gunshot residue or marijuana. Id. at 178. She did see

something on the tape that appeared to be hair or

fiber. Id. at 179. Anne Arundel crime scene technician

Craig Robinson removed white tape from the

Gatorade bottle and submitted it to David Exline at

the RJ Lee Group lab for trace analysis. ECF No. 5-6

at 9-10. Robinson did not test the bottle for gunshot

residue or marijuana. Id. at 28-29. Oral swabs, which

were taken from Martin by Kimberly Morisette, were

sent to RJ Lee Group and Mitotyping Technologies for

analysis. Id. at 19; 64-67.

David Exline of RJ Lee Group testified as an

expert in forensic examination. Id. at 72. He received

two pieces of white medical tape on November 7, 2008.

Id. at 84. Three fibrous trace materials were removed

from the tape. Id. at 84. One was animal hair and one

was human hair. Id. at 85-86. The human hair, 4

millimeters long, was transferred to Mitotyping

Technologies for mitochondrial DNA testing on March

21, 2009. Id. at 91. Exline testified that the white tape

found on the mouth of the Gatorade bottle had similar

characteristics to the white tape located during

execution of the search warrant of 2572 Interchrist

[sic] Place, Waldorf Maryland (Maggie McFarland’s

[sic] residence). Id. at 97-101; ECF No. 5-6 at 129-130.

Crime scene technician Jay Potter collected the white

tape from a dresser drawer in a second-floor bedroom.

Id.

Dr. Terry Melton of Mitotyping Technologies

testified about the mitochondrial DNA testing that

was performed on the hair received from RJ Lee

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Group collected from the white medical tape. ECF No.

5-7 at 78-120; ECF No. 5-8 at 14-45. Dr. Melton was

qualified as an expert in mitochondrial DNA and

explained that nuclear DNA is found in the center of

the cell and contains genetic information from both

parents, whereas mitochondrial DNA is found outside

of the nucleus of the cell and only contains genetic

information from the maternal line. Id. at 94-96. Dr.

Melton further explained, “when we say we have a

mitochondrial DNA test going on we’re looking to see

if that person could have left that sample, but we can

never say for sure they did leave that sample.” Id. at

97.

Dr. Melton testified that she received the hair

fragment and the saliva swab from Martin and was

able to develop a mitochondrial DNA profile on both

samples. Id. at 108-113. Dr. Melton concluded that

the profiles were the same, meaning that Martin and

his maternal relatives could not be excluded as the

contributors of the hair located on the white medical

tape. Id. at 113. Dr. Melton further added that 99.94%

of North Americans would not have the mitochondrial

DNA profile found in the samples. Id. at 114. On

cross-examination, Dr. Melton acknowledged that

180,000 people in the United States would have the

same profile and 30,000 people in Maryland. Id. at 2425.

Anne Arundel County senior forensic chemist,

Sarah Chenowith, testified about the nuclear DNA

testing performed on the saliva found on the mouth of

the Gatorade bottle. ECF No. 5-8 at 45-83. Chenowith

found a DNA mixture on the mouth of the bottle that

was from three individuals, including one female and

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one male. Id. at 59. Chenowith testified that she could

not rule out Martin as a contributor to the DNA on

the bottle, but neither could she rule out the victim as

a contributor. Id. at 73-75. She was, however, able to

rule out five other individuals whose DNA was

submitted for comparison. Id. at 75;80.

Arnold Esposito, an expert in firearms,

ammunition, and toolmark identification, testified

that he examined the shell casing collected from the

crime scene. ECF No. 5-6 at 181-215. He concluded

that the gun that fired the bullet could have come

from sixteen different manufacturers, one of which

was a .380 caliber Jennings. Id. at 194, 198. Esposito

testified that Martin purchased two .380 Jennings

firearms on March 14, 2003. Id. at 197-198.

Michael William Bradley testified that he knew

Martin because Martin dated his sister Maggie

McFadden. ECF No. 5-8 at 86-87. Bradley lived at

Maggie’s house with his brother, Frank Bradley, and

Maggie’s daughter, Nanna McFadden. Id. at 89.

Bradley testified that in October of 2008, Martin

frequently visited and stayed over at the house. Id. at

89. Around the fall of 2008, Bradley testified that he

saw Martin with a handgun in Maggie’s room. Id. at

91-96. Bradley testified that, the day of the shooting,

he saw Martin enter the residence around noon,

followed by Jerry Burks; and that Frank was in the

house drinking somewhere. Id. at 97-99.

Bradley testified that they all sat around smoking

marijuana; that Frank, Jerry Burks, and Martin were

in the house; and that he saw Jerry and Martin in the

kitchen rolling blunts. Id. at 100. They smoked five or

six blunts that day; “[w]e just kept smoking and

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smoking.” Id. He also testified that he saw Frank

come down the steps with white medical tape, and

that he saw Frank and Brandon go upstairs to

Maggie’s room; and then saw Frank run back upstairs

with a Gatorade bottle. Id. at 100-101. When he saw

Frank with the Gatorade bottle, Martin was in

Maggie’s room and Frank went into Maggie’s room

with the bottle. Id. Bradley further testified that

later, Burks and Martin left, and when they returned,

Bradley saw Martin hand Burks a brown paper bag

and said, “get rid of this.” Id. at 116-117. Bradley

never testified that he saw Martin with either the

white medical tape or the Gatorade bottle.

On cross-examination Bradley admitted that he

received an immunity agreement from the State of

Maryland in exchange for his testimony. Id. at 117.

The agreement dropped his fugitive from justice

warrant and immunized him from any criminal

liability in connection with Jodi Torok’s attempted

murder. Id. at 118-119. While it is unclear from

Bradley’s testimony whether he understood this term,

the agreement provided a benefit to Bradley on

pending obstruction of justice charges in New Jersey.

Id. at 127-135. Bradley also admitted on crossexamination that he pled guilty to obstruction of

justice because he lied to the police. Id. at 123.

Sherri Carter testified that she engaged in an

intimate relationship with Martin for three years,

starting in December of 2005, and that she never

knew Martin was married. Id. at 140-42. Carter

testified further that Martin kept a computer at her

house while they were dating and that she saw

Martin looking up gun silencers on the computer

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around the end of September, beginning of October in

2008. Id. Carter described the interaction as follows:

We were at -- I think we were watching

Law and Order on TV and we had a

conversation about how they were illegal

and only policemen were allowed to buy

them, and I remember it because I didn’t

know that at the time.

Did you ask him why he was looking at

silencers?

No.

What was his reaction when you asked

him about what he was looking at on the

internet that day?

He didn’t like it when I looked over his

shoulder and looked at what he was

looking up online and generally he

would tell me kind of like to stop looking

over what he was doing.

Do you still have the computer that he

was using that day to look at silencers on

the internet?

No.

Was that

computer?

It was his computer.

Did you ever use it?

Yes.

What was unique about that computer?

his

computer

your

71a

It was — he told me that he had got it

from a place that he used to work and we

didn’t have administrative rights so you

couldn’t make any changes to the

computer because we didn’t have the

password log in. So you couldn’t

download anything, you couldn’t

basically alter the computer.

What happened to that computer?

He took it from my apartment.

Did you ask him about that?

Yes. He said that we had looked up so

many crazy things on the internet that

in case my apartment got searched he

didn’t want it found there.

Did he say what he did with it?

He said he got rid of it.

When was this?

It was the first week in November 2008.

Id. at 143-144.

Physical evidence presented at trial tied Martin to

the Gatorade bottle; however, the only trial evidence

that established that Martin intended to fashion a

Gatorade bottle into a homemade silencer was Sherri

Carter’s internet search testimony. Carter’s

testimony is the only evidence suggesting that the

Gatorade bottle was, in fact, used as homemade

silencer in the attempted murder of Jodi Torok.

After Martin’s conviction for attempted first

degree murder based on accessory before the fact, his

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mother, Dorris Martin, sent a public records request

to the police for their entire file. ECF No. 5-14 at 8384. The request yielded a never produced computer

forensics report. ECF No. 36-1. Martin based his

postconviction Brady v. Maryland claim on the

content of this document.

At the postconviction hearing, held on June 23,

2017, Charles Brandon Martin testified that his

former employer, the College of Southern Maryland

(CSM), gave him one laptop, and that during the time

he knew Sherri Carter, he used it. ECF No. 5-14 at

98-99. Martin testified further that he never saw the

computer forensic report received in the public record

request before trial. Id. The report was entered in

evidence as Exhibit “E.”

Exhibit “E” shows that lead investigator Detective

Mike Regan requested forensic analysis of five

computers seized from Martin’s residence. Detective

J.M. Knisley conducted the analysis and prepared the

report. Of the five computers seized, three were

desktops and two were laptops. ECF No. 36-1. A

Gateway laptop was examined, showing the

registered owner as “CSM” and the last login of May

19, 2005. Id. at 5-6. The report indicates analysis

yielded negative results for the following search

terms: “handgun,” “Gatorade,” “silencer,” “contract

murder,” “murder for hire,” “homemade silencer,” and

“hitman.”4

Other search terms, whose relevance is not immediately

apparent, were also negative. Term searches were run on four of

the computers, including the Gateway laptop. It is unclear why

a term search was not conducted on the Dell laptop. The report

73a

Trial counsel, Leonard Stamm, testified at the

hearing that he compared the search warrant

inventory and confirmed that a Gateway laptop had

been seized from Martin’s house. Id. at 40-41. Stamm

testified further that the forensic report indicates that

the laptop was owned by CSM. Sheri Carter testified

that Martin used a CSM laptop to research use of a

Gatorade bottle as a silencer. Id. at 42-43. Stamm

testified that the computer forensic report would have

undermined Sheri Carter’s testimony because it

shows that the CSM laptop was never used to

research using a Gatorade bottle as a silencer. Id. at

42. Stamm also testified that if the computer analysis

report had been produced, he would have had grounds

to object to the state’s jury instruction about

concealment of evidence suggesting consciousness of

guilt. Id. at 43-44.

The state called Daniel Giambra of the Anne

Arundel police department digital forensics unit to

testify. Id. at 109-164. Giambra was contacted one

week before the hearing to conduct a second forensic

analysis of the computer and produce a report. Id. at

118,121; ECF No. 5-1 at 358-360. No evidence was

introduced as to why the state did not call the author

of Exhibit “E,” Detective J.M. Knisley, or why a

second analysis of the computer had any bearing on

the state’s failure to produce Exhibit “E” prior to trial.

The hard drive of the computer failed ten minutes into

Giambra’s analysis. ECF No. 5-14. In the ten minutes

he was able to analyze the computer, he determined

indicates that the data on the Dell laptop had “no investigative

value.” ECF No. 36-1 at 8.

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that the hard drive was last accessed on May 19, 2005.

Id. at 122. Giambra testified that, in his opinion, the

computer was not used in 2008. Id. at 125.

No evidence was introduced at the hearing

regarding why the original forensic report was not

produced to the defense (Exhibit “E”). During

argument following testimony, the state’s attorney

advised the postconviction judge that Detective

Regan asked that the report be created, but never

turned the report over to the prosecution. Id. at 18889.

The postconviction court issued an opinion on

October 5, 2018, ECF No. 5-1 at 372-403, finding that

a Brady violation had occurred, concluding that the

evidence was both exculpatory and impeaching

because it undermined Sheri Carter’s testimony and

showed that Martin did not destroy evidence. Id. at

377-379. The postconviction court determined that

the state conceded the evidence was suppressed and

the suppression was likely “willful.” Id. at 379-81. The

postconviction court also found there was a

reasonable probability of a different outcome had the

evidence been produced. Id. at 381-383. The opinion

discussed the impact of Carter’s testimony,

acknowledging that she was the only witness that saw

Martin researching homemade gun silencers.

Reasoning that materiality of the suppressed

document was based on the fact that the essential link

between Martin and the victim was the silencer, the

opinion quotes from the state’s closing argument: “If

you decide that [Martin] made that silencer and that

silencer was intended to be used upon the victim then

he is guilty.” Id. at 382-83. The postconviction court

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also concluded there would have been no jury

instruction on concealment of evidence had the

forensic report been produced. Id. at 382.

The postconviction court ordered a new trial based

on the Brady violation. Id. at 403. The Appellate

Court of Maryland reversed the postconviction court

and reinstated Martin’s conviction. As discussed

below, however, the Appellate Court of Maryland

employed a Brady analysis contrary to applicable

federal law and, in the opinion of the court, imposed

an unreasonable application of the facts to the law.

Brady v. Maryland instructs, “the suppression by

the prosecution of evidence favorable to an accused”

violates due process where the evidence is “material

either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 373 U.S.

83, 87 (1963). For a court to find a Brady violation, it

must determine that the evidence was 1) favorable to

the accused, 2) suppressed by the prosecution (either

willfully or inadvertently), and 3) material. Banks v.

Dretke, 540 U.S. 668, 691 (2004). Evidence that is

favorable to the accused includes both exculpatory

(whether requested by defendant or not) and

impeachment evidence. Id.; see United States v.

Bagley, 473 U.S. 667, 676 (1985) (holding that the

Brady rule includes impeachment evidence).

The touchstone of materiality is a “concern that

the suppressed evidence might have affected the

outcome of the trial.” United States v. Agurs, 427 U.S.

97, 104 (1976). Accordingly, an individual alleging a

Brady violation must demonstrate that “there is a

reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding

76a

would have been different.” United States v. Bagley,

473 U.S. 667, 682 (1985). Although this analysis can

entail an examination of the nature and strength of

the prosecution’s case, the materiality test is not an

evaluation of the sufficiency of the non-suppressed

evidence; nor does it require the defendant to prove,

by a preponderance of the evidence, that he would

have been acquitted if the suppressed evidence had

been disclosed. See Kyles v. Whitley, 514 U.S. 419,

434-35 (1995). The materiality inquiry is not just a

matter of determining whether, after discounting the

inculpatory evidence in light of the undisclosed

evidence, the remaining evidence is sufficient to

support the jury’s conclusions. Rather, the question is

whether “the favorable evidence could reasonably be

taken to put the whole case in such a different light

as to undermine confidence in the verdict.” Strickler

v. Greene, 527 U.S. 263, 290 (1999), quoting Kyles, 514

U.S. at 435.

On appeal, the State conceded, and the Appellate

Court of Maryland agreed, the information in the

suppressed computer forensic report was favorable to

Martin because it could have been used to impeach

Ms. Carter’s testimony that Martin used the

computer to search for information regarding gun

silencers. ECF No. 5-1 at 630.

The Appellate Court of Maryland discussed the

evidence it considered supportive of the verdict,

including the mitochondrial and nuclear DNA on the

Gatorade bottle, the similar characteristics of the

medical tape removed from the Gatorade bottle, the

tape found during the search of Maggie McFadden’s

home, the testimony of Michael Bradley, the ballistic

77a

evidence showing Martin owned a gun that could have

shot the recovered shell from the crime scene, the

state’s theory that Martin had a motive to kill the

victim,5 and text messages from Martin to the victim

the morning of the shooting the state argued were

sent for the purpose of confirming the victim was

home at the time of the shooting.

As an initial matter, the Court notes that the

Appellate Court of Maryland’s recitation of Michael

Bradley’s testimony, by clear and convicting [sic]

evidence, is inconsistent with his trial testimony:

He saw [Martin] and his brother, Frank

Bradley, going back and forth between Ms.

McFadden’s room and the kitchen with white

medical tape and a Gatorade bottle.

ECF No. 5-1 at 634. The trial record reflects that

Michael Bradley did not testify he saw Martin with

white medical tape or a Gatorade bottle. Bradley

Worth mentioning is the Appellate Court of Maryland’s

omission of relevant facts related to the state’s theory of motive.

On both direct appeal and postconviction appeal, the court

placed weight on the state’s theory that Martin had a motive to

kill Torok because she was carrying his child and refused to have

an abortion. However, in both opinions, the Appellate Court of

Maryland omitted to mention that Jodi Torok testified on crossexamination that the child may have been fathered by another

man she was seeing at the time, Emmanuel Quartley [sic]. ECF

No. 5-5 at 51. Quartley [sic] also testified at trial that he was in

a romantic relationship with Torok, they had unprotected sex,

and he was aware the child may have been his. Id. at 113-114.

During the police interview played for the jury, Martin stated

that Torok mentioned the pregnancy to him but he “highly

doubted” that he was the father because she had a boyfriend, and

denying they had any “contact.” ECF No. 5-6 at 162.

78a

testified that Martin was in an upstairs bedroom

when he saw Frank Bradley go up and down the stairs

with the tape and the bottle. ECF No. 5-8 at 101.

Despite the Supreme Court’s direction to the

contrary, the Appellate Court of Maryland did not

engage in a proper sufficiency of the evidence inquiry

and did not consider the elements of the crime in

assessing materiality. The Appellate Court of

Maryland did not consider how the computer forensic

report placed the facts of the case in a different light,

which had the effect of undermining confidence in the

verdict, particularly given the prosecution’s burden of

proof for accessory before the fact to first degree

murder. Notably, the Appellate Court of Maryland

found materiality by making an overly broad

conclusion that Martin was “connected” to the

attempted murder:

Given all the evidence connecting [Martin] to

the attempted murder, [Martin] has not met

his burden of showing that, had the Computer

Analysis been provided to [Martin], there is a

reasonable probability that the result of his

trial would have been different.

ECF No. 5-1 at 636.

“In order to determine the aggregate effect of the

withheld evidence, the court must both add to the

weight of the evidence on the defense side all of the

undisclosed exculpatory evidence and subtract from

the weight of the evidence on the prosecution’s side

the force and effect of all the undisclosed

impeachment evidence.” Juniper v. Zook, 876 F.3d

551, 568 (4th Cir. 2017) (internal citations omitted)

(emphasis in original). The Appellate Court of

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Maryland neglected to properly subtract the force and

effect of Carter’s testimony from the prosecution’s

case in considering the elements of accessory before

the fact to attempted first degree murder.

To find Martin guilty, his jury was instructed:

The Defendant is charged with being an

accessory before the fact to the crimes of

attempted first-degree murder, attempted

second-degree murder, and first-degree

assault. In order to convict the Defendant the

State must prove that the crimes of attempted

first-degree, attempted second-degree murder,

or first-degree assault were committed by

another, and that before the attempted firstdegree murder, attempted second-degree

murder, or first-degree assault were committed

the

Defendant

aided,

counseled,

commanded,

encouraged

the

commission of the crime with the intent to

make the crime succeed.

ECF No. 5-9 at 27-28 (emphasis added).

“In general, evidence whose function is

impeachment may be considered to be material where

the witness in question supplied the only evidence

linking the defendant to the crime. Likewise, we may

find impeaching evidence to be material where the

witness supplied the only evidence of an essential

element of the offense. This is especially true where

the undisclosed matter would have provided the only

significant basis for impeachment. United States v.

Bartko, 728 F.3d 327, 339 (4th Cir. 2013) (internal

citations omitted); see also United States v. Parker,

790 F.3d 550, 558 (4th Cir. 2015) (internal citations

80a

omitted). In contrast, impeachment evidence is not

material if it is ‘cumulative of evidence of bias or

partiality already presented and thus would have

provided only marginal additional support for the

defense.’” Id.

While the DNA evidence places Martin in physical

contact with the bottle, it does not establish that the

bottle was used as a silencer or that Martin intended

for the bottle to be used as a silencer in the attempted

murder of Jodi Torok. Indeed, there are various noninculpatory explanations for the presence of DNA

from Martin, the victim, and an animal on the

Gatorade bottle.

The trial evidence, other than Carter’s testimony,

that potentially tied Martin to creation of the

homemade silencer was Michael Bradley’s testimony

that he saw Frank Bradley going up and down the

stairs with a Gatorade bottle and medical tape, and in

and out of a bedroom where Martin was located.

Bradley’s testimony, contrary to the recitation of facts

in the Appellate Court of Maryland’s opinion, never

places the bottle or tape in Martin’s possession and is

extremely tenuous. Michael Bradley was admittedly

intoxicated when he witnessed these events and

received a substantial benefit in exchange for his

testimony.

The Appellate Court of Maryland acknowledged in

footnote fourteen of its opinion that the jury

instruction regarding concealment of evidence likely

would not have been given had the computer forensic

report not been suppressed. ECF No. 5-1 at 636. The

jury was instructed:

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You have heard evidence that the Defendant

removed a computer from the house of Sheri

Carter. Concealment of evidence is not enough

by itself to establish guilt but may be

considered as evidence of guilt. Concealment of

evidence may be motivated by a variety of

factors, some of which are fully consistent with

innocence. You must first decide whether the

Defendant concealed any evidence in this case.

If you find that the Defendant concealed

evidence in this case then you must decide

whether that conduct shows a consciousness of

guilt.

ECF 5-9 at 23. The Appellate Court of Maryland,

consistent with the remainder of the opinion, found

the jury instruction to be without impact because of

“the strong evidence of [Martin]’s guilt.” Id. This jury

instruction, however, permitted the jury to infer

consciousness of guilt as to all elements of the crime

from Carter’s testimony regarding destruction of the

computer.

Reasonable minds would not disagree that the

state’s burden of proof relied on evidence that that

Martin

“aided,

counseled,

commanded,

encouraged” the attempted murder of Jodi Torek [sic]

by creating the homemade silencer. Absent Carter’s

testimony, the state cannot prove this element of the

crime. The state’s burden of proof also included

evidence that Martin had “intent to make the crime

succeed.” Absent Carter’s testimony that Martin

endeavored to create the silencer by researching how

to do so on the internet, the state cannot meet this

element of the crime. Without Carter’s testimony, the

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jury would not have been instructed that there was

evidence Martin concealed evidence and that such

concealment may be viewed as consciousness of guilt.

Carter’s testimony substantiated a mere theory

from Detective Alban based on a Steven Seagal movie

that a Gatorade bottle found in the victim’s home was

a homemade silencer. Without Carter’s testimony, the

Gatorade bottle is simply a Gatorade bottle, and the

presence of Martin’s DNA is completely innocuous. In

the opinion of the Court, that Martin may have had

motive and means because he owned one of sixteen

possible types of weapons used in the shooting would

not have been sufficient to carry the state’s burden.

Carter’s testimony was the only evidence that

established a silencer was used, that it was fashioned

from a Gatorade bottle, and that Martin “aided,

counseled, commanded, or encouraged” the act, and

“intended the crime to succeed.”

The state’s only evidence to meet its burden of

proof as to the essential elements was Carter’s

testimony, which was dramatically discredited and

undermined by the suppressed document. Further,

the suppressed document provided the only basis for

impeachment of Carter’s testimony. Reasonable

jurists would not disagree, therefore, that the

suppressed computer forensic report was material.

Martin is entitled to habeas relief on Ground One.

Claim Two-Ineffective Assistance of

Counsel/Compound Voir Dire Questions

In Claim Two, Martin contends that his trial

counsel was ineffective for failing to object to

inappropriate compound voir dire questions:

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(1) “There will be testimony in this case

regarding interracial dating. Is there any

prospective juror who has such strong feelings

against interracial dating that, that juror

would not be able to render a fair and impartial

verdict in this case?” There were no positive

responses to the question.

(2) “Have you or any member of your family or

close friend(s) ever been associated with, or in

any way, involved with a group or organization

whose mission is to abolish legalized abortion?

Does any member of the jury hold such strong

views about abortion that if there is evidence in

the case about abortion, you could not be fair

and impartial?” There were no positive

responses to the question.

ECF No. 5-4 at 73; 90. Martin argues, as he did in his

postconviction petition, that the questions violated

Dingle v. State, 361 Md. 1 (2000), which prohibits

questions that require the prospective jurors to

evaluate their own bias. The trial court agreed with

Martin and granted postconviction relief on this claim

(ECF No. 5-1 at 387-390), which was reversed by the

Appellate Court of Maryland (Id. at 636-45). Upon

review of the applicable precedent, the Court finds

that the Appellate Court of Maryland’s conclusion

was neither contrary to, nor an unreasonable

application of, federal law.

The law on compound jury selection questions

evolved over a 14-year period in Maryland, starting

with Dingle v. State and concluding in 2014 with

Pearson v. State, 437 Md. 350 (2014). In Dingle, the

Appellate Court of Maryland held that the trial court

84a

erred when it asked several two-part questions

concerning whether jurors had certain experiences or

associations, and, if so, whether those experiences

and associations would affect their ability to be fair

and impartial. Dingle, 361 Md. at 8-9. The Dingle

court found the questions objectionable because it

“endorses a voir dire process that allows, if not

requires, the individual voir dire venire person to

decide his or her ability to be fair and impartial...the

procedure...shifts from the trial judge to the venire

the responsibility to decide juror bias.” Id. at 21.

Although the Appellate Court of Maryland rejects

voir dire questions that call upon jurors to find and

evaluate their own biases, in 2002 it approved the

phrasing of a self-assessment question in State v.

Thomas, 369 Md. 202 (2002). The issue on appeal in

Thomas was whether the trial court erred in refusing

to ask: “Does any member of the jury panel have such

strong feelings regarding violations of the narcotics

laws that it would be difficult for you to fairly and

impartially weigh the facts at trial where narcotics

violations have been alleged?” The Appellate Court of

Maryland found the trial court erred by not

permitting the question. Following Thomas, “[as] of

May 10, 2002...the state of the law appeared to be that

Dingle did not apply to a ‘strong feelings’ compound

question.” State v. Davis, 249 Md. App. at 226.

Following Thomas, Maryland appellate courts

affirmed similar two-part questions in Sweet v. State,

371 Md. 1 (2002) (“Do the charges stir up strong

emotional feelings in you that would affect your

ability to be fair and impartial in this case?”); Baker

v. State, 157 Md. App. 600 (2004) (“Do you have any

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bias or prejudice concerning handguns which would

prevent you from fairly weighing the evidence in this

case?”); Singfield v. State, 172 Md. App. 168 (2006)

(“Does any member of the jury panel feel that the

nature of this case would make it difficult or

impossible for you to render a fair and impartial

verdict, specifically because this case involves murder

with a handgun?”); and State v. Shim, 418 Md. 37

(2011) (“Does any member of the jury have such

strong feelings about [the charges] that it would be

difficult for you to fairly and impartially weigh the

facts?”).

In Pearson v. State, the Appellate Court of

Maryland abrogated the precedent that permitted

two-part “strong feelings” questions, recognizing that

while Dingle prohibited two-part questions that

required jurors to assess their own biases, the “strong

feelings” line of cases that followed and specifically

permitted such two-part questions created a conflict

in the law. 437 Md. 350, 361-63 (2014) Thus, between

Dingle in 2000 and Pearson in 2014, two-part “strong

feelings” questions were permissible during voir dire.

In State v. Davis, 249 Md. App. 217 (2021), the

date of the petitioner’s trial was a central issue in

assessing whether his trial counsel was ineffective.

The petitioner in Davis, like Martin, argued that his

trial counsel was ineffective for failing to object to a

multi-part voir dire question that required jurors to

self-assess their biases.6 Recognizing that Davis’s

6 “The charges, as you may have heard, involve an allegation of

attempted murder. Does the nature—and also kidnapping. Do

the nature of the charges themselves, just alone, stir up such

86a

trial occurred in 2007, the Court of Special Appeals

held:

Based on the law as it existed at the time of

trial, Mr. Davis’s trial counsel’s failure to object

to the two-part “strong feelings” voir dire

question was not a deficiency in counsel’s

defense of Mr. Davis.

Id. at 230.

Martin’s trial occurred in 2010, while Maryland

law permitted two-part “strong feelings” questions;

and the voir dire questions posed during Martin’s jury

selection were permissible at the time. Accordingly,

Martin’s trial counsel was not deficient for failing to

object. The Appellate Court of Maryland’s dismissal

of this claim was neither contrary to, nor an

unreasonable application of, federal law.

Claim Three- Ineffective Assistance of

Counsel/Prosecution’s Closing Argument

In Claim Three, Martin contends that his counsel

was ineffective because he failed to object during the

prosecution’s closing argument when it made two

“burden-shifting” statements. Martin claims that the

following sections of the prosecutor’s closing

argument suggested to the jury that Martin, and not

the state, bore the burden of proof for a conviction:

I guess they didn’t want you to really think

about it, but they didn’t address the fact that

strong feelings in you that you cannot be a fair and impartial

juror in this case?” State v. Davis, 249 Md. 217, 219 (2021).

87a

this Defendant did purchase the two .380

caliber handguns…

They want to pretty much pin this case on

Maggie. . . . [I]sn’t that easy, doesn’t it make it

simple for the Defense to be, it’s not my client,

it’s the girl who’s not here? And really what

evidence do we have that Maggie did it? We

have that she—perhaps they proved that she’s

a rude person. Perhaps they proved that she

has a big mouth and that she has bad manners.

What else do they prove to tie her to this crime?

Nothing. We know that she was at work that

day, so certainly she was not the shooter…

ECF No. 5-9 at 92; 94. In its postconviction opinion,

the trial court found that these statements

impermissibly shifted the burden of proof to the

defense and Martin’s trial counsel was ineffective for

failing to object. ECF No. 5-1 at 393-396. The

Appellate Court of Maryland reversed, concluding

that the comment about the handgun was a proper

response to the defense closing argument that there

was no evidence that Martin was guilty and the

comment about “Maggie” was a “closer call,” but did

not warrant reversal because Martin failed to prove

prejudice. Id. at 645-654.

The Appellate Court of Maryland’s dismissal of

Claim Three was neither contrary to, nor an

unreasonable application of, federal law. The trial

court accurately instructed the jury as to the burden

of proof (ECF No. 5-9 at 17-18), and there is no

indication in the context of the entire trial that the

instruction was disregarded by the jury as a result of

the two isolated statements during the state’s closing

88a

arguments. Martin has failed to overcome the doublydeferential standard of review applied to the state

court’s determination of ineffective assistance of

counsel claims. Based on the foregoing, Martin is not

entitled to federal habeas relief on this claim.

Claims Four and Five- Failure to Provide

Bill of Particulars/Denial of Due Process

In Claims Four and Five, Martin contends that the

trial court erred in failing to require the state to

respond to his request for a bill of particulars and he

was deprived of due process because he was unable to

properly prepare for trial without the bill of

particulars. Martin contends that he was denied due

process because the prosecution changed theories

mid-trial by arguing that he was an accessory before

the fact instead of an aider and abettor. ECF No. 30

at 18. Martin raised this claim in his direct appeal

and in postconviction. ECF No. 5-1 at 90; 330-31. The

Appellate Court of Maryland concluded that Martin

was not statutorily entitled to a bill of particulars nor

was he entitled to be informed in advance of trial of

the state’s theory of the case. The appellate court

rejected Martin’s argument that he was prejudiced

because the state changed its theory to “accessory

before the fact” mid-trial because the state advanced

the theory during its opening statement. Id. at 230242. The postconviction court adopted the appellate

court’s conclusion that Martin was not entitled to a

bill of particulars and rejected the argument that the

state changed its theory mid-trial. Id. at 397.

Martin’s argument regarding his entitlement to a

bill of particulars and denial of due process relies

entirely on Maryland statutory and case law. Id. at

89a

117-20; ECF No. 30 at 17-19. A claim that rests solely

upon an interpretation of Maryland law is not

cognizable on federal habeas review. See Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991). Indeed, there is

no constitutional right to a bill of particulars. See

United States v. Bales, 813 F.2d 1289, 1294 (4th Cir.

1987). The Maryland state courts rejected the factual

premise of Claim Five, determining that Martin was

aware of the state’s theory of the case from the

beginning of the trial. Absent clear and convincing

evidence to the contrary, the Court is bound to accept

the state’s conclusion. See 28 U.S.C. § 2254(e)(1). In

any event, Martin fails to provide the Court with any

applicable federal authority supporting his

arguments for relief in Claims Four and Five.

Accordingly, the Maryland courts’ dismissal of Claims

Four and Five is neither contrary to, nor and

unreasonable application of, federal law.

VI. CERTIFICATE OF APPEAL

Having found that Claims Two, Three, Four, and

Five of the Petition for Writ of Habeas Corpus do not

present a claim upon which federal habeas relief may

be awarded, this Court must consider whether a

certificate of appealability should issue. A certificate

of appealability may issue “only if the applicant has

made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see Buck

v. Davis, 137 S.Ct. 759, 773 (2017). The petitioner

“must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542

U.S. 274, 282 (2004) (citation and internal quotation

marks omitted), or that “the issues presented are

90a

adequate to deserve encouragement to proceed

further,” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Because this Court finds that there has been

no substantial showing of the denial of a

constitutional right as to Claims Two, Three, Four,

and Five, a certificate of appealability shall be denied.

See 28 U.S.C. § 2253(c)(2). Martin may still request

that the United States Court of Appeals for the

Fourth Circuit issue such a certificate. See Lyons v.

Lee, 316 F.3d 528, 532 (4th Cir. 2003) (considering

whether to grant a certificate of appealability after

the district court declined to issue one).

VII. CONCLUSION

For the reasons set forth herein, the Petition is

GRANTED as to Claim One and DENIED in all other

respects. The subject conviction and sentence shall be

vacated, and the case remanded to the Circuit Court

for Anne Arundel County for a new trial. This Court’s

judgment shall be STAYED FOR THIRTY (30) DAYS

to permit a notice of appeal or, absent same, decision

by the Circuit Court for Anne Arundel County as to

Martin’s continued confinement.

December 14, 2023

/S/

Julie R. Rubin

United States District Judge

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APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CHARLES BRANDON

MARTIN

Petitioner

JEFFREY NINES and

THE ATTORNEY

GENERAL OF THE

STATE OF

MARYLAND

Civil Action No.

JRR-20-2602

Respondents

ORDER

For reasons stated in the foregoing Memorandum,

it is this 30th day of January 2024, by the United

States District Court for the District of Maryland,

hereby ordered that:

1. Respondents’

Motion

Alter/Amend

Judgment (ECF No. 40) is GRANTED;

2. The Court’s Order of December 14, 2023 (ECF

No. 38) is VACATED;

3. The Petition IS GRANTED on the merits of

Claim One;

4. Petitioner’s writ of habeas corpus is GRANTED

and the matter is REMANDED to the Circuit

92a

Court for Anne Arundel County for a new trial

within sixty (60) days of this Order. If a new

trial is not held within sixty (60) days,

Petitioner shall be released from custody;

5. Judgment IS STAYED for thirty (30) DAYS

pending an appeal;

6. A certificate of appealability is DENIED as to

Claims Two, Three, Four, and Five; and

7. The Clerk SHALL SEND a copy of this Order

and Memorandum to Petitioner and his

counsel of record.

/S/

Julie R. Rubin

United States District Judge

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APPENDIX D

Circuit Court for Anne

Arundel County

Case No. 02-K-09-000831

E-FILED

Court of Special Appeals

Gregory Hilton

9/20/2019 2:43 PM

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 3207 & 3209

September Term, 2018

_________________

STATE OF MARYLAND

CHARLES BRANDON MARTIN

_________________

Fader, C.J.,

Graeff,

Eyler, James R.,

(Senor Judge, Specially Assigned),

JJ.

_________________

Opinion by Graeff, J.

_________________

Filed: September 20, 2019

*This is an unreported opinion, and it may not be

cited in any paper, brief, motion, or other document

filed in this Court or any other Maryland Court as

either precedent within the rule of stare decisis or as

persuasive authority. Md. Rule 1-104.

94a

In 2010, appellee, Charles Brandon Martin, was

convicted of attempted first-degree murder and

sentenced to life in prison. On October 5, 2018, the

Circuit Court for Anne Arundel County granted

appellee’s petition for postconviction relief and

ordered that he be granted a new trial.

On appeal, the State presents the following

questions for this Court’s review, which we have

rephrased slightly, as follows:

1. Did the postconviction court err in ruling

that the State committed a Brady1 violation

in failing to give the defense a forensic

computer analysis report performed on

appellee’s computer?

2. Did the postconviction court err in ruling

that appellee’s trial counsel was ineffective

in not objecting to compound questions

posed during voir dire?

3. Did the postconviction court err in ruling

that appellee’s trial counsel was ineffective

in failing to object to the State’s closing

argument?

Appellee filed a cross-appeal, in which he presents

an additional question for our review, which we have

rephrased slightly, as follows:

Did the postconviction court err in concluding

that appellee was not prejudiced by his trial

1 Brady v. Maryland, 373 U.S. 83 (1963).

95a

counsel’s failure to timely object

Confrontation Clause violation?

For the reasons set forth below, we agree with the

State’s contentions of error, and therefore, we shall

reverse the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The factual background of the underlying offense

was summarized by this Court in its opinion on direct

appeal of appellee’s conviction. Martin v. State, 218

Md. App. 1, 8–14 (2014). We adopt this summary as

follows:

On October 27, 2008, Jodi Lynne Torok, the

victim, was found at her home in Crofton,

Maryland, with a gunshot wound to her head.

Having survived that wound, the victim

testified, at the trial below, that she had been

in a romantic relationship with Martin, who

was married to someone else, and that about

eight or nine weeks before the shooting, she

had become pregnant with his child. After the

victim informed Martin of her condition, he

angrily demanded that she obtain an abortion.

Although she had, at first, agreed to do so, she

later changed her mind and decided to have the

baby. Upon informing Martin of her change of

mind, the victim advised him of her intention

“to go to court and take him for child support.”

Predictably, that advisement led to cooling of

their relationship.

Subsequently, on the day of the shooting, at

about 3:00 p.m., the victim was talking on the

phone, at her home, with a close friend, Blair

96a

Wolfe, when a man, purporting to be a

salesman, knocked on her front door. She then

ended the call to respond to the “salesman,” but

thereafter never called Ms. Wolfe back or

answered any of Wolfe’s subsequent telephone

calls. Growing increasingly concerned but

unable to take any action on her own,5 Ms.

Wolfe telephoned Jessica Higgs, the victim’s

roommate, and requested that she leave work

and return home to make sure that the victim

was safe. Upon arriving at the residence that

she shared with the victim, Ms. Higgs found

the front door unlocked and the victim lying on

the foyer, unconscious and bleeding from a

gunshot wound to her head. Higgs immediately

called “911.”

When the first police officer arrived at the

victim’s residence, he secured the scene. Then,

upon entering the residence, he found the

victim, Ms. Torok, “laying in the doorway,”

“fully

clothed,”

still

breathing,

but

unresponsive. There were no signs of forcible

entry or that the victim’s personal property had

been disturbed.

______________

5 At the time of this telephone call, Ms. Wolfe

was living in Pittsburgh.

[______________]

When paramedics arrived at the scene, they

transported the victim to the Shock Trauma

Center at the University of Maryland Hospital

in Baltimore City, where she remained for

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nearly a month. As a result of the gunshot

wound, the victim’s pregnancy was terminated,

and she suffered severe and disabling injuries.

Neither during that time nor thereafter could

she recall the events that took place, from the

end of her telephone conversation with Ms.

Wolfe on October 27th until Thanksgiving, one

month later.

The evidence recovered by the police at the

scene of the shooting included a Gatorade

bottle, which appeared to be fashioned into a

home-made silencer;6 a spent projectile as well

as a spent shell casing; and the victim’s

Blackberry cell phone.

Gatorade bottle/silencer

From the Gatorade bottle, police evidence

technicians extracted “a human hair” of

“Negroid origin”7 and saliva from the mouth of

the bottle. DNA testing of both linked the bottle

to Martin.8

______________

The mouth of the Gatorade bottle was

wrapped with two layers of tape, and at the

bottom of the bottle was a hole. The tape

exhibited a distinct, rectangular shape, a shape

suggesting that the mouth of the bottle had

been pressed against the barrel of a semiautomatic handgun. Furthermore, sooty

residue lined the bottle’s inside surface at the

location of the hole, indicating that that

opening at the bottom of the bottle had been

98a

made by an exiting bullet. It appeared, to

police, to be a home-made silencer.

7 Martin is an African–American male.

8 Martin’s mitochondrial DNA profile was the

same as that derived from the hair strand. One

of the State’s expert witnesses testified at trial

that only about 0.06 per cent of the population

of North America shares the same

mitochondrial DNA profile as that derived from

the hair fragment found on the Gatorade

bottle.

DNA testing of a swab of saliva taken from

the mouth of the bottle revealed that it

contained “a mixture of DNA from at least

three individuals,” at least one of whom was

female and another a male. The test results

excluded “approximately 94 percent of the

Caucasian

population,”

well

“approximately 96 percent of the African–

American population,” but among the males,

who could not be excluded, was Martin. And,

among the females, who could not be excluded,

was the victim, Jodi Torok.

[______________]

The victim testified that neither she nor

[the victim’s roommate] drank Gatorade, but

that Martin did and often.9 Martin’s fondness

for Gatorade was later confirmed by the officer

who drove him to the Anne Arundel police

station, who testified that, on the way to the

station, he and [appellee] stopped at a

99a

convenience store, where Martin purchased a

bottle of Gatorade to drink.

Granted immunity from prosecution for the

shooting and possibly for other unrelated

charges, Michael Bradley testified that, on the

day of the shooting, he; his brother, Frank

Bradley; Martin; and Jerry Burks, an

acquaintance of Martin, were together at

Maggie McFadden’s house “about noon” and

that he observed Frank Bradley carrying “some

white ... medical tape” and a Gatorade bottle

upstairs to McFadden’s bedroom, where he was

joined by Martin. Then, according to Michael

Bradley, Martin and Burks left together,

“approximately 1:30, 2:00” p.m., and returned

after 3:00 p.m. but before 6:30 p.m. the same

day.10

Ballistic evidence

The bullet recovered by police, a .380 caliber

bullet, and the shell casing that was found,

could have been fired, according to a State’s

expert witness, from a semi-automatic firearm.

Such a firearm could have been manufactured

by any one of sixteen different manufacturers,

which was consistent with Martin’s purchase,

in 2003, of two .380 caliber semi-automatic

handguns made by Bryco Arms, one of those

sixteen manufacturers.11 Moreover, Sheri

Carter testified that, in September and October

of 2008, the time period just before the

100a

shooting, she had observed Martin carrying a

“small,

silver,

[black-handled],

semiautomatic” handgun.

______________

The victim stated that Martin drank

Gatorade “a lot.”

10 The State’s theory was that Burks was the

shooter and that he had been solicited by

Martin. Burks was tried separately, six months

before Martin’s trial, on charges that included

attempted first- and second-degree murder and

conspiracy to commit murder. He was

acquitted by a jury on all counts. Five days

before Martin’s trial, the State moved in limine

to “exclude from trial any evidence that Jerold

Burks was acquitted of the charges” in that

case, and, on the day trial commenced, the

court granted that motion. Thereafter, the

State nol prossed the conspiracy charge against

Martin.

[______________]

The firearm itself was never found. The

testimony of Michael Bradley suggested why

that was so. According to Michael Bradley,

when Martin returned to McFadden’s home the

evening of the shooting, he saw Martin give a

brown paper bag to Frank Bradley and tell

Bradley to “get rid of this.”

Victim’s cell phone

Finally, the last of the four items found at

the victim’s residence was her Blackberry cell

101a

phone. Text messages extracted from that

phone by police confirmed that Martin had

exchanged several text messages with the

victim on the day of the shooting.12

Martin’s statement

The day after the shooting, Martin gave a

statement to police. During the interrogation,

Martin downplayed his relationship with Ms.

Torok, the victim, telling detectives that he did

not know her last name and that he was unsure

where she lived, but he conceded that he had

previously been to her house. And, although he

was “highly doubt[ful]” that he was the father

of the victim’s baby, since they “hadn’t had any

contact,” he admitted to police that he had

agreed to provide money to her to “help her

out.” Finally, Martin claimed that, on the day

of the shooting, he was at home with his wife

and children until mid-day and that later he

had visited “Frankie” and “Mike” Bradley, who

were friends of his, arriving at “around” 1:00

p.m., staying with them until about 4:30 p.m.,

and then returning home.

______________

11 The parties stipulated that, in 2004, one of

those handguns “was transferred to another

party.”

12 Police technicians used a device known as a

universal memory exchanger (“UME”), that

extracts the data stored on a cell phone,

including text messages.

Martin, 218 Md. App. at 8–14 (footnote omitted).

102a

Significant to one of the issues on appeal is the

testimony of Sheri Carter, one of appellee’s former

girlfriends. Ms. Carter testified that appellee had

kept a computer at her residence, and he got the

computer “from a place that he used to work and

[they] didn’t have administrative rights so you

couldn’t make any changes to the computer because

[they] didn’t have the password log in.”2 In late

September or early October 2008, she saw appellee

“looking up gun silencers” on the computer. Appellee

subsequently took the computer from her apartment,

stating that they “had looked up so many crazy things

on the internet,” and he did not want it found if her

apartment “got searched.” Ms. Carter testified that

appellee “said he got rid of it.”3

2 This computer was referred to by the parties at the

postconviction proceeding as the “CSM Computer[.]” CSM is an

acronym for College of Southern Maryland, where Martin had

previously worked as a basketball coach.

3 At the conclusion of all the evidence at trial, the court gave

the jury the following instruction:

You have heard evidence that Defendant removed a

computer from the house of Sheri Carter.

Concealment of evidence is not enough by itself to

establish guilt, but may be considered as evidence of

guilt. Concealment of evidence may be motivated by a

variety of factors, some of which are fully consistent with

innocence.

You must first decide whether the Defendant

concealed any evidence in this case. If you find that the

Defendant concealed evidence in this case then you must

decide whether that conduct shows a consciousness of

guilt.

103a

On May 5, 2010, a jury in the Circuit Court for

Anne Arundel County found appellee guilty of

attempted first-degree murder.4 On December 21,

2010, the circuit court sentenced appellee to life in

prison. This Court affirmed appellee’s conviction on

direct appeal, Martin, 218 Md. App. at 46, and the

Court of Appeals and the United States Supreme

Court denied appellee’s petitions for writ of certiorari.

Martin v. State, 440 Md. 463 (2014); Martin v.

Maryland, 135 S. Ct. 2068 (2015).

On September 15, 2015, appellee, a selfrepresented litigant, filed a petition for postconviction

relief. Appellee’s mother subsequently filed a

Maryland Public Information Act request, which

resulted in the disclosure of several documents,

including a document dated April 22, 2009, entitled

“Anne Arundel County Police Department Criminal

Investigation Division Computer Analysis and

Technical Support Squad Lab Notes” (“Computer

Analysis”).

The Computer Analysis listed three desktops and

two laptops that had been removed from appellee’s

home pursuant to an October 2008 search warrant.

One of the computers was a “CSM laptop,” which

appellee testified at the postconviction hearing he

received while working at the College of Southern

Maryland. The Computer Analysis indicated that the

computer had last been shut down in 2005.5 It

4 The jury acquitted appellee of solicitation to murder.

5 The Analysis provided, in pertinent part:

104a

explained that a detective had run keyword searches

on the laptop for the words “Handgun,” “Gatorade,”

“silencer,” “Contract murder,” “Murder for hire,”

“Hardware,” “Syria,” “Homemade silencer,” “hitman,”

and that these keyword searches produced “no data of

investigative value.”

This document was never provided to appellee

prior to his trial. Following the discovery of this

Computer Analysis, appellee supplemented his

postconviction petition with assistance by counsel. He

argued that the State violated Brady and committed

prosecutorial misconduct by failing to turn over the

Computer Analysis.

On June 23, 2017, the circuit court held a hearing

on the postconviction petition. Regarding the alleged

Brady violation, the parties stipulated that the State

never received the Computer Analysis from the Anne

Arundel County Police Department. The State argued

that, because appellee knew the computer existed, the

Computer Analysis did not constitute “Brady

material,” and therefore, there was no Brady

violation.6

The accounts used for this computer were

“Administrator,” “Laptop,” and “Todd Downs.” The

Administrator account last logon indicated no data and

a last password change of 4/26/05 at 05:43 hours. The

Laptop account indicated a last login of 5/19/05 at 10:14

hours and no other account data. The account Todd

Downs indicated a last login of 5/17/05 at 1100 hours, a

password change of 4/26/05 at 1135 hours, and an

incorrect password login of 4/26/05 at 1145 hours.

6 The State also argued, a position it has abandoned on

appeal, that the laptop mentioned in the Computer Analysis was

105a

Appellee’s postconviction counsel argued that the

Computer Analysis “would have been important to

the case, and if trial counsel had been made aware of

it[,] it would have been used at trial” to establish “that

Ms. Carter’s testimony was inaccurate and

unreliable.” Appellee’s trial counsel te

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