              REPORTED

IN THE COURT OF SPECIAL APPEALS
         OF MARYLAND

               No. 2552

         September Term, 2011




         BRIAN HAN KEYES

                   v.

       STATE OF MARYLAND




  Krauser, C.J.,
  Berger,
  Kenney, James A., III
    (Retired, Specially Assigned),

                             JJ.




         Opinion by Kenney, J.




        Filed: January 28, 2014
       This appeal arises from the denial, without a hearing, of a pro se petition for writ of

actual innocence filed by appellant, Brian Han Keyes, on December 27, 2011 in the Circuit

Court for Prince George’s County. In his petition, appellant challenges his convictions in

that court related to an attempted armed robbery. For the reasons that follow, we will affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On February 14, 1995, a jury convicted appellant of first-degree murder, attempted

robbery with a deadly weapon, and use of a handgun in the commission of a crime of

violence. He was sentenced to life imprisonment without possibility of parole, in addition

to consecutive sentences for the other convictions.1 A panel of this Court affirmed those

judgments in an unreported opinion. Keyes v. State, No. 414, Sept. Term 1995 (filed Nov.

30, 1995).

       In his direct appeal, he raised two allegations of error, one of which is pertinent here;

namely, that the trial court erred in unduly inhibiting his cross-examination of a key State’s

witness, Lucio Ramirez. We shall briefly set forth facts included in the Court’s earlier

opinion to facilitate our analysis of the issue now before us.


       1
         Appellant was convicted of four offenses. For first-degree murder, he was sentenced
to life imprisonment without possibility of parole. His conviction of attempted robbery with
a deadly weapon of the murder victim was merged into the first-degree murder conviction.
See Newton v. State, 280 Md. 260, 273-74 (1977) (holding that “separate convictions and
sentences for the felony of attempted robbery and murder committed in the perpetration of
that felony constitute, under the required evidence test, double punishment for the same
offense in violation of the Fifth Amendment’s double jeopardy clause”). For attempted
robbery with a deadly weapon of the second, surviving victim, he was sentenced to twenty
years’ imprisonment. For the handgun conviction, he was sentenced to twenty years’
imprisonment, five years of which was without possibility of parole. All sentences were to
run consecutively.
       “The killing was the culmination of two-to-three hours of ethnic conflict between the

victim group, consisting of the murder victim and three other Hispanic-Americans, and a

group of three or four African-American males,” one of whom was appellant. Keyes v. State,

slip op. at 1. Lucio Ramirez and three others, including Abilio Ortez Chavez (the murder

victim), Melvin Chavez, and José Moya-Ramirez, had been sitting in front of an apartment

building, drinking beer, when they were accosted by the African-American group (including

appellant). Id. The Hispanic-American group retreated inside to the safety of the apartment

building, locking the door behind them. “The African-American males knocked on the door

and tried to get in but eventually left.” Id.

       “Half an hour later,” the Hispanic-American group ventured outside, only to encounter

the African-American group, which by then had returned. Id. at 2. Once again, the

Hispanic-Americans retreated inside and the African-Americans tried to force their way

inside but were unsuccessful. Id. When the Hispanic-Americans ventured outside a third

time, they encountered appellant. Id. The Hispanic-Americans attempted to retreat yet again,

but one of them, Abilio Chavez, did not make it. “Just as he reached the front steps” of the

apartment building, appellant fired “four or five shots, fatally wounding” him. Id.

       “Each of the three surviving Hispanic-Americans made both pretrial identifications

from photographs and in-trial identifications of the appellant as a member of the group that

had approached them on three occasions and specifically as the shooter.” Id. In a statement

appellant made to a police detective, he “admitted that he and a friend named Sean had gone



                                                2
to” the scene of the killing on the night in question “to ‘rob Hispanics.’” Id. He claimed,

however, that Sean was the shooter and that Sean had “acknowledged to him that he had shot

‘one of the Spanish boys.’” Id.

       At trial, appellant attempted to impeach Lucio Ramirez, based on the commission of

a prior bad act, distribution of a controlled dangerous substance (“CDS”). Keyes v. State, slip

op. at 3. Maryland Rule 5-608(b) permits, in the trial court’s discretion, “any witness to be

examined regarding the witness’s own prior conduct that did not result in a conviction but

that the court finds probative of a character trait of untruthfulness.” The Rule further

provides that, upon objection, a “reasonable factual basis” that the conduct occurred must be

established and that “[t]he conduct may not be proved by extrinsic evidence.”

       When the State objected, pointing out that there had been no conviction for CDS

distribution, appellant asserted that a conviction was not required under Rule 5-608(b) and

that the charging document, under which Ramirez had been charged, indicated CDS

distribution, which was an impeachable offense. See State v. Giddens, 335 Md. 205, 217

(1994) (holding that “a prior conviction for distribution of cocaine is relevant to credibility

and as such is admissible for impeachment purposes”). “The State countered that a ‘mere

charging document’ does not establish a conviction, but that the distribution charge had been,

prior to trial, ‘amended down to simple possession.’” Keyes v. State, slip op. at 3.

       This Court upheld the trial court’s ruling sustaining the State’s objection and

prohibited appellant from impeaching Ramirez with the charged CDS distribution activities.



                                               3
The Court reasoned that the trial court was, understandably, concerned that, by permitting

the proposed line of cross-examination, “the situation was rife with the danger that extrinsic

evidence,” namely, the charging document, “would have come in . . . through the ‘back door’

of the questioning itself.” Id. at 4. Moreover, we observed that the trial court had “digested

the charging document in full detail and concluded that even if the facts contained therein

were proved, the result would have been a conviction for simple possession,” which, unlike

CDS distribution, is not an impeachable offense. Id. at 5 (citing Morales v. State, 325 Md.

330, 339 (1992) (observing that conviction for possession of PCP is “not relevant to

credibility” and “would not be admissible for purposes of impeachment”)). The Court also

noted that the trial judge, in a sound exercise of discretion, weighed the probative value of

that evidence against the unfair prejudice in admitting it and found that the latter “far

outweigh[ed]” the former. Id.

       Turning to the instant case, appellant asserts that, in September 2011, “while attending

a religious service” at North Branch Correctional Institution, he engaged in a conversation

with Jose Ulloa, another inmate at that facility, and learned that Ulloa possessed two reports,

purportedly written by a Montgomery County Police Officer, Karen McNally, that mentioned

appellant by name and had been included in the discovery materials that had been provided

to Ulloa, prior to his trial. Ulloa permitted appellant to photocopy those reports, and they are

now the basis of his petition for writ of actual innocence.

       According to appellant, Officer McNally’s reports constitute “newly discovered



                                               4
evidence” under Maryland Code, Criminal Procedure Article, § 8-301 and “create[] a

substantial or significant possibility that the result [of his trial] may have been different.” He

characterizes those reports as Brady2 material, “which the prosecutor suppressed or withheld

that would have been favorable to” him, because they were “somewhat exculpatory” and

“provided the basis for impeaching two of the three State’s key witnesses who testified” in

his 1995 trial.

       On January 18, 2012, the circuit court issued an order summarily denying appellant’s

petition for writ of actual innocence without a hearing, and appellant noted this appeal.

                                        DISCUSSION

       As appellant points out, the Court of Appeals, in Douglas v. State, 423 Md. 156

(2011), held that a person convicted of a crime and eligible to file a petition for writ of actual

innocence under Criminal Procedure Article, § 8-301 “is entitled to a hearing on the merits

of” such a petition that “sufficiently pleads grounds for relief under the statute, includes a

request for a hearing, and complies with the filing requirements of C.P. § 8–301(b).” Id. at

165. Contending that his petition satisfies all of these requirements, appellant complains that

the circuit court erred in denying his petition without a hearing. We reject that contention,

because, as we explain, the petition does not sufficiently plead grounds for relief under the




       2
         Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the
prosecution of evidence favorable to an accused upon request 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”).

                                                5
statute.3

        The statute provides:

               (a) A person charged by indictment or criminal information with
               a crime triable in circuit court and convicted of that crime may,
               at any time, file a petition for writ of actual innocence in the
               circuit court for the county in which the conviction was imposed
               if the person claims that there is newly discovered evidence that:
                       (1) creates a substantial or significant possibility that the
               result may have been different, as that standard has been
               judicially determined; and
                       (2) could not have been discovered in time to move for
               a new trial under Maryland Rule 4-331.

               (b) A petition filed under this section shall:
                      (1) be in writing;
                      (2) state in detail the grounds on which the petition is
               based;
                      (3) describe the newly discovered evidence;
                      (4) contain or be accompanied by a request for hearing if
               a hearing is sought; and
                      (5) distinguish the newly discovered evidence claimed in
               the petition from any claims made in prior petitions.

               (c)     (1) A petitioner shall notify the State in writing of the
               filing of a petition under this section.
                       (2) The State may file a response to the petition within 90
               days after receipt of the notice required under this subsection or



       3
        We note that, under Maryland Rule 4-332(d)(9), a petition for writ of actual
innocence shall state “that the conviction sought to be vacated is based on an offense that the
petitioner did not commit,” a requirement not included in the petition before us. As indicated
in Douglas v. State, 423 Md. 156, 182 n.14 (2011), Rule 4-332 became effective on October
1, 2011 and applies to all petitions filed on or after that date, as was the petition in this case.
Because the circuit court did not grant leave to amend the petition prior to dismissing it, see
Md. Rule 4-332(h) (stating that amendments “shall be freely allowed in order to do
substantial justice”), and made no mention in its order as to the reasons it denied the petition,
we do not rely upon noncompliance with Rule 4-332 for affirmance.

                                                6
              within the period of time that the court orders.

              (d)      (1) Before a hearing is held on a petition filed under this
              section, the victim or victim's representative shall be notified of
              the hearing as provided under § 11-104 or § 11-503 of this
              article.
                       (2) A victim or victim's representative has the right to
              attend a hearing on a petition filed under this section as provided
              under § 11-102 of this article.

              (e)     (1) Except as provided in paragraph (2) of this
              subsection, the court shall hold a hearing on a petition filed
              under this section if the petition satisfies the requirements of
              subsection (b) of this section and a hearing was requested.
                      (2) The court may dismiss a petition without a hearing if
              the court finds that the petition fails to assert grounds on which
              relief may be granted.

              (f)    (1) In ruling on a petition filed under this section, the
              court may set aside the verdict, resentence, grant a new trial, or
              correct the sentence, as the court considers appropriate.
                     (2) The court shall state the reasons for its ruling on the
              record.

              (g) A petitioner in a proceeding under this section has the
              burden of proof.

Md. Code (2001, 2008 Repl. Vol., 2012 Supp.), § 8-301 of the Criminal Procedure Article

(“CP”).

       Subsection (e)(1) states that, “[e]xcept as provided in paragraph (2) of this

subsection,” a circuit court “shall” hold a hearing on an actual innocence petition if it

“satisfies the requirements of subsection (b) of this section and a hearing was requested.”

Paragraph (2) authorizes the circuit court to dismiss an actual innocence petition without a

hearing if it finds “that the petition fails to assert grounds on which relief may be granted.”

                                               7
“Grounds” on which relief may be granted are set forth in subsection (a): a claim of “newly

discovered evidence” that both “creates a substantial or significant possibility that the result

may have been different, as that standard has been judicially determined” and “could not

have been discovered in time to move for a new trial under Maryland Rule 4-331.”

       Here, with the previously noted exception, the form requirements of subsection (b)

have been met—the petition is in writing; it states in detail the grounds on which it is based;

it describes in detail the purported newly discovered evidence and attaches that evidence as

exhibits to the petition; it contains a request for a hearing; and, as it is appellant’s first such

petition under CP § 8-301, the requirement, under CP § 8-301(b)(5), that it “distinguish the

newly discovered evidence claimed in the petition from any claims made in prior petitions,”

is not applicable. See Douglas, 423 Md. at 184-85 & n.16 (interpreting “prior petitions,”

under CP § 8-301(b)(5), as including only petitions brought under the statute and not

including postconviction petitions).4

       Thus, the question before us is whether “the petition sufficiently pleads grounds for

relief under the statute.” Id. at 165. CP § 8-301(a)(1)-(2), which defines such “grounds,”

re-frames the question, more specifically, as: does appellant’s petition present “newly

discovered evidence” that both “creates a substantial or significant possibility that the result

may have been different, as that standard has been judicially determined” and “could not




       4
       Appellant filed a petition seeking postconviction relief, under CP § 7-101 et seq.,
which was denied.

                                                8
have been discovered in time to move for a new trial under Maryland Rule 4-331”? Only if

this question is answered in the affirmative is a hearing required.

       Having construed the petition liberally, as instructed by the Douglas Court, 423 Md.

at 182-83, we conclude that much of the claimed “newly discovered evidence” asserted in

appellant’s petition is not, in fact, “newly discovered evidence” and that the remainder, even

if “newly discovered,” fails to “create[] a substantial or significant possibility that the result

may have been different.”5 Therefore the petition does not sufficiently plead grounds for

relief under CP § 8-301.

       Because CP § 8-301 is of recent vintage, we look to cases interpreting and applying

Maryland Rule 4-331 (or its federal counterpart, Federal Rule of Criminal Procedure 33),

which governs motions for new trial, including motions grounded upon claims of newly

discovered evidence. Indeed, CP § 8-301 directs us to do so. See id. § (a)(1) (defining the




       5
         In its brief, the State contends that “[a]t no point did [appellant] allege, let alone
provide a basis upon which the circuit court could find, that the evidence that he claimed to
be newly discovered could not have been discovered within the time frame set forth in Rule
4-331.” Appellant, however, asserts in his petition that the State committed a Brady violation
in suppressing Officer McNally’s reports and that he did not, in fact, become aware of those
reports until September 18, 2011. Contrasted with Douglas v. State, 423 Md. 156, 187
(2011), where the Court of Appeals observed that “evidence that is known but unavailable
does not constitute ‘newly discovered evidence,’” the evidence here is alleged to be both
unknown (to appellant) and unavailable. Construing appellant’s pro se petition liberally, see
id. at 182-83, it is reasonable to infer that appellant is asserting that he acted with due
diligence, or, in the words of CP § 8-301(a)(2), that the evidence “could not have been
discovered in time to move for a new trial under Maryland Rule 4-331.” Consequently, in
affirming the circuit court’s denial of appellant’s petition, we do not rely upon appellant’s
failure to plead to or exercise due diligence in discovering the evidence.

                                                9
persuasiveness standard as whether newly discovered evidence “creates a substantial or

significant possibility that the result may have been different, as that standard has been

judicially determined”); id. § (a)(2) (defining a due diligence standard by express reference

to Rule 4-331).

       At the outset, we recognize that, generally, appellate review of a circuit court’s denial

of a motion for new trial is limited to whether the trial court abused its discretion, see

Campbell v. State, 373 Md. 637, 665 (2003), but, because the issue before us is the legal

sufficiency of the petition, our review is de novo.6 That said, caselaw addressing motions

for new trial, on the grounds of newly discovered evidence, is instructive in determining what

is “newly discovered evidence” and when it is sufficiently persuasive so as to “create[] a



       6
        Douglas is, thus far, the only reported Maryland opinion addressing the legal
sufficiency of an actual innocence petition. Although that opinion does not expressly recite
the standard of review it applied, a fair reading indicates that the Douglas Court applied a de
novo standard. 423 Md at 177-88. For example, at the conclusion of its opinion, the
Douglas Court stated that “decisions on the merits of requests for new trials based on newly
discovered evidence, whether filed pursuant to Rule 4–331 or . . . C.P. § 8–301, are
committed to the hearing court’s sound discretion.” Id. at 188 (emphasis added). By
negative inference, it follows that decisions as to the legal sufficiency of an actual innocence
petition would be reviewed de novo.

        This conclusion is consistent with decisional law covering a wide range of subjects.
See, e.g., United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 67 (2006) (observing that appellate
court reviewing grant of summary judgment “examines the same information from the record
and determines the same issues of law as the trial court” and, thus, applies de novo review);
Reichs Ford Rd. Joint Venture v. State Rds. Comm’n, 388 Md. 500, 509 (2005) (observing
that appellate court “review[s] the grant of a motion to dismiss de novo”) (citation omitted);
Calomiris v. Woods, 353 Md. 425, 434 (1999) (observing that “the determination of
ambiguity [in a contract] is one of law, not fact, and that determination is subject to de novo
review by the appellate court”).

                                              10
substantial or significant possibility that the result may have been different.”

       We begin with the observation that many of the facts alleged in appellant’s petition

took place months after his trial, which concluded on March 15, 1995. For example,

according to Exhibit A of the petition, which purported to cover Officer McNally’s

observations during the time period from August 19, 1995 through August 29, 1995,

              CI informant called and told me that a subject by the name of
              Alfonso Martinez was at [address redacted] on 8-18-95 at about
              1500 hrs. argueing (sic) with Melvin about the fact that he had
              encroached on other dealers[’] territory, which the CI claims is
              the motive for the shootings. Martinez is a dealer and lives at
              [address redacted]. He also have (sic) a lady friend who lives at
              [address redacted] in Langley Park.

       Later in that report, it states: “Writer observed Tigre at AH Bacon Funeral home on

14th St. on 8-27-95. He came with a group of 8-10 drug seller/gang types.” And, in Exhibit

B, dated September 11, 1995, it states that, beginning in April 1995, Lucio Amaya “moved

up quickly to the top with the help of Melvin Chavez” and became a “big time” drug dealer

in Langley Park.

       Even if we assume the authenticity, accuracy, and truthfulness of those reports, it is

clear that those events took place after appellant was convicted and sentenced. They could

have had no effect on his trial and, thus, do not qualify as “newly discovered evidence.”

Although we found no Maryland authority expressly so holding, the United States Court of

Appeals for the District of Columbia Circuit, in affirming the denial of a new trial motion,

considered a similar issue and reached precisely that conclusion. See United States v.



                                              11
Lafayette, 983 F.2d 1102, 1105 (D.C. Cir. 1993) (observing that, “[i]n general, to justify a

new trial, ‘newly discovered evidence’ must have been in existence at the time of trial” and

that “[e]vents and transactions occurring after the trial obviously could not have been the

subject of testimony at the trial”).

       We turn now to those parts of appellant’s petition that are based upon alleged events

taking place prior to his trial and sentencing. Exhibit A of the petition states in part:

              Writer is personally familiar with all victims with exception of
              Jose Amaya. Melvin Chavez, Lucio Amaya and José Amicar
              Moya Ramirez were all eye witnesses to an 0100 in Prince
              George’s County in August 1994—victim Abilio Ortez Chavez
              (no relation to Melvin Chavez) although all are from same area
              in Honduras.[7] Writer had constant contact with witnesses for
              six months and throughout the trial of Brian Han Keyes who
              was found guilty and got life plus 40 years. The writer, P.G.
              Detectives and [Assistant State’s Attorney] were aware of the
              fact that Melvin and Lucio were involved with drugs and that
              Abilio Ortez “Lito” was an innocent victim who was at the
              wrong place at the wrong time. The writer was responsible for
              all aspects of witness interviews, Photo arrays, transportation of
              witnesses and making arrangements for witnesses to return from
              Honduras and Denver, Colorado for trial. Writer also assisted
              P.G. County Police in relocating witnesses.

       In Exhibit B, it is stated that, according to a confidential informant, “from the time of

the arrest of Brian Han Keyes in August 94 until approx. Feb. or March of 95,” Ramirez



       7
       The State does not appear to contest that the person identified as “Lucio Amaya” is
the same person as “Lucio Ramirez,” the witness at appellant’s trial. The reference to “an
0100” is law enforcement jargon for a murder. See, e.g., “Worksheet for Pretrial Services
Report,” at 8 (listing, among “Case Type and Offense Codes,” “0100” as “Murder, First
Degree”) (available at http:nj.fd.org/pdf/forms/iv-5 worksheet for ptsr.pdf) (last visited Dec.
11, 2013).

                                              12
“was a small time seller in Langley Park.” The informant further stated that “about two

weeks before the 0100” he “saw Lucio in front of the Laundrymat next to Nations Bank in

Langley Park at about 1400 hrs.” According to the report, the confidential informant

approached Ramirez and engaged in a brief conversation, during which another, unnamed,

person approached and “began ‘negotiating’ with [Ramirez]” and that, during that

negotiation, “they discussed prices between $23,000 and $25,000.00.”

       To the extent that these reported events and facts that took place prior to appellant’s

trial and sentencing might be generally considered “newly discovered evidence,” under

Maryland Rule 4-331, they would be “merely impeaching” evidence, which does not satisfy

the requirements of CP § 8-301(a)(1). See Argyrou v. State, 349 Md. 587, 601 (1998)

(observing that, to entitle defendant to new trial, newly discovered evidence “must be more

than merely cumulative or impeaching”) (citation and quotation omitted); Love v. State, 95

Md. App. 420, 432 (1993) (same).

       In Jackson v. State, 164 Md. App. 679, 697 (2005), cert. denied, 390 Md. 501 (2006),

we considered what we characterized as the “pivotally important” distinction between

“impeaching” and “merely impeaching” evidence, in the context of a motion for new trial on

the ground of newly discovered evidence. We said:

              Newly discovered evidence that a State’s witness had a number
              of convictions for crimes involving truth and veracity or had lied
              on a number of occasions about other matters might have a
              bearing on that witness’s testimonial credibility, but would not
              have a direct bearing on the merits of the trial under review.
              Such evidence would constitute collateral impeachment and

                                             13
                 would, therefore, be “merely impeaching.” If the newly
                 discovered evidence was that the State’s witness had been
                 mistaken, or even deliberately false, about inconsequential
                 details that did [not] go to the core question of guilt or
                 innocence, such evidence would offer peripheral contradiction
                 and would, therefore, be “merely impeaching.” If the newly
                 discovered evidence, on the other hand, was that the State’s
                 witness had actually testified falsely on the core merits of the
                 case under review, that evidence, albeit coincidentally
                 impeaching, would be directly exculpatory evidence on the
                 merits and could not, therefore, be dismissed as “merely
                 impeaching.”

Id. at 697-98.

       Here, with one exception, appellant’s petition presents allegations which, if believed,

might have established that a State’s witness was a “big time” drug dealer rather than a mere

drug user. Such conduct by a State’s witness could have established a basis for impeaching

his testimony under Maryland Rule 5-608(b), as appellant unsuccessfully attempted to do at

his trial. Keyes v. State, slip op at 3. But such evidence falls far short of having “a direct

bearing on the merits of the trial under review.” Jackson, 164 Md. App. at 698. As the Court

of Appeals concluded in Campbell v. State, 373 Md. 637, 671-72 (2003): “Even if the

additional evidence ‘may’ produce a different result at a new trial, there is not a ‘substantial

or significant possibility’ that it would do so.”

       That leaves one remaining allegation. According to appellant, Officer McNally’s

reports suggest that a State’s witness received leniency in exchange for his testimony and that

fact was not revealed during trial, but appellant’s petition contains no factual support for that

allegation. Indeed, and as the State contends, appellant’s contention that “the newly

                                               14
discovered evidence shows that both Lucio [Ramirez] and Melvin [Chavez]” received

“substantial” benefits in exchange for their testimony against appellant—that their CDS

distribution charges were placed on the stet docket—is simply a bald assertion. If a

conclusory allegation, unsupported by evidence, is deemed sufficient to state grounds for

relief under CP § 8-301(a), then the requirement of CP § 8-301(e)(2) that the petition “assert

grounds on which relief may be granted” would be easily circumvented. We conclude that

the circuit court was not required to consider a bald, unsupported factual allegation, and, to

the extent it may not have done so, it did not err in denying the petition without a hearing.

                                                  ORDER DENYING PETITION FOR
                                                  WRIT OF ACTUAL INNOCENCE
                                                  AFFIRMED. COSTS ASSESSED TO
                                                  APPELLANT.




                                             15
