Adnan Syed v. State of Maryland, No. 2519, September Term 2013, and State of Maryland
v. Adnan Syed, No. 1396, September Term 2016

CRIMINAL LAW – POST-CONVICTION – INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL – BACKGROUND

        At trial, the State adduced evidence that Adnan Syed, appellant/cross-appellee, and
Hae Min Lee (“Hae”) were students at Woodlawn High School, who had a romantic
relationship but ended it sometime before January 1999. Thereafter, on January 13, 1999,
Syed asked Hae for a ride after school, and Hae agreed. During lunch that day, Syed gave
his friend Jay Wilds his car and cell phone, and instructed Wilds that he would call him
when he was ready to be picked up. Shortly after school ended at 2:15 p.m., Syed drove
Hae’s car to the Best Buy parking lot off of Security Boulevard, where Syed, according to
the State, strangled Hae sometime between 2:15 and 2:35 p.m.

       At 2:36 p.m., Syed called Wilds from a payphone in the Best Buy parking lot and
instructed Wilds to pick him up at the Best Buy. When Wilds arrived, Syed showed Wilds
Hae’s lifeless body in the trunk of her car. Syed instructed Wilds to follow him in his car
as Syed drove Hae’s car and parked it at the Interstate 70 Park and Ride.

      Later that evening, Syed and Wilds picked up Hae’s car and drove to Leakin Park,
where the two dug a shallow grave. According to the State, Syed’s cell phone received
two calls that placed Syed in Leakin Park at the time of the burial. After burying Hae’s
body, Syed and Wilds abandoned Hae’s car behind an apartment complex. When Hae’s
car was later recovered, police found a map book with a map of Leakin Park torn out in the
backseat, with Syed’s partial palm print on the back cover of the map book.

       A jury convicted Syed of first degree murder, robbery, kidnapping, and false
imprisonment, and Syed was sentenced to a total term of life imprisonment plus thirty
years. Syed’s convictions were subsequently upheld on direct appeal.

       In 2010, Syed filed a petition for post-conviction relief raising nine claims of
ineffective assistance of trial counsel, sentencing counsel, and appellate counsel. After a
hearing, the post-conviction court denied Syed post-conviction relief on January 6, 2014.
Syed filed a timely application for leave to appeal to this Court, requesting review of his
ineffective assistance of counsel claims for trial counsel’s failure to contact a potential alibi
witness, Asia McClain, and to pursue a plea deal. While his application was pending, Syed
filed a request that this Court remand the case for additional fact-finding in light of a
January 13, 2015 affidavit from McClain.

      After granting leave to appeal on February 6, 2015, this Court issued an order on
May 18, 2015, staying Syed’s appeal and granting his request to remand the case for further
proceedings. Pursuant to our order’s instructions, on June 30, 2015, Syed filed a timely
motion to reopen the post-conviction proceeding based upon McClain’s affidavit.
Thereafter, Syed filed a Supplement on August 24, 2015, requesting the court to reopen
the post-conviction proceeding to consider new claims of ineffective assistance of trial
counsel and a Brady violation, both concerning the reliability of the cell tower location
evidence. After granting Syed’s request and conducting a hearing, the post-conviction
court held, among other things, that Syed’s trial counsel was deficient for failing to
investigate McClain as a potential alibi witness, but that such deficiency did not prejudice
Syed. The court, however, granted Syed a new trial on the basis that trial counsel was
ineffective for failing to properly challenge the reliability of the cell tower location
evidence.

       After granting the State’s application for leave to appeal and Syed’s conditional
application for leave to cross-appeal, the Court of Special Appeals affirmed the judgment
of the circuit court, but on the ground that Syed’s Sixth Amendment right to effective
assistance of counsel was violated by trial counsel’s failure to investigate a potential alibi
witness.

CRIMINAL LAW – POST-CONVICTION – SCOPE OF REMAND ORDER –
ABUSE OF DISCRETION

      The State’s first issue was whether the post-conviction court abused its discretion
by exceeding the scope of the Court’s May 18, 2015 remand order.

        The Court’s May 18, 2015 remand order provided that “[i]n the event that the circuit
court grants a request to re-open the post-conviction proceedings, the circuit court may, in
its discretion, conduct any further proceedings it deems appropriate.” The Court held that,
because the post-conviction court granted Syed’s motion to reopen as to his claim of
ineffective assistance of counsel for failure to investigate a potential alibi witness, it was
within the court’s discretion to conduct any further proceedings it deemed necessary.
Further proceedings, according to the Court, included Syed’s Supplement, because it was,
in effect, a separate motion to reopen pursuant to Maryland Code (2001, 2008 Repl. Vol.),
§ 7-104 of the Criminal Procedure Article (“CP”), and because it would be in the interests
of judicial economy for the post-conviction court to hear all of Syed’s claims under CP §
7-104 in one proceeding.

CRIMINAL LAW – POST-CONVICTION – REOPENING                                     OF     POST-
CONVICTION PROCEEDING – ABUSE OF DISCRETION

       The State’s second issue was whether the post-conviction court abused its discretion
by reopening Syed’s post-conviction proceeding to consider his new claim, set forth in the
Supplement, of ineffective assistance of counsel for the failure of trial counsel to properly
challenge the reliability of the cell tower location evidence.
        CP § 7-104 provides that a court “may reopen a post[-]conviction proceeding that
was previously concluded if the court determines that the action is in the interests of
justice.” In Gray v. State, 338 Md. 366, 382 n.7 (2005), the Court of Appeals gave several
examples of when the “interests of justice” would support a reopening of a post-conviction
proceeding. The Court of Special Appeals concluded that the Gray Court did not limit the
broad discretion that the General Assembly provided pursuant to CP § 7-104 and thus,
reviewed the post-conviction court’s decision to determine whether it was “violative of fact
and logic.” Id. at 384.

        In Syed’s case, if the post-conviction court found that Syed’s new claim was not
waived and he adduced sufficient evidence to demonstrate ineffective assistance of counsel
on that claim, Syed would be entitled to post-conviction relief. Therefore, the Court held
that it was not “violative of fact and logic” for the post-conviction court to conclude that it
was in the “interests of justice” to reopen Syed’s post-conviction proceeding and consider
his new claim. See id. at 382 n.7, 384.

CRIMINAL LAW – POST-CONVICTION – INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL – WAIVER – NATURE OF RIGHT INVOLVED – NON-
FUNDAMENTAL – GENERAL WAIVER PRINCIPLES APPLY

       The State’s third issue was whether Syed’s new claim of ineffective assistance of
counsel for trial counsel’s failure to properly challenge the reliability of the cell tower
location evidence was waived, because such claim was not raised at Syed’s first post-
conviction proceeding.

        The Court recognized that the Court of Appeals in Curtis v. State, 284 Md. 132
(1978), created a dual framework for analyzing whether a petitioner’s claim has been
waived: A court must examine whether the “nature of the right involved” is recognized by
the Supreme Court as requiring an intelligent and knowing waiver and thereby a
fundamental right governed by CP § 7-106(b), see id. at 137-38, or, whether the “nature of
the right involved” is governed by “pertinent case law, statutes, or rules[,]” and thereby a
non-fundamental right governed by the “general legal principles” of waiver. See State v.
Torres, 86 Md. App. 560, 568 (1991). The Court framed the question in the instant appeal
as follows: Where the issue of ineffective assistance of trial counsel has been raised and
decided in a previous post-conviction proceeding, does a petitioner, absent a knowing and
intelligent waiver, have the right to raise such issue again but on different grounds in a
reopening of that proceeding?

       In Curtis, the Court of Appeals determined that the issue of ineffective assistance of
counsel was premised on a fundamental constitutional right, and thus “a criminal defendant
cannot be precluded from having this issue considered because of his mere failure to raise
the issue previously.” 284 Md. at 150. There, the issue of ineffective assistance of trial
counsel was not raised in Curtis’s first petition for post-conviction relief. Id. at 134-35.
By contrast, Syed raised the issue of ineffective assistance of trial counsel at his first post-
conviction hearing. The cell tower ground, however, was not one of the seven grounds
supporting these ineffective assistance of trial counsel claims. The Court, therefore,
concluded that the question of waiver regarding the failure to raise the issue of ineffective
assistance of trial counsel was not present in the instant case.

       In Curtis, the Court of Appeals identified non-fundamental rights as those that “fall
within the category of tactical decisions by counsel or involve procedural defaults.” Id. at
147. The Court of Special Appeals then held that the cell tower ground was based on a
non-fundamental right, because the selection of a particular ground to support a claim of
ineffective assistance of counsel is a quintessential tactical decision made by post-
conviction counsel. Thus, under the general principles of waiver governing non-
fundamental rights, the failure to assert the cell tower ground at Syed’s first post-conviction
hearing would constitute a waiver of a claim based on that ground, unless it was not
possible to have raised it at that time. Because Syed’s post-conviction counsel could have
raised the cell tower ground at the first post-conviction proceeding, the Court held that
Syed waived this claim of ineffective assistance of trial counsel.

CRIMINAL LAW – POST-CONVICTION – INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL – DUTY TO SEEK PLEA OFFER – FAILURE TO ESTABLISH
STATE WOULD HAVE OFFERED A PLEA

      Syed’s first claim was that his right to effective assistance of counsel was violated
when trial counsel failed to pursue a plea deal with the State.

        The Court explained that a defendant has a right to effective assistance of counsel
during “the plea-bargaining process[,]” but a defendant does not have a “right to be offered
a plea. . . .” Lafler v. Cooper, 566 U.S. 156, 162, 168 (2012). The Court held that, assuming
that defense counsel has the duty to pursue a plea offer when requested, the failure to pursue
a plea offer cannot prejudice a defendant without evidence demonstrating that, if defense
counsel had requested a plea offer, the State would have made a plea offer. Cf. Delatorre
v. United States, 847 F.3d 837, 846 (7th Cir. 2017).

       In Syed’s case, the Court determined that the post-conviction court was not clearly
erroneous when it found that Syed had failed to adduce evidence demonstrating that the
prosecutor was prepared to make a plea offer if Syed’s trial counsel had requested one.
Moreover, the Court determined that there was sufficient evidence to support the post-
conviction court’s factual finding that the Baltimore City State’s Attorney’s Office did not
have a policy of always offering a plea deal. Accordingly, the Court affirmed the post-
conviction court’s ruling that Syed failed to establish an ineffective assistance of counsel
claim based on trial counsel’s failure to pursue a plea offer.
CRIMINAL LAW – POST-CONVICTION – INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL – DUTY TO INVESTIGATE A POTENTIAL ALIBI WITNESS
– DEFICIENT PERFORMANCE

CRIMINAL LAW – POST-CONVICTION – INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL – DUTY TO INVESTIGATE A POTENTIAL ALIBI WITNESS
– PREJUDICE

      Syed’s second claim was that his right to effective assistance of counsel was violated
when trial counsel failed to investigate McClain as a potential alibi witness.

        The Court stated that the first issue was whether trial counsel’s failure to investigate
McClain as a potential alibi witness constituted deficient performance under Strickland v.
Washington, 466 U.S. 668 (1984). The Court’s research revealed no controlling Maryland
case on such issue, and therefore, the Court proceeded to analyze cases outside of
Maryland. The Court held that, once a defendant identifies potential alibi witnesses,
defense counsel has the duty “to make some effort to contact them to ascertain whether
their testimony would aid the defense.” Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991).
Such identification normally includes names and addresses of potential alibi witnesses, but
need not if sufficient information is provided or acquired to enable defense counsel to
contact the witnesses. The identification also includes sufficient information to suggest
that the witness’s testimony could provide the defendant with an alibi.

       The Court held that Syed’s trial counsel had the duty to make an effort to contact
McClain. The Court determined that this duty arose when Syed told trial counsel about
McClain, gave trial counsel McClain’s contact information, and gave trial counsel
McClain’s affidavits, which demonstrated that McClain’s testimony had the potential to
provide Syed with an alibi. The Court then ruled that trial counsel’s failure to attempt to
contact McClain was manifestly unreasonable when the State claimed that Syed murdered
Hae between 2:15 p.m. and 2:35 p.m. on January 13, 1999, and trial counsel was aware
that McClain saw Syed in the library from “2:15 – 3:15” that day. Accordingly, the Court
held that trial counsel’s failure to make any effort to contact McClain as an alibi witness
fell below the objective standard of a reasonably competent attorney acting under
prevailing norms, taking into consideration all of the circumstances existing at the time of
counsel’s conduct with a strong presumption of reasonable professional assistance.

       As to the prejudice prong of Strickland, the Court determined that it had to analyze
the impact McClain’s testimony may have had in light of “the totality of the evidence
before the judge or jury.” 466 U.S. at 695. Hence, the Court determined that the impact
of McClain’s testimony must be analyzed in light of the State’s theory of the case: Syed
murdered Hae in the Best Buy parking lot between 2:15 p.m. and 2:35 p.m. on January 13,
1999.
        The Court acknowledged that the State presented a strong circumstantial case
against Syed, which was largely based on the testimony of Wilds, Syed’s actions after the
murder, and Syed’s cell phone records. The glaring weakness, however, was the State’s
lack of any direct evidence placing Syed and Hae in the Best Buy parking lot on January
13, 1999, between 2:15 p.m. and 2:35 p.m. The Court reasoned that McClain’s testimony
would have directly contradicted the State’s theory of the case by placing Syed at the
Woodlawn Public Library at the exact time the State theorized that Syed murdered Hae; a
critical element the State had to prove to convict Syed. When considering McClain’s
testimony in light of all of the other evidence the State presented to the jury, the Court held
that, if McClain’s testimony had been presented to the jury, it would have “alter[ed] the
entire evidentiary picture.” Id. at 696. The Court, therefore, held that “the jury was
deprived of the [opportunity] to hear testimony that [would or] could have supplied [ ]
‘reasonable doubt’” in at least one juror’s mind leading to a different outcome: a hung jury.
Avery v. Prelesnik, 548 F.3d 434, 439 (6th Cir. 2008). Under the circumstances of the case
sub judice, the Court concluded that there was a reasonable probability that, but for trial
counsel’s deficient performance, the result of Syed’s trial would have been different.
Circuit Court for Baltimore City
Case Nos. 199103042 to 046
                                                     REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND
                                   ______________________________________
                                            CONSOLIDATED CASES

                                                      No. 2519
                                                September Term, 2013

                                                ADNAN SYED
                                                      v.
                                            STATE OF MARYLAND
                                   ______________________________________

                                                      No. 1396
                                                September Term, 2016

                                            STATE OF MARYLAND
                                                      v.
                                                ADNAN SYED
                                   ______________________________________

                                         Woodward, C.J.,
                                         Wright,
                                         Graeff,
                                                      JJ.*
                                   ______________________________________

                                           Opinion by Woodward, C.J.
                                         Dissenting Opinion by Graeff, J.
                                   ______________________________________

                                          Filed: March 29, 2018


                                   *Judge Matthew J. Fader did not participate in
                                   the Court’s decision to designate this opinion for
                                   publication pursuant to Md. Rule 8-605.1.
                                           TABLE OF CONTENTS


I. BACKGROUND........................................................................................................... 5
         A. Trial ……………...........................................................................................         5
               1. Day of the Murder ……………………………….....................................                                      6
                     a. Morning of January 13, 1999 ………..……………..........................                                   6
                     b. Midday ………… ………………………………………………….. 6
                     c. Afternoon …………………………………………………………..                                                                 7
                     d. Evening ………………………………………………………….                                                                  10
                     e. Nighttime ………………………………………………………….… 12
               2. Forensic Evidence....................................................................................... 14
               3. Verdict and Appeal.................................................................................... 16
         B. Post-Conviction Proceedings............................................................................. 16
THE STATE’S PROCEDURAL QUESTIONS …...................................................... 21
I. The Scope of this Court’s May 18, 2015 Remand Order ………………………. 21
         A. Background …………………………………………………………………. 21
         B. Contentions …….…………………………..................................................... 24
         C. Analysis ……………………………………………………………………. 25
II. The Reopening of Syed’s Post-Conviction Proceeding .......................................... 27
         A. Background …………..……………………………………………………… 27
         B. Contentions ……..………………………....................................................... 28
         C. Analysis ……………..………………………………………………….…… 29
III. Waiver of Syed’s Claim of Ineffective Assistance of Counsel Pertaining to the Cell
     Tower Location Evidence........................................................................................ 35
         A. Legal Background.......................................................................................... 35
         B. Reopened Post-Conviction Proceeding............................................................ 41
         C. Contentions on Appeal ……………………………………………………… 42
         D. Analysis ……………..……………………… …………………….……..... 43
SYED’S QUESTIONS ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF
COUNSEL....................................................................................................................... 54
           Standard of Review ……………………………………………......................... 54
I. Trial Counsel’s Failure to Pursue a Plea Deal with the State ……………………. 55
          A. Background …………………………………………………………………. 55
          B. Memorandum Opinion I ………………………………………………….… 58
          C. Analysis …………………………………………………………………… 59
II. Trial Counsel’s Failure to Investigate McClain as a Potential Alibi Witness …. 61
          A. Background ………………………………………………………………..                                                                           61
                  1. First Hearing………………………………………………………….… 61
                  2. First Appeal ………………………………………………………...… 64
                  3. Second Hearing ………………………………………………………… 65
                  4. Memorandum Opinion II ……………………………………………..                                                               73
          B. Deficient Performance ……………………………………………………. 74
                  1. Contentions ……………………………………………………………. 74
                  2. Relevant Case Law ………………………………………………………76
                  3. Analysis ………………………………………………………………… 85
          C. Prejudice ……………………………………………………………………. 94
                  1. Contentions …………………………………………………….………. 95
                  2. Analysis ………………………………………………………………. 96
          D. Conclusion ………………………………………………………………….104
       Hae Min Lee (“Hae”)1 was last seen on the afternoon of January 13, 1999, at

Woodlawn High School in Baltimore County, Maryland. Less than a month later, on

February 9, 1999, Hae’s body was discovered in a shallow grave in Leakin Park located in

Baltimore City, Maryland. Through investigation, Baltimore City authorities came to

believe that appellant/cross-appellee, Adnan Syed, was responsible for Hae’s death and

charged Syed with first degree murder and related crimes.

       On February 25, 2000, a jury in the Circuit Court for Baltimore City returned

verdicts of guilty against Syed for first degree murder, kidnapping, robbery, and false

imprisonment. The court subsequently sentenced Syed to life imprisonment for first degree

murder, thirty years for kidnapping (to run consecutive to the life sentence), and ten years

for robbery (to run consecutive to the life sentence but concurrent to the thirty years for

kidnapping). The conviction for false imprisonment was merged for sentencing purposes.

On direct appeal, this Court affirmed the convictions in an unreported opinion, and in June

2003, the Court of Appeals denied Syed’s petition for writ of certiorari. Syed v. State, No.

923, Sept. Term 2000 (filed March 19, 2003), cert. denied, 376 Md. 52 (2003).

       The unusual procedural posture of this case began ten years after Syed’s

convictions, when he filed a petition for post-conviction relief on May 28, 2010. After a

two-day hearing, the circuit court denied all nine of Syed’s claims for post-conviction relief

in January 2014.


       1
         Because the brother of Hae Min Lee is mentioned in the Background Section,
infra, we will refer to Hae and her brother by their first names for the sake of clarity. We
intend no disrespect in doing so.
       Syed filed a timely application for leave to appeal to this Court, which we granted

on February 6, 2015. After considering Syed’s request to remand his appeal because of a

newly obtained affidavit from Asia McClain, a potential alibi witness, we remanded the

case to the circuit court by order dated May 18, 2015, for that court to decide whether to

reopen Syed’s post-conviction proceeding. We stayed the remaining question raised in

Syed’s appeal.

       On remand, the circuit court reopened Syed’s post-conviction proceeding and

conducted a five-day evidentiary hearing in February 2016. Ultimately, the circuit court

granted Syed a new trial on the grounds of ineffective assistance of trial counsel 2 for

counsel’s failure to properly challenge the reliability of the evidence relating to the location

of Syed’s cell phone at the time that incoming calls were received on the night of the

murder.

       The State filed a timely application for leave to appeal on August 1, 2016, and Syed

filed a conditional cross-application for leave to appeal. We granted both applications,

lifted the stay imposed pertaining to Syed’s original appeal, and consolidated the appeals.

Accordingly, we will consider the questions and issues raised in both appeals, which we

have rephrased and organized into the following questions:3


       2
        Syed’s trial counsel was M. Cristina Gutierrez, Esq. Unfortunately, Gutierrez
passed away prior to the filing of Syed’s petition for post-conviction relief. Unless
otherwise stated, “trial counsel” or “Syed’s trial counsel” will refer to Gutierrez.
       3
           In their briefs, the parties presented the following questions and issues:

Syed’s Appeal Questions – No. 2519-2013:

                                                2
The State’s Procedural Questions:

          1. Did the post-conviction court abuse its discretion by exceeding
             the scope of this Court’s May 18, 2015 remand order?

          1. Was [Syed’s] trial counsel constitutionally ineffective when she
             failed to investigate a potential alibi witness, then told [Syed] that
             “nothing came of” the alibi witness?

          2. Was [Syed’s] trial counsel constitutionally ineffective when
             [Syed] asked her to seek a plea offer, but counsel failed to do so,
             and counsel falsely reported back to [Syed] that the State refused
             to tender an offer?

The State’s Appeal Issues – No. 1396-2016:

          1. Whether the post-conviction court abused its discretion in
             reopening the post-conviction proceeding to consider Syed’s
             claim that his trial counsel’s failure to challenge the reliability of
             the cell phone location data evidence, based on the cell phone
             provider’s “disclaimer” about the unreliability of incoming calls
             for location purposes violated Syed’s Sixth Amendment right to
             the effective assistance of counsel.

          2. Whether the post-conviction court erred in finding that Syed had
             not waived his claim regarding trial counsel’s failure to challenge
             the reliability of the cell phone location data for incoming calls
             by failing to raise it earlier.

          3. Whether the post-conviction court erred in finding that Syed’s
             trial counsel’s failure to challenge the State’s cell phone location
             data evidence, based on the cell phone provider’s “disclaimer,”
             violated Syed’s Sixth Amendment right to effective assistance of
             counsel.

Syed’s Cross-Appeal Issue – No. 1396-2016:

          1. Whether the post-conviction court erred in concluding that –
             despite the finding Syed’s trial counsel rendered ineffective
             assistance in failing to investigate a potential alibi witness –
             counsel’s deficient representation did not violate Syed’s Sixth
             Amendment right because Syed was purportedly not
             “prejudiced.”
                                             3
           2. Did the post-conviction court abuse its discretion when it
              reopened Syed’s post-conviction proceeding to consider the
              claim of ineffective assistance of counsel for trial counsel’s
              failure to properly challenge the reliability of the cell tower
              location evidence?

           3. Did the post-conviction court err by determining that Syed did
              not waive his ineffective assistance of counsel claim pertaining
              to trial counsel’s failure to properly challenge the reliability of
              the cell tower location evidence?4

Syed’s Questions on His Claims of Ineffective Assistance of Counsel:

           1. Did the post-conviction court err by holding that Syed’s right to
              effective assistance of counsel was not violated when trial counsel
              failed to pursue a plea deal with the State?

           2. Did the post-conviction court err by holding that Syed’s right to
              effective assistance of counsel was not violated when trial counsel
              failed to investigate McClain as a potential alibi witness?

       For the reasons set forth below, we affirm the judgment of the circuit court, but do

so by concluding that Syed’s Sixth Amendment right to effective assistance of counsel was

violated by trial counsel’s failure to investigate McClain as a potential alibi witness.

Accordingly, we remand the case for a new trial.




       4
         Because, as discussed infra, we conclude that Syed waived his claim of ineffective
assistance of counsel regarding trial counsel’s failure to properly challenge the reliability
of the cell tower location evidence, we need not address the State’s challenge to the post-
conviction court’s ruling in favor of Syed on that claim.

                                             4
                                        BACKGROUND

                                           A. Trial

       At trial,5 the State’s theory was one of a scorned lover. The State described Syed as

resentful when Hae ended her and Syed’s on-again, off-again relationship in November of

1998. According to the State, this resentfulness only grew after Syed discovered that at

the beginning of January 1999, Hae had begun dating Donald Cliendinst (“Don”). To make

matters worse, Hae’s new relationship quickly became common knowledge among

students and teachers at Woodlawn High School, where both Hae and Syed were enrolled

as students in the Magnet program for gifted students.

       The State theorized that sometime before the school day ended on January 13, 1999,

Syed asked Hae for a ride so that he could pick up his car at the repair shop, knowing that

she would say yes. During that ride, Syed, a regular operator of Hae’s Nissan Sentra, drove

them to the Best Buy parking lot situated off Security Boulevard in Baltimore County, a

location frequented by them during their courtship. Central to the State’s theory was that

Syed murdered Hae between 2:15 p.m. and 2:35 p.m. in the Best Buy parking lot by

strangling her and then placing her body in the trunk of her car. The State adduced evidence

showing that later that night, Syed and Jay Wilds (the State’s key witness) buried Hae’s

body in Leakin Park.

       A summary of the evidence adduced at trial in a light most favorable to the State is

set forth below.


       5
        Syed’s first trial ended in a mistrial on December 15, 1999. The second trial began
on January 27, 2000, and concluded on February 25, 2000.
                                             5
                                 1. The Day of the Murder

                              a. Morning of January 13, 1999

       At 10:45 a.m. on January 13, 1999, Syed used his newly purchased cell phone6 to

call Wilds’s home phone. Syed asked Wilds if he had any plans that day, to which Wilds

replied that he needed to go to the mall to purchase a birthday present for his girlfriend.

Syed stated that he would give Wilds “a lift.” Later that morning, Syed arrived at Wilds’s

house in a tan four-door Honda Accord, and the two drove to Security Square Mall.

       After shopping, Syed told Wilds that he had to get back to school, because his lunch

period was ending. During the drive to school, Syed told Wilds “how [Hae] made him

mad,” and declared, “I’m going to kill that bitch . . . .” Wilds dropped Syed off at school,

and Syed permitted Wilds to drive his car and keep Syed’s cell phone. Syed said that he

would give Wilds a call when he was ready to be picked up.

                                         b. Midday

       As Wilds was leaving school, he used Syed’s phone to call his close friend, Jennifer

Pusateri, to see if he could come over to her house. Syed’s cell phone records indicate that

a call was placed to Pusateri’s phone at 12:07 p.m. Pusateri’s brother answered the phone

and told Wilds to come over, even though Pusateri was still at work. Pusateri was supposed

to leave work around noon but was delayed that day. While at Pusateri’s house, Wilds

received a call from Syed, who stated that he was not ready to be picked up yet but that he

needed to be picked up “at like 3:45 or something like that[.]”



       6
           Syed purchased and activated a new cell phone two days before Hae’s murder.
                                             6
       When Pusateri got home from work, she observed that Wilds had a cell phone with

him and had driven a tan four-door car to her house. Pusateri also noted that Wilds “wasn’t

acting like [he] normally acts[,]” and “[h]e wasn’t as relaxed as he normally is[.]”

                                         c. Afternoon

       Aisha Pittman, Hae’s best friend, said that she saw Hae “[r]ight at the end of the

school day at 2:15 [p.m.] in Psychology class.” When Pittman saw Hae, Hae was talking

to Syed. Rebecca Walker, a student and friend of Hae and Syed, said that she too “saw

[Hae for] a few seconds after class let out” at 2:15 p.m. that day. Walker said that she “saw

[Hae] heading towards the door [that would have led to where her car was parked] but [ ]

did not see [Hae] actually leave.” Hae told Walker that “she had to be somewhere after

school.” But Hae did not say where she was going.

       Inez Butler Hendricks, a teacher and athletic trainer at Woodlawn High School, saw

Hae at the concession stand in the gym lobby at “about 2:15, 2:20 [p.m].” She recalled that

Hae was wearing “[a] little short black skirt, light colored blouse, [ ] black heels[, and] . . .

some [clear] nylon stockings [on her legs]” that day.7

       Young Lee, (“Young”), Hae’s brother, stated that Hae was supposed to pick up their

cousin from elementary school around 3:00 p.m. that day. Young discovered that Hae had

not picked up the cousin when the elementary school called to notify him that the cousin

needed to be picked up.

       Meanwhile, Wilds received a phone call from Syed. According to Wilds, “[Syed]


       7
           These were the clothes found on Hae’s body.

                                               7
asked [him] to come and get him from Best Buy.” Syed’s cell phone records indicate an

incoming call was received at 2:36 p.m.8

       Upon receiving the call from Syed, Wilds stated that he went straight to Best Buy

where he saw Syed standing next to a pay phone wearing a pair of red gloves. Syed

instructed Wilds to drive to the side of the building and park the car next to a gray Nissan

Sentra, which was later identified as Hae’s car. Wilds got out of the car and walked towards

Syed. Syed asked Wilds if he was “ready for this.” According to Wilds, Syed “opened the

trunk and [Hae] was dead in the trunk.”

       Syed then closed the trunk and instructed Wilds to follow him as he drove Hae’s

car. In a self-described state of bewilderment, Wilds followed Syed to the Interstate 70

Park and Ride where Syed parked Hae’s car. Syed got into the driver’s seat of his car and

drove away with Wilds as a passenger. Syed asked Wilds if he wanted to go buy some

marijuana, to which Wilds agreed.

       On their way to the house of Patrick Furlow, Wilds’s friend and marijuana dealer,

Wilds made a call to Pusateri to see if she knew if Furlow was home; Pusateri replied that

she did not. Syed’s cell phone records indicate that a call was made to Pusateri’s phone at

3:21 p.m.

       During their drive to Furlow’s house, Syed also made a call to Nisha Tanna, a friend

of his who lived in Silver Spring. Syed asked Wilds if he wanted to talk to Tanna and



       8
         Syed’s phone records set forth the time, duration, and number dialed of each
outgoing call. For incoming calls, however, the records showed the time and duration of
each call, but not the number of the incoming call, listing it simply as “incoming call.”
                                             8
passed the cell phone to Wilds. Not feeling like talking, Wilds said, “hello, my name is

Jay” and passed the phone back to Syed. According to Tanna, Syed asked her how she

was doing and then “put his friend Jay [Wilds] on the line, and he basically asked the same

question.” Syed’s cell phone records indicate that a call was made to Tanna’s phone at

3:32 p.m.

       Wilds called Furlow at 3:59 p.m. and learned that he was not home. At this point,

Syed and Wilds changed course and drove to Forest Park to purchase marijuana. Wilds

stated that he called Pusateri to see if she knew if Kristina Vinson,9 a mutual friend of

Pusateri and Wilds, was home. Syed’s cell phone records indicate that a call was made to

Pusateri’s phone at 4:12 p.m.

       Syed told Wilds that he wanted to go to track practice at Woodlawn High School,

because “he needed to be seen.”10 During the ride to Woodlawn High School, Syed

expressed that “it kind of hurt him but not really, and when someone treats him like that,

they deserve to die.” Syed asked: “How can you treat somebody like that, that you are



       9
         “Vinson” is occasionally spelled as “Vincent” throughout the record and in this
Court’s unreported opinion in the direct appeal. Syed v. State, No. 923, Sept. Term 2000,
slip op. at 4-5 (filed Mar. 19, 2003), cert. denied, 376 Md. 52 (2003). Upon our review of
the record, we believe that “Vinson” is the correct spelling and will use that spelling to
reference her in this opinion.
       10
           Hendricks stated that Syed was on the track team at Woodlawn High School. She
testified that she would see Syed go to track practice, because Syed would come over and
talk to her or would purchase things from the concession stand located in the gym lobby.
Track practice began at 3:00 p.m., and the athletes had to be at practice by at least 3:30
p.m. Because no attendance was taken at track practice, it is unclear whether Syed attended
practice on January 13, 1999, and if so, when he arrived for practice.

                                            9
supposed to love?” Wilds stated that Syed spoke about the murder and confessed that “he

thought [Hae] was trying to say something to him like apologize or say she was sorry, and

that she had kicked off the turn signal in the car, and he was worried about her scratching

him on the face or something like that . . . .”11 When they arrived at Woodlawn High

School, Syed told Wilds, “mother-fuckers think they are hard, I killed somebody with my

bare hands.”

       Wilds then drove to Vinson’s apartment to smoke marijuana and debate with

himself about what to do. Wilds received a call from Syed on the cell phone half an hour

later saying that he was at school ready to be picked up, and Wilds left Vinson’s apartment

to retrieve Syed.

                                        d. Evening

       Wilds stated that, after he picked up Syed, they both went to Vinson’s apartment.

Vinson stated that Wilds and Syed arrived at her apartment around 6:00 p.m. According

to Vinson, it was memorable, because “they were acting real shady when they got there.”

While they were at Vinson’s apartment, Wilds recalled that Syed received three phone

calls. The first call was from Hae’s parents asking if Syed knew where Hae was, to which

he stated, “I haven’t seen Hae, I don’t know where she is, try her new boyfriend.”

       Wilds said that the second call occurred when “Hae’s cousin or someone had called

back[,] but it was the wrong number. They thought it was the new boyfriend’s number[,]


       11
           Kevin Forrester, former homicide Sergeant for the Baltimore City Police
Department, stated that on February 28, 1999, Wilds led him, Detective Gregory
MacGillivary, and another detective to Hae’s abandoned car. According to Sergeant
Forrester, the windshield wiper control was broken.
                                            10
and it was his cellphone number or something like that.” Young testified that “[he] looked

around the house to look for [Hae’s] friends’ phone numbers and such,” and discovered a

phone number listed in Hae’s diary as “443 253-9023.”12 Young called that phone number

believing that it was the number of Hae’s new boyfriend, Don, because the sheet of paper

had “Don” written all over it. After talking for a while, Young realized that he was

speaking to Syed, because he recognized Syed’s voice. Young asked Syed “if he knew

where [Hae] was, or where she could be.” According to Young, Syed did not say whether

he knew where Hae was.

       The third phone call, according to Wilds, was “from a police officer who was asking

about Hae.” Officer Scott Adcock testified that he called Syed between 6:00 p.m. and 6:30

p.m. and spoke to him for “no more than three to four minutes.” Syed responded to the

police officer stating, “I don’t know where Hae is.” Syed also “advised [him] that he did

see her at school and that [Hae] was going to give him a ride home from school, but he got

detained and felt that she probably got tired of waiting for him and left.”

       Vinson testified that after receiving the last phone call, Syed said, “they’re going to

come talk to me” and then “ran out of the apartment.” According to Vinson, Wilds “jumped

up and ran out of the apartment, too.” Vinson looked out the window of her apartment and

observed Syed and Wilds drive away. Syed’s cell phone records indicate that three

incoming calls were received by Syed’s cell phone at 6:07 p.m., 6:09 p.m., and 6:24 p.m.




       12
            This is Syed’s cell phone number.
                                                11
                                        e. Nighttime

       Wilds recounted that after leaving Vinson’s apartment, Syed drove them to Wilds’s

house. There, Syed told Wilds that he needed his help getting rid of Hae’s body, stating

that “he knew what [Wilds] did,” and “how [he] did it[.]” Fearing that this comment was

a threat to report Wilds to the police for his drug dealing, Wilds agreed to help. Syed then

“grabbed two shovels and put them in the back seat of his car. [Wilds] got in [Syed’s] car

with him.” The two went back to the Interstate 70 Park and Ride where Syed got out of

his car and got into Hae’s parked car. Wilds followed Syed, and they drove around for

forty-five minutes, ultimately arriving at Leakin Park.

       Wilds stated that, because he was supposed to meet Pusateri at 7:00 p.m. that

evening, he paged her to tell her that he was going to be late for their meeting. Syed’s cell

phone records indicate that a call was made to Pusateri’s pager number at 7:00 p.m.

       When Syed and Wilds arrived at Leakin Park, Syed parked Hae’s car on a nearby

hill, got into his car, and instructed Wilds to drive down the hill. They then went about

150 feet13 into the woods and used the shovels to begin digging.

       Wilds stated that, “while we were digging, [Pusateri] had called back, and [Syed]

just told her [Wilds] was busy now and hung up the phone.” Pusateri testified that at 7:00

p.m. she received “a page from [Wilds,] and it was a voice message.” She was confused

by Wilds’s page and “didn’t understand the message [about] where [Wilds] wanted [her]


       13
          According to Technician Romano Thomas and Detective Gregory MacGillivary
of the Baltimore City Police Department Homicide Unit, the burial site of Hae’s body was
127 feet from the road.

                                             12
to pick him up and what time. So [she] thought that it was necessary to call him.” When

she called the number on her caller I.D., “[s]omeone answered the phone and said [Wilds]

will call me when he was ready for me to come and get him. He was busy.” Syed’s cell

phone records indicate an incoming call was received at 7:09 p.m. Abraham Waranowitz,

the State’s expert in “cell phone network design and functioning[,]” testified that this call

registered with cell site “L689B[,]” which was the strongest cell site for the location of

Hae’s body in Leakin Park.

       After digging the grave, Wilds and Syed went back to Syed’s car and put the shovels

in the passenger side.    Wilds then drove up the hill and parked behind Hae’s car.

According to Wilds, “[Syed] asked me for like five to ten minutes, he was like I don’t think

I’m going to be able to get her out by myself, I think I need your help.” When Wilds

responded that he was not going to help, Syed drove Hae’s car down the hill.

       Soon thereafter, Syed came back up the hill, parked Hae’s car, got into his car, and

told Wilds that they needed to bury Hae. Wilds returned with Syed to the woods where

Hae was “laying kind of twisted face down.” While they were burying the body, Syed

received another phone call. Wilds did not know who the caller was, but noted that part of

the conversation was not in English. Syed’s cell phone records indicate an incoming call

was received at 7:16 p.m. and registered with the same cell site, “L689B.”

       After Wilds and Syed finished burying Hae’s body, Syed put the shovels in his car,

and they drove up the hill to Hae’s parked car. Syed drove away in Hae’s car, with Wilds

following behind driving Syed’s car. Wilds recalled that the two



                                             13
             traveled towards the [C]ity on Route 40 and some of the back streets.
             We cut north and south, up and down roads. [Syed] pulled into like
             this alcove in the back of a whole lot of apartments. He parked
             [Hae’s] car and came back to his vehicle. [14] At that time, I told him
             just flat out to take me home. He started driving me home.

       Wilds further testified that Syed stopped his car at Westview Mall where he threw

Hae’s wallet, prom picture, and other possessions into a dumpster. Wilds then told Syed

to pull behind Value City in Westview Mall where he threw the two shovels into a

dumpster.15

       Wilds stated that he paged Pusateri, and she testified that she received a page to pick

Wilds up from Westview Mall around 8:00 p.m. Pusateri testified further that she picked

Wilds up from the Value City in Westview Mall about ten to fifteen minutes after receiving

his page. When Wilds got into her car, “the first thing he said was like put on your seat

belt and let’s go.” When they left the parking lot, Wilds confessed that he had something

to tell her that she could not tell anybody. Wilds then disclosed that Syed had strangled

Hae in the Best Buy parking lot and that he had seen Hae’s body in the trunk of a car.

                                      2. Forensic Evidence

       Although there were no eyewitnesses to the murder, there was forensic evidence

that the State theorized linked Syed to the crimes. Margarita Korell, M.D., an assistant

medical examiner at the Office of the Chief Medical Examiner in Baltimore City, was

accepted as “an expert in forensic pathology” at trial. Dr. Korell testified that on February


       14
            Hae’s vehicle was found parked at this location.

        Detective MacGillivary testified that Hae’s possessions, as well as the shovels,
       15

were never recovered.
                                               14
10, 1999, she performed an autopsy on Hae. Dr. Korell opined that “the cause of death

was strangulation” and that the manner of death was “[h]omicide.” Dr. Korell noted that

the hyoid bone in Hae’s neck was broken, and the strap muscles of the neck showed

hemorrhaging, which indicated that pressure had been applied to the skin on the neck. Dr.

Korell stated that in her experience, “if [ ] pressure [is applied] on the neck for ten seconds

or so,” that could lead to unconsciousness and death within “a couple of minutes.”

       Romano Thomas, a crime lab technician with the Baltimore City Police Department

Mobile Crime Lab Unit, testified that on February 28, 1999, he supervised the inspection

of Hae’s vehicle. Thomas stated that one of the items recovered from the car was a map

of the Leakin Park area that was torn out of a map book. The torn out piece was found in

the rear seat area of the vehicle.

       Sharon Talmadge, an employee at the Baltimore City Police Department Latent

Print Unit, testified that her duties were to “evaluate partial latent prints to determine if

they [were] suitable for comparison.” Talmadge would “then compare suitable partial

latent prints to the prints of victims, suspects[,] or defendants. [She would also] process

physical evidence to determine if there [were] any partial latent prints on that particular

piece of evidence.” Talmadge said that she was asked to determine if there were any partial

latent prints on the map and map book that were recovered from Hae’s vehicle. Talmadge

made a comparison to Syed and Wilds, and testified that “[a] partial latent print developed

on the back cover of the map [book] . . . was identified as an impression of the left palm of

[ ] Syed.”



                                              15
                                  3. Verdict and Appeal

       After six weeks of trial, the jury spent only about three hours deliberating before

finding Syed guilty on February 25, 2000, of the charges of first degree murder, robbery,

kidnapping, and false imprisonment. Syed was sentenced on June 6, 2000, to a total term

of life imprisonment plus thirty years.

       On direct appeal, Syed did not challenge the sufficiency of the State’s evidence

pertaining to any of his convictions. See Syed v. State, No. 923, Sept. Term 2000, slip op.

at 1 (filed March 19, 2003), cert. denied, 376 Md. 52 (2003). Instead, he raised numerous

evidentiary issues and alleged violations of Brady v. Maryland, 373 U.S. 83 (1963). Id. at

1-2. In an unreported opinion, filed on March 19, 2003, this Court found no merit to Syed’s

contentions and affirmed all of his convictions. Id. at 57. The Court of Appeals denied

Syed’s petition for writ of certiorari on June 20, 2003.

                             B. Post-Conviction Proceedings

       On May 28, 2010, Syed filed a petition for post-conviction relief, and later

supplemented his petition on June 27, 2010. Syed raised nine claims of ineffective

assistance of counsel concerning trial counsel, sentencing counsel, and appellate counsel,

which the post-conviction court summarized as follows:

          I.   Trial counsel failed to establish a timeline that would have
               disproved the State’s theory and shown that [Syed] could not
               have killed [Hae] in the manner described by [the] State[’]s
               witness Jay Wilds[;]

         II.   Trial counsel failed to call or investigate an alibi witness, Asia
               McClain, who was able and willing to testify;


                                             16
        III.     Trial counsel failed to move for a new trial based on the
                 statements of Asia McClain, which exonerated [Syed];

        IV.      Trial counsel failed to adequately cross-examine Deborah
                 Warren, a State witness;

            V.   Trial counsel failed to approach the State about a possible plea
                 deal;

        VI.      Trial counsel failed to inform [Syed] of his right to request a
                 change of venue;

       VII.      Trial counsel failed to investigate the State’s key witness, Jay
                 Wilds, for impeachment evidence;

      VIII.      Appellate counsel failed to challenge testimony of [the] State’s
                 expert witness that strayed outside of his expertise; and

        IX.      [Syed’s] counsel at sentencing failed to request that the
                 [sentencing court] hold [Syed’s] hearing on Motion for
                 Modification of Sentence in abeyance.[16]

       On October 11, 2012, and October 25, 2012, a post-conviction hearing was held

(“first hearing”). In a Memorandum Opinion and Order (“Memorandum Opinion I”),

issued on January 6, 2014, the post-conviction court denied Syed post-conviction relief.

       On January 27, 2014, Syed filed a timely application for leave to appeal to this

Court, which requested that we review “(1) whether his trial counsel rendered ineffective

assistance [of counsel] by failing to interview or even contact Asia McClain, a potential

alibi witness; and (2) whether [his trial counsel rendered ineffective assistance of counsel



       16
            In his petition, Syed also raised the issue of cumulative error, but the post-
conviction court did not address it. In Syed’s first application for leave to appeal, he did
not challenge the failure of the post-conviction court to address this issue, and Syed did not
raise it in his motion to reopen the post-conviction proceeding.
                                              17
by] failing to pursue a plea offer and purportedly misrepresenting to Syed that she had.”

On January 20, 2015, Syed supplemented his application for leave to appeal, requesting

that this Court remand the case for additional fact-finding in light of an affidavit by

McClain, dated January 13, 2015. In that affidavit, McClain reaffirmed her recollection of

seeing Syed at the Woodlawn Public Library at the time that the State alleged that Syed

murdered Hae. McClain also stated in the affidavit that in telephone conversations with

the Assistant State’s Attorney, Kevin Urick, she was discouraged from attending the first

hearing.

       After granting leave to appeal on February 6, 2015, and receiving briefs from both

the State and Syed, this Court, on May 18, 2015, issued an order staying Syed’s appeal on

the issue of ineffective assistance of trial counsel for failure to pursue a plea offer. We

further granted Syed’s request to remand the case to the circuit court for further proceedings

pursuant to the Uniform Postconviction Procedure Act (“UPPA”), Maryland Code (2001,

2008 Repl. Vol.), § 7-109(b)(3)(ii)(2) of the Criminal Procedure Article (“CP”) and

Maryland Rule 8-604(a)(5), (d). In our order, we instructed the post-conviction court to

consider reopening the post-conviction proceeding if Syed were to file a motion to reopen

within 45 days of our order.

       On remand, on June 30, 2015, Syed filed, pursuant to CP § 7-104, a Motion to

Reopen Post-Conviction Proceedings (“Motion to Reopen”), based upon the January 13,

2015 affidavit of McClain. On August 24, 2015, Syed filed a “Supplement to Motion to

Re-Open Post-Conviction Proceedings” (“Supplement”), requesting that the post-

conviction court reopen the post-conviction proceeding to consider new claims of

                                             18
ineffective assistance of trial counsel and a Brady violation concerning the reliability of

certain cell tower location evidence admitted at trial. The State filed a consolidated

response, and Syed, in turn, filed a reply. The post-conviction court granted Syed’s request

to reopen his post-conviction proceeding to consider those “issues raised by McClain’s

January 13, 2015 affidavit[,] and [Syed’s] Supplement concerning the matter of cell tower

location reliability.”

       On February 3, 2016, the post-conviction court began a five-day hearing (“second

hearing”) to consider the aforementioned issues raised by Syed, and on June 30, 2016, the

post-conviction court issued its “Memorandum Opinion II.” In this opinion, the post-

conviction court first considered the issue of “[w]hether trial counsel’s alleged failure to

contact McClain as a potential alibi witness violated [Syed’s] Sixth Amendment right to

effective assistance of counsel.” On this issue, the post-conviction court concluded that

Syed’s trial counsel was deficient by failing to investigate McClain as a potential alibi

witness but that such deficiency did not prejudice Syed. Accordingly, the post-conviction

court denied Syed post-conviction relief on that claim.

       Next, the post-conviction court considered “[w]hether the State withheld potentially

exculpatory evidence related to the reliability of cell tower location evidence in violation

of the disclosure requirements under Brady.” The post-conviction court ruled that Syed

had waived this claim by failing to raise it in his petition for post-conviction relief and

accordingly, denied post-conviction relief.17


       17
         In the instant appeal, Syed does not challenge the post-conviction court’s decision
that Syed waived his claim of a Brady violation.
                                            19
       Lastly, the post-conviction court considered Syed’s claim that “trial counsel’s

alleged failure to challenge the reliability of the cell tower location evidence violated [his]

Sixth Amendment right to effective assistance of counsel.” The post-conviction court first

held that Syed had not knowingly and intelligently waived this claim. On the merits, the

post-conviction court determined that the performance of Syed’s trial counsel was deficient

because of her failure to cross-examine Waranowitz concerning a fax cover sheet for

Syed’s cell phone records that contained a disclaimer stating: “Any incoming calls will

NOT be considered reliable information for location.” The post-conviction court then

concluded that such deficiency was prejudicial to Syed, because the State’s case relied

heavily on placing Syed at Leakin Park at the alleged time of the burial of Hae’s body.

Accordingly, on this issue, the post-conviction court granted Syed’s petition for post-

conviction relief. The court vacated Syed’s convictions and granted him a new trial.

       On August 1, 2016, the State filed a timely application for leave to appeal to this

Court. Syed then filed a conditional application for leave to cross-appeal. On January 18,

2017, this Court issued an order granting the State’s application for leave to appeal and

Syed’s conditional application for leave to cross-appeal. We further lifted the stay of

Syed’s first appeal imposed by our remand order and consolidated the appeals.

       Additional facts will be provided as they become necessary to the resolution of the

questions presented in the case sub judice.




                                              20
                 THE STATE’S PROCEDURAL QUESTIONS

I. Did the Post-Conviction Court Abuse Its Discretion by Exceeding the Scope of
                   This Court’s May 18, 2015 Remand Order?

                                     A. Background

    In our May 18, 2015 remand order, this Court wrote, in relevant part:

           The purpose of the stay and the remand is to provide Syed
        with the opportunity to file with the circuit court a request,
        pursuant to § 7-104 of the Criminal Procedure Article of Md.
        Code, to re-open the previously concluded post-conviction
        proceeding in light of [ ] McClain’s January 13, 2015, affidavit,
        which has not heretofore been reviewed or considered by the
        circuit court. Moreover, because the affidavit was not presented to
        the circuit court during Syed’s post-conviction proceeding, as it did
        not then exist, it is not a part of the record and, therefore, this Court
        may not properly consider it in addressing the merits of this appeal.
        This remand, among other things, will afford the parties the
        opportunity to supplement the record with relevant documents and
        even testimony pertinent to the issues raised by this appeal.

            We shall, therefore, remand the case to the circuit court,
        without affirmance or reversal, to afford Syed the opportunity to
        file such a request to re-open the post-conviction proceedings. In
        the event that the circuit court grants a request to re-open the
        post-conviction proceedings, the circuit court may, in its
        discretion, conduct any further proceedings it deems
        appropriate. If that occurs, the parties will be given, if and when
        this matter returns to this Court, an opportunity to supplement their
        briefs and the record.

          Accordingly, it is this 18th day of May 2015, by the Court of
        Special Appeals,

          ORDERED that the above-captioned appeal be and hereby is
        STAYED; and it is further

           ORDERED that [Syed’s] request for a remand to the circuit court
        is GRANTED and the case be and hereby is REMANDED to the
        Circuit Court for Baltimore City, without affirmance or reversal, for
        the purpose set forth in this Order; and it is further

                                           21
              ORDERED that [Syed] shall file his motion to re-open the closed
           post-conviction proceeding within 45 days of the date of this Order
           and, if he fails to do so, the stay shall be lifted and this Court will
           proceed with the appeal without any reference to or consideration of
           [Syed’s] Supplement to Application for Leave to Appeal or any
           documents not presently a part of the circuit court’s record; and it is
           further

              ORDERED that, after taking any action it deems appropriate,
           the circuit court shall forthwith re-transmit the record to this
           Court for further proceedings.

(Emphasis added).

       As authorized by our remand order, Syed timely filed the Motion to Reopen, which

was based on the McClain affidavit. Almost two months later, however, Syed filed the

Supplement that raised, among other things, a claim of ineffective assistance of counsel

pertaining to trial counsel’s failure to properly challenge the reliability of the cell tower

location evidence, which claim had never been raised before in any proceeding arising out

of the charges against Syed. In the Supplement, Syed explained why such claim should be

heard at the same time as the claim raised in his Motion to Reopen:

           [A]s a matter of judicial economy, the [c]ourt should consider this
           issue now. If it does not, and if Syed’s conviction is not vacated on
           the alibi issue, Syed would have to raise the issue in a successive
           motion to re-open post-conviction proceedings. Not only could this
           lead to another separate proceeding, but it could lead to another
           appeal. It is in the interest of all parties to resolve this matter – and
           get to the heart of the problem – once and for all. Now is the time to
           do so.

       In its consolidated response, the State acknowledged that Syed appeared to be

advocating for his Supplement to be considered as a new motion to reopen under CP § 7-

104, but argued that the post-conviction court should not reopen, because the issue


                                              22
concerning the failure of trial counsel to properly challenge the reliability of the cell tower

location evidence had “been repeatedly waived.”

        In its “Statement of Reasons” regarding Syed’s Motion to Reopen and Supplement,

the post-conviction court first observed that “[t]his [c]ourt may reopen [Syed’s] previously

concluded post-conviction proceedings if the [c]ourt determines that reopening the matter

is in the interests of justice. Crim. Pro. § 7-104.” With respect to Syed’s Motion to Reopen,

which was based on the McClain affidavit, the court determined, “in its own discretion,”

that “reopening the post-conviction proceedings would be in the interests of justice for all

parties[,]” because “[t]his [would] allow [Syed] to introduce the January 13, 2015 affidavit

from McClain, the potential testimony of McClain, and relevant evidence concerning

[Syed’s] claims of ineffective counsel and alleged prosecutorial misconduct during the

post-conviction proceedings,” and also would give the State “an equal opportunity to

introduce testimony and other evidence to refute [Syed’s] claims.”

        Next, the post-conviction court addressed Syed’s Supplement, and stated in relevant

part:

               [Syed] also moves this [c]ourt to reopen the post-conviction
            proceedings to allow him to raise the issue of cell tower location
            reliability, which is not currently before the Court of Special
            Appeals and was not raised at the previously concluded post-
            conviction proceedings. Although this [c]ourt is aware that the
            Court of Special Appeals issued a limited remand, the Remand
            Order provided this [c]ourt with the discretion to conduct any
            further proceedings it deems appropriate.

(Emphasis added).




                                              23
       The post-conviction court concluded by ordering that “[Syed’s] Motion to Reopen

[ ] and Supplement thereto is hereby GRANTED[.]” (Bold emphasis in original) (italic

emphasis added).

                                        B. Contentions

       The State argues that the post-conviction court abused its discretion when it

exceeded the scope of this Court’s remand order by reopening Syed’s post-conviction

proceeding to consider issues that were not raised in the first hearing, and not the subject

of our remand order. The State interprets the scope of our remand order as follows: “the

plain and natural reading of the order gave the post-conviction court considerable

discretion to conduct a full range of proceedings, so long as they were related to [ ] McClain

and the issue of Syed’s alibi defense.” From that reading of the “limited” remand order,

the State concludes that to allow the court to reopen Syed’s post-conviction proceeding and

consider any issue other than those arising out of the McClain affidavit would run counter

to the order’s purpose and would constitute “an open invitation to litigate unpreserved

issues altogether unconnected to McClain and the issue of an alibi.”18


       18
           The State also argues that this Court’s remand order prohibited the post-
conviction court from considering the Supplement, because the Supplement was filed after
the 45-day deadline specified in the order. We disagree. First, the 45-day deadline in our
remand order was a procedural mechanism to prevent the instant appeal from entering a
state of limbo. The remand order specified that either the appeal would be stayed pending
the post-conviction court’s consideration of a motion to reopen filed within 45 days, or the
appeal would proceed without this Court’s consideration of any document not made part
of the circuit court record, e.g., the McClain affidavit. Because Syed filed the Motion to
Reopen within 45 days, the purpose of that deadline was satisfied. Second, as will be
discussed infra, the Supplement sets forth a separate motion to reopen Syed’s post-
conviction proceeding under CP § 7-104. CP § 7-104 does not specify a limitation on the
number of motions to reopen that can be filed or on the time that any such motion must be
                                             24
        Syed responds that this Court delegated to the post-conviction court the latitude to

“conduct further proceedings it deem[ed] appropriate.” In Syed’s view, our remand order

was sufficiently broad to allow the post-conviction court to reopen Syed’s post-conviction

proceeding for any reason that it deemed was in the interests of justice.

                                           C. Analysis

       This Court concludes that the post-conviction court did not exceed the scope of our

May 18, 2015 remand order. In remanding Syed’s appeal, we did not require that the post-

conviction court reopen Syed’s previously concluded post-conviction proceeding. Instead,

we provided Syed “with the opportunity to file” with the post-conviction court a motion,

pursuant CP § 7-104, “to re-open the previously concluded post-conviction proceeding in

light of [ ] McClain’s January 13, 2015, affidavit.” Syed did in fact take such opportunity

by filing the Motion to Reopen, which was based on McClain’s affidavit.

       Upon Syed’s filing of the Motion to Reopen, the post-conviction court was required

by the remand order to decide whether to reopen the post-conviction proceeding under CP

§ 7-104. CP § 7-104 states: “The court may reopen a post[-]conviction proceeding that

was previously concluded if the court determines that the action is in the interests of

justice.” Here, the post-conviction court decided to grant the Motion to Reopen, because

the reopening of the post-conviction proceeding to consider the issues raised by the

McClain affidavit would be “in the interests of justice for all parties.” In the instant appeal,




filed. See Gray v. State, 388 Md. 366, 380, 380 n.6 (2005) (stating that CP “§ 7-104 does
not prohibit a person from filing more than one petition to reopen” and that “the statute
does not specify when a defendant must file a petition to reopen”).
                                              25
the State does not challenge the post-conviction court’s granting of the Motion to Reopen.

       The remand order goes on to provide that “[i]n the event that the circuit court grants

a request to re-open the post-conviction proceedings, the circuit court may, in its

discretion, conduct any further proceedings it deems appropriate.” Because the post-

conviction court granted Syed’s Motion to Reopen, the court was specifically authorized

to “conduct any further proceedings it deem[ed] appropriate.”

       As the State properly points out, the authority granted by our remand order for the

post-conviction court to “conduct further proceedings it deem[ed] appropriate” was not a

carte blanche grant for the court to hear any matter raised by the parties. Here, however,

the Supplement was, in effect, a separate motion to reopen the post-conviction proceeding

under CP § 7-104 for the court to consider, among other things, a new claim of ineffective

assistance of counsel, namely, the failure of trial counsel to properly challenge the

reliability of the cell tower location evidence. Clearly, as Syed suggests, it would be in

the interests of judicial economy for the post-conviction court to hear both of Syed’s claims

of ineffective assistance of trial counsel under CP § 7-104 in one proceeding. Therefore,

under the circumstances of the instant case, the post-conviction court acted within the scope

of the May 18, 2015 remand order to conduct a “further proceeding[]” regarding the

Supplement.

       Nevertheless, because we conclude that the Supplement is a separate motion to

reopen under CP § 7-104, there is a condition precedent to the post-conviction court’s

consideration of the Supplement with the Motion to Reopen — the court must determine

whether a reopening for the Supplement is in the “interests of justice.” See CP § 7-104.

                                             26
As will be discussed, infra, the post-conviction court exercised its discretion and concluded

that the reopening of the post-conviction proceeding to consider the Supplement was “in

the interests of justice.” We shall now turn to the issue of whether the post-conviction

court abused its discretion in so doing.

 II. Did the Post-Conviction Court Abuse Its Discretion When It Reopened Syed’s
     Post-Conviction Proceeding to Consider the Claim of Ineffective Assistance of
    Counsel for Trial Counsel’s Failure to Properly Challenge the Reliability of the
                           Cell Tower Location Evidence?

                                           A. Background

       As previously stated, the post-conviction court first granted Syed’s Motion to

Reopen concerning his claim of ineffective assistance of counsel for trial counsel’s failure

to investigate a potential alibi witness, McClain. After recognizing its authority under the

remand order “to conduct any further proceedings it deems appropriate[,]” the post-

conviction court stated, in relevant part:

           After careful consideration of the parties’ pleadings, this [c]ourt in
           the exercise of its discretion, concludes that reopening the post-
           conviction proceedings to allow [Syed] to raise the issue of cell
           tower location reliability and supplement the record with relevant
           materials would be in the interests of justice. The issue of cell tower
           location reliability is premised upon [Syed’s] claims of ineffective
           assistance of counsel and potential prosecutorial misconduct during
           trial, which are grounds for reopening the post-conviction
           proceedings under Maryland law. [Gray v. State, 388 Md. 366, 382
           n.7 (2005)]. [The State] can, of course, submit relevant materials to
           rebut [Syed’s] claims.

                                             ***

           ORDERED, that this [c]ourt shall limit its consideration to:

                                             ***


                                               27
            2) Relevant evidence relating to a) trial counsel’s alleged failure to
            cross[-]examine [the State’s] expert on the reliability of the cell
            tower location evidence and b) potential prosecutorial misconduct
            during trial[.]

(Bold emphasis in original) (italic emphasis added).

                                        B. Contentions

       The State argues that the post-conviction court abused its discretion by reopening

the post-conviction proceeding to consider the claim of ineffective assistance of trial

counsel raised in the Supplement, because “there was no new evidence, no change in law,

no connection to the reason for the remand, and no excuse for why the claim was not raised

earlier.” Recognizing that Maryland appellate courts have interpreted the “interests of

justice” standard to give wide discretion to a post-conviction court to consider whether to

reopen a previously concluded post-conviction proceeding, the State, nevertheless,

contends that, “the ‘interests of justice’ standard must operate as a standard.” (Emphasis

in original). According to the State, if “the ‘interests of justice’ standard is satisfied

whenever [an] attorney[ ] can conjure a ‘potentially meritorious’ claim based on a decades-

old record, despite there being no new evidence, no change in the law, no misconduct, and

no other special circumstances, then the ‘interests of justice’ standard amounts to no

standard at all.”19


       19
         The State also argues that Syed’s Supplement should be considered a second post-
conviction petition, which is forbidden under CP § 7-103(b)(1). We have searched the
record in vain to find where the State has ever articulated this argument. Our review of the
record reveals that on remand, the State never characterized Syed’s Supplement as a second
petition for post-conviction relief. Moreover, the State’s procedural argument has
consistently been that Syed’s cell tower location claims fell outside the scope of our remand
order and that those claims were waived. Accordingly, we do not consider the State’s
                                             28
       Syed responds that the interests of justice standard has been interpreted to give a

post-conviction court broad discretion in determining whether it is in the interests of justice

to reopen a post-conviction proceeding. Acknowledging that the Court of Appeals gave

examples of meritorious reasons to reopen a post-conviction proceeding in Gray v. State,

388 Md. 366 (2005), Syed argues that those examples are just examples, and a post-

conviction court is not required to grant a motion to reopen only on grounds that Maryland

courts have heretofore suggested are proper. Syed further points out that the State cannot

cite to any case where a post-conviction court’s reopening of a post-conviction proceeding

has been overturned on appeal.

                                           C. Analysis

       We begin by briefly reciting the history of CP § 7-103, which governs a petition for

post-conviction relief, and its relationship to CP § 7-104. This Court has articulated such

history as follows:

              Since the enactment of the UPPA in 1958, the General Assembly
           has acted to limit the number of post[-]conviction petitions that a
           person may file for each conviction. Originally, the UPPA “did not
           place any limit on the number of post[-]conviction petitions which a
           petitioner was entitled to file.” Mason v. State, 309 Md. 215, 217-
           18, 522 A.2d 1344 (1987). But, effective July 1, 1986, Art. 27, §
           645A was amended by adding subsection (a)(2), which provided that
           a “person may not file more than two petitions, arising out of each


argument, because it was not “raised in or decided by the trial court.” Md. Rule 8-131(a)
(“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by
the record to have been raised in or decided by the trial court[.]”); see also Conyers v. State,
367 Md. 571, 593-95 (2001). Even if this Court were to consider the State’s argument, we
would conclude that the post-conviction court did not abuse its discretion when it
interpreted Syed’s Supplement as a new motion to reopen and not a second petition for
post-conviction relief. See Gray v. State, 388 Md. 366, 383-84 (2005).
                                              29
          trial, for relief under this Subtitle,” Grayson v. State, 354 Md. 1, 3,
          728 A.2d 1280 (1999).

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

             In 2001, the UPPA was repealed and reenacted at CP §§ 7-101 et
          seq. The provision relating to the reopening of a post[-]conviction
          proceeding is now codified at CP § 7-104 and contains “new
          language derived without substantive change.” Revisor’s Note. The
          words “in its discretion” were “deleted as surplusage.” Id.

Gray v. State, 158 Md. App. 635, 645-46 (2004), aff’d, 338 Md. 366 (2005).

      We further noted that

          [t]here are significant differences between the filing of a petition for
          post[-]conviction relief and a request to reopen a post[-]conviction
          proceeding. For example, a person is entitled, as a matter of right,
          to file one post[-]conviction petition. CP § 7-103(a). The reopening
          of a closed post[-]conviction proceeding, however, is at the
          discretion of the circuit court. CP § 7-104.

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

                                            30
Id. at 645.

       The Court of Appeals has determined that the proper standard of review for a ruling

on a motion to reopen is an abuse of discretion standard, which

              is one of those very general, amorphous terms that appellate courts
              use and apply with great frequency but which they have defined in
              many different ways. . . . [A] ruling reviewed under an abuse of
              discretion standard will not be reversed simply because the appellate
              court would not have made the same ruling. The decision under
              consideration has to be well removed from any center mark
              imagined by the reviewing court and beyond the fringe of what
              that court deems minimally acceptable. That kind of distance can
              arise in a number of ways, among which are that the ruling either
              does not logically follow from the findings upon which it supposedly
              rests or has no reasonable relationship to its announced objective.
              That, we think, is included within the notion of untenable
              grounds, violative of fact and logic, and against the logic and
              effect of facts and inferences before the court.

Gray, 388 Md. at 383-84 (alternations in original) (emphasis added) (internal quotation

marks omitted).

       Relevant to the instant appeal, the Court of Appeals has discussed the meaning of

the phrase “interests of justice:”

                 The phrase “interests of justice” has been interpreted to include a
              wide array of possibilities. See Love v. State, 95 Md. App. 420, 427,
              621 A.2d 910, 914 (1993) (mentioning a long list of reasons for
              granting a new trial in the interests of justice). While it is within the
              trial court’s discretion to decide when “the interests of justice”
              require reopening, we note that some reasons for reopening
              could include, for example, ineffective assistance of post[-
              ]conviction counsel or a change made in the law that should be
              applied retroactively. See Oken v. State, 367 Md. 191, 195, 786 A.2d
              691, 693 (2001) (noting Oken’s motion to reopen a post[-]conviction
              proceeding on the basis that the Supreme Court’s opinion in
              Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d
              435 (2000) rendered his sentencing proceeding invalid); see Harris
              v. State, 160 Md. App. 78, 862 A.2d 516 [(2004)] (discussing the

                                                 31
           defendant’s motion to reopen post[-]conviction proceeding on the
           ground that he had ineffective assistance of post[-]conviction
           counsel, in addition to ineffective assistance of trial and appellate
           counsel); [Stovall v. State, 144 Md. App. 711, 715, A.2d 31, 34
           (2002)] (holding that a defendant may petition to reopen a post[-
           ]conviction proceeding if post[-]conviction counsel was ineffective).

Id. at 382 n.7 (emphasis added).

       It is clear to us that the Court of Appeals’ discussion of the phrase “interests of

justice” in Gray, quoted above, reaffirmed the broad discretion accorded to trial courts in

deciding, “when ‘the interests of justice’ require reopening[.]” See id. The Court cited to

a number of cases as examples of the reasons found by the courts to support a reopening

of a post-conviction proceeding. Id. The examples cited by the Court of Appeals are just

that — examples. See id. They are by no means intended to circumscribe the trial court’s

discretion in deciding whether or not the “interests of justice” warrant a reopening of a

post-conviction proceeding.

       In the case sub judice, the post-conviction court determined that it was in the

interests of justice to reopen Syed’s post-conviction proceeding to consider Syed’s claims

that (1) trial counsel rendered ineffective assistance when she failed to properly challenge

the reliability of the cell tower location evidence, and (2) the State failed to disclose

potentially exculpatory evidence related to the reliability of the cell tower location evidence

in violation of the State’s obligation under Brady. The aforementioned claims revolve

around the AT&T fax cover sheet for Syed’s phone records, which cover sheet contained

a disclaimer stating that “[a]ny incoming calls will NOT be considered reliable information

for location.” Although trial counsel had the disclaimer at the time of trial, she never cross-


                                              32
examined the State’s cell tower expert, Waranowitz, about the reliability of the location of

Syed’s cell phone based on the location of the cell tower when the cell phone received an

incoming call. Also, Waranowitz filed an affidavit in which he averred that the State never

gave him the disclaimer before he testified as to the phone records’ reliability for

determining cell phone location.

       Syed’s claims of ineffective assistance of trial counsel and violation of Brady by the

State regarding the reliability of the cell tower location evidence are clearly cognizable

under the UPPA. See CP § 7-102(a).20 If his claims were not waived, and if he adduced

sufficient evidence to satisfy the test of Strickland or Brady, Syed would be entitled to the

remedy of a new trial under the UPPA. Therefore, it was not “violative of fact and logic”

for the post-conviction court to conclude that reopening Syed’s post-conviction proceeding

to consider his claim regarding the reliability of the cell tower location evidence was in the




       20
            CP § 7-102(a) provides:

             (a) In general – Subject to subsection (b) of this section, §§ 7-103
             and 7-104 of this subtitle and Subtitle 2 of this title, a convicted
             person may begin a proceeding under this title in the circuit court for
             the county in which the conviction took place at any time if the
             person claims that:
                (1) the sentence or judgment was imposed in violation of the
                    Constitution of the United States or the Constitution or laws
                    of the State;
                (2) the court lacked jurisdiction to impose the sentence;
                (3) the sentence exceeds the maximum allowed by law; or
                (4) the sentence is otherwise subject to collateral attack on a
                    ground of alleged error that would otherwise be available
                    under a writ of habeas corpus, writ of coram nobis, or other
                    common law or statutory remedy.
                                               33
“interests of justice.” See Gray, 388 Md. at 383-84. Hence, the post-conviction court did

not abuse its discretion in so doing.

       Nevertheless, the State argues that the post-conviction court abused its discretion by

reopening Syed’s post-conviction proceeding, because his claim regarding the reliability

of the cell tower location evidence could have been raised in his petition for post-conviction

relief and prosecuted at the first hearing but were not. In other words, the State contends

that the decision of whether to reopen a post-conviction proceeding under CP § 7-104

necessarily includes a decision on whether the subject claim has been waived, and if so,

whether the waiver can be excused under the circumstances of the case. See, e.g., CP § 7-

106(b)(1)(ii) (stating that “[f]ailure to make an allegation of error shall be excused if special

circumstances exist”).

       We need not decide whether the issue of waiver is part of the decisional process

regarding a motion to reopen under CP § 7-104. In the instant case, the post-conviction

court did not address the State’s waiver argument when it decided that the reopening of the

post-conviction proceeding to hear Syed’s claims set forth in the Supplement was “in the

interests of justice.” Nonetheless, the court fully considered the waiver issue during the

reopened post-conviction proceeding and ruled on that issue in its Memorandum Opinion

II. Therefore, even if the post-conviction court erred by failing to address the waiver issue

when it decided to reopen the post-conviction proceeding under CP § 7-104 to hear the

Supplement, such error was harmless.




                                               34
   III.    Did the Post-Conviction Court Err by Determining That Syed Did Not
           Waive His Ineffective Assistance of Counsel Claim Pertaining to Trial
           Counsel’s Failure to Properly Challenge the Reliability of the Cell Tower
           Location Evidence?
                                  A. Legal Background

      The UPPA’s waiver provision in CP § 7-106(b) states as follows:

           (b) Waiver of allegation of error. – (1) (i) Except as provided in
           subparagraph (ii) of this paragraph, an allegation of error is waived
           when a petitioner could have made but intelligently and
           knowingly failed to make the allegation:
               1. before trial;
               2. at trial;
               3. on direct appeal, whether or not the petitioner took an appeal;
               4. in an application for leave to appeal a conviction based on a
               guilty plea;
               5. in a habeas corpus or coram nobis proceeding began by the
               petitioner;
               6. in a prior petition under this subtitle; or
               7. in any other proceeding that the petitioner began.
           (ii) 1. Failure to make an allegation of error shall be excused if
           special circumstances exist.
                2. The petitioner has the burden of proving that special
             circumstances exist.
           (2) When a petitioner could have made an allegation of error at
           a proceeding set forth in paragraph (1)(i) of this subsection but
           did not make an allegation of error, there is a rebuttable
           presumption that the petitioner intelligently and knowingly
           failed to make the allegation.

(Italic emphasis in original) (bold emphasis added).

      In the seminal case of Curtis v. State, 284 Md. 132, 133 (1978), the Court of Appeals

addressed the application of CP § 7-106(b), then known as Article 27, § 645A,21 to claims



      21
         The waiver provision in Maryland Code (1957, 1976 Repl. Vol.), Article 27, §
645A (c) read as follows:

                                            35
of ineffective assistance of counsel. Because both parties in the instant appeal focus their

arguments on Curtis, we shall begin with an examination of that case.

       In 1967, Curtis “was convicted of first degree murder . . . in . . . Prince George’s

County[;]” a conviction that was subsequently upheld on direct appeal. Id. at 134. With

the aid of counsel different from his trial and appellate counsel, Curtis filed his first petition

for post-conviction relief. Id. Curtis’s petition alleged several errors, but it did not contain

any claim of ineffective assistance of counsel. Id. “After a hearing on the merits, the [post-

conviction] court denied relief” in 1970. Id.

       In 1976, when the UPPA still allowed an unlimited number of post-conviction

petitions,22 Curtis filed a second petition for post-conviction relief with the aid of new post-


               (c) When allegation of error deemed to have been waived. – For
            the purposes of this subtitle, an allegation of error shall be deemed
            to be waived when a petitioner could have made, but intelligently
            and knowingly failed to make, such allegation before trial, at trial,
            on direct appeal (whether or not said petitioner actually took such an
            appeal), in any habeas corpus or coram nobis proceeding actually
            instituted by said petitioner, in a prior petition under this subtitle, or
            in any other proceeding actually instituted by said petitioner, unless
            the failure to make such allegation shall be excused because of
            special circumstances. The burden of proving the existence of such
            special circumstances shall be upon the petitioner.
               When an allegation of error could have been made by a petitioner
            before trial, at trial, on direct appeal (whether or not said petitioner
            actually took such an appeal), in any habeas corpus or coram nobis
            proceeding actually instituted by said petitioner, in a prior petition
            under this subtitle, or in any other proceeding actually instituted by
            said petitioner, but was not in fact so made, there shall be a rebuttable
            presumption that said petitioner intelligently and knowingly failed
            to make such allegation.
       22
         “Ch. 110 of the Acts of 1995,” “permitted [a petitioner] to ‘file only one petition
arising out of each trial,’ . . . [and] provided that ‘[t]he court may in its discretion reopen a
                                               36
conviction counsel. See id. at 134. In that petition, Curtis raised for the first time, among

other things, the issue of ineffective assistance of trial counsel. Id. at 134-35. Upon

consideration of the State’s motion to dismiss, the post-conviction court dismissed Curtis’s

second petition for post-conviction relief, reasoning that, because Curtis failed to raise the

issue of ineffective assistance of trial counsel in his first post-conviction petition, he waived

the issue. Id. at 135-36.

       After this Court granted Curtis leave to appeal and upheld the post-conviction

court’s dismissal, the Court of Appeals granted certiorari. Id. at 136-37. The Court stated

that the issue before it was whether

              the General Assembly, by use of the term ‘waiver’ in the [UPPA],
              intend[ed] that [that] definition of ‘waiver’ set forth in subsection (c)
              [now CP § 7-106(b)] determine in all cases the right to raise for the
              first time any issue in a post[-]conviction action, regardless of the
              nature of prior procedural defaults, tactical decisions of counsel, or
              omissions of counsel[.]

Id. at 141.

       The Court determined that, because the term “waiver” possesses inherent ambiguity,

the waiver provision in the UPPA did not necessary apply to “all allegations made in post[-

]conviction actions.” Id. at 142. The Court reasoned:

                 If, in defining “waiver” for purposes of the [UPPA], the
              General Assembly intended to make subsection (c), with its
              “intelligent and knowing” definition, applicable every time
              counsel made a tactical decision or a procedural default
              occurred, the result could be chaotic. For example, under such
              an interpretation of the statute, for a criminal defendant to be

post[-]conviction proceeding that was previously concluded if the court determines that
such action is in the interests of justice.’” Gray, 158 Md. App. at 645-46 (quoting Grayson
v. State, 354 Md. 1, 4 (1999)).
                                                 37
           bound by his lawyer’s actions, the lawyer would have to
           interrupt a trial repeatedly and go through countless litanies
           with his client. One of the basic principles of statutory construction
           is that a statute should not be construed to lead to an unreasonable
           or illogical result. Grosvenor v. Supervisor of Assess., 271 Md. 232,
           242, 315 A.2d 758 (1974); Coerper v. Comptroller, 265 Md. 3, 6,
           288 A.2d 187 (1972); Pan Am. Sulphur Co. v. State Dep’t of
           Assessments and Taxation, 251 Md. 620, 627, 248 A.2d 354 (1968);
           Sanza v. Maryland Board of Censors, 245 Md. 319, 340, 226 A.2d
           317 (1967). It is hardly conceivable that the Legislature, in adopting
           § 645A (c) [now CP § 7-106(b)], could have intended to use the word
           “waiver” in its broadest sense, thereby requiring that the “intelligent
           and knowing” standard apply every time an issue was not raised
           before.

Id. at 149 (emphasis added). The Court then turned its attention to “what type of situations

the Legislature intended to” require an intelligent and knowing waiver. See id. at 142, 149.

       The Court held that the UPPA’s “intelligent and knowing” requirement applies “in

those circumstances where [a knowing and intelligent] waiver” is required to relinquish

certain fundamental constitutional rights such as the right to counsel, the right to a jury

trial, the right against self-incrimination, and the right against double jeopardy. Id. at 143-

44, 49. The Court cautioned, however, that not all rights are so fundamental as those rights

that require a knowing and intelligent waiver. Id. at 145. For example, even though “a

defendant has a constitutional right not to be tried in [prison] attire, only by affirmatively

asserting this right will it be given effect.” Id. This is because when competent trial

counsel represents a defendant, that counsel may determine as a matter of trial tactics to

decline to invoke this right. Id. at 145-46. In addition, the Court stated that the Supreme

Court has recognized that “a ‘procedural default’ in certain circumstances, even where a

defendant may personally have been without knowledge or understanding of the matter,


                                              38
may result in his being precluded from asserting important rights[,]” such as a procedural

requirement that a defendant timely object to the racial composition of a grand jury. Id. at

146-47.

       In sum,

              whether one is precluded from asserting a constitutional right
              because of what may have occurred previously, even though the
              failure was not “intelligent and knowing,” depends upon the nature
              of the right and the surrounding circumstances. A defendant may
              forego a broad spectrum of rights which are deemed to fall within
              the category of tactical decisions by counsel or involve procedural
              defaults.

Id. at 147.

       The Court concluded that

              the term “waiver” could be said to connote the intelligent and
              knowing relinquishment of certain basic constitutional rights under
              circumstances where the courts have held that only such intelligent
              and knowing action will bind the defendant. In our view, the
              Legislature was using the word “waiver” in this narrow sense in the
              Maryland Post Conviction Procedure Act, Art. 27, § 645A [now CP
              § 7-106(b)].

Id. at 148.

       Returning to the case before it, the Court addressed Curtis’s claim “that the

representation by his trial counsel was so inadequate that he was deprived of his Sixth

Amendment right to have the Assistance of Counsel for his defense.” Id. at 150 (internal

quotation marks omitted). The Court held “that a criminal defendant cannot be precluded

from having this issue considered because of his [or her] mere failure to raise the issue

previously.” Id. (emphasis added). The Court explained:



                                              39
           The question of the constitutional adequacy of trial counsel’s
           representation is governed by the Johnson v. Zerbst standard of an
           “intelligent and knowing” waiver. Hawk v. Olson, 326 U.S. 271,
           274, 279, 66 S. Ct. 116, 90 L. Ed. 61 (1945); Glasser v. United
           States, 315 U.S. 60, 70-72, 62 S. Ct. 457, 86 L. Ed. 680
           (1942); United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); Kelly
           v. Peyton, 420 F.2d 912, 914 (4th Cir. 1969); Sawyer v. Brough, 358
           F.2d 70, 73-74 (4th Cir. 1966). Consequently, subsection (c) of the
           [UPPA] is applicable to Curtis’s contention, and it can only be
           deemed “waived” for purposes of the [UPPA] if Curtis “intelligently
           and knowingly” failed to raise it previously. The proffered facts,
           accepted as true by the circuit court for purposes of the State’s
           motion to dismiss on the ground of waiver, clearly disclose that
           Curtis did not “intelligently and knowingly” fail to previously
           raise the matter of his trial counsel’s alleged inadequacy.
           Therefore, the issue cannot be deemed to have been waived.

Id. at 150-51 (emphasis added).

       The Curtis Court’s holding that the UPPA waiver provision is only applicable when

allegations of error raised by a petitioner invoke a narrow set of fundamental constitutional

rights has created “a dual framework” for analyzing whether a petitioner has waived a

particular issue for failure to raise that issue in a previous proceeding. See Hunt v. State,

345 Md. 122, 137-38 (1997). A court must examine whether the “nature of the right

involved” is recognized by the Supreme Court as requiring an intelligent and knowing

waiver, and thereby a fundamental right governed by CP § 7-106(b), see id. at 137-38, or,

whether the “nature of the right involved” is a non-fundamental right and thereby governed

by the “general legal principles” of waiver. See State v. Torres, 86 Md. App. 560, 568

(1991) (stating that for claims invoking non-fundamental rights “waiver is determined by

general legal principles. The most significant of these principles is that the failure to




                                             40
exercise a prior opportunity to raise an allegation of error generally effects a waiver of the

right to raise the matter at a later time.”). In other words,

            when [a] court finds that the possibility existed for a petitioner to
            have previously raised a particular allegation but he [or she] did not
            do so, the allegation will be deemed waived because of the failure to
            have previously raised it only if the right upon which the allegation
            is premised is a non-fundamental right. Conversely, if the right upon
            which the allegation is premised is a fundamental right, the
            allegation will not be deemed waived simply because it was not
            raised at a prior proceeding. Fundamental rights . . . may be waived
            only where the petitioner intelligently and knowingly effects the
            waiver.

Wyche v. State, 53 Md. App. 403, 407 (1983).23 With the above legal background in mind,

we return to the case before us.

                           B. Reopened Post-Conviction Proceeding

       Syed argued at the second hearing that his trial counsel rendered ineffective

assistance of counsel on the ground that she failed to challenge the reliability of the cell

tower location evidence by cross-examining Waranowitz about the fax cover sheet

disclaimer, which stated: “Any incoming calls will NOT be reliable information for


       23
           To be sure, however, if a post-conviction court determines that a petitioner has
waived his or her allegation of error, a petitioner still has the opportunity to argue that the
court should excuse the waiver and proceed to the merits. Hunt, 345 Md. at 139. If a
petitioner waived an allegation premised on a fundamental right, then the petitioner has the
burden of proving that “special circumstances” exist. See CP § 7-106(b)(1)(ii). If a
petitioner has waived an allegation premised on a non-fundamental right, then a court, in a
post-conviction proceeding, can excuse a waiver “if the circumstances warrant such
action.” See Walker v. State, 343 Md. 629, 647-48 (1996) (“Nevertheless, as the circuit
court recognized in the present case, this Court has taken the position that a court, in a
post[-]conviction proceeding can excuse a waiver based upon an earlier procedural default
if the circumstances warrant such action. In effect, we have upheld the application of the
‘plain error’ or ‘special circumstances’ principles to waivers of the type here involved.”);
see also Cirincione v. State, 119 Md. App. 471, 512-17 (1998).
                                              41
location” (“cell tower ground”). Syed asserted that the disclaimer was important, because

the State relied on the cell tower location for two incoming calls to place him at the burial

site after 7:00 p.m. on January 13, 1999. The State responded that Syed waived this

allegation of error, because he failed to raise it during the first hearing.

       In considering the State’s waiver argument, the post-conviction court, relying on

Curtis, stated that “the Sixth Amendment right to effective assistance of counsel [w]as a

fundamental right in the context of waiver.” The post-conviction court then determined

that Syed had sufficiently rebutted the presumption that he intelligently and knowingly

waived such claim, reasoning:

           Although [Syed] alleged that trial counsel may have been ineffective
           on other grounds in his initial petition, he has never alleged that trial
           counsel rendered ineffective assistance for her alleged failure to
           challenge the State’s cell tower expert with the disclaimer. More
           importantly, [Syed] was never advised that trial counsel may have
           been ineffective for her alleged failure to challenge the State’s cell
           tower expert at trial with the disclaimer in prior proceedings. In fact,
           [Syed’s] counsel for the post-conviction proceedings did not advise
           [Syed] about the issue until shortly before August 24, 2015, when
           counsel consulted with a cell tower expert about the potential
           ramifications of the disclaimer. . . . Since [Syed] did not know about
           the potential implications of trial counsel’s failure to challenge the
           cell tower evidence, he could not have knowingly waived his right
           to raise the allegation.

The post-conviction court then proceeded to address the merits of such claim and granted

Syed post-conviction relief.

                                    C. Contentions on Appeal

       The State contends that the post-conviction court erred in ruling that Syed’s

ineffective assistance of counsel claim was based on a fundamental constitutional right and


                                               42
thus required a knowing and intelligent waiver pursuant to CP § 7-106(b) and Curtis. The

State asserts that the post-conviction court erroneously relied on Curtis, because in that

case, Curtis never raised the issue of ineffective assistance of trial counsel in his first post-

conviction petition while in the instant case, Syed did raise the issue of ineffective

assistance of trial counsel at the first hearing, but failed to raise the cell tower ground.

Accordingly, the State urges this Court to conclude that Syed waived his new claim of

ineffective assistance of counsel.

       Syed responds that the post-conviction court properly ruled that a knowing and

intelligent waiver was required for Syed to waive his claim of ineffective assistance of

counsel pursuant to Curtis. Syed contends that Curtis has not been overturned, is still good

law, and is not distinguishable. Moreover, Syed asserts that he did not knowingly and

intelligently waive his claim of ineffective assistance of counsel on the cell tower ground,

because he did not discover such ground until after this Court stayed and remanded his first

appeal and his post-conviction counsel informed him of the significance of the fax cover

sheet disclaimer.24

                                           D. Analysis

       In our view, the question that the State raises in the instant appeal is as follows:



       24
          At oral argument before this Court, Syed’s counsel suggested that waiver is not
applicable in this case, because Syed’s original post-conviction proceeding was not finally
litigated when his case was remanded by this Court’s May 18, 2015 remand order. The
record is devoid of any instance in which Syed has ever articulated this
argument. Therefore, Syed’s argument is not preserved for appellate review. Md. Rule 8-
131(a); see also Conyers v. State, 367 Md. 571, 593-95 (2001) (“Ordinarily, an argument
not raised in the proceedings below is not preserved for appellate review.”).
                                               43
Where the issue of ineffective assistance of trial counsel has been raised and decided in a

previous post-conviction proceeding, does a petitioner, absent a knowing and intelligent

waiver, have the right to raise such issue again but on a different ground in a reopening of

that proceeding? The post-conviction court answered this question by announcing that

Curtis stood for the proposition that the issue of ineffective assistance of counsel may be

raised a second time on a ground not raised previously, and a petitioner only waives this

issue when he or she does so knowingly and intelligently as to that particular ground. We

disagree with this broad reading of Curtis.

       We are not aware of any decision by the Supreme Court, Court of Appeals of

Maryland, or this Court holding that for waiver to apply, a petitioner in his or her first post-

conviction proceeding must intelligently and knowingly waive the grounds not raised in

support of a claim of ineffective assistance of counsel. Moreover, Syed has not directed

our attention to any precedent to support such principle, except that of a broad reading of

Curtis. Our research, however, has identified two Maryland cases that point us to the

answer.

       In Wyche, this Court reviewed the denial of Wyche’s third petition for post-

conviction relief, in which he contended “that he was denied his constitutional right to be

present at his trial because he was not present when the trial judge . . . reinstructed the

jury.” 53 Md. App. at 404. Because Wyche had failed to raise such error at trial, on appeal,

or in either of his prior post-conviction petitions, the post-conviction court held that Wyche

had waived his right to raise it. Id. at 404-05. Consequently, we were called upon to decide

whether the post-conviction court correctly determined that there had been a waiver

                                              44
because of Wyche’s failure to raise the claim in a prior proceeding. Id. at 405. In our

discussion of the law, we set forth a synthesis of the holdings in Curtis and its progeny

regarding waiver under Article 27, § 645A. Id. at 405-06. At the conclusion of our

summary of the dichotomy between the waiver of a fundamental right, which requires an

intelligent and knowing waiver by the petitioner, and a non-fundamental right, which

occurs from the failure to raise a violation in a prior proceeding when it was possible to do

so, we added the following footnote:

              If an allegation concerning a fundamental right has been made
           and considered at a prior proceeding, a petitioner may not again raise
           that same allegation in a subsequent post[-]conviction petition by
           assigning new reasons as to why the right had been violated, unless
           the court finds that those new reasons could not have been presented
           in the prior proceeding.

Id. at 407 n.2.

       We recognize that the above footnote is dicta and that no legal authority was cited

in support of it. Nevertheless, we believe that the language in the footnote identifies an

important distinction in the UPPA waiver analysis. Specifically, the distinction between

the issue of a violation of a fundamental right, such as a claim of ineffective assistance of

counsel, and the grounds supporting such claim where the fundamental right can be

violated in many different ways. The footnote suggests that the “intelligent and knowing”

requirement for waiving a fundamental right is limited to a failure to raise a claim of a

violation of that right in a prior proceeding and does not extend to the grounds for such

claim where the issue has been raised in a prior proceeding. In other words, the many




                                             45
different grounds that may be advanced in support of a claim of a violation of a fundamental

right are not themselves a fundamental right.

       We also find Arrington v. State, 411 Md. 524 (2009), to be instructive. In Arrington,

“Arrington was convicted of second degree murder in connection with the stabbing death

of Paul Simmons” in 1995 and filed his post-conviction petition in 2000. Id. at 527, 530.

In his post-conviction petition, Arrington raised the issue of ineffective assistance of

counsel on the ground of trial counsel’s failure “to have the blood evidence presented in

the case tested through a DNA analysis[,]” despite Arrington’s request for testing. Id. at

530.   The blood evidence at trial showed only that the bloodstains on Arrington’s

sweatpants “were consistent with the blood type of the victim in this particular case, or any

other individual with the same blood type[.]” Id. at 529 (emphasis added) (internal

quotation marks omitted). According to Arrington, DNA testing would have shown that

the blood on his sweatpants was not the victim’s blood. Id. at 531. The post-conviction

court, however, determined from the testimony of Arrington’s trial counsel that counsel

made the tactical decision not to have Arrington’s sweatpants tested, because of, among

other things, the risk that the DNA testing would show that the victim’s blood was indeed

on Arrington’s sweatpants.      Id. at 532-33.    Thus the post-conviction court denied

Arrington’s request for a finding of ineffective assistance of counsel. Id. at 532.

       In 2006, Arrington filed a motion to reopen his post-conviction proceeding and

request for a new trial pursuant to CP § 8-20125 on the basis of “newly discovered DNA


       25
         “Maryland is among the many states in this country that have enacted post-
conviction DNA testing statutes. Section 8–201 was enacted in Maryland in 2001, in line
                                             46
testing results” that proved that the blood on Arrington’s sweatpants was not from the

victim. Id. at 534. Arrington asserted that he was entitled to a new trial, because the blood

evidence at trial misled the jury. Id. In addition to this claim, Arrington made claims of

ineffective assistance of trial counsel based on grounds not previously raised, including,

inter alia, grounds that “his trial counsel[ ] fail[ed] to cross-examine the State’s expert

regarding the percentage of the population that possesse[d] the blood type or enzyme at

issue in the case[,]” and that his trial counsel allegedly failed “to make use of critical

exculpatory evidence contained in various police reports.” Id. at 535.

       The post-conviction court dismissed the new claims of ineffective assistance of trial

counsel as waived, and the Court of Appeals quoted the post-conviction court’s reasoning

at length. Id. at 539-40. That reasoning was as follows:

              Petitioner also claims ineffective assistance of counsel
           stemming from counsel’s failure to use critical exculpatory
           evidence contained in various police reports, as well as failure to
           establish the percentage of individuals having the same blood
           type as both Petitioner and the victim. Petitioner raised
           ineffective assistance of counsel at his first post[-]conviction
           proceeding. It is Petitioner’s position that a reopening of post[-
           ]conviction proceedings pursuant to § 8–201, ipso facto reopens
           all issues, regardless of any claims of waiver, abandonment
           or that claims have been fully litigated. Petitioner fails to cite any
           authority for such a reading of § 8–201. The legislature intended §
           8–201 to provide a mechanism for those with claims of “actual
           innocence” to utilize favorable scientific evidence at any time to
           prove their innocence. The statute was not designed to open the
           floodgates of otherwise structured and constricted post[-
           ]conviction law. Nor was it designed to provide a “super-appeal”

with a nationwide trend to adopt post[-]conviction DNA testing statutes designed to
provide an avenue for the exoneration of the actually innocent.” Blake v. State, 395 Md.
213, 218-19 (2006) (footnote omitted).

                                             47
              as an end-run around the entire body of post[-]conviction law. An
              additional question for the [c]ourt is whether it is in the interests of
              justice to reopen the issue of ineffective assistance of counsel at this
              juncture.

                 Petitioner points to trial counsel’s failure to utilize
              exculpatory information contained within certain police reports
              to demonstrate ineffective assistance of trial counsel. All of the
              information was known prior to trial, let alone prior to the first
              post[-]conviction hearing. Petitioner had the benefit of counsel
              on appeal and failed to raise these issues. Further, Petitioner
              had the benefit of counsel during his initial post[-]conviction and
              failed to raise these issues in support of his allegation of
              ineffective assistance of counsel. Consequently, Petitioner has
              waived the right to now assert these claims. Furthermore, it
              would not be in the interests of justice to reopen the ineffective
              assistance of counsel claim where, as here, the Petitioner had
              access to the information complained of prior to his appeal, as
              well as his first post[-]conviction hearing, and failed to raise
              these issues in those forums.

Id. (emphasis added).

       On a direct appeal to the Court of Appeals, pursuant to CP § 8-201(j)(6) (2001, 2008

Repl. Vol.), Arrington argued that the post-conviction court erred in failing to reopen his

post-conviction proceeding to consider his claims of ineffective assistance of counsel on

new grounds. Id. at 540-42. In rejecting Arrington’s argument, the Court stated:

                 This Court has yet to decide whether a petitioner in a reopened
              post[-]conviction proceeding may raise claims that would normally
              be precluded under the statutory provisions about waiver in the
              Uniform Post[-]conviction Procedure Act (“UPPA”), CP Sections
              7–101 through 7–301 (2008 Repl. Vol.). We decide today, for the
              reasons explained below, that a petitioner may not assert, in a post[-
              ]conviction proceeding reopened under the authority of CP Section
              8–201, claims that could have been, but were not, raised in the
              original post[-]conviction proceeding, other than claims based on the
              results of the post[-]conviction DNA testing.

Id. at 545.

                                                48
       The above language in Arrington implies that “under the statutory provisions about

waiver in the [UPPA,]” id., Arrington had waived his right to assert claims of ineffective

assistance of counsel on the new grounds alleged in his motion to reopen, where (1) all of

the information about the new grounds was known prior to the first post-conviction

hearing; (2) Arrington had the benefit of post-conviction counsel during the initial post-

conviction proceeding; and (3) his post-conviction counsel failed to raise those grounds in

support of his claims of ineffective assistance of trial counsel. See id. at 539. The issue

before the Court of Appeals in Arrington was whether the waived claims of ineffective

assistance of counsel could still be raised “in a post[-]conviction proceeding reopened

under the authority of CP Section 8-201[.]” Id. at 545. The Court held that those waived

claims could not be raised. Id.

       Considering Curtis, Wyche, and Arrington together, we conclude that the UPPA’s

“intelligent and knowing” requirement for the waiver of a fundamental right is limited to

situations where the issue of a violation of a fundamental right was not raised in a prior

proceeding. In Curtis, the issue of ineffective assistance of counsel was not raised in the

first petition for post-conviction relief. 284 Md. at 134-35. The Court of Appeals

determined that the issue of ineffective assistance of counsel was premised on a

fundamental constitutional right, and thus “a criminal defendant cannot be precluded from

having this issue considered because of his mere failure to raise the issue previously.” Id.

at 150. In the instant case, by contrast, Syed did raise the issue of ineffective assistance of

trial counsel at the first hearing. Syed’s post-conviction counsel advanced seven claims

that trial counsel’s representation was constitutionally inadequate, each on a separate

                                              49
ground. The cell tower ground was not one of those grounds. Consequently, the question

of waiver regarding the failure to raise the issue of ineffective assistance of trial counsel is

not present here.

       In Curtis, the Court of Appeals identified non-fundamental rights, which can be

precluded without an “intelligent and knowing” waiver, as those that “fall within the

category of tactical decisions by counsel or involve procedural defaults.” Id. at 147.

“Tactical decisions, when made by an authorized competent attorney, as well as legitimate

procedural requirements, will normally bind a criminal defendant.”26         Id. at 150. In our

view, the selection of a particular ground to support a claim of ineffective assistance of

counsel is a quintessential tactical decision of counsel. Counsel must (1) decide whether

the record supports a particular ground for a claim of ineffective assistance of counsel, (2)

identify and develop evidence in support of such ground, (3) assess the strength of the

evidence, and (4) evaluate the likelihood of success. Therefore, although the issue of

ineffective assistance of counsel is premised on a fundamental right under Curtis, a ground

supporting that issue is not. Cf. Arrington, 441 Md. at 545; Wyche, 53 Md. App. at 407

n.2. Accordingly, the cell tower ground supporting Syed’s new claim of ineffective




       26
           Although Curtis also asserted that first post-conviction counsel was ineffective
because that attorney failed to raise the issue of ineffective assistance of trial counsel in the
first petition, this Court held that the representation of first post-conviction counsel was
not constitutionally inadequate, and Curtis did not challenge that holding before the Court
of Appeals. Curtis, 284 Md. at 135, 137-41. Likewise, in the instant case, the failure to
raise the cell tower ground at the first hearing was done by competent post-conviction
counsel. Nowhere in the Motion to Reopen or the Supplement did Syed assert that his
post-conviction counsel was ineffective at the first hearing.
                                               50
assistance of trial counsel is based on a non-fundamental right for the purpose of waiver

under the UPPA.

       As the Court of Appeals has explained:

            As to lesser or non-fundamental rights, the petitioner will be deemed
            to have waived any claim of error if petitioner or petitioner’s counsel
            failed to exercise a prior opportunity to raise it notwithstanding a
            lack of personal knowledge of the right of which petitioner was
            deprived, except when the failure to allege the error is excused by
            special circumstances.

McElroy v. State, 329 Md. 136, 140-41 (1993) (footnote omitted). We thus conclude that,

where the issue of ineffective assistance of counsel is raised in a prior proceeding, the

failure to assert a particular ground in support of the issue will constitute a waiver of that

ground, unless the court finds that the ground could not have been presented in the prior

proceeding.27

       Our conclusion is consistent with the legislative history of the UPPA; specifically,

Chapter 110 of the Acts of 1995, which reduced the number of petitions allowed to one

and created the procedure for reopening a post-conviction proceeding. See Alston v. State,

425 Md. 326, 335 (2012). In examining the legislative history of Chapter 110 of the Acts

of 1995, the Court of Appeals observed that the purpose of this provision was to amend the

UPPA to allow for a petitioner to have one petition for post-conviction relief but “provide

a safeguard for the occasional meritorious case” through the reopening procedure, now

codified in CP § 7-104. See id.


       27
        Even if a particular ground has been waived, the court has the authority to excuse
such waiver if the circumstances so warrant. See supra note 23.

                                              51
       The Court explained the new provision by pointing to the testimony of “the

Governor’s Chief Legislative Officer [ ] before the Senate Judicial Proceedings Committee

on Senate Bill 340, which became Ch. 110,” and was as follows:

           “In [1986], the General Assembly capped the number of post[-
           ]conviction petitions to two. However, there is no apparent rationale
           for not limiting the defendant to one petition. Common sense
           dictates that the defendant should include all grounds for relief
           in one petition. The right to file a second post[-]conviction
           petition simply affords the . . . defendant an unwarranted
           opportunity for delay. Senate Bill 340 limits the defendant to one
           post[-]conviction petition unless the court determines that reopening
           the case is necessary to prevent a miscarriage of justice.”

Id. at 336 (italic emphasis in original) (bold emphasis added). In addition,

           [t]he Chairperson of the Governor’s Commission on the Death
           Penalty, which drafted Senate Bill 340, also testified on the Bill
           before the Senate Judicial Proceedings Committee. He stated:

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

Id. (emphasis added).

       As we read the legislative history, the General Assembly intended that a petitioner

raise all claims cognizable under the UPPA in his or her original petition. See id. To

extend Curtis’s requirement of a knowing and intelligent waiver from the issue of

ineffective assistance of counsel to every ground that could support such claim would run

                                            52
counter to the legislative history and purpose of Chapter 110 of the Acts of 1995, because

it would allow a petitioner to raise claims of ineffective assistance of counsel on grounds

not previously raised ad infinitum.

       Finally, because the cell tower ground is premised on a non-fundamental right, the

failure to assert such ground at the first hearing constituted a waiver of the claim of

ineffective assistance of trial counsel based on that ground, unless it was not possible for

Syed to have raised it at that time. See Wyche, 53 Md. App. at 407 n.2. Syed has not

argued that it was not possible for his post-conviction counsel to raise in the initial petition

the claim of ineffective assistance of counsel based on the cell tower ground, and we see

no support in the record for the argument that it was not possible for Syed’s post-conviction

counsel to assert such ground at that time. Specifically, there is no dispute that Syed’s trial

counsel and post-conviction counsel possessed the fax cover sheet disclaimer, which is the

basis of Syed’s new ineffective assistance of trial counsel claim. Because Syed’s post-

conviction counsel could have raised at the first hearing the claim of ineffective assistance

of counsel based on trial counsel’s failure to challenge the reliability of the cell tower

location evidence by cross-examining Waranowitz about the fax cover sheet disclaimer,

we hold that Syed waived this claim of ineffective assistance of counsel.28




       28
          We note that Syed did not argue that his waiver should be excused under general
waiver principles in his reopened post-conviction proceeding. See, e.g., Walker v. State,
343 Md. 629, 647-650 (1996) (concluding that the petitioner did not present circumstances
sufficient to excuse waiver of jury instruction error). Accordingly, such issue is not before
us in the instant appeal. See Md. Rule 8-131(a).
                                              53
  SYED’S QUESTIONS ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF
                            COUNSEL

      A defendant has the right to effective assistance of counsel pursuant to the Sixth

Amendment of the United States Constitution and Article 21 of the Maryland Declaration

of Rights. State v. Sanmartin Prado, 448 Md. 664, 681 (2016). When a defendant claims

that this right has been violated, he or she must satisfy a two-step test known as the

Strickland test. Strickland v. Washington, 466 U.S. 668, 687 (1984).

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

Id.

                                   Standard of Review

      When a claim of ineffective assistance of counsel is considered on appeal, as in this

case, we apply the following standard of review:

          [T]he [trial] court’s determinations regarding issues of effective
          assistance of counsel is a mixed question of law and fact. We will
          not disturb the factual findings of the post-conviction court unless
          they are clearly erroneous. But, a reviewing court must make an
          independent analysis to determine the ultimate mixed question of
          law and fact, namely, was there a violation of a constitutional right
          as claimed. In other words, the appellate court must exercise its own
          independent judgment as to the reasonableness of counsel’s conduct
          and the prejudice, if any. . . . [The appellate court] will evaluate anew
          the findings of the [trial] court as to the reasonableness of counsel’s

                                             54
            conduct and the prejudice suffered. As a question of whether a
            constitutional right has been violated, we make our own independent
            analysis by reviewing the law and applying it to the facts of the case.

Sanmartin Prado, 448 Md. at 679 (some alterations in original) (internal quotation marks

and citation omitted).

I.     Did the Post-Conviction Court Err by Holding that Syed’s Right to Effective
       Assistance of Counsel Was Not Violated When Trial Counsel Failed to Pursue
                               a Plea Deal With the State?

                                          A. Background

       In his petition for post-conviction relief, Syed claimed, inter alia, that his trial

counsel was ineffective for failing to pursue a plea offer. The following relevant testimony

was adduced at the first hearing.

       Syed testified that he consistently expressed his innocence to trial counsel, but after

speaking with fellow inmates at the Baltimore City jail, he was urged to ask trial counsel

about the possibility of the State offering a plea. Consequently, according to Syed, he took

the following actions prior to his first trial:


            [SYED]:           [ ] I asked [trial counsel] if the State offered a plea
                              deal. She said no. My next question [ ] was to her,
                              could she speak to the State’s Attorney or request
                              some type of a plea. And I explained to her that I
                              didn’t really have confidence that I’d be able to
                              prove I was somewhere else when the murder take
                              [sic] place and when the State’s theory that the
                              murder took place, from the information that we
                              were getting. So that’s what I asked her.

            [PC1
            COUNSEL]:         And how did she respond to your request?


                                                  55
            [SYED]:         She responded in the affirmative. And I took it to
                            mean that, okay, she was going to ask [the State].

            [PC1
            COUNSEL]:       And did she ever follow-up on this?

            [SYED]:         Well, my [sic] next time that I saw her, I asked her,
                            what was the end result? Did she get a chance to
                            speak to the State’s Attorney? And her response
                            was, “They’re not offering you a plea deal.” So,
                            when she said that, that’s what it was. There was
                            nothing else for me to ask her after that, because I
                            believed that she went and spoke to the State’s
                            Attorney, the State’s Attorney said no, and that’s
                            what it was.

       After the first trial ended in a mistrial but before the second trial began, Syed

recalled:

            [SYED]:         [ ] I expressed to [trial counsel] again that, I really
                            didn’t have confidence in the case because now, my
                            fears are confirmed that, that’s essentially to me
                            what it came down to. The perception in my mind
                            was, this is what this case comes down to. Where
                            was I at this time. So, I asked [trial counsel] once
                            again, do you think the State will offer a deal?
                            Could you talk to them again?

            [PC1
            COUNSEL]:       And, did she respond?

            [SYED]:         She responded that, they’re not offering you a deal.

       Kevin Urick, the lead prosecutor for Syed’s case, testified as to his recollection of

any plea discussions, as follows:

            [PC1
            COUNSEL]:       Okay. So . . . to the best of your knowledge, it’s
                            your recollection and it’s [co-counsel’s]
                            recollection, that [trial counsel] never once


                                             56
                             approached either of you about a plea, a plea
                             deal for [ ] Syed?

           [URICK]:          That’s correct. She never made any presentation
                             other than that they were seeking a finding of
                             actual innocence for [Syed].

           [PC1
           COUNSEL]:         And when we spoke on the phone, you told me
                             that you had no idea what kind of plea [ ] Syed
                             might have received if one had been requested;
                             is that correct?

           [URICK]:          That is correct.

(Emphasis added).

       When asked whether there was any “plea bargaining policy that existed within the

State’s Attorney’s Office” at the time of Syed’s trial, Urick stated that “[t]here’s never been

an established plea bargaining policy. At least not in the time [he] was [t]here.” Moreover,

Urick explained that in a high profile case like Syed’s, he would have had to take multiple

steps in order to find out if he could even make a plea offer:

           [STATE]:          Had you been asked to extend any kind of an offer
                             in a case such as this one, how would you handle
                             that?

           [URICK]:          The first thing I would have done, would have been
                             to talk to the family. In a case like this, you
                             give even more consideration to a family of a
                             homicide victim. You try always to be considerate
                             of a victim, and the victim’s family in all cases.
                             But a homicide case, it’s even more so. So, I would
                             have talked to Ms. Lee’s family, see what they
                             thought. Then after I talked to them, I would have
                             gone probably to Sal Fili[, Urick’s supervisor and
                             Division Chief of Felony Narcotics ], and told him
                             that we were beginning to talk about [a] plea and I
                             was planning to go to Mark Cohen[, the head of the

                                              57
                              Homicide Unit at the time,] to discuss it. . . . I would
                              have then gone to talk to Mark Cohen to see what
                              he felt. And I’m pretty certain that in this particular
                              case, he would have suggested that we go to Ms.
                              Jessamy[, the Baltimore City State’s Attorney at the
                              time,] with it and see where she stood on it as well.

Urick was never asked whether, after the above consultations were conducted, he would

have made a plea offer to Syed. Finally, Urick recalled that he handled at least three other

high profile murder cases, like Syed’s, and he did not recall any plea discussions with

defense counsel in those cases.

          Syed called Margaret Meade as an expert in the practice of criminal defense of

murder cases in the Circuit Court for Baltimore City, and she testified about her experience

with the prosecutors at the State’s Attorney’s Office in Baltimore City. In Meade’s

experience, she could not “even imagine” the State not offering a plea if she were to ask

for it.

                                   B. Memorandum Opinion I

          In its Memorandum Opinion I, the post-conviction court addressed Syed’s claim of

ineffective assistance of trial counsel for failure to pursue a plea offer:

              [T]here is nothing in the record indicating that the State was
              prepared to make a plea offer had trial counsel pursued such
              negotiations. In fact, [Syed] provided no convincing evidence that
              a plea offer was even contemplated or discussed by the State.
              [Syed’s] bald assertion that the policy of the State’s Attorney’s
              Office at the time was to offer plea[s] to defendants charged with
              murder is unfounded and is inconsistent with the State’s claim that
              there was never a plea available in [Syed’s] case.

(Emphasis added).       The post-conviction court concluded that trial counsel was not

deficient, and even if she was deficient, Syed failed to prove prejudice, because there was
                                               58
no indication that Syed would have accepted any type of plea offer after maintaining his

innocence throughout the trial and sentencing. The post-conviction court, therefore, denied

Syed post-conviction relief on that claim.

                                          C. Analysis

       On appeal, Syed contends that trial counsel had a duty to pursue plea negotiations,

and trial counsel was deficient for failing to explore a possible plea offer when Syed

requested her to do so. Moreover, Syed argues that he was prejudiced, because he “was

denied the basic right to make a choice of whether to go to trial or to accept a plea

bargain[,]” and had trial counsel done what Syed requested, “it is extremely likely that

Syed would have had a choice” of whether to go to trial or to plea.

       The State responds by arguing that, “[e]ven assuming Syed raised a cognizable

ineffective assistance of counsel claim, he still failed to establish that [his trial counsel]

acted deficiently in the context of his case.” Specifically, the State contends that Syed

failed to show that the State would have made a plea offer, and there was “no evidence

regarding a specific charge or sentence that Syed would have been offered[,]” much less

accepted.

       “Defendants have a Sixth Amendment right to counsel, a right that extends to the

plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). Defendants do not,

however, have the “right to be offered a plea . . . .” Id. at 168 (emphasis added). Therefore,

assuming that defense counsel has the duty to pursue a plea offer when requested, the

failure to pursue a plea offer cannot prejudice a defendant without evidence demonstrating

that, if defense counsel had requested a plea offer, the State would have made a plea offer.
                                             59
Cf. Delatorre v. United States, 847 F.3d 837, 846 (7th Cir. 2017) (“Because [the

defendant’s] prejudice argument centers on his attorney’s inability to secure a plea

agreement for him, [the defendant] had to show—at a minimum—that the prosecutor

would have actually offered him a deal had his attorney been competent.”).

       In the case sub judice, Urick testified that, if Syed’s trial counsel had asked for a

plea, Urick would have begun a process of speaking with Hae’s family and his superiors

to ascertain whether he could offer a plea. Urick, however, was never asked whether, after

completing such process, he would have made Syed a plea offer. Thus the post-conviction

court was not clearly erroneous when it found that “there is nothing in the record indicating

that the State was prepared to make a plea offer had trial counsel pursued such

negotiations.”

       Moreover, Urick testified that there was no “plea bargaining policy” within the

State’s Attorney’s Office while he was there, and with regard to three high profile murder

cases that he handled, Urick did not recall any plea discussions with defense counsel. On

the other hand, Syed’s expert stated that in her experience, the prosecutor always made a

plea offer when requested and could not “even imagine a State’s Attorney saying, we’re

not offering anything.” By crediting Urick’s testimony, the post-conviction court had

sufficient evidence to support its finding that Syed’s “assertion that the policy of the State’s

Attorney’s Office at the time was to offer plea[s] to defendants charged with murder is

unfounded.”

       Because Syed failed to prove that the State would have made him a plea offer if trial

counsel had requested one, the post-conviction court correctly concluded that Syed had not

                                              60
established a claim of ineffective assistance of counsel based on trial counsel’s failure to

pursue a plea offer. We, therefore, affirm the post-conviction court’s denial of relief on

that claim.

II.     Did the Post-Conviction Court Err by Holding that Syed’s Right to Effective
           Assistance of Counsel Was Not Violated When Trial Counsel Failed to
                     Investigate McClain as a Potential Alibi Witness?


                                         A. Background

                                        1. First Hearing

       In his petition for post-conviction relief, Syed raised the issue of ineffective

assistance of counsel for trial counsel’s failure “to call or investigate an alibi witness, Asia

McClain, who was able and willing to testify[.]”

       On October 25, 2012, the second day of the first hearing, Syed testified that, after

he was arrested on February 28, 1999, he “received two letters from [McClain] back to

back.” He “received these letters within the first week of being arrested,” and “immediately

notified” trial counsel. According to Syed, “the next time that [he] saw [trial counsel] on

a visit, [he] showed her the two letters and she read them. And [he] asked her, could she

please do two things, contact [ ] McCla[in], and try to go to the library to retrieve whatever

security footage was there.” Syed stated that prior to the first trial, he told trial counsel’s

law clerk, Ali Pournader, about McClain; specifically, that “[he] remembered being in the




                                              61
public library with her that day from right after school, which is about 2:15 to around 2:40,

2:45’ish, close to three [p.m].”29

       Syed stated further that during the next visit he had with trial counsel, he

“immediately asked her . . . did [she] speak to [ ] McCla[in]?” Trial counsel responded

that she had “looked into it and nothing came of it.” Syed then testified that, “[w]hen I

asked her, and her response was that, I asked her again, well, [trial counsel], did you go

speak to her? You know, did they say that -- I just began in my mind to try to understand

what she meant, but she moved onto another subject.”

       Shortly after his conviction, Syed mentioned McClain to Rabia Chaudry, a family

friend who was a law student at the time. Syed stated that he “wish[ed] there was some

way that [he] could [have] prove[n] that [he] was somewhere else at this time.” Syed

explained to Chaudry that trial counsel “checked into it and obviously it didn’t pan out.”

At that point, Chaudry requested Syed to send her the information about McClain, and

Syed sent her copies of the two letters. Chaudry then contacted McClain by calling

McClain’s grandparents’ phone number, listed on one of the letters. After contacting

McClain, Chaudry told Syed that “McCla[in] informed her that she was never contacted.”


       29
         An affidavit written and signed by Ali Pournader was admitted as an exhibit at
the second hearing. It stated:

            I remember that on at least one occasion I visited [ ] Syed in jail. . . .
            [I]t appears that I may have visited Syed at BCDC on July 13, 1999.
            [ ] I reviewed a copy of some handwritten notes, dated ‘7/13,’ and
            those notes (attached) are in my handwriting. [ ] Those notes mention
            an individual named Asia McClain, and say, among other things,
            “Asia McClain  saw him in the library @ 3:00.”

                                               62
       Chaudry testified at the first hearing and confirmed that she had spoken with

McClain about Syed’s case. Chaudry stated that during their brief phone conversation,

McClain “seemed very happy that somebody was reaching out to her. And she was very

willing to meet.” The day following the phone conversation, Chaudry met with McClain

in the parking lot of the Woodlawn Public Library. Chaudry stated that from their

conversation, she “learned [ ] that, [McClain] had seen [Syed] after school that day at the

library, which was next door to the school. And she recalled the day very clearly. She

recalled very specific things about the day and she had spent the time immediately after

school with him for about 15, 20 minutes.” Chaudry asked McClain if she would put her

story down on paper, and McClain agreed. That same day, McClain signed an affidavit

dated March 25, 2000, which was then notarized.

       Chaudry gave Syed a copy of McClain’s affidavit, and Syed called trial counsel

from the jail. Syed testified:

           I read through the affidavit and I reminded her about the letters. And
           I said, [trial counsel], did you speak to her? Did you talk to her?
           Did you contact her? And she said, no. And I was very upset at
           that point. Because I said, [trial counsel], it’s the exact same
           time. And I asked her, did she ever try to go to the library to
           secure the video footage? And she said, no. So, I became very
           upset with her. And I asked her, was there anything we can do at
           this point? And she said, no. We need to focus on the appeal.

(Emphasis added).

       Trial counsel did not testify at the first hearing, because she had passed away before

the hearing took place. McClain also did not testify at the first hearing.




                                             63
       On January 6, 2014, the post-conviction court issued its Memorandum Opinion I

denying Syed post-conviction relief. The post-conviction court determined, among other

things, that Syed’s trial counsel was not deficient for failing to investigate McClain for two

reasons. First, “the letters sent from [ ] McClain to [Syed] [did] not clearly show [ ]

McClain’s potential to provide a reliable alibi for [Syed].” The court explained that the

letters did not state an exact time the encounter at the library took place and thus “trial

counsel could have reasonably concluded that [ ] McClain was offering to lie in order to

help [Syed] avoid conviction.” Second, McClain’s story conflicted with Syed’s version of

events and thus “pursuing [ ] McClain as a potential alibi witness would not have been

helpful to [Syed’s] defense and may have, in fact, harmed the defense’s ultimate theory of

the case.” The post-conviction court concluded that trial counsel’s failure to investigate

McClain as an alibi witness was the result of sound and reasonable trial strategy, and thus

was not deficient performance.

                                        2. First Appeal

       On January 27, 2014, Syed filed a timely application for leave to appeal to this

Court, raising two issues, one of which was whether Syed’s trial counsel rendered

ineffective assistance of counsel by failing to interview or even contact the potential alibi

witness, McClain. As previously indicated, on January 20, 2015, Syed supplemented his

application for leave to appeal, requesting that this Court remand the case back to the post-

conviction court for additional fact-finding on the alibi witness issue in light of McClain’s

January 13, 2015 affidavit. On February 6, 2015, this Court granted Syed’s application for


                                             64
leave to appeal, reserving a decision on Syed’s request to remand. After reviewing the

briefs, Syed’s supplement, and other pleadings, this Court by order dated May 18, 2015,

stayed Syed’s appeal and remanded to the post-conviction court for Syed to file a motion

to reopen the post-conviction proceeding.

                                     3. Second Hearing

       Pursuant to this Court’s remand order, Syed filed a Motion to Reopen, and the post-

conviction court granted the motion “to introduce the January 13, 2015 affidavit from

McClain, the potential testimony of McClain, and relevant evidence concerning [Syed’s]

claims of ineffective counsel and alleged prosecutorial misconduct during the post-

conviction proceedings[.]” The second hearing began on February 3, 2016, and lasted until

February 9, 2016.

       At the second hearing, McClain30 testified to being with Syed at the Woodlawn

Public Library on January 13, 1999. That day, McClain had a conversation with Syed

“[s]hortly after 2:15 [p.m.]” while McClain was waiting for her boyfriend to pick her up

from the library. McClain noted that Syed’s demeanor was “[c]ompletely normal.” The

conversation lasted “about 15 to 20 minutes” and ended when McClain’s boyfriend and his

friend arrived to pick her up. McClain further stated that school was closed the next two

days, January 14 and January 15, 1999, due to bad weather.31


       30
            At the time of the second hearing, Asia McClain was known as Asia Chapman.
       31
         At the first hearing, Chaudry testified to a conversation that she had with McClain
in March of 2000, during which McClain mentioned that school was closed for two days
following her conversation with Syed due to heavy snowfall. Chaudry stated that she
                                            65
       McClain testified that, after Syed was arrested on February 28, 1999, she and her

friend, Justin Adger, went to Syed’s house to inform his family that she had seen Syed and

spoke to him at the library on January 13, 1999. On March 1, 1999, McClain wrote a letter

(“first letter”) to Syed. The first letter,32 which was admitted into evidence at the second

hearing, stated the following:

               It’s late.
             I just came from your house an hour ago.
                March 1, 1999
             Dear Adnon, (hope I sp. it right)

             I know that you can’t visitors, so I decided to write you a letter. I’m
             not sure if you remember talking to me in the library on Jan.
             13th, but I remembered chatting with you. Throughout you’re
             actions that day I have reason to believe in your innocense. I went
             to your family’s house and discussed your “calm” manner towards
             them. I also called the Woodlawn Public Library and found that
             they have a survailance system inside the building. Depending
             on the amount of time you spend in the library that afternoon, it
             might help in your defense. I really would appreciate it if you
             would contact me between 1:00pm-4pm or 8:45pm until . . .
             My number is [redacted]. More importantly I’m trying to reach
             your lawyer to schedule a possible meeting with the three of us.
             We aren’t really close friends, but I want you to look into my
             eyes and tell me of your innocense. If I ever find otherwise I will
             hunt you down and wip your ass, ok friend.

             I hope that you’re not guilty and I hope to death that you have
             nothing to do with it. If so I will try my best to help you account
             for some of your unwitnessed, unaccountable lost time (2:15-
             8:00; Jan 13th.)


verified the two-day school closure because of snow, and that such verification was
significant to her, because “[t]hat showed [her] that there were details about that day. It
was not just any other day for [McClain]. She remembered specific details about that day,
and her details were verifiable.”
       32
            The typographical errors therein have not been altered.
                                               66
             The police have not been notified Yet to my knowledge maybe it
             will give your side of the story a particle head start. I hope that you
             appreciate this, seeing as though I really would like to stay out of
             this whole thing. Thank Justin, he gave me a little more faith in you,
             through his friendship and faith. I’ll pray for you and that the
             “REAL TRUTH” comes out in the end.
             “I hope it will set you free”                      Only trying to help
             Asia McClain

             *P.S. If necessary my grandparents line number is [redacted].
             Do not call that line after 11:00 O.K.

             Like I told Justin if your innocent I do my best to help you.
             But if you’re not only God can help you.

             If you were in the library for awhile, tell the police and I’ll continue
             to tell what I know even louder than I am. My boyfriend and his best
             friend remember seeing you there too.

             Your amiga
              Asia McClain

(Emphasis added).

       McClain testified that she wrote Syed a second letter (“second letter”), dated March

2, 1999. The second letter,33 which was admitted into evidence at the second hearing,

stated in relevant part:

                                   Adnon Syed #992005477
                                    301 East Eager Street
                                    Baltimore, MD. 21202

             Dear Adnon,
             How is everything? I know that we haven’t been best friends in
             the past, however I believe in your innocence. I know that central
             booking is probably not the best place to make friends, so I’ll attempt
             to be the best friend possible. I hope that nobody has attempted to
             harm you (not that they will). Just remember that if someone says
             something to you, that their just f**king with your emotions. I know

       33
            See supra note 32.
                                               67
   that my first letter was probably a little harsh, but I just wanted you
   to know where I stode in this entire issue (on the centerline). I don’t
   know you very well, however I didn’t know Hae very well. The
   information that I know about you being in the library could
   helpful, unimportant or unhelpful to your case. I’ve been think a
   few things lately, that I wanted to ask you:

1. Why haven’t you told anyone about talking to me in the library?
   Did you think it was unimportant, you didn’t think that I would
   remember? Or did you just totally forget yourself?
2. How long did you stay in the library that day? Your family will
   probably try to obtain the library’s surveillance tape.
3. Where exactly did you do and go that day? What is the so-called
   evidence that my statement is up against? And who are these
   WITNESSES?

                                   ***

   You’ll be happy to know that the gossip is dead for your associates,
   it’s starting to get old. Your real friends are concentrated on you and
   your defense. I want you to know that I’m missing the instructions
   of Mrs. Ogle’s CIP class, writing this letter. It’s weird, since I
   realized that I saw you in the public library that day, you’ve been
   on my mind. The conversation that we had, has been on my
   mind. Everything was cool that day, maybe if I would have
   stayed with you or something this entire situation could have
   been avoided. Did you cut school that day? Someone told me that
   you cut school to play video games at someone’s house. Is that what
   you told the police? This entire case puzzles me, you see I have an
   analytical mind. I want to be a criminal psychologist for the FBI one
   day. I don’t understand how it took the police three weeks to find
   Hae’s car, if it was found in the same park. I don’t understand how
   you would even know about Leakin Park or how the police expect
   you to follow Hae in your car, kill her and take her car to Leakin
   Park, dig a grave and find you way back home. As well how come
   you don’t have any markings on your body from Hae’s struggle. I
   know that if I was her, I would have struggled. I guess that’s where
   the SO-CALLED witnesses. White girl Stacie just mentioned that
   she thinks you did it. Something about your fibers on Hae’s
   body…something like that (evidence). I don’t mean to make you
   upset talking about it…if I am. I just thought that maybe you should


                                     68
             know. Anyway I have to go to third period. I’ll write you again.
             Maybe tomorrow.

              Hope this letter brightens your day…Your Friend,
             Asia R. McClain

             P.S: Your brother said that he going to tell you to maybe call me, it’s
             not necessary, save the phone call for your family. You could
             attempt to write back though. So I can tell everyone how you’re
             doing (and so I’ll know too).

                                      Asia R. McClain
                                     6603 Marott Drive
                                    Baltimore, MD 21207

             Apparently a whole bunch of girl were crying for you at the jail…Big
             Playa Playa (ha ha ha he he he).

(Emphasis added).

       McClain testified that no one from Syed’s defense team contacted her, but had they,

she would have spoken to them. McClain stated that after Syed’s conviction, Chaudry

came to her house and asked if she had a conversation with Syed in the library on January

13, 1999. McClain told Chaudry that she did have a conversation with Syed, to which

Chaudry requested McClain write an affidavit. The notarized affidavit, dated March 25,

2000 (“March 25, 2000 affidavit”), 34 was admitted into evidence at the second hearing and

stated the following:

                                       Affidavit
               A.R.M.

             Asia McClain having been duly sworn, do depose and state:




       34
            See supra note 32.
                                               69
           I am 18 years old. I attend college at Catonsville Community
           College of Baltimore County. In January of 1999, I attended high
           school at Woodlawn Senior High. I have known Adnan Syed since
           my 9th grade freshmen year (at high school.) On 1/13/99, I was
           waiting in the Woodlawn Branch Public Library. I was waiting
           for a ride from my boyfriend (2:20), when I spotted Mr. Syed
           and held a 15-20 minute conversation. We talked about his
           girlfriend and he seemed extremely calm and very caring. He
           explained to me that he just wanted her to be happy. Soon after my
           boyfriend (Derrick Banks) and his best-friend (Gerrod Johnson)
           came to pick me up. Spoke to Adnan (briefly) and we left around
           2:40.


             A.R.M.
           No attorney has ever contacted me about January 13, 1999 and
           the above information

            Asia McClain 3/25/00
           [signature of notary listed below]

(Emphasis added).

       After moving across the country to the State of Washington, McClain testified that

Syed’s first post-conviction counsel attempted to contact her in April of 2010. She then

contacted the lead prosecutor from Syed’s trial, Kevin Urick, to see if he could provide her

with unbiased information as to what was going on with the case. Urick explained to her

the evidence of the case, the absence of alibi witnesses at trial, and the likely result of the

post-conviction proceeding. Because of Urick’s advice “that it was [ ] a waste of time for

[McClain] to get involved with something that was just obviously a tactic to manipulate

the court system[,]” McClain did not respond to the inquiries of Syed’s post-conviction

counsel. McClain stated that in January of 2014, she was contacted by National Public

Radio (“NPR”) and was interviewed about the case. According to McClain, the NPR

                                              70
podcast changed her outlook on the case and caused her to realize how important her

information was.

       McClain contacted Syed’s post-conviction counsel in December of 2014, after

learning that Urick had testified at Syed’s first hearing that McClain wrote the March 25,

2000 affidavit because of pressure from Syed’s family. Thereafter, McClain wrote the

January 13, 2015 affidavit, which was admitted into evidence at the second hearing. The

January 13, 2015 affidavit35 stated in relevant part:

                                        ASIA MCCLAIN
       1.    I swear to the following, to the best of my recollection, under penalty
             of perjury:
       2.    I am 33years old and competent to testify in a court of law.
       3.    I currently reside in Washington State.
       4.    I grew up in Baltimore County, MD, and attended high school at
             Woodlawn High School. I graduated in 1999 and attended college
             at Catonsville Community College.
       5.    While a senior at Woodlawn, I knew both Adnan Syed and Hae Min
             Lee. I was not particularly close friends with either.
       6.    On January 13, 1999, I got out of school early. At some point in the
             early afternoon, I went to Woodlawn Public Library, which was right
             next to the high school.
       7.    I was in the library when school let out around 2:15 p.m. I was
             waiting for my boyfriend, Derrick Banks, to pick me up. He was
             running late.
       8.    At around 2:30 p.m., I saw Adnan Syed enter the library. Syed and
             I had a conversation. We talked about his ex-girlfriend Hae Min Lee
             and he seemed extremely calm and caring. He explained that he
             wanted her to be happy and that he had no ill will towards her.
       9.    Eventually my boyfriend arrived to pick me up. He was with his
             best friend, Jerrod Johnson. We left the library around 2:40. Syed
             was still at the library when we left.


       35
            See supra note 32.

                                               71
       10. I remember that my boyfriend seemed jealous that I had been talking
           to Syed. I was angry at him for being extremely late.
       11. The 13th of January 1999 was memorable because the following two
           school days were cancelled due to hazardous winter weather.
       12. I did not think much of this interaction with Syed until he was later
           arrested and charged in the murder of Hae Min Lee.
       13. Upon learning that he was charged with murder [sic] related to Lee’s
           disappearance on the 13th, I promptly attempted to contact him.
       14. I mailed him two letters to the Baltimore City Jail, one dated March
           1, the other dated March 2. (See letters, attached). In these letters I
           reminded him that we had been in the library together after school.
           At the time when I wrote these letters, I did not know that the State
           theorized that the murder took place just before 2:36 pm on January
           13, 1999.
       15. I also made it clear in those letters that I wanted to speak to Syed’s
           lawyer about what I remembered, and that I would have been willing
           to help his defense if necessary.
       16. The content of both of those letters was true and accurate to the best
           of my recollection.
       17. After sending those letters to Syed in early March, 1999, I never
           heard from anybody from the legal team representing Syed. Nobody
           ever contacted me to find out my story.
       18. If someone had contacted me, I would have been willing to tell my
           story and testify at trial. My testimony would have been consistent
           with the letters described above, as well as the affidavit I would later
           provide. See below.

                                            ***

           [Signature]
           ASIA MCCLAIN
           DATE 1/13/15

      David Irwin, Esquire, was called to testify at the second hearing as an expert in

criminal defense practices and Brady disclosure duties of the prosecution. Irwin opined

that McClain’s story was “[p]owerfully credible.” Irwin explained that back in 1999, based

on what trial counsel had and was on notice for, she


                                             72
           had to meet the minimal objective standard of reasonable defense
           care. She had to go talk to [ ] McClain. She had to investigate what
           [ ] McClain was saying and she had to then determine if -- she had
           to investigate the two young guys that were with her. She had to go
           talk to them. Somebody had to talk to those people because the
           testimony could have been critical.

       Irwin stated further that “now we know that [ ] McClain is a fabulous witness, lovely

lady, credible, intelligent and she would have been material and changed the ball game’s

result. It’s pretty obvious to me.” It was Irwin’s opinion that trial counsel’s performance

“was well below the minimum required by Strickland[.]” (Emphasis added). Irwin

concluded that McClain’s testimony “was a game changer. It would have made an

incredible difference in the outcome of the case. It’s material. It’s important. It certainly

takes away any confidence that one would have in the verdict in that case.”

                                  4. Memorandum Opinion II

       In addressing the deficiency prong of Strickland in its Memorandum Opinion II, the

post-conviction court held that trial counsel’s “failure to investigate McClain as a potential

alibi witness fell below the standard of reasonable professional judgment.” In reaching its

holding, the post-conviction court found that after learning about McClain, trial counsel

“failed to make any effort to contact McClain and investigate the bona fides of the March

1, 1999 and March 2, 1999 letters, or ascertain whether McClain’s testimony would aid

[Syed’s] defense.” According to the post-conviction court, trial counsel learned about the

potential alibi witness “nearly five months prior to trial, and thus, she had ample time and

opportunity to investigate the potential alibi.”




                                              73
       The post-conviction court rejected the State’s argument that trial counsel’s failure

to investigate was a “strategic decision not to investigate McClain because the potential

alibi was in fact a scheme manufactured by [Syed] to secure a false alibi.” The post-

conviction court stated that, because adopting the State’s argument “would require the

[post-conviction court] to retroactively supply key assumptions and speculations, the

[c]ourt rejects the State’s invitation to indulge in such hindsight sophistry, given that it is

contrary to the legal framework set forth under Strickland.”

       The post-conviction court summarized its holding of deficient performance by

Syed’s trial counsel, succinctly and articulately, as follows:

           As the [c]ourt has explained, reasonable professional judgment
           under the facts of the present case required trial counsel to contact
           the potential alibi witness and investigate whether her testimony
           would aid [Syed’s] defense. The facts in the present matter are clear;
           trial counsel made no effort to contact McClain in order to
           investigate the alibi and thus, trial counsel’s omission fell below the
           standard of reasonable professional judgment.

(Emphasis in original).

      B. Deficient Performance for Failure to Investigate McClain as a Potential Alibi
                                           Witness

                                         1. Contentions

       Syed contends that the post-conviction court correctly ruled that trial counsel’s

failure to investigate McClain as an alibi witness rendered her performance deficient,

because trial counsel “was aware that McClain would have testified that Syed was in the

Woodlawn Public Library at the time of the murder.” The State responds that the post-

conviction court erred in holding that trial counsel rendered deficient performance. The

                                              74
State contends that trial counsel had three justifiable reasons for not pursuing the McClain

alibi defense: (1) “the alibi proposed by McClain threatened to suggest that Syed had lied

to police and had gone to the public library, a place no one had ever associated with

Syed[;]” (2) “the [public] library alibi ran the risk of placing Syed at the public library with

the victim at critical junctures[;]” and (3) “pursuing the [ ] McClain alibi expose[d] Syed

to the risk of being accused of colluding with a witness to falsify an alibi.” The State

further argues that the defense theory adopted by trial counsel, which was based upon

Syed’s daily routine, was better than the McClain alibi, because “it covered a broader range

of time, which was important since prosecutors could not narrow [the] time of death even

after [trial counsel] inquired.”

       In his reply brief, Syed asserts that instead of providing support for the proposition

that trial counsel’s performance was not deficient, “the State relies on assorted after-the-

fact rationalizations for why trial counsel could have ignored Syed’s request that she pursue

the McClain alibi.”     Syed argues that the post-conviction court thus was proper in

disregarding these rationalizations. Lastly, Syed contends that, because the State disclosed

the timeline for the murder five months before trial and further clarified that timeline during

its opening statement at the first trial on December 9, 1999, trial counsel had plenty of time

to contact McClain and determine whether her testimony would be helpful to Syed’s

defense.

       We agree with the post-conviction court that trial counsel’s performance was

deficient under Strickland. We shall explain.



                                              75
                                    2. Relevant Case Law

       As stated supra, in Strickland the Supreme Court set forth a two-step process for

determining whether an attorney’s assistance was so defective as to require reversal of a

conviction. 466 U.S. at 687. “First, the defendant must show that counsel’s performance

was deficient. . . . Second, the defendant must show that the deficient performance

prejudiced the defense.” Id.

       In discussing the first step, commonly referred to as the deficiency prong, the

Supreme Court stated that “the proper standard for attorney performance is that of

reasonably effective assistance[,]” id., and that “the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. The Court

noted that the reasonableness of attorney performance must be considered “under

prevailing professional norms” and under “all the circumstances.” Id. The Court then

cautioned that “[j]udicial scrutiny of counsel’s performance must be highly deferential[,]”

with “every effort to be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.”      Id. at 689.   In other words, there is “a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. In sum, in deciding the deficiency prong of an ineffective assistance of

counsel claim under Strickland, a court must assess counsel’s performance under an

objective standard of a reasonably competent attorney acting under prevailing norms,

taking into consideration all of the circumstances existing at the time of counsel’s conduct

with a strong presumption of reasonable professional assistance.
                                             76
       In further defining the objective standard of reasonable professional assistance, the

Court in Strickland identified certain basic duties of counsel’s representation of a criminal

defendant, to include a duty of loyalty, a duty to avoid conflicts of interest, and a duty to

advocate the defendant’s cause. Id. at 688. Like the instant case, the duty at issue in

Strickland was “counsel’s duty to investigate.” Id. at 690. The Court discussed the duty

to investigate as follows:

           [S]trategic choices made after thorough investigation of law and
           facts relevant to plausible options are virtually unchallengeable; and
           strategic choices made after less than complete investigation are
           reasonable precisely to the extent that reasonable professional
           judgments support the limitations on investigation. In other words,
           counsel has a duty to make reasonable investigations or to make
           a reasonable decision that makes particular investigations
           unnecessary. In any ineffectiveness case, a particular decision
           not to investigate must be directly assessed for reasonableness in
           all the circumstances, applying a heavy measure of deference to
           counsel’s judgments.

Id. at 690-91 (emphasis added).

       In the case sub judice, our inquiry is not on the general duty of trial counsel to

investigate a possible defense for Syed, but rather a subset of that duty. Specifically, the

duty in question here is trial counsel’s duty to investigate a potential alibi witness, and the

issue raised is whether trial counsel’s failure to investigate McClain as a potential alibi

witness was deficient performance under Strickland.

       The Court of Appeals has defined an alibi witness as follows: “[A]n ‘alibi’ witness

[is] a witness whose testimony ‘must tend to prove that it was impossible or highly

improbable that [the defendant] was at the scene of the crime when it was alleged to have

occurred.’” McLennan v. State, 418 Md. 335, 352 (2011) (quoting Ferguson v. State, 488

                                              77
P.2d 1032, 1039 (Alaska 1971)). In Simms v. State, this Court explained what an alibi

defense is:

                 An alibi is [a] defense that places the defendant at the relevant
              time of [the] crime in a different place than the scene involved . . . .
              The presence of the defendant at the scene of the crime at the time it
              was committed is obviously an essential element of the prosecutor’s
              case[.] When a defendant raises an alibi defense, he is in effect
              denying the claim of the prosecution that he was present at the scene
              of the crime at the time it was committed. By claiming that he was
              at another place at the time when the alleged crime was committed,
              the defendant is denying by necessary implication, if not expressly,
              the allegations set forth in the charge.

194 Md. App. 285, 307-08 (2010) (internal quotation marks and citations omitted), aff’d,

420 Md. 705 (2011).

       Our research has revealed no Maryland case that has addressed directly the issue of

a defense counsel’s failure to investigate a potential alibi witness in the context of an

ineffective assistance of counsel claim. The closest Maryland case is In Re Parris W., 363

Md. 717 (2001), but that case involved defense counsel’s failure to subpoena alibi

witnesses for the correct trial date. Id. at 727. Nevertheless, in In Re Parris W., the Court

of Appeals cited with approval, and discussed at length, three federal cases that considered,

among other things, the issue of defense counsel’s failure to investigate a potential alibi

witness. Id. at 730-34. Thus a review of those cases first, along with others from outside

of Maryland, will be instructive to our analysis.

       In Griffin v. Warden, Maryland Correctional Adjustment Center, Griffin was

identified by two security guards as being a participant in an armed robbery that occurred

at 3:45 p.m. on July 24, 1983. 970 F.2d 1355, 1356 (4th Cir. 1992). Griffin provided his


                                                78
trial counsel with a list of five alibi witnesses. Id. Defense counsel, however, failed to

contact these witnesses or to respond to the State’s discovery request to be notified of an

alibi defense and the identities of alibi witnesses. Id.   Defense counsel explained that he

did not contact any of the alibi witnesses, because he expected Griffin to take a plea. Id.

Among the “cogent tactical considerations” that the state court bestowed on defense

counsel was not calling one of the alibi witnesses, because a security guard had identified

that witness as a participant in the robbery and calling a witness who was an accomplice to

the robbery could have hurt Griffin’s case. Id. at 1358. The Fourth Circuit rejected the

state court’s rationale, because defense counsel did not even interview the witness, “let

alone make some strategic decision not to call him.” Id. The Fourth Circuit warned:

           [C]ourts should not conjure up tactical decisions an attorney could
           have made, but plainly did not. The illogic of this approach is
           pellucidly depicted by this case, where the attorney’s incompetent
           performance deprived him of the opportunity to even make a tactical
           decision about putting [the witness] on the stand. A court should
           evaluate the conduct from counsel’s perspective at the time.
           Tolerance of tactical miscalculations is one thing; fabrication of
           tactical excuses is quite another.

Id. at 1358-59 (internal quotation marks and citations omitted).

       In Grooms v. Solem, Grooms was convicted of selling stolen Native American

artifacts. 923 F.2d 88, 89 (8th Cir. 1991). Grooms’s conviction was based on the testimony

of a police informant who was married to Grooms’s ex-wife, and they were engaged with

Grooms “in a bitter and spiteful battle over the custody of the three children.” Id. The

informant testified that on May 15, 1984, between 5:00 p.m. and 5:30 p.m. in Scenic, South

Dakota, Grooms sold him a stolen Native American beaded dress. Id. Grooms told his


                                              79
counsel on the day of trial that he, his wife, and a friend spent that same day waiting at a

garage for the mechanics to replace the transmission in his truck. Id. The garage was

located in Rapid City, South Dakota, approximately fifty miles from Scenic, South Dakota.

Id. Grooms had a cancelled check dated May 15, 1984, payable to the garage and labeled

“trans repair” in the memo. Id. Grooms also produced a work order dated May 14, 1984,

with the same check number written on the face of the order. Id. At the post-conviction

hearing, the garage’s employees who worked on Grooms’s transmission testified that they

did not finish working on Grooms’s truck until 7:00 or 7:30 p.m. Id. at 90. Defense counsel

did not look into this possible alibi defense nor did he request a short continuance of the

trial for further investigation; “he assumed that the court would preclude any evidence of

alibi[,] because counsel had not given the notice of an alibi . . . .” Id. The Eighth Circuit

noted that, “[o]nce a defendant identifies potential alibi witnesses, it is unreasonable not to

make some effort to contact them to ascertain whether their testimony would aid the

defense.” Id. The Eighth Circuit determined that defense counsel’s failure to make any

effort to check the bona fides of the alibi was unreasonable under the circumstances. Id.

The Court concluded that, even though counsel discovered this alibi on the day of trial,

“trial counsel had a duty to attempt to investigate and to argue on the record for the

admission of the alibi witnesses’ testimony.” Id. at 91; accord Washington v. Smith, 219

F.3d 620, 630-32 (7th Cir. 2000) (holding that defense counsel rendered constitutionally

deficient performance by failing to attempt to contact alibi witnesses who were not

identified until immediately before trial).

       The Seventh Circuit in Montgomery v. Petersen addressed whether defense counsel

                                              80
was ineffective for failing to investigate and call the single disinterested alibi witness

identified by the defendant.      846 F.2d 407, 407 (7th Cir. 1988).      In Montgomery,

Montgomery was charged with the commission of two burglaries in two different counties

on the same day. Id. at 408. At the trial for one burglary, Montgomery’s wife testified that

she and her husband spent the afternoon of the robbery shopping for a bicycle for their son

in Springfield, Illinois, and that Montgomery was at home the rest of the day and evening.

Id. at 409. Such testimony was in direct contradiction to the testimony of the State’s

witnesses, who testified that they and Montgomery had spent the day committing

burglaries. Id. at 408-09. Defense counsel called twelve other witnesses who were friends

or close relatives of Montgomery to testify as to Montgomery’s whereabouts on the day of

the crime. Id. at 409. Defense counsel failed to investigate or call the sole disinterested

witness, a Sears clerk who sold Montgomery and his wife the bicycle. Id. Montgomery

was convicted of burglary. Id. At the trial for the other burglary, Montgomery’s counsel

called the clerk, and the trial resulted in an acquittal. Id. at 409.

       At Montgomery’s post-conviction hearing, defense counsel testified that

Montgomery and his wife gave him a receipt for the purchase of the bicycle and requested

that he investigate the Sears clerk, but he failed to do so. Id. at 409-10. Defense counsel

stated that his failure to investigate “was merely due to ‘inadvertence’ on his part, as he

was busy interviewing other potential witnesses” and did not believe Montgomery. Id. at

410. The Seventh Circuit agreed with the post-conviction court that, “[i]n light of the

information available to counsel at the time, the failure to investigate the only available

disinterested alibi witness fell below the standard of reasonably effective assistance

                                               81
required by Strickland.” Id. at 411-12 (emphasis in original) (internal quotations omitted).

The Seventh Circuit stated that defense counsel should have recognized the crucial

importance of the clerk as the only disinterested witness in the case. Id. at 414. The fact

that defense counsel did not have the name or address of the clerk did not excuse defense

counsel’s failure to investigate, because Montgomery’s wife and mother-in-law were able

to find the clerk easily. Id. Nor did counsel’s lack of belief in Montgomery’s alibi serve

as “an adequate basis for ignoring such an important lead. Indeed, if counsel had taken the

few steps necessary to identify and interview the Sears clerk, he may well have formed a

more favorable view of his client’s veracity.” Id.

       In Bryant v. Scott, the Fifth Circuit determined that Bryant’s counsel rendered

ineffective assistance of counsel by failing to investigate and interview alibi witnesses

made known to counsel three days before trial. 28 F.3d 1411, 1411 (5th Cir. 1994). At

trial, Bryant was convicted of armed robbery. Id. at 1413-14. After exhausting state court

remedies, Bryant filed a petition for writ of habeas corpus in the federal district court

claiming, inter alia, that trial counsel was ineffective for failure to investigate alibi

witnesses. Id. at 1414. Because the district court found that Bryant had not given defense

counsel the names and addresses of any alibi witnesses prior to trial, the court concluded

that defense counsel provided Bryant with effective assistance of counsel. Id. at 1415.

       On appeal, the Fifth Circuit disagreed with the district court. Id. at 1416. The Court

stated that defense counsel was well aware of Bryant’s interest in pursuing an alibi defense.

Id. The Court acknowledged that Bryant did not provide defense counsel with the names

or addresses of alibi witnesses prior to the pre-trial hearing, id. at 1415, but defense counsel,

                                               82
according to the Court, obtained sufficient information at the pre-trial hearing to contact

Bryant’s alibi witnesses. Id. at 1417. The Court also noted that there was seventy-two

hours between the pre-trial hearing and the trial during which defense counsel had the

opportunity to contact the alibi witnesses. Id. The Court concluded that “the record shows

that [defense counsel] had information on potential alibi witnesses before trial, and had the

opportunity to try to interview such witnesses.” Id. Accordingly, the Court held that

defense counsel

           abdicated his responsibility of investigating potential alibi witnesses
           and failed to “attempt to investigate and to argue on the record for
           the admission of the alibi witnesses’ testimony.” Grooms v. Solem,
           923 F.2d 88, 91 (8th Cir. 1991). [Defense counsel’s] failure to
           investigate potential alibi witnesses was not a “strategic choice” that
           precludes claims of ineffective assistance. See Nealy [v. Cabana,
           764 F.2d 1173, 1178 (5th Cir. 1985).]

Id.

       In summary, the Fifth Circuit stated:

              Thus, we disagree with the district court’s conclusion that
           [defense counsel] was “hog-tied” or “stonewalled” from making any
           investigation of alibi witnesses. [Defense counsel] knew of three
           alibi witnesses before trial and should have made some effort to
           contact or interview these people in furtherance of Bryant’s
           defense. [Defense counsel’s] complete failure to investigate alibi
           witnesses fell below the standard of a reasonably competent attorney
           practicing under prevailing norms.

Id. at 1418 (emphasis added) (footnotes omitted).

       In Lawrence v. Armontrout, Lawrence was convicted of capital murder and murder

in the first degree. 900 F.2d 127, 128 (8th Cir. 1990). After his convictions were affirmed

on appeal, Lawrence sought post-conviction relief in state court, claiming ineffective


                                               83
assistance of counsel. Id. Lawrence claimed that defense counsel was ineffective because

she “failed to interview or call as witnesses several people who would have corroborated

his alibi on the evening of the murders.” Id. According to the record, four potential alibi

witnesses were identified to defense counsel: Betty Buie (Lawrence’s girlfriend), Brenda

Buie, Veronica Trice, and Felicia Longstreet. Id. at 128-29. At the evidentiary hearing,

defense counsel testified that she interviewed Betty Buie and Brenda Buie, but decided not

to use either of them at trial. Id. at 129. Defense counsel, however, made no effort to

locate or interview the other two witnesses, relying instead on Betty Buie’s assertions that

Longstreet could not be located and Trice would not come to court. Id. After relief was

denied in state court, Lawrence filed a petition for writ of habeas corpus in federal district

court, which also denied any relief. Id.

       On appeal, the Eighth Circuit reversed, stating that, “once Lawrence provided his

trial counsel with the names of potential alibi witnesses, it was unreasonable of her not to

make some effort to interview all these potential witnesses to ascertain whether their

testimony would aid an alibi defense.” Id. Moreover, according to the Court, defense

counsel’s “failure to attempt to find and interview Longstreet and Trice herself [fell] short

of the diligence that a reasonably competent attorney would exercise under similar

circumstances.” Id. at 129-30 (emphasis added). The Court concluded that defense

counsel “owed Lawrence a duty to pursue his alibi defense and to investigate all witnesses

who allegedly possessed knowledge concerning Lawrence’s guilt or innocence. Because

she failed to do so, Lawrence [ ] satisfied the first prong of the Strickland standard.” Id. at

130 (citation omitted); see Avery v. Prelesnik, 548 F.3d 434, 437-38 (6th Cir. 2008)

                                              84
(finding deficient performance where defense counsel never personally attempted to

contact any of the potential alibi witnesses, even though counsel’s investigator had talked

with one alibi witness).

       There are also cases where courts have found defense counsel’s performance was

not deficient for failing to investigate an alibi witness. One such case is Russell v. Lynaugh.

892 F.2d 1205 (5th Cir. 1989), cert. denied, 501 U.S. 1259 (1991). The Fifth Circuit in

Russell held that counsel’s decision not to investigate alibi and character witnesses to

testify on behalf of a murder defendant was not deficient performance. Id. at 1205. In

1977, Russell was convicted of capital murder and sentenced to death. Id. at 1207. After

exhausting all state court remedies, Russell petitioned for writ of habeas corpus in federal

district court, claiming, inter alia, that trial counsel was ineffective at trial and on appeal.

Id. at 1212. Russell argued that “his lawyer failed to investigate the law and facts. In

particular, he failed to discover alibi witnesses who could have testified in the guilt-

innocence phase of the trial.” Id. (emphasis added). On appeal, the Fifth Circuit affirmed

the district court’s decision to deny Russell post-conviction relief. Id. at 1213. Explaining

that Russell “specifically identified no potential alibi witnesses who did not testify,” the

Court concluded that Russell failed to show that his counsel’s “performance in this respect

was deficient and prejudicial.” Id. Accordingly, the Court denied relief. Id.

                                           3. Analysis

       We learn from the above cases that, once a defendant identifies potential alibi

witnesses, defense counsel has the duty “to make some effort to contact them to ascertain

whether their testimony would aid the defense.”           Grooms, 923 F.2d at 90; accord

                                              85
Lawrence, 900 F.2d at 129; Bryant, 28 F.3d at 1415; see Russell, 892 F.2d at 1213. Such

identification normally includes names and addresses of potential alibi witnesses, but need

not if sufficient information is provided or acquired to enable defense counsel to contact

the witnesses. See Montgomery, 846 F.2d at 414 (although defense counsel did not have

the name or address of the Sears clerk, Montgomery’s wife and mother-in-law were able

to find him easily); Bryant, 28 F.3d at 1416-17 (defense counsel learned the names and

contact information of potential alibi witnesses at a pre-trial hearing). Such identification

also includes sufficient information to suggest that the witness’s testimony could provide

the defendant with an alibi.

       In the case sub judice, Syed identified McClain as a potential alibi witness and

requested trial counsel to contact her. Syed gave trial counsel two letters written by

McClain, the first contained McClain’s phone number and her grandparents’ phone number

and the second contained McClain’s address in Baltimore. In the first letter, McClain

reminded Syed that she had talked with him in the Woodlawn Public Library in the

afternoon after school on January 13, 1999, and that she may be able to account for his

“lost time” from “2:15–8:00” that day. She also told Syed that the library had a surveillance

system inside the building.      In the second letter, McClain again referred to their

conversation at the library that day. In addition, trial counsel’s file contained notes from

her law clerk of an interview with Syed on July 13, 1999, wherein Syed said that McClain

“saw him in the library @ 3:00 [p.m.]” and her “boyfriend saw him too.” Trial counsel

also noted in her file that “[McClain] + boyfriend saw [Syed] in library 2:15–3:15 [p.m.].”

Finally, trial counsel was aware, at least six weeks before the second trial, that McClain’s

                                             86
alibi testimony probably covered the same time period as when the State theorized that

Hae’s murder occurred.36 Therefore, we conclude that Syed’s trial counsel had the duty to

investigate McClain as a potential alibi witness, which required counsel to make some

effort to contact McClain to ascertain whether her testimony would aid Syed’s defense.

See Grooms, 923 F.2d at 90.

       The post-conviction court found that Syed’s trial counsel “failed to make any effort

to contact McClain and investigate the bona fides of the March 1, 1999 and March 2, 1999

letters, or ascertain whether McClain’s testimony would aid [Syed’s] defense.” That

finding is not challenged by the State.

       “The failure to investigate a particular lead may be excused if a lawyer has made ‘a

reasonable decision that makes particular investigations unnecessary.’” Washington, 219

F.3d at 631 (quoting Strickland, 466 U.S. at 691). In other words, “a particular decision

not to investigate must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at

691. Here, however, because of trial counsel’s death, there is no record of why trial counsel

decided not to make any attempt to contact McClain and investigate the importance vel non

of her testimony to Syed’s defense. In such a situation, we must guard against “the

distorting effects of hindsight,” id. at 689, or to “conjure up tactical decisions an attorney

could have made, but plainly did not.” Griffin, 970 F.2d at 1358. Yet, even without trial

counsel’s explanation for her failure to investigate McClain as an alibi witness, we must


       36
         For a discussion of the State’s disclosure to trial counsel of its timeline for the
murder, see infra p. 92.
                                             87
still assess trial counsel’s performance under the objective standard of a reasonably

competent attorney acting under prevailing norms.37

       The State posits four reasons why Syed’s trial counsel performed as a reasonably

competent attorney when she failed to investigate McClain as an alibi witness. We

conclude that none of these reasons have merit.

               First, the alibi proposed by McClain threatened to suggest that
            Syed had lied to police and had gone to the public library, a place no
            one had ever associated with Syed. There are a number of problems
            with the alibi proposed by McClain, especially compared to the alibi
            strategy [trial counsel] adopted based on habit and routine—Syed

       37
          The dissent disagrees that trial counsel had a duty to make some effort to contact
McClain to ascertain whether her testimony would aid Syed’s defense. The dissent then
argues that in Strickland “the Supreme Court has rejected a bright line rule with respect to
ineffective assistance of counsel claims.” Respectfully, the dissent misconstrues the
analytical paradigm that we have just set forth. In sum, the first step in the paradigm is to
determine whether the duty arose for defense counsel to investigate a potential alibi
witness. If, and only if, such duty arose and defense counsel failed to make any effort to
contact the alibi witness, we move to the second step of the paradigm and determine
whether defense counsel’s failure was deficient performance under the objective standard
of a reasonably competent attorney acting under prevailing norms. Nowhere do we say, or
imply, that there is “a bright line rule with respect to ineffective assistance of counsel
claims.”

        The dissent also attempts to distinguish the cases on which we rely on the ground
that “[i]n those cases there was testimony by defense counsel, or other statements in the
record, indicating that the reason defense counsel did not interview the witness was
something other than trial strategy.” The dissent argues that “[t]he absence of testimony
by trial counsel makes it difficult for Syed to meet his burden of showing deficient
performance[,]” citing for authority to Broadnax v. State, 130 So.3d 1232 (Ala. Crim. App.
2013). Broadnax is clearly distinguishable from the case sub judice, because both of
Broadnax’s trial attorneys testified at the post-conviction hearing, but were never
questioned about their investigation of Broadnax’s alibi defense. Id. at 1256. The Alabama
court concluded “that Broadnax, by failing to question his attorneys about this specific
claim, failed to overcome the presumption that counsel acted reasonably.” Id. at 1256
(footnote omitted). Under Strickland, the “deference to counsel’s judgments” is part of, but
not controlling over, the requirement that “a particular decision not to investigate must be
directly assessed for reasonableness in all of the circumstances.” 466 U.S. at 691.
                                             88
            stayed at Woodlawn High School until track practice after which he
            attended prayers at his mosque.

       In this argument, the State suggests that trial counsel rejected the McClain alibi

because it was inconsistent with the alibi defense adopted by trial counsel “based on

[Syed’s] habit and routine.” The record does contain trial counsel’s alibi notice to the State

in October of 1999, in which she appeared to adopt the alibi defense of Syed’s routine of

staying at the high school after class, going to track practice, then going home and to the

mosque. It is important to note, however, that in her opening statement and closing

argument, trial counsel did not raise any alibi defense for Syed. Specifically, trial counsel

said nothing about Syed’s whereabouts from 2:15 p.m. to 2:35 p.m. on January 13 — the

precise twenty minute time period during which the State argued to the jury that Syed

murdered Hae.38

       Nevertheless, in our view, the bottom line is that no reasonable evaluation of the

advantages or disadvantages of McClain’s alibi testimony, as compared to an alibi defense

based on Syed’s habit or routine, could be made without first contacting McClain. Only

by contacting McClain would trial counsel have been able to determine (1) exactly what

McClain would say, (2) how certain McClain was concerning her interactions with Syed

that day, (3) how credible McClain would appear to a jury, (4) what, if any, corroborating

evidence was available, and (5) whether McClain’s testimony would aid in Syed’s defense.

       In Griffin, the Fourth Circuit stated that the failure of defense counsel to “even talk


       38
          In her closing argument, trial counsel did say that Syed told the police that he
went to track practice on the day of the murder. But trial counsel then stated that, according
to Coach Michael Sye, “track practice – no later than 4 to 5 or 5:30.”
                                             89
to [the alibi witness]” “deprived him of the opportunity to even make a tactical decision

about putting [the alibi witness] on the stand.” 970 F.2d at 1358; see Avery, 548 F.3d at

438 (stating that it was “impossible for [defense counsel] to have made a ‘strategic choice’

not to have [the two alibi witnesses] testify because he had no idea what they would have

said”). Moreover, in Lawrence, defense counsel had decided to defend Lawrence on a

theory of misidentification. 900 F.2d at 130. The Eighth Circuit held that such decision

“d[id] not excuse her failure to investigate all potential alibi witnesses.” Id. Thus, without

contacting McClain, trial counsel could not reasonably reject McClain’s potential alibi

testimony.

                Second, the [ ] alibi [proposed by McClain] ran the risk of placing
             Syed at the public library [and ultimately at Best Buy] with the
             victim at critical junctures. A review of [trial counsel’s] notes and
             her approach at trial also indicated that she identified and sought to
             exploit a weakness in the prosecution’s case—it was unclear how
             Syed got into [Hae’s] car the day she was killed. . . . Thus, placing
             Syed at or near the public library, where students were regularly
             picked up and where Hae [ ] could have picked up Syed, resolves a
             flaw [trial counsel] intended to exploit.

       The State fails to provide a citation from the record to support the assertion that

students were regularly picked up from the Woodlawn Public Library, nor is this a finding

made by the post-conviction court. Nevertheless, if we follow the State’s adopted theory

at trial, that the murder occurred between 2:15 p.m. and 2:35 p.m., McClain’s testimony

would have rendered irrelevant the aforementioned weakness in the prosecution’s case. In

other words, Syed deviating from his routine to go to the Woodlawn Public Library and to

speak with McClain from 2:20 p.m. to 2:40 p.m. would have placed him at a location other

than the crime scene at precisely the time of Hae’s murder. Thus it would not matter

                                              90
whether the alibi “ran the risk of placing Syed at the public library with the victim at critical

junctures.”

                  Third, pursuing the [ ] McClain alibi exposes Syed to the risk of
              being accused of colluding with a witness to falsify an alibi. The
              State submitted that, with the knowledge and documents available to
              [trial counsel] . . . , she could easily have detected in the letters . . .
              clear warning signs that would have prompted this experienced
              criminal attorney to fear that her client was coordinating, either
              directly or indirectly, with McClain to falsify an alibi.

           This argument was rejected by the post-conviction court in its Memorandum

Opinion II. The post-conviction court observed that the details about Hae’s murder and

the investigation were a matter of public knowledge prior to when McClain wrote the

letters.     The post-conviction court ultimately concluded that, “[i]f trial counsel had

reservations about the bona fides of the letters as the State suggests, trial counsel could

have spoken to McClain about these concerns instead of rejecting the potential alibi

outright.” Such conclusion is consistent with the case law. In Montgomery, the Seventh

Circuit rejected the argument that defense counsel’s lack of belief in the defendant’s

credibility was a reasonable basis for foregoing the investigation of a potential alibi

witness. 846 F.2d at 414. Moreover, trial counsel was aware of potential corroboration of

McClain’s information. Trial counsel’s file noted that McClain’s “boyfriend saw [Syed]

in library.” Also, in McClain’s first letter she advised Syed of the surveillance system

inside of the Woodlawn Public Library. Thus, whether McClain and Syed were involved

in the falsification of an alibi defense could be determined by a reasonably competent

attorney only after contacting McClain and investigating her potential alibi testimony.



                                                  91
       Finally, the State asserts that the alibi adopted by trial counsel, which was based

upon Syed’s habit or routine, was advantageous, “[b]ecause a precise time of death was

not identified by the State leading up to trial, [and thus trial counsel] had to establish an

alibi that would account for Syed’s whereabouts for an extended period of time after school

on January 13.” This argument is directly contrary to the facts in the record.

       In its Amended State’s Disclosure filed with the circuit court on July 8, 1999, the

State notified Syed that, “to the best of the State’s information, the victim was murdered

the afternoon of the day she was reported missing, shortly after she would have left school

for the day, January 13, 1999.” (Emphasis added). This disclosure dating more than five

months prior to the first trial was sufficient to put Syed’s trial counsel on notice that Syed’s

whereabouts that afternoon needed to be accounted for. In addition, at Syed’s first trial,

the State noted in its opening statement that Wilds received the call from Syed around

“2:30, 2:40” p.m. and Wilds went to meet Syed, which was when he saw the victim’s body.

Because the first trial ended in a mistrial, the State’s opening statement was sufficient to

put Syed’s trial counsel on notice of the pertinent time frame for which Syed needed an

alibi going into the second trial, which began six weeks later. There was only one call

listed in Syed’s cell phone records that fell within the time frame of “2:30, 2:40” p.m. and

that was the 2:36 p.m. call. As a result, trial counsel had clear knowledge six weeks before

the second trial that the time frame of 2:15 p.m. to 2:35 p.m. on January 13, 1999, was

going to be the crux of the State’s case, and therefore, an alibi covering this precise time

frame was extremely important.



                                              92
       In sum, Syed gave to trial counsel McClain’s name and contact information as a

potential alibi witness. Trial counsel also was aware six weeks before the second trial that

McClain’s testimony could place Syed at a location other than the scene of the crime at the

exact time that the State claimed Syed murdered Hae. Thus trial counsel had the duty to

make some effort to interview McClain to ascertain whether her testimony would aid in

Syed’s defense. Trial counsel failed to make any effort to contact McClain, and neither a

review of the record nor the State’s arguments provide a reasonable basis to justify such

failure. Moreover, regardless of the defense strategy that trial counsel had adopted for

Syed’s trial, once the State committed itself, at the first trial, to the period of 2:15 p.m. to

2:35 p.m. on January 13, 1999, as the time of the murder, it was manifestly unreasonable

for trial counsel not to make any effort to contact McClain, who, along with her boyfriend,

had seen Syed “in library 2:15–3:15[,]” according to trial counsel’s own notes to the file.

We, therefore, conclude that trial counsel’s failure to make any effort to contact McClain

as an alibi witness fell below the objective standard of a reasonably competent attorney

acting under prevailing norms, taking into consideration all of the circumstances existing

at the time of counsel’s conduct with a strong presumption of reasonable professional

assistance.39   Accordingly, trial counsel’s performance was deficient, and Syed has

satisfied the first prong of the Strickland test.


       39
           The dissent argues at length that trial counsel’s strategy at trial was reasonable,
and thus there was no deficient performance. The issue raised in the deficiency prong of
the Strickland test in the instant case is not whether the apparent defense strategy adopted
by trial counsel fell below the objective standard of a reasonably competent attorney acting
under prevailing norms. Rather, the issue presented is whether trial counsel’s failure to
make any effort to contact McClain as a potential alibi witness fell below such standard.
                                               93
    C. Prejudice for Trial Counsel’s Failure to Investigate McClain as a Potential Alibi
                                           Witness

       Having found trial counsel’s performance deficient, we now turn to the second step

in the Strickland test, commonly known as the prejudice prong. To satisfy this prong,

“[t]he defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Strickland,

466 U.S. at 694. We, however, do not “focus solely on an outcome determination, but

[also] consider ‘whether the result of the proceeding was fundamentally unfair or

unreliable.’” Oken v. State, 343 Md. 256, 284 (1996) (quoting Lockhart v. Fretwell, 506

U.S. 364, 369 (1993)).

       In determining the prejudice of trial counsel’s failure to investigate McClain as a

potential alibi witness, we must consider “the totality of the evidence before the judge or

jury.” Strickland, 466 U.S. at 695; see also Avery, 548 F.3d at 439 (“[The] potential alibi

witnesses coupled with an otherwise weak case renders the failure to investigate the

testimony sufficient to ‘undermine confidence’ in the outcome of the jury verdict. . . . Here,

the jury was deprived of the right to hear testimony that could have supplied such

‘reasonable doubt.’”). In considering the totality of the evidence, we recognize that

           [s]ome of the factual findings will have been unaffected by the
           errors, and factual findings that were affected will have been affected
           in different ways. Some errors will have had a pervasive effect
           on the inferences to be drawn from the evidence, altering the
           entire evidentiary picture, and some will have had an isolated,
           trivial effect. Moreover, a verdict or conclusion only weakly
           supported by the record is more likely to have been affected by errors
           than one with overwhelming record support. Taking the unaffected
                                             94
           findings as a given, and taking due account of the effect of the errors
           on the remaining findings, a court making the prejudice inquiry must
           ask if the defendant has met the burden of showing that the decision
           reached would reasonably likely have been different absent the
           errors.

Strickland, 466 U.S. at 695-96 (emphasis added).

       In addressing the prejudice prong of Strickland, the post-conviction court concluded

           that trial counsel’s failure to investigate McClain’s alibi did not
           prejudice the defense because the crux of the State’s case did not rest
           on the time of the murder. In fact, the State presented a relatively
           weak theory as to the time of the murder because the State relied
           upon inconsistent facts to support its theory.

The post-conviction court explained that, had “trial counsel investigated the potential alibi

witness, she could have undermined [the State’s] theory premised upon inconsistent facts.

The potential alibi witness, however, would not have undermined the crux of the State’s

case: that [Syed] buried the victim’s body in Leakin Park at approximately 7:00 p.m. on

January 13, 1999.” According to the post-conviction court, “Wilds’s testimony and

[Syed’s] cell phone records created the nexus between [Syed] and the murder. Even if trial

counsel had contacted McClain to investigate the potential alibi, McClain’s testimony

would not have been able to sever this crucial link.” The post-conviction court thus

concluded that Syed “failed to establish a substantial possibility that, but for trial counsel’s

deficient performance, the result of the trial would have been different.”

                                         1. Contentions

       Syed argues that trial counsel’s failure to investigate McClain was prejudicial,

because “McClain was a disinterested witness whose testimony would have provided Syed

an alibi for the entire period when, according to the State, the murder took place.” In

                                              95
Syed’s view, “[a]t the very least, there is a reasonable probability that a credible alibi

witness’s testimony would have ‘create[d] a reasonable doubt as to [Syed’s] involvement,’

which is enough to demonstrate Strickland prejudice. In re Parris W., 363 Md. [717, 729

(2001)].”

       The State responds that the post-conviction court’s focus on the burial of Hae’s body

was correct, because the “time of death was hardly a key fact of the State’s case[.]” The

State also contends that Syed cannot meet his burden of establishing prejudice, because the

State presented overwhelming evidence of Syed’s guilt. The State points to several critical

aspects of its case including, but not limited to, (1) evidence of motive from Hae’s break

up note found in Syed’s room in which the words “I’m going to kill” are written on the

back; (2) Wilds’s testimony; (3) forensic evidence of Syed’s partial palm print on the back

cover of a map book with the Leakin Park page ripped out; and (4) witness testimony from

Vinson, Pusateri, and Tanna that corroborated Wilds’s testimony. The State concludes

that, when such evidence is considered with the cell tower evidence, Syed fails to meet his

burden of proving prejudice under Strickland.

                                          2. Analysis

       At the second trial, the State set forth in its opening statement the following timeline

for Hae’s murder:

               One Inez Butler [Hendricks], who’s a teacher [at Woodlawn
            High School] who runs a little concession stand for the athletic
            department, talks briefly to Hae Lee about 2:15, 2:20 when she’s
            leaving school. She picks up a soda and a bag of snacks. She’s
            going to come back and pay for them. That’s her usual practice.
               She has a cousin who she picks up after school. She’s leaving to
            pick up that relative who’s a -- I think elementary student, take that

                                              96
            person home then come back to school.

               About 2:35, 2:36, Jay Wilds receives a call on the cell phone
            from the defendant saying, “Hey, come meet me at the [Best
            Buy].” This is the [Best Buy] off Security Boulevard just across
            from Security Square Mall. When he gets there, the defendant has
            Hae Lee’s car.

               Defendant says, “I’ve done it. I’ve done it.” He pops open the
            trunk of the car. Jay Wilds see[s] the body of Hae Min Lee in the
            trunk dead.

(Emphasis added).

      Throughout the trial, the State presented evidence to support this timeline and

eventually summarized the timeline in its closing argument:

               We know that class ended at 2:15 that day. And remember
            back to [ ] Pittman’s testimony. [Syed] was talking to [Hae] Lee at
            that point in time and Inez Butler [Hendricks] sees [Hae] as she
            rushes out of school, grabs her snack, and heads out the door.[40]
            Ladies and gentlemen, she’s dead within 20 minutes.

               2:36 p.m. [Syed] calls Jay Wilds, come get me at Best Buy. Jay
            Wilds is at the home of [Pusateri] at this point, and the records are
            clear. Call no. 28 occurs in the cell area covered by L651B. This is
            the area that the AT&T engineer told you covers house --

               So Jay drives to the Best Buy, and it is there that [Syed], for the
            first time, opens his trunk and shows Jay Wilds the body of [Hae]
            Lee. By 3 p.m., by 3 p.m., her family knows she hasn’t picked
            up her cousins.

               [Syed] gets Jay to follow him to the I-70 parking lot where they
            leave [Hae’s] car, and they then head back towards Woodlawn from
            the park and ride together.

              It’s at that point, at 3:32 p.m., that [Syed] calls [Tanna] in Silver
            Spring. She says hello to Jay. We know they are together at that
            point in time. That call lasts for 2 minutes and 22 seconds. Jay

      40
           The State theorized that Syed had driven Hae’s car to the Best Buy.
                                              97
           Wilds doesn’t know [Tanna], and [Tanna] told you this is her own
           private line, nobody answers that line but her, and [Syed] is the only
           one who knows her. This occurs in the coverage area of L651C, the
           pink area, which would be consistent if they were heading back
           towards Woodlawn from the I-70 parking lot.

(Emphasis added).

       According to the post-conviction court, during the second hearing, the State for the

first time “suggested a new timeline that would have allowed [Syed] to commit the murder

after 2:45 p.m. and then call Wilds at 3:15 p.m. instead of 2:36 p.m., which would negate

the relevance of the potential alibi.” The post-conviction court rejected this suggestion,

stating that “[t]he trial record is clear, however, that the State committed to the 2:25–2:45

p.m. window as the timeframe of the murder and the 2:36 p.m. call as the call from the

Best Buy parking lot.”

       The post-conviction court went on to observe:

              The State [ ] elicited testimony during the trial that is incongruent
           with the State’s newly adopted timeline. Wilds testified on direct
           examination that he called Pusateri at 3:21 p.m. to go buy some
           marijuana after abandoning the victim’s body and her vehicle at the
           Interstate 70 Park & Ride. Accordingly, the State’s new timeline
           would create a six-minute window between the 3:15 p.m. call from
           [Syed] and the 3:21 p.m. call to Pusateri. Within this six-minute
           window, Wilds had to complete a seven-minute drive to the Best
           Buy on Security Boulevard from Craigmount Street, where he
           claimed he was located when he received [Syed’s] call. Wilds then
           had to make a stop at the Best Buy parking lot, where [Syed] showed
           him the body in the victim’s vehicle. Then, both parties had to take
           another seven-minute drive to the Interstate 70 Park & Ride to
           abandon the victim’s body and her vehicle. It would be highly
           unlikely that Wilds could have completed this sequence of events
           within a six-minute window under the State’s new timeline.

The post-conviction court concluded that “[b]ased on the facts and arguments reflected in


                                             98
the record, the [c]ourt finds that the State committed to the 2:36 p.m. timeline and thus, the

[c]ourt will not accept the newly established timeline.” (Emphasis added).

       In Strickland, the Supreme Court stated that a court must analyze “the totality of the

evidence before the judge or jury.” 466 U.S. at 695 (emphasis added). Accordingly, we

agree with the post-conviction court’s rejection of the State’s attempt to alter its timeline

of the murder and will analyze the prejudice prong relating to McClain’s alibi testimony

based on the State’s timeframe of Hae’s murder: between 2:15 p.m. and 2:35 p.m. on

January 13, 1999.

       We disagree, however, with the post-conviction court’s conclusion that, because the

crux of the State’s case was the burial of Hae’s body in Leakin Park, there was no prejudice

from the absence of McClain’s testimony at trial. Syed was charged with, inter alia, first

degree murder, and the trial court properly instructed the jury as follows: “In order to

convict the Defendant of first degree murder, the State must prove that the conduct of the

Defendant caused the death of the victim, Ms. [Hae] Lee, and that the killing was willful,

deliberate, and premeditated.”     See, e.g., Willey v. State, 328 Md. 126, 132 (1992)

(approving this portion of the pattern jury instruction). The burial of Hae was not an

element that the State needed to prove in order to convict Syed. Instead, the State had to

establish that Syed “caused the death” of Hae, and the State’s theory of when, where, and

how Syed caused Hae’s death was critical to proving this element of the crime.

       We acknowledge that evidence of Syed’s involvement in the burial of Hae’s body

was significant, because Syed’s actions after Hae’s death did create an inference that he

committed her murder.        Syed’s involvement in the burial, in other words, was

                                             99
circumstantial evidence of his committing the murder of Hae.           See Circumstantial

Evidence, Black’s Law Dictionary (10th ed. 2014) (defining circumstantial evidence as

“[e]vidence based on inference and not on personal knowledge or observation”). It,

however, did not directly establish that Syed caused Hae’s death sometime between 2:15

p.m. and 2:35 p.m. in the Best Buy Parking lot on January 13, 1999.

       McClain’s alibi testimony, on the other hand, would have been direct evidence that

Syed was not at the Best Buy parking lot between 2:15 p.m. and 2:35 p.m. See Direct

Evidence, Black’s Law Dictionary (10th ed. 2014) (defining direct evidence as “[e]vidence

that is based on personal knowledge or observation and that, if true, proves a fact without

inference or presumption”). McClain’s testimony at the second hearing demonstrated that

she was a disinterested witness who would have testified about seeing Syed (1) at a specific

location, the Woodlawn Public Library, (2) on a specific date, January 13, 1999, and (3)

during a specific time frame, at about 2:20 p.m. for 15–20 minutes. Hence, if believed by

a trier of fact, McClain’s testimony would have “‘tend[ed] to prove that it was impossible

or highly improbable that [the defendant] was at the scene of the crime when it was alleged

to have occurred.’” McLennan v. State, 418 Md. 335, 352 (2011) (second alteration in

original) (quoting Ferguson v. State, 488 P.2d 1032, 1039 (Alaska 1971)).

       McClain’s alibi testimony, however, cannot be viewed in isolation. Strickland, 466

U.S. at 695. We must look to the totality of the evidence presented to the jury to determine

whether McClain’s testimony would “have had a pervasive effect on the inferences to be

drawn from the evidence, altering the entire evidentiary picture,” or whether her testimony

would “have had an isolated, trivial effect.” Id. at 695-96.

                                            100
         As indicated in the Background Section of this opinion, the State presented a strong

circumstantial case. After six weeks of trial, the jury took only three hours to convict Syed

of all charges, and on direct appeal, Syed made no claim of insufficiency of the evidence

as to any of his convictions. But as with many criminal cases of a circumstantial nature, it

had its flaws. With little forensic evidence, the case was largely dependent on witness

testimony of events before and after Hae’s death. Testimony of these witnesses often

conflicted with the State’s corroborating evidence, i.e., the cell phone records and the cell

tower location testimony by its expert, Waranowitz. The State’s key witness, Wilds, also

was problematic; something the State readily admitted during its opening statement.41

Wilds had given three different statements to police about the events surrounding Hae’s

death.


         41
              In its opening statement, the State made the following remarks:

               You’re going to hear how on the evening of the 12th of January, the
               defendant called Jay Wilds.

                  Now, Jay Wilds was a high school student at Woodlawn, too. But
               he’s not among the bright and gifted. He lives in that area. He lives
               with his mother, who’s very poor. He’s had to work most of his own
               life.

                  And remember when you hear about Jay Wilds and you hear him,
               remember this is the person the defendant seated here, [chose] to use
               to put into effect his murder of his girlfriend.

                 The State has to take -- take its witnesses where it finds them. We
               don’t get to pick and choose. We can’t go down and ask Bea
               Ga[ddy] to come in and testify for us because we need a good
               witness. We have to take the ones that the defendants leave us.


                                               101
       The State’s case was weakest when it came to the time it theorized that Syed killed

Hae.42 As the post-conviction court highlighted in its opinion, Wilds’s own testimony

conflicted with the State’s timeline of the murder.43 Moreover, there was no video

surveillance outside the Best Buy parking lot placing Hae and Syed together at the Best

Buy parking lot during the afternoon of the murder; no eyewitness testimony placing Syed

and Hae together leaving school or at the Best Buy parking lot; no eyewitness testimony,

video surveillance, or confession of the actual murder; no forensic evidence linking Syed

to the act of strangling Hae or putting Hae’s body in the trunk of her car; and no records

from the Best Buy payphone documenting a phone call to Syed’s cell phone. In short, at

trial the State adduced no direct evidence of the exact time that Hae was killed, the location

where she was killed, the acts of the killer immediately before and after Hae was strangled,

and of course, the identity of the person who killed Hae.

       It is our opinion that, if McClain’s testimony had been presented to the jury, it would

have “alter[ed] the entire evidentiary picture,” because her testimony would have placed

Syed at the Woodlawn Public Library at the time the State claimed that Syed murdered

Hae. See Strickland, 466 U.S. at 696. Such testimony would have directly contradicted

the State’s theory of when Syed had the opportunity and did murder Hae. The State even

implicitly conceded the strength of McClain’s testimony and its potential impact on the


       42
          The post-conviction court opined that “the State presented a relatively weak
theory as to the time of the murder[.]”
       43
          The post-conviction court cited to Wilds’s testimony on cross-examination,
wherein Wilds testified to receiving Syed’s call to come and get him at Best Buy sometime
after 3:45 p.m.
                                             102
jury when it attempted to present a new timeline for the murder at the second hearing. The

post-conviction court aptly noted that the new timeline “would [have] negate[d] the

relevance of the potential alibi.” The State’s attempt to change the time of the murder

further solidifies our own conclusion that “the jury was deprived of the [opportunity] to

hear testimony that could have supplied [ ] ‘reasonable doubt’” in at least one juror’s mind

leading to a different outcome: a hung jury. Avery, 548 F.3d at 439; see Strickland, 466

U.S. at 695 (“When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.”). Accordingly, in considering the totality of the evidence at Syed’s

trial with the potential impact of McClain’s alibi testimony, this Court holds that there is a

reasonable probability that, but for trial counsel’s deficient performance, the result of

Syed’s trial would have been different. See Strickland, 466 U.S. at 694. Thus Syed has

satisfied the prejudice prong of Strickland.44


       44
          In the State’s Conditional Application for Limited Remand, it requested that this
Court allow the State to supplement the record with two witnesses who claimed that
McClain did not see Syed at the Woodlawn Public Library on January 13, 1999. Because
the State is asking that the post-conviction record be supplemented with testimony or
affidavits of these State witnesses, the State, like Syed, would be required to file a motion
to reopen the post-conviction proceeding pursuant to CP § 7-104. The State, however, is
precluded from doing so by the opinion of the Court of Appeals in Alston v. State, 425 Md.
326 (2012). The Alston Court stated:

               When a final judgment in a post[-]conviction case is adverse to
            the State, the only remedy granted to the State in the Post[-
            ]conviction Procedure Act is to “apply to the Court of Special
            Appeals for leave to appeal the order.”

                                            ***

                                             103
                                         D. Conclusion

      As previously stated, to establish an ineffective assistance of counsel claim under

Strickland, the defendant must prove that (1) “counsel’s performance was deficient[,]” and

(2) “the deficient performance prejudiced the defense.” 466 U.S. at 687. In the case sub

judice, trial counsel rendered deficient performance when she failed to conduct any

investigation of McClain as a potential alibi witness.          McClain appeared to be a

disinterested witness, and her testimony would have placed Syed at a location other than

the scene of the crime at the exact time that the State claimed that Syed murdered Hae.

McClain’s testimony, if believed by the trier of fact, would have made it impossible for

Syed to have murdered Hae. Trial counsel’s deficient performance prejudiced Syed’s

defense, because, but for trial counsel’s failure to investigate, there is a reasonable

probability that McClain’s alibi testimony would have raised a reasonable doubt in the

mind of at least one juror about Syed’s involvement in Hae’s murder, and thus “the result

of the proceedings would have been different.” Id. at 694. Because Syed has proven both

the performance and prejudice prongs of the Strickland test, we conclude that his claim of

ineffective assistance of counsel has been established.         Accordingly, Syed’s murder




              There is no support in the language of the Post[-]conviction
           Procedure Act, in the history of the Act, or in any of this Court’s
           opinions, for the . . . position that the State could reopen a proceeding
           under [CP] § 7-104. It is clear that the reopening provision is
           solely for the benefit of a “convicted person.”

Id. at 332, 338 (emphasis added) (internal citations omitted). Accordingly, we deny the
State’s request for a limited remand. We note, however, that if the State does re-prosecute
Syed, the State will have the opportunity to present these witnesses at the new trial.
                                             104
conviction must be vacated, and because Syed’s convictions for kidnapping, robbery, and

false imprisonment are predicated on his commission of Hae’s murder, these convictions

must be vacated as well. The instant case will be remanded for a new trial on all charges

against Syed.45

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR BALTIMORE CITY AFFIRMED;
                                          CASE REMANDED TO THAT COURT
                                          FOR NEW TRIAL ON ALL CHARGES;
                                          COSTS TO BE PAID BY THE MAYOR AND
                                          CITY COUNCIL OF BALTIMORE.




       45
          In analyzing the prejudice prong of the Strickland test, a court is confined to the
evidence presented at the defendant’s trial. 466 U.S. at 695. Here, the potential impact of
McClain’s alibi testimony was measured against the timeline for the murder adopted by
the State at Syed’s trial. By our opinion, we do not and cannot suggest that the State is
bound to that timeline in the event that the State decides to re-prosecute and a new trial
commences on remand. A new trial on remand is a blank slate, and the State is free to
adduce any evidence or adopt any theory that it believes supports the charges against Syed.
See Tichnell v. State, 297 Md. 432, 440 (1983) (“With some exceptions, the defendant who
successfully challenges his conviction may be retried, under the rationale that the defendant
wiped the slate clean and the parties may start anew.” (internal quotation marks and citation
omitted)); see also Hammersla v. State, 184 Md. App. 295, 313 (2009) (“The reversal of
appellant’s conviction, with an order for a new trial, ‘wiped the slate clean,’ and the case
began anew procedurally.”).
                                            105
Circuit Court for Baltimore City
Case Nos. 199103042 to 046                       REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND
                                   ______________________________________
                                            CONSOLIDATED CASES


                                                   No. 2519
                                             September Term, 2013

                                               ADNAN SYED
                                                     v.
                                           STATE OF MARYLAND
                                   ______________________________________

                                                   No. 1396
                                             September Term, 2016

                                           STATE OF MARYLAND
                                                    v.
                                              ADNAN SYED

                                   ______________________________________

                                        Woodward, C.J.,
                                        Wright,
                                        Graeff,
                                                      JJ.

                                   ______________________________________

                                         Dissenting Opinion by Graeff, J.
                                   ______________________________________

                                        Filed: March 29, 2018
       I respectfully dissent. Although I agree with the majority opinion on the first four

questions presented, I disagree with the majority’s decision on the last issue, whether Syed

received ineffective assistance of counsel due to defense counsel’s failure to contact Asia

McClain, an alleged alibi witness. After a review of the record, I conclude that Syed failed

to meet his burden of showing that he received ineffective assistance of counsel in this

regard.

       In Strickland v. Washington, 466 U.S. 668, 686 (1984), the United States Supreme

Court stated that the “benchmark” for judging a claim of ineffective assistance of counsel

is “whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” To prevail on a

claim of ineffective assistance of counsel, a defendant must satisfy a two-prong test: “First,

the defendant must show that counsel’s performance was deficient.” Id. at 687. Second,

the defendant must show that counsel’s deficient performance prejudiced the defense, i.e.,

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. The defendant must make

both showings. Id. at 687. If he or she fails to show either prong, “it cannot be said that

the conviction or death sentence resulted from a breakdown in the adversary process that

renders the result unreliable.” Id.

       The Supreme Court has made clear that “‘[s]urmounting Strickland’s high bar is

never an easy task.’” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Padilla v.

Kentucky, 559 U.S. 356, 371 (2010)). The Strickland test “must be applied with scrupulous
care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process

the right to counsel is meant to serve.” Id. (quoting Strickland, 466 U.S. at 689–690).

       Although the performance and prejudice prong can be addressed in either order, I

will address first the performance prong. To show that counsel’s performance was

deficient, the defendant must show that “counsel’s representations fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688. The performance prong “is

satisfied only where, given the facts known at the time, counsel’s ‘choice was so patently

unreasonable that no competent attorney would have made it.’” State v. Borchardt, 396

Md. 586, 623 (2007) (quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)). “The

question is whether an attorney’s representation amounted to incompetence under

‘prevailing professional norms,’ not whether it deviated from best practices or most

common custom.” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690).

       In reviewing such a claim, the lens through which we view it is critical. We must

begin our analysis with the “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, and that

counsel “made all significant decisions in the exercise of reasonable professional

judgment.” Id. at 690. Courts apply a highly deferential standard “to avoid the post hoc

second-guessing of decisions simply because they proved unsuccessful.” Evans v. State,

396 Md. 256, 274 (2006).

       It is the defendant’s burden to “overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The

                                              2
defendant must show “that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

       Here, Syed contends that his trial counsel rendered deficient performance because

she failed to contact Ms. McClain after becoming aware that Ms. McClain “would have

testified that Syed was in the Woodlawn Public Library at the time of the murder.” The

post-conviction court rejected this claim in its first opinion, finding “several reasonable

strategic grounds for trial counsel’s decision to forego pursuing Ms. McClain as an alibi

witness.” First, the court found that the letters Ms. McClain sent to Syed did “not clearly

show Ms. McClain’s potential to provide a reliable alibi” for Syed, noting that the only

indication of her potential as an alibi witness was her offer to “‘account for some of

[Syed’s] un-witnessed, unaccountable lost time (2:15-8:00; Jan 13th).’” And the court

concluded that “trial counsel could have reasonably concluded that Ms. McClain was

offering to lie in order to help [Syed] avoid conviction.” Second, the court stated that the

information from Ms. McClain, that Syed was at the public library, contradicted Syed’s

“own stated alibi that he remained on the school campus from 2:15 p.m. to 3:30 p.m.” It

found that, “[b]ased on this inconsistency, trial counsel had adequate reason to believe that

pursuing Ms. McClain as a potential alibi witness would not have been helpful to [Syed’s]

defense and may have, in fact, harmed the defense’s ultimate theory of the case.”

Accordingly, the court determined that counsel’s failure to investigate Ms. McClain as a

potential alibi witness was “the result of a sound and reasonable trial strategy.”




                                              3
       In its second opinion, the court reversed itself, based on “the expanded record and

the legal arguments presented.”1 With respect to the State’s argument that counsel made a

strategic decision not to investigate Ms. McClain because there was evidence suggesting it

was a false alibi, the court stated that, although the State presented “a compelling theory,”

its argument would “invite the [c]ourt to entertain speculations about strategic decisions

that counsel made,” and the court would not “indulge in such hindsight sophistry.” The

court found that, because trial counsel knew about the potential alibi witness approximately

five months before trial, she had “ample time and opportunity to investigate the potential

alibi,” and “[u]nder these circumstances,” counsel’s “failure to contact and investigate

McClain as a potential alibi witness fell below the standard of reasonable professional

judgment.”

       The post-conviction court based its ruling on its factual finding that defense counsel

was aware that Ms. McClain was a potential alibi witness and did not contact her, ruling

that, based on these circumstances, counsel’s performance was deficient. Counsel for Syed

similarly stated at oral argument that, any time a defendant advises counsel of a potential

alibi witness, counsel must contact that witness and pursue that potential alibi defense. The

majority likewise asserts that, once trial counsel learned about Ms. McClain as a potential

alibi witness, she “had the duty to . . . make some effort to contact McClain.”



       1
        The expanded record at the second post-conviction hearing included the testimony
of David B. Irwin, who was admitted as an expert in criminal practice, that “to meet the
minimal objective standard of reasonable defense care,” trial counsel “had to go talk to
Asia McClain.”

                                             4
       I disagree. There may be good reasons for a reasonable attorney not to contact a

potential alibi witness. For example, if the defense is that the defendant was in Maryland

during the time a crime was committed in Virginia, defense counsel reasonably could

conclude that there was no need to contact or follow up on a potential witness who said

that he or she saw the defendant in California at the time of the crime.

       Indeed, the Supreme Court has rejected a bright line rule with respect to ineffective

assistance of counsel claims. It explained in Strickland:

              [S]trategic choices made after thorough investigation of law and facts
       relevant to plausible options are virtually unchallengeable; and strategic
       choices made after less than complete investigation are reasonable precisely
       to the extent that reasonable professional judgments support the limitations
       on investigation. . . . [C]ounsel has a duty to make reasonable
       investigations or to make a reasonable decision that makes particular
       investigations unnecessary. In any effectiveness case, a particular decision
       not to investigate must be directly assessed for reasonableness in all the
       circumstances, applying a heavy measure of deference to counsel’s
       judgments.

466 U.S. at 690-91 (emphasis added). Thus, counsel’s “duty” may be satisfied by making

a reasonable decision, based on all the circumstances, that it is not necessary to interview

an alibi witness.

       In determining whether counsel’s failure to investigate is reasonable, a court must

engage in “a context-dependent consideration of the challenged conduct as seen ‘from

counsel’s perspective at the time,’” eliminating “‘the distorting effects of hindsight.’”

Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 689). The

information available to counsel is important, particularly statements and information

given by the defendant:

                                             5
              [W]hen the facts that support a certain potential line of defense are
       generally known to counsel because of what the defendant has said, the need
       for further investigation may be considerably diminished or eliminated
       altogether. And when a defendant has given counsel reason to believe that
       pursuing certain investigations would be fruitless or even harmful, counsel’s
       failure to pursue those investigations may not later be challenged as
       unreasonable.
Strickland, 466 U.S. at 691. Accord Espinal v. Bennett, 588 F. Supp. 2d 388, 399

(E.D.N.Y. 2008) (“A reasonable decision to forego investigation may be based on a

reasoned judgment that such investigation would be fruitless, wasteful, or even

counterproductive.”).2

       Several courts have held that a failure to investigate a potential alibi did not

constitute ineffective assistance of counsel when counsel’s decision to forgo investigation

was reasonably based in trial strategy. In Broadnax v. State, 130 So.3d 1232, 1236 (Ala.

Crim. App. 2013), the defendant was convicted of murdering his wife and her grandson.

The State’s evidence indicated that Broadnax, who had a prior conviction for murder,

resided at a work release center and worked at Welborn Forest Products, both in Alexander

City, Alabama. Id. at 1237. The State’s theory was that, between 6:30 p.m. and 10:30

p.m., Broadnax killed his wife after she visited him at Welborn, put her body in the trunk

of her car, drove the car to Birmingham, which was approximately one and one-half hours

from Welborn, killed his wife’s grandson, and found someone to drive him back to


       2
         The court in Espinal v. Bennett, 588 F. Supp. 2d 388, 399 (E.D.N.Y. 2008), went
on to state that “a failure to conduct reasonable investigation into possible alibi evidence,
in the absence of such a reasonable explanation, falls below the standard of effective
representation required by Strickland.” As explained in more detail, infra, the cases cited
by Syed and the majority fall into this category.

                                             6
Welborn, where witnesses saw him around 10:30 p.m. Id. at 1238-39. The defense theory

of the case was that the defendant was at Welborn all day and evening, “as Broadnax had

said in his statements to police – and that the State’s evidence was insufficient to prove that

Broadnax had committed the murders.” Id. at 1239.

       After he was convicted of murder, Broadnax sought post-conviction relief, claiming

that his trial attorneys were “ineffective for not adequately investigating and presenting”

the alibi that he was at the work-release facility at 9 p.m. on the night of the murders. Id.

at 1246. He argued that “a proper and adequate investigation would have resulted in the

discovery of witnesses” who saw him at the facility at “‘a time which would have made it

impossible for him to have committed’ the murders.”3 Id. at 1249.

       The Alabama court rejected Broadnax’s claim that counsel’s performance was

deficient, for several reasons. Initially, the court found that, “by failing to question his

[trial] attorneys about this specific claim, [Broadnax] failed to overcome the presumption

that counsel acted reasonably.” Id. at 1256. The court stated: “It is extremely difficult, if

not impossible, to prove a claim of ineffective assistance of counsel without questioning

counsel about the specific claim, especially when the claim is based on specific actions, or

inactions, of counsel that occurred outside the record.” Id. at 1255. This is because

“‘[c]ounsel’s competence . . . is presumed, and the [petitioner] must rebut this presumption



       3
         In support of this argument, Broadnax identified five individuals who supported
his alibi that he was at the work release facility, rather than at Welborn, and “[a]ll five
witnesses stated that they had never been contacted by defense counsel or by a defense
investigator.” Broadnax v. State, 130 So.3d 1232, 1250-51 (Ala. Crim. App. 2013).

                                              7
by proving that his attorney’s representation was unreasonable under prevailing

professional norms and that the challenged action was not sound strategy.’” Id. (quoting

Chandler v. U.S., 218 F.3d 1305, 1314 n. 15 (11th Cir. 2000)). The court stated: “‘If the

record is silent as to the reasoning behind counsel’s actions, the presumption of

effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.’”

Id. at 1256 (quoting Dunaway v. State, 198 So.3d 530, 547 (Ala. Crim. App. 2009)).4

       The court further held that Broadnax failed to overcome the presumption of

effectiveness and prove that his counsel’s performance was deficient. Id. at 1256. In that

regard, the court noted that Broadnax’s claim was based on an alibi that was inconsistent

with what Broadnax told the police and his attorneys, i.e., that he was at Welborn, not the

work release facility, until about 10:45 p.m. the night of the murder. Id. at 1249. Noting

that the State had other evidence that Broadnax lied to the police, 5 the court stated: “[W]e

cannot say that any decision to forgo attempting to further impugn the client’s credibility

by presenting additional evidence of Broadnax’s lying to the police was unreasonable.” Id.

at 1258.



       4
         In Broadnax, 130 So.3d at 1255, the defendant failed to call trial counsel at the
post-conviction hearing. Here, trial counsel was unavailable to testify because she passed
away prior to the post-conviction hearing. That distinction, however, does not change the
legal analysis. See Walker v. State, 194 So.3d 253, 297 (Ala. Crim. App. 2015) (“the death
of an attorney did not relieve postconviction counsel of satisfying the Strickland test when
raising a claim of ineffective assistance of counsel.”).
       5
        Broadnax told the police that he called his brother from Welborn at approximately
9:00 p.m., but telephone records indicated that no such call was made. Broadnax, 130
So.3d at 1239. Broadnax also told the police that a bloody uniform belonging to him had
been stolen, but no report of a stolen uniform had been made. Id.
                                             8
       Although Broadnax did not involve a failure to investigate an alibi witness

identified by the defendant prior to trial, it does illustrate the principle that a decision not

to investigate a certain defense does not constitute ineffective assistance of counsel if it is

reasonably based in trial strategy. Two other cases, however, reach the same conclusion

in the circumstance where the potential alibi witness was identified by the defendant.

       In Commonwealth v. Rainey, 928 A.2d 215, 233 (Pa. 2007), Rainey argued that he

was denied effective assistance of counsel because he made counsel aware of five alibi

witnesses, who would have testified that the defendant was at their house on the night of

the murder and did not leave, but counsel failed to reasonably “investigate, develop, and

present” these witnesses. Trial counsel testified that, although Rainey had “mentioned the

possibility of presenting alibi witnesses, ‘he had never in my discussions persuaded me that

he had witnesses, reliable witnesses to alibi.’” Id. The Supreme Court of Pennsylvania, in

rejecting Rainey’s claim, stated that, “[t]o show ineffectiveness for not presenting alibi

evidence, [Rainey] must establish that counsel could have no reasonable basis for his act

or omission,” but in that case, a reasonable basis for not presenting this purported alibi

evidence was “readily apparent from the record.” Id. at 234.

       The record showed that Rainey, who was charged with murder during a robbery,

had told the police that he was present during the robbery, but his co-defendant shot the

victim. Id. at 221. The defense theory was to concede Rainey’s involvement in the crime

but argue that the facts did not support first-degree murder. Id. The court held that, because

pursuing Rainey’s purported alibi evidence would have contradicted the defense strategy



                                               9
and opened the door to the State admitting into evidence Rainey’s statement to the police,

counsel was not ineffective for failing to present the witnesses. Id. at 234.6

       In Weeks v. Senkowski, 275 F. Supp. 2d 331, 341 (E.D.N.Y. 2003), Weeks alleged

that he provided trial counsel with alibi witnesses who would testify that he was drinking

with them on the day of the murder. Weeks asserted that he was denied the effective

assistance of counsel because trial counsel refused to interview these witnesses. Id. at 340.

The court rejected this argument, finding that this was a “sound strategic choice,” not

“ineffective assistance of counsel,” where the witnesses had been “convicted of having

participated in the same murders for which [Weeks] was being tried.” Id. at 341.

       These cases illustrate that counsel does not, contrary to Syed’s argument, have an

absolute duty to interview a witness identified as an alibi witness. Rather, the “duty” is “to

make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691 (emphasis added).

       Thus, the finding by the post-conviction court that defense counsel did not contact

Ms. McClain is only the first step in the inquiry. It is not the end of the inquiry.

       The ultimate inquiry is whether defense counsel made a reasonable decision that

interviewing Ms. McClain was not necessary. And more specifically, the question is

whether Syed has met his burden to overcome the presumption that counsel’s decision was

based on reasonable trial strategy. See Coleman v. State, 434 Md. 320, 335 (2013)


       6
         Although the court focused on the failure to present witnesses, the claim was the
failure “to investigate and present” the alibi witnesses. Commonwealth v. Rainey, 928 A.2d
215, 233 (Pa. 2007).

                                              10
(“‘Reviewing courts must thus assume, until proven otherwise, that counsel’s conduct

fell within a broad range of reasonable professional judgment, and that counsel’s conduct

derived not from error but from trial strategy.’”) (quoting Mosley v. State, 379 Md. 548,

558 (2003) (emphasis added)).7

       In addressing whether trial counsel made a reasonable decision not to contact Ms.

McClain, the decision in Weaver v. State, 114 P.3d 1039 (Mont. 2005) is instructive. In

that case, the Supreme Court of Montana stated: “‘A claim of failure to interview a witness

may sound impressive in the abstract, but it cannot establish ineffective assistance when

the person’s account is otherwise fairly known to defense counsel.’” Id. at 1043 (quoting

State v. Thomas, 946 P.2d 140, 144 (Mont. 1997)). The court held that, where counsel

knew the substance of the testimony that could be elicited from the potential witnesses

identified by Weaver, counsel made a “reasonable decision” that it was not necessary to

investigate those witnesses, and therefore, Weaver failed to prove that counsel’s decision

not to investigate fell below an objective standard of reasonableness. Id. at 1044.

       Here, the evidence that trial counsel failed to obtain by not contacting Ms. McClain,

as presented in Ms. McClain’s post-conviction testimony, was that Ms. McClain had a 15-



       7
         Syed, in his petition for post-conviction relief claiming ineffective assistance of
counsel regarding the McClain alibi, relied on nothing more than the fact that defense
counsel did not contact Ms. McClain, stating summarily that “[t]here is no possible
strategic reason why a defense attorney would not even investigate a possible witness.”
Similarly, on appeal, Syed relies on “the basic fact that trial counsel knew of but failed to
pursue a potential alibi witness,” stating: “That should be the end of the deficiency
inquiry.” That counsel failed to contact Ms. McClain, however, is not sufficient to satisfy
Syed’s burden to overcome the presumption that counsel’s decision not to interview Ms.
McClain was a reasonable one, based on trial strategy.
                                             11
20 minute conversation with Syed at the public library on the day of the murder, starting

at “[s]hortly after 2:15” p.m.8 Syed asserts that counsel unreasonably failed to contact Ms.

McClain because her testimony provided an alibi for the time the State alleged that the

murder occurred, i.e., between 2:15 p.m., when school let out, and 2:36 p.m., when the

State alleged that Syed called Jay Wilds to pick him up at the Best Buy parking lot.

       The record here reflects that, as in Weaver, trial counsel knew the gist of Ms.

McClain’s alibi. Trial counsel’s file contained notes from her law clerk regarding an

interview with Syed on July 13, 1999, indicating that Syed said that Ms. McClain “saw

him in the library @ 3:00” and her “boyfriend saw him too.” Trial counsel also noted in

her file that “[McClain] + boyfriend saw [Syed] in library 2:15-3:15.” Because counsel

knew the gist of what Ms. McClain would say if counsel contacted her, the reviewing court

must presume that she made a “reasonable decision,” based on trial strategy, that it was not

necessary to investigate this potential alibi.

       The State has suggested several possible reasons why the decision not to contact

Ms. McClain was a reasonable one, reasons suggesting that the substance of Ms. McClain’s

testimony would not be particularly helpful, and might be harmful, to the trial strategy

counsel was pursuing. The post-conviction court, in its second opinion, rejected this

argument, indicating that the reasons were speculative.




       8
         Ms. McClain’s testimony, that she spoke with Syed for 15-20 minutes, beginning
shortly after 2:15 p.m., is similar to, but slightly different from, her January 13, 2015,
affidavit, in which she stated that she saw Syed enter the library “around 2:30 p.m.,” and
Syed was still there when she left the library “around 2:40” p.m.
                                                 12
       The majority similarly states that courts should not “‘conjure up tactical decisions

an attorney could have made, but plainly did not.’” (quoting Griffin, 970 F.2d at 1358). In

Griffin, however, defense counsel testified that he did not interview the alibi witness

because it was his impression that the case was “going to be pleaded.” Id. at 1357. It was

in that context that the court declined to consider other tactical decisions that the attorney

“could have made, but plainly did not.” Id. at 1358.

       The Supreme Court has stated that, in applying “the strong presumption of

competence that Strickland mandates,” the court must “affirmatively entertain the range of

possible reasons” trial counsel may have had for proceeding as he or she did. Cullen v.

Pinholster, 563 U.S. 170, 196 (2011). Here, a review of the record as a whole indicates

possible reasons why trial counsel reasonably could have concluded that pursuing Ms.

McClain’s purported alibi, which was known to trial counsel, could have been more

harmful than helpful to Syed’s defense.

       Trial counsel clearly prepared for an alibi defense. She provided the following alibi

notice to the State:

              At the conclusion of the school day, the defendant remained at the
       high school until the beginning of his track practice. After track practice,
       Adnan Syed went home and remained there until attending services at his
       mosque that evening. These witnesses will testify . . . as to the defendant’s
       regular attendance at school, track practice, and the Mosque, and that his
       absence on January 13, 1999 would have been missed.

This alibi was consistent with what Syed told Detective Joshua O’Shea on January 25,

1999, i.e., that on the day of the murder he was in class with the victim until 2:15 p.m., but

“[h]e did not see her after school because he had gone to track practice.”


                                             13
       The State, however, had strong evidence supporting Jay Wilds’ testimony regarding

what occurred the evening of January 13, 1999, which, according to his testimony, was

when he and Syed buried the victim’s body. Trial counsel’s strategy, based on her opening

statement, closing argument, and examination of witnesses, appears to have included, in

addition to eliciting evidence consistent with the alibi notice: (1) attacking the credibility

of Jay Wilds; (2) arguing that, although there were phone records supporting that Syed’s

phone was in locations consistent with Wilds’ testimony, there was no evidence that Syed

was in possession of his phone during that time; (3) noting that the State did not produce

any evidence of the time the victim was murdered, and one witness stated that she saw the

victim at 3:00 p.m. on the date of the murder; (4) presenting Syed, a young man from a

good family, who was a gifted student and athlete, well-liked, well-mannered, and

cooperative with the police, as a person of good character who would not commit murder;

(5) minimizing the inconsistency in Syed’s statements regarding whether the victim had

agreed to give him a ride after school; and (6) suggesting that, once the police arrested

Syed, they “disregarded anything else,” including more likely culprits, such as Wilds and

the person who found the victim’s body.

       Trial counsel did convey, consistent with the alibi notice, that Syed typically went

to track practice after school, and then to mosque.9 Counsel’s focus, however, took the


       9
         For example, trial counsel established during cross-examination of Detective
O’Shea that the information that Syed gave, that after class with the victim he went to track
practice, was consistent with what Detective O’Shea was able to confirm from other
sources. Counsel established during examination of other witnesses that Syed was a
regular attendee at track practice. Counsel also elicited testimony that Syed regularly
attended mosque in the evening during Ramadan, the holy month from December 20, 1998,
                                             14
long view, trying to cast doubt on the whole of the State’s case. The circuit court similarly

assessed the strength of the State’s case, finding that the State “presented a relatively weak

theory as to the time of the murder,” and Ms. McClain “would not have undermined the

crux of the State’s case[,] that [Syed] buried the victim’s body” with Wilds, which “created

the nexus between [Syed] and the murder.” Although the majority disagrees with this

determination, it is hard to argue that trial counsel, adopting a strategy based on the view

that it was not necessary to contact Ms. McClain, was “so patently unreasonable that no

competent attorney” would take a similar view. Borchardt, 396 Md. at 623 (quoting

Knight, 447 F.3d at 15).

       Ms. McClain’s testimony, although addressing the time immediately after school,

did nothing to dispute the voluminous evidence connecting Syed to the burial of the body.

And trial counsel’s strategy with respect to the actual murder, based on her cross-

examination of the medical examiner and her closing argument, was that there was no

evidence regarding the victim’s time of death. Although the State argued that the murder

occurred by 2:36 p.m., when it alleged Syed called Wilds to request a ride from Best Buy,

trial counsel argued that the medical examiner could not confirm this time of death, and

Deborah Warren indicated that she had seen the victim at 3:00 p.m. the day of the murder.




through January 18, 1999, and Syed’s father testified that he went to mosque with Syed on
January 13, 1999, for prayers beginning at 8:00 p.m. During opening statement and closing
argument, counsel stated that Syed consistently told people that he went to track practice
after school, and in closing argument, counsel further argued that, during Ramadan, Syed
was always at mosque.
                                             15
       The record supports the post-conviction court’s conclusion that the State had limited

evidence pinpointing the time of the murder. Indeed, as the post-conviction court noted,

Jay Wilds’ testimony, that Syed did not call Wilds to pick him up until after 3:45 p.m., was

inconsistent with the State’s argument that Syed called Wilds at 2:36 p.m.

       The State did, however, present significant evidence connecting Syed to the burial

of the victim’s body, which implicated Syed in the murder. Under all the circumstances,

counsel reasonably could have determined that contacting Ms. McClain to pursue her

potential alibi, and focusing too much on Syed’s whereabouts right after school, would not

be particularly helpful, given the context of the State’s entire case, especially when

weighed against the potential pitfalls presented by pursuing Ms. McClain’s testimony.

       As indicated, Syed initially told the police that he had gone to track practice after

school. He never mentioned going to the public library after school. Although, as the post-

conviction court noted, there was evidence that the high school and the public library were

in close proximity, that does not take away from the fact that Syed never mentioned going

to the public library. The State already had one inconsistency in Syed’s statement to the

police, which the prosecutor highlighted for the jury. Syed initially told Officer Scott

Adcock that he saw the victim at school and that she was going to give him a ride home,

but “he got detained and felt that she probably got tired of waiting for him and left.” Syed

subsequently contradicted himself, telling Detective O’Shea that he drove his own vehicle

to school “so he wouldn’t have needed a ride from [the victim].”10


       10
          The State argued in closing that the jury could consider Syed’s actions in assessing
his guilt. The prosecutor then noted that Syed told a classmate that the victim was giving
                                             16
       Defense counsel reasonably could have concluded that Ms. McClain’s testimony

that she saw Syed at the public library after school, when Syed never before had mentioned

the public library, could be harmful because it would give the State another inconsistency

or omission in Syed’s statements to the police. Evidence of inconsistencies in two aspects

of Syed’s story to the police, whether he had asked the victim for a ride and where he was

after school, was detrimental to the strenuous defense that Syed was a good person with

nothing to hide.

       Documents in the record further indicate potential cause for concern regarding the

trustworthiness of Ms. McClain’s alibi, and therefore, the reasonableness of counsel’s

decision not to contact Ms. McClain or pursue her alibi. The first letter Ms. McClain sent

to Syed on March 1, 1999, stated that she hoped Syed was not guilty, and “[i]f so I will try

my best to help you account for some of your unwitnessed, unaccountable lost time (2:15-

8:00; Jan 13th.).” The letter further stated: “If you were in the library for awhile, tell the

police and I’ll continue to tell what I know even louder than I am.” (Emphasis added). In

its first post-conviction opinion, the circuit court found that, based on this language, “trial

counsel could have reasonably concluded that Ms. McClain was offering to lie in order to

help [Syed] avoid conviction.”

       Moreover, at the second post-conviction hearing, the State introduced into evidence

trial counsel’s file, as well as police records to which trial counsel had access. Included in


him a ride to get his car, which he also told Office Adcock, but Syed later “changed his
story,” telling Detective O’Shea that he had his own car and did not need a ride, so Officer
Adcock “must have been incorrect.”

                                              17
those records were detective notes indicating that Syed had called and written to someone

from school. The notes reflect that Syed:

       WROTE A LETER TO A GIRL TO
       TYPE UP WITH HIS ADDRESS ON IT
       BUT SHE GOT IT WRONG
             101 EAST EAGER STREET
             ASIA? 12TH GRADE
       I GOT ONE, JUSTIN AGER GOT ONE11

A review of the March 2nd letter shows a discrepancy between the address on the top of

the letter, “301 East Eager Street” and the address referenced by Gordon: “101 EAST

EAGER STREET.”

       To the extent that Ms. McClain’s potential alibi could give the prosecution

ammunition to argue that Syed and Ms. McClain were working together to falsify an alibi,

it would be a reasonable decision not to contact Ms. McClain to pursue that alibi. See

Henry v. Poole, 409 F.3d 48, 65 (2d Cir. 2005) (“[I]t is generally acknowledged that an

‘attempt to create a false alibi’ constitutes ‘evidence of the defendant’s consciousness of

guilt.’”) (quoting Loliscio v. Goord, 263 F.3d 178, 190 (2d Cir. 2001)). See also Rogers v.

Zant, 13 F.3d 384, 387 (11th Cir. 1994) (“By its nature, ‘strategy’ can include a decision

not to investigate . . . [and] a lawyer can make a reasonable decision that no matter what

an investigation might produce, he wants to steer clear of a certain course.”), cert. denied,

513 U.S. 899 (1994).



       11
         In closing argument at the second post-conviction hearing, the State asserted that
these notes were from a detective’s interview with Ju’uan Gordon, one of Syed’s best
friends.

                                             18
       The majority states that trial counsel could not reasonably evaluate the advantages

or disadvantages of Ms. McClain’s alibi testimony without first contacting her. I disagree,

under the facts here, where counsel knew the gist of Ms. McClain’s testimony. In Griffin

v. Warden, Md. Corr. Adjustment Ctr., 970 F.2d 1355, 1357 (4th Cir. 1992), upon which

the majority relies, defense counsel stated that he did not contact any alibi witnesses

because it was his impression that the “case was going to be pleaded.” It was in that

context, where trial counsel “did not even talk to [the witness], let alone make some

strategic decision not to call him,” that the court found ineffective assistance of counsel.

Id. at 1358. This case is not remotely analogous to the facts in that case.

       Here, based on “all the circumstances, applying a heavy measure of deference to

counsel’s judgments,” Strickland, 466 U.S. at 691, counsel’s decision not to call Ms.

McClain and pursue the public library alibi defense cannot be said to be “incompetence,”

Harrington, 562 U.S. at 105, or “‘so patently unreasonable that no competent attorney

would have made it,’” Borchardt, 396 Md. at 623 (quoting Knight, 447 F.3d at 15), as

required to satisfy a finding of deficient performance. This is particularly the case where

the post-conviction court, in its first opinion, agreed that counsel’s decision was reasonable

trial strategy, and in its second opinion, stated that Ms. McClain’s testimony ultimately

would not have been that helpful because it “would not have undermined the crux of the

State’s case[,] that [Syed] buried the victim’s body” with Wilds, which “created the nexus

between [Syed] and the murder.”

       This case is distinguishable from the cases relied upon by Syed and the majority, in

which courts found ineffective assistance of counsel due to counsel’s failure to contact a

                                             19
witness identified by the defendant. In those cases, there was testimony by defense

counsel, or other statements in the record, indicating that the reason defense counsel did

not interview the witness was something other than reasonable trial strategy.               See

Washington v. Smith, 219 F.3d 620, 625, 630 (7th Cir. 2000) (defense counsel stated that

he did not contact identified alibi witnesses because he did not receive the names until the

first day of trial, and “at that late time,” he “was busy trying the case”); Bryant v. Scott, 28

F.3d 1411, 1419 n.13 (5th Cir. 1994) (although making clear that the court was not holding

that counsel must interview every claimed alibi witness, because it depends on the overall

context of the case, the court found that counsel’s failure to investigate potential alibi

witness not a “strategic choice” where counsel stated that he “would have loved to have

the [alibi] evidence.”); Griffin v. Warden, Md. Corr. Adjustment Ctr., 970 F.2d 1355, 1357

(4th Cir. 1992) (trial counsel failed to interview alibi witness, not because he thought the

witness would be unhelpful or harmful, but because he thought the case was “going to be

pleaded”); Grooms v. Solem, 923 F.2d 88, 90 (8th Cir. 1991) (where counsel was not

advised of the potential alibi witness until the day of trial, the decision not to investigate,

because he assumed that the court would preclude the evidence of an alibi due to the lack

of an alibi notice, was deficient performance); Montgomery v. Petersen, 846 F.2d 407, 412

(7th Cir. 1988) (where trial counsel stated that he failed to investigate a potential alibi

witness due to “inadvertence” and his disbelief of Montgomery, the failure was not a

strategic decision, and therefore, counsel “did not make a reasonable decision that further

investigation was unnecessary.”). See also Avery v. Prelesnik, 548 F.3d 434, 437-38 (6th

Cir. 2008) (where counsel testified that he was interested in talking with the alibi witness

                                              20
identified by the defendant, but failed to follow up, and counsel had “no idea” what the

witness would have said, counsel could not have made a strategic choice not to have the

witness testify); Lawrence v. Armontrout, 900 F.2d 127, 130-31 (8th Cir. 1990) (counsel’s

admitted failure to interview potential witnesses was unreasonable where: (1) he relied on

assertions of a third person that one witness could not be located and the other would not

testify; and (2) the failure was based on the defense strategy to focus on the defense of

misidentification, rather than alibi, but alibi witnesses “would bolster rather than detract

from a defense of misidentification.”).

        Here, by contrast, there was no testimony by trial counsel regarding why she did

not contact Ms. McClain. Although this was because counsel was deceased at the time the

post-conviction hearing occurred, this did not relieve Syed of his duty to satisfy the

Strickland test. See Walker v. State, 194 So.3d 253, 297 (Ala. Crim. App. 2015).

       The absence of testimony by trial counsel makes it difficult for Syed to meet his

burden of showing deficient performance. As the court stated in Broadnax, 130 So.3d at

1255, it is “extremely difficult” for a petitioner “to prove a claim of ineffective assistance

of counsel without questioning counsel about the specific claim, especially when the claim

is based on specific actions, or inactions, of counsel that occurred outside the record.”

Similarly, in Williams v. Head, 185 F.3d 1223, 1227-28 (11th Cir. 1999), cert. denied, 530

U.S. 1246 (2000), the court stated that, “where the record is incomplete or unclear about

[counsel’s] actions, we will presume that he did what he should have done, and that he

exercised reasonable professional judgment,” noting that the “district court correctly

refused to ‘turn that presumption on its head by giving Williams the benefit of the doubt

                                             21
when it is unclear what [counsel] did or did not do.’” Accord Jones v. State, 500 S.W.3d

106, 114 (Tex. Crim. App. 2016) (“‘When the record is silent on the motivations

underlying counsel’s tactical decisions, the appellant usually cannot overcome the strong

presumption that counsel’s conduct was reasonable.’”) (quoting Mallett v. State, 65 S.W.3d

59, 63 (Tex. Crim. App. 2001)).

       To be sure, there could be circumstances where the record is sufficient for the

defendant to overcome the presumption that counsel acted reasonably, without questioning

trial counsel. This case, however, does not present such circumstances. Syed has pointed

to no evidence in the record indicating that trial counsel’s decision not to interview Ms.

McClain was based on anything other than reasonable trial strategy, relying instead on his

blanket assertion that it is unreasonable in every case for trial counsel to fail to contact a

potential alibi witness identified by the defense.12

       Although possible reasons for counsel’s decision have been discussed, we do not

know if these were the reasons that counsel decided not to contact Ms. McClain. We do

know, based on the record, that trial counsel presented a vigorous defense of Syed in the

face of strong evidence of guilt. What we do not know is why trial counsel did not contact

Ms. McClain, whether she decided not to for the reasons proffered by the State, or if there



       12
         Syed does attempt to poke holes in the State’s asserted reasons why trial counsel
reasonably could have decided not to pursue Ms. McClain’s purported alibi. For example,
Syed argues that no witness testified in support of the State’s argument that trial counsel
may have believed the McClain alibi was fabricated. The State, however, does not have
the burden to show why trial counsel failed to interview Ms. McClain. It is Syed’s burden
to overcome the presumption that she did so based on reasonable trial strategy.

                                             22
were other reasons that led counsel to conclude that it was not necessary to further

investigate Ms. McClain’s public library alibi.13

       Under these circumstances, Syed has failed to satisfy Strickland’s “high bar,”

Harrington, 526 U.S. at 105. He has failed to meet his burden to overcome the presumption

that counsel’s failure to contact Ms. McClain was based on reasonable trial strategy, and

therefore, he has failed to meet the requirements of the performance prong of the Strickland

test. I would reverse the judgment of the circuit court granting Syed a new trial.




       13
         The State filed a Conditional Application for Limited Remand requesting that, if
this Court granted Syed’s application for leave to appeal regarding the McClain-alibi claim,
it be permitted to incorporate into the record affidavits of two former classmates of Ms.
McClain. The State asserted that these witnesses emailed the State after the post-
conviction court granted Syed a new trial, stating that Ms. McClain’s “story” about seeing
Syed in the library “is a lie,” and they recalled a prior conversation in class where Ms.
McClain said that she believed in Syed’s innocence and “would make up a lie to prove he
couldn’t have done it.” These assertions, although not evidence in this appeal, illustrate
the danger in a court finding that strategy decisions made by trial counsel were
unreasonable, without any evidence regarding why those decisions were made. See
Harrington, 562 U.S. at 105 (deferential review of trial counsel’s performance is required
because “[u]nlike a later reviewing court, the attorney observed the relevant proceedings,
knew of materials outside the record, and interacted with the client.”).

                                            23
