Barlow v. Jones et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSHUA BARLOW, 	*
Petitioner, 	*
v. 	* 	Civil Action No. PX-23-3013
PAIGE C. JONES, et al., 	*
Respondents. 	*
***
MEMORANDUM OPINION
Joshua Barlow brings this habeas corpus Petition pursuant to 28 U.S.C. § 2254, in which
he challenges his state court murder conviction. ECF No. 1. The Petition is ready for resolution
and no hearing is necessary. See Loc. R. 105.6; see also Rule 8(a), Rules Governing Section 2254
Cases in the United States District Courts; Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000). For
the following reasons, the Court denies the Petition and declines to issue a certificate of
appealability.
I. 	Background
A. 	Trial and Guilty Plea
On June 12, 2012, Barlow was indicted in the Circuit Court for Prince George’s County
for first-degree murder and related crimes. ECF No. 9-1 at 16, 18. Barlow was tried by jury in
October of 2013, and convicted on all counts. ECF Nos. 9-4, 9-5, 9-5, 9-6, 9-7. The Circuit Court
sentenced Barlow to life imprisonment without the possibility of parole. ECF No. 9-8 at 20-21.
On April 23, 2015, the Appellate Court of Maryland vacated the conviction, concluding
the trial court erred in the manner it reached Barlow’s request to fire court-appointed counsel. ECF
No. 9-1 at 120-142. On remand, Barlow decided to forgo retrial and plead guilty to one count of
first-degree murder. ECF No. 9-10. As part of his guilty plea, Barlow agreed to facts that could
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be proven with evidence beyond a reasonable doubt, recited by the Assistant State’s Attorney as
follows:
[O]n or about April 18th, 2012, at approximately two p.m., maintenance men
located the body of a female, later identified as Latoya Hall, in a vacant apartment
located at 4000 28th Avenue, Apartment Number 301, in Temple Hills, Prince
George’s County, Maryland. Ms. Hall was located inside of a closed closet. Her
arms were bound behind her back with a black shoestring, her feet were bound
together with black electrical tape, and her mouth was gagged with a white tube
sock. Ms. Hall was partially undressed, and her body was covered in an unknown
white powder.
The maintenance men then called police who responded to the scene. Police
collected evidence and Ms. Hall’s body was transported to the Office of the Chief
Medical Examiner where Dr. King conducted an autopsy and ruled that the cause
of Ms. Hall’s death was asphyxiation, and the manner of death was homicide.
Police were able to obtain Ms. Hall’s identity using a fingerprint scan because no
other property belonging to Ms. Hall was found on her body.
Police learned in the course of their investigation that Ms. Hall met with an
individual on April the 14th of 2012. Police learned this by obtaining text messages
from her cellular phone provider. In those messages, Ms. Hall agreed to meet an
individual at the location where she was found. Police then obtained cell phone
records associated with the phone number that had been communicating with Ms.
Hall and based on those records and conversations that were contained therein,
police ultimately identified the defendant, Joshua Barlow, who’s seated to my left
wearing an orange jumpsuit, as a possible suspect.
In conducting their investigation, police learned as well that Mr. Barlow had
pawned a necklace on April the 15th of 2012. Ms. Hall’s ex-husband was able to
identify that necklace as belonging to Ms. Hall. The defendant was charged and
arrested. He waived his rights and agreed to speak with police. He admitted to
texting and meeting with the victim. He further admitted to pawning the necklace;
however, he indicated that he did not murder Ms. Hall. Police observed scratches
on Mr. Barlow’s arm. They then executed a search and seizure warrant at Mr.
Barlow’s residence, which was 4000 28th Avenue, Apartment 303, in the same
building where Ms. Hall’s body had been found just across the hall. Police
recovered several items of evidence when they executed that search warrant
including a pair of Nike shoes, one of which was missing a shoelace.
Police submitted DNA evidence for analysis. Jessica Charak (phonetic), then of the
Prince George’s County Police DNA Lab, analyzed various pieces of evidence. She
ultimately reached the conclusion that DNA recovered from underneath Ms. Hall’s
fingernails 	was 	consistent 	with 	the 	DNA 	of 	the 	defendant 	Mr. 	Barlow.
Additionally, police submitted the shoestring that was used to bind Ms. Hall’s
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hands behind her back as well as the shoestring from the remaining tennis shoe that
was recovered from Mr. Barlow’s apartment. Ms. Lenora Bender of the ATF would
have testified that those two shoestrings were consistent and had come from the
same pair of shoes.
ECF No. 9-10 at 27-30.
The trial court accepted Barlow’s plea and, pursuant to the plea agreement, sentenced
Barlow to life imprisonment with all but forty-five years suspended and five years of probation
upon release. 	Id. at 35-36. 	On September 7, 2017, Barlow applied for leave to appeal the
conviction to the Appellate Court of Maryland, which was denied. ECF No. 9-1 at 219-226, 245-
246.
B. 	State Postconviction Petition
Barlow next filed a pro se petition for postconviction relief on April 5, 2018. ECF No. 9-
1 at 256-270. 	At his hearing on the petition, he confirmed that he was challenging: (1) the
voluntariness of his plea because he was not advised that the Governor would have to approve his
parole or that a violation of parole could result in a life sentence; (2) the court-created a “conflict
of interest” in permitting trial counsel’s supervisor, Allen Wolf, to replace trial counsel; (3) trial
court’s abuse of discretion in advising Barlow that he risked a life sentence if he went to trial
because the advisement was tantamount to urging that Barlow plead guilty; and (4) the trial court’s
failure to advise Barlow of the juror unanimity requirement. ECF No. 9-12 at 19-26.
On July 15, 2022, the trial court denied the postconviction petition by written decision.
ECF No. 9-2 at 80-98. Barlow applied for leave to appeal that decision which the Appellate Court
of Maryland denied on July 21, 2023. Id. at 173-185, 210-211.
C. 	Barlow’s Letters to the Trial Court
While the postconviction petition was pending, Barlow repeatedly wrote to the trial court
asking to for new DNA testing. See ECF No. 9-1 at 391-393, 394-398, 405-410, 411-416, 417-
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511; ECF No. 9-2 at 16-19, 20-21, 32-33, 34-41, 42-51, 61-63, 64-67, 68-74, 68-74, 75-78, 99-
103, 104-106, 107-115, 116-124, 129-162. Barlow specifically argued the state’s DNA evidence
was based on “junk science” which entitled him to a new DNA test. The trial court, in a written
decision issued on June 14, 2023, construed Barlow’s letters as a request for postconviction DNA
testing pursuant to Md. Code Ann., Crim. Proc. § 8-201, and denied relief. ECF No. 9-2 at 188-
196. Barlow did not appeal this decision. See Md. Code Ann., Crim. Proc. § 8-201(k)(6).
D. 	Federal Habeas Petition
Thereafter, on November 2, 2023, Barlow filed his Petition in this Court in which he
contends that trial counsel rendered constitutionally ineffective assistance because counsel failed
to adequately investigate DNA evidence, which caused Barlow to enter an “unknowing” guilty
plea. ECF No. 1 at 2-3. Respondent argues that the claim is unexhausted, procedurally defaulted,
and does not qualify for any of the exceptions to procedural default. ECF No. 9. Barlow, for his
part, asserts that the Court should excuse his procedural default under Martinez v. Ryan, 566 U.S. 1
(2012) and because he is actually innocent. ECF No. 1-1 at 8-9; ECF No. 14 at 3. For the following
reasons, the claim is procedurally defaulted and neither equitable exception applies.
II. 	Analysis
Procedural default occurs when the petitioner fails to present the claim to the highest state
court with jurisdiction to hear it, and the state courts would now find that the petitioner cannot
assert that claim. Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001); Breard v. Pruett, 134 F.3d
615, 619 (4th Cir. 1998). Failure to exhaust such available state remedies necessary “to meet the
exhaustion requirement” renders the claims procedurally barred. Breard, 134 F.3d at 619 (quoting
Coleman v. Thompson, 501 U.S. 722, 735, (1991)).
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For a person convicted of a criminal offense in Maryland, exhaustion may be accomplished
either on direct appeal or in postconviction proceedings. To exhaust a claim on direct appeal in
non-capital cases, a defendant must appeal first to the Appellate Court of Maryland and next
petition the Supreme Court of Maryland for certiorari. See Md. Code Ann., Cts. & Jud. Proc. §§
12-201, 12-301. To exhaust a claim through postconviction proceedings, a defendant must assert
the claim in a petition filed in the Circuit Court in which the inmate was convicted within 10 years
of the date of sentencing. 	See Md. Code Ann., Crim. Proc. §§ 7-101–7-103. 	If petitioner is
dissatisfied with the postconviction decision, he must next apply to the Appellate Court of
Maryland for leave to appeal the adverse decision. Id. § 7-109. If the Appellate Court of Maryland
denies the application, there is no further review available, and the claim is exhausted. Md. Code
Ann., Cts. & Jud. Proc. § 12-202.
Respondent rightly contends that the claim is procedurally defaulted because Barlow never
advanced this ineffectiveness argument in state court. ECF No. 9 at 33-38. “[A] state prisoner [is
required] to present the state courts with the same claim he urges upon the federal courts.” Picard
v. Connor, 404 U.S. 270, 276 (1971). This is so the state courts have a “fair opportunity” to apply
controlling legal principles to the facts bearing on the constitutional claims. Anderson v. Harless,
459 U.S. 4, 6 (1982). Barlow failed in this respect.
In his application for leave to appeal the guilty plea, Barlow argued solely a defect in
service of process. ECF No. 9-1 at 219-226. And he never raised this claim in his postconviction
petition. ECF No. 9-1 at 256-270; ECF No. 9-12 at 19-26. Even in the many letters to the trial
court concerning the reliability of the DNA evidence at trial, Barlow never contended that his
counsel had rendered ineffective assistance by failing to challenge the competency of the
laboratory or request new DNA testing. See ECF No. 9-1 at 391-393, 394-398, 405-410, 411-416,
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417-511; ECF No. 9-2 at 16-19, 20-21, 32-33, 34-41, 42-51, 61-63, 64-67, 68-74, 68-74, 75-78,
99-103, 104-106, 107-115, 116-124, 129-162. Barlow also failed to properly assert this claim in
his postconviction petition. 	Thus, the claim is procedurally defaulted.
In response, Barlow presses that under Martinez v. Ryan, 566 U.S. 1 (2012), his failure to
raise the claim before should be excused. The Martinez exception applies when: (1) the petitioner
presents a “substantial” ineffective assistance claim; (2) the default occurred because petitioner
had no counsel or only ineffective counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the initial review of the ineffective-assistance claim; and
(4) state law requires that an ineffective assistance claim be raised in an initial-review collateral
proceeding. Id. at 13-14. See also Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (internal
quotation marks omitted) (quoting Trevino v. Thaler, 569 U.S. 413, 423 (2013)). If the petitioner
makes this showing, then the court may consider the merits of the otherwise procedurally defaulted
claim. Martinez, 566 U.S. at 17.
Respondent presses that Barlow fails to make a sufficient showing on the first and second
Martinez requirements. ECF No. 9 at 41. Because Barlow fails to demonstrate his ineffectiveness
claim is “substantial,” the analysis ends there.
To advance an ineffective assistance of counsel claim, Barlow must show that: 	“(1) his
counsel’s performance was deficient and (2) such deficient performance prejudiced his defense.”
Witherspoon v. Stonebreaker, 30 F.4th 381, 393 (4th Cir. 2022). 	In assessing deficient
performance, [the court] must consider prevailing professional norms and potential strategic
reasons for counsel’s actions, and [] review is “highly deferential.” Id. As to prejudice, Barlow
must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 	Id. (quoting Strickland v. Washington, 466 U.S.
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668, 694 (1984)). See also Juniper v. Davis, No. 16-2, 2023 WL 3050984, at *3 (4th Cir. Apr. 24,
2023). Because Barlow challenges counsel’s performance in connection with his guilty plea, he
must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The inquiry is an objective one, conducted “without regard for the ‘idiosyncrasies of the particular
decisionmaker.’” Id. at 60 (quoting Strickland, 466 U.S. at 695). Thus, Barlow “must convince
the court that a decision to reject the plea bargain would have been rational under the
circumstances.” Padilla v. Kentucky, 559 U.S. 356 (2010).
Here, Barlow argues that he would not have pleaded guilty if his counsel had properly
investigated the deficiencies in the DNA laboratory as articulated in a subsequent Washington Post
article. 	This argument does not wash, because the Post article did not address the analyst who
performed the testing or otherwise implicate the reliability of the testing in his case. 	ECF No. 1-
2; ECF No. 9-5 at 143-192. Thus, this article alone could not reasonably have prompted Barlow
to reject the plea. 	This is especially so when considering that the scores of letters in which he
demanded a DNA retest never articulated any defects in the process regarding this case. ECF No.
5 at 167-172. 	Barlow also acknowledged at his guilty plea colloquy that his new counsel had
secured a defense expert to review the DNA testing, and that the expert had no challenge to the
results. ECF No. 9-10 at 19.
Nor could Barlow rationally have turned a blind eye to the substantial weight of the
evidence that cut against rejecting the plea offer, to include: (1) the text message Barlow sent to
Hall arranging that she meet him at the address where her body was found; (2) several witnesses
who identified the necklace that Barlow had pawned as the same necklace that Hall had been
wearing shortly before the murder; (3) scratches on Barlow’s left forearm and abrasions on his
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knuckles at the time he was questioned by police; and (4) the pair of tennis shoes found in Barlow’s
apartment with one shoe missing its shoelace, combined with forensic testing that demonstrated
the shoelace used to bind Hall matched the lace in the other shoe. ECF No. 9-4 at 25, 85, 112,
135-37, 163-64, 166-67, 181, 184-86, 223-32; ECF No. 9-5 at 68-77. Accordingly, after escaping
a life without parole sentence, a rejection of a 45-year plea offer based on the Washington Post
article would have been irrational. Barlow thus failed to demonstrate that his ineffectiveness claim
is “substantial,” and so he cannot meet the Martinez showing necessary to excuse procedural
default.
Barlow alternatively argues that the Court should excuse procedural default because he is
actually innocent. True, “a credible showing of actual innocence may allow a prisoner to pursue
his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to
relief.” 	McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). 	“[The] fundamental miscarriage of
justice exception is grounded in the equitable discretion of habeas courts to see that federal
constitutional errors do not result in the incarceration of innocent persons.” Id. (internal citation
and quotation marks omitted). Where a petitioner makes this exceptional showing, then this Court
may find such procedural default does not bar adjudication on the merits. House v. Bell, 547 U.S.
518, 522 (2006), citing Schlup v. Delo, 513 U.S. 298, 319–322 (1995).
To establish actual innocence as a gateway to defaulted claims, the petitioner must show
that “in light of new evidence, ‘it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” House, 547 U.S. at 536–37, quoting Schlup, 513
U.S. at 327. “To be credible, . . . a claim [of actual innocence] requires petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented
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at trial.” 	Schlup, 513 U.S. at 324. 	“If new evidence so requires, this [review] may include
consideration of the credibility of the witnesses presented at trial.” 	House, 547 U.S. at 538–39
(citation omitted).
The Supreme Court “caution[ed], however, that tenable actual-innocence gateway pleas are
rare: ‘A petitioner does not meet the threshold requirement unless he persuades the district court
that, in light of the new evidence, no juror acting reasonably would have voted to find him guilty
beyond a reasonable doubt.’” 	McQuiggin, 569 U.S. at 386 (brackets omitted) (quoting Schlup,
513 U.S. at 329). The “standard is demanding and permits review only in the extraordinary
case.” House, 547 U.S. at 538 (citation omitted); see also Wilson v. Greene, 155 F.3d 396, 404
(4th Cir. 1998) (“Claims of actual innocence . . . presented . . . as gateways to excuse a procedural
default . . . should not be granted casually.”).
Barlow cannot clear this high bar. 	For one, Barlow agreed that the State could prove
sufficient facts to demonstrate his guilt beyond a reasonable doubt. Second, nothing in the Post
undermines the validity of the DNA results used to convict him. Third, Barlow does not give this
Court any other evidence that would compel a not guilty finding. 	Thus, Barlow cannot
demonstrate actual innocence warranting adjudication of the Petition on its merits.
For these reasons, his claim is procedurally defaulted and his Petition is dismissed.
III. 	Certificate of Appealability
A petitioner may not appeal the dismissal or denial of a federal habeas petition without first
receiving a certificate of appealability. 28 U.S.C. § 2253(c)(1). The Court may issue a certificate
of appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a petition is denied on procedural grounds,
the petitioner may meet the standard by showing that reasonable jurists “would find it debatable
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whether the petition states a valid claim of the denial of a constitutional right” and “whether the
district court was correct in its procedural ruling.” Id.
Barlow has not made the requisite showing. 	The Court therefore declines to issue a
Certificate of Appealability. Barlow may still request that the United States Court of Appeals for
the Fourth Circuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003)
(considering whether to grant a certificate of appealability after the district court declined to issue
one).
IV. 	Conclusion
For the foregoing reasons, Barlow’s petition for a writ of habeas corpus is denied as
procedurally defaulted. A certificate of appealability shall not issue. A separate order follows.
____________ 	____________________________
Date 	Paula Xinis
United States District Judge
10/8/26/s/
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