Governor Ehrlich quietly signs death warrant

Renewed outcry about racially biased system

By Jane Henderson

Maryland Citizens Against State Executions

Yesterday, Governor Robert Ehrlich signed a death warrant for death row prisoner Wesley Baker, setting Baker’s execution for the earliest possible date: the week of December 5. Wesley Baker’s execution was stayed in 2002 by former governor Parris Glendening, pending completion of a study by the University of Maryland/College Park on racial bias in death sentencing.[1] Lt. Governor Michael Steele had promised to conduct a review of death sentencing when the disturbing results of this race study were released in 2003. No such review was ever conducted.

“Once again, this administration has buried its head in the sand, disregarding stark racism and other disparities in our state’s death penalty system,” said Jane Henderson, Executive Director of Maryland Citizens Against State Executions (MD CASE). “Governor Ehrlich actions yesterday place him outside the mainstream of Marylanders who know the death penalty is flawed.”

Though they knew a warrant was imminent, Baker’s lawyers only learned today that the warrant was requested and signed yesterday. It appears that the Governor’s Office did not inform the media of his action.

Baker used the University of Maryland study to challenge the state’s death penalty in the Maryland Court of Appeals. The study found that black-on-white killings in Maryland are much more likely to result in a death sentence than any other racial combination. It also found that murders in Baltimore County are much more likely to evoke the death penalty than in any other jurisdiction, while only about 7% of Maryland murders annually occur there. Baker was prosecuted by Baltimore County and is a black man convicted of killing a white Marylander.

“Lt. Governor Steele promised to address these problems almost three years ago,” noted Jane Henderson. “This execution fits the exact pattern of racism found by the University of Maryland study. Where is Steele’s review?”

Baker’s appeal using the UMD study was summarily denied in the Circuit Court for Hartford County (the venue for Baker’s trial). Two similar appeals raising racial bias and originating in Baltimore City and Prince George’s County – those of John Booth and Heath Burch, respectively – are still pending in each Circuit Court, where full evidentiary hearings may still be held.

After the Circuit Court denial in Baker’s case, the appeal went before the state’s highest Court of Appeals, which turned it down on October 3 exclusively on procedural grounds. The Court said his motion to correct illegal sentence was not the proper vehicle to raise his challenge.

In response, Baker’s lawyers filed a motion last month seeking to challenge discrimination in death sentencing under post-conviction proceedings.

“Maryland has not dealt with proven racism in its death penalty system – not the Ehrlich Administration, not the courts, and not the legislature, “ said Henderson. “Instead of wishing it away and proceeding with business as usual, the governor should stay the execution, the legislature should get rid of the death penalty, and our state should focus its energy and resources on criminal justice policies that actually accomplish something.”

ProDeathPenalty.com

In the evening on June 6, 1991, Wesley Eugene Baker walked up to Jane Frances Tyson, who had just gotten in her car after shopping with her grandchildren in the Westview Mall. Baker stuck his gun in Jane's ear, demanded her purse and then, right in front of her grandchildren, a 6-year-old boy and a 4-year-old girl, pulled the trigger and shot Jane in the head. Baker ran to a nearby Chevy Blazer driven by his accomplice, Gregory Lawrence. Police caught the pair minutes later as they fled from the getaway car.

Lawrence was later convicted of felony murder and a handgun violation and sentenced to life in prison, plus 20 years. Baker was scheduled to be executed in May 2002 when then-governor Parris Glendening imposed a moratorium on the death penalty.

Karen Sulewski is Jane Tyson's daughter. Her two children, now in their twenties, were with their grandmother when Baker shot Tyson in the head. In 2001, Karen Sulewski accused Glendening of caving in to political pressure to help the lieutenant governor's bid to succeed him. "I think that Kathleen Kennedy Townsend had to put her 2 cents in, and I think that had a lot do with it," said Sulewski. "I honestly think if this event had happened to someone the governor knew or someone on his staff or someone he was close to, the execution would be going through," she continued. "No one knows what it is like to have it drag on and on and on." Karen Sulewski said race had no role in Baker's death sentence and asked Glendening to explain his decision. "I would like him to sit down and explain it to my two children," she said. But Glendening spokespeople said the governor had a long-standing policy of not speaking to the families of death-row inmates or their victims.

The current governor, Robert Erlich, has been under intense pressure from anti-death penalty activists to commute Baker's sentence. Roman Catholic Cardinal William Keeler, the archbishop of Baltimore, met with Wesley Baker at the prison on Monday to tell him that Roman Catholic leaders are seeking clemency for him. To date there is no report of Keeler asking to meet with the victim's family.

National Coalition to Abolish the Death Penalty

Do Not Execute Wesley Baker! Wesley Eugene Baker - Dec. 5-9, 2005

Wesley Eugene Baker, a black man, is scheduled to be executed the week of Dec. 5 for the 1992 murder of Jane Frances Tyson, a white woman, in Baltimore County, Maryland. Tyson was shot during a parking lot robbery yielding $10.

The Court of Appeals of Maryland denied Baker's request for a hearing to show that his sentence was unconstitutional. Baker claims that a recent statistical study, commissioned by Gov. Glendening in Sept. 2002 and conducted by Professor Raymond Paternoster of the University of Maryland, shows that the death penalty in Maryland is imposed in a racially biased and unconstitutional way. Baker also argues that the arbitrary application of the death penalty in Maryland violates his Eighth Amendment rights.

According to the study, released in January 2003, the death penalty is 2.5 times more likely to be sought against those who commit black-on-white murders than against those who commit white-on-white murders. Furthermore, the death penalty is 3.5 times more likely to be sought against those who commit black-on-white murders than against those who commit black-on-black murders.

In addition, the study also found that Baltimore County is 13 times more likely than Baltimore City to seek the death penalty, 5 times more likely than Montgomery County, and 3 times more likely than Anne Arundel County. Clearly Baker's case faced possible bias because of his race, his victim's race, and the county in which he was tried. This is not how the system is meant to work. Executions should not be on the basis of race and geography.

Furthermore, although Baker admits to taking part in the robbery, he maintains that he did not shoot Tyson. An eyewitness at the scene reported that the shooter ran to the driver side of the get away car. When apprehended, Baker was sitting on the passenger side and his co-defendant was sitting in the driver seat. Blood splatters on Bakers coat led to his capital prosecution while his co-defendants clothes were never tested. His co-defendant did not face the death penalty and was instead sentenced to life in prison without parole.

It is also important to look at Baker's childhood and history. Baker was driven to live on the streets at the age of nine because of his abusive, alcoholic stepfather. Clearly a different childhood could have altered Baker's unfortunate fate. Although he was certainly involved in a terrible crime, Baker was also the victim of his childhood circumstances and a racially biased system. Baker should not be executed. A life sentence without the possibility of parole is more appropriate in this case.

Please write to Governor Ehrlich on behalf of Wesley Baker.

Baker v. State, 332 Md. 542, 632 A.2d 783 (Md. 1993) (Direct Appeal).

Following jury trial before the Circuit Court, Harford County, Cypert O. Whitfill, J., defendant was found guilty of first-degree murder and a death sentence was imposed by trial court after death-penalty sentencing phase. Defendant appealed.

The Court of Appeals, Chasanow, J., held that: (1) trial court did not err in failing to call two individuals as court's witnesses at sentencing hearing; (2) significant portions of hearsay admitted in victim's husband's testimony during sentencing phase of capital murder trial were properly admitted under state-of-mind exception; (3) even if admitting some portions of hearsay testimony represented error, error was harmless; (4) jury instructions on first-degree murder were adequate; and (5) evidence was sufficient to support determination that defendant was principal in murder of victim. Affirmed.

CHASANOW, Judge.

We are called upon to decide the propriety of decisions made by the judge (Whitfill, J.) during the guilt and death-penalty sentencing phases of Wesley Eugene Baker's first degree murder trial in the Circuit Court for Harford County. The first question before this Court is whether the trial judge abused his discretion by not calling two individuals as the court's witnesses at the sentencing hearing. The second is whether the judge abused his discretion by admitting “victim impact” testimony that included hearsay statements made by the victim's family members. The third issue is whether the trial judge's jury instructions, regarding first degree murder, were adequate in light of our recent holding in Willey v. State, 328 Md. 126, 613 A.2d 956 (1992). The fourth and final issue is whether there was sufficient evidence to permit a finding that the Defendant was a principal in the first degree in the murder of Jane Tyson. For the reasons stated below, we affirm the jury's verdict and the death sentence imposed by the trial judge.

I. Facts

On the evening of June 6, 1991, the victim, Jane Tyson, went to Westview Mall with her four-year-old granddaughter, Carly, and her six-year-old grandson, Adam. At approximately 9:00 p.m. that evening, the victim's husband, John Tyson, was notified that his wife had been shot.

Wesley Eugene Baker was indicted for the murder and the State filed a notice of its intent to seek the death penalty pursuant to Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 412(b)(1)(i). At Baker's trial, a stipulation of Adam's testimony was admitted into evidence. The stipulation stated that as Carly, the victim, and Adam were getting into their automobile, a man ran up to them. Adam heard Ms. Tyson scream “No,” the man shot her in the head, and Adam saw blood coming out of her mouth. The man then ran to a blue Chevrolet S-10 Blazer, entered it, and the truck pulled away from the scene.

Chief Deputy Medical Examiner, Dr. Ann M. Dixon, testified that the gunshot wound that killed Jane Tyson was a “contact wound, meaning that the end of the gun was up against the deceased's ear at the time it was discharged····” Dr. Dixon also testified that Tyson died from the single wound to the left side of her head. Carolyn Davis, another patron of the mall, testified that she was in the parking lot when she heard the gunshot and saw Adam running toward her. Adam told Ms. Davis that his grandmother was dead. Davis then went to Tyson's car where she saw the victim on the ground with blood coming from her head.

Another witness for the State, Scott Faust, testified that he was driving by the mall when he saw the blue Blazer parked in the lot. Faust saw a man enter the driver's side of the Blazer, followed by another man who ran from a nearby car and jumped into the passenger side of the truck before it sped out of the parking lot. Faust followed the Blazer, wrote down the license tag number, and observed the occupants through the truck's rolled-down windows. Faust returned to the mall parking lot and gave a description of the men to the police who had arrived at the scene. Faust positively identified the Appellant, Wesley Eugene Baker, at a police “show-up” later that evening. Faust also made a positive in-court identification of Baker during trial.

Baltimore County Police Officer Frank Barile testified that he and Officer Nick McGowan were on duty in an unmarked police cruiser on Security Boulevard when the suspect vehicle drove past them.

The officers activated their emergency lights and pursued the vehicle at a high rate of speed until it turned onto Old Frederick Road and pulled to the right side of the roadway, where the passenger fled from the truck. Officers Barile and McGowan stopped the vehicle and placed the driver, Gregory Lawrence, under arrest.

Following his flight from the vehicle, Wesley Eugene Baker was also arrested by Officer James Conaboy. One of the arresting officers at the scene, Officer William Harmon, noticed what appeared to be blood splattered on Baker's sock and shoe. Officer Conaboy then lifted Baker's pants' leg and the officers discovered blood on his shoe, sock, and leg. Upon a visual inspection of Gregory Lawrence, no blood was observed on any of his clothing. The blood found on Baker was later identified, by a serology comparison and positive DNA test, as that of Jane Tyson.

Officer Barile and a fellow officer searched the area where Baker exited the Blazer and found a white purse and an empty plastic card holder on the ground. Tyson's wallet was also found in the area by another officer. Both the purse and the wallet were identified at trial as belonging to Jane Tyson. Incident to the arrest, Officer Barile searched the Blazer and found Tyson's “MOST” bank card on the passenger-side floorboard.

Finally, there was testimony at trial that Baker's fingerprints were found on the driver's side door and window of Jane Tyson's car.e Circuit Court for Harford County, a jury found Baker guilty of first degree premeditated murder, felony murder, robbery with a deadly weapon, and the use of a handgun during the commission of a felony. By a special verdict, the jury also found Baker was a principal in the first degree. Baker then elected to be sentenced by Judge Cypert O. Whitfill. FN1.

Upon defense counsel's request at the sentencing hearing, Judge Whitfill made his own independent determination as to whether Baker was a principal in the first degree. This issue was properly determined at the sentencing hearing. SeeMaryland Rule 4-343.

At the subsequent sentencing hearing, the State incorporated all of the evidence from the trial and also introduced Baker's prior criminal record. The record revealed prior criminal convictions for unauthorized use in 1975 and 1978, two 1979 convictions for robbery with a deadly weapon, and a 1989 conviction for unlawful possession of a pistol and a controlled dangerous substance. At the time of the murder, Baker had been on parole for less than nine months. The State also presented testimony from John Tyson as to the impact the victim's death had on him and on other members of their family.

Appellant presented testimony from Paul Davis, Chairman of the Maryland Parole Commission, and Dr. Robert Johnson, an expert in criminal justice and prison adjustment. Defense counsel then informed the court that, pursuant to their client's instructions, they did not intend to call Baker's mother or Lori James, a social worker who prepared a history of Baker's family, to testify on Baker's behalf.

Defense counsel offered the following reason for this decision: “Mr. Baker has, as I have said, directed us to not call either of those two witnesses, and I think it's fair to say that I understand, in a sense, why, because there were going to be very painful kinds of things testified about. But we have to respect ··· Mr. Baker's very clear, unequivocal and express directions to us, and therefore, we will not be calling those two witnesses····”

The judge responded, “I certainly have a concern, from my standpoint, of not hearing anything about Mr. Baker's social background.” At which point, the judge stated his inclination to call the individuals as court's witnesses and he invited both State and defense counsels' comments.

Defense counsel offered the following response: “Your Honor, two comments. One, in our judgment, as an officer of the Court, we have to recognize that the Court has the common law power to call any witness the Court desires on making a determination on anything. The second comment is, if asked, Mr. Baker will indicate in person, before Your Honor, now that he does not wish you to call those two individuals as Court's witnesses.”

The record also indicates the judge was initially informed that Baker refused to offer the testimony because it would prove embarrassing to his family. The judge recognized, however, that “[i]f it's a tactical decision ··· I think that decision should and must rest with the Defendant. As I understand it, that's not what's coming forward.” After further discussion, the following colloquy took place between the judge and Mr. Baker:

“THE COURT: Mr. Baker, my inclination, at this moment, is to ask those witnesses to testify, recognizing that information may come out which could be painful to you or painful to other members of your family, but also looking at the reality of the decision that I have to make, literally, whether or not you live or die, and that whatever pain that your family is suffering from the information coming out, in my judgment, is not apt to be more painful than it would be if I imposed a sentence of death and did not have the information, and the feeling that had they overridden your choices, that at least that would have been considered. So, I am at a loss as to believe that any more pain can be inflicted on your family than a sentence of death without their having had the opportunity to speak. Do you wish to comment?

THE DEFENDANT: Yes. I feel like the information will be more damaging than helpful to me.

THE COURT: Say that again.

THE DEFENDANT: I feel as though the information would be more damaging than helpful towards me and my case.

THE COURT: Is that your reason for asking [that] I not do this? Because you believe it is more damaging?

THE DEFENDANT: That reason and personal reasons.” (Emphasis added).

The judge thereafter decided he would not call either individual to testify. Baker also knowingly and intelligently waived his right of allocution. Following closing arguments, and after weighing all the factors and giving the case careful consideration, the judge imposed a sentence of death.

* * *

Appellant's final argument is that the evidence was insufficient to sustain a finding that he was a principal in the first degree. Under Maryland law, except in murder-for-hire cases, only those individuals found guilty of first degree murder as a principal in the first degree may be sentenced to death. See Md.Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.), Art. 27, § 413(e)(1); Booth v. State, 327 Md. 142, 186, 608 A.2d 162, 183, cert. denied,506 U.S. 988, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992).

As we previously stated, unless the factual findings of a trial court are clearly erroneous, they will not be disturbed by an appellate court. Likewise, an appellate court is not at liberty to substitute its own factual findings for those of a trial court where “ ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Raines, 326 Md. at 589, 606 A.2d at 268 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573 (emphasis in original)). See also Barnhard v. State, 325 Md. 602, 614-15, 602 A.2d 701, 707 (1992) (relying on Jackson as proper standard for reviewing sufficiency of evidence in a jury trial); Wiggins v. State, 324 Md. 551, 566-67, 597 A.2d 1359, 1366-67 (1991) (explaining that, in a non-jury, capital case, this Court will defer to the factual findings of the trial court, unless clearly erroneous, even if conviction is based on circumstantial evidence), cert. denied,503 U.S. 1007, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992).

A rational trier of fact could have found beyond a reasonable doubt that Baker was a principal in the first degree based on the circumstantial evidence offered at trial. Baker's fingerprints were lifted from the driver's side window of Jane Tyson's car, and his fingerprints and a palm print were also found on the passenger side window of the blue Blazer.

Scott Faust observed Baker in the passenger seat of the blue Blazer, just after he saw it drive away from the scene of the murder. Neither Gregory Lawrence's nor anyone else's fingerprints were identified on Jane Tyson's car. It was also determined that Tyson's blood was discovered by the arresting officers on Baker's leg, sock, and shoe at the time of his arrest. Upon an inspection of Lawrence's clothing immediately after the shooting, no blood was found.

Together with the testimony of Scott Faust and the stipulated, eyewitness testimony of Tyson's grandson, Adam, the evidence was sufficient to support a finding by a “rational trier of fact” that Baker was a principal in the first degree.

VI. Appropriateness of the Death Sentence

Finally, the evidence supports the trial court's finding that the aggravating circumstances outweighed any mitigating circumstances. We also conclude that Baker's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Md.Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.), Art. 27, § 414(e). For these reasons, the trial court's imposition of the death sentence was appropriate under the law. JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED.

Baker v. State, 367 Md. 648, 790 A.2d 629 (Md. 2002) (PCR).

Following the affirmance of his conviction for first-degree murder and death sentence, 332 Md. 542, 632 A.2d 783, petitioner sought postconviction relief. The Circuit Court, Harford County, Cypert O. Whitfill, J., denied the petition and denied petitioner's motion for new sentencing based on newly discovered evidence. Petitioner appealed. The Court of Appeals, Cathell, J., held that: (1) finding that aggravating circumstances outweighed mitigating circumstances, at sentencing, could be made by preponderance of the evidence; (2) Supreme Court's Apprendi decision was inapplicable to capital sentencing; (3) indictment gave sufficient notice that State was seeking death penalty; (4) defendant's waiver of jury trial at sentencing phase was knowing and voluntary; and (5) no newly-discovered evidence warranted a new trial as to sentencing. Affirmed. Raker, J., filed a concurring opinion in which Bell, C.J., and Eldridge, J., joined.

CATHELL, Judge.

On June 6, 1991, Jane Tyson took two of her grandchildren, four year old Carly and six year old Adam, shopping for sneakers at the Westview Mall in Baltimore County. After completing their shopping, Mrs. Tyson and her grandchildren left the mall and entered the parking lot where Mrs. Tyson had parked her red Buick.

When they arrived at the car, Carly sat in the rear seat and, as Adam was preparing to enter the front passenger seat and Mrs. Tyson was preparing to enter the driver's seat, a man ran up to Mrs. Tyson and shot her in the head. Adam heard his grandmother scream and he saw the man shoot her. Adam then saw the man run to a blue truck and enter on the left side.FN1 Mrs. Tyson died at the scene from the gunshot wound.

FN1. Adam did not testify at trial but a stipulation between the State and Wesley Baker was agreed upon. The stipulation was read into the record. It stated: “It is hereby stipulated and agreed by and between the State of Maryland and Wesley Eugene Baker, the Defendant on trial under Case Number 92-C-0088, that if Adam Michael Sulewski, age seven, were called to the stand, he would testify that on June 6, 1991 he was six years old and the grandson of Mrs. Tyson, the victim in this offense.

Adam would state that he was present with his grandmother when she was shot and that he, along with his grandmother and his four year old sister, Carly, were shopping at the Westview Mall. Adam would state that when they arrived at their grandmother's car, his sister got into the rear seat. He was standing on the passenger side, preparing to enter the right front passenger seat and his grandmother was getting in the vehicle through the driver's door when he observed a ‘black man’ run up to his grandmother.

The next thing he remembered was hearing his grandmother screaming ‘NO’. Adam would state, ‘He shot her. I saw blood coming out of her mouth’. Adam would continue to state that after the shooting, he saw who he thinks were ‘two good guys' chasing after the man who did the shooting. He would state that the ‘black man’ ran to his truck, which he described as being blue in color with black windows. He would further state that once the subject entered his truck on the left side, he ‘took off’ as fast as he could. The only other description Adam would give about the black male would be that he had short hair.”

On the evening of June 6, 1991, at approximately 8:30 p.m., Scott Faust was traveling behind the Westview Mall on the way to visit his father who lived directly behind the mall. As Mr. Faust was driving, he noticed a blue Chevrolet Blazer truck and a red Buick parked side by side in the mall parking lot. Mr. Faust watched as two men jumped into the Blazer and sped away.

Mr. Faust then noticed that a person was lying on the ground next to the open driver's side door of the Buick. Mr. Faust drove closer to the Buick at which time he saw that the person laying on the ground was a woman and that she was bloody. He watched as a little girl ran around the front of the Buick from the passenger's side and screamed, “Mom Mom's shot.”

Mr. Faust saw a woman run over and take care of the children, therefore, Mr. Faust decided to pursue the Blazer. Mr. Faust caught up to the Blazer after several blocks and as he was sitting behind the Blazer at a stop light, he wrote down the license plate number of the Blazer on a tissue box.

Mr. Faust then headed back to the crime scene at which time he gave the police the tissue box with the license plate number on it.

The information provided by Mr. Faust was relayed to the Baltimore County Police Department. Two officers of the Baltimore County Police Department then saw the Blazer pass them at which time the officers pursued the vehicle. When the Blazer's path was blocked, the two passengers of the Blazer fled on foot. The officers immediately apprehended Gregory Lawrence, the driver of the Blazer, who gave them the description of the passenger in the Blazer.

A Baltimore County Police Officer then apprehended Wesley Baker nearby. When Baker was apprehended, the police officer observed blood on Baker's right leg, including his pant leg, sock, and shoe. After a visual inspection, no blood was seen on Lawrence's clothing. Baker was identified as the passenger in the Blazer by the police officer who saw him flee the Blazer and by Mr. Faust, who had witnessed him riding in the passenger seat of the Blazer.

Mrs. Tyson's MOST card was found on the floor of the passenger's side of the Blazer. The handgun that shot and killed Mrs. Tyson was found between the front seats of the Blazer. Mrs. Tyson's purse and wallet were found on the same path as that used by Baker when he fled. Baker's palm print and fingerprints were found on the exterior of the Blazer's passenger side and Baker's fingerprints were found on the driver's side door and window of the victim's Buick.

Baker was charged by indictment that was filed in the Circuit Court for Baltimore County on June 24, 1991. The indictment, in compliance with Maryland Code (1957, 1987 Repl.Vol.), Article 27 section 616,FN2, FN3 stated, in relevant part:

FN3. Maryland Code (1957, 1987 Repl.Vol.), Article 27 section 616 stated: “§ 616. Indictment for murder or manslaughter. In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death. It shall be sufficient to use a formula substantially to the following effect: ‘That A.B., on the ····· day of ····· nineteen hundred and ·····, at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C.D. against the peace, government and dignity of the State’. ”

“STATE OF MARYLAND, BALTIMORE COUNTY, TO WIT: The Jurors of the State of Maryland, for the body of Baltimore County, do on their oath present that WESLEY EUGENE BAKER AND GREGORY LAWRENCE late of Baltimore County aforesaid, on the 6th day of June, in the year of our Lord nineteen hundred and ninety-one at Baltimore County, aforesaid, feloniously, willfully and of deliberately premeditated malice aforethought did kill and murder one Jane Frances Tyson; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.”

Baker and Lawrence were also charged in the indictment with robbery with a dangerous and deadly weapon, two handgun violations, and possession of a revolver by persons convicted of a crime of violence. On August 8, 1991, in compliance with Maryland Code (1957, 1987 Repl.Vol., 1991 Cum.Supp.), Article 27 section 412(b),FN4 the State notified Baker of its intention to seek the death penalty and of the aggravating circumstance upon which the State intended to rely. The notice sent to Baker stated:

FN4. Maryland Code (1957, 1987 Repl.Vol., 1991 Cum.Supp.), Article 27 section 412(b) stated: “§ 412. Punishment for murder. ··· (b) Penalty for first degree murder.-Except as provided under subsection (f) of this section, a person found guilty of murder in the first degree shall be sentenced to death, imprisonment for life, or imprisonment for life without the possibility of parole.

The sentence shall be imprisonment for life unless: (1)(i) the State notified the person in writing at least 30 days prior to trial that it intended to seek a sentence of death, and advised the person of each aggravating circumstance upon which it intended to rely, and (ii) a sentence of death is imposed in accordance with § 413; or (2) the State notified the person in writing at least 30 days prior to trial that it intended to seek a sentence of imprisonment for life without the possibility of parole under § 412 or § 413 of this article.”

NOTICE OF INTENTION TO SEEK SENTENCE OF DEATH

Now comes the State of Maryland by and through Sandra A. O'Connor, State's Attorney for Baltimore County, and S. Ann Brobst, Assistant State's Attorney for Baltimore County, and says: Pursuant to Maryland Annotated Code, Article 27, Section 412(b)(1), the State of Maryland is hereby notifying you the Defendant in the above Indictment which charges you with the Murder of Jane Frances Tyson, Robbery with a Dangerous and Deadly Weapon of Jane Frances Tyson and other lesser offenses under Indictment Number 91CR2536, of its intention to seek the sentence of death. Pursuant to Maryland Annotated Code, Article 27, Section 412(b)(1), the State of Maryland also notifies you that it intends to rely on the following Aggravating Circumstance under Maryland Annotated Code, Article 27, Section 413(d)(10).[FN5]

FN5. Maryland Code (1957, 1987 Repl.Vol.), Article 27 section 413(d)(10) states: “§ 413. Sentencing procedure upon finding of guilty of first degree murder. ··· (d) Consideration of aggravating circumstances.-In determining the sentence, the court or jury, as the case may be, shall first consider whether, beyond a reasonable doubt, any of the following aggravating circumstances exist: ··· (10) The defendant committed the murder while committing or attempting to commit a robbery, arson, rape or sexual offense in the first degree.”

1. The Defendant committed the Murder of Jane Frances Tyson in the First Degree while committing or attempting to commit a robbery of Jane Frances Tyson on June 6, 1991, as charged in Indictment Number 91CR2536.” On his motion, pursuant to Maryland Rule 4-254,FN6 Baker's trial was moved from Baltimore County to Harford County. On October 26, 1992, after a jury trial in the Circuit Court for Harford County, Baker was found guilty of the first degree murder of Mrs. Tyson, the robbery of Mrs. Tyson with a deadly weapon, and the use of a handgun in the commission of a felony. Based on a request by Baker, the jury considered whether Baker was a principal in the first degree and found that he was.

FN6. Maryland Rule 4-254 states, in relevant part, that: “Rule 4-254. Reassignment and removal. ··· (b) Removal in circuit courts. (1) Capital cases. When a defendant is charged with an offense for which the maximum penalty is death and either party files a suggestion under oath that the party cannot have a fair and impartial trial in the court in which the action is pending, the court shall order that the action be transferred for trial to another court having jurisdiction. A suggestion by a defendant shall be under the defendant's personal oath. A suggestion filed by the State shall be under the oath of the State's Attorney.”

On October 27, 1992, the sentencing hearing commenced, at which time Baker had to make a determination as to whether he wanted to be sentenced by the Circuit Court or by a jury. The following exchange occurred prior to the sentencing hearing. “THE COURT: Okay. We would propose at this point to advise Mr. Baker of his right to be sentenced by either a Court or a jury, and get that election made. Defendant ready to proceed on that point? MR. GALVIN: [FN7] We are, Your Honor.

FN7. Roger W. Galvin and Rodney C. Warren were the attorneys representing Baker. THE COURT: Had adequate time to review this question with the Defendant? MR. GALVIN: I believe we have. THE COURT: Mr. Baker, do you feel you have had adequate time to review with counsel the issue of the election of either Court or jury to impose the sentence? THE DEFENDANT: Yes. THE COURT: We have now concluded the guilt phase of the trial, and you have been convicted, Mr. Baker, of Murder in the First Degree both as to Premeditated Murder and as to Felony Murder. In addition, the jury has found beyond a reasonable doubt and to a moral certainty that you were a principal in the first degree. That is, that you committed the murder with your own hands.

That second part normally can be left to the sentencing phase. Here it was your request that that be included as a part of the guilt/innocence phase. The State did not object to that. So we submitted that question to the jury, that a jury has made that determination, and that is now a binding determination. So, that issue is behind us.

The next phase of the trial is the actual sentencing phase. It will be decided whether the sentence to be imposed on the Murder conviction should be death, life without parole, or life imprisonment. Your trial was conducted above before a jury. You are not obligated to maintain that same election for sentencing.

However, because you were tried by a jury, if you elect to be sentenced by a jury, you will be sentenced by the same jury to consider guilt or innocence. So, if you have a jury, the same twelve people will be that unless we have had to excuse one, in which case one of the alternates would be used. A jury is comprised of twelve citizens selected from the voter rolls of this jurisdiction. You and your attorneys have participated in the voir dire process where the potential jurors were examined and we selected the twelve jurors and the alternates.

If any juror held a belief or any potential juror held a belief either for or against capital punishment, which would prevent or substantially impair that juror from being impartial, that juror has not been allowed to serve as a juror in this case. In order to secure a death sentence, it is the obligation of the State to prove beyond a reasonable doubt that you were a principal in the first degree to the murder. So, that's been submitted and that's been determined, and that determination is binding at this point.

The State also has the burden of proof beyond a reasonable doubt that the aggravated circumstances listed in the Notice of Intent to Seek a Death Penalty exist. The same burden of proof standard will prove beyond a reasonable doubt exists regardless of whether you elect to be sentenced by the Court or by a jury. If you elect to be sentenced by a jury, each of these threshold determinations must be unanimous, and I am telling you that you have had the unanimous determination and that you were a principal in the first degree.

So, the next determination is whether or not the aggravated circumstances exist and that must be unanimous, and it must be beyond a reasonable doubt. If the sentencer, whether it be the court or jury, finds the State has satisfied its burden, the sentencer will go on to consider whether any mitigating circumstances exist.

Mitigating circumstances are any circumstances relating either to yourself or this trial that would tend to make the sentence of death less appropriate. The statute lists seven circumstances that are considered to be mitigating. To be considered, there must be proof of the existence of any of these circumstances by preponderance of the evidence. This burden exists whether the sentencer is the Court or the jury.

In addition to the seven listed mitigating circumstances, the sentencer may write down any other fact or circumstance it finds to be mitigating. That is, anything about you or the crime that would make death less appropriate. Again, mitigating circumstances must exist by a preponderance of the evidence. Further, it is necessary to convince the sentencer that both the fact and the circumstance exists, and that it is mitigating. As with the listed mitigating circumstances, this is the same whether the sentencer is the Court or jury.

Unlike the matters on which the State bears the burden of proof, if you elect to be sentenced by a jury, the jury need not be unanimous with respect to whether a particular mitigating circumstance exists. This is true as to both the statutory or the mitigating circumstances, and the non-statutory mitigating circumstances. That's the non-statutory, whether or not, is mitigating in the mind of the jury.

If, after a period of deliberation, the sentencing jury cannot unanimously agree on the existence of a particular mitigating circumstance, those jurors finding the mitigating circumstance will be instructed to consider it in determining the appropriate sentence. Those jurors finding that the mitigating circumstances do not exist will not consider it.

Only if the jury unanimously finds that no mitigating circumstance exists, the sentence of death [can] be entered without a balancing process. If at least one juror finds at least one mitigating circumstance, a balancing process will result. Similarly, if the Court is the sentencer, a sentence of death will be imposed without a balancing process only if no mitigating circumstance is found. So, as long as at least one mitigating circumstance is found, a balancing process will result.

If the Court, sitting as the sentencer, finds both that an aggravating circumstance has been proven and that a mitigating circumstance exists, the Court will balance the mitigating circumstance or circumstances found to exist against the aggravating circumstance or circumstances proven beyond a reasonable doubt to determine whether the sentence would be death or not death.

The same balancing process is undertaken by a jury sitting as the sentencer where the jury unanimously concludes that an aggravating circumstance has been proven, and at least one juror concludes that a mitigating circumstance exists. Whether the sentencer is the Court or a jury, the State bears the ultimate burden to establish the propriety of a death sentence.

If the sentencer, whether Court or jury, concludes that the mitigating circumstances outweigh the aggravating circumstances, the sentence shall not be death. If the mitigating circumstances and the aggravating circumstances are in even balance, the sentence shall not be death. Only if the aggravating circumstances outweigh the mitigating circumstances is a sentence of death to be imposed. Where the sentencer is the jury, the outcome of the balance must be a unanimous conclusion of the jury. That is, all twelve must agree.

The need for jury unanimity has been noted on several occasions. If, after a reason[able] period of deliberation, the jury is unable to reach agreement unanimously on any matter for which unanimity is required, including whether a sentence of death should be imposed, a sentence of death shall not be imposed. If the sentencer determines that the sentence shall not be death, then the same sentencer shall proceed to determine whether the sentence should be life or life without parole.

If the sentencer is a jury and they are unable to reach a verdict on the issue of death within a reasonable time, the same jury shall, nevertheless, proceed to consider the question of life or life without parole. If the sentencer is a jury, a sentence of life without parole must be a unanimous decision. If the jury cannot achieve unaniminity on the issue of life without possibility of parole after a reasonable period of deliberation, a sentence of life must be imposed. If you choose the Court as the sentencer, then I must consider whether life or life without parole is appropriate, if I determine that death is not the proper sentence. First, did I cover adequately-did I make any mistakes in reading it? MISS BROBST: [FN8] The State is satisfied, Your Honor. Thank you very much.

FN8. The State of Maryland was represented by Sandra A. O'Connor, the State's Attorney for Baltimore County, and S. Ann Brobst, an Assistant State's Attorney for Baltimore County.

THE COURT: Mr. Galvin, Mr. Warren, do you feel I have adequately covered the instructions? MR. GALVIN: We do, Your Honor. THE COURT: Mr. Baker, do you have any questions concerning what I have said to you here? THE DEFENDANT: No. THE COURT: Have you had an opportunity to discuss this election with your attorneys? THE DEFENDANT: Yes, sir. THE COURT: Have you had sufficient opportunity? THE DEFENDANT: Yes. THE COURT: Are there any questions that you have of them that they have been either unwilling or unable to answer? THE DEFENDANT: No. THE COURT: What is your age? THE DEFENDANT: 34. THE COURT: How far did you go in school? THE DEFENDANT: G.E.D. THE COURT: How many years did you actually attend? THE DEFENDANT: To the seventh. THE COURT: And G.E.D. after that? THE DEFENDANT: Uh huh. THE COURT: Prior to coming here today, have you had any medication, or drugs, or alcohol that would affect your ability to understand my instructions, hear my questions, and answer my questions? THE DEFENDANT: No, Your Honor. THE COURT: Are you prepared to make an election to whether you wish to proceed with the sentencing by Court or jury? THE DEFENDANT: Yes, I have. THE COURT: What is your election? THE DEFENDANT: Sentenced by the Court. THE COURT: Sentenced by the Court? THE DEFENDANT: Yes. THE COURT: You understand the jury will be discharged and have no further participation in the matter? THE DEFENDANT: Yes. THE COURT: Do you feel you have had adequate time on this? Are you satisfied to make this election now since it is final? Once you make it, and that jury is discharged, you can't change your mind. Do you understand that? THE DEFENDANT: Yes, Your Honor. THE COURT: Do you wish to have further time to discuss this in any way with your attorneys? THE DEFENDANT: No, sir. THE COURT: Then I will accept the election for the sentencing process to be with the Court. We will discharge the jury.”

On October 30, 1992, after the sentencing hearing, the Circuit Court sentenced Baker to death for his conviction for murder. The Circuit Court also sentenced Baker to twenty years incarceration for robbery with a deadly weapon and to a consecutive twenty years incarceration for the use of a handgun in the commission of a felony.

On January 28, 1993, Baker filed a Motion for Reconsideration of Sentence which was denied by the Circuit Court. After receiving his death sentence, Baker filed an appeal. The appeal and an automatic review of his sentence by this Court in accordance with Maryland Code (1957, 1987 Repl.Vol.), Article 27 section 414, were consolidated. Baker's sentence and his conviction were affirmed by this Court. Baker v. State, 332 Md. 542, 632 A.2d 783 (1993).

On December 23, 1994, Baker filed a Petition for Post Conviction Relief in the Circuit Court for Harford County. In his petition, Baker alleged that he had: (1) been denied his constitutional right to a fair and impartial jury as the voir dire process resulted in a prosecution-prone jury; (2) he was denied his constitutional right to a trial by a jury selected from a fair cross-section of the community by the discriminating selection of the petit jury; and (3) he was denied the effective assistance of trial counsel in violation of the sixth, eighth, and fourteenth amendments of the United States Constitution and the Maryland Declaration of Rights.

After a hearing was held on July 6 and July 7, 1995, the Circuit Court for Harford County issued a Memorandum Opinion that denied Baker's Petition for Post Conviction Relief. On October 21, 1996, Baker, pursuant to Maryland Code (1957, 1996 Repl.Vol.), Article 27 section 645A(a)(2)(iii),FN9 filed a Motion to Reopen the Post Conviction Proceeding. This motion was denied by the Circuit Court for Harford County on December 19, 1996.

FN9. Maryland Code (1957, 1996 Repl.Vol.), Article 27 section 645A(a)(2)(iii) states that “[t]he court may in its discretion reopen a postconviction proceeding that was previously concluded if the court determines that such action is in the interests of justice.”

Baker then filed a Petition for Writ of Habeas Corpus in the United States District Court for the District of Maryland pursuant to 28 U.S.C. § 2254. This petition was denied and the United States Court of Appeals for the Fourth Circuit affirmed the District Court's decision. On March 9, 2001, Baker filed a Motion for New Sentencing in the Circuit Court for Harford County based on newly discovered evidence.

On March 22, 2001, Baker filed a Motion to Correct Illegal Sentence and/or for New Sentencing Based Upon Mistake and Irregularity in the Circuit Court for Harford County. Both motions were denied by the Circuit Court on April 2, 2001. Baker filed a Notice of Appeal to this Court after the judgments of the Circuit Court.

Baker has presented six questions for our review. 1. Whether Mr. Baker made an unknowing and unintelligent waiver of his right to sentencing by jury when the trial court improperly advised him of what he was waiving? 2. Whether Maryland's death penalty statute is now unconstitutional on its face because it allows a sentence of death to be imposed if the State proves only that the aggravating circumstances outweigh any mitigating circumstances by a preponderance of the evidence? 3. Whether the court was without jurisdiction to impose a sentence of death because the indictment failed to allege all of the elements of capital murder? 4. Whether the rights identified by the Supreme Court's Decision in Apprendi apply to Mr. Baker? 5. Whether, as a matter of fundamental fairness, and pursuant to Article 24 of the Maryland Declaration of Rights, this Court should now hold that no sentence of death in Maryland is permissible unless the finder of fact unanimously finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances? 6. Whether the Circuit Court erred and abused its discretion in denying the motion for new sentencing based on newly discovered evidence?

* * *

We affirm the judgment of the trial court. JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.

Baker v. State, 389 Md. 127, 883 A.2d 916 (Md. 2005) (PCR).

Background: Following affirmance on direct appeal of defendant's convictions for first-degree murder, robbery with a deadly weapon, and use of handgun in commission of a felony, as well as his death sentence, 332 Md. 542, 632 A.2d 783, defendant filed motion to correct illegal sentence, motion to re-open post-conviction proceeding, and petition for post-conviction relief. The Circuit Court, Hartford County, Emory A. Plitt, Jr., J., denied motions and petition. Defendant filed application for leave to appeal.

Holdings: Upon grant of defendant's application with respect to denial of motion to correct illegal sentence, the Court of Appeals, Harrell, J., held that:
(1) defendant's motion to correct illegal sentence was not appropriate vehicle for defendant to challenge his death sentence, and
(2) defendant's motion to correct illegal sentence did not fall within constitutional exception permitting defendant to seek relief via such a motion if he argued novel constitutional arguments that arose from decisions of United States Supreme Court or Court of Appeals in unrelated case or cases decided after imposition of death sentence on defendant.

Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000) (Habeas).

After his murder conviction and death sentence were affirmed on direct appeal, 332 Md. 542, 632 A.2d 783, petitioner sought federal habeas corpus relief. The United States District Court for the District of Maryland, William M. Nickerson, J., denied petition. Petitioner appealed and state cross-appealed. The Court of Appeals, Wilkins, Circuit Judge, held that: (1) Maryland's mechanism for appointment and compensation of post-conviction counsel did not satisfy requirements for expedited federal habeas review in capital cases; (2) petitioner's due process challenge to premeditation instruction was not fairly presented to state's highest court; (3) claims raised in petitioner's motion to reopen state postconviction proceedings were exhausted; (4) instruction correctly conveyed concept of reasonable doubt; (5) petitioner was not prejudiced by alleged inadequacy of counsel's investigation of case; (6) counsel's decision to concede involvement in robbery and murder was reasonable tactical retreat; and (7) counsel's failure to present certain mitigating evidence over petitioner's objection did not prejudice petitioner. Affirmed.

WILKINS, Circuit Judge:

Wesley Eugene Baker appeals an order of the district court denying his petition for a writ of habeas corpus, [FN1] in which he challenged his convictions and death sentence for the murder of Jane Tyson. See 28 U.S.C.A. § 2254 (West 1994 & Supp.2000). [FN2] The State cross-appeals an order of the district court denying its motion to dismiss Baker's petition as untimely under 28 U.S.C.A. § 2263 (West Supp.2000), maintaining that the district court incorrectly ruled that Maryland has not satisfied the "opt-in" requirements of 28 U.S.C.A. § 2261(b), (c) (West Supp.2000). We conclude that Maryland has not satisfied the opt-in requirements and that Baker is not entitled to habeas relief. Accordingly, we affirm.

FN1. Baker named Eugene Nuth, Warden of the Maryland Correctional Adjustment Center where Baker is incarcerated, and Attorney General J. Joseph Curran, Jr. as Respondents. Nuth has since been replaced by Thomas R. Corcoran. For ease of reference, we refer to Respondents as "the State" throughout this opinion.

FN2. Because Baker's petition for a writ of habeas corpus was filed after the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214, the amendments to 28 U.S.C.A. § 2254 effected by § 104 of the AEDPA govern the resolution of this appeal. See Slack v. McDaniel, 529U.S. 473, ----, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000).

On the evening of June 6, 1991, Tyson went to the Westview Mall near Baltimore, Maryland with her grandchildren, six-year-old Adam and four-year-old Carly. Tyson was shot as the three were entering Tyson's maroon Buick to return home. At the time of the shooting, Carly had entered the back seat, Adam was preparing to enter the front passenger seat, and Tyson was preparing to enter the driver's seat. Adam saw a man run up to Tyson, heard her scream, and saw the man shoot her in the head. The man then entered "the left side" of a blue "truck" and drove away. J.A. 30 (internal quotation marks omitted). [FN3]

FN3. A subsequent autopsy revealed that Tyson was killed by a single gun-shot wound to the head; forensic evidence indicated that the weapon was in contact with Tyson's temple at the time of the shooting.

Scott Faust happened upon the scene within seconds of the shooting. He observed a blue Chevy Blazer facing west and a maroon Buick facing east. The two vehicles were parallel to each other and separated by a distance of approximately ten feet. Faust observed two men run from the vicinity of the Buick and enter the Blazer.

The passenger, whom Faust subsequently identified as Baker, was wearing a dark t-shirt and a baseball hat; the driver, subsequently identified as Gregory Lawrence, was wearing a bright orange t-shirt. Faust then saw Tyson lying near the driver's side door of the Buick. Faust followed the Blazer out of the mall parking lot, eventually getting close enough to record the license plate number and to observe Lawrence and Baker. He then returned to the mall and provided this information to the police.

Shortly thereafter, Baltimore County police officers spotted the Blazer and gave chase. The Blazer stopped abruptly and a passenger, who was dressed in dark clothing, fled on foot. The officers stopped the *282 Blazer a short distance away and arrested the driver, Gregory Lawrence. Baker was arrested a short time later, and at that time officers observed what appeared to be blood on his shoe, sock, and leg. Subsequent testing revealed that the blood was Tyson's.

Officers found Tyson's purse, wallet, and photograph holder on the path of Baker's flight. Other items belonging to Tyson were found in the Blazer, as was the firearm that had been used to shoot her. Additionally, fingerprints from Baker's right hand were found on the driver's side door and window of the Buick. Baker was charged with first degree premeditated murder, first degree felony murder, robbery with a deadly weapon, and use of a handgun during the commission of a felony.

Trial counsel elected to concede Baker's involvement in the offenses in favor of arguing that Baker was not a principal in the first degree, i.e., he did not shoot Tyson. At counsel's request, the jury was instructed to return a special verdict indicating whether the State had proven beyond a reasonable doubt that Baker was a principal in the first degree; a "no" response would have rendered Baker ineligible for the death penalty. See Md. Ann.Code art. 27, § 413(e)(1)(i) (Supp.1999); Gary v. State, 341 Md. 513, 671 A.2d 495, 498 (1996). The jury subsequently convicted Baker of the charged offenses and found that he was a principal in the first degree.

Baker chose to be sentenced by the court rather than by the jury. During his case in mitigation, Baker presented the testimony of Dr. Robert Johnson, who stated that Baker was unlikely to be a danger to other inmates if sentenced to life imprisonment. Defense counsel then informed the court that they had intended to call two additional witnesses--Baker's mother, Dolores Williams, and social worker Lori James--to testify regarding Baker's family history, but that Baker had directed counsel not to call those witnesses "because there were going to be very painful kinds of things testified about." J.A. 199. Counsel further stated that "we have to respect--man to man--Mr. Baker's very clear, unequivocable [sic] and express directions to us." Id. A lengthy discussion followed, during which the court considered calling Williams and James as court witnesses but decided not to do so after Baker informed the court that he did not want the evidence introduced because he thought it would be damaging and for "personal reasons." Id. at 209.

After hearing argument from the parties, the court sentenced Baker to death. The court first independently determined that the State had proven beyond a reasonable doubt that Baker was a principal in the first degree. The court then found that the State had established one aggravating circumstance--that the murder was committed in the course of a robbery, see Md. Ann.Code art. 27, § 413(d)(10) (Supp.1999).

The court found no mitigating circumstances, explicitly rejecting Dr. Johnson's testimony that Baker was unlikely to pose a danger to others if sentenced to life imprisonment. Additionally, the court noted that even if it had considered Dr. Johnson's testimony as establishing a mitigating circumstance, it would have found that the mitigating circumstance was outweighed by the aggravating circumstance.

Shortly thereafter, Baker moved for reconsideration of his sentence, stating that he had "reflected upon his decision not to call [Williams and James] on his behalf and realize[d] that he made a serious error in judgment." J.A. 245. Baker also requested that the court consider testimony from his brother and son.

The court granted the motion, and defense counsel presented testimony from James. [FN4] James testified that Baker was raised in a dysfunctional family that consisted of Baker's mother, his stepfather, and his siblings. James testified that Baker was the product of the rape of his mother, a fact of which he was *283 unaware until the sentencing phase of his trial. [FN5] She further stated that although Baker was never physically abused, [FN6] he observed his stepfather beating his mother. James also found that Baker's family had poor communication patterns and that several family members abused drugs. The court considered this information and found that it was not mitigating, and therefore elected not to reduce Baker's sentence.

FN4. Baker's mother was not present for the proceeding due to a miscommunication; the record does not reveal why Baker's brother and son did not testify. FN5. Counsel did not assert that Baker's origins constituted a mitigating circumstance; rather, the information was offered as an explanation of why Baker refused to present James' and Williams' testimony at the initial sentencing hearing. Additionally, James asserted that Baker's lack of knowledge about the rape of his mother was indicative of a pattern of keeping secrets that was part of the dysfunctionality of the family. FN6. James uncovered one instance of sexual abuse, in which Baker was molested by two teenage girls when he was less than five years old.

Baker then appealed his convictions and sentence to the Maryland Court of Appeals. Among other things, Baker argued that the trial court had improperly instructed the jury that premeditation could be inferred from the "intensity and effect" of a wound, asserting that such an instruction had "no basis in Maryland law." Id. at 310-11 (internal quotation marks omitted). The Maryland Court of Appeals affirmed, and the United States Supreme Court denied certiorari. See Baker v. State, 332 Md. 542, 632 A.2d 783 (1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994).

Baker filed a petition for post-conviction relief (PCR) in December 1994. As is relevant here, Baker maintained that trial counsel were constitutionally ineffective for failing to conduct any independent investigation of the case; for conceding Baker's principalship during closing argument; and for failing to present testimony from Williams and James at the initial sentencing hearing. Following a hearing, the PCR court denied relief. The Maryland Court of Appeals denied Baker's application for leave to appeal, and the United States Supreme Court denied certiorari, see Baker v. Maryland, 517 U.S. 1169, 116 S.Ct. 1572, 134 L.Ed.2d 670 (1996).

The United States District Court for the District of Maryland subsequently appointed federal habeas counsel for Baker. In October 1996, Baker moved through counsel to reopen the state PCR proceedings, asserting that certain claims had not been presented in his initial PCR proceeding due to post-conviction counsel's incompetence.

The motion to reopen and a subsequent addendum included the following claims: that the trial court issued an unconstitutional instruction regarding the meaning of "reasonable doubt"; that trial and appellate counsel were constitutionally ineffective for failing to object to the reasonable doubt instruction and to challenge it on appeal; that trial counsel's failure to conduct an investigation resulted in the failure to discover evidence indicating the existence of a third participant in the crime; that trial counsel were ineffective for failing to obtain an expert examination of the murder weapon; and that trial counsel failed to investigate Gregory Lawrence.

Following a non-evidentiary hearing, the state court denied the motion to reopen in a letter ruling. The Maryland Court of Appeals subsequently denied Baker's application for leave to appeal. See Baker v. State, 345 Md. 39, 690 A.2d 1008 (1997). On March 21, 1997, Baker filed his federal petition for a writ of habeas corpus.

* * *

Baker challenges counsel's tactical decision to focus exclusively on the question of whether Baker was the triggerman, maintaining that a decision to concede guilt can never be objectively reasonable. [FN16] Cf. Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir.1988) (stating that "an attorney who adopts and acts upon a belief that his client should be convicted 'fail[s] to function in any meaningful sense as the Government's adversary' " (quoting United States v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)) (alteration in original)).

Baker further claims that damage done by conceding guilt was aggravated by counsel's statement that "[w]hen you don't have a case, you do what you can." Baker claims that in making this comment counsel "disparage[d] his own candor and paint[ed] himself as a gamesman willing to' do what [he] can' in a hopeless and desperate situation."

* * *

In sum, we conclude that Maryland has not satisfied the "opt-in" requirements of *298 28 U.S.C.A. § 2261, and accordingly that Baker's habeas petition was timely filed. We also determine, however, that Baker is not entitled to relief on any of his claims. [FN20] Therefore, we affirm the district court in all respects. FN20. Additionally, we conclude that the district court properly denied Baker's request for an evidentiary hearing.

The victim

Jane Tyson was 49 years old, married with three children and six grandchildren. She worked as a teacher's aide at a local elementary school.