Neff v. State of Maryland

Filing 8

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 7/26/10. (c/m af 7/27/10)(amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND FRANK M. NEFF Petitioner v STATE OF MARYLAND Respondent
000

Civil Action No. RDB-I0-418

MEMORANDUM

OPINION

The above-captioned Petition for Writ of Habeas Corpus was filed on February 22, 2010, and challenges Petitioner's 2006 conviction in the Circuit Court for Talbot County. Paper NO.1. Respondent filed an answer stating the Petition is subject to dismissal because it is time-barred. Paper NO.4. Petitioner was provided with notice that if the Petition were deemed time-barred, it

would be subject to dismissal and he was provided with an opportunity to file a reply stating how he might be entitled to equitable tolling of the filing deadline. Paper NO.7. Petitioner instead

has provided information concerning his mental status and the medications he currently takes, as well as correspondence which does not address the timeliness issue. Papers NO.5 and 6. For the reasons below the Petition SHALL BE DISMISSED as untimely. Background On September 26, 2006, Petitioner pled guilty to one count of sexual offense in the second degree and on November 28, 2006, was sentenced to serve 20 years. Paper NO.4 at Ex. I, p. 9. Petitioner did not file an application for leave to appeal; therefore, his conviction became final on December 28, 2006, when the time for filing an application expired. See Md. Rule 8204. On or about August 2, 2007, Petitioner tiled a "Motion for Case Review" in the Court of

Appeals, which was denied on September 14,2007. Paper NO.4 at Ex. 2. On May 23, 2008, Petitioner filed a petition for post-conviction relief in the Circuit Court for Talbot County. Id. at Ex. I. A hearing was held on November 21, 2008, and on December 22, 2008, the court granted Petitioner the right to file an application for review of sentence but otherwise denied relief. Petitioner did not seek appellate review of the post-conviction court's denial of relief, making that decision final on January 21,2009. On January 25, 2010, Petitioner filed a motion to reopen

post-conviction proceedings so the court could re-issue its decision granting the right to file an application for review of sentence. remains pending. Standard of Review A one-year statute of limitations applies to habeas petitions In non-capital cases for a person convicted in a state court. See 28 U.S.C. Paper NO.4 at Ex. 1, pp. 10-11 and Ex 3. The motion

S 2244(d).1

This one-year period is, however,

'This section provides: (I) A I-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the constitution or laws of the United States ir removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims (D) presented could have been discovered through the exercise of due diligence. (2) the time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or

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tolled while properly filed post- conviction tolled. See 28 U.S.c. S2244(d)(2);

proceedings

are pending and may otherwise be equitably

Harris v. Hutchinson, 209 F. 3d 325, 328 (4th Cir. 2000). Analysis

For purposes file a timely petition. Review 14,2007, sought expired. Assuming for applying

of federal habeas corpus review, Petitioner Assuming, for purposes

had until December

27,2007,

to

of this review, that Petitioner's

Motion for Case

filed on August 2, 2007, tolled the limitations the adjusted post-conviction filing deadline relifed would be February

period until it was denied on September 8, 2008.2 Thus, by the time Petitioner period already had

on May 23, 2008, the one-year

limitations

that Petitioner

is attempting

to assert his mental and physical

health as reasons to warrant it. his

equitable

tolling in this case, he has failed to alleged tolling a petitioner

facts sufficient

To be entitled rights diligently, timely filing."

to equitable

must show: "( 1) that he has been purusing circumstance

and (2) that some extraordinary

stood in his way and prevented 12 (2010),

Holland v. Florida, _

U.S._,

2010 WL 2346549,

citing Pace v.
were known and he mental

DiGulielmo, 544 U.S. 408, 418 (2005).

The allegations

of error raised by Petitioner

to him at the time the guilty plea was entered. should not have been charged. retardation constitute

He claims the evidence

was insufficient disorder,

The mental impairments

noted, bipolar affective receives tolling. medication,

NOS,3 and seizure disorder, an extraordinary circumstances

for which Petitioner warranting equitable beyond

alone, do not

Petitioner

filed his federal habeas petition tolling. The instant petition

the deadline

and he is not entitled

to

statutory or equitable

is barred by the statute of limitations

and must

claim is pending shall not be counted toward any period of limitation under this subsection. 2 The period of time tolled, 43 days, is added to the one-year filing deadline to arrive at a new filing date deadline. 3 "Not Otherwise Specified."

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be dismissed by separate Order which follows.

jUCoP2~
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

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