Wallace v. Shearin et al

Filing 7

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 2/27/13.(c/m af 2/27/13) (amf, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

THOMAS CLIFFORD WALLACE, #268813 *
v.
BOBBY SHEARIN, et al.

*

CIVIL ACTION NO. RDB-13-20

*
***

MEMORANDUM OPINION

Petitioner Thomas Clifford Wallace (“Wallace”), a state inmate incarcerated at the North
Branch Correctional Institution, filed the instant self-represented Petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254 to challenge his 2001 convictions in the Circuit Court for Washington
County, Maryland. Respondents have filed a court-ordered Limited Response addressing the
timeliness of the Petition (ECF No. 5), and Wallace has filed his Reply. (ECF No. 6).1 Upon review
of the pleadings and exhibits, the Court finds no need for an evidentiary hearing. See 28 U.S.C. §
2254(e)(2); Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts. For
reasons that follow, the Court concludes that the Petition is time-barred, and it will be denied and
dismissed by separate Order.
I. Procedural History
In November of 2000, Wallace was tried and convicted in the Circuit Court for Washington
County, Maryland of first-degree murder, second-degree murder, first-degree assault, and the
unlawful taking of a motor vehicle. He was sentenced to serve a cumulative life sentence in the

1

By Order dated January 7, 2013, the Court granted Wallace thirty (30) days after service
of Respondents’ limited Response to explain why his § 2254 petition should not be dismissed as timebarred. (See ECF No. 2).

Maryland Division of Correction. (ECF No. 5 at Ex. 1, pgs. 9-10 & 14-16). The judgment was
affirmed by the Court of Special Appeals of Maryland on May 9, 2002, and Wallace’s application
for writ of certiorari was denied by the Court of Appeals of Maryland on February 13, 2003. (ECF
No. 5 at Ex. 1, pgs. 16-17). Wallace did not seek review in the U.S. Supreme Court and his
convictions became final for purposes of direct review on May 13, 2003, when the ninety-day time
period for seeking Supreme Court review expired.
According to the record, Wallace filed a motion to correct an illegal sentence on March 5,
2009, which was denied on March 23, 2009. He did not appeal that decision. (ECF No. 5 at Ex. 1,
pgs. 17-18). On May 27, 2009, Wallace filed a post-conviction petition. After granting Wallace’s
requests for postponements, a post-conviction hearing was held on the petition on May 26, 2011.
(Id. at Ex. 1, pgs. 18-19). The circuit court granted Wallace the right to file a belated motion for
review of sentence by a three-judge panel, but otherwise denied post-conviction relief. Wallace’s
application for leave to appeal was denied by the Court of Special Appeals of Maryland on
November 14, 2012. (Id. at Ex. 1, pgs. 20-21).
II. Statute of Limitations
Since April 24, 1996, a one-year statute of limitations applies to state prisoners filing
petitions for federal habeas relief in non-capital cases. See 28 U.S.C. § 2244(d).2 This one-year

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This section provides:
(1)
A 1-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;

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period is tolled while properly filed post-conviction proceedings are pending.

III. Analysis
Affording the Petition the most generous of filing dates, it is deemed as filed by Wallace on
December 5, 2012, the date on which it was signed and presumably deposited with prison
authorities.3 See Houston v. Lack, 487 U.S. 266 (1988); United States v. Dorsey, 988 F. Supp. 917,
919-920 (D. Md. 1998) (holding a petition shall be deemed to have been filed on the date it was
deposited with prison authorities for mailing under the Aprison mailbox@ rule.)
Wallace’s one-year limitations period under 28 U.S.C. § 2244(d) began to run on May 14,
2003. He did not file a post-conviction petition or seek revisory review in the state court to toll the
one-year period, which expired on May 14, 2004. Indeed, review was not sought in the Maryland

(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 is 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
(D)
the date on which the factual predicate of the claim or
claims 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 claim is pending shall not be counted toward any period of
limitation under this subsection.
3

In an ideal world, the Petition’s envelope would be stamped by North Branch Correctional
Institution personnel as “received by prison mailroom” on a certain date. The Maryland Division of
Correction does not provide such a franked designation. The Petition was received by the Clerk on January 2,
2013. It bears a signature date of December 5, 2012, and shall be reviewed as filed on that date.

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state courts until five years later in March and May of 2009. This Petition was filed on December 5,
2012, over eight years after the expiration of the limitations period. Consequently, this habeas
Petition was filed outside the statutory limitations period and is time-barred.
The one-year time period may be equitably tolled. To be entitled to equitable tolling a

petitioner must show: “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, __
U.S. __, 130 S. Ct. 2549, 2555 (2010), citing Pace v. DiGulielmo, 544 U.S. 408, 418 (2005). The
allegations of error raised by Petitioner were known to him at the time of conviction. The alleged
negligence of counsel cited by Wallace does not constitute an extraordinary circumstance warranting
equitable tolling.4 See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (holding that, for equitable
tolling to apply, petitioner must show that there was (1) an “‘extraordinary circumstance,’ (2)
beyond his control or external to his own conduct, (3) that prevented him from filing on time. In this
case, however, Wallace has neither asserted, nor do the pleadings suggest, any circumstances that
justify equitable tolling. Accordingly, the Petition will be denied and dismissed with prejudice by
separate Order.
In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that “[w]hen the district
court denies a habeas petition on procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA [certificate of appealability] should issue when the prisoner shows, at
least, that ... jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Wallace does not satisfy this standard, and the Court

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This excuse is offered in Wallace’s original Petition. (ECF No.1 at pgs. 5-6). In his Reply
Wallace takes issue with Respondents’ failure to provide copies of transcripts and opinions. (ECF No. 6). He
further claims that “as long as the sentencing court has revisory power over a defendant the time frame for

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declines to issue a certificate of appealability.

Date: February 27, 2013

__________/s/_____________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

filing a habeas corpus stops.” (Id.)

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