Tankard v. Bishop et al

Filing 9

MEMORANDUM. Signed by Judge James K. Bredar on 5/27/2015. (c/m 5/28/2015)(ko, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ERIC TYWON TANKARD, #312368
Petitioner,
v.

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FRANK B. BISHOP, JR., et al.,
Respondents.

*

*

CIVIL ACTION NO. JKB-14-3831

*****
MEMORANDUM
Petitioner Eric Tywon Tankard (hereinafter referred to as “Tankard”) seeks habeas
corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2003 convictions
in the Circuit Court for Baltimore City. ECF No. 1. Respondents’ limited answer to the petition
and Tankard’s reply remain pending. ECF Nos. 4 & 7. After review, the court finds no need for
an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States
District Courts and Local Rule 105.6 (D. Md. 2014); see also Fisher v. Lee, 215 F.3d 438, 455
(4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For reasons to
follow, the petition shall be dismissed as time-barred.
Background and Procedural History
On December 6, 2002, Tankard was convicted by a Baltimore City Circuit Court jury of
premeditated first-degree murder, two counts of attempted armed robbery with a deadly weapon,
two counts of use of a handgun in the commission of a crime of violence, two counts of
conspiracy to commit robbery with a deadly weapon, and first-degree assault. ECF No. 4, Exs. 1
& 2. On February 10, 2003, Circuit Court Judge John C. Themelis sentenced Tankard to a
cumulative life plus eighty-five year sentence as to the aforementioned counts. Id. On June 23,
2004, the Court of Special Appeals of Maryland issued an unreported opinion which corrected

Tankard’s sentence by merging the sentence for first-degree assault with the sentence for
attempted armed robbery. The judgment of conviction was otherwise affirmed.1 ECF No. 4,
Ex. 2. The intermediate appellate court’s mandate was issued on July 23, 2004. Id. Tankard did
not seek further review of this decision with the Court of Appeals of Maryland. His judgment of
conviction became final on Monday, August 9, 2004. See Md. Rule 8-302 (petition for writ of
certiorari to be filed in the Court of Appeals of Maryland no later than 15 days after the Court of
Special Appeals issues its mandate).
It was not until February 1, 2013, however, that Tankard initiated post-conviction
proceedings in the Circuit Court for Baltimore City. Post-conviction relief was denied by Circuit
Court Judge Jeannie J. Hong on December 23, 2013. Id., Ex. 1 at pgs. 7-8.2 Tankard did not file
a timely application for leave to appeal the ruling, which became final on January 22, 2014. See
Md. Rule 8-204(b) (application for leave to appeal is to be filed within 30 days after entry of
judgment or order from which appeal is sought).3

The state court docket shows that an

application for leave to appeal was not filed in the Circuit Court until August 21, 2014, and was
denied and stricken as untimely by Circuit Court Judge Timothy J. Doory on November 20,
2014. Id., Ex. 1 at pgs. 8-9.
In filing the instant § 2254 petition, dated December 3, 2014, Tankard asserts the
following grounds:
1. He was forced to conduct a murder trial himself;
1

Judge Themelis resentenced Tankard on July 2, 2004.

2

When citing to page numbers, the court is referring to the page numbers noted on the
electronic docket.
3

In the “supplement” to his petition Tankard asserts that he originally filed his application
for leave to appeal in January of 2014, but because the prison was on lock-down, he could not place any
mail in the prison mailbox. ECF No. 1-1

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2. His original privately retained attorney withdrew from the criminal case and
he was forced to hire a Public Defender because his original attorney would
not refund the fees paid to her;
3. The Public Defender assigned to his case “never investigated anything” and
intimated that there was a “conflict”; and
4. The Public Defender assigned to his case had not been to the area of the
shooting, nor had he sent an investigator to the area to scrutinize the matter,
which resulted in his discharge, forcing Tankard to conduct the trial himself.
ECF No. 1 at pgs. 5 & 6.
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 under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(d).4 This one-year period is tolled while
properly filed post-conviction proceedings are pending.
4

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;
(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.

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III. Analysis
Affording the Petition the most generous of filing dates, it is deemed as filed by Tankard
on December 3, 2014, the date on which it was signed and presumably deposited with prison
authorities.5 See Houston v. Lack, 487 U.S. 266 (1988); United States v. Dorsey, 988 F. Supp.
917, 919-20 (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 “prison mailbox” rule).
Tankard’s one-year limitations period under 28 U.S.C. § 2244(d) began to run on
August 10, 2004. The one-year period was allowed to expire on August 10, 2005, as it was not
until February of 2013, when Tankard filed his first post-conviction petition in the Circuit Court
for Baltimore City. At that juncture, an additional seven years and five months had passed.
Consequently, this habeas petition was filed outside the statutory limitations period and is timebarred.
Tankard seemingly claims that the statute of limitations period should be equitably tolled
because “I suffered from ineffective assistance of counsel, I did not have a trial counsel,
therefore I was never made aware of the one year limitation.” ECF No. 1 at pg. 5, § 14. In his
reply he further claims that his state court appellate counsel [and his post-conviction attorney]

(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.
5

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 December 9, 2014. It bears a signature date of December 3, 2014, and shall be reviewed as filed
on that date.

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did not inform him of the “AEDPA…my right to file for federal habeas corpus within one year
after my direct appeal has been finally litigated.” ECF No. 7 at pg. 3.
It is true that under certain circumstances the AEDPA’s statute of limitations may be
subject to equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000);
United States v. Prescott, 221 F.3d 686, 687-88 (4th Cir. 2000); see also Wall v. Kholi, 131 S.
Ct. 1278, 1283 (2011). The Fourth Circuit has consistently held that a party seeking to avail
himself of equitable tolling must show that (1) extraordinary circumstances, (2) beyond his
control or external to his own conduct, (3) prevented him from filing on time. Rouse v. Lee, 339
F.3d 238, 246 (4th Cir. 2003) (en banc). Additionally, the movant must show that he employed
reasonable diligence in investigating and bringing his claims. Further, 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, 560 U.S. 631, 649 (2010) (citing Pace v. DiGulielmo, 544 U.S. 408, 418 (2005)).
Respondents, however, correctly observe that Tankard’s excuses do not prompt the
equitable tolling of the one-year limitation period under the law. Legal inexperience is not a
justification for equitable tolling. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)
(stating that ignorance of the law is not a basis for equitable tolling); Cross–Bey v. Gammon, 322
F.3d 1012, 1215 (8th Cir. 2003) (“Even in the case of an unrepresented prisoner alleging a lack
of legal knowledge or legal resources, equitable tolling has not been warranted.”) (internal
quotations omitted); Felder v. Johnson, 204 F.3d 168, 171-73 (5th Cir. 2000) (lack of notice of
AEDPA amendments and ignorance of the law are not rare and exceptional circumstances that

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warrant equitable tolling).6 In this case, however, Tankard 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. Tankard does not satisfy this
standard, and the court declines to issue a certificate of appealability.

Dated: May 27, 2015

____________/s/____________________
James K. Bredar
United States District Judge

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Other courts of appeals have similarly expressed that equitable tolling of the AEDPA
statute of limitations is to be employed sparingly. See, e.g., Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir.
2003) (applying the general rule that “‘attorney error, miscalculation, inadequate research, or other
mistakes have not been found to rise to the “extraordinary” circumstances required for equitable tolling’”
(citation omitted)); Beery v. Ault, 312 F.3d 948, 951 (8th Cir. 2002) (“Ineffective assistance of counsel
generally does not warrant equitable tolling.”); Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002)
(“[C]ounsel’s erroneous interpretation of the statute of limitations provision cannot, by itself, excuse the
failure to file [the petitioner's] habeas petition in the district court within the one-year limitations
period.”); Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (refusing to apply equitable
tolling where late filing was caused by attorney's use of ordinary mail to send petition from Atlanta to
Miami less than a week before it was due); see also Rouse, 339 F.3d at 246 (“Principles of equitable
tolling do not extend to garden variety claims of excusable neglect.” (citation omitted)).

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