Barone v. Graham
Filing
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MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/16/2016. (c/m 8/16/16 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID WILLIAM BARONE,
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Petitioner,
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v.
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R. GRAHAM, et al.,
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Respondents.
Civil Action No. GLR-15-1149
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MEMORANDUM OPINION
THIS MATTER is before the Court on Petitioner David William Barone’s Petition for
Writ of Habeas Corpus filed pursuant to 28 U.S.C. §2254 (ECF No. 1). No hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons stated below, the Court will require
Respondents, Warden R. Graham and the Office of the Attorney General of Maryland
(collectively, the “State”), to file an additional response.
I.
BACKGROUND
Barone received a two-day jury trial on June 20 and 21, 2005 in the Circuit Court for
Wicomico County on charges of attempted murder and related offenses. (ECF No. 8-2). Barone
was found guilty of first degree assault, second degree assault, reckless endangerment, and a
weapon offense. (Id.). Barone was sentenced to serve two concurrent terms of eighteen years
each and a three-year consecutive term for the weapon offense. (Id.).
Barone appealed his conviction to the Court of Special Appeals of Maryland which
issued an unreported opinion on June 27, 2006 partially vacating a restitution award entered by
the Circuit Court1 but otherwise affirming the convictions. Further review was denied by the
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Pursuant to the decision of the appellate court, a new restitution hearing was held on
August 17, 2007. (ECF No. 12 at Ex. 1 and 2). Upon resolution of the issue by the Circuit
Court of Appeals on September 15, 2006. Reconsideration of that decision was denied on
August 26, 2008. (ECF No. 12 at p. 3); see Barone v. Bishop, Civil Action GLR-12-1586 at
ECF 12, Ex. 6. Thus, Barone’s conviction became final for purposes of federal habeas filing
deadlines on November 24, 2008, the day the time for filing a Petition for Writ of Certiorari with
the United States Supreme Court expired. See Sup.Ct. Rule 13.1 (setting 90-day time limit for
filing a petition for writ of certiorari).
Barone filed a petition for post-conviction relief on March 3, 2009 in the Circuit Court
for Wicomico County. (ECF No. 12 at Ex. 1). At that time, 98 days had run on the 365-day time
limit for filing a federal habeas corpus petition, with the remaining 267 days stayed while postconviction proceedings were pending. On July 16, 2010, the Circuit Court issued an opinion
denying post-conviction relief. (Id.). Barone filed an application for leave to appeal the postconviction decision which was summarily denied by the Court of Special Appeals on April 12,
2012, with the mandate issuing on May 16, 2012. See Barone v. Bishop, Civil Action GLR-121586 at ECF No. 12, Ex. 13 (D. Md.).
On May 29, 2012, Barone filed a Petition for Writ of Habeas Corpus in this Court. See
Barone v. Bishop, Civil Action GLR-12-1586 at ECF No. 1 (D. Md.). The respondents asserted
in answer to the Order to Show Cause in that case that Barone had included in his Petition claims
that had not yet been considered by the appropriate state court. (Id. at ECF 12). Barone was
directed to file a Reply and was further advised that he could waive consideration of the claims
not yet exhausted or he could withdraw the petition, risking a subsequent petition being found
untimely if his effort to exhaust the claims were not completed in time to meet the federal habeas
Court, Barone filed an appeal with the Court of Special Appeals resulting in an unreported
January 28, 2009 opinion affirming the Circuit Court. Id. The mandate for that opinion issued
on March 2, 2009. (Id.).
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deadline. (Id. at ECF 16). Barone chose to withdraw the petition, (id. at ECF No. 19), and the
petition was dismissed without prejudice on March 4, 2013. (Id. at ECF No. 20).
On March 13, 2013, Barone filed a motion to reopen post-conviction proceedings with
the Circuit Court for Wicomico County. (ECF No. 12 at Ex. 1). His application for leave to
appeal the order denying his motion to reopen was summarily denied by the Court of Special
Appeals on April 16, 2015; the mandate issued on May 18, 2015. (Id.). The instant Petition for
Writ of Habeas Corpus was filed with this Court on April 22, 2015. (ECF No. 1). In its
Response to Barone’s Petition, the State asserts the Petition is time-barred. (ECF No. 12). The
Court granted Barone twenty-eight days to file a Reply, which he did on July 29, 2015. (ECF
No. 14).
II.
A.
DISCUSSION
Legal Standard
A one-year statute of limitations applies to habeas petitions in non-capital cases for an
individual convicted in a state court. See 28 U.S.C. § 2244(d). 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
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(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
post-conviction 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.
“[T]he one year limitation period is also subject to equitable tolling in >those rare
instances where B due to circumstances external to the party=s own conduct B it would be
unconscionable to enforce the limitation against the party and gross injustice would result.’” Hill
v. Braxton, 277 F. 3d 701, 704 (4th Cir. 2002) (citing Harris v. Hutchinson, 209 F. 3d 325, 330
(4th Cir. 2000)). To be entitled to equitable tolling, Barone must establish that either some
wrongful conduct by the State contributed to his delay in filing his petition or that circumstances
that were beyond his control caused the delay. See Harris, 209 F. 3d at 330.
B.
Analysis
By the time Barone returned to this Court via the instant Petition for Writ of Habeas
Corpus, the one-year filing deadline had expired. Specifically, the period of time that had been
tolled (267 days) began to run again on May 16, 2012, the date the mandate issued from the
Court of Special Appeals regarding his application for leave to appeal the denial of postconviction relief, and expired on February 7, 2013. The statutory time limit was not tolled, as
Barone would have it, while his 2012 Petition was pending with this Court, nor was it tolled
when his motion to reopen post-conviction proceedings was filed because it had already expired.
In his Reply, Barone relies upon the fact that the State filed two Motions for Extensions
of Time in his 2012 federal habeas case, delaying the time for him to attempt exhaustion of state
remedies on the claims not yet exhausted. (ECF No. 14). Additionally, he seeks equitable
tolling of the limitations period for the period of time his 2012 Petition was pending. (Id. at 3–
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4). It is clear that Barone has not been dilatory in his effort to return to state court to exhaust the
claims raised in the 2012 petition, nor has he been dilatory in returning to this Court. The State
asserts in a conclusory fashion that Barone has not stated a basis for equitable tolling, but it does
not address the matter in any meaningful way. Before this Court determines whether Barone is
entitled to equitable tolling of the limitations period, the State will be required to file a Reply
addressing the matter.
Specifically, the State shall address whether the delay in resolving the first petition filed
with this Court constitutes extraordinary circumstances that prevented Barone from timely filing
the instant petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (“[A] ‘petitioner’ is
‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418(2012))). A separate Order follows.
Entered this 16th day of August, 2016
/s/
____________________________
George L. Russell, III
United States District Judge
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