Gopshes v. Foxwell et al

Filing 7

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 1/31/2018. (jb5, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

COKIE JOE GOPSHES, JR.

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Petitioner,

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v.

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RICK FOXWELL, et al.,

Civil Action No. GLR-17-2324

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Respondents.

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*****

MEMORANDUM OPINION
THIS MATTER is before the Court on Petitioner Cokie Joe Gopshes, Jr.’s Petition
for Habeas Corpus seeking relief under 28 U.S.C. § 2254 (2018). The Petition arises
from his 2016 convictions in the Circuit Court for Howard County, Maryland of theft
over $100,000.00 and the unlawful taking of a motor vehicle. (Compl., ECF No. 1). The
Petition is ripe for disposition and no hearing is necessary. See Local Rule 105.6 (D.Md.
2016). For reasons that follow, the Court will dismiss the Petition.
I.

BACKGROUND

A jury found Gopshes guilty of the aforementioned theft and taking of a motor
vehicle charges on July 29, 2015.

The two offenses were merged for sentencing

purposes, and on February 26, 2016, he was sentenced to a 15-year term.

In his

counseled appeal, Gopshes raised the following two questions “reformulated” by the
Court of Special Appeals of Maryland: Did the trial court properly exercise its discretion
in permitting Gopshes to be impeached with his prior theft convictions, and was the

evidence sufficient to prove Gopshes knew that the tractor-trailer was stolen. (ECF No.
5-2). In an unreported opinion filed on April 19, 2017, the intermediate Court of Special
Appeals of Maryland responded in the affirmative, upholding Gopshes’ convictions.
Gopshes did not seek certiorari review to the Court of Appeals of Maryland. To date,
Gopshes has not filed a post-conviction petition in the state court. (ECF No. 5-1).
The instant Petition, received for filing on August 14, 2017, raises Fourth
Amendment claims, alleging a warrantless cellphone search and an illegal search and
seizure of his mother’s residence, as well as a due process violation. (Compl. at 5, ECF
No. 1). Gopshes also raises an Eighth Amendment claim related to his ongoing receipt of
medical care for stomach, dietary, and pain medication issues.1 (Id.). Gopshes seemingly
acknowledges that the grounds are being raised in this Court for the first time as he
“asked my lawyer to raise the issues.” (Id. at 9, § 16). Respondents have filed an
Answer to the Petition.2 (ECF No. 5).
II.

ANALYSIS

State exhaustion “is rooted in considerations of federal-state comity,” and in
Congressional determination through federal habeas laws “that exhaustion of adequate
state remedies will ‘best serve the policies of federalism.’”

Slavek v. Hinkle, 359

F.Supp.2d 473, 479 (E.D.Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491–92
1

Gopshes’ Eighth Amendment claim sounds as one for insufficient medical care
under the Eighth Amendment to the United States Constitution. As he has filed a
separate 42 U.S.C. § 1983 lawsuit related to his medical treatment received in the
Division of Correction, see Gopshes v. Clem, et al., No. GLR-17-3303 (D.Md.), the
Eighth Amendment claim raised here shall be dismissed without prejudice.
2
In response, Gopshes filed a letter with the Court indicating that he wrote “for
post-conviction to be motioned in the [Office of the Maryland] Public Defender.”
2

& n.10 (1973)). The purpose of the exhaustion requirement is “to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”
Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted).
Exhaustion turns on two aspects. First, a petitioner must utilize “all available
remedies before he can apply for federal habeas relief.” Breard v. Pruett, 134 F.3d 615,
619 (4th Cir. 1998) (citing Matthews v. Evatt, 105 F.3d 907, 910–11 (4th Cir. 1997)).
Under this aspect of exhaustion, a habeas petitioner “shall not be deemed to have
exhausted the remedies available in the courts of the State . . . if he has the right under the
law of the State to raise, by any available procedure, the question presented.” 28 U.S.C.
§ 2254(c).

Lack of exhaustion precludes federal habeas relief.

See 28 U.S.C. §

2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in the courts of the State
. . . .”).
The second aspect of exhaustion requires a petitioner to have offered the state
courts an adequate opportunity to address the precise constitutional claims advanced on
federal habeas. “To provide the State with the necessary ‘opportunity,’ the prisoner must
‘fairly present’ his claim in each appropriate state court (including a state supreme court
with powers of discretionary review), thereby alerting that court to the federal nature of
the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513
U.S. 364, 365–66 (1995)).

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The exhaustion requirement is satisfied by seeking review of the claim in the
highest state court with jurisdiction to consider the claim. See O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b) and (c). In Maryland, this may be
accomplished by raising certain claims on direct appeal and by way of post-conviction
proceedings. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); Spencer v.
Murray, 18 F.3d 237, 239 (4th Cir. 1994). Exhaustion demands that the petitioner “do
more than scatter some makeshift needles in the haystack of the state court record. The
ground relied upon must be presented face-up and squarely; the federal question must be
plainly defined. Oblique references which hint that a theory may be lurking in the
woodwork will not turn the trick.” Mallory v. Smith, 27 F.3d 991, 994–95 (4th Cir.
2001); cf. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988). The state courts are to
be afforded the first opportunity to review federal constitutional challenges to state
convictions in order to preserve the role of the state courts in protecting federally
guaranteed rights. See Preiser, 411 U.S. at 490.
Exhaustion is not required if, at the time a federal habeas corpus petition is filed, a
petitioner has no available state remedy. See Teague v. Lane, 489 U.S. 288, 297–98
(1989); Bassett v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990). Conversely, “[a]n
applicant shall not be deemed to have exhausted the remedies available in the courts of
the State . . . if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c); see O’Sullivan, 526 U.S. at 844
(“Section 2254(c) requires only that state prisoners give state courts a fair opportunity to
act on their claim.”).
4

The claims raised here were not raised on direct appeal, nor presented on postconviction review, which plainly remains available to Gopshes.

The claim is

unexhausted, and Gopshes has failed to articulate special circumstances which would
excuse exhaustion. The Petition shall be dismissed without prejudice to afford Gopshes
the opportunity to exhaust his claims in state court by seeking review in a post-conviction
proceeding. See Md. Code Ann., Crim. Proc. Art., § 7-101, et seq. He is cautioned that
he has one-year from the finality of his direct appeal to exhaust his state court remedies,
excluding any time his post-conviction petition proceeding remains pending, and to refile his Petition in this Court.
When a district court dismisses a habeas petition, a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2018). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find this Court's assessment of his
constitutional claims is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller–El v. Cockrell, 537 U.S. 322, 336
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683
(4th Cir. 2001); see also Buck v. Davis, ___ U.S. ___, 137 S. Ct. 759, 773–74 (2017).
Here, the legal standard for the issuance of a certificate of appealability has not been met.
The Court declines to issue a certificate of appealability.

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III.

CONCLUSION

For the foregoing reasons, Gopshes’ Petition for Habeas Corpus will be dismissed
without prejudice. A separate Order follows.
Entered this 31st day of January, 2018

/s/
George L. Russell, III
United States District Judge

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