Allen v. Acting Warden of WCI et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paula Xinis on 7/24/2019. (c/m 7/24/19 sp2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEROME LESLIE ALLEN,
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Petitioner
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v
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ACTING WARDEN OF WCI, and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
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Respondents
Civil Action No. PX-17-2917
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*
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MEMORANDUM OPINION
Petitioner Jerome Leslie Allen petitions this Court under 28 U.S.C. ' 2254 to review his
2016 revocation of probation entered by the Circuit Court for Anne Arundel County, Maryland.
ECF No. 1. Respondents oppose the Petition because Allen has failed to exhaust state court
remedies. ECF No. 4. Allen has replied. ECF No. 5. For the following reasons, the Petition is
denied and dismissed without prejudice.
In December of 2006, Allen was found guilty after a jury trial in Anne Arundel County
Circuit Court of armed robbery, robbery, conspiracy, assault, and giving a false statement to the
police. ECF No. 1, No. 4-4. He was sentenced to a 20-year term of confinement, with all but 17
years suspended. Id. Allen appealed the armed robbery conviction and certain pretrial decisions
concerning motions to exclude and to suppress evidence. ECF No. 4-2 at 2. The Maryland Court
of Special Appeals affirmed Allen’s judgment, the mandate for which issued on September 26,
2008. ECF No. 4-4. Allen did not petition for a writ of certiorari to the Maryland Court of Appeals.
ECF No. 4-1. He did pursue post-conviction relief which the Circuit Court denied on March 30,
2010. Id. at 28.
On February 22, 2016, Allen’s probation was revoked after a hearing in Anne Arundel
Circuit Court, and Allen was sentenced to ten years’ confinement. ECF No. 4-1 at 29, 31; ECF
No. 1. Although Allen filed an application for leave to appeal the revocation, he did not articulate
any grounds in support. ECF No. 4-5 at 4. The Court of Special Appeals denied the applicatio n
and the mandate issued on November 18, 2016. Id. at 2-3. Allen did not pursue further review.
ECF No. 1.
Allen’s Petition before this Court focuses exclusively on the revocation of probation. Allen
argues that he was denied the right to have his case heard by an impartial tribunal, and that the
sentence is unconstitutional and tantamount to slavery. ECF No. 1. Allen concedes that he had
not raised any claims previously on direct appeal but maintains that any further review in state
court would be insufficient. ECF Nos. 1, 5.
Although the Court struggles to discern a legally cognizable federal claim, even assuming
Allen has pleaded a proper claim, the Petition cannot proceed for failure to exhaust state court
remedies. 28 U.S.C. § 2254(b) and (c); see also Preiser v. Rodriguez, 411 U.S. 475, 491 (1973).
The purpose of the exhaustion requirement is to “give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
A petitioner may exhaust his claims either on direct appeal or in post-convictio n
proceedings. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (“To satisfy the exhaustio n
requirement, a habeas petitioner must fairly present his claim to the state’s highest court.”),
overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Bradley v.
Davis, 551 F. Supp. 479, 481 (D. Md. 1982) (“[A] failure to appeal from a denial of relief in a state
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post-conviction proceeding constitutes a failure to exhaust state remedies,” unless “at the time of
filing the federal habeas corpus petition, it appears that petitioner has no remaining available state
remedies.”). To demonstrate exhaustion, the Petitioner must show that he sought review and relief
was denied. Preiser, 411 U.S. at 477, 491; 28 U.S.C. § 2254(b) and (c). Where, as here, a claim
is not automatically reviewable on direct appeal, exhaustion is satisfied by filing an application for
leave to appeal to the Maryland Court of Special Appeals. See Md. Code Ann., Cts. & Jud. Proc.
' 12-302(g). If the Court of Special Appeals denies the application, the claim is exhausted. See
Md. Code Ann., Cts. & Jud. Proc. ' 12-202.
Allen filed an application for leave to appeal the violation of his probation. However, he
presented no arguments or grounds to afford him relief.
Consequently, the Court of Special
Appeals was not given the opportunity to consider the claims he presents here.
To the extent Allen can no longer pursue relief on direct appeal, he still may be able to
obtain review through post-conviction relief. To qualify for post-conviction relief, the petitioner
must be serving a sentence of incarceration, or on parole or probation for that conviction. See
Uniform Post Conviction Procedure Act, Md. Code, Crim. Proc. §7-101. The post-convictio n
petition must be filed in the Circuit Court where the defendant was convicted and within ten years
from the date of sentencing.
Id. §§7-102–03. Although the defendant is limited to one post-
conviction petition for each trial or sentence, probation revocation proceedings allow for a separate
post-conviction petition if the petition raises new issues that could not have been raised earlier. Id.
§ 7-103(a); Smith v. State, 694 A.2d 182, 187 (1997) (“[W]e now hold that a probation revocation
proceeding is a ‘trial’ within the meaning of [the Uniform Post Conviction Procedure Act], and a
separate single petition limit applies to such a proceeding when . . . the petition raises new issues
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that have come into existence as a result of the proceeding and, consequently, could not have been
raised earlier”). Further, post-conviction proceedings may be reopened in the interests of justice.
See Md. Code Ann., Crim. Proc. Art., § 7-104; Booth v. State, 346 Md. 246, 247 (1997) (directing
reopening of post-conviction proceedings to consider petitioner’s Brady claim).
If a defendant is denied relief on his post-conviction petition, he must file an applicatio n
for leave to appeal to the Court of Special Appeals within 30 days of the order denying relief. See
Md. Code Ann., Crim. Proc. ' 7-109. If the Court of Special Appeals denies the application, no
further review is available and the claim is exhausted. See Md. Code Ann., Cts. & Jud. Proc. ' 12202(5). If the application is granted but relief on the merits of the claim is denied, the petitioner
must file a petition for writ of certiorari to the Maryland Court of Appeals. See Williams v. State,
292 Md. 201, 210–11 (1981).
Allen concedes that he has not pursued a post-conviction petition challenging the violatio n
of probation or the sentence imposed on the revocation. Allen must do so to satisfy exhaustio n
requirements prior to filing in this Court. The Petition in this Court, therefore, is dismissed without
prejudice so that Allen may exhaust state remedies.
When a district court dismisses a habeas petition solely on procedural grounds, a certificate
of appealability will not issue unless the petitioner can demonstrate both “(1) ‘that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutio na l
right’ and (2) ‘that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.’” Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. Daniel,
529 U.S. 473, 484 (2000)). Allen fails to meet this standard and a Certificate of Appealability
shall not issue.
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A separate Order follows.
7/24/19
/S/
Paula Xinis
United States District Judge
Date
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