Gray v. Warden of JCI et al
MEMORANDUM. Signed by Judge Ellen L. Hollander on 9/9/2021. (jb5, Deputy Clerk)(c/m-09-09-2021)
Case 1:20-cv-01976-ELH Document 21 Filed 09/09/21 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No.: ELH-20-1976
WARDEN OF JCI,
MARYLAND ATTORNEY GENERAL,
Petitioner John Gray, who is self-represented, filed a Petition For Writ Of Habeas Corpus,
pursuant to 28 U.S.C. § 2254. ECF 1 (the “Petition”). The Petition concerns his 1995 conviction
in the Circuit Court for Baltimore City for first degree murder and related offenses. Id. Petitioner
also filed a memorandum of law in support of the Petition, explaining his claims in more detail.
ECF 6. Additionally, petitioner filed motions for bail (ECF 13) and for an evidentiary hearing.
By Memorandum (ECF 15) and Order (ECF 16) of April 19, 2021, this court denied the
motions for release on bail (ECF 13) and for an evidentiary hearing (ECF 14). In addition, the
Court dismissed the Petition (ECF 1) as untimely. And, the court expressly declined to issue a
certificate of appealability. ECF 15; ECF 16.
Thereafter, Gray filed a “Request For Issuance Of A Certificate Of Appealability” (ECF
17), along with an appeal to the U.S. Court of Appeals for the Fourth Circuit. ECF 18. The Fourth
Circuit has directed this court to address Mr. Gray’s request for a certificate of appealability. ECF
17 at 1.
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Mr. Gray asserts that this court erred because it did not address all of his contentions in the
Petition. ECF 17 at 2. In particular, he claims that this Court did not address three of his grounds
in support of his claim that he was denied access to the courts. Id. at 2-3. Further, he complains
that the Court applied 28 U.S.C. § 2254 to his Petition, instead of 28 U.S.C. § 2241; improperly
denied his request for an evidentiary hearing to consider his denial of access to the courts and his
challenge to the State court’s jurisdiction; and incorrectly found that Mr. Gray’s appeal from the
denial of post-conviction relief was untimely. ECF 17 at 3-4.
Relevant to the issues raised by Mr. Gray, this court said in its Memorandum, ECF 15 at
Petitioner falls within the category of prisoners who were convicted prior
to the passage of the Antiterrorism and Effective Death Penalty Act of 1996.
Therefore, his Petition should have been filed on or before April 24, 1997.
Further, none of petitioner’s post-conviction filings operated to toll the
limitations period because they were filed after the expiration of the limitations
Notably, “the one year limitation period is also subject to equitable tolling
in ‘those rare instances where’ due to circumstances external to the party’s own
conduct ‘it would be unconscionable to enforce the limitation against the
party.’” 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, a petitioner must establish that either some wrongful conduct by
Respondents 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.
“[A]ny resort to equity must be reserved for those rare instances where . . . it
would be unconscionable to enforce the limitation period against the party and
gross injustice would result.” Id.
Petitioner contends that his Petition is timely because he is “arguing that
he is being unlawfully detained, restrained of his liberty in violation of the U.S.
Constitution and [is] not attacking the state courts conviction or sentence, as the
unlawful detention occurred prior to the courts conviction and sentence . . . and
are of a[n] equitable nature.” ECF 11 at 10. In his view, his claim that he was
unlawfully arrested or detained is one that may be raised at any time pursuant to
28 U.S.C. § 2241. Id. This argument is without merit.
Case 1:20-cv-01976-ELH Document 21 Filed 09/09/21 Page 3 of 6
A federal habeas petition filed by a person in custody pursuant to the
judgment of a State court must be treated as a petition filed pursuant to 28 U.S.C.
§ 2254, “even if they challenge the execution of a state sentence.” In re Wright,
826 F.3d 774, 779 (4th Cir. 2016). Further, “[g]uilty pleas are protected by a
strong presumption, one ‘deeply rooted in our jurisprudence’—the presumption
of regularity. United States v. Locke, 932 F.3d 196, 199 (4th Cir. 2019) (quoting
Parke v. Raley, 506 U.S. 20, 29 (1992)). Under that principle, “guilty pleas are
presumed to be valid.” Id. Any claimed procedural irregularity in petitioner’s
arrest or the manner in which he was charged were waived when petitioner
entered a guilty plea. See Parke, 506 U.S. at 29 (presumption of regularity
applies “even when the question is waiver of constitutional rights”). Adoption
of petitioner’s view that certain claims regarding jurisdiction are not subject to
the filing limitations contained in 28 U.S.C. § 2244 has no basis in law and
would operate to render the statute a nullity. The argument does not support a
finding that the limitations period should be tolled.
The claim asserted by petitioner that identifies a possible reason for the
untimely filing is the claim that the transcript of the guilty plea proceeding was
not made available to him, denying him access to the courts. This court
addressed Gray’s claim against the State of Maryland, the Clerk of the Circuit
Court for Baltimore City, and the chief court reporter for that court in a civil
action filed by petitioner in 2011. See ECF 7-1 at 21-31 (Gray v. Cir. Ct. for
Balt. City, et al., Civil Action ELH-11-3549 (D. Md.) at ECF 3). In particular,
this court dismissed petitioner’s complaint alleging violations of his First
Amendment right of access to the courts, substantive due process, and equal
protection as well as his claim that he was subjected to discriminatory conduct
by the defendants.3 Id. In doing so, this court observed, ECF 7-1 at 29:
Gray’s claim that he has been denied meaningful access to the courts
by Madden [a court reporter] and Frank Conway, Clerk of the
Circuit Court for Baltimore City, must also fail. Gray’s Application
for Leave to Appeal the post-conviction court’s denial of relief was
untimely. His inability to obtain appellate review of the merits of his
claim had nothing to do with the absence of any particular records
Specifically, petitioner alleged, ECF 7-1 at 22-23:
[T]hat his rights were violated because he was denied a copy of a transcript of
his guilty plea proceeding, which occurred on November 28, 1995; denied a
copy of a tape recording of the guilty plea proceeding; denied a copy of his postconviction transcript; and was not provided with proper notice before the tape
recording of the guilty plea was destroyed. He also claims the Clerk of the
Circuit Court for Baltimore City did not properly transmit the record of his postconviction case to the Clerk of the Maryland Court of Special Appeals.
Case 1:20-cv-01976-ELH Document 21 Filed 09/09/21 Page 4 of 6
in his case. Moreover, Gray admits that the post-conviction court
ultimately reviewed the tape of his guilty plea proceeding and
referenced the tape numerous times; thus, the post-conviction court’s
review of his claim was not incomplete, as he initially claimed. Gray’s
chief complaint is that he was unable to review the tape himself to
insure that the circuit court judge did not misstate what occurred during
the hearing. This grievance appears to have also been his concern with
respect to the post-conviction hearing, as indicated by his letters
attempting to obtain a copy of the tape recording of that hearing. Thus,
Gray cannot show an “actual injury” resulting from any acts or failures
to act by Madden or Conway. See Lewis v. Casey, 518 U.S. 343, 349
(1996) (“The requirement that an inmate alleging a violation of Bounds
[v. Smith, 430 U.S. 817 (1977)] must show actual injury derives
ultimately from the doctrine of standing, a constitutional principle that
prevents courts of law from undertaking tasks assigned to the political
Petitioner states that this court dismissed his civil action without prejudice.
ECF 11 at 12-13. He is mistaken. The complaint was dismissed with prejudice
on January 6, 2012 (Civil Action ELH-11-3549 at ECF 4) and petitioner did not
seek appellate review.
Of relevance here, petitioner knew about the absence of a recording of the
guilty plea proceeding more than 10 years ago, yet he did not file his habeas
corpus petition in this court until more than 10 years had passed. Thus, even if
the absence of the transcript could serve as a valid reason for some delay, it does
not serve to excuse the lengthy delay at issue here. See Parke, 506 U.S. at 30
(“On collateral review, we think it defies logic to presume from the mere
unavailability of a transcript (assuming no allegation that the unavailability is
due to governmental misconduct) that the defendant was not advised of his
rights.”). As indicated by this court in the prior civil action, governmental
misconduct was not the reason the transcript was unavailable, nor was it the
reason petitioner was unable to seek appellate review of the post-conviction
court’s decision denying relief.
Equitable tolling, as noted supra, is reserved for rare instances where it
would be “unconscionable to enforce the limitation period against the party and
gross injustice would result.” Harris, 209 F.3d at 330. Here, petitioner has not
delineated any viable basis for finding that the limitations period should be
equitably tolled to excuse the more than 20-year delay in filing his federal habeas
petition. Consequently, the petition shall be dismissed as untimely.
This court also said, ECF 15 at 7-8:
When a district court dismisses a habeas petition solely on procedural
grounds, a certificate of appealability will not issue unless the petitioner can
Case 1:20-cv-01976-ELH Document 21 Filed 09/09/21 Page 5 of 6
demonstrate both “(1) ‘that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right’ and (2) ‘that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.’” Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
In my view, petitioner cannot demonstrate a basis for issuance of a
certificate of appealability. Therefore, I decline to issue one. Nevertheless, Gray
may still request that the United States Court of Appeals for the Fourth Circuit issue
such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003) (considering
whether to grant a certificate of appealability after the district court declined to
To the extent that the request for a certificate of appealability is addressed to this court, Mr.
Gray simply expresses disagreement with the grounds for dismissal of his Petition, i.e., that it is
time-barred and that there is no basis for tolling the limitations period to allow Mr. Gray to file his
petition more than 20 years after the deadline passed. Mr. Gray’s assertion that his Petition should
have been interpreted as one filed pursuant to 28 U.S.C. § 2241 is without merit. The Fourth
Circuit has said that, “regardless of how they are styled, federal habeas petitions of prisoners who
are ‘in custody pursuant to the judgment of a State court’ should be treated as ‘applications under
section 2254’ for purposes of § 2244(b), even if they challenge the execution of a state sentence.”
In re Wright, 826 F.3d 774, 779 (4th Cir. 2016).
Mr. Gray asserts that his case presents an unusual circumstance and therefore a certificate
of appealability should issue. ECF 17 at 4. To the contrary, Mr. Gray’s guilty plea on November
28, 1995, followed by post-conviction proceedings initiated approximately ten years later, is
neither factually unusual nor complex. Simply put, the Petition was not filed within the time
required and Mr. Gray did not present a feasible argument to toll the limitations period.
Case 1:20-cv-01976-ELH Document 21 Filed 09/09/21 Page 6 of 6
As this court noted earlier, “petitioner cannot demonstrate a basis for issuance of a
certificate of appealability.” ECF 15 at 7. Therefore, I again decline to issue a certificate of
An Order follows.
September 9, 2021
Ellen L. Hollander
United States District Judge
As I said previously, ECF 15 at 7-8, Mr. Gray may ask the Fourth Circuit to issue such a
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