Allen v. Bohrer

Filing 11

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 6/4/2024. (c/m to P on 6/4/2024 heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEROME LESLIE ALLEN,
Petitioner,
v.

Civil Action No.: PJM-22-627

WILLIAM S. BOHRER,
Respondent.

MEMORANDUM OPINION
Self-represented Petitioner Jerome Leslie Allen filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, challenging both his 2006 convictions in the Circuit
Court for Anne Arundel County, Maryland for armed robbery, conspiracy to commit armed
robbery, second-degree assault, and giving a false statement to a police officer, and his 2016
judgment of conviction for violating his probation in the same case. ECF No. 1.1 Respondent
filed an Answer arguing that the Petition is time-barred under 28 U.S.C. § 2244(d). ECF No.
6. Allen responded. ECF Nos. 8, 9, 10.
There is 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. 2023); 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 the reasons that follow, the Petition is dismissed, and a certificate of
appealability shall not issue.

Citations refer to the pagination assigned by the Court’s Case Management and Electronic Case Files
system.
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I.

BACKGROUND
On December 8, 2005, Allen was convicted by a jury of armed robbery, conspiracy to

commit armed robbery, second degree assault, and giving a false statement to a police officer.
ECF No. 6-1 at 17, 19-20. On June 7, 2006, the court sentenced Allen. Id. at 86. It imposed a
term of
twenty years for the armed robbery, with all but seventeen years suspended, the
first ten of which was to be served without the possibility of parole. The court
also sentenced Allen to a concurrent twelve years on the conspiracy charge, with
two years suspended, and sentenced [Allen] to a term of six months for the false
imprisonment conviction, all of which was suspended.
ECF No. 6-1 at 206. A probation order was issued that same day. Id. at 132-34.
Allen filed a timely motion for reconsideration of his sentence pursuant to Md. Rule 4345(e) (id. at 136-38), which was denied on June 23, 2006. Id. at 139.
Allen also filed a timely application for review of his sentence by a three-judge panel.
Id. at 140-41. On March 6, 2007, the panel granted Allen’s motion:
The Panel has determined that an appropriate sentence for [Allen] is twenty
years, suspend all but ten years, for count l; six months, suspended, and a
$500.00 fine, suspended, for count 10, to run consecutive to count 1; and twelve
years, suspend two, concurrent to counts 1 and 10, for count 11. The Panel has
also determined that the five years of supervised probation imposed was fair and
just, and as such the term of probation will remain unchanged. The Panel will,
however, modify the probation imposed to eliminate the anger management
therapy requirement and replace it with a requirement that [Allen] undergo a
psychological evaluation and treatment.
ECF No. 6 at 147. The circuit court issued an amended commitment record reflecting the
modification to Allen’s sentence.2 Id. at 151-53.

On July 27, 2010, in response to an inquiry from the Maryland Department of Public Safety
and Correctional Services (“DPSCS”) seeking clarification regarding the modification of
Allen’s sentence for armed robbery to 10 years’ incarceration, the court advised that sentence
was a statutory mandatory minimum sentence under Maryland law and ordered an amended
commitment record be issued. ECF No. 6-1 at 249, 256.
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C.

Direct Appeal
Allen noted a timely appeal to the Appellate Court of Maryland (formerly known as

the Maryland Court of Special Appeals). Id. at 205. The Appellate Court of Maryland affirmed
Allen’s convictions by unreported opinion filed on August 27, 2008: the court’s mandate issued
on September 26, 2008. Id. at 205-232. Allen did not seek further review by petition for
certiorari in the Supreme Court of Maryland (formerly known as the Maryland Court of
Appeals). See generally, ECF No. 6-1 at 17-18, 37.
D.

Post Conviction Proceedings
Allen did not file anything else regarding his criminal case until March 30, 2009, when

he filed a pro se petition for post-conviction relief in state circuit court. ECF No. 6-1 at 37,
233-38. The State answered the petition and the circuit court held a hearing on March 11, 2010.
Id. at 18. Allen was represented by counsel at the hearing. Id. at 14. On March 30, 2010, the
post-conviction court denied Allen’s petition for postconviction relief. Id. at 39.
On December 10, 2015, over five years after Allen’s post-conviction petition was
denied, Allen filed an untimely application for leave to appeal the denial of his petition. Id. at
266. In his application, Allen stated that he did not learn of the results of his post-conviction
petition until a year after a decision was entered and he did not know he had the right to appeal
the denial of post-conviction relief until that summer when his case manager advised him of his
rights. Id.
On December 21, 2015, the Circuit Court for Anne Arundel County issued an order to
show-cause, directing Allen explain why his application should not be stricken as untimely.
ECF No. 6-1 at 267. Allen responded and repeated that he was not aware that his post-conviction

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petition had been denied until a year after the court issued its order, and he was not informed of
his right to file an application for leave to appeal. Id. at 268-69.
On January 20, 2016, the Circuit Court for Anne Arundel County ordered that an
evidentiary hearing be held to determine if Allen was entitled to file a belated application for
leave to appeal. Id. at 272-73. After a hearing on June 6, 2016, Allen was granted 30 days to
file a belated application for leave to appeal the denial of his post-conviction petition. Id. at 281.
Allen did not, however, file an application for leave to appeal challenging the post-conviction
court’s ruling. Id. at 70.
E. Allen’s Violation of Probation
On June 26, 2015, DPSCS charged Allen with violating his probation by, among other
things, incurring additional criminal convictions. ECF No. 6-1 at 262-64. On February 22,
2016, the Circuit Court for Anne Arundel County conducted a violation of probation (“VOP”)
hearing. Id. at 274. Allen was found guilty of violating his probation and sentenced to 10 years’
incarceration, to be served concurrent with any sentence he was then serving. Id. The record
reflected that Allen’s probation was “closed – unsatisfactory.” Id. at 274, 276.
Allen filed a timely application for leave to appeal his VOP judgment of conviction (id.
at 277) which the Appellate Court of Maryland summarily denied on October 19, 2016. Id. at
289-90. The court’s mandate issued on November 18, 2016. Id. at 291.
F. Efforts to Reopen Post-Conviction Proceedings
Allen filed a second petition for post-conviction relief on August 6, 2019. ECF No. 6-1
at 338-51. The petition was denied without a hearing on January 22, 2021. Id. at 52.
On April 22, 2021, Allen filed a motion to reopen post-conviction proceedings. ECF
No. 6-1 at 52. On May 11, 2021, the court directed that Allen either pay the filing fee or request

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a fee waiver. Id. at 52, 405. Instead of complying with the court’s directive, on August 12,
2021, Allen filed a “Request for Judgment in Favor of Petitioner.” Id. at 408-09. On August 16,
2021, the court dismissed Allen’s motion to reopen for failure to comply with the May 11, 2021
order. Id. at 408. Allen noted an appeal. Id. at 412. On September 27, 2021, the post- conviction
court struck its previous order dismissing Allen’s motion to reopen stating that the “matter shall
continue in the normal course.” Id. at 413. That same day, however, the court issued a
memorandum opinion and order denying Allen’s motion to reopen, finding Allen had not
“demonstrated that it [was] in the interests of justice to reopen” the proceedings and Allen had
failed to “demonstrate[] that extraordinary cause exists to review [his] petition even though it
was filed more than ten years after the sentence was imposed.” Id. at 414-15. Allen noted an
appeal. Id. at 416.
On October 12, 2021, the Appellate Court of Maryland directed Allen to file a more
detailed application for leave to appeal the denial of his motion to reopen instead of the notice
of appeal that he filed. ECF No. 6-1 at 416. In compliance with the court’s directive, Allen filed
a “Supplemental Application for Leave to Appeal” the denial of his motion to reopen. Id. at
419. The Appellate Court of Maryland summarily denied Allen’s application on February 2,
2022 (id. at 542), and the court’s mandate issued on March 7, 2022. Id. at 549.
H. Additional State Proceedings
Undeterred, Allen continued to seek review of both his underlying criminal conviction
and VOP. On October 12, 2017, he filed a motion to rescind the court’s commitment order,
which was denied by marginal order on November 3, 2017. ECF 6-1 at 297. Thereafter, Allen
filed at least eleven state habeas petitions and two motions to correct an illegal sentence
pursuant to Maryland Rule 4-345(a). See generally ECF 6-1 at 34-55. On August 18, 2021, he

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noted an appeal from the denial of his ninth state habeas petition. Id. at 410. On January 28,
2022, the Appellate Court of Maryland dismissed that appeal as unauthorized by law and
untimely (id. at 540), with the mandate issuing on March 2, 2022. Id. at 548.
I.

Federal Petition

On March 3, 2022, Allen filed his Petition in this Court.3 See ECF No. 1-2; Houston v.
Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner’s submission is deemed to have been
filed on the date it was deposited in the prison mailing system).
Allen asserts seven grounds for habeas relief. ECF No. 1 at 5-7. First, he claims that he
received ineffective assistance of trial counsel when counsel failed to object to an erroneous
jury instruction. Id. at 5. Second, Allen contends that the trial court erred in reading jury
instructions. Id. Third, he alleges the trial court erred in allowing the jury to consider and render
a verdict on an uncharged crime. Id. Fourth, Allen asserts trial, appellate, and post-conviction
counsel were each ineffective because they failed to raise the foregoing claims at trial, on
appeal, and during post-conviction proceedings. Id. Fifth, Allen states that he was denied due
process because “Process was not legally issued against me, myself and I . . . .Maryland has
tried and convicted the wrong person and then amended the titling and declaration to resemble
my name or its derivatives.” Id. at 6. Sixth, Allen alleges that his VOP counsel rendered
ineffective assistance because Allen “did not receive notice of what violations were alleged,”
“was not allowed to present evidence,” “was not allowed to confront adverse witnesses,” “did
not have an independent decision maker,” and “did not receive a written report of the findings.”

It is unclear when Allen deposited his Petition in the prison’s mailing system. However, because the
envelope is marked as received by the mail facility at the prison on March 3, 2022 (ECF No. 1-2 at 2),
the Court shall consider that date as the filing date.
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Id. Lastly, Allen alleges that he is subjected to cruel and unusual punishment but he does not
provide any factual allegations in support of this claim. Id.
II.

DISCUSSION
The threshold issue in this case is the timeliness of the petition. Only if the Petition is

timely may the Court reach the merits of Allen’s claims.
A one-year statute of limitations applies to habeas petitions in non-capital cases for
persons convicted in state court. See 28 U.S.C. § 2244(d)(1); Wall v. Kholi, 562 U.S. 545,
550 (2011). Section 2244(d)(1) provides that:
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.
28 U.S.C.§ 2244(d)(1).
Where, as here, claims presented in a single petition ripen on different dates, or arise
out of different judgments of conviction, the statute of limitations is analyzed as to each claim.
Zach v. Tucker, 704 F. 3d. 917, 918 (11th Cir. (en banc) cert. denied. 571 U.S. 863 (2013).

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A.

Judgment of Conviction

Where a defendant has been granted a resentencing on remand after appeal, the statute
of limitations under 28 U.S.C. § 2244(d)(1)(A) runs from the date of the judgment entered at
resentencing. Woodfolk v. Maynard, 857 F. 3d 531, 542 (4th Cir. 2017).4 Accordingly, Allen’s
underlying conviction became final for direct review purposes on October 14, 2008,5 or 15 days
after the Appellate Court of Maryland’s mandate issued affirming Allen’s convictions, and
when the time for filing a petition for certiorari in the Supreme Court of Maryland expired. See
Md. Rule 8-302(a).
B.

Violation of Probation

After Allen’s probation was revoked on February 22, 2016, he filed an application for
leave to appeal which was summarily denied on October 19, 2016. The court’s mandate issued
on November 18, 2016. Allen’s VOP conviction became final on that date because the Supreme
Court of Maryland is without jurisdiction to grant certiorari review after the summary denial
of an application for leave to appeal the revocation of probation. Md. Code Ann., Cts. and Jud.

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A revocation of probation where the previously suspended sentence is reimposed does not restart the
date of finality for the original judgment of conviction for purposes of determining the limitations period.
The revocation of probation and imposition of the unserved sentence is not a true resentencing. Rather
the probation revocation order is analogous to a new, independent judgment, one that assessed a penalty
based on the time left on the original judgment. Compare Woodfolk, 857 F.3d at 542 (“when a state
court defendant has been granted a resentencing” following a reversal on appeal, “the limitations period
under § 2244(d)(1)(A) runs from the judgment entered upon resentencing” with Lanahan v. Helsel, Civil
Action No. JFM-15-2133, 2016 WL 4742231 at *1 (D. Md. Sept. 8, 2016) (applying separate limitations
analysis to claims attacking original judgment of conviction and claims which attacked the probation
violation judgment); see also Williams v. Vasbinder, Civ. No. 05-73471-DT, 2006 WL 2123908 at *2
(E.D. Mich. July 27, 2006) (holding “the one-year statute of limitations for challenging any substantive
issues relating to a trial court judgment which imposes probation begins to run when the judgment
imposing probation becomes final. . . . By contrast, any claims arising from the revocation of probation
would begin to run when the judgment that revoked the probation became final….” (citations omitted).
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Fifteen days from September 26, 2008, fell on a Saturday. The following Monday was Columbus Day,
a federal holiday. As such, Allen’s filing deadline was extended to Tuesday, October 14, 2008. Md.
Rule 1-202(a).

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Proc. § 12-202; Mahia v. State, 474 Md. 648 (2021). As such, the one-year federal limitations
period for claims regarding Allen’s VOP expired on November 20, 2017.
C.

Statutory tolling

Pursuant to § 2244(d)(2), “[t]he 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.” 28 U.S.C.
§ 2244(d)(2).
Allen initiated state post-conviction proceedings on March 30, 2009 (167 days after his
underlying conviction became final). The post-conviction petition was denied on March 30,
2010, but as discussed above Allen did not file an application for leave to appeal until December
10, 2015 (2081 days later). While the state court granted Allen 30 days to file a belated
application for leave to appeal the denial of his post-conviction petition, Allen failed to file the
application. Even if the order granting Allen leave to file a belated application for leave to
appeal excused the 2081 that had elapsed in Allen’s case, as discussed below his federal petition
is nevertheless untimely.
Between November 18, 2016, when the Appellate Court of Maryland summarily denied
Allen’s application for leave to appeal the probation revocation and his motion to rescind
commitment order filed on October 12, 2017, 328 days elapsed without any properly filed postconviction proceeding pending. On December 4, 2017, the state court denied Allen’s Motion
for Immediate Court Release. One hundred thirty six days later, Allen filed his first state habeas
petition. That petition was denied on April 27, 2018. Allen did not file his motion to correct
illegal sentence under Md. Rule 4-345(a) until August 14, 2018; thus a period of 109 days
passed where no properly filed post-conviction proceeding was pending. Another 123 days

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elapsed from the denial of Allen’s motion to correct illegal sentence on August 30, 2018, and
the filing of his second state habeas petition on December 31, 2018. An additional seven days
passed without a properly filed state post-conviction proceeding pending between the denial of
Allen’s second state habeas petition on February 7, 2019, and the filing of his third state habeas
petition on February 14, 2019. Eleven more days went by between the denial of his third state
habeas petition on April 18, 2019, and the filing of his fourth state habeas petition on April 29,
2019. Twenty days then passed with no proceedings pending between the denial of the fourth
habeas petition on July 17, 2019, and Allen’s fist motion to reopen state post-conviction
proceedings on August 6, 2019. Allen filed additional concomitant post-conviction motions in
state court and then on March 2, 2021, the court denied Allen’s eighth state habeas petition
terminating all then pending state proceedings. Thirty-five days later, Allen filed a ninth petition
for habeas relief. Allen kept his state proceedings active until April 8, 2022, when the state court
denied his eleventh habeas petition.6
Even when starting from the finality of the VOP judgment, November 18, 2016, the
record evidence demonstrates that Allen’s federal petition is untimely. As discussed above,
more than 365 days elapsed where no state post-conviction proceedings were pending before
Allen filed this case. As such, his federal habeas Petition, challenging both his underlying
judgment of conviction and the revocation of probation is time-barred under 28 U.S.C. §
2244(d).

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The Court need not determine whether each of these motions and successive habeas petitions
constituted “properly filed” state post-conviction proceedings which would toll the federal limitations
period because even if each did so, the petition is nevertheless time barred. In short, no state proceedings
were pending from November 18, 2016-October 12, 2017 (328 days); December 4, 2017-April 19, 2018
(136 days); April 27, 2018-August 14, 2018 (109 days); August 30, 2018-December 31, 2018 (123
days); February 7-14, 2018 (7 days); April 18-29, 2019 (11 days); and July 17-August 6, 2019 (20 days).

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D.

Equitable Tolling

The limitation period may be subject to equitable tolling in appropriate cases. Holland
v. Florida, 560 U.S. 631, 645 (2010); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir.
2000). In order to be entitled to equitable tolling a petitioner must show that some wrongful
conduct by Respondents prevented him from filing on time, or that there were “extraordinary
circumstances” beyond his control that prevented timely filing of a petition. Harris, 209 F.3d
at 330; Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc).
After being directed to state why his Petition should not be dismissed as time-barred,
Allen asserts that he has been diligently pursuing his claims and that no one advised him of his
right to file a federal petition. ECF No. 9 at 1.
Additionally, he states that he did not know a direct appeal had been filed on his behalf
and therefore when that appeal was denied he did not have the opportunity to seek certiorari
review. Id. Allen also states that approximately one year after his post-conviction hearing, he
wrote to the state court asking whether a decision had been rendered in his case but he did not
receive a response. Several years later, he was notified that the decision of the post-conviction
court had been sent to his counsel who had subsequently retired. Id. at 2. After receiving the
right to file a belated application for leave to appeal the denial of post-conviction relief, Allen
states that he contacted the state public defender’s office for assistance but did not receive a
response from them and his time to file the application expired. Id. Based on the foregoing,
Allen asserts it was not possible for him to file a timely challenge to his state court judgment
Id.
In further support of his claim that he is entitled to equitable tolling, Allen claims that
the state improperly denied his effort to reopen his state post-conviction proceeding. ECF No.

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10 at 1. Allen also states that he was unable to raise claims any earlier because he did not learn
of those claims until he received a copy of his docket sheet in November of 2021 and hearing
transcripts in May of 2020. Id. at 1. He does not identify what hearings were transcribed, nor
does he explain what claims he discovered in the docket sheet or in the transcripts. Moreover,
Allen does not explain how or why he only became aware of these claims when he read the
transcript: he does not indicate whether he was present at either of these unidentified hearings.7
To the extent Allen’s assertions are claims that he is entitled to equitable tolling, he has
not made the requisite showing. The application of equitable tolling must be “guarded and
infrequent” and “reserved for those rare instances where—due to circumstances external to the
party’s own conduct—it would be unconscionable to enforce the limitation period against the
party and gross injustice would result.” Harris, 209 F.3d at 330. Ignorance of the law is not a
basis for equitable tolling. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004). Thus,
Allen’s self-represented status and lack of knowledge of the law does not excuse him from the
requirements of § 2244(d). Moreover, Allen has not shown that Respondents’ conduct
prevented him from filing on time.
Lastly, Allen asserts that the calculation of the timeliness of his petition is incorrect
because he filed a federal habeas petition in this Court in 2017, which was dismissed so that he
could exhaust his state court remedies. ECF No. 10 at 2. But Allen is mistaken because the time
during which a federal habeas petition is pending does not toll the limitations period. Duncan

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To the extent Allen contends he is entitled to a different accrual date as to these unidentified
claims, he is mistaken. He is not entitled to a later date for calculating the statute of limitations under
§ 2244(d)(1)(D) based on the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence. While Allen may not have learned of these
unidentified claims until he reviewed the court’s docket and received transcripts of unidentified
hearings, the errors presumably occurred during trial or at the hearing, while Allen was present, and thus
the factual predicates of these claims were discoverable by Allen at that time.

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v. Walker, 533 U.S. 167, 181-82 (2001) (holding that an application for federal habeas corpus
review is not an “application for State post-conviction or other collateral review” within the
meaning of 28 U.S.C. § 2244(d)(2). . . .[and] therefore did not toll the limitation period….”).
E.

Actual Innocence

Additionally, Allen states that he is actually innocent. ECF No. 9 at 2. In support of this
claim, Allen asserts that there was “critical evidence and trustworthy eyewitness testimony”
that was not presented. Id. Allen states he advised his trial attorney of eyewitness testimony
but trial counsel did not investigate or subpoena the witness. Id. This unidentified witness would
have produced an alibi for Allen. Id. Additionally, Allen states that he provided to his trial
attorney a receipt that his attorney did not use at trial. Also, two police reports were not
introduced at trial and would have, at minimum, created “controversy of facts” that would have
created reasonable doubt in the jury. Id. Lastly, he claims that he can prove that evidence of
“Size 12 white nikes did not belong to him. Id. at 3.
A federal habeas petitioner may assert a claim of actual innocence to overcome a
procedural bar to review, Schlup v. Delo, 513 U.S. 298, 326 (1995), or to overcome the oneyear statute of limitations (“gateway actual innocence”). McQuiggin v. Perkins, 569 U.S. 383,
386 (2013). In order to present a credible gateway claim of actual innocence under Schlup, the
petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence— that was not presented at
trial.” Schlup 513 U.S at 324. “A petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror acting reasonably would
have voted to find him guilty beyond a reasonable doubt.” Id. at 329. Here, setting aside the
lack of specificity regarding Allen’s evidence, it is clear that he has provided no new evidence

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in support of his actual innocence claim but rather relies on evidence that was available to him
at trial to support his claim of actual innocence. Allen has failed to demonstrate that he meets
the extraordinarily high threshold for overcoming the procedural bar to review and his Petition
must be dismissed as time barred.
III.

CERTIFICATE OF APPEALABILITY
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). When a petition is denied on procedural grounds, the petitioner must
show that reasonable jurists “would find it debatable whether the petition states a valid claim
of the denial of a constitutional right” and “whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000); see Buck v. Davis, 580 U.S.
100, 115 (2017). Because Allen fails to satisfy this standard, the Court declines to issue a
certificate of appealability. Allen 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).
IV.

CONCLUSION
For the foregoing reasons, the Court will deny Allen’s Petition for Writ of Habeas

Corpus and decline to issue a Certificate of Appealability. A separate Order follows.
6/4/2024
________________
Date

_____________________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE

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