Gaither v. Green et al
Filing
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MEMORANDUM OPINION. Signed by Judge Roger W Titus on 2/22/12. (c/m 2/23/12 jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CLIFTON LEGRAND GAITHER,
Plaintiff,
v.
KATHLEEN S. GREEN, et al.,
Defendants.
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Case No.: RWT 11cv3548
MEMORANDUM OPINION
Clifton LeGrand Gaither is incarcerated within the Maryland Division of Correction
(DOC) and housed at the Eastern Correctional Institution at Westover. On January 21, 2010,
Gaither entered an Alford1 plea in the Circuit Court for Anne Arundel County to one count of
solicitation to commit first-degree murder. ECF No. 3, Ex. 1 at 3-4, 13; ECF No. 1 at 1. Gaither
was sentenced that day to serve fifty years in prison, with all but twenty-five years suspended
and five years’ probation upon release. Id., Ex. 1 at 3-4, 13. He has not contested that
conviction by way of appeal or by way of post-conviction review.
On December 9, 2011, Gaither sought habeas corpus relief in this court. His attack on his
Anne Arundel County conviction centers on a claim of entrapment. Gaither apparently was
taken into custody for an alleged parole violation and held at the Jessup Correctional Institution
(JCI) to await his parole revocation hearing. Gaither states his case manager told him the hearing
would take place prior to the maximum expiration date of his sentence, February 2, 2009. On
February 3, 2009, he complained that he should be transferred out of the DOC and instead held
1
The plea permits a criminal defendant to enter the equivalent of a guilty plea by admitting there is enough evidence
to convict him at trial, but maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25 (1970).
at a county correctional facility because his sentence had expired. One day later, a Maryland
State Police undercover agent met with Gaither at JCI to gather evidence that led to his most
recent conviction. ECF No. 1 at 2-5. Respondents contend this court cannot consider Gaither’s
entrapment claim because he has failed to exhaust the claim in the state courts.
A federal court cannot grant a habeas petition unless the petitioner has exhausted the
remedies available in the courts of the state in which petitioner was convicted. See 28 U.S.C.
§ 2254(b) and (c); see also Preiser v. Rodrieguez, 411 U.S. 475, 491 (1973). Exhaustion 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 (1999). If state court remedies have yet to be
exhausted, the federal court must dismiss the § 2254 petition without prejudice to allow the
petitioner to return to state court. See Slayton v. Smith, 404 U.S. 53 (1971).
For a person convicted of a criminal offense in Maryland, exhaustion may be
accomplished either on direct appeal or in post-conviction proceedings. To exhaust a claim on
direct appeal, it must be raised in an appeal, if one is permitted, to the Maryland Court of Special
Appeals and then to the Maryland Court of Appeals by way of a petition for writ of certiorari.
See Md. Cts. & Jud. Proc. Code Ann., § 12-201 and § 12-301. To exhaust a claim through postconviction proceedings, it must be raised in a petition filed in the Circuit Court and in an
application for leave to appeal to the Court of Special Appeals. See Md. Crim. Proc. Code Ann.
§ 7-109. If the Court of Special Appeals denies the application, there is no further review
available and the claim is exhausted. See Md. Cts. & Jud. Proc. Code Ann., § 12-202. 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 Court of Appeals. See Williams v. State, 292 Md. 201, 21011 (1981).
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Clearly, Gaither has failed to exhaust his state court remedies. He may return to this
court by filing a new habeas corpus petition after completing exhaustion. He is cautioned,
however, that there is a one-year filing deadline for state prisoners filing applications for a writ
of habeas corpus in federal court. See 28 U.S.C. § 2244(d).2 A properly filed appeal or postconviction petition will serve to toll or “stop” the running of the one-year limitations period for
§ 2254 petitions. Should he intend to refile this petition after his available state court remedies
are exhausted, Gaither should take care not to miss this deadline.3
When a district court dismisses a habeas petition solely on procedural grounds, a
Certificate of Appealability will not issue unless Petitioner demonstrates both “1) that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
2
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
(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.
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Gaither is reminded that only a properly filed application for state post-conviction review will toll the running of
the one-year federal limitations period. The court makes no finding as to whether Gaither already is time-barred
from seeking habeas corpus review.
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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) (quotation
omitted). Gaither fails to satisfy this standard or show substantial denial of a constitutional right
as required by 28 U.S.C. § 2253(c)(2). Accordingly, a Certificate of Appealability shall be
denied. A separate Order follows.
February 22, 2012
Date
______________/s/__________________
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
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