Chisum v. Shearin
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/13/2012. (ebs2, Deputy Clerk)(c/m 8/14/2012 eb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ERIC LAMONT CHISUM, #310799
Petitioner,
v.
BOBBY P. SHEARIN, et al.
Respondents.
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* CIVIL ACTION NO. DKC-12-1521
*
***
MEMORANDUM
On May 21, 2012, the Court received for filing this 28 U.S.C. § 2254 Petition for writ of
habeas corpus, dated May 15, 2012. (ECF No. 1). This is the first § 2254 petition filed by
Petitioner, who was sentenced on October 4, 2002, and filed his first state post-conviction petition
on February 5, 2009. (Id., at 1 & 4). Respondents were ordered to file a limited answer as to the
timeliness of the Petition,1 with Petitioner granted additional time to file a reply to the response.
(ECF No. 4 at 3).
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Title 28 U.S.C. § 2244(d) provides that:
(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 statute further provides: 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.
On July 9, 2012, Respondents filed an answer to Petitioner=s application for habeas relief
solely addressing the timeliness of Petitioner=s application. (ECF No. 5). Petitioner has not filed a
reply.
On July 29, 2002, Petitioner pled guilty to first-degree murder and third-degree sexual
offense in the Circuit Court for Wicomico County, Maryland. (Id., Ex. 1 at 5). On October 4, 2002,
he was sentenced to life plus ten years incarceration. (Id., at 5-7). He did not seek leave to appeal
the entry of his guilty plea.
Therefore, his judgment of conviction became final on November 4,
2002, when the time for seeking leave to appeal expired. See Md. Code Ann., Cts. & Jud. Proc. Art.,
§ 12-302(e) (2002) and Md. Rule 8-204(b).
On February 5, 2009, Petitioner filed his first post-conviction petition in the Circuit Court for
Wicomico County, Maryland. (ECF No. 5, Ex. 1 at 11). On June 29, 2009, Circuit Court Judge
Donald D. Davis granted Petitioner the right to file three belated papers: (1) a motion for
reconsideration of sentence; (2) a motion for sentence review by a three-judge panel; and (3) an
application for leave to appeal the entry of his guilty plea. (Id., Ex. 2). Post-conviction relief was
otherwise denied. Neither the State of Maryland nor Petitioner sought leave to appeal the rulings of
the post-conviction court.
In light of the favorable post-conviction court rulings, Petitioner filed a motion for
reconsideration, a motion for sentence review by a three-judge panel, and an application for leave to
appeal the entry of his guilty plea. (Id., Ex. 1 at 13-14). On August 11, 2009, the reconsideration
request was denied. (ECF No. 5, Ex. 1 at 14). On August 30, 2009, the three-judge panel declined
to modify Petitioner’s life sentence. Id. On July 7, 2010, the application for leave to appeal was
summarily denied by the Court of Special Appeals of Maryland. (Id., Ex. 3). The mandate was
issued August 6, 2010. (Id., Ex. 1 at 14). Petitioner did not seek review of this decision in the
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Supreme Court and his judgment therefore became final on November 4, 2010, when the 90-day
period for filing a petition for writ of certiorari expired. See United States Supreme Court Rule 13.1;
Clay v. United States, 537 U.S. 522, 525 (2003) (state judgment becomes final for habeas purposes
when the time expires for filing a petition for writ of certiorari to the Supreme Court or ninety days
following the decision of the state=s highest court).
In light of the belated direct appellate review offered to Petitioner by the post-conviction
court, the judgment became final for direct appeal purposes on November 4, 2010. See Frasch v.
Peguese, 414 F.3d 518 (4th Cir. 2005). Petitioner had a one-year period, from November 4, 2010
until November 3, 2011, to file a § 2254 Petition for habeas corpus relief.
filed until May 15, 2012.
This Petition was not
There were no matters pending in state court related to Petitioner’s
criminal case which would have provided for statutory tolling under 28 U.S.C. § 2244(d)(2).
Thus, the statute of limitations period ran unchecked and untolled.
In his original habeas application, Petitioner claimed that the one-year limitation period does
not apply because his attorney never informed him of it. (ECF No. 1 at 5). To the extent that he is
arguing that the one-year limitation period under § 2244(d)(1) should be equitably tolled due to his
lack of knowledge of the law, the court finds his claim unavailing. Equitable tolling applies only in
Athose rare instances whereBdue to circumstances external to the party=s own conductBit would be
unconscionable to enforce the limitation period against the party and gross injustice would result.@
See Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). In Holland v. Florida, 130 S.Ct. 2549
(2010), the Supreme Court affirmed that equitable tolling applies to the one-year statute of
limitations set out in § 2244(d). Id. at 2554. Specifically, the Court found that in order to be entitled
to equitable tolling the movant must show (1) that he has diligently pursued his rights and (2) that
some extraordinary circumstance prevented the timely filing. Id. at 2562; see also Pace v.
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DiGuglielmo, 544 U.S. 408, 418 (2005). Claims of negligence, self-representation status, or
ignorance of the law, however, are not compelling grounds for equitable tolling. See Rouse v. Lee,
339 F.3d 238, 248-249 (4th Cir. 2003) (negligent mistake by party’s counsel in interpreting the
statute of limitations under § 2244(d) does not present extraordinary circumstances warranting
equitable tolling); Smith v. McGinnis, 208 F.3d 13, 18 (2nd Cir. 2000) (self-representation status
does not establish sufficient ground for equitable tolling); Felder v. Johnson, 204 F.3d 168, 171-173
(5th Cir. 2000) (lack of notice of the Antiterrorism and Effective Death Penalty Act’s amendments
and ignorance of the law are not rare and exceptional circumstances that warrant equitable tolling);
Francis v. Miller, 198 F.Supp.2d 232, 235 (E.D. N.Y. 2002) (ignorance of the law and legal
procedure is not so exceptional as to merit equitable tolling).
Petitioner was sentenced in 2002 and, as he did not advance his claims within a reasonable
time of their availability and otherwise sat on his rights, his habeas corpus Petition is time-barred
under 28 U.S.C. § 2244(d)(1)(A-D) and shall be dismissed with prejudice.
In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that “[w]hen the district
court denies a habeas petition on procedural grounds without reaching the prisoner's underlying
constitutional claim, a certificate of appealability (“COA”) should issue when the prisoner shows, at
least, that ... jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Petitioner does not satisfy this standard, and the Court
declines to issue a COA. A separate Order shall be entered in accordance herewith.
Date: August 13, 2012
___________/s/______________
DEBORAH K. CHASANOW
United States District Judge
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