Wilkins v. Green et al

Filing 9

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 10/24/2013. (kns, Deputy Clerk)(c/m 10/25/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN V. WILKINS,

*

Petitioner,

*

v.

*

KATHLEEN GREEN, et aI.,

*

Civil Action No. PWG-13-677

*
***

Respondents.

MEMORANDUM OPINION
Respondents assert that the above-captioned petition for writ of habeas corpus should be
dismissed because it is time-barred.

ECF NO.6.

Petitioner has filed a reply asserting that he is

entitled to equitable tolling of the one-year filing period. ECF NO.8.

The court finds a hearing

in this matter unnecessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United
States District Courts & Local Rule 105.6 (D. Md. 2011); see also Fisher v. Lee, 215 F. 3d 438,
455 (4th Cir. 2000) (petitioner not entitled toa hearing under 28 U.S.C. 92254(e)(2)).
In April of 2008, petitioner John V. Wilkins (hereinafter "Wilkins") was convicted of
armed robbery, first degree assault, false imprisonment, reckless endangerment, illegal use of
handgun, and burglary following a jury trial in the Circuit Court for Dorchester County. ECF No.
6 at Ex. 1 & 2. On June 9, 2008, Wilkins was sentenced to serve 65 years, with 15 years
suspended. ECF NO.1 at p. 1. The Court of Special Appeals of Maryland affirmed Wilkins's
conviction on December 15, 2009, with the court's mandate issuing on January 14, 2010. ECF
NO.6 at Ex. 2. Wilkins did not seek certiorari review with the Court of Appeals of Maryland;
therefore, his judgment of conviction became final on January 29, 2010, when the time for
seeking further review expired. See Md. Rule 8-302 (petition for a writ of certiorari must be filed
no later than 15 days after issuance of mandate by Court of Special Appeals).

On January 10, 2011, Wilkins filed a petition for post-conviction

relief in the Circuit

Court for Dorchester County. ECF NO.6 at Ex. 1, p. 20. On July 8, 2011, the post-conviction
court granted Wilkins the right to file a belated motion for reconsideration

of sentence, but

otherwise denied relief. Id. at p. 23. Wilkins did not file a timely application for leave to appeal
the denial of post-conviction relief, which became final on August 8, 2011, when the time for
filing an application expired. See Md. Rule 8-204 (application for leave to appeal to be filed
within 30 days of date of judgment from which appeal sought).
On September 30, 2011, Wilkins filed a motion for modification or reduction of sentence,
which was denied on October 27,2011.

ECF NO.6 at Ex. 1, p. 24. On November 18,2011,

Wilkins sought reconsideration of the ruling denying modification of his sentence; his request
was denied on December 9, 2011. !d. at pp. 24-25.

On January 23, 2012, Wilkins filed an

untimely application for leave to appeal the adverse rulings of the post-conviction court. lId.
Ex. 3.

at

The application for leave to appeal was denied summarily by the Court of Special

Appeals on December 5,2012, with the court's mandate issuing on January 7, 20l3.Id.

at Ex. 4.

Wilkins's deadline for filing a petition for federal habeas corpus relief was January 31,
2011; however, the petition for post-conviction he filed on January 10, 2011, tolled the one year
filing deadline while it was pending.

When the post-conviction

court denied relief and the

decision became final, Wilkins had 21 days left to file for federal habeas relief moving the filing
deadline to August 29, 2011. There were no post-conviction proceedings pending during the 21

Wilkins included a letter with the application for leave to appeal stating that it was late because
of the way the post-conviction court addressed his petition and he was proceeding pro se. ECF
NO.6 at Ex. 3, p. 1. The application for leave to appeal sought an order requiring the postconviction court to "fully litigate the issues with some precision" in accordance with Md. Rule 4407(a). Id. at p. 3.
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days the federal habeas filing deadline began to run again.

The instant petition was filed on

March 4,2013.
Wilkins does not assert that his petition falls within any of the exceptions noted in 28
U.S.C. ~ 2244(d)?
limitation.

Rather, he asserts he is entitled to an equitable tolling of the statute of

To be entitled to equitable tolling, Wilkins 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 v. Hutchinson, 209 F. 3d 325, 330 (4th
Cir. 2000). Attorney error is not an "extraordinary circumstance."

See Taliani v. Chrans, 189 F.

3d 597, 598 (7th Cir. 1999) (lawyer's miscalculation of limitations period is not a basis for
equitable tolling); Sandvik v. United States, 177 F. 3d 1269, 1272 (11th Cir. 1999) (lawyer's
decision to mail petition by ordinary mail instead of expedited delivery not basis for equitable
tolling). "[A] mistake by a party's counsel in interpreting a statute oflimitations

does not present

the extraordinary circumstance beyond the party's control where equity should step in to give the
party the benefit of his erroneous understanding."
Florida, 560 U.S. 631,130 S. Ct. 2549,2555-60

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Harris, 209 F. 3d at 331. But see Holland v.
(2010) (petitioner's numerous letters of inquiry

That section provides that the one-year period of limitation 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 lase 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 and made retroactively applicable to cases on collateral review; or
(0)

The date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
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to attorney coupled with attorney's failure to keep petitioner informed, sufficient for equitable
tolling).
Wilkins claims he received confusing advice from the Office of the Public Defender,
Appellate Division. ECF NO.8
post-conviction

relief.

at p. 2. He states he was told that he had ten years to file for

Wilkins further claims that when he contacted the Collateral Review

Division of the Public Defender's

Office, he was advised their office was "overloaded with

cases," that he should file a petition for post-conviction relief pro se, and that ~n attorney would
represent him.

Wilkins asserts the instructions he received were incorrect and that he should

have been told to immediately file a petition for post-conviction

relief following his direct

appeal, in order to toll the one-year federal habeas time limit. Id. He claims that the incorrect
advice provided by the Appellate Division, coupled with the Collateral Review Division's
refusal to provide assistance and his lack of knowledge about the law, resulted in his inability to
"make the time toll." Id.
Wilkins does not provide evidence that he was advised improperly.

The advice he

received regarding the filing deadline for state post-conviction relief is an accurate statement of
Maryland state law. See Md. Crim. Proc., Code Ann.

S 7-103(b).

Additionally, the information

Wilkins states was provided to him by the Collateral Review Division does not translate to a
refusal to assist him. In fact, Wilkins admits he was represented by the public defender's office
at post-conviction and Wilkins was granted partial relief. The instant case falls far short of the
facts supporting an equitable tolling of the filing deadline found in Holland, 130 S. Ct. at 2555,
where the petitioner was relentless in his efforts to insure his right to file for federal habeas relief
was preserved, but those efforts were thwarted by the apparent apathy and gross negligence of
his court-appointed counsel. By contrast, Wilkins simply states he should have been advised to

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immediately file for post-conviction

relief following his direct appeal.

The absence of any

evidence indicating diligence on Wilkins' part to first determine when a federal habeas petition
must be filed, and then to inquire of post-conviction counsel how to preserve his right to file for
federal relief, indicates that equitable tolling of the filing deadline is unwarranted in this case.
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 constitutional 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)).

Wilkins has not satisfied this standard;

therefore, a certificate of appealability shall not issue.
Accordingly, by separate order which follows the petition shall be dismissed as untimely
and a certificate of appealability shall be denied.

Paul W.
imm
United States District Judge

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