Mitchell v. Green et al

Filing 31

MEMORANDUM OPINION (c/m to Petitioner 10/11/17 sat). Signed by Judge Deborah K. Chasanow on 10/11/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM JAMES MITCHELL, #331132,

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Petitioner

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v.

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WARDEN KATHLEEN S. GREEN., et al.,
Respondents

Civil Action No. DKC-13-2063

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MEMORANDUM OPINION

Presently pending and ready for resolution in this habeas action is the limited question
whether Petitioner’s application pursuant to 28 U.S.C. § 2254 was filed within the applicable
statute of limitations.
On July 17, 2013,1 the court received the 28 U.S.C. § 2254 habeas corpus application
filed by Petitioner William James Mitchell, attacking his 2005 judgments of conviction for
attempted first degree murder and related offenses. ECF No. 1.

He raises several issues,

including whether the trial judge’s failure to recuse himself violated Petitioner’s right to testify
and to a fair trial in contravention of the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and whether his attorneys provided ineffective representation by failing to
move that the trial judge recuse himself, by putting forth a defense theory of the case that trial
counsel knew was not supported by the evidence, and by failing to object to the admission of
highly prejudicial evidence for which a proper foundation had not been laid.
Instead of responding to the petition in full, Respondents filed a limited answer on
October 2, 2013, raising only the statute of limitations. ECF No. 6. On November 19, 2013,
Mitchell filed a reply. ECF No. 11. Following appointment of counsel, a telephone conference
1

Although signed, the Petition and accompanying memorandum are not dated.

was held on June 2, 2015, after which the court approved the parties’ joint briefing schedule.
ECF No. 20. The schedule was adjusted, and supplemental briefs were filed.
On October 16, 2015, the court granted the parties’ joint motion to stay proceedings
pending the decision of the United States Court of Appeals for the Fourth Circuit in Woodfolk v.
Maynard, No. 15-6364. ECF Nos. 24; 25. The Fourth Circuit issued its opinion on May 23,
2017. See Woodfolk v. Maynard, 857 F.3d 531 (4th Cir. 2017). The appellate court’s mandate
was issued on June 14, 2017.
On June 27, 2017, the court lifted the stay and approved the parties’ proposed
supplemental briefing schedule. ECF No. 28. Respondents filed their supplemental answer on
August 20, 2017. ECF No. 29. Mitchell filed his supplemental reply on September 6, 2017.
ECF No. 30. After reviewing the filings, the court finds 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; 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 set forth herein, the court will dismiss
the petition as untimely, but grant a certificate of appealability.
Factual and Procedural History
On June 13, 2005, following a jury trial, Mitchell was found guilty in the Circuit Court
for Harford County of attempted first degree murder and related offenses. ECF No. 1, pp. 1-2;
ECF No. 6-1, pp. 15-16. He did not testify at trial. ECF No. 1, p. 2. Mitchell was sentenced on
October 24, 2005, to a total of 70 years imprisonment. ECF Nos. 1, pp. 1-2; 6-1, p. 17.
Mitchell timely appealed his convictions and sentence to the Court of Special Appeals of
Maryland, which, in an unreported opinion issued on July 27, 2007, affirmed Mitchell’s
convictions, but vacated one of his sentences and remanded the case to the circuit court for

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resentencing. ECF Nos. 1, p. 2; 6-1, p. 19; 6-2, p. 26. The Court of Special Appeals’ mandate
was issued on August 27, 2007. ECF Nos. 6-1, pp. 19-20; 6-2, p. 27. Mitchell then filed a
petition for a writ of certiorari in the Court of Appeals of Maryland, which granted the petition
on November 7, 2007. ECF Nos. 1, p. 3; 6-1, pp. 20-21; 6-3, p. 1. After the case had been
briefed and argued, however, on March 12, 2008, the Court of Appeals dismissed the writ,
finding that it had been improvidently granted. ECF Nos. 1, p. 3; 6-3, p. 4. Mitchell did not seek
further review. ECF No. 1, p. 3.
On June 1, 2009, Mitchell filed a motion to correct an illegal sentence in the Circuit
Court for Harford County. ECF Nos. 1, p. 4; 6-1, p. 22. At a hearing held on July 22, 2009, the
circuit court resolved both the motion to correct an illegal sentence and complied with the Court
of Special Appeals’ remand. ECF Nos. 1, p. 4; 6-1, p. 22. Mitchell was resentenced to 65 years
imprisonment. ECF Nos. 1, p. 4; 6-1, p. 22. He did not appeal the new judgment, which became
final for direct appeal purposes on August 21, 2009. See Md. Rule 8-202 (requiring that notice
of appeal be filed within 30 days of date of judgment from which review is sought).
On September 2, 2009, Mitchell filed a motion for modification/reduction of sentence
pursuant to Md. Rule 4-345(e)2 which, at Mitchell’s request, was held in abeyance. ECF Nos. 1,
p. 4; 6-2, p. 22; 23-1. On February 3, 2010, Mitchell filed a petition for post-conviction relief in
the Circuit Court for Harford County. ECF Nos. 1, p. 4; 6-1, p. 23. After conducting a hearing,
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As of May 11, 2004, that Rule provided:
(e) Modification Upon Motion.
(1) Generally. Upon a motion filed within 90 days after imposition of a sentence (A) in the District
Court, if an appeal has not been perfected or has been dismissed, and (B) in a circuit court,
whether or not an appeal has been filed, the court has revisory power over the sentence except that
it may not revise the sentence after the expiration of five years from the date the sentence
originally was imposed on the defendant and it may not increase the sentence.

Prior to 2004, the rule appeared in 4-345(b) and, while the motion had to be filed within 90 days, there
was no time limit for the court’s ruling. Thus, motions could remain pending indefinitely.

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the court denied the petition on November 3, 2010. ECF Nos. 1, p. 5; 1-12; 6-1, p. 24. On
December 2, 2010, Mitchell filed an application for leave to appeal the denial, which the Court
of Special Appeals summarily denied on December 19, 2011. ECF Nos. 1, p. 5; 6-1, p. 24; 6-4,
pp. 1-2. The court’s mandate was issued on January 19, 2012. ECF No. 6-4, p. 3.
On September 20, 2012, Mitchell requested that the circuit court activate proceedings on
his motion for modification/reduction of sentence. ECF Nos. 1, p. 8; 6-1, p. 25. The court
denied the motion on October 1, 2012. ECF Nos. 1, p. 8; 6-1, p. 25.
As noted above, the current Petition was received by this court on July 17, 2013. ECF
No. 1.
Timeliness
The threshold issue in this case is the timeliness of the Petition. A one-year statute of
limitations applies to habeas petitions in non-capital cases for a person convicted in state court.
See 28 U.S.C. § 2244(d)(1); Wall v. Kholi, 562 U.S. 545, 550 (2011). Section 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

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(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). However, “[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). The limitation period may also 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).
Statutory Tolling
Respondents argue that the Petition is time-barred and should be dismissed on that basis.
ECF No. 6, pp. 1, 6. Mitchell contends that his Petition is timely because “his properly filed
motion for modification or reduction of sentence under Maryland Rule 4-345 tolled the one year
filing period as prescribed by 28 U.S.C. § 2244(d)(2).” ECF No. 11, p. 2.
As noted above, the court directed the parties to submit supplemental briefs regarding the
application of the statute of limitations to Mitchell’s Petition.

After Mitchell filed his

supplemental memorandum, the court granted the parties’ joint motion to stay proceedings
pending the Fourth Circuit’s decision in Woodfolk v. Maynard, which, among other issues,
presented the issue of whether a § 2254 petitioner was entitled under Kholi to statutory tolling of
the limitations period during the time a Maryland state motion for modification of sentence was
pending. On May 23, 2017, the Fourth Circuit issued its decision without reaching the question
of whether a motion for modification filed in Maryland state court statutorily tolled the
limitations period. See Woodfolk, 857 F.3d. at 543 n.6 (stating that because it found Woodfolk’s
petition timely on other grounds, the court “need not consider Woodfolk’s alternative argument
that his Rule 4-345 motion tolled the limitations period under Kholi”). The stay was lifted on
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June 27, 2017, and Respondents and Mitchell subsequently filed their supplemental answer and
supplemental reply, respectively.
In Kholi, on which Mitchell relies, the Supreme Court of the United States addressed the
question of “whether a motion for reduction of sentence under Rhode Island’s Rule 35 is an
‘application for State post-conviction or other collateral review’” under § 2244(d)(2). 562 U.S.
at 551. The Court held that the phrase “‘collateral review’ in § 2244(d)(2) means judicial review
of a judgment in a proceeding that is not part of direct review,” id. at 547; see also id. at 553,
560, and that a “motion to reduce sentence under Rhode Island law is an application for
‘collateral review’ that triggers AEDPA’s tolling provision,” id. at 556; see also id. at 547-48
(further holding that Kholi’s motion tolled the AEDPA limitation period and that his federal
habeas petition was timely). The Court, however, limited its analysis “to a motion to reduce
sentence under Rhode Island law.” Id. at 550.
Subsequently, Judge Williams considered whether, “in light of the Supreme Court’s
ruling in Wall v. Kholi, . . . a motion for Modification or Reduction of Sentence under Maryland
law toll[s] the statute of limitations under 28 U.S.C.§ 2244(d)(1)(A).” Tasker v. Maryland, No.
AW-11-1869, 2013 WL 425040, at *2 (D.Md. Jan. 31, 2013) (internal citation omitted), aff’d,
517 Fed. Appx. 172 (4th Cir. Apr. 4, 2013). Judge Williams held that it did not. Tasker, 2013
WL 425040, at *7. Significantly, the Maryland rule in effect at the time Tasker filed his motion
in 1985 differed from the current rule in a very important respect. As noted by Judge Williams,
A five-year limit on the court’s authority to modify a sentence was added to the
Rule effective July 1, 2004. Notably, this time limit does not apply to Tasker’s
1985 Motion for Modification. See Md. Rule 4–345 (2011).
Id. at *3, n. 6. After setting out the positions argued by the parties, Judge Williams concluded:
The Supreme Court repeatedly stated in Kholi that it was addressing the
procedure under Rhode Island Rule 35. See infra at 9. This Court finds that
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Maryland’s Rule 4–345 provides specifically delineated and separate routes for
challenges [to] the legality of a sentence and is part of a fundamentally different
framework than the Rhode Island Rule practice considered in Kholi. Rhode
Island’s proposed taxonomy dividing Rule 35 motions into those that “challenge a
sentence on legal grounds and those that merely ask for leniency,” which was
rejected as “problematic” and burdensome, Kholi, 131 S.Ct. at 1288, does not
pose such complications under Maryland’s procedural framework.
Tasker’s suggestion that tolling the statute of limitation under § 2244(d)(2)
would promote the purposes of the AEDPA is unpersuasive. Tasker’s March 23,
1985 Motion for leniency under the Maryland Rule can neither address nor
exhaust a cognizable federal claim on habeas review. Tasker is in effect asking to
toll the time for federal review for a period in excess of 25 years, and perhaps
indefinitely, predicated on a Motion that asks purely for leniency, is not subject to
review, and does not present a cognizable federal claim requiring exhaustion. To
hold as Tasker requests would undermine the stated goals of the AEDPA statute.
Id. at *7. Judge Williams issued a certificate of appealability. Unfortunately, Tasker did not
have counsel on appeal and his informal brief did not challenge the basis for the district court’s
disposition, so the appellate court affirmed without reaching the merits of the issue.

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Fed.Appx. 172 (4th Cir. Apr. 4, 2013).
Since Tasker was decided, judges on this court have followed suit. See, e.g,. Scott v.
Green, No. JKB-13-2002, 2013 WL 6844279, at *2 n.11 (D.Md. Dec. 23, 2013); Short v.
Shearin, No. RWT-12-2476, 2013 WL 5797583 (D.Md. Oct. 25, 2012); Roberts v. State of
Maryland, No. JKB-11-1227 (D. Md. Oct. 29, 2013) (no appeal taken); Asemani v. Bishop, No.
RDB-13-925, 2014 WL 1320096 at *2 (D.Md. Mar. 31, 2014) (Asemani appealed and raised the
statute of limitations in his informal brief.

The Court of Appeals denied a certificate of

appealability because Asemani conceded that he had not exhausted his claims in state court.
Failure to exhaust was an alternative ground found by the district court justifying dismissal of the
petition.). Obviously, none of those cases generated a dispositive ruling from the Fourth Circuit.
Another case, however, offered the possibility of consideration on appeal. In Woodfolk v.

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Maynard, No. JFM-13-3268, 2014 WL 6674577 (D.Md. Nov. 24, 2014), Judge Motz again ruled
that:
In applying the rules announced in Kohli [sic] to Maryland law, this court
has held that a motion for reconsideration filed pursuant to Maryland Rule 4–345
does not meet the criteria for tolling as outlined in Kohli. See Tasker v. State,
Civil Action No. AW–11–1869 (D.Md. Jan. 31, 2013), aff'd, 517 Fed. Appx. 172
(4th Cir. 2013). This court found the Maryland scheme for filing such motions
distinguishable from Rhode Island law. Specifically, Maryland motions for
modification do not serve to indefinitely toll the limitations period set forth under
28 U.S.C. § 2244(d) because they involve a request for leniency, are not subject to
appellate review, and do not raise cognizable federal claims requiring exhaustion.
See Tasker v. State, Civil Action No. AW–11–1869 (D.Md. Jan. 31, 2013), aff'd
517 Fed Appx 172 (4th Cir. 2013), see also Roberts v. State of Maryland, Civil
Action No. JKB–11–1227 (D.Md. Oct. 29, 2013).
Once Woodfolk was on appeal, other cases were stayed. After the Fourth Circuit resolved
Woodfolk without reaching the issue, those judges lifted the stay and some dismissed the
petitions as untimely, again relying on Tasker and, now, Woodfolk. See, e.g., Savoy v. Bishop,
No. RWT-13-751, 2017 WL 3492165 (D.Md. Aug. 15, 2017)(pro se, no appeal taken); Maize v.
Warden, No. JFM 16-4070, 2017 WL 3446770 (D.Md. Aug. 10, 2017)(pro se, no appeal taken);
Wells v. Wolfe, No. CCB-14-985, 2017 WL 3836046 (D.Md. Aug. 31, 2017)( pro se, no appeal
taken). Other cases remain pending.
Mitchell argues that Tasker and its progeny are “wrongly decided and are at odds with
the decisions of all other federal courts to have addressed motions to reduce sentence since
Kholi.” ECF No. 23, p. 6. In his second supplemental brief, filed after the Fourth Circuit’s
Woodfolk decision, Mitchell notes that a recent Eleventh Circuit case disregarded an unpublished
earlier decision, Baker v. McNeil, 439 Fed.App’x. 786, 787-89 (11th Cir. Aug. 17, 2011), and
reached the opposite conclusion. ECF No. 30, p. 2 (citing Rogers v. Sec’y, 855 F.3d 1274, 1277

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(11th Cir. May 2, 2017)).3 Mitchell also notes that three district courts within the Fourth Circuit
have held that “discretionary motions to reduce or review a sentence toll AEDPA’s statute of
limitations.” Id. at pp. 4-5 (citing Hunt v. Ballard, No. 3:16cv29, 2017 WL 1848490, at *9 (N.D.
W. Va. Mar. 20, 2017), overruled on other grounds, 2017 WL 3485029 (N.D. W. Va. Aug. 14,
2017); Williams v. Virginia, No. 3:15CV690, 2017 WL 1029112, at *3 (E.D. Va. Mar. 16, 2017);
Stone v. Vest, No. 2:16-cv-01874, 2017 WL 588517, at *3 (S.D. W. Va. Feb. 14, 2017)).
Mitchell is correct that other courts have found that motions under analogous state rules
do toll the statute of limitations, although there are slight differences among the rules. The rule
under consideration in Rogers, Florida Rule 3.800, provides:
(c) Reduction and Modification. A court may reduce or modify ... a legal
sentence imposed by it, sua sponte, or upon motion filed, within 60 days after the
imposition.... If review is upon motion, the trial court shall have 90 days from the
date the motion is filed or such time as agreed by the parties or as extended by the
trial court to enter an order ruling on the motion. This subdivision shall not be
applicable to those cases ... in which the trial judge has imposed the minimum
mandatory sentence or has no sentencing discretion.
The Rogers court rejected all efforts to distinguish the Florida rule from the Rhode Island rule
analyzed in Kholi, including that it was a request for leniency, that denial is not appealable, that
no legal standard governs the outcome, that the Florida rule sets out in separate subsections
complaints about the legality of a sentence from the request for leniency, and that allowing the
rule to toll limitations would permit inmates to toll the federal limitation period at will. Rogers,
855 F.3d at 1277-78. Respondents make the same arguments here that were rejected by the

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With respect to Baker, the Rogers court stated:
[T]he Secretary cites an unpublished per curiam opinion, Baker v. McNeil, 439 Fed. Appx. 786,
787 (11th Cir. 2011). In this circuit, an unpublished opinion “may be cited as persuasive authority”
but is “not considered binding precedent.” 11th Cir. R. 36-2; see also Bonilla v. Baker Concrete
Const., Inc., 487 F.3d 1340, 1345 n. 7 (11th Cir. 2007) (“Unpublished opinions are not controlling
authority and are persuasive only insofar as their legal analysis warrants.”).
Rogers, 855 F.3d at 1278 n.1.

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Rogers court. Likewise, the lower court decisions within the Fourth Circuit appear to reach
conclusions that are at odds with Tasker, Woodfolk, and their progeny.
In light of the unbroken chain of decisions from this district and the need for uniformity
in this area, however, and recognizing that only appellate courts can definitively resolve the
issue, this court will again apply Tasker and Woodfolk and hold that a motion under Md. Rule 4345 does not toll the running of the statute of limitations. Accordingly, Mitchell’s petition was
not filed timely.
Equitable Tolling
In his initial pro se response to Respondents’ limited answer, Mitchell argues in the
alternative that the statute of limitations should be equitably tolled. ECF No. 11, p. 8. The
Fourth Circuit has consistently held that a party seeking to avail itself of equitable tolling must
show that (1) extraordinary circumstances, (2) beyond his control or external to his own conduct,
(3) prevented him from filing on time. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc).
Further, to be entitled to equitable tolling, a habeas petitioner must show: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted); see also
Harris, 209 F.3d at 330 (stating that “any invocation of equity to relieve the strict application of
a statute of limitations 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”).
Mitchell contends that “it is not his fault that his petition was not timely; but was ‘due to
circumstances external to the party’s own conduct.’” ECF No. 11, p. 8 (quoting Rouse, 339 F.3d
at 246). Specifically, Mitchell claims that his attorney instructed him that the filing of the

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motion for reconsideration of sentence tolled the limitation period under Kholi. Id. Therefore,
according to Mitchell, because he was following his attorney’s “negligent” legal advice, “it
would be unconscionable to enforce the limitation period against the petitioner because of the
gross injustice that would result by petitioner being time barred and his issues not being
heard/litigated fully.” Id. (internal quotation marks omitted).
In Harris, the Fourth Circuit addressed a similar argument that equitable tolling should be
applied because the petitioner “relied on the negligent and erroneous advice of his counsel who
misadvise[d] him of the deadline” for filing the petition. 209 F.3d at 328 (alteration in original)
(internal quotation marks omitted). The court held that “a mistake by a party’s counsel in
interpreting a statute of limitations 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.” Id. at 331. The Supreme Court subsequently decided Holland, in which the
Court concluded that “attorney misconduct that amounts to more than a ‘garden variety’ claim of
attorney negligence can constitute a circumstance justifying equitable tolling.”

Mubang v.

United States, Civil Action No. DKC-06-1838, 2011 WL 3511078, at *15 (D. Md. Aug. 9,
2011)(citing Holland, 560 U.S. at 649-652). Holland, however, involved attorney misconduct
that amounted to “failure to satisfy professional standards of care,” 560 U.S. at 649, not a failure
to produce certain requested files as was the case in Mubang, 2011 WL 3511078, at *16, or the
erroneous advice regarding the tolling of the limitation period at issue here. Therefore, following
Harris, the court finds that equitable tolling is not appropriate under the circumstances alleged in
this case.
Mitchell’s motion to reduce sentence did not statutorily toll the AEDPA limitation
period. Nor is Mitchell entitled to equitable tolling. Accordingly, the Petition is time-barred.

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Conclusion
For the reasons stated herein, the court will dismiss the Petition with prejudice as timebarred, and will not reach the merits of his contentions. On the other hand, the court will issue a
Certificate of Appealability.
The Supreme Court recently reaffirmed “that a litigant seeking a COA must demonstrate
that a procedural ruling barring relief is itself debatable among jurists of reason; otherwise, the
appeal would not ‘deserve encouragement to proceed further.’” Buck v. Davis, 137 S.Ct. 759,
777 (2017) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 (1983)). In Slack, the Court held that:
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.
529 U.S. at 484. And it later reiterated that:
Determining whether a COA should issue where the petition was dismissed on
procedural grounds has two components, one directed at the underlying
constitutional claims and one directed at the district court’s procedural holding.
Section 2253 mandates that both showings be made before the court of appeals
may entertain the appeal.
Id. at 484-85.
There is no question, as outlined above, that the procedural ruling is open to significant
debate. The standard for determining whether the petition states a valid claim of denial of a
constitutional right is less clear. In Buck, the Court instructed that the merits-based evaluation,
for petitions dismissed on their merits, does not involve a final resolution of the claim, but rather
a threshold examination. “We do not mean to specify what procedures may be appropriate in

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every case. But whatever procedures are employed at the COA stage should be consonant with
the limited nature of the inquiry.” 137 S.Ct. at 774. Years before, a court in the District of
Rhode Island, held as follows:
Under 28 U.S.C. § 2253, a COA from a “final order in a proceeding under
section 2255” may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” Id. §§ 2253(c)(1)(B) & (c)(2). The denial of
Celikoski’s motion, solely, on statute of limitations grounds does not raise any
constitutional issue. However, the First Circuit has indicated that, when what it
has termed “preliminary” procedural rulings regarding the timeliness of § 2255
motions “are predicates to consideration of a constitutional issue,” they are proper
subjects for COAs. See Gaskins v. Duval, 183 F.3d 8, 9 n.1 (1st Cir. 1999)
(granting COA regarding order dismissing § 2255 petition on statute of
limitations grounds).
Presumably, the First Circuit did not intend to require that, in determining
whether a § 2255 petition raises a constitutional issue, the District Court must
assess the merits of any constitutional claims asserted in the petition even though
the District Court had found the petition to be time-barred. Rather, it appears that,
in such cases, the District Court’s task is to decide, simply, whether the petition
asserts a constitutional claim. Since Celikoski’s motion asserts a constitutional
claim (i.e., deprivation of the right to counsel), Celikoski’s request for a COA is
granted. However, pursuant to 28 U.S.C. § 2253(c)(3), the COA is limited to the
issue of whether AEDPA’s one-year statute of limitations bars Celikoski’s § 2255
petition.
Celikoski v. United States, 114 F.Supp.2d 42, 45-46 (D.R.I. 2000). So, too, in this case. The
petition asserts colorable constitutional claims and thus satisfies the second prong of the COA
requirements. A certificate of appealability will be issued limited to the question of whether a
motion under Md. Rule 4-345 tolls the AEDPA’s one year statute of limitations for petitions
under 28 U.S.C. § 2254. A separate Order follows.

__________/s/______________________
DEBORAH K. CHASANOW
United States District Judge

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