Toomer v. State of Maryland
Filing
5
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/25/2014. (am2s, Deputy Clerk) Modified on 3/25/2014 (c/m 3/25/14 am2s, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DERRICK TOOMER,
*
v.
* CIVIL ACTION NO. DKC-13-3871
STATE OF MARYLAND,
*
******
MEMORANDUM OPINION
On December 13, 2013, Petitioner Derrick Toomer, filed the instant 28 U.S.C. ' 2254
habeas corpus application attacking his state court conviction. ECF No. 1. Petitioner was
ordered to supplement the Petition.
ECF No. 2.
The court is in receipt of Petitioner’s
Supplemental Petition (ECF No. 3) and Motion for Leave to Proceed in Forma Pauperis. ECF
No. 4. The Motion for Leave to Proceed in Forma Pauperis will be granted. After examining
these papers, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing
Section 2254 Cases in the United States District Courts; see also 28 U.S.C. § 2254(e)(2). For
the reasons that follow, the Petition will be denied without prejudice as unexhausted.
Procedural History
Petitioner indicates that on July 19, 2013, after a jury trial conducted in the Circuit Court
for Baltimore City, he was convicted of first degree murder, use of a handgun in the commission
of a felony, and conspiracy to commit murder. He was sentenced to a term of imprisonment for
life. ECF No. 1. Petitioner indicates that he does not know whether an appeal was noted and
that he has not instituted post-conviction proceedings.1 Id.
When filing a federal habeas corpus application under 28 U.S.C. ' 2254, a petitioner
must show that all of his claims have been presented to the state courts. See 28 U.S.C. ' 2254(b)
and (c); see also Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). This exhaustion requirement is
1
A review of the Maryland Judiciary Case search indicates that direct appeal to the Court of Special
Appeals was filed on August 5, 2013, and remains pending. See http://casesearch.courts.state.md.us/inquiry/
inquiryDetail.jis?caseId=111196013&loc=69&detailLoc=DSK8.
satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it.
For a person convicted of a criminal offense in Maryland this may be accomplished either on
direct appeal or in post-conviction proceedings.
To exhaust a claim on direct appeal in non-capital cases, 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., '12201 and '12-301.
To exhaust a claim through post-conviction 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. Code Ann., Crim. Pro. Art., '' 7-101-7-301 and ' 7-109. If the Court of
Special Appeals denies the application, there is no further review available and the claim is
exhausted. See Sherman v. State, 593 A. 2d 670, 670-71 (1991). If, however, the application is
granted but relief on the merits of the claim is denied, the petitioner must seek certiorari to the
Court of Appeals. See Grayson v. State, 728 A.2d 1280, 84085 (1999).
Petitioner has not yet completed the appellate review of his case and has not begun, much
less completed, post-conviction review. His petition here shall be dismissed without prejudice as
unexhausted, to allow him to refile this case after completion of state remedies.
Petitioner is advised that the Antiterrorism and Effective Death Penalty Act of 1996
amended 28 U.S.C. ' 2244 to impose a one-year filing deadline on state prisoners filing
applications for a writ of habeas corpus in federal court.2 Should he wish to refile this petition
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;
2
once he has exhausted his available state court remedies, Petitioner should take care not to miss
this deadline.
A habeas petitioner has no absolute entitlement to appeal a district court's denial of his
motion. See 28 U.S.C. § 2253(c) (1). A certificate of appealability (“COA”) may issue “only if
the applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253 (c) (2). 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 clam 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)). The court will not issue a COA because
Petitioner has not made the requisite showing.
A separate order follows.
March 25, 2014
Date
__________/s/____________________
DEBORAH K. CHASANOW
United States District Judge
(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 postconviction 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.
3
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