Tyler v. Graham et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 1/18/2017. (c/m 1/19/2017 ah4s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

THOMAS TYREE TYLER,
Prisoner Identification No. 402-497,
Petitioner,
v.

Civil Action No. TDC-14-3144

RICHARD J. GRAHAM, Jr., Warden, and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Respondents.

MEMORANDUM OPINION
Thomas Tyree Tyler, currently confined at the Western Correctional

Institution in

Cumberland, Maryland, has filed a Petition for Habeas Corpus pursuant to 28 U.S.c.

S

2254.

The Petition challenges Tyler's 2012 conviction in the Circuit Court for Prince George's County,
Maryland for conspiracy to commit first-degree murder.

Respondents filed an Answer to the

Petition seeking dismissal of the Petition based on failure to exhaust available state court
remedies pursuant to 28 U.S.C.

S

2254(b).

For the reasons set forth below, the Petition is

dismissed without prejudice.
BACKGROUND
On December 2, 2011, Tyler was convicted by a jury in the Circuit Court for Prince
George's County, Maryland of conspiracy to commit first-degree murder. On March 7, 2012, he
was sentenced to life imprisonment with all but 60 years suspended.

With the assistance of

counsel, Tyler filed an appeal to the Court of Special Appeals of Maryland, arguing that the trial
court erred by: (1) denying Tyler's request for a special jury instruction on the identification of

the defendant; (2) denying Tyler's motion in limine to exclude identification testimony and
Tyler's

later motion for a mistrial after two witnesses,

who had not been disclosed as

identification witnesses prior to trial, identified Tyler in court; (3) denying Tyler's challenge to
the State's alleged systematic pattern of discriminatory preemptory challenges; and (4) denying
Tyler's motion for judgment of acquittal based on insufficient evidence. On March 26,2013, the
Court of Special Appeals affirmed Tyler's conviction in an unreported opinion.

Tyler v. State,

No. 0195 (Md. Ct. Spec. App. Mar. 26, 2013). Tyler filed a petition for writ of certiorari to the
Court of Appeals of Maryland, which was denied on July 5, 2013. Tyler v. State, 69 A.3d 477
(table) (Md. 2013). Tyler filed the present federal Petition on October 1, 2014. At the time he
filed this Petition, Tyler was drafting but had not yet filed a state petition for post-conviction
relief. On January 5, 2015, Tyler filed a petition for post-conviction relief in the Circuit Court
for Prince George's County, Maryland, which remains pending.
DISCUSSION
In his Petition to this Court, Tyler alleges ineffective assistance of counsel and asserts
that his trial counsel failed to prepare for a pretrial hearing about, or obtain an expert witness on,
witness identification; failed to investigate and impeach a State witness, Antwone Brown; and
failed to make proper and specific arguments on his motion for judgment of acquittal. Tyler also
alleges that his counsel was ineffective for failing to "raise meritorious issues" on appeal.
10, ECF No.1.

Pet.

The Government argues that the Petition should be dismissed because Tyler's

claims have not been raised in state court, so he has not exhausted all available state court
remedies as required by 28 U.S.C.

S 2254(b)(l).

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I.

Exhaustion of State Remedies
A prisoner seeking habeas relief in federal court must exhaust each claim by first

pursuing the remedies available in state court. 28 U.S.C. 9 2254(b)(l) (2012); Rose v. Lundy,
455 U.S. 509, 510 (1982).

This exhaustion requirement is satisfied by seeking review of the

claim in the highest state court with jurisdiction to consider the claim. See 28 U.S.C. 92254(c).
For a person

convicted

of a criminal

offense

in Maryland,

accomplished either on direct appeal or in post-conviction proceedings.

exhaustion

may be

To exhaust a claim on

direct appeal in non-capital cases, a defendant must assert it in an appeal to the Court of Special
Appeals of Maryland and then to the Court of Appeals of Maryland by way of a petition for a
writ of certiorari.

See Md. Code Ann., Cts. & Jud. Proc, 99 12-201, 12-301 (West 2011). To

exhaust a claim through post-conviction proceedings, a defendant must assert it in a petition filed
in the Circuit Court where the inmate was convicted within 10 years of the date of sentencing.
See Md. Code Ann., Crim. Proc. 99 7-101 to -103 (West 2011).

After a decision on a post-

conviction petition, further review is available through an application for leave to appeal filed
with the Court of Special Appeals.

Id. 9 7-109.

If the Court of Special Appeals denies the

application, there is no further review available and the claim is exhausted. Md. Code Ann., Cts.
& Jud. Proc. 9 12-202.

If the application is granted, but relief on the merits of the claim is

denied, a prisoner must file a petition for writ of certiorari to the Court of Appeals of Maryland.
See Williams v. State, 438 A.2d 1301, 1304-05 (Md. 1981).
Here, Tyler's Sixth Amendment claims are unexhausted because they may be raised on
state post-conviction review. See Moseley v. State, 836 A.2d 678,684-85 (Md. 2003) ("[A] postconviction proceeding pursuant to the Maryland Uniform Post Conviction Procedure Act is the
most appropriate way to raise the claim of ineffective assistance of counsel." (footnote and

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internal citation omitted)). Since the filing of his federal Petition, Tyler filed such a state petition
for post-conviction relief on January 5, 2015, which remains pending. Because Tyler has yet to
exhaust his state court remedies before the highest court with jurisdiction to consider the claims,
the Petition is subject to dismissal for lack of exhaustion. See 28 U.S.C. ~ 2254(b)(1).
Nevertheless, Tyler argues that his Petition should be stayed and held in abeyance until
the state court completes its review of his ineffective assistance claims. Although such a remedy
is available, "stay and abeyance should be available only in limited circumstances."

.

Rhines v.

Weber, 544 U.S. 269, 277 (2005).

Frequent use of "stay and abeyance" would undermine the

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objectives of Congress, in enacting the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No 104-132, 110 Stat. 1214, of encouraging finality and streamlining habeas
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proceedings.

Rhines, 544 U.S. at 277. A stay and abeyance is therefore only appropriate where

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there is "good cause for the petitioner's failure to exhaust his claims first to the state courts," the
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petitioner's "unexhausted claims are potentially meritorious," and there is no indication that the

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petitioner engaged in "abusive litigation tactics or intentional delay." Id. at 277-78.
Here, Tyler has provided no "good cause" for his failure to first file his state postconviction petition.

Tyler has asserted that he was held on a detainer at an unknown location,

but that detainer was lifted on November 27,2013 and thus would not have prevented him from
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filing a state post-conviction
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petition before he filed his federal petition on October 1, 2014.
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Such a state post-conviction petition would have tolled the one-year limitations period for filing

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~federal petition. See 28 U.S.C. ~ 2244(d)(2).

Nor has he provided reason to conclude that his

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unexhausted claims,' b~sed on ineffective assistance of counsel, are potentially meritorious,
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p'lrticularly where a review of the briefs submitted on appeal on his behalf indicate that trial and

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~ppellate counsel represented Tyler competently. and zealously.

Accordingly, the Court finds

that granting a stay and abeyance in this case is not warranted.
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II.

Certificate of Appealability
Rule 11(a) of the ~ules Governing Section 2254 Cases provides that the district court
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"must issue or deny a certificate of appealability when it enters a final order adverse to the
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applicant" in such cases.
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applicant, 28 U.S.C.

Because the accompanying
.

Order is a final order adverse to the

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2253(c)(l)

requires issuance of a certificate of appealability before an

appeal can proceed. .
A certificate of appealability may issue if the prisoner has made a "substantial showing of
the denial of a constitutional right."
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28 U.S.C.

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2253(c)(2).

When a district court rejects

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constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that
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"reasonable jurists would
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find the district court's

assessment

of the constitutional

claims

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debatable or wrong;" Slack v.McDaniel,

529 U.S. 473, 484 (2000). When a petition is denied

on procedural grounds, the petitionetmust

show that reasonable jurists "would find it debatable

whether the. petition states a valid claim. of the denial of a constitutional right:' and "whether the
district court was correct in its procedural ruling;" ld. at 478.
Here, Tyler's claims are dismissed on procedural grounds, and this Court finds that Tyler
has not made the requisite showing to warrant a certificate of appealability.
declines to issue a certificate of appealability.

The Court therefore

Tyler may still request that the United States

Court of Appeals for the Fourth Circuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528,
532 (4th Cir. 2003) (considering whether to grant a certificate of appealability after the district
court declined toissue one).

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CONCLUSION
For the foregoing reasons, it is hereby ordered that the Petition for Writ of Habeas Corpus
is dismissed without prejudice as unexhausted, and the Court declines to issue a certificate of
appealability.

A separate Order shall issue.

Date: January 18,2017
THEODORE D. CHU
United States District J

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