Thomas v. Graham et al
Filing
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MEMORANDUM ORDER denying 4 Motion for Equitable Tolling; Dismissing as time-barred Petition for Writ of Habeas Corpus; the court declines to issue a Certificate of Appealability. Signed by Judge Theodore D. Chuang on 7/27/2015 (c/m 7/27/15 cags, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
RICARDO THOMAS, #336-672,
Petitioner,
v.
RICHARD J. GRAHAM, JR., Warden of
Western Correctional Institution, and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Civil Action No. TDC-14-3163
Respondents.
MEMORANDUM ORDER
On October 2, 2014, I Petitioner Ricardo Thomas filed a Petition for Writ of Habeas
Corpus Under 28 U.S.C.
9
2254 challenging his 2006 convictions in the Circuit Court for
Montgomery County, Maryland for first-degree murder and related offenses. ECF No. 1.
Thomas proceeds pro se. Recognizing that his Petition appears to be untimely, Thomas has also
filed a Motion for Equitable Tolling. See ECF No.4.
At the Court's direction, Respondents
filed a Limited Response that addresses the timeliness of the Petition. ECF No.8. Thomas was
afforded the opportunity to file a Reply and has done so. ECF No. 10. Upon review of the
pleadings and exhibits, the Court finds no need for an evidentiary hearing. See 28 U.S.C.
9 2254(e)(2); Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District
Facilities operated by the Maryland Department of Public Safety and Correctional Services do
not date stamp outgoing prisoner mail. Thomas dated the Petition as October 2, 2014, see ECF
No. 1-7, and the Petition shall be deemed filed as of that date, see Houston v. Lack, 487 U.S.
266, 276 (1988) (concluding that a prisoner pleading is deemed "filed at the time petitioner
delivered it to the prison authorities for forwarding to the court clerk").
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Courts. The Court concludes that the Petition is time-barred. Accordingly, the Motion for
Equitable Tolling is DENIED, and the Petition is DISMISSED.
BACKGROUND
On March 2, 2006, in the Montgomery County Circuit Court, Thomas was convicted of
first-degree murder, armed robbery, illegal use of a handgun, and conspiracy to commit armed
robbery. See Maryland Judiciary Case Search, Criminal Action No. 103170C (Montgomery
Cnty. Cir. Ct. 2014). On June 28, 2006, the court sentenced Thomas to life without parole plus
40 years of imprisonment. Id. at Docket No. 205. On appeal before the Court of Special
Appeals of Maryland, Thomas argued, among other things, that the State erred in failing to
disclose a statement by one of the State's witnesses until the first day of trial. Thomas v. State
("Thomas f'), No. 1012, slip op. at 26-33 (Md. Ct. Spec. App. 2009). In an unreported opinion,
the Court of Special Appeals affirmed Thomas's conviction on May 15, 2009. Id at 1. The
Court of Appeals of Maryland denied certiorari on August 26, 2009. See Maryland Judiciary
Case Search, Criminal Action No. 103170C, Docket No. 229. Thomas did not seek review
before the United States Supreme Court. He acknowledges that his conviction became final on
November 24, 2009, when the 90-day period for seeking Supreme Court review expired. See
Clay v. United States, 537 U.S. 522,525 (2003) (holding that "a judgment of conviction becomes
final when the time expires for filing a petition for certiorari contesting the appellate court's
affirmation of the conviction"); see also Pet'r's Reply at 2, ECF No. 10.
On May 24, 2010, Thomas filed a petition for post-conviction relief in the Montgomery
County Circuit Court. Id at Docket No. 233. On August 29,2011, the petition was withdrawn
at his request. Id. at Docket Nos. 250, 251. Nearly a year later, on August 20, 2012, Thomas
filed another state petition for post-conviction relief. Id. at Docket No. 255. On December 19,
2
2013, following a hearing, the Montgomery County Circuit Court denied the petition.
Docket No. 275.
1d. at
On September 30, 2014, the Court of Special Appeals denied Thomas's
application for leave to appeal. See Thomas v. State ("Thomas 11'), No. 2653, slip op. at 1 (Md.
Ct. Spec. App. 2014).
On October 2, 2014, Thomas filed the Petition in this Court seeking
habeas relief on the ground that the State did not timely disclose a statement made by one of the
State's witnesses before trial. Pet. at 7, ECF No. 1.
DISCUSSION
At issue here is whether the Petition is time-barred.
Under the Antiterrorism
and
Effective Death Penalty Act of 1996 ("AEDP A"), when filing a federal habeas corpus petition
under 28 U.S.C. 9 2254, defendants convicted in state court on a non-capital offense are subject
to a one-year statute of limitations.
See 28 U.S.C. 92244(d) (2012).
The limitations period
begins to 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.
9 2244(d)(l).
Here, under 9 2244(d)(l)(A),
Thomas had until November 24, 2010 to file a
habeas petition in this Court, one year after his conviction became final on November 24,2009.
Thomas is entitled, however, to statutory tolling during the time that his state postconviction petitions were pending.
AEDP A provides that "the time during which a properly
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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." ~ 2244(d)(2). Before Thomas filed his first state petition for post-conviction relief
on May 24, 2010, 179 days had passed since his conviction became final. The limitations period
was tolled until Thomas withdrew his petition on August 29, 2011. An additional 357 days
passed before Thomas refiled his state petition on August 20, 2012, totaling 536 days. The
period between when the Court of Special Appeals denied Thomas's application for leave to
appeal on September 30, 2014, and when he filed the Petition in this Court on October 2, 2014,
added two more days. Thus, 538 days not tolled under AEDPA had passed before Thomas filed
the presently pending Petition. The Petition was filed well outside the one-year limitations
period.
Nevertheless, Thomas argues that he is entitled to equitable tolling because he
encountered a "few setbacks that were beyond his control, such as, a few prison lock-downs,
legal library cancellations, and a major delayed response to a request for documents needed to
prove his case." Mot. Equitable Tolling at 1, ECF NO.4. The one-year time limitations period
for ~ 2254 petitions may be equitably tolled in limited circumstances. Rouse v. Lee, 339 F.3d
238,246 (4th Cir. 2003). Use of equitable tolling is rare and "must be guarded and infrequent."
Id (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)) (internal quotation marks
omitted). Equitable tolling is only available if the petitioner demonstrates that (1) "he has been
pursuing his rights diligently," and (2) "some extraordinary circumstance stood in his way and
prevented timely filing." Whiteside v. United States, 775 F.3d 180, 184 (4th Cir. 2014) (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010)). Such tolling "must be reserved for those rare
circumstances where--due to circumstances external to the party's own conduct-it
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would be
unconscionable to enforce the limitations period" and "gross injustice would result." Rouse, 339
F.3d at 246 (quoting Harris v. Hutchinson, 209 F.3d 325,330 (4th Cir. 2000)).
Thomas argues that this case presents two extraordinary circumstances that prevented
him from filing.
First, he argues that library closures, prison lockdowns, and "unanswered
requests for reference materials" prevented him from filing anything from July 2009 to May
2010. Mot. Equitable Tolling at 1-2; Pet'r's Reply at 2. He claims that the library reopened in
May 2010, allowing him to file a state petition on May 24, 2010.
Id. at 3. Second, Thomas
argues that he was repeatedly denied documents that he requested to support his state petitions.
Id. Thomas had requested documents from the Director of the Montgomery County Correctional
Facility ("MCCF"),
where he was incarcerated
while awaiting trial, about the segregation
procedures at the MCCF barber shop. See Pet. Ex. 3, ECF No. 1-3. Thomas intended to use the
barber shop documents to refute the testimony of the State's witness. See Pet. at 8. He argues
that he was forced to withdraw his first state-court petition on August 29, 2011 because the
MCCF Director was unable to locate the requested documents, and he was only able to re-file for
post-conviction relief in the state court on August 20, 2012 when informed that the documents
had been located. Pet'r's Reply at 3. He claims that the documents were provided to him on or
about September 26,2013, more than three years after he originally requested them on March 27,
2010. Id. at 4.
These circumstances,
however, do not entitle Thomas to equitable tolling.
Courts
universally agree that limited access to the law library, including due to security measures or
segregation of the prisoner, does not constitute extraordinary circumstances and are, in fact, quite
ordinary given the stringent security procedures in prisons. See Ramirez v. Yates, 571 F.3d 993,
998 (9th Cir. 2009) (concluding that three-month segregation and limited access to the law
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library "were neither extraordinary nor made it impossible for [petitioner] to file his petition in a
timely manner");
Tucker v. Kingston, 538 F.3d 732, 735 (7th Cir. 2008) (stating that "a
prisoner's limited access to the prison law library is not grounds for equitable tolling"); Jones v.
Hulick, 449 F.3d 784, 789 (7th Cir. 2006) (declining to grant equitable tolling where petitioner
was segregated for 60 days, had limited access to the law library, and relied on the false promise
that a legal services organization would file the petition for him); Marsh v. Soares, 223 F.3d
1217, 1221 (lOth Cir. 2000) (holding that a 15-day holiday closure of the law library did not
constitute extraordinary
2000)
(concluding
circumstances);
that inadequacy
Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.
of the law library did not constitute
extraordinary
circumstances).
Moreover, Thomas had access to the law library for the seven-month period after it
reopened in May 2010 until the original federal petition deadline expired in November 2010.
Thomas could have filed a federal petition asserting untimely disclosure at any time during that
period, or even during the approximately six-month period after he withdrew his first state
petition on August 29, 2011, during which the statute of limitations had yet to run. See Castille
v. Peoples, 489 U.S. 346, 350 (1989) (quoting Brown v. Allen, 344 U.S. 443, 448-49 & n.3
(l953)) ("[O]nce the state courts have ruled upon a claim, it is not necessary for a petitioner to
ask the state for collateral relief, based upon the same evidence and issues already decided by
direct review." (internal quotation marks omitted)); Kasi v. Angelone, 300 F.3d 487,501-02
(4th
Cir. 2002) (finding that the exhaustion requirement of AEDPA is satisfied if the claim is raised
on direct appeal to the state's highest court and dismissed on the merits).
Furthermore,
the delay in receivi~g
documents
does not constitute
extraordinary
circumstances. The documents for which Thomas had been waiting, excerpts from the MCCF
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barber shop procedures and a letter evidencing that he was segregated from the State's witness in
the barber shop at the time the statement at issue was made, were not necessary to obtain before
filing a federal petition.
A federal petition need only specify the grounds for relief, include a
statement of the supporting facts, state the requested relief, and be signed under penalty of
perjury. See Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District
Courts.
There is no requirement that the petition itself be filed with any or all supporting
documents, particularly where discovery is available when appropriate.
See Rule 6 of the Rules
Governing Section 2254 Cases in the United States District Courts. Finding no grounds entitling
Thomas to equitable tolling, the Court DENIES the Motion. The Petition is time-barred under ~
2244(d)(I).
Finally, the Court will not issue a Certificate of Appealability.
In Slack v. McDaniel, 529
U.S. 473 (2000), the Supreme Court of the United States 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 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."
Id. at 484.
Because Thomas does not satisfy this standard, the Court
declines to issue a Certificate of Appealability.
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Accordingly, it is hereby ORDERED that:
1.
Thomas's Motion for Equitable Tolling, ECF No.4, is DENIED;
2.
The Petition for a Writ of Habeas Corpus, ECF NO.1, is DISMISSED as timebarred;
3.
The Court declines to issue a Certificate of Appealability;
4.
The Clerk shall close this case; and
5.
The Clerk shall send a copy of this Order to Thomas and to counsel for
Respondents.
Date: July 27,2015
THEODORE D. C
United States Distric
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