Fletcher v. Miller et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 8/2/2016. (c/m 08/03/2016 jf3s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
KEVIN DWAYNE FLETCHER,
Inmate Identification No. 341-134,
RICHARD E. MILLER,
Acting Warden of North Branch Correctional
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Civil Action No. TDC-15-0051
On January 7, 2015, Kevin Dwayne Fletcher, who is currently incarcerated at the North
Branch Correctional Institution ("NBCI") in Cumberland, Maryland, filed a Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C.
Fletcher seeks to collaterally attack his 2005
conviction for first-degree murder and use of a handgun during a crime of violence.
February 20,2015, Respondents Acting Warden Richard E. Miller of NBC I ("the Warden") and
the Attorney General of the State of Maryland (collectively, "Respondents")
Answer, asserting that Fletcher's Petition is time-barred under 28 U.S.C.
filed a Limited
2244(d) and should
On February 24, 2016, Fletcher filed a Motion to Add Exhibits to supplement his
Petition, which the Court now grants.
For the reasons set forth below, the Court finds that
under the doctrine of equitable
Petition is not time-barred
tolling and directs
Respondents to file a supplemental Answer addressing the merits of Fletcher's Petition.
On January 29, 2007, the Circuit Court for Baltimore City, Maryland sentenced Fletcher
to life imprisonment plus 20 years after Fletcher had pleaded guilty to first-degree murder and
use of a firearm during a crime of violence. Fletcher directly appealed to the Maryland Court of
Special Appeals, claiming that his guilty plea "was not a voluntary decision because but for the
coerced confession, Petitioner would not have pled guilty." Pet. at 2, ECF No. I!
The Court of
Special Appeals denied his appeal and issued its mandate on June 28, 2007. Fletcher did not file
a petition for a writ of certiorari with the Maryland Court of Appeals or the United States
The Petition for Post-Conviction Relief
On July 30, 2007, Fletcher filed a pro se Petition for Post-Conviction
Circuit Court for Baltimore City?
Fletcher once again claimed that his guilty plea was
involuntary and asserted that he received ineffective assistance of counsel.
his Petition for Post-Conviction
Relief with the
After Fletcher filed
Relief, he secured Mark Gitomer as counsel. On July 13,2009,
Fletcher filed an Amended Petition for Post-Conviction
Court denied Fletcher's Petition on September 22,2009.
Relief through Gitomer.
Fletcher then filed a Motion to Alter or
Amend Judgment on October 26, 2009, which the Circuit Court denied on December 2, 2009.
Citations are to the page numbers in the original documents. When exhibits do not have page
numbers, or contain multiple sets of page numbers, citations are to the page numbers assigned by
the Court's Case ManagementlElectronic Case Files system ("CM/ECF").
For example, the
page numbers associated with the Petition are those assigned by CM/ECF because there are
multiple sets of page numbers.
Although Fletcher asserts that he filed his Petition for Post-Conviction Relief on July 30,
2007, the Circuit Court's memorandum denying the Petition states that it was filed on August 27,
2007. Respondents claim that Fletcher filed his Petition for Post-Conviction Relief on August
29, 2007. Because the Circuit Court docket cited by Respondents states that the "Petition was
actually tId. on 07/30/07," Cir. Ct. Docket at 7, 1st Ans. Ex. 1, ECF No.5-I, the Court will use
the July 30, 2007 date in this Opinion.
On January 4, 2010, Fletcher filed an Application for Leave to Appeal, which the Court of
Special Appeals denied on March 24, 2011. The court issued its accompanying mandate on June
Fletcher did not learn that the Court of Special Appeals denied his Application for Leave
to Appeal until sometime in August or September 2012. On April 25, 2010, Fletcher had written
to Gitomer to ask about his Application for Leave to Appeal.
On August 1, 9, and 15, 2010,
Fletcher again wrote to Gitomer, each time asking for his case file. In his August 1,2010 letter,
Fletcher wrote to Gitomer that "you no longer represent me." Second Gitomer Letter, Pet. Ex. 4,
ECF No. 1-5. On January 4, 2011, Fletcher wrote to Gitomer again asking for the case file and
this time inquiring about "the timeline for a response on the Leave to Appeal."
Letter, Pet. Ex. 7, ECF No. 1-8. On March 22, 2011, Fletcher wrote to Gitomer one last time
asking for the case file and stated, "I've been writing you requesting this file since March/April
of 2010 & you haven't even responded."
Sixth Gitomer Letter, Pet. Ex. 8, ECF No. 1-9. On
December 11,2011, after failing to receive a response from Gitomer, Fletcher wrote to the Court
of Special Appeals asking for a "status update" on his Application for Leave to Appeal.
Md. Ct. Spec. App. Letter, Pet. Ex. 10, ECF NO.1-II.
There is no record of any response to this
Throughout this time period, Fletcher sought legal representation or to advance his case
on his own. While Fletcher was writing to Gitomer asking for his case file and for updates on his
Application for Leave to Appeal, he also wrote a letter to the Baltimore Police Department
asking for "any and all notes/reports
concerning suspension, allege misconduct,
information" to which the Department responded on March 28, 2011.
Baltimore Police Dep't
Letter, Pet. Ex. 9, ECF No. 1-10. In addition, after Fletcher wrote to the Mid-Atlantic Innocence
Project seeking counsel, the Innocence Project visited him at NBCI but then sent him a letter on
January 24, 2012 in which it declined to represent
Fletcher because he was "currently
represented by a lawyer who has filed a post-conviction petition on your behalf."
Project Letter, Pet. Ex. 11, ECF No. 1-12.
On August 14,2012, Fletcher sent a complaint to the Attorney Grievance Commission of
Maryland regarding Gitomer.
On August 29, 2012, the Commission wrote back to Fletcher,
informing him that Gitomer had been disbarred.
Indeed, on July 26, 2012, the Attorney
Grievance Commission of Maryland and Gitomer had filed a Joint Petition for Disbarment by
Consent with the Court of Appeals, which stated:
Multiple complaints are currently pending before the Attorney Grievance
Commission of Maryland, in which it is alleged that the Respondent failed to
represent his clients with reasonable diligence and promptness, failed to
communicate with them concerning the status of their matter, failed to maintain
his unearned fees in escrow, and misappropriated funds from his escrow account
in violation of Maryland Rules of Professional Conduct 1.3, 1.4(a)(2)(3), 1.15(a),
8.4(c)(d), Maryland Rule 16-609, and Business Occupations and Professions
Article ~ 10-306.
Joint Pet. for Disbarment by Consent, Pet. Ex. 23, ECF No. 1-24. On August 1,2012, the Court
of Appeals issued an Order disbarring Gitomer. See Attorney Grievance Comm 'n v. Gitomer, 49
A.3d 333, 333 (Md. 2012).
In the same time frame, on August 12,2012, Fletcher again wrote to the Court of Special
Appeals to seek a "status update" on his Application for Leave to Appeal. Second Md. Ct. Spec.
App. Letter, Pet. Ex. 12, ECF No. 1-13. The Court of Special Appeals responded by sending
him an August 17, 2012 printout of the docket containing an entry stating that his Application
was denied on March 24, 2011, which Fletcher received on September 4,2012.
That same day,
Fletcher wrote back to the Court of Special Appeals, stating that his attorney had been disbarred,
asserting that he had never received a copy of the decision, asking how he could get a copy of the
decision, and seeking guidance because he did not want to lose the opportunity for further
On September 6, 2012, Fletcher wrote to the Maryland Attorney General asking' for a
copy of the opinion, which the Attorney General forwarded to him with a letter dated September
On September 18,2012, Fletcher filed a Motion to Reissue Opinion with the Court of
On October 2, 2012, the Court of Special Appeals sent him a copy of the
opinion and the mandate but did not formally reissue the opinion.
The Motion to Reopen
After learning that Gitomer had been disbarred and that the Court of Special Appeals had
denied his Application for Leave to Appeal, Fletcher wrote to the Maryland Office of the Public
Defender on May 16, 2013 to request representation in filing a Motion to Reopen his postconviction proceedings.
The Office of the Public Defender responded on July 1, 2013, stating
that it was "willing to assign an attorney to review your case" but that "it will probably take
Second Public Defender Letter, Pet. Ex. 19, ECF No. 1-20. Fletcher responded
on July 4, 2013, stating that his "main goal in raising these allegations in the Motion to Reopen
[is] to preserve these allegations for Federal Court" and that if "waiting for your office to
represent me will interfere with filing my Federal Habeas Corpus, then I just cannot take that
risk." Third Public Defender Letter, Pet. Ex. 20, ECF No. 1-21.
On August 16,2013, Fletcher mailed a pro se Motion to Reopen Closed Post Conviction
Proceeding and Request for Hearing ("Motion to Reopen") to the Circuit Court for Baltimore
City, which was docketed on August 26,2013.
In the motion, Fletcher once again asserted that
his guilty plea was involuntary and that he received ineffective assistance of counsel from his
Fletcher also asserted that, for the reasons Gitomer was disbarred, Gitomer also
provided ineffective assistance of counsel during post-conviction proceedings.
On September 3,
2014, the Circuit Court denied Fletcher's Motion to Reopen.3 On October 1,2014, Fletcher filed
an Application for Leave to Appeal with the Court of Special Appeals.
On January 7, 2015,
Fletcher filed the pending Petition for Writ of Habeas Corpus pro se. As of that date, the Court
of Special Appeals had not ruled on the Application for Leave to Appeal the Motion to Reopen.
Respondents assert that Fletcher's Petition is barred by the one-year statute of limitations
that applies to habeas petitions for non-capital
state court convictions.
See 28 U.S.C.
2244(d)(I) (2012). However, this one-year period is tolled while properly filed post-conviction
proceedings are pending.
See 28 U.S.c.
Fletcher asserts that his Petition should
be deemed timely because with the exception of a period of less than one year, the time between
his state court conviction and the filing of his Petition consists of either time that was tolled by
proceedings or time that should be equitably tolled.
There are three time periods after Fletcher's conviction that affect whether his Petition is
(1) the period between September 26,2007, when his direct appeal
ended, and June 16,2011, when the Court of Special Appeals issued the mandate on its decision
denying his Application for Leave to Appeal his Petition for Post-Conviction
Relief; (2) the
period between June 16, 2011 and September 16,2012, when Fletcher first received the opinion
issued by the Court of Special Appeals; and (3) the period from that date to the filing of the
January 7, 2015 Petition for a Writ of Habeas Corpus, during which Fletcher filed his Motion to
Fletcher and Respondents assert that the Circuit Court denied Fletcher's Motion to Reopen on
September 4, 2014. However, the Circuit Court docket indicates that the order denying the
motion was date-stamped September 3,2014.
First Period: Fletcher's Petition for Post-Conviction Relief
The Circuit Court sentenced Fletcher on January 29, 2007, and the Court of Special
Appeals issued its mandate denying his direct appeal on June 28, 2007.
The mandate of the
Court of Special Appeals constitutes the judgment of that court. See Md. R. 8-606. The direct
review of this judgment therefore ended on September 26, 2007, when the time for seeking
S. Ct. R. 13.1 (stating that
"a petition for writ of certiorari to review a judgment in any case ...
entered by a state court of
review in the Supreme Court expired. See 28 U.S.C.
last resort ... is timely when it is filed ... within 90 days after entry of the judgment").
The limitations period did not begin to run then. On July 30, 2007, nearly two months
before the time period for seeking review in the Supreme Court expired, Fletcher filed a Petition
Relief with the Circuit Court for Baltimore City, thus tolling the limitations
period. See 28 U.S.C.
The Circuit Court denied Fletcher's Petition on September
The Court of Special Appeals denied Fletcher's Application for Leave to Appeal this
decision on March 24, 2011, and the mandate issued on June 16, 2011. Thus, the time period
from July 30, 2007 to June 16, 2011 was also tolled.
See 28 U.S.C.
2244(d)(2) ("The 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."); see also Resp'ts' Limited Ans. Pet. Writ Habeas Corpus and
Order Show Cause ("1st Ans.") at 4 (acknowledging that Fletcher's post-eonviction
proceedings "tolled the Section 2244( d) limitations period until June 16, 2011 ").
Second Period: Equitable Tolling
The next time Fletcher claims to have filed an application for state post-conviction
was August 16,2013, when he filed his Motion to Reopen. Because
the period between June 16,2011 and August 16,2013 exceeds one year, the limitations period
would appear to have run. Fletcher, however, asserts that some portion of this time period
should be subject to equitable tolling because his attorney stopped communicating with him,
such that he was not notified of the ruling on his Application for Leave to Appeal until
The Supreme Court has held that the limitations period of 28 U.S.C.
subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010).
however, is extraordinarily rare.
2244 can be
"(A]ny resort to equity must be reserved for those rare
to circumstances external to the party's own conduct-it
unconscionable to enforce the limitation against the party and gross injustice would result." See
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). A petitioner is entitled to equitable
tolling only upon a showing (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 (citation omitted). An attorney's mistake in interpreting the limitations period under
92244 does not, by itself, constitute an extraordinary circumstance.
See Harris, 209 F.3d at 330.
However, an attorney's repeated violation of "fundamental canons of professional responsibility"
in a manner that seriously prejudices a client ,may constitute an extraordinary circumstance.
Holland, 560 U.S. at 652-53.
In Holland, the Supreme Court held that a death row inmate
whose attorney failed to file his federal habeas petition on time could satisfy this requirement
where the inmate had sent the attorney numerous letters seeking information on whether the state
supreme court had decided his case and requesting that the attorney file the petition. Id. at 65253. The Court found that the attorney's failure to file a timely petition or even to inform his
client about the state court's decision that restarted the limitations period violated rules of
professional responsibility requiring attorneys to "communicate with their clients . . . to keep
their clients informed of key developments in their cases, and never to abandon a client" and thus
could justify equitable tolling.
Id.; Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000)
(stating that equitable tolling may be available upon a showing that the defendant did not receive
notice of the denial of his appeal).
Here, Fletcher has set forth comparable extraordinary circumstances.
Fletcher wrote six
letters to Gitomer between April 25, 2010 and March 22, 2011 asking for his case file and the
status of his Application for Leave to Appeal.
Gitomer did not respond.
determined that Gitomer should no longer be his attorney, Gitomer ignored requests for the case
file. Even when the March 24, 2011 decision and June 16,2011 mandate were issued, Gitomer
did not inform Fletcher. As a result of his attorney's failure to communicate, Fletcher wrote to
the Court of Special Appeals in December 2011 to ask for information on the status of his
Although his Application had been denied months before, he received no response
from the court. Only when he sent another request for information to the court in August 2012
was he finally notified of the court's ruling.
Such abandonment of a client plainly violated the rules of professional responsibility.
fact, the Court of Appeals of Maryland has issued an opinion disbarring Gitomer based on a
pattern of violations of the Maryland Rules of Professional Conduct comparable to those that
prejudiced Fletcher. See Gitomer, 49 A.3d at 333; Joint Pet. for Disbarment by Consent ~ 3, Pet.
Ex. 23 ("Multiple complaints are currently pending before the Attorney Grievance Comm~ssion
of Maryland, in which it is alleged that the Respondent failed to represent his clients with
reasonable diligence and promptness, failed to communicate with them concerning the status of
their matter ....
conduct, particularly the lack of communication
regarding the Court of Special Appeals decision on Fletcher's Application for Leave to Appeal
circumstances and stood in the way of Fletcher filing a timely petition. See Holland, 560 U.S. at
In addition, Fletcher pursued his rights diligently.
tolling purposes is 'reasonable diligence.'''
"The diligence required for equitable
Holland, 560 U.S. at 653. In Holland, the Court
noted that the inmate's numerous letters to his attorney and to the court, and his immediate filing
of a pro se petition upon learning that his attorney had missed the deadline, likely established
Id. As discussed above, Fletcher wrote six letters to Gitomer between
April 25, 2010 and March 22, 2011 to determine the status of his Application for Leave to
Appeal. See Holland, 560 U.S. at 653. He also wrote to the Court of Special Appeals twice to
check whether that court had ruled on his Application and filed a complaint with the Attorney
Grievance Commission of Maryland regarding Gitomer. See id. (finding diligence because the
petitioner "also repeatedly contacted the state courts, their clerks, and the Florida State Bar
Association in an effort to have Collins-the
central impediment to the pursuit of his legal
from his case"). When he finally received information from the court that the
decision had issued, he promptly filed a Motion to Reissue Opinion with that court on September
18, 2012, presumably to move the formal date of the decision forward for purposes of the
limitations period. Fletcher sought to obtain new counsel, through the Innocence Project and the
Maryland Office of the Public Defender, before filing a pro se Motion to Reopen in an effort to
preserve his rights.
These efforts demonstrate "reasonable diligence"
equitable tolling under the circumstances.
sufficient to warrant
Accordingly, because extraordinary circumstances stood in Fletcher's way and because
Fletcher diligently pursued his rights, equitable tolling is appropriate. The record is not clear on
when Fletcher was notified that the Court of Special Appeals had denied his Application for
Leave to Appeal, or when he actually received the opinion. In response to his August 12, 2012
letter to the Court of Special Appeals, Fletcher received a printout of the docket, dated August
There is no record of when this printout was mailed out or received, but Fletcher
asserts that he received it on September 4,2012, the date that he wrote back requesting a copy of
the opinion. He then wrote to the Maryland Attorney General on September 6, 2012 to request a
copy of the opinion, which was mailed to him with a letter dated September 13,2012.
no record that the Court of Special Appeals mailed him the opinion until October 2, 2012, in
response to Fletcher's September 18,2012 Motion to Reissue Opinion.
Notably, had his attorney not abandoned him, Fletcher would have received notice of the
decision and opinion at the same time, when the court sent the opinion to his attorney. Because
the printout dated August 17, 2012 was not accompanied by the opinion or mandate, which
would need to be reviewed prior to taking further action, the Court equitably tolls the time period
from June 16,2011, the date the mandate issued, until September 16,2012, three days after the
opinion was mailed out to Fletcher for the first time. Cf Fed. R. Civ. P. 6(d) (adding three days
to court deadlines to account for mailing).
Third Period: Motion to Reopen
Fletcher mailed his Motion to Reopen to the Circuit Court for Baltimore City on August
16, 2013. Although Respondents claim that Fletcher filed his Motion to Reopen on August 26,
2013, in the case of a pro se prisoner, the operative date for filing is the date the prisoner
delivered the document to prison authorities to be forwarded to the court.
See R. Governing
Section 2254 Cases 3(d) (stating that "[a] paper filed by an inmate confined in an institution is
timely if deposited in the institution's
internal mailing system on or before the last day for
filing"); Houston v. Lack, 487 U.S. 266, 271 (1988) (holding that a prisoner's notice of appeal
was filed when he delivered it to prison authorities because a pro se prisoner is "unable to leave
the prison" and the prisoner's "control over the processing of his notice necessarily ceases as
soon as he hands it over to the only public officials to whom he has access-the
Because Fletcher's Certificate of Service states that he mailed the Motion to
Reopen on August 16, 2013, Fletcher's Motion to Reopen is deemed to have been filed on that
date. Accordingly, the period of time prior to the filing consumed II months, from September
16,2012 to August 16, 2013, and thus did not exceed the one-year limitations period.4
Fletcher asserts that the Motion to Reopen tolled the limitations period from that date
until the filing of his Petition on January 7, 2015.
application for State post-conviction
"The time during which a properly filed
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
28 U.S.C. 92244(d)(2).
The Supreme Court has broadly defined an application for-
"collateral review" to include a motion seeking ''judicial review that occurs in proceedings
outside of the direct review process."
Wall v. Kholi, 562 U.S. 545, 560 (2011) (holding that a
motion to reduce the sentenced constituted an application for collateral review that tolled the
limitations period for filing a habeas petition).
Such a broad reading is warranted because
"[t]olling the limitations for all 'collateral review' motions provides both litigants and States
The Court notes that even if the period of equitable tolling were deemed to have ended on
August 17, 2012, the date of the printout of the docket, or September 4,2012, the date by which
Fletcher acknowledged having received it without the opinion, the elapsed time on the 9
2244(d)(2) limitations period would not exceed one year.
with an opportunity to resolve objections at the state level, potentially obviating the need for a
litigant to resort to federal court." Id. at 558.
A motion to reopen such as the one filed by Fletcher is contemplated by Maryland's
Uniform Post Conviction Procedure Act, which states: "The court may reopen a postconviction
proceeding that was previously concluded if the court determines that the action is in the
interests of justice." Md. Code Ann., Crim. Proc.
S 7-104 (West 2011).
As Respondents have
acknowledged, under Wall, a motion to reopen post-conviction proceedings that was properly
filed would toll the limitations period under
2244(d)(2). See Wall, 562 U.S. at 560. An
application for post-conviction relief is '''properly filed' when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8
(2000). Section 7-104 does not dictate any time limitation for filing a motion to reopen, and
Fletcher successfully mailed his Motion to the Circuit Court, so his motion is "properly filed."
See id. Notably, Fletcher's Motion to Reopen sought to exhaust state court remedies on an issue
not previously presented, specifically, ineffective assistance of counsel during the postconviction proceedings. The Court therefore finds that the limitations period was tolled during
the pendency of the Motion to Reopen.
Although the Circuit Court denied Fletcher's Motion to Reopen, as of the filing of this
Petition, Fletcher's Application for Leave to Appeal that decision remained pending before the
Court of Special Appeals. Accordingly, the period between August 16, 2013, when Fletcher
filed his Motion to Reopen, and January 7, 2015, when Fletcher filed his Petition for a Writ of
Habeas Corpus, is tolled under
Accordingly, when the period of equitable tolling
is applied, the one-year limitations period under S 2244(d) had not expired when Fletcher filed
his Petition. The Petition is not time-barred.
For the foregoing reasons, Fletcher's
Petition is not time-barred
Respondents must therefore file a supplemental Answer to address the substantive allegations in
Fletcher's Petition. See R. Governing Section 2254 Cases 5(b). A separate Order shall issue.
Date: August 2,2016
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