Middle v. Green et al
Filing
4
MEMORANDUM OPINION AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis ;granting petitioner twenty-one days from the date of this Order to supplement his petition. Signed by Judge Paul W. Grimm on 11/12/2015. (c/m 11/13/2015 aos, Deputy Clerk)
FIL .0
U.S. OISHWr r..li''I'l
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT
Southerll
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MIDDLE,
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Petitioner,
v.
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ROBERT
CIVIL ACTION NO. PWG-15-3333
*
L GREEN et aI.,
Respondents.
*****
MEMORANDUM
OPINION
Petitioner Mohamed Middle. a prisoner housed at the Montgomery County Correction
Facility, seeks habeas corpus rclief pursuant to 28 U.S.c.
supplemented,
~ 2254.
Pet., ECF No. I, as
Suppl. Motion of Notice and Introduction, ECF NO.2.
Because it is unclear
whether Middle's
petition is exhausted,
Middle will be granted an opportunity
to further
supplement his pleadings.
Procedural
HistorY
Middle seeks to invalidatc his convictions in the Circuit Court for Montgomcry County
for stalking, harassment, malicious destruction of property. and violation of a protective order for
which three years of incarceration was imposed on August I, 2014.
Mmylalld v. Middle, No.
124298C (Cir. Ct. Montgomery Cnty. filed Jan. 24, 2014);1 see also Pet. 2. Middle appealed his
conviction to the Court of Special Appeals of Maryland. arguing that the Circuit Court erred in
admitting the entirety of the protective order instead of admitting only the first page. Pet. 2-3.
The record for this case is available through the Maryland Judiciary Case Search
(http://casesearch.courts.state.md.us/easesearchf).
Middle also was found guilty on August 12,
2014. f()r a violation of probation and sentenced to one year of incarceration with credit for 156
days served, to be served consecutive to all other sentences. Mmylaml v. Middle, No. 122246C
(Cir. Ct. Montgomery Cnty. liled Feb. 21, 2013). The violation of probation conviction is not at
issue here.
The judgment of conviction was uphcld in an unreported decision. See Middle v. Maryland. No.
1431. 20 J 5 WL 5968904 (Md. Ct. Spec. App . .July 8, 2015).
Middle's petition for certiorari
review was denied by the Court of Appeals of Maryland on October 28, 2015. See Aliddle v.
/v!aryland, Pet. Docket No. 329 (Md. Oct. 19.2015).
Middle indicates he Jiled a statc habeas corpus petition
111
the Montgomery
County
Circuit Court on October 18, 2015. and that preparation of a state post-conviction petition is "in
progress"
Pet. 3-5.
Hc allegcs violations of due process based on improper admission of other
crime evidence contained in the body of the protective order. /d. at 7. His claim appears to be
related to the issue raised on direet appeal and may be exhausted for the purpose of federal
habeas relief
Middle also states that he intends to "present supplemental issues" in this petition
after completion of additional state court proceedings.
Id.
Analvsis
Before a petitioner may seek habeas relief in federal court, he must exhaust eaeh claim
presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy.
455 U.S. 509. 510 (1982).
This exhaustion requirement is satisJied by seeking review of the
claim in the highest state court with jurisdiction to consider the claim. See 28 U.S.C.
S
2254(b)-
(e). In Maryland, this may be accomplished by procceding alier conviction with certain claims
on direct appeal and thereafter seeking certiorari to the Court of Appeals, and with other claims
by way of a post-conviction
petition, followed by petitioning the Court of Special Appeals for
leave to appeal.
Middle requests permission to supplement his petition with additional grounds for relief
alier completing pending state court proceedings.
Pet. 5. In essence, he is seeking stay and
abeyance pending completion of state review of yet unidentified claims.
2
Stay and abeyance is
available in limited circumstances "[b ]ecause granting a stay effectively excuses a petitioner's
failure to present his claims tirst to the state courts." Rhines
It is "only appropriate
1'.
Weber, 544 U.S. 269, 277 (2005).
when the district court determines
there was good cause for the
petitioner's failure to exhaust his claims tirst in state court" and is unavailable if the unexhausted
claims are "plainly meritless." 1£1.
Middle otTers no explanation as to what claims he intends to raise, when his state postconviction claims will be initiated, or why this court should grant a stay.
In light of his self:
represented status, he will be provided an opportunity to supplement his apparent request for stay
and abeyance with any claim he might have to support a finding for good cause to excuse his
failure to exhaust.
Alternatively, he may (1) inform this court that he wishes to proceed at this
time on his sole exhausted ground for relief concerning the admissibility of the entire protective
order, or (2) ask to withdraw this ease without prejudice, which would allow him to return to
federal court after complete exhaustion of all of his claims, including those he may present in
state post-conviction proceedings2
Middle is advised that should he choose to proceed solely on his evidentiary claim
concerning the protective order. his ability to later seck habeas relief trom this court on other
grounds will be greatly restricted.
Under the Antiterrorism and Effective Death Penalty Act of
1996. a petitioner may file a second or successive habeas corpus petition only if he has moved
the appropriate federal circuit court f()r an order authorizing the district court to consider his
application.
See 28 U.S.c. ~ 2244(b)(3): Evans
1'.
Smith, 220 F.3d 306, 323 (4th Cir. 2000).
Middle is advised that a one-year statute of limitations applies to habeas petitions in noncapital cases for a person convicted in a state court. See 28 U.S.c. S 2244(d). This one-year
period is tolled while properly filed post-conviction proceedings or other collateral review
proceedings are pending and may otherwise be equitably tolled. See 28 U.S.C. ~ 2244(d)(2);
Harris 1'. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000) (one-year limitations period subject
to equitable tolling); see also Wall \'. Kho/i, 562 U.S. 545, 549 (2011).
3
Thus, before this court may consider any second petition, the United States Court of Appeals for
the Fourth Circuit must enter an order authorizing this court to consider the petition for habeas
corpus relief. See 28 U.S.C. ~ 2244(b)(3)(A); In re Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997)
(en bane).
ORDER
For the foregoing reasons, it is this
fI'
{2- day
of November, 2015, by the United States
District Court for the District of Maryland, hereby ordered that:
I.
Petitioner's
motion for leave to proceed in forma paupens,
ECF No.3,
IS
GRANTED;
2.
Petitioner
IS GRANTED
twenty-one
days from the date of this Order to
supplement his petition as noted herein; an
3.
Paul W. Grimm
United States District Judge
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