Middle v. Green et al

Filing 6

MEMORANDUM OPINION Denying 5 Petitioner's request for counsel, denying 5 Petitioner's request for stay and abeyance; granting Respondent 60 days to file an answer. Signed by Judge Paul W. Grimm on 12/10/2015. (c/s 12/10/2015 bus, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MOHAMED MIDDLE, #1509411
Petitioner
Civil Action No. PWG-15-3333

v
ROBERT L. GREEN and
THE ATTORNEY GENERAL OF THE STATE
OF MARYLAND
Respondents
000

MEMORANDUM OPINION
Petitioner Mohamed Middle, a prisoner housed at the Montgomery County Correction
Facility, seeks habeas corpus relief pursuant to 28 U.S.C.

S

supplemented, Supp. Mot. of Notice & Intro., ECF NO.2.

Because it was unclear whether

Middle's

petition

proceedings.

was exhausted,l

2254.

Middle was given an opportunity

Nov. 12, 2015 Order, ECF NO.4.

Pet., ECF No.1,

to supplement

as

his

Middle has done so. Supp. Pet., ECF NO.5.

For reasons noted herein, Middle's requests for stay and abeyance and appointment of counsel
are DENIED, and his request to proceed with his sole exhausted claim is GRANTED, requiring
response from the State.
Procedural History
As noted in the Memorandum

Opinion filed November

12, 2015, Middle seeks to

invalidate his convictions in the Circuit Court for Montgomery County for stalking, harassment,
malicious destruction of property, and violation of a protective order for which three years of

1 Before a petitioner may seek habeas relief in federal court, he must exhaust each claim
presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy,
455 U.S. 509, 510 (1982).

incarceration was imposed on August 1, 2014. Maryland v. Middle, No. 124298C (Cir. Ct.
Montgomery Cnty., filed Jan. 24, 2014);

2

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.
conviction was upheld in an unreported decision .issued on July 8, 2015.

The judgment

of

See Middle v.

Maryland, No. 1431, 2015 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

Middle v. Maryland, 123 A.3d 1006 (Md. Oct. 19,2015) (Table).
Middle indicates that he' filed a state habeas corpus petition in the Montgomery County
Circuit Court on October 18,2015, and that a state post-conviction petition is "in progress." Pet.
3-5. He alleges violations of due process based on improper admission of other crime evidence
contained in the body of the protective order. Id. at 7. His allegations appear to be related to the
issue raised on direct 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.
In his supplemental pleading, Middle outlines the claims he intends to pursue by way of
state post-conviction review. Most claims center around allegations of ineffective assistance of
counsel, while others focus on evidentiary issues.

Supp. Pet. 1-7. Middle asks for stay and

abeyance of this case in order to complete review of these claims in the state courts. Id. at 7.
Alternatively, he asks that his claim of due process violations based on improper admission of
The record for Criminal Case No. 124298C, is available through the Maryland Judiciary Case
Search (http://casesearch.courts.state.md.us/casesearch/).
Middle also was found guilty on
August 12, 2014, for a violation of probation in Criminal Case No. 122246C and sentenced to
one year of incarceration with credit for 156 days served, to be served consecutive to all other
sentences. Maryland v. Middle, No. 122246C (Cir. Ct. Montgomery Cnty, filed Feb. 21,2013).
The violation of probation conviction is not at issue here.

2

2

other crime evidence, which appears to be exhausted, proceed, and counsel be appointed to
further develop that claim. Id.
Analysis
"Because granting a stay effectively excuses a petitioner's failure to present his claims
first to the state courts," stay and abeyance is "only appropriate

when the district court

determines there was good cause for the petitioner's failure to exhaust his claims first in state
court." Rhines v. Weber, 544 U.S. 269, 277 (2005). Moreover, even if a petitioner had good
cause for that failure, the district court would abuse its discretion if it were to grant him a
stay when his unexhausted claims are plainly meritless. Id. at 278.
Claims of ineffective assistance of counsel present issues most often raised by Maryland
prisoners by way of post-conviction review, and Middle indicates that the preparation of his state
post-conviction petition is underway.3 Middle presents no apparent reason for granting stay and
abeyance, and his request is denied. See id.
Middle has been advised of the possible consequences should he elect to proceed on his
sole exhausted claim. Nov. 12,2015 Order 3-4. He nonetheless chooses to proceed with habeas
review of this claim at this time. Supp. Pet. 7. Respondents shall respond to that claim.
There is no Sixth Amendment right to counsel to pursue a petition for habeas corpus.
See Pennsylvania v. Finely, 481 U.S. 551, 555 (1987).

A court may provide counsel for an

indigent prisoner pursuing a petition for habeas corpus if "the court determines that the interests
of justice so require."

18 U.S.C.

S 3006A(2)(B).

Rule 6(a) of the Rules Governing Section 2254

Cases provides that a court may appoint counsel if it is "necessary for effective utilization of
discovery procedures."

Rule 8(c) mandates that counsel be appointed only "[i]f an evidentiary

3 I decline to speculate as to the merits of these and other claims outlined in Middle's initial and
supplemental petitions.
3

hearing is required." Middle has adequately articulated his claims, and the issue presented is not
unduly complex. At this stage of the proceedings, it does not appear that an evidentiary hearing
is warranted.

Therefore, Middle's

request for appointment of counsel, incorporated

in his

Supplemental Petition, Supp. Pet. 7, will be denied without prejudice, pending examination of
the State's response.
Accordingly, it is this \
1. Petitioner's

tr

day of December, 2015, hereby ORDERED that:

request for appointment

of counsel, incorporated

in ECF No.5,

IS

DENIED without prejudice;
2. Petitioner's request for stay and abeyance, incorporated in ECF No.5, IS DENIED;
3. Respondents SHALL FILE an Answer to the Petition within SIXTY DAYS;
4. Respondents

SHALL PROVIDE

copies of all relevant opinions, materials,

and

transcripts to the court with their answer and provide same to Petitioner;
5. Pursuant to Amended Rule 5(e) Governing 28 U.S.C.

S 2254

Cases, Petitioner MAY

REPLY thirty (30) days after service of Respondents' Answer; and
6. The Clerk SHALL SEND a copy of this Order to Petitioner and SHALL SEND a
copy of the Order and Petition to Edward J. Kelley, Office of the Attorney General
State of Maryland, Criminal Appeals Divi on.

4