Crosby v. Maryland Department of Corrections
MEMORANDUM OPINION (c/m to Petitioner 1/9/18 sat). Signed by Judge Deborah K. Chasanow on 1/9/2018. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROBERT ANTHONY CROSBY, #344-818,
MARYLAND DEPARTMENT OF
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Civil Action No. DKC-16-3481
On October 17, 2016,1 Petitioner Robert Anthony Crosby filed this 28 U.S.C. § 2254
(2012) habeas corpus Petition attacking his 2007 convictions for distributing cocaine and
conspiracy to distribute cocaine. ECF No. 1. On December 21, 2016, Respondents filed an
answer solely addressing the timeliness of Petition. ECF No. 5. After being advised of his right
to do so, Petitioner responded to the answer. ECF Nos. 6, 7. Subsequently, this Court ordered
the Respondents to address the merits of the Petition. ECF No. 8. The Respondents have done
so, and Petitioner has replied to these arguments. ECF Nos. 12, 13.
This matter has been fully briefed. Upon review, the court finds no need for an
evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States
District Courts; Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th
Cir. 2000) (Petitioner not entitled to hearing under 28 U.S.C. § 2254(e)(2)). For the reasons set
forth herein, the Court will deny and dismiss the Petition with prejudice.
Petitioner avers that this is the date he mailed the Petition. ECF No. 1 at 15. Because Petitioner is
incarcerated, he is entitled to the benefit of the prison mailbox rule, which provides that a prisoner’s filing of a court
document is complete on the date he or she gives the document to prison officials for mailing. See Houston v. Lack,
487 U.S. 266, 270-72 (1988).
FACTUAL & PROCEDURAL HISTORY
Following a jury trial in the Circuit Court for Washington County, Maryland, Petitioner
was convicted of distributing cocaine and conspiracy to distribute cocaine. ECF No. 1 at 1. On
July 6, 2007, he was sentenced to 40 years’ imprisonment for the distribution conviction, with
the first 25 years to be served without the possibility of parole. ECF No. 1 at 1; ECF No. 4-1 at
9. He received a concurrent term of 20 years’ imprisonment for the conspiracy conviction. ECF
No. 4-1 at 9. Petitioner noted a timely appeal. In an unreported opinion filed on July 23, 2009,
the Court of Special Appeals of Maryland affirmed the convictions. ECF No. 5-2. A petition for
a writ of certiorari was denied by the Court of Appeals of Maryland on November 13, 2009.
Crosby v. State, 938 A.2d 432 (Md. 2009). Petitioner did not seek review by the United States
Supreme Court. Thus, his convictions became final on February 11, 2010, when the time for
seeking further review expired. See Sup. Ct. Rule 13.1 (petition for writ of certiorari to be filed
no later than 90 days after entry of judgment from which review is sought).
On October 2, 2013, more than three years after his conviction became final, Petitioner
filed a petition for post-conviction relief (“PCR”) pursuant to the Maryland Uniform
Post-Conviction Procedure Act, Md. Code Ann., Crim. Pro. § 7-102, et seq.
ECF No. 5-1 at 10;
ECF No. 12-3 at 1. After conducting an evidentiary hearing, the court denied the PCR on July 6,
2015. ECF No. 12-3. Petitioner applied for leave to appeal this decision to the Court of Special
Appeals, which denied his application on March 18, 2016. ECF No. 5-1 at 14. The Court of
Special Appeals’ mandate issued on April 8, 2016. ECF No. 5-1 at 14. The Clerk received
Petitioner’s § 2254 Petition on October 19, 2016. ECF No. 1.
CLAIMS FOR RELIEF
In his § 2254 petition, Petitioner contends that he is entitled to habeas relief because the
State committed Brady2 violations when it: (1) “merely indicated that the forensic chemist was
an expert and provided a lab report indicating the results of lab testing as well as a chain of
custody,” but failed to provide “additional information regarding the expert witness or lab
testing”; and (2) disclosed that a confidential informant “was working ‘in consideration for
leniency in charges’ . . . [but] failed to provide any additional information regarding [the
informant], the specific charges she was facing, or the benefit she was receiving in exchange for
her cooperation.” ECF No. 1 at 5, 7. Petitioner also seeks habeas relief on the ground that his
counsel was ineffective for allowing certain evidence to be presented to the jury regarding his
alleged involvement in a prior unrelated robbery. ECF No. 1 at 8. Specifically, he refers to
counsel’s failure to move in limine to exclude such evidence, her decision to ask follow-up
questions of a witness testifying about the robbery, and her failure to move for a mistrial or seek
a curative jury instruction based on such testimony. ECF No. 1 at 8.
Timeliness is a threshold consideration when examining Petitioner’s claims. Pursuant to
28 U.S.C. § 2244(d),
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the withholding by the prosecution,
whether or not the prosecution acted in good faith, of evidence favorable to an accused upon request violates due
process where the evidence is material either to a defendant's guilt or punishment.
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;
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
the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise
of due diligence.
This one-year period is, however, tolled while properly filed post-conviction proceedings are
pending. § 2244(d)(2).
The limitations period may also be equitably tolled. In order to be entitled to equitable
tolling, Petitioner must establish that some wrongful conduct by Respondents contributed to the
delay in filing the post-conviction petition or that circumstances outside Petitioner’s control caused
the delay. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003); Harris v. Hutchinson, 209 F.3d 325,
330 (4th Cir. 2000). The application of equitable tolling must be “guarded and infrequent,” and
“reserved for those rare instances where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitation period against the party and gross
injustice would result.” Harris, 209 F.3d at 330. To the extent delay might be attributed to
Petitioner’s lack of understanding of the law, unfamiliarity with the law may not be used to justify
equitable tolling. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
Prosecutorial Misconduct Claims
Under § 2244(d)(1)(A), the Petition is clearly untimely as to the Petitioner’s prosecutorial
misconduct3 claims. As previously noted, Petitioner’s judgment became final on February 11,
Although he cites Brady in connection with his claims regarding the prosecutor, Petitioner does not allege
that any of the evidence at issue is exculpatory, which is a critical component of a Brady claim. Further, it does not
appear from the record that such argument, if raised, would be meritorious.
2010. Thus, the one-year limitations period under § 2244(d)(1)(A) expired on February 11,
2011, two and a half years before Petitioner sought state or federal habeas review. Petitioner
does not argue, nor does it appear from the record, that subsections (B) or (C) of § 2244(d)(1) are
applicable to the instant case. Instead, Petitioner contends that the prosecutorial misconduct
claims are timely under § 2244(d)(1)(D) because “the date on which the factual predicate of the
[the prosecutorial misconduct claims] could have been discovered through the exercise of due
diligence” was June 8, 2015.4 ECF No. 7 at 2-3. It was on this date that the PCR court
conducted an evidentiary hearing at which the State’s Attorney testified. See generally ECF No.
13-2 (PCR hearing transcript). According to Petitioner, the State’s Attorney testified that he
failed to provide Petitioner with certain laboratory testing materials that were required under Md.
Rule 4-263,5 and failed to provide the specific details regarding the benefits that the confidential
informant would receive in exchange for testifying against Petitioner.
ECF No. 7 at 3-5.
Petitioner claims that he did not discover these facts until the State’s Attorney testified to them at
the PCR hearing, thereby triggering § 2244(d)(1)(D).
The court concludes that the limitations period under § 2244(d)(1)(D) does not apply to
Petitioner’s prosecutorial misconduct claims. It appears that Petitioner erroneously interprets
§ 2244(d)(1)(D)’s language “could have been discovered” as being synonymous with the date of
actual discovery. As to the testing materials, this claim “could have been discovered” at the time
Because properly filed PCR proceedings were pending on this date and those proceedings did not end until
April 7, 2016, Petitioner ultimately argues that, by operation of both § 2244(d)(1)(D) and (d)(2), the one-year
limitations period did not begin running until April 8, 2016. ECF No. 7 at 2.
Rule 4-263 does not specifically identify the types of testing materials that are discoverable. However, in
2003, the Maryland Court of Appeals applied Rule 4-263 in the context of laboratory testing materials and ruled that
laboratory written standard operating procedures, calibration records, proficiency testing records of the scientist, and
other related scientific testing materials were discoverable under Rule 4-263 where relevant. Cole v. State, 835 A.2d
600, 609-10 (Md. 2003).
of trial by comparing the testing materials provided by the State with the testing materials that
the Maryland Court of Appeals identified as discoverable in its 2003 opinion Cole v. State, 835
A.2d 600 (Md. 2003). That Petitioner may have personally been unaware of the Cole case until
his PCR hearing does not save his argument, as it was publically accessible—and thus “could
have been discovered”—at the time of trial.6
Petitioner’s claim regarding the informant’s specific benefit for testifying fails for a
similar reason. Petitioner acknowledges that the state informed him generally during discovery
that the informant was testifying in exchange for leniency, ECF No. 1 at 7, and he states that “the
extent of [the informant’s] deals were provided through [trial] testimony,” ECF No. 7 at 5. The
significance, if any, of the difference between the evidence about the informant that the
Petitioner received during discovery and the evidence provided through trial testimony should
have been apparent upon the witness’ testimony at trial. Thus, even before the trial was over,
“the factual predicate of the claim” not only “could have been discovered,” § 2244(d)(1)(D), but
was, in fact, known.
Accordingly, Petitioner’s claims regarding the prosecutor were filed
beyond the one-year limitations period specified in § 2244(d)(1)(A)-(D). Petitioner does not
argue, and the record does not indicate, that equitable tolling is applicable to the prosecutorial
Counsel’s Inaction Claim
Next, the court turns to Petitioner’s claim that trial counsel was ineffective for failing to
take certain actions at various stages of the proceedings regarding evidence of Petitioner’s prior
bad act. Petitioner does not argue, and the record does not demonstrate, that the claim is timely
under any of § 2244(d)(1)’s subsections. Instead, he appears to argue that equitable tolling
In any event, it appears that Petitioner knew of Cole’s import before the PCR hearing, as he states that
July 8, 2015 was the date he was “concretely made aware” that the State failed to provide some information about
laboratory testing, but “it was presumed that this information should exist per law.” ECF No. 7 at 4.
should apply. ECF No. 7 at 5-8. Under Petitioner’s view, during his efforts to exhaust his state
remedies as required under § 2254, the one-year limitations period would run and likely expire
before he had the ability to submit a “properly filed [PCR] application” with the state that would
toll the accrual of the limitations period under § 2244(d)(2). ECF No. 7 at 5-7.
Petitioner’s argument must be rejected, as it is based on an erroneous premise. Petitioner
appears to believe that exhausting state remedies and having a properly filed state PCR
application are distinct and exclusive concepts, but this is not the case. In Maryland, exhaustion
in a non-capital case can be accomplished by raising the claim in a direct appeal, if one is
permitted, to the Court of Special Appeals of Maryland and then to the Court of Appeals of
Maryland by way of a petition for writ of certiorari. See Md. Code Ann., Cts. & Jud. Proc.,
§§ 12-201, 12-301. Alternatively, exhaustion may be accomplished through post-conviction
proceedings by filing a PCR application in the Circuit Court and an application for leave to
appeal to the Court of Special Appeals if relief is denied in the Circuit Court. Md. Code Ann.,
Crim. Pro. § 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. § 12-202.
However, if the application is granted but relief on the merits of the claim is denied, the
petitioner must file a petition for writ of certiorari to the Court of Appeals. Williams v. State,
438 A.2d 1301, 1308 (1981).
Under the direct appeal approach to exhaustion, the limitations period would not run
during the pendency of the appeal because there would not yet be a final judgment triggering
§ 2244(d)(1)(A). Under the post-conviction route, the limitations period would be statutorily
tolled per § 2244(d)(2), provided that the petitioner sought State PCR review within one year of
the final judgment.7 Thus, the proper exhaustion of state remedies does not encroach on the oneyear limitations period.
Further, the state’s more generous ten-year limitations period for seeking PCR review has
no effect on the one-year federal limitations period. A petitioner can readily avail himself of
both state and federal avenues for post-conviction review simply by: (1) filing his PCR petition
within one year of the entry of final judgment, and (2) ensuring that the time that elapses
between the entry of final judgment and filing of the state PCR petition, coupled with the time
that elapses between the dismissal of the state PCR petition and filing of the §2254 petition,
totals less than one year. Because Petitioner does not identify wrongful conduct by Respondents
or other circumstances beyond his control which prevented him from taking these steps,
Petitioner has not established that he is entitled to the benefit of equitable tolling, and this claim
must also be dismissed as untimely.
The Petition for habeas corpus relief will be denied and this case dismissed by separate
order. When a district court dismisses a habeas petition, a certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). When a district court dismisses a habeas petition solely on procedural
grounds, a petitioner satisfies this standard by demonstrating “(1) that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional right
and (2) that jurists of reason would find it debatable whether the district court was correct in its
Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (internal quotation marks
If more than one year had passed between the entry of final judgment and the commencement of state PCR
proceedings, there would be no time left for § 2244(d)(2) to toll.
omitted); see Buck v. Davis, 137 S.Ct. 759, 773 (2017). Because Crosby fails to satisfy this
standard the Court declines to issue a certificate of appealability.8
A separate order follows.
January 9, 2018
DEBORAH K. CHASANOW
United States District Judge
Denial of a certificate of appealability in the district court does not preclude Crosby from requesting a
certificate of appealability from the appellate court.
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