Jackson v. Warden, Campbell

Filing 9

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 4/30/2018. (c/m 5/1/2018 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WARREN CLIFTON JACKSON, #432-416,

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Petitioner,

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v.

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WARDEN CASEY CAMPBELL and
THE ATTORNEY GENERAL OF THE
STATE OF MARYLAND,

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Respondents.

Civil Action No. PWG-17-689

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MEMORANDUM OPINION
Self-represented Petitioner Warren Clifton Jackson filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. ~ 2254.

ECF No. 1. The Petition challenges Jackson's 2013

conviction in the Circuit Court for Baltimore City, Maryland for possession of a regulated
firearm after conviction of a disqualifying crime; discharging a gun within Baltimore City limits;
and theft of property valued under $1,000. Id. Respondents filed a Limited Answer in which
they sought dismissal of the Petition as being time-barred under 28 U.S.C. ~ 2244(d)(1)-(2).
ECF NO.4.

Subsequently, Jackson filed a reply, arguing that this Court is not barred from

hearing his claims. ECF NO.7.
I find no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254
Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher
v. Lee, 215 F. 3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C.
~2254(e)(2)).

Because his Petition is time-barred, Jackson's

Petition is dismissed, and a

certificate of appealability shall not issue.
BACKGROUND
Respondents accurately described the background of this case:

In October of 2013, Jackson was convicted in the Circuit Court for
Baltimore City of unlawful possession of a regulated firearm, unlawful
discharging of a firearm, and theft. On December 2,2013, Jackson was sentenced
to serve 15 years in prison. In an unreported opinion filed on February 6, 2015,
the Court of Special Appeals of Maryland affirmed Jackson's convictions.
Jackson's request for further review in the Court of Appeals of Maryland was
denied on May 27, 2015. Jackson did not seek further review in the Supreme
Court ....
On May 27, 2016, Jackson initiated state post conviction proceedings in
the state circuit court. Post conviction relief was denied on October 25, 2016.
Lim. Ans. ~~ 4-5 (citations to exhibits omitted); see also Pet. 1-2; State Ct. Docket 7-12, ECF
No.4-I;

Jackson v. State, No. 2268, Sept. Term 2013 (Md. Ct. Spec. App. Feb. 6, 2015)

(unreported), ECF No. 4-2; Order Denying Cert. (Md. May 27,2015), ECF No. 4-2. Jackson did
not file an application for leave to appeal the denial of post-conviction relief to the Court of
Special Appeals of Maryland. See State Ct. Docket.
In his Petition for Writ of Habeas Corpus filed in this Court, Jackson claims "Ineffective
Assistance of Postconviction

Counsel."

Pet. 3.

Specifically, he asserts that post-conviction

counsel rendered ineffective assistance by "[f]ailing to call trial counsel at his post-conviction
hearing" and by failing to support his claims that trial counsel was ineffective in (a) investigating
and preparing his defense, (b) stipulating that Jackson "was prohibited from possessing

a

firearm," (c) making a closing argument, (d) failing "to obtain an expert on gunshot residue," (e)
failing to object during the State's closing argument, (f) "[f]ailing to request [a] 'no evidence'
jury instruction, (g) failing to object to or highlight inconsistent testimony from State witnesses,
and (h) "[f]ailing to advise Jackson to not testify." Id. at 3-4.
DISCUSSION
The threshold issue in this case is the timeliness of the Petition, as the Court only may
reach the merits of Jackson's claims if the Petition is timely. See 28 U.S.C.

S

2244(d)(l).

A

one-year statute of limitations applies to habeas petitions in non-capital cases for persons

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convicted in state court. See id.; Wall v. Kholi, 562 U.S. 545, 550 (2011). Section 2244(d)(I)
provides that:
A I-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-(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.
28 U.S.C. ~ 2244(d)(l).
Pursuant to ~ 2244(d)(2), "[t]he 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."

28 U.S.C.

~ 2244( d)(2). The limitation period may also be subject to equitable tolling in appropriate cases.
Hollandv. Florida, 560 U.S. 631, 645 (2010); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th
Cir.2000).
As Respondents correctly state, Jackson's judgment of conviction became final for direct
review purposes on August 25, 2015, or 90 days after the Court of Appeals of Maryland denied
his petition for writ of certiorari. Lim. Ans. ~ 4 (citing Sup. Ct. Rule 13.1 (requiring petition for
a writ of certiorari to be filed within 90 days of date of judgment from which review is sought)).
Thus, the statute of limitations began to run on August 26, 2015. See 28 U.S.C. ~ 2244(d)(l).

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Jackson filed his petition for post-conviction relief in state court 276 days later, on May 27,
2016. See State Ct. Docket 9. The limitations period then was statutorily tolled until November
28,2016, when the time for filing an application for leave to appeal from the October 25,2016
denial of post-conviction relief expired and the post-conviction court's ruling became final. See
Md. Rule 8-204 (requiring application to be filed within 30 days of the date of judgment from
which appeal is sought). Jackson filed his Petition for Writ of Habeas Corpus 97 days later, on
March 5, 2017. ECF No.1; see Houston v. Lack, 487 U.S. 266,270-76

(1988); United States v.

Dorsey, 988 F. Supp. 917, 919-20 (D. Md. 1998) (holding that a petition shall be deemed to have
been filed on the date it was "delivered to prison authorities for forwarding" under the prison
mailbox rule); see also United States v. McNeill, 523 F. App'x 979,982-83

(4th Cir. 2013).

In sum, Jackson did not file his Petition until 373 days, or over a year, after his judgment
became final.

Therefore, Jackson's current federal habeas Petition is statutorily time-barred

under 28 U.S.C.

S 2244( d).

Under certain circumstance, the one-year statute of limitations may be subject to
equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). A
petitioner seeking equitable tolling must establish that: (1) the petitioner had been
pursuing his rights diligently, and (2) "some extraordinary circumstance"
prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408,418 (2005)). The extraordinary circumstance
must be beyond the petitioner's control or external to the petitioner's own conduct.
Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
Gladden v. Barber, No. TDC-16~1257, 2017 WL 239372, at *3 (D. Md. Jan. 19, 2017), appeal
dismissed, 692 F. App'x 128 (4th Cir. 2017). Jackson argues that he is "excused for failing to
comply with Maryland's
assistance of postconviction

procedural

rules," because "his ground for relief is ineffective

[sic] counsel- which is a claim that is not barred by AEDPA."

Pet'r's Reply 1-2, ECF No.7 (citing Martinez v. Ryan, 566 U.S. 1 (2012)).
Martinez, however, addressed not equitable tolling, but the question of what
circumstances would provide cause to excuse procedural default, which ordinarily
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bars the consideration of claims that a state court declined to address because of
the failure to comply with a state procedural rule. [566 U.S. at 9-11,] 132 S. Ct. at
1316. Specifically, Martinez held that when state law requires that a claim of
ineffective assistance of trial counsel be raised in the first state collateral
proceeding, "a procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if, in the [state court] initialreview collateral proceeding, there was no counselor counsel in that proceeding
was ineffective." Id. at [17, 132 S. Ct. at] 1320. It provides no foundation for an
equitable tolling argument.
Gladden, 2017 WL 239372, at *3. Consequently, Jackson has not stated a basis for equitable
tolling. See id.
Of course, Jackson's sole claim-that
assistance--eould

his post-conviction counsel rendered ineffective

not have been brought until after the post-conviction proceedings.

But, he still

waited 97 days after the time for filing an application for leave to appeal from the October 25,
2016 denial of post-conviction relief expired and the post-conviction court's ruling became final,
and he has not demonstrated an extraordinary circumstance that prevented him from filing during
that time. Therefore, his Petition must be dismissed. See id.
Moreover, even if it were timely, his claim would fail as a matter of law because it is not
cognizable.

"The ineffectiveness or incompetence of counsel during Federal or State collateral

post-conviction proceedings shall not be a ground for relief in a proceeding arising under section
2254." 28 U.S.C.

9 2254(i);

see also Martinez, 566 U.S. at 17

("9

2254(i) precludes [a habeas

petitioner] from relying on the ineffectiveness of his postconviction attorney as a 'ground for
relief

....

constitutional

"); Mackall v. Angelone,

131 F.3d 442, 448 (4th Cir. 1997) ("There is no

right to an attorney in state post-conviction

proceedings.

Consequently,

a

petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings."
(quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citation omitted))).
In his Reply, Jackson also seeks appointment of counsel.

Pet'r's Reply 5.

Jackson's Petition is time-barred, his request for counsel is denied as moot.
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Given that

CERTIFICATE OF APPEALABILITY
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.

S 2253(c)(2).

When a petition is denied on procedural grounds, the petitioner must show

that reasonable jurists "would find it debatable whether the petition states a valid claim of the
denial of a constitutional right" and "whether the district court was correct in its procedural
ruling."

Slack v. McDaniel, 529 U.S. 473, 478 (2000); see Buck v. Davis, 137 S. Ct. 759, 773

(2017). Because Jackson fails to satisfy this standard, the Court declines to issue a certificate of
appealability.
CONCLUSION
For the foregoing reasons, the Court will dismiss Jackson's Petition for Writ of Habeas
Corpus and decline to issue a certificate of appealability. A separate order follows.

Paul . Grimm
United States District Judge

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