Mitchell v. Foxwell et al

Filing 10

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 5/31/2018. (c/m 6/1/2018 aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

ANTHONY L. MITCHELL II, Prisoner
Identification Nos. 328-14 and 2124205,
Petitioner,
v.
Civil Action No. TDC-17-0976
WARDEN RICKY FOXWELL and
THE ATTORNEY GENERAL OF
THE STATE OF MARYLAND,
Respondents.

MEMORANDUM OPINION
Anthony L. Mitchell II, a self-represented

prisoner currently incarcerated at Eastern

Correctional Institution in Westover, Maryland, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C.

S

2254.

In the Petition, Mitchell challenges his 2005 conviction in the

Circuit Court for Harford County, Maryland for attempted second-degree murder and related
offenses. Having reviewed the Petition, Respondent's Answer, and Mitchell's Reply, the Court
finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in
the United States District Courts; 28 U.S.C. ~ 2254(e)(2) (2012).

For the reasons set forth

below, the Petition will be DISMISSED as time-barred.
BACKGROUND
On March 25, 2005, a jury sitting in the Circuit Court for Harford County convicted
Mitchell of attempted second-degree murder and related offenses.
was sentenced to 55 years of imprisonment.

On May 23, 2005, Mitchell

In an unreported opinion filed on January 18, 2008,

the Court of Special Appeals of Maryland

affirmed Mitchell's

judgment

of conviction.

Mitchell's request for further review by the Court of Appeals of Maryland was granted, Mitchell
v. State, 948 A.2d 70 (Md. 2008), but the Court of Appeals affirmed his conviction on April 16,
2009, Mitchell v. State, 969 A.2d 989, 1004 (Md. 2009). Although Mitchell states that he filed a
petition for a writ of certiorari with the United States Supreme Court, his description of that
filing makes clear that he was referring to his state petition for post-conviction relief. Because
there is no record that Mitchell filed a petition for a writ of certiorari with the United States
Supreme Court, his conviction became final for direct appeal purposes on July 15, 2009.

See

Sup. Ct. Rule 13.1 (requiring that a petition for a writ of certiorari be filed within 90 days from
date ofthe judgment from which review is sought).
On June 25, 2010, Mitchell filed a state petition for post-conviction relief in the Circuit
Court for Harford County. In an Order docketed on January 19,2016, the court granted Mitchell
the right to file a belated motion for modification of sentence within 90 days but otherwise
denied post-conviction relief. Mitchell filed an application for leave to appeal that decision on
February 24,2016.

Because the application was not filed within 30 days after entry of judgment,

the Court of Special Appeals dismissed the application on April 4, 2016. Mitchell's motion for
modification of sentence, filed March 7, 2016, was denied on June 29, 2016.
Mitchell signed his federal petition for a writ of habeas corpus on April 1, 2017 and
placed it in the prison mailing system on April 3, 2017. Accordingly, it is deemed filed as of
April 3, 2017.

See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (holding that a prisoner's

filing shall be deemed to have been filed on the date it was deposited with prison authorities for
mailing); United States v. Dorsey, 988 F. Supp. 917, 919-20 (D. Md. 1998).
In the Petition, Mitchell asserts that the trial court erred by failing properly to hearken the
jury on two counts of conviction.

Mitchell also asserts that the State failed to disclose a

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photographic lineup in which witnesses were unable to identify Mitchell and specifically failed
to disclose that a witness who positively identified Mitchell at trial had previously failed to make
an identification.

Finally, Mitchell asserts that the prosecutor delivered an improper rebuttal

argument that shifted the burden of proof to the defense.
In their limited Answer, Respondents assert that the Petition should be dismissed as
untimely pursuant to 28 U.S.c. ~ 2244(d) and that Mitchell has provided no basis for applying
the doctrine of equitable tolling. In his Reply, Mitchell argues that he filed all appeals, petitions
for a writ of certiorari, and petitions for post-conviction relief in a timely manner and that the
one-year limitations period set forth in 28 U.S.C.

S

2244(d) is "extremely ambiguous and

vague." Reply at 3, ECF No.8.
DISCUSSION
A federal petition for a writ of habeas corpus must be filed within one year of the date on
which the prisoner's judgment of conviction became final by the conclusion of direct review or,
ifno appeal was taken, upon the expiration of the time for seeking such review. See 28 U.S.C.
2244(d)(l);

Wall v. Khali, 562 U.S. 545, 549 (2011).

Specifically, the limitations provision

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 0[(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
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(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.

S 2244(d).

"[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 oflimitation under this subsection." 28 U.S.C.
time during which Mitchell's

S 2244(d)(2).

state petition for post-conviction

Accordingly, periods of

relief and equivalent motions

were pending do not count toward the one-year period.
Here, the limitations period began to run, at the latest, on July 15,2009, when the 90-day
period for seeking a writ of certiorari from the United States Supreme Court expired.

Between

July 15,2009 and June 25, 2010, the date that Mitchell filed his state petition for post-conviction
relief, 345 days of the 365 limitation period elapsed.

Mitchell's post-conviction

petition and

sentence reconsideration proceedings were concluded by June 29, 2016. Although 20 days of the
365-day limitation period remained, Mitchell did not file his federal habeas petition until April 3,
2017, 278 days later. During that 278-day period, there were no proceedings in state court that
would serve to toll the limitations period. See 28 U.S.C.

S 2244(d)(2).

Accordingly, the Petition

was filed 258 days after the expiration of the one-year limitations period and is thus time barred.
The one-year period may be subject to equitable tolling. See Harris v. Hutchinson, 209
F.3d 325, 329-30 (4th Cir. 2000).

In order to be entitled to equitable tolling, Mitchell must

establish either that some wrongful conduct by the State contributed to the delay in filing his
federal habeas petition, or that extraordinary circumstances beyond his control or external to his
own conduct prevented him from filing on time. See Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003); Harris, 209 F.3d at 330. "[A]ny resort to equity must be reserved for those rare instances

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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; see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (stating that equitable
tolling requires a showing that the petitioner "has been pursuing his rights diligently, and ... that
some extraordinary circumstance stood in his way").
Here, Mitchell has identified no wrongful conduct by the State that prevented him from
timely filing the Petition.

In asserting that the limitations requirement is ambiguous and vague,

Mitchell essentially argues that his unfamiliarity with the relevant law should excuse his late
filing.

Even if Mitchell misunderstood the rules governing the limitation period, "even in the

case of an unrepresented prisoner, ignorance of the law is not a basis for equitable tolling."
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (concluding that ignorance of the law is
neither extraordinary nor a circumstance beyond the prisoner's control).

Where Mitchell has

failed to provide a basis to warrant equitable tolling, the Court will dismiss the Petition as timebarred.
Rule II(a) of the Rules Governing Section 2254 Cases provides that a district court
"must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant" in such cases.
applicant, 28 U.S.C.

S

Because the accompanying

2253(c)(l)

Order is a final order adverse to the

requires issuance of a certificate of appealability before an

appeal can proceed.
A certificate of appealability may issue if the petitioner has made a "substantial showing
of the denial of a constitutional right."

28 U.S.C.

S

2253(c)(2).

When a district court rejects

constitutional claims on the merits, a petitioner may satisfy the standard by demonstrating that
"reasonable jurists would find the district court's

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assessment

of the constitutional

claims

debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). 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." !d. at 478.
Here, Mitchell's claims are dismissed on procedural grounds, and this Court finds that
Mitchell has not made the requisite showing to warrant a certificate of appealability.
therefore declines to issue a certificate of appealability.

The Court

Mitchell may still request that the

United States Court of Appeals for the Fourth Circuit issue such a certificate. See Lyons v. Lee,
316 F.3d 528, 532 (4th Cir. 2003) (considering whether to grant a certificate of appealability
after the district court declined to issue one).
CONCLUSION
For the foregoing reasons, Mitchell's
DISMISSED as time-barred.

Petition for a Writ of Habeas Corpus will be

The Court will not issue a certificate of appealability.

Order shall issue.

Date:

May 31, 2018
THEODORE D. CH
United States District J

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A separate