Abram v. Warden R Miller

Filing 8

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 10/30/2017. (kns, Deputy Clerk)(c/m 10/30/17)

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IN THE UNITED STATES ()(STRICT COl}RTS~,}J-=- _ r
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FOR TilE ()(STRICT OF MAI{YLANI)~'~' .. i.1 . ,.::
Southcrn Division

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1011 OCT30 A 1/: 2S
BURRELL A. ABRAM,

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Pctitioncr,

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v.

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WARDEN R. MILLER, ef al.,

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Rcspondcnts.

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Casc No.: G.nt-17-1535

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MEMORANDUM

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OPINION

Burrell A. Ahram. an inmate at the Roxhury Correctional

Institution in Ilagerstown.

Maryland. liled a Petition for Writ of Haheas Corpus regarding his 2004 convictions
degree rape and related offenses. ECF No. I. In a limited answer. Respondents

1<»'second.

Warden R. Miller

and the Attorney General of the State of Maryland argue that the petition is time-harred
Anti.Terrorism

and Effective Death Penalty Act ("AEDPA").

that the petition is untimely but asks the Court to nevertheless

under the

ECF NO.4. Ahram aeknO\vledges
consider his case "in the interest of

justice" and hecause of his belief that "time should not be considered,"
evidentiary

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ECF NO.7,

'0

hearing is necessary, See Rule 8(a). Rules GOl'emill}.: Seelioll 225-1 C(lses ill/he

Ulli/ed S/(I/es Dis/riel Cour/s: see a/so 28 U,S.c.

~ 2254(e)(2),

For reasons sct l<lI,thherein. the

Petition is denied,
I.

BACKGROUND'
On February 24, 2004. ancr a jury trial in the Circuit Court 1<11'IowaI'd County. Abram
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was convicted of second-degree

I

rape. third-degree

The facts relied on herein are either ulldisputed

sexual olknse.

and I<Hlrth-degrce scxual

or viewed in the light most l~lVorable to the

nOIl-lllovant.

offcnsc. ECI' No. 4-1 at 22 Abram was sentenccd

on March 29. 2004. to a twcnty year tcrm or

Id. at 3. He appcalcd his convictions

to the Court of Special Appcals of Maryland.

confinemcnt.

which. on April 26. 2005. affirmcd

thcjudgments.

ECI' NO.1 at 2. Thc court's

mandatc was

issucd on May 31. 2005. ECF No. 4-1 at 7. Ahram liled a pctition for writ of ccrtiorari
Court of Appcals of Maryland.

which was dcnicd on August 12.2005.

405 (2005). He did not seek rurthcr revicw. Therclore.
November

See lIarris

12.2005.

timc for appealing
certiorari

Abram's

to thc

A/moil \'. Slale. 388 Md.

convictions

bccamc linal on

\". III1IChiIlSOIl. 209 F.3d 325. 328 n.1 (4th Cir. 2(00) (noting that

state court conviction

coneludes

in the Suprcmc Court. 90 days. expircs):

when timc for filing pctition ftl!' writ or
Sup. Ct. R.I3.1.

On Junc 23. 2004. while his dircct appcal was pending. Abram filcd a motion ftlr
reconsideration

o I' his sentcncc.

which was considered

by thc circuit court. ECF 4-1 at 7. Ahram

thc motion on January 27. 20 I O. and the motion was denied on May II. 2010. !d. at

amendcd
11-12.

On April 6. 2006. Abram filed an application

ftlr post-conviction

court. secking in part thc right to file a belated application

ftll"rcvicw of his scntencc pursuant to

Ann. Codc or Md. Crim. I'ro. ~ 8-102. ECI' 4-1 at 8. On Junc 15.2007.
Abram thc ahility to file an application
in all other rcspects.
conviction
Thc court's

!d. at 8-9. Abram's

for review ofscntcncc
application

relicI' in thc circuit

the circuit court grantcd

hut dcnicd post-conviction

rclicr

ftH Icavc to appcal thc dcnial of othcr post-

relicI' was dcnied hy the Court or Spccial Appcals on Fchruary 4. 2008. ECF No. 4-2.
mandate

issued on March 10.2008.

Abram filed a bclated application
dcnicd on August

1. 2008. ECF NO.4-I

:. Pin cites to doculllents
by that system.

!d.

for rcvicw of his sentencc on July 9. 2007. which was
a19. 11.

filed on the Court's electronic filing system (CM/ECF) refer to the page Ilumbers generated

Abram tiled the instant petition on June 5. 20t 7:' alleging that no physical evidence was
presented at his trial. that the judge was biased against him, that a character witness was not
called on his behalf: and that the state used a "blank period" of time when the crime \\as alleged
to have been committed. thcreby thwarting his ability to defend himself, ECF NO.1 at 5. On
August 15.2017. pursuant to the Court's Ordcr. Respondents tilcd a limited answer. arguing that
the petition is timc-barrcd and should be dismissed on that basis. ECl' NO.4. Abram responded
on August 30. 2017. and supplemcnted his response on Septembcr 13. 2017. ECI' NO.6: ECI'
NO.7.
II.

STANDARD

OF REVIEW

A one-year statute oflimitation
persons convicted in state court.

SI!I!

applies to habeas petitions in non-capital cases for

28 U.S.c. ~ 2244(d)( I): Wall \'. Kho/i. 562 U.S. 545. 550

(201 I). Section 2244(d)(I) provides that:
A 1-year period of limitation sball apply to an application I'lr a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation pcriod shall run Irom thc latest of~(A)the date on which the judgment became tinal by the conclusion of
direct revicw or the expiration of the time for seeking such review:
(B) the date on which the impedimcnt to filing an application created by
State action in violation ofthc Constitution or Imvs of the United
Statcs is removed. if the applicant was prevented Ii'om tiling by such
State action:
(C) the date on which the constitutional right asserted was initially
recognizcd by the Supreme Court. if the right has been newly
recognized by the Supreme COUl1and made retroactively applicable to
cases on collateral review: or
(D) the date on which the factual predicate of the elaim or claims presented
could have bcen discovered through the cxercise of due diligence.
28 U.S.c. ~ 2244(d)( I).

The Petition is dated June 1.2017.
266. 276 (1988).

J

and is deemed to have been tiled

,
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011

that date. See Houston \'. Luch . ..t87 U.S.

Pursuant to ~ 2244(d)(2).
post-conviction

"ltJhe time during which a properly tiled application

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:'
2244(d)(2).

for State

28 U.S.c.~

The limitation period may also be subject to equitable tolling in appropriate

Hol/cmd \'. Florida. 560 U.S. 631. 645 (20 I0): lIorris

I'.

cases.

HlIIcl1il1.\()l1.209 F.3d 325. 329-30 (4th

Cir. 20(0).
III.

DISCUSSION
A. Timeliness
Respondents

arguc that thc petition is time-barred

Abram acknowledges

any timeliness issues. ECI' NO.7.

As noted above. Abram's

concluded

convictions

became tinal on November

began to run on November

13.2005.

12.2005.

Abram's post-conviction

on March 10. 2008. During this time. his motion for reconsideration

on June 23.2004.

ECF NO.4.

that his petition is not timely. but requests that the Court consider his

Petition notwithstanding

statute of limitations

and should bc dismissed.

and the
proceedings

of sentence. filed

remained pending. The motion was denied on May 11. 201 O.~Assuming.

without deciding. that Abram had properly tiled post-conviction
to statutorily toll the limitations

proceedings

period. at the latest those proceedings

which would serve

concluded on May 11.

20 I O. Abram did not file the instant case until June 5. 2017. over seven years later. By then the
limitations

period t()r filing a federal habeas petition had long expired .

This District has held that a Illotion for modification of sentence under Maryland Rule 4-345 does not toll the
limitations period under 28 U.s.c. ~2254(d). See Roberls \'. Slole o('\/(//:r/(///(I. No. 11-1227.2013 WL 5882786 (D.
Md. Oct. 29. 20 13)(citing raskeI' \'. Slote. No. 11-1869. 2013 WL 425040 (D. Md. Jan. 31. 2013). olTd. 517 F.
App'x. 172 (4th Cir. 2013) (aflinned because the petitioner's brief did not "challenge the basis for the district COUl1's
disposition:" waiving appellate review of the order)).

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B. Equitable Tolling
Although hc docs not usc the term "cquitablc tolling:' in csscnce Abram argucs that thc
statute of limitations should be equitably tollcd, See ECF No, 7 (arguing that ..[tJimc should oot
have a bearing on a casc" "in the intercst of just icc"), Thc Court of Appeals for thc Fourth
Circuit has consistcntly hcld that a party sccking to avail itself of equitable tolling must show
that (1) cxtraordinary circumstances, (2) beyond his control or external to his own conduct (3)
prevented him fi'om tiling on time. Rouse \', Lee, 339 F.3d 238, 246 (4th Cir. 2003) (ell hOlle),
Furthcr, to bc cntitled to equitablc tolling, a habcas pctitioner must show: ..( I) that hc has bccn
pursuing his rights diligently, and (2) that somc cxtraordinary circumstancc stood in his way and
prevcnted timely filing:' Ho/laml, 560 U.S. at 649 (intcrnal quotation marks omittcd): see also
Harris, 209 F.3d at 330 (stating that "any invocation of equity to rclicvc thc strict application of
a statute of limitations must bc guarded and infrequent" and "rcscrvcd for thosc rarc instances
where-duc

to circumstances cxtcrnal to the party's own conduct-it

would bc unconscionable

to cnforcc the limitation pcriod against thc party and gross injusticc would rcsult"),
Ignorance ofthc law docs not constitute grounds !iJr cquitablc tolling. See Ulliled Slales
\'. Sosa, 364 F.3d 507. 512 (4th Cir. 2004) (stating that "cvcn in thc casc of an unrcpresented
prisoncr. ignorance ofthc law is not a basis fiJI'equitable tolling"). Moreover. Abram's lack of
knowlcdge cannot bc considcred "cxtraordinary" or somcthing "cxtcrnal" to him. See iel.
("Sosa's misconccption about the operation ofthc statute of limitations is ncithcr cxtraordinary
nor a circumstancc external to his control."): see also Rouse. 339 F.3d at 246: Harris. 209 F.3d
at 330, l'inally, although ..[tJhe diligence requircd lor cquitable tolling purposcs is rcasonable
diligence, not maximum feasible diligence:' Ho/lalld, 560 U.S. at 653 (intcrnal citations and

5

quotation

marks omitted).

light ofthc

the Court cannot find that Abram actcd with reasonable

in

seven year delay in filing the instant petition,

The Court concludes
Petition is time-barrcd

IV.

diligencc

that Abram is not entitlcd to equitable

tolling, Accordingly,

the

and is denicd,

CERTIFICATE OF APPEALABILITY
Pursuant to Rule II(a) of the Rules Governing

court is rcquired to issue or deny a certificate

of appealability

to the applicant.

is a 'jurisdictional

A certificate

of appealability

the court's earlier order. UI/iled Slales \', fladdel/.

a habeas petition solely on procedural

appealability

will not issuc unless the petitioner

of reason would tind it debatable
constitutional

(quoting Slack
dcmonstrate
otherwise.

I'.

McDal/iel.

that a procedural

prerequisite"

to an appeallrom

grounds. a certificate

can demonstrate

When a
of

both ..( I) .thatjurists

whethcr the petition states a valid claim of the denial of a

right' and (2) .thatjurists

court was correct in its procedural

when it enters a final order adversc

475 F.3d 652. 659 (4th Cir. 2(07),

district court dismisses
C'COA")

under 28 U,S.c. ~ 2254, the

Proceedings

of reason would find it debatable

whether the district

ruling .... Rouse \'. I.ee. 252 F.3d 676, 684 (4th Cir. 2001)

529 U.S, 473. 484 (2000».

A litigant sccking a COA must

ruling barring relief is itself debatable

the appeal would not "deserve

encouragcmcnt

among jurists of reason:

to proceed limher."

Buck \'. D{/\'is, 137

S. Ct. 759. 777 (2017) (quoting Slack, 529 U.S. at 484),
Here. it is clear that Abram did not comply with the one-year statute of limitations
2244(d)( I). and that he has not sufliciently

demonstrated

"jurists of reason" would not find this to be debatable.

that he is entitled to equitable
ThereliJre.

of ~

tolling:

this Court will not issue a

5 Denial ofa eGA in the district court does not preclude Abram from requesting a eOA Ii"om the United States
Court of Appeals for the Fourth Circuit.

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V.

CONCLUSION
For the foregoing reasons. Abram's Petition for Writ of lIaheas Corpus. ECF No. I. is

denied and this action is dismissed. A separate Order 1()lIows.

Dated: Oetoher5'°.

2017
GEORGE J. IIAZEL

United States District Judge

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