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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- FI frj IN THE UNITED STATES ()(STRICT COl}RTS~,}J-=- _ r i FOR TilE ()(STRICT OF MAI{YLANI)~'~' .. i.1 . ,.:: Southcrn Division (' "';1T • -,'.::::r 1011 OCT30 A 1/: 2S BURRELL A. ABRAM, * Pctitioncr, * v. * WARDEN R. MILLER, ef al., * Rcspondcnts. * * * * * * * Casc No.: G.nt-17-1535 * * MEMORANDUM * * * 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 * * 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 I 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 , .J 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)). .J 4 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. 6 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 7

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