Dixon v. Warden

Filing 12

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 11/19/2018. (c/m 11/20/18 nu, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

KEVIN LEON DIXON,
Petitioner,
v.

Civil Action No. TDC-I7-I938

RICHARD DOVEY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Respondents.

MEMORANDUM OPINION
Petitioner Kevin Leon Dixon, an inmate at the Maryland Correctional Training Center in
Hagerstown, Maryland, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ~ 2254
in which he collaterally attacks his 2008 conviction for second-degree assault. Respondents have
filed a Limited Answer in which they argue that the Petition should be dismissed as untimely.
Pursuant to Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002), Dixon was afforded an opportunity
to explain why the Petition should not be dismissed as time-barred. The Court then received from
Dixon a filing in which he asks the Court 11 questions seeking details about the assault for which
he was convicted and asserts that he is incarcerated for second-degree assault "without any
'evidence' or 'proof.'"

Limited Reply at 1, ECF No. 11. Upon review ofthe submitted materials,

the Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254
Cases in the United States District Courts; D. Md. Local R. 105.6. For the reasons set forth below,
the Petition will be DISMISSED as time-barred.

BACKGROUND
On September 23, 2008, Dixon entered an Alford plea to second-degree assault in the
Circuit Court for Somerset County, Maryland.

He was sentenced to ten years of imprisonment

with all but 18 months suspended, to be followed by five years of supervised probation.

On

October 20,2008, the court amended Dixon's probation to include a requirement of sex offender
registration. Dixon did not seek leave to appeal from the judgment.
On August 9,2010, Dixon was found guilty of violating the terms of his probation.

As a

result, on March 8, 2011, the circuit court imposed the remaining eight years and six months of his
previously suspended sentence. Dixon sought leave to appeal that judgment on October 4,2011.
On October 19,2011, his application was denied as untimely. Dixon did not seek further review
of the denial.
On May 27, 2014, Dixon filed a petition for post-conviction relief, which he supplemented
on January 29, 2015. The circuit court construed Dixon's post-conviction petition as a motion to
correct an illegal sentence, and on April 21, 2015, the court granted the motion to the extent that
Dixon sought to strike the requirement that he register as a sex offender. The circuit court's ruling
did not affect the ten-year sentence that had been imposed. Dixon did not seek leave to appeal that
decision.
Dixon filed the instant Petition on July 5, 2017. See Houston v. Lack, 487 U.S. 266, 276
(1988) (holding that a prisoner's submission is deemed to have been filed on the date it was
deposited in the prison mailing system).

On August 31, 2017, Dixon filed another petition for

post-conviction relief in state court, which the circuit court dismissed on September 28, 2017.

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DISCUSSION
In their Limited Answer, Respondents assert that the Petition should be dismissed as timebarred because it was filed well beyond the one-year limitations period of28 U.S.C.

S 2244(d).

In

particular, Respondents highlight that, after Dixon's conviction became final, there were no state
post-conviction or other collateral review proceedings pending in Dixon's case between: (1) April
7, 2011 and May 26, 20 14 (over three years); and (2) May 21, 2015 and August 31, 20 17 (over
two years). These periods, individually and collectively, exceed one year. Although Dixon has
sent correspondence to the Court following the filing of Respondents' Limited Answer, he has not
addressed the timeliness of his Petition.
I.

Legal Standard
A petition for a writ of habeas corpus may be granted only for violations of the Constitution

or laws of the United States.

28 U.S.C.

S 2254(a)

(2012).

Such a petition is subject to the

following statutory limitations period:
(1) A I-year period oflimitation 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 ofthe United
States is removed, ifthe 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.
Id.

S 2244(d)(l).

This one-year period

conviction petitions are pending. Id.
II.

IS,

however, tolled while properly filed state post-

S 2244( d)(2).

Timeliness
Dixon did not seek leave to appeal the March 8, 2011 judgment of the circuit court

imposing the remaining eight years and six months of his previously suspended sentence after he
violated conditions of probation.

Therefore, the one-year limitations period began running on

April 7, 2011, when Dixon's conviction became final upon the expiration of the time period for
filing an application for leave to appeal to the Court of Special Appeals of Maryland.

See Md.

Rule 8-204(b)(2) (stating that an application for leave to appeal must be filed within 30 days of
the entry of the judgment from which the appeal is sought). Because Dixon did not file his first
state petition for post-conviction relief until May 27, 2014, the limitations period ran uninterrupted
until it expired on April 7, 2012. See 28 U.S.C.

S 2244(d).

Dixon fails to assert, and the Court

cannot identify, a basis for finding that any of the later dates for the commencement
limitations period, as specified in 28 U.S.C.

S

2244(d)(l)(B)-(D),

of the

are applicable to his Petition.

Thus, the Petition is time-barred.
As discussed above, the circuit court construed Dixon's May 27, 2014 post-conviction
petition to be a motion to correct an illegal sentence and granted it in part by rescinding the
requirement of sex offender registration. Even if this Court were to deem the circuit court's ruling
on that motion as a new judgment, Dixon's Petition in this Court would still be time-barred.

The

ruling became final on May 21, 2015, more than a year before Dixon filed either this action, on
July 5,2017, or his second post-conviction petition in the circuit court, on August 31, 2017.

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III.

Equitable Tolling
Under certain circumstances, the statute of limitations for habeas petitions may be subject

to equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 325,329-30

(4th Cir. 2000); United

States v. Prescott, 221 F.3d 686, 687-88 (4th Cir. 2000). A petitioner seeking equitable tolling
must show either that there was wrongful conduct by the respondent that prevented the petitioner
from filing on time, or that there were "extraordinary circumstances" beyond the petitioner's
control or external to the petitioner's own conduct that prevented timely filing of a petition. Harris,
209 F.3d at 330; Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en bane). The application of
equitable tolling must be "guarded and infrequent" and "reserved for those rare instances wheredue 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.
Ignorance of the law is not a basis for equitable tolling. See United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004). Here, Dixon presents, and the Court finds, no persuasive basis for equitable
tolling of the limitations period.
IV.

Certificate of Appealability
When the district court dismisses or denies a petition for a writ of habeas corpus, an inmate

may appeal the ruling only upon the issuance of a certificate of appealability.

S 2253( c)(1).

28 U.S.C.

A certificate of appealability may issue "only if the applicant has made a substantial

showing of the denial of a constitutional right." Id

S 2253(c)(2).

When a district court rejects

constitutional claims on the merits, a petitioner satisfies the standard by demonstrating that "jurists
of reason could disagree with the district court's resolution of [the] constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further." Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322,

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327 (2003)). When a petition is denied on procedural grounds, the petitioner meets the standard
with a showing 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, 484 (2000). Because Dixon fails to satisfy
this standard, the Court declines to issue a certificate of appealability. Dixon 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).
CONCLUSION
For the foregoing reasons, the Petition is DISMISSED as time-barred. The Court declines
to issue a certificate of appealability. A separate Order shall issue.

Date: November 19,2018
THEODORE D. CHUA
United States District Ju

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