Pierce v. Foxwell et al

Filing 8

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 5/10/2018. (kns, Deputy Clerk)(c/m 5/11/18)

FILED
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COUR!l1S1RICT OF MARYLAND
FOR THE DISTRICT OF MARYLAND
Southern Division
ZOl8 MAY lOP 1I: 10
CLERK'S

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Oc'if c-

AT GKEr~E~~~:

STEVIE PIERCE, #36-t761I,

g'r' __

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Petitioner,

Case No.: G.JH-I7-2226

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v.

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RICKEY FOXWELL,ef 1//.,

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Respondents.

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MEMORANDUM OPINION
Petitioner Stevie Pierce. an inmate con lined at the Eastel1l Correctional Institution in
Westover. Maryland. has li!ell a Petition Itll' Habeas Corpus pursuant to 28 U.S.c.

* 2254. ECF

NO.1. No hearing is neecssary. Loe. R. 105.6 (D. Md. 2(16). For reasons set jt)!'th below. the
Petition shall be denied.
I.

BACKGROUND
On August 4. 2017. the Court received Pierce's sell:represented Petition It)r Writ of

Ilabeas Corpus pursuant to 28 U.S.c.

* 2254. The Petition was signed on August 2. 2017. and

shall be deemed Iiled as of that date. See HOllstoll l'. Lack. 487 U.S. 266. 270-76 (1988): Ulli/ed
SillIes \'. McNeill. 523 F. App'x. 979. 983 (4th Cir. 201]): Ulliled Slales
917.919-20

l'.

Dorsey. 988 F. Supp.

(D. I\ld. 1998) (holding a petition shall be deemed to have been Iiled on the date it

was deposited with prison authorities for mailing under the "prison mailbox" rule).
The Petition challcnges Pierce's 2010 conviction in the Circuit Court 1'01'
Baltimore City
It)!'distribution of heroin. On August II. 2017. the Court issued an Order requiring Respondents
to tile an answer to the Petition within lal1y days and granted Pierce thirty days to Iile a reply.

ECF NO.3. Respondents filed a Limited Answer to the Petition on September 12.2017. seeking
dismissal of the Petition premised on the argument that Pieree's claims arc time-barred. ECF No.
4. Pierce has filed a Reply. ECF NO.5.
II.

DISCUSSION
A. Petition and Limitations

Period

According to the state court docket. Pierce pled guilty to the distribution of heroin. ECF
NO.4-I. Pursuant to the plea agreement. on or about August 23. 20 IO. he was sentenccd to a 28ycar term. No appeal was filed. Ilowever. Piercc filed a motion for modification ofscntence on
or about February 7. 2012. and his term was rcduccd to 20 years by Judge Lynn K. Stewart on
January 23. 2013./d. As he did not seck leave to appeal from his new sentence. Respondents
argue his criminal judgment became final tor direct appeal purposes as of February 22. 2013. See
Md. Rule 8-204 (application for leavc to appcalmust "be tiled within 30 days after cntry of the
judgment or order Ii'om which the appeal is soughC).
On November 15. 2013. Pierce filed a self~represented post-conviction petition in the
Circuit Court for Baltimore City. On September 9.2015. Circuit Court Judge Pamela J. White
denied post-conviction relief. ECF NO.4-I. Pierce's application for leave to appeal this decision
was summarily denied by the Court of Special Appeals lor Maryland on September 27. 2016.
ECF No. 4-2. The mandate was issued on February 7. 2017. /d.
Respondents contend that the Petition is untimely under 28 U.S.c. ~ 2244(d)(2). When
affording his time-line a generous construction. they assert that Pierce's conviction became linal
for dircct appeal purposes on February 22. 2013. More than eight months passed before Pierce
Iiled his post-conviction petition on November 15. 2013. In addition. more than tive months
passcd between the issuance ofthc mandate denying Pierce's application for leave to appeal the

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denial of his post-conviction

petition (February

7. 2017) and his liling of this Petition li'r habeas

corpus relief (August 2. 2017). During this combined
collateral

proceedings

in state court to toll the

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13-month period there were no pending

2244(d) limitations

In his Reply. Pierce argues that his Petition is not untimely.
23.20 I 0 he was sentenced

He contends that on August

to 28 years and the sentence was reduced to 20 years on January 23.

2013. based upon the grant of his motion for modilication
that his judgment

period.

of sentence.

lOCI' NO.5. lie contends

did not become tinal as of February 22. 2013. because he was allowed to re-

open his post-conviction

petition on December

17.2015

in order to lile an application

ti,r leave

to appeal. Id.
A. Limitations
A one-year
person convicted

Period

statute of limitations

applies to habeas petitions in non-capital

in state court. See 28 U.S.c.

cases li,r a

~ 2244(d). Section 2244(d) provides that:

(I)
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 trom the
latest 01:
(A)
the date on which the judgment became linal by the
conclusion of direct review or thc expiration of the time ti>r
seeking such review:
(8)
the date on which the impediment to tiling an
application created by State action in violation of the
constitution or laws of the United States is removed. if the
applicant was prevented Irom 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.

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(2)
the time during which a properly liled application lor State postconviction or other collateral revicw with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation
under this subsection.
Under a generous construction. Pieree's conviction became final for direct appeal
purposes on February 22. 2013. From February 23. 2013 to November 14. 2013. (265 days) no
petitions for eollaterul review were pending in the state courts. Further. from February 8. 2017.
the day alter the mandate denying Pierce's application for leave to appeal the denial of his postconviction petition was issued. to August 1. 2017. the day before his liling of this Petition for
habeas corpus relief (174 days). no

S 2244(d)(2)

petitions were pending in state court. Therefore.

Pierce's Petition is time-barred. Petitioner's explanation li)r statutory tolling is incorrect and fails
to take into consideration the periods of time from 2013 through 2017. when no State collateral
review proccedings were pending.
Under certain circumstances. the AEDP A' s statute of limitations may be subject to
equitable tolling. See. e.g.. Harris
Slales

1".

fresco/I.

1".

HlIIchillsoll.

209 F.3d 325. 328 (4th Cir. 20(0): Uniled

221 F.3d 686. 687-88 (4th Cir. 2(00). The Fourth Circuit has consistently

held that a party seeking to avail himself of equitable tolling must show that (1) extraordinary
circumstances. (2) beyond his control or external to his own conduct. (3) prevented him fi'om
filing on time. Rouse \'. Lee. 339 F.3d 238. 246 (4th Cir. 2003) (ell hallc). Further. to be entitled
to equitable tolling a petitioner must show: ..( 1) that he has been pursuing his rights diligently.
and (2) that some extraordinary circumstance stood in his way and prevented timely filing'"
Hol/alld \'. Florida. 560 U.S. 631. 649 (2010) (citing face ,'. DiGulieill/o.

(2005)).

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544 U.S. 408. 418

Pierce has failed to make such a showing and has otherwise
ground on which equitable

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under 28 U.S.c.

any

tolling applies. His petition Ill!' habeas corpus relief is time-barred

2244(d)(1 )(A-D) and shall be dismissed

B. Certificate

failed to demonstrate

and denied with prejudice.

of Appcalabilit),

Rule II (a) of the Rules Governing
"must issue or deny a eertitieate

Section 2254 Cases provides that the district court

or appealability

when it enters a linal order adverse to the

applicant"

in such cases. Because the accompanying

applicant.

28 U.S.c.

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Order is a Iinal order adverse to the

2253(e)( I) requires issuance ofa eertilicate

of appealability

berore an

appeal can proceed.
A eertilicate

of appealability

or the denial of a constitutional
constitutional
"reasonable

right:'

28 U.S.c.

claims on the merits. a petitioner

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or wrong:'

procedural

grounds.

satislies

Buck \'. f)(/\'is. _
Pierce's

the petitioner

meets the standard

constitutional

claims

whether the petition states a valid claim of the denial ofa constitutional

the district court was correct in its procedural
U.S. _'

137 S. Ct. 759, 773-74

claims are dismissed

to issue a certilicate

orthe

that

with a showing that reasonable jurists

on procedural

of appealability.

ruling:'

1<1. t 478; see also
a

(2017).
grounds. and. upon review of the record. the

Court Iinds that he has not made the requisite showing

Appeals

the standard by demonstrating

Slack \'. A-/cDaniel. 529 U,S, 473. 484 (2000), When a petition is denied on

lind it debatable

right" and "whether

showing

2253( e )(2). When a district court rejects

jurists would lind the district court's assessment

debatable

"would

may issue if the prisoner has made a "substantial

under Slack, The Court therefore declines

Pierce may still request that the United States Court of

for the Fourth Circuit issue such a certificate,

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See Lyo/lS

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Lee. 316 F,3d 528. 532 (4th

Cir. 2003) (considering whether to grant a certificate of appealability alier the district court
declined to issue one),

C. Request for Counsel
In his Reply to Respondents' Response to the Petition for Writ of Habeas Corpus.
Petitioner requests the Court to appoint counsel but provides no particular reason for doing so.
ECF No, 5. There is no recognized constitutional right under the Sixth Amendment Ii))' the
appointment of counsel in habeas corpus cases, JJog~ard \', l'urkell, 29 F.3d 469. 471 (8th Cir.
1994): see also llul1/ \', Nil/h. 57 F.3d 1327. 1340 (4th Cir. 1995), Ilowever. the Court may
appoint counsel to represent a financially eligible petitioner in a proceeding wherc thc interests
of justice so require. 18 U.S.c.

* 3006A(a)(2)(B).

Such a decision is within the discretion of the

district court. See, e.g .. BOII'I1Ial1\', While. 388 F,2d 756. 761 (4th Cir.1968). Where the issucs
can be properly resolved on the basis of the record. a district court docs not abuse its discretion
in denying a request for court-appointed counsel. Hoggard. 29 F.3d at 471. For the reasons set
IiJrth herein. the Petition is clearly time-barred. and Petitioner's request tor counsel is denied.
III.

CONCLUSION

For the foregoing reasons. the Petition for Writ of Habeas Corpus. ECF No. I. shall be
denied. A separate Order l(ll1ows.

&L

Dated: Mav /0 .2018

GEORGE J. HAZEL
United States District Judge

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