Bond v. Warden Oliver

Filing 9

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/27/2017. (c/m 11/28/2017 tds, Deputy Clerk)

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ILf- IN THE UNITED STATES DISTRICT COUIHFOR THE DISTRICT OF MARYLAND: Southern Division DA VII) .J. BOND, .m., "~T "., zn 11 NOV 21 P 2: 3 3 * CI ' Petitioner, * v. * GWEN DOL YN OLIVER and THE ATTORNEY GENERAL OFTHE STATE OF MARYLAND ! , Case No.: G,JH-17-2~81 * * * Respondents. ****** MEMORANDUM On August 26. 2017. I Petitioner habeas corpus petition attacking Circuit Court tor Baltimore addresses the timeliness hearing is necessary, OPINION David Bond . .Jr. filed the instant 28 U.S.c. ~ 2254 his 2011 conviction for second-degree County. lOCI' No, I, Respondents of the petition. assault entered in the tiled an Answer that solely ECF NO.4. to which Petitioner replied. lOCI' No, 8, No Srr Rule 8(a). Rulrs (l(}\'rl'l1ing Srelioll 225-1 Casrs illlhr Ullilrd Slalrs Dislriel Courls: Local Rule 105,6 (D, Md, 2016): srr also Fishrr \', Lre. 2151', 3d 438. 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.c. ~ 2254(e)(2)). follow. the petition will be denied and dismissed For the reasons to with prejudice, IThis is the date Bond signed the Petition. ECF No. 1 at 7. Because Petitioner is incarcerated. he is entitled to the benefit of the prison mailbox rule. which provides that a prisoner"s tiling of a court document is complete all the date he or she gives the document to prison officials for mailing. S"(!e IIOUS/Oll \', Lack. 487 U.S. ~66. 270-72 (1988). I. Background On September 2. 20 II. Petitioner was convicted by a jury of second-degree assault in the Circuit Court lor Baltimore County. ECF NO.4-I at 4. 72 He was sentenced to 10 years imprisonment. ECI' 4-1 at 4. On October 5.2011. Petitioner Iiled a timely notice of appeal to the Maryland CouI1 of Special Appeals. ECF No. 4-2 at 6. On the same day. Petitioner tiled a motion to revise his sentence and an application lor review of his sentence by a three judge panel. which were denied on October 31. 20 II and January 18. 2012. respectivcly. ECF NO.4-I at 8. The Court of Special Appeals artirmed Petitioner'sjudgment on February I. 2013 and issued its mandate on March 4. 2013. ECI' No. 4-2 at I. Because Petitioner did not lile a Petition for a Writ of Certiorari with the Maryland Court of Appeals. his conviction became final on March 19. 2013. when his time to do so expired. See 28 U.S.C. ~ 2244(d)(1 )(A) (stating that judgment is deemed tinal "by the conclusion of direct review or the expiration of the time tor seeking such review'"): Md. Rule 8-302 (providing that a petition lor writ of certiorari to the Maryland Court of Appeals must be tiled within 15 days of the issuance of the mandate). On August 30. 2013. Petitioner filed a Petition t()r Post-Conviction Relief. ECF NO.4-I at 9. The Petition was denied on October 26. 2015. and Petitioner libl an Application t()r Leave to Appeal. ECF NO.4-I at 4. On January 21. 2016. while Petitioner's Application was pending. he filed a Motion for Modification or Reduction of Sentence. ECF NO.4-I at 10. It appears that the Motion is still pending. Id. The Court of Special Appeals denied Petitioner's Application !()r Leave to Appeal on December 8. 2016. and its mandate issued on January 9. 2017. Pin cites 10 documents tiled on the Court"s electronic tiling system (eMlECF) refer to the pnge numbers generated by thaI syslcl11. 2 2 Petitioner filed the instant * 2254 Petition on August 26. 2017. ECF No.1. The Respondents have answered. asserting that the Petition is untimely because. alier the judgment became tinal. more than one year had elapsed during which Pctitioner had not properly liled a petition for collateral review in state court. ECF NO.4. On the Court's instruction. Petitioner filed a reply. asserting that the Petition is timely because less than one year has elapsed betwecn the Court of Special Appeals mandate issued on January 9. 2017 and the tiling of his Petition herein. II. Discussion Title 28 U.S.c. * 2244(d) provides a one-year statute of limitations in non-capital cases for those convictcd in a state case:' This one-year period is tolled while properly filed postconviction proceedings are pending and may otherwise be equitably tolled. See 28 U.S.c. ) 28 U.S. C. S 2244(d) states: (I) A I-year period of limitation shall apply to an application for a writ of habeas corpus by a person ill custody pursuant to the judgment of a State coull. 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 revie\'.:; (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 tiling 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 C011l1 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. (2) the time during \vhich a properly tiled application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward an)' period of limitation under this subsection. 3 Harris \'. lIlItchinsoll. 209 FJd 325. 328 (4th Cir. 2000). ~ 2244(d)(2): The statutc of limitations time for petitioning a collateral began to run in petitioncr's thc Court of Appcals for a writ of certiorari proceeding Motion for Modification or Rcduction Relicf of Sentence. I'llI' petitions acknowledging under 28 U.S.c. (granting certiticate limitations even assuming "l'l"Ol'erlyjiled application tilcd a Therc is presently proceeding capablc of of appealability 2017 as thc onc ycar statute of relevant case law and al'l'ealjiled No. 17-7450 (4th Cir. that this typc of Motion is capablc of tolling thc period. it docs not toll the limitations well outside the 90-day pcriod permittcd (cmphasis ~ 2254" atier discussing that the issue is "opcn to signi ticanl dcbatc"). Oct. 31. 2017). Howevcr. bccamc tinal). whcn See Mitchell \'. Greell. No. DKC-13-2063. qucstion of whether a motion undcr Md. Rule 4-345 tolls the [statutc's] limitations Pctitioncr did not tilc which appears unrcsolved. as a state collateral period under ~ 2244(d)(2). at *3-8 (D. Md. Oct. 11.2017) whcn thc Whilc the Pctition was pcnding. Pctitioncr dcbate about whether this type of Motion qualitics tolling thc limitations concludcd. until August 30. 2013 (164 days atier the conviction he filed his Pctition for Post-Conviction WL 4536001. casc on March 19.2013. period in this casc bccause the Motion was tiled by Md. Rule 4-345. mcaning that the Motion is not a for Statc post-conviction or other collateral review'" ~ 2244(d)(2) added). Thus. thc limitations 2017. while Petitioner's period was tolled only betwcen August 30. 2013 and January 9. statc post-conviction courts. The accrual of thc one year limitations proceedings period resumcd on January expired 201 days latcr on July 30. 2017. Therefore. August 26. 2017. was untimely werc pending in thc trial and appellate 10. 20 17. and it thc instant Petition. which was tiled on tiled 27 days beyond the limitations period. In Hollaml \'. Florida. 560 U.S. 631 (20 I0). the Suprcme Court eoncludcd 4 that cquitablc tolling applies to ~ 2244's entitled to equitable limitations at 649. The Court found that in order to be tolling, the movant must show (1) that he has diligently and (2) that some extraordinary whether equitable period./d. circumstance prevcnted pursued his rights the timely tiling. /d. The question of tolling applies hinges on the filcts and circumstances of each particular case. See lIarris, 209 F.3d at 329-30. Petitioner showing does not argue, nor does the record otherwise necessary to receive equitable did not become tinal for purposes of28 post-conviction proceedings. statcs that a judgmcnt U.S.c. ~ 2244(d)( I )(A) until aner the state rejected his approach. pcriod. However. is final upon ,.the conclusion for seeking such revicw'" ~ 2244(d)( 1)(A) (emphasis one is required to exhaust state remedies (b)( 1)(A), thc limitations while Petitioncr tolling. Rather, he appears to believe that his judgment Undcr Petitioner's would not count toward the limitations thc 164 days of inaction in 2013 Pctitioncr misreads the statutc, which of direct revicw or thc cxpiration added). Although Petitioncr of thc lime is corrcct that before seeking federal habcas relief: ~ 2254 period accrues oncc the judgment has a properly indicate, that he has made the filed post-conviction becomes proceeding final and may be toll cd only pcnding with the statc court. ~~ 2244(d)( I )(A), (2). To the extent that Petitioner would argue that his lack of understanding the law surrounding the filing ofa ~ 2254 pctition should entitle him to equitable tolling. it is well settled that. "evcn in the case ofanunrcprcsentcd basis for equitable tolling'" of appealability ignorancc of the law is not a a habeas petition solely on procedural ("'COA") will not issue unless the petitioner 'that jurists of reason would lind it debatable denial of a constitutional prisoner. Vllited Slales \".Sma, 364 F.3d 507. 512 (4th Cir. 2004). When a district court dismisses certilicate of grounds, a can demonstrate both ,.( I) whether the petition states a valid claim of the right" and (2) 'that jurists of reason would lind it debatable 5 whether the district court was correct in its procedural ruling .... ROllsI' v. Lee. 252 F.3d 676. 684 (4th Cir. 2001) (quoting Slack v. McDaniel. 529 U.S. 473. 484 (2000)). A litigant seeking a COA must demonstrate that a procedural ruling barring relief is itself debatable among jurists of reason: otherwise. the appeal would not "deserve encouragement to proceed further:' Blick I'. !Jal'is. 137 S, Ct. 759, 777 (2017). Denial ofa COA does not preclude a petitioner from seeking permission to tile a successive petition or from pursuing his claims upon receiving such permission. Because Bond has not made a substantial showing of the denial of his constitutional rights. the Court will not issue a COA. III. Conclusion For the foregoing reasons. the Bond's habeas corpus petition. ECF No. I. shall be denied. A separate order follows. Dated: November27. ;£;~ 2017 GEORGE J. HAZEL United States District Judge 6

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