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)

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 ..to 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