Wise v. Rozum et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 42 38 37 . Signed by Honorable Malachy E Mannion on 10/28/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

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Not Reported in F.Supp.2d, 2012 WL 2031991 (D.Md.)
(Cite as: 2012 WL 2031991 (D.Md.))

Only the Westlaw citation is currently available.
United States District Court,
D. Maryland.
Delonte KINGSBERRY, Petitioner
v.
State of MARYLAND, Respondent.
Civil Action No. AW–12–1556.
June 4, 2012.
Delonte Kingsberry, Jessup, MD, pro se.
MEMORANDUM
ALEXANDER WILLIAMS, JR., District Judge.
*1 Pending is Delonte Kingsberry's Motion for
Judgment or Relief from the 2007 Order dismissing his
Petition for Writ of Habeas Corpus as time-barred. For
reasons to follow, the Motion will be denied.
BACKGROUND
In 2006, Kingsberry filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254, challenging his
convictions in 1993 in the Circuit Court for Prince
George's County for first-degree felony murder,
second-degree murder, robbery with a deadly or
dangerous weapon, robbery, and use of a handgun in the
commission of a crime of violence. Civil Action No.
AW06–2855. Kingsberry posited in the Petition that
equitable tolling should excuse his untimely filing because
his counsel provided ineffective assistance. On January
23, 2007, this Court dismissed the Petition as time-barred.
On May 22, 2012, Kingsberry filed the instant Motion
pursuant to Rule 60(b)(5) of the Federal Rules of Civil
Procedure,FN1 asserting the Supreme Court's recent
decision in Martinez v. Ryan, ––– U.S. –––– 132 S.Ct.
1309 (March 20, 2012) warrants awarding the relief that
he requested in his long-closed habeas case from 2006.
FN1. Kingsberry, who is self-represented, states
only that the Motion is brought “pursuant to

Civil Judicial Procedure and Rules [sic]
60(b)(5).” Motion, p. 1. The Court assumes he
intends to bring the Motion under Rule 60(b)(5)
of the Federal Rules of Civil Procedure.
DISCUSSION
Rule 60 (b)(5) of the Federal Rules of Civil Procedure
provides the Court may relieve a party from a final
judgment where “the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable” Fed R.Civ. P
60(b)(6). Kingsberry demonstrates no new or different
facts or circumstances, newly discovered evidence, or
mistake, inadvertence, surprise, or excusable neglect to
warrant relief, nor has he shown an earlier judgment was
reversed, vacated or its prospective application is
inequitable.
Consideration of Kingsberry's 2006 Habeas Petition
was limited to the threshold issue of timeliness. The
Petition was filed outside the one-year limitations period
for § 2254 petitions, and this Court found no grounds to
apply equitable tolling. Martinez held was that
“[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance of
counsel.” Martinez, ––– U.S. ––––, 132 S.Ct. 1309, 182
L.Ed.2d 272, 2012 WL 912950 at *5. Martinez did not
address equitable tolling in the context of ineffective
assistance of counsel and provides no relief here.
To the extent Kingsberry intends to file his Motion as
a second or successive § 2254 Petition, this Court may not
consider it unless he has obtained pre-filing authorization
from the United States Court of Appeals for the Fourth
Circuit. See 28 U.S.C. § 2244(b)(3)(A). Further, the
Petition provides no basis for issuance of a Certificate of
Appealability (COA). “A [COA] may issue ... only if the
applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). The
defendant “must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Not Reported in F.Supp.2d, 2012 WL 2031991 (D.Md.)
(Cite as: 2012 WL 2031991 (D.Md.))

claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384, (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595, 146 L.Ed.2d 542, (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to
proceed further,’ “ Miller–El v. Cockrell, 537 U.S. 322,
335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931, (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103
S.Ct. 3383, 77 L.Ed.2d 1090 (1983). This Motion does
not meet this standard. Denial of a Certificate of
Appealability does not prevent Kingsberry from seeking
permission to file a successive petition, or pursuing her
claims after obtaining such permission.
CONCLUSION
*2 Kingsberry provides no cause to disturb the
Court's dismissal of his Petition for Writ of Habeas Corpus
as time-barred. A separate Order follows.
D.Md.,2012.
Kingsberry v. Maryland
Not Reported in F.Supp.2d, 2012 WL 2031991 (D.Md.)
END OF DOCUMENT

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.