J. FREDERICK MOTZ, District Judge.
On August 7, 2012, the court received Phillip Alvin Jones's petition under 28 U.S.C. § 2254, attacking his conviction for conspiracy to commit murder and related offenses entered in 1991 by the Circuit Court for Baltimore City. ECF No. 1. On December 13, 2012, respondents filed an answer which solely addresses the timeliness of petitioner's application. ECF No. 9. Petitioner was advised of his opportunity to file a reply, ECF No. 11, and has done so. ECF No. 12. Petitioner was convicted by the Circuit Court for Baltimore City, of conspiracy to commit murder, two counts of attempted murder and related offenses. ECF No. 9, Exs. 1-3. He was sentenced on June 13, 1991, to two concurrent life terms for conspiracy to commit murder and attempted first degree murder, a consecutive 20 year term of imprisonment for a handgun offense, and a concurrent 20 year term of imprisonment for attempted second degree murder. Id., Ex. 1-3.
Petitioner noted a timely appeal. His judgment and conviction were affirmed by the Court of Special Appeals of Maryland on March 20, 1992. Petitioner's request for further review was denied by the Court of Appeals of Maryland on July 17, 1992. Id., Ex. 5. He did not seek further review in the United States Supreme Court.
On October 22, 1996, petitioner submitted a collateral attack on his conviction pursuant to the Maryland Uniform Post-Conviction Procedure Act, Md. Code Ann., Crim. Pro. § 7-102, et seq. Id., Ex. 1 & 3. The petition was denied on April 7, 1997. Petitioner filed an application for leave to appeal, challenging the denial of post-conviction relief which was denied by the Court of Special Appeals on June 25, 1997. Id., Ex. 1 & 3.
On September 8, 1997, petitioner filed a motion for reduction of sentence. Id. Ex. 1. On May 8, 1998, an order denying a motion to reopen post-conviction relief was entered. That order became final on June 8, 1998. See Md. Rule 8-204(b) (application for leave to appeal to be filed within 30 days after entry of judgment or order from which appeal is sought).
On March 28, 2001, petitioner filed a petition for writ of error coram nobis. Id., Ex. 1. The petition, treated as a request for post-conviction relief, was denied on July 11, 2001. Petitioner did not file an application for leave to appeal the ruling. The order thus became final on August 10, 2001. Md. Rule 8-204(b).
Petitioner again filed for post-conviction relief on February 11, 2005, raising, inter alia, allegations of newly discovered evidence and non-disclosure of exculpatory evidence. The petition was denied on October 29, 2007. Id., Ex. 1 & 3. Petitioner's application for leave to appeal was summarily denied by the Court of Special Appeals on March 6, 2008. The court's mandate issued on April 7, 2008. Id., Ex. 1 & 4.
Title 28 U.S.C. § 2244(d) provides a one-year statute of limitations in non-capital cases for those convicted in a state case. Although the statute is silent as to how it should be applied to persons such as petitioner whose convictions were finalized before April 24, 1996, it is now clearly established that such persons had one year from the effective date, i.e., until April 23, 1997, to file a petition for writ of habeas corpus in federal court. See Brown v. Angelone, 150 F.3d 370, 375 (4th Cir. 1998). This one-year period is, however, tolled while properly filed post-conviction proceedings are pending and may otherwise be equitably tolled. See 28 U.S.C. §2244(d)(2). Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).
In Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549 (2010), the Supreme Court concluded that equitable tolling applies to the statute of limitations imposed in habeas actions. Id. at 2554. Specifically, the Court found that in order to be entitled to equitable tolling, the movant must show (1) that he has diligently pursued his rights and (2) that some extraordinary circumstance prevented the timely filing. Id. at 2562. The question of whether equitable tolling applies hinges on the facts and circumstances of each particular case. See Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000).
Petitioner had no post-conviction or other properly filed collateral proceedings pending in state court which would serve to toll the limitations period from: 1) June 8, 1998 to March 28, 2001 (over two years); 2) August 10, 2001 to February 11, 2005 (over three years); and 3) April 7, 2008 to August 7, 2012, (over four years).
Petitioner indicates that after his application for leave to appeal the denial of post-conviction relief was summarily denied on June 11, 2008, his attorney "removed himself from representation of petitioner, without notice." ECF No. 12. In further support of his claim for equitable tolling, petitioner indicates that in May of 2005, he was transferred to Washington State where he did not have access to Maryland legal materials. Id. In support of his claim, petitioner has provided copies of letters demonstrating his efforts to both obtain access to Maryland legal materials and contact his attorney regarding the status of his case. ECF No. 1, Attachments.
Petitioner has provided copies of "Inmates' Kite" dated June, July, August, and September, 2006 requesting from the Washington State law library access to Maryland legal materials concerning the appellate process. Id. & ECF No. 1, Ex. D. On August 22, 2006, Wanda Heiman, the Law Librarian at the Washington State Penitentiary, notified petitioner that Washington State had been unable to obtain the requested Maryland state materials and was not legally obligated to provide them. Petitioner was advised to contact Maryland officials. He was further advised that Heiman could assist him in obtaining appropriate Maryland addresses as well as in obtaining specific federal statutes and case law. ECF No. 1, Ex. D. It is noted that at this time, petitioner was represented by counsel.
The next set of documents provided by petitioner are from 2010. On July 18, 2010, petitioner wrote to Heiman seeking copies of three Maryland cases as well as Maryland Parole Commission Policy and Procedure and Maryland Division of Correction Commitment Manual. Id. Petitioner has provided a "kite" sent back to him indicating that he needed to physically come to the law library to obtain Heiman's assistance. The note indicated that the librarian had put him on "call out" several times but had yet to talk to him. Shortly thereafter, Heiman sent an email requesting the materials petitioner had requested through interlibrary loan. The other "kite" provided by petitioner is dated May 11, 2010; therein, he offers to pay return postage in order to be able to use the Maryland Court Rules. Id.
Petitioner has also provided copies of two letters written to his post-conviction attorney. One is dated December 15, 2008, the second July 12, 2009. The first inquires as to the status of his appeal of the denial of post-conviction relief. Petitioner indicates in that letter his mistaken belief that he has 30 days after the denial of post-conviction relief to "appeal" to the federal court. The second letter, some seven months after the first, asks whether counsel has "thrown in the towel" and seeks a recommendation on how to proceed with his case on his own. Id. On June 3, 2012, ...