May 20, 2013
RICARDO FOX, JR.,
BOBBY P. SHEARIN,
ROGER W. TITUS, District Judge.
On May 10, 2013, Petitioner Ricardo Fox, Jr., filed the instant 28 U.S.C. § 2254 habeas corpus application attacking his. conviction for first degree murder and related offenses entered on August 11, 2009, in the Circuit Court for Queen Anne's County. ECF No. 1. After examining these papers, the Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; see also 28 U.S.C. § 2254(e)(2). For the reasons that follow, the Petition will be denied without prejudice as unexhausted.
Petitioner indicates that after a jury trial conducted in the Circuit Court for Queen Anne's County, he was convicted of first degree murder, assault in the first degree, attempted armed robbery, armed robbery, robbery, assault in the second degree and theft. He was sentenced to a life term of imprisonment. ECF No. 1. Fox's conviction was affirmed by the Court of Special Appeals of Maryland on February 14, 2012. !d., Ex. 2. Fox's petition for certiorari was denied by the Court of Appeals of Maryland on June 25, 2012. Id. Fox has not filed a petition for postconviction relief. Id.
When filing a federal habeas corpus application under 28 U.S.C. § 2254, a petitioner must show that all of his claims have been presented to the state courts. See 28 U.S.C. § 2254(b) and (c); see also Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it. For a person convicted of a criminal offense in Maryland this may be accomplished either on direct appeal or in post-conviction proceedings. To exhaust a claim through post-conviction proceedings, it must be raised in a petition filed in the Circuit Court and in an application for leave to appeal to the Court of Special Appeals. See Md. Code Ann., Crim. Pro. Art., §§ 7-101-7-301 and § 7-109. If the Court of Special Appeals denies the application, there is no further review available and the claim is exhausted. See Sherman v. State , 593 A.2d 670, 670-71 (1991). If, however, the application is granted but relief on the merits of the claim is denied, the petitioner must seek certiorari to the Court of Appeals. See Grayson v. State, 728 A.2d 1280, 84085 (1999). Fox has not yet begun, much less completed, post-conviction review and his petition here shall be dismissed without prejudice as unexhausted, to allow him to refile this case after completion of state remedies.
Fox is advised that the Antiterrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2244 to impose a one-year filing deadline on state prisoners filing applications for a writ of habeas corpus in federal court. Should he wish to refile this petition once he has exhausted his available state court remedies, Fox should take care not to miss this deadline.
A habeas petitioner has no absolute entitlement to appeal a district court's denial of his motion. See 28 U.S.C. § 2253(c) (1). A certificate of appealability ("CGA") may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253 (c) (2). When a district court dismisses a habeas petition solely on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both "(1) that jurists of reason would find it debatable whether the petition states a valid clam of the denial of a constitutional right' and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). The court will not issue a COA because petitioner has not made the requisite showing.
A separate order follows.