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Thurston v. Bishop

United States District Court, D. Maryland

November 4, 2014

RICHARD A. THURSTON,
v.
WARDEN FRANK B. BISHOP, JR., et al.,

MEMORANDUM

J. FREDERICK MOTZ, District Judge.

On June 11, 2013, petitioner Richard A. Thurston filed the instant 28 U.S.C. § 2254 habeas corpus application attacking his conviction for first degree burglary and theft entered in 1996 in the Circuit Court for Howard County.[1] ECF No. 1. Respondents filed an Answer which solely addresses the timeliness of petitioner's application. ECF No. 5. Petitioner was advised of his opportunity to file a reply. ECF No. 6. This he has done. ECF Nos. 7, 9, 10, 12-14.

Petitioner was convicted by the Circuit Court for Howard County, Maryland of first degree burglary and theft on November 26, 1996. ECF No. 5, Exs. 1 & 2. He was sentenced on the same date to two concurrent 15 year terms of imprisonment. Id.

Petitioner noted a timely appeal. His conviction and sentence were affirmed by the Court of Special Appeals of Maryland. His request for further review by the Court of Appeals of Maryland was denied on February 11, 1998. Id. He did not seek further review. Accordingly, his convictions became final on May 12, 1998, when the time for seeking further review expired. See Sup Ct. Rule 13.1 (petition for writ of certiorari to be filed no later than 90 days of judgment from which review is sought).

On June 29, 1998, 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., Exs. 1 & 2. On September 21, 1999, petitioner was granted the right to file a belated direct appeal regarding the sufficiency of the evidence. All other issues were denied. Petitioner did not file an application for leave to appeal the decision of the post-conviction court. As such, the decision became final on October 21, 1999, when the time for doing so expired. See Md. Rule 8-204(b) (providing application for leave to appeal be filed within 30 days after entry of judgment or order from appeal is sought).

Petitioner's belated appeal, granted by the post-conviction court, was denied on April 12, 2000. Id., Ex. 1 & 2. Petitioner's request for further review was denied on July 24, 2000. He did not seek further appellate review and his judgment became final on October 23, 2000. See Sup Ct. Rule 13.1; See also Frasch v. Peguese, 414 F.3d 518 (4th Cir. 2005).

Petitioner moved to reopen post-conviction proceedings on August 17, 2000. His request was denied on October 11, 2000. Id., Ex. 1 His application for leave to appeal was denied by the Court of Special Appeals on January 7, 2002. The court's mandate issued on February 6, 2002. Id., Ex. 3.

Petitioner again moved to reopen post-conviction proceedings on October 29, 2002. His request was denied on December 6, 2002. Id., Ex. 1. His application for leave to appeal was denied by the Court of Special Appeals on July 10, 2003. The court's mandate issued on August 11, 2003. Id., Ex. 4. Petitioner filed a third motion to reopen post-conviction proceedings on February 24, 2004, which was denied as was the application for leave to appeal. The court's mandate issued on February 14, 2005. Id., Ex 1 & 5.

On January 10, 2007, petitioner filed a motion for a writ of error coram nobis which was denied by the Circuit Court on February 20, 2007. Id., Ex. 1. His appeal to the Court of Special Appeals was denied and the Court of Appeals declined further review on November 12, 2008. Id . Exs. 1 & 6.

Petitioner filed another motion to reopen post-conviction proceedings on July 31, 2008. He motion was denied as was his application for leave to appeal the denial. The court's mandate issued on June 3, 2010. Id. Exs. 1 & 7.

On December 6, 2010, petitioner filed another motion for writ of coram nobis which was denied by the Circuit Court. The Court of Special Appeals affirmed the Circuit Court's ruling and the Court of Appeals denied further review on May 20, 2013. Id., Exs. 1 & 8.

Title 28 U.S. C.§ 2244(d)[2] provides a one-year statute of limitations in non-capital cases for those convicted in a state case. 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); Gray v. Waters, 26 F.Supp. 771, 771-72 (D. Md. 1998).

The statute of limitations began to run in petitioner's case on October 23, 2000. Assuming, without deciding, that petitioner's numerous motions to reopen post-conviction proceedings and motions for coram nobis, were properly filed post-conviction proceedings which would have served to statutorily tolled the limitations period, the record demonstrates that over one year elapsed where nothing was pending which would have tolled the limitations period. Specifically, from February 6, 2002 (the date the motion to reopen post-conviction proceedings filed simultaneously with his belated appeal became final) and October 29, 2002 (the date he again moved to reopen post-conviction proceedings), a period in excess of eight months elapsed without anything pending to toll the federal limitations period. Thereafter, nothing was pending between August 11, 2003 (the date on which his second motion to reopen post-conviction proceedings became final) and February 24, 2004 (the date he filed his third motion to reopen) a period in excess of six months. At that time, petitioner's federal limitations period had already run. Subsequently, petitioner had no proceedings pending from February 14, 2005 to July 31, 2008, and again from June 3, 2010 to June 11, 2013, which could have served to toll the limitations period.[3]

Petitioner indicates that his filings here are not to be construed as a habeas petition but rather as a petition for writ of error coram nobis. ECF No. 1, 7-10, 12-14. This claim is unavailing. A writ of error coram nobis is an "extraordinary remedy available only under circumstances compelling such action to achieve justice" or to correct errors "of the most fundamental character." United States v. Morgan, 346 U.S. 502, 511 (1954). Federal courts may grant relief from a conviction by way of coram nobis after a petitioner has completed the sentence at issue. See 28 U.S.C. §1651; Morgan, 346 U.S. at 512-13 (emphasis supplied). Coram nobis is available only to remedy "factual errors material to the validity and regularity of the legal proceeding itself." Carlisle v. United States, 517 U.S. 416, 429 (1996) (internal quotation marks omitted). This extraordinary writ is used when "no other remedy may be available, " where "error of the most ...


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