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Tankard v. Bishop

United States District Court, D. Maryland

May 27, 2015

ERIC TYWON TANKARD, #312368 Petitioner,
v.
FRANK B. BISHOP, JR., et al., Respondents.

MEMORANDUM

JAMES K. BREDAR, District Judge.

Petitioner Eric Tywon Tankard (hereinafter referred to as "Tankard") seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2003 convictions in the Circuit Court for Baltimore City. ECF No. 1. Respondents' limited answer to the petition and Tankard's reply remain pending. ECF Nos. 4 & 7. After review, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2014); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For reasons to follow, the petition shall be dismissed as time-barred.

Background and Procedural History

On December 6, 2002, Tankard was convicted by a Baltimore City Circuit Court jury of premeditated first-degree murder, two counts of attempted armed robbery with a deadly weapon, two counts of use of a handgun in the commission of a crime of violence, two counts of conspiracy to commit robbery with a deadly weapon, and first-degree assault. ECF No. 4, Exs. 1 & 2. On February 10, 2003, Circuit Court Judge John C. Themelis sentenced Tankard to a cumulative life plus eighty-five year sentence as to the aforementioned counts. Id. On June 23, 2004, the Court of Special Appeals of Maryland issued an unreported opinion which corrected Tankard's sentence by merging the sentence for first-degree assault with the sentence for attempted armed robbery. The judgment of conviction was otherwise affirmed.[1] ECF No. 4, Ex. 2. The intermediate appellate court's mandate was issued on July 23, 2004. Id. Tankard did not seek further review of this decision with the Court of Appeals of Maryland. His judgment of conviction became final on Monday, August 9, 2004. See Md. Rule 8-302 (petition for writ of certiorari to be filed in the Court of Appeals of Maryland no later than 15 days after the Court of Special Appeals issues its mandate).

It was not until February 1, 2013, however, that Tankard initiated post-conviction proceedings in the Circuit Court for Baltimore City. Post-conviction relief was denied by Circuit Court Judge Jeannie J. Hong on December 23, 2013. Id., Ex. 1 at pgs. 7-8.[2] Tankard did not file a timely application for leave to appeal the ruling, which became final on January 22, 2014. See Md. Rule 8-204(b) (application for leave to appeal is to be filed within 30 days after entry of judgment or order from which appeal is sought).[3] The state court docket shows that an application for leave to appeal was not filed in the Circuit Court until August 21, 2014, and was denied and stricken as untimely by Circuit Court Judge Timothy J. Doory on November 20, 2014. Id., Ex. 1 at pgs. 8-9.

In filing the instant § 2254 petition, dated December 3, 2014, Tankard asserts the following grounds:

1. He was forced to conduct a murder trial himself;
2. His original privately retained attorney withdrew from the criminal case and he was forced to hire a Public Defender because his original attorney would not refund the fees paid to her;
3. The Public Defender assigned to his case "never investigated anything" and intimated that there was a "conflict"; and
4. The Public Defender assigned to his case had not been to the area of the shooting, nor had he sent an investigator to the area to scrutinize the matter, which resulted in his discharge, forcing Tankard to conduct the trial himself.

ECF No. 1 at pgs. 5 & 6.

II. Statute of Limitations

Since April 24, 1996, a one-year statute of limitations applies to state prisoners filing petitions for federal habeas relief in non-capital cases under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2244(d).[4] This one-year period is tolled while properly filed post-conviction proceedings are pending.

III. Analysis

Affording the Petition the most generous of filing dates, it is deemed as filed by Tankard on December 3, 2014, the date on which it was signed and presumably deposited with prison authorities.[5] See Houston v. Lack, 487 U.S. 266 (1988); United States v. Dorsey, 988 F.Supp. 917, 919-20 (D. Md. 1998) (holding a petition shall be deemed to have been filed on the date it was deposited with prison authorities for mailing under the "prison mailbox" rule).

Tankard's one-year limitations period under 28 U.S.C. § 2244(d) began to run on August 10, 2004. The one-year period was allowed to expire on August 10, 2005, as it was not until February of 2013, when Tankard filed his first post-conviction petition in the Circuit Court for Baltimore City. At that juncture, an additional seven years and five months had passed. Consequently, this habeas petition was filed outside the statutory limitations period and is time-barred.

Tankard seemingly claims that the statute of limitations period should be equitably tolled because "I suffered from ineffective assistance of counsel, I did not have a trial counsel, therefore I was never made aware of the one year limitation." ECF No. 1 at pg. 5, § 14. In his reply he further claims that his state court appellate counsel [and his post-conviction attorney] did not inform him of the "AEDPA... my right to file for federal habeas corpus within one year after my direct appeal has been finally litigated." ECF No. 7 at pg. 3.

It is true that under certain circumstances the AEDPA's statute of limitations may be subject to equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); United States v. Prescott, 221 F.3d 686, 687-88 (4th Cir. 2000); see also Wall v. Kholi, 131 S.Ct. 1278, 1283 (2011). The Fourth Circuit has consistently held that a party seeking to avail himself of equitable tolling must show that (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) prevented him from filing on time. Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc). Additionally, the movant must show that he employed reasonable diligence in investigating and bringing his claims. Further, to be entitled to equitable tolling a petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGulielmo, 544 U.S. 408, 418 (2005)).

Respondents, however, correctly observe that Tankard's excuses do not prompt the equitable tolling of the one-year limitation period under the law. Legal inexperience is not a justification for equitable tolling. See United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (stating that ignorance of the law is not a basis for equitable tolling); Cross-Bey v. Gammon, 322 F.3d 1012, 1215 (8th Cir. 2003) ("Even in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been warranted.") (internal quotations omitted); Felder v. Johnson, 204 F.3d 168, 171-73 (5th Cir. 2000) (lack of notice of AEDPA amendments and ignorance of the law are not rare and exceptional circumstances that warrant equitable tolling).[6] In this case, however, Tankard has neither asserted, nor do the pleadings suggest, any circumstances that justify equitable tolling. Accordingly, the petition will be denied and dismissed with prejudice by separate Order.

In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA [certificate of appealability] should issue when the prisoner shows, at least, that... jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. Tankard does not satisfy this standard, and the court declines to issue a certificate of appealability.


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