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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 ...


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