United States District Court, D. Maryland
J. Fedrick Motz United States District Judge
In response to this court's order to show cause why the relief sought should not be granted, respondents assert that the above-entitled petition for writ of habeas corpus filed pursuant to 28 U.S.C. §2254 should be dismissed because it is untimely and contains both exhausted and unexhausted claims, ECF 4. Petitioner filed a response in opposition. ECF 6. No hearing is necessary to resolve the matters pending. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2011); 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 the reasons stated below, the petition must be dismissed and a certificate of appealability declined.
On March 30, 1995, petitioner was convicted by a jury in the Circuit Court for Baltimore County, Maryland on two counts of first degree murder. ECF 4 at Ex. 1 and 2. He was sentenced to serve two concurrent life sentences without the possibility of parole. Jd. Petitioner appealed his conviction to the Court of Special Appeals of Maryland where it was affirmed by unreported opinion dated February 14, 1996. ECF 4 at Ex. 2. The mandate was issued on March 15, 1996, and petitioner did not seek certiorari review in the Court of Appeals. Id.
On March 26, 1997, petitioner filed a petition for post-conviction relief in the Circuit Court for Baltimore County. ECF 4 at Ex. 1. On June 2, 2004, the post-conviction petition was withdrawn on petitioner's motion. Id. at Ex. 3. Petitioner filed another post-conviction petition on December 29, 2004, which was denied after a January 7, 2016 hearing by order dated February 1, 2016. Id. at p. 18. At the time of respondents' answer, petitioner had not yet filed an application for leave to appeal the denial of post-conviction relief.
The petition before this court raises the following claims regarding an alleged ineffective assistance of counsel:
1. Trial counsel failed to conduct pre-trial investigations; failed to subpoena witnesses; and failed to offer rebuttal evidence, including petitioner's testimony, during a suppression hearing;
2. Trial counsel failed to request a mistrial after the prosecution played a prejudicial audio recording before opening statement which had been ruled inadmissible by the trial court; and, after being informed a juror communicated she was in fear for her and her family's safety, failed to voir dire juror and seek a mistrial;
3. Counsel failed to object to the jury instruction on reasonable doubt; failed to request an instruction on the duty to deliberate; failed to argue a motion for new trial; and failed to seek sentence review; and
4. Appellate counsel failed to raise ground that trial court violated Maryland Rule 4-326.
ECF 1 at p. 6.
The instant petition for writ of habeas corpus was filed on December 18, 2015, before petitioner's post-conviction hearing. Because post-conviction proceedings were not yet concluded, he requested a stay and abeyance while his claims were pending before the Maryland courts on the basis that the lengthy delay in considering his claims on post-conviction were not attributable to him. Id.
Petitioner asserts both in his petition and his reply that the time limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") do not apply to his conviction because he was convicted prior to its passage on April 25, 1996. ECF 1 at p. 6 and ECF 6 at pp. 1-2. For purposes of this court's analysis, petitioner's conviction was final on March 30, 1996, or fifteen days after the Court of Special Appeals affirmed ...