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Fletcher v. Miller

United States District Court, D. Maryland

August 2, 2016

KEVIN DWAYNE FLETCHER, Inmate Identificaiion
v.
RICHARD E. MILLER, Acting Warden of North Branch Correctional Institution, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          THEODORE D. CHUANG JUDGE

         On January 7, 2015, Kevin Dwayne Fletcher, who is currently incarcerated at the North Branch Correctional Institution ("NBCI") in Cumberland, Maryland, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 9 2254. Fletcher seeks to collaterally attack his 2005 conviction for first-degree murder and use of a handgun during a crime of violence. On February 20, 2015, Respondents Acting Warden Richard E. Miller of NBCI ("the Warden") and the Attorney General of the State of Maryland (collectively, "Respondents") filed a Limited Answer, asserting that Fletcherss Petition is time-barred under 28 U.S.C. § 2244(d) and should be dismissed. On February 24, 2016, Fletcher filed a Motion to Add Exhibits to supplement his Petition, which the Court now grants. For the reasons set forth below, the Court finds that Fletcherss Petition is not time-barred under the doctrine of equitable tolling and directs Respondents to file a supplemental Answer addressing the merits of Fletcherss Petition.

         BACKGROUND

         On January 29, 2007, the Circuit Court for Baltimore City, Maryland sentenced Fletcher to life imprisonment plus 20 years after Fletcher had pleaded guilty to first-degree murder and use of a firearm during a crime of violence. Fletcher directly appealed to the Maryland Court of Special Appeals, claiming that his guilty plea "was not a voluntary decision because but for the coerced confession, Petitioner would not have pled guilty." Pet. at 2, ECF No. I![1] The Court of Special Appeals denied his appeal and issued its mandate on June 28, 2007. Fletcher did not file a petition for a writ of certiorari with the Maryland Court of Appeals or the United States Supreme Court.

         I. The Petition for Post-Conviction Relief

         On July 30, 2007, Fletcher filed a pro se Petition for Post-Conviction Relief with the Circuit Court for Baltimore City.[2] Fletcher once again claimed that his guilty plea was involuntary and asserted that he received ineffective assistance of counsel. After Fletcher filed his Petition for Post-Conviction Relief, he secured Mark Gitomer as counsel. On July 13, 2009, Fletcher filed an Amended Petition for Post-Conviction Relief through Gitomer. The Circuit Court denied Fletcherss Petition on September 22, 200.. Fletcher then filed a Motion to Alter or Amend Judgment on October 26, 2009, which the Circuit Court denied on December 2, 2009. On January 4, 2010, Fletcher filed an Application for Leave to Appeal, which the Court of Special Appeals denied on March 24, 2011. The court issued its accompanying mandate on June 16, 201..

         Fletcher did not learn that the Court of Special Appeals denied his Application for Leave to Appeal until sometime in August or September 2012. On April 25, 2010, Fletcher had written to Gitomer to ask about his Application for Leave to Appeal. On August 1, 9, and 15, 2010, Fletcher again wrote to Gitomer, each time asking for his case file. In his August 1, 2010 letter, Fletcher wrote to Gitomer that "you no longer represent me." Second Gitomer Letter, Pet. Ex. 4, ECF No. 1-5. On January 4, 2011, Fletcher wrote to Gitomer again asking for the case file and this time inquiring about "the timeline for a response on the Leave to Appeal." Fifth Gitomer Letter, Pet. Ex. 7, ECF No. 1-8. On March 22, 2011, Fletcher wrote to Gitomer one last time asking for the case file and stated, "I've been writing you requesting this file since March/April of 2010 & you haventt even responded." Sixth Gitomer Letter, Pet. Ex. 8, ECF No. 1-9. On December 11, 2011, after failing to receive a response from Gitomer, Fletcher wrote to the Court of Special Appeals asking for a "status update" on his Application for Leave to Appea.. First Md. Ct. Spec. App. Letter, Pet. Ex. 10, ECF NO.1-11. There is no record of any response to this letter.

         Throughout this time period, Fletcher sought legal representation or to advance his case on his own. While Fletcher was writing to Gitomer asking for his case file and for updates on his Application for Leave to Appeal, he also wrote a letter to the Baltimore Police Department asking for "any and all notes/reports concerning suspension, allege misconduct, resignation information" to which the Department responded on March 28, 2011. Baltimore Police Deptt Letter, Pet. Ex. 9, ECF No. 1-10. In addition, after Fletcher wrote to the Mid-Atlantic Innocence Project seeking counsel, the Innocence Project visited him at NBCI but then sent him a letter on January 24, 2012 in which it declined to represent Fletcher because he was "currently represented by a lawyer who has filed a post-conviction petition on your behalf." Innocence Project Letter, Pet. Ex. 11, ECF No. 1-12.

         On August 14, 2012, Fletcher sent a complaint to the Attorney Grievance Commission of Maryland regarding Gitomer. On August 29, 2012, the Commission wrote back to Fletcher, informing him that Gitomer had been disbarred. Indeed, on July 26, 2012, the Attorney Grievance Commission of Maryland and Gitomer had filed a Joint Petition for Disbarment by Consent with the Court of Appeals, which stated:

Multiple complaints are currently pending before the Attorney Grievance Commission of Maryland, in which it is alleged that the Respondent failed to represent his clients with reasonable diligence and promptness,, failed to communicate with them concerning the status of their matter, failed to maintain his unearned fees in escrow, and misappropriated funds from his escrow account in violation of Maryland Rules of Professional Conduct 1.3, 1.4(a)(2)(3), 1.15(a), 8.4(c)(d), Maryland Rule 16-609, and Business Occupations and Professions Article § 10-306.

         Joint Pet. for Disbarment by Consent, Pet. Ex. 23, ECF No. 1-24. On August 1, 2012, the Court of Appeals issued an Order disbarring Gitomer. See Attorney Grievance Comm 'n v. Gitomer, 49 A.3d 333, 333 (Md. 2012).

         In the same time frame, on August 12, 2012, Fletcher again wrote to the Court of Special Appeals to seek a "status update" on his Application for Leave to Appeal. Second Md. Ct. Spec.App. Letter, Pet. Ex. 12, ECF No. 1-13. The Court of Special Appeals responded by sending him an August 17, 2012 printout of the docket containing an entry stating that his Application was denied on March 24, 2011, which Fletcher received on September 4, 202.. That same day, Fletcher wrote back to the Court of Special Appeals, stating that his attorney had been disbarred, asserting that he had never received a copy of the decision, asking how he could get a copy of the decision, and seeking guidance because he did not want to lose the opportunity for further appeal. On September 6, 2012, Fletcher wrote to the Maryland Attorney General asking for a copy of the opinion, which the Attorney General forwarded to him with a letter dated September 13, 2012. On September 18, 2012, Fletcher filed a Motion to Reissue Opinion with the Court of Special Appeals. On October 2, 2012, the Court of Special Appeals sent him a copy of the opinion and the mandate but did not formally reissue the opinion. II. The Motion to Reopen After learning that Gitomer had been disbarred and that the Court of Special Appeals had denied his Application for Leave to Appeal, Fletcher wrote to the Maryland Office of the Public Defender on May 16, 2013 to request representation in filing a Motion to Reopen his postconviction proceeding.. The Office of the Public Defender responded on July 1, 2013, stating that it was "willing to assign an attorney to review your case" but that "it will probably take several years." Second Public Defender Letter, Pet. Ex. 19, ECF No. 1-20. Fletcher responded on July 4, 2013, stating that his "main goal in raising these allegations in the Motion to Reopen [is] to preserve these allegations for Federal Court" and that if "waiting for your office to represent me will interfere with filing my Federal Habeas Corpus, then I just cannot take that risk." Third Public Defender Letter, Pet. Ex. 20, ECF No. 1-21.

         On August 16, 2013, Fletcher mailed a pro se Motion to Reopen Closed Post Conviction Proceeding and Request for Hearing ("Motion to Reopen") to the Circuit Court for Baltimore City, which was docketed on August 26, 203.. In the motion, Fletcher once again asserted that his guilty plea was involuntary and that he received ineffective assistance of counsel from his trial counsel. Fletcher also asserted that, for the reasons Gitomer was disbarred, Gitomer also provided ineffective assistance of counsel during post-conviction proceeding.. On September 3, 2014, the Circuit Court denied Fletcherss Motion to Reopen.[3] On October 1, 2014, Fletcher filed an Application for Leave to Appeal with the Court of Special Appeals. On January 7, 2015, ...


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