United States District Court, D. Maryland
W. Grimm United States District Judge
is Ndokey Enow’s (“Enow”) petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his guilty plea in 2015 in the Circuit Court for
Montgomery County, Maryland to solicitation to commit first
degree murder. ECF No. 1. Respondents have filed a limited
answer seeking dismissal of the petition as unexhausted. ECF
No. 4. Enow has filed an opposition and supplement in reply.
ECF Nos. 6, 7. For reasons to follow, the petition will be
dismissed without prejudice, and a certificate of
appealability will not issue. Additionally, the motion for
supplemental evidence that Enow has filed, ECF No. 12, will
be denied, as the evidence is irrelevant to the exhaustion
pleaded guilty on January 9, 2015, to one count of
solicitation to commit first degree murder. State Ct. Docket,
ECF No. 4-1. On February 27, 2015, Enow was sentenced to
serve 20 years of incarceration. Id. Enow’s
application for leave to appeal the entry of his plea, which
asserted that his counsel provided ineffective assistance,
was denied by the Court of Special Appeals of Maryland in an
unreported opinion filed on August 12, 2015. Id. On
April 20, 2015, the Court of Special Appeals of Maryland
denied Enow’s motion for reconsideration of sentence.
Enow did not file for further review in the United States
Supreme Court, and thus, his judgment of conviction became
final for direct appeal purposes on November 10, 2015, when
the time for seeking such review expired. See Sup.
Ct. Rule 13.1 (petition for certiorari to be filed within 90
days of date of judgment from which appeal is sought).
23, 2015, Enow filed a petition for state post-conviction
proceedings. State Ct. Docket 9; see Case No.
125462C (Circuit Court for Montgomery County)
http://casesearch. courts. state.md.us/casesearch. A
hearing on the petition is scheduled for October 23, 2016.
filed this petition for federal habeas relief on March 21,
2016, attacking his conviction on grounds which include: (1)
he was unlawfully entrapped by the police; (2) he was
fraudulently indicted; (3) there was an unlawful wiretap; and
(4) his guilty plea was unknowing and involuntary. Pet. 4-8.
Respondents maintain, and Enow does not dispute, that
Enow’s federal petition raises the same claims as those
being litigated in the state proceeding. Resps.’ Ans.
8; Pet.’s Opp’n; Pet.’s Supp.; see
also Pet. 9 (referencing summary of post-conviction
petition grounds as grounds Petitioner now raises in this
Court; State Post-Conviction Pet., ECF No. 1-1 (submitted to
describe grounds raised in this Court).
6, 2016, this Court granted Enow additional time to address
whether the claims presented were properly exhausted. ECF No.
5. Enow filed his Opposition and Supplement on June 20, 2016.
The Opposition is unresponsive to the issue of exhaustion,
and instead bypasses this threshold procedural issue to argue
the merits of the case. See Pet.’s
Opp’n. After arguing the merits in the first thirteen
pages of the Supplement as well, Petitioner addresses
exhaustion, contending that he “may be able to satisfy
the requirements even if the state court has not addressed
the claim in [a] written opinion. See Dye v. Hofbauer, 546
U.S. 1, 3 (2005).” Pet.’s Supp. 14.
filing a federal habeas corpus application under 28 U.S.C.
§ 2254, a petitioner must show that all of his claims
have been presented to the state courts. See 28
U.S.C. § 2254(b) & (c); see also Preiser v.
Rodriguez, 411 U.S. 475, 491 (1973). Exhaustion affords
the state courts a meaningful opportunity to consider
allegations of legal error without interference from the
federal judiciary. Rose v. Lundy, 455 U.S. 509, 515
is satisfied by seeking review of the claim in the highest
state court with jurisdiction. In Maryland, a petitioner
convicted in a criminal case may satisfy this requirement on
direct appeal or by way of post-conviction proceedings.
exhaust a claim on direct appeal in non-capital cases, it
must be raised in an appeal, if one is permitted, to the
Maryland Court of Special Appeals and then to the Maryland
Court of Appeals by way of a petition for writ of certiorari.
See Md. Code Ann., Cts. & Jud. Proc. §
12-201 and § 12-301. If an appeal of right is not
permitted, as in cases where a guilty plea is entered,
exhaustion can be accomplished by filing an application for
leave to appeal to the Court of Special Appeals. See
Cts. & Jud. Proc. § 12-302(e). If the Court of
Special Appeals denies the application, there is no further
review available and the claim is exhausted. Cts. & Jud.
Proc. § 12-202. If the application is granted but relief
on the merits of the claim is denied, the petitioner must
file a petition for writ of certiorari to the Court of
Appeals. See Williams v. State, 292 Md. 201, 210-11
exhaust a claim through post-conviction proceedings, it must
be raised in a petition filed in the Circuit Court
and in an application for leave to appeal to the
Court of Special Appeals. See Md. Code Ann., Crim.
Proc. § 7-109. If the Court of Special Appeals denies
the application, there is no further review available and the
claim is exhausted. See Cts. & Jud. Proc. §
12-202. However, if the application is granted but relief on
the merits of the claim is denied, a petitioner must file for
writ of certiorari to the Court of Appeals to exhaust his
claim. Thus, Petitioner not only must file the petition in
state court but also obtain a ruling on the petition and on
appeal to exhaust the claims in that petition. See
Woodford v. Ngo, 548 U.S. 81, 92 (2006) (“A state
prisoner is generally barred from obtaining federal habeas
relief unless the prisoner has properly presented his or her
claims through one ‘complete round of the
State’s established appellate review
process.’” (quoting O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)) (emphasis added)).
to Enow’s assertion, see Pet.’s Supp.
14, the Dye Court did not hold that a
post-conviction claim in state court can be exhausted before
the state trial court rules on the petition. Rather, it
concluded that when “the opinion of the state court . .
. made no mention of a federal claim, ” the state
court’s “[f]ailure to mention [that] claim does
not mean the claim was not presented to it, ” reasoning
that “‘whether the exhaustion requirement . . .
has been satisfied cannot turn upon whether a state appellate
court chooses to ignore in its opinion a federal
constitutional claim squarely raised in petitioner’s
brief in the state court . . . .’” Dye,
543 U.S. at 3 (citation omitted).
light of the pending state post-conviction petition, Enow may
still secure review for his claims in state post-conviction
proceedings, and his claims are unexhausted. See
Woodford, 548 U.S. at 92. Accordingly, the Court will