Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barone v. Graham

United States District Court, D. Maryland

August 16, 2016

DAVID WILLIAM BARONE, Petitioner,
v.
R. GRAHAM, et al., Respondents.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         THIS MATTER is before the Court on Petitioner David William Barone's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §2254 (ECF No. 1). No hearing is necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons stated below, the Court will require Respondents, Warden R. Graham and the Office of the Attorney General of Maryland (collectively, the "State"), to file an additional response.

         I. BACKGROUND

         Barone received a two-day jury trial on June 20 and 21, 2005 in the Circuit Court for Wicomico County on charges of attempted murder and related offenses. (ECF No. 8-2). Barone was found guilty of first degree assault, second degree assault, reckless endangerment, and a weapon offense. (Id.). Barone was sentenced to serve two concurrent terms of eighteen years each and a three-year consecutive term for the weapon offense. (Id.).

         Barone appealed his conviction to the Court of Special Appeals of Maryland which issued an unreported opinion on June 27, 2006 partially vacating a restitution award entered by the Circuit Court[1] but otherwise affirming the convictions. Further review was denied by the Court of Appeals on September 15, 2006. Reconsideration of that decision was denied on August 26, 2008. (ECF No. 12 at p. 3); see Barone v. Bishop, Civil Action GLR-12-1586 at ECF 12, Ex. 6. Thus, Barone’s conviction became final for purposes of federal habeas filing deadlines on November 24, 2008, the day the time for filing a Petition for Writ of Certiorari with the United States Supreme Court expired. See Sup.Ct. Rule 13.1 (setting 90-day time limit for filing a petition for writ of certiorari).

         Barone filed a petition for post-conviction relief on March 3, 2009 in the Circuit Court for Wicomico County. (ECF No. 12 at Ex. 1). At that time, 98 days had run on the 365-day time limit for filing a federal habeas corpus petition, with the remaining 267 days stayed while post-conviction proceedings were pending. On July 16, 2010, the Circuit Court issued an opinion denying post-conviction relief. (Id.). Barone filed an application for leave to appeal the post-conviction decision which was summarily denied by the Court of Special Appeals on April 12, 2012, with the mandate issuing on May 16, 2012. See Barone v. Bishop, Civil Action GLR-12-1586 at ECF No. 12, Ex. 13 (D. Md.).

         On May 29, 2012, Barone filed a Petition for Writ of Habeas Corpus in this Court. See Barone v. Bishop, Civil Action GLR-12-1586 at ECF No. 1 (D. Md.). The respondents asserted in answer to the Order to Show Cause in that case that Barone had included in his Petition claims that had not yet been considered by the appropriate state court. (Id. at ECF 12). Barone was directed to file a Reply and was further advised that he could waive consideration of the claims not yet exhausted or he could withdraw the petition, risking a subsequent petition being found untimely if his effort to exhaust the claims were not completed in time to meet the federal habeas deadline. (Id. at ECF 16). Barone chose to withdraw the petition, (id. at ECF No. 19), and the petition was dismissed without prejudice on March 4, 2013. (Id. at ECF No. 20).

         On March 13, 2013, Barone filed a motion to reopen post-conviction proceedings with the Circuit Court for Wicomico County. (ECF No. 12 at Ex. 1). His application for leave to appeal the order denying his motion to reopen was summarily denied by the Court of Special Appeals on April 16, 2015; the mandate issued on May 18, 2015. (Id.). The instant Petition for Writ of Habeas Corpus was filed with this Court on April 22, 2015. (ECF No. 1). In its Response to Barone’s Petition, the State asserts the Petition is time-barred. (ECF No. 12). The Court granted Barone twenty-eight days to file a Reply, which he did on July 29, 2015. (ECF No. 14).

         II. DISCUSSION

         A. Legal Standard

         A one-year statute of limitations applies to habeas petitions in non-capital cases for an individual convicted in a state court. See 28 U.S.C. § 2244(d). This section provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.