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Johnson v. Bishop

United States District Court, D. Maryland

September 29, 2016

JARMAL JOHNSON, Petitioner,
v.
WARDEN FRANK BISHOP, et al., Respondent.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         On August 6, 2014, Petitioner Jarmal Johnson filed the instant 28 U.S.C. 92254 habeas corpus petition attacking his conviction and sentence for use of handgun in the commission of a crime of violence entered in the Circuit Court for Baltimore City.[1] ECF 1[2] Respondents filed an Answer which solely addresses the timeliness the petition. ECF 10 & 11. Petitioner was advised of his opportunity to file a reply. ECF 12. This he has done. ECF 13. 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. 2016); 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 to follow, the Petition will be denied and dismissed with prejudice.

         Procedural History

         After a jury trial in the Circuit Court for Baltimore City, Petitioner was convicted on September 22, 1992, under separate indictments. In indictment number 192099061, Petitioner was convicted of assault with intent to murder, assault, use of a handgun in the commission of a crime of violence, and wearing, carrying or transporting a handgun. ECF 11-1; see also Johnson v. State, 47 A.3d 1002, 1006 (Md. 2012). In indictment number 192099071, Petitioner was convicted of two counts of possession with intent to distribute heroin and cocaine, use of a hand gun in a drug trafficking offense, and two counts of conspiracy.[3] ECF 11-2.

         Petitioner was sentenced on October 28, 1992, as to all indictments. On indictment 192099061 he was sentenced to 30 years for assault with intent to murder and a 20 year, consecutive term for use of a handgun, the first five years to be served without parole. ECF 11-4, p. 37. Petitioners convictions for assault and wearing/carrying/transporting a handgun merged. Id., pp. 37-38.

         As to indictment number 192099071, Petitioner was sentenced to a 20 year term of confinement for wearing or carrying a handgun in relation to a drug trafficking offense, to be served concurrent to the sentence for use of handgun in a crime of violence issued under indictment number 192099061. Id., p. 38. He was also sentenced to a 20 year term of confinement for possession of heroin with intent to distribute, to be served consecutive to the handgun sentence issued under indictment number 192099061. Id. Petitioner received a 20 year term of imprisonment for possession of cocaine with intent to distribute, to be served consecutive to the sentence for possession of heroin with intent to distribute. He also received a 20 year term of imprisonment for conspiracy, to be served consecutive to the possession of cocaine with intent to distribute sentence. Id., p. 39.

         Petitioner filed an appeal in indictment numbers 192099061 and 192099071. The appeal was denied by the Court of Special Appeals. ECF 11-1, p. 5, ECF-2, p. 6. The Court's mandate issued on August 27, 1993. Id. Petitioner did not file a Petition for Writ of Certiorari to the Court of Appeals.

         On October 28, 1996, Petitioner submitted a collateral attack on his conviction entered in indictment number 192099061 pursuant to the Maryland Uniform Post-Conviction Procedure Act, Md. Code Ann., Crim. Pro. 9 7-102, et seq. ECF 11-1, p. 5. The Petition was supplemented on June 18, 1997, to include claims as to both indictment number 192099061 and indictment number 192099071. Id., p. 6; ECF 11-2, p. 6. Petitioner withdrew the petition without prejudice onAugust17, 1998.ECF11-1, p.6.

         Petitioner refiled a Petition for Post-Conviction relief on December 22, 1998. Id., p. 6; ECF 11-2, p. 7. A hearing was held on June 28, 1999. The Petition was denied on July 8, 1999. ECF 11-1, p. 7; ECF 11-2, p. 7. Petitioner's application for leave to appeal the denial of post-conviction relief was denied by the Court of Special Appeals of Maryland on March 30, 2000. The Court's mandate issued on May 2, 2000. ECF 11-13, p. 3.

         At this juncture, Petitioner had completed the necessary prerequisites for seeking federal habeas review of his conviction and sentences. Rather than instituting federal habeas review, however, Petitioner waited until January of 2008, when he filed a Motion to Correct Illegal Sentence in state court, arguing that the sentence for assault with intent to murder was illegal as indictment 192099061 did not charge that offense. Johnson v. State, 47 A.3d 1002, 1007 (Md. 2011). The motion was denied and the Court of Special Appeals affirmed the conviction, finding that Petitioner's claim could not be raised after the time for direct appeal. Id. The Petition for Writ of Certiorari was granted by the Maryland Court of Appeals, which ultimately held that Petitioner's 30 year conviction and sentence for assault with intent to murder was illegal as the offense was not charged in indictment number 192099061. Id. at 1014-16. The Court of Appeals reversed and remanded the case to the Circuit Court with instructions to vacate the conviction and sentence for assault with intent to murder. The Appellate Court held that Petitioner's other convictions stood and specifically denied Petitioner's request to vacate his sentence for use of a handgun. Id., at 1015-16; see also ECF No. 11-1, p. 12.

         On January 7, 2013, Petitioner, with counsel, appeared in the Circuit Court for Baltimore City. ECF 11-6. Petitioner's convictions for assault with intent to murder and assault were vacated. ECF 11-1, p. 14. The Circuit Court ordered a new commitment order be issued reflecting that the assault with intent to murder conviction was vacated. The convictions for use of a handgun in the commission of a crime of violence and for wearing/carrying or transporting a handgun remained in effect. ECF 11-6 p. 11. The commencement date for the 20 year sentence on the use of a handgun conviction was amended to March 9, 1992, to reflect credit for time Petitioner served on the vacated conviction. Id., pp. 9 & 12; ECF 11-1, p. 14.

         On August 15, 2013, Petitioner filed an application for post-conviction relief in indictment numbers 192099061 and 192099071, alleging ineffective assistance of counsel at "his resentencing hearing" and arguing that his sentence was "illegal as no verdict was orally announced on the indictment numbers and counts in open court on the record in accordance with Md. Rule 4-327(a)." ECF 11-7, p. 3. Petitioner alleged that his counsel was ineffective because she ignored his request to file an application for leave to appeal and failed to notify him in a timely manner that she was not going to file an application on his behalf. Additionally, Petitioner alleged his attorney failed to file a motion for a new trial as he requested in accordance with Md. Rule 4-214(b). M, p.3.

         On August 26, 203,, the petition for post-conviction relief was denied. The Court found that the petition was a "subsequent" petition and not cognizable under Maryland law, which permits only one petition for each trial or sentence. ECF 11-9. Petitioner's application for leave to appeal was summarily denied by the Court of Special Appeals. ECF 11-10, ECF 11-11, ECF 11-12. The Court's mandate issued on June 18, 2014. ECF 11-11, p. 3.

         In the Petition before this Court, Petitioner claims he was denied the right to effective assistance of counsel when his attorney failed to file a notice of appeal as ...


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