United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
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. ECF 1 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.
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. ECF 11-2.
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...