United States District Court, D. Maryland
FREDERICK MOTZ UNITED STATES DISTRICT JUDGE
Rodney William Pitts ("Pitts") seeks habeas corpus
relief pursuant to 28 U.S.C. § 2254, attacking his 1998
convictions in the Circuit Court for Baltimore City. ECF No.
1. Respondents' limited answer to the
petition and Pitts' reply remain pending. ECF
Nos. 6 & 7. After review, 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. 2014); 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 reasons to follow the petition shall be
dismissed as time-barred.
and Procedural History
October of 1997, a jury in the Circuit Court for Baltimore
City found Pitts guilty of first-degree murder of a victim,
second-degree murder of another victim, and two counts of
carrying a dangerous weapon openly with intent to injure. ECF
Nos. 6-1 & 6-2. In February of 1998, Pitts was sentenced
to life imprisonment without the possibility of parole plus
thirty years. Id. On December 7, 1998, the Court of
Special Appeals of Maryland vacated one of Pitts'
sentences for carrying a dangerous weapon openly with intent
to injure, but otherwise affirmed Pitts' judgment of
conviction. ECF No. 6-2. On March 12, 1999, the Court of
Appeals of Maryland denied further review. Pitts did not seek
further review in the Supreme Court. Therefore, his judgment
of conviction became final on or about June 10, 1999, when
the 90-day period for filing a petition for writ of
certiorari with the Supreme Court expired. See
Supreme Court Rule 13.1 (requiring petition for writ of
certiorari to be filed within ninety days of date of judgment
from which review is sought); Clay v. United States,
537 U.S. 522, 525 (2003) (state judgment becomes final for
habeas purposes when the time expires for filing a petition
for writ of certiorari to the Supreme Court or ninety days
following the decision of the state's highest court).
observe that on June 30, 1999, Pitts filed a petition for
post-conviction relief in the circuit court, which was
withdrawn without prejudice on December 17, 1999. ECF No.
6-1. On June 25, 2007, Pitts filed another petition for
post-conviction relief, which was denied by the circuit court
on March 8, 2012. His application for leave to appeal was
denied by the Court of Special Appeals of Maryland on July
31, 2013. The mandate was issued on August 30, 2013. ECF No.
6-3. On October 15, 2013, Pitts filed a petition for a writ
of actual innocence. The petition was withdrawn without
prejudice on April 6, 2015. ECF No. 6-1. Pitts' 28 U.S.C.
§ 2254 petition was received for filing on May 18,
to Antiterrorism and Effective Death Penalty Act
("AEDPA"), when filing a federal habeas corpus
petition pursuant to 28 U.S.C. § 2254, defendants
convicted in state court on a non-capital offense are subject
to a one-year statute of limitations. See 28 U.S.C.
§2244(d). Pitts' conviction became final for
purposes of direct appeal on June 10, 1999. He filed a
postconviction petition twenty days later on June 30, 1999.
Thus the one-year statute of limitations period was tolled
under 28 U.S.C. § 2244(d)(2) until December 17, 1999,
when Pitts withdrew the petition. As Pitts subsequently had
no properly filed collateral review petition pending until
June 25, 2007, when he filed another post-conviction
petition, the one-year statutory limitation period ran
unchecked from December 18, 1999 to June 24, 2007. Moreover,
from August 31, 2013 to the April 30, 2016 filing date of the
federal petition, another thirty-two months passed without
Pitts submitting any collateral review filings. This petition
was plainly filed outside the statutory one-year statute of
reply, Pitts argues that he is entitled to have his claims
heard under the equitable tolling and miscarriage of justice
exceptions. ECF No. 7. He claims that his habeas corpus
petition "provides the court with reliable overwhelming
evidence of his innocence that exonerates him from the double
murders along with a trustworthy eyewitness account that
identified someone else as being the perpetrator of the crime
[for] which he incarcerated." Id.
true that under certain circumstances the AEDPA's statute
of limitations may be subject to equitable tolling. See,
e.g., Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir.
2000); United States v. Prescott, 221 F.3d 686,
687-88 (4th Cir. 2000); see also Wall v. Kholi, 131
S.Ct. 1278, 1283 (2011). The Fourth Circuit has consistently
held that a party seeking to avail itself of equitable
tolling must show that (1) extraordinary circumstances, (2)
beyond his control or external to his own conduct, (3)
prevented him from filing on time. Rouse v. Lee, 339
F.3d 238, 246 (4th Cir, 2003) (en banc). Additionally, the
movant must show that he employed reasonable diligence in
investigating and bringing his claims. Further, to be
entitled to equitable tolling a petitioner must show:
"(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing." Holland v.
Florida, 560 U.S. 631, 649 (2010), citing Pace v.
DiGulielmo, 544 U.S. 408, 418 (2005). Pitts has plainly
failed to show that he pursued his rights diligently and he
does not provide a rare and exceptional circumstance for
tolling the limitation period.
in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), the
Supreme Court held that federal courts have equitable
authority to invoke the miscarriage of justice exception to
overcome expiration of the statute of limitations governing a
first federal habeas petition. Id. at 1934. "In
order to show the type of 'miscarriage of justice'
that will excuse a procedural bar, a petitioner must make a
colorable showing of actual innocence." Crawford v.
Head, 311 F.3d 1288, 1327 (11th Cir. 2002) (quoting
Isaacs v. Head, 300 F.3d 1232, 1255 (11th Cir.
2002)). "[T]enable actual-innocence gateway claims are
rare." McQuiggin, 133 S.Ct. at 1928. The
petitioner must satisfy the Schlup standard,
McQuiggin, 133 S.Ct. at 1928 (citing Schlup v.
Delo, 513 U.S. 298 (1995)), by demonstrating that
constitutional error "probably resulted" in the
conviction of one who is actually innocent. "To be
credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence- that was not presented at trial."
Schlup, 513 U.S. at 324. "Without any new
evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred
claim." Id., 513 U.S. at 315-17. "[A]
petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt."
Id., 513 U.S. at 329. "The actual innocence
exception is 'exceedingly narrow in scope, ' and the
petitioner must demonstrate that he is factually innocent
rather than legally innocent." Id., 513 U.S. at
329 (citing Bousley v. United States, 523 U.S. 614,
623 (1998) ("'actual innocence' means factual
innocence, not mere legal insufficiency"); see also
House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing
that the Schlup standard is "demanding"
and seldom met).
has not made the requisite showing under McQuiggin
and Schlup to warrant application of the miscarriage
of justice exception to the statute of limitations bar. As
correctly noted by respondents, he is relying on a statement
of an alleged witness who was known to the defense at trial.
He did not advance his claim within a reasonable time of its
availability and thus is not entitled to equitable tolling.
His petition for habeas corpus relief is time-barred under 28
U.S.C. § 2244(d)(1)(A-D) and shall be dismissed and
denied with prejudice.
Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme
Court held that "[w]hen the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA
[certificate of appealability] should issue when the prisoner
shows, at least, that... jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling." Slack, 529 U.S. at 484.
Pitts does not satisfy this standard, and the court declines
to issue a certificate of appealability.