United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Petitioner David William
Barone's Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. The Court must resolve whether
Barone's Petition is timely in accordance with 28 U.S.C.
§ 2244(d). No hearing is necessary. See
Local Rule 105.6 (D.Md. 2016). For the reasons set forth
below, the Court will dismiss the Petition as untimely, and
it will not issue a certificate of appealability.
2005, a jury empaneled in the Circuit Court for Wicomico
County, Maryland convicted Barone of multiple counts of first
degree assault, second degree assault, and reckless
endangerment, and one count of a weapon offense.
(Id.). The Circuit Court sentenced Barone to a total
of twenty-one years of incarceration. (Id.).
appealed his conviction to the Court of Special Appeals of
Maryland. (Id.). On June 27, 2006, the Court of
Special Appeals issued an unreported opinion in which it
partially vacated the Circuit Court's restitution award,
otherwise affirmed the convictions. (See ECF No.
12-2 at 3). On September 15, 2006, the Court of Appeals
denied further review, and, on August 26, 2008, the court
denied reconsideration of this ruling. (See Barone v.
Bishop, No. GLR-12-1586 (D.Md. dismissed Mar. 4, 2013)
(“Barone I") (ECF No. 12, Ex. 6).
March 3, 2009, Barone filed a petition for post-conviction
relief in the Circuit Court for Wicomico County. (ECF No.
12-1). On July 16, 2010, the Circuit Court denied
postconviction relief. (Id.). Barone filed an
application for leave to appeal the post-conviction decision,
which the Court of Special Appeals summarily denied on April
12, 2012. (Id.). The mandate issued on May 16, 2012.
(See Barone I at ECF No. 12, Ex. 13).
29, 2012, Barone filed a petition for writ of habeas corpus
in this Court (“Barone I”). (See
Barone I ECF No. 1). Respondents asserted in answer to
the Court's Order to Show Cause that Barone had not
exhausted all of his claims in state court. (Id at
ECF No. 12). The Court directed Barone to file a Reply.
(Id at ECF No. 16). The Court advised Barone he
could waive consideration of the unexhausted claims or
withdraw the petition. (Id.). The Court also
forewarned Barone that withdrawing his petition could result
in any future petition being outside the limitation period.
Barone elected to withdraw the petition, (id at ECF
No. 19), and, on March 4, 2013, the Court dismissed the
petition without prejudice, (id at ECF No. 20).
March 13, 2013, Barone filed a motion to reopen
post-conviction proceedings with the Circuit Court for
Wicomico County. On April 16, 2015, the Court of Special
Appeals summarily denied Barone's application for leave
to appeal the order denying his motion to reopen; the mandate
issued on May 18, 2015. (Id).
filed the instant Petition for Writ of Habeas Corpus on April
22, 2015. (ECF No. 1). Respondents filed an Answer on July 8,
2015 (ECF No. 12) and Barone replied on July 29, 2015 (ECF
No. 14). Respondents also filed a Supplemental Answer on
September 13, 2016 (ECF No. 20), to which Barone replied on
September 26, 2016 (ECF No. 21).
28 U.S.C. § 2244(d), there is a one-year statute of
limitations for filing habeas petitions when the petitioner
was convicted in state court. The period begins to run
“on the date on which the [state] judgment became final
by the conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. §
2244(d) (emphasis added).
running of the one-year limitation period is tolled when
state post-conviction proceedings are pending in any state
court. Harris v. Hutchinson, 209 F.3d 325, 327 (4th
Cir. 2000). “Upon final disposition of the state
post-conviction proceeding, the running of the § 2244(d)
one-year period resumes.” Id.
one-year limitation period is also subject to equitable
tolling, but only in “those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation against the
party.” Hill v. Braxton, 277 F.3d 701, 704
(4th Cir. 2002) (quoting Harris, 209 F.3d at 330).
To be entitled to equitable tolling, Barone must establish
that his delay in filing his Petition is attributable to
either wrongful conduct by Respondents or ...