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Barone v. Graham

United States District Court, D. Maryland

October 13, 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 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.[1] 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.

         I.BACKGROUND

         In June 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.).

         Barone 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, [2] but 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).

         On 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).

         On May 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).

         On 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).

         Barone 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).

         II. DISCUSSION

         A. Analysis

         Under 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).

         The 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.

         The 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 ...


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