United States District Court, D. Maryland
Frederick Motz, United States District Judge
March 3, 2016, Richard Lavonte Blanks, Sr., filed the instant
28 U.S.C. § 2254 habeas corpus petition attacking his
conviction and sentence for first and second degree murder
and first degree assault entered in the Circuit Court for
Worcester County. ECF 1. Respondents filed an Answer which
solely addresses the timeliness the petition. ECF 5.
Petitioner was advised of his opportunity to file a reply.
ECF 6. This he has done. ECF 9. 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 Worcester County,
petitioner was convicted of first degree murder. ECF 5-1 p.
4, ECF 5-2. He was sentenced on June 4, 2010, to life
imprisonment. ECF 5-1, p. 16. Petitioner filed a motion for
modification of sentence on September 2, 2010, which was
denied on September 21, 2010. Id., pp. 17-18.
noted a timely direct appeal. The appeal was denied by the
Court of Special Appeals on February 28, 2012. ECF 5-2.
Petitioner's request for further review was denied on May
14, 2012, by the Court of Appeals of Maryland. ECF 5-1, p.
18. Petitioner did not seek further review in the Supreme
Court. As such, his judgment became final for direct appeal
purposes on August 14, 2012. See Sup. Ct. Rule 13.1.
(requiring petition for writ of certiorari be filed within 90
days of the judgment from which review is sought).
filed a second Motion for Reduction and/or Modification of
Sentence on March 11, 2013. ECF 5-1, p. 18.
September 20, 2013, petitioner submitted a collateral attack
on his conviction by filing a petition for post conviction
relief in the Circuit Court for Worcester County.
Id. On January 29, 2015, petitioner was granted a
belated application for panel review of his sentence.
Post-conviction relief was denied in all other respects.
Id. Petitioner's application for leave to appeal
the denial of post-conviction relief was denied by the Court
of Special Appeals of Maryland on December 14, 2015. ECF 5-1,
p. 23. The Court's mandate issued on January 13, 2015.
28 U.S.C. § 2244(d) provides a one-year statute of
limitations in non-capital cases for those convicted in a
state case. This one-year period is, however, tolled while
properly filed post-conviction proceedings are pending and
may otherwise be equitably tolled. See 28 U.S.C.
§2244(d)(2); Harris v. Hutchinson, 209 F.3d
325, 328 (4th Cir. 2000); Gray v. Waters, 26 F.Supp.
771, 771-72 (D.Md. 1998).
statute of limitations began to run in petitioner's case
on August 9, 2012, when his direct appeal concluded.
Petitioner did not institute state post conviction
proceedings until over 13 months later, on September 20,
2013. Petitioner's second motion for modification of
sentence filed on March 11, 2013, was not a properly filed
collateral proceeding, as under Maryland law, such motions
must be filed within 90 days of sentencing. See Md.
Rule 4-345(e). As such, there were no properly filed post
conviction or other collateral proceedings pending in state
court from August 9, 2012 through September 20, 2013, a
period in excess of one year, which would have tolled the
limitations period. Accordingly, the statute of limitations
for his federal habeas petition expired before petitioner
instituted his state post-conviction proceedings and the
instant petition is time barred under 28 U.S.C.§
Holland v. Florida, 560 U.S. 631 (2010), the Supreme
Court concluded that equitable tolling applies to the
AEDPA's statute of limitations. Id. at 633. The
Court found that in order to be entitled to equitable
tolling, the movant must show (1) that he has diligently
pursued his rights and (2) that some extraordinary
circumstance prevented the timely filing. Id. at
649. The question of whether equitable tolling applies hinges
on the facts and circumstances of each particular case.
See Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th
offers no arguments in support of his bald claim for
equitable tolling. ECF 13. Petitioner's pro se status and
any attendant lack of knowledge of the law is not the type of
extraordinary circumstance which would justify equitable
tolling. See Barrow v. New Orleans S.S. Ass'n,
932 F.2d 473, 478 (5th Cir. 1991) (refusing to apply
equitable tolling where the delay in filing was the result of
petitioner's unfamiliarity with the legal process or his
lack of legal representation); Rouse v. Lee, 339
F.3d 238, 248-249 (4th Cir. 2003) (negligent mistake by
party's counsel in interpreting AEDPA statute of
limitations does not present extraordinary circumstances
warranting equitable tolling); Smith v. McGinnis,
208 F.3d 13, 18 (2d Cir. 2000) (pro se status does
not establish sufficient ground for equitable tolling);
Felder v. Johnson, 204 F.3d 168, 171-173 (5th Cir.
2000) (lack of notice of AEDPA amendments and ignorance of
the law are not rare and exceptional circumstances that
warrant equitable tolling); Francis v. Miller, 198
F.Supp.2d 232, 235 (E.D. N.Y. 2002) (ignorance of the law and
legal procedure is not so exceptional as to merit equitable
tolling). The court does not find petitioner entitled to
equitable tolling. Therefore, the petition shall be dismissed
as time-barred under 28 U.S.C. § 2244(d).
the amendments to Rule 11(a) of the Rules Governing
Proceedings under Section 2254 "the district court must
issue or deny a certificate of appealability when it enters a
final order adverse to the applicant...If the court issues a
certificate, the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2)." In 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 CO A [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.