United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.
is Mark Anthony Jones' ("Jones") Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. §2254,
challenging his convictions in the Circuit Court for Harford
County, Maryland for attempted first-degree murder and
related offenses. (ECF 1). Respondents' Answer, filed
with transcripts of Jones' state proceedings, seeks
dismissal of the Petition as time-barred or for lack of
merit. (ECF 6). Jones filed a Reply. (ECF 7).
case is briefed and ready for disposition. No hearing is
necessary to resolve this case. Local Rule 105.6. (2016);
see also Rule 8(a) of The Rules Governing
§2254 Proceedings. For reasons to follow, the
Petition will be DENIED and DISMISSED on the merits. This
Court finds no cause to issue a Certificate of Appealability.
AND PROCEDURAL BACKGROUND
and Leslie Ricks ended their romantic relationship in March
of 2009. (ECF 10). On March 14, 2009, Ricks obtained a
protective order against Jones to prevent him from contacting
and harassing her. Jones continued to attempt to contact
Ricks, and at one point her sliding door at her home and her
car were damaged. Id. On April 6, 2009, Jones
threatened Ricks and her son in a voice message left at her
office. The same day, Jones also called Rick's father and
threatened her life. Id.
evening of April 6, 2009, Ricks was driving home when two
shots were fired at her car. Id. One bullet grazed
Ricks' arm. Two bullet holes were visible in the car.
Ricks did not see the assailant.
was charged in the Circuit Court for Harford County with
attempted first-degree murder, violating a protective order,
and related charges. A three-day jury trial began on November
17, 2009. At trial, the prosecutor introduced telephone
records related to Jones' cell phone use. Dan Jensen, a
records custodian for Sprint/Nextel, testified that calls
were made from a cell phone belonging Ricks. Jensen described
the locations of the cell towers used by the cell phone
between 8:15 p.m. and 9:29 p.m. on the evening of April 6,
2009, to explain the cell sites changed from Severn (near
Jones' home) to the Harbor Tunnel, Rosedale and then to
Belcamp (near the scene of the shooting and near the time of
the shooting). Jensen acknowledged on cross-examination that
this information neither identified the location of the cell
phone nor the person who placed the calls. (ECF 5-10, ECF
5-2, ECF 5-11). Detective Thomas Walsh of the Harford County
Sheriffs Office testified about use of cell phone records to
pinpoint the caller's location. Walsh testified that he
used cell phone records and real time information about the
location of the cell phone to track Jones to a mall in
Pennsylvania where he was arrested. (ECF 10).
jury convicted Jones of stalking, telephone misuse, and three
counts of violating a protective order. The jury was unable
to reach a verdict on the attempted murder, assault, and
weapons charges. As to these latter charges, the Circuit
Court declared a mistrial and scheduled a retrial. (ECF 5-2).
February 1, 2010, Jones was retried for attempted murder,
assault, and weapons offenses. As described later by the
Court of Special Appeals of Maryland, the testimony presented
at the second trial was "largely a reprise" of the
first trial. (ECF 5-10 at 5). On February 4, 2010, the jury
found Jones guilty of attempted first-degree murder. (ECF
5-1). On March 19, 2010, the Circuit Court
sentenced Jones to life imprisonment plus a consecutive eight
raised two questions for review on direct appeal. His first
question was whether his conviction for attempted
first-degree murder was barred by double jeopardy. (ECF 1,
ECF 5-7). His second question was whether the trial court
erred by denying his motion for a mistrial. Id.
unreported opinion, filed on April 3, 2012, the Court of
Special Appeals of Maryland ruled the double jeopardy
question was unpreserved for appellate review because Jones
had failed to file a Motion to Dismiss prior to the
commencement of his second trial. The Court reviewed the
second question on the merits and affirmed the judgment of
conviction. (ECF 5-10). The court's mandate issued on May
3, 2012. Id.
STATE POST-CONVICTION PROCEEDINGS
filed a Petition for Post-Conviction Relief on July 9, 2012,
and an amended petition on May 17, 2013. (ECF 5-11). The
petition alleged ineffective assistance of trial
counsel for failing to: (1) preserve for review a
double jeopardy challenge, (2) raise a proper challenge to
the State's inconsistent charges, and (3) object to a lay
witness providing expert cell phone testimony and alleged
Jones "denied the colloquy under Md. Rule 4-215 to
discharge his counsel." (ECF 5-11, 5-12, 5-13).
31, 2013, the Circuit Court for Harford County held a hearing
on the Petition. (ECF 5-12). On July 3, 2013, the Circuit
Court denied post-conviction relief. (ECF 5-13). The denial
was docketed on July 8, 2013. (ECF 1, ECF 5-15 at 2).
filed an Application for Leave to Appeal dated August 5,
2013. (ECF 5-14). The Application for Leave to Appeal was
date stamped by the Clerk of the Circuit Court on August 12,
2013, and docketed on September 9, 2013. (ECF 1, ECF 5-14).
It was docketed on September 9, 2013. (ECF 5-1 at 19).
9, 2014, the Court of Special Appeals of Maryland ordered the
State to respond to Jones' Application for Leave to
Appeal. The Order, as described by the State in its Response
to Jones federal habeas petition, directed the State to
address: "1) Did Dan Jensen present the type of cell
phone testimony which qualified him as an expert in the
functioning of cell phone equipment and operations; and if
so, 2) Did trial counsel render ineffective assistance by
failing to object that Dan Jensen was not qualified to
present the testimony he presented?" (ECF
5-15).The State responded as directed, and also
argued that Jones' Application for Leave to Appeal was
time-barred because it was filed five days after the 30-day
deadline for filing had passed. Id. The Court of
Special Appeals summarily denied the Application for Leave to
Appeal on December 15, 2014, with the court's mandate
issuing on January 14, 2015. (ECF 5-16) (stating the
Application for Leave to Appeal from the denial of
post-conviction relief, "having been read and
considered, is denied"). Jones filed this §2254
Petition on December 4, 2015. (ECF 1).
one-year statute of limitations applies to habeas petitions
for a person convicted in a state court. See 28
U.S.C. §2244(d). The one-year limitation period runs
from the latest of four dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States removed, if the applicant was
prevented from filing by such State action;
(G) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. §2244 (d)(1).
here for starting the limitations period is the date on which
Jones' 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)(1)(A). The time for filing is
statutorily tolled when a properly filed application for
state post-conviction or other collateral review is pending.
See 28 U.S.C. §2244(d)(2).
Court of Special Appeals' mandate affirming Jones'
conviction issued on May 3, 2012, therefore Jones'
conviction became final for direct appeal purposes on May 18,
2012, when the time for seeking further review in the Court
of Appeals of Maryland expired. See Md. Rule 8-302
(requiring certiorari petition to be filed in the Court of
Appeals no later than 15 days after the Court of Special
Appeals issues its mandate). Respondents assert Jones did not
file a timely Application for Leave to Appeal, and the Court
of Special Appeals' summary denial of the Application
should be construed as resolving Jones' pleading based on
that procedural failing. (ECF 5). In support, Respondents cite
to Walker v. Martin, 562 U.S. 307, 315 (2011) and
Wilson v. Moore, 178 F.3d 266, 274 (4th. Cir. 1999),
without elaboration. (ECF 5 at 28). Respondents argue that if
Jones did not timely file for leave to appeal the denial of
postconviction relief, then between May 18, 2012 and July 9,
2012 (over one month) and between August 7, 2013 and December
10, 2015 (more than two years), he had were no properly filed
state post-conviction or other collateral proceedings to
statutorily toll the running of the one-year limitations
period, and his federal petition is time-barred. (ECF 5).
Walker v. Martin, 562 U.S. at 315, the Supreme Court
held a California procedural timeliness requirement was an
independent and adequate state ground sufficient to bar
federal habeas review. In Wilson v. Moore, 178 F.3d
at 274, the Fourth Circuit explained when it is unclear
whether the state court ruled on the merits or on independent
and adequate state procedural grounds, the habeas court can
look to the text of the state court order and the surrounding
circumstances. In this case, the Order summarily denying the
Application for Leave to Appeal is silent about the basis for
rejection. Because Respondents were directed to address
specific claims and the subsequent Order did not identify the
basis for denial of Jones' Application, this Petition
will not be dismissed as time-barred. Consideration of the
Petition shall proceed on the merits.