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Jones v. Graham

United States District Court, D. Maryland

November 9, 2016

MARK ANTHONY JONES, #361-996 Plaintiff
v.
RICHARD J. GRAHAM, Warden, THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Defendants

          MEMORANDUM OPINION

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.

         Pending 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).

         The 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Jones 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.

         On the 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.

         I. FIRST TRIAL

         Jones 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).

         The 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).

         II. SECOND TRIAL

         On 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).[1] On March 19, 2010, the Circuit Court sentenced Jones to life imprisonment plus a consecutive eight years. Id.

         III. DIRECT APPEAL

         Jones 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.

         In an 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.

         IV. STATE POST-CONVICTION PROCEEDINGS

         Jones 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[2] 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).

         On May 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).

         Jones 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).

         On June 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).[3]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).

         TIMELINESS

         A 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).

         Relevant 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).

         The 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).[4] 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).

         In 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.

         STANDARD ...


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