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Johnson v. Dovey

United States District Court, D. Maryland

November 29, 2016

EARL D. JOHNSON, JR., #252-782 Petitioner,
v.
RICHARD DOVEY, et al. Respondents.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE

         Pending is Earl D. Johnson Jr.'s ("Petitioner" or "Johnson[1]') Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his 2011 judgment of conviction in the Circuit Court of Anne Arundel County for armed robbery and related offenses. Respondents Richard Dovey, the Warden, and the Attorney General of the State of Maryland (collectively, "Respondents") filed an Answer seeking dismissal of Johnson's claims as not cognizable on federal habeas corpus review, and in the alternative, because the claims are unexhausted. Johnson has filed a Motion for Release from Custody, a Motion to Contest Dismissal, and a Reply to Respondents' Answer. ECF Nos. 10, ll, and 16.' The Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Local Rule 105.6 (D. Md. 2016). For the reasons to follow, the Petition will be denied and dismissed without prejudice for lack of exhaustion. Petitioner's Motion for Release from Custody and Motion to Contest Dismissal will be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 14, 2011, a jury sitting in the Circuit Court of Anne Arundel County found Johnson guilty of armed robbery, robbery, assault in the second degree, and theft under SI 000 based on a series of robberies at two 7-Eleven convenience stores in Crofton, Maryland. The Circuit Court sentenced Johnson to serve 25 years of incarceration without parole.[2] ECF No. 7-1.

         Johnson filed a direct appeal to the Court of Special Appeals of Maryland, presenting four questions for review:

1. Did the trial court err in denying the motion to sever?
2. Is the evidence insufficient to sustain the convictions for robbery with a dangerous weapon, robbery, and second degree assault?
3. Did the trial court err in instructing the jury that "[t]o support a robbery conviction possession of an undisclosed weapon could be inferred from the surrounding facts and circumstances" and that "[t]the presence of a deadly weapon could satisfy the constructive violence element of robbery?"
4. Is the sentence of 25 years without parole illegal?

ECF No. 7-2 at 6.[3]

         On August 28, 2012, the Court of Special Appeals vacated Johnson's sentence of twenty-five years without parole for armed robbery and remanded for resentencing on that conviction, but otherwise affirmed judgment. ECF No. 7-5 at 34. On October 2, 2012, Johnson was resentenced to serve 13 years in prison, consecutive to any sentence being served. ECF No. 7-1.[4]

         Johnson then filed a Petition for a Writ of Certiorari, asking the Court of Appeals of Maryland to review the determination that the evidence was sufficient to sustain his convictions. ECF No. 7-6. The Court of Appeals denied review on November 19, 2012. Id. at 4.

         On November 27, 2012, Johnson filed a Petition for Post-Conviction relief in the Circuit Court for Anne ...


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