United States District Court, D. Maryland
EARL D. JOHNSON, JR., #252-782 Petitioner,
RICHARD DOVEY, et al. Respondents.
J. HAZEL, UNITED STATES DISTRICT JUDGE
is Earl D. Johnson Jr.'s ("Petitioner" or
"Johnson') 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.
FACTUAL AND PROCEDURAL BACKGROUND
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. ECF No. 7-1.
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
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.
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.
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.
November 27, 2012, Johnson filed a Petition for
Post-Conviction relief in the Circuit Court for Anne ...