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Gebhart v. Miller

United States District Court, D. Maryland

November 30, 2016

JEREMY A. GEBHART, Petitioner,
v.
WARDEN RICK MILLER, et al. Respondents.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         Petitioner Jeremy A. Gebhart seeks habeas relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2013 convictions in the Circuit Court for Carroll County. (ECF No. 1). Respondents filed a Limited Answer claiming that the Petition is subject to dismissal for the failure to exhaust available state court remedies. They argue that Gebhart still has available state court remedies because he may file post-conviction proceedings. (ECF No. 6). Gebhart was given the opportunity to respond to Respondents' arguments, and he has done so. (ECF No. 7).

         This matter has been fully briefed. Upon review, 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. 2014); 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 that follow, the Court will dismiss without prejudice Gebhart's Petition.

         I. BACKGROUND

         Gebhart was found guilty of second-degree assault (two counts) and resisting arrest (one count) in the Circuit Court for Carroll County. On December 12, 2013, he was sentenced to a five-year term. (ECF Nos. 6-1, 6-2, & 6-3). On direct appeal, Gebhart raised four claims for review: (1) sufficiency of the evidence; (2) trial court error for the failure to instruct the jury on all three definitions of assault; (3) trial court error for the failure to merge the assault and resisting arrest convictions;[1] and (4) trial court error for the imposition of an illegal sentence on the resisting-arrest conviction. (ECF Nos. 6-2 & 6-3).

         On January 15, 2015, the Court of Special Appeals of Maryland granted Gebhart sentencing relief as to the failure to merge one of the second-degree assault convictions with resisting arrest, but otherwise affirmed his judgment of conviction. (ECF No. 6-3). On April 20, 2015, the Court of Appeals of Maryland denied further review. (Id.).

         On November 25, 2015, Gebhart filed a post-conviction petition in the Circuit Court for Carroll County, raising claims identical to those presented on direct appeal, with an additional due process and ineffective assistance of counsel ground. (ECF No. 6-4). On December 28, 2015, the Circuit Court denied Gebhart's request for a waiver of costs and ordered the post-conviction petition be deemed withdrawn unless the costs were remitted. (Id.). On January 19, 2016, Gebhart filed an application for leave to appeal, which was stricken due to the failure to pay costs. On March 28, 2016, the Court of Special Appeals of Maryland issued an order dismissing Gebhart's application for leave to appeal. (Id.).

         Gebhart's Petition for federal habeas corpus relief, when generously construed, raises five claims: (1) trial court error when it failed to instruct the jury on all varieties of second-degree assault; (2) his ex-post-facto rights were violated; (3) violation of due process rights due to his pre-trial detention; (4) law enforcement violation of his constitutional rights by recording his statement, when he was “fatigued, ” and introducing the statement as evidence by the State; and (5) his bail was excessive, resulting in his being unlawfully detained in pre-trial detention. (ECF No. 1 at 8-13).

         II. DISCUSSION

         A. Exhaustion of State Remedies

         Respondents contend that Gebhart's third, fourth, and fifth claims are unexhausted. (ECF No. 6 at 9). Gebhart does not seek to withdraw his purportedly unexhausted claims. Rather, his Reply seemingly claims that his Petition is sufficiently “worthy” to proceed pursuant to Rule 5(e) of the Rules Governing Section 2254 Cases.[2] (ECF No. 7).

         State exhaustion “‘is rooted in considerations of federal-state comity, '” and in Congressional determination via federal habeas laws “that exhaustion of adequate state remedies will ‘best serve the policies of federalism.'” Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D.Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of the exhaustion requirement is “to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971).

         Exhaustion comprises two components. First, a petitioner must utilize “all available state remedies before he can apply for federal habeas relief.” Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997)). Under this component of exhaustion, a habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). Lack of exhaustion precludes federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . . .”).

         The second component of exhaustion requires a petitioner to have offered the state courts an adequate opportunity to address the precise constitutional claims advanced on federal habeas. “To provide the State with the necessary ‘opportunity, ' the prisoner must ‘fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal ...


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