United States District Court, D. Maryland
JAMES A. KULBICKI, Petitioner,
WARDEN R. GRAHAM, et al., Respondents.
L. Russell, III United States District Judge.
filed a Limited Response to this Court's Order to Show
Cause asserting that Petitioner's request for stay and
abeyance of the above-entitled Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. §2254 is unwarranted. ECF
10. Petitioner filed a Reply. ECF 11. For the reasons stated
below, stay and abeyance shall be denied.
pending is Petitioner's Motion to Appoint Counsel. ECF 9.
Under Rule 8(c) of the Federal Rules Governing §2254
Habeas Corpus cases, “[i]f an evidentiary hearing
is required the judge shall appoint counsel for a petitioner
who qualifies for the appointment of counsel.” No
evidentiary hearing is deemed necessary in this case;
therefore, Petitioner's Motion to Appoint Counsel shall
is currently serving life without parole plus 20 years
consecutive for the January 9, 1993 first degree murder of
Gina Nueslein and a related handgun offense. See Kulbicki
v. State, 207 Md.App. 412, 416 -21 (2012). Nueslein had
an affair with Petitioner and was seeking child support
through court proceedings for their 18-month-old son at the
time of her death. Id. Petitioner was convicted on
October 20, 1993, in the Circuit Court for Baltimore County,
following a jury trial. Id.
direct appeal, the Court of Special Appeals of Maryland
reversed and remanded the case for a new trial on an issue
not connected with matters now pending before any court.
See Kulbicki v. State, 102 Md.App. 376 (1994).
Petitioner was again tried before a jury in 1995. During the
second trial, evidence related to comparative bullet lead
analysis (CBLA) and ballistics was introduced through the
testimony of the State's expert witness, Joseph Kopera,
in addition to other circumstantial evidence. See
Kulbicki, 207 Md.App. at 424-27. Petitioner was again
convicted of first degree murder and a handgun charge and was
re-sentenced to life imprisonment without possibility of
parole plus 20 years consecutive. Id. at 416-17,
appealed his second conviction to the Court of Special
Appeals, which resulted in an unreported opinion issued on
December 20, 1996, affirming his convictions. Id. at
416. The Court of Appeals denied Petitioner's request for
certiorari review. Kublbicki v. State, 345 Md. 236
the Petition for Writ of Certiorari was still pending in the
Court of Appeals, Petitioner filed for post-conviction relief
in the Circuit Court for Baltimore County on February 24,
1997. See Kulbicki, 207 Md.App. at 417, 428. The
petition remained pending for ten years and Petitioner
amended his claims on six occasions. Id. A five-day
hearing was held in April of 2007. Id. In a written
decision issued on January 2, 2008, the Circuit Court denied
post-conviction relief. Id.
filed an application for leave to appeal the denial of
post-conviction relief, resulting in a reported opinion
issued on September 26, 2012, from the Court of Special
Appeals affirming the denial of post-conviction relief.
See Kublicki v. State, 207 Md.App. 412 (2012). The
Maryland Court of Appeals granted Petitioner's request
for certiorari review. See Kublicki v. State, 430
Md. 344 (2013) (table). In an unpublished opinion, the Court
of Appeals reversed the decision of the Court of Special
Appeals and granted Petitioner a new trial based on its view
that he was provided ineffective assistance of counsel when
defense counsel failed to challenge the validity of the
science behind CBLA evidence produced by the State. See
Maryland v. Kulbicki, 136 S.Ct. 2 (2015). The State
sought review in the United States Supreme Court and on
October 5, 2015, the Supreme Court reversed the judgment of
the Court of Appeals and found that trial counsel was not
constitutionally ineffective. Id.
the case was returned to the Maryland Court of Appeals,
Petitioner sought an order remanding his case or in the
alternative staying the matter pending his filing a petition
for writ of actual innocence. On December 17, 2015, the Court
of Appeals denied the requested relief and summarily affirmed
the judgment of the Court of Special Appeals affirming the
denial of post-conviction relief. See Kulbicki v.
State, 445 Md. 451 (2015).
1, 2016, Petitioner filed, through counsel, a petition for
writ of actual innocence in the Baltimore County Circuit
Court. ECF 5-1. The instant Petition for Writ of Habeas
Corpus was filed on May 24, 2016, but asserted no substantive
claims. Rather, Petitioner simply sought to file a protective
petition to insure that he would not be foreclosed from
filing a federal habeas corpus petition based on his belief
that the petition for writ of actual innocence does not toll
the limitations period found in 28 U.S.C. § 2244(d). ECF
1 and 11. After he was granted 28 days to amend his petition
(ECF 2), Petitioner filed an amended petition asserting his
conviction was based on unreliable comparative bullet lead
analysis; his right to due process was violated by the
State's use of perjured testimony regarding Joseph
Kopera's educational background; trial counsel was
ineffective with regard to scientific evidence introduced by
the State; and the State violated Brady v. Maryland,
373 U.S. 83, 87 (1963). ECF 3.
Rhines decision allows a Petitioner able to
demonstrate good cause for failing to exhaust a claim to
return to state court to present the unexhausted claim while
the federal habeas petition remains stayed. Rhines v.
Weber, 544 U.S. 269, 277 (2005). A stay is available
only in limited circumstances, and is appropriate only for
good cause, where the unexhausted claims are potentially
meritorious and no dilatory tactics are shown. Id.
Even if a Petitioner had good cause for that failure, the
district court would abuse its discretion if it were to grant
a stay if the unexhausted claims are plainly meritless.
Rhines, 544 U.S. at 277. A stay and abeyance may be
used for a mixed petition and where all potential claims are
unexhausted. See Hyman v. Keller, No. 10-6652, 2011
WL 3489092 (4th Cir. 2011) citing Rhines, 544 U.S.
at 269; Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005); Heleva v. Brooks, 581 F.3d 187, 191-92 (3rd
instant case, the sole purpose stated by Petitioner for the
stay and abeyance is to insure the federal habeas petition is
filed in a timely manner. There does not appear to be a claim
asserted by Petitioner that has not been exhausted and is
currently pending in the state court. The one-year filing
limitation for federal habeas relief has not yet expired in
this case if the currently pending petition for writ of
actual innocence is a properly filed collateral attack on the
underlying conviction under 28 U.S.C. §2244(d). There
has only been a period of 197 days during which Petitioner
has not had a pending appeal or post-conviction proceeding in
state court, leaving 168 days of the filing period which has
not yet expired.
assert that under Wall v. Kholi, 562 U.S. 545
(2011), the petition for writ of actual innocence is a
properly filed petition that tolls the limitation period
under §2244(d). ECF 10 at 9-9. Petitioner takes a
different view and asserts that because the actual innocence
writ is only available for certain types of convictions, it
does not operate to toll the filing period. ECF 11. The
Supreme Court examined the meaning of “collateral
review” in Kholi and observed that it means
“a judicial examination of a judgment or claim in a
proceeding outside of the direct review process.”
Id. at 553. The Court cited examples such as habeas
corpus and coram nobis proceedings as fitting the definition
of collateral review. Id. At issue in Kholi
was whether a motion to reduce sentence under Rhode Island
law met the definition of collateral review. In finding that
the motion operated to toll the limitations provision, the
Court noted that the motions are not a part of the direct
review process; are subject to limited appellate review; and
permits the trial court to provide relief from a sentence if
it is an illegal sentence or was imposed in an illegal
manner. Id. at 554. In considering such a motion,
the Rhode Island trial courts are “guided by several
factors, including ‘(1) the severity of the crime, (2)
the defendant's personal, educational, and employment
background, (3) the potential for rehabilitation, (4) the
element of societal deterrence, and (5) the appropriateness
of the punishment.'” Id. at 556 (quoting
State v. Mollicone, 746 A.2d 135, 138 (R.I. 2000)).
The Rhode Island appellate courts are permitted to
“disturb the trial justice's decision when the
trial justice has imposed a sentence that is without
justification and is grossly disparate from other sentences
generally imposed for similar offenses.” Id.
(internal quotation omitted).
Maryland law, a petition for writ of actual innocence is
“collateral” inasmuch as it is not a part of the
direct appellate review of Petitioner's conviction. The
court considering the petition is empowered to “set
aside the verdict, resentence, grant a new trial, or correct
the sentence, as the court considers appropriate.” Md.
Crim. Proc., Code Ann. §8-301(f)(1) (West 2016). The
court must state its reasons for granting or denying relief
on the record. Id. at §8-301(f)(2). The remedy
is available to “a person charged by indictment or
criminal information with a crime triable in circuit court
and convicted of that crime” who “claims that
there is newly discovered evidence that creates a substantial
or significant possibility that the result may have been
different . . . [that] could not have been discovered in time
to move for a new trial.” Id. §8-301(a).
If a petition for writ of actual innocence is denied, the
decision may be appealed to the state appellate courts.
See Douglas v. State, 423 Md. 156, 171 (2011). In
essence, the actual innocence writ is a post-conviction
petition that is limited in the type of claim that may be
raised. As such, it ...