United States District Court, D. Maryland
W. Grimm United States District Judge.
Petition for Writ of Habeas Corpus, Ndokey Enow challenges
his 2015 guilty plea and conviction for solicitation to
commit first degree murder. ECF No. 1; see State Ct.
Docket, State v. Enow, Case No. 125462C (Cir. Ct.
Montgomery Cnty.), ECF No. 8-1. Enow raises the following
claims in the Petition: (1) the indictment was based on
“false evidence” and unlawful wiretapping; (2)
his guilty plea was not entered voluntarily and knowingly,
(3) he was provided ineffective assistance of counsel; and
(4) his sentence violates the Eighth Amendment. Pet. 5-6. On
March 25, 2017, Respondents filed a Limited Answer seeking
dismissal of Enow's Petition for Writ of Habeas Corpus
for lack of exhaustion. ECF No. 8.
March 22, 2017 and April 3, 2017, Enow filed Traverses to the
Answer. ECF Nos. 9, 11, 12. On April 17, 2017, Enow filed a
motion asking the court to review supplemental evidence in
support of his Traverses, and he filed a supplement to that
motion. ECF Nos. 13, 14. The matter is briefed and ready for
adjudication. A hearing is not necessary. 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)).
filing a federal habeas corpus application under 28 U.S.C.
§ 2254, a petitioner must show that all of his claims
have been presented to the state courts. 28 U.S.C. §
2254(b) and (c); see also Preiser v. Rodriguez, 411
U.S. 475, 491 (1973). Failure to exhaust a claim requires
dismissal by the federal court. See 28 U.S.C. §
2254(b)(1)(A); Granberry v. Greer, 481 U.S. 129, 134
(1987); Rose v. Lundy, 455 U.S. 509, 515-19 (1982).
exhaustion requirement is satisfied when (1) a petitioner has
fairly presented all claims in state court, or (2)
if no state remedies are currently available to the
petitioner. See Gray v. Netherland, 518 U.S. 152,
161 (1996). Fair presentation requires the petitioner to
“give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of
the State's established appellate review process, ”
through either direct or collateral review.
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45
(1999). Both the operative facts and the controlling legal
principles must be presented to the state court. Picard
v. Connor, 404 U.S. 270, 277 (1971).
appeal of right is not permitted, as in cases like this one
where a guilty plea is entered, exhaustion can be
accomplished by filing an application for leave to appeal to
the Court of Special Appeals. Cts. & Jud. Proc. §
12-302(e). If the Court of Special Appeals denies the
application, there is no further review available and the
claim is exhausted. Cts. & Jud. Proc. § 12-202.
exhaust a claim through post-conviction proceedings, it must
be raised in a petition filed in the Circuit Court and in an
application for leave to appeal to the Court of Special
Appeals. Md. Code Ann., Crim. Proc. § 7-109. If the
Court of Special Appeals denies the application, there is no
further review available and the claim is exhausted. Cts.
& Jud. Proc. § 12-202. However, if the application
is granted but relief on the merits of the claim is denied,
the petitioner must file a petition for writ of certiorari to
the Court of Appeals. Williams, 438 A.2d at 1305.
filed an Application for Leave to Appeal his guilty plea,
raising “illegal wiretapping, ineffective assistance of
counsel, illegal sentence, and a guilty plea that was
unknowing, involuntary, and unintelligent.” Traverse 2,
ECF No. 9. The Court of Special Appeals of Maryland
denied his Application by unreported opinion filed on August
12, 2015. Typically, such a denial would exhaust all
claims presented to the Court of Special Appeals.
See Cts. & Jud. Proc. § 12-202. But,
“it has long been the rule in Maryland that, except in
extraordinary circumstances, claims of ineffective assistance
of counsel are not cognizable on direct appeal” and
“are generally cognizable only in state post conviction
proceedings.” Anthony v. Schuppel, 86
F.Supp.2d 531, 536 (D. Md. 2000) (citing, e.g., State v.
Zimmerman, 273 A.2d 156, 163 (Md. 1971)). And, given
that Enow pleaded guilty, it is questionable whether any
claim other than his challenge to the voluntariness of his
guilty plea was “fairly presented” on direct
appeal. See O'Sullivan v, 526 U.S. at 844-45.
Thus, he did not exhaust all of his claims on direct appeal.
that Enow also initiated state post-conviction proceedings,
raising “[j]urisdictional defects such as ineffective
assistance of counsel, failure of the indictment, conviction
on an indictment that the prosecutor knew was only supported
by false evidence, guilty plea entered involuntarily,
unknowingly, and unintelligently, illegal sentence, lack of
jurisdiction, duress, coercion, etc.” Pet. 3-4. The
Circuit Court for Montgomery County held a hearing on the
Petition for Post-Conviction Relief on October 19, 2016.
State Ct. Docket Entry No. 134. On December 28, 2016, the
Circuit Court denied post-conviction relief. Id. at
Entry No. 141. On January 13, 2017, Enow filed an Application
for Leave to Appeal the denial of his Petition for
Post-Conviction Relief in the Court of Special Appeals, which
remains pending. See State Ct. Docket. Consequently,
while he gave “the state courts one full opportunity to
resolve [at least one of his claims] by invoking one complete
round of the State's established appellate review
process, ” through direct review, see
O'Sullivan, 526 U.S. at 844-45, his collateral
attack remains pending.
basis for the “rigorously enforced total exhaustion
rule” is comity, which “‘teaches that one
court should defer action on causes properly within its
jurisdiction until the courts of another sovereignty with
concurrent powers, and already cognizant of the litigation,
have had an opportunity to pass upon the matter.'”
See Rose v. Lundy, 455 U.S. 509, 515 (1982) (quoting
Darr v. Burford, 339 U.S. 200, 204 (1950)).
“[I]t is a principle controlling all habeas corpus
petitions to the federal courts, that those courts will
interfere with the administration of justice in the state
courts only ‘in rare cases where exceptional
circumstances of peculiar urgency are shown to
exist.'” Id. at 515-16 (quoting Ex
parte Hawk, 321 U.S. 114, 117 (1944)). Indeed, “it
would be unseemly in our dual system of government for a
federal district court to upset a state court conviction
without an opportunity to the state courts to correct a
constitutional violation.” Id. at 518 (quoting
Darr, 339 U.S. at 204). Thus, even though Enow saw
at least one claim through the appellate process on direct
review, it would countermand the principles of comity
underlying the exhaustion requirement to review his federal
habeas petition while his collateral proceedings remain
pending. See Id. at 515-18.
event, Enow did not exhaust all of his claims on direct
appeal, and “a district court must dismiss such
‘mixed petitions, ' leaving the prisoner with the
choice of returning to state court to exhaust his claims or
of amending or resubmitting the habeas petition to present
only exhausted claims to the district court.” Rose
v. Lundy, 455 U.S. 509, 510 (1982). Accordingly, I will
dismiss his petition without prejudice for lack of
exhaustion. He may refile his federal petition for habeas
corpus relief after he exhausts these claims before the state
courts. I note that the pendency of the post-conviction
proceedings tolls the statute of limitations for his federal
habeas petition. See 28 U.S.C. § 2244(d)(2)
(“The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward [the one-year] period of limitation . .
. .”); Carey v. Saffold, 536 U.S. 214, 219-20
(2002) (stating that the federal limitations period is tolled
“as long as the ordinary state collateral review
process is ‘in continuance, ' i.e., ‘until
completion of that process”); see also Palmer v.
Corcoran, 194 F.3d 1305 (4th Cir. 1999) (unpublished)
(noting Maryland inmate's petition for post-conviction
relief properly tolled the limitations period).
district court dismisses a habeas petition solely on
procedural grounds, a Certificate of Appealability will not
issue unless the petitioner can demonstrate both “(1)
‘that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right' and (2) ‘that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.'” Rouse v.
Lee,252 F.3d 676, 684 (4th Cir. 2001) (quoting
Slack v. Daniel, 529 U.S. 473, 484 (2000)). ...