United States District Court, D. Maryland
Catherine C. Blake United States District Judge
December 7, 2016,  Joseph Michael Jones filed the instant 28
U.S.C. § 2254 habeas corpus petition attacking his 2005
convictions entered in the Circuit Court for Harford County,
Maryland for sexual abuse of a minor, second degree sexual
offense, and third degree sexual offense. (ECF No. 1; ECF No.
11-1.) Respondents filed an answer which solely
addressed the timeliness of the petition. (See ECF
No. 11.) Petitioner was advised that he had the opportunity
to file a reply, (see ECF No. 12), but he has filed
nothing further. 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); 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 petition will be denied and dismissed with
jury trial in the Circuit Court for Harford County in August
of 2005, petitioner was convicted of sexual abuse of a minor,
second degree sexual offense, and third-degree sexual
offense. (See ECF 11-1at 3-5.) He was sentenced on
September 27, 2005, to a total term of imprisonment of 55
years, with all but 38 years suspended. (See id.)
filed a motion for modification of sentence on September 29,
2005, which was held sub curia. (Id. at 7.)
Although it does not appear the court ruled on the motion,
its authority to do so expired on September 27, 2010.
See Md. Rule 4-345(e) (a court “may not revise
the sentence after the expiration of five years from the date
the sentence originally was imposed on the
also noted a timely direct appeal. (ECF 11-1 at 7.) The
appeal was denied by the Court of Special Appeals on December
21, 2007. See Jones v. State, Sept. Term 2005, No.
1688 (Md. Ct. Spec. App. Dec. 21, 2007). The Maryland Court
of Appeals affirmed petitioner's convictions and sentence
on September 22, 2009. See Jones v. State, 410 Md.
681 (2009) (ECF 11-2). Petitioner did not seek further review
in the United States Supreme Court. As such, the judgment
became final for direct appeal purposes on December 21, 2009.
See Sup. Ct. Rule 13.1 (requiring petition for writ
of certiorari be filed within 90 days of the judgment from
which review is sought).
December 2, 2014, petitioner submitted a collateral attack on
his conviction by filing a petition for post-conviction
relief in the Circuit Court for Harford County. (ECF 11-1 at
10.) On February 25, 2016, post-conviction relief was denied.
(Id. at 11.) Petitioner's application for leave
to appeal the denial of post-conviction relief was denied by
the Court of Special Appeals of Maryland on October 26, 2016.
(Id. at 12.) The court's mandate issued on
November 28, 2016. (ECF 11-3.)
28 U.S.C. § 2244(d),  a one-year statute of limitations
applies to habeas actions filed by prisoners held pursuant to
state-court judgments. This one-year period is, however,
tolled while properly filed post-conviction proceedings are
pending, and it may otherwise be equitably tolled.
See 28 U.S.C. § 2244(d)(2); Harris v.
Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); Gray
v. Waters, 26 F.Supp.2d 771, 771-72 (D. Md. 1998).
statute of limitations began to run in petitioner's case
on December 21, 2009, when his direct appeal concluded.
Assuming that petitioner's then-pending motion for
modification served to statutorily toll the limitations
period, the sentencing court's revisory power expired on
September 27, 2010, and petitioner no longer had any
collateral proceedings properly pending to toll the
limitations period. Petitioner did not institute state
post-conviction proceedings until over four years later, on
December 2, 2014. As such, there was no properly filed
post-conviction or other collateral proceeding pending in
state court from September 27, 2010, through December 2,
2014, a period in excess of one year, which would have tolled
the limitations period. Accordingly, the statute of
limitations for petitioner's federal habeas petition
expired before he instituted his state post-conviction
proceedings, and the instant petition is time-barred under 28
U.S.C. § 2244(d).
Holland v. Florida, 560 U.S. 631 (2010), the Supreme
Court concluded that equitable tolling applies to the
AEDPA's statute of limitations. Id. at 645. The
Court reiterated that, in order to be entitled to equitable
tolling, the petitioner must show “‘(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented the timely filing.” Id. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). The question of whether equitable tolling applies
turns on the facts and circumstances of the particular case.
See Harris, 209 F.3d at 329-30.
offers no arguments that support equitable tolling.
Petitioner's pro se status and any attendant lack of
knowledge of the law are not the type of extraordinary
circumstances which would justify equitable tolling. See
Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478
(5th Cir. 1991) (declining to apply equitable tolling where
the delay in filing was the result of petitioner's
unfamiliarity with the legal process and lack of legal
representation); Rouse v. Lee, 339 F.3d 238, 248-249
(4th Cir. 2003) (mistake by party's counsel in
interpreting statute of limitations provision does not
present extraordinary circumstances warranting equitable
tolling); Smith v. McGinnis, 208 F.3d 13, 18 (2d
Cir. 2000) (pro se status does not establish sufficient
ground for equitable tolling); Felder v. Johnson,
204 F.3d 168, 171-173 (5th Cir. 2000) (lack of notice of
AEDPA and ignorance of the law are not “rare and
exceptional” circumstances that warrant equitable
tolling); Francis v. Miller, 198 F.Supp.2d 232, 235
(E.D.N.Y. 2002) (ignorance of the law and legal procedure is
not so exceptional as to merit equitable tolling). The court
does not find petitioner entitled to equitable tolling.
Therefore, the petition will be dismissed as time-barred
under 28 U.S.C. § 2244(d).
the amendments to Rule 11(a) of the Rules Governing
Proceedings under Section 2254, “the district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant. . . . If the
court issues a certificate, the court must state the specific
issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” In Slack v.
McDaniel, 529 U.S. 473 (2000), the Supreme Court held
that, “[w]hen the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA
[certificate of appealability] should issue when the prisoner
shows, at least, that . . . jurists of reason would find it