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Mosby v. Bishop

United States District Court, D. Maryland

August 1, 2017

KEVIN RAMON MOSBY, #327-278, #1587331
v.
FRANK BISHOP, JR., JOHN MCCARTHY, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Kevin Ramon Mosby, a self-represented Maryland prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He attacks his 2005 conviction in the Circuit Court for Montgomery County, Maryland, for first-degree burglary and related offenses. He also submitted exhibits in support of the petition. Respondents have responded and offered the docket sheet outlining proceedings relating to Mosby's criminal case as well as a statement of reasons dismissing Mosby's post-conviction petition.. (ECF No. 6.) Mosby has replied. (ECF No. 8.) After reviewing the petition, answer, and reply, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; see also 28 U.S.C. §2254(e)(2). For the reasons set forth' below, the petition shall be denied and a certificate of appealability shall not issue.

         I. Factual and Procedural History

         A. State Proceedings

         On April 7, 2005, Mosby pleaded guilty to first-degree burglary, illegal use of a handgun, and second-degree assault in the Circuit Court for Montgomery County. (ECF 6 -1, Entry 28.) On that same day, April 7, 2005, Mosby was sentenced to 22 years of incarceration. (Id.) Mosby did not file an application for leave to appeal the entry of his plea and sentence; thus, his judgment became final for direct appeal purposes on Monday, May 9, 2005. See Md. Rule 8-204 (application for leave to appeal to be filed within 30 days of judgment from which appeal is sought).

         On May 4, 2005, Mosby filed a motion for reconsideration of sentence. (ECF No. 6-1, Entry 38.) On April 9, 2010, the Circuit Court modified Mosby's sentence as to Count 1 (first-degree burglary) to 20 years of incarceration, suspended execution of all but 15 years of the sentence, giving credit for time served from October 20, 2004, and recommended Mosby serve his sentence at Patuxent Institution. The Circuit Court also imposed a 20-year sentence as to Count 4 (use of a handgun in the commission of a violent crime), suspending all but 5 years, to run consecutive to Count 1. As to Count 6 (second-degree assault), a ten-year sentence was imposed, with all but 2 years suspended, to run consecutive to Count 4. Five years of supervised probation was also imposed. (ECF No. 6-1, Entry 132.) Mosby did not appeal this decision.

         On July 9, 2007, Mosby filed a post-conviction petition in the Montgomery County Circuit Court. (ECF No. 6-1, Entry 55.) He withdrew the petition on December 23, 2008. (Id., Entry 88.)

         Thereafter, Mosby's ongoing requests to the Circuit Court, although often styled as motions for reconsideration of sentence, were treated functionally as requests for drug treatment under § 8-505 of the Health General Article of the Maryland Code. (ECF No. 6 at p. 4; see also ECF No. 6-1, Entries 136, 169, 171, 175, 182.)

         On June 10, 2015, Mosby filed another petition for post-conviction relief. (Id., Entry 186.) The Circuit Court dismissed the petition on October 7, 2016, because it was filed more than ten years after the date of sentencing and no extraordinary circumstances justified the belated filing. (ECF No. 6-1, Entry 221; 6-2; see also Md. Code of Crim. Pro. 7-103(b).) Mosby's application for leave to appeal the dismissal of the untimely post-conviction petition was denied by the Court of Special Appeals of Maryland on April 18, 2017. (ECF No. 1-2.)

         B. Federal Proceedings

         In his petition, Mosby asserts that his plea was involuntary. He also asserts that counsel provided ineffective assistance by failing to act on his directive that counsel seek leave to appeal.

         In a limited answer to the petition, respondents assert that the merit of Mosby's claims cannot be examined because the petition is untimely pursuant to 28 U.S.C. § 2244(d) and Mosby has provided no basis for applying the doctrine of equitable tolling. (ECF No. 6 at 2-6.)

         In reply, Mosby argues that his limited knowledge of the law is sufficient to invoke the doctrine. (ECF No. 8 at 1-2.)

         II. ...


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