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Gregg v. Bishop

United States District Court, D. Maryland

October 10, 2017

DONTE GREGG, Petitioner
v.
FRANK BISHOP, et al., Respondents

          MEMORANDUM OPINION

          Paul W. Grimm United States District Judge.

         Donte Gregg, an inmate confined at the North Branch Correctional Institution in Cumberland, Maryland, seeks to attack his 2003 convictions for first degree murder and related offenses. Pet., ECF NO.1. In a limited answer, respondents argue that the petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA".. Ltd. Ans., ECF NO.3. Gregg acknowledges that the petition is untimely but asks the Court to apply equitable tolling because he has no state court remedies available. Pet.; Reply, ECF NO.5. After reviewing these papers, I find 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. S 2254(e)(2). Because the petition is untimely and equitable tolling is not appropriate, the Petition is DENIED and DISMISSED.

         Procedural History

         On April 4, 2003, after a jury trial in. the Circuit Court for Baltimore City, Gregg was convicted of first degree murder, conspiracy to commit murder, use of a handgun during the commission of a crime of violence, and wearing and carrying a handgun.[1] Pet. 1-2; State Ct. Docket Entries 1-2, 4, ECF No. 3-1; Reply 1. He was acquitted of attempted robbery. State Ct. Docket Entries 1, 4; Reply 1. Gregg was sentenced on May 14, 2003, to two concurrent life sentences plus a concurrent term of twenty years imprisonment. Pet. 1; State Ct. Docket Entries 5. He appealed his convictions to the Court of Special Appeals of Maryland, which on October 25, 2004, affirmed the judgments. Pet. 2-3; Gregg v. Maryland, No. 564, Sept. Term 2003, at 1, 10 (Md. Ct. Spec. App. Oct. 25, 2004) (unreported), ECF No. 3-2. The court's Mandate was issued on November 24, 2004. Mandate, ECF No. 32.[2] Gregg filed a petition for writ of certiorari to the Court of Appeals of Maryland, which was denied on January 13, 2005. Pet. 3; Writ of Cert. Denial 3, ECF No. 3-3. He did not seek further review. Pet. 3. Therefore, Gregg's convictions became final on April 13, 2005. See Harris v. Hutchinson, 209 F.3d 325, 328 & n.l (4th Cir. 2000) (noting that time for appealing state court conviction concludes when time for filing petition for writ of certiorari in the Supreme Court, 90 days, expires); Sup. Ct. R.131..

         While his direct appeal was pending, Gregg filed a motion for DNA testing in the circuit court pursuant to Md. Code Ann., Crim. Proc. § 8-201(c.. Pet. 7; State Ct. Docket Entries 6. The motion was subsequently withdrawn without prejudice. State Ct. Docket Entries 7. Gregg filed a second motion for DNA testing on November 9, 2005, pursuant to the same statute, as well as a motion for new trial. Pet. 7-8; State Ct. Docket Entries 8. Both motions were denied, without hearing, on April 17, 2006. Pet. 8; State Ct. Docket Entries 8. Gregg did not receive timely notice of the denial of the motions, and on May 2, 2006, he filed both a motion for reconsideration and a notice of appeal. Pet. 8; State Ct. Docket Entries 8. The circuit court denied the motion for reconsideration, and the Court of Special Appeals dismissed the appeal as untimely. Pet. 8; State Ct. Docket Entries 9.

         On February 6, 2007, Gregg filed an application for post-conviction relief in the circuit Court, seeking the right to file a belated appeal of the denial of the motion for DNA testing, which the circuit court granted on March 20, 2008. Pet. 8; State Ct. Docket Entries 9, 11; First Post-Conviction Petition, ECF No. 3-4. The Court of Appeals on My 24, 2009, remanded the case to the circuit court with directions to enter an order for DNA testing, which ultimately proved inconclusive. Pet. 8; State Ct. Docket Entries 12; Gregg v. State, 409 Md. 698 (2009), ECF No. 3-5.

         Gregg filed a second petition for post-conviction relief on May 13, 2013, and, alternatively, a motion to reopen his initial post-conviction application. Pet. 8; Second Post-Conviction Petition, ECF No. 3-6. The Circuit Court for Baltimore City denied Gregg's second petition on October 25, 2013, finding it procedurally barred. Gregg v. Maryland, No. 2027, Sept. Term 2013, at 2 (Md. Ct. Spec. App. May 6, 2015) (unreported), ECF No. 3-7; Reply 4. Gregg then filed an application for leave to appeal the denial, which the Court of Special Appeals granted. Gregg v. Maryland, No. 2027, Sept. Term 2013, at 2-3 (Md. Ct. Spec. App. May 6, 2015) (unreported.. The intermediate appellate court, however, affirmed the circuit court's denial of Gregg's second post-conviction petition in an unreported opinion issued on May 6, 2015, and the Court of Appeals on August 24, 2015, denied Gregg's petition for a writ of certiorari. Id. at 1, 3, 13114; Second Writ of Cert. Denial, ECF No. 3-8.

         Gregg filed this petition on October 12, 2015, [3] alleging ineffective assistance of trial, appellate, and post-conviction counsel. Pet. 4-7.[4] On November 13, 2015, pursuant to the Court's Order, respondents filed a limited answer, arguing that the petition is time-barred and should be dismissed on that basis. Ltd. Ans. 1. The Court issued an Order on November 19, 2015, granting Gregg twenty-eight days from that date to file a response addressing the timeliness issue. Order 2, ECF NO.4. However, Gregg's response was not received until April 22, 201.. See Reply 1. He states that he mailed his response on December 14, 2015, and has included tracking information confirming that certified mail was sent on December 14th. Id. at 1; USPS Tracking 2, ECF NO.5-1. Gregg asks the Court to grant him another opportunity, in the form of a response filed on April 8, 2016, to explain why the Petition should not be dismissed as time-barred. Reply 1, 29. Under the circumstance,, the Court grants that request.

         Timeliness

         The threshold issue in this case is the timeliness of the petition. Only if the Petition is timely may the Court reach the merits of Gregg's claims of ineffective assistance of counsel.

         A one-year statute of limitations applies to habeas petitions in non-capital cases for persons convicted in state court. See 28 U.S.C. S 2244(d)(1); Wall v. Khali, 562 U.S. 545, 550 (2011). Section 2244(d)(1) provides that:

         A I-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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