United States District Court, D. Maryland
W. GRIMM, UNITED STATES DISTRICT JUDGE
September 19, 2016, Joseph Robinson, filed the pending 28
U.S.C. § 2254 habeas corpus petition attacking his 1999
convictions for carjacking, armed robbery, and related
offenses entered in the Circuit Court for Baltimore
City. ECF No. 1. Respondents filed an Answer which
solely addresses the timeliness of the petition. ECF No. 5.
Robinson was advised of his opportunity to file a reply. ECF
No. 8. This he has done. ECF Nos. 6, 7 & 9. The Court
finds no need for an evidentiary hearing. See Rule
8(a), Rules Governing Section 2254 Cases in the United
States District Courts and 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)). Because the petition is
untimely, it will be denied and dismissed with prejudice.
November of 1999, Robinson was convicted by a jury sitting in
the Circuit Court for Baltimore City of armed carjacking,
armed robbery, and related offenses. State Ct. Docket Entries
3-4,  ECF No. 5-1; Robinson v.
Maryland, No. 2945, Sept. Term 1999 (Md. Ct. Spec. App.
Oct. 18, 2000), ECF No. 5-2. On December 20, 1999, he was
sentenced to an aggregate 60-year term of incarceration.
Robinson, slip. op. at 1. The Court of Special
Appeals affirmed Robinson's convictions on October 18,
2000. Id. at 17. The Court of Appeals of Maryland
denied his Petition for Writ of Certiorari on February 8,
2001. Order in Robinson v. Maryland, No. 565, Sept.
Term 2000 (Md. Ct. Spec. App. Feb. 8, 2001), ECF No. 5-2. He
did not seek further review in the United States Supreme
Court, and his judgment of conviction became final for direct
appeal purposes on May 9, 2001. See Sup. Ct. Rule
13.1 (petition for writ of certiorari to be filed within 90
days of judgment from which appeal is taken).
April 5, 2004, Robinson filed an untimely motion for
modification of sentence. State Ct. Docket Entries 12;
see Md. Rule 4-345(e) (motion for modification to be
filed within 90 days of sentencing). The motion was denied on
April 13, 2004. State Ct. Docket Entries 12-13.
October 16, 2007, Robinson submitted a collateral attack on
his conviction by filing a petition for post-conviction
relief. Id. at 13. On June 13, 2008, the
post-conviction court granted Robinson the opportunity to
file a belated motion for modification of sentence (which was
subsequently denied on September 5, 2008), and denied the
post-conviction petition in all other respects. Id.
at 14-15. The Court of Special Appeals of Maryland denied
Robinson's application for leave to appeal the denial of
post-conviction relief on March 9, 2010, and the court's
mandate issued on April 8, 2010. Op. & Mandate, ECF No.
28 U.S.C. § 2244(d) provides a one-year statute of
limitations in non-capital cases for those convicted in a
state case. This one-year period is tolled, however,
while properly filed post-conviction proceedings are pending
and 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.
771, 771-72 (D. Md. 1998).
statute of limitations began to run in Robinson's case on
May 9, 2001, when the time for seeking further review in the
United States Supreme Court concluded. Robinson had no
properly filed collateral proceedings pending until October
16, 2007, when he instituted post-conviction proceedings.
Robinson's state collateral proceedings concluded on
April 8, 2010 when the Court of Special Appeals' mandate
issued. Robinson then waited over six years before filing
this case. In short, the statute of limitations for his
federal habeas petition expired before Robinson initiated
state post-conviction proceedings and the pending petition is
time barred under 28 U.S.C.§ 2244(d).
Holland v. Florida, the Supreme Court concluded that
equitable tolling applies to the statute of limitations of
the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). 560 U.S. 631, 633 (2010). The Court
found that, in order to be entitled to equitable tolling, the
movant must show (1) that he has diligently pursued his
rights and (2) that some extraordinary circumstance prevented
the timely filing. Id. at 649. The question of
whether equitable tolling applies hinges on the facts and
circumstances of each particular case. See Harris v.
Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000).
insists that, in light of McQuiggin v. Perkins, 133
S.Ct. 1924 (2013), the Court should accept his untimely
petition and consider the merits of his claims, because he
received ineffective assistance of counsel, resulting in
Constitutional error. See Pet. 8; Second Supp.
Reply, ECF No. 9; see also Reply 2, ECF. No. 6;
Supp. Reply 2, ECF No. 7. He does not explain how any
ineffectiveness of counsel prevented the timely filing of his
petition. He correctly notes that when a new factual
predicate for a habeas claim is discovered, the limitations
period begins anew, Reply 2, but he does not describe any
McQuiggin, 133 S.Ct. 1924, the Supreme Court
instructed that a federal habeas court faced with an actual
innocence claim should not count unjustifiable delay as an
absolute barrier to relief, but it should be weighed as a
factor in determining whether actual innocence has been
reliably established. Id. at 1935-36. In addition,
the Court “caution[ed] . . . that tenable
actual-innocence gateway pleas are rare: ‘[A]
petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.'”
Id. at 1928 (quoting Schlup v. Delo, 513
U.S. 298, 329 (1995)). The McQuiggin decision did
not create a new right to habeas review, nor did it change
existing law. Here, Robinson has not alleged, much less
demonstrated, actual innocence, nor has he identified any new
evidence which would call into question his conviction.
conclusory claim that he received unspecified ineffective
assistance of counsel is insufficient to support equitable
tolling of the limitations period. “‘[A] garden
variety claim of excusable neglect, ' Irwin
[v. Dep't of Veterans Affairs, 498 U.S. 89, 96
(1990)], such as a simple ‘miscalculation' that
leads a lawyer to miss a filing deadline, Lawrence
[v. Florida, 549 U.S. 327, 336 (2007)], does not
warrant equitable tolling.” Holland v.
Florida, 560 U.S. 631, 651-52 (2010). While Robinson
alleges various attorney errors prior to his conviction, he
has not identified any attorney error leading him to miss the
deadline, and consequently he has not shown that any
post-trial error by an attorney was more than
“excusable neglect.” Indeed, the fact that he
does not allege any post-trial error suggests that there was
no error significant enough to create an “extraordinary
circumstance.” See id.
a litigant's pro se status and any attendant
lack of knowledge of the law is not the type of extraordinary
circumstance that would justify equitable tolling. See
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)
(“[E]ven in the case of an unrepresented prisoner,
ignorance of the law is not a basis for equitable
tolling.”). Robinson is not entitled to ...