United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Petitioner Howard
Shmuckler's Petition for Writ of Habeas Corpus (ECF No.
1) and Motion for Default Judgment (ECF No. 16). The Petition
is ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will deny and dismiss the Petition,
deny the Motion for Default Judgment, and decline to issue a
certificate of appealability.
Court previously outlined the factual background of this case
in its January 6, 2017 Order. (See ECF No. 14 at 1-2). In the
January 6, 2017 Order, the Court observed that the instant
petition is untimely and granted Shmuckler an opportunity to
respond to the assertion that his petition is time-barred and
to provide grounds, if any, for equitable tolling of the
one-year filing period.
response again indicates his belief that the instant petition
is timely filed. He relies on a statement made by the United
States District Court for the Eastern District of North
Carolina in its December 16, 2015 Order re-opening this case
and transferring it to this Court. (ECF No. 15-1). That Order
indicates that Shmuckler had "demonstrated good cause
for his failure to prosecute" when he explained that he
had failed to respond to the court's directive to correct
a deficiency in the pleading because the prison where he was
incarcerated had been on a twenty-two day quarantine and
lockdown. (Id. at 1). The Eastern District of North
Carolina further indicated that since Shmuckler was
challenging his Maryland state conviction, "transfer,
rather than dismissal, is in the interest of justice, because
state prisoners generally must file a Section 2254 within one
year of their conviction." (Id. at 2).
Shmuckler concludes that the Eastern District of North
Carolina's Order transferring his Petition to this Court
for adjudication is a finding by that court that his Petition
one-year statute of limitations applies to habeas petitions
in non-capital cases for a person convicted in a state court.
See 28 U.S.C. § 2244(d). "[T]he one year
limitation period is also subject to equitable tolling,
" however, "in those rare instances where, due to
circumstances external to the party's own conduct, it
would be unconscionable to enforce the limitation against the
party and gross injustice would result." Hill v.
Braxton, 277 F.3d 701, 704 (4th Cir. 2002) (citing
Harris v. Hutchinson, 209 F.3d325, 330 (4th Cir.
2000)). To be entitled to equitable tolling, a petitioner
must establish that either some wrongful conduct by the
respondents contributed to his delay in filing his petition
or that circumstances that were beyond his control caused the
delay. See Harris, 209 F.3d at 330. A federal habeas
petition does not toll the one-year limitation period.
See Duncan v. Walker, 533 U.S. 167, 175 (2001) (a
federal habeas petition is not an application for State
post-conviction or other collateral review within the meaning
of §2244(d)(2) and therefore does not toll the
limitation period while it is pending).
reliance on the Eastern District of North Carolina's
December 16, 2015 Order transferring the case to this Court
is misplaced. The only issue the court addressed in that
Order was whether the case should be reopened and, in light
of Shmuckler's explanation regarding why he missed the
deadline to correct the deficiency in the pleading filed, the
court concluded there was good cause to reopen the case. In
addition, the Eastern District of North Carolina noted that
it was transferring the case under 28 U.S.C. §2241(d),
which states in relevant part: "The district court for
the district wherein such an application is filed in the
exercise of its discretion and in furtherance of justice may
transfer the application to the other district court for
hearing and determination." (Emphasis added.) In
short, the Eastern District of North Carolina's December
16, 2015 Order did not address whether the Petition stated a
claim or met all procedural requirements for a Section 2254
petition. The Order reserved those matters for this Court to
petition is deemed filed on January 21, 2015, the date he
signed it. (ECF No. 1 at 6), see United States v.
Dorsev, 988 F.Supp. 917, 919-20 (D.Md.
1988).Shmuckler did not file a direct appeal by
way of application for leave to appeal with the Maryland
Court of Special Appeals, nor did he file a petition for
post-conviction relief with the Circuit Court for Prince
George's County, Maryland, each of which would have
tolled the limitations period. Because Shmuckler filed the
Petition over three months after the limitations period
expired, it is untimely. In addition, Shmuckler has not
offered a basis for the Court to toll the limitations period.
Absent a basis for equitable tolling of the limitations
period, the Court must dismiss the Petition.
as here, a petition for writ of habeas corpus is dismissed
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. McDaniei 529 U.S. 473, 484 (2000)). The
Court concludes that Shmuckler has not provided a basis to
issue a certificate of appealability. Accordingly, the Court
will not issue one.
foregoing reasons, the Court will dismiss Shmuckler's
Petition for Writ of Habeas Corpus (ECF No. 1). A separate