United States District Court, D. Maryland, Southern Division
DAVID J. BOND, JR., Petitioner,
GWENDOLYN OLIVER and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents.
J. HAZEL United States District Judge
August 26, 2017. Petitioner David Bond. Jr. filed the
instant 28 U.S.C. § 2254 habeas corpus petition
attacking his 2011 conviction for second-degree assault
entered in the Circuit Court for Baltimore County. ECF No. 1.
Respondents filed an Answer that solely addresses the
timeliness of the petition. ECF No. 4. to which Petitioner
replied. ECF No. 8. No hearing is necessary. 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 to follow, the
petition will be denied and dismissed with prejudice.
September 2. 2011, Petitioner was convicted by a jury of
second-degree assault in the Circuit Court for Baltimore
County. ECF No. 4-1 at 4. 7. He was sentenced to 10 years
imprisonment. ECF 4-1 at 4. On October 5. 2011. Petitioner
filed a timely notice of appeal to the Maryland Court of
Special Appeals. ECF No. 4-2 at 6. On the same day.
Petitioner filed a motion to revise his sentence and an
application for review of his sentence by a three judge
panel, which were denied on October 31. 2011 and January 18.
2012, respectively. ECF No. 4-1 at 8.
Court of Special Appeals affirmed Petitioner's judgment
on February 1, 2013 and issued its mandate on March 4. 2013.
ECF No. 4-2 at 1. Because Petitioner did not file a Petition
for a Writ of Certiorari with the Maryland Court of Appeals,
his conviction became final on March 19. 2013. when his time
to do so expired. See 28 U.S.C. § 2244(d)(1)(A)
(stating that judgment is deemed final "by the
conclusion of direct review or the expiration of the time for
seeking such review"): Md. Rule 8-302 (providing that a
petition for writ of certiorari to the Maryland Court of
Appeals must be filed within 15 days of the issuance of the
August 30. 2013, Petitioner filed a Petition for
Post-Conviction Relief. ECF No. 4-1 at 9. The Petition was
denied on October 26. 2015. and Petitioner filed an
Application for Leave to Appeal. ECF No. 4-1 at 4. On January
21. 2016. while Petitioner's Application was pending, he
filed a Motion for Modification or Reduction of Sentence. ECF
No. 4-1 at 10. It appears that the Motion is still pending.
Id. The Court of Special Appeals denied
Petitioner's Application for Leave to Appeal on December
8, 2016. and its mandate issued on January 9. 2017.
filed the instant § 2254 Petition on August 26. 2017.
ECF No. 1. The Respondents have answered, asserting that the
Petition is untimely because, after the judgment became
final, more than one year had elapsed during which Petitioner
had not properly filed a petition for collateral review in
state court. ECF No. 4. On the Court"s instruction.
Petitioner filed a reply, asserting that the Petition is
timely because less than one year has elapsed between the
Court of Special Appeals mandate issued on January 9. 2017
and the filing of his Petition herein.
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 while
properly filed postconviction 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).
statute of limitations began to run in petitioner's case
on March 19. 2013. when the time for petitioning the Court of
Appeals for a writ of certiorari concluded. Petitioner did
not file a collateral proceeding until August 30. 2013 (164
days after the conviction became final), when he filed his
Petition for Post-Conviction Relief. While the Petition was
pending. Petitioner filed a Motion for Modification or
Reduction of Sentence, which appears unresolved. There is
presently debate about whether this type of Motion qualifies
as a state collateral proceeding capable of tolling the
limitations period under § 2244(d)(2). See Mitchell
v. Green. No. DKC-13-2063. 201 7 WL 4536001. at *3-8 (D.
Md. Oct. 11. 2017) (granting certificate of appealability as
"to the question of whether a motion under Md. Rule
4-345 tolls the [statute's] one year statute of
limitations for petitions under 28 U.S.C. §
2254'" after discussing relevant case law and
acknowledging that the issue is "open to significant
debate"), appeal filed No. 17-7450 (4th Cir.
Oct. 31, 2017). However, even assuming that this type of
Motion is capable of tolling the limitations period, it does
not toll the limitations period in this case because the
Motion was filed well outside the 90-day period permitted by
Md. Rule 4-345. meaning that the Motion is not a "
properly filed application for State post-conviction
or other collateral review." § 2244(d)(2) (emphasis
the limitations period was tolled only between August 30.
2013 and January 9. 2017. while Petitioner's state
post-conviction proceedings were pending in the trial and
appellate courts. The accrual of the one year limitations
period resumed on January 10. 2017. and it expired 201 days
later on July 30. 201 7. Therefore, the instant Petition,
which was filed on August 26. 2017. was untimely filed 27
days beyond the limitations period.
Holland v. Florida, 560 U.S. 631 (2010). the Supreme
Court concluded that equitable tolling applies to §
2244's limitations period. Id. at 649. 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. The question of whether
equitable tolling applies hinges on the facts and
circumstances of each particular case. See Harris.
209 F.3d at 329-30.
does not argue, nor does the record otherwise indicate, that
he has made the showing necessary to receive equitable
tolling. Rather, he appears to believe that his judgment did
not become final for purposes of 28 U.S.C. §
2244(d)(1)(A) until after the state rejected his
post-conviction proceedings. Under Petitioner's approach,
the 164 days of inaction in 2013 would not count toward the
limitations period. However, Petitioner misreads the statute,
which states that a judgment is final upon "the
conclusion of direct review or the expiration of the
time for seeking such review." § 2244(d)(1)(A)
(emphasis added). Although Petitioner is correct that one is
required to exhaust state remedies before seeking federal
habeas relief § 2254 (b)(1)(A), the limitations period
accrues once the judgment becomes final and may be tolled
only while Petitioner has a property filed post-conviction
proceeding pending with the state court. §§
2244(d)(1)(A), (2). To the extent that Petitioner would argue
that his lack of understanding of the law surrounding the
filing of a § 2254 petition should entitle him to
equitable tolling, it is well settled that, "even in the
case of an unrepresented prisoner, ignorance of the law is
not a basis for equitable tolling." United Stales v.
Sosa, 364 F.3d 507. 512 (4th Cir. 2004).
district court dismisses a habeas petition solely on
procedural grounds, a certificate of appealability
("COA") will not issue unless the petitioner can
demonstrate both "(I) '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.McDaniel,529 U.S. 473. 484 (2000)). A litigant seeking a COA must
demonstrate that a procedural ruling barring relief is itself
debatable among jurists of reason: otherwise, the appeal
would not "deserve encouragement to proceed
further." Buck v. Davis.137 S.Ct. 759, 777
(2017). Denial of a COA does not preclude a petitioner from
seeking permission to file a successive petition or from
pursuing his claims upon receiving such permission. Because
Bond has not made a substantial ...