United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
16, 2016, Petitioner Jerome Leslie Allen filed a habeas
corpus petition under 28 U.S.C. § 2254, attacking his
conviction entered in the Circuit Court for Baltimore County.
ECF 1 (“Petition”). Respondents filed an Answer
indicating that the Petition raised non-cognizable claims and
also was unexhausted. ECF 3. At that time, Petitioner's
direct appeal remained pending. ECF 3-1.
replied. ECF 4, 5, 6, and 7. He also filed supplemental
petitions clarifying and expanding his claims, and explaining
that his direct appeal had concluded. ECF 8; ECF 10; ECF 11; ECF
12. Respondents were directed to supplement their Answer. ECF
13. Respondents complied (ECF 15), with exhibits, and
indicated that the Petition must be dismissed for failure to
exhaust state court remedies. Petitioner has replied. ECF 16.
has also moved for summary judgment. ECF 18. He indicates
that Respondents did not answer the specific claims raised in
the Petition, and therefore he is entitled to summary
judgment. Id. For the reasons that follow,
Petitioner is mistaken. His motion (ECF 18) shall be denied.
addition, Petitioner has moved for reconsideration of the
Court's Order (ECF 13) denying his request for immediate
release. See ECF 14. Because Petitioner has not
demonstrated that he is entitled to immediate release, and
the motion (ECF 14) shall be denied.
hearing is necessary to resolve the Petition. For the reasons
that follow, I shall deny the Petition.
11, 2015, in the Circuit Court for Baltimore County,
Petitioner was found guilty of second degree assault and
sentenced to a ten-year term of confinement. ECF 15-1
(Docket) at 3. Petitioner noted a timely appeal to the
Maryland Court of Special Appeals, presenting one claim in
his appellate brief, ECF 15-2 at 5:
Did the trial court err by failing to exclude two articles of
evidence collected from Mr. Allen and the statement Mr. Allen
made to police after he was arrested on the basis that the
statement and evidence were fruit of the poisonous tree
derived from an illegal stop and arrest of Mr. Allen?
unreported decision, the Maryland Court of Special Appeals
affirmed the conviction on December 15, 2016. ECF 15-5. The
mandate issued on January 17, 2017. Id. at 10.
Petitioner did not seek further review in the Court of
Appeals of Maryland. ECF 15-1. His judgment became final for
direct appeal purposes on February 1, 2017. See Md.
Rule 8-302 (requiring certiorari petition to be filed no
later than 15 days after issuance of the mandate of the Court
of Special Appeals). Petitioner has not sought
post-conviction relief. See ECF 15-1 (Docket).
filed the original Petition and, as noted, has filed several
amendments. In his most recent supplement he clarifies and
states his claims as follow: (1) “Violations of Civil
and Political Rights”; (2) “Violations of
Economic, Social and Cultural Rights”; (3)
“Violations of American Declaration of Rights and
Duties of Man”; (4) “Violation of Supremacy
Clause (Article 6, Clause 2 of the United States
Constitution)”; (5) “Mr. Allen was arrested on
January 19, 2013 in violation of his Fourth (4th) Amendment
rights”; (6) “The State's evidence should
have been excluded from trial because it is fruit of the
poisonous tree and a violation of Mr. Allen's Fourth
(4th) Amendment rights”; (7) “Mr. Allen was
imprisoned in violation of his Due Process Rights protected
under the Fifth (5th) and Fourteenth (14th Amendment)”.
ECF 12 at 5-7.
this Court may consider the merits of claims raised under 28
U.S.C. §2254 which challenge the validity of a state
court conviction, those claims must be fully presented and
exhausted in the state courts. See 28 U.S.C.
§2254(b) and (c); see also Gray v. Netherland,
518 U.S. 152, 161-65 (1996); Preiser v. Rodriguez,
411 U.S. 475, 491 (1973). This exhaustion requirement is
satisfied by seeking review of the claim in the highest state
court with jurisdiction to consider it. For a person
convicted of a criminal offense in Maryland this may be
accomplished either on direct appeal or in post-conviction
exhaust a claim on direct appeal, it must be raised in an
appeal, if one is permitted, to the Maryland Court of Special
Appeals and then to the Maryland Court of Appeals by way of a
petition for writ of certiorari. See Md. Code,
§ 12-201 and § 12-301 of the Courts and Judicial
Proceedings Article (“C.J.”). If an appeal of
right is not permitted, as in cases where a guilty plea is
entered, exhaustion can be accomplished by filing an
application for leave to appeal to the Court of Special
Appeals. See C.J. § 12-302(e). If the Court of
Special Appeals denies the application, there is no further
review available and the claim is exhausted. See
C.J. § 12-202. However, if the application is granted
but relief on the merits of the claim is denied, the
petitioner must file a petition for writ of certiorari to the
Maryland Court of Appeals. See Williams v. State,
292 Md. 201, 210-11 (1981).
Petitioner must also avail himself of state post-conviction
proceedings for claims that are not appropriate for relief on
direct appeal. To exhaust a claim through post-conviction
proceedings, it must be raised in a petition filed in the
circuit court where Petitioner was convicted and, if
unsuccessful, must also be raised in an application for leave
to appeal to the Court of Special Appeals. See Md.
Code, § 7-101 et seq. of the Criminal Procedure
Article. If the Court of Special Appeals denies the
application, there is no further review available and the
claim is exhausted. See C.J. § 12-202. However,
if the application is ...