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Moore v. Warden State of MD

United States District Court, D. Maryland

January 23, 2018

DEVIN ARIC MOORE, Petitioner
v.
WARDEN STATE OF MD and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents

          MEMORANDUM OPINION

          PAULA XINIS UNITED STATES DISTRICT JUDGE

         Before the Court is Devin Aric Moore's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF Nos. 1, 5. Respondents filed an Answer in which they argued that the Petition should be dismissed for failing to exhaust state avenues for relief. ECF No. 8. This Court ordered Petitioner to respond to the exhaustion argument, and Petitioner has done so. ECF 12. After reviewing all pleadings, the Court finds a hearing unnecessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; see also 28 U.S.C. § 2254(e)(2). For the reasons set forth herein, the Court shall DENY AND DISMISS the Petition without prejudice.

         PROCEDURAL HISTORY

         On July 6, 2017 in the Circuit Court for Baltimore City, Petitioner pled guilty to armed robbery, use of a firearm in connection with a violent felony, and impersonation of a police officer, and was sentenced to five years' imprisonment. ECF No. 6 at 1; ECF No. 8-1 at 1, 4. On July 7, 2017, Petitioner sent the presiding judge a letter requesting review of his case by a three-judge panel, modification of his sentence, and leave to appeal. ECF No. 8-2 at 3-4. The letter identified three purported errors with the criminal proceedings: (1) Petitioner's right to a speedy trial was violated because more than 180 days passed between his initial appearance and his guilty plea; (2) Petitioner's conviction for use of a handgun in the commission of a crime was not supported by sufficient evidence because the state failed to establish that a crime of violence was committed or that the firearm at issue was a handgun; and (3) the State “illegaly [sic] remov[ed] pictures from [Petitioner's] social media due to lack of sufficient authentication” and the court erred when it admitted these pictures into evidence. ECF No. 8-2 at 3-4.

         On August 3, 2017, before the state courts ruled on any of the three motions contained within Petitioner's letter, Petitioner filed the instant § 2254 Petition with this Court, raising the sole argument that his right to a speedy trial was violated. ECF No. 1. At the Court's instruction, ECF No. 4, Petitioner filed a supplemental Petition, raising six grounds for relief, ECF No. 5.

         On August 30, 2017, the Baltimore City Circuit Court denied Petitioner's Motion for Sentence Modification. ECF No. 12-1 at 3. On September 18, 2017, the three-judge panel rejected Petitioner's Application, concluding that “the sentence imposed was fair and just under all the circumstances.” ECF No. 12-1 at 4. Also on September 18, Petitioner filed his state petition for post-conviction relief with the Circuit Court. ECF No. 12-1 at 5-7. That petition appears to be still pending. ECF No. 12 (Petitioner's statement from November 20, 2017, that he has “not heard from circuit court” regarding the collateral petition). On October 2, 2017, the Maryland Court of Special Appeals denied Petitioner's Application for Leave to Appeal. ECF No. 12-1 at 1.

         CLAIMS PRESENTED

         As noted above, Petitioner filed his initial § 2254 petition on August 3, 2017. ECF No. 1. On September 15, 2017, Petitioner filed a supplement to his petition in which he raises the following grounds for relief:

A. Ground One: use of a firearm in commission of a crime Supporting Facts: State did not prove I utilized a weapon, ballistic evidence was consistent with a handgun that was not a handgun [sic[1]. State didn't prove gun was employed.
B. Ground Two: In[e]ffective assistance of counsel Supporting Facts: Failed to present evidence, counsel fell below representation objective standard of reasonableness, He erred in pre-trial, counsel['s] decision was forced upon me due to inattention and lack of preparation.
C. Ground Three: Armed Robbery Supporting Facts: State did not prove larceny intent, without larceny intent there is no armed robbery, nor do they have a weapon. Victim stated none was pointed.
D. Ground Four: Impersonation Supporting Facts: At no time didn't [sic] have fraudulent design on person or property stating I was a police officer.
E. Ground [Five]: Violating my Hicks[2] Supporting Facts: Court failed to have me in court within 180 days according to Md Ann Code art. 27, 591 and Md. R. 4-271, and no good cause was shown.
F. Ground [Six]: no evidence Supporting [F]acts: State did not have any evidence to convict me. My plea offer was not based on character, prior record, or circumstance of the crime. There was no ...

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