United States District Court, D. Maryland
JOHN E. WATERS, III, #457565 Petitioner
EASTERN CORRECTIONAL INSTITUTION ANNEX, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents
XINIS UNITED STATES DISTRICT JUDGE
October 13, 2017, John E. Waters, III filed the instant 28
U.S.C. § 2254 habeas corpus petition, attacking his
conviction entered in the Circuit Court for Baltimore City.
ECF No. 1. Respondents argue that the Petition must
be dismissed for failure to exhaust state remedies. ECF No.
4. Waters has not replied. For the reasons to follow, the
Petition will be denied for failure to exhaust and dismissed
6, 2017, Waters pleaded guilty in the Circuit Court for
Baltimore City to armed robbery, unlawful use of a firearm,
and impersonation of an officer. Waters was sentenced to a
five-year term of imprisonment. ECF 4-1. Waters did not file
an application for leave to appeal the entry of the plea and
sentence. Waters moved for reconsideration of his sentence on
August 4, 2017 which was denied on September 1, 2017; he then
again moved for reconsideration of his sentence on September
19, 2017 which was denied on September 27, 2017. Id.
Waters has not instituted state post-conviction proceedings.
Id.; see also Maryland Judiciary Case Search,
State v. Waters, Case Number 116253004, Circuit Court
for Baltimore City.
this Court may consider the merits of Waters' claims
raised under 28 U.S.C. § 2254, Waters must first exhaust
those claims in state court. See 28 U.S.C. Â§2254(b)
and (c); see also 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 proceedings.
exhaust a claim after a guilty plea, exhaustion may be
accomplished by applying for leave to appeal to the Court of
Special Appeals. See Md. Code Ann., Cts. & Jud.
Proc. § 12-302(e). If the Court of Special Appeals
denies the application, no further review is available and
the claim is exhausted. See Md. Code Ann., Cts.
& Jud. Proc. § 12-202(4). 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).
claims which are not appropriate for relief on direct appeal,
the petitioner must pursue state post-conviction proceedings.
Md. Code Ann., Crim. Proc. § 7-102 et seq. The
petition must be filed in the Circuit Court of the underlying
conviction. If the petition is unsuccessful, the petitioner
must then apply for leave to appeal to the Court of Special
Appeals. See Md. Code Ann., Crim. Proc. §
7-109. If the Court of Special Appeals denies the
application, no further review is available and the claim is
exhausted. See Md. Code Ann., Cts. & Jud. Proc.
§ 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 Court of
Appeals. See Williams, supra.
exhaustion of his claims, Waters must also comply with the
one-year limitations period for filing his petition in this
Court. Waters is forewarned that the one-year filing deadline
begins to run on the date that his conviction became final.
The one-year period is “tolled” during the time a
properly filed post-conviction petition is pending in state
court. This means that until a properly filed post-conviction
petition is filed, the one-year time limitation for filing a
federal habeas corpus petition continues to run. Once
post-conviction proceedings are completed through state court
appellate review, whatever time is left on the one-year time
limit is the period within which Waters must seek federal
habeas corpus review. Given these constraints, the instant
petition will be dismissed without prejudice to accord Waters
adequate time to comply with both the exhaustion and filing
district court dismisses a habeas petition 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. Daniel, 529 U.S. 473, 484 (2000)). Waters fails to
meet this standard and a Certificate of Appealability shall
not issue. A separate Order follows.
 Citation is to this Court's
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