United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
Aaron Devon Footes was granted authorization pursuant to 28
U.S.C. § 2244 by the United States Court of Appeals for
the Fourth Circuit to file a second or successive 28 U.S.C.
§ 2254 petition attacking his 1997 state court judgment
of conviction. ECF No. 1-1. The court found that
“Footes ha[d] made a prima facie showing that the new
rule of constitutional law announced in Miller v.
Alabama, 132 S.Ct. 2455 (2015), and made retroactive by
Montgomery v. Louisiana, [135 S.Ct. 718 (2016)], may
apply to his case.” Id.
of a court directed supplemental petition, Footes alleges
that he was 17 years old at the time the underlying crime for
which he was convicted was committed and that his life
sentence violates the Eighth Amendment prohibition against
cruel and unusual punishment. ECF No. 3, pp. 5-6. He also
alleges that the state and trial and appellate counsel
allowed perjured testimony during his trial; the prosecutor
failed to disclose exculpatory evidence; he was not advised
of his right to prompt presentment; and trial counsel failed
to request the jury be instructed on the lesser included
offenses to first-degree murder. Id., p. 6.
filed an Answer to the Petition asserting that Footes has not
met the standard for filing a second or successive petition
or alternatively that the matter should be stayed so that
Footes may exhaust his claim regarding his life sentence in
state court. ECF No. 12.
was convicted by the Circuit Court for Prince George's
County, Maryland on September 10, 1997, of murder, robbery
with a deadly weapon, robbery, and use of a handgun in the
commission of a crime of violence. ECF No. 12-1; ECF No.
12-2. On September 29, 1997, he was sentenced to a life term
of imprisonment for the murder conviction, plus a consecutive
20 year term of confinement for the handgun offense. The
remaining offenses merged. Id. Footes'
convictions were affirmed on June 10, 1998, by the Maryland
Court of Special Appeals. His petition of writ of certiorari
was denied by the Court of Appeals of Maryland on September
15, 1998. Id.
initiated state post-conviction proceedings on June 15, 2006.
ECF No. 12-1; ECF No. 12-2. The petition was withdrawn
without prejudice on May 4, 2007. Id. Footes'
second petition for post-conviction relief, filed September
24, 2007, was granted on December 19, 2008, in regard to
Footes' right to file a belated motion for modification,
but was otherwise denied. Id. His application for
leave to appeal was denied by the Court of Special Appeals on
June 29, 2011. Id. Thereafter Footes unsuccessfully
moved to reopen his state post-conviction proceedings on
grounds of ineffective assistance of counsel but was
unsuccessful. Id. Ex 1 & 3. A review of the
online docket in Footes' state case demonstrates that a
counselled motion to correct illegal sentence is currently
pending. A hearing on the motion was scheduled for March 20,
2018, but was postponed for unspecified reasons. State v.
Footes, Circuit Court for Prince George's County,
Maryland Case Number CT970455A.
filed a Petition for Writ of Habeas Corpus in this court in
2011, which was dismissed as time barred. See Footes v.
Shearin, et al., Civil Action No. WDQ-11-1122 (D. Md.).
In 2015, his petition for writ of habeas corpus was dismissed
as a successive petition. See Footes v. Bishop,
Civil Action No. DKC-15-2525 (D. Md.).
February 22, 2016, as noted, the Fourth Circuit Court of
Appeals found that Footes made a prima facie showing that the
new rule of constitutional law announced in Miller,
132 S.Ct. at 2469 (holding “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders”)
and made retroactive by Montgomery may apply to his
case. Respondents argue that the authorization issued by the
Fourth Circuit only applied to Footes' Eighth Amendment
claim regarding his life sentence and as such the other
claims raised in his supplemental petition are subject to
dismissal. The court agrees. The Fourth Circuit only granted
authorization to file a second/successive petition based upon
the Eighth Amendment claim and Foote's additional
allegations will not be considered.
next argue that Footes has not satisfied the requirements of
28 U.S.C. § 2244 regarding second or successive
petitions. ECF No. 12. As noted, however, the Fourth Circuit
has already made the determination that Footes made the
requisite showing and authorized this petition. See
28 U.S.C. § 2244(b)(3)(C) (“The court of
appeals may authorize the filing of a second or
successive application only if it determines that the
application makes a prima facie showing that the application
satisfies the requirements of this
Respondents correctly observe that Footes has not yet brought
his claim before any state court and requests that the matter
be stayed and held in abeyance while Footes exhausts his
state court remedies. Before this court may consider the
merits of Footes' claim he must first exhaust the claim
in state court. See 28 U.S.C. § 2254(b) and
(c); see also Preiser v. Rodriguez, 411 U.S. 475,
491 (1973). Although Footes has exhausted his direct appeal
process and has previously filed for post-conviction relief,
he may present his Eighth Amendment claim in state court in a
motion to reopen post-conviction proceedings. See
Md. Code Ann., Crim. Proc. §7-104 (providing post-
conviction proceedings may be reopened in the interest of
justice). Footes may also present his Eight Amendment claim
by way of a motion to correct illegal sentence. Md. Rule
4-345(a) (providing court may correct an illegal sentence at
any time). Footes currently has such a motion pending in
state court, although it not discernible from the docket the
claims raised in that motion.
Rhines v. Weber, 544 U.S. 269, 277 (2005), a
Petitioner who is able to demonstrate good cause for failing
to exhaust a claim may return to state court to present the
unexhausted claim while the federal habeas petition remains
stayed. A stay is available only in limited circumstances,
and is appropriate only for good cause, where the unexhausted
claims are potentially meritorious and no dilatory tactics
are shown. Id. Even if a Petitioner had good cause
for that failure, the district court would abuse its
discretion if it were to grant a stay if the unexhausted
claims are plainly meritless. Rhines, 544 U.S. at
277. Based on the factual information presented, the
undersigned finds that Footes has satisfied the good-cause
prong of Rhines. The filing of this writ to raise
Footes' claim under Miller was appropriate, and
the failure to exhaust the claim, which is not plainly
meritless, was not made as a part of a dilatory litigation
tactic. Rhines, 544 U.S. at 275-78. As such, a stay
and abeyance will be granted in this case to permit Footes to
present his unexhausted claim in a motion to re-open
post-conviction proceedings pursuant to Md. Code Ann., Crim.
Proc. Art., §7-104 (post-conviction proceedings may be
reopened in the interests of justice) and to complete review
of his motion to correct an illegal sentence. Footes is
cautioned that his claim must be presented in the motion to
re-open post-conviction proceedings and any denial of the
claim must be appealed to the highest state court with
authority to consider the claim in order for the claim to be
property exhausted for purposes of federal habeas review.
separate Order follows.