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Mitchell v. Foxwell

United States District Court, D. Maryland

May 31, 2018

ANTHONY L. MITCHELL ti, Prisoner Identification Nos. 328-14 and 2124205, Petitioner,
v.
WARDEN RICKY FOXWELL and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, United States District Judge

         Anthony L. Mitchell ti, a self-represented prisoner currently incarcerated at Eastern Correctional Institution in Westover, Maryland, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. S 2254. In the Petition, Mitchell challenges his 2005 conviction in the Circuit Court for Harford County, Maryland for attempted second-degree murder and related offenses. Having reviewed the Petition, Respondent's Answer, and Mitchell's Reply, the Court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; 28 U.S.C. - 2254(e)(2) (2012). For the reasons set forth below, the Petition will be DISMISSED as time-barred.

         BACKGROUND

         On March 25, 2005, a jury sitting in the Circuit Court for Harford County convicted Mitchell of attempted second-degree murder and related offenses. On May 23, 2005, Mitchell was sentenced to 55 years of imprisonment In an unreported opinion filed on January 18, 2008, the Court of Special Appeals of Maryland affirmed Mitchell's judgment of conviction. Mitchell's request for further review by the Court of Appeals of Maryland was granted, Mitchell v. State, 948 A.2d 70 (Md. 2008), but the Court of Appeals affirmed his conviction on April 16, 2009, Mitchell v. State, 969 A.2d 989, 1004 (Md. 2009). Although Mitchell states that he filed a petition for a writ of certiorari with the United States Supreme Court, his description of that filing makes clear that he was referring to his state petition for post-conviction relief. Because there is no record that Mitchell filed a petition for a writ of certiorari with the United States Supreme Court, his conviction became final for direct appeal purposes on July 15, 2009. See Sup. Ct. Rule 13.1 (requiring that a petition for a writ of certiorari be filed within 90 days from date of the judgment from which review is sought).

         On June 25, 2010, Mitchell filed a state petition for post-conviction relief in the Circuit Court for Harford County. In an Order docketed on January 19, 2016, the court granted Mitchell the right to file a belated motion for modification of sentence within 90 days but otherwise denied post-conviction relief. Mitchell filed an application for leave to appeal that decision on February 24, 206.. Because the application was not filed within 30 days after entry of judgment the Court of Special Appeals dismissed the application on April 4, 2016. Mitchell's motion for modification of sentence, filed March 7, 2016, was denied on June 29, 2016.

         Mitchell signed his federal petition for a writ of habeas corpus on April 1, 2017 and placed it in the prison mailing system on April 3, 2017. Accordingly, it is deemed filed as of April 3, 2017. See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (holding that a prisoner's filing shall be deemed to have been filed on the date it was deposited with prison authorities for mailing); United States v. Dorsey, 988 F.Supp. 917, 919-20 (D. Md. 1998).

         In the Petition, Mitchell asserts that the trial court erred by failing properly to hearken the jury on two counts of conviction. Mitchell also asserts that the State failed to disclose a photographic lineup in which witnesses were unable to identify Mitchell and specifically failed to disclose that a witness who positively identified Mitchell at trial had previously failed to make an identification. Finally, Mitchell asserts that the prosecutor delivered an improper rebuttal argument that shifted the burden of proof to the defense.

         In their limited Answer, Respondents assert that the Petition should be dismissed as untimely pursuant to 28 U.S.C. - 2244(d) and that Mitchell has provided no basis for applying the doctrine of equitable tolling. In his Reply, Mitchell argues that he filed all appeals, petitions for a writ of certiorari, and petitions for post-conviction relief in a timely manner and that the one-year limitations period set forth in 28 U.S.C. S 2244(d) is "extremely ambiguous and vague." Reply at 3, ECF No.8.

         DISCUSSION

         A federal petition for a writ of habeas corpus must be filed within one year of the date on which the prisoner's judgment of conviction became final by the conclusion of direct review or, if no appeal was taken, upon the expiration of the time for seeking such review. See 28 U.S.C. S 2244(d)(1); Wall v. Kholi, 562 U.S. 545, 549 (2011). Specifically, the limitations provision provides that:

A I-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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