United States District Court, D. Maryland
J. HAZEL UNITED STATES DISTRICT JUDGE.
Limited Answer to the above-entitled Petition for Writ of
Habeas Corpus seeks dismissal of the petition as an
unauthorized successive petition. ECF No. 4. In response
Petitioner asserts that this Court's prior decision did
not address the merits of his claims and that this petition
is therefore not unauthorized. ECF No. 5. Upon review of the
pleadings filed, the Court finds no need for an evidentiary
hearing. See Rule 8(a), Rules Governing Section
2254 Cases in the United States District Courts and
Local Rule 105.6 (D. Md. 2016); see also Fisher v.
Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not
entitled to a hearing under 28 U.S.C. §2254(e)(2)). For
the reasons stated herein, the Petition shall be dismissed
and a certificate of appealability shall not issue.
Christopher McCann sought federal habeas relief from this
Court by his March 1, 2010 Petition for Writ of Habeas Corpus
which was dismissed on December 14, 2010. See McCann v.
Shearin, et al, Civil Action RWT-10-486 (D. Md.
2010) at ECF No. 7 & 8 (Memorandum
Opinion and Order). In his 2010 petition McCann challenged
the same state criminal convictions for attempted
first-degree murder and violation of a protective order at
issue in the instant case. In the 2010 Memorandum Opinion
this Court summarized the relevant state court proceedings as
On May 1, 2006, Alison Kirby, the mother of Petitioner's
three children, was attacked in the parking lot of a
Baltimore County Wal-Mart, suffering multiple stab wounds and
lacerations to her head, face, neck, shoulder and arm, as
well as a fractured skull. ECF No. 5. Petitioner was
identified as the assailant and arrested the night of the
assault. He was tried and convicted by a jury of attempted
first-degree murder and violation of a protective order.
Id. at Ex. 3, pp. 162 - 64. On December 8, 2006,
Petitioner was sentenced to serve life in prison for
first-degree attempted murder and 90 days concurrent for
violating the protective order. Id. at Ex. 4, pp. 30
Petitioner appealed his conviction to the Maryland Court of
Special Appeals, raising the following four issues.
1. Did the trial court err in overruling McCann's
objection to the victim's testimony as to what she
thought McCann was thinking?
2. Did the trial court err in denying McCann's motion for
judgment of acquittal on the grounds of insufficient evidence
McCann acted with deliberation and premeditation?
3. Was McCann denied his due process right to a fair trial by
the prosecutor's misstatements of the evidence and the
law, and improper arguments and other comments?
4. Is McCann's sentence cruel and unusual punishment, and
otherwise unlawful because of the trial court's failure
to consider the guidelines and to note her reasons for
departure from the guidelines?
ECF No. 5 at Ex. 5, p. 2. On March 17, 2009, the Court of
Special Appeals affirmed Petitioner's convictions and
sentences in an unreported opinion. Id. at Ex. 8.
Petitioner did not file a petition for writ of certiorari in
the Maryland Court of Appeals, nor has he filed a petition
for post-conviction relief. Accordingly, Respondents assert
Petitioner's claims are procedurally defaulted.
Id. at pp. 13 and 14.
McCann I at ECF No. 7 at pp. 1-2. This Court then
found that McCann's failure to seek certiorari review
from the Court of Appeals "was not due to an objective
factor outside of his control" and therefore the issues
he raised on appeal were procedurally defaulted. Id.
at p. 5. The Court further found that its inability to reach
the merits of the claims would not result in a manifest
injustice as the evidence of McCann's guilt was
claims that the instant petition is not successive as
asserted by Respondents. ECF No. 5. Rather, he claims that
because he asked this Court to hold the prior petition
sub curia while he "finished leave to appeal
post-conviction" the Court had no authorization or
jurisdiction to rule on the petition. Id. at p. 1.
This Court observed in the 2010 decision that any
post-conviction petition filed by McCann would not serve to
toll the one-year filing deadline because the time period had
already expired, but McCann argues that the one-year filing
deadline for his federal habeas petition "never even
started" under the ruling of Wall v. Kholi, 131
S.Ct. 1278 (2011). Id. at p. 2. McCann does not
explain why the one-year filing deadline remains tolled;
however, review of the electronic state docket reveals that
McCann filed a "Motion to Revise Sentence" on
December 28, 2006, which appears to remain pending in the
state court. See State of Maryland v. McCann, No.
03K06002333 (Bait. Co. Cir. Ct. 2006);
http://casesearch.courts.state.md.us/inquiry. McCann did not
appeal this Court's 2010 dismissal of his petition.
28 U.S.C. §2244, McCann may only file a second or
successive habeas corpus petition if he has first moved the
appropriate circuit court for an order authorizing the
district court to consider his application. See 28
U.S.C. § 2244(b)(3); Felker v. Turpin, 83 F.3d
1303, 1305-07 (11th Cir.1996). Where the claim presented in a
second or successive habeas application was presented in a
prior application, the claim is to be dismissed. See
U.S.C. § 2244(b)(1). Where the claim presented in a
second or successive habeas application was not presented in
a prior application, dismissal is required unless the
applicant makes certain showings. See 28 U.S.C.
§ 2244(b)(2). The pending petition is successive and
challenges the same 2006 conviction that was the subject of
the prior petition. Dismissal of the prior petition upon a
finding of procedural default is a determination of-the
merits of the prior petition for purposes of this review.
See Harvey v. Horan, 278 F.3d 370, 380 (4th Cir.
2002) (dismissal of a habeas petition for procedural default
is a dismissal on the merits for purposes of determining if a
habeas petition is successive), abrogated on other
grounds by Skinner v. Switzer, 562 U.S. 521 (2011).
McCann's argument that his petition is not time-barred
because he has a motion pending with the state court does not
change the analysis; his prior petition was dismissed on
procedural default grounds not because it was time barred.
Court may not consider the pending petition unless and until
the United States Court of Appeals for the Fourth Circuit
enters an order authorizing the Court to do so. See
28 U.S.C. § 2244(b)(3)(A); see also In re Vial,
1.15 F.3d 1192, 1197-98 (4th Cir. 1997). Because it does not
appear that McCann has complied with this
"gatekeeper" provision, the pending ...