United States District Court, D. Maryland
LARRY A. OLADIPUPO, Petitioner
WARDEN, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents
W. GRIMM UNITED STATES DISTRICT JUDGE
Oladipupo is an inmate at Maryland Correctional
Institution-Jessup. On April 6, 2018, Oladipupo filed in this
Court a petition for a writ of habeas corpus challenging his
2015 conviction in Maryland state court on charges of
first-degree assault, second-degree assault, kidnapping, and
related firearm offenses. At Oladipuposs urging, this Court
dismissed the petition without prejudice on June 21, 2018.
Order, ECF NO.6. Since then, the Court has received
correspondence from Oladipupo indicating that he has
"changed [his] mind" about his wish to dismiss the
petition and would like the Court to review his claim that
there was insufficient evidence to support his 2015
conviction. Correspondence, ECF NO.7. I construe the
correspondence as a motion for reconsideration under Federal
Rule of Civil Procedure 60(b). For the reasons that follow, I
am granting the motion for reconsideration, rescinding the
order of dismissal (ECF No. 6), and granting Oladipupo
twenty-eight (28) days to show cause why his
insufficient-evidence claim should not be dismissed on
grounds of procedural default.
is serving a 25-year prison sentence in connection with his
conviction by jury trial in the Circuit Court for Montgomery
County. Following his conviction, Oladipupo brought an appeal
in the Court of Special Appeals of Maryland. The appeal
presented two arguments: (1) the trial court erred in
admitting into evidence testimony that he had a prior history
of incarceration; and (2) the evidence was insufficient to
sustain his convictions. See Oladipupo v. State, No.
1959, 2016 WL 6664896, at *1. (Md. Ct. Spec. App. Nov. 7,
2016). As to the sufficiency of the evidence, Oladipupo urged
the appellate court to note that the victim had recanted her
story and had testified at trial both that she had lied to
police and that she was drunk and high on marijuana at the
time she placed the 911 call. Id. at *3, 8.
Oladipupo also maintained that the gun found in his
parents' house was not found in his room, Oladipupo was
not near the gun when it was found, and there was no DNA or
fingerprint evidence linking him to the weapon. Id.
at *8. The Court of Special Appeals rejected Oladipuposs
arguments and affirmed his convictions. Id. at* 10.
next filed a request for further review in the Court of
Appeals of Maryland. He included with his request a one-page
list of thirteen bullet points as his "grounds" for
appeal. November 2016 Appeal 4, ECF No. 3-4. The
Court of Appeals treated Oladipuposs request for review as a
petition for a writ of certiorari and denied it on January
23, 2017. Oladipupo v. State, 152 A.3d 762 (Md.
2017). Judgment became final for the purpose of direct appeal
90 days later. See Sup. Ct. R. 13.1 (providing that
a petition for a writ of certiorari must be filed within 90
days of the judgment from which review is sought).
April 28, 2017, Oladipupo filed a petition for
post-conviction relief in the Circuit Court for Montgomery
County. Docket Sheet 20, Respt't's Limited Answer Ex.
1, ECF NO. 3-1. He later withdrew the petition. Id.
at 22. On April 13, 2018, he filed another petition for
postconviction relief, and a hearing was scheduled for August
8, 2018. Id. at 22-23. The Maryland Judiciary case
search website shows that on July 24, 2018, Oladipupo moved
to withdraw that petition. The Circuit Court granted the
motion to withdraw the same day. Maryland Judiciary Case
(search by case number "126868C").
April 6, 2018, petition to this Court effectively raised two
claims: 1) the evidence at trial was insufficient to sustain
his convictions and 2) ineffective assistance of trial
counsel. Pet. 5, ECF No. 1. In its Limited Answer, submitted
on May 30, 2018, the Government argued in part that Oladipupo
had not exhausted available state remedies on the
ineffective-assistance claim because he has not raised that
claim in state court. Respt't's Limited Answer 7, ECF
NO.3. Oladipupo, though, has since informed this Court via
correspondence that he is "waiving consideration"
of the ineffective-assistance claim in his habeas petition.
Correspondence, ECF NO.7. Accordingly, his claim of
ineffective assistance of counsel is hereby dismissed without
proceed to Oladipuposs claim that the evidence at trial was
insufficient to sustain his convictions. In support of this
argument, Oladipupo urges the Court to note that the victim
in the state court case recanted her statement, which had
been entered into evidence at trial.
filing a federal habeas corpus application under 28 U.S.C. Â§
2254, a petitioner must show that all of his claims have been
presented to the state courts. 28 U.S.C. 92254(b), (c);
see also Preiser v. Rodriguez, 411 U.S. 475, 491
(1973). The exhaustion requirement is satisfied by seeking
review of the claim in the highest state court with
jurisdiction to consider it. 28 U.S.C. Â§ 2254(c); Alexis
v. Miller, No. 15-87, 2018 WL 2762558, at *5 (D. Md.
June 7, 2018). 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 on direct appeal in a non-capital case, it
must be raised in an appeal, if one is permitted, to the
Maryland Court of Special Appeals and then to the Maryland
Court of Appeals by way of a petition for writ of certiorari.
See Md. Code Ann., Cts. & Jud. Proc.
§§ 12-201, -301.
exhaust a claim through post-conviction proceeding, it must
be raised in a petition filed in the Circuit Court and in an
application for leave to appeal to the Court of Special
Appeals. Md. Code Ann., Crim. Proc. S7-109. If the Court of
Special Appeals denies the application, there is no further
review available and the claim is exhausted. Md. Code Ann.,
Cts. & Jud. Proc. S12-202. 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. Williams v. State, 438 A.2d 1301,
1305 (Md. 1981). If a petitioner fails in any of these
regards and there remains a reasonable possibility that there
is any available procedure, either by way of direct appeal or
a post-conviction proceeding, to secure review by the state
courts, the claim is not exhausted. 28 U.S.C. Â§ 2254(c);
Gray v. Netherlands, 518 U.S. 152, 161-66 (1996).
doctrine of procedural default is related to exhaustion.
Where a petitioner has failed to present a claim to the
highest state court with jurisdiction to hear it, whether in
post-conviction proceedings or on direct appeal, or has
failed to timely note an appeal, the procedural default
doctrine applies. See Coleman v. Thompson, 501 U.S.
722, 749-50 (1991) (failure to note timely appeal);
Murray v. Carrier,477 U.S. 478, 489-91 (1986)
(failure to raise claim on direct appeal); Murch v.
Mottram,409 U.S. 41, 46 (1972) (failure to raise claim
during post-conviction proceedings;; Bradley v.
Davis,551 F.Supp. 479, 481 (D. Md. 1982) (failure to
seek leave to appeal denial of post-conviction relief). A
procedural default also may occur where a ...