United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
Bell filed a Petition for Writ of Habeas Corpus, pursuant to
28 U.S.C. § 2254, and Respondents submitted their
Response, which raised questions about exhaustion. ECF No. 1,
25. Thereafter, Bell filed two Motions, including a Motion
for Stay and Abeyance. ECF No. 26, 31. He also submitted
correspondence requesting to raise another ground for relief.
ECF No. 30. For the reasons that follow, Bell's Motion
for Stay and Abeyance and request to raise another ground are
denied, and Bell's Motion for Extension of Time is
granted in part and denied in part. Bell will be provided
with an opportunity to explain why the Court should consider
his Fourth and Fifth claims notwithstanding their procedural
default and to present any other Reply to the Response.
2004, a jury convicted Bell of first degree murder, attempted
first degree murder, and two counts of using a handgun in the
commission of a crime of violence. ECF No. 25-1 at 2, 56. His
direct appeal to the Maryland Court of Special Appeals was
rejected as to almost all claims.Id. at 56.
2007, Bell filed a Petition for Postconviction Relief
(“PCR Petition”) in the Circuit Court for Prince
George's County. Id. at 69-86. Bell argued that
trial counsel was ineffective for failing “to object to
the fact that his client right [sic] to be present throughout
trial, ” failing to object to the State serving notice
of intent to seek life without parole only on the attorney
and not on Bell, and failing to timely file a motion for
modification or reduction of sentence. Id. at 72,
83. At the postconviction hearing, Bell also orally raised an
issue concerning transcripts of the grand jury proceedings.
ECF No. 25-7 at 10-11. On March 14, 2011, Bell's PCR
Petition was rejected as to the substantive legal
arguments. ECF No. 25-1 at 99-100. In January 2013,
the Court of Special Appeals denied Bell's Application
for Leave to Appeal from the denial of his PCR Petition.
Id. at 101-111.
Bell filed a Motion to Correct Illegal Sentence, arguing that
only 11 of the 12 jurors were polled regarding their verdict.
Id. at 112, 115. The Circuit Court denied relief,
the Court of Special Appeals affirmed, and the Court of
Appeals denied a writ of certiorari. Id. at 122-34.
2016, Bell filed the instant 28 U.S.C. § 2254 Petition,
raising the following grounds: (1) counsel was ineffective
because Bell was denied the right to be present at bench
conferences and during voir dire (raised in PCR Petition);
(2) counsel was ineffective for failing to request the grand
jury transcript (raised orally at postconviction hearing);
(3) Bell's sentence was illegal because not all jurors
were polled (raised in Motion to Correct Illegal Sentence);
(4) “counsel failed to investigat[e] the other
suspects” (not previously raised); and (5) “[t]he
state did not turn over the firearms examination
report” (not previously raised). ECF No. 1 at 6. After
the action was stayed pending a potentially relevant decision
of the Maryland Court of Appeals, ECF No. 10, Respondents
argued that Bell's Petition was untimely filed, ECF No.
13. The Court subsequently instructed Respondents to address
the merits of Bell's claims. ECF No. 17.
contended, among other arguments, that two of the five claims
presented in Bell's Petition were unexhausted and
therefore that Bell had filed a mixed petition raising both
exhausted and unexhausted claims. ECF No. 25 at 12-14.
Specifically, they asserted that Bell had not exhausted
claims that trial counsel failed to investigate other
suspects and that the state failed to turn over a firearms
examination report. ECF No. 25 at 12-14; see also
ECF No. 1 at 6. Respondents argued that Bell remains capable
of exhausting these two claims because he can move to reopen
his earlier state postconviction proceedings pursuant to Md.
Code Ann., Crim. Proc. § 7-104, which states the
postconviction court “may reopen a postconviction
proceeding that was previously concluded if the court
determines that the action is in the interests of
justice.” ECF No. 25 at 12-14.
on Respondents' argument, Bell filed a Motion for Stay
and Abeyance requesting that this Court “send this case
back down to the lower court for a hearing or [in the]
alternative to allow the petitioner to file a reopening of
his post-conviction [proceedings].” ECF No. 26 at 2.
The Court ordered Bell to demonstrate good cause for a stay
and abeyance pursuant to Rhines v. Weber, 544 U.S.
269, 277 (2005), ECF No. 28, and Bell timely responded, ECF
Exhaustion/Motion for Stay and Abeyance (ECF No. 26)
filing a federal habeas corpus application under 28 U.S.C.
§ 2254, a petitioner must show that all of his claims
have been presented to the state courts. 28 U.S.C. §
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 postconviction
exhaust a claim on direct appeal in non-capital cases, 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 and § 12-301. To exhaust a claim through
postconviction proceedings, 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. § 7-109. 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.
petition contains exhausted and unexhausted claims, the
“district court must dismiss such ‘mixed
petitions,' leaving the prisoner with the choice of
returning to state court to exhaust his claims or of amending
or resubmitting the habeas petition to present only exhausted
claims to the district court.” Rose v. Lundy,
455 U.S. 509, 510 (1982). “A claim that has not been
presented to the highest state court nevertheless may be
treated as exhausted if it is clear that the claim would be
procedurally barred under state law if the petitioner