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Bell v. Bishop

United States District Court, D. Maryland

March 19, 2019

EDWARD HALL BELL, Petitioner
v.
FRANK B. BISHOP, JR. and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE.

         Edward 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.

         PROCEDURAL BACKGROUND

         In 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.[1]Id. at 56.

         In 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.[2] 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.

         Thereafter, 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.

         In 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.

         Respondents 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.

         Based 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 No. 29.

         DISCUSSION

         I. Exhaustion/Motion for Stay and Abeyance (ECF No. 26)

         When 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 proceedings.

         To 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. § 12-202.

         Where a 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 ...


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