United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE.
above-entitled Petition for Writ of Habeas Corpus was filed
on December 14, 2018. ECF No. 1. Petitioner Carl Javan Ross
challenges his 2017 convictions for child sexual abuse and
related offenses in the Circuit Court for Baltimore County,
Maryland. Id. On March 8, 2019, Respondents filed a
Limited Answer to the Petition, contending that Ross's
Petition is subject to dismissal because he has exhausted
only one of his four claims. ECF No. 6. On April 3, 2019, the
Court received correspondence from Ross arguing that his
claims have been exhausted because he has “at least
filed an appeal and a writ of certiorari for the supreme
court.” ECF No. 10. For the reasons that follow,
Ross's Petition shall be dismissed without prejudice and
his Motion for Grant of Relief (ECF No. 8) shall be denied.
was charged in a ten-count indictment in the Circuit Court
for Baltimore County on August 17, 2015. ECF No. 6-1 at 9. On
September 20, 2016, he was convicted of child sexual abuse,
second-degree sexual offense, third-degree sexual offense,
fourth-degree sexual offense, and second-degree assault.
Id. at 7-9, 11. On February 16, 2017, Ross was
sentenced to concurrent sentences of imprisonment for twenty
years with all but ten years suspended. Id.
March 16, 2017, Ross noted an appeal to the Court of Special
Appeals of Maryland, which affirmed his convictions on
December 11, 2017. Id. at 11, 67-69. The Court
rejected Ross's sole appellate claim, which was that the
evidence had been legally insufficient to convict him.
Id. at 68-69. Ross then filed a petition for
certiorari to the Court of Appeals of Maryland, which denied
his petition on March 23, 2018. Id. at 70-73. On May
18, 2018, Ross also filed a petition for certiorari to the
Supreme Court of the United States, which was denied on
October 29, 2018. Id. at 74-89.
filed the current habeas petition in this Court on December
14, 2018. ECF No. 1.
Petition, Ross claims that: (1) he was denied a
constitutionally speedy trial; (2) the evidence was legally
insufficient to convict him; (3) the trial judge erred in
applying the standard of proof; and (4) the trial was
“procedurally unreasonable” due to various
actions of the trial prosecutor. ECF No. 1.
this Court may consider the merits of claims raised under 28
U.S.C. § 2254 that challenge the validity of a state
court conviction, those claims must be exhausted before the
state courts. See 28 U.S.C. § 2254(b) and (c);
see also Preiser v. Rodriguez, 411 U.S. 475, 491
(1973). Under § 2254, “each ground for relief [is]
an independent claim, ” and all claims in a petition
must be exhausted. Samples v. Ballard, 860 F.3d 266,
274 (4th Cir. 2017). As this Court previously informed Ross,
the exhaustion requirement is satisfied by seeking review of
each claim in the highest state court with jurisdiction to
consider it. See ECF No. 7. For a person convicted
of a criminal offense in Maryland, this may be accomplished
either on direct appeal or in post-conviction proceedings.
Ross has exhausted only his second claim, asserting
evidentiary insufficiency, which he litigated on direct
appeal in the Maryland Court of Special Appeals and through
certiorari petitions to the Maryland Court of Appeals and the
Supreme Court. As Respondents correctly note, Ross has not
exhausted any of his other three claims in any state-court
proceeding. In other words, Ross has not presented his
assertions of lack of a speedy trial, judicial error, and
prosecutorial misconduct in a state post-conviction petition
filed pursuant to the Maryland Uniform Postconviction
Procedure Act (“UPPA”), codified at Md. Code
Ann., Crim. Proc. §§ 7-101, et seq.
exhaust a claim through post-conviction proceedings, it must
be raised in a petition filed in the circuit court where Ross
was convicted and, if unsuccessful, must also be raised in an
application for leave to appeal to the Court of Special
Appeals. See 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. See Md. Code Ann., Cts. &
Jud. Proc. § 12-202. However, if the application is
granted but relief on the merits of the claim is denied, Ross
must file a petition for writ of certiorari to the Court of
Appeals. See Williams v. State, 292 Md. 201, 210-11
must also comply with a one-year filing deadline to file a
habeas petition with this Court following exhaustion of his
claims. See 28 U.S.C. § 2244(d). Ross is
forewarned that the one-year filing deadline begins to run on
the date his conviction is final. The one-year period is
“tolled” during the time a properly filed
post-conviction petition is pending in state court.
See 28 U.S.C. § 2244(d)(2); Harris v.
Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). This
means that until a properly filed post-conviction petition is
filed, the one-year time limitation for federal habeas corpus
continues to run. Once post-conviction proceedings are
completed through state court appellate review, whatever time
is left on the one-year time limit is the period of time Ross
has to seek federal habeas corpus review.
may yet exhaust his claims in state court and return to
federal court. He is well within the limitations period under
the UPPA to file a post-conviction petition no later than ten
years after the February 16, 2017 imposition of his sentence.
Moreover, the one-year limitations period in which to file a
federal habeas petition also has not yet expired as it did
not begin to run until Ross's convictions “became
final by the conclusion of direct review, ” 28 U.S.C.
§ 2244(d)(1)(A), which occurred on October 29, 2018,
when the Supreme Court denied his petition for certiorari.
See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012)
(direct review concludes if, among other things, Supreme
Court denies certiorari). If Ross files a post-conviction
petition in state court within one year of October 19, 2018,
the one-year period to file a § 2254 habeas petition in
federal court will be tolled (i.e., paused) so long
as the post-conviction petition is pending. See 28
U.S.C. § 2244(d)(2) (“The time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection.”).
these constraints, the instant petition will be dismissed
without prejudice to provide Ross adequate time and notice to
comply with both the exhaustion and filing deadline
requirements. Ross will be sent forms and an information
packet for filing a § 2254 ...