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Jones v. Graham

United States District Court, D. Maryland

May 1, 2019

LeTORY ANTYAN JONES Petitioner
v.
WARDEN RICHARD GRAHAM and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.

         In answer to the above-entitled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, respondents assert the petition should be dismissed as time-barred. ECF 3. After this court advised petitioner of the relevant law pertaining to the time limitations for a federal habeas petition and the bases for excusing non-compliance with the time limitation (ECF 5)3 petitioner filed a reply asserting he is entitled to equitable tolling. ECF 6. 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. 2018); 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 that follow, the petition shall be dismissed and a certificate of appealability shall not issue.

         Background

         On January 19, 2006, petitioner LeTory Jones was convicted by a jury in the Circuit Court for Somerset County, Maryland of first-degree assault, second-degree assault, and reckless endangerment. ECF 3-1 at p. 26; ECF 3-2 at p. 35. The court sentenced Jones to serve 25 years for first-degree assault, one-year consecutive for second-degree assault, and five-years concurrent for reckless endangerment. ECF 3-1 at pp. 2-4; ECF 3-2 at pp. 35-36.

         On May 16, 2006, the Circuit Court struck Jones's sentence for reckless endangerment. ECF 3-1 at p. 28; ECF 3-2 at pp. 38-39.

         In an unreported decision dated February 17, 2009, the Maryland Court of Special Appeals affirmed Jones's conviction. ECF 3-2 at p. 41. The mandate issued on March 19, 2009. Id. Jones did not file for certiorari review in the Maryland Court of Appeals and his right to do so expired on April 3, 2009. See Md. Rule 8-302 (petition for writ of certiorari must be filed within 15 days of the date of mandate). For purposes of calculating the one-year federal habeas time limitation, Jones's conviction became final on April 3, 2009.

         On January 27, 2010, Jones filed a petition for post-conviction with the Circuit Court for Somerset County. ECF 3-2 at p. 41. On the date he filed his petition for post-conviction relief 299 days[1] had expired on the one-year federal habeas limitation and, while the petition was pending, the limitation period was tolled. On April 2, 2013, Jones withdrew his petition. Id. at p. 49. Once withdrawn, the one-year federal habeas time period began to run again. The sixty-six days remaining on the limitation period expired as of June 7, 2013.[2]

         Jones did not file another petition for post-conviction relief until January 15, 2016. ECF 3-2 at p. 50. Following the Circuit Court's denial of relief, Jones filed an application for leave to appeal which was dismissed as untimely by the Court of Special Appeals. ECF 3-3.[3] At the time Jones filed his petition for post-conviction relief, the one-year filing limitation for Jones to seek federal habeas relief had expired and, absent a valid basis for an exception to the untimely filing, the instant petition filed on November 27, 2017, is subject to dismissal. See ECF 1.

         Standard of Review

         A one-year statute of limitations applies to habeas petitions in non-capital cases for a person convicted in a state court. See 28 U.S.C. § 2244(d). This section provides:

         (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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