United States District Court, D. Maryland
W. Grimm United States District Judge
Anthony Salandy filed a Petition for Writ of Habeas Corpus on
February 15, 2019, challenging his 2016 conviction for
second-degree murder in the Circuit Court for Montgomery
County, Maryland. Pet. 10, ECF No. 1. He alleges that the
indictment underlying his judgment of conviction was
defective, the resulting sentence was unlawful, and his trial
and appellate attorney rendered ineffective assistance. Pet.
Respondents assert that the Petition raises claims that have
not been exhausted and that there remains an available state
court remedy for Salandy to litigate those claims. Resp., ECF
No. 7. Salandy argues in part that he presented each of his
constitutional claims to the Circuit Court for Montgomery
County, Maryland, but the Circuit Court
“defaulted” by failing to issue a show cause
order. Reply 4, ECF No. 11. Because his claims are
unexhausted, Salandy's Petition shall be dismissed
was tried and convicted in the Circuit Court for Montgomery
County, Maryland, of second-degree murder. State Ct. Record
21, ECF No. 7-1. On December 19, 2016, the court sentenced
him to 30 years of incarceration with all but 18 years
suspended, to be followed by 5 years of probation.
Id. at 22. Salandy noted a direct appeal to the
Court of Special Appeals of Maryland, challenging only the
exclusion of “a video capturing [his] spontaneous
reaction of disbelief and shock upon learning that the victim
had died.” See Id. at 30. The Court of Special
Appeals concluded that, if there was any error on the trial
court's part in excluding the evidence, such error was
harmless, and it issued a June 14, 2018 opinion to that
effect and a July 17, 2018 mandate. Id. at 35-42.
Salandy then filed a petition for a writ of certiorari, which
the Court of Appeals of Maryland denied on October 3, 2018.
Id. at 25, 43-53.
filed a state petition for a writ of habeas corpus pursuant
to Maryland Rule 15-303 and Md. Code Ann., Cts. & Jud.
Proc. § 3-701 on October 22, 2018 in the Circuit Court
for Anne Arundel County, which transferred the case to the
Circuit Court for Montgomery County. State Ct. Record 55-56.
The state court denied the petition on November 26, 2018,
reasoning that the Court of Special Appeals had affirmed his
conviction and noting that he could bring his
“allegations . . . by way of post-conviction.”
Id. at 58-59. Salandy did not file a petition for
post-conviction relief in state court; rather, he filed the
current habeas petition in this Court on February 15, 2019.
Petition, Salandy claims that: (1) the indictment underlying
his judgment of conviction was defective; (2) the resulting
sentence was unlawful; and (3) his trial and appellate
attorney rendered ineffective assistance. Pet. Before 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
Salandy, the exhaustion requirement is satisfied by seeking
review of each claim in the highest state court with
jurisdiction to consider it. See ECF No. 8. For a
person convicted of a criminal offense in Maryland, this may
be accomplished either on direct appeal or in post-conviction
proceedings. Salandy filed an appeal but did not raise any of
the issues he now raises in this Court.
exhaust a claim through post-conviction proceedings, a
prisoner must raise the claim in a petition filed in the
circuit court where the petitioner was convicted and, if
unsuccessful, must also raise the claim 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
Cts. & Jud. Proc. § 12-202. 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. See Williams v.
State, 292 Md. 201, 210-11 (1981).
Salandy filed a state habeas petition in accordance with Md.
Rule 15-302; it is not clear from the state court docket what
claims he raised. But, regardless whether he raised the
claims that he now presents, when the state court denied the
petition, telling him that he could seek relief through
post-conviction proceedings in accordance with Md. Rule
4-402, he did not file a petition for post-conviction relief
or appeal the denial of his habeas petition. Thus, he did not
exhaust his claims through post-conviction proceedings.
See Crim. Proc. § 7-109. Even though he
believes that the state court wrongly failed to issue a show
cause order in response to his habeas petition, this Court
cannot hear that claim because the state court did not have a
“full opportunity to resolve” the issue. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.”). And, insofar as he alleges that the
indictment underlying his judgment of conviction was
defective, and therefore the resulting sentence was unlawful,
Salandy never filed a Rule 4-345(a) motion to raise that
claim before the state trial court. As Respondents correctly
note, pursuant to Maryland Rule 4-345(a), a trial court
“may correct an illegal sentence at any time.”
Without affording the state court any of these opportunities
to correct its own alleged errors, Salandy cannot raise the
claims in federal court. See O'Sullivan, 526
U.S. at 845.
must 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). Salandy 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
Salandy has to seek federal habeas corpus review.
still may exhaust his claims in state court and return to
federal court. He is well within the limitations period under
the Maryland Uniform Postconviction Procedure Act
(“UPPA”), codified at Crim. Proc. §§
7-101, et seq., to file a post-conviction petition
no later than ten years after the December 19, 2016
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
Salandy's convictions “became final by the
conclusion of direct review, ” 28 U.S.C. §
2244(d)(1)(A), which occurred on January 1, 2019, or 90 days
after the Court of Appeals of Maryland denied his petition
for writ of certiorari. See Sup. Ct. Rule 13.1
(requiring petition for a writ of certiorari to be filed
within 90 days of date of judgment from which review is
sought); see also Clay v. United States, 537 U.S.
522, 527 (2003) (“Finality attaches when this Court
affirms a conviction on the merits on direct review or denies
a petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.”). If Salandy
files a post-conviction petition in state court within one
year of January 1, 2019, the one-year period to file a §
2254 habeas petition in federal court will be tolled (that
is, 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
these constraints, the pending petition will be dismissed
without prejudice to provide Salandy adequate time and notice
to comply with both the exhaustion and filing deadline
requirements. Salandy will be sent forms and an information
packet for filing a § 2254 petition if he decides to do
so after he exhausts his remedies in state court.