United States District Court, D. Maryland
Paula Xinis United States District Judge.
Jerome Leslie Allen petitions this Court under 28 U.S.C.
§ 2254 to review his 2016 revocation of probation
entered by the Circuit Court for Anne Arundel County,
Maryland. ECF No. 1. Respondents oppose the Petition because
Allen has failed to exhaust state court remedies. ECF No. 4.
Allen has replied. ECF No. 5. For the following reasons, the
Petition is denied and dismissed without prejudice.
December of 2006, Allen was found guilty after a jury trial
in Anne Arundel County Circuit Court of armed robbery,
robbery, conspiracy, assault, and giving a false statement to
the police. ECF No. 1, No. 4-4. He was sentenced to a 20-year
term of confinement, with all but 17 years suspended.
Id. Allen appealed the armed robbery conviction and
certain pretrial decisions concerning motions to exclude and
to suppress evidence. ECF No. 4-2 at 2. The Maryland Court of
Special Appeals affirmed Allen's judgment, the mandate
for which issued on September 26, 2008. ECF No. 4-4. Allen
did not petition for a writ of certiorari to the Maryland
Court of Appeals. ECF No. 4-1. He did pursue post-conviction
relief which the Circuit Court denied on March 30, 2010.
Id. at 28.
February 22, 2016, Allen's probation was revoked after a
hearing in Anne Arundel Circuit Court, and Allen was
sentenced to ten years' confinement. ECF No. 4-1 at 29,
31; ECF No. 1. Although Allen filed an application for leave
to appeal the revocation, he did not articulate any grounds
in support. ECF No. 4-5 at 4. The Court of Special Appeals
denied the application and the mandate issued on November 18,
2016. Id. at 2-3. Allen did not pursue further
review. ECF No. 1.
Petition before this Court focuses exclusively on the
revocation of probation. Allen argues that he was denied the
right to have his case heard by an impartial tribunal, and
that the sentence is unconstitutional and tantamount to
slavery. ECF No. 1. Allen concedes that he had not raised any
claims previously on direct appeal but maintains that any
further review in state court would be insufficient. ECF Nos.
the Court struggles to discern a legally cognizable federal
claim, even assuming Allen has pleaded a proper claim, the
Petition cannot proceed for failure to exhaust state court
remedies. 28 U.S.C. § 2254(b) and (c); see also
Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). The
purpose of the exhaustion requirement is to “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.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
petitioner may exhaust his claims either on direct appeal or
in post-conviction proceedings. See Matthews v.
Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (“To
satisfy the exhaustion requirement, a habeas petitioner must
fairly present his claim to the state's highest
court.”), overruled on other grounds by United
States v. Barnette, 644 F.3d 192 (4th Cir. 2011);
Bradley v. Davis, 551 F.Supp. 479, 481 (D. Md. 1982)
(“[A] failure to appeal from a denial of relief in a
state post-conviction proceeding constitutes a failure to
exhaust state remedies, ” unless “at the time of
filing the federal habeas corpus petition, it appears that
petitioner has no remaining available state
remedies.”). To demonstrate exhaustion, the Petitioner
must show that he sought review and relief was denied.
Preiser, 411 U.S. at 477, 491; 28 U.S.C. §
2254(b) and (c). Where, as here, a claim is not automatically
reviewable on direct appeal, exhaustion is satisfied by
filing an application for leave to appeal to the Maryland
Court of Special Appeals. See Md. Code Ann., Cts.
& Jud. Proc.' 12-302(g). If the Court of Special
Appeals denies the application, the claim is exhausted.
See Md. Code Ann., Cts. & Jud. Proc.'
filed an application for leave to appeal the violation of his
probation. However, he presented no arguments or grounds to
afford him relief. Consequently, the Court of Special Appeals
was not given the opportunity to consider the claims he
extent Allen can no longer pursue relief on direct appeal, he
still may be able to obtain review through post-conviction
relief. To qualify for post-conviction relief, the petitioner
must be serving a sentence of incarceration, or on parole or
probation for that conviction. See Uniform Post
Conviction Procedure Act, Md. Code, Crim. Proc. §7-101.
The post-conviction petition must be filed in the Circuit
Court where the defendant was convicted and within ten years
from the date of sentencing. Id.
§§7-102-03. Although the defendant is limited to
one post-conviction petition for each trial or sentence,
probation revocation proceedings allow for a separate
post-conviction petition if the petition raises new issues
that could not have been raised earlier. Id. §
7-103(a); Smith v. State, 694 A.2d 182, 187 (1997)
(“[W]e now hold that a probation revocation proceeding
is a ‘trial' within the meaning of [the Uniform
Post Conviction Procedure Act], and a separate single
petition limit applies to such a proceeding when . . . the
petition raises new issues that have come into existence as a
result of the proceeding and, consequently, could not have
been raised earlier”). Further, post-conviction
proceedings may be reopened in the interests of justice.
See Md. Code Ann., Crim. Proc. Art., § 7-104;
Booth v. State, 346 Md. 246, 247 (1997) (directing
reopening of post-conviction proceedings to consider
petitioner's Brady claim).
defendant is denied relief on his post-conviction petition,
he must file an application for leave to appeal to the Court
of Special Appeals within 30 days of the order denying
relief. See Md. Code Ann., Crim. Proc.' 7-109.
If the Court of Special Appeals denies the application, no
further review is available and the claim is exhausted.
See Md. Code Ann., Cts. & Jud. Proc.'
12-202(5). 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 Maryland Court of
Appeals. See Williams v. State, 292 Md. 201, 210-11
concedes that he has not pursued a post-conviction petition
challenging the violation of probation or the sentence
imposed on the revocation. Allen must do so to satisfy
exhaustion requirements prior to filing in this Court. The
Petition in this Court, therefore, is dismissed without
prejudice so that Allen may exhaust state remedies.
district court dismisses a habeas petition solely on
procedural grounds, a certificate of appealability will not
issue unless the petitioner can demonstrate both “(1)
‘that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right' and (2) ‘that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.'” Rouse v.
Lee,252 F.3d 676, 684 (4th Cir. 2001) ...