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Bryant v. West

United States District Court, D. Maryland

October 21, 2019

HARRISON J. BRYANT, #353-767, Petitioner
v.
WARDEN WALTER WEST, and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents

          MEMORANDUM OPINION

          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 4 . This court advised petitioner of the relevant law pertaining to the time limitations for a federal habeas petition, as well as the bases for excusing non-compliance with the time limitation, and provided petitioner an opportunity to explain the reason for his delay in filing or to assert entitlement to equitable tolling (ECF 5), but petitioner chose not to respond. 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 reasons that follow, the petition shall be dismissed and a certificate of appealability shall not issue.

         Background

         Petitioner was charged in 2008 with multiple counts in three cases in the Circuit Court for Montgomery County: Case Nos. 109921C, 109945C, and 110905C.[1] On October 30, 2008, he pleaded guilty to one count of robbery in Case No. 109921C and two counts of armed carjacking in Case No. 109945C. Petitioner was sentenced to 70 years of incarceration. (ECF 4-1, Docket Entry 94; ECF 4-2. Docket Entry 66. All remaining charges were nolle prossed. Petitioner did not file an application for leave to appeal. See Md. Code Ann., Cts. & Jud. Proc. § 12-302(e) (requiring appellate review of judgment entered following guilty plea to be sought by application for leave to appeal).

         On August 2, 2017, more than eight years after his plea, petitioner sought post-conviction relief in each case in the Circuit Court. (ECF 4-1, Docket Entry 110; ECF 4-2, Docket Entry 74). Following a hearing, the court issued a Memorandum and Order on March 22, 2018, denying post-conviction relief in each case. (ECF 4-1, Docket Entry 100; ECF 4-2, Docket Entry 84). Petitioner's applications for leave to appeal were summarily denied by the Court of Special Appeals of Maryland on August 28, 2018. (ECF 4-1, Docket Entry 111; ECF 4-2, Docket Entry 85; ECF 4-3, pp. 1-4). Petitioner's consolidated petition for writ of certiorari in the Court of Appeals of Maryland was denied on November 16, 2018. See Bryant v. State, 461 Md. 617 (2018) (table), ECF 4-3, pp. 5-6.

         On June 18, 2019, petitioner signed the petition for writ of habeas corpus now before this court, asserting three grounds for habeas relief: (1) trial counsel rendered ineffective assistance by advising him that under the plea agreement his sentences would be concurrent (ECF 1, p. 6; ECF 1-1, p. 1); (2) trial counsel rendered ineffective assistance by failing to file an application for leave to appeal which petitioner requested (ECF 1, p. 6; ECF 1-1, p. 2); and (3) the guilty plea was not knowing and voluntary. (ECF 1, p. 6; ECF 1-1, p. 3).

         Petitioner explains the delay in filing his claims occurred “because I was unaware of this process until after being told by my post-conviction attorney.” (ECF 1, p. 5). Respondents argue that petitioner has provided no statutory basis to excuse this delay; that his lack of knowledge is not a valid basis for equitable tolling of the limitations period; and that the grounds asserted do not provide a “gateway through which a petitioner may [by]pass...expiration of the statute of limitations, ” pursuant to McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). (ECF 4, pp. 9, 10-11).

         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 retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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 ...

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