United States District Court, D. Maryland
W. GRIMM UNITED STATES DISTRICT JUDGE
their Answer to this Petition for Writ of Habeas Corpus,
filed pursuant to 28 U.S.C. § 2254, Respondents assert
that the petition is time-barred and must be dismissed. ECF
No. 4. Petitioner Domonique De Fountain was advised by the
Court that he could file a Reply explaining why, in his view,
the petition should not be dismissed as time-barred; he was
granted 28 days to file the Reply. ECF No. 5. Fountain did
not file a Reply, nor has he otherwise indicated to the Court
that he intends to do so. An evidentiary hearing is
unnecessary. 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) (holding that
petitioner was not entitled to a hearing under 28 U.S.C.
§2254(e)(2)). For the reasons cited below and based on
the factual assertions set forth by Respondents, the petition
shall be dismissed and a certificate of appealability shall
April 23, 2009, Fountain entered a guilty plea in the Circuit
Court for Caroline County for one-count of second-degree
murder. ECF No. 4-1 at 13 (certified docket entries). On June
5, 2009, the Circuit Court sentenced Fountain to a term of 30
years with all but 20 years suspended, followed by five years
of probation. Id. at 14. Fountain did not file an
application for leave to appeal, challenging the guilty plea
or the subsequent sentence imposed; therefore, his conviction
became final on July 6, 2009 when the time for filing such an
application expired. See Md. Rule 8-204(b) (30-day
filing period for application for leave to appeal); see
also Harris v. Hutchinson, 209 F.3d 325, 328 n. 1 (4th
Cir. 2000) (conviction final when time for seeking appellate
January 20, 2015, Fountain filed a motion for modification of
sentence which was denied on February 11, 2015. ECF No. 4-1
at 15. Pursuant to Md. Rule 4-345(e) such a motion must be
filed "within 90 days after imposition of a sentence.
asserts he filed a petition for post-conviction relief on
September 2, 2016, which was subsequently denied on September
17, 2016. ECF No. 1 at 4. Review of the electronic docket
kept on Maryland's Judiciary Case Search
website indicates that Fountain's
post-conviction petition was not denied. Rather, a hearing
was held on August 19, 2019, followed by an Order for
In-Patient Treatment issued on the same date. See State of
Maryland v. Fountain, No. 05-K-08-007415 (Cir. Ct. for
Caroline Co. 2008).
for federal habeas relief in connection with state-court
convictions must comply with a one-year filing deadline.
Under the provisions of 28 U.S.C. § 2244, the one-year
limitation period runs 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.
28 U.S.C. § 2244(d)(1). However, under §
2244(d)(2), "[t]he 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."
one-year limitation period is also subject to equitable
tolling in 'those rare instances where-due to
circumstances external to the party's own conduct-it
would be unconscionable to enforce the limitation against the
party."' Hill v. Braxton, 277 F.3d 701, 704
(4th Cir. 2002) quoting Harris, 209 F.3d at 330. To
be entitled to equitable tolling, a petitioner must establish
that either some wrongful conduct by Respondents contributed
to his delay in filing his petition or that circumstances
that were beyond his control caused the delay. See
Harris, 209 F.3d at 330. "[A]ny resort to equity
must be reserved for those rare instances where ... it would
be unconscionable to enforce the limitation period against
the party and gross injustice would result."
Id. The Fourth Circuit has made it clear that, prior
to dismissing a pro se petition for writ of habeas corpus,
"a district court should furnish notice that simply
warns the pro se petitioner that his . .. action will be
dismissed as untimely unless the petitioner can demonstrate
that the petition was filed within the proper time
period." Hill, 277 F.3d at 708.
6, 2010, one year from the date Fountain's conviction was
final, the one-year filing deadline for filing a federal
habeas corpus petition expired. See 28 U.S.C. §
2244(d)(1). Fountain did not file the instant petition until
September 8, 2017. ECF No. 1 at 7 (date of signature).
Fountain did not file anything in state court that operated
to toll the limitations period, nor does he cite any basis to
find the one-year period was otherwise tolled under 28 U.S.C.
§ 2244. Additionally, there is no basis for finding that
the statute of limitation should be equitably tolled as there
is no evidence that Fountain diligently pursued his rights,
but some extraordinary circumstance prevented him from
complying with the filing deadline. See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (requiring
extraordinary circumstance before equitable tolling is
warranted). Absent such a circumstance, the petition is
time-barred and must be dismissed.
district court dismisses a habeas petition solely on
procedural grounds (e.g., when the petition is time-barred),
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.'" Rose v. Lee,252 F.3d 676, 684
(4th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). This Court concludes that Petitioner cannot
satisfy the standard for a certificate of appealability and
thus declines to issue one. Petitioner may still request that
the United States Court of Appeals for the Fourth Circuit