United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.
Stephen Nivens, an inmate at the Maryland Correctional
Training Center in Hagerstown, Maryland, has filed a Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. Nivens, who is self-represented, challenges the
validity of his conviction and the sentence imposed after he
pleaded guilty in the Circuit Court for Baltimore County,
Maryland to second-degree sexual offense and first-degree
burglary. The Petition is fully briefed. Upon review of the
submitted materials, the Court finds a hearing unnecessary.
See Rule 8(a), Rules Governing Section 2254 Cases in
the United States District Courts; D. Md. Local R. 105.6. For
the reasons set forth below, the Petition will be DENIED.
9, 2007, Nivens was indicted in the Circuit Court for
Baltimore County for first-degree sexual offense,
first-degree burglary, and several related counts arising
from events that took place on October 25, 1987. In June
2008, a jury convicted Nivens of first-degree sexual offense
and first-degree burglary, for which he received a total
sentence of 70 years of imprisonment. On direct appeal,
however, the Maryland Court of Special Appeals reversed
Nivens's convictions, finding that the trial court had
erred in admitting evidence of a prior sexual assault
allegedly committed by Nivens. After the case was remanded,
Nivens and the State reached a plea agreement. On September
15, 2011, Nivens entered a guilty plea to second-degree
sexual offense and first-degree burglary, in which he
maintained his innocence pursuant to North Carolina v.
Alford, 400 U.S. 25, 37-39 (1970). On October 31, 2011,
Nivens was sentenced to 20 years of imprisonment on each
count, to run consecutively, for a total term of 40 years.
his sentencing, Nivens mounted various challenges to his
conviction and sentence. Nivens filed three Motions to
Correct an Illegal Sentence, the first of which was granted
in part to credit Nivens for 1, 525 days of time served.
Nivens's second Motion to Correct an Illegal Sentence,
protesting the calculation of good conduct credits and the
sex offender registration requirement, was denied, with the
decision affirmed by the Court of Special Appeals. The final
Motion to Correct an Illegal Sentence, which raised further
objections to Nivens's diminution credits and a double
jeopardy claim, was denied. The Court of Special Appeals
affirmed that denial on September 8, 2017.
has also pursued state post-conviction remedies. On October
10, 2012, Nivens filed a petition for post-conviction relief
pursuant to the Maryland Uniform Postconviction Procedure
Act, Md. Code Ann., Crim. Proc. §§ 7-101 to 7-301
(2018). Nivens challenged the legality of his sentence and
further asserted that his guilty plea to first-degree
burglary and his sentence violated the Double Jeopardy Clause
and Ex Post Facto Clause of the United States and Maryland
Constitutions. On February 12, 2013, the Circuit Court
rejected Nivens's arguments and dismissed the petition
without holding a hearing. The Court of Special Appeals
denied his application for leave to appeal the ruling.
January 8, 2016, Nivens filed a second post-conviction
petition. Finding that the petition raised the same issues
previously dismissed, the Circuit Court dismissed the second
petition in a brief order. After Nivens filed a third
post-conviction petition on August 1, 2016, a defense
attorney entered an appearance on Nivens's behalf.
Because Nivens had never been afforded the post-conviction
hearing he is entitled to under Maryland law, the Circuit
Court reopened Nivens's post-conviction proceedings and
scheduled a hearing for February 28, 2018. Before the
hearing, however, Nivens withdrew his third post-conviction
from his post-conviction petitions, Nivens also filed a state
petition for a writ of habeas corpus. On July 28, 2016,
Nivens filed that petition in the Circuit Court for
Washington County. He presented the same claims asserted in
his post-conviction petitions, including claims of a
miscalculation of his diminution credits and violations of
the Double Jeopardy and Ex Post Facto Clauses. The Circuit
Court denied the state habeas petition, finding no error in
the calculation of Nivens's diminution credits and
holding that the other claims were not properly before the
court. Nivens appealed the denial of the state habeas
petition, but the Court of Special Appeals dismissed the
appeal for failure to comply with court procedures.
on July 21, 2016, Nivens filed his federal Petition for a
Writ of Habeas Corpus in this Court pursuant to 28 U.S.C.
§ 2254. Nivens asserts a number of arguments for relief,
all of which are substantially similar to those presented in
his state post-conviction petitions and state habeas corpus
petition. On November 13, 2017, prior to the scheduled
hearing on the third state post-conviction petition,
Respondents asked this Court to stay the present federal
habeas case to allow Nivens to complete his state
post-conviction remedies. The Court granted the requested
stay, but after Respondents informed the Court that Nivens
had withdrawn that post-conviction petition before the
hearing date, the Court lifted the stay on March 19, 2018.
Respondents then filed an Answer, arguing that Nivens's
Petition should be dismissed based on a failure to exhaust
state remedies, based on procedural default, and on the
merits. Nivens filed a Reply and has also submitted four
other supplemental filings. ECF Nos. 25, 36, 37, 39, 40.
Petition, Nivens asserts several grounds for relief, falling
into two main categories. First, Nivens argues that multiple
laws were applied against him in violation of the Ex Post
Facto Clause of the United States Constitution, including
laws relating to the collection and admissibility of
evidence, sex offender registration, and diminution credits.
Second, he asserts that the State violated the Double
Jeopardy Clause of the Constitution because in failing to
apply certain diminution credits accrued before Nivens's
initial conviction was overturned to the sentence imposed
after Nivens's guilty plea, the State effectively
punished Nivens twice for the same crime. Nivens further
claims that his Alford plea to first-degree burglary
violated the Double Jeopardy Clause because he was acquitted
of a separate first-degree burglary charge at trial. In
opposing the Petition, Respondents argue that Nivens failed
to exhaust state remedies and that his ex post facto and
double jeopardy claims are meritless.
federal petition for a writ of habeas corpus may be granted
only for violations of the Constitution or laws of the United
States. 28 U.S.C. § 2254(a) (2018). The federal habeas
statute sets forth a highly deferential standard for
evaluating state court rulings, under which state court
decisions are to "be given the benefit of the
doubt." Bell v. Cone, 543 U.S. 447, 455 (2005);
see also Lindh v. Murphy, 521 U.S. 320, 333 n.7
(1997). A federal court may not grant a writ of habeas corpus
unless the state court's adjudication on the merits (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the United States Supreme Court; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d).
"[A] a federal habeas court may not issue the writ
simply because [it] concludes in its independent judgment
that the relevant state-court decision applied established
federal law erroneously or incorrectly." Renico v.
Lett, 559 U.S 766, 773 (2010) (quoting Williams v.
Taylor, 529 U.S. 362, 411 (2000)). The state court's
application of federal law must be "objectively
unreasonable." Id. (quoting Williams,
529 U.S. at 409). Furthermore, under § 2254(d)(2),
"a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a
different conclusion in the first instance." Wood v.
Allen, 558 U.S. 290, 301 (2010) (citation omitted). The
fact that "reasonable minds reviewing the record might
disagree about the finding in question" is not enough to
deem a state court's factual determination unreasonable.
Exhaustion of State Remedies
threshold issue, Respondents argue that the Petition should
be dismissed in its entirety because he failed to exhaust
state remedies on each of his claims. A petitioner seeking
habeas relief in federal court generally must exhaust the
remedies available in state court. 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). This exhaustion requirement is satisfied by
seeking review of the claim in the highest state court with
jurisdiction to consider the claim. See 28 U.S.C.
person convicted of a criminal offense in Maryland,
exhaustion may be accomplished either on direct appeal or in
post-conviction proceedings. To exhaust a claim on direct
appeal in non-capital cases, a defendant must assert the
claim in an appeal to the Court of Special Appeals of
Maryland and then to the Court of Appeals of Maryland by way
of a petition for a writ of certiorari. See Md. Code
Ann., Cts. & Jud. Proc. §§ 12-201, 12-301
(2013). To exhaust a claim through post-conviction
proceedings, a defendant must assert the claim in a petition
filed in the Circuit Court in which the inmate was convicted
within 10 years of the date of sentencing. See Md.
Code Ann., Crim. Proc. §§ 7-101 to 7-103. After a
decision on a post-conviction petition, further review is
available through an application for leave to appeal filed
with the Court of Special Appeals. Id. § 7-109.
If the Court of Special Appeals denies the application, there
is no further review available and the claim is exhausted.
Md. Code Ann., Cts. & Jud. Proc. § 12-202.
based on the reopening of Nivens's state post-conviction
proceedings and Nivens's subsequent withdrawal of his
petition, Respondents argue that Nivens has
"affirmatively declined to pursue" his available
state remedies to completion. Ans. at 18, ECF No. 30. Under
Maryland law, an inmate is generally entitled to only one
state petition for post-conviction relief. Md. Code Ann.,
Crim. Proc. § 7-103(a). However, as in Nivens's
case, a state court may reopen a post-conviction proceeding
if the court determines "the action is in the interests
of justice." Id. § 7-104. Although the
state post-conviction court reopened Nivens's case after
realizing that Nivens had never received a hearing mandated
under Maryland law, that court had previously dismissed
Nivens's claims. Nivens had properly filed a petition for
leave to appeal that decision, which was denied by the Court
of Special Appeals. Thus, before he sought to reopen his
postconviction proceedings, Nivens had exhausted state
remedies. Md. Code Ann., Cts. & Jud. Proc. §
12-202(1); see Sherman v. State,593 A.2d 670, 670
(Md. 1991) (finding that the Court of Appeals "has no
certiorari jurisdiction to grant post-conviction relief when
the Court of Special Appeals has simply denied an application
for leave to appeal in a post-conviction proceeding").
Notably, Nivens also filed a state habeas corpus petition,
through which certain of the claims before this Court were
also denied on the merits. As a result, all of the grounds of
relief now before the Court on federal habeas review have
been raised and resolved once if not twice in separate state
court proceedings. Under these circumstances, even if Nivens
technically has remaining avenues toward relief in state
court, due to ...