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Nivens v. Morgan

United States District Court, D. Maryland

November 15, 2019

STEPHEN NIVENS, Petitioner,
v.
WARDEN J. PHILLIP MORGAN and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND, Respondents.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         BACKGROUND

         On July 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.

         After 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.

         Nivens 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.

         On 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 petition.

         Separate 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.

         Meanwhile, 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.

         DISCUSSION

         In the 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.

         I. Legal Standard

         A 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. Id.

         II. Exhaustion of State Remedies

         As a 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. § 2254(c).

         For a 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.

         Presumably 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 ...


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