GEORGE L. RUSSELL, III, District Judge.
Pending is Elizabeth Prior's ("Prior") Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. ECF Nos. 1 and 7. Respondent, the Warden of the Maryland Correctional Institution for Women, by counsel, has filed a Response seeking dismissal of the Petition. ECF No. 9. Prior was provided an opportunity to reply, but has not done so. ECF No. 10. After considering the submissions, the Court concludes a hearing is unnecessary,
Prior challenges her 1994 conviction in the Circuit Court for Baltimore County for first-degree murder, conspiracy to commit murder, and use of a handgun in the commission of a felony. Exs. 1 and 2.
Ex. 2 at 1.
In an unreported Opinion filed on October 11, 1995, the Court of Special Appeals of Maryland affirmed Prior's judgment of conviction, and the mandate issued on November 13, 1995. Ex. 2. Prior did not seek review of the decision. Accordingly, her convictions became final on November 28, 1995, when the time for filing a Petition for Writ of Certiorari in the Court of Appeals of Maryland expired.
On April 29, 1997, Prior filed a Petition for Post-Conviction Relief in the Circuit Court for Baltimore County. On January 22, 1999, the Circuit Court held a hearing on her Petition. The claims raised and considered by the post-conviction court were: 1) Prior's trial attorney was unprepared and ineffective; 2) the State failed to give proper notice to Prior regarding its intention to use Detective Bollinger as an expert in the field of burglary; (3) the State knowingly made false statements to the trial judge regarding Bollinger's qualifications as an expert; 4) Prior's trial attorney failed to discredit Bollinger's testimony by obtaining an expert witness for the defense, relying instead on a learned treatise; 5) Prior's attorney insisted that she not testify on her own behalf; 6) Prior's attorney failed to call her 15-year old daughter, Takia Fisher, to testify about events on the evening of the alleged murder; 7) Prior's attorney made opening and closing arguments that were totally ineffective; and 8) Prior's attorney did not discuss with her the potential testimony of the State's witnesses. ECF No. 1, Att., at 1-2, (Memorandum Opinion and Order of Post-Conviction Court). On February 7, 2000, the Circuit Court denied post-conviction relief. Ex. 1, at 6. Prior did not file an Application for Leave to Appeal denial of the Post-Conviction Petition; thus, the post-conviction proceedings became final on March 8, 2000, when the time for doing so expired.
By letter dated April 3, 2007, Assistant State's Attorney Steven I. Kroll notified Prior that the late Joseph Kopera, "an expert in firearms and tool mark analysis" who had testified for the State at Prior's trial, had "misrepresented his educational background." ECF No. 1, Att. 1, (Letter from Steven Kroll to Prior dated April 3, 2007).
On October 2, 2007, Prior filed a Petition under 28 U.S.C. § 2254 in this Court, attacking her handgun conviction based on Kopera's credibility.
Almost three years later on June 1, 2011, Prior submitted correspondence which this Court treated as a request for habeas corpus relief, directing her to provide additional information to show exhaustion of state court remedies.
On February 5, 2013, Prior filed a Motion to Reopen Post-Conviction proceedings in the Circuit Court for Baltimore County, asserting that she was "convicted (in part) by the testimony of firearms expert" Joseph Kopera, who subsequently committed suicide. ECF No. 1, Att. 1 at 1. Additionally, she averred: 1) she had been charged with the "`contract murder' of her husband, yet the state could never furnish the person whom [Prior] had supposedly hired"; 2) the testimony given by Police Officer Baylor, who claimed to have had an intimate affair with her, amounted to a conflict of interest; 3) Carlos Ricks, a witness at trial later recanted; and 4) testimony of her marital affair was admitted at trial. ECF No. 1, Att. 1 (Motion to Reopen). On April 16, 2013, the State moved to dismiss Prior's Motion to Reopen Post-Conviction Proceedings. Ex. 1 at 9. The Maryland Judiciary website shows the matter is pending in the Circuit Court of Baltimore County.
The instant Petition is deemed filed on January 30, 2013, the date it was signed and presumably placed in the prison's internal mail system.
Prior, who is a self-represented Petitioner, is essentially attempting to collaterally attack her state conviction by raising the same claims here that she presented in the Motion to Reopen Post-Conviction Proceedings now pending in state court. The claims in her federal Petition are as follows:
ECF No. 1. In supplemental pleadings, Prior introduced an additional claim challenging her conviction on the grounds that her daughter was not called to testify at trial. ECF Nos. 6 and 7.
Title 28 U.S. C. § 2244(d) provides a one-year statute of limitations, for writ of habeas corpus, in non-capital cases for individuals convicted in state court. This one-year period is, however, tolled while properly filed post-conviction proceedings are pending and may otherwise be equitably tolled.
28 U.S.C. § 2244(d).
In most cases, the limitations period is calculated from the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking review. 28 U.S.C. § 2244(d)(1)(A). As previously noted, Prior's convictions became final on November 28, 1995. Under these facts, the statute of limitations in 28 U.S.C. § 2244(d)(1)(A) began to run in this case on April 25, 1996.
Prior had no state post-conviction or other collateral proceedings pending to statutorily toll the limitations period between: 1) April 25, 1996, to April 29, 1997 (more than one year); and 2) March 8, 2000, and January 30, 2013 (more than twelve years). Notably, even if the Court were to assume that the factual predicate of Prior's claim concerning Joseph Kopera was not discoverable until March 2007, and the limitations period is calculated under 28 U.S.C. § 2244(d)(1)(D), Prior waited almost six years before she filed state proceedings related to this claim. Under the circumstances, the Petition is untimely filed and will be dismissed.
Before a petitioner may seek habeas relief in federal court, he or she must exhaust each claim presented to the federal court by pursuing remedies available in state court.
Prior does not assert in the instant Petition any abridgement of constitutional law. Absent allegation of a violation of a Federal constitutional right, a claim is not cognizable on federal habeas review.
A Certificate of Appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C § 2253 (c)(2). The standard is satisfied by demonstrating that reasonable jurists would find this court's assessment of the constitutional claims presented debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable.
For these reasons, the Petition will be denied and dismissed by separate Order to follow.
