John Joseph Martin v. State of Maryland

810 F.2d 194 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. John Joseph MARTIN, Petitioner-Appellant, v. STATE OF MARYLAND, Respondent-Appellee. No. 86-6775. United States Court of Appeals, Fourth Circuit. Submitted Dec. 9, 1986. Decided Jan. 15, 1987. Before HALL, SPROUSE and WILKINS, Circuit Judges. John Joseph Martin, appellant pro se. PER CURIAM: — 1 — John Joseph Martin seeks to appeal the district court order dismissing his 28 U.S.C. § 2254 petition for failure to exhaust state remedies. Martin contends that his ten-year sentence following his guilty plea to an assault charge is excessive and violates the eighth amendment considering: (1) his age at the time of the offense; (2) the seriousness of the offense; and (3) his lack of a prior adult incarceration. — 2 — Following his conviction, Martin filed a motion for reduction of sentence pursuant to Maryland Rule 4-345. The motion was denied. Martin now contends that he has satisfied the exhaustion requirement as there are no applicable provisions under Maryland law which may be utilized to present his claim. — 3 — In Preston v. State, 57 Md.App. 403, 410, 470 A.2d 395, 398, cert. denied, 300 Md. 89, 475 A.2d 1201 (1984), the Maryland Court of Special Appeals held that if relief is denied on a motion to correct an illegal sentence, the defendant may petition for review under the Uniform Post Conviction Procedure Act. Md.Ann.Code art. 27, § 645A. If relief is thereafter denied, the defendant may apply for leave to appeal to the Court of Special Appeals. 57 Md.App. at 410, 470 A.2d at 398. See also Valentine v. State, 305 Md. 108, 120, 501 A.2d 847, 853 (1985) ("[t]he refusal of a trial judge to correct an illegal sentence can only reach the appellate courts when the procedures of the Uniform Post Conviction Procedure Act are followed"). Thus, as Martin has not fully presented his claim to the Maryland state courts, the district court correctly dismissed his federal petition for failure to exhaust state remedies. — 4 — Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal. — 5 — DISMISSED.