Bunting v. Phelps et al
Filing
16
MEMORANDUM OPINION and ORDER DISMISSING 1 Petition for Writ of Habeas Corpus filed by Tyrone E. Bunting and DENYING the relief requested therein. The court declines to issue a certificate of appealability. The Clerk is directed to CLOSE this case. Signed by Chief Judge Gregory M. Sleet on 3/26/12. (mmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TYRONE BUNTING,
Petitioner,
V.
PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
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Civil Action No. 09-56-GMS
Tyrone Bunting. Pro se petitioner.
Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.
MEMORANDUM OPINION
H.. .Jb ~ ,
2012
Wilmington, De aware
Pending before the court is an application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 ("petition") filed by petitioner Tyrone Bunting ("Bunting"). (D.I. 1) For the
reasons discussed, the court will deny the petition as time-barred by the one-year limitations
period prescribed in 28 U.S.C. § 2244.
I. FACTUAL 1 ANDPROCEDURALBACKGROUND
Early in the morning of February 28, 2003, a then unidentified individual robbed a
convenience store located at Fourth and Union Streets in Wilmington, Delaware. The security
camera's videotape showed the robber, wielding a pellet gun, enter the store wearing a black
New York Yankees jacket. The videotape also showed the robber take two money-filled
envelopes and flee the store. Wilmington police officer Tracy Hammond invetsigated and
reviewed the videotape. Several days later, on the morning of March 3, Hammond and her
partner observed a man, later determined to be Bunting, walking in the vicinity of Sixth Street
and Greenhill Avenue. Hammond believed that Bunting fit the description of the robber in the
videotape. On seeing the officers' car, Bunting abruptly changed direction and entered the
passenger's side of a nearby van. The police then stopped the van and removed Bunting for
questioning. After conducting a pat-down search, Hammond asked Bunting for identification.
Bunting gave the officer a fictitious name, and stated that he had no form of identification. After
later determining his true identity at the station, the officers learned that the Newark police
sought Bunting on an outstanding first degree robbery warrant. Wilmington police held him in
1
The facts are quoted directly from Bunting v. State, 860 A.2d 809 (Table), 2004 WL
2297395, at *1 (Del. Oct. 5, 2004).
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custody based on that warrant and a charge of criminal impersonation. About eleven hours later,
Wilmington police began questioning Bunting, who eventually confessed to the Union Street
robbery and to another unrelated robbery. Bunting, 2004 WL 2297395, at* 1.
On April 7, 2003, the New Castle County grand jury indicted Bunting on two counts of
first degree robbery and one count of second degree robbery. (D.I. 9 at 2) Bunting filed a motion
to suppress on August 11, 2003, which the Superior Court denied after a hearing on December
19, 2003. Id.
Following a two-day jury trial in January 2004, Bunting was convicted on one count of
first degree robbery and one count of second degree robbery. He was acquitted on the remaining
charge of first degree robbery. Id.; Bunting, 2004 WL 2297395, at *2. On March 12, 2004, the
Superior Court sentenced Bunting as an habitual offender to a total! of twenty-five years of
imprisonment at Level V, followed by six months of Level III probation. The Delaware Supreme
Court affirmed Bunting's convictions and sentences on October 5, 2004. Bunting, 2004 WL
2297395.
On June 7, 2007, Bunting filed a motion for state post-conviction relief pursuant to
Delaware Superior Court Rule 61 ("Rule 61 motion"), alleging: (1) tainted and contaminated jury
pool because a State witness (one ofthe robbery victims) entered the courtroom during jury
selection; (2) abuse of discretion for failing to remove the witness from the courtroom; (3)
prosecutorial misconduct for failing to stop the jury selection process while the witness was in
the courtroom; and (4) ineffective assistance of counsel for failing to object to the presence of
the witness during jury selection. State v. Bunting, 2007 WL 2306954, at * 1 (Del. Super. Ct.
Aug. 10, 2007). Bunting's prior counsel filed an affidavit respond:[ng to the allegations of
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ineffective assistance of counsel. The Superior Court denied the Rule 61 motion after
concluding that the first three claims were procedurally barred under Rule 61(i)(3) due to
Bunting's failure to assert them on direct appeal, and that his inef£;:ctive assistance of counsel
claim lacked merit. !d. at *2-3. Bunting appealed, and the Delaware Supreme Court affirmed
the Superior Court's decision on June 6, 2008. Bunting v. State, 9:50 A.2d 658 (Table), 2008 WL
2315897 (Del. June 6, 2008), reh 'g denied en bane (Del. June 26, 2008).
Bunting filed the instant habeas petition in January 2009, asserting the following four
grounds for relief: ( 1) his jury was contaminated because a prosecution witness was seated in the
courtroom for a portion of jury selection; (2) the Superior Court judge erred in failing to call in a
new panel of jurors once the witness was found to have been seated in the courtroom during jury
selection; (3) the prosecutor engaged in misconduct because he did not have the witness removed
from the courtroom at the start of jury selection; and (4) his attom(:y provided ineffective
assistance by failing to request a new jury panel once the witness was found seated in the
courtroom during jury selection. (D.I. 1) The State filed an answer, arguing that the petition
should be dismissed as time-barred. (D.I. 9) Alternatively, the State contends that claims one,
two, and three should be denied as procedurally barred, and claim four should be denied for
failing to satisfy the standards articulated in§ 2254(d)(1). !d.
II. DISCUSSION
A. One-Year Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") was signed into
law by the President on April 23, 1996, and habeas petitions filed in federal courts after this date
must comply with the AEDPA's requirements. See generally Lindh v. Murphy, 521 U.S. 320,
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336 (1997). AEDPA prescribes a one-year period oflimitations for the filing of habeas petitions
by state prisoners, which begins to run 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 daims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(l).
Bunting's petition, dated January 2009, is subject to the one-year limitations period
contained in§ 2244(d)(l). See Lindh, 521 U.S. at 336. Bunting does not allege, and the court
cannot discern, any facts triggering the application of§ 2244(d)(l)(B), (C), or (D). Accordingly,
the one-year period of limitations began to run when Bunting's conviction became final under§
2244(d)(l )(A).
Pursuant to § 2244(d)(l )(A), if a state prisoner appeals a state court judgment but does
not seek certiorari review, the judgment of conviction becomes final upon expiration of the
ninety-day time period allowed for seeking certiorari review. See Kapral v. United States, 166
F.3d 565, 575, 578 (3d Cir. 1999); Jones v. Morton, 195 F.3d 153,, 158 (3d Cir. 1999). In this
case, the Delaware Supreme Court affirmed Bunting's convictions and sentences on October 5,
2004, and he did not file a petition for a writ of certiorari in the United States Supreme Court.
Consequently, Bunting's conviction became final for the purposes of§ 2244(d)(l) on January 3,
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2005. Accordingly, to comply with the one-year limitations period, Bunting had to file his
§ 2254 petition by January 3, 2006. See Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005)(holding
that Federal Rule of Civil Procedure 6(a), (e) applies to federal habeas petitions).
Bunting did not file his habeas petition until January 15, 2009,2 more than three full years
after the expiration of AEDPA's statute oflimitations. Thus, the petition is time-barred, unless
the limitations period can be statutorily or equitably tolled. See Holland v. Florida,_ U.S._,
130 S.Ct. 2549, 2560 (2010)(equitable tolling); 28 U.S.C. § 2244(d)(2)(statutory tolling). The
court will discuss each doctrine in tum.
B. Statutory Tolling
Pursuant to § 2244(d)(2), a properly filed application for state collateral review tolls
AEDP A's limitations period during the time the application is pending in the state courts,
including any post-conviction appeals, provided that the application is filed during AEDPA's
one-year limitations period. Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000). In this case,
Bunting's Rule 61 motion has no statutory tolling effect because it was filed on June 7, 2007,
approximately one and one-half years after the expiration of AEDPA's limitations period.
Therefore, the petition is time-barred unless equitable tolling is available.
C. Equitable Tolling
The one-year limitations period may be tolled for equitable reasons in rare circumstances
when the petitioner demonstrates "(1) that he has been pursuing his rights diligently, and (2)
2
The court adopts January 15, 2009 as the filing date because it is the date listed in
Bunting's certificate of mailing. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir.
2003)(the date on which a prisoner transmitted documents to prison authorities for mailing is to
be considered the actual filing date); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998).
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some extraordinary circumstance stood in his way and prevented timely filing." Holland, 130
S.Ct. at 2562 (emphasis added). Equitable tolling is not available where the late filing is due to
the petitioner's excusable neglect. !d.; Miller v. New Jersey State Dept. of Carr., 145 F .3d 616,
618-19 (3d Cir. 1998). Consistent with these principles, the Third Circuit has explained that
equitable tolling of AEDPA's limitations period may be appropriate in the following
circumstances:
(1) where the defendant (or the court) actively misled the plaintiff;
(2) where the plaintiffwas in some extraordinary way prev~~nted from asserting his rights;
or
(3) where the plaintiff timely asserted his rights mistakenly in the wrong forum.
Jones, 195 F.3d at 159; Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001).
Here, Bunting does not allege, and the court cannot discern, that any extraordinary
circumstances prevented him prevented him from filing his habeas petition with this court in a
timely manner. And, although Bunting contends that the court should equitably toll the
limitations period because he has "exercised reasonable diligence in investigating and bring his
claims,"3 the court is not persuaded. The obligation to act diligently "does not pertain solely to
the filing of the federal habeas petition, rather it is an obligation that exists during the period [the
prisoner] is exhausting state remedies as well." LaCava v. Kyler, 398 F.3d 271,277 (3d Cir.
2005). As previously explained, the Delaware Supreme Court affinned Bunting's convictions
and sentences on October 5, 2004, but he waited until June 7, 2007, approximately two years and
eight months later, to file his Rule 61 motion in the Delaware Superior Court. He then waited
another seven months after the Delaware Supreme Court affirmed the Superior Court's denial of
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(D.I. 1 at 14)
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the Rule 61 motion to file the instant habeas petition. Bunting has not offered any explanation
for these lapses in time. To the extent Bunting simply miscalculakd AEDPA's filing deadline, it
is well settled that a prisoner's ignorance of the law and lack of legal expertise does not excuse a
prompt and timely filing. See Jones, 195 F.3d at 160; Simpson v. Snyder, 2002 WL 1000094, at
*3 (D. Del. May 14, 2002)(a petitioner's lack oflegal knowledge does not constitute an
extraordinary circumstance for equitable tolling purposes). Thus, for all of these reasons, the
court concludes that the doctrine of equitable tolling is not availabh~ to Bunting on the facts he
has presented. Accordingly, the court will dismiss the petition as time-barred. 4
III. CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2254 petition, the court must also
decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). A
certificate of appealability is appropriate when a petitioner makes a "substantial showing of the
denial of a constitutional right" by demonstrating "that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000). If a federal court denies a habeas petition on
procedural grounds without reaching the underlying constitutional claims, the court is not
required to issue a certificate of appealability unless the petitioner demonstrates that jurists of
reason would find it debatable: (1) whether the petition states a valid claim of the denial of a
constitutional right; and (2) whether the court was correct in its procedural ruling. Id
The court has concluded that Bunting's petition filed pursuant to 28 U.S.C. § 2254 is
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Having determined that the petition is time-barred, the coun will not address the State's
alternative reasons for denying the petition.
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time-barred. The court is persuaded that reasonable jurists would not find this conclusion to be
debatable. Therefore, the court will not issue a certificate of appealability.
IV. CONCLUSION
For the reasons discussed, the court will deny Bunting's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (D.I. 1.)
An appropriate order will be entered.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TYRONE BUNTING,
Petitioner,
v.
PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
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Civil Action No. 09-56-GMS
ORDER
For the reasons set forth in the Memorandum Opinion issued this date, IT IS HEREBY
ORDERED that:
1. Tyrone Bunting's petition for the writ of habeas corpus, filed pursuant to 28 U.S.C §
2254, is DISMISSED, and the relief requested therein is DENIED. (D.I. 1)
2. The court declines to issue a certificate of appealability because Bunting has failed to
satisfy the standards set forth in 28 U.S.C. § 2253(c)(2).
Dated:
M 7--fo , 2012
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