Savage v. Morgan et al

Filing 21

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 9/12/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ANDREW SAVAGE,

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Petitioner,

v.
PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.

Civil Action No. 09-505-GMS

Andrew Savage. Pro se petitioner.
Danielle Brennan, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for Respondents.

MEMORANDUM OPINION

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I).. '2012
Wilmington, Delaware

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Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner Andrew Savage ("Savage"). (D.I. 2) For the reasons discussed, the
court will deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2004, Savage was indicted on one count of second degree assault and one count
of possession of a deadly weapon during the commission of a felony. He pled guilty to one count
of second degree assault on September 2, 2004. The Superior Court sentenced Savage to five
years of incarceration, suspended immediately for two years and three months of Level IV quasiincarceration, suspended after serving three months for two years at Level III probation. (D.I. 12
at 1) Savage did not appeal his conviction.
In November 2004, Savage was found in violation of the Level III probation ("VOP"),
and sentenced to four months of Level IV followed by two years of Level III probation. (D.I. 14,
Savage v. State, No.558,2008, State's Ans. Br., at 4) Two years later, while serving the Level III
probation imposed in November 2004, Savage was arrested for felony assault. As a result, he
was charged with violating his probation. /d. The administrative warrant was filed on December
5, 2006, and a hearing was scheduled for December 12, 2006. However, the December 12
hearing was continued at Savage's request, and a new hearing was not scheduled. /d.
Nine months later, on September 18, 2007, Savage entered a plea of guilty to one of the
new charges- second degree assault- and was sentenced to probation. !d. at 5. One month
later, on October 16, 2006, he was found guilty ofviolating his probation by being arrested for,
and convicted of, another felonious assault. /d. Savage was immediately sentenced to five years

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of incarceration, suspended after four years for one year at Level III probation. (D.I. 12 at 1-2)
On December 10, 2007, Savage filed a motion to modify his sentence under Delaware
Superior Court Criminal Rule 35(b). The Superior Court denied the motion, and Savage did not
appeal that decision. /d. at 2.
On June 11, 2008, Savage filed a motion to reduce the VOP sentence imposed in October,
2006. The Superior Court denied the motion as untimely, repetitious, and meritless. Savage did
not appeal that decision. /d.
In October 2008, Savage filed a motion for post-conviction relief under Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"), challenging his VOP sentence. See State v.

Savage, 2008 WL 5048413, at *1 (Del. Super. Ct. Nov. 25, 2008). The Superior Court denied
the Rule 61 motion, and the Delaware Supreme Court affirmed that decision. Savage filed a
motion for reargument, which the Delaware Supreme Court denied. See Savage v. State, 974
A.2d 858 (Table), 2009 WL 1525946, at *1 (Del. June 2, 2009, rearg't den. June 17, 2009).
II. GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDPA, a federal court may consider a habeas petition filed by a state prisoner only
"on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). AEDPA imposes procedural requirements and standards
for analyzing the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to
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ensure that state-court convictions are given effect to the extent possible under law." Bell v.

Cone, 535 U.S. 685, 693 (2002).
B. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available reliefunder state law. 28 U.S.C. § 2254(b);

0 'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971). AEDPA states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that -

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
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u.s.c. § 2254(b)(l).
The exhaustion requirement is based on principles of comity, requiring a petitioner to

give "state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at
844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the
state's highest court, either on direct appeal or in a post-conviction proceeding. See Lambert v.

Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); Coverdale v. Snyder, 2000 WL 1897290, at *2 (D.
Del. Dec. 22, 2000). "Fair presentation of a claim means that the petitioner must present a
federal claim's factual and legal substance to the state courts in a manner that puts them on notice

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that a federal claim is being asserted." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). A
federal legal claim is "fairly presented" to state courts when there is: (1) reliance in the state
courts on pertinent federal cases employing constitutional analysis; (2) reliance on state cases
employing constitutional analysis in like fact situations; (3) assertion of the claim in terms so
particular as to call to mind a specific right protected by the Constitution; and (4) allegation of a
pattern of facts that is well within the mainstream of constitutional litigation. See McCandless v.
Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).

A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F .3d 153, 160 (3d
Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F .3d at 160; Coleman
v. Thompson, 501 U.S. 722,750-51 (1991). Similarly, if a petitioner presents a habeas claim to
the state's highest court, but that court "clearly and expressly" refuses to review the merits of the
claim due to an independent and adequate state procedural rule, the claim is exhausted but
procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64
(1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. McCandless v. Vaughn, 172 F.3d 255,260 (3d Cir. 1999); Coleman, 501 U.S. at 75051. To demonstrate cause for a procedural default, a petitioner must show that "some objective
factor external to the defense impeded counsel's efforts to comply with the State's procedural
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rule." Murray v. Carrier, 477 U.S. 478,488 (1986). To demonstrate actual prejudice, a
petitioner must show "that [the errors at trial] worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions." Id at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner
demonstrates that failure to review the claim will result in a fundamental miscarriage of justice.

Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger, 266 F.3d at 224. A petitioner
demonstrates a miscarriage of justice by showing a "constitutional violation has probably
resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Actual
innocence means factual innocence, not legal insufficiency, Bousley v. United States, 523 U.S.
614, 623 (1998), and is established if no reasonable juror would have voted to find the petitioner
guilty beyond a reasonable doubt. Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).

III. DISCUSSION
Savage's petition asserts the following four grounds for relief: (1) his due process rights
were violated during the VOP hearing and by the fact that he improperly served an additional
eight months on his VOP sentence; (2) the Superior Court violated his right to be protected from
double jeopardy by sentencing him on a VOP that was based on a prior adjudicated charge; (3)
the judge abused his discretion and acted with a closed mind in sentencing him on his VOP; and
(4) the judge's statements during sentencing amounted to judicial misconduct. The State
contends that claims one and two should be denied for failing to satisfy § 2254(d), and that
claims three and four should be denied as procedurally barred.

A. Claims One, Three, and Four: Procedurally Barred
Reading Savage's petition in conjunction with his reply, the court interprets claim one as

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'asserting that Savage's due process rights were violated during the VOP hearing because he was
denied an opportunity to testify, he was denied the assistance of counsel, and the hearing was not
held before a neutral body. Savage also argues that his due process rights were violated because
the Superior Court's VOP sentence of five years at Level V, suspended after four years for one
year at Level III, did not take into account the "additional" eight months he served at Level III
probation while waiting for his VOP hearing in October 2007. Although not entirely clear,
Savage appears to believe that the Level III portion of the VOP sentence imposed in October
2007 should only have been for four months.
The record reveals that the "due process" claim Savage presented on post-conviction
appeal was couched in terms of Delaware state law errors rather than the general federal due
process concerns presented here. 1 Consequently, contrary to the State's assertion, the court

1

For instance, in his post-conviction appellate brief, Savage "explained" that he had overserved" the Level III portion of his original sentence, because the Level III portion of his original
sentence expired between the original date set for his VOP hearing (December 5, 2006) and the
date on which the VOP hearing was actually held (October 16, 2007). He then argued that he
was denied due process, because the Superior Court violated 11 Del. Code Ann.§ 4334(c) by
failing to "act within a reasonable time after the issuance of the warrant" or "even act in a
reasonable time afer the continuance of the hearing, and even after the probationary period
expired." (D.I. 14, Savage v. State, No.558,2008, Appellant's Op. Br. at 2) The Delaware
Supreme Court viewed Savage's argument to be that "he could not be sentenced for violating
probation in October 2007 because his term of probation had expired by that time." Applying
state law, the Delaware Supreme Court rejected the argument as meritless, explaining, "[s]o long
as the probation violation occurs prior to the expiration of the probationary term, it is of no
consequence that the violation proceedings and sentencing occur after the expiration of the
probationary term." Savage, 2009 WL 1525946, at *1. Savage filed a motion for reargument,
asserting that the Delaware Supreme Court may have "overlooked or misapprehended the nature
and scope ofhis arguments and questions presented in the Briefs." (D.I. 14, Savage v. State,
No.558,2008, Motion for Reargument, at 2) After again asserting that he "over-served the two
years originally ordered before the October 16, 2007 hearing," Savage contended that "the
probation period had been enlarged due to the over-serving and not in accordance with 11 Del. C.
§ 4334(c), where state statute does not grant authority to enlarge a period of probation once
imposed, and Superior Court erred in extending probation period." !d. at 2-3. The Delaware

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concludes that claim one is not exhausted because Savage did not "fairly present" claim one to
the Delaware Supreme Court.
A review of the record also reveals that Savage did not exhaust state remedies for claims
three and four. For instance, the arguments Savage presented to the Delaware state courts in his
post-conviction proceeding were premised on the VOP judge's alleged failure to comply with
Delaware Superior Court Criminal Rule 32 and 11 Del. Code Ann. §§ 4214 and 4333. In this
proceeding, Savage alleges that the VOP judge abused his discretion by viewing his case with a
closed mind and vindictiveness, and that the judge engaged in judicial misconduct by stating
during the sentencing hearing, "You know, it's all over, it's all over for you, Mr. Savage."
Considering that the claims asserted in Savage's state collateral proceeding were couched in
terms of state law error, and the claims asserted in this proceeding are vaguely asserted in terms
of federal constitutional error, the court concludes Savage did not exhaust state remedies because
he failed to "fairly present" the instant arguments in claims three and four to the Delaware
Supreme Court.
At this juncture, Savage has no method of presenting claims one, three, and four to the
Delaware state courts, because the time for filing a Rule 61 motion has expired and the claims
would be barred as repetitive. See Del. Super. Ct. Crim. R. 6l(i)(l) & 61(i)(2); Lawrie v. Snyder,
9 F. Supp. 2d 428, 453 (D. Del. 1998)(Rule 61(i)(2) bars any ground for relief that was not
asserted in a prior proceeding). Hence, the claims are deemed exhausted but procedurally
defaulted, and the court can only reach the merits of the claims if Savage demonstrates cause and
prejudice, or that a miscarriage of justice will result in the absence of habeas review.

Supreme Court considered the motion for reargument, and denied it as meritless.

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Savage does not assert, and the court cannot discern, any cause for his failure to fairly
present the due process argument contained in claim one to the Delaware Supreme Court on postconviction appeal. And, although Savage asserts that his default of claims three and four was
due to his incarceration, limited access to the law library, and the "time sensitivity of having to
file proceedings," none of these routine aspects of prison life constitute cause for procedural
default purposes.
In the absence of cause, the court will not address the issue of prejudice. Additionally,
the miscarriage of justice exception to the procedural default doctrine does not apply, because
Savage has not provided new reliable evidence of his actual innocence. Accordingly, the court
will deny claims one, two, and three as procedurally barred.2

B. Claim Two
In claim two, Savage alleges that his right to be protected against double jeopardy was
violated because he was prosecuted and punished for second degree assault on two separate
occasions: first, on September 18, 2007, when he pled guilty to second degree assault and was
sentenced for that conviction, and second, on October 16, 2007, when the same second degree
assault conviction was used as the premise for his VOP and for which he was punished by having
his probation revoked.

2

To the extent the Delaware Supreme Court's decision should be viewed as constituting
an adjudication of claim one's federal due process arguments, the court concludes that the claim
does not warrant relief under§ 2254(d) for the reasons asserted by the State. See (D.I. 12 at 6-8)
Simply stated, Savage was validly arrested on the VOP during his period of probation; the
legality of Savage's probation and subsequent violation is governed by Delaware law; and
Savage did not provide any evidence to demonstrate that he was not afforded the minimum
requirements of due process during his VOP hearing (neutral hearing body, written notice of the
claimed violation, disclosure of evidence, opportunity to testify and confront witnesses, and the
assistance of counsel). /d.

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The double jeopardy clause protects an individual from "being subjected to the hazards of
trial and possible conviction more than once for an alleged offense,"3 and prevents the imposition
of multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717
(1969). However, the Supreme Court has held that the conduct or offense used as the basis for a
probation violation can also used as the basis for a criminal prosecution without violating double
jeopardy protections, because the imposition of confinement upon a violation of probation does
"not involve the increase of a final sentence, and ... the defendant is aware at the original
sentencing that a term of imprisonment later may be imposed." Ralston v. Robinson, 454 U.S.
202,220 n.l4 (1981); United States v. DiFrancesco, 449 U.S. 117, 137 (1980). Pursuant to this
precedent, the court concludes that VOP sentence imposed in October 2007 did not constitute a
second punishment for Savage's second degree assault conviction in September 2007.
Accordingly, claim two does not warrant relief. 4

IV. 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 (20 11 ). A

3

Green v. United States, 355 U.S. 184, 187 (1957).

4

The State asserts that Savage fairly presented claim two on post-conviction appeal, but
argues that the Delaware Supreme Court's denial of claim does not warrant relief because the
Delaware Supreme Court's decision was neither contrary to, nor an unreasonable application of,
clearly established Federal law. The court disagrees with the State's exhaustion conclusion,
because the argument asserted in claim two as clarified in Savage's reply is not the same
argument that was presented to the Delaware Supreme Court on post-conviction appeal.
Nevertheless, the court is authorized to deny this procedurally defaulted claim as meritless under
§ 2254(b)(2). See Bronshtein v. Horn, 404 F.3d 700, 728 (3d Cir. 2005). And, even ifthe court
were to view claim two as having been adjudicated on the merits, Savage is not entitled to relief
under§ 2254(d), because the Delaware Supreme Court's denial of the claim was neither contrary
to, nor an unreasonable application of, Ralston and DiFrancesco.
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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 Savage's petition fails to warrant federal habeas relief. 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.

V. CONCLUSION
For the reasons stated, Savage's petition for habeas relief pursuant to 28 U.S.C. § 2254 is
denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.

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