Blizzard v. DeLoy et al
Filing
17
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 4/4/2012. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES F. BLIZZARD,
Petitioner,
v.
MIKE DELOY, Warden, and
and ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.
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Civ. No. 09-964-SLR
Charles F. Blizzard. Pro se petitioner.
Paul R. Wallace, Deputy Attorney General, Delaware Department of Justice,
Wilrnington, Delaware. Counsel for respondents.
MEMORANDUM OPINION
+
April
,2012
Wilmington, Delaware
~,
istric! Judge
I. INTRODUCTION
Currently before the court is Charles F. Blizzard's ("petitioner") application for a
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (0.1. 1) For the reasons that
follow, the court will dismiss petitioner's § 2254 application as time-barred by the oneyear period of limitations prescribed in 28 U.S.C. § 2244(d)(1).
II. FACTUAL AND PROCEDURAL BACKGROUND
On the early morning of June 4. 1982, petitioner and his co-defendant, Ronnie E.
Cordell ("Cordell"), beat Howard Marshall ("Marshall") until he was unconscious, and
then took ten dollars in cash from his pocket. State v. Blizzard, 2008 WL 5206769, at
*1 (Del. Super. Dec. 10, 2008). Petitioner and Cordell dragged Marshall to a nearby lot,
covered him with a blanket and left him lying on the ground between several trashcans.
Marshall sustained multiple broken bones in addition to fractures of the thyroid
cartilage, which resulted in his death from asphyxia. Id.
Petitioner and Cordell were indicted in December 1983 on the charges of first
degree murder ("felony murder"), first degree robbery, and second degree conspiracy.
(0.1. 13 at 1) The defendants were tried together before a jury and were convicted of all
charges on March 14, 1984. Although the jury unanimously found the statutory
aggravating circumstance "that the murder was committed while the defendants were
engaged in the commission of a robbery," petitioner and Cordell each received a jury
recommendation for life sentences rather than the death penalty. Id. On September
14, 1984, the Superior Court sentenced petitioner to life without probation or parole on
the felony murder conviction and to an additional five years at Level V on the remaining
convictions. The Delaware Supreme Court affirmed petitioner's convictions and
sentences on direct appeal. Blizzard v. State, 513 A.2d 1318 (Table), 1986 WL 17131
(Del. July 28, 1986).
On February 26, 2008, petitioner filed a motion for post-conviction relief pursuant
to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), alleging that his felony
murder conviction should be vacated under Rule 61 (i)(5) because there was insufficient
evidence that the victim was murdered "in furtherance of' the robbery as required by the
Delaware Supreme Court's "reinterpretation" of the felony murder statute in Williams v.
State, 818 A.2d 906 (Del. 2002), and made retroactively applicable to cases on
collateral review in Chao v. State, 931 A.2d 1000 (Del. 2007) ("Chao If'). See Blizzard
v. State, 984 A.2d 123 (Table), 2009 WL 3451914 (Del. Oct. 27, 2009). Reviewing the
motion under Rule 61 (i)(5), the Superior Court denied the motion as meritless. See
Blizzard, 2008 WL 5206769. The Delaware Supreme Court affirmed the Superior
Court's decision on February 9, 2009. See Blizzard, 2009 WL 3451914.
Petitioner's pending § 2254 application, dated December 10, 2009, asserts that
there is insufficient evidence to support his conviction for felony murder under the
Delaware Supreme Court's "reinterpretation" of the "in furtherance of' language
contained in the former felony murder statute, as set forth in Williams and made
retroactively applicable in Chao II. (0.1. 1) More specifically, he contends that the
murder did not help "move the robbery forward," an element explicitly required under
Williams, because the robbery was an afterthought. The State filed an answer,
asserting that the application should be denied as time-barred or, alternatively, as
2
I
procedurally barred. (0.1. 12) The application is ready for review.
III. ONE YEAR STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was
signed into law by the President on April 23, 1996, and it prescribes a one-year period
of limitations for the filing of habeas petitions by state prisoners. 28 U.S.C.
§ 2244(d)(1). The one-year limitations period 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 claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
Petitioner's § 2254 application, dated January 2009, is subject to the one-year
limitations period contained in § 2244(d)(1}. See Lindh v. Murphy, 521 U.S. 320, 336
(1997). Petitioner does not allege, and the court does not discern, any facts triggering
the application of § 2244(d)(1)(B). Although petitioner initially alleged that Williams
announced a new rule of law for the purposes of Teague v. Lane, 489 U.S. 288, 301
(1989), thereby triggering a later starting date under § 2244(d)(1)(C), petitioner's
traverse concedes that the exception of § 2244(d)(1)(C) is inapplicable to his case. 1
1The Williams rule was announced by the Delaware Supreme Court with respect
to state law, not a newly recognized federal constitutional right made retroactively
3
Moreover, to the extent petitioner's argument is that Chao /I provides the "factual
predicate" for his insufficient evidence claim because it made the Williams holding
retroactively applicable, thereby providing a later starting date of June 22, 2007 under
§ 2244(d)(1)(O), the contention is unavailing. Chao /I and Williams cannot establish a
factual predicate for petitioner's constitutional claim, because they were not decisions
rendered in petitioner's own litigation history and they did not directly eliminate his legal
status as a convict. See Johnson v. United States, 544 U.S. 295 (2005)(holding that a
notice of order vacating a federal prisoner's prior state conviction used to enhance
federal sentence triggers AEOPA's one year limitations period, provided petitioner has
shown due diligence in seeking the order); Shannon v. Newland, 410 F .3d 1083, 1088
(9 th Cir. 2005)(explaining that a state court decision clarifying or re-defining state law
does not trigger § 2244(d){1){O) unless the petitioner was party to that case.). Thus, the
one-year period of limitations in this case began to run when petitioner's conviction
became final under § 2244(d)(1 )(A).
Pursuant to § 2244(d)(1)(A), if a state prisoner appeals a state court judgment
but does not seek certiorari review, the judgment of conviction becomes final ninety
days after the state appellate court's decision. 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).
However, state prisoners whose convictions became final prior to AEOPA's effective
date of April 24, 1996 have a one-year grace period for timely filing their habeas
applicable on collateral review by the United States Supreme Court.
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applications, thereby extending the filing period through April 23, 1997.2 See McAleese
V.
Brennan, 483 F.3d 206, 213 (3d Cir. 2007).
In this case, petitioner had until April 23,1997 to timely file his application
because his conviction became final in 1986,3 well before AEDPA's effective date.
Petitioner, however, did not file the application until December 10, 2009. 4 Therefore,
the application is time-barred and should be dismissed, 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 turn.
A. Statutory Tolling
Pursuant to § 2244(d)(2), a properly filed state post-conviction motion tolls
AEDPA's limitations period during the time the action is pending in the state courts,
2Many federal circuit courts have held that the one-year grace period for
petitioners whose convictions became final prior to the enactment of AEDPA ends on
April 24, 1997, not April 23, 1997. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th
Cir. 2001}(collecting cases). Although the Third Circuit has noted that "[a]rguably we
should have used April 24, 1997, rather than April 23, 1997, as the cut-off date,"
Douglas, 359 F.3d at 261 n.5 (citing Fed. R. Civ. P. 6(d», it appears that April 23, 1997
is still the relevant cut-off date in this circuit. The one-day difference is immaterial in
this case because petitioner filed his application well-past either cut-off date.
3The Delaware Supreme Court affirmed petitioner's convictions and sentences
on July 28, 1986, and he did not seek certiorari review. Thus, petitioner's convictions
and sentences became final ninety days later, on October 27, 1986.
4Pursuant to the prison mailbox rule, a pro se prisoner's habeas application is
deemed filed on the date he delivers it to prison officials for mailing to the district court,
not on the date the application is filed in the court. See Longenette v. Krusing, 322
F.3d 758, 761 (3d Cir. 2003); Woods v. Kearney, 215 F. Supp. 2d 458,460 (D. Del.
2002}(date on petition is presumptive date of mailing and, thus, of filing). The court
adopts December 10, 2009 as the filing date because that is the date indicated in
petitioner's certificate of mailing.
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including any post-conviction appeals, provided that the motion was filed and pending
,before the expiration of AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d
417,424-25 (3d Cir. 2000); Price
v.
Taylor, 2002 WL 31107363, at *2 (D. Del. Sept. 23,
2002). In this case, petitioner filed his Rule 61 motion for post-conviction relief on
February 26,2008, long after the expiration of AEDPA's limitations period. Therefore,
the application is time-barred unless equitable tolling applies.
B. 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) some extraordinary circumstance stood in his way and
prevented timely filing." HoI/and, 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 Corr., 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 actively misled the plaintiff;
(2) where the plaintiff was in some extraordinary way prevented from asserting
his rights; or
(3) where the plaintiff timely asserted his rights mistakenly in the wrong forum.
Jones, 195 F.3d at 159.
Petitioner appears to assert that the limitations period should be equitably tolled
through June 20,2007, the date on which the Delaware Supreme Court issued its
decision in Chao II. The court is not persuaded. Although it would have been
impossible for petitioner to cite Chao /I and Williams prior to the issuance of those
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decisions, nothing prevented petitioner from presenting his argument that there was
insufficient evidence to show that the murder of Howard Marshall was committed "in
furtherance of'the robbery prior to the issuance of those decisions. Significantly, when
petitioner was convicted in 1984, Weick v. State, 420 A.2d 159 (Del. 1980), provided
the applicable precedent regarding the requirements of the felony murder statute,
namely, that a defendant could only be found guilty of felony murder if the defendant, or
his accomplices, committed the murder and the murder was committed in "furtherance
of' the commission or attempted commission of the felony. Id. at 162 (emphasis
added). The Williams decision merely reaffirmed the Weick requirements 5 that a
defendant or his accomplices must have committed the killing during the course of the
felony and that the murder "help[ed] to move the felony forward.,,6 See Comer v. State,
5See Williams, 818 A.2d at 913 (citing Weick, 420 A.2d at 162).
61n Comer, the Delaware Supreme Court summarized the statutory requirements
for felony murder under Williams and Weick as follows:
We examined the felony murder statute more recently in Williams v. State.
In that case, we explained that Weick imposed two separate limitations on felony
murder: (1) that there be a causal connection between the felony and the
murder; and (2) that the felon, or his accomplices, if any, perform the actual
killing. But, we noted that in an intervening decision, Chao v. State ["Chao r], we
had held that for felony murder liability to attach, a killing need only accompany
the commission of an underlying felony. Thus, [according to Chao I,] if the "in
furtherance" language has any limiting effect, it is solely to require that the killing
be done by the felon, him or herself.
After analyzing [the felony murder statute], we concluded, in Williams, that
the "in furtherance of' language not only requires that murder occur during the
course of the felony, but also that the murder occur to facilitate commission of
the felony. Thus, in Williams, we overruled Chao I, but retained the agency
theory of felony murder we adopted in Weick, namely, that the felony murder
language requires not only that the defendant or his accomplices if any commit
the killing but also that the murder helps to move the felony forward.
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977 A.2d 334, 340 (Del. 2009). Thus, neither Williams nor Chao /I constitute an
"extraordinary circumstance" for equitable tolling purposes, because petitioner's
argument regarding the meaning of the "in furtherance of' language in the former felony
murder statute has been available to him all along.
In turn, petitioner has not demonstrated that he exercised the level of diligence
needed to trigger equitable tolling; despite the availability of his instant insufficient
evidence argument, petitioner waited more than twenty-one years to raise it to the
Delaware state courts. And, to the extent petitioner's untimely filing was the result of a
miscalculation regarding the one-year filing period, such mistakes do not warrant
equitably tolling the limitations period. See Tay/or v. Carroll, 2004 WL 1151552, at *5-6
(D. Del. May 14, 2004).
For all of these reasons, the court concludes that the doctrine of equitable tolling
is not available to petitioner on the facts he has presented. Accordingly, the court will
dismiss the petition as time-barred. 7
IV. CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2254 application, 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
Comer, 977 A.2d at 339-40.
7The court's conclusion that the instant application is time-barred obviates the
need to discuss the State's alternative reason for denying the application.
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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 application 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 application states a valid claim of the denial of a
constitutional right; and (2) whether the court was correct in its procedural ruling. Id.
"Where a plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed
further." Slack, 529 U.S. at 484.
The court has concluded that petitioner's application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is time-barred. Reasonable jurists would not find this
conclusion to be debatable. Consequently, the court declines to issue a certificate of
appealability.
V. CONCLUSION
For the reasons stated, petitioner's application for habeas relief filed pursuant to
28 U.S.C. § 2254 is denied. An appropriate order shall issue.
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