Smith v. Ryan et al

Filing 16

MEMORANDUM. Signed by Judge Berle M. Schiller on 7/19/2011. (lid)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AMBRIA SMITH,
Petitioner,
v.
PATRICK RYAN, et al.,
Respondents.

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CIVIL ACTION

NO. 10-108
MEMORANDUM

Schiller, J.
I.

July 19, 2011

INTRODUCTION
Presently before the Court is a Petition for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 (“Petition”) (Docket entry no. 1) filed by Petitioner Ambria Smith (“Petitioner”).
Petitioner contends that the Delaware Superior Court violated her constitutional rights by failing
to credit her trafficking sentence with time previously served in the Boot Camp Diversion
Program. For the following reasons, the Petition is denied as meritless.
II.

BACKGROUND
On December 14, 2007, Delaware State Police executed a search warrant at 302

Hollybrook Apartments, Laurel, Delaware. (Docket entry no. 11 at 1) Petitioner and two of her
minor children were in the apartment, along with Colen Hyland and Chaddix Parker. The police
found a loaded .38 caliber Smith and Wesson handgun under a sofa, and a digital scale with
cocaine residue nearby. In the master bedroom, the police also found: a clear plastic baggie
containing 3.4 grams of powder cocaine on the floor; a clear plastic baggie containing 12.3 grams
of powder cocaine in a Crown Royal bag placed on top of a dresser; and two Oxycodone pills

and one Codeine pill lying on top of the dresser. The police arrested Petitioner that same day. Id
at 1-2.
On February 20, 2008, the State charged Petitioner by way of information with the
following offenses: trafficking in cocaine; possession with intent to deliver cocaine (“PWITD”);
possession of a firearm during the commission of a felony; two counts of possession of a firearm
by a person prohibited (“PFBPP”); maintaining a dwelling for keeping controlled substances;
conspiracy in the second degree; possession of oxycodone; possession of codeine; two counts of
possession of drug paraphernalia; and two counts of endangering the welfare of a child. Id at 2.
On May 21, 2008, Petitioner pled guilty to trafficking in cocaine, PWITD cocaine, PFBPP, and
two counts of endangering the welfare of a child, in exchange for which the prosecution
dismissed the balance of the charges. The Superior Court sentenced Petitioner as follows:
endangering the welfare of a child – one (1) year at Level V (with credit for one hundred sixty
(160) days previously served), suspended after eight (8) months; trafficking in cocaine – ten (10)
years at Level V, suspended after two (2) years, deferred for the Boot Camp Diversion Program;
PWITD cocaine – five (5) years at Level V, suspended for eighteen (18) months at Level III;
PFBPP – five (5) years at Level V, suspended for eighteen (18) months at Level III; and
endangering the welfare of a child – one (1) year at Level V, suspended for one (1) year at Level
III. Id.
Petitioner was unsuccessfully discharged from Boot Camp in February 2009. She was resentenced on March 6, 2009 as follows: endangering the welfare of a child – discharged for timeserved; trafficking in cocaine – ten (10) years at Level V (with credit for fourteen (14) days
previously served), suspended after a two (2) year mandatory minimum at Level V for eighteen
2

(18) months at Level III; and PFBPP – five (5) years at Level V, suspended for one (1) year at
Level III. Petitioner moved to modify her sentence on May 29, 2009, seeking credit for the eight
(8) months she awaited admission into the Boot Camp as well as credit for her time at Boot
Camp. The Superior Court granted that motion in part, correcting Petitioner’s sentence to credit
her with a total of forty-two (42) days: the twenty-seven (27) days she served after her Level V
time for endangering had concluded and prior to her admission to Boot Camp; and the fifteen
(15) days she served after her discharge from Boot Camp and prior to her re-sentencing hearing.
(Docket entry no. 13, Motion to Affirm in Smith v. State, No. 386,2009, at ¶ 3) However, the
Superior Court denied her request to be credited for the time she spent in Boot Camp. (Docket
entry no. 13, Motion to Affirm in Smith v. State, No. 386,2009, at B-56) Petitioner appealed, and
the Delaware Supreme Court affirmed the Superior Court’s corrected sentence order on October
20, 2009. Smith v. State, 984 A.2d 124 (Table), 2009 WL 3367064 (Del. Oct. 20, 2009).
III.

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)(internal citations and quotation marks omitted). 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 ensure that state-court convictions are
3

given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see
Woodford, 538 U.S. at 206.
B. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b);
O’Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971). 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).
C. Standard of Review
1. Deferential standard of § 2254(d)
If a state court adjudicated a petitioner’s habeas claim on the merits, a federal district
court can only grant habeas relief if the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250
F.3d 203, 210 (3d Cir. 2001). A claim has been “adjudicated on the merits” for the purposes of
28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its
substance, rather than on a procedural or some other ground. Thomas v. Horn, 570 F.3d 105, 115
(3d Cir. 2009). Even a summary adjudication of a claim on the merits “unaccompanied by an
opinion explaining the reasons relief has been denied” is entitled to § 2254(d) deference.
Harrington v. Richter,

U.S.

, 131 S.Ct. 770, 784-85 (2011).

2. De novo standard of review
If, however, the state’s highest court has not adjudicated a federal habeas claim on the
merits, but the claim has been exhausted and the merits are properly before the federal court on
habeas review, then the federal court must review the claim de novo. See Breakiron v. Horn, 642
F.3d 126, 2011 WL 1458795, at *3 (3d Cir. Apr. 18, 2011)(citing Porter v. McCollum,

U.S.

,

130 S.Ct. 447 (Jan. 19, 2011)). De novo review means that the court “must exercise its
independent judgment when deciding both questions of constitutional law and mixed
constitutional questions.” Williams v. Taylor, 529 U.S. 362, 400 (2000)(O’Connor, J.,
concurring).
3. Section 2254(e) and the presumption of correctness
Finally, whether reviewing a habeas application de novo or under § 2254(d), a federal
court must presume that the state court’s determinations of factual issues are correct. 28 U.S.C. §
2254(e)(1); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). This presumption of correctness
applies to both implicit and explicit findings of fact, and can only be rebutted by petitioner upon
a showing of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v.
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Cockrell, 537 U.S. 322, 341(2003)(stating that the clear and convincing standard in § 2254(e)(1)
applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies
to factual decisions); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).
IV.

DISCUSSION
Petitioner originally asserted two grounds for relief: (1) the Delaware Superior Court

violated her constitutional rights by failing to credit her two (2) year minimum mandatory
sentence for trafficking with the time she served in the Boot Camp Diversion Program, and the
Superior Court also violated her Due Process rights by applying the eight (8) months she served
in prison awaiting her placement into Boot Camp to her sentence for child endangerment rather
than to her trafficking sentence; and (2) medical error and nontreatment by medical staff.
(Docket entry no. 1) The Court has already dismissed Claim Two for failing to allege an issue
cognizable on habeas review. (Docket entry no. 4) For the reasons set forth below, the Court
will deny the allegations in Claim One as meritless.
A. Superior Court’s Failure To Credit Petitioner’s Time In Boot Camp Against
Two Year Minimum Mandatory Sentencing For Trafficking Conviction
Petitioner asserts that the Superior Court’s failure to credit the two (2) year minimum
mandatory Level V sentence for trafficking with the time she served in the Boot Camp Diversion
Program violated her constitutional rights under the Sixth and Fourteenth Amendments.
Although Petitioner presented this argument to the Delaware Supreme Court when she appealed
the Superior Court’s decision on her motion for modification of sentence, the Delaware Supreme
Court only addressed the argument as an issue of Delaware law and not as an argument
implicating federal constitutional concerns. In these circumstances, de novo review is

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appropriate.
A state prisoner’s right to credit for time served before sentencing is a matter of state law.
See Hoover v. Snyder, 904 F. Supp. 232, 234 (D. Del. 1995); Hardy v. Luzerne County, 2007
WL 2253463, at **1-2 (M.D. Pa. Aug. 3, 2007). In turn, a district court engaging in federal
habeas review must accept a state supreme court’s interpretation of state law,1 and claims
asserting a violation of a state law, or challenging a state court’s interpretation of state law, do
not present cognizable issues for the purpose of federal habeas review. Swarthout v. Cooke,
U.S.

, 131 S.Ct. 859, 861 (2011); Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Therefore, to

the extent Petitioner’s first claim challenges the Delaware State Courts’ interpretation and
application of Delaware sentencing statutes, the Court concludes that the claim fails to assert a
proper basis for habeas relief.
To the extent Petitioner’s asserts a violation of her “constitutional rights” in general, the
Claim lacks merit. As an initial matter, there is no federal constitutionally protected right to early
release, see Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979), nor is
there a constitutionally protected right to credit for time served pursuant to a deferred sentence
upon reinstatement of that sentence. Although Petitioner contends that Reno v. Koray, 515 U.S.
50, 51 (1995) establishes such a right because Boot Camp constitutes “official detention” under
the definition contained therein, her argument is misguided. In Koray, the Supreme Court held
that a federal prisoner is not entitled to credit pursuant to 18 U.S.C. § 3585(b) for time spent at a
community treatment center while released on bail prior to his or her conviction, because a
“community treatment center” does not constitute “official detention” for the purposes of §

1

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
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3585(b). Id. The Koray Court explained that a federal prisoner is subject to “official detention”
within the meaning of § 3585(b) only when under the Bureau of Prison’s control or committed to
the custody of the Attorney General pursuant to a court detention order. Id. at 56. Simply stated,
the definition of “official detention” articulated in Koray is inapplicable because Petitioner is a
state prisoner challenging a state court’s denial of sentencing credit pursuant to a state statute.
Further, to the extent Petitioner contends that the failure to credit her mandatory two (2)
year trafficking sentence with the time served in Boot Camp violated her right to Due Process,
the Court is not persuaded. Recently, in Swarthout v. Cooke, 131 S.Ct. at 861, the Supreme
Court reiterated the standard analysis to be used in determining if a Due Process violation has
occurred. First, the Court must ask if the prisoner has been deprived of an existing liberty or
property interest. Id. “A liberty interest may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’or it may arise from an expectation or interest created by
state laws or policies.”2 Wilkinson v. Austin, 545 U.S. 209, 221 (2005)(internal citations
omitted). If the prisoner has been deprived of a liberty interest, then the Court must ask if the
procedures followed by the State were constitutionally sufficient. Swarthout, 131 S.Ct. at 861. .
The procedures employed in prison disciplinary proceedings are constitutionally sufficient if the
inmate: (1) was given advance written notice of the disciplinary charge; (2) had an opportunity to

Although the Due Process Clause of the Constitution protects certain liberty interests
created under state law, including state laws governing the method for calculating the credit an
inmate has earned toward release, Federal law does not dictate any specific methodology for
calculating sentencing credit for state prisoners. See, e.g., Sup’t, Mass. Corr. Inst. v. Hill, 472
U.S. 445, 454 (1985)(holding that inmates cannot be deprived of “good time credits” without at
least minimal due process because state statutes created a liberty interest in such credits).
Consequently, the role of the federal courts is limited to the enforcement of due process rights
created by state law. Greenholtz, 442 U.S. at 7.
2

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present witnesses and documentary evidence; and (3) was provided with a written statement of
evidence relied upon and reasons for the disciplinary action. Hill, 472 U.S. at 454. The decision
need only be supported by “some evidence.” Id.
With respect to the first step of the aforementioned inquiry, the language of the statute
governing sentencing for First Offender Boot Camp (Del. Code Ann. tit. 11, § 6712(h)),3
demonstrates that Delaware has not created a liberty interest in receiving credit for time served in
Boot Camp under a deferred sentence. See c.f. Greenholtz, 442 U.S. at 11-12 (prisoners do not
have a liberty interest in parole when the relevant statutory scheme endows prison authorities
with discretion over whether to grant it); see also Board of Pardons v. Allen, 482 U.S. 369, 38081 (1987). For instance, § 6712(h) provides, in relevant part, that
[u]pon a finding that the offender has violated any of the terms or conditions of
supervision or probation at the boot camp or at Level IV or Level III, the court shall
proceed to sentencing for all charges for which sentencing was originally deferred
pursuant to this section, and shall impose not less than the full applicable Level V
sentence mandated for the offense or offenses of which the offender the offender was
convicted []. No credit time shall be given for any time spent in boot camp, Level IV
or Level III.
Del. Code Ann. tit. 11, § 6712(h)(2008)(emphasis added).
In this case, Petitioner’s original ten (10) year sentence at Level V for trafficking was

In Sandin v. Connor, a prison disciplinary case, the Supreme Court criticized the
methodology of Greenholtz and Allen for focusing on the language of state statutes to determine
if the State had created a liberty interest. See Sandin v. Connor, 515 U.S. 474, 484-84 (1995).
The Sandin Court directed courts to focus on the “nature of the deprivation” rather than on the
language of a particular regulation. Id. at 484-84. Several circuit courts, however, have
concluded that Sandin only alters the liberty interest methodology applicable to the day to day
management of prisons. See, e.g., Green v. Schult, 2010 WL 2925729 at *3 n.3 (N.D.N.Y. Jul.
20, 2010). Finding the reasoning of these cases persuasive, the Court will consider the language
of the applicable Delaware statute when performing its liberty interest inquiry with respect to
Petitioner’s sentencing credit claim.
3

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deferred, and Petitioner was diverted to the Boot Camp Diversion Program pursuant to title 11,
§ 6712(h) of the Delaware Code. When Petitioner failed to complete the requirements of the
Boot Camp Diversion Program, the Superior Court followed the terms of § 6712(h) and reinstated her deferred Level V sentence without crediting her with the time she served in Boot
Camp. Given the absence of any protectible liberty interest in being credited for time served in
Boot Camp under a deferred sentence, the Court concludes that Petitioner’s due process
argument fails to warrant relief.
Petitioner’s vaguely asserted argument that the wording of her Boot Camp Diversion
Order itself created a liberty interest in receiving credit for time served at Boot Camp by referring
to Boot Camp as constituting Level V supervision is also not persuasive. (Docket entry no. 2 at ¶
20) Although Delaware inmates are statutorily entitled to receive credit for all Level V time
served,4 there simply was no Level V time to be credited to Petitioner’s deferred trafficking
sentence, because Petitioner’s Level V sentence for trafficking did not become effective until
March 6, 2009, the date she was re-sentenced upon failing the Boot Camp Diversion Program.5
And, even if Petitioner could establish a liberty interest in credit for the time she spent at
Boot Camp, the record reveals that she was afforded the “constitutionally sufficient” due process
required under Wolff v. McDonnell, 418 U.S. 539 (1974), and Hill, 472 U.S. at 454 before being
denied such credit. Petitioner does not contend that she was not given advance written notice

4

See Del. Code Ann. tit. 11, § 3901(b); Gamble v. State, 728 A.2d 1171, 1172 (Del.

1999).
There is a distinction between deferring the imposition of sentence and deferring its
execution. When imposition of the sentence is deferred or suspended, no sentence exists until
one is imposed. See, e.g., United States v. McDonald, 611 F.2d 1291, 1295 (C.A. Ariz. 1980).
5

10

that her unauthorized communications and possession of dangerous contraband violated the
terms of the Boot Camp Diversion Program. She was provided an opportunity to defend herself
at a Multi-Disciplinary Team (“MDT”) hearing, where she actually admitted her violations.
(Docket entry no. 13, Motion to Affirm in Smith v. State, No.386,2009 at B-36) A “Bureau of
Prisons Reclassification Form” and a letter from the Boot Camp to the sentencing judge, both
dated February 18, 2009, describe the evidence relied upon and the reasons for dismissing
Petitioner from the Boot Camp program. Id. at B-34 to B-36. And, given the explicit language
of her Boot Camp Diversion Order, Petitioner cannot legitimately contend a lack of prior
knowledge that she would not be credited with time spent in Boot Camp if she did not complete
the program. (Docket entry no. 13, “Motion to Affirm” in State v. Ambria, No. 386,2009 at Exh.
B-14 “Special Conditions By Order”). Thus, the Court concludes that Petitioner has failed to
substantiate a single violation of her right to due process.
Finally, to the extent Petitioner’s general reference to a violation of her “constitutional
rights” is an attempt to establish a violation of her right to be protected against Double Jeopardy,
the argument is unavailing. The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that “[n]o person shall be ... subject for the same offence to be twice
put in jeopardy of life or limb.” U.S. Const. amend. V. The Clause “is enforceable against the
States through the Fourteenth Amendment ... [a]nd it protects against multiple punishments for
the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled in part on
other grounds, Alabama v. Smith, 490 U.S. (1989). The “Double Jeopardy Clause does not
provide the defendant with the right to know at any specific moment in time what the exact limit
of his punishment will turn out to be.” United States v. DiFrancesco, 449 U.S. 117, 137 (1980).
11

In the context of multiple punishments, the Double Jeopardy Clause only serves to ensure that
the total punishment imposed does not exceed the punishment authorized by the Legislature.
Jones v. Thomas, 491 U.S. 376 (1989).
The Double Jeopardy Clause is simply not implicated in this case. The Superior Court
was authorized to impose a sentence of up to twenty-five (25) years at Level V for trafficking in
cocaine, but only imposed a ten (10) year sentence at Level V, to be suspended after serving two
(2) minimum mandatory years at Level V. Del. Code Ann. tit. 16, § 4753A (2008); Del. Code
Ann. tit. 11, § 4205(b)(2) (2008). The reinstatement of the deferred sentence upon Petitioner’s
failure to complete the Boot Camp Diversion Program did not increase the term to be served over
the ten (10) year sentence originally imposed, and the failure to credit Petitioner with the one
hundred sixty-four (164) days served in Boot Camp did not result in a sentence exceeding the
original ten (10) year sentence or the possible maximum twenty-five (25) year sentence.
Moreover, although Double Jeopardy may still pose a bar when the contested sentence is
within the range authorized by the legislature but the defendant has a legitimate expectation of
finality in his or her sentence, Petitioner did not have such an expectation in this case. See
Pennsylvania v. Goldhammer, 474 U.S. 28, 30-1 (1985). Petitioner voluntarily elected to
participate in the First Offender Boot Camp Diversion Program in order to avoid serving the two
(2) year minimum mandatory Level V sentence, and she also voluntarily agreed to the reimposition of the deferred Level V sentence if she did not successfully complete the program.6

6

Section 6707 provides:
No offender may participate in the boot camp program unless such individual
voluntarily enrolls by agreeing to be bound by a written contract with the Bureau,
which contract shall clearly set forth the obligations, duties, responsibilities and
expectations with which such offender must comply. A representative of the
12

Additionally, Petitioner’s original sentencing order explicitly stated “that the sentence deferred
for Boot Camp Div. Program will be reinstated if there is a failure to complete the program [],
and it must include the mandatory [Level] 5 time for which the [Petitioner] shall not receive
credit for any time served in the [program].” (Docket entry no. 13, “Motion to Affirm” in State
v. Ambria, No. 386,2009 at Exh. B-14 “Special Conditions By Order”). Given these
circumstances, it is clear that Petitioner did not have a legitimate expectation of finality in her
sentence. Therefore, there was no double jeopardy violation in this case.
Accordingly, after considering all of Petitioner’s alternative arguments, the Court
concludes that the failure to credit Petitioner’s trafficking sentence with the time served in Boot
Camp does not warrant federal habeas relief.
B. Improper Crediting Of Eight Months Time Served To Misdemeanor Sentence
For Child Endangerment Rather Than To Felony Sentence For Trafficking
Petitioner also contends that the Superior Court violated Delaware’s Truth-in-Sentencing
(“TIS”) requirements as well as her federal due process rights by applying the eight months she
served in prison awaiting her placement into Boot Camp to her sentence for child endangerment
rather than to her trafficking sentence.
To the extent Petitioner is challenging the Superior Court’s interpretation and application
of Delaware’s sentencing guidelines and statutes, the challenge fails to assert an issue cognizable
on federal habeas review.
To the extent Petitioner contends that the Superior Court violated her right to due process

Bureau shall also explain to the offender the intended benefits of the program, and
the consequences of failing the program.
Del. Code Ann. tit. 11, § 6707.
13

by “randomly” crediting the misdemeanor sentence with the eight (8) months she served while
awaiting placement in the Boot Camp Program, rather than applying the eight (8) months to the
two (2) year minimum mandatory trafficking sentence, the argument is unavailing. As an initial
matter, Petitioner is not entitled to double credit under Delaware or Federal constitutional law
and, therefore, her due process rights were not violated when the entire eight (8) months were not
credited to both the misdemeanor and trafficking sentences. See, e.g., Hoover v. Snyder, 904 F.
Supp. 232, 235 (D. Del. 1995); Adams v. State, 822 A.2d 396 (Table), 2003 WL 1890012 (Del.
Apr. 14, 2003).
Moreover, although a Delaware inmate has a right to be credited for all time served at
Level V,7 an inmate does not have a protectible liberty interest in determining which consecutive
sentence gets credited first. For instance, Delaware’s consecutive sentencing law does not permit
the time an inmate spends in prison for one conviction to be credited against the inmate’s
sentence for another conviction. See Del. Code Ann. tit. 11, § 3901(d). Additionally, when a
person who is sentenced “is undergoing imprisonment under a sentence imposed for any other
offense or offenses, [] the said sentence shall begin to run and be computed, either from the date
of imposition thereof or from the expiration of such other sentence or sentences, as the court
shall, in its discretion, direct.” Del. Code Ann. tit. 11, § 3901(b).
In this case, not all of Petitioner’s Level V sentence related to her trafficking conviction;
she was also sentenced to eight (8) months at Level V for one of her two endangerment
convictions. Petitioner’s Level V sentence for the endangerment conviction became effective on
May 21, 2008, whereas Petitioner’s Level V sentence for trafficking did not become effective

7

Gamble, 728 A.2d at 1172.
14

until March 6, 2009, when she was re-sentenced following her unsuccessful discharge from Boot
Camp.8 (Docket entry no.13, Smith v. State, No. 386,2009, Motion to Affirm at B-11) Given
Delaware’s requirement that all Level V sentences to be served consecutively,9 the Superior
Court credited Petitioner’s first eight (8) months spent at Level V awaiting space in Boot Camp
against her eight (8) month sentence (minus one hundred sixty (160) days credit for time
previously served) for child endangerment. Once the child endangerment sentence was
completely discharged, the remaining amount of credit for time served awaiting space at Boot
Camp was then credited against her trafficking sentence.
In short, Petitioner has failed to demonstrate any due process violation because she was
credited for the entire amount of time she served at Level V while awaiting available space in
Boot Camp. Accordingly, the Court will deny this allegation as meritless.
V.

CERTIFICATE OF APPEALABILITY
The Court must also decide whether to issue a certificate of appealability. See 3d Cir.

L.A.R. 22.2 (2008). A certificate of appealability is appropriate when a petitioner makes a
“substantial showing of the denial of a constitutional right” by demonstrating “that reasonable

The March 6, 2009 sentence order vacated the Boot Camp Diversion Order, discharged
Petitioner’s eight (8) month Level V endangering sentence for time served, and re-instated the
two (2) year mandatory Level V sentence for trafficking. (Docket entry no.13, Smith v. State,
No. 386,2009, Motion to Affirm at B-11) On June 4, 2009, the Superior Court issued a
“Corrected Sentence Order” correcting the March 6, 2009 sentencing order to credit Petitioner
with an additional forty-two (42) days previously served, broken down as follows: twenty-seven
(27) days for the time served after her Level V time for endangering had concluded and prior to
her admission to Boot Camp; and (2) fifteen (15) days for the time served after her discharge
from Boot Camp and prior to her re-sentencing hearing. Id. at 2, B-58 to B-61. This Corrected
Sentence Order was also effective as of March 6, 2009.
8

9

Del. Code Ann. tit. 11, § 3901(d).
15

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).
The Court concludes that the instant Petition does not warrant federal habeas relief and
that reasonable jurists would not find this conclusion to be debatable. Consequently, the Court
declines to issue a certificate of appealability.
VI.

CONCLUSION
For the reasons set forth above, the Court will dismiss the instant Petition for a Writ of

Habeas Corpus in its entirety without an evidentiary hearing. A separate Order follows.

DATE

Berle M. Schiller, J.

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