Lopez v. Phillips et al
Filing
18
OPINION re 2 PETITION for Writ of Habeas Corpus. Signed by Judge Renee Marie Bumb on 7/27/2011. (nms)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
:
:
:
Petitioner,
:
:
v.
:
:
PERRY PHELPS, Warden, and
:
ATTORNEY GENERAL OF THE STATE :
OF DELAWARE,
:
:
Respondents.
:
:
CARLOS LOPEZ,
Civil No. 10-254(RMB)
OPINION
APPEARANCES:
CARLOS LOPEZ, Petitioner pro se
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
JAMES TURNER WAKLEY, Esquire
Deputy Attorney General
Delaware Department of Justice
Wilmington, Delaware 19801
Counsel for Respondents
BUMB, District Judge
Pending before the Court is a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (“petition”) filed by
petitioner Carlos Lopez (“Lopez”).
(Docket entry no. 2)
For the
reasons discussed, the Court will deny the petition as timebarred by the one-year period of limitations prescribed in 28
U.S.C. § 2244(d)(1).
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I.
BACKGROUND
As recounted by the Delaware Supreme Court, the facts
leading to petitioner’s conviction are as follows.
In June 2004, the victim, Andrea Dawson (“Dawson”),
spent the night at the house of her school friend,
Sandra Smith (“Smith”). At the time, Dawson and Smith
were both twelve years old.1 Also present in the house
were Smith’s parents; her brother, Joey, who was
thirteen or fourteen years old; and Smith’s uncle,
[petitioner] Lopez.
On the night of the incident, Smith and Dawson watched
television in the living room. Joey and Lopez were
also in this room. Joey asked Dawson to give Lopez “a
blowjob” several times. Dawson repeatedly refused.
Lopez then made the request and threatened Dawson that
“if Dawson didn’t do anything, that he would through
her outside with her clothes.” Dawson testified that
because she felt “pushed into a corner,” she “gave in”
and put her “mouth around Lopez’s penis.” Smith also
testified that she saw Dawson put her mouth on Lopez’s
penis.
Nearly one year later, Dawson went to the A.I. duPont
Children’s Hospital, where she spoke with Ms. Kolar, a
registered medical assistant. When Ms. Kolar asked
whether she was sexually active, Dawson disclosed the
June 2004 incident. The police were called and,
following an investigation, Lopez was arrested for rape
in June 2005.
Lopez v. State, 918 A.2d 338 (Table), 2006 WL 3759398, at *1
(Del. Dec. 22, 2006).
In February 2006, a Delaware Superior Court jury convicted
Lopez of second degree rape, and the Superior Court sentenced him
as an habitual offender to life imprisonment.
1
Id. at *2.
Lopez
The Delaware Supreme Court designated pseudonyms for the
victim and her friend. Lopez v. State, 918 A.2d 338 (Table) 2006
WL 3759398, at *1 n.1.
Page -2-
appealed, and the Delaware Supreme Court affirmed his conviction
and sentence on December 22, 2006.
Id. at *4.
Lopez filed a motion for reduction of sentence pursuant to
Delaware Superior Court Rule 35 on May 11, 2007 (“first Rule 35
motion”), which the Superior Court denied on February 29, 2008.
(Docket entry no. 14, Del. Super. Ct. Dkt. Entry Nos. 48, 58);
State v. Lopez, 2008 WL 601743 (Del. Super. Ct. Feb. 29, 2008).
Lopez did not appeal that decision.
Lopez filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 on August 3, 2007
(“first Rule 61 motion”), which the Superior Court denied as
meritless on February 29, 2008.
(Docket entry no. 14, Del.
Super. Ct. Dkt. Entry Nos. 49, 58);
See Lopez, 2008 WL 601743.
Lopez did not appeal that decision.
On September 19, 2008, Lopez filed a second Rule 35 motion,
this time titled “correction of illegal sentence,” which the
Superior Court denied on January 30, 2009.
Del. Super. Ct. Dkt. Entry Nos. 59, 60).
(Docket entry no. 14,
On April 14, 2009,
Lopez filed a third Rule 35 motion for correction of sentence,
which was denied on June 10, 2009 as repetitive.
no. 14, Del. Super. Ct. Dkt. Entry Nos. 61, 62)
(Docket entry
Lopez did not
appeal either decision.
Finally, Lopez filed a second Rule 61 motion in the Superior
Court on July 30, 2009, which was denied as time-barred on August
25, 2009. (Docket entry no. 14, Del. Super. Ct. Dkt. Entry No.
Page -3-
63);
State v. Lopez, 2009 WL 3069616 (Del. Super. Ct. Aug. 25,
2009).
The Delaware Supreme Court affirmed that decision January
26, 2010, and denied rehearing en banc on February 16, 2010.
Lopez v. State, 988 A.2d 937 (Table), 2010 WL 376901 (Del. Jan.
26, 2010), reh’g denied en banc, (Feb. 16, 2010).
Lopez’s § 2254 petition is dated March 17, 2010, and timestamped as received by the Clerk’s Office on March 30, 2010.
(Docket entry no. 2)
The petition asserts two grounds for
relief: (1) pursuant to Danforth v. Minnesota, 552 U.S. 264
(2008) and Crawford v. Washington, 541 U.S. 36 (2004), the
Delaware Courts violated his constitutional right to confront
witnesses by improperly admitting into evidence a testimonial
out-of-court statement by a non-testifying witness named Joey
Torres; and (2) Lopez’s defense attorney provided ineffective
assistance by presenting Torres’ statement at trial.
In their
answer, Respondents contend that the Court should dismiss the
petition as time-barred.
(Docket entry no. 12)
Alternatively,
Respondents contend that the first claim in the petition should
be denied as procedurally barred and the second claim should be
denied as meritless.
Id.
II.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) 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.
Murphy, 521 U.S. 320, 336 (1997).
See generally Lindh v.
The AEDPA prescribes a one-
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year period of limitations 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
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
The instant petition, dated March 2010, is subject to the
one-year limitations period contained in § 2244(d)(1).
Lindh, 521 U.S. at 336.
See
The Court cannot discern any facts
triggering the application of § 2244(d)(1)(B) or (D).
Moreover, to the extent Lopez’s reliance on Crawford v.
Washington and Danforth v. Minnesota is an attempt to trigger the
application of § 2244(d)(1)(C) and possibly benefit from a later
filing deadline, it fails.
(D.I. 15)
In Crawford, the Supreme
Court announced a “new rule” for the analysis of Confrontation
Clause challenges, holding that the a defendant must be afforded
the opportunity to cross-examine witnesses where “testimonial”
statements against a defendant are made at trial, as opposed to
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“nontestimonial hearsay.”
Crawford, 541 U.S. at 68-9.
In
Danforth, the Supreme Court held that States are not barred from
retroactively applying Crawford in state collateral proceedings
because they are not bound by federal retroactivity laws.
Danforth, 552 U.S. at 282.
Neither case, however, triggers a
later starting date under § 2244(d)(1)(C).
First, Crawford does
not trigger a later filing date under § 2244(d)(1)(C) because
Lopez’s conviction became final nearly three years after Crawford
was decided.2
Second, Danforth does not trigger a later filing
date because the opinion did not announce a “newly recognized”
constitutional right that the Supreme Court has explicitly made
retroactively applicable on federal habeas review.3
Based on the
foregoing, the Court concludes that § 2244(d)(1)(A) provides the
method for determining the starting date of the limitations
period for the instant petition.
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 upon expiration of the
2
And, even if this situation was one where the petitioner’s
judgment of conviction became final before the issuance of
Crawford, the United States Supreme Court has explicitly held
that Crawford has no retroactive application to cases on federal
habeas review that were final when Crawford was decided. Whorton
v. Bockting, 549 U.S. 406 (2007).
3
Danforth did not announce the type of “new
contemplated by § 2244(d)(1)(C); rather, it only
whether a state may give broader effect to a new
rule than that given under federal retroactivity
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rule”
addresses
constitutional
law.
ninety-day time period allowed for seeking certiorari review.
See Kapral v. United States, 166 F.3d 565, 575, 578 (3d Cir.
Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
1999);
Here,
the Delaware Supreme Court affirmed Lopez’s conviction and
sentence on December 22, 2006, and Lopez did not seek certiorari
review.
2007.
Therefore, Lopez’s conviction became final on March 22,
Applying the one-year limitations period to that date,
Lopez had until March 21, 2008 to timely file his petition.4
See
Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005)(holding that Federal
Rule of Civil Procedure 6(a) and (e) applies to federal habeas
petitions).
Using the date indicated on the petition, the Court
concludes that Lopez filed the instant petition on March 17,
2010, almost two full years after the expiration of the AEDPA’s
limitations period.
See Longenette v. Krusing, 322 F.3d 758, 761
(3d Cir. 2003)(pursuant to the prison mailbox rule, the date on
which a prisoner transmitted documents to prison authorities is
to be considered the actual filing date).
Thus, the petition is
time-barred and should be dismissed, unless the limitations
period can be statutorily or equitably tolled.
See Jones, 195
F.3d at 158.
A. Statutory Tolling
4
In 2009, there were 29 days in the month of February.
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Pursuant to § 2244(d)(2), “a properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim” will toll the AEDPA’s one-year
limitations period during the time the collateral proceeding is
pending, including any post-conviction appeals, provided that the
application for collateral review is filed prior to the
expiration of the AEDPA’s one-year period.
2244(d)(2);
2000);
See 28 U.S.C. §
Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir.
Price v. Taylor, 2002 WL 31107363, at *2 (D. Del. Sept.
23, 2002)(explaining that a properly filed Rule 61 motion will
only toll the limitations period if it was filed and pending
before the expiration of the AEDPA’s limitations period).
A
“properly filed application” for statutory tolling purposes is an
application that is submitted in accordance with the state’s
procedural rules, such as rules governing time and place of
filing.
Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).
If
the state courts rejected a petitioner’s state postconviction
application as untimely, the application is not “properly filed”
for § 2244(d)(2) purposes and therefore has no statutory tolling
effect.
Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
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Here, Lopez filed his first Rule 35 motion on May 11, 2007.5
The Superior Court denied the motion on February 29, 2008, and
Lopez did not appeal that decision.6
Therefore, the Rule 35
motion statutorily tolls the limitations period from May 11, 2007
through March 30, 2008, the date on which the 30-day appeal
period expired.
See Del. Sup. Ct. R. 6.
Lopez filed his first Rule 61 motion on August 3, 2007.
The
Superior Court denied the motion on February 29, 2009 in the same
decision disposing of his first Rule 35 motion, and Lopez did not
appeal that decision.
As a result, the first Rule 61 motion
tolls the limitations period from August 3, 2007 through March
5
Respondents do not consider, or even mention, Lopez’s first
Rule 35 motion in their statutory tolling analysis. (D.I. 12 at
3) Nevertheless, in Delaware, Rule 35 motions are motions for
collateral review which are judicially reviewed in proceedings
occurring outside of the direct review process. Therefore, a
Rule 35 motion constitutes the type of “application for State
post-conviction or other collateral review” contemplated by §
2244(d)(2). See Wall v. Kohli,
U.S.
, 131 S.Ct. 1278,
1287 (2011).
6
As noted by the Delaware Superior Court, Lopez did not
timely file his first Rule 35 motion. Although Lopez’s untimely
filing of his first Rule 35 motion in state court would normally
render the motion improperly filed and not appropriate for
statutory tolling under § 2244(d)(2), the Superior Court did not
reject the Rule 35 motion for being untimely. Rather, the
Superior Court explicitly waived the time-bar and considered the
motion on the merits. Lopez, 2008 WL 601743, at *3. In this
situation, the Court is constrained to conclude that the first
Rule 35 motion triggers statutory tolling under § 2244(d)(2).
Cf. Allen v. Siebert, 552 U.S. 3, 6 (2007)(“Because the [habeas
petitioner’s] petition for state postconviction relief was
rejected as untimely by the state courts, it was not ‘properly
filed’ for purposes of § 2244(d)(2).”)(emphasis added)
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30, 2008.
However, because the time period tolled by the first
Rule 35 motion overlaps with the period tolled by Lopez’s first
Rule 61 motion, there is one continuous period of tolling from
May 11, 2007 through March 30, 2008.
When Lopez filed his first Rule 35 motion on May 11, 2007,
49 days of the AEDPA’s limitations period had lapsed.
The
limitations clock started to run again on March 31, 2008 and ran
another 172 days without interruption until Lopez filed his
second Rule 35 motion on September 19, 2008.
The Superior Court
denied the second Rule 35 motion on January 30, 2009, and Lopez
did not appeal that decision.
Thus, the second Rule 35 motion
tolls the limitations period from September 19, 2008 through
March 2, 2009, which includes the thirty-day period Lopez had to
appeal that denial.7
When the limitations clock started to run again on March 3,
2009, a total of 221 days in the AEDPA’s limitations period had
expired.
The clock ran another 42 days until Lopez filed his
third Rule 35 motion on April 14, 2009.
The Superior Court
denied the third Rule 35 motion on June 6, 2009, and he did not
appeal.
Therefore, the third Rule 35 motion tolls the
limitations period from April 14, 2009 through July 6, 2009,
7
The 30-day appeal period actually expired on March 1, 2009,
a Sunday. Therefore, the time for appealing extended through
Monday, March 2, 2009. See Del. Sup. Ct. R. 11(a).
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which again includes the thirty-day appeal period.
At this
point, a total of 263 days of the limitations period had expired.
Lopez filed a second Rule 61 motion on July 30, 2009, the
Superior Court denied it as untimely, and the Delaware Supreme
Court affirmed that decision and denied rehearing en banc on
February 16, 2010.
However, this second Rule 61 motion has no
statutory tolling effect, because the Delaware State Courts’
denial of the motion as time-barred demonstrates that it was not
“properly filed” for § 2244(d)(2) purposes.8
Consequently, when the limitations clock started to run
again on July 7, 2009, it ran the remaining 102 days without
interruption until the entire AEDPA limitations period expired on
October 16, 2009.
Stated another way, even after accounting for
the applicable periods of statutory tolling, Lopez’s petition was
filed more than four months too late.
Accordingly, the petition
is time-barred unless equitable tolling is available.
8
The Delaware Supreme Court considered Lopez’s Crawford
argument when deciding whether the time-bar and procedural bars
were inapplicable to his second Rule 61 motion. The Delaware
Supreme Court’s consideration of Crawford, however, did not
constitute a waiver of the time-bar applied by the Superior
Court, because the Delaware Supreme Court concluded that Lopez
had failed to overcome the procedural bars and ultimately
affirmed the Superior Court’s dismissal of the motion as
untimely. See Pace, 544 U.S. at 414 (“[w]hen a postconviction
petition is untimely under state law, that is the end of the
matter for purposes of § 2244(d)(2).”).
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B.
Equitable Tolling
The AEDPA’s limitations period may be tolled for equitable
reasons in appropriate cases.
130 S.Ct. 2549, 2560 (2010).
Holland v. Florida,
U.S.
,
However, a petitioner can only
qualify for equitable tolling by demonstrating “(1) that he has
been pursuing his rights diligently, and (2) some extraordinary
circumstance stood in his way and prevented timely filing;”9 mere
excusable neglect is insufficient.
69, 77 (3d Cir. 2004).
Schlueter v. Varner, 384 F.3d
Consistent with these principles, the
Third Circuit has specifically limited equitable tolling of
AEDPA’s limitations period to the following circumstances:
(1) where the defendant (or the court) 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.
Miller v. New Jersey State Dept. of Corr., 145 F.3d 616 (3d Cir.
1998);
Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov.
28, 2001).
Here, Lopez does not contend that any extraordinary
circumstances prevented him from timely filing the instant
petition.
However, in his traverse, Lopez does assert that he
“is Spanish, speaks fluent Spanish, and has a problem with
English.” (D.I. 15 at 5) To the extent this statement should be
9
Holland, 130 S.Ct. at 2562.
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liberally construed as an attempt to trigger equitable tolling,
the Court concludes that it is unavailing.
Recently, in Pabon v.
Mahanoy, the Court of Appeals for the Third Circuit held that an
inability to read or understand English can constitute
extraordinary circumstances triggering equitable tolling when
that inability is combined with a denial of access to translation
or legal assistance.
Pabon v. Mahanoy, ___ F.3d ___, 2011 WL
2685586, at *13 (3d Cir. Jul. 12, 2011).
The “relevant inquiry
is not whether the circumstance alleged to be extraordinary is
unique to the petitioner, but how severe an obstacle it creates
with respect to meeting AEDPA’s one-year deadline.”
Id.
Significantly, Lopez has not alleged, and nothing in the
record indicates, that he requested, but was unable to obtain,
translation assistance prior to the expiration of AEDPA’s oneyear limitations period, or that the prison law library lacked
materials in his native language that were necessary for him to
file a timely § 2254 petition.
In fact, when denying one of the
ineffective assistance of counsel claims raised in Lopez’s Rule
61 motion for post-conviction relief, the Delaware Superior Court
stated:
As counsel explains in his affidavit, he understood and was
sensitive to his client’s limited ability to speak English.
The Defendant informed counsel he did not need an
interpreter, and counsel was satisfied that he was able to
effectively communicate with the Defendant in preparation
for case reviews and trial. Since it appeared to counsel
that the Defendant understood his questions and comments and
that the client’s responses were appropriate to the topic
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being discussed, it was not unreasonable for counsel to
forego an interpreter, especially since counsel was aware
from a prior representation that the Defendant had proceeded
in court without one.
Lopez, 2008 WL 601743, at *2.
In short, Lopez has failed to
demonstrate that his limited proficiency in the English language
constituted a “severe obstacle” in his endeavors to comply with
AEDPA’s limitations period.
And finally, to the extent Lopez erred in his computation of
the AEDPA’s one-year filing period, that mistake does not warrant
equitably tolling the limitations period.
See LaCava v. Kyler,
398 F.3d 271, 276 (3d Cir. 2005)(“in non-capital cases, attorney
error, miscalculation, inadequate research, or other mistakes
have not been found to rise to the extraordinary circumstances
required for equitable tolling”)(internal citation omitted);
Simpson v. Snyder, 2002 WL 1000094, at *3 (D. Del. May 14,
2002)(a petitioner’s lack of legal knowledge does not constitute
an extraordinary circumstance for equitable tolling purposes).
Accordingly, equitable tolling is not warranted, and the Court
will dismiss the petition as time-barred.10
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
10
Having determined that the petition is time-barred, the
court need not address the State’s alternative reasons for
denying the petition.
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certificate of appealability.
22.2(2008).
See 3d Cir. L.A.R. Rule
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);
McDaniel, 529 U.S. 473, 484 (2000).
Slack v.
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 Lopez’s petition is timebarred.
The Court is persuaded that reasonable jurists would not
find this conclusion to be debatable, and therefore, the Court
declines to issue a certificate of appealability.
IV.
CONCLUSION
For the reasons discussed, Lopez’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 will be denied without
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an evidentiary hearing.
(Docket entry no. 2)
An appropriate
Order accompanies this Opinion.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Date: July 27, 2011
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