Hoffman v. Johnson et al
Filing
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MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 5/30/13. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEITH HOFFMAN,
Petitioner,
v.
G.R. JOHNSON, Warden, and
and ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.
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Civ. No. 10-640-SLR
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Keith Hoffman. Pro se petitioner.
Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.
MEMORANDUM OPINION
May .jO ,2013
Wilmington, Delaware
RJ,d~Udge
I. INTRODUCTION
Currently before the court is Keith Homman's ("petitioner") application for a writ
of habeas corpus filed pursuant to 28 U.S.C. § 2254. (0.1. 5) For the reasons that
follow, the court will deny petitioner's § 2254 application.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 17, 2009, petitioner crashed his vehicle at the intersection of
Seashore Highway and Coverdale Road in Bridgeville, Delaware. (0.1. 10 at 1)
Delaware State Police Trooper Edward Joyce was dispatched to the scene of the crash.
Petitioner told the officer that he was driving the vehicle when the crash occurred and
that he lost control of the vehicle and crashed into a metal guardrail. Petitioner further
admitted that he had been using cocaine and drinking alcohol prior to the crash. The
officer saw an open container of beer near the driver's side of the vehicle. Id.
Trooper Joyce noticed that petitioner appeared extremely impaired as he had a
difficult time speaking, standing, walking and following directions. Id. He noticed that
petitioner's eyes were glassy and his pupils were constricted. As a result of his
observations, Trooper Joyce asked Hoffman to perform standard field sobriety tests;
petitioner performed poorly on the tests. Id. at 1-2. Petitioner was given a breath test
which recorded an initial reading of .038%. Petitioner was then arrested, charged with
driving under the influence and other related motor vehicle offenses, and released on
bail. Id. at 2.
On March 17,2009, petitioner waived the indictment process and the State of
Delaware filed an information charging him with the following offenses: driving a vehicle
while under the 'influence; drinking while driving; failure to possess a motor vehicle
registration; driving a vehicle while license is suspended or revoked; improper lane
change; and failure to properly insure a motor vehicle. Id. at 2-3. On October 7,2009,
petitioner pled guilty to driving a vehicle while under the influence and the State entered
a nolle prosequi on the remaining charges. The Superior Court sentenced petitioner to
five years incarceration, suspended after six months, with the balance of the sentence
suspended for one year of probation. Petitioner did not file a direct appeal. Id. at 3.
On April 23, 2010, Delaware State Police Trooper Douglas Reed was on duty in
Bridgeville, Delaware. Id. at 2. Trooper Reed was parked on Mill Park Drive when he
witnessed a vehicle, driven by petitioner, leave a private driveway at a high rate of
speed. The vehicle traveled across Mill Park Drive and onto the shoulder of the
roadway, nearly striking a pedestrian. The vehicle traveled back onto Mill Park Drive
and continued down the road at a high rate of speed. Trooper Reed attempted to
follow the vehicle to conduct a motor vehicle stop. Before the Trooper could stop the
vehicle, petitioner lost control of his car while driving around a sharp corner, leaving the
roadway and crashing into a tree. Id.
Petitioner told the Trooper that he lost control of his vehicle. Id. The Trooper
detected a strong odor of alcohol coming from petitoner's breath as he spoke. Given
the motor vehicle crash and odor of alcohol, Trooper Reed decided to conduct field
sobriety checks. Petitioner failed all of the tests he was given. Petitioner was given
and Intoxilyzer and his blood alcohol content registered at .159%. Petitioner was again
arrested and charged with driving under the influence and other motor vehicle offenses.
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Id.
On June 6,2010, as a result of his commission of these new offenses, the
Superior Court found petitioner in violation of his probation (imposed for his 2009 plea)
and sentenced him to four years in prison with no probation to follow. Petitioner did not
file a direct appeal. Id. at 3.
On June 7,2010, a Sussex County grand jury indicted petitioner for the following
offenses: driving a vehicle under the influence; no valid license; and careless driving.
On June 8, 2010, petitioner pled guilty to driving under the influence, 7th offense, and
the Superior Court sentenced him to fifteen years of incarceration, suspended after
serving five years and the KEY Program, for one year at a Level IV residential
substance abuse program, followed by eighteen months at Level III probation.
Petitioner did not file a direct appeal. Id.
On August 25,2010, petitioner filed a motion to modify his June 8,2010
sentence. The Superior Court denied the motion on September 2,2010, and imposed
the same sentence previously imposed. Id.
In September 2010, petitioner filed in this court papers titled "Writ of Habeas
Corpus, Motion to Dismiss," alleging that the Delaware State Courts did not have
jurisdiction to prosecute him because he was a Delaware National and not a citizen of
the United States. (0.1. 1) For clarification purposes, the court sent petitioner a form
§ 2254 application so that he could clearly articulate his grounds for relief. Petitioner
filed his form application September, 2010. (0.1. 5) The State filed an answer,
contending that the application should be denied because petitioner failed to assert any
claims cognizable on federal habeas review. (0.1. 10)
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III. DISCUSSION
Pursuant to 28 U.S.C. § 2254(a), a federal district court may only entertain a
habeas application if the petitioner alleges that he is in custody in violation of the United
States Constitution or the laws or treaties of the United States. 28 U.S.C. § 2254(a). In
turn, it is well-settled that "[s]tate courts are the ultimate expositors of state law."
Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Thus, claims based on errors of state
law are not cognizable on habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).
Petitioner asserts two grounds for relief in his form application: 1 (1) that he was
"charged for 7 DUI when it was 6"; and (2) for his violation of probation, he "completed
one year Temp Class for one year of Level 3, but [was] sentenced four more years
PLUS fifteen years for DUI and $15,000 fine and $3,000 fine." (D.1. 5 at 5,7) Claim
one appears to allege that there was inadequate evidence of seven DUI convictions to
support the fifteen year sentence imposed for his June 8, 2010 DUI conviction. Claim
two appears to allege that the Superior Court failed to properly credit him with time
served when sentencing him for his VOP and for his new June 8, 2010 conviction. To
the extent these two brief factual allegations assert that the Superior Court violated
state law when sentencing him on his VOP and his new June 8, 2010 conviction, they
fail to assert issues cognizable on federal habeas review. 2
1The State fails to acknowledge that the application contains two claims.
21n addition, the record belies petitioner's assertion that he was only charged with
six DUls, rather than seven DUls. The Superior Court docket for petitioner's 2009
convictions clearly lists the underlying DUI charge as his fourth such offense ("DUI
Alc/Drug - 4T"), and the Superior Court docket for his 2010 convictions clearly lists the
4
Nevertheless, acknowledging its duty to liberally construe pro se applications,3
the court interprets claim two as also alleging possible double jeopardy violations.
Petitioner's original 2009 sentence was for five years at Level V, suspended after
serving six months, with the balance suspended for one year of probation. By asserting
that he completed a one year "Temp Class" for "one year at Level 3," but was still
sentenced to four years for his VOP, petitioner may be alleging that the Superior Court
violated double jeopardy principles by failing to credit him for the one year of probation
served when it calculated his VOP sentence.
To begin, the record belies petitioner's assertion that he served one year of
probation for his 2009 DUI conviction. Petitioner pled guilty to his fourth DUI on
October 7,2009, and was sentenced that same day. (D.1. 12, Del. Super. Ct. Dkt. for
Crim. A. No. S090106741, Entry No. 15) On April 28, 2010, a little more than four
months later, an administrative warrant was filed, and petitioner was found to have
violated his probation on June 8,2010. (D.1. 12, Del. Super. Ct. Dkt. for Crim. A. No.
S090106741, Entry Nos. 16, 19) Based on this record, petitioner appears to have
served no more than four months of his self-described "probation."
More significantly, however, petitioner has not demonstrated that either of his
sentences violated the principles of double jeopardy. The double jeopardy clause
protects an individual from "being subjected to the hazards of trial and possible
underlying DUI charges as "5 th Off DUI", "6 th DUI/Drug", and "7th DUI/Drug." (D.I. 12)
Petitioner's vague and brief statement does not rebut this information. Thus, claim one
appears to be factually baseless.
3Estelle v. Gamble, 429 U.S. 97, 106 (1976); see Royce v. Hahn, 151 F.3d 116,
118 (3d Cir. 1998).
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conviction more than once for an alleged offense,"4 and prevents the imposition of
multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711,
717 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794
(1989). Notably, in Delaware, upon finding a defendant guilty of violating his probation,
the Superior Court is authorized to re-impose any previously suspended prison term,
with credit for all Level V time previously served. Del. Code Ann. tit. 11, §§ 3901 (c) &
4334(c); Gamble v. State, 728 A.2d 1171, 1172 (Del. 1999). The Level V time to be
credited includes time served at a Level IV VOP center, but does not include time
served at Level IV work release or home confinement. Gamble, 728 A.2d at 1172; Del.
Code Ann. tit. 11, § 3901 (c).
In this case, petitioner's vague and unsupported reference to "Temp Class" and
Level 3 probation fails to provide any basis for concluding that the period of probation
he served constituted "credit worthy" Level V incarceration or incarceration at a Level IV
VOP center under Delaware law.5 Consequently, upon finding that petitioner violated
his probation in June 2010, the Superior Court was authorized to sentence petitioner to
serve either the entire balance remaining on his original five year sentence or a lesser
sentence. In these circumstances, the court cannot conclude that the Superior Court's
re-imposition of four years of Level V time violated double jeopardy principles. See
Harris v. State, 768 A.2d 469 (Table), 2001 WL 257797, at **1 (Del. Mar. 8,
2001 )(explaining that re-imposing "the suspended portion of the original sentence upon
4Green v. United States, 355 U.S. 184, 187 (1957).
5This particular issue of state law falls beyond the purview of federal habeas
review.
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a subsequent finding of a VOP inherently credits a defendant with any time the
defendant has served on the unsuspended portion of the original sentence.").
And finally, to the extent claim two asserts that petitioner's right to be protected
against double jeopardy was violated when he was independently sentenced in June
2010 for his new DUI conviction after being sentenced on his VOP to four years for his
2009 DUI, the argument is unavailing. 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. 201, 220
n.14 (1981); United States v. DiFrancesco, 449 U.S. 117, 137 (1980). Pursuant to this
precedent, the court cannot conclude that the fifteen year sentenced imposed on June
8,2010 for petitioner's new DUI conviction constituted a second punishment for
petitioner's DUI conviction in 2009.
Accordingly, for the reasons set forth above, the court will deny petitioner's
application.
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
(2011). A certificate of appealability is appropriate when a petitioner makes a
"substantial showing of the denial of a constitutional right" by demonstrating "that
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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).
The court concludes that petitioner's § 2254 application fails to warrant federal
habeas relief. Reasonable jurists would not find this conclusion to be unreasonable.
Consequently, the court declines to issue a certificate of appealability.
V. CONCLUSION
For the reasons stated, petitioner's request for habeas relief filed pursuant to 28
U.S.C. § 2254 is denied. An appropriate order will issue.
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