Morris v. Phelps et al
Filing
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MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 8/17/11. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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ANTHONY MORRIS,
Petitioner,
v.
Civil Action No. 10-890-SLR
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PERRY PHELPS, Warden, and
and JOSEPH R. BIDEN, III,
Attorney General of the State
of Delaware,
Respondents.
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Anthony Morris. Pro se petitioner.
Maria Knoll, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.
MEMORANDUM OPINION
August 11 ,2011
Wilmington, Delaware
R~
,District Judge
I. INTRODUCTION
Currently before the court is Anthony Morris' ("petitioner") application for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. (0.1. 2) For the reasons that follow,
the court will grant the State's motion to dismiss petitioner's § 2254 application as time
barred by the one-year period of limitations prescribed in 28 U.S.C. § 2244(d)(1).
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 1999, a Delaware Superior Court jury convicted petitioner of delivery
of cocaine, resisting arrest, and disorderly conduct. (0.1. 1, Exh. A at Dkt. Entry No. 22)
He was sentenced to a total of eight (8) years six (6) months imprisonment, suspended
after one (1) year and successful completion of boot camp for varying levels of
probation. (0.1. 1, Exh. B) Petitioner did not file a direct appeal.
The record reveals that petitioner filled a motion for modification of sentence on
October 15, 1999, which the Superior Court denied on October 28, 1999. (0.1. 1, Exh.
A, Dkt. Entry Nos. 31, 33) Petitioner filed a second motion for modification of sentence
on December 14,1999, which the Superior Court denied on December 20,1999. (0.1.
1, Exh. A, Dkt. Entry Nos. 38, 39) On October 3, 2000, petitioner filed a motion for
reduction/modification of sentence, which was denied on October 26. 2000. (0.1. 1,
Exh. A, Dkt. Entry Nos. 42, 45)
In 2002, petitioner was convicted of a separate set of drug charges and
sentenced to fifteen (15) years at Level V. See Morris v. State, 832 A.2d 1251 (Table),
2003 WL 22097056 (Del. Sept. 8, 2003). As a result of the 2002 conviction, petitioner
was also found to have violated his probation in the instant case, for which he was
sentenced to seven (7) years at Level V (with credit for two (2) years and 142 days
previously served), suspended after three (3) years for probation. (D.1. 1 at 1)
On December 29, 2009, petitioner filed a motion for post-conviction relief
pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). State v.
Morris, 2010 WL 334858 (Del. Super. Jan. 5, 2010). The Superior Court denied the
Rule 61 motion, and the Delaware Supreme Court affirmed that decision on June 1,
2010. See Morris v. State, 996 A.2d 794 (Table), 2010 WL 2183492 (Del. June 1,
2010).
Petitioner's pending § 2254 application, dated October 11, 2010, challenges his
1999 conviction, and asserts the following two claims: (1) the Delaware Superior Court
lacked jurisdiction to convict him because his Family Court amenability hearing was
improperly waived; and (2) defense counsel provided ineffective assistance with respect
to his amenability hearing waiver. In lieu of an answer, the State filed a motion to
dismiss the application as time-barred under 28 U.S.C. § 2244(d). (D.1. 13) Petitioner
filed a motion asking the court to strike the State's motion to dismiss, and a motion for a
default judgment. (D.1. 15; D.1. 16) 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;
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(8) 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 October 2010, 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 )(8) or (C). Therefore, the one-year period of limitations
began to run when petitioner's conviction became final under § 2244(d)(1 )(A).
Pursuant to § 2244(d)(1 )(A), if a state prisoner does not appeal a state court
judgment, the judgment of conviction becomes final, and the one-year period begins to
run, upon expiration of the time period allowed for seeking direct review. 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). Here, the Delaware Superior Court sentenced petitioner on August
13, 1999, and he did not appeal. Therefore, petitioner's conviction became final on
September 13, 1999. 1 See Del. Supr. Ct. R. 6(a)(ii)(establishing a 30 day period for
timely filing a notice of appeal). Accordingly, to comply with the one-year limitations
period, petitioner had to file his § 2254 application by September 13,2000. See Wilson
18ecause last day of the appeal period actually fell on Sunday, September 12,
1999, the appeal period extended through Monday, September 13, 1999. Del. Supr.
Ct. R. 11 (a).
3
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).
Petitioner did not file the instant application until October 11, 2010,2 more than
ten (10) years after the expiration of AEDPA's limitations period. Thus, the instant
habeas application is time-barred and should be dismissed, unless the time period can
be statutorily or equitably tolled. See Holland V. Florida, 130 S.Ct. 2549 (2010); Jones,
195 F.3d at 158. 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,
including any post-conviction appeals, provided that the motion was filed and pending
before the expiration of AEDPA's limitations period. See Swartz
417,424-25 (3d Cir. 2000); Price
V.
V.
Meyers, 204 F.3d
Taylor, 2002 WL 31107363, at *2 (D. Del. Sept.
23, 2002). In this case, when petitioner filed his first motion for modification of
sentence on October 15, 1999, thirty one (31) days of the limitations period had already
lapsed. 3 The Superior Court denied the motion on October 28,1999, and petitioner did
2Pursuant 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). Applying this
rule to the instant case, the court adopts October 11, 2010 as the date of filing because
that is the date on petitioner's application.
31n the past, the court would have followed the analysis articulated by the Third
Circuit in Hartmann V. Carroll, 492 F.3d 478 (3d Cir. 2007) requiring a determination as
to whether petitioner's three motions for modification and/or reduction of sentence were
filed pursuant to Rule 35(a) or Rule 35(b); according to Hartmann, a Rule 35(a) motion
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not appeal that decision. Therefore, after including the thirty (30) day appeal period in
the tolling calculation, the first motion for modification of sentence tolled the limitations
period through November 29, 1999. 4
The limitations clock started to run again on November 30, 1999, and ran
another fourteen (14) days until petitioner filed his second motion for modification of
sentence on December 14,1999. The Superior Court denied the motion on December
20, 1999, and petitioner did not appeal that decision. Therefore, after including the
thirty (30) day appeal period in the tolling calculation, the second motion for
alleging some illegality in sentencing or conviction triggers statutory tolling under §
2244(d)(2), whereas a Rule 35(b) motion seeking a modification of sentence purely on
leniency grounds does not trigger statutory tolling. Id. at 482. However, the United
States Supreme Court recently held that a post-conviction motion to reduce sentence
filed under Rhode Island law triggers statutory tolling under § 2244(d)(2) because the
motion is not part of the direct review process and requires the state court to reexamine
the appropriateness of the prisoner's sentence. Wall v. Kohli, _ U.S. _, 131 S.Ct.
1278, 1286-87 (2011). In reaching this decision, the Supreme Court defined the term
"collateral review" as "judicial reexamination of a judgment or claim in a proceeding
outside of the direct review process." Id. at 1285. The Wall Court also expressly
rejected the type of bifurcated analysis articulated by the Third Circuit in Hartmann (and
by other circuit courts) requiring a habeas court to separate motions to reduce sentence
into two categories: "those that challenge a sentence on legal grounds and those that
merely ask for leniency." Wall, 131 S.Ct. at 1288.
The court notes that the Third Circuit has not had an opportunity to review
Delaware's sentence modification/reduction of sentence procedure after Wall. In turn,
the court's knowledge regarding petitioner's motions for modification and/or reduction of
sentence is limited to the barebones information stated on the Delaware Superior Court
Criminal Docket, because the State's motion to dismiss neglects to mention the
existence of these motions. Nevertheless, after applying the reasoning set forth in
Wall, and given the fact that the application is untimely with or without any statutory
tolling triggered by petitioner's three motions, the court will assume that the three
motions trigger statutory tolling.
4The last day of the thirty (30) day appeal period fell on Saturday, November 27,
1999. Therefore, the appeal period extended through Monday, November 29, 1999.
See Del. Supr. Ct. R. 11 (a).
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modification of sentence tolled the limitations period through January 19, 2000.
The limitations clock started to run again on January 20, 2000, and ran a total of
255 days until petitioner filed his third motion for reduction/modification of sentence on
October 3, 2000. The Superior Court denied the third motion on October 26, 2000, and
petitioner did not appeal that decision. Consequently, the third motion tolled the
limitations period through November 27, 2000. 5 The limitations clock started to run
again on November 28, 2000, and ran without interruption until it expired on January
31, 2001. 6 Accordingly, the application is time-barred unless equitable tolling is
available.
B. Equitable tolling
AEDPA's limitations period may also be tolled for equitable reasons. Holland,
130 S.Ct. 2549. 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;"? mere
excusable neglect is insufficient. Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004).
Consistent with these principles, the Third Circuit has identified three situations in which
equitable tolling may be warranted:
5The last day of the thirty (30) day appeal period fell on Saturday, November 25,
2000. Therefore, the appeal period extended through Monday, November 27,2000.
See Del. Supr. Ct. R. 11 (a).
6Consequently, petitioner's Rule 61 motion, filed on December 29, 2009, has no
statutory tolling effect because it was filed well-after the expiration of AEDPA's one-year
limitations period.
?Holland, 130 S.Ct. at 2562
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(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; Miller v. New Jersey State Dept. of Corr., 145 F.3d 616 (3d
Cir. 1998).
The court concludes that equitable tolling is not warranted in this case.
Petitioner does not allege, and the court cannot discern, that he was actively misled,
that he timely but mistakenly asserted his rights in the wrong forum, or that any
extraordinary circumstances prevented him from filing the instant application in a timely
fashion. Moreover, to the extent petitioner made a mistake or miscalculation regarding
the one-year filing period, that mistake does not warrant equitably tolling the limitations
period. See Simpson v. Snyder, 2002 WL 1000094, at *3 (D. Del. May 14, 2002).
Accordingly, the court will dismiss petitioner's habeas application as untimely.
C. Pending Motions
Petitioner has filed a motion asking the court to strike the State's motion to
dismiss, contending that the State was required to file an answer. (D.I. 15) Petitioner
has also filed a motion requesting a default judgment because the State filed a motion
to dismiss in lieu of an answer. (D.1. 16) Having already concluded that the application
is time-barred, the court will deny these motions as moot.
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
(2008). A certificate of appealability is appropriate when a petitioner makes a
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"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 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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