Demby v. Phelps
MEMORANDUM OPINION - Signed by Judge Gregory M. Sleet on 3/25/14. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 11-29-GMS
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF
THE ST ATE OF DELA WARE,
Demetrius Demby. Pro se petitioner.
Gregory E. Smith, Delaware Department of Justice, Wilmington, Delaware. Counsel for
IWarden David Pierce replaced Warden Perry Phelps, an original party to this case. See Fed. R.
Civ. P. 2S(d).
Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner Demetrius Demby ("Demby"). (D.!. 1; D.I. 10) For the reasons
discussed, the court will deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The facts leading to Demby's arrest and conviction are as follows:
On April 15,2006, Demby and another person were traveling westbound on
Fourth Street. Two Wilmington police officers, driving in the opposite direction on
Fourth Street, saw that Demby was not wearing a seatbelt. The officers reversed
direction and began to follow him. Officer David Ledesma ran the license plate and
determined that the car was registered to Demby and that Demby had a suspended
license. Officer Ledesma later explained that they had planned to stop him regardless
because he was not wearing his seatbelt. At that time, one of the officers saw Demby
"make a movement towards the middle console" before coming to a complete stop four
Officer Ledesma approached the driver's side window and asked Demby for his
license, registration, and insurance. Demby told him that he was not sure whether his
license was suspended or not. After determining that Demby was driving the vehicle,
Officer Ledesma returned to his car and ran his name through DELJIS. He discovered
that Demby had outstanding capiases and his license had been suspended. The officers
arrested Demby and searched his vehicle incident to that arrest. The other officer,
Corporal Donald Cramer, found twenty one bags of a chunky white substance of what he
believed was crack cocaine. Demby waived his Miranda rights and admitted that the
drugs were his and that his passenger had nothing to do with them.
Demby v. State, 945 A.2d 593 (Table), 2008 WL 534273 (Del. Feb. 28, 2008). Corporal Cramer
field tested the drugs and determined them to be cocaine. The weight of the drugs and the
packaging was 4.9 grams. Id.
On May 30, 2006, Demby was indicted on charges of possession with intent to deliver
cocaine, maintaining a vehicle for keeping controlled substances, and driving without a seatbelt.
(D.!. 18) In September 2006, Demby filed a motion to suppress the drug evidence, which the
Superior Court denied after holding an evidentiary hearing. In April 2007, a Superior Court jury
convicted Demby of all charges. Demby was sentenced as an habitual offender to natural life at
Level V for the possession with intent to deliver cocaine conviction, and to one year at Level V,
suspended for one year at Level II, for the maintaining a vehicle conviction. A twenty-five
dollar fine was imposed for the seat belt charge. Id.
In March 2009, Demby filed a motion for post-conviction relief under Delaware Superior
Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 18) The Superior Court denied the Rule 61
motion on October 29,2009, and the Delaware Supreme Court affirmed that decision. See
Demby v. State, 11 A.3d 226 (Table), 2010 WL 5342969 (Del. Dec. 21, 2010).
GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
"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).
Pursuant to AEDP A, 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 given effect to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002).
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). AEDP A states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State; or
(8)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
28 U.S.C. § 2254(b)(l).
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, in a procedural
manner permitting the court to consider the claims on their merits. Bell v. Cone, 543 US. 447,
451 n.3 (2005); Castille v. Peoples, 489 US. 346, 351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F .3d at 160; Coleman
v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to
the state's highest court, but that court "clearly and expressly" refuses to review the merits ofthe
claim due to an independent and adequate state procedural rule, the claim is exhausted but
procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255,260-64
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage ofjustice will result if the court does not review the
claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cit. 1999); Coleman, 501 U.S. at 750
51. To demonstrate cause for a procedural default, a petitioner must show that "some objective
factor external to the defense impeded counsel's efforts to comply with the State's procedural
rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejUdice, a
petitioner must show "that [the errors at trial] worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner
demonstrates that failure to review the claim will result in a fundamental miscarriage ofjustice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218,224 (3d Cir.
200 I). A petitioner demonstrates a miscarriage ofjustice by showing a "constitutional violation
has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at
496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner must
present new reliable evidence
not presented at trial - that demonstrates "it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."
House v. Bell, 547 U.S. 518,537-38 (2005); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir.
C. Standard of Review
When a state's highest court has adjudicated a federal habeas claim on the merits,' the
federal court must review the claim under the deferential standard contained in 28 U.S.c.
§ 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the
state court's decision was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States," or the state
court's decision was an unreasonable determination of the facts based on the evidence adduced
in the trial. 28 U.S.c. § 2254(d)(l) & (2); see also Williams v. Taylor, 529 U.S. 362,412
(2000); Appel v. Horn, 250 F.3d 203,210 (3d Cir. 2001). This deferential standard of § 2254(d)
applies even "when a state court's order is unaccompanied by an opinion explaining the reasons
relief has been denied." Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011). As recently
explained by the Supreme Court, "it may be presumed that the state court adjudicated the claim
on the merits in the absence of any indication or state-law procedural principles to the contrary."
Finally, when reviewing a habeas claim 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,
250 F.3d at 210. This presumption of correctness applies to both explicit and implicit findings of
fact, and is only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. §
2254(e)(l); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537
U.S. 322,341 (2003)(stating that the clear and convincing standard in § 2254(e)(1) applies to
'A claim has been "adjudicated on the merits" for the purposes of28 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).
factual issues, whereas the unreasonable application standard of § 2254( d)(2) applies to factual
Demby asserts the following eight grounds for relief: (l) the drug evidence should not
have been admitted at trial because it was not authenticated and the State failed to establish an
adequate chain of custody; (2) the trial court should have suppressed evidence unrelated to the
basis for the motor vehicle stop; (3) the attorneys representing Demby during the suppression
hearing and direct appeal provided ineffective assistance; (4) trial counsel improperly
represented Demby while operating under a conflict of interest; (5) Demby was not Mirandized
before he told the police that he owned the drugs found during the vehicle stop; (6) all African
American jurors were improperly excluded during the jury selection; (7) actual innocence; and
(8) the arresting officer committed perjury by testifying that Demby admitted ownership of the
drugs. The State contends that the court should deny the petition in its entirety because claims
one and two assert state law issues that are not cognizable on federal habeas review, claim three
fails to warrant relief under § 2254(d), and claims four, five, six, and eight are procedurally
barred. The State does not address claim seven as an independent argument.
A. Claim One: Evidentiary Error
In claim one, Demby contends that the trial court should not have admitted the drugs into
evidence because the State failed to establish a chain of custody and failed to authenticate the
drugs as required by Delaware law. Notably, Demby does not contend that this alleged state
evidentiary error violated his federal constitutional rights.
It is well-established that "[s]tate courts are the ultimate expositors of state law,'" and
claims based on errors of state law are not cognizable on habeas review. Estelle v. McGuire, 502
U.S. 62,67-68 (1991). Accordingly, the court will deny claim one for failing to assert a proper
basis for federal habeas relief.
B. Claim Two: Illegal Search and Seizure
In claim two, Demby contends that the trial court wrongfully denied his motion to
suppress the drug evidence that was seized when the police stopped his vehicle. Demby asserts
that the police violated his federal and state constitutional protections against unreasonable
searches and seizures because they stopped him on the pretext of a motor vehicle violation when
their intent was to conduct a non-traffic related investigation.
The State contends that claim two asserts an issue of state law that is not cognizable on
federal habeas review. While the court agrees that claim two does not present a proper issue for
federal habeas review, the reason for this conclusion is not because the claim asserts an issue of
state law but, rather, because the claim asserts a violation of Demby's Fourth Amendment rights.
Pursuant to Stone v. Powell, 428 U.S. 465, 494 (1976), a federal habeas court cannot review a
Fourth Amendment claim if the petitioner had a full and fair opportunity to litigate the claim in
the state courts. ld.; see also Wright v. West, 505 U.S. 277,293 (1992). A petitioner is
considered to have had a full and fair opportunity to litigate such claims if the state has an
available mechanism for suppressing evidence seized in or tainted by an illegal search or seizure,
irrespective of whether the petitioner actually availed himself of that mechanism. See Us. ex
ref. Hickey v. Jeifes, 571 F.2d 762, 766 (3d Cir. 1980); Boyd v. Mintz, 631 F.2d 247, 250 (3d
'Mullaneyv. Wilbur, 421 U.S. 684, 691 (1975).
Cir. 1980). Conversely, a petitioner has not had a full and fair opportunity to litigate a Fourth
Amendment claim, and therefore, avoids the Stone bar, if the state system contains a structural
defect that prevented the state court from fully and fairly hearing that Fourth Amendment
argument. Marshall v. Hendricks, 307 F.3d 36,82 (3d Cir. 2002).
Here, the record reveals that Demby had a full and fair opportunity to litigate his Fourth
Amendment claim. He filed a pre-trial motion to suppress pursuant to Rule 41 of the Delaware
Superior Court Rules of Criminal Procedure, which the Superior Court denied after a hearing.
He then filed a direct appeal challenging that decision, and the Delaware Supreme Court
affirmed the Superior Court's judgment. To the extent Demby contends that the Delaware
Supreme Court erred in its decision, the issue as to whether a state court correctly denied a
suppression motion is irrelevant when determining if the petitioner had a "full and fair
opportunity" to litigate the claim. See Marshall, 307 F.3d at 82 ("an erroneous or summary
resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar.").
Accordingly, the court will deny claim two as barred from federal habeas review.
C. Claim Three: Ineffective Assistance of Counsel
Demby was represented by three different attorneys during his criminal proceeding. In
claim three, Demby contends that the attorney who represented him during the suppression
hearing was ineffective for failing to call his uncle as a witness and also for failing to get the
drug evidence suppressed. Claim three also alleges that the attorney who represented Demby on
direct appeal was ineffective for failing to raise the following arguments: (1) Demby's statement
to police was obtained in violation of his Miranda rights; (2) the State violated Batson v.
Kentucky,476 U.S. 79 (1986) by improperly using its peremptory challenges to exclude African
Americans from the jury pool; (3) the attorney representing Demby during the suppression
hearing provided ineffective assistance; and (4) a police officer committed perjury by testifying
that Demby admitted owning the drugs found in the car.
As an initial matter, the court notes Demby never presented his ineffective assistance
allegations concerning appellate counsel to the Delaware courts in his Rule 61 proceeding.
Demby also did not present in his Rule 61 proceeding his complaint that the attorney
representing him during the suppression hearing should have called his uncle as a witness.
Demby does not provide any cause for this default, and he also fails to demonstrate that the
merits of these allegations must be reviewed in order to avoid a miscarriage ofjustice.
Accordingly, the court will deny as procedurally barred Demby's allegations regarding appellate
counsel and his contention regarding counsel's failure to call his uncle as a witness during the
Demby's Rule 61 motion did, however, contain the remaining instant allegation that the
attorney who represented him during the suppression hearing was ineffective because he did not
succeed in getting the evidence suppressed. Both the Superior Court and the Delaware Supreme
Court denied this allegation as meritless. As such, habeas relief will only be warranted if the
Delaware Supreme Court's denial of this allegation was either contrary to, or an unreasonable
application of, clearly established federal law.
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S.
668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first
Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an
objeqtive standard of reasonableness," with reasonableness being judged under professional
norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the
second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that,
but for counsel's error the result would have been different." Id. at 687-96. A reasonable
probability is a "probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissaL See
Wells v. Petsock, 941 F.2d 253,259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885,891-92
(3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding and
leads to a "strong presumption that the representation was professionally reasonable."
Strickland, 466 U.S. at 689.
Here, the Delaware Supreme Court specifically applied the Strickland standard when it
affirmed the Superior Court's denial of Demby's ineffective assistance allegation regarding the
attorney who represented him during the suppression hearing. Therefore, the Delaware Supreme
Court's decision was not contrary to clearly established federal law. See Williams, 529 U.S. at
406 ("[A] run-of-the-mill state-court decision applying the correct legal rule from [Supreme
Court] cases to the facts of a prisoner's case [does] not fit comfortably within § 2254(d)(l)'s
'contrary to' clause").
The court's inquiry is not over, however, because it must also determine ifthe Delaware
Supreme Court reasonably applied the Strickland standard to the facts of Demby's case. When
performing this inquiry, the court must review the Delaware Supreme Court's decision with
respect to Demby's ineffective assistance of counsel allegations through "doubly deferential"
lens. Harrington v. Richter, 131 S.Ct. 770, 788 (2011). Notably, "the question is not whether
counsel's actions were reasonable, [but rather], whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard." ld.
Contrary to Demby's belief, the fact that counsel filed a suppression motion, but did not
succeed, does not demonstrate that counsel's performance was deficient. Significantly, in his
Rule 61 affidavit, the attorney who represented Demby during the suppression hearing states that
he asked all pertinent questions, and made all the viable arguments, to advance Demby's position
regarding the constitutionality of the stop, detention, search, and seizure which resulted in the
discovery of the illegal drugs leading to his arrest. (0.1.20, App. to State's Ans. Br. in Demby v.
State, No.141,2010, at B-16) Demby's vague and unsupported contentions in this proceeding do
not overcome the strong presumption that counsel's representation was professionally
In short, after viewing the Delaware Supreme Court's denial of Demby's claim regarding
the attorney who represented him during the suppression hearing through the doubly deferential
lens applicable on habeas review, the court cannot conclude that the Delaware Supreme Court
unreasonably applied Strickland in reaching its decision. Accordingly, the court will deny the
remaining portion of claim three for failing to satisfy § 22S4(d).
D. Claims Four, Five, Six, and Eight: Procedurally Barred
In claim four, Demby contends that the trial court violated his constitutional rights by
permitting trial counsel to represent him while operating under a conflict of interest caused by
their hostile relationship. Claim five asserts that the police did not inform Demby of his
j\1iranda rights before he admitted ownership of the drugs found in the car. Claim six asserts
that the jury selection procedures violated the Equal Protection Clause and Batson v. Kentucky,
476 u.S. 79 (1986) because all African-American jurors were removed from the jury pool. And
finally, in claim eight, Demby contends that he never admitted ownership of the drugs found in
the car. As such, he argues that the arresting officer committed perjury when by testifying about
Demby did not present claims four, five, six, and eight to the Delaware Supreme Court on
direct appeal or on post-conviction appeal. At this juncture, Delaware Superior Court Criminal
Rule 61 (i)(1), (2) and (3) would bar Demby from presenting these issues to the Delaware state
courts in a new Rule 61 motion. See Lawrie v. Snyder, 9 F. Supp. 2d 428,453 (D. DeL
1998)(Rule 61 (i)(2) bars any ground for relief that was not asserted in a prior proceeding); Bright
v. Snyder, 218 F. Supp. 2d 573,580 (D. DeL 2002)(Rule 61(i)(3) would bar the Superior Court
from considering the claim because the petitioner did not raise the claim in the proceedings
leading to his conviction). Consequently, claims four, five, six, and eight are procedurally
defaulted, meaning that the court cannot review their merits absent a showing of cause and
prejudice, or that a miscarriage ofjustice will occur absent such review.
Demby attempts to establish cause for his procedural default by blaming appellate
counsel for not raising these four claims on direct appeal. However, as previously discussed,
Demby's argument regarding appellate counsel's ineffective assistance is itself procedurally
defaulted. See supra at 9. Therefore, appellate counsel's performance cannot excuse Demby's
procedural default. See Edwards v. Carpenter, 529 U.S. 446,453-54 (2000).
In the absence of cause, the court will not address the issue of prejudice. Demby's
default also cannot be excused under the miscarriage ofjustice exception to the procedural
default doctrine because he has failed to provide this court with any new reliable evidence of his
actual innocence. Given these circumstances, the court will deny claims four, five, six, and eight
as procedurally barred.
E. Claim Seven: Actual Innocence
In claim seven, Demby asserts habeas relief is warranted because he is actually innocent
of the charges against him. Although the Supreme Court has held that "a credible showing of
actual innocence may allow a prisoner to pursue his constitutional claims on the merits
notwithstanding the existence of a procedural [or timeliness] bar to relief," it has not resolved
whether a prisoner is entitled to habeas relief for a freestanding claim of actual innocence. See
McQuiggin v. Perkins, 133 S.Ct. 1924 (2013); see also Sistrunk v. Rozum, 674 F.3d 181, 187 n.2
(3d Cir. 2012). Notably, a petitioner can only satisfy the "credible showing" standard for such
gateway claims with new reliable evidence that was not presented at trial. House, 126 S.Ct. at
2077; Hubbard v. Pinchak, 378 F.3d 333,340 (3d Cir. 2004). Given the absence of clearly
settled federal law establishing the cognizability of a freestanding "actual innocence" claim, the
court will deny claim seven for failing to present a proper basis for habeas relief.
Nevertheless, even if the court were to consider the instant argument as presenting a
proper basis for federal habeas relief, the argument would be unavailing. In Herrera v. Collins,
506 U.S. 390,417 (1993), the Supreme Court raised the possibility of recognizing "actual
innocence" claims as cognizable issues in capital cases, but advised that the burden of showing
actual innocence in order to establish a freestanding claim would be higher than the burden to
make out a gateway claim of actual innocence. [d. In this case, Demby has not even satisfied
the burden for establishing a gateway claim of actual innocence because he has not proffered any
new reliable evidence of his actual innocence that was not presented at trial. Given these
circumstances, Demby's attempt to establish a freestanding claim of actual innocence necessarily
F. Motion for an Evidentiary Hearing or Attorney Affidavits
During the pendency of this proceeding, Demby filed a motion requesting the court to
either conduct an evidentiary hearing or require the three attorneys who represented him to file
affidavits responding to his ineffective assistance of counsel allegations. (0.1.29) Given the
court's conclusion that the instant petition does not warrant relief, the court will deny the motion
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 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 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 Demby's petition fails to warrant federal habeas relief, and
is persuaded that reasonable jurists would not find this conclusion to be debatable. Therefore,
the court will not issue a certificate of appealability_
For the reasons stated, Demby's petition for habeas relief pursuant to 28 U.S.C. § 2254 is
denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.
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