Cabrera v. Phelps et al
Filing
23
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/14/14. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LUIS CABRERA,
Petitioner,
Civ. Act. No. 11-119-LPS
V.
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
Edson Bostic. Federal Public Defender's Office, Wilmington, Delaware. Attorney for
Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.
MEMORANDUM OPINION
March 14, 2014
Wilmington, Delaware
1
Warden David Pierce replaced Warden Perry Phelps, an original party to this case. See Fed. R.
Civ. P. 25(d).
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U.S. District Judge:
INTRODUCTION
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.S.C. § 2254 ("Petition") filed by Petitioner Luis Cabrera ("Petitioner"). (D.I. .2) For the
reasons discussed, the Court will dismiss the Petition as time-barred by the limitations period
prescribed in 28 U.S.C. § 2244.
II.
BACKGROUND
On May 29, 1998, a Delaware Superior Court jury convicted Petitioner of felony murder,
intentional murder, first degree conspiracy, and first degree burglary. (D.I. 11 at 1) A penalty
phase hearing was held before the same jury in June 1998, which ended with the jury
recommending the death penalty by a vote of seven to five. See State v. Cabrera, 1999 WL
41630, at* 1 (Del. Super. Ct. Jan. 21, 1999). In January 1999, the Superior Court sentenced
Petitioner to two life sentences for the two murder convictions, and nine years of incarceration
for the remaining offenses. 2 The Delaware Supreme Court affirmed Petitioner's convictions and
sentence on direct appeal. See Cabrera v. State, 747 A.2d 543 (Del. 2000), overruled on other
grounds by Brooks v. State, 40 A.3d 346 (Del. 2012) (establishing new rule for accomplice
liability jury instructions).
On March 17, 2003, Petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied
in October 2003. Petitioner appealed, and the Delaware Supreme Court affirmed the Superior
Court's decision on April26, 2004. See Cabrera v. State, 856 A.2d 1066 (Table), 2004 WL
2
ln an unrelated case, Petitioner was found guilty of two counts of first degree murder (two
victims) and related offenses, and was sentenced to death. See Cabrera v. State, 840 A.2d 1256
(Del. 2004). Petitioner's capital habeas proceeding with respect to that case is presently pending
before this Court. See Cabrera v. Danberg, Civ. A. No. 11-784-LPS.
906552 (Del. Apr. 26, 2004). Petitioner filed a second Rule 61 motion in December 2005. In
the second Rule 61 motion, Petitioner argued that the Delaware Supreme Court's reinterpretaion
or clarification of Delaware's felony murder statute in Williams v. State, 818 A.2d 906 (Del.
2003), superseded by statute as stated in Comer v. State, 977 A.2d 334 (Del. 2009), made
retroactively applicable in Chao v. State, 931 A.3d 1000 (Del. 2007) ("Chao IF'), required that
Petitioner's conviction for felony murder be vacated because there was no proof that the murder
was committed "in furtherance of' the underlying burglary. After receiving the State's response,
the Superior Court appointed counsel to represent Petitioner in the post-conviction proceedings.
On August 22, 2008, the Superior Court granted Petitioner's Rule 61 motion and vacated his
conviction for felony murder on the basis that the Delaware Supreme Court's decision in Chao II
permitted Williams to be applied retroactively. See State v. Cabrera, 2008 WL 4868762 (Del.
Super. Ct. Aug. 22, 2008). Petitioner's convictions and sentences for first degree intentional
murder, first degree conspiracy, and first degree burglary remained as previously imposed. See
id. at *4. Petitioner did not appeal the Superior Court's decision.
Actingpro se, Petitioner filed a third Rule 61 motion on December 29, 2008, which the
Superior Court summarily denied on May 13, 2010. (D.I. 13, Del. Super. Ct. Crim. Dkt.) The
Delaware Supreme Court affirmed that denial on August 19, 2010, explicitly holding that the
claims raised in Petitioner's third Rule 61 motion were time-barred. See Cabrera v. State, 3
A.3d 1096 (Table), 2010 WL 3277556 (Del. Aug. 19, 2010).
Initially acting prose, Petitioner filed the instant§ 2254 Petition in this Court in
February 2011. (D.I. 2) His Petition asserts the following three interrelated ineffective
assistance of counsel claims: ( 1) trial counsel was ineffective for failing to raise a legal challenge
3
to the felony murder charge, because such a challenge would have been successful; (2) in the
absence of the felony murder charge counsel would have had no strategic rationale for not
requesting a jury instruction on second degree murder, the lesser included offense of first degree
intentional murder; and (3) appellate counsel was ineffective for failing to challenge the felony
murder conviction and the trial court's failure to charge the jury on second degree murder. (D.I.
20) The State filed an Answer, asserting that the Petition should be dismissed as time-barred.
(D.I. 11) Petitioner then filed a Motion to Appoint A Federal Public Defender, which was
granted. (D.I. 14; D.l. 15) Appointed counsel filed a Reply to the State's Answer, asserting
various arguments as to why the Court should conclude that the Petition is not time-barred. (D.I.
20)
III.
THE ONE YEAR STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") was signed into
law by the President on April 23, 1996. See 28 U.S.C. § 2244(d)( I). AEDPA prescribes a oneyear period oflimitations 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
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(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). AEDPA's limitations period is subject to statutory and equitable tolling.
See Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C.
§ 2244(d)(2) (statutory tolling).
IV.
DISCUSSION
Petitioner's § 2254 Petition, filed in February, 2011, is subject to the one-year limitations
period contained in§ 2244(d)(l). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 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 ninety days after the state appellate court's
decision. 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 Supreme Court affirmed Petitioner's
convictions and sentence on March 6, 2000, and Petitioner did not seek certiorari review.
Consequently, Petitioner's convictions became final on June 5, 2000. Applying the one-year
limitations period to that date, Petitioner had until June 5, 2001 to timely file his Petition. See
Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005) (holding that former Federal Rule of Civil
Procedure 6(a) and (e) applies to federal habeas petitions); Fed. R. Civ. P. 6(a)(1) (stating that
day of event that triggers period is excluded when computing time periods). Petitioner, however,
waited until February 2, 2011 3 to file the instant Petition- almost ten full years after the
expiration of the limitations period. Thus, the Petition is untimely, unless the limitations period
3
Pursuant to the prison mailbox rule, the Court adopts the date on the Petition (February 2, 2011)
as the date of filing. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003).
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starts on some other date pursuant to§ 2244(d)(1) or the limitations period can be statutorily or
equitably tolled. See Jones, 195 F.3d at 158.
Petitioner does not allege, and the Court cannot discern, any basis for triggering
2244(d)(l)(B) or (C). However, citing§ 2244(d)(1)(D), Petitioner does contend that the statute
oflimitations did not begin run until June 20, 2007, the date on which the Delaware Supreme
Court issued its decision in Chao II holding that the felony murder rule of Williams applies
retroactively. More specifically, Petitioner asserts he could not have discovered the factual
predicate of his argument that he should not have been convicted of felony murder under
Delaware law until Chao II was decided on June 20,2007.
As an initial matter, the Court disagrees with Petitioner's argument that Chao II
constitutes the factual predicate for his habeas claims and provides a later limitations starting
date of June 20, 2007 under § 2244(d)(l )(D). Significantly, this Court has previously held that
Chao II and Williams cannot establish a factual predicate for a petitioner's constitutional claims
if those decisions were not rendered in that particular petitioner's own litigation history. See
Taylor v. Phelps, 2013 WL 1319554 (D. Del. Mar. 28, 2013). Clearly, Chao II and Williams
were not decisions issued in Petitioner's own case history.
However, the Court does conclude that the Superior Court's August 22, 2008 decision
vacating Petitioner's felony murder conviction on the basis of Chao II and Williams provides a
later starting date under§ 2244(d)(l)(D). The Superior Court decision to vacate Petitioner's
felony murder conviction pursuant to Williams' felony murder rule was rendered in his own
litigation history and constitutes the "vital fact" underlying the three ineffective assistance of
counsel claims raised in the instant Petition. See Johnson v. United States, 544 U.S. 295 (2005)
6
(holding that notice of order vacating federal prisoner's prior state conviction used to enhance
federal sentence triggers AEDPA's one year limitations period, provided petitioner has shown
due diligence in seeking order); McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007) ("[T]he
'factual predicate' of a petitioner's claim constitutes the 'vital facts' underlying those claims.").
Applying the one-year limitation period to the August 22, 2008 decision date, Petitioner had
until August 22, 2009 to timely file the Petition. Petitioner's filing date of February 2, 2011 was
still approximately one and one-half years too late. Thus, the Petition must be dismissed as
time-barred, unless the limitations period can be statutorily or equitably tolled. The Court will
discuss each doctrine in turn.
A. Statutory Tolling
Pursuant to § 2244(d)(2), a properly filed state post-conviction motion tolls AEDP A's
limitations period during the time the action is pending in the state courts, including any postconviction appeals, provided that the motion was filed and pending before the expiration of
AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d 417,420-24 (3d Cir. 2000); Price
v. Taylor, 2002 WL 31107363, at *2 (D. Del. Sept. 23, 2002). A state post-conviction motion
that has been rejected by the state court as untimely is not "properly filed" within the meaning of
§ 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414, 417 (2005).
In this case, Petitioner filed his third Rule 61 motion on December 29, 2008, and the
Superior Court denied the motion on May 19, 2010. The Delaware Supreme Court affirmed the
Superior Court's decision on May August 19, 2010 after holding that the Rule 61 motion was
"clearly time-barred." Cabrera, 2010 WL 3277556, at *1. Given the Delaware Supreme
Court's explicit untimeliness ruling, Petitioner's third Rule 61 motion has no statutory tolling
7
effect. Therefore, the Petition must be dismissed as time-barred, unless equitable tolling is
applicable.
B. Equitable Tolling
AEDPA's limitations period may be tolled for equitable reasons in appropriate cases.
See Holland, 130 S.Ct. at 2560. 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;" 4 mere excusable neglect is
insufficient. Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004). Consistent with these
principles, the Third Circuit has specifically limited the equitable tolling of AEDP A'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.
Jones, 195 F.3d at 159; see also Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28,
2001).
Here, Petitioner asserts two arguments for equitably tolling the limitations period
following the grant ofhis second Rule 61 motion on August 22, 2008. 5 First, after noting that
Schlup v. Delo, 513 U.S. 298,315 (1995), permits actual innocence claims to provide a gateway
for federal review of procedurally defaulted claims, Petitioner contends that the same reasoning
Holland, 130 S.Ct. at 2562.
Having determined that the limitations period started to run on August 22, 2008, the Court will
not address Petitioner's argument for equitably tolling the limitations prior to March 2003.
4
5
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should permit his actual innocence of the felony murder charge to provide a basis for equitably
tolling the limitations period. Second, he contends that the limitations period should be tolled
because the attorneys representing him during his second Rule 61 proceeding failed to
supplement his second Rule 61 motion with the ineffective assistance of counsel claims
challenging his intentional murder conviction that he has raised in the pending Petition.
Neither of these arguments warrants equitable tolling. To begin, the Court notes that
neither the Supreme Court nor the Third Circuit have determined whether a credible claim of
actual innocence can equitably toll AEDP A's limitations period. See, e.g., Teagle v.
Diguglielmo, 336 F. App'x 209, 212-13 (3d Cir. 2009) (non-precedential); McKeever v. Warden
SCI-Graterford, 486 F.3d 81, 84 n.5 (3d Cir. 2007). Even if a petitioner's actual innocence can
warrant equitable tolling, such tolling is not justified in this case. The fact that Petitioner's
felony murder conviction was vacated on the basis of Williams' clarification of Delaware's
felony murder statute does not constitute "new reliable evidence" establishing that it is more
likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt
ofhis remaining conviction for first degree intentional murder. See Schlup, 513 U.S. at 324;
Teagle, 336 F. App'x. at 212-13. Additionally, even if his allegations could satisfy the Schlup
standard, Petitioner has failed to demonstrate that he exercised reasonable diligence in pursuing
the instant ineffective assistance of counsel claims which, in turn, are premised on his actual
innocence of felony murder. See Reed v. Harlow, 2011 WL 4914869 at *2 n.2 (3d Cir. Oct. 17,
2011) (non-precedential). Significantly, after the vacation of his felony murder conviction on
August 22, 2008, Petitioner waited almost three years before filing the instant Petition. For these
reasons, Petitioner's actual innocence of felony murder does not warrant equitable tolling.
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Petitioner's second argument for equitable tolling is equally unavailing. Petitioner
explains that he intended to supplement his second Rule 61 motion with the claims contained in
this Petition that address his remaining first degree intentional murder conviction, but that the
two attorneys who were appointed to represent him during the second Rule 61 proceeding never
responded to his letters or his attempts to communicate his wishes. Petitioner contends that this
abandonment/ineffective assistance amounts to an extraordinary circumstance for equitable
tolling purposes.
The Court is not persuaded. To begin, Petitioner states in his Supporting Memorandum
that he decided to "fight the language and [the Delaware state courts'] interpretation ofthe
felony murder statute" before attempting to proceed with a habeas corpus petition in federal
court. (D.I. 2 at 8) In addition, Petitioner clearly knew that counsel failed to include the instant
claims relating to his remaining convictions in his second Rule 61 motion no later than August
22, 2008, the date on which the Delaware Superior Court vacated his felony murder conviction.
However, instead of filing a§ 2254 petition containing the "excluded" ineffective assistance of
counsel claims after the Superior Court vacated his felony murder conviction on August 22,
2008, Petitioner chose to file a third Rule 61 motion in the Superior Court in December 2008.
Significantly, Petitioner does not explain, and the Court fails to understand, how counsels'
failure to include the "excluded" claims in the second Rule 61 motion prevented him from timely
filing a § 2254 petition raising those same "excluded" claims during the one year period
following the Superior Court's August 22, 2008 decision. To the extent Petitioner's untimely
filing of the Petition was the result of a miscalculation regarding the one-year filing period, or
due to his lack oflegal knowledge, it has been held that such mistakes do not warrant equitably
10
tolling the limitations period. See Taylor v. Carroll, 2004 WL 1151552, at *5-6 (D. Del. May
14, 2004). For all of these reasons, the Court concludes that the equitable tolling doctrine does
not apply in this case.
Accordingly, the Court will dismiss the Petition as untimely.
V.
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether
to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2). A
federal court denying a habeas petition on procedural grounds without reaching the underlying
constitutional claims 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. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that Petitioner's habeas Petition does not warrant relief because
it is time-barred. Reasonable jurists would not find this conclusion to be debatable.
Accordingly, the Court declines to issue a certificate of appealability.
VI.
CONCLUSION
For the reasons discussed, Petitioner's Application For A Writ Of Habeas Corpus
Pursuant To 28 U.S.C. § 2254 is DENIED. An appropriate Order will be entered.
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