Evans v. Johnson et al

Filing 27

MEMORANDUM OPINION - Signed by Judge Gregory M. Sleet on 6/3/14. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TYKE EVANS,
Petitioner,

v.
G.R. JOHNSON, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

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Civil Action No. 11-283-GMS

Tyke Evans. Pro se petitioner.
Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.

MEMORANDUM OPINION

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Wilmington,

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elaware

etitioner Tyke Evans ("Evans") has filed a petition for a writ of habeas corpus pursuant
to 28 U.S. C. § 2254 ("petition"). (D.I. 1; D.I. 12) The State filed an answer in opposition. (D.I.
21) For the following reasons, the court will deny the application as time-barred by the one-year
limitations period prescribed in 28 U.S.C. § 2244.

I.

BACKGROUND
On November 26, 2007, Evans was charged by information with second degree assault;

possession with intent to deliver cocaine; resisting arrest; maintaining a vehicle for keeping
controlled substances; criminal mischief; possession of cocaine; possession of drug
paraphernalia; possession of marijuana; third degree criminal trespass; and driving with a
suspended/revoked license. (D.I. 21 at 3) On April 15, 2008, Evans pled guilty to possession
with intent to deliver cocaine and resisting arrest. See Evans v. State, ID No. 0709009693,
Graves, J., Letter Order at 2-3 (Del. Super. Ct. Oct. 7, 2009). On June 13, 2008, the Superior
Court sentenced Evans to a non-suspended period of nine years in prison. 1 (D .I. 21 at 3) Evans
did not appeal his conviction or sentence.
On August 28, 2008, Evans filed motion for modification of sentence pursuant to
Delaware Superior Court Criminal Rule 35, which the Superior Court denied the very next day,
August 29, 2008. Evans did not appeal that decision. ld.
On April 9, 2009, Evans filed a pro se motion for post -conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). Id. The Superior Court
appointed counsel to represent Evans, and a two day evidentiary hearing was held. ld. On
1

More specifically, Evans was sentenced to two years at Level II for the resisting arrest
conviction, and twenty years at Level V for the PWITD cocaine conviction, suspended after
seven years and successful completion of Green Tree for one year at Level IV residential
substance abuse treatment, with the balance of the sentence suspended for eighteen months at
Level III aftercare.

October 7, 2009, the Superior Court denied Evans' Rule 61 motion, and the Delaware Supreme
Court affirmed that decision. See Evans v. State, 2010 WL 1692707 (Del. Apr. 27, 2010).
On April 4, 2011, Evans filed the instant habeas petition, and simultaneously moved to
stay the proceeding. (D.I. 1) On June 14, 2011, pursuant to the selection indicated on Evans'
AEDPA election form, the court granted Evans' request to voluntarily withdraw his petition.
(D.I. 9) The court also denied his motion to stay the proceeding as moot. !d. Evans filed a
motion for reconsideration of the decision to deny the stay on June 24, 2011. (D.I. 10) On July
14, 2011, after construing the reconsideration motion as a motion to reopen the case, the court
reopened the case. The court permitted Evans to file an amended habeas petition, and denied his
request to stay the proceeding. (D.I. 11) Evans filed an amendment to his petition on August 11,
2011, stating he wished to proceed with the claims in his original petition. (D.I. 12)
Evans' petition asserts the following four grounds for relief: (1) defense counsel provided
ineffective assistance by forging plea agreement forms after Evans had signed them; (2) defense
counsel was ineffective for failing to file a motion to suppress; (3) post-conviction appellate
counsel provide ineffective assistance on post-conviction appeal by failing to obtain a new plea
bargain; and (4) post-conviction appellate counsel was ineffective for not raising a claim
pursuant to Arizona v. Gant, 556 U.S. 332 (2009).

II.

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, and habeas petitions filed in federal courts after this date
must comply with AEDPA's requirements. See generally Lindh v. Murphy, 521 U.S. 320, 336
(1997). AEDPA prescribes a one-year period oflimitations for the filing of habeas petitions by
state prisoners, which begins to run from the latest of:
2

(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 ofthe 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)(l).
Evans' petition, filed in 2011, is subject to the one-year limitations period contained in§
2244(d)(l). See Lindh, 521 U.S. at 336. Evans does not allege, and the court does not discern,
any facts triggering the application of§ 2244(d)(l)(B), (C), or (D). Thus, the one-year period of
limitations in this case began to run when Evans' conviction became final under

§ 2244(d)(l )(A).
Pursuant to § 2244( d)(l )(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 Evans on June 13, 2008, and he did not appeal. Therefore, Evans'
conviction became final on July 14, 2008. 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, Evans had to file his§ 2254 petition by July 14, 2009. See Wilson v. Beard, 426 F.3d
653 (3d Cir. 2005)(holding that former Federal Rule of Civil Procedure 6( a), (e) applies to
federal habeas petitions).
3

Evans did not file his habeas petition until March 29, 20 II ,2 almost two full years after
the expiration of AEDPA' s statute of limitations. Thus, the petition is time-barred, unless the
limitations period can be statutorily or equitably tolled. See Holland v. Florida, 560 U.S. 631,
645 (2010)(equitable tolling); 28 U.S.C. § 2244(d)(2)(statutory tolling). The court will discuss
each doctrine in turn.
A. Statutory Tolling
Pursuant to § 2244( d)(2), a properly filed application for state collateral review tolls
AEDP A's limitations period during the time the application is pending in the state courts,
including any post-conviction appeals, provided that the application is filed during AEDPA's
one-year limitations period. Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000). However,
the limitations period is not tolled during the ninety-days a petitioner has to file a petition for a
writ of certiorari in the United States Supreme Court regarding a judgment denying a state postconviction motion. See Stokes v. Dist. Attorney of Philadelphia, 247 F.3d 539, 542 (3d Cir.
2001).
On August 28, 2008, Evans filed a Rule 35 motion for modification of sentence. At this
juncture, forty- five days of AEDP A's limitations period had already expired. The Superior
Court denied the Rule 35 motion on August 29, 2008, and Evans did not appeal that decision.
Thus, the Rule 35 motion tolled the limitations period from August 28, 2008 through September
29, 2008.

2

Pursuant to the prisoner mailbox rule, the court adopts the date on the petition, March 29, 2011,
as the filing date. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003)(the date on
which a prisoner transmitted documents to prison authorities for mailing is to be considered the
actual filing date).
4

The limitations clock started to run on September 30, 2008, and ran another 190 days
until Evans filed his Rule 61 motion on April 9, 2009. At this point, a total of235 days of
AEDPA's limitations period had lapsed. The Rule 61 motion tolled the limitations period from
April 9, 2009 through April27, 2010, the date on which the Delaware Supreme Court affirmed
the Superior Court's denial ofhis Rule 61 motion. The limitations clock started to run again on
April 30, 2010, and ran the remaining 130 days until the limitations expired on September 7,
2010.
Thus, even after accounting for the statutory triggered by Evans' Rule 35 and Rule 61
motions, the instant petition was untimely. Accordingly, the instant petition must be dismissed
as time-barred, unless equitable tolling applies.

B. Equitable Tolling
The one-year limitations period may be tolled for equitable reasons in rare circumstances
when the petitioner demonstrates "(1) that he has been pursuing his rights diligently, and (2)
some extraordinary circumstance stood in his way and prevented timely filing." Holland, 560
U.S. at 648-49 (emphasis added). Equitable tolling is not available where the late filing is due to
the petitioner's excusable neglect. Id; Miller v. New Jersey State Dept. ofCorr., 145 F.3d 616,
618-19 (3d Cir. 1998). Consistent with these principles, the Third Circuit has explained that
equitable tolling of AEDP A's limitations period may be appropriate in 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; Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001).
5

The Supreme Court has recognized that an attorney's egregious error or neglect may
constitute an extraordinary circumstance for equitable tolling purposes. See Holland, 560 U.S. at
636-653. An "egregious error" includes instances where an attorney fails to file an appeal after
an explicit request from the petitioner, 5 "affirmatively deceives the petitioner about filing a direct
appeal," or "persistently neglects the petitioner's case." Schlueter v. Varner, 384 F.3d 69, 76-77
(3d Cir. 2004). Yet, in order for a petitioner to "obtain relief [through equitable tolling], there
must be a causal connection, or nexus, between the extraordinary circumstances he faced and the
petitioner's failure to file a timely federal petition." Ross v. Varano, 712 F.3d 784, 803 (3d Cir.
2013). Specifically, "ifthe person seeking equitable tolling has not exercised reasonable
diligence in attempting to file after the extraordinary circumstances began, the link of causation
between the extraordinary circumstances and the failure to file is broken, and the extraordinary
circumstances therefore did not prevent timely filing." Brown v. Shannon, 322 F.3d 768, 773 (3d
Cir. 2003). The burden is on the petitioner to prove that he has been reasonably diligent in
pursuing his rights. See Urcinoli v. Cathel, 546 F.3d 269, 277 (3d Cir. 2008).
In this case, Evans asserts that the limitations period should be equitably tolled because
defense counsel failed to file a direct appeal. However, Evans does not contend, and nothing in
the record indicates, that he asked counsel to file a direct appeal. There is also nothing to suggest
or indicate that counsel affirmatively misled Evans about filing a direct appeal. Consequently,
the court cannot conclude that counsel's conduct was so egregious as to constitute an
extraordinary circumstance for equitable tolling purposes.

5

See Velazquez V. Grace, 277 F. App'x 258 (3d Cir. 2008).
6

Additionally, Evans has failed to demonstrate how defense counsel's failure to file a
direct appeal actually prevented him from filing a habeas petition before the expiration of
AEDPA's limitations period. As such, he has not shown the requisite causal relationship
between defense counsel's conduct and Evans' failure to timely file the instant petition.
And finally, to the extent Evans' untimely filing was the result of a miscalculation
regarding the one-year filing period, such mistakes do not warrant equitably 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 doctrine of equitable tolling is not
available to Evans on the facts he has presented. Accordingly, the court will dismiss the petition
as time-barred. 6

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 certificate of appealability. See 3d Cir. L.A.R. 22.2 (20 11 ). 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
6

The court's conclusion that the instant application is time-barred obviates the need to discuss the
State's alternate reasons for denying the petition.
7

The court has concluded that Evans' petition filed pursuant to 28 U.S.C. § 2254 is timebarred. The court is persuaded that reasonable jurists would not find this conclusion to be
debatable. Therefore, the court will not issue a certificate of appealability.

IV.

CONCLUSION
For the reasons discussed, the court will deny as time-barred Evans' petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254.
An appropriate order will be entered.

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