Gibbs v. Morgan et al
Filing
23
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 9/14/15. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
OTTO GIBBS,
Petitioner,
CONSOLIDATED
Civ. Act. No. 11-1216-LPS
Civ. Act. No. 11-1217 -LPS
v.
PHILIP MORGAN, Warden, and JOSEPH
R. BIDEN, III, Attorney General of the
State of Delaware,
Respondents.
Otto Gibbs. Pro se Petitioner.
Maria T. Knoll, Deputy Attorney General, Delaware Department ofJustice, Wilmington, Delaware.
Attorney for Respondents.
MEMORANDUM OPINION
September 14, 2015
Wilmington, Delaware
Pending before the Comt is an Application For A Writ Of Habeas Corpus Pmsuant To 28
U.S.c. § 2254 ("Petition") filed by Petitioner Otto Gibbs ("Petitioner"). (D.I. 2) For the reasons
discussed, the Court will dismiss the Petition and deny the relief requested.
I.
BACKGROUND
In 1997, a Delaware Superior Court jury convicted Petitioner of second degree unlawful
sexual intercomse. See Gibbs v. State, 723 A.2d 396 (fable), 1998 WL 977116, at *1 (DeL Nov. 19,
1998). The Superior Comt sentenced him to a total of twenty years in prison, suspended after
fifteen mandatory years, for varying levels of supervision. The Delaware Supreme Comt afftrmed
Petitioner's conviction and sentence on direct appeaL !d.
In 2010, prior to his release from prison, Petitioner was served notice of the State's intent to
designate him as a Tier III sex offender in accordance with the State of Delaware Sex Offender
Registration laws contained in DeL Code Ann. tit. 11, §§ 4120-4122,4336. See State v. Gibbs, 2011
WL 3792823, at *1 (DeL Super. Ct. Aug. 4, 2011). Petitioner filed a motion to dismiss and also
requested a continuance to obtain counsel. After conducting an evidentiary hearing on December
20,2010, a Superior Comt Commissioner denied Petitioner's continuance request and granted the
State's request to register Petitioner as a Tier III sex offender. !d. In February 2011, Petitioner ftled
another motion to dismiss, arguing that the Commissioner's ruling was unconstitutional. ld. On
March 8, 2011, the Superior Comt approved the Commissioner's ruling and designated Petitioner as
a Tier III Offender. !d. Petitioner did not appeal this decision.
On June 20, 2011, Petitioner was arrested for failing to properly register as a sex offender.
(D.1. 18 at 2; see a/so State v. Miller (aka Gibbs), ID No. 1105003940 Com'r Rep. & Rec. at 2 (Del.
Super. Ct. Dec. 4,2012» He pled guilty and was sentenced on October 11,2011 to sixty days of
incarceration with no supervision to follow. Petitioner was also ordered to properly register as a sex
offender. Petitioner did not appeal his conviction to the Delaware Supreme Court. (DJ. 18 at 2-3)
In November 2011, Petitioner ftled a motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion), which a Superior Court Commissioner returned
to Petitioner in February 2012 because it was unreadable. (DJ. 20, Del. Super. Ct. Crim. Dkt. Entry
Nos. 118, 122) Petitioner re-submitted his Rule 61 motion August 14, 2012, asserting that the
Superior Court denied his right to counsel when it denied his request for a continuance of the tier
designation hearing, and that the sex offender registration requirement violated the Due Process,
Double Jeopardy, and Ex Post Clauses. See Miller (aka Gibbs), ID No. 1105003940, Com'r Rep. &
Rec. at 2 (Del. Super. Ct. Dec. 4, 2012). Petitioner appealed the Commissioner's decision; the
Delaware Supreme Court dismissed the appeal for lack of jurisdiction pursuant to Delaware
Supreme Court Rule 29(b) because it does not have authority to hear an appeal directly from a
Report and Recommendation of a Superior Court Commissioner without intermediate review by a
Superior Court judge. See Gibbs v. State, 2013 WL 167200, at *1 (Del. Jan. 15,2013).
II.
GOVERNING LEGAL PRINCIPLES
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, fInality, and federalism." Woo4ford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDPA, a federal court may consider a habeas petition ftled 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
2
court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693
(2002); see also Woo4ford, 538 U.S. at 206.
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). AEDPA 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
(B)(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
applicant.
28 U.S.c. § 2254(b)(1).
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." 0 'Sullivan, 526 U.S. at 844-45; see also
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. See Lambert v. Blackwell, 134 F.3d 506, 513 (3d
Cir. 1997); Coverdale v. Stryder, 2000 WL 1897290, at *2 (D. Del. Dec. 22, 2000). "Fair presentation of
a claim means that the petitioner must present a federal claim's factual and legal substance to the
state courts in a manner that puts them on notice that a federal claim is being asserted." Hollowqy v.
Horn, 355 F.3d 707, 714 (3d Cir. 2004) (internal citations omitted).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160 (3d
3
Cir. 2000); see also Teague v. Lane, 489 U.S. 288, 297 -98 (1989). Although technically exhausted, such
claims are nonetheless procedurally defaulted . .lee 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 of the claim due to an
independent and adequate state procedural rule, the claim is exhausted but procedurally defaulted.
.lee Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255,260-64 (1989); Wen's, 228 F.3d at 192.
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 of justice will result if the court does not review the
claims. .lee McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman v. Thompson, 501 U.S. 722,
750-51 (1991). 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." Murrqy 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 of justice. .lee Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Wmgerv. Frank, 266 F.3d 218, 224 (3d Cit. 2001). A petitioner demonstrates a miscarriage of justice
by showing a "constitutional violation has probably resulted in the conviction of one who is actually
innocent." Murrqy, 477 U.S. at 496. Actual innocence means factual innocence, not legal
insufficiency, Bouslry v. United Jtatu, 523 U.S. 614,623 (1998), and is established if no reasonable
juror would have voted to find the petitioner guilty beyond a reasonable doubt, Jweger v. Chesnry, 294
F.3d 506, 522-24 (3d Cit. 2002). A petitioner establishes actual innocence by asserting "new reliable
4
evidence
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence
that was not presented at trial," showing that no reasonable juror would have
found the petitioner guilty beyond a reason~ble doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d
Cir.2(04).
III.
DISCUSSION
In this consolidated proceeding, 1 Petitioner essentially asserts two claims for relief: (1) he
was being unlawfully detained when he fued this proceeding because the Board of Parole had not yet
conducted a parole violation hearing; and (2) his sex offender tier hearing and designation as a Tier
III sex offender violates the Double Jeopardy, Ex POJt Facto, and Due Process Clauses of the
Constitution.
A. Claim One: Parole Hearing
Pursuant to Article III, Section 2, of the United States Constitution, federal courts can only
consider ongoing cases or controversies. LewiJ v. Continental Bank, Corp., 494 U.S. 472,477-78
(1990); United State.r v. KiHinger, 309 F.3d 179, 180 (3d Cit. 20(2) (ftnding that actual controversy
must exist during all stages of litigation). The "case-or-controversy requirement subsists through all
stages of federal judicial proceedings." LewiJ, 494 U.S. at 477 -78.
The record reveals that the Board of Parole held Petitioner's Violation of Parole hearing in
February 2012 and sentenced him. (D.l. 18 at 10) The only relief Petitioner requested with respect
to Claim One was that he be brought before the Board of Parole. As such, the Court will deny
Claim One as moot, because Petitioner has obtained his requested relief.
B. Claim Two: Whether Sex Offender Designation and
Registration Requirement Are Unconstitutional
lPetitioner filed two Petitions on the same day. See GibbJ v. Morgan, 11-1216-LPS and GibbJ v.
Morgan, 11-1217-LPS. The Court consolidated the cases because both Petitions challenged the
constitutionality of Petitioner's designation as a Tier III sex offender.
5
In Claim Two, Petitioner contends that his designation as a Tier III sex offender, and his
requirement to register as a sex offender, violate his constitutional rights Wlder the Due Process,
Post Facto, and Double Jeopardy Clauses. As an initial matter, the Court notes that other federal
courts addressing challenges to sex offender registration requirements have held that such challenges
are not cognizable habeas claims, because the sex offender registration requirement is a collateral
consequence of the original conviction and not a restraint on liberty. See Pettit v. Coleman, 2011 WL
4433162, at *9 (W.D. Pa. Sept. 21,2011); Williams v. Dist. AttomryAllegha'!.y Cnry., 2010 WL 4388073,
at *8 (W.D. Pa. Oct. 29, 2010) (collecting cases). Given the reasoning of these decisions, the Court
is not persuaded that Petitioner's argument regarding the Wlconstitutionality of his ongoing
registration requirement presents an issue cognizable on Federal habeas review.
Nevertheless, to the extent the Court should construe both of the arguments in Claim Two
as presenting an issue cognizable on federal habeas review, the Court concludes that the Claim must
be denied as procedurally barred. Although Petitioner presented the same constitutional arguments
contained in Claim Two on post-conviction appeal to the Delaware Supreme Court, the Delaware
Supreme Court dismissed the post-conviction appeal for lack of jurisdiction pursuant to Delaware
Supreme Court Rule 29(b). By denying Petitioner's premature post-conviction appeal Wlder
Delaware Supreme Court Rule 29(b), the Delaware Supreme Court articulated a "plain statement"
Wlder Hams v. Reed, 489 U.S. 255, 263-4 (1984), that its decision rested on state law gtoWlds. As a
result, Petitioner's attempt to appeal the denial of his Rule 61 motion did not exhaust state remedies
for Claim Two. Moreover, at this jWlcture, any attempt by Petitioner to obtain further state court
review via a new Rule 61 motion would be time-barred Wlder Rule 61 (i) (1 ), as well as procedurally
defaulted Wlder Rule 61 (i) (3). Given these circumstances, Claim Two is procedurally defaulted,
meaning that the Court cannot review the merits of the Claim absent a showing of cause and
prejudice, or that a miscarriage of justice will result absent such review.
Petitioner attempts to establish cause for his procedural default by asserting that he was
unconstitutionally denied representation by counsel during his 2010 Tier III designation hearing.
(D.l. 21) This Court disagrees. The Court has not found any Supreme Court case establishing a
Sixth Amendment right to counsel during sex offender classification and registration hearings? Nor
has Petitioner demonstrated that he had a Due Process right to counsel during his tier assessment
hearing. Delaware has not established a statutory right to representation by counsel in such
proceedings which, in tum, means that Petitioner did not have a liberty interest in such
representation.' Without such a liberty interest, Petitioner cannot demonstrate that the Due Process
trhe Sixth Amendment of the United States Constitution grants indigent defendants in criminal
prosecutions and direct appeals the right to counsel, but does not govem civil cases. See Turner v.
Rogers, 131 S.Ct. 2507, 2510 (2011). In Delaware, sex offender tier assessment hearings and
registration requirements are not punitive and are not considered to be criminal in nature. See
Helman v. Stat,. 784 A.2d 1058, 1066 (Del. 2001) (stating defendant's tier level assignment is based
solely on statute, which prohibits state court from exercising any discretion in assessing defendant's
risk).
3The Due Process Clause of the Fourteenth Amendment protects certain fundamental rights. See
White v. Napoleon, 897 F.2d 103, 111 (3d Cit. 1990). The first step in analyzing if a prisoner's Due
Process rights have been violated is detennining if the prisoner has been deprived of an existing
liberty or property interest. See Swarthout fl. Cooke, 562 U.S. 216, 131 S.Ct. 859,861 (2011). "A
liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word
'liberty', or it may arise from an expectation or interest created by state laws or policies." Wilkinson
v. Austin, 545 U.S. 209,221 (2005). If the prisoner has been deprived of a liberty interest, then the
Court must engage in a further inquiry to determine if the procedures followed by the State were
constitutionally sufficient. See Swarthout, 131 S.Ct. at 861.
The Court has not found any Supreme Court case holding that a convicted sex offender has
a liberty interest in being represented by counsel during a sex offender designation hearing. In tum,
Delaware has not created a statutory right to counsel in such proceedings, which means that
Petitioner did not have a liberty interest in being represented by counsel during his December 2010
tier assessment hearing. See, e.g., Wilkerson v. State, 897 A.2d 768 (fable), 2006 WL 822733, at *2
(M.ar. 28, 2006) ("[Tlhis Court has previously ruled that this 'compulsory approach' to sex offender
Clause established a right to counsel during his tier assessment hearing. For these reasons,
Petitioner's argument that the absence of representation constitutes cause for his default of Claim
Two is unavailing.
In the absence of cause, the Court will not address the issue of prejudice. Moreover,
Petitioner has not provided new reliable evidence of his actual innocence warranting the application
of the miscarriage of justice exception to the procedural default doctrine. Accordingly, the Court
will deny Claim Two as procedurally barred from Federal habeas review.
IV.
CERTIFICATE OF APPEALABILITY
A district court issuing a fmal order denying a § 2254 petition must also decide whether to
issue a certificate of appealability. See 3d Cit. 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
1).
McDaniel, 529 U.S. 473,
484 (2000).
The Court has concluded that Petitioner's habeas claims do not warrant relief. In the
Court's view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court declines to issue a certificate of appealability.
V.
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.
registration and community notification does not implicate any state or federal constitutional liberty
or privacy interest and does not constitute a violation of either due process or equal protection.").
As such, Petitioner has not demonstrated that he had a right to counsel originating from the Due
Process Clause.
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