Hunter v. Johnson et al
MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 3/28/13. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EL WOOD HUNTER,
G.R. JOHNSON, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELA WARE,
Civil Action No. 12-286-GMS
Elwood Hunter. Pro se petitioner.
James T. Wakley. Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.
Pending before the court is an application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 ("petition") (D.L I) filed by petitioner Elwood Hunter ("Hunter"). (D.L 1) The
State has filed a motion to dismiss the petition as time-barred by the one-year limitations period
prescribed in 28 U.S.C. § 2244. (DJ. 12) For the reasons that follow, the court will grant the
State's motion to dismiss the petition.
On February 2,2007, a Delaware Superior Court jury convicted Hunter of possession
with intent to deliver heroin and use of a vehicle for keeping a controlled substance. (D.L 12)
Hunter was sentenced as a habitual offender to life imprisonment plus one year and six months at
Level V. ld. The Delaware Supreme Court affirmed Hunter's convictions and sentences on
direct appeal. Hunter v. State, 945 A.2d 594 (Table), 2008 WL 625566 (Del. Mar. 10,2008).
On March 6,2009, Hunter filed a motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the Rule 61
motion on August 20,2009. See Hunter v. State, 16 A3d 938 (Table), 2011 WL 1135129 (Del.
Mar. 28, 2011). Hunter filed a notice of appeal from that decision on March 1, 2011, which the
Delaware Supreme Court dismissed as untimely on March 28, 2011. Id.
A. 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 habeas petitions filed in federal courts after this date
must comply with the 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:
(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
(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).
Hunter's petition, docketed in March 2012, is subject to the one-year limitations period
contained in § 2244(d)(1). See Lindh, 521 U.S. at 336. Hunter does not allege, and the court
does not discern, any facts triggering the application of § 2244(d)(1)(B), (C), or (D). Thus, the
one-year period oflimitations in this case began to run when Hunter's conviction became final
under § 2244(d)(I)(A).
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). In this case, the Delaware Supreme Court
affirmed Hunter's convictions and sentences on March 10,2008, and he did not file a petition for
a writ of certiorari in the United States Supreme Court. Consequently, his convictions became
final for the purposes of § 2244(d)(1)(A) on June 9, 2008. Accordingly, to comply with the oneyear limitations period, Hunter had to file his § 2254 petition by June 9, 2009. See Wilson v.
Beard, 426 F.3d 653 (3d CiT. 2005)(holding that Federal Rule of Civil Procedure 6(a), (e) applies
to federal habeas petitions).
Hunter did not tile his habeas petition until February 28, 2012,2 three 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, _ U.S. _, 130
S.Ct. 2549,2560 (20l0)(equitable tolling); 28 U.S.c. § 2244(d)(2)(statutory tolling). The court
will discuss each doctrine in tum.
B. Statutory Tolling
Pursuant to § 2244( d)(2), a properly filed application for state collateral review tolls
AEDPA'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). In this
case, Hunter filed his Rule 61 motion on March 6, 2009, and it was denied on August 20,2009.
Because Hunter waited over two years to file a notice of appeal in the Delaware Supreme Court,
his post-conviction appeal was dismissed as untimely. See Hunter, 2011 WL 1135129, at *1. In
2Pursuant to the prisoner mailbox rule, the court adopts as the filing date the date on which
Hunter signed the petition: February 28,2012. 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),
these circumstances, the Rule 61 motion tolls the limitations period from March 6, 2009 through
September 21, 2009, the date on which the thirty-day appeal period expired. I
When Hunter filed his Rule 61 motion on March 6, 2009, 269 days of the limitations
period had already lapsed. Once the tolling from the Rule 61 motion ended on September 21,
2009, the limitations clock started to run again on September 22,2009, and continued to run the
remaining ninety-six days without interruption until the limitations period expired on December
27,2009. Accordingly, the petition must be dismissed as time-barred, unless equitable tolling is
C. 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, 130
S.Ct. at 2562 (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. a/Carr., 145 F.3d 616,
618-19 (3d Cir. 1998). Consistent with these principles, the Third Circuit has explained that
equitable tolling of AEDPA's limitations period may be appropriate in the following
(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;
(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).
IThe thirty-day period actually ended on September 20,2009, which was a Sunday.
Consequently, the appeal period was extended through the end ofthe day Monday, September
21, 2009. Del. Supr. Ct. R. 6.
Here, Hunter appears to ask the court to equitably toll the limitations period because the
Superior Court did not timely advise him that it had ruled upon his Rule 61 motion. However,
when the Delaware Supreme Court denied Hunter's post-conviction appeal as untimely, it
specifically found that Hunter had offered no evidence that the more than two year delay in filing
his notice of appeal was due to an error by the trial court or court related personnel. See Hunter,
2011 WL 1135129 at ~ 4. Hunter has not offered any other cause for his failure to timely file the
instant petition. Thus, Hunter has failed to demonstrate that some extraordinary circumstance
prevented him from complying with AEDPA's one-year filing deadline.
In turn, Hunter has failed to demonstrate that he exercised reasonable diligence in
pursuing his claims. For instance, he waited more than two years to file a notice of appeal from
the denial of his Rule 61 motion, and then waited almost another full year after that to file the
instant petitioner. And finally, to the extent Hunter's 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
For the foregoing reasons, the court concludes that the doctrine of equitable tolling is not
available to Hunter on the facts he has presented. Accordingly, the court will dismiss the petition
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 Hunter's petition filed pursuant to 28 U.S.C. § 2254 is time
barred. 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.
For the reasons discussed, the court will deny Hunter's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
An appropriate order will be entered.
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