Robertson v. Phelps et al

Filing 19

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 7/31/15. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

PAULA. ROBERTSON,
Petitioner,
v.
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1

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Civil Action No. 12-760-GMS

Paul A. Robertson. Pro se petitioner.
Maria T. Knoll, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.

MEMORANDUM OPINION

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Wilmingon, Delaware

1

Warden David Pierce replaced former Warden Perry Phelps, an original party to this case. See
Fed. R. Civ. P. 25(d).

Pending before the court is an application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 ("petition") filed by petitioner Paul A. Robertson ("Robertson"). (D.I. 3) The
State filed an answer in opposition, and Robertson filed a reply. (D.I. 14; D.I. 18) For the
following reasons, the court will deny the petition as time-barred by the one-year limitations
period prescribed in 28 U.S.C. § 2244.
I.

BACKGROUND
In 1990, Robertson and his three co-defendants (Kenneth Rodgers, James Llewellyn, and

Christopher Long) were indicted jointly and tried together on the following charges: four counts
of first degree murder (two counts of first degree felony murder and two counts of intentional
murder), one count of first degree robbery, two counts of first degree conspiracy, and one count
of second degree conspiracy. (D.I. 14 at 1) The charges stemmed from an armored car robbery
and the murders of two guards. See Robertson v. State, 630 A.2d 1084, 1086 (Del. 1993). In
October 1991, a Delaware Superior Court found Long, Rodgers and Llewellyn guilty of all of the
charges; Robertson was found guilty of two counts of first degree murder, one count of first
degree robbery, three counts of possession of a deadly weapon during the commission of a
felony, two counts of first degree conspiracy, and one count of second degree conspiracy. After
the trial, the Superior Court granted Robertson's motion for judgment of acquittal on two
weapons charges. Robertson was sentenced to two natural life sentences without probation or
parole, plus eighty-seven years of incarceration. (D.I. 14 at 2); see also Robertson, 630 A.2d at
1086.

Robertson appealed. The State agreed to vacate one of Robertson's first degree
conspiracy charges, and the Delaware Supreme Court affirmed the remainder of Robertson's
convictions on August 11, 1993. See Robertson, 630 A.2d at 1095.
On June 5, 2008, Robertson filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court appointed
counsel for Robertson, and he filed an amended Rule 61 motion. On October 24, 2011, the
Superior Court denied the Rule 61 motion because the claims were untimely and/or previously
adjudicated. (D.I. 15, Commr's. Rep. and Rec. in State v. Robertson, ID #91000738DI), and the
Delaware Supreme Court affirmed that decision. See Robertson v. State, 38 A.23d 1255 (Table),
2012 WL 628001 (Del. Feb. 27, 2012).
Robertson filed the instant habeas petition in June 2012, alleging the following four
grounds for relief: (1) pursuant to the Delaware Supreme Court's reinterpretation 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), which was made retroactively
applicable in Chao v. State, 931 A.2d 1000 (Del. 2007) ("Chao IF'), there was insufficient
evidence to support his felony murder convictions; (2) trial counsel provided ineffective
assistance by failing to object to an inadequate felony-murder jury instruction and by failing to
request an accomplice "level of liability" jury instruction; (3) the trial court provided an
improper accomplice liability jury instruction; and (4) "all grounds raised in direct appeal." (D.I.
3 at 5-17) The State filed an answer in opposition, alleging that the petition should be denied as
time-barred or, alternatively, as meritless. (D.1. 14)

2

II.

DISCUSSION
A. 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 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, ifthe 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).
Robertson's petition, filed in 2012, is subject to the one-year limitations period contained
in§ 2244(d)(l). See Lindh, 521 U.S. at 336. Robertson does not allege, and the court does not
discern, any facts triggering the application of§ 2244(d)(l)(B) or (D). However, Robertson
appears to argue that he is entitled to a later starting date for the limitations period under
§ 2244(d)(l)(C) because the Delaware Supreme Court decisions in Chao II and Williams v. State,
818 A.2d 906 (Del. 2003) created a new retroactively applicable rule under Teague v. Lane, 489
U.S. 288, 301 (1989). This argument is unavailing. The alleged "new rule" in Chao II and

3

Williams was announced by the Delaware Supreme Court with respect to state law and those
cases did not articulate a new federal right made retroactively applicable by the United States
Supreme Court. Thus, the one-year period of limitations in this case began to run when
Robertson's conviction became final under§ 2244(d)(l)(A).
Pursuant to § 2244(d)(l )(A), if a state prisoner appeals a state court judgment but does
not seek certiorari review, the judgment of conviction becomes final upon expiration of the
ninety-day time period allowed for seeking certiorari 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). In this
case, the Delaware Supreme Court affirmed Robertson's convictions on August 11, 1993, and he
did not file a petition for a writ of certiorari in the United States Supreme Court. As a result,
Robertson's convictions became final on November 10, 1993. However, state prisoners whose
convictions became final prior to AEDPA's effective date of April 24, 1996 have a one-year
grace period for timely filing their habeas applications, thereby extending the filing period
through April 23, 1997. 1 See McAleese v. Brennan, 483 F.3d 206, 213 (3d Cir. 2007); Douglas

v. Horn, 359 F.3d 257, 261 (3d Cir. 2004); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Consequently, Robertson had until April 23, 1997 to timely file his petition.

1

Many federal circuit courts have held that the one-year grace period for petitioners whose
convictions became final prior to the enactment of AEDPA ends on April 24, 1997, not April 23,
1997. See Patterson v. Stewart, 251F.3d1243, 1246 (9th Cir. 2001)(collecting cases). Although
the Third Circuit has noted that "[a]rguably we should have used April 24, 1997, rather than
April 23, 1997, as the cut-off date," Douglas, 359 F.3d at 261 n.5 (citing Fed. R. Civ. P. 6(d)), it
appears that April 23, 1997 is still the relevant cut-off date in this Circuit. In the present
situation, however, Robertson filed his petition well-past either cut-off date, rendering the oneday difference immaterial.
4

Robertson did not file the instant§ 2254 Petition until June 14, 2012, 2 more than fifteen
full years after the expiration of AEDPA's statute of limitations. Therefore, the petition is timebarred, 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 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).
Here, Robertson's 61 motion does not have any statutory tolling effect because it was filed
eleven years after the limitations period had already expired. Therefore, the instant petition must
be dismissed as time-barred, unless equitable tolling applies.
C. Equitable Tolling

In very rare circumstances, the one-year limitations period may be tolled for equitable
reasons 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 649 (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. of Corr., 145 F.3d
616, 618-19 (3d Cir. 1998). Consistent with these principles, the Third Circuit has explained that

2

Pursuant to the prisoner mailbox rule, the court adopts as the filing date June 14, 2012, which is
the date on petition's certificate of service. 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).
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equitable tolling of AED PA' 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).
Robertson contends that equitable tolling is appropriate in his case because: (1) the
attorney representing him on direct appeal failed to inform him of his post-conviction options;
(2) the State did not inform him that his convictions might be impacted by the "new retroactive"
Chao II and Williams' decisions; (3) the Superior Court did not appoint counsel to aid him in
filing his original Rule 61 motion; (4) when the Superior Court finally did appoint counsel to
represent him in his Rule 61 proceeding, his post-conviction counsel filed an amended Rule 61
omitting the Chao II/Williams insufficient evidence claim; and (5) he is ignorant of the law and
he lacked access to the prison library. (D .I. 3 at 13; D .I. 18 at 7) These arguments are not
persuasive. First, the Third Circuit has consistently held that in non-capital cases like this one,
attorney error does not constitute an "extraordinary circumstance" necessary for equitable
tolling. See Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004); Johnson v. Hendricks, 314 F.3d
159, 163 (3d Cir. 2002)(holding that a petitioner's receipt of erroneous advice from counsel
regarding a deadline for filing a federal habeas corpus petition did not warrant equitable tolling).
Consequently, appellate counsel's alleged failure to advise Robertson about his post-conviction
options does not trigger equitable tolling.
Second, Robertson's assertion that he was never informed about the retroactive effect of
Chao II and Williams does not constitute an extraordinary circumstance for equitable tolling
6

purposes, because it is the petitioner's responsibility to exercise reasonable diligence in pursuing
relief, which includes keeping abreast ofrecent legal developments. Even if the court liberally
construes this particular assertion as contending that that the limitations period should be
equitably tolled through June 20, 2007, the date on which the Delaware Supreme Court issued its
decision in Chao II that the interpretation of the felony murder statute in Williams applies
retroactively, the argument still fails to trigger equitable tolling. Although it would have been
impossible for Robertson to cite Chao II and Williams prior to the issuance of those decisions,
nothing prevented him from presenting the instant argument that there was insufficient evidence
to support his convictions for felony murder prior to the issuance of those decisions.
Significantly, when Robertson was convicted in 1991, Weick v. State, 420 A.2d 159 (Del. 1980),
provided the applicable precedent regarding the requirements of the felony murder statute,
namely, that a defendant could only be found guilty of felony murder ifthe defendant, or his
accomplices, committed the murder and the murder was committed in "furtherance of' the
commission or attempted commission of the felony. Id. at 162 (emphasis added). The Williams
decision merely reaffirmed the Weick requirements 1 that a defendant or his accomplices must
have committed the killing during the course of the felony and that the murder "help[ed] to
move the felony forward." 2 See Comer, 977 A.2d at 340. Thus, neither Williams nor Chao II

1

See Williams, 818 A.2d at 913 (citing Weick, 420 A.2d at 162).

2

In Comer, the Delaware Supreme Court summarized the statutory requirements for felony
murder under Williams and Weick as follows :
We examined the felony murder statute more recently in Williams v. State. In that case,
we explained that Weick imposed two separate limitations on felony murder: (1) that
there be a causal connection between the felony and the murder; and (2) that the felon, or
his accomplices, if any, perform the actual killing. But, we noted that in an intervening
decision, Chao v. State ["Chao f'], we had held that for felony murder liability to attach,

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constitute an "extraordinary circumstance" for equitable tolling purposes, because Robertson's
argument regarding the meaning of the "in furtherance of' language in the former felony murder
statute has been available to him all along. The court also notes that
Robertson has not demonstrated that he exercised the level of diligence needed to trigger
equitable tolling; despite the availability of his instant insufficient evidence argument, Robertson
waited fifteen years to raise it to the Delaware state courts.
Third, the Superior Court's failure to appoint counsel to aid Robertson in drafting his
original Rule 61 motion, and subsequently-appointed post-conviction counsel's alleged failure to
include the Chao JI/Williams insufficient evidence argument in the amended Rule 61 motion, do
not constitute extraordinary circumstances warranting equitable tolling. Notably, the Superior
Court actually did end up appointing counsel to represent Robertson during the pendency of his
Rule 61 proceeding, and post-conviction counsel filed an amended Rule 61 motion. Although
post-conviction counsel did not include Robertson's original Chao JI/Williams insufficient
evidence argument in the amended Rule 61 motion, post-conviction counsel filed Robertson's
"Memorandum in Support of Motion for Post-Conviction Relief' which contained the Chao
JI/Williams insufficient evidence argument. (D.I. 15, State v. Robertson, l.D. NO. 91000738DI,

a killing need only accompany the commission of an underlying felony. Thus,
[according to Chao I,] ifthe "in furtherance" language has any limiting effect, it is solely
to require that the killing be done by the felon, him or herself.
After analyzing [the felony murder statute], we concluded, in Williams, that the "in
furtherance of' language not only requires that murder occur during the course of the
felony, but also that the murder occur to facilitate commission of the felony. Thus, in
Williams, we overruled Chao I, but retained the agency theory of felony murder we
adopted in Weick, namely, that the felony murder language requires not only that the
defendant or his accomplices if any commit the killing but also that the murder helps to
move the felony forward.
Comer, 977 A.2d at 339-40.
8

"Defendant Paul A. Robertson's Memorandum in Support of Motion for Post-Conviction
Relief," Dated April 22, 2009) The State addressed Robertson's Chao JI/Williams insufficient
evidence argument in its response to the amended Rule 61 motion, explaining that the argument
was both time-barred and procedurally barred. Id. at 8. The State also contended that
consideration of the claim was not warranted under Rule 61(i)(5)'s exception to the procedural
bar because Robertson had been tried under the same felony murder interpretation set in
Williams and, therefore, the Williams decision had no effect on Robertson's case. Id. Although

the Commissioner's Report and Recommendation denying Robertson's Rule 61 motion did not
explicitly refer to Robertson's Chao JI/Williams argument by including the two case names, the
Report implicitly adopts the State's conclusion, explaining that Robertson's original Rule 61
motion "argued that the evidence presented at this trial was insufficient to support his conviction,
a contention which had been adjudicated by the Supreme Court in 1993." (D.I. 12, State v.
Robertson, l.D. 91000738DI, Commr's Rep. & Rec. at 3) Given this record, post-conviction

counsel's failure to include the independent Chao JI/Williams insufficient evidence argument in
the formal amended Rule 61 motion does not amount to an extraordinary circumstance sufficient
to trigger equitable tolling.
Moreover, even if the court were to liberally construe Robertson's contention regarding
post-conviction counsel's alleged ineffective assistance with respect to the Chao JI/ Williams
argument as an attempt to trigger equitable tolling pursuant to Martinez v. Ryan, 132 S.Ct. 1309
(2012),3 the argument still fails. By its own terms, the Martinez decision provides a petitioner

In Martinez, the Supreme Court held for the first time that inadequate assistance of counsel
during an initial-review state collateral proceeding may establish cause for a petitioner's
procedural default of a claim of ineffective assistance of trial counsel. Id. at 1320. In order to
obtain relief under Martinez, a petitioner must demonstrate that the state post-conviction attorney
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with an opportunity to overcome a procedural default of an ineffective assistance of trial counsel
claim, but does not in any way impact a petitioner's obligation to comply with AEDPA's
limitations period.
As for Robertson's ignorance of the law, this court has repeatedly held that a lack oflegal
knowledge does not constitute an extraordinary circumstance warranting equitable tolling. See
Taylor v. Carroll, 2004 WL 1151552, at *5 (D. Del. May 14, 2004). Similarly, limited access to

a prison law library is not, on its own, an extraordinary circumstance for tolling purposes, and
Robertson has failed to demonstrate how the alleged restricted library access prevented him from
filing a habeas petition for ten or more years. Id.
Finally, to the extent Robertson's untimely filing was the result oflegal ignorance or 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).
Accordingly, the court will dismiss the petition as time-barred.

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 (2011 ). A

in his first state collateral proceeding was ineffective under the standards established in
Strickland, that the underlying ineffective assistance of trial counsel claim is substantial, and that
petitioner was prejudiced. Id. at 1316, 1320. A "substantial" ineffective assistance of trial
counsel claim is one that has "some" merit" which, given the Martinez Court's citation to MillerEl v. Cockrell, 537 U.S. 322 (2003), appears to be governed by the standards applicable to
certificates of appealability. Id. at 1318 -19. Significantly, however, the Martinez Court
explicitly limited its rule, stating that the "holding in this case does not concern errors in other
kinds of proceedings, including appeals from initial-review collateral proceedings." Id.

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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). In addition, when 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 Robertson's petition filed pursuant to 28 U.S.C. § 2254
should be denied as time-barred. The court is persuaded that reasonable jurists would not find
these conclusions to be debatable. Therefore, the court will not issue a certificate of
appealabili ty.

IV.

CONCLUSION
For the reasons discussed, the court will deny Robertson'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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