Bohan v. Phelps et al
Filing
18
MEMORANDUM OPINION - Signed by Judge Gregory M. Sleet on 9/10/15. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES PATRICK BOHAN, III, )
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Petitioner,
v.
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents. 1
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)
)
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Civil Action No. 12-1025-GMS
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Charles Patrick Bohan, III. Pro se petitioner.
James Turner Wakley, Delaware Department of Justice, Wilmington, Delaware. Counsel for
Respondents.
MEMORANDUM OPINION
IWarden David Pierce has replaced fonner Warden Perry Phelps, and original party to this case.
See Fed. R. Civ. P. 25(d).
Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner Charles Patrick Bohan, III ("Bohan"). (D.I. 2) For the reasons
discussed, the court will deny the petition.
I.
FACTUAL AND PROCEDURAL BACKGROUND2
In the early morning hours of April 19,2008, in Manningham township, New
Jersey, gunfire was exchanged between an individual and two New Jersey State Troopers.
The two troopers were injured, but survived, while the civilian individual was fatally
wounded. While investigating that crime, New Jersey troopers learned that there were
actually two cars initially involved in the chase that led to the shootout. One of the cars
fled from the pursuit and its location was unknown to the New Jersey State Police. New
Jersey State Troopers Giuliano and Walker responded to the shooting and located a ringing
cell phone, which belonged to the deceased. The troopers eventually learned that a
number from the Red Rooflnn, New Castle, Delaware, had been calling the deceased's
phone. As a result, the two troopers proceeded to the Red Roof Inn in Delaware to
investigate and try to learn more of the car that had fled the New Jersey scene.
While investigating another car in the Red Roof Inn parking lot the New Jersey
troops saw 9 mm shells were in plain sight. Troopers Giuliano and Walker were in their
parked, unmarked silver Ford Crown Victoria police car and surveilled that vehicle.
Sometime after 7:00 a.m., the two troopers saw a charcoal gray Dodge Intrepid
2The factual background is taken verbatim from the State's Answering Brief in Bohan v. State,
No. 385,2009. (D.I. 12, State's Reply Brief in Bohan v. Stale, No. 385,2009, at 3-5)
driving in the Red Roof Inn parking lot. When the Intrepid was approximately 25-30 feet from
the police car, the driver's window lowered, and the driver extended his arm out his open
window and pointed a black semi-automatic Beretta handgun directly at the troopers. The driver,
wearing a red shirt, then brought the gun back into the car and sped off around the
building. Instead of following the car, out of concern for officer safety, the troopers
blocked the only exit out of the Red RoofInn to secure the scene. There were two to
three people visible in the car.
The troopers - already on high alert due to the earlier shooting - contacted
Delaware State Police, put on their protective gear, and exited their car. The same
Intrepid reappeared between one and three minutes later. At that time the driver - still
wearing the red shirt - exited the car, made a gesture towards the troopers and fled. By
that point, there was no one else in the vehicle. Within minutes, he was apprehended by
assisting Delaware State Police officers and was immediately identified as Bohan - and
as the person who had pointed the gun at the New Jersey troopers.
The Intrepid was searched and no gun was recovered; however, a search of the
Red Roof Inn hotel room of Andrew Reddick and Andrew Bingham revealed a nine
millimeter Barretta handgun wrapped in a pillowcase, hidden under the mattress.
Bohan was charged with possession of a felony during the commission of a felony,
possession of a firearm by a person prohibited, and two counts of aggravated menacing. A
Delaware Superior Court jury found Bohan guilty of all counts. See Bohan v. State, 990 A.2d
421,422 (Del. 2010). The Superior Court sentenced him to an aggregate term of seventeen years
of incarceration at Level V, suspended after eight years for decreasing levels of supervision. See
State v. Bohan, 2011 WL 6225262 (Del. Super. Ct. Nov. 23,2011). The Delaware Supreme
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Court affirmed Bohan's convictions and sentence on direct appeaL See Bohan, 990 A.2d at 424
In February 2011, Bohan filed a motion for post-conviction review pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"), asserting, inter alia, that trial counsel had
provided ineffective assistance in numerous ways. The Superior Court denied some of the
claims as procedurally barred, but alternatively denied all of the claims as meritless. See Bohan,
2011 WL 6225262, at *2-*8. Bohan appealed, and the Delaware Supreme Court affirmed the
Superior Court's judgment. See Bohan v. State, 47 A.3d 971 (Table), 2012 WL 2226608, at *2
(Del. June 15,2012).
II.
GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
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." Woodford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDPA, a federal court may consider a habeas petition filed 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-court convictions are given effect to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002).
B. Standard of Review
When a state's highest court has adjudicated a federal habeas claim on the merits, the
federal court must review the claim under the deferential standard contained in 28 U.S.c.
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§ 2254(d).3 Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the
state court's decision was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States," or the state
court's decision was an unreasonable determination of the facts based on the evidence adduced
in the trial. 28 U.S.C. § 2254(d)(l) & (2); see also Williams v. Taylor, 529 U.S. 362,412 (2000);
Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). This deferential standard of § 2254(d) applies
even "when a state court's order is unaccompanied by an opinion explaining the reasons relief
has been denied." Harrington v. Richter, 562 U.S. 86,98-100 (2011). As recently explained by
the Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary." Id.
Finally, when reviewing a claim under § 2254(d), a federal court must presume that the
state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(l); Appel, 250
F.3d at 210. This presumption of correctness applies to both explicit and implicit findings of
fact, and is only rebutted by clear and convincing evidence to the contrary. 28 U.S.C.
§ 2254(e)(l); Campbell v. Vaughn, 209 F.3d 280,286 (3d Cir. 2000); Miller-El v. Cockrell,537
U.S. 322, 341 (2003)(stating that the clear and convincing standard in § 2254(e)(l) applies to
factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual
decisions). The Supreme Court has "not defined the precise relationship between § 2254(d)(2)
and § 2254(e)(l )." Burt v. Titlow, 134 S.Ct. 10, 15 (2013); but see Miller-El v. Cockrell, 537
U.S. 322,341 (2003) (stating that the clear and convincing standard in § 2254(e)(l) applies to
3A claim has been "adjudicated on the merits" for the purposes of28 U.S.C. § 2254(d) if the state
court decision finally resolves the claim on the basis of its substance, rather than on a procedural
or some other ground. Thomas v. Horn, 570 F.3d 105,115 (3d Cir. 2009).
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factual issues, whereas the unreasonable application standard of § 2254( d)(2) applies to factual
decisions).
III.
DISCUSSION
Bohan's timely filed petition contains five enumerated claims, but three of those claims
assert the same ground for relief. 4 Consequently, to promote efficiency, the court views the
petition as asserting the following three grounds for relief: (l) the Superior Court's failure to
appoint counsel to represent Bohan during his Rule 61 proceeding deprived him of his
constitutional right to counsel; (2) the Superior Court erred by not holding an evidentiary hearing
on the claims in his Rule 61 motion; and (3) defense counsel provided ineffective assistance by
not securing the appearance and testimony of a "key eyewitness."
A. Claims One and Two: Not Cognizable On Federal Habeas Review
In claim one, Bohan contends that the Superior Court violated his Sixth Amendment right
to counsel by not appointing an attorney to represent him during his Rule 61 proceeding because
his Rule 61 motion alleged that defense counsel provided ineffective assistance during his trial.
The court concurs with the State's assertion that this claim does not present an issue cognizable
on federal habeas review. According to well-settled precedent,S there is no constitutional right to
the assistance of counsel in collateral proceedings, and the recent Supreme Court decision
Martinez v. Ryan, 132 S.Ct. 1309 (2012) did not abrogate or modify that precedent. Rather, the
Martinez Court held for the first time that the ineffective assistance of counsel during initial
collateral review proceedings, or the failure to appoint counsel during initial collateral review
The court has combined claims one, two and five of the petition to form claim one as set forth
above. (0.1. 2 at 12, 17, 18) In tum, former claim three is now claim two, and former claim four
is now claim three.
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5See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Pennsylvania v. Finley, 481 U.S. 551,
555 (1987).
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proceedings, may establish cause in a federal habeas proceeding sufficient to excuse a
petitioner's procedural default of a claim of ineffective assistance of trial counsel when, under
state law, claims of ineffective assistance of trial counsel must be raised in an initial review
collateral proceeding rather than on direct appeal. Id. (emphasis added). In other words,
Martinez created a limited method for petitioners in federal habeas cases to prove cause for
excusing their state court procedural default of certain ineffective assistance of counsel claims.
Notably, however, and relevant to claim one, the Martinez Court explicitly declined to hold that
a criminal defendant has a constitutional right to postconviction counse1. 6 Id. at 1315. Thus,
viewing claim one in context with Coleman and Finley demonstrates that Bohan's argument does
not provide a basis for federal habeas relief
In claim two, Bohan contends that the Delaware courts erred by denying his Rule 61
motion without holding an evidentiary hearing. The "federal role in reviewing an application for
habeas corpus is limited to evaluating what occurred in the state or federal proceedings that
actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceedings
does not enter into the habeas proceeding." Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir.
1998). Since Bohan's ultimate criticism in claim two concerns an alleged error that occurred
during his state collateral proceeding, the court concludes that the claim fails to assert an issue
cognizable on federal habeas review. See also Lambert v. Blackwell, 387 F 3d 210, 247 (3d Cir.
2004)("alleged errors in [state] collateral proceedings ... are not a proper basis for habeas
relief').
6Additionally, since the sole ineffective assistance of counsel claim presented in this
proceeding (i.e., claim three) was not procedurally defaulted and was adjudicated on the merits
in Bohan's post-conviction appeal, Martinez's limited exception to the procedural default
doctrine is irrelevant to determining if claim three warrants federal habeas relief.
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Accordingly, the court will deny claims one and two for failing to assert proper grounds
for federal habeas relief.
B. Claim Three: Ineffective Assistance
In claim three, Bohan contends that defense counsel was ineffective for not securing the
appearance and testimony of Andrew Bingham
a witness he claims would have exonerated him
had he testified at trial. Bohan presented this claim to the Delaware Supreme Court on post
conviction appeal, and the Delaware Supreme Court denied it as meritless. As a result, habeas
relief will only be available if the Delaware Supreme Court's decision was either contrary to, or
involved an unreasonable application of, clearly established federal law.
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S.
668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first
Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an
objective standard of reasonableness," with reasonableness being judged under professional
norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the
second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that,
but for counsel's error the result would have been different." Id at 687-96. A reasonable
probability is a "probability sufficient to undermine confidence in the outcome." Id at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See
Wells v. Petsock, 941 F.2d 253,259-260 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92
(3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding and
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leads to a "strong presumption that the representation was professionally reasonable."
Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254(d)(1) inquiry, the court notes that the Delaware
Supreme Court identified Strickland as governing Bohan's instant ineffective assistance of
counsel contention. As such, the Delaware Supreme Court's decision was not contrary to clearly
established federal law.
The court must also determine if the Delaware Supreme Court reasonably applied
Strickland to the facts of Bohan's case. See Harrington, 562 U.S. at 105-06. "[T]he question is
not whether counsel's actions were reasonable, [but rather], whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard." Id.
After reviewing Bohan's instant argument in context with the record, the court concludes
that the Delaware state courts reasonably applied Strickland in denying claim three. First, in his
Rule 61 affidavit, defense counsel explains how he interviewed Bingham and learned that, if
Bingham was forced to testify, Bingham's testimony would have implicated Bohan as the
shooter. (D.1. 12, State's App. to Ans. Br. in Bohan v. State, No.66,2012, at B24-B25) More
specifically, there were three individuals in the vehicle that Bohan was driving - Bohan,
Bingham, and Redick - and Bingham told defense counsel that Redick was not the person who
pointed the gun at the police. ld. at B24. Second, when the Delaware Supreme Court denied
claim three on post-conviction appeal, it explained that,
[t]he record reflects that the individual in question was actually in custody in Delaware
and was available to be called as a witness. Defense counsel interviewed him and
ascertained that he would not offer testimony favorable to the defense and, in fact, would
have directly implicated Bohan as the one who pointed the gun at police. Because the
witness was available and apparently willing to testifY, no subpoena was necessary.
Because his testimony would have been harmful to the defense, however, counsel
properly declined to call him as a witness.
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Bohan, 2012 WL 2226608, at *2.
Pursuant to § 2254(e)(1), the court defers to the Delaware Supreme Court's factual
findings that a subpoena was unnecessary and that Bingham's testimony would have been
harmful to Bohan's defense, because Bohan has not provided any clear and convincing evidence
to the contrary. As a result, the court concludes that defense counsel's decision not to call
Bingham as a witness constituted a reasonable informed trial strategy pursuant to Strickland.
Accordingly, the court will deny claim three for failing to satisfy § 2254(d).
IV.
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);
Slackv. McDaniel, 529 U.S. 473, 484 (2000).
The court has concluded that Bohan's petition fails to warrant federal habeas relief. 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.
V.
CONCLUSION
For the reasons stated, Bohan's petition for habeas relief pursuant to 28 U.S.C. § 2254 is
denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.
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