Correa v. Phelps et al

Filing 9

MEMORANDUM AND ORDER. Signed by Judge Leonard P. Stark on 4/8/2013. (maw)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

GUANGO F. CORREA,

Petitioner,
v.

Civil Action No. 12-1064-LPS

PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM
I.

BACKGROUND
Presently pending before the Court is Petitioner Guango F. Correa's Application for a

Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application"), in which Petitioner
appears to assert that: (1) the improper inclusion of the alias David E. Jones in his Delaware
criminal records warrants habeas relief; (2) the violation of probation sentence imposed as a
result of his "theft of senior" conviction in May 2012 is somehow unconstitutional; and (3) his
public defender provided ineffective assistance during the May 2012 violation of probation
hearing. (D.L 3; D.L 8)

II.

LEGAL STANDARDS
A district court judge may summarily dismiss a habeas application "if it plainly appears

from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to
relief." Rule 4,28 U.S.C. foIl. § 2254. A petitioner is not entitled to federal habeas relief unless
he has exhausted state remedies for his habeas claims. 28 U.S.C. § 2254(b)(1)(A). A petitioner

satisfies the exhaustion requirement by "fairly presenting" the substance of the federal habeas
claims to the state's highest court, either on direct appeal or in a post-conviction proceeding, and
in a procedural manner permitting the state courts to consider them on the merits. See Duncan v.

Henry, 513 U.S. 364, 365 (1995); Castille v. Peoples, 489 U.S. 346, 351 (1989); Lambert v.
Blackwell, 134 F.3d 506,513 (3d Cir. 1997).

In addition, pursuant to 28 U.S.C. § 2244(b)(1), if a habeas petitioner erroneously files a
second or successive habeas application (or claim) "in a district court without the permission of a
court of appeals, the district court's only option is to dismiss the petition or transfer it to the court
of appeals pursuant to 28 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
2002). A habeas application is classified as second or successive within the meaning of
28 U.S.c. § 2244 if a prior application has been decided on the merits, the prior and new
applications challenge the same conviction, and the new application asserts a claim that was, or
could have been, raised in a prior habeas application. See Benchoffv. Colleran, 404 F.3d 812,
817 (3d Cir. 2005); In re Olabode, 325 F.3d 166,169-73 (3d Cir. 2003).

III.

DISCUSSION

In his first claim, Petitioner appears to assert that the improper inclusion of the alias
David E. Jones in his Delaware criminal records warrants habeas relief. Because Petitioner has
requested, and has been denied, habeas relief for this claim by this Court on three other
occasions, claim one constitutes a second or successive habeas claim within the meaning of 28
U.S.c. § 2244. See Correa v. Attorney General, Civ. Act. No. 08-197-JJF, Order (D. Del. May

14,2008); Correa v. Carroll, Civ. Act. No. 07-551-JJF, Mem. Op. and Order (D. Del. May 9,
2008); Correa v. Carroll, 2004 WL 1822123 (D. Del. Aug. 13,2004). Petitioner does not allege,
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and there is no reason to conclude, that the Third Circuit Court of Appeals authorized the :filing
of the instant "improper alias" claim. Thus, the Court will dismiss claim one for lack of
jurisdiction. See 28 U.S.C. § 2244(b)(l).
In claims two and three, Petitioner asserts that the violation of probation sentence

imposed as a result of his "theft of senior" conviction in May 2012 is somehow unconstitutional,
and that defense counsel provided ineffective assistance while representing him during that May
2012 proceeding. (D.I. 3; D.I. 8) Although these claims are not second or successive, they are
unexhausted, because there is no indication that Petitioner filed a motion for post-conviction
relief pursuant to Delaware Superior Court Criminal Rule 61. For instance, although the papers
filed by Petitioner indicate that he voluntarily withdrew his direct appeal regarding claim two on
July 5, 2012 (D.I. 3-1 at 1), it does not appear that he is "clearly foreclosed" from utilizing Rule
61{i){5) to seek further review of claim two. See Del. Super. Ct. Crim. Rule 61{i){5) (permitting
review of claim otherwise barred under Rule 61 (i){1), (2), or (3) to prevent a miscarriage of
justice); Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000) (where claim has not been fairly
presented, and is therefore unexhausted, court must determine if claim is defaulted such that
seeking further state review is "clearly foreclosed"). Additionally, a Rule 61 motion is the proper
vehicle for raising ineffective assistance of counsel claims to the Delaware State Courts, and
Petitioner's filings indicate that he can still timely file a Rule 61 motion if he acts without delay.!

JPursuant to Rule 61 (i){l), a Rule 61 motion must be filed within one year ofa final order
of conviction. Petitioner entered a plea of guilty to his violation of probation on May 10, 2012,
and the Superior Court sentenced him on May 17,2012. It is not clear if Petitioner's notice of
appeal from that judgment was timely filed. (D.I. 3-1 at 1) However, it is clear that Petitioner
moved to voluntarily withdraw his appeal regarding his violation of probation, and that the
Delaware Supreme Court granted his request for voluntary dismissal on July 5,2012. In these
circumstances, the Court perceives two possible "finality" dates. First, if Petitioner's notice of

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Given these circumstances, the Court will dismiss claims two and three without prejudice for
failure to exhaust state remedies. 2
Accordingly, the Court concludes that summary dismissal of the entire Application is
appropriate. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Court, 28 U.S.C. foIl. § 2254 (authorizing summary dismissal of § 2254 petitions).

IV.

CONCLUSION
For the reasons set forth above, the Court will summarily dismiss Petitioner's Application

for federal habeas relief. The Court will also decline to issue a certificate of appealability
because Petitioner has failed to make a "substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); 3d Cir. L.A.R. 22.2 (2011); United States v. Eyer, 113 F.3d 470
(3d Cir. 1997). A separate order will be entered.

Dated: April 8, 2013
UNITED STATES DISTRICT JUDGE

appeal was untimely filed, then his judgment of conviction became final on June 16, 2012, thirty
days after the Superior Court sentenced him. See DeL Super. Ct. Cr. R. 61 (i)(m)(2). In this
scenario, Petitioner has until approximately June 16,2013 to timely file a Rule 61 motion. If,
however, Petitioner's notice of appeal was timely filed, then Petitioner's judgment of conviction
arguably became final on July 5,2012, the date of the Delaware Supreme Court's order granting
his voluntary dismissal. In this second scenario, Petitioner has until approximately July 5, 2013
to file a timely Rule 61 motion.
2Petitions filed pursuant to 28 U.S.C. § 2254 must be filed within a one-year limitations
period. Petitioner is responsible for determining the events that trigger and toll the limitations
period, as well as the time remaining in the limitations period once it starts again after such
tolling.

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