Clifton v. Britton et al

Filing 10

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 7/22/15. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DEREK A. CLIFTON,
Petitioner,
V.

SUPERINTENDENT BRITTON ,
and ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

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Derek Clifton . Prose petitioner.
Gregory E. Smith. Deputy Attorney General , Delaware Department of Justice,
Wilmington , Delaware . Counsel for respondents.

MEMORANDUM OPINION

July JJ.. , 2015
Wilmington, Delaware

I. INTRODUCTION
Presently before the court is petitioner Derek A. Clifton's ("petitioner") application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his Delaware
Superior Court convictions and Delaware sentence. (D. I. 1) Petitioner is a
Pennsylvania inmate in custody at the Pennsylvania State Correctional Institution at
Coal Township in Coal Township, Pennsylvania .1 For the reasons that follow, the court
will dismiss his application.

11. FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2007, petitioner, Anthony Watson, and Antonio Cropper cut a screen
and entered a home located at 715 West 281h Street in Wilmington , Delaware. (D.I. 8 at
1) Once inside, they confronted the elderly bed-ridden resident, Mary Nichols. Watson
removed an oxygen tube from a machine Nichols used to assist her breathing, and took
a phone from her hands to prevent her from calling for help. Id. Before leaving ,
petitioner let the family dog out on the porch while he, Watson , and Cropper searched
the home and stole jewelry and money. (D .I. 8 at 2)
On July 25 , 2007, petitioner and Watson cut their way through a screen door at a
home located at 2702 North Harrison Street in Wilmington , Delaware. (D.I. 8 at 2)
When petitioner and Watson encountered the resident of the home , Joanne Spurlock,
Watson displayed a knife and demanded money. Spurlock stated that she did not have
any money. Petitioner took the knife from Watson while Watson searched the second

1Although

petitioner is currently incarcerated in Pennsylvania and serving his
Pennsylvania sentences, he may challenge his future Delaware sentence pursuant to
28 U.S.C. § 2254 . See Peyton v. Rowe , 391 U.S. 54, 67 (1968) ; Rule (1)(a)(2) , 28
U.S.C. foll. § 2254.

floor of the home. Spurlock then fled the home from the back door of the home and
contacted the police. Id.
In October 2007, petitioner was indicted in Case No. 0709007071 for first degree
robbery; possession of a deadly weapon during the commission of a felony; second
degree burglary; second degree conspiracy; and criminal mischief. (D.I. 8 at 2; D.I. 9-5
at 3) In March 2008, petitioner was indicted in Case No. 0802034693 on charges of
third degree burglary; second degree burglary; two counts of second degree conspiracy;
two counts of theft less than $1,000 ; two counts of criminal mischief less than $1 ,000;
and receiving stolen property. (D. I. 9-5 at 3)
During this same time period, petitioner was charged in two separate cases in
the State of Pennsylvania. (D.I. 8 at 2) On February 25, 2008, petitioner pied guilty in
one of his Pennsylvania cases to receiving stolen property, resulting in a sentence of
215 days to 23 months. Id. ; (D.I. 9-11) On May 12, 2008, petitioner pied guilty in the
other Pennsylvania case to robbery and inflicting serious bodily injury, resulting in a
sentence of 48 to 96 months. (D.I. 8 at 3; D.I. 9-12) .
Two warrants for petitioner's arrest were issued under Delaware Superior Court
Criminal Rule 9 while he was incarcerated in Pennsylvania. (D .I. 8 at 3) On May 23 ,
2011, petitioner was extradited to Delaware under the Interstate Agreement on
Detainers ("IAD") (codified in Delaware at 11 Del. Code§ 2542 et seq .). He was
arraigned on June 28 , 2011 , which was also the day on which the two Rule 9 warrants
were returned . On August 15, 2011, during his final case review in the Delaware
Superior Court, petitioner pied guilty to second degree burglary, third degree burglary,

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and second degree robbery (the latter two were lesser-included offenses). He was
immediately sentenced to a total non-suspended sentence for one and one-half years in
prison . Id. On October 13, 2011 , the Superior Court modified the effective date of the
sentence so that petitioner did not receive credit against both his Delaware and
Pennsylvania sentences for the same period of time. Petitioner did not appeal his
convictions and sentences . Id.
In January 2012, petitioner filed his first motion for post-conviction relief pursuant
to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), asserting three
grounds for relief: (1) defense counsel provided ineffective assistance by failing to
thoroughly investigate his case and discover that the gap of time from his indictment to
sentencing violated due process; (2) his right to a speedy tria l was violated ; and (3) his
right to due process was violated by the three and one-half year delay between
indictment and arraignment, and by the failure to set bail. (D.I. 8 at 3; D.I. 9-5 at 3-4)
The Delaware Superior Court summarily dismissed all three claims as waived by
petitioner's voluntary and knowing guilty plea. (D.I. 9-5 at 6-7) Petitioner did not appeal
that decision.
On August 20, 2012 , petitioner filed a second Rule 61 motion . The Superior
Court denied the motion on March 28 , 2013 , and petitioner did not appeal that decision.
(D .I. 8 at 4)
Petitioner timely filed a§ 2254 application in this court. (D .I. 1) The State filed
an answer (D.I. 8) , arguing that the court should deny the application because the

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claims either fail to present issues cognizable on federal habeas review or they are
procedurally barred .

Ill. EXHAUSTION AND PROCEDURAL DEFAULT
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) . One prerequisite to federal habeas review is that
a petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. §
2254(b)(1 ). The exhaustion requirement is grounded on principles of comity to ensure
that state courts have the initial opportunity to review federal constitutional challenges to
state convictions. Werls v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner
satisfies the exhaustion requirement by "fairly presenting" the substance of the federal
habeas claim 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 it on the
merits. See Duncan v. Henry, 513 U.S. 364 , 365 (1995) ; Castille v. Peoples, 489 U.S.
346 , 351 (1989) .
A petitioner's failure to exhaust state remedies will be excused if state procedural
rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d
153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989) . Although
treated as technically exhausted, such claims are nonetheless procedurally defaulted.

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

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adequate state procedural rule, the claim is exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255 , 260-64 (1989).
A federal court cannot review 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. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999);
Coleman v, 501 U.S. at 750-51. 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. " Murray v. Carrier, 477 U.S.
478 , 488 (1986) . To demonstrate actual prejudice , a petitioner must show that the
errors during his trial created more than a possibility of prejudice ; he must show that the
errors worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions." Id. at 494 .
Alternatively, if a petitioner demonstrates that a "constitutional violation has
probably resulted in the conviction of one who is actually innocent, " Murray, 477 U.S. at
496, then a federal court can excuse the procedural default and review the claim in
order to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S.
446 , 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001) . The miscarriage
of justice exception applies only in extraordinary cases , and actual innocence means
factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623
(1998); Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting
"new reliable evidence - -whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence - - that was not presented at trial,"

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showing that no reasonable juror would have voted to find the petitioner guilty beyond a
reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333 , 339-40 (3d Cir. 2004).

IV. DISCUSSION
Petitioner's application presents the following th ree grounds for relief: (1) the trial
court erred by not formally arraigning petitioner "at the time of his detainer" and by not
setting bail ; (2) the trial court violated the IAD by not scheduling his case for trial within
120 days of his extradition from Pennsylvania; and (3) defense counsel provided
ineffective assistance by failing to file a motion to dismiss the charges against him due
to the lack of an arraignment and the trial court's violation of the IAD.

A. Claim One: Delayed Arraignment and Failure to Set Bail
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) . Claims based on errors of state law are not
cognizable on federal habeas review, and federal courts cannot re-examine state court
determinations on state law issues. Estelle v. McGuire , 502 U.S. 62 , 67-8 (1991);
Pulley v. Harris , 465 U.S. 37 , 41 (1984) ; Riley v. Taylor, 277 F.3d 261 , 310 n.8 (3d Cir.
2001) .
In claim one , petitioner contends that the trial court erred by not arraigning him
within forty-eight hours of his initial arrest in Delaware and for letting three and one-half
years pass before his formal arraignment. However, because petitioner does not even
vaguely assert this argument in terms of a violation of a federally protected right, the
court concurs with the State's contention that the instant claim asserts an error of state
law that is not cognizable on federal habeas review. See, e.g., Temple v. Coleman,

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2013 WL 4015814, at *9 (M.D. Pa. Aug. 6, 2013) . Therefore, the court will deny
petitioner's arraignment argument in claim one for failing to assert a proper issue for
federal habeas review. 2
As for petitioner's contention that the trial court failed to set bail, the record
reveals that the trial court set bail for both of his Delaware cases on June 28, 2011, the
date of his arraignment. Specifically, in State v. Clifton, No. 0709007071, bail was set
at $82,000, and in State v. Clifton, No. 0802034693 , bail was set at $45,000 . (D.I. 9-1,
Docket for State v. Clifton , No. 0709007071, Entry No. 11; D.I. 9-2, Docket for State v.
Clifton, No. 0802034693 , Entry No. 7) Thus, the court will deny the bail argument in

claim one as meritless.

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Even if the court were to liberally construe petitioner's delayed arraignment argument
in claim one as asserting a federal speedy trial claim, the court would deny it as
meritless. Pursuant to Barker v. Wingo, 407 U.S. 514, 519 (1972), courts must consider
four factors when determining if a defendant's speedy trial rights have been violated: (1)
the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his
right; and (4) prejudice to the defendant. Id. "The length of the delay is to some extent
a triggering mechanism . Until there is some delay which is presumptively prejudicial,
there is no necessity for inquiry into the other factors that go into the balance." Id.
Delays of one year or more trigger the analysis into the other Barker factors . Doggett v.
United States, 505 U.S. 647, 652 n.1 (1992) .
Here, although the three and one-half years would trigger the need to engage in
the Barker analysis, balancing the remaining three Barker factors demonstrates that
petitioner's right to a speedy trial was not violated. First, the three and one-half year
delay would not weigh against the State because it was attributable to petitioner's
incarceration in Pennsylvania. Second, although petitioner asserted his speedy trial
violation for the first time in his first Rule 61 motion filed on January 30, 2012, the record
reveals that he had earlier opportunities to raise this issue. Consequently, petitioner's
late assertion of his right to a speedy trial would weigh against him. And finally, since
petitioner has not alleged or demonstrated that he suffered any actual prejudice
because of the delay, Barker's prejudice factor would also weigh against him . Thus,
petitioner has failed to establish a speedy trial violation .
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8. Claim Two: IAD Violation

In claim two , petitioner appears to argue that the trial court violated the speedy
trial provision in the IAD by failing to bring him to trial within 120 days of his arrival in the
State of Delaware. See 11 Del. Code Ann . § 2543(c). In Reed v. Farley, 512 U.S. 229,
342 (1994) , the Supreme Court held that a state court's failure to observe the 120-day
rule of the IAD is not cognizable on federal habeas review if the defendant failed to
register an objection to the trial date at the time it was set and suffered no prejudice
attributable to the delayed commencement. Here, petitioner's trial date in Case No.
709007071 was set for August 15, 2011 , and his trial date in Case No. 802034693 was
set for August 18, 2011 . The record contains no indication that petitioner objected to
these dates, and petitioner raised his speedy trial concern for the first time in the Rule
61 motion he filed in January 2012. Therefore, pursuant to Reed, the court will deny
claim two for failing to assert an issue cognizable on federal habeas review.
Nevertheless, even if the court were to treat claim two as asserting an issue
cognizable on federal habeas review, the claim is unavailing. According to the
Delaware Superior Court Criminal Dockets for petitioner's cases, the "detainer deadline"
was August 24, 2011 . (D .I. 9-1 , Docket for State v. Clifton , No. 0709007071, Entry No.
11; D.I. 9-2 , Docket for State v. Clifton , No. 0802034693, Entry No. 7) Petitioner
entered his guilty plea on August 15, 2011 , before that deadline expired . (D.I. 9-1,
Docket for State v. Clifton , No. 0709007071 , Entry No. 19; D.I. 9-2, Docket for State v.
Clifton, No. 0802034693, Entry No. 22) Moreover, the State asserts that petitioner was

returned to Delaware on May 23, 2011 . Petitioner entered his guilty plea on August 15,
2011 , which was 84 days after his arrival in the State of Delaware. Thus, under either

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calculation, petitioner entered his guilty plea before the expiration of the IAD's detainer
deadline. As such, to the extent claim two is cognizable, the court will alternatively deny
it as meritless.
C. Claim Three: Ineffective Assistance of Counsel
In his final claim , petitioner contends that counsel was ineffective for failing to
determine that the trial court violated his rights by not arraigning him until three and onehalf years after his arrest, and by failing to set bail. The record reveals that petitioner
presented this argument to the Superior Court in his first Rule 61 motion, and the State
asserts that petitioner presented this argument in his second Rule 61 motion. 3 The
Superior Court denied both motions, and petitioner never appealed those decisions.
Therefore, petitioner did not exhaust state remedies for claim three .
At this juncture, petitioner would be time-barred from presenting claim three to
the Delaware state courts in a new Rule 61 motion in order to have an opportunity to
appeal any adverse decision to the Delaware Supreme Court. See Tribuani v. Phelps,
820 F. Supp . 2d 588 , 593 n.2 (D . Del. 2011 ). Consequently, claim three is procedurally
defaulted, meaning that the court cannot review its merits absent a showing of cause
and prejudice, or that petitioner is actually innocent.
Petitioner has not alleged , and the court cannot discern, any cause for his default
of claim three. In the absence of cause, the court will not address the issue of

3The

court cannot confirm that claim three was raised in petitioner's second Rule 61
motion , because the state court record does not contain a copy of petitioner's second
Rule 61 motion or a copy of the Commissioner's Report and Recommendation
recommending denial of his second Rule 61 motion. (D.I. 9) However, the court need
not determine if both Rule 61 motions contained claim three, because petitioner's failure
to appeal the Superior Court's denial of his two Rule 61 motions renders claim three
procedurally defaulted .

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prejudice. Additionally, the court concludes that petitioner's default should not be
excused under the miscarriage of justice exception to the procedural default doctrine,
because petitioner has not provided new reliable evidence of his actual innocence.
For all of the aforementioned reasons, the court will deny claim three as
procedurally barred from federal habeas review.

V. CERTIFICATE OF APPEALABILITY
Finally, the court must decide whether to issue a certificate of appealability. See
3d Cir. L.A.R. 22.2 (2011 ). The court may issue a certificate of appealability only when
a petitioner makes a "substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that
reasonable jurists would find the district court's assessment of the denial of a
constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) .
Further, when a federal court denies a habeas application on procedural grounds
without reaching the underlying constitutional claim, the prisoner must demonstrate that
jurists of reason would find it debatable: (1) whether the application states a valid claim
of the denial of a constitutional right; and (2) whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484.
For the reasons stated above, the court concludes that petitioner's habeas
application must be denied. Reasonable jurists would not find this conclusion
debatable. Consequently, petitioner has failed to make a substantial showing of the
denial of a constitutional right, and a certificate of appealability will not be issued.

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VI. CONCLUSION
For the foregoing reasons, the court will deny petitioner's application for habeas
relief filed pursuant to 28 U.S.C. § 2254. An appropriate order will be entered.

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