Parson v. Phelps et al
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 10/29/15. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ERNEST C. PARSON,
) Civ. No. 12-1338-SLR
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Ernest C. Parson. Prose petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.
October cJ-q , 2015
Warden David Pierce has been substituted for former Warden Perry Phelps, an original
party to this case. See Fed. R. Civ. P. 25(d).
Currently before the court is Ernest Parson's ("petitioner") application for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254 ("application"). (D.I. 1) For the
reasons that follow, the court will dismiss petitioner's § 2254 application as time-barred
by the one-year period of limitations prescribed in 28 U.S.C. § 2244(d)(1).
As set forth by the Delaware Supreme Court in petitioner's direct appeal, the
facts leading to petitioner's arrest and conviction are as follows:
[Petitioner], after serving part of a prior sentence at Gander Hill prison, was
transferred to the Plummer Work Release Center in Wilmington (the "Center") on
September 18, 1986. On the morning of October 17, 1986, [petitioner] was
released from the Center to go to his place of employment. When [petitioner]
failed to return, a warrant for his arrest was issued on a charge of escape after
On November 3, 1986, two black males, one of whom was later identified as
[petitioner], entered a Cumberland Farms Store in Wilmington and waited until all
of the other customers left. They then approached the counter to make a small
purchase and when the cashier opened the register, the taller of the two men
pulled out a gun and demanded money. A witness described the gun as being a
sawed-off, twelve gauge, double-barrelled shot gun with black tape wrapped
around the stock. The perpetrators took all of the money in the register.
On November 9, 1986, a lone black male fitting [petitioner's] description entered
a Dairy Queen in Wilmington, displayed a gun and demanded money. The gun
was described as being black, double-barrelled and having black tape wrapped
around the stock.
On November 12, 1986, Samuel and Esther Sklut, the owners of the Penn Rose
Deli in Wilmington, were beaten to death in the course of a robbery. One witness
testified that she had seen [petitioner] in the store shortly before the time of the
murders. Several other witnesses testified that they saw [petitioner] leaving the
store shortly after the time of the killings.
Parson v. State, 571 A.2d 787 (Table), 1990 WL 17767, at *1 (Del. Feb. 5, 1990)
In September 1987, a Delaware Superior Court jury convicted petitioner of two
counts of intentional murder, two counts of felony murder, three counts of first degree
robbery, second degree conspiracy, and escape after conviction. (D.I. 10 at 1); See
Parson, 1990 WL 17767, at *1. Petitioner was sentenced to life imprisonment as
follows: two natural life sentences for his first degree intentional murder convictions;
two natural life sentences for his first degree felony murder convictions; three thirty-year
sentences for his first degree robbery convictions; thirty years for his escape conviction;
and seven years for his second degree conspiracy conviction. (D.I. 10 at 1) Petitioner
appealed, and the Delaware Supreme Court affirmed his convictions and sentences.
See Parson, 1990 WL 17767, at *5.
In 2008, petitioner filed a motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"), alleging that his two felony murder
convictions should be vacated because there was insufficient evidence that the two
victims were murdered "in furtherance of" the robbery as required by the Delaware
Supreme Court's "reinterpretation" of the felony murder statute in Williams v. State, 818
A.2d 906 (Del. 2002), and made retroactively applicable to cases on collateral review in
Chao v. State, 931 A.2d 1000 (Del. 2007) ("Chao//"). See Parson v. State, 38 A.3d
1255 (Table), 2012 WL 892525, at *2 (Del. Mar. 14, 2012). The Superior Court
summarily dismissed the Rule 61 motion after determining that Williams did not apply to
petitioner's case, explaining that the evidence "presented at trial showed that" petitioner
"murdered [the victims] in furtherance of committing the felony of robbery." State v.
Parson, ID No. 86014749, Letter Order (Del. Super. Aug. 12, 2008). Petitioner did not
appeal that decision.
In June 2011, petitioner filed a second Rule 61 motion, contending that: (1) he
deserved relief under Williams; (2) he was denied his right under Del. Code § 3507 to
confront State witnesses against him; and (3) the State violated his right to confrontation
by refusing to permit material impeaching of a witness' "intoxicated" statement. (D.I. 12,
State's Motion to Affirm in Parson v. State, No. 556,2011 at B-61, B-71, B-72) The
Superior Court dismissed the motion as procedurally barred by Rule 61 (i)(1 ),(2), and
(4). Id. at B-62 to B-64, B-74. Petitioner appealed, arguing that his convictions must be
vacated pursuant to Williams, Chao II, State v. Owens, 2010 WL 2892701 (Del. Super.
July 16, 2010) and State v. Bridgers, 970 A.2d 257 (Table), 2009 WL 824536 (Del. Mar.
30, 2009). The Delaware Supreme Court affirmed the Superior Court's judgment,
holding that petitioner's second Rule 61 motion was procedurally barred as untimely
under Rule 61 (i)(1) and repetitive under Rule 61 (i)(2), and the Williams claim was also
barred as formerly adjudicated under Rule 61(i)(4). See Parson, 2012 WL 892515, at
*1. The Delaware Supreme Court also concluded that petitioner's related argument that
there was insufficient evidence to convict him of robbery under Bridgers did not provide
him with a means to avoid the procedural bars under Rule 61 (i)(5). Id.
Thereafter, petitioner filed in this court a § 2254 application asserting one ground
for relief, namely, that there was insufficient evidence to convict him of the two felony
murders and the underlying robbery under Williams, Chao II, Owens, and Bridgers.
(D.I. 1; D.I. 2 at 2) He appears to assert the following two-pronged insufficient evidence
argument: (1) the State failed to establish the predicate felony of first degree robbery
because there was insufficient evidence that petitioner committed "theft" of the two
deceased store owners as required by Owens and Bridgers; and (2) there was
insufficient evidence that the two victims were murdered "in furtherance of" the robbery
as required by Williams and Chao II. The State filed an answer, asserting that the
application should be denied in its entirety as time-barred or, alternatively, because the
claim is procedurally barred. (D.I. 10)
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 it prescribes a one-year period of
limitations for the filing of habeas petitions by state prisoners. 28 U.S.C.
§ 2244(d)(1 ). The one-year limitations period 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 ). AEDPA's limitations period is subject to statutory and equitable
tolling. See Holland v. Florida, 560 U.S. 631 (201 O)(equitable tolling); 28 U.S.C.
§ 2244(d)(2)(statutory tolling).
Petitioner's application, which is dated October 2012, is subject to the one-year
limitations period contained in§ 2244(d)(1 ). See Lindh v. Murphy, 521 U.S. 320, 336
(1997). Petitioner does not allege, and the court does not discern, any facts triggering
the application of§ 2244(d)(1 )(B) or (C). He does, however, appear to contend that he
is entitled to a later limitations starting date of June 20, 2007 under§ 2244(d)(1 )(D)
because Chao II provides the "factual predicate" for his habeas claim by making the
Williams holding retroactively applicable. This argument is unavailing. Chao II and
Williams cannot establish a factual predicate for petitioner's sole claim, because they
were not decisions rendered in his own litigation history and they did not directly
eliminate his legal status as a convict. See Johnson v. United States, 544 U.S. 295
(2005)(holding that a notice of order vacating a federal prisoner's prior state conviction
used to enhance federal sentence triggers AEDPA's one year limitations period,
provided petitioner has shown due diligence in seeking the order); Shannon v. Newland,
410 F.3d 1083, 1088 (91h Cir. 2005)(explaining that a state court decision clarifying or
re-defining state law does not trigger§ 2244(d)(1 )(D) unless the petitioner was party to
that case.). To the extent petitioner also contends that the limitations period should
start on the date Owens (July 16, 2010) or Bridgers (March 30, 2009) was decided, the
court rejects the argument for the same reason. Thus, the one-year period of limitations
in this case began to run when petitioner's conviction became final under §
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 petitioner's convictions on February 5,
1990. Because petitioner's convictions became final prior to AEDPA's effective date of
April 24, 1996, he benefits from a one-year grace period for timely filing habeas
petitions, thereby extending the filing period through April 23, 1997. 2 See McAleese v.
Brennan, 483 F.3d 206, 213 (3d Cir. 2007); Douglas v. Horn, 359 F.3d 257, 261 (3d Cir.
2004). Thus, petitioner had until April 23, 1997 to timely file his petition.
Petitioner did not file the instant application until March 15, 2012, 3 almost fifteen
full years after the expiration of the limitations period. Therefore, his habeas application
is time-barred and should be dismissed, unless the limitations period can be statutorily
or equitably tolled. The court will discuss each doctrine in turn.
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, 251 F.3d 1243, 1246 (91h 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, petitioner filed his petition
well-past either cut-off date, rendering the one-day difference immaterial.
to the prison mailbox rule, a pro se prisoner's habeas application is deemed
filed on the date he delivers it to prison officials for mailing to the district court, not on
the date the application is filed in the court. See Longenette v. Krusing, 322 F.3d 758,
761 (3d Cir. 2003); Woods v. Kearney, 215 F. Supp. 2d 458, 460 (D. Del. 2002)(date on
petition is presumptive date of mailing and, thus, of filing). Applying this rule to the
instant case, the court adopts March 15, 2012, as the date of filing because that is the
date on petitioner's application.
A. Statutory Tolling
Pursuant to§ 2244(d)(2), a properly filed state post-conviction motion tolls
AEDPA's limitations period during the time the action is pending in the state courts,
including any post-conviction appeals, provided that the motion was filed and pending
before the expiration of AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d
417, 424-25 (3d Cir. 2000); Price v. Taylor, 2002 WL 31107363, at *2 (D. Del. Sept. 23,
2002). A matter is "pending" for§ 2244(d)(2) purposes "as long as the ordinary state
collateral review process is 'in continuance."' Carey v. Saffold, 536 U.S. 214, 219-20
Petitioner filed his first Rule 61 motion in 2008 and his second Rule 61 motion in
2011, long after the expiration of AEDPA's limitations period in 1997. As a result, the
two Rule 61 motions do not have any statutory tolling effect. Therefore, the application
is time-barred, unless equitable tolling is available.
B. 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, 560 U.S. at 648-49 (emphasis added). With respect to
the diligence requirement, the burden is on the petitioner to prove that he has been
reasonably diligent in pursuing his rights; 4 equitable tolling is not available where the
late filing is due to the petitioner's excusable neglect. Id. at 651-52; Miller v. New
Jersey State Dept. of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998). A petitioner's
Urcinoli v. Cathe/, 546 F.3d 269, 277 (3d Cir. 2008).
obligation to act diligently applies to both his filing of the federal habeas application and
to his filing of state post-conviction applications. Lacava v. Kyler, 398 F.3d 271, 277
(3d Cir. 2005). In turn, the Third Circuit has explained that extraordinary circumstances
for equitable tolling purposes may be found where:
the defendant actively misled the plaintiff;
the plaintiff was in some extraordinary way prevented from asserting
the plaintiff timely asserted his rights mistakenly in the wrong forum.
See Fahy v. Hom, 240 F.3d 239, 244 (3d Cir. 2001).
In this case, petitioner appears to allege 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, or through July 16, 2010, the date Owens was decided.
The court is not persuaded. To the extent these decisions rendered a change in
Delaware substantive law, the federal courts addressing the issue have held that a
change in state substantive law does not constitute an extraordinary circumstance
warranting equitable tolling. See United States v. Duval, 957 F. Supp. 2d 100, 117 (D.
Mass. 2013)(collecting cases); Lo v. Endicott, 506 F.3d 572, 576 (71h Cir. 2007). The
court finds the reasoning in these cases to be persuasive. Therefore, although it would
have been impossible for petitioner to cite Chao II and Owens prior to the issuance of
those decisions, neither Chao II nor Owens warrant the application of the equitable
Moreover, the Williams and Chao II decisions do not constitute an extraordinary
circumstance because Williams merely reaffirmed the existing requirement that the
murder must have helped move the felony forward, demonstrating that petitioner could
have raised his instant argument regarding the meaning of the "in furtherance of"
language in the felony murder statute before Williams and Chao II were decided. See
Blizzard v. Deloy, 855 F. Supp. 2d 209, 213-14 (D. Del. 2012). The Bridgers and
Owens decisions also do not amount to an extraordinary circumstance, because the
court has found nothing to indicate that these decisions re-defined or re-interpreted the
"theft" element of a first degree robbery offense such that petitioner's act of taking cash
from the register in the store owned by the victims he beat and killed did not constitute
A person commits first degree robbery by using or threatening force against
another person, while committing theft, with the intent to prevent resistance to the taking
of the property. See 11 Del. Code§ 832. A person commits theft by taking, exercising
control over, or obtaining the property of another person with the intent to deprive that
person of it or appropriate it. See 11 Del. Code § 841. The issue in Bridgers was
whether "any person threatened during a bank robbery is a robbery victim, even if he or
she is merely a bystander." Bridgers, 988 A.2d at 940. Distinguishing between
bystanders, bank customers present during an armed robbery, and the victim bank
employees who were forced at gunpoint to relinquish the bank's money, the Bridgers
Court clarified that "anyone from whom property is taken by threat or force and anyone
actively involved during a theft-in-progress, such as an arresting officer or a pursuing
homeowner, may be a robbery victim," but "someone who is merely a threatened
bystander has not been robbed." Bridgers, 988 A.2d at 944.
In Owens, the Delaware Superior Court applied the reasoning from Bridgers and
held that a customer service representative who had been confined to her office during
a bank robbery was not a victim of the robbery, because no property had actually been
taken from her. Notably, however, the Delaware Superior Court recently held that
Bridgers and Owens are distinguishable from a situation where "the money in the cash
register was taken from [the victim] with the use of force," because the cashier who was
attacked by the defendant does not fit within Bridgers' definition of a bystander. State v.
Walker, 2015 WL 3654806, at *3 (Del. Super. June 8, 2015).
Here, petitioner stole money from a store's cash register after beating the two
store owners to death with a blunt object. (D.I. 12, App. to Appellant's Op. Br. in Parson
v. State, No. 371, 1987, at A-17; Appellant's Op. Br. in Parson v. State, No. 371, 1987, at
3) By killing the two store owners, petitioner used force to eliminate the two people who
were in a position to prevent the robbery, demonstrating that the two victims were not
mere "bystanders" under Owens and Bridgers. Thus, petitioner's reliance on Bridgers
and Owens is misplaced.
Finally, petitioner has not demonstrated that he exercised the level of diligence
needed to trigger equitable tolling; despite the availability of his instant insufficient
evidence arguments, petitioner waited twenty years to raise them to the Delaware state
courts. To the extent petitioner'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 14,
For all of these reasons, the court concludes that the doctrine of equitable tolling
is not available to petitioner on the facts he has presented. Accordingly, the court will
dismiss the petition as time-barred. 3
CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a§ 2254 application, 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
If a federal court denies a habeas application 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
court's conclusion that the instant application is time-barred obviates the need to
discuss the State's alternative reason for denying the application.
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. Id.
"Where a plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed
further." Slack, 529 U.S. at 484.
The court has concluded that petitioner's application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 should be dismissed as time-barred and, alternatively, as
meritless. Reasonable jurists would not find this conclusion to be debatable.
Consequently, the court declines to issue a certificate of appealability.
For the reasons stated, petitioner's application for habeas relief filed pursuant to
28 U.S.C. § 2254 is denied. An appropriate order shall issue.
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