Boston v. Johnson et al
MEMORANDUM OPINION re Application for Writ of Habeas Corpus. Signed by Judge Leonard P. Stark on 3/31/17. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. Act. No. 12-1400-LPS
G.R. JOHNSON, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Michael Boston. Prose Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
March 31, 2017
Petitioner Michael Boston ("Petitioner") filed· an Application For A Writ Of Habeas
Corpus Pursuant To 28 U.S.C. § 2254 ("Petition"). (D.I. 3) For the reasons discussed, the Court
will dismiss the Petition as time-barred by the limitations period prescribed in 28 U.S.C. § 2244. ·
In March 1991, four armed men, later identified as Petitioner, Hubert Pope, William
Francis, and Edward Punnette, robbed the Wilmington Trust Company branch at Union Street in
Wilmington, Delaware. See Pope v. State, 632 A.2d 73, 75 (Del. 1993). The four men left the
bank in a van, with Wilmington Police Officers Thomas Spell and Chris Danese in pursuit. The
officers directed the van to stop, but it accelerated and a chase began. bfficers Spell and Danese
were fired upon through the shattered rear window of the van, but were not hit by any bullets
· (the "first shoot-out"). That portion of the chase ended when the van drove through a red traffic
light an4 struck a car (the "collision"), injuring tWo civilian occupants. Id.
After the collision, the four men continued their flight on foot, and additional gunfire
followed (the "second shoot-out"). See Pope, 632 A.2d at 75. Two officers who had joined the
pursuit, Christine Dunning and Thomas Monahan, were each shot in the leg. The police captured
Petitioner, Punnette, and Francis at the scene of the second shoot-out, but Pope escaped. After
his arrest, Francis gave a statement to the police. He identified Petitioner as the driver of the van
and Pope as the fourth robber. Id.
In March, 1991, a federal grand jury indicted Petitioner on the following charges:
conspiracy to commit bank robbery; bank robbery; two firearms offenses; and an unregistered
firearms offense. (D.I. 11 at 2 n.4) On September 4, 1991, Petitioner pled guilty in this Court to
all charges, and the Honorable Joseph J. Farnan, Jr. sentenced him to a total of twenty years and
one month of imprisonment. (D.I. 3 at 25-27) He was incarcerated in a federal prison located in
Pennsylvania until September 2008. (D.I. 3 at 13-14, 38)
Meanwhile, on July 22, 1991, a New Castle County grand jury indicted Petitioner on the
following .charges: attempted first degree murder; eight counts of possession of a deadly weapon
during the commission of a felony ("PDWDCF"); first degree reckless endangering; first degree
conspiracy; second degree murder; possession of a destructive weapon; and two counts of second
degree assault. (D.I. 11 at 2) The Delaware Superior Court dismissed the murder charge upon
Petitioner's motion. State v. Boston, 1992 WL 91173 (Del. Super. Ct. Apr. 16, 1992). In July
1992, a Delaware Superior Court jury convicted Petitioner of first degree attempted assault (as a
lesser included offense of attempted murder), four counts of PDWDqF, second degree,
conspiracy (as a lesser-included offense of first degree conspiracy), possession of a destructive
weapon, and two counts of third degree assault (as lesser-included offenses of second degree
assault). (D.I. 11 at 3) The Superior Court sentenced Petitioner to a total of thirty years of
imprisonment (D.I. 11 at 3), and the Delaware Supreme Court affirmed Petitioner's convictions
on October 20, 1993. See Boston v. State, 633 A.2d 368 (Table), 1993 WL 476390 (Del. Oct.
On February 17, 2005, Petitioner filed in the Delaware Superior Court a motion for
sentence modification, which the Superior Court denied as time-barred on March 3, 2005. (D.I.
13, Del. Super. Ct. Crim. Dkt. Entry Nos. 47, 48) Petitioner was returned to Delaware from
federal custody on September 11, 2008, and he began serving his Delaware sentence in the
Sussex Correctional Institution in Georgetown, Delaware. (D.I. 3 at 14) On June 10, 2010,
Petitioner filed in the Delaware Superior Court a motion for postconviCtion relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the
Rule 61 motion as meritless on December 3, 2010, and the Delaware Supreme Court affirmed
that decision on August 23,
See Boston v. State, 53 A.3d 301 (Table), 2012 WL 3641297
(Del. Aug. 23, 2012).
Actingpro se, Petitioner filed the instant§ 2254 Petition in 2012. (D.I. 1) The Petition
originally asserted four grounds for relief, but Petitioner subsequently filed, and the Court
granted, a motion to dismiss grounds three and four. (D.I. 15; D.I. 18) Consequently, the
Petition asserts the following two grounds for relief: (1) the multiple state and federal
punishments that were imposed for Petitioner's commission of a single criminal act violate the .
DoubleJeopardy Clause; and (2)
counsel rendered constitutionally ineffective assistance
by failing to raise the Double Jeopardy issue. (D.I. 3 at 16-24) The State filed an Answer,
asserting that the Petition should be dismissed as time-barred or, alternatively, because the
claims asserted therein are procedurally barred or meritless. (D.I. 11)
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. 28 U.S.C. § 2244(d)(l ). AEDP A prescribes a one-year .
period of limitations 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
(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
applicableto 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
28 U.S.C. § 2244(d)(l). AEDPA's limitations period is subject to statutory and equitable tolling.
See Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2)
§ 2254 Petition, filed in 2012, is subject to the one-~ear limitations period
contained in§ 2244(d)(l). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Petitioner does not
allege, and the Court cannot discern, any facts triggering the application of
§ 2244(d)(l)(B), (C), or (D). Given these circumstances, the one-year.period oflimitations
period began to run when Petitioner'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 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). Here, Petitioner's judgment of conviction
.became final on January 29, 1994, ninety days after the Delaware Supreme Court's October 20,
1993. decision affirming his convictions and sentences. However, because Petitioner's
conviction 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. 1 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 waited until October 31, 2012 1 to file the instant Petition, more than fifteen
years after the expiration of the limitations period. Therefore, his habeas Petition is untimely, .
unless the limitations period can be statutorily or equitably tolled. See Jones, 195 F.3d at 158.
The Court will discuss each doctrine in tum.
A. Statutory Tolling
Pµrsuant to § 2244(d)(2), a properly filed state post-conviction motion tolls AEDP A's
limitations period during the time the action is pending in the state courts, including any postconviction 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, 420-24 (3d Cir. 2000); Price
v. Taylor, 2002 WL 31107363, at *2 (D.
Sept. 23, 2002). Here, Petitio1:1er's motion for
modification of sentence and his Rule 61 motion have no statutory tolling effect, because they
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, 251 F.3d 1243, 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, Petitioner filed his petition well-past either cut-off date, rendering the oneday difference immaterial.
Pursuant to the prison mailbox rule, the Court adopts the date on the Petition (October 31, 2012)
as the date of filing. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003).
were filed in 2005 and in 2010, long after AEDPA's limitations period had already expired. As
such, the Petition is time-barred, unless equitable tolling is applicable.
B. Equitable Tolling
AEDPA's limitations period may be tolled for equitable reasons in appropriate cases.
·Holland, 560 U.S. at 645. A petitioner can only qualify for equitable tolling by deinonstrating
"(1) that he has been pursuing his rights diligently, and (2) some extraordinary circumstance
stood in his way and prevented timely filing;" 2 mere excusable neglect is insufficient. See
Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004). Consistent with these principles, the Third
Circuit has specifically limited the
tolling of AEDPA's limitations period to the
(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
See Jones, 195 F.3d at 159; Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28,
Petitioner appears to assert that the limitations period should be equitably tolled through
September 11, 2008, the date on which he returned to Delaware from a federal prison in
Pennsylvania to begin serving his Delaware sentence. He contends that he was unable to exhaust .
state remedies in Delaware while he was incarcerated in the federal prison because he did not
Holland, 560 U.S. at 649.
have access to the Delaware Rules and did not know what additional state post-conviction relief
was .available. (D.I. 3 at 14) ·The Court is not persuaded by this argument. First, Petitioner does
not assert that he requested, but was denied, any Delaware legal materials. Second, considering
that the claims in his Petition assert violations of federal constitutional prinCiples, Petitioner
cannot demonstrate a causal relations~ip between his alleged lack of Delaware legal materials
and his failure to comply with the limitations period applicable to federal habeas petitions.
Finally, in 2005, three years before returning to prison in Delaware, Petitioner filed a motion for
sentence modification in the Delaware Superior Court. This action clearly refutes Petitioner's
contention that being in federal custody somehow impeded his ability to pursue relief in the
Delaware State Courts. Given all of these circumstances, Petitioner has failed to demonstrate
that his federal custody amounts to an extraordinary circumstance for equit'1:ble tolling purposes.
Petitioner also attempts to trigger equitable tolling by alleging he is actually innocent of
the Delaware crimes because the federal offenses for which he was convicted were premised on
the same conduct. The argument is unavailing. In McQuiggin v. Perkins, 133 S.Ct. 1924, 1928
(2013), the Supreme Court held that a credible claim of actual innocence may serve as an
"equitable exception" that can overcome the bar of AEDPA's one-year limitations period.
However, the McQuiggin Court cautioned that "tenable actual-innocence gateway pleas are
rare," and a petitioner only meets the threshold requirement by "persuad[ing] the district court
that, in light of the new evidence, no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt." Id. at 1928. An actual innocence claim must be based on
"new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence that was not presented at trial." Schlup v. Delo, 513
U.S. 298; 324 (1995).
Petitioner's contention that he is "actually innocent" of the Delaware offenses for which
he was convicted, because those offenses were based upon the same conduct leading to his
·federal prosecution and conviction, is merely a "recasting" of his argument in Claim One that the
successive federal and state prosecutions violated his right to be protected against double
jeopardy. 3 More significantly, however, Petitioner's "actual innocence" argument does not
warrant equitable tolling because it does not assert or constitute "new" reliable factual evidence
of his actual innocence for the purposes of the Schlup standard. 4
Finally, to the extent Petitioner's untimely filing of the Petition was due to a lack of legal
knowledge. or the result of a miscalculation reg~rding the one-year filing period, such factors do
not warrant equitably tolling the limitations period. See Taylor v. Carroll, 2004 WL 1151552, at
*5-6 (D. Del. May 14, 2004).
, For all of these reasons, the Court concludes that the equitable tolling doctrine does not
apply in this case. Accordingly, the Court will dismiss the Petition as untimely. 5
This double jeopardy argument is also rendered meritless by the Dual Sovereignty Doctrine.
See .United States v. Piekarsky, 687 F.3d 134, 149 (3d Cir. 2012) ("[U]nder the doctrine of Dual
Sovereignty, a state prosecution does not bar a subsequent federal prosecution for the same
conduct, [because] the states and the federal government are separate sovereigns, with distinct
interests in criminalizing and prosecuting certain conduct.").
Indeed, the fact that Petitioner admitted his conduct and pied guilty in this Court to participating
in the bank robbery precludes Petitioner from satisfying the Schlup standard, especially since he
does not challenge the validity of his federal guilty plea.
Having determined that the Petition is time-barred, the Court will not address the State's other
reasons for dismissal.
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether
to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2). A
federal court denying a habeas petition on procedural grounds without reaching the underlying
constitutional claims 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. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that Petitioner's habeas Petition does not warrant relief because
it is time-barred. Reasonable jurists would not find this conclusion to be debatable.
Accordingly, the C_ourt declines to issue a certificate of appealability.
For the reasons discussed, Petitioner's Application For A Writ Of Habeas Corpus
Pursuant To 28 U.S.C. § 2254 is DENIED. An appropriate Order will be ente:red.
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