Davis v. Phelps et al

Filing 16

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 11/4/13. (cla, )

IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRICT OF DELAWARE

RODERICK DAVIS,
Petitioner,

v.

Civil Action No.l3-450-RGA

DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1

MEMORANDUM OPINION
Roderick Davis. Pro se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.

November

fI.

,2013

Wilmington~ware

lWarden David Pierce replaced Warden Perry Phelps, an original party to this case. See
Fed. R. Civ. P. 25(d).

ANDRE~f~GE:

Pending before the Court is Petitioner Roderick Davis' Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. I). The State filed a Motion to Dismiss
for Lack of Jurisdiction over the Subject Matter, contending that the Petition should be dismissed
for being second or successive and also for being time-barred. (D.l. 13). For the reasons
discussed, the Court will grant the Motion to Dismiss on the ground that the Petition is barred by
the limitations period prescribed in 28 U.S.c. § 2244.

I.

BACKGROUND
In January 1987, a Delaware Superior Court jury convicted Petitioner of rape second

degree, kidnaping first degree, and assault second degree. (D.I. 13 at 1). Petitioner was
sentenced to life imprisonment, plus an additional fifteen years. ld. The Delaware Supreme
Court affirmed Petitioner's convictions and sentence on April 27, 1988. Davis v. State, 1988 WL
44800 (Del. Apr. 27, 1988).
In June 1990, Petitioner filed a motion for post-conviction relief pursuant to Delaware

Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied on
January 20, 1992. See State v. Davis, 1992 WL 19929 (DeL Super. Ct. Jan. 20, 1992). The
Delaware Supreme Court affirmed that decision. See Davis v. State, 1992 WL 151322 (DeL June
15, 1992).
Thereafter, in September 1992, Petitioner filed his first § 2254 application in this Court.

See Davis v. Snyder, C.A. 92-553-LON. On June 12, 1995, the Court dismissed the application
without prejudice due to Petitioner's failure to exhaust state remedies. (D.I. 13-1).
On March 4,2013, Petitioner filed in the Delaware Superior Court a second Rule 61

1

motion, which the Superior Court summarily dismissed on April 18,2013. (D.I. 13).

II.

DISCUSSION
On March 14,2013, Petitioner filed the § 2254 Petition presently pending before this

Court. The Petition asserts the following nine grounds for relief with respect to Petitioner's 1987
convictions: (1) Petitioner was denied his Sixth Amendment right to representation under the
newly decided Supreme Court decision Martinez v. Ryan, 132 S. Ct. 1309 (2012), because he
was not appointed counsel during his initial Rule 61 proceeding; (2) Petitioner was denied his
speedy trial rights; (3) there was insufficient evidence to support Petitioner's conviction for
second degree rape; (4) there was insufficient evidence to support Petitioner's conviction for
kidnaping; (5) the trial court abused its discretion by appointing a second public defender to
represent Petitioner after his conflict with the first public defender; (6) defense counsel provided
ineffective assistance; (7) defense counsel failed to subpoena or secure a witness who would
have testified in defense of Petitioner; (8) a conspiracy existed between the trial judge, the
prosecutor, and defense counsel; and (9) the trial court failed to provide proper jury instructions
regarding the kidnaping charge. (D.l. 1).
The State filed a Motion for Leave to File a Motion to Dismiss in lieu of an Answer (D.I.
11), asserting that the Court lacks subject matter over the Petition because it is second or
successive and also because it is time-barred. The Court granted the State's Motion for Leave,
and the Motion to Dismiss (D.I. 14) was docketed. Petitioner filed a Motion in Opposition to the
Motion to Dismiss (D.l. 14), and a Motion for Leave to File the Motion in Opposition. (D.l. 15).
The two "motions" assert that Petitioner is entitled to a later filing date under
§ 2244(d)(I)(C) because the Petition includes arguments based on the new Supreme Court

2

decision Martinez v. Ryan, 132 S.Ct. 1309 (2012). Although titled as "motions," the Court views
these two documents as "responses" to the State's contention that the Petition is time-barred.

A. Second or Successive Bar
Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDP A"), a prisoner
cannot file a second or successive motion under 28 U.S.C. § 2254 without first seeking and
receiving approval from the appropriate court of appeals. See 28 U.S.c. § 2244(b). Absent such
authorization, a district court lacks jurisdiction to consider the merits of a subsequent § 2254
motion. See 28 U.S.C. § 2244(b)(4); Burton v. Stewart, 549 U.S. 147, 152 (2007).
Here, the State correctly asserts that instant Petition is Petitioner's second request for
federal habeas relief for numerical purposes. However, because Petitioner's first habeas petition
was dismissed without prejudice for failure to exhaust state remedies, the instant Petition does
not constitute an unauthorized second or successive petition for § 2244 purposes. See Stewart v.

Martinez-Villareal, 523 U.S. 637,643-45 (1998). Accordingly, the Court will not dismiss the
Petition for being second or successive.

B. Statute of Limitations
AEDPA 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
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;

3

(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)(I). AEDPA's limitations period is subject to statutory and equitable tolling.
See Holland v. Florida, 560 U.S. 631 (2010)(equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory
tolling).
Petitioner contends that he is eligible for a later filing deadline2 under § 2244(d)(l )(C)
because Martinez announced a new rule of constitutional law that is retroactively applicable to
his case. (DJ.l at 18; D.l. 14; DJ. 15). This argument is unavailing. In Martinez, the Supreme
Court held for the first time that inadequate assistance of counsel during an initial-review state
collateral proceeding may establish cause for a petitioner's procedural default of a claim of
ineffective assistance of trial counsel. Id. at 1320. Significantly, Martinez did not recognize or
create an automatic constitutional right to counsel in collateral proceedings, nor did it make any
constitutional right retroactively applicable to cases on collateral review. See Martinez, 132 S.Ct.
at 1319. Thus, the Court concludes that Martinez does not create an alternate starting date for
AEDPA's one-year limitations period under § 2244(d)(l)(C).
In tum, Petitioner does not allege, and the Court cannot discern, any facts triggering the

application of § 2244(d)(l)(B) or (D). Given these circumstances, the one-year period of
limitations began to run when Petitioner's conviction became final under § 2244(d)(l )(A).

2Presumably, March 20, 2013, which is one year after the date on which Martinez v. Ryan
was decided.
4

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). Here, Petitioner's judgment of conviction
became final on July 26, 1988, ninety days after the Delaware Supreme Court affirmed
Petitioner's convictions and sentence on April27, 1988. However, because Petitioner's
judgment of conviction became final prior to AEDPA's effective date of April 24, 1996,
Petitioner actually had a one-year grace period, or until April 23, 1997, to timely file a habeas
petition. 3 See Burns v. Morton, 134 F.3d 109, III (3d Cir. 1998). Petitioner did not file the
instant Petition until March 14,2013,4 approximate sixteen years after that deadline. Thus, the
Petition is time-barred and should be dismissed, unless the limitations period can be statutorily or
equitably tolled. See Jones, 195 F .3d at 158. The Court will discuss each doctrine in turn.
1. Statutory Tolling

Pursuant 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

3Many federal circuit courts have held that the one-year grace period for petitioners whose
convictions became final prior to the enactment of AEDP A ends on April 24, 1997, not April 23,
1997. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9 th 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 v. Horn, 359 F.3d 257,261 n.5 (3d Cir. 2004)(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, the one-day difference is immaterial.
4Pursuant to the prison mailbox rule, the Court adopts the date on the Petition (March 14,
2013) as the date of filing. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003).
5

AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000).
Here, Petitioner's first Rule 61 motion was filed and dismissed prior to expiration of the
limitations period on April 23, 1997, and his second Rule 61 motion was filed sixteen years after
that same date. Thus, neither of his Rule 61 motions has any statutory tolling effect.

2. 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, 130
S.Ct. at 2562. Equitable tolling is not available where the late filing is due to the petitioner's
excusable neglect. Id.
Petitioner does not allege, and the Court cannot discern, that any extraordinary
circumstances prevented him from timely filing the Petition. To the extent Petitioner made a
mistake or miscalculation regarding the one-year filing period, that mistake does not warrant
equitably tolling the limitations period. See Simpson v. Snyder, 2002 WL 1000094, at *3 (D.
Del. May 14, 2002). Additionally, Petitioner cannot demonstrate that he exercised the level of
diligence in pursuing relief that is necessary to warrant equitable tolling, because he filed the
instant Petition approximately eighteen years after the dismissal of his first petition, and
approximately sixteen years after the expiration of the extended limitations period. Finally, to
the extent Petitioner's Martinez argument should be construed as asserting a basis for equitable
tolling, the argument is unavailing. By its own terms, the Martinez decision provides a petitioner
with an opportunity to overcome a procedural default of an ineffective assistance of trial counsel
claim, but does not in any way impact a petitioner's obligation to comply \\lth AEDPA's

6

limitations period. For these reasons, the Court concludes that the equitable tolling doctrine does
not apply in this case. See Clark v. Ricci, 2013 WL 5817655, *4 (D.N.J. Oct. 29, 2013) (citing
multiple cases).
Accordingly, the Court will grant the State's Motion to Dismiss the Petition as timebarred.

III.

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 ofreason 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 the instant Petition is time-barred. Reasonable jurists
would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate
of appealability.

IV.

CONCLUSION
For the reasons discussed, the Court concludes that Petitioner's Application for a Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2254 is time-barred. Therefore, the State's Motion to
Dismiss for Lack of Jurisdiction over the Subject Matter is granted, and the Petition is denied.
An appropriate Order will be entered.

7