Brokenbrough v. Phelps et al

Filing 16

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 2/19/2016. (cna)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RORY BROKENBROUGH,
Petitioner,
v.

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

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Civil Action No. 13-451-GMS

Rory Brokenbrough. Pro se petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.

MEMORANDUM OPINION

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Wilmington, Delaware

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Pending before the court is an application for a writ of habeas corpus pursuant to 28
U.S.c. § 2254 ("petition") filed by petitioner Rory Brokenbrough ("Brokenbrough"). (D'!.3)
The State filed an answer in opposition. (D.!. 12) For the following reasons, the court will deny
the petition as time-barred by the one-year limitations period prescribed in 28 U.S.C. § 2244.

I.

BACKGROUND
In April 2005, a Delaware Superior Court jury convicted Brokenbrough of attempted first

degree robbery, first degree assault, third degree assault (as a lesser-included offense of first
degree robbery), and third degree conspiracy (as a lesser included offense of second degree
conspiracy). (D.!. 12 at 1) The Superior Court sentenced Brokenbrough to an aggregate of fiftytwo years at Level V incarceration, suspended after thirty-five years for decreasing levels of
supervision. Id. The Delaware Supreme Court affirmed Brokenbrough's convictions and
sentence on April 11, 2006. See Brokenbrough v. State, 897 A.2d 767 (Table), 2006 WL 954235
(Del. Apr. 11,2006).
On April 5, 2007, Brokenbrough filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion), and then he filed two subsequent
motions to amend the original Rule 61 motion and a motion for the production of medical
records. (DJ. 14, Del. Super. Ct. Crim. Dkt. Entry Nos. 69, 71, 83) The Superior Court denied
the original Rule 6 1motion on October 30,2007 without ruling on the subsequent motions. See

State v. Brokenbrough, 2007 WL 3287938, at *1 (DeL Super. Ct. Oct. 30, 2007). Brokenbrough
moved for reargument on November 13,2007, but appealed the denial of his Rule 61 motion
before the Superior Court ruled on the reargument motion. (D.L 12 at 2) Consequently, the

Superior Court stayed its decision on his pending motions because jurisdiction had moved to the
Delaware Supreme Court. Id.
In January 2008, the Delaware Supreme Court remanded the case to the Superior Court to
rule on the two motions to amend and the motion for medical records. (0.1. 14, Del. Super. Ct.
Crim. Dkt. Entry No. 92) On April 30, 2008, the Superior Court denied the motions to amend,
the motion for reargument, and the motion for medical records. See State v. Brokenbrough, 2008

WL 1891705, at *1-2 (Del. Super. Ct. Apr. 30, 2008). The Delaware Supreme Court
consolidated the appeals of the denial of the first Rule 61 motion and the denial of the amended
Rule 61 motion and affirmed the consolidated appeal on November 25,2008. See Brokenbrough

v. State, 962 A.2d 916 (Table), 2008 WL 4989124 (Del. Nov. 25,2008).
Brokenbrough filed a second Rule 61 motion on September 30,2011. (D.L 14, Del.
Super. Ct. Crim. Dkt. Entry No.1 02) The Superior Court denied the Rule 61 motion on May 21,
2012 and his subsequent motion for reargument. (D.I. 14, Del. Super. Ct. Crim. Dkt. Entry Nos.
114, 117) Brokenbrough appealed, and the Delaware Supreme Court denied affirmed the denial
of his second Rule 61 motion on October 10, 2lO2. See Brokenbrough v. State, 54 A.3d 256
(Table), 2012 WL 4846539 (Del. Oct. lO,2012).
On January 8, 2013, Brokenbrough moved for sentence modification. (OJ. 14, Del.
Super. Ct. Crim. Dkt. Entry No. 120) The Superior Court denied the motion on March 27, 2013,
and Brokenbrough did not appeal that decision. (D.I. 14, Del. Super. Ct. Crim. Dkt. Entry No.
122)
Brokenbrough filed the instant habeas petition March 2013, asserting the following three
grounds for relief: 1) due to a change in Delaware law, he is actually innocent of first degree

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assault and first degree robbery; 2) his conviction for assault rested on an incorrect interpretation
of the law and should be vacated; and 3) the state courts violated Martinez v. Ryan, 132 S.c.t.
1309 (2012) by improperly denying his motion to amend his second Rule 61 motion to add
ineffective assistance of counsel claims. The State filed an answer in opposition, alleging that the
petition should be denied as time-barred or, alternatively, as merit less or procedurally barred.
(D.!. 12)

II.

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 habeas petitions filed in federal courts after this date
must comply with the AEDPA's requirements. See generally Lindh v. Murphy, 521 U.S. 320,
336 (1997). 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;
(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
CD) 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).
Brokenbrough's petition, filed in 2013, is subject to the one-year limitations period
contained in § 2244(d)(1). See Lindh, 521 U.S. at 336. Brokenbrough does not allege, and the

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court does not discern, any facts triggering the application of § 2244( d)(l )(B). However, by
alleging that Chao v. State, 931 A.2d 1000 (DeL 2007)( Chao 11) and Williams v. State, 818 A.2d
906 (DeL 2002) announced a new rule of law redefining Delaware's felony murder offense,
Brokenbrough appears to allege that § 2244(d)(1)(C) or (D) apply to his case, and that the
limitations period should begin to run from June 20, 2007 -- the date of the Delaware Supreme
Court's decision in Chao If This argument is unavailing. First, Brokenbrough was not charged
with, tried for, or convicted of felony murder. Second, the Chao 111Williams rule cannot trigger a
later starting date under § 2244(d)(l)(C) because it was a rule announced by the Delaware
Supreme Court with respect to state law, not a newly recognized federal constitutional right
made retroactively applicable on collateral review by the United States Supreme Court. Finally,
to the extent Brokenbrough's argument is that Chao II provides the "factual predicate" for his
habeas claims because it made the Williams holding retroactively applicable to his case, thereby
providing a later starting date of June 20, 2007 under §2244(d) (1 )(D), the contention fails. Chao
II and Williams cannot establish a factual predicate for Brokenbrough's constitutional claims,

because they were not decisions rendered in Brokenbrough's 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 (9 th 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.). Thus, the one-year period of

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limitations in this case began to run when Brokenbrough's conviction became final under §
2244(d)(1 )(A).
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 upon expiration of the
ninety-day time period allowed for seeking certiorari review. 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). The
ninety-day period for filing a petition for certiorari with the United States Supreme Court runs
from the entry of the state court judgment, not from the issuance date of the state court's
mandate. See Sup. Ct. R. 13(1) & (3).
In this case, the Delaware Supreme Court affirmed Brokenbrough's convictions on April
11, 2006, and he did not file a petition for a writ of certiorari in the United States Supreme Court.
As a result, Brokenbrough's convictions became final on July 11,2006. See Wilson v. Beard,
426 F.3d 653,662-64 (3d Cir. 2005)(Fed. R. Civ. P. 6(a) applies to AEDPA's limitations
period). Applying the one-year limitations period to that date, Brokenbrough had until July 11,
2007 to timely file his petition. See Phlipot v. Johnson, 2015 WL 1906127, at *3 n. 3 (D. Del.
Apr. 27, 2015)(AEDPA's one-year limitations period is calculated according to the anniversary
method, i.e., the limitations period expires on the anniversary of the date it began to run).
Brokenbrough did not file the instant § 2254 petition until March 16,2013,1 almost six
full years after the expiration of AEDPA's statute of limitations. Therefore, the petition is timebarred, unless the limitations period can be statutorily or equitably tolled. See Holland v.

1Pursuant

to the prisoner mailbox rule, the court adopts as the filing date March 16, 2013, which
is the date Brokenbrough signed the petition. See Longenette v. Krusing, 322 F.3d 758, 761 (3d
Cir. 2003)(the date on which a prisoner transmitted documents to prison authorities for mailing is
to be considered the actual filing date).
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Florida, 560 U.S. 631, 645 (2010)(equitable tolling); 28 U.S.C. § 2244(d)(2)(statutory tolling).
The court will discuss each doctrine in tum.
A. Statutory Tolling
Pursuant to § 2244(d)(2), a properly filed application for state collateral review tolls
AEDPA's limitations period during the time the application is pending in the state courts,
including any post-conviction appeals, provided that the application is filed during AEDPA's
one-year limitations period. Swartz v. Meyers, 204 F .3d 417, 424-25 (3d Cir. 2000).
Here, 267 days of AEDPA's limitations period had already expired when Brokenbrough
filed his Rule 61 motion on April 5,2007. The Superior Court denied the motion, and the
Delaware Supreme Court affirmed that decision on November 25,2008. Therefore,
Brokenbrough's Rule 61 motion tolled the limitations period from April 5, 2007 through
November 25, 2008.
The limitations clock started to run again on November 26, 2008, and ran the remaining
ninety-eight days without interruption until the limitations period expired on March 4,2009.
Brokenbrough's 2011 Rule 61 motion has no statutory tolling effect because it was filed after the
expiration of AEDPA's limitations period. Hence, the instant petition must be dismissed as
time-barred, unless equitable tolling applies.

B. Equitable Tolling
In very rare circumstances, the one-year limitations period may be tolled for equitable
reasons 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 649 (emphasis added). Equitable tolling is not available where the late filing is due
to the petitioner's excusable neglect. Id.; Miller v. New Jersey State Dept. ofCarr., 145 F .3d

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616, 618-19 (3d Cir. 1998). Consistent with these principles, the Third Circuit has explained that
equitable tolling of AEDP A' s limitations period may be appropriate in the following
circumstances:
(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 wrong forum.

Jones, 195 F.3d at 159; Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28,2001).
Liberally reading Brokenbrough's petition, he appears to allege that equitable tolling is
warranted under Martinez,2 because the State did not appoint counsel to represent him during his
first Rule 61 proceeding. (D.1. 3 at 18) This 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 with AEDPA's limitations period.
Brokenbrough also appears to contend that equitable tolling is warranted because he is
"actually innocent" of first degree assault under the Chao lllWilliams line of cases. (D.!. 3 at 16­
18) Once again, the argument is not successful. In McQuiggin v. Perkins, 133 S.Ct. 1924, 1928
2In 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 ofa claim of ineffective assistance of trial counsel. [d. at 1320. In order to
obtain relief under Martinez, a petitioner must demonstrate that the state post-conviction attorney
in his first state collateral proceeding was ineffective under the standards established in
Strickland, that the underlying ineffective assistance of trial counsel claim is substantial, and that
petitioner was prejudiced. Id. at 1316, 1320. A "substantial" ineffective assistance of trial
counsel claim is one that has "some" merit" which, given the Martinez Court's citation to Miller­
El v. Cockrell, 537 U.S. 322 (2003), appears to be governed by the standards applicable to
certificates of appealability. Id. at 1318 -19. Significantly, however, the lv/artinez Court
explicitly limited its rule, stating that the "holding in this case does not concern errors in other
kinds of proceedings, including appeals from initial-review collateral proceedings." Id.

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(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[ingJ 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 [J that was not presented at trial." Schlup v. Dela, 513
U.S. 298, 324 (1995). In the Third Circuit, evidence is "new" for the purposes of the Schlup
standard only if it was not available at the time of trial and could not have been discovered
earlier through the exercise of due diligence,3 except in situations where that evidence was not
discovered due to the ineffective assistance of trial counsel. See Houck v. Stickman, 625 F.3d 88,
93-94 (3d Cir. 2010). In tum, when determining if a petitioner's new evidence shows it is "more
likely than not that no reasonable juror would have convicted him," a court must consider "all
the evidence, old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that would govern at trial." House v. Bell,
547 U.S. 518, 538 (2006). Finally, a court "may consider how the timing of the submission [of
actual innocence J and the likely credibility of the affiant[J bear on the probable reliability of that
evidence." Schlup, 513 U.S. at 332; see also McQuiggin, 133 S.Ct. at 1935.

3The circuits addressing the issue are split over what constitutes "new" evidence for Schlup
purposes. The Eighth Circuit's interpretation of "new" evidence corresponds with the Third
Circuit's, whereas the Seventh and the Ninth Circuits do not require the exercise of due
diligence, and view "new" evidence as evidence that was not "presented" at trial. See Kidd v.
Norman, 651 FJd 947, 953 (8 th Cir. 201l)(collecting cases).
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Here, Brokenbrough's Chao II/Williams argument alleges legal innocence, not actual
innocence. Consequently, even if the reasoning in the Chao II/Williams line of cases could be
generally applied to charges other than felony murder, Brokenbrough's Chao II/Williams
argument would not warrant equitable tolling.
Finally, to the extent Brokenbrough's untimely filing was the result oflegal ignorance or
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
14,2004).
Accordingly, the court will dismiss the petition as time-barred.

III.

CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2254 petition, 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 ofthe
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 (2000). In addition, when a federal court denies a habeas
petition 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 find it debatable: (I) 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. Id
The court has concluded that Brokenbrough's petition filed pursuant to 28 U.S.C. § 2254
should be denied as time-barred. Reasonable jurists would not find this conclusion to be
debatable. Therefore, the court will not issue a certificate of appealability.
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IV.

CONCLUSION
For the reasons discussed, the court will deny Brokenbrough's petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 without an evidentiary hearing.4 An appropriate
order will be entered.

4Having determined that the instant petition must be dismissed as time-barred, the court will not
address the State's additional reasons for dismissal.
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