Gibbs v. Morgan et al

Filing 4

MEMORANDUM 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
OTTO G. GIBBS,
Petitioner,
C.A. No. 13-455-LPS

v.

PHIL MORGAN, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM
I.

BACKGROUND
Presently pendillg before the Court is Petitioner Otto G. Gibbs' Application For A Writ Of

Habeas Corpus Pursuant To 28 U.S.C. § 2254 ("Petition"). (DI. 1) On June 20, 2011, Petitioner
was on probation for his 1997 conviction for second degree unlawful intercourse when he was
arrested for failing to properly register as a sex offender. (D.I. 1; see also Gibbs v. Carroll, 2004 WL
1376588 (D. Del. June 17; 2004); Gibbs v~ Morgan, 2015 WL 5319819 (D. Del. Sept. 14, 2015)) On
October 11, 2011, Petitioner pled guilty to failing to register as a sex offender and was immediately
sentenced to sixty days of incJceration. (D.I. 1 at 54)
Petitioner filed the insLt Petition in 2013. Although not entirely clear, Petitioner appears
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to contend that the Delaware Superior Court violated his right to counsel by refusing to appoint an
attorney to represent him during his December 20, 2010 sex offender tier assessment hearing. (D.I.
1 at 18) Petitioner appears to assert that Del. Code Ann. tit. 11, § 4120 created a liberty interest in
having representation during a sex offender tier assessment hearing, and, therefore, the Superior
Court's refusal to appoint counsel violated his due process rights. Id. Petitioner also asserts that the
application of Del. Code Ann. tit. 11, § 4120 to his case violates the Ex Post Facto Clause and the

Double Jeopardy Clause. (D.I. 1 at 19)

II.

LEGAL STANDARDS
Federal courts are required to liberally construe prose filings. See Rqyce v. Hahn, 151 F.3d 116,

118 (3d Cir. 1998). Nevertheless, a district court may summarily dismiss a habeas petition "if it
plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not
entitled to relief." See Rule 4, 28 U.S.C. foll. § 2254. Pursuant to 28 U.S.C. § 2254(a), a federal
district court has jurisdiction over a habeas petition filed on behalf of a person in custody pursuant
to the judgment of a State court "only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."

III.

DISCUSSION
To the extent Petitioner asserts that his sex offender tier hearing and his designation as a

Tier III sex offender pursuant to§ 4120 violated the Ex Post Facto Clause, and his right to be
protected against Double Jeopardy, the Court notes that it has already considered and denied this
identical argument in another habeas petition filed by Petitioner. 1 See Gibbs, 2015 WL 5319819 at
*3-*4. Therefore, the Court will not address this repetitive argument here.
As for Petitioner's contention that the Superior Court violated his Due Process rights by
denying his motion for the appointment of counsel during his December 2010 sex offender tier
assessment hearing, the Court concludes that summary dismissal of this argument is appropriate. 2

1

This first argument does not constitute an unauthorized second or successive habeas claim
because Petitioner asserted it in the instant proceeding while his other habeas case was still pending
before the Court. Petitioner is a frequent filer in both this Court and the Delaware State Court
system, and he often asserts repetitive and/ or overlapping grounds for relief, making it difficult to
discern his exact grounds for relief. The Court has made every effort to ensure that it has properly
identified Petitioner's claims.
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In his other habeas proceeding before the Court, Petitioner contended that the alleged
unconstitutional denial of representation during his 2010 Tier III designation hearing provided cause
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The Due Process Clause of the Fourteenth Amendment protects certain fundamental rights. 3 See

White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 1990). The first step in analyzing if a prisoner's Due
Process rights have been violated is determining if the prisoner has been deprived of an existing
liberty or property interest. See Swarthout v. Cooke, 562 U.S~ 216, 219 (2011). "A liberty interest may
arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty', or it may
arise from an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S.
209, 221 (2005). If the prisoner has been deprived of a liberty interest, then the Court must engage
in a further inquiry to determine if the procedures followed by the State we~e constitutionally
sufficient. See Swarthout, 562 U.S. at 219.
The Court has not found any Supreme Court case holding that a convicted sex offender has
a liberty interest in being represented by counsel during a sex offender tier assessment hearing, and
Delaware has not created a statutory right to counsel in such proceedings. Consequently, Petitioner
did not have a liberty interest in being represented by counsel during his December 2010 tier

for his procedural default of his substantive argument regarding the violation of the Due Process,
Ex Post Facto, and Double Jeopardy Clauses that occurred during his sex offender tier assessment
hearing. See Gibbs, 2015 WL 5319819, at *4. The Court rejected Petitioner's argument as meritless
and held that the absence of representation during Petitioner's 2010 Tier III designation hearing did
not constitute cause for the default of his substantive claim. Id. Because Petitioner has asserted the
instant denial of representation claim as an independent argument and not as a method to avoid a
procedural default, the Court will address it here.
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Petitioner does not appear to assert that his right to counsel during his sex offender tier
assessment hearing originates from the Sixth Amendment. Nevertheless, even if the Court were to
liberally construe his Petition as asserting this argument, it is unavailing. The Sixth Amendment of
the United States Constitution and Article I Section 7 of the Delaware Constitution provide a right
to counsel for indigent criminal defendants. However, in Delaware, sex offender tier assessment
hearings and registration requirements are not punitive in nature and are not considered to be part
of a criminal proceeding. See Helman v. State, 784 A.2d 1058, 1066 (Del. 2001) (a defendant's tier
level assignment is based solely on the statute, which prohibits the state court from exercising any
discretion in assessing a defendant's risk). Therefore, the Sixth Amendment right to counsel is not
implicated during a sex offender tier assessment hearing in Delaware.
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assessment hearing. See, e.g., Wilkerson v. State, 897 A.2d 768 (Table), 2006 WL 822733, at *2 (Del.
Mar. 28, 2006) ("[T]his Court has previously ruled that this 'compulsory approach' to sex offender
registration and community notification does not implicate any state or federal constitutional liberty
or privacy interest and does not constitute a violation of either due process or equal protection.").
As such, the Superior Court's denial of Petitioner's request for counsel during his sex offender tier
assessment hearing did not implicate the Due Process Clause.
Based on the foregoing, Petitioner's instant complaint about the Superior Court's denial of
his motion for the appointment of counsel constitutes a challenge to the Delaware Superior Court's
interpretation and application of I)elaware law. It is well-settled that state law errors do not present
issues cognizable on Federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Accordingly, the Court concludes that it lacks jurisdiction over the Petition.

IV.

CONCLUSION
For the reasons set forth above, the Court will summarily dismiss the instant Petition for

lack of jurisdiction. The Court will also decline to issue a certificate of appealability because
Petitioner has failed to make a "substantial showing of the denial of a constitutional right." See
28 U.S.C. § 2253(c)(2); 3d Cir. L.A.R. 22.2 (2011); United States v. Eyer, 113 F.3d 470 (3d Cir. 1997).
A separate Order will be entered.

Dated: March 31, 2017
UNITED STATES DISTRICYJUDGE

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