Hester v. Phelps et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/28/2016. (cna)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

CORNELL HESTER,
Petitioner,
Civ. Act. No. 13-816-LPS

v.

DAVID PIERCE, Warden, and ATIOR..NEY
GENERAL OF
STATE OF DELAWARE,
Respondents.

Cornell Hester. Pro se Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department ofJustice, Wilmington,
Delaware. Attorney for Respondents.

MEMORANDUM OPINION

September 28, 2016
Wilmington, Delaware

(~~,fV

STARK, U.S. District Judge:
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.S.c. § 2254 ("Petition") filed by Petitioner Cornell Hester ("Petitioner"). (D.L 2) For the reasons
discussed, the Court will dismiss the Petition and deny the relief requested.

1. BACKGROUND
On the night of February 4, 2010, Valerie Wilkins was exiting her car in front of her
apartment when she heard bushes rustling and then observed Petitioner, her ex-boyfriend,
running towards her. (D.L 32 at 1) Petitioner was holding a paper with infonnation about his
father's funeral and screamed at Wilkins: "Look what you did to me, look what you did to my life."
Id. Wilkins told Petitioner to get away from her, but he grabbed her and forced her back into her

vehicle, taking her keys while striking her "\vith his fists. Petitioner climbed into the driver's seat and
attempted to start the car, hitting Wilkins when she tried to stop him. Id. Striking Petitioner with
her shoe, Wilkins exited the vehicle and attempted to run away, but Petitioner struck her to the
ground and began to kick and stomp on her head with his work boots. Id. at 1-2. When Wilkins
attempted to get up, Petitioner grabbed her by the hair and began to pull her around the parking lot
while striking her, screaming, "I am going to kill you." When Wilkins pulled away from Petitioner
and screamed for help, Petitioner yelled at her to get back in the car or he was going to hurt her
worse. When another resident screamed at Petitioner to get away from Wilkins, Wilkins fled to
another apartment while Petitioner fled the scene. \'Vilkins was transported to an emergency room
where she was treated for her injuries, including a deep laceration to the left side of her face. Id. at 2.
Between March 15,2010 and June 21, 2010, after three separate cases and indictments were
consolidated, Petitioner was l11dicted on the following charges: first degree carjacking, second degree
kidnapping, second degree assault, carrying a concealed weapon, terroristic threatening, criminal

mischief, four counts of non-compliance "With bond conditions, stalking, and criminal contempt of a
domestic violence protective order. See State t'. Hester, 2012 WL 3608713, at *1 (DeL Super. Ct. Aug.
21,2012). Petitioner filed several motions to dismiss defense counsel and appoint new counsel,
which the trial court dismissed as meridess at the final case review on August 9, 2010. (D.I. 32 at 2­
3)

On October 11,2010, at the request of defense counsel, the trial court ordered Petitioner to
undergo a mental health evaluation to determine if he was competent to stand trial. See

2012

WL 3608713, at *1. After reviewing the mental health evaluation report in November 2010, the trial
court concluded that Petitioner was competent to stand trial and scheduled trial for February 15,

2011. See State v. Hester, 2011 WL 664073, at *1 (DeL Super. Ct. Feb. 3, 2011). In January 2011,
Petitioner filed two motions to dismiss the case, alleging violations of his speedy trial rights,
excessive bail, ineffective assistance of counsel, and that he suffered extreme prejudice by
undergoing three mental health evaluations. Id. The trial court denied these motions on February 3,

2011. Id. at

On February 10, 2011, Petitioner pled guilty to second degree assault in

exchange for the State dismissing all remaining charges. He was immediately sentenced to eight
years of incarceration, suspended after five years. (D.I. 32 at 3)
Petitioner did not appeaL (D.I. 32 at 3) Instead, he filed a motion for transcripts on March
28,2011, which the Superior Court granted on May 18,2011, and he filed a motion for modification
of sentence on April 18, 2011, which the Superior Court denied on May 13,2011. (D.I.

at 3-4)

On September 19, 2011, Petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Court Rule 61 ("Rule 61 motion"). See Hester, 2012 WL 3608713,
at *1. He also moved for the appointment of post-conviction counsel and to compel additional
transcripts and other materials; the Superior Court denied both motions. (D.I. 32 at 4) Petitioner
2

appealed the Superior Court's denial of his motion for transcripts, and the Delaware Supreme Court
dismissed his appeal for lack of jurisdiction. (D.L 34, Hester 1'. State,

]\io.

1

2012 Order (Del. Apr.

18, 2(12)) On April 23, 2012, Petitioner filed a motion for correction of sentence, which the
Superior Court denied on May 18,2012. (D.L 32 at 4)
OnJune 1,2012, a Superior Court Commissioner filed a Report and Recommendation that
Petitioner's Rule 61 motion should be denied. (D.L 35, State

Zi.

Hester, Cr. ID No 1002002758,

Comm'rs Rep. & Rec. (Del. Super. Ct. June 1,2(12) Petitioner filed an objection to the Report and
Recommendation. The Superior Court adopted the Report and Recommendation and denied
Petitioner's Rule 61 motion on August 21, 2012. See Hester, 2012 WL 3608713, at *5. He did not
appeal that decision. Petitioner filed a petition for a writ of habeas corpus, which the Superior
Court denied on December 3, 2012. (D.l. 32 at 5)

II.

LEGAL STANDARDS
A.

The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty

of 1996 ("AEDPA")

"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." Woocijord 1}. Garceau, 538 U.S.

206 (2003) (internal

citations and quotation marks omitted). Pursuant to AEDPA, a federal court may consider a habeas
petition filed by a state prisoner only "on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States." 28 U.s.c. § 2254(a). AEDPA imposes
procedural requirements and standards for analyzing the merits of a habeas petition in order to
"prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the
extent possible under law." Bellz'. Cone, 535 U.S. 685,693 (2002); see also IVoocijord, 538

3

.S. at 206.

B.

Exhaustion and Procedural Default

Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available relief under state law. See 28 U.S.c. § 2254(b);
O'Sullivan v. Boerckel, 526 U.S. 838,842-44 (1999). AEDPA states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts
of the State; or

(B)

(i) there is an absence
available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.

28 V.S.c. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to give
"state courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State's established appellate review process." 0 'Sullivan, 526 U.S. at 844-45; see also
Wens

1).

Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement

by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either
on direct appeal or in a post-conviction proceeding. See Lamben v. Blackwell, 134 F.3d 506, 513 (3d
Cir. 1997); CozJerdale

i'.

5 '!Jder, 2000 WL 1897290, at *2 (D. Del. Dec. 22, 2000). "Fair presentation of

a claim means that the petitioner must present a federal claim's factual and legal substance to the
state courts in a manner that puts them on notice that a federal claim is being asserted." Hoiiowqy v.
Horn, 355 F.3d 707, 714 (3d Cir. 20(4).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See LineJ ll. LarkinJ, 208 F.3d 153, 160 (3d
Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although technically exhausted, such claims
4

are nonetheless procedurally defaulted. See LineJ, 208 F.3d at 160; Coleman v. TbompJon, 501 U.S.
750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state's highest court, but that
court "clearly and expressly" refuses to review the merits of the claim due to an independent and
adequate state procedural rule, the claim is exhausted but procedurally defaulted. See Coleman, 501
"C.S. at 750; HamJ l'. Reed, 489

.S. 255,260-64 (1989).

Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates cause for the procedural default and actual prejudice resulting therefrom.

SeeJvlcCandleJJ v. Vaughn, 1

F.3d 255, 260 (3d Cit. 1999); Coleman, 501 U.S. at 750-51. To

demonstrate cause for a procedural default, a petitioner must show that "some objective factor
external to the defense impeded counsel's efforts to comply with the State's procedural rule."

Murrqy v. Camer, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show
"that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates
that failure to review the claim will result in a fundamental miscarriage of justice. See EdwardJ t'.

Carpenter, 529 U.S. 446, 451 (2000); W'enger v. Frank, 266 F.3d 218, 224 (3d Cit. 2(01). A petitioner
demonstrates a miscarriage of justice by showing a "constitucional violation has probably resulted in
the conviction of one who is actually innocent." Alurrqy, 477 U.S. at 496. Actual innocence means
factual innocence, not legal insufficiency, Jee BOUJ/ry v. United StateJ, 523 U.S. 614,623 (1998), and is
established if no reasonable juror would have voted to find the petitioner guilty beyond a reasonable
doubt, Jee Sweger v.

Chesn~y,

294

506, 522-24 (3d Cit. 2002). A petitioner establishes actual

innocence by asserting "new reliable evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence
5

that was not presented at tria},"

showing that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.

See Hllbbard I). Pil1cbak, 378 F.3d

III.

339-40 (3d Cit. 2004).

DISCUSSION
Petitioner timely filed the instant habeas Petition challenging his February 2011 guilty plea to

second degree assault. (D.l. 2; D.l. 5) Although the bulk of the Petition asserts arguments unrelated
to Petitioner's February 2011 guilty plea, the Petition appears to assert the following two grounds
for relief with respect to his February 2011 conviction for second degree assault: (1) his speedy trial
rights were violated; and (2) defense counsel provided ineffective assistance. Petitioner also filed a
subsequent amendment to the petition. (D.l. 10) The State filed an Answer asserting that the Court
should deny the Petition because the two Claims asserted therein are procedurally barred from
Federal habeas review. (D.l. 32) The State also notes that the amendment to the petition (D.l. 10)
asserts arguments regarding an entirely different state court conviction from the one being
challenged in this proceeding. Therefore, the Court will only consider the arguments presented in
the original Petition.!
The record reveals that Petitioner failed to exhaust state remedies for Claims One and Two,
because he did not file a direct appeal or a post-conviction appeal. At this juncture, any attempt by
Petitioner to obtain further state court review of Claim One by filing a direct appeal would be time­
ba.tred by Delaware Supreme Court Rules 6(a) (iii). See Del. Sup. Ct. R. 6(a) (iii) (imposing 30-day
period for filing criminal appeal). Any attempt to obtain further state court review of Claims One or
Two via a new Rule 61 motion would be time-barred under Delaware Superior Court Criminal Rule
61 (i) (1 ), as well as procedurally defaulted under Rule 61 (i) (3). See Del. Sup. Ct. Crim. R. 61 (i) (1 ), (3).

IPetitioner also filed a document titled "Petition for Writ of
Coram Nobis." (D.l. 41) Since
this document asserts arguments completely unrelated to the comriction and sentence at issue in this
proceeding, the Court will not address the issues presented therein.
6

Given these circumstances, Claims One and Two are procedurally defaulted, meaning that the Court
cannot review the merits of the claims absent a showing of cause and prejudice, or that a miscarriage
of justice will result absent such review.
Petitioner attempts to establish cause for his procedural default by asserting that he was
unconstitutionally denied representation by counsel during his Rule 61 proceeding under ivlartinez v.

Ryan, 132 S.Ct. 1309 (2012). (D.I. 19 at 1

This attempt is unavailing. In Marti11e::;) the Supreme

Court held for the first time that the absence of counselor the 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. Since Claim One does not
allege ineffective assistance of counsel, the narrow exception to the procedural default doctrine
under Martinez does not apply. Petitioner does not assert any other reason for his default of this
Claim. Thus, Petitioner has failed to demonstrate cause for his procedural default of Claim One
Additionally, even though the arguments in Claim Two are premised on the alleged
ineffective assistance of defense counsel, and Petitioner was not represented by counsel during his
Rule 61 proceeding, the narrow Martinez exception to the procedural default doctrine does not
provide Petitioner \V"ith a method of establishing cause for his procedural default of Claim Two. As
previously explained, Martinez provides that the absence of counsel or the inadequate assistance of
counsel during an initial-review state collateralproceeding may establish cause for a petitioner's
procedural default of a claim of ineffective assistance of trial counsel. See Martine::;;, 132 S.Ct. at 1320;

TrezJino IJ. Tbaler,l

S.Ct. 1911,1918,1921 (2013); Noms v. Brooks, 794 F.3d 401, 405 (3d Cir. 2015)

("Martinez made very dear that its exception to the general rule of Coleman applies only to attorney
error causing procedural default during initial-review collateral proceedings, not collateral appeals.").
Here, the arguments in Claim Two were presented in Petitioner's initial collateral review proceeding,
7

and were only waived on collateral appeal due to his failure to file a collateral appeaL Therefore,

Martinez is inapplicable, and the fact that Petitioner was not represented by counsel during his Rule
61 proceeding does not establish cause for his default.
In order to satisfv

prejudice portion of the "cause and prejudice" standard of the

procedural default doctrine, a petitioner must demonstrate prejudice under Coleman. See Coleman,
501 U.S. at 750. When the underlying claim is for ineffective assistance of counsel, and that claim
falls outside the narrow lvIartinez exception, the standard for demonstrating prejudice sufficient to
overcome a procedural default is whether there is a reasonable probability that, but counsel's errors,
the result of the proceedings would have been different. See Werts, 228 F.3d at 193; Jee a/Jo Strickland
fJ.

rraJiJington, 466 U.S. 668, 694 (1984). In the context of a guilty plea, a petitioner establishes

prejudice by sho"\Vwg a reasonable probability that he would not have pled guilty and would have
insisted on going to trial but for counsel's errors. See Hill 1). Lockhart, 474 U.S. 52 (1985).
In this case, Petitioner asserts that defense counsel was operating under a conflict of interest
while representing him because Petitioner had filed a federal lawsuit against defense counsel alleging
ineffective assistance, and because defense counsel moved to withdraw from Petitioner's direct
appeal in another criminal proceeding. (D.I. 5 at 2, 8) As explained below, in limited ineffective
assistance of counsel cases, a court may presume prejudice under Strickland if an actual conflict of
interest existed between defense counsel and the petitioner. Since the prejudice standard for
excusing a procedural default of an ineffective assistance of counsel claim is the same as the
prejudice standard for establishing ineffective assistance/ the Court liberally construes Petitioner's
allegation that defense counsel represented him while operating under a conflict of interest as an
attempt to establish that the prejudice portion of the cause and prejudice test should be presumed.

2See Holland il. Horn, 519 F.3d 107, 120 (3d Cir. 2008).
8

(D.l. 5 at 2) Thus, even though Petitioner's failure to establish cause eliminates the Court's need to
determine prejudice, the Court will briefly address the issue.
In

Ct~yler v.

SuI/ivan, 446

335 (1980), the Supreme Court explained that the prejudice

required by Strickland can be presumed if the defendant demonstrates that counsel "actively
represented conflicting interests" and that "an actual conflict of interest adversely affected his
lawyer's performance." !d. at 348,350. Ctrylerand subsequent Supreme Court jurisprudence
regarding actual conflicts of interest arose in the context of an attorney's representation of multiple
clients, where "the conflict

between the interests of one defendant and the interests of other

defendants served by the same attorney." GOtJernment qf Vir;gin Islands 11. Zepp, 748

125, 135 (3d

Cir. 1984). However, in 1983, the Third Circuit expressly extended Ctryler to conflict of interest
cases other than those arising in the multiple representation context, such as when counsel's
personal interests are "'inconsistent, diverse, or otherwise discordant' with those of his client and
[those interests] affected the exercise of his professional judgment on behalf of his client." Zepp, 748
F.2d at 135. As explained by the Third Circuit, an "actual conflict" arising from defense counsel's
active representation of conflicting interests is established by showing (1) some plausible alternative
defense strategy might have been pursued, and (2) the alternative defense was inherently in conflict
with or not undertaken due to the attorney's other loyalties or interests. See United States tJ.lviorelli,
169 F.3d 798, 810 (3d Cir. 1999). Although the Supreme Coun questioned the applicability of Ct~yler
to conflicts arising outside the context of multiple representation in its 2002 decision lVIickens tJ.

TqylO1; and opined that it remains an open question whether C1!Jler should be extended to other

3The C1!Jlerpresumption of prejudice is typically applied when analyzing the merits of an ineffective
assistance of counsel claim, not when determining if the procedural default of an ineffective
assistance of counsel claim can be excused. However, given the convoluted nature of Petitioner's
arguments, the Court will
prudence and analyze Petitioner's conflict of interest argument in
the context of his procedural default.
9

kinds of conflict of interest cases,4 the Third Circuit has not addressed the

of Mickens on its

holding in Zepp. Therefore, the Court assumes that Zepp's extension of Cu.ylels doctrine regarding
actual conflicts of interest applies in Petitioner's case.
Nevertheless, Petitioner's Ct!ylerargument for presuming prejudice is unavailing. First, the
fact that the federal CIvil suit Petitioner filed against defense counsel was still pending during his
state criminal proceeding in this case does not, on its own, demonstrate that a per se actual conflict of
interest existed or adversely affected defense counsel's perfonnance. See, e.g., Winfield v. Roper, 460
F.3d 1026, 1040 (8 th Cir. 2006) (holding that defendant's civil lawsuit against defense counsel does
not per se create actual conflict). Notably, after extensive discussion about the federal civil suit
during Petitioner's final case review on August 9, 2010, the Superior Court concluded that no
conflict of interest existed between Petitioner and defense counsel, and denied Petitioner's motion
to replace defense counsel. (D.L 2 at 176-180) Petitioner has not provided anything in this
proceeding to rebut the Superior Court judge's factual finding that Petitioner's federal civil suit
against defense counsel did not create a conflict of interest in his state criminal proceeding. In fact,
the federal civil suit against defense counsel was dismissed as frivolous on September 13, 2010 and,
during his February 2011 guilty plea colloquy, Petitioner confirmed that he was satisfied with
defense counsel's representation in the state criminal proceeding underlying this case. (D.L 34, Plea
Colloquy and Sentencing Transcript dated February 10, 2011, at 4) Given this record, the Court
concludes that defense counsel was not operating under a conflict of interest as a result of
Petitioner's pending federal civil suit.
Moreover, even if the Court were to presume there was a conflict of interest, Petitioner has
failed to demonstrate that the conflict adversely affected defense counsel's performance. Petitioner

4Mickem v. Tqylor, 535 U.S. 162, 175-76 (2002).
10

has not provided some plausible alternative defense strategy that defense counsel could have
pursued but did not because it was inherently in conflict with defense counsel's other interests.
Notably, Petitioner was facing eighty years to life in prison if he was convicted and found to be a
habitual offender, but defense counsel obtained an extremely favorable plea agreement that resulted
in an eight year sentence, to be suspended after five years for decreasing levels of probation. See

Hester, 201:2 \-X;'L 3608713, at *4.

these reasons, the Court concludes the Cuyler exception is

inapplicable, and prejudice cannot be presumed.
Since Petitioner has not demonstrated cause and prejudice, the only way in which Claims
One and Two can be reviewed on the merits by this Court is if Petitioner were to demonstrate that a
failure to do so will result in a miscarriage of justice. The miscarriage of justice exception to the
procedural default doctrine is unavailable here, because Petitioner has not provided new reliable
evidence of his actual innocence. Accordingly, the Court will deny Claims One and Two as
procedurally barred from Federal habeas review.

IV.

CERTIFICATE OF APPEALABILITY
district court issuing a final order denying a § 2254 petition must also decide whether to

issue a certificate of appealability. See 3d Cit. 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. § 2:253 (c) (2); Slack

1/.

McDaniel, 529 C.S. 473,

484 (2000).
The Court has concluded that Petitioner's habeas claims do not warrant relief. In the
Court's view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court declines to issue a certificate of appealability.
11

v.

CONCLUSION
For the reasons discussed, Petitioner's Application For A Writ Of Habeas Corpus Pursuant

To 28 V.S.c. § 2254 is DENIED. An appropriate Order will be entered.

12