Barr v. Morgan et al

Filing 14

MEMORANDUM OPINION re 3 PETITION for Writ of Habeas Corpus. Signed by Judge Richard G. Andrews on 8/6/2014. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

JAMES A. BARR, III,
Petitioner,
Civil Action No.13-1197-RGA

V.

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

MEMORANDUM OPINION

James A. Barr, III. Prose Petitioner.
Karen V. Sullivan, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.

August

_b_,

2014

ANDRE~~T
Presently pending before the Court is Petitioner James A. Barr, Ill's ("Petitioner")
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (DJ. 3) The
State filed an Answer in opposition, contending that the Petition should be dismissed as
procedurally barred. (DJ. 11) For the reasons discussed, the Court will dismiss the Petition.
I.

BACKGROUND
In October 2011, Petitioner picked up Cheryl Truitt ("Truitt"), her three-month old baby,

and a friend ofTruitt's to do some errands. (DJ. 11at1, 16) When they were returning home,
Petitioner began to speak to Truitt as though they were in a relationship. Truitt said she was not
his girlfriend, and the two began arguing. They were still arguing when Petitioner dropped off
Truitt's friend at her home. Shortly after they pulled away from the friend's home, Petitioner
slammed on the brakes, pulled a knife out of his pants and told Truitt he was going to kill her.
Truitt tried to take the knife away from Petitioner, but cut herself. She then got out of the car,
grabbed the car seat containing the baby from the backseat and tried to run away. Petitioner
caught Truitt and pushed her up against a wall, which caused Truitt to drop the car seat.
Petitioner forced Truitt's head up in order to slice her neck, but lost his grip and stuck the knife
in her mouth, chipping her front tooth and cutting her lips. Petitioner pulled the knife out and cut
Truitt's face. (DJ. 11 at 1, 2, 16-17)
Truitt's friend saw the car stop and saw Truitt get out of the car and attempt to run
away from Petitioner. (D.I. 11 at 17) When she realized Petitioner had a knife, she called the
police and screamed at Petitioner, which allowed Truitt to escape. Truitt's friend grabbed the car
seat and refused to hand the baby over to Petitioner despite the fact that he was threatening her
with a knife. Petitioner threatened Truitt's friend and then fled the scene. Id.
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Petitioner was arrested in October, 2011 and was subsequently indicted on the charges of
first degree assault, possession of a deadly weapon during the commission of a felony
("PDWDCF"), terroristic threatening, and endangering the welfare of a child. (D.1. 11 at 2) On
May 24, 2012, Petitioner pied guilty to second degree assault as a lesser included offense of first
degree assault and to PDWDCF. On August 3, 2012, the Delaware Superior Court sentenced
Petitioner, effective as of October 29, 2011, to a total of twenty years at Level V incarceration,
suspended after twelve years to Level IV supervision, suspended after eight months for two years
at Level III supervision with TASC supervision. (D.1. 11 at 3) He did not appeal his convictions
or sentence.
Petitioner filed a prose motion for post-conviction relief pursuant to Delaware Superior
Court Criminal Rule 61 ("Rule 61 motion") on October 12, 2012, and a motion for
reconsideration of his sentence on October 22, 2012. (D.1. 11 at 3) The Superior Court
denied the motion for reconsideration of sentence because it raised a claim of ineffective
assistance of counsel that should be considered part of his previously filed Rule 61 motion. Id.
After reviewing defense counsel's affidavit in response to Petitioner's Rule 61 motion
and Petitioner's reply, the Superior Court denied the Rule 61 motion on January 14, 2013. See
State v. Barr, Case No. 1110019632, Order, J. Streett (Del. Super. Ct. Jan. 14, 2013). Petitioner

filed a notice of appeal on March 1, 2013, which the Delaware Supreme Court denied as
untimely on March 19, 2013.

(D.I. 11 at 3; D.I. 13, Barr v. State, No. 88, 2013, Notice to Show

Cause dated Mar. 1, 2013 and Order of Dismissal dated Mar. 19, 2013)

II.

EXHAUSTION AND PROCEDURAL DEFAULT
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the

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petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b);
O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picardv. Connor, 404 U.S. 270, 275
(1971 ). The AEDP A 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 of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
28 U.S.C. § 2254(b)(I).
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; Werts v. 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, in a procedural manner
permitting the court to consider the claims on their merits. Bell v. Cone, 543 U.S. 447, 451 n.3
(2005); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F.3d at 160; Coleman
v. Thompson, 501 U.S. 722, 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
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claim due to an independent and adequate state procedural rule, the claim is exhausted but
procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64
(1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 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." Murray v. Carrier, 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.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.

2001 ). A petitioner demonstrates a miscarriage of justice by showing a "constitutional violation
has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at
496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner must

present new reliable evidence - not presented at trial - that demonstrates "it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."
House v. Bell, 547 U.S. 518, 537-38 (2005); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir.

2002).
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III.

DISCUSSION

Petitioner timely filed the § 2254 Petition presently pending before the Court. The sole
claim in the Petition asserts that defense counsel provided ineffective assistance during the plea
process by failing to inform Petitioner that the State did not know Truitt's whereabouts and that
there were no medical records documenting Truitt's injuries. Although Petitioner presented this
ineffective assistance of counsel claim to the Superior Court in his Rule 61 motion and to the
Delaware Supreme Court on post-conviction appeal, the Delaware Supreme Court denied the
appeal as untimely pursuant to Delaware Supreme Court Rule 6. (DJ. 13, Barr v. State, No.88,
2014, Notice to Show Cause dated March 1, 2013 and Order of Dismissal dated March 19, 2013)
By applying the procedural bar of Delaware Supreme Court Rule 6, the Delaware Supreme Court
articulated a "plain statement" under Harris that its decision rested on state law grounds. In turn,
Delaware Supreme Court Rule 6 constitutes an independent and adequate state procedural rule.
See Smith v. Williams, 2003 WL 22937773, at *2-3, 5 (D. Del. Sept. 30, 2003). Thus, the Court

must treat the instant claim as exhausted but procedurally defaulted, meaning that it cannot
review its merits absent a showing of cause for the default, and prejudice resulting therefrom, or
upon a showing that a miscarriage of justice will occur if the claim is not reviewed.
Petitioner has not alleged, and the Court cannot discern, any cause for his procedural
default of the only claim in his Petition. In the absence of cause, the Court will not address the
issue of prejudice. In addition, Petitioner has not satisfied the miscarriage of justice exception to
the procedural default doctrine because he has not provided new reliable evidence of his actual
innocence. Indeed, the guilty plea colloquy includes Petitioner's own words describing his
felonious conduct. (D.I. 11 at 29-30) Accordingly, the Court will deny the Petition as
procedurally barred.
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IV.

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 procedurally barred from habeas
review. Reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court will not issue a certificate of appealability.
V.

CONCLUSION
For the reasons discussed, the Court concludes that the Petition must be denied as

procedurally barred. An appropriate Order will be entered.

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