Miller v. Biden et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 8/29/17. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MALIK MILLER,

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Petitioner,

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v.

Civil Action No. 14-466-GMS

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DANA METZGER, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELA WARE,
Respondents. 1

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Malik Miller. Pro se petitioner.
Elizabeth R. McFarlan, Delaware Department of Justice, Wilmington, Delaware. Counsel for
Respondents.

MEMORANDUM OPINION

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Warden Dana Metzger is the current Warden of James T. Vaughn Correctional Center, where
Miller is incarcerated. See Fed. R. Civ. P. 25(d).

Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 filed by petitioner Malik X. Miller ("Miller"). (D.I. 1; D.I. 6) For the reasons discussed,
the court will deny the petition.

I.

FACTUAL AND PROCEDURAL BACKGROUND
In June 2009, Miller pied guilty to one count of first degree assault. See Miller v. State, 47

A.3d 972 (Table), 2012 WL 2580186, at * 1 (Del. July 3, 2012). The Delaware Superior Court
sentenced him to a total period of twenty-five years at Level V incarceration, suspended after serving
three years for twenty-two years at Level IV work release, suspended after serving eight months at
work release for twenty-one years and four months at Level IV home confinement, suspended after
serving six months for eighteen months at Level III probation. Id. Miller did not appeal his
conviction or sentence.
In November 2011, Miller was charged with violating his probation after becoming involved
in a fight at the Level IV Plummer Center. See Miller, 2012 WL 2580186, at * 1. Miller admitted the
violation at his violation of probation ("VOP') hearing, and the Superior Court sentenced him to six
months at Level V incarceration or VOP Center and, upon completion, a restart of the Level IV
portion of his original sentence. Id. The Delaware Supreme Court affirmed that judgment on
appeal. Id.
In November 2012, Miller was charged with his second VOP for failing to report to his
probation officer and for possessing drugs and a firearm. See Miller v. State, 69 A.3d 371 (Table),
2013 WL 3488268, at *l (Del. July 8, 2013). Following a VOP hearing, the Superior Court found
that Miller had violated his probation, and sentenced him to twenty-two years at Level V
incarceration, suspended after serving eight years in prison for eighteen months at Level II probation.

Id. Miller appealed, and the Delaware Supreme Court affirmed the Superior Court's adjudication of

Miller's second VOP and sentence on July 8, 2013. Id. at *2.

II.

GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act 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." Woodford v. Garceau, 538 U.S. 202, 206 (2003).
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." Bell v.

Cone, 535 U.S. 685, 693 (2002).
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. 28 U.S.C. § 2254(b);

0 'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971 ). 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 of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
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28 U.S.C. § 2254(b)(l).
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." O'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. See 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. See Lines v. Larkins, 208 F.3d 153, 160
(3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. See 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 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 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.

See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51. To

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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.

See 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. See 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).

C. Standard of Review
When a state's highest court has adjudicated a federal habeas claim on the merits, the
federal court must review the claim under the deferential standard contained in 28 U.S.C.
§ 2254(d). 2 Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted ifthe
state court's decision was "contrary to, or involved an unreasonable application of, clearly

2

A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) ifthe
state court decision finally resolves the claim on the basis of its substance, rather than on a
procedural or some other ground. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009).

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established Federal law, as determined by the Supreme Court of the United States," or the state
court's decision was an unreasonable determination of the facts based on the evidence adduced
in the trial. 28 U.S.C. § 2254(d)(l) & (2); see also Williams v. Taylor, 529 U.S. 362, 412 (2000);

Appel v. Horn, 250 F .3d 203, 210 (3d Cir. 2001 ). This deferential standard of§ 2254(d) applies
even "when a state court's order is unaccompanied by an opinion explaining the reasons relief
has been denied." Harrington v. Richter, 562 U.S. 86, 98-100 (2011). As explained by the
Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in
the absence of any indication or state-law procedural principles to the contrary." Id.
Finally, when reviewing a claim under§ 2254(d), a federal court must presume that the
state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(l); Appel, 250
F.3d at 210. This presumption of correctness applies to both explicit and implicit findings of
fact, and is only rebutted by clear and convincing evidence to the contrary. 28 U.S.C.
§ 2254(e)(l); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). The Supreme Court has
"not defined the precise relationship between § 2254( d)(2) and § 2254( e )(1 ). " Burt v. Titlow,
134 S.Ct. 10, 15 (2013); but see Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)(stating that the
clear and convincing standard in § 2254( e )(1) applies to factual issues, whereas the unreasonable
application standard of§ 2254( d)(2) applies to factual decisions).

III.

DISCUSSION
Miller's timely filed amended petition asserts the following nine grounds for relief: (1)

his Confrontation Clause rights were violated when a police officer testified about certain
statements made by Miller's co-defendant; 3 (2) the second VOP sentence was based on

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The State describes claim one as alleging that the admission of the officer's testimony deprived
Miller of his right to due process, and focuses on the propriety of the admission of hearsay
evidence. (D.I. 10 at 7-8) On appeal from his second VOP, Miller appears to have presented
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insufficient evidence that he possessed drugs and a gun; (3) the long sentence constitutes cruel
and unusual punishment; (4) there was insufficient evidence of the aggravating factors to support
the sentence; (5) Miller's due process rights were violated because the administrative warrant did
not notify him that he was charged with possession of cocaine; (6) Miller's due process rights
were violated when the State used evidence that Miller provided a false name when that evidence
was not disclosed to Miller prior to the hearing; (7) defense counsel provided ineffective
assistance by not challenging the drug evidence on the basis of the evidence problems at the
Office of the Chief Medical Examiner ("OCME"); (8) there was insufficient evidence that Miller
possessed the drugs because they were not tested; and (9) the lower standard of review used in
VOP proceedings provided the State with procedural advantages.
A. Claims Two and Four: Improper Sentencing Considerations

It is well-established that"[ s]tate courts are the ultimate expositors of state law," 4 and
claims based on errors of state law are not cognizable on habeas review. See Estelle v. McGuire,
502 U.S. 62, 67-68 (1991 ); Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Notably, a "state
court's sentencing decision and claims arising from such decision are not constitutionally
cognizable unless the sentence exceeds statutory limits or is wholly unauthorized by law." Siena
v. Carroll, 2005 WL 768487, at *3 (D. Del. Apr. 5, 2005).
In claims two and four, Miller admits he violated his probation by missing his
appointment with his probation officer, but he contends the Superior Court improperly

claim one as a combined due process (hearsay)/Confrontation Clause argument. Here, however,
Miller appears to focus on the Confrontation Clause violation aspect of his argument by asserting
that the arresting officer's testimony "violat[ed] the defendant's right to question an adverse
witness [because] the co-defendant was never subpoenaed to testify himself." (D.I. 1at4; D.I. 6
at 4) Given the way he has presented the argument in this proceeding, the court construes claim
one as asserting a Confrontation Clause violation.
4
Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
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considered "false aggravating factors" and unreliable or insufficient evidence of his drug and gun
possession when determining his sentence. Significantly, Miller does not assert that his sentence
exceeds the statutory limits. Therefore, the court will deny claims two and four for failing to
present a cognizable issue on federal habeas review.

B. Claim One: Police Officer's Testimony Violated Confrontation Clause Rights
In claim one, Miller argues that his right to question an adverse witness was violated
because the Superior Court permitted the testifying officer to repeat statements made by Miller's
codefendant without requiring the codefendant to testify himself. Specifically, the officer
testified that Miller's co-defendant said Miller was in the front passenger seat of the vehicle
before the police arrived. (D.I. 12 at 17) The police officer also testified that the police found
drugs in the same car under the passenger seat in which Miller was sitting. (D.I. 12 at 11, 17)
On appeal, the Delaware Supreme Court denied claim one as meritless, explaining that Miller's
admission "to the charged violation of failing to report to his probation [] alone is sufficient
evidence to justify the Superior Court's finding a violation." Miller, 2013 WL 3488268, at* 1.
Given the Delaware Supreme Court's adjudication of this claim, Miller will only be entitled to
habeas relief if the Delaware Supreme Court's decision was either contrary to, or an
unreasonable application of, clearly established federal law.
The Confrontation Clause of the Sixth Amendment provides, in relevant part, that "in all
criminal prosecutions, the accused shall enjoy the ... right to be confronted with the witnesses
against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 US. 36 (2004) and its
progeny, the United States Supreme Court held that the Confrontation Clause bars the admission
of testimonial statements of witnesses absent from trial that are admitted to establish the truth of
the matter asserted in the statement, unless the witness is unavailable to testify and the defendant
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had a prior opportunity for cross-examination. See Crawford, 541 US. at 59, 60 n. 9 (2004); see
also Davis v. Washington, 547 U.S. 813, 823-24 (2006). A testimonial statement is a statement

that is made during non-emergency circumstances and is a statement which the declarant would
objectively foresee might be used in the investigation or prosecution of a crime. See United
States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005); Davis, 547 U.S. at 822.

The threshold question in every Confrontation Clause case is whether the challenged
statement is testimonial and, if so, whether it was introduced to establish the truth of the matter
asserted. See Hinton, 423 F.3d at 357. If the statement is not testimonial in nature, then the
Confrontation Clause has no application. However, even if a statement is testimonial in nature,
the "erroneous admission of testimonial hearsay in violation of the Confrontation Clause is
simply an error in the trial process itself' that may be affirmed "if the error was harmless."
United States v. Jiminez, 513 F.3d 62, 78 (3d Cir. 2008). A constitutional error is harmless ifthe

violation did not have a "substantial and injurious effect or influence on the jury's verdict."
Calderon v. Coleman, 525 U.S. 141, 147 (1998). "Under this standard, habeas petitioners[] are

not entitled to habeas relief on trial error unless they can establish that it resulted in actual
prejudice." Brecht v. Abramson, 507 U.S. 619, 638 (1993).
In this case, the court need not determine if the officer's testimony was subject to the
Confrontation Clause analysis established in Crawford, because that testimony did not result in
actual prejudice. The record clearly demonstrates that Miller admitted he missed a probation
appointment, and this admission, on its own, provided sufficient evidence for the Superior Court
to find that Miller had violated his probation. Accordingly, the court will deny claim one
because the Delaware Supreme Court's decision was neither contrary to, nor an unreasonable
application of, clearly established federal law.
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C. Claim Three: Cruel and Unusual Punishment

In claim three, Miller contends that his sentence constitutes cruel and unusual punishment
because it is disproportionate to the admitted offense of missing his appointment with his
probation officer. The Delaware Supreme Court denied this claim as meritless, noting that the
Superior Court could have sentenced Miller to serve the remaining twenty-one years and six
months remaining on his original sentence but, instead, "only imposed an eight-year prison term
[]despite Miller's failure to present any evidence in mitigation." Miller, 2013 WL at *2. Given
this adjudication, Miller will only be entitled to habeas relief ifthe Delaware Supreme Court's
decision was either contrary to, or an unreasonable application of, clearly established federal law.
The Eighth Amendment forbids cruel and unusual punishment, and it applies to the States
via the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 667 (1962). Two
decisions of the United States Supreme Court summarize the applicable Eighth Amendment
principles for non-capital sentencing: Lockyer v. Andrade, 538 U.S. 63 (2003) and Ewing v.

California, 538 U.S. 11 (2003). In Lockyer, the Supreme Court extensively reviewed its prior
cases dealing with Eighth Amendment challenges to criminal sentences, and concluded that it
has "not established a clear and consistent path for courts to follow [in determining whether a
particular sentence for a term of years can violate the Eighth Amendment]." Lockyer, 538 U.S.
at 72. The Lockyer Court explained that, for the purposes of analyzing an Eighth Amendment
claim under § 2254( d)( 1), the only clearly established governing legal principle is that "the gross
disproportionality principle, the precise contours of which are unclear, [is] applicable only in the
'exceedingly rare' and 'extreme' case." Id. The Lockyer Court then held that a recidivist's
minimum sentence of fifty years was not grossly disproportionate to the two counts of petty theft
offenses that triggered the application of the recidivist statute. Id. at 67, 77.
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In Ewing, the Supreme Court rejected the defendant's claim that a sentence of twentyfive years to life for stealing three golf clubs was "grossly disproportionate" to the crime. See
Ewing, 538 U.S. at 20, 28. The Ewing Court reiterated that the Eighth Amendment "contains a

'narrow proportionality principle' that 'applies to noncapital sentences,"' Id. at 20, which "does
not require strict proportionality between the crime and the sentence. Rather, it forbids only
extreme sentences that are 'grossly disproportionate' to the crime." Id. at 23. The Ewing Court
explained that a court engaging in the proportionality analysis must compare the harshness of the
penalty imposed upon the defendant with the gravity of his triggering offenses and criminal
history. Id. at 28-29. "In weighing the gravity of [the defendant's] offense, [the court] must
place on the scales not only his current felony, but also his long history of felony recidivism."
Ewing, 538 U.S. at 29.

After reviewing the Delaware Supreme Court's denial of Miller's Eighth Amendment
argument within the aforementioned framework, the court concludes that the Delaware Supreme
Court's decision was neither contrary to, nor an unreasonable application of, the "gross
proportionality" standard as articulated in Lockyer and Andrade. In Delaware, once the Superior
Court has determined that a probationer violated the terms of his probation, the Superior Court is
authorized to re-impose any portion of his previously suspended prison term, giving credit for all
time previously served on the sentence at Level V incarceration. See Gamble v. State, 728 A.2d
1171, 1172 (Del. 1999). The maximum permissible sentence for a probation violation depends
upon the probationer's original sentence and the amount of time previously suspended and
served at Level V. See, e.g., 11 Del. C. Ann.§ 4334(c)(stating that "[i]fthe violation is
established, the court may ... require the probation violator to serve the sentence imposed, or

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any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence
which might originally have been imposed").
Here, Miller's original twenty-five year prison sentence was based on his June 1, 2009
guilty plea to first degree assault as a lesser-included offense of attempted murder after shooting
a man in the face. When imposing that sentence, the Superior Court noted that
[t]his is a lesser included offense of attempted murder as result of a turf war. The
defendant is a dangerous young man with little education and few social skills.
Probation and Parole must ensure defendant is working or getting his GED and
not abroad at night.
(D.I. 12 at 31) Following Miller's second VOP, the Superior Court was authorized to impose a
sentence requiring Miller to the serve the entire twenty-two years remaining on his original
sentence in prison. The eight year prison term the Superior Court actually imposed for Miller's
second VOP was well within the authorized statutory limits. In addition, Miller's second VOP
was established by competent evidence, and the non-incarcerative portion (Level IV home
confinement) of his first VOP sentence was not effective in preventing him from committing a
second violation of his probation.
Thus, after viewing all of these factors together, the court concludes that the second VOP
sentence is not so exceedingly rare or extreme to conclude that the sentence is "grossly
disproportionate" to Miller's second probation violation. Accordingly, Miller's Eighth
Amendment claim does not warrant federal habeas relief under § 2254( d)(l ).

D. Claims Five - Nine: Procedurally Barred
The record reveals that Miller did not present claims five, six, seven, eight, and nine to
the Delaware Supreme Court when he appealed his second VOP or in a post-conviction motion

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relating to his second VOP. 5 Any attempt to raise the arguments in a new Rule 61 motion would
be denied as time-barred under Rule 61 (i)(l ). Therefore, claims five through nine are
procedurally defaulted, which means that the court cannot review their merits unless Miller
demonstrates cause and prejudice, or that a miscarriage of justice will result from the absence of
review.
Miller does not assert any cause or prejudice for his default of claims five, six, eight, or
mne. He does, however, attempt to establish cause for his default of claim seven by referencing
the "newly discovered evidence" of the evidentiary "chain of custody" problems at the OCME,
and by blaming defense counsel for failing to challenge the propriety of admitting the drugs
seized in his case due to the OCME scandal. This attempt is unavailing. The evidentiary
problems at the OCME were not revealed until February, 2014, more than one full year after the

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In his reply to the State's answer, Miller contends that he actually did present claims five, six,
eight and nine to the Delaware Supreme Court on appeal from his second VOP:
Although not in the same form or fashion as in the direct appeal, [I have] always
touched on the same topic. Grounds E [5], F [6], H [8], and I [9]. All challenge
the sufficient [sic] of the State's evidence, just in a more technical way. The facts
still remain that [I] was deprived unconstitutionally of notice of the nature of the
charge against [me] and of the evidence to be presented against [me].
(D.I. 13 at 2) The court disagrees with Miller's description of the arguments he presented to the
Delaware Supreme Court as questioning the sufficiency of the possession evidence.
Nevertheless, even if the court were to liberally construe the arguments Miller presented to the
Delaware Supreme Court on appeal of his second VOP as presenting the same arguments
contained in claims five, six, eight and nine of this proceeding, the court would deny the claims
for failing to satisfy § 2254( d). Claims five, six, eight, and nine of this proceeding challenge the
sufficiency of the evidence regarding Miller's possession of drugs and a gun. Pursuant to
Jackson v. Virginia, 443 U.S. 307 (1979), "the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." Id. at 319. Since the Superior
Court also found that Miller had violated his probation by failing to keep his appointment with
his probation officer, Miller's argument that there was insufficient evidence of drug and weapon
possession to support his second VOP conviction does not satisfy the Jackson standard.
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conclusion of Miller's January 16, 2013 second VOP hearing. Given this timing, defense
counsel could not have challenged the drugs seized in Miller's case on the basis of the still-yetto-be discovered OCME evidence problems. Additionally, nothing in the record indicates that
the drugs in Miller's case were actually sent to or tested by the OCME. For these reasons, the
OCME evidence problems and defense counsel's actions in relation to this issue do not constitute
cause for Miller's procedural default of claim seven.
In the absence of cause, the court will not address the issue of prejudice with respect to
claim seven. Moreover, the miscarriage of justice exception to the procedural default doctrine
cannot excuse Miller's default of claims five through nine, because he has not provided new
reliable evidence of his actual innocence. Thus, the court will deny claims five, six, seven, eight,
and nine as procedurally barred.
IV.

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 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. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The court has concluded that Miller's petition fails to warrant federal habeas relief. The
court is persuaded that reasonable jurists would not find this conclusion to be debatable.
Therefore, the court will not issue a certificate of appealability.

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V.

CONCLUSION

For the reasons stated, Miller's petition for habeas relief pursuant to 28 U.S.C. § 2254 is
denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.

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