Johnson v. Pierce et al
Filing
26
MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 12/18/2017. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOI-U\f C. JOHNSON,
Petitioner,
v.
DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. I
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Civil Action No. 1S-140-GMS
John C. Johnson. Pro se petitioner.
Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.
MEMORANDUM OPINION
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Wilmington, Delaware
1Warden Dana Metzger has replaced former Warden David Pierce, an original party to the case.
See Fed. R. Civ. P. 2S(d).
Sle ,
ending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 and an amended petition filed by petitioner John Johnson ("Johnson"). (0.1. 1; 0.1. 11)
The State filed an answer in opposition. (0.1. 19) 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
A. Aggravated Menacing Conviction
In September 1997, Johnson was indicted and charged with aggravated menacing, two
counts of possession of a firearm during the commission of a felony ("PFDCF"), second degree
assault, and first degree reckless endangering. (0.1. 19 at 2) On March 23, 1998, he pled guilty
to aggravated menacing, in exchange for which the State dismissed the balance of the indictment.
Id. Johnson was seventeen years old when he committed the offenses, but he was eighteen years
old when he was indicted and pled guilty. (0.1. 21 at 267) The Superior Court sentenced him to
twenty four months at Level V imprisonment, suspended for twenty four months at Level III
probation. (0.1. 19 at 2)
In June 1998, the Superior Court found that Johnson had violated his probation ("VOP")
and sentenced him to twenty four months at Level V, suspended for twenty four months at Level
IV home confinement, which, in tum, was suspended after six months for eighteen months at
Level III. (0.1. 19 at 2) In December 1999, the Superior Court found that Johnson had
committed a second VOP and sentenced him to one year at Level V. Id.
In July 2010, Johnson filed a petition for a writ of error coram nobis, which the Delaware
Supreme Court dismissed on August 31, 2010. (0.1. 21 at 295); see In re Johnson, 3 AJd 1097
(Table), 2010 WL 3420371 (Del. Aug. 31, 2010). On February 6, 2013, Johnson filed a motion
for correction of sentence, which the Superior Court denied on February 22, 2013. (D.!. 19 at 2)
On March 7, 2013, Johnson filed a motion for postconviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"). Id. The Superior Court denied the Rule
61 motion on June 17,2013, and the Delaware Supreme Court affirmed that decision on May 28,
2014. See Johnson v. State, 93 A.3d 654 (Table), 2014 WL 2463047 (Del. May 28, 2014).
B. MurderlPFDCF Conviction
In October 1999, Johnson was indicted and charged with first degree murder, PFDCF,
and possession of a deadly weapon by a person prohibited. (D.1. 19 at 3) He pled guilty to
PFDCF and the lesser included offense of second degree murder on May 8, 2001, and he was
sentenced on July 12,2001 as follows: for the second degree murder conviction, twenty years at
Level V, suspended after seventeen years for decreasing levels of supervision, and for the
PFDCF conviction, ten years at Level V. Id.
On May 9, 2008, Johnson filed a Rule 61 motion, which the Superior Court denied on
March 31, 2009. (D.I. 19 at 3) The Delaware Supreme Court affirmed that decision on
September 4, 2008. See State v. Johnson, 2009 WL 866180 (Del. Super. Ct. Mar. 31, 2009);
Johnson v. State, 979 A.2d 1111 (Table), 2009 WL 2860974 (DeL Sept. 4, 2009).
Johnson filed a second Rule 61 motion on March 18,2013, which the Superior Court
denied on January 17,2014. See State v. Johnson, 2014 WL 595436 (Del. Super. Ct. Jan. 17,
2014). The Delaware Supreme Court affirmed that decision on March 6, 2014. See Johnson v.
State, 86 A.3d 1119 (Table), 2014 WL 982395 (Del. Mar. 6, 2014).
Johnson filed a habeas petition in this court in January 2015, and then he filed an
amended petition in August 2015. Together, these filings (hereinafter referred to as "petition")
2
present two general arguments: (l) Johnson was a juvenile when he committed the aggravated
menacing offense leading to his 1998 conviction, demonstrating that his 1998 aggravated
menacing conviction was illegal because the Superior Court does not have jurisdiction over
juveniles cases (D.!. 1); and (2) the sentence for his 2001 PFDCF conviction should be vacated
because it was improperly "enhanced" on the basis of the illegal 1998 aggravated menacing
conviction (D.I. 11). More specifically, the petition asserts the following six claims: (1) the
Superior Court lacked jurisdiction over the aggravated menacing case because Johnson was a
juvenile when he committed the offense;2 (2) defense counsel provided ineffective assistance by
allowing the Superior Court to preside over his aggravated menacing case; (3) defense counsel
provided ineffective assistance during the aggravated menacing case by failing to subject the
State's case to adversarial testing; (4) defense counsel provided ineffective assistance during the
plea negotiations in his murder case by failing to seek a decision on the motion to strike the death
penalty as a potential sentence and by failing to inform Johnson that his 1998 aggravated
menacing conviction could cause him to be classified as a habitual offender and/or cause the
sentence for his murder conviction to be "enhanced";3 (5) he would not have entered a guilty
2It appears that Johnson was seventeen years old when he committed the offenses leading to his
1998 aggravated menacing conviction, but he was eighteen years old at the time of his arrest.
(D.!. 21 at 348,391) In Delaware, the defendant's age at the time of his arrest, not at the time of
the offense, dictates which court should have jurisdiction. (D.I. 21 at 349); see also Hughes v.
State, 653 A.2d 241,250 (Del. 1994).
3Although the sentence order for Johnson's 2001 convictions refers to him as a habitual offender
(D.I. 21 at 242), it appears that the reference was a mistake. For instance, the record clearly
demonstrates that the State never filed a motion requesting habitual offender status for Johnson,
and the Superior Court never issued an order characterizing him as a habitual offender. The
record also indicates that Johnson's 1998 aggravated menacing conviction was not used to
"enhance" the minimum mandatory sentence for the 2001 PFDCF conviction related to his
murder conviction. According to the sentencing transcript, the sentencing court decided against
3
plea in his murder case if he knew that the death penalty was not a possibility and that there was
a possibility he could be classified as a habitual offender; and (6) defense counsel provided
ineffective assistance during sentencing for Johnson's 2001 murderlPFDCF convictions by
failing to challenge the habitual offender classification. (D.1. 1; D.1. 11)
The State filed an answer in opposition, alleging that the petition should be denied as
time-barred or, alternatively, as procedurally barred. (D.I. 19)
II.
ONE YEAR STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") 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). As a general rule, a petitioner must bring a separate habeas petition for each
conviction being challenged. See Rule 2(e), Rules Governing Section 2254 Cases, 28 U.S.C.
foIl. § 2254. However, in this case, a petition challenging Johnson's 1998 aggravated menacing
conviction would be summarily dismissed because he is no longer in custody pursuant to the
sentence imposed for that conviction. (D.L 21 at 113) Moreover, although Johnson alleges that
his 1998 aggravated menacing conviction is illegal because he was a juvenile when he
committed the offense, his real argument is that the sentence for his 2001 PFDCF conviction was
improperly "enhanced" as a result of the 1998 aggravated menacing conviction. Given the inter
related nature of the arguments and the inability to bring a separate sustainable action for his
"enhancing" the minimum mandatory sentence to five years and instead concluded that the
applicable minimum mandatory sentence was three years. (D.I. 21 at 65, 68,132-135, 184)
4
1998 conviction, the court will permit all of Johnson's claims to be brought in the instant
petition. 4
In addition, AEOPA prescribes a one-year period oflimitations 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
(D) 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)(l).
Johnson's petition, filed in 2015, is subject to the one-year limitations period contained in
§ 2244(d)(1). See Lindh, 521 U.S. at 336. Johnson does not allege, and the court does not
discern, any facts triggering the application of § 2244(d)(1)(B) or (C). Although Johnson asserts
that he is entitled to a later starting date undcr § 2244(d)(I)(0), the court is not persuaded. First,
Johnson does not clearly identify the "factual predicate" warranting a later starting date. (0.1. 22
at 2) Second, to the extent he believes his discovery in August 2010 regarding the Delaware
courts' abolishment of the writ of error coram nobis provides the "factual predicate" for his
claims (0.1. 22 at 3), he is mistaken. According to Third Circuit precedent, the "factual
4This decision is limited to the unique circumstances of this case.
5
predicate" of "a petitioner's claims constitutes the 'vital facts' underlying claims." McAleese v.
Brennan, 483 F.3d 206, 214 (3d Cir. 2007). Clearly, the date on which Johnson learned about
the abolition of a potential legal procedural vehicle for pursuing his post-conviction rights does
not constitute a "factual predicate" for any of his claims. Thus, for all of these reasons, the oneyear period of limitations in this case began to run when Johnson's conviction became final
under § 2244(d)(1)(A). The court notes that it will use Johnson's 2001 conviction for
murder/PFDCF as the relevant conviction for determining the starting date of AEDPA's
limitations period.
Pursuant to § 2244(d)(1 )(A), if a state prisoner does not appeal a state court judgment, the
judgment of conviction becomes final, and the one-year limitations period begins to run, upon
expiration of the time period allowed for seeking direct 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). Here, the
Delaware Superior Court sentenced Johnson for his murder conviction on July 12, 2001, and he
did not appeal. Therefore, Johnson's conviction became final on August 13, 2001. 5 See Del.
Supr. Ct. R. 6(a)(ii)(establishing a 30 day period for timely filing a notice of appeal).
Accordingly, to comply with the one-year limitations period, Johnson had to file his § 2254
petition by August 13,2002. See Nunez v. California, 2014 WL 809206, at *3 n. 9 (N.D. Ohio
Feb. 25, 20 14)(explaining "[e]very federal circuit that has addressed the issue has concluded that
5The thirty-day appeal period actually expired on August 12, 2001, which was a Sunday.
Therefore, Johnson had until the end of the day on Monday, August 13,2001, to file an appeal.
See DeL Sup. Ct. R. II(a).
6
[the] method in [in Fed. R. Civ. P. 6], i.e., the 'anniversary' method,6 for calculating a time
period applies to [] AEDPA's one-year limitation period."); Wilson v. Beard, 426 F.3d 653 (3d
Cir. 2005)(holding that former Federal Rule of Civil Procedure 6(a), (e) applies to federal habeas
petitions).
Johnson did not file the instant § 2254 petition until January 29,2015,1 approximately
twelve and one-half years after the expiration of AEDPA's statute oflimitations. Therefore, the
petition is time-barred, unless the limitations period can be statutorily or equitably tolled. See
Holland v. Florida, 560 U.S. 631,645 (201 O)(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 AEDP A's
one-year limitations period. Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000).
The earliest post-conviction motion filed in either of Johnson's two cases involved in this
proceeding (1998 aggravated menacing and 2001 murder/PFDCF) is the Rule 61 motion filed in
his 2001 murder/PFDCF case on May 9, 2008. However, the May 9, 2008 Rule 61 motion does
not trigger statutory tolling because it was filed almost six full years after the expiration of
6"Under the 'anniversary' method, the first day of the one-year limitations period is the day after
the triggering event, thus giving petitioners 'until the close of business on the anniversary date of
.. .' the triggering event to file a federal habeas petition." Nunez, 2014 WL 809206, at *3 n. 9.
7Pursuant to the prisoner mailbox rule, the court adopts January 29, 2015 as the filing date
because that is the date Johnson placed the petition in the prison mailing system. 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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AEDPA's limitations period. The other post-conviction motions in Johnson's two state criminal
cases also do not trigger statutory tolling because they were filed even later than May 9, 2008.
Consequently, 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. o/Corr., 145 F.3d
616, 618-19 (3d Cir. 1998). Consistent with these principles, the Third Circuit has explained that
equitable tolling of AEDPA'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).
Johnson concedes that the petition is time-barred, but contends the limitations period
should be equitably tolled for the following reasons: (1) he was "totally prevented from the right
to attack his juvenile charges that resulted in the Superior Court's aggravated menacing
conviction [because] he was under the mistaken misapprehension on how jurisdiction is
transferred" from Family Court to the Superior Court (D.L 22 at 3-4); (2) defense counsel's
failure to explain that he would be subject to a sentence ranging from thirteen to forty years, not
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thirteen years flat, constitutes "egregious attorney misconduct" warranting equitable tolling (OJ.
22 at 6-7); and (3) Johnson mistakenly asserted his rights in the wrong forum (OJ. 22 at 7).
Reasons one and two basically re-state arguments raised in the petition and do not amount to
extraordinary circumstances for equitable tolling purposes. As for reason three, to the extent
Johnson refers to his filing of a petition for a writ of coram nobis in July 2010 to demonstrate
that he "mistakenly asserted his rights in the wrong forum", the argument is unsuccessful.
Johnson's failure to use the appropriate procedural vehicle to pursue his post-conviction rights in
the state courts is more akin to legal ignorance. More importantly, however, even if Johnson's
pursuit of coram nobis relief could somehow be characterized as pursuing his rights in the wrong
forum, he did not timely pursue that relief. Johnson filed the petition for a writ of coram nobis in
July 2010, which was eight years after the expiration of AEDPA's limitations period, and seven
years after his murder/PFDCF conviction.
To the extent Johnson attempts to trigger equitable tolling under Martinez v. Ryan, 566
U.S. 1 (2012) by alleging he was prevented from pursuing potential avenues of relief because the
Delaware courts did not automatically appoint counsel to assist him in his post-conviction
proceedings, the attempt 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
AED PA's limitations period.
The court also cannot conclude that Johnson exercised the requisite "due diligence" to
warrant equitably tolling the limitations period in this case. As previously mentioned, Johnson
filed his first Rule 61 motion on May 9, 2008, which was approximately four years after his
deadline for filing a timely Rule 61motion in Delaware (under former Rule 61 's three year
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limitations period), and six years after AEDPA's limitations period had expired. This delay
precludes Johnson from demonstrating that he exercised the requisite "due diligence" to warrant
equitable tolling.
Finally, to the extent Johnson's untimely filing was the result of legal 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. 8
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.AR. 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). 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: (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. Id.
The court has concluded that Johnson'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.
8Given the court's conclusion that the petition is time-barred, it will not address the State's
alternate reasons for denying the petition.
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IV.
CONCLUSION
For the reasons discussed, the court will deny Johnson's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 without an evidentiary hearing. An appropriate order will
be entered.
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