Kalil v. Pierce et al
Filing
29
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/22/2018. (fms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES P. KALIL,
Petitioner,
Civ. Act. No. 15-215-LPS
v.
DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
James P. Kalil. Pro Se Petitioner.
Maria T. Knoll, Deputy Attorney General of the Delaware Department of Justice, Wilmington,·
Delaware. Attorney for Respondents.
MEMORANDUM OPINION
March 22, 2018
Wilmington, Delaware
1
Warden Dana Metzger replaced former Warden David Pierce, an original party to the case. See Fed.
R. Civ. P. 2S(d).
h~t~
I.
INTRODUCTION
Pending before the Court is_ an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 filed by Petitioner James P. Kalil ("Petitioner"). (D.I. 3) The State has filed an
Answer in Opposition. (D.I. 14) For the reasons discussed, the Court will dismiss the Petition as
time-barred under by the limitations period prescribed in 28 U.S.C. § 2244.
11.
BACKGROUND
Petitioner was indicted on one count of first degree murder and one count of possession of
a deadly weapon during the commission of a felon ("PDWDCF") in May 2010. (D.I. 16, Del.
Super. Ct. Crim. Dkt. Entry No. 6) On June 22, 2011, Petitioner pled guilty to the lesser-included
offense of manslaughter and PDWDCF. (D.I. 14 at 1) On December 2, 2011, the Superior Court
sentenced him to a total of 24 years at Level V imprisonment, suspended after 14 years, for three
years of decreasing levels of supervision. (D.I. 14 at 2) Petitioner did not file a direct appeal.
Petitioner filed a motion for reduction of sentence pursuant to Delaware Superior Court
Rule 35 on February 16, 2012. (D.I. 16, Del. Super. Ct. Crim. Dkt. Entry No. 38) The Superior
Court denied the motion on March 29, 2012. (D.I. 16, Del. Super. Ct. Crim. Dkt, Entry No. 39)
Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court
Criminal Rule 61 ("Rule 61 motion") on November 27, 2012. (D.I. 16, Del. Super. Ct. Crim. Dkt.
Enuy No. 40) The Superior Court denied the motion on October 30, 2013, and the Delaware
Supreme Court affirmed that decision on June 16, 2014. (D.I. 16, Del. Super. Ct. Crim. Dkt. Entry
No. 55); see Kalil v. State, 93 A.2d 654 (Table), 2014 WL 2568029 (Del. June 5, 2014).
On December 22, 2014, Petitioner filed a motion for correction of-illegal sentence. (D.I. 16,
Del Super. Ct. Crim. Dkt. Entry Nos. 59 & 60) The Superior Court denied the motion on January
15, 2015. (D.I. 16, Del. Super. Ct. Crim. Dkt. Entry Nos. 59 & 60)
The instant Petition is dated March 2015 and asserts that: (1) the Superior Court abused its
discretion by denying Petitioner's request for a continuance and defense counsel's motion to
withdraw so that Petitioner could retain new counsel; (2) the Superior Court abused its discretion by
making improper comments which, in tum, coerced Petitioner to enter ·a guilty plea; (3) defense
counsel provided ineffective assistance by failing to prepare Petitioner to testify at trial; (4) defense
counsel was ineffective for failing to preserve exculpatory evidence; and (5) defense counsel
provided ineffective assistance by failing to provide Petitioner with the opportunity to review all
discovery materials in a timely fashion.
III.
ONE YEAR STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law
on April 23, 1996. 28 U.S.C. § 2244(d)(1). AEDPA prescribes a one-'year period of limitations 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.
2
28 U.S.C. § 2244(d)(1). AEDPA's limitations period is subject to statutory and equitable tolling. See
Holland v. Flotida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory
tolling).
Petitioner's § 2254 Petition, filed in 2015, is subject to the one-year limitations period
contained in§ 2244(d)(1). See Lindh v. MmpfD;, 521 U.S. 320,336 (1997). Petitioner does not assert,
and the Court cannot discern, any facts triggering the application of§ 2244(d)(1)(B), (C), or
(D).
Thus, the one-year period of limitations began to run when Petitioner's conviction became final
under§ 2244(d)(1)(A).
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 period begins to run, upon expiration of the
period allowed for seeking direct review. See Kapral v. United States, 166 F.3d 565, 575, 578 (3d Cir.
1999);Jones v. M01ton, 195 F.3d 153, 158 (3d Cir. 1999). Here, the Delaware Superior Court
sentenced Petitioner on December 2, 2011, and he did not appeal that judgment. Therefore,
Petitioner's conviction became final on Janua1y 2, 2012. See Del. Supr. Ct. R. 6(a)(ii) (establishing
thirty day period for timely filing of notice of appeaD. Applying the one-year limitations period to
that date, Petitioner had unti1Janua1y 2, 2013 to timely file his Petition. See Wilson v. Beard, 426 F.3d
653 (3d Cir. 2005) (holding that Federal Rule of Civil Procedure 6(a) and (e) applies to federal
habeas petitions); Phlipot v. Johnson, 2015 WL 1906127, at *3 n. 3 (D. Del. Apr. 27, 2015) (AEDPA's
one-year limitations period is calculated according to anniversary method, i.e., limitations period
expires on anniversary of date it began to run).
Petitioner, however, waited until March 4, 2015 to file the instant Petition, more than two
3
years after the expiration of the limitations period. 2 Therefore, his habeas Petition is untimely,
unless the limitations period can be statutorily or equitably tolled. See Jones, 195 F.3d at 158. The
Court will discuss each doctrine in turn.
A. Statutory Tolling
Pursuant to§ 2244(d)(2), a properly filed state post-conviction motion tolls AEDPA's
limitations period during the time the action is pending in the state courts, including any postconviction appeals, provided that the motion was filed and pending before the expiration of
AEDPA's limitations period. See Swartz v. Mryers, 204 F.3d 417, 420-24 (3d Cir. 2000); Price v. Tqylor,
2002 WL 31107363, at *2 (D. Del. Sept. 23, 2002). However, the limitations period is not tolled
during the ninety days a petitioner has to file a petition for a writ of certiorari in the United States
Supreme Court regarding a judgment denying a state post-conviction motion. See Stokes v. Dist.
Attomry efPhiladelphia, 247 F.3d 539, 542 (3d Cir. 2001). In addition, a post-conviction motion that
is untimely under state law has no statutory tolling effect because it is not considered properly filed
for§ 2244(d)(2) purposes. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
Forty-two days of AEDPA's limitations period lapsed before Petitioner filed his first Rule 35
motion for reduction of sentence on February 16, 2012. The Superior Court denied the motion on
March 29, 2012. Consequently, the Rule 35 motion tolled the limitations period from Februa1-y 16,
2012 through April 30, 2012, which includes the thirty-days Petitioner had to appeal the Superior
Court's denial of the motion.
2
Pursuant to the prison mailbox rule, the Court adopts as the date of filing the date Petitioner
certified giving the Petition to prison officials for mailing- March 4, 2015. See Longenette v. Krusing,
322 F.3d 758, 761 (3d Cir. 2003).
4
The limitations clock started to run again on May 1, 2012, and ran 210 days until Petitioner
filed his Rule 61 motion on November 27, 2012. The Rule 61 motion tolled the limitations period
through June 16, 2014, the date on which the Delaware Supreme Court affirmed the Superior
Court's denial of the motion. The limitations clock started to run again on June 17, 2014, and ran
without expiration until the remainder of the limitations period expired on October 8, 2014.
Petitioner's second Rule 35 motion does not have any statutory tolling effect because it was filed on
December 22, 2014, approximately two months after the expiration of the limitations period. For all
of these reasons, the Petition is time-barred, unless equitable tolling is available.
B. Equitable Tolling
The one-year limitations period may be tolled for equitable reasons in rare circumstances
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 64950. With respect t~ the diligence inquiry, equitable tolling is not available where the late filing is due
to the petitioner's excusable neglect. Id. As for the extraordinary circumstance requirement, "the
relevant inquiry is not whether the circumstance alleged to be extraordinary is unique to the
petitioner, but how severe an obstacle it creates with respect to meeting AEDPA's one-year
deadline." Pabon v. Mahanqy, 654 F.3d 385, 400 (3d Cir. 2011). Notably, an extraordinary
circumstance will only warrant equitable tolling if there is "a causal connection, or nexus, between
the extraordinary circumstance
Dand the petitioner's failure to file a timely federal petition."
Ross v.
Varano, 712 F.3d 784, 803 (3d. Cir. 2013).
Petitioner contends that his untimely filing is the result of his "broken relationship" with
defense counsel and the Superior Court judge's improper involvement in the plea colloquy. (D.I. 18
at 6) However, he has failed to demonstrate how these circumstances, even if true, actually
5
prevented him from timely filing his Petition. See Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)
(requiring prisoner to demonstrate causal relationship between alleged extraordinary circumstances
and his late filing). In addition, Petitioner's unsupported assertions of actual innocence and his
certificates evidencing his completion of certain prison programs do not amount to extraordinary
circumstances warranting equitable tolling. Finally, to the extent Petitioner's untimely filing was the
result of his own miscalculation of the one-year filing period, such mistakes do not warrant equitably
tolling the limitations period. See Tqylor v. Carroll, 2004 WL 1151552, at *5-6 (D. Del. May 14, 2004).
For all of these reasons, the Court concludes that equitable tolling is not available on the
facts presented by Petitioner. Accordingly, the Court will dismiss the instant Petition as timebarred.3
IV.
CERTIFICATE OFAPPEALABILITY
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 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. See Slack v. McDaniel, 529 U.S. 473,484 (2000).
The Court has concluded that Petitioner's habeas Petition does not warrant relief because it
is time-barred. Reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court declines to issue a certificate of appealability.
3Given this conclusion, the Court will not address the State's altemate reason for dismissing the
Petition.
6
V.
CONCLUSION
For the reasons discussed, Petitioner's Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 is DENIED. An appropriate Order will be entered.
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