Puller v. Pierce et al

Filing 16

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 5/16/16. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KLEON PULLER,
Petitioner,
Civil Action No. 15-342-RGA

v.
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM OPINION

Kleon Puller. Pro se Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.

Jk_,

2016
May
Wilmington, Delaware

Pending before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 ("Petition") filed by Petitioner Kleon Puller. (D.I. 1) The State filed an Answer
in opposition. (D.I. 12) For the reasons discussed, the Court will deny the Petition as barred by
the limitations period prescribed in 28 U.S.C. § 2244.
I.

BACKGROUND
In 1999, Petitioner shot his then-girlfriend in the head with a .357 Magnum revolver

while his five year old niece was in the room. (D.I. 3 at 63-64) Petitioner admitted to shooting
his former girlfriend in the face, but maintained it was an accident. (D.I. 12 at 4) He testified
that he grabbed his gun for protection because he planned to go to the liquor store for cigarettes
and did not realize it was loaded. (D.I. 3 at 53-54) He then started arguing with his girlfriend,
"pointed the gun [] at her" in order to "scare her," and pulled the trigger after she said, "Go
ahead and shoot it." (D.I. 3 at 55) According to Petitioner, he expected to hear only a "click,"
but was "in shock" when he heard a "bang." Id. Although the victim survived the shooting, she
was left blind in both eyes, badly disfigured, and brain damaged. (D.I. 12 at 4)
In March 2001, a Delaware Superior Court jury convicted Petitioner of attempted first
degree murder, possession of a firearm during the commission of a felony, and endangering the
welfare of a child. See Puller v. State, 108 A.3d 1225 (Table), 2015 WL 428582 (Del. Jan. 30,
2015). On June 29, 2001, Petitioner was sentenced to life for his attempted murder conviction,
five years of incarceration for his possession of a firearm conviction, and one year of probation
for endangering the welfare of a child conviction. (D.1. 12 at 1) Petitioner appealed, and the
Delaware Supreme Court affirmed his convictions and sentences on April 5, 2002. See Puller v.
State, 794 A.2d 1160 (Table), 2002 WL 529909, at *1 (Del. Apr. 5, 2002).

On January 5, 2012, Petitioner filed a pro se motion for post-conviction relief pursuant to
to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 14, Del. Super. Ct.
Crim. Dkt. Entry No. 42) The Delaware Superior Court denied the Rule 61 motion, See State v.

Puller, 2014 WL 4101616 (Del. Super. Ct. Aug. 21, 2014), and the Delaware Supreme Court
affirmed that decision on January 30, 2015. See Puller, 2015 WL 428582, at *3.
The instant Petition is dated April 15, 2015. (D .I. 1) It asserts twelve ineffective
assistance of counsel claims.

II.

ONE YEAR STATUTE OF LIMITATIONS
AEDPA 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 ). AEDP A's limitations period is subject to statutory and equitable tolling.

See Holland v. Florida, 560 U.S. 631 (2010)(equitable tolling); 28 U.S.C. § 2244(d)(2)(statutory
tolling).

2

Petitioner does not assert, and the Court cannot discern, any facts triggering the
application of§ 2244(d)(l)(B), (C), or (D). Consequently, the Court concludes that the one-year
period oflimitations began to run when Petitioner's conviction became final under§
2244(d)(l )(A).
Pursuant to § 2244(d)(l )(A), if a state prisoner appeals a state court judgment but does
not seek certiorari review, the judgment of conviction becomes final, and the statute of
limitations begins to run, upon expiration of the ninety-day time period allowed for seeking
certiorari 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). ln this case, the Delaware Supreme Court affirmed

Petitioner's convictions and sentence on April 5, 2002, and he did not file a petition for a writ of
certiorari in the United States Supreme Court. As a result, Petitioner's convictions became final
on July 5, 2002. Applying the one-year limitations period to that date, Petitioner had until July
7, 2003 1 to timely file a habeas petition. See Wilson v. Beard, 426 F.3d 653, 662-64 (3d Cir.
2005)(Fed. R. Civ. P. 6(a) applies to AEDPA's limitations period); 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 the anniversary method, i.e., the limitations period expires on the anniversary of the
date it began to run). Petitioner, however, did not file the instant Petition until April 15, 2015,2
1

AEDPA's limitations period actually expired on July 5, 2003, which was a Saturday. Therefore,
Petitioner had until the end of the day on Monday, July 7, 2003, to timely file his Petition. See
Fed. R. Civ. P. 6(a)(l)(C).
2

Pursuant to the prisoner mailbox rule, the Court adopts as the filing date April 15, 2015, which
is the date on the Petition. 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).

3

almost twelve full years after that deadline. Thus, the Petition is time-barred and should be
dismissed, unless the limitations period can be statutorily or equitably tolled. See Jones, 195
F.3d at 158. The Court will discuss each doctrine in tum.
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. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000).
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. Attorney ofPhiladelphia, 247 F.3d 539, 542
(3d Cir. 2001).
Here, Petitioner's Rule 61 motion, filed on January 5, 2012, has no statutory tolling effect
because it was filed more than eight years after AEDPA's limitations period expired. Thus, the
Petition is time-barred, unless equitable tolling applies.
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 649-50. With respect to 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

4

unique to the petitioner, but how severe an obstacle it creates with respect to meeting AEDPA's
one-year deadline." Pabon v. Mahanoy, 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[] and the petitioner's failure to file a timely
federal petition." Ross v. Varano, 712 F.3d 784, 803 (3d. Cir. 2013).
Petitioner concedes that his Petition is untimely, but contends that the limitations period
should be equitably tolled because he is actually innocent of attempted first degree murder. (D.I.
1 at 13; D.I. 2 at 10) Specifically, he asserts that he shot his girlfriend by accident, and that he
was not attempting to murder her.
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), the Supreme Court held that a
credible claim of actual innocence may serve as an "equitable exception" that can overcome the
bar of AEDPA's one-year limitations period. However, the McQuiggin Court cautioned that
"tenable actual-innocence gateway pleas are rare," and a petitioner only meets the threshold
requirement by "persuad[ing] the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. at 1928. An
actual innocence claim must be based on "new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence [] that was not
presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). In the Third Circuit, evidence is
"new" for the purposes of the Schlup standard only if it was not available at the time of trial and
could not have been discovered earlier through the exercise of due diligence, 3 except in

3

The circuits addressing the issue are split over what constitutes "new" evidence for Schlup
purposes. The Eighth Circuit's interpretation of "new" evidence corresponds with the Third
Circuit's, whereas the Seventh and the Ninth Circuits do not require the exercise of due
5

situations where that evidence was not discovered due to the ineffective assistance of trial
counsel. See Houck v. Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010). In tum, when determining
if a petitioner's new evidence shows it is "more likely than not that no reasonable juror would
have convicted him," a court must consider "all the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted under rules of
admissibility that would govern at trial." House v. Bell, 547 U.S. 518, 538 (2006). Finally, a
court "may consider how the timing of the submission [of actual innocence] and the likely
credibility of the affiant[] bear on the probable reliability of that evidence." Schlup, 513 U.S. at
332; see also McQuiggin, 133 S.Ct. at 1935.
Here, Petitioner asserted the same "shooting by accident" defense during his trial.
Therefore, equitable tolling is not warranted because his current assertion fails to constitute new
reliable evidence satisfying the McQuigginl Schlup standard.
Petitioner also appears to contend that the limitations period should be equitably tolled
pursuant to the holding in Martinez v. Ryan, 132 S.Ct 1309 (2012). (D.I. 1at13-14) Once
again, his argument is unavailing. By its own terms, the Supreme Court's Martinez decision
provides a petitioner with an opportunity to overcome the procedural default of a claim asserting
ineffective assistance of trial counsel, but does not impact a petitioner's obligation to comply
with AEDPA's limitations period. See Robertson v. Pierce, 2015 WL 4634829, at *5 (D. Del.
Aug. 3, 2015). To the extent Petitioner's late filing was the result of his own miscalculation of
the one-year filing period, such mistakes do not justify equitably tolling the limitations period.

See Taylor v. Carroll, 2004 WL 1151552, at *5-6 (D. Del. May 14, 2004).

diligence, and view "new" evidence as evidence that was not "presented" at trial. See Kidd v.
Norman, 651F.3d947, 953 (8th Cir. 201 l)(collecting cases).
6

For all of these reasons, the Court concludes that the doctrine of equitable tolling is not
available to Petitioner on the facts he has presented. Accordingly, the Court will dismiss the
instant Petition as time-barred. 4

III.

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).
When a district 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 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 concludes that the instant Petition is time-barred. Reasonable jurists would not
find this conclusion to be debatable. Accordingly, the Court will not issue a certificate of
appeal ability.

IV.

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

barred. An appropriate Order will be entered.

4

The Court's conclusion that it must dismiss the Petition as time-barred obviates the need for the
Court to address the State's alternative reasons for denying the Petition.
7