Christopher v. Pierce et al

Filing 13

MEMORANDUM OPINION -Signed by Judge Richard G. Andrews on 6/27/2016.(aah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ANTHONY T. CHRISTOPHER,
Petitioner,
v.

Civil Action No. 15-511-RGA

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

MEMORANDUM OPINION

Anthony T. Christopher. Prose Petitioner.
Maria Knoll, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.

J;}_,

June
2016
Wilmington, Delaware

Presently pending before the Court is Petitioner Anthony T. Christopher's Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 1) The State filed an
Answer in opposition, contending that the Petition should be dismissed in its entirety as timebarred or, alternatively, as procedurally barred. (D.I. 9) 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 March 2002, a Delaware Superior Court jury found Petitioner guilty of first degree

assault, first degree reckless endangering, and two counts of possession of a firearm during the
commission of a felony ("PFDCF") for shooting two people in a New Castle nightclub. (D.1. 11
at 15) The Superior Court sentenced Petitioner in June 2002 to a total of twenty-three years at
Level V incarceration, suspended after seven years for decreasing levels of supervision. (D.I. 11
at 56) The Delaware Supreme Court affirmed Petitioner's convictions on June 9, 2003. See

Christopher v. State, 824 A.2d 890 (Del. 2003).
On January 18, 2008, after he completed the Level V portion of his sentence, Petitioner
was extradited to Bell County Jail in Texas to face pending matters there. (D.1. 9 at 21) He
posted a $5,000 bond on March 2, 2008, and was released from custody in Texas. Following his
release, Petitioner was expected to return to Delaware to begin the Level IV-Halfway House
portion of his sentence within seven days. He did not do so. Id. On July 1, 2008, the Killeen
Texas Police Department arrested Petitioner for possession of marijuana. He posted bail a day
later and was released from custody. (D.1. 9 at 3)
On January 15, 2009, the Delaware Department of Correction charged Petitioner with a
violation of probation ("VOP"), and the Superior Court issued a capias. (D.1. 9 at 21; D.I. 11 at
1

49) The capias was returned in October 2011. (D.I. 11 at 50) On October 20, 2011, the
Superior Court found Petitioner in violation of his probation and sentenced him to a total of
seven years at Level V incarceration, followed by probation. (D.I. 9 at 24-25; D.I. 11 at 50)
Petitioner did not appeal. Instead, he filed a motion for sentence modification/reduction on
January 20, 2012, which the Superior Court denied on September 6, 2012. (D.I. 11 at 50-51)
Petitioner did not appeal.
On October 19, 2012, Petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 11 at 51) The Delaware
Superior Court denied the Rule 61motion on July 24, 2013 (D.I. 11 at 53), and Petitioner did not
appeal that decision.
On May 9, 2014, Petitioner filed a second motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("second Rule 61 motion"). (D.I. 11 at 54) The
Superior Court denied the second Rule 61 motion as procedurally barred, and the Delaware
Supreme Court affirmed that decision on April 13, 2015. See Christopher v. State, 2015 WL
1641439 (Del. Apr. 13, 2015).
The instant Petition was filed in June, 2015. (D.I. 1) The Petition contains seven claims
alleging that Petitioner's defense counsel provided ineffective assistance with respect to his
probation and VOP hearing.

2

II.

ONE YEAR STATUTE OF LIMITATIONS
AEDP A 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, ifthe 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, ifthe 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). AEDPA'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).
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 does not appeal a state court judgment, the
judgment of conviction becomes final on the date on which the time for seeking direct review in
state court expires. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); Jones v.

3

Morton, 195 F.3d 153, 158 (3d Cir. 1999). In this case, the Superior Court sentenced Petitioner
for his VOP on October 20, 2011, and he did not file an appeal. As a result, his VOP
adjudication became final on November 21, 2011, thirty days after he was sentenced. 1 Applying
the one-year limitations period to that date, Petitioner had until November 21, 2012 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 June 17, 2015,2 approximately
two and one-half 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 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

1

The thirty-day appeal period actually ended on November 19, 2011, which was a Saturday.
Therefore, the time for appealing extended through the end of the next business day, Monday,
November 21, 2011. See Fed. R. Civ. P. 6(a)(l)(C).
2

Petitioner did not date the Petition, but the post-mark on the envelope in which he mailed the
Petition is dated June 17, 2015. Therefore, pursuant to the prison mail box rule, the Court adopts
June 17, 2015 as the date of filing. 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. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000). The
limitations period is also tolled for the time during which an appeal from a post-conviction
decision could be filed even ifthe appeal is not eventually filed. Id. at 424. 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 postconviction motion. See Stokes v. Dist. Attorney ofPhiladelphia, 247 F.3d 539, 542 (3d Cir.
2001).
Here, when Petitioner filed his motion for sentence modification/reduction on January 20,
2012, fifty-nine days of AEDPA's limitations period had already expired. The motion for
sentence modification/reduction tolled the limitations period through October 8, 2012, which
includes the thirty-day period Petitioner had to appeal the Superior Court's September 6, 2012
denial of that motion. 3 The limitations clock started to run on October 9, 2012, and ran for ten
days until Petitioner filed his first Rule 61 motion on October 19, 2012. The Superior Court
denied that Rule 61 motion on July 24, 2013, and Petitioner did not appeal. (D.I. 11 at 53)
Therefore, Petitioner's first Rule 61 motion tolled the limitations through August 23, 2013,
which includes the thirty day appeal period.
The limitations clock started to run again on August 24, 2013, and ran another seventythree days until Petitioner filed a petition for writ of habeas corpus on November 5, 2013. (D.I.
11 at 54) The Superior Court denied that petition on November 14, 2013, and he did not appeal.
Thus, Petitioner's state habeas petition tolled AEDPA's limitations period through December 16,

3

The thirty-day appeal period actually ended on Sunday, October 7, 2012. Therefore, the appeal
period extended through the end of the next day. See Del. Sup. Ct. R. 1 l(a).
5

2013, once again including the thirty-days during which Petitioner could have appealed. 4 At this
juncture, a total of 142 days of AEDP A's limitations period had expired.
On May 4, 2014, Petitioner filed his second Rule 61 motion. However, Petitioner's
second Rule 61 motion has no tolling effect, because the Superior Court's denial of the motion as
untimely, and the Delaware Supreme Court's affirmance of that decision, demonstrate that his
second Rule 61 motion was not "properly filed" for statutory tolling purposes. See Pace v.

DiGuglielmo, 544 U.S. 408, 415 (2005) (holding that a post-conviction petition denied as
untimely by a state court is not "properly filed" for the purposes of§ 2244(d)(2)). Given these
circumstances, when the limitations clock started to run again on December 17, 2013, it ran the
remaining 223 days without interruption until the limitations period expired on July 28, 2014.
In short, even after accounting for the applicable statutory tolling, 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
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

The thirty-day appeal period actually ended on Saturday, December 14, 2013. Therefore, the
appeal period extended through the end of the next day. See Del. Sup. Ct. R. l l(a).
6

4

extraordinary circumstance will only warrant equitable tolling ifthere 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 does not assert, and the Court does not discern, that any extraordinary
circumstances prevented him from filing his Petition in a timely manner. In fact, Petitioner
erroneously contends that his Petition is timely. (D.I. 1 at 14) 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 Taylor v. Carroll, 2004 WL
1151552, at *5-6 (D. Del. May 14, 2004). Accordingly, the Court will dismiss the instant
Petition as time-barred. 5

III.

PENDING MOTION
During the pendency of this proceeding, Petitioner filed a Motion to Appoint Counsel.

(D.I. 12) Given the Court's conclusion that the instant Petition as time-barred, the Court will
dismiss as moot Petitioner's Motion to Appoint Counsel.
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).
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 of reason would find it debatable: (1) whether the

5

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

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, and 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 time-

barred. An appropriate Order will be entered.

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