Kanda v. Pierce et al
Filing
12
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/25/19. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KESSELEE KANDA,
Petitioner,
Civil Action No. 15-1204-LPS
v.
DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
MEMORANDUM OPINION
Kesselee Kanda. Pro se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
March 25, 2019
Wilmington, Delaware
1
Warden Dana Metzger replaced former Warden David Pierce, an original party to the case. See Fed.
R. Civ. P. 2S(d).
s~~D~~c~
I.
INTRODUCTION
Presently pending before the Court is Petitioner Kesselee Kanda's ("Petitioner")
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. (D.I. 7) For the reasons discussed, the Court will dismiss the
Petition.
II.
BACKGROUND
In August 2011, a Delaware Superior Court jury found Petitioner guilty of eleven counts of
second degree burglary, eleven counts of second degree conspiracy, nine counts of theft, five counts
of criminal mischief, two counts of possession of a firearm with an obliterated serial number, and
one count of receiving a stolen firearm. See Kanda v. State, 54 A.3d 256 (Table), 2012 WL 4862590, at
*1 (Del. Oct. 12, 2012). Movant moved to dismiss two of the felony theft convictions, which the
Superior Court granted. (D.I. 7 at 3) The Superior Court sentenced Petitioner to a total of 143
years and 150 days at Level V incarceration, suspended after eleven and one-half years at Level V
incarceration, followed by decreasing levels of supervision. Id. The Delaware Supreme Court
affirmed Petitioner's convictions and sentence. See Kanda, 2012 WL 4862590, at *3.
In November 2012, Petitioner filed a prose motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), alleging ineffective assistance of
counsel. The Superior Court appointed conflict counsel ("post-conviction counsel") to represent
Petitioner during the Rule 61 proceeding. (D.I. 7 at 3) Post-conviction counsel moved to withdraw.
Id. On June 27, 2014, a Superior Court Commissioner filed a Report and Recommendation
recommending that the Rule 61 motion should be summarily dismissed and that post-conviction
counsel's motion to withdraw should be dismissed as moot. (D.I. 10-13 at 14) The Superior Court
adopted the Report and Recommendation on August 14, 2014, and denied the Rule 61 motion.
(D.I. 10-13 at 14-15) The Delaware Supreme Court affirmed that decision. See Kanda v. State, 108
A.3d 1225 (Table), 2015 WL 518830, at *3 (Del. Feb. 5, 2015).
III.
GOVERNING LEGAL PRINCIPLES
A.
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. See 28 U.S.C. § 2254(b);
O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270,275 (1971). The
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)(D 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.
28
u.s.c. § 2254(b)(1).
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; see also
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
2
consider the claims on their merits. 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 either 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
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."
Murrqy 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.
Ca,penter, 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
3
the conviction of one who is actually innocent." Murrqy, 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 (2006); see
also Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).
B. Standard of Review
If a state's highest court 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). Pursuant to
28 -C.S.C. § 2254(d), federal habeas relief may only be granted if the state court's decision was
"contrary to, or involved an unreasonable application of, clearly 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)(1) & (2); see also Williams v. Tqylor, 529 U.S. 362,412 (2000); Appel v. Horn, 250 F.3d 203,
210 (3d Cir. 2001). A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C.
§ 2254(d) if the 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).
The 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
(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. at 99.
4
Finally, when reviewing a habeas claim, a federal court must presume that the state court's
determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(1). This presumption of
correctness applies both to explicit and implicit findings of fact, and is only rebutted by clear and
convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280,
286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that clear and convincing
standard in§ 2254(e)(1) applies to factual issues, whereas unreasonable application standard of
§ 2254(d)(2) applies to factual decisions).
IV.
DISCUSSION
Petitioner timely filed the pending § 2254 Petition, asserting that defense counsel provided
ineffective assistance by: (1) failing to communicate and share discovery materials, and (2) failing to
file a motion to suppress.
A. Claim One: Ineffective Assistance for
Failing to Communicate Discovery Materials
In Claim One, Petitioner contends defense counsel failed to supply him with discovery
materials that would have aided him in making an informed decision about proceeding to trial or
pleading guilty. Petitioner did not present this Claim to the Delaware Supreme Court on postconviction appeal, and any attempt by Petitioner to raise Claim One in a new Rule 61 motion would
be barred as untimely under Delaware Superior Court Criminal Rule 61(i)(1). See Folks v. Phelps, 2009
WL 498008, at *12 (D. Del. Feb. 26, 2009). Consequently, Claim One is deemed exhausted but
procedurally barred, and the Court cannot review its merits absent a showing of cause for the
default, and prejudice resulting therefrom, or upon a showing that a miscarriage of justice will occur
if the Claim is not reviewed.
5
Petitioner does not assert, and the Court cannot discern, any reason for his failure to present
Claim One to the Delaware Supreme Court on post-conviction appeal. In the absence of cause, the
Court does not need to address the issue of prejudice. Additionally, the miscarriage of justice
exception does not excuse Petitioner's procedural default, because he has not provided any new
reliable evidence of his actual innocence. Accordingly, the Court will deny Claim One as
procedurally barred from habeas review.
B. Claim Two: Ineffective Assistance for Failing to File Suppression Motion
In Claim Two, Petitioner alleges that defense counsel failed to file a motion to suppress the
evidence found in his apartment on October 13, 2010 on the basis that the search was performed
without a warrant. Petitioner filed copies of two search warrants with his Petition: one warrant
dated October 12, 2010, with the address of the apartment scratched out and the description of his
co-defendant's car added in handwriting, and the other warrant dated October 14, 2010, with the
address of the apartment as the residence to be searched. (D.I. 1 at 16-24) Since the apartment
address was scratched out in the October 12, 2010 warrant, Petitioner appears to contend that
defense counsel should have filed a motion to suppress the evidence for being illegally seized from
the apartment on October 13, 2010. The Superior Court denied this argument as meritless during
Petitioner's Rule 61 proceeding, and the Delaware Supreme Court affirmed that decision. See Kanda,
201 S WL S18830, at *3. Consequently, Petitioner will only be entitled to relief if the Delaware
Supreme Court's decision was either contrary to, or an unreasonable application of, clearly
established federal law.
The Supreme Court precedent governing ineffective assistance of counsel claims is the twopronged standard enunciated by Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. See
Wiggins v. Smith, 539 U.S. 510 (2003). Under the first Strickland prong, a petitioner must demonstrate
6
that "counsel's representation fell below an objective standard of reasonableness," with
reasonableness being judged under professional norms prevailing at the time counsel rendered
assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a petitioner must
demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id at 694. A reasonable probability is a
"probability sufficient to undermine confidence in the outcome." Id. A court can choose to address
the prejudice prong before the deficient performance prong, and reject an ineffective assistance of
counsel claim solely on the ground that the defendant was not prejudiced. See Strickland, 466 U.S. at
698.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v.
Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Doolry v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987).
Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689.
With respect to the first prong of the§ 2254(d)(1) inquiry, a "state court decision is contrary
to clearly established federal law if it applies a rule that contradicts the governing law set forth in
Supreme Court precedent, or if it confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from that reached by
the Supreme Court." Elry v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Since the Delaware Superior
Court correctly identified the Strickland standard applicable to Claim One in this case, the Superior
Court's decision was not contrary to Strilkland. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill
7
state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a
prisoner's case [does] not fit comfortably within§ 2254(d)(1)'s 'contrary to' clause").
The Court must also determine if the Superior Court reasonably applied the Strickland
standard to the facts of Petitioner's case. When performing the second prong of the§ 2254(d)
inquiry, the Court must review the Superior Court's decision with respect to Petitioner's ineffective
assistance of counsel claim through a "doubly deferential" lens.2 See Richter, 562 U.S. at 105. The
relevant question when analyzing counsel's performance under the "doubly deferential lens" "is not
whether counsel's actions were reasonable, [but rather] whether there is any reasonable argument
that counsel satisfied Strick/ands deferential standard." Id. In tum, when assessing prejudice under
Strickland, the question is "whether it is reasonably likely the result would have been different" but
for counsel's performance, and the "likelihood of a different result must be substantial, not just
conceivable." Id. Finally, when viewing a state court's determination that a Strickland claim lacks
merit through the lens of§ 2254(d), federal habeas relief is precluded "so long as fairminded jurists
could disagree on the correctness of the state court's decision." Id. at 101.
The Delaware Supreme Court made the following factual determinations in Petitioner's
post-conviction appeal:
This Court previously rejected [on direct appeal] [Petitioner's] claim
that the police searched the apartment he shared with his co-defendant
on October 13, 2010 without a warrant. Contrary to [Petitioner's]
contention that the police did not obtain a warrant until October 14,
2
As explained by the Richter Court,
[t]he standards created by Strickland and§ 2254(d) are both "highly deferential," and
when the two apply in tandem, review is doubly so. The Strickland standard is a
general one, so the range of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating unreasonableness under Strickland
with unreasonableness under§ 2254(d).
562 U.S. at 105 (internal citations omitted).
8
2010, the record reflects that the police obtained a search warrant for
the apartment on October 12, 2010, searched the apartment, obtained
another search warrant for the apartment on October 14, 2010, and
searched the apartment again.
Kanda, 2015 WL518830, at *2-3. Petitioner has not provided, and the record does not contain, any
clear and convincing evidence rebutting the Delaware Supreme Court's determination that the
October 13, 2010 police search of Petitioner's apartment was conducted pursuant to the warrant
obtained on October 12, 2010. For instance, although Petitioner has provided a copy of a search
warrant dated October 12, 2010 with the residence address crossed out and the vehicle description
handwritten in above it, the State has provided a copy of a search warrant dated October 12, 2010
without the scratched-out apartment address and without the handwritten addition of the vehicle
description. (D.I. 10-12 at 1-4) The record also contains the trial transcript containing the arresting
officer's testimony that the October 13, 2010 search of the apartment was performed pursuant to
the October 12, 2010 search warrant. (D.I. 10-2 at 43) Based on the foregoing, the Court accepts as
correct the Delaware Supreme Court's finding that the October 13, 2010 police search of
Petitioner's apartment was conducted pursuant to a warrant.
The Court further concludes that the Delaware Supreme Court did not unreasonably apply
Strickland when denying Claim Two. It is well-settled that an attorney does not perform deficiently
by failing to raise meritless arguments or objections. See United States v. Sanders, 165 F.3d 248,253
(3d Cir. 1999). Since the police obtained a warrant prior to their search of Petitioner's apartment on
October 13, 2010, defense counsel's failure to file a motion to suppress the evidence on the basis
that the October 13, 2010 search was performed without a warrant does not amount to ineffective
assistance. Therefore, the Court will deny Claim Two for failing to satisfy§ 2254(d).
9
V.
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). 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); see also
Slack v. McDaniel, 529 U.S. 473,484 (2000).
The Court has concluded that the instant Petition does not warrant relief. Reasonable jurists
would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate of
appealability.
VI.
CONCLUSION
For the reasons discussed, the Court concludes that the Petition must be denied. An
appropriate Order will be entered.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?