Fisher v. Coupe et al

Filing 14

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/30/19. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

WESLEY J. FISHER,
Petitioaer,
Civ. Act. No. 16-838-LPS

V.

CLAIRE DEMATTEIS, Commissioner,

Delaware Department of Corrections,
SHANE TROXLER,Bureau Chief, and
ATTORNEY GENERAL OF THE STATE OF

DELAWARE,

Respondents.^

J. Brendan O'Neill, Office of Defense Services for the State of Delaware, Wilmington, Delaware.
Attorney for Petitioner.
Kathryn J. Hardson,Deputy Attorney General, Delaware Department ofJustice, Wilmington,
Delaware. Attomey for Respondents.

MEMORANDUM OPINION

September 30, 2019
Wilmington, Delaware

^Commissioner Claire DeMatteis and Bureau Chief Shane Troxler have replaced former
Commissioner Robert M. Coupe and former Bureau Chief Alan Grinstead, original parties to the
case. See Fed. R. Civ. P. 11(d).

STARK,U.S. District Judge:/"''^
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.S.C. § 2254("Petition") filed by Petitioner Wesley J. Fisher ("Petdrioner"). (D.I. 2) The State filed
an Answer in opposition (D.L 9), to which Petitioner filed a Reply (D.I. 13). For the reasons
discussed, the Court will dismiss Petitioner's § 2254 Petition as time-barred by the one-year period

of limitations prescribed in 28 U.S.C. § 2244(d)(1).
I.

BACKGROUND

On March 5,2012,Petitioner pled guilty to two counts of drug dealing (marijuana). (D.I. 9
at 1) On that same day, the Superior Court sentenced Petitioner to a total of sixteen years of Level
V incarceration, suspended after eight years and thirty days for eighteen months of Level III
probation. (D.I. 9 at 1-2) Petitioner did not file a direct appeal.

On April 20, 2012,Petitioner filed a motion for modification of sentence, which the
Superior Court denied on June 12, 2012. Petitioner filed a second motion for modification of
sentence on August 16, 2013, which the Superior Court denied on September 24,2013. (D.I. 9 at 2)
On July 14, 2014, Petitioner filed a pro se motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). On January 16,2015, Delaware's
Office of Defense Services ("OPD") filed a second Rule 61 motion on Petitioner's behalf,

instructing the Superior Court to disregard Petitioner's

se Rule 61 motion. The Superior Court

summarily dismissed the Rule 61 motion on April 20, 2015. (D.I.9 at 2; see State v. A.nderson 2015
WL 2067158 (Del. Super. Ct. Apr. 20, 2015)). The Superior Court denied Petitioner's motion for

reargument on June 17, 2015. See State v. Banks, 2015 WL 4400130 (Del. Super. Ct.June 17, 2015).
The Delaware Supreme Court affirmed the Superior Court's denial of Petitioner's Rule 61 motion
on December 9,2015. See Banks v. State, 2015 WL 8481972 (Del. Dec. 9,2015).

On September 21, 2016, the OPD filed a § 2254 Pedtion on Pedtioner's behalf asserting that
Peddoner's lack of knowledge of an evidence scandal at the Office of the Chief Medical Examiner

("OCME")was material to his decision to plead guilty and, therefore, his gudty plea was involuntary
pursuant to Bra^ v. United States, 397 U.S. 742, 748 (1970). (D.I. 2) Petidoner also argues that the
Delaware Supreme Court made unreasonable findings of fact during his post-convicdon appeal
regarding OCME misconduct. The State filed an Answer asserting that the Petition should be
dismissed as time-barred or, alternatively, because the claim is meddess. (D.I. 9) Petitioner filed a

Reply, conceding that the Petition was filed after the expiration of the statute oflimitations period
but asserting that it should be deemed timely filed through the application of the doctrine of
equitable tolling. (D.I. 13 at 7)
A, OCME CRIMINAL INVESTIGATION

The relevant information regarding the OCME evidence mishandling is set forth below:
In February 2014, the Delaware State PoUce ("DSP") and the
Department ofJustice ("DOJ") began an investigation into criminal
misconduct occurring in the Controlled Substances Unit of
the OCME.

The investigation revealed that some drug evidence sent to
the OCME for testing had been stolen by OCME employees in some
cases and was unaccounted for in other cases. Oversight of the lab
had been lacking, and security procedures had not been followed.
One employee was accused of"dry labbing"(or declaring a test result
without actually conducting a test of the evidence) in several cases.
Although the investigation remains ongoing, to date, three OCME
employees have been suspended (two of those employees have been
rriminally indicted), and the Chief Medical Examiner has been fired.
There is no evidence to suggest that OCME employees tampered
with drug evidence by adding known controlled substances to the
evidence they received for testing in order to achieve positive results
and secure convictions. That is, there is no evidence that the OCME

staff"planted" evidence to wrongly obtain convictions. Rather, the
employees who stole the evidence did so because it in fact consisted
of illegal narcotics that they could resell or take for personal use.
2

Bwwn p. State, 108 A.3d 1201,1204-05 (Del. 2015).

II.

TIMELINESS

The Antiterronsm and Effective Death Penally Act of 1996("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.
28 U.S.C. § 2244(d)(1). AEDPA's limitations period is subject to statutory and equitable tolling. See
Holland v. Florida, 560 U.S. 631,645 (2010)(equitable toUiQg); 28 U.S.C. § 2244(d)(2)(statutory
tolHng).

Petitioner's § 2254 Petition, filed in 2016,is subject to the one-year limitations period
contained in § 2244(d)(1). See Hndh v. Murphy, 521 U.S. 320, 336 (1997). The State contends that
the starting date for the limitations period is April 4, 2012, the date on which Petitioner's conviction

became final. (D.I. 9 at 6) Petitioner, however, appears to assert that he is entitled to a later starting
date for AEDPA's limitations period — April 15,2014 — under § 2244(d)(1)(D), because that is the

date on which the State began to notify defendants in certain active cases about the OCME evidence
misconduct. (D.I. 13 at 7)

In order to determine if the April 15, 2014 revelation of the OCME misconduct constitutes
a newly discovered factual predicate warranting a later starting date for the limitations period imder
§2244(d)(l)(D), the Court must first distill Petitioner's argument to its core. The argument appears
to be two-fold. First, Petitioner contends that the State violated Bra(^ v. Maryland, 373 U.S. 83

(1963), by failing to disclose that there was ongoing misconduct at the OCME during the time he
was considering whether to enter a plea. Second, he contends that the Delaware state courts should

have deemed his guilty plea involuntary under Q" rady v. United States, 397 U.S. 742, 748 (1970), due to
the State's failure to disclose the B' rady v. Maryland evidence, i.e., the OCME misconduct. In short.

Petitioner asserts that his lack of knowledge about the OCME misconduct is vital to his habeas
Claim because that lack of knowledge rendered his guhty plea involuntary and unknowing under

B" rady v. United States.
Pursuant to Brat^ v. United States, a guilty plea is considered involuntary if it is "induced by
threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled
or unfiUable promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor's business (e.g. bribes)." Brady, 397 U.S. at 755. A violation of
Brady v. Maryland occurs when the government fails to disclose evidence materially favorable to the
accused,including both impeachment evidence and exculpatory evidence." See United States v. Bagly,

^A petitioner establishes a Brai^ v. Maryland violation by showing that:(1) the evidence at issue was
favorable to the accused, either because it was exculpatory or it had impeachment value:(2) the
prosecution suppressed the evidence, either willfiiUy or inadvertendy; and (3) the evidence was
material. See Strickier v. Greene, S21 U.S. 263, 281-82 (1999); Uambertv. Blackwell, 387 F.3d 210, 252
(3d Cir. 2004).

473 U.S. 667,676 (1985). For purposes of the inquiry under § 2244(d)(1)(D), whether or not the
OCME misconduct affected, or could have affected. Petitioner's decision to plead guilty depends on

whether the drugs in his case were tested by the OCME and whether the results were provided to
him prior to entering a plea. Therefore,in order to trigger a later starting date under § 2244(d)(1)(D)

for this involuntary plea/Sm^ v. M.aiyland Claim,Petitioner must show that (1) the drug evidence in
his case was tested by the OCME and he received the results of the test before entering a plea; and
(2) exercising due diligence, he could not have learned that the evidence in his case may have been
part of the compromised drug evidence involved in the OCME scandal until April 15, 2014. For the
following reasons, the Court concludes that Petitioner has met this burden.

First, the State provided Petitioner the OCME report concerning the drug evidence in his
case on January 20, 2012, and he pled guilty March 5, 2012. fO.I. 9 at 3) Second, facts sufficient to
provide a basis for a good faith claim that state employees engaged in impermissible conduct were
not available to defense counsel until April 15, 2014 when, as part of its ^rady v. Maryland obligation,
the State informed Petitioner and other defendants that all drug evidence housed at the lab was

susceptible to compromise.^ (D.113 at 7)

^Although the Delaware State Police ("DSP") began its investigation into compromised drug
evidence on January 15, 2014, and the Deputy Attomey General's office informed defense counsel
on February 21, 2014 that an investigation into the evidentiary practices at the OCME had started
on February 20, 2014, the Court concurs with Petitioner's contention that sufficient facts to make
the instant argument were not available until the State provided the relevant information on Aptil
15, 2015. See Blden: Investigation ofState Medical E.xaminer's Drughah Beveals Systemic Failings, Urgent Need
forReform, Dep't ofJustice, Att'y Gen.'s Website (June 19, 2014),
https://news.delaware.gOv/2014/06/19/biden-investipation-Qf-state-medical-examiners-drug-labreveals-systemic-ft!ilitigs-urgent-need-for-reform/.

Given diese circumstances, the Court concludes that AEDPA's limitations period in this

case began to run on April 15, 2014/ Accordingly, to comply with the one-year limitations period,
Petitioner had to file his § 2254 petition by April 15, 2015. 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 triggering event).
Petitioner did not file the instant § 2254 Petition until September 21, 2016, approximately
one year and five months after the expiration of AEDPA's statute of limitations. Therefore, the
Petition is time-barred, unless the limitations period can be stamtorily or equitably tolled.
A. Statutory ToUing

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 AEDPA's one-year
limitations period. See Swart^ v. M^ers, 204 F.3d 417, 424-25 (3d Cir. 2000). However, the

The State relies on Harmon v. Johnson, 2016 WL 183899, at *3(D. Del. Jan. 14, 2016), to support its
argument that § 2254(d)(1)(D) is inapplicable and, therefore, cannot trigger a later starting date in
Petitioner's case. The Court disagrees. Harmon argued that his conviction should be vacated
because the State violated Braefy v. Marylandhj failing to disclose its knowledge of the OCME drug
evidence scandal during his plea process and by waiting until long after his conviction in 2012 to
disclose the tampering. See Harmon, 2016 WL 183899, at *2-3. However, since the drug evidence in
Harmon was never sent to the OCME for testing, the court found that the revelation of the OCME
scandal in 2014 could not have constituted a new factual predicate for Harmon's substantive Brady v.
Maryland claim. Id. Here, by contrast. Petitioner argues that the alleged lack of knowledge of the
OCME misconduct was material to his decision to plead guilty, thereby rendering his guilty plea
involuntary under Brady v. United States. In addition, unlike in Harmon, the drug evidence in
Petitioner's case was sent to the OCME for further testing after the initial field test, and Petitioner
received a copy of the OCME report prior to pleading guilty. Given these circumstances, which are
quite different than those presented in Harmon, the Court concludes that the revelation of the
OCME scandal constitutes a new factual predicate.
6

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, when the OPD filed Petitioner's second Rule 61 motion on January 16, 2015, 276 days
of AEDPA's limitations period had already expired. The Rule 61 motion toUed the hmitations from
January 17, 2015 through December 9, 2015, 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
December 10, 2015, and ran the remaining eighty-nine days without interruption until AEDPA's

limitations period expired on March 8, 2016. Thus, even with the applicable statutory tolling, the
Petition is time-barred, unless equitable toUing is available.
B. Equitable Tolling

Pursuant to the equitable tolling doctrine, the one-year limitations period may be tolled in
very rare circumstances for equitable reasons when the petitioner demonstrates "(1) that he has been
pursuing his rights diligently, anr/(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. ofCorr., 145 F.3d 616, 618-19 (3d Cir. 1998). A petitioaer's obligation to act dihgently applies
to both his filing of the federal habeas application and to his filing of state post-conviction
applications. See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005). In turn, 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
7

(3) where the plaintiff timely asserted his rights mistakenly in the wrong
forum.

See Jones, 195 F.3d at 159;Thomas v. Snyder, 2001 WL 1555239, at *3-4(D. Del Nov. 28, 2001).
Here,Petitioaer contends that equitable tolling is warranted because "he pursued he rights
diligently" and

[i]t would be inequitable to prevent him from seeking relief when
several similarly situated petitioners will have their claims heard even
though they discovered the misconduct at the same time as he did,
filed their petitions at the same time or after he did and exhausted
their state remedies around the same time as he did. It is unfair to

penalize him because his counsel's state resources were significantly
strained due to the hundreds of motions they filed upon discovery of
the misconduct.

(D.I. 13 at 8) Petitioner also states that

[ajdditional extraordinary circumstances resulted from the systemic
nature of the government misconduct. Counsel had to: 1)identify
which of a vast number of clients had viable claims; 2) contact all of
those clients; 3) file a vast number of petitions for those with
legitimate claims; 4) operate with limited state resources strained by
the volume of filings; 5) stop filing petitions in order to research and
brief issues raised due to the Superior Court's abrupt and drastic
amendment to Rule 61 without notice to counsel;6) prepare for,
participate in and submit briefing following a 3-day evidentiary
hearing in State v. Irwin to uncover further evidence of OCME
misconduct; and 7) repeatedly supplement filed motions with new
evidence of misconduct that continued to trickle out over the next

two or more years.

(D.I. 15 at 8-9)

Petitioner's equitable tolling argument is unavailing. His assertions regarding strained state
resources, number of post-conviction cases, etc, do not constitute extraordinary circumstances for
equitable tolling purposes. See Hendricks v. Johnson, 62 F. Supp. 3d 406, 411 (D. Del. 2014)("attorney

error, miscalculation, inadequate research, or other mistakes" do not amount to extraordinary
circumstances for equitable tolling purposes). Even if these "events" could somehow be construed

as extraordinary, Petitioner has not demonstrated that they actually prevented him from filing a basic

habeas petition. See Rj)ss v. Varano^ 712 F.3d 784, 803 (3^^^ Cir. 2013)("[F]or a petitioner to obtain
relief[via equitable tolling] there must be a causal connection, or nexus, between the extraordinary
circumstances he faced and the pefitioner's failure to file a timely federal petition."). For instance,
he raised the issue of the OCME drug evidence scandal in his Rule 61 motion that he filed in the

Delaware Superior Court on January 16, 2015, and the Delaware Supreme Court affirmed the denial
of the Rule 61 modon on December 9, 2015. These dates demonstrate that Petitioner could have

filed a timely "protective" § 2254 petition^ in this Court, along with a motion to stay the proceeding
while awaiting the Delaware state courts' post-conviction decisions, in the remaining eighty-nine

days remaining in the AEDPA's limitations period following the Delaware Supreme Court's postconviction decision. See, e.g., Valverde v. Stinson, 224 F.3d 129, 134(2d Cir. 2000)(once extraordinary
circumstance ends, petitioner must exercise reasonable diligence in filing his petition).
In short, Petitioner cannot demonstrate that the OCME scandal, and/or the timing of the
State's disclosure about the OCME scandal, actually prevented him from timely filing a petition

seeking federal habeas relief. For all of these reasons, the Court concludes that the doctrine of
equitable tolling is not available to Petitioner on the facts presented. Accordingly, the Court will

deny the instant Petition as time-barred.^

^The Supreme Court has explained that a "petitioner's reasonable confusion about whether a state
filing would be timely" when attempting to exhaust state remedies may constitute good cause for
him to file a "protective petition in federal court and ask[| the federal court to stay and abey the
federal habeas proceedings until state remedies are exhausted." Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005).

^Having concluded that it must deny the Petition as time-barred, the Court will not address the
State's alternate reason for denying the Petition.

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 Ck. L.A.R. 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); Shck v. McDamel, 529 U.S. 473,

484(2000). When a district court denies a habeas petition on procedural grounds without reaching
the underlying constitutional claims, the court is not reqtiked 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, 529 U.S. at 484.
The Court has concluded 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
appealability.
IV.

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.

10