Clark v. Coupe et al

Filing 19

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

EDWARD CLARK,
Petitioner,
Civ. Act. No. 16-857-LPS

V.

CLAIRE DEMATTEIS,Commissioner,

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

DELAW.\RE,

Respondents.'

J. Brendan O'Neill, Office of Defense Services for the State of Delaware, Wilmington, Delaware.
Attorney for Petitioner.

Brian L. Arban, Deputy Attorney General, Delaware Department ofJustice, Wilmington, Delaware.
Attorney 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. d'ffFed. 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 Edward Clark ("Petitioner"). (D.L 2) The State filed
an Answer in opposition, to which Petitioner filed a Reply. (D.I. 11; D.I. 17) For the reasons
discussed, the Court wiU 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.

PROCEDURAL BACKGROUND

On June 9, 2010, Petitioner pled guilty to one count each of delivery of cocaine, trafficking
cocaine (10 to 50 grams),

in raining a vehicle for keeping controlled substances, and endangering

the welfare of a child. (D.I. 11 at 2) On that same day, the Superior Court sentenced Petitioner as a
habitual offender to a total of twenty-two years of Level V incarceration, suspended after nine years

for reduced levels of supervision. (D.I. 11 at 2) Petitioner did not file a direct appeal.
On Aiogust 3, 2010, Petitioner filed a motion for modification of sentence, which the
Superior Court denied on August 10, 2010. On May 24, 2011,Petitioner filed a pro jt? motion for
post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61. The Superior Court
denied that motion on October 6, 2011. Petitioner did not appeal either decision. (D.I. 11 at 2)

On March 27, 2015, Delaware's Office of Defense Services ("OPD") filed a second Rule 61
motion ("Rule 61 motion") on Petitioner's behalf. The Superior Court summarily dismissed the
Rule 61 motion on April 10, 2015. (D.I. 11 at 2) The Delaware Supreme Court affirmed the
Superior Court's denial of Petitioner's Rule 61 motion on November 18, 2015. See Clark v. State, 128
A. 3d 636 (Table), 2015 WL 7294558 (Del. Nov. 18, 2015).

On September 23,2016, the OPD filed a § 2254 Petition on Petitioner's behalf, asserting
that Petitioner'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 guilty plea was

involiontary pursuant to Bra^ v. United States, 397 U.S. 742,748 (1970). (D.I. 2) Petitioner also
argues that the Delaware Supreme Court made unreasonable findings of fact during his postconviction 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 meritless. (D.I. 11)

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

As summarised by the Delaware Supreme Court, the relevant information regarding
the OCME evidence mishandling is set forth below:
In February 2014, the Delaware State Police ("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
criminally 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.
Brvwn v. State, 108 A.3d 1201,1204-05 (Del. 2015).

II.

TIMELINESS

The Antiterronsm and Effective Death Penalty Act of 1996("AEDPA") prescribes a one-

year period of limitations for the fihrig 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 firom 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 tolling); 28 U.S.C. § 2244(d)(2)(statutory
tolling).

Petitioner's § 2254 Petition, filed in 2016,is subject to the one-year limitations period
contained in § 2244(d)(1). See Undh v. Murphy, 521 U.S. 320, 336 (1997). Petitioner does not allege,
and the Court cannot discern, any facts triggering the application of§ 2244(d)(1)(B) or (C). The
State contends that the starting date for the limitations period is July 9, 2010, the date on which
Petitioner's conviction became final. (D.I. 11 at 6) Petitioner, however, disagrees, and 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. 17 at 7)
3

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 under
§2244(d)(l){P), 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 Brady v. Mayland, 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 gudty plea involuntary under Brac^ v. United States, 397 U.S. 742, 748 (1970), due to
the State's failure to disclose the Bra^ 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 guilty plea involvmtary and unknowing under
Brae^ v. United States.
Pursuant to Brady 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 unfillable 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
Bra<^ 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. Bagley,
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

^A petitioner estabKshes a Brady 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 willfully or inadvertently; and (3) the evidence was
material. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Lambert v. Blackwell, 387 F.3d 210, 252
(3d Cir. 2004).

Tnim prior to entering a plea. Therefore,in order to trigger a later starting date under § 2244(d)(1)(D)
for this involuntary plea/Brt2^ v. Maryland 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 OCME report concerning the drug evidence in this case was completed on
January 14, 2010 and signed on February 4,2010. (D.I. 14-4 at 9) Petitioner pled guilty on June 9,
2010. (Jd) 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 Bra(fy v. Maryland obligation, the State informed Petitioner and other defendants that all

drug evidence housed at the lab was susceptible to compromise.^ (D.I 15 at 7)
Given these chcumstances, 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,

^Although the Delaware State Police ("DSP") began its investigation into compromised drug
evidence on January 15, 2014, and the Deputy Attorney 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 Apfil
15, 2015. See Biden:Investigation ofState MedicalB.xaminer's Drugl^b Reveals Systemic Failings, Urgent Need
forReform, Dep't ofJustice, Att'y Gen.'s Website (June 19, 2014),
https://news.deIaware.gov/2014/Q6/19/biden-investigation-of-state-medical-examiners-drug-labreveals-systemic-failings-urgent-need-for-reform/.
■'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 Bradii v. Mayland by 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.
5

Petitioner had to file his § 2254 petition by Apiil 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);
Phlipol 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, ie., limitations period expires on
anniversary of triggering event).
Petitioner did not file the instant § 2254 Petition until September 23, 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 statutoiily or equitably tolled.
A. Statutory Toiling
Pursuant to § 2244(d)(2), a properly filed application for state collateral review toUs
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 Swarii^ v. Meyers, 204 F.3d 417, 424-25 (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
cendorari 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).

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

Here, when the OPD filed Petitioner's second Rule 61 motion on March 27, 2015, 346 days

of AEDPA's limitations pehod had already expired. The Rule 61 motion tolled the limitations from
March 27, 2015 through November 18, 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
November 19,2015,and ran the remaining nineteen days without interruption until AEDPA's
limitations period expired on December 8, 2015. Thus, even with the applicable statutory tolling,
the Petition is time-barred, unless equitable tolling 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, and(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 Jers^ State
Dept. of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998). A petitioner's obligation to act diligently applies
to both his filing of the federal habeas application and to his filing of state post-conviction
applications. See LaCava v. Y^ler, 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
(3) where the plaintiff timely asserted his rights mistakenly in the
wrong forum.
Seejones, 195 F.3d at 159,- Thomas v. Snyder, 2001 WL 1555239, at *3-4(D. Del. Nov. 28,2001).

Here,Petitioner contends that equitable tolling is warranted because "he pursued he tights
diligently" and
[i]t would be inequitable to prevent him from seeking relief when
several similarly situated petitioners wiU 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

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

(D.L 17 at 7-9) Petitioner also states that
[ajddirional 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. 17 at 8)

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 toUing 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 Ross 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 petitioner'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 March 27, 2015, and the Delaware Supreme Court affirmed the denial
of the Rule 61 modon on November 18, 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, or he could have filed a habeas
petition during the remaining nineteen days in AEDPA's limitations period following the Delaware
Supreme Court's decision in bis post-conviction appeal. Similarly, Petitioner's failure to file a habeas
petition during the remaining nineteen days in AEDPA's limitations period following the Delaware
Supreme Court's post-conviction decision on November 4, 2015 precludes a finding that Petitioner

exercised the requisite "due diligence" to warrant equitably tolling the limitations period. 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 reUef. For all of these reasons, the Court concludes that the doctrine of
equitable tolling is not available to Petitioner on the facts she has 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 untQ 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 den5dng a § 2254 petition must also decide whether to
issue a certificate of appealability. See 3d Cir. 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); Slack v. McDaniel, 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 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. McDamel, 529 U.S. 473,484 (2000).
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 wiU be entered.

10