Serpa v. Coupe et al
Filing
19
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/30/2019. (etg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANTONIO SERPA,
Petitioner,
Civ. Act. No. 16-865-LPS
V.
CLAIRE DEMATTEIS,Commissioner,
Delaware Department of Corrections,
ROBERT MAY,Warden, 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.
Brian L. Arban,Deputy Attorney General, Delaware Department ofJustice, Wilmington, Delaware.
Attomey for Respondents.
MEMORANDUM OPINION
September 30, 2019
Wilmington, Delaware
'Commissioner Claire DeMatteis and Warden Robert May have replaced former Commissioner
Robert M. Coupe and former Warden G.R.Johnson, original parties to the case. See Fed. R. Civ. P.
11(d).
STAR^ 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 Petitionet Antonio Serpa ('Tetitioner"). (D.I. 2) The State filed
an Answer in opposition, to which Petitioner filed a Reply. (D.L 11; D.I. 15) 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.
PROCEDURAL BACKGROUND
On October 18, 2011,Petitioner pled guilty to two counts of delivery of cocaine and one
count of second degree conspiracy. (D.L 11 at 2) That same day, the Superior Court sentenced
Petitioner as a habitual offender to a total of thirty-one years of Level V incarceration, suspended
after eighteen years for various levels of supervision. (D.L 11 at 2) Petitioner did not file a direct
appeal.
On October 28, 2011,Petitioner filed a motion for modification of sentence, which the
Superior Court denied on November 4, 2011. (D.L 11 at 2)
On December 11,2012,Petitioner filed a motion for post-conviction rehef pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied on
March 14, 2013. (D.L 11 at 2) Petitioner appealed, and the Delaware Supreme Court affiirmed that
decision on Jidy 30, 2013. See Serpa v. State, 72 A.3d 502 (Table), 2013 WL 3961198 (Del. July 30,
2013).
On December 29, 2014, Delaware's Office of Defense Services ("OPD") filed a second
motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61
motion") on Petitioner's behalf. The Superior Court summarily dismissed the Rule 61 motion as
untimely on January 15, 2015. (D.L 11 at 2) The Superior Court also denied his motion for
reargument on February 12,2015. (Id?) The Delaware Supreme Court affirmed the Superior Court's
denial of Petitioner's Rule 61 motion on November 4,2015. See Jones v. State, 127 A.3d 397 (Table),
2015 WL 7776322 (Del. Dec. 2, 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
involuntary pursuant to BracJ^ 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 filed through the application of the
doctrine of equitable tolling. (D.I. 15 at 7)
A. OCME CRIMINAL INVESTIGATION
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 tliose 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
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and secure convicdons. 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.
Brvjvn V. State, 108 A.3d 1201,1204-05 (Del. 2015).
11.
TIMELINESS
The Antiterrorism and Effective Death Penalty Act of 1996("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 Constimtion 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 equitable and statutory 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 tri^ering the application of§ 2244(d)(1)(B) or (C). The
State contends that the starting date for the limitations period is November 17, 2011, the date on
which Petitioaer's convictioa 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. 15 at 7-8)
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)(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 Brac^ 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 Brady 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 involuntary and unknowing under
Brady v. United States.
Pursuant to Brai^ v. United States, a guilty plea is considered involuntary if it is "induced by
threats (or prom^es 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. Bagley,
^A petitioner establishes a Brady v. Maryland violatioa 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
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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 gudty 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/Bra<^ 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 OCNIE report concerning the drug evidence in Petitioner's case was signed on
June 27, 2011, before Petitioner entered his guilty plea on October 18, 2011. (D.I. 17-8 at 71)
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
b' rady 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)
material. See Strickler v. Greene^ 527 U.S. 263, 281-82 (1999); Lambert v. Blackmell, 387 F.3d 210, 252
(3d Cir. 2004).
^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 April
15, 2015. See Biden: Investigation ofState Medical Examiner's Drug Lab Reveals Systemic Failings, Urgent Need
JorReform, Dep't ofJustice, Att'y Gen.'s Website {June 19, 2014),
https://news.delaware.gOv/2014/06/19/biden-investigation-of-state-medical-examiners-drug-lab-
reveals-systemic-failirrgs-urgent-need-for-reform/.
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Given these 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);
Phiipotv. 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 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 statutorily or equitably tolled.
A. Statutory Toiling
Pursuant to § 2244(d)(2), a propedy 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 Sivart^ v. Meyers, 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 Brae^ v. Marylandhj fading 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 OCNIE
scandal in 2014 could not have constituted a new factual predicate for Harmon's substantive Brady v.
Maiyland claim. Id. Here, by contrast, Petitioner argues that the alleged lack of knowledge of the
OCME misconduct was material to his decision to plead gudty, thereby rendering his gudty 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.
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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. A.ttom^ofPhilade^hia^ 247 F.3d 539,542(3d Cir. 2001).
Here, when Petitioner filed his motion to review his sentence on July 22,2014, ninety-eight
days of AEDPA's limitations period had expired. The limitations period was tolled through
September 29, 2014,^ which includes the thirty-day appeal period..
The limitations clock started to run again on September 30, 2014, and ran for ninety-one
days until the OPD filed Petitioner's Rule 61 motion on December 29, 2014. The Rule 61 motion
toUed the limitations from December 29, 2014 through November 4, 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 5, 2015,and ran the remaining 176 days without interruption until
AEDPA's limitations period expired on April 29, 2016. 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. ld.\ Miller v. New Jersey State
Dept. ofCorr., 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
The appellate period expired on a Saturday. Therefore, the time to file an appeal extended through
the end of the day on Monday,September 29, 2014. See Del. Sup. Ct. R. 11(a).
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applicatioQs. See LaCava v. Kyler^ 398 F.3d 271,277 (3ci Cir. 2005). In turn, the Third Circuit has
explained that equitable tolhng 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.
See Jones, 195 F.3d at 159;Thomas v. Snjder, 2001 WL 1555239, at *3-4(D. Del. Nov. 28, 2001).
Here,Petitioner 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. 15 at 7-9) Petitioner also states that
[a]dditional 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 chents; 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. Ifwin 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)
Petitioner's equitable tolling argument is unavailing. Piis assertions regarding strained state
resources, number of post-conviction cases, etc, do not constitute extraordinary circumstances for
equitable tolling purposes. See Hend/icks 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 Koss 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 December 29, 2014; the Delaware Supreme Court affirmed the denial of
the Rule 61 motion on November 4, 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 176 days in AEDPA's Limitations period following the Delaware
Supreme Court's post-conviction decision on November 4, 2015. Similarly, Petitioner's failure to
file a habeas petition during the remaining 176 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.
^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 askQ the federal court to stay and abey the
federal habeas proceedings until state remedies are exhausted." Vace v. DiGuglielmo, 544 U.S. 408, 416
(2005).
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.^
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). 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, 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.
^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.
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IV.
CONCLUSION
For the reasons discussed. Petitioners Application For A Writ Of Habeas Corpus Pursuant
To 28 U.S.C. § 2254 is DENIED. An appropriate Order will be entered.
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