Johnson v. Pierce
Filing
38
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 5/27/2020. (nmg)
Case 1:16-cv-01164-LPS Document 38 Filed 05/27/20 Page 1 of 7 PageID #: 2333
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TYWAAN JOHNSON,
Petitioner,
v.
DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
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Civ. Act. No. 16-1164-LPS
__________________________
Tywaan Johnson. Pro Se Petitioner.
Carolyn S. Hake, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
___________________________
MEMORANDUM OPINION
May 27, 2020
Wilmington, Delaware
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STARK, U.S. District Judge:
I.
INTRODUCTION
Pending before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 and Exhibit to Petition (hereinafter referred to as “Petition”) filed by Petitioner
Tywaan Johnson (“Petitioner”). (D.I. 2) The State has filed an Answer in Opposition. (D.I. 14)
For the reasons discussed, the Court will dismiss the Petition as time-barred under the limitations
period prescribed in 28 U.S.C. § 2244.
II.
BACKGROUND
On September 21, 2011, a Delaware Superior Court jury found Petitioner guilty of first
degree murder, two counts of possession of a firearm during the commission of a felony
(“PFDCF”), first degree robbery, and second degree conspiracy. See Johnson v. State, 53 A.3d 302
(Table), 2012 WL 3893524, at *1 (Del. Sept. 7, 2012); D.I. 14 at 1. In accordance with the parties’
stipulation, the Superior Court also found Petitioner guilty of possession of a firearm by a person
prohibited (“PFBPP”). (D.I. 14 at 1) The Superior Court sentenced Petitioner as a habitual
offender on March 21, 2012 to life in prison for the first degree murder and first degree robbery
convictions, to ten years at Level V for each of the PFDCF convictions, and to two years at Level V
suspended for one year of probation for the conspiracy conviction. (D.I. 14 at 2) Petitioner
appealed, and the Delaware Supreme Court affirmed his convictions on September 7, 2012. See
Johnson, 2012 WL 3893524, at *2.
On September 12, 2013, Petitioner filed a motion for postconviction relief pursuant to
Delaware Superior Court Criminal Rule 61 (“Rule 61 motion”). (D.I. 14 at 2) On March 3, 2015,
the Superior Court summarily dismissed the Rule 61 motion in part and denied it in part. See State v.
Johnson, 2015 WL 1059198, at *5 (Del. Super. Ct. Mar. 3, 2015). Petitioner appealed, and the
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Delaware Supreme Court affirmed that judgment on December 10, 2015. See Johnson v. State, 129
A.3d 882 (Table), 2015 WL 8528889, at *4 (Del. Dec. 10, 2015).
Petitioner filed the instant § 2254 Petition in December 2016, asserting seven claims of
ineffective assistance of counsel, two claims of prosecutorial misconduct, one claim that his due
process rights were violated, and two claims alleging evidentiary errors. (D.I. 2)
III.
STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty 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 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 Lindh 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), (C), or (D).
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Given these circumstances, the one-year period of limitations began to run when Petitioner’s
conviction became final under § 2244(d)(1)(A).
Pursuant to § 2244(d)(1)(A), if a state prisoner appeals a state court judgment but does not
seek certiorari review, the judgment of conviction becomes final ninety days after the state appellate
court’s decision. See Kapral v. United States, 166 F.3d 565, 575, 578 (3d Cir. 1999); Jones v. Morton, 195
F.3d 153, 158 (3d Cir. 1999). Since Petitioner did not file a petition for writ of certiorari, his
judgment of conviction became final on December 7, 2012, ninety days after the Delaware Supreme
Court affirmed Petitioner’s conviction. Applying the one-year limitations period to that date,
Petitioner had until December 7, 2013 to timely file his Petition. 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 oneyear limitations period is calculated according to the anniversary method, i.e., the limitations period
expires on the anniversary of the triggering event).
Petitioner filed the instant Petition on December 7, 2016, 1 three years after the expiration of
the limitations period. Thus, his Petition is untimely, unless the limitations period can be statutorily
or equitably tolled. See Jones, 195 F.3d at 158.
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
Petitioner dated his signature on the Petition for December 7, 2016, and the electronic stamp on
the Petition is dated December 9, 2016. Since the two-day difference between the two dates does
not affect the timeliness of the instant Petition, the Court adopts December 7, 2016 as the filing
date. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003).
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AEDPA’s limitations period. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000); Price v. Taylor,
2002 WL 31107363, at *2 (D. Del. Sept. 23, 2002). 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 post-conviction motion. See Stokes v. Dist.
Attorney of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001). In addition, a post-conviction motion that
is untimely under state law is not properly filed for § 2244(d)(2) purposes and, therefore, has no
statutory tolling effect. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
Here, 278 days of AEDPA’s limitations period lapsed before Petitioner filed his Rule 61
motion on September 12, 2013. The Superior Court denied the motion, and the Delaware Supreme
Court affirmed that decision on December 10, 2015. Consequently, Petitioner’s Rule 61 motion
tolled the limitations period from September 12, 2013 through December 10, 2015.
The limitations clock started to run again on December 11, 2015, and ran the remaining 87
days without interruption until the limitations period expired on March 7, 2016. Thus, even with the
applicable statutory tolling, the Petition is time-barred, unless equitable tolling is applicable.
B. Equitable Tolling
AEDPA’s limitations period may be tolled for equitable reasons in appropriate cases. See
Holland, 560 U.S. at 645. A petitioner can only qualify for equitable tolling by demonstrating “(1)
that he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his
way and prevented timely filing;” 2 mere excusable neglect is insufficient. Schlueter v. Varner, 384 F.3d
69, 77 (3d Cir. 2004). Consistent with these principles, the Third Circuit has specifically limited the
equitable tolling of AEDPA’s limitations period to the following circumstances:
Holland, 560 U.S. at 648.
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(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.
Jones, 195 F.3d at 159; see also Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001).
Petitioner contends that the limitations period should be equitably tolled because his postconviction counsel erroneously informed him that he had until December 10, 2016 to file a timely
federal habeas petition, apparently due to post-conviction counsel’s incorrect belief that a federal
habeas petition “must be filed within one year of the denial of the Rule 61 petition.” 3 (D.I. 27 at 6)
Petitioner’s argument is unavailing. Although the Supreme Court held in Martinez v. Ryan, 132 S.Ct.
1309 (2012), that a petitioner should be permitted to raise a procedurally defaulted claim of
ineffective assistance of trial counsel where the default was caused by the ineffective assistance of
post-conviction counsel, the Martinez decision does not in any way impact a petitioner’s obligation to
comply with AEDPA’s limitations period and cannot excuse a failure to file within the limitations
period.
Petitioner also asserts that his trial and appellate counsel incorrectly informed him that
AEDPA’s one-year period began anew after each appeal. (D.I. 27 at 1-3) Petitioner does not
provide any support for this assertion and, in any event, “[a]ttorney miscalculation” of a deadline “is
simply not sufficient to warrant equitable tolling.” Lawrence v. Florida, 549 U.S. 327, 336 (2007); see
also Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002) (holding that attorney’s mistake in
determining date habeas petition is due does not constitute extraordinary circumstances for
As previously explained, AEDPA’s one-year statute of limitations begins to run from the date on
which the petitioner’s judgment of conviction became final, not from the date on which the
petitioner’s post-conviction proceeding was decided. See supra at p. 3.
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purposes of equitable tolling). Additionally, to the extent Petitioner’s untimely filing of the Petition
was due to his own ignorance of the law or the result of his miscalculation regarding the one-year
filing period, such factors do not warrant equitably tolling the limitations period. See Taylor v. Carroll,
2004 WL 1151552, at *5-6 (D. Del. May 14, 2004).
Based on the foregoing, the Court concludes that that the doctrine of equitable tolling is not
available to Petitioner on the facts he has presented. Accordingly, the Court will dismiss the instant
Petition as time-barred.
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). A federal
court denying a habeas petition on procedural grounds without reaching the underlying
constitutional claims 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. McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that the instant Petition does not warrant relief because it is timebarred. Reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court
declines to issue a certificate of appealability.
V.
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.
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