Turner v. Phelps et al
Filing
17
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/27/2020. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SAMUEL D. TURNER,
Petitioner,
V.
CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
KOLA WOLE AKINABA YO, Warden,
and ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
CURTIS FINNEY,
Petitioner,
V.
Respondents.
Civil Action No. 17-722-RGA
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE STATE
OF DELA WARE,
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Civil Action No . 17-723-RGA
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Commissioner Claire DeMatteis replaced former Commissioner Perry Phelps and Warden
Kolawole Akinbayo was appointed to his position after the original filing date of the Petition.
See Fed. R. Civ. P. 25(d).
EUGENIA WATSON,
Petitioner,
V.
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
WENDI CAPLE, Warden, and
ATTORNEY GENERAL OF THE STATE
OF DELAWARE,
Respondents.
GEORGE R. DORSEY,
Petitioner,
V.
Civil Action No. 17-732-RGA
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
MARVIN MAILEY, Bureau Chief,
Community Corrections, and ATTORNEY
GENERAL OF THE STATE OF
DELAWARE,
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Respondents .2
Civil Action No. 17-772-RGA
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TYMERE DORSETT,
Petitioner,
V.
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Civil Action No . 17-789-RGA
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CLAIRE DEMATTEIS, Commissioner,
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Delaware Department of Corrections,
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MARVIN MAILEY, Bureau Chief,
Community Corrections, and ATTORNEY )
GENERAL OF THE STATE OF
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DELAWARE,
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Bureau Chief Marvin Mailey replaced former Bureau Chief Alan Grinstead, an original party to
the case. See Fed. R. Civ. P. 25 (d).
Respondents .
JAMIL BAILEY,
Petitioner,
V.
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
MARVIN MAILEY, Bureau Chief,
Community Corrections, and ATTORNEY
GENERAL OF THE STA TE OF
DELAWARE,
Respondents .
LARON CARNEY,
Petitioner,
V.
Civil Action No. 17-790-RGA
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Civil Action No. 17-791-RGA
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CLAIRE DEMATTEIS , Commissioner,
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Delaware Department of Corrections,
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ROBERT MAY, Warden, and
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ATTORNEY GENERAL OF THE STATE )
OF DELA WARE,
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Respondents.
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NEAL GIBSON,
Petitioner,
V.
CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, and
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Civil Action No. 17-793-RGA
Warden Robert May replaced former Warden Dana Metzger, an original party to the case. See
F,ed. R. Civ. P. 25(d).
ATTORNEY GENERAL OF THE STATE )
OF DELAWARE,
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Respondents .
LAMONTE HARRIGAN,
Petitioner,
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V.
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Civil Action No. 17-863-RGA
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
MARVIN MAILEY, Bureau Chief,
Community Corrections, and ATTORNEY
GENERAL OF THE STATE OF
DELAWARE,
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Respondents.
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DAVERN LAWS ,
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Petitioner,
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V.
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Civil Action No. 17-864-RGA
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
MARVIN MAILEY, Bureau Chief,
Community Corrections, and ATTORNEY
GENERAL OF THE STATE OF
DELAWARE,
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Respondents.
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JAMES HUMPHREY,
Petitioner,
V.
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Civil Action No. 17-898-RGA
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CLAIRE DEMATTEIS , Commissioner,
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Delaware Department of Corrections,
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ROBERT MAY, Warden, and
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ATTORNEY GENERAL OF THE STA TE )
OF DELA WARE,
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Respondents.
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BERNARD HERRING,
Petitioner,
V.
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE STA TE
OF DELA WARE,
Respondents.
TAV AR SMITH,
Petitioner,
V.
CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
KOLA WOLE AKINABA YO, Warden,
and ATTORNEY GENERAL OF THE
STATE OF DELA WARE,
Respondents.
Civil Action No. 17-904-RGA
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Civil Action No. 17-1141-RGA
THOMAS ROTHWELL,
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Petitioner,
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V.
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Civil Action No. 17-1158-RGA
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE STATE
OF DELAWARE,
Respondents.
JAMAL JOHNSON,
Petitioner,
V.
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
KOLA WOLE AKINBA YO, Warden, and
ATTORNEY GENERAL OF THE STATE
OF DELAWARE,
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LUIS RIVERA,
Civil Action No. 17-1195-RGA
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Petitioner,
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V.
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CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE STATE
OF DELAWARE,
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Respondents .
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Civil Action No. 17-1233-RGA
JY AIRE SMITH,
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Petitioner,
V.
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CLAIRE DEMATTEIS , Commissioner,
Delaware Department of Corrections,
TRUMAN MEARS, Warden, and
ATTORNEY GENERAL OF THE STA TE
OF DELAWARE,
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Respondents .4
Civil Action No. 17-1234-RGA
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MEMORANDUM OPINION
J. Brendan O'Neill and Nicole Marie Walker, Office of Defense Services for the State of
Delaware, Wilmington, Delaware.
Counsel for Petitioners Samuel D. Turner, Curtis Finney, Eugenia Watson, George R.
Dorsey, Tymere Dorsett, Jamil Bailey, Laron Carney, Neal Gibson, Lamonte Harrigan,
Davern Laws, James Humphrey, Bernard Herring, Tavar Smith, Thomas Rothwell, Jamal
Johnson, Luis Rivera, and Jyaire Smith.
Bryan Arban, Matthew C. Bloom, Kathryn Joy Garrison, Carolyn Shelley Hake, and Maria T.
Knoll, Deputy Attorney Generals, Delaware Department of Justice, Wilmington, Delaware.
Counsel for Respondents.
August 27, 2020
Wilmington, Delaware
4
Warden Truman Mears replaced former Warden G.R. Johnson, an original party to the case.
See Fed. R. Civ. P. 25(d).
Isl Richard G. Andrews
ANDREWS, UNITED STATES DISTRICT JUDGE:
Pending before the Court are seventeen separate but nearly-identical § 2254 Petitions.
One Petition is filed by each of the following: Samuel Turner (Civ. A. No. 17-722-RGA); Curtis
Finney (Civ. A. No. 17-723-RGA); Eugenia Watson (Civ. A. No. 17-732-RGA); George R.
Dorsey (Civ. A. No. 17-772-RGA); Tymere Dorsett (Civ. A. No. 17-789-RGA); Jamil Bailey
(Civ. A. No. 17-790-RGA); Laron Carney (Civ. A. No. 17-791-RGA); Neal Gibson (Civ. A. No.
17-793-RGA); Lamonte Harrigan (Civ. A. No. 17-863-RGA); Davern Laws (Civ. A. No. 17864-RGA); James Humphrey (Civ. A. No. 17-898-RGA); Bernard Herring (Civ. A. No. 17-904RGA) ; Tavar Smith (Civ. A. No. 17-1141-RGA); Thomas Rothwell (Civ. A. No. 17-1158RGA); Jamal Johnson (Civ. A. No. 17-1195-RGA); Luis Rivera (Civ. A. No. 17-1233-RGA);
and Jyaire Smith (Civ. A. No. 17-1234-RGA).
All seventeen Petitioners pled guilty to drug-related offenses between 2010 and 2014.
In turn, all seventeen Petitioners filed Rule 61 motions 5 in the Superior Court asserting the
identical claim for relief arising from issues relating to an evidence scandal in the Office of the
Chief Medical Examiner ("OCME"), namely, that their guilty pleas were rendered involuntary
under Brady v. United States, 373 U.S. 742 (1970) because the State failed to disclose evidence
of OCME misconduct prior to the entry of their guilty pleas. Petitioners alleged that the OCME
misconduct constituted impeachment material under Brady v. Maryland, 373 U.S. 83 (1963).
The Superior Court denied all seventeen Rule 61 motions, but none of the instant Petitioners
appealed those decisions. Instead, they filed the § 2254 Petitions presently pending before the
Court.
5
A Rule 61 motion is a motion filed pursuant to Delaware Superior Court Criminal Rule 61.
1
Each Petition raises the same single claim that the Petitioner's guilty plea was
involuntary under Brady v. United States because the State failed to disclose evidence of the
OCME misconduct prior to the Petitioner entering a guilty plea, and the OCME misconduct
constituted impeachment material under Brady v. Maryland. (D.I. 1 in Turner, Civ. A. No. 17722-RGA; D.I. 1 at 11-19 in Finney, Civ. A. No. 17-723-RGA; D.I. 2 in Watson , Civ. A. No.
17-732-RGA; D.I. 2 in Dorsey, Civ. A. No. 17-772-RGA; D.I. 2 in Dorsett, Civ. A. No. 17-789;
D.I. 2 in Bailey, 17-790-RGA; D.I. 2 in Carney, Civ. A. No. 17-791-RGA; D.I. 3 in Gibson, Civ.
A. No. 17-793-RGA; D.I. 2 in Harrigan, Civ. A. No. 17-863-RGA; D.I. 2 in Laws, Civ. A. No.
17-864; D.I. 2 in Humphrey, Civ. A. No. 17-898-RGA; D.I. 2 in Herrin&_ Civ. A. No. 17-904RGA; D.I. 2 in Smith, Civ. A. No. 17-1141-RGA; DJ. 2 in Rothwell, Civ. A. No. 17-1158-RGA;
D.I. 2 in Johnson , Civ. A. No. 17-1195-RGA; D.I. 2 in Rivera, Civ. A. No. 17-1233-RGA; D.I. 2
in Smith, Civ. A. No. 17-1234-RGA) Soon after filing the instant Petitions, the Parties in each
case filed a joint motion to stay briefing until Judge Stark resolved Boyer v. Akinbayo, Civ. A.
No. 17-834-LPS, a case with the same procedural issue (i.e. , whether the petitioner's failure to
appeal the Superior Court' s denial of his Rule 61 motion precluded habeas relief due to his
purposeful failure to exhaust state remedies). On November 6, 2018, Judge Stark dismissed
Boyer's habeas petition as procedurally barred and declined to issue a certificate of appealability.
See Boyer v. Akinbayo, 2018 WL 5801545 (D. Del. Nov. 6, 2018). 6 Boyer filed a notice of
appeal with the Third Circuit Court of Appeals. On April 11, 2019, the Third Circuit denied
Boyer' s request for a certificate of appealability because " [j]urists ofreason could not debate that
6
Large chunks of this opinion are identical to what Judge Stark wrote in Boyer. I have
independently considered the issues raised, but I do not see any reason to reinvent the wheel
when Judge Stark's opinion cogently addresses the issues in dispute.
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the District Court properly denied Appellant's 28 U.S.C. § 2254 habeas petition." (See D.I. 23 in
Boyer, Civ. A. No. 17-834-LPS)
Following the decision in Boyer, the Court lifted the stay in each of the instant seventeen
proceedings. Thereafter, the State filed an Answer in opposition to each Petition. In all of the
seventeen Answers, the State contends that the Court is procedurally barred from reviewing the
sole claim for relief because the Petitioners did not exhaust state remedies for that claim. The
State also contends that ten of the seventeen Petitions are time-barred. (D.I. 13 in Turner, Civ.
A. No. 17-722-RGA; D.I. 13 in Watson , Civ. A. No. 17-732-RGA; D.I. 12 in Dorsey, Civ. A.
No. 17-772-RGA; D.I. 15 in Bailey, 17-790-RGA; D.I. 12 in Carney, Civ. A. No. 17-791-RGA;
D.I. 13 in Gibson, Civ. A. No. 17-793-RGA; D.I. 13 in Harrigan , Civ. A. No. 17-863-RGA; D.I.
12 in Smith, Civ. A. No. 17-1141-RGA; D.I. 3 in Rothwell, Civ. A. No. 17-1158-RGA; D.I. 13 in
Rivera, Civ. A. No. 17-1233-RGA) None of the seventeen Petitioners filed replies.
The Court has considered each Petition, Answer, and all other materials submitted in
each of the instant seventeen cases. Since the briefing in the seventeen cases is nearly identical
in all material with respect to the substantive and procedural legal issues, and particularly with
respect to the exhaustion/procedural bar issue, the Court finds that judicial economy would be
served by their review and disposition together. Therefore, the Court sua sponte consolidates
these cases for decision by a single Memorandum Opinion and Order to be filed in each case. 7
See Fed. R. Civ. P. 42(a); In re TM! Litigation, 193 F.3d 613, 724 (3d Cir. 1999)("The purpose
of consolidation is to streamline and economize pretrial proceedings so as to avoid duplication of
7
Since the exhaustion/procedural bar issue is identical and dispositive in each of the cases, the
Court will not address the statute of limitations argument raised by the State in ten of the
Petitions. For simplicity, the Court's citations in the remainder of this Opinion are to the docket
for Petitioner Turner, Civ. A. No . 17-722-RGA, unless otherwise noted.
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effort, and to prevent conflicting outcomes in cases involving similar legal and factual issues.");
Ellerman Lines, Ltd. v. Atlantic & Gull Stevedores, Inc., 339 F.2d 673,675 (3d Cir. 1964)(noting
that a court may consolidate cases sua sponte or on motion of a party). For the reasons that
follow, the Court will dismiss all the Petitions and deny the relief requested.
I.
BACKGROUND
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 of Justice ("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.
Brown v. State, 108 A.3d 1201 , 1204-05 (Del. 2015).
B.
PROCEDURAL BACKGROUND FOR EACH PETITIONER
1. Samuel Turner
On December 21, 2012, Turner pled guilty to aggravated (Tier 5) possession. (D.1. 1 at 1;
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D.I. 1-1 at 1) On March 7, 2013 , the Superior Court sentenced Turner as a habitual offender to
ten years at Level V incarceration, followed by six months at Level IV work release. (D.I. 1-2 at
1) Turner did not file a direct appeal.
On April 19, 2013 , Turner filed a pro se motion to reduce sentence, which the Superior
Court denied on July 12, 2013 . (D.I. 1-1 at 3) On June 19, 2014, Delaware's Office of Defense
Services ("OPD" 8) filed a motion for post-conviction relief pursuant to Delaware Superior Court
Criminal Rule 61 on Turner's behalf. (Id. at 3) The Superior Court denied the Rule 61 motion
on May 11 , 2017. (Id. at 7; D.I. 1-3)
On June 12, 2017, the OPD filed in this Court a§ 2254 Petition on Turner' s behalf,
asserting that his lack of knowledge of the OCME evidence scandal was material to his decision
to plead guilty and, therefore, his guilty plea was involuntary pursuant to Brady v. United States.
(D.I. 1 at 11-19) Turner contends that the OCME misconduct constituted impeachment material
under Brady v. Maryland and he might not have pled guilty if he had known that he might be
able to cast doubt on the chemical composition of the drugs. (Id. at 18-19) The State filed an
Answer asserting that Turner' s Petition should be dismissed as procedurally barred because
Turner, like Boyer, did not present his claim to the Delaware Supreme Court on direct or postconviction appeal. (D.I. 13 at 9-18) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 5-8)
2. Curtis Finney
On June 4, 2013 , Finney pled guilty to drug dealing. See State v. Miller, 2017 WL
1969780, at *4 (Del. Super. Ct. May 11 , 2017). The Superior Court sentenced Finney to eight
8
"OPD" is an acronym for the Office of the Public Defender, which was the predecessor to the
Office of Defense Services.
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years at Level V incarceration, suspended for eighteen months of probation. (D.I. 1 at 4; D.I. 1-2
at 1-7 in Civ. A. No. 17-723-RGA) Finney did not file a direct appeal. (D.I. 12 at 1 in Civ. A.
No. 17-723-RGA)
On December 18, 2013 , the Superior Court found that Finney had violated his probation
and sentenced him to eight years in prison. (D.I. 1-1 at 3; D.I. 12 at 2 in Civ. A. No. 17-723RGA) Finney filed a motion for modification of sentence in March 2014, which the Superior
Court denied on April 7, 2014. (D.I. 1-1 at 3; D.I. 12 at 2 in Civ. A. No. 17-723-RGA) Finney
did not appeal that decision.
On May 9, 2014, the OPD filed a Rule 61 motion for post-conviction relief on Finney's
behalf. (D.I.1-1 at3;D.I.12at2inCiv.A.No.17-723-RGA) TheSuperiorCourtdeniedthe
Rule61 motion on May 11,2017. SeeMiller, 2017WL 1969780, at*15-16. Finney did not
appeal that decision.
On May 11, 2017, the OPD filed in this Court a§ 2254 Petition on Finney's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 1 at
9-19 in Civ. A. No. 17-723-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner' s Petition. (D.I. 12 at
9-14 in Civ. A. No. 17-723-RGA) The State does not alternatively assert that Finney's Petition
should be dismissed as time-barred.
3. Eugenia Watson
On October 23, 2012, Watson pied guilty to aggravated (Tier 5) possession of heroin.
(D.I. 2 at 4; D.I. 2-1 at 2 in Civ. A. 17-732-RGA) On January 11 , 2013, the Superior Court
sentenced Watson as a habitual offender to eight years at Level V incarceration, followed by six
months at Level III probation. (D.I. 2-2 at 1-4 in Civ. A. No. 17-732-RGA) Petitioner did not
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appeal her conviction or sentence.
On May 8, 2014, the OPD filed a Rule 61 motion on Watson' s behalf. (D.I. 2-1 at 2; D.I.
2-3 at 1-3, 8 in Civ. A. No. 17-732-RGA) The Superior Court denied the Rule 61 motion on
May 11, 2017. (D.1. 2-3 in Civ. A. No. 17-732-RGA) Watson did not appeal that decision.
On June 13, 2017, the OPD filed in this Court a§ 2254 Petition on Watson's behalf,
asserting the same claim as already described above with respect to Turner' s Petition. (D.I. 2 in
Civ. A. No. 17-732-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 13 at
15-24 in Civ. A. No. 17-732-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 7-15)
4. George Dorsey
On February 7, 2012, Dorsey pied guilty to drug dealing. (D.I. 2 at 2; D.I. 2-1 at 1 in
Civ. A. No. 17-772-RGA) That same day, the Superior Court sentenced Dorsey to five years at
Level V incarceration, suspended after six months for six months at Level IV, followed by
eighteen months of Level III probation. (D.I. 2-2 at 1 in Civ. A. No. 17-772-RGA)
On December 11 , 2013 , Dorsey pied guilty to a new drug dealing charge. (D.I. 12 at 2 in
Civ. A. No. 17-772-RGA) That same day, the Superior Court found Dorsey in violation of his
probation and deferred sentencing. (Id.) On April 4, 2014, the Superior Court sentenced Dorsey
as a habitual offender for drug dealing to fi ve years at Level V incarceration. (D.I. 12 at 2 in
Civ. A. No. 17-772-RGA) Also on April 4, 2014, the Superior Court sentenced Dorsey on his
VOP to a consecutive sentence of five years at Level V incarceration, suspended for eighteen
months at Level IV, suspended, in turn, after six months for Level II probation. (D.I. 2-2 at 6 in
Civ. A. No. 17-772-RGA)
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On May 9, 2014, the OPD filed a Rule 61 motion on Dorsey's behalf. (D.I. 2-1 at 2; D.I.
2-3 at 1 in Civ. A. No. 17-772-RGA) The Superior Court denied the Rule 61 motion on June 5,
2017. (D.I. 2-3 in Civ. A. No. 17-773-RGA) Dorsey did not appeal that decision.
On June 16, 2017, the OPD filed in this Court a§ 2254 Petition on Dorsey's behalf,
asserting the same claim as already described above with respect to Turner' s Petition. (D.I. 2 in
Civ. A. No. 17-772-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 12 at
11-20 in Civ. A. No. 17-772-RGA) The State alternatively asserts that the Petition should be
denied as time-barred. (Id. at 5-11)
5. Tymere Dorsett
On November 7, 2013 , Dorsett pled guilty to possession with intent to deliver a
controlled substance in a Tier 4 quantity, possession of a firearm during the commission of a
felony, and possession of a deadly weapon by a person prohibited. (D.I. 2-1 at 2; D.I. 15 at 1 in
Civ. A. No. 17-789-RGA). On January 31 , 2014, the Superior Court sentenced Dorsett to an
aggregate eleven years at Level V incarceration, suspended after three years for twenty-four
months of decreasing levels of supervision. (D.I. 2-2 at 1-9; D.I. 15 at 1-2; D.I. 16-3 in Civ. A.
No. 17-789-RGA) Dorsett did not file a direct appeal.
On March 31, 2014, Dorsett filed a motion to modify his sentence, which the Superior
Court denied on July 8, 2014. (D.I. 2-1 at 3; D.I. 15 at 1-2; D.I. 16-1 at 3 in Civ. A. No. 17-789RGA)
Dorsett filed a pro se Rule 61 motion on May 19, 2014, and then the OPD filed a
substitute Rule 61 motion on Dorsett' s behalf on June 19, 2014. (D.I. 15 at 2; D.I. 16-1 at 3 in
Civ. A. No. 17-789-RGA) The Superior Court denied the motion on June 5, 2017. (D.I. 2-4 at 18
2; D.I. 15 at 3 in Civ. A. No. 17-789-RGA) Dorsett did not appeal that decision.
On June 20, 2017, the OPD filed in this Court a§ 2254 Petition on Dorsett's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-789-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 15 in
Civ. A. No. 17-789-RGA) The State does not alternatively assert that Dorsett's Petition should
be dismissed as time-barred.
6. Jamil Bailey
On October 4, 2011, Bailey pled guilty to possession with the intent to deliver a narcotic
schedule I controlled substance. (D.I. 2-1 at 2 in Civ. A. No. 17-790-RGA) On March 22, 2013,
the Superior Court sentenced Bailey to fifteen years at Level V incarceration, suspended after
four years for thirty-three months of decreasing levels of supervision. (D.I. 2-2 at 1 in Civ. A.
No. 17-790-RGA) Bailey did not appeal his conviction or sentence.
Bailey filed motions to modify sentence on May 30, 2013 , November 12, 2013, and April
24, 2014. (D.I. 2-1 at 4-5 in Civ. A. No. 17-790-RGA) The Superior Court denied the three
motions on June 21, 2013 , November 20, 2013, and June 25, 2014, respectively. Id.
On April 30, 2014, the OPD filed a Rule 61 motion on Bailey' s behalf. (D.I. 2-1 at 5 Civ.
A. No. 17-790-RGA) The Superior Court denied the motion on May 26, 2017. (D.I. 2-1 at 7-8 in
Civ. A. No. 17-790-RGA) Bailey did not appeal that decision.
On June 20, 2017, the OPD filed in this Court a§ 2254 Petition on Bailey's behalf,
asserting the same claim as already described above with respect to Turner' s Petition. (D.I. 2 in
Civ. A. No. 17-790-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 15 at
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15-24 in Civ. A. No. 17-790-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 6-15)
7. Laron Carney
On November 1, 2011 , Carney pled guilty to possession with intent to deliver heroin and
resisting arrest. (D.I. 2-1 at 2 in Civ. A. No. 17-791-RGA) On December 2, 2011 , the Superior
Court sentenced Carney as follows : ( 1) for the possession with intent to deliver conviction, to
eight years at Level V incarceration, suspended after six years for eighteen months of Level III
probation; and (2) for the resisting arrest conviction, to one year at Level V incarceration,
suspended for one year of Level III probation. (D.1. 2-2 at 1-2 in Civ. A. No. 17-791-RGA)
Carney did not appeal his convictions or sentences.
On May 7, 2012, Carney filed a motion to reduce sentence, which the Superior Court
denied on May 16, 2012. (D.I. 2-1 at 2-3 in Civ. A. No. 17-791-RGA) On May 7, 2014, the
OPD filed a Rule 61 motion on Carney' s behalf. (D.I. 2-1 at 3 in Civ. A. No. 17-791-RGA) The
Superior Court denied the Rule 61 motion on May 26, 2017. (D.I. 2-4 in Civ. A. No. 17-791RGA)
On June 20, 2017, the OPD filed in this Court a§ 2254 Petition on Carney' s behalf,
asserting the same claim as already described abo ve with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-791-RGA) The State filed an Answer asserting the same failure to
e~aust/procedurally barred argument it made in connection with Turner' s Petition. (D.I. 12 at
10-18 in Civ. A. No. 17-791-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 5-10)
8. Neal Gibson
On January 19, 2012, Gibson pled guilty to maintaining a vehicle for keeping controlled
10
substances. (D.I. 3-1 at 2 in Civ. A. No. 17-793-RGA) On that same day, the Superior Court
sentenced Gibson to two years at Level V incarceration, suspended after one year for one year of
Level III probation. (D.I. 3-2 at 2 in Civ. A. No. 17-793-RGA) Gibson did not appeal his
conviction or sentence.
On May 21, 2012, Gibson filed a motion to modify his sentence, which the Superior
Court denied on June 22, 2012. (D.I. 3-1 at 2 Civ. A. No. 17-793-RGA)
On May 8, 2014, the OPD filed a Rule 61 motion on Gibson's behalf. (D.I. 3-1 at 2 in
Civ. A. No. 17-793-RGA) The Superior Court denied the Rule 61 motion on June 5, 2017. (D.I.
3-4 at Civ. A. No. 17-793-RGA) Gibson did not appeal that decision.
On June 20, 2017, the OPD filed in this Court a§ 2254 Petition on Gibson's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 3 in
Civ. A. No. 17-793-RGA) The State filed an Answer asserting the same failure to
exhaust/procedural default argument it made in connection with Turner's Petition. (D.I. 13 at
12-20 in Civ. A. No. 17-793-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 5-12)
9. Lamonte Harrigan
On August 21, 2012, Harrigan pied guilty to drug dealing. (D.I. 2 at 4; D.I. 2-1 at 1 in
Civ. A. No. 17-863-RGA) The Superior Court immediately sentenced him to five years at Level
V incarceration, suspended for twenty-two months of decreasing levels of supervision. (D.I. 2-2
in Civ. A. No. 17-863-RGA) Harrigan did not file a direct appeal.
On October 4, 2012, the Superior Court found Harrigan in violation of his probation and
sentenced him to five years at Level V, suspended for twenty-four months of decreasing levels of
superv1s1on. (D.I. 2-1 at 2 in Civ. A. No. 17-863-RGA) On February 5, 2014, the Superior
11
Court found Harrigan in violation of his probation and deferred sentencing. (Id. at 3) On March
24, 2014, the Superior Court sentenced him to fifty-four months at Level V, suspended for
eighteen months of decreasing levels of supervision. (Id.)
On June 19, 2014, the OPD filed a Rule 61 motion on Harrigan's behalf. (D.I. 2-1 at 3 in
Civ. A. No. 17-863-RGA) The Superior Court denied the Rule 61 motion on June 19, 2017.
(D.I. 2-4 in Civ. A. 17-863-RGA) Harrigan did not appeal that decision.
On June 30, 2017, the OPD filed in this Court a§ 2254 Petition on Harrigan's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I . 2 in
Civ. A. No. 17-863-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 13 at
15-27 in Civ. A. No. 17-863-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 10-15)
10. Davern Laws
On June 20, 2013 , Laws pied guilty to one count of possession of a firearm by a person
prohibited and drug dealing. (D.I. 2-1 at 2; D.I. 15 at 1 in Civ. A. No. 17-864-RGA) That same
day, the Superior Court sentenced Laws as follows: (1) for the person prohibited conviction, to
eight years of Level V incarceration, suspended after three years for one year of Level II
probation; and (2) for the drug dealing conviction, to fifteen years of Level V incarceration,
suspended after two years for six months of Level IV work release, followed by eighteen months
of Level III probation. (D.I. 2-2 at 1-4; D.I. 15 at 1 in Civ. A. No. 17-864-RGA) Laws did not
file a direct appeal.
On June 19, 2014, the OPD filed a Rule 61 motion on Laws' behalf. (D.I. 16-1 at 2 in
Civ. A. No. 17-864-RGA) The Superior Court denied the motion on June 20, 2017. (D.I. 2-4 at
12
1-2; D.I. 15 at 2 in Civ. A. No. 17-864-RGA) Laws did not appeal that decision.
On June 30, 2017, the OPD filed in this Court a§ 2254 Petition on Laws ' behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-864-RGA) The State Answered with the same failure to exhaust/procedurally
barred argument it made in connection with Turner's Petition. (D.I. 15 in Civ. A. No. 17-864RGA) The State does not alternatively assert that the Petition should be dismissed as timebarred.
11. James Humphrey
On October 2, 2013, Humphrey pied guilty to drug dealing. (D.I. 2-1 at 1 in Civ. A. No.
17-898-RGA) The Superior Court immediately sentenced him to fifteen years at Level V
incarceration, suspended after three years for decreasing levels of supervision. (D.I. 2-2 in Civ.
A. No. 17-898-RGA) He did not file a direct appeal.
On December 26, 2013 , Humphrey filed a motion to modify sentence. (D.I. 2-1 at 1 in
Civ. A. No. 17-898-RGA) The Superior Court denied the motion on January 16, 2014. (Id. at 12)
On April 30, 2014, the OPD filed a Rule 61 motion on Humphrey's behalf. (Id. at 2) The
Superior Court denied the motion on June 21 , 2017. (D.I. 2-4 at 1-2; D.I. 16 at 2 in Civ. A. No.
17-898-RGA) Humphrey did not appeal that decision.
On July 6, 2017, the OPD filed in this Court a§ 2254 Petition on Humphrey's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-898-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 16 at
7-17 in Civ. A. No. 17-898-RGA) The State does not alternatively assert that Humphrey's
13
Petition should be dismissed as time-barred.
12. Bernard Herring
On March 20, 2013, Herring pled guilty to possession of a deadly weapon by a person
prohibited ("PDWBPP") and drug dealing. (D.I. 2-1 at 2; D.I. 16 in Civ. A. No. 17-904-RGA)
On May 31, 2013, the Superior Court sentenced Herring as follows: (1) as a habitual offender for
the PDWBPP conviction to eight years at Level V incarceration; and (2) for the drug dealing
conviction, to four years at Level V incarceration, suspended for eighteen months of probation.
(D.1. 2-2 at 1-2 in Civ. A. No. 17-904-RGA) He did not file a direct appeal.
On June 19, 2014, the OPD filed a Rule 61 motion on Herring's behalf. (D.I. 2-1 at 2-3
in Civ. A. No. 17-904-RGA) The Superior Court denied the motion on June 27, 2017. (D.I. 2-4
at 1-2; D.I. 16 at 3 in Civ. A. No. 17-904-RGA) Herring did not appeal that decision.
On July 6, 2017, the OPD filed in this Court a§ 2254 Petition on Herring 's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-904-RGA) The State Answered with the same failure to exhaust/procedurally
barred argument it made in connection with Turner's Petition. (D.I. 16 at 6-16 in Civ. A. No. 17904-RGA) The State does not alternatively assert that the Petition should be dismissed as timebarred.
13. Tavar Smith
On July 6, 2010, Smith pied guilty to trafficking drugs. (D.1. 2-1 at 4 in Civ. A. No. 171141-RGA) The Superior Court immediately sentenced him to ten years at Level V
incarceration, suspended after three years for one year at Level IV home confinement, followed
by six months of Level III probation. (D.I. 2-2 in Civ. A. No. 17-1141-RGA) Smith did not file
a direct appeal.
14
Since his conviction, the Superior Court has found .Smith in violation of his probation six
times. (D.I. 2-1 in Civ. A. No. 17-1141-RGA) Smith did not appeal from any of those
decisions.
On June 19, 2014, the OPD filed a Rule 61 motion on Smith' s behalf. (D.1. 2-1 at 6 in
Civ. A. No. 17-1141-RGA). The Superior Court denied the Rule 61 motion on June 30, 2017.
(D.I. 2-4 in Civ. A. No. 17-1141-RGA) Smith did not appeal that decision.
On August 15, 2017, the OPD filed in this Court a§ 2254 Petition on Smith's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-1141-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 12 at
14-23 in Civ. A. No. 17-1141-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 7-14)
14. Thomas Rothwell
On August 5, 2010, Rothwell pled guilty to possession with intent to deliver cocaine.
(D.1. 2-1 at 3 in Civ. A. No. 17-1158-RGA) The Superior Court immediately sentenced him to
eight years at Level V incarceration, suspended after three years for one year of Level III
probation. (D.I. 2-2 in Civ. A. No. 17-1158-RGA) Rothwell did not file a direct appeal.
On March 1, 2011 , Rothwell field a pro se motion for modification of sentence pursuant
to Delaware Superior Court Criminal Rule 35(b). (D.I. 2-1 at 3 in Civ. A. No. 17-1158-RGA)
The Superior Court denied the motion on March 14, 2011. (Id.) Rothwell filed two more
motions to modify his sentence, which the Superior Court denied. (Id. at 3-4) Rothwell did not
appeal any of these decisions.
On January 8, 2013 , the Superior Court modified Rothwell ' s sentence order to include a
15
mental health evaluation and treatment. (Id. at 4) On February 10, 2014, the Superior Court
ordered Rothwell to enter and successfully complete a designated enhanced supervision program,
effective upon his release to community supervision. (Id.)
On June 19, 2014, the OPD filed a Rule 61 motion on Rothwell's behalf. (Id.). The
Superior Court denied the Rule 61 motion on June 27, 2017. (D.I. 2-4 in Civ. A. No. 17-1158RGA) Rothwell did not appeal that decision.
On August 17, 2017, the OPD filed in this Court a§ 2254 Petition on Rothwell's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-1158-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner's Petition. (D.I. 13 at
16-24 in Civ. A. No. 17-1158-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 9-16)
15. Jamal Johnson
On February 20, 2014, Johnson pied guilty to drug dealing and possession of a firearm by
a person prohibited ("PFBPP"). (D.I. 2-1 at 2; D.I. 16 at 1 in Civ. A. No. 17-1195-RGA) The
Superior Court immediately sentenced him as follows : (1) for the PFBPP conviction, to eight
years at Level V incarceration, suspended after five years for eighteen months of decreasing
levels of supervision; and (2) for the drug dealing conviction, to eight years at Level V
incarceration, suspended after six months for eighteen months of probation. (D.I. 2-2 at 2-4 in
Civ. A. No. 17-1195-RGA) Johnson did not file a direct appeal.
On May 13, 2014, the OPD filed a Rule 61 motion on Johnson's behalf. (Id. at 3; D.I. 16
at 2 in Civ. A. No. 17-1195-RGA) The Superior Court denied the Rule 61 motion on August 21 ,
2017. (D.I. 2-4 at 2-3 n Civ. A. No. 17-1195-RGA) Johnson did not appeal that decision.
16
On August 24, 2017, the OPD filed in this Comi a§ 2254 Petition on Johnson's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-1195-RGA) The State answered with the same failure to exhaust/procedurally
barred argument it made in connection with Turner' s Petition. (D.I. 16 in Civ. A. No. 17-1195RGA) The State does not alternatively assert that the Petition should be dismissed as timebarred.
16. Luis Rivera
On May 26, 2011 , Rivera pled guilty to possession with intent to deliver a narcotic
schedule II controlled substance ("PWID"), maintaining a vehicle for keeping or delivering
controlled substances, and criminal impersonation. (D.I. 2-1 at 3 in Civ. A. No. 17-1233-RGA)
The Superior Court sentenced Rivera on February 3, 2012 as follows: (1) for the PWID
conviction, to one year at Level V incarceration, suspended for eighteen months at Level III; (2)
for the maintaining a vehicle conviction, to two years at Level V incarceration, suspended for
eighteen months at Level II; and (3) for the criminal impersonation conviction, to one year at
Level V incarceration, suspended for eighteen months at Level III. (D.I. 2-2 in Civ. A. No. 171233-RGA) Rivera did not file a direct appeal.
On May 13, 2014, the OPD filed a Rule 61 motion on Rivera's behalf. (D.I. 2-1 at 3in
Civ. A. No. 17-1233-RGA). The Superior Court denied the Rule 61 motion on August 25, 2017.
(D.I. 2-4 in Civ. A. No. 17-1233-RGA) Rivera did not appeal that decision.
On August 30, 2017, the OPD filed in this Court a§ 2254 Petition on Rivera's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-1233-RGA) The State filed an Answer asserting the same failure to
exhaust/procedurally barred argument it made in connection with Turner' s Petition. (D.I. 13 at
17
13-21 in Civ. A. No. 17-1233-RGA) The State alternatively asserts that the Petition should be
dismissed as time-barred. (Id. at 6-13)
17. Jyaire Smith
On October 2, 2013 , Smith pled guilty to drug dealing in a tier two quantity. (D.I. 2-1 at
1; D.I. 13 at 1 in Civ. A. No. 17-1234-RGA) The Superior Court sentenced him on January 10,
2014 to six years at Level V incarceration, suspended after six months for two years of Level III
probation. (D.1. 2-2 at 2; D.I. 14-6 in Civ. A. No. 17-1234-RGA) Smith did not file a direct
appeal.
On May 14, 2014, the OPD filed a Rule 61 motion on Smith' s behalf. (D.1. 2-1 at 3; D.I.
13 at 2 in Civ. A. No. 17-1234-RGA) The Superior Court denied the Rule 61 motion on August
25, 2017. (D.I. 2-4 in Civ. A. No. 17-1234-RGA) Smith did not appeal that decision.
On November 19, 2014, the Superior Court found that Smith had violated the terms of his
probation and sentenced him to five years at Level V, suspended after four years for one year of
Level IV supervision. (D.I. 2-1 at 4; D.I. 13 at 3 in Civ. A. No. 17-1234-RGA) The Delaware
Supreme Court affirmed the Superior Court' s violation of probation finding and sentence on
June 22, 2015 . Smith v. State, 2015 WL 3885960 (Del. June 22, 2015).
On August 30, 2017, the OPD filed in this Court a§ 2254 Petition on Smith's behalf,
asserting the same claim as already described above with respect to Turner's Petition. (D.I. 2 in
Civ. A. No. 17-1234-RGA) The State Answered with the same failure to exhaust/procedurally
barred argument it made in connection with Turner' s Petition. (D.I. 13 in Civ. A. No. 17-1234RGA) The State does not alternatively assert that the Petition should be dismissed as timebarred.
18
II.
GOVERNING LEGAL PRINCIPLES
A. Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality , and federalism ." Woodford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDP A, a federal court may consider a habeas petition filed by a state prisoner only
"on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). AEDPA imposes procedural requirements and standards
for analyzing the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent possible under law." Bell v.
Cone , 535 U.S. 685, 693 (2002).
B. 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); Picardv. Connor, 404 U.S. 270,275
(1971 ). 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 fairl y presenting all claims to the state' s highest court, either on direct
appeal or in a post-conviction proceeding, in a procedural manner permitting the court to
consider the claims on their merits. See Bell v. Cone, 543 U.S . 447, 451 n.3 (2005); Castille v.
Peoples, 489 U.S. 346, 351 (1989).
19
A petitioner may be excused from exhausting state remedies when there is either an
absence of an available State corrective process or the existence of circumstances, such as futility
or inordinate delay, that render such processes ineffective. See 28 U.S.C. § 2254(b)(l)(B);
Duckworth v. Serrano , 454 U.S. 1 (1981). Situations falling within the "ineffective corrective
process" exception to the exhaustion requirement include those instances when "(1) the state
corrective process is so deficient as to render any effort to obtain relief futile []; (2) acts of state
officials have, in effect, made state remedies unavailable to the petitioner []; or (3) 'inordinate
delay' in state proceedings has rendered state remedies ineffective." Kozak v. Pennsylvania,
2012 WL 4895519, at *4 (M.D. Pa. Oct 15, 2012). When a failure to exhaust is excused due to
an ineffective corrective process, the court may review a claim on its merits without engaging in
the procedural default analysis. See, e.g. , Lee v. Strickman, 357 F.3d 338, 344 (3d Cir. 2004);
Story v. Kindt, 26 F.3d 402, 405-06 (3d Cir. 1994); Woodruff v. Williams, 2016 WL 6124270, at
*1 (E.D. Pa. Oct. 19, 2016).
However, if a petitioner' s failure to exhaust does not fall within the aforementioned
"ineffective corrective process" exception, and state procedural rules bar the petitioner from
seeking further relief in state courts, the claims, while technically exhausted, are procedurally
defaulted. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). 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 technically exhausted but
procedurally defaulted. See Coleman, 501 U.S. at 750,· Harris v. Reed, 489 U.S. 255, 260-64
(1989). A federal court cannot consider the merits of procedurally defaulted claims unless the
petitioner establishes cause and prejudice to excuse the default, or that a fundamental miscarriage
20
of justice will result absent review of the claims. See Lines, 208 F.3d at 160.
III.
DISCUSSION
All seventeen Petitioners acknowledge that they did not exhaust state remedies for their
habeas claim due to their failure to appeal the denial of their Rule 61 motions to the Delaware
Supreme Court. (D.I. 1 at 4) However, Petitioners argue that the Court should excuse their
failure to exhaust on the basis of futility: (1) exhausting state remedies by appealing the Superior
Court's Rule 61 decision would have been futile because of the Superior Court's inordinate delay
in adjudicating his Rule 61 motion ("inordinate delay" excuse); (2) appealing the denial of their
Rule 61 motions to the Delaware Supreme Court would have been futile because that court has
rejected identical claims based upon the OCME misconduct in other cases for postconviction
relief ("futility on the merits" excuse); and (3) appealing the denial of their Rule 61 motions to
the Delaware Supreme Court would have been futile because Rule 61 does "not provide an
adequate opportunity for [Petitioner]s to obtain relief' ("futility due to deficiency of Rule 61
proceedings" excuse) (D.I. 1 at 5-7). The State contends that Petitioners' failure to exhaust
should not be excused for any of these futility reasons and, since state criminal procedural rules
preclude them from returning to the state courts for further review, the claim is now technically
exhausted but procedurally defaulted . (D.I. 13 at 9-17) Given Petitioners' failure to provide
cause and prejudice, or to show that a miscarriage of justice will occur without habeas review of
the claim, the State asserts that the Court should deny the claim as procedurally barred from
habeas review. (Id.)
A. Exhaustion
Petitioners contend that their failure to appeal the denial of their Rule 61 motions should
be excused because of inordinate delay in their state court proceedings and because exhaustion
21
would have been futile. The Court will discuss these arguments seriatim.
1. Inordinate Delay
"[I]nexcusable or inordinate delay by the state in processing claims for relief may render
the state remedy effectively unavailable," thereby warranting excusing the exhaustion
requirement. Story, 26 F.3d at 405. "The existence of an inordinate delay does not automatically
excuse the exhaustion requirement, but it does shift the burden to the state to demonstrate why
exhaustion should still be required." Lee, 357 F.3d at 341.
Neither the United States Supreme Court nor the Third Circuit has defined the specific
amount of time that constitutes inordinate delay in a petitioner's post-conviction proceedings.
As explained by the Third Circuit,
We stated in Wojtczak v. Fu/comer, 800 F.2d 353, 354 (3d Cir.
1986), that "inexcusable or inordinate delay by the state in
processing claims for relief may render the state remedy effectively
unavailable." In that case, thirty-three months had passed after the
petitioner's PCRA filing without resolution. Id. This, we found,
excused the petitioner's failure to exhaust his state court remedies.
Id. at 356. The thirty-three month delay in Wojtczak remains the
shortest delay held to render state collateral proceedings ineffective
for purposes of the exhaustion requirement.
Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir. 2002)(refusing to excuse exhaustion in the face of
twenty-seven month delay) ; see also Lee, 357 F.3d at 343-44 (excusing exhaustion after eight
year delay); Coss v. Lackawanna County Dist. Att'y, 204 F.3d 453, 460 (3d Cir. 2000)(en
banc)(excusing exhaustion after seven year delay), rev'd on other grounds, 532 U.S. 394 (2001);
Story, 26 F.3d 402, 406 (3d Cir. 1994)(excusing exhaustion after nine year delay). Generally,
courts in the Third Circuit have excused a petitioner' s failure to exhaust state remedies where the
following three factors are present: (1) the delays in the state court proceedings have amounted
22
to three, five, eleven, or twelve years; 9 (2) no meaningful action towards resolution has been
taken in the state court; and (3) the delay was not attributable to the petitioner. See Simmons v.
Garman, 2017 WL 2222526, at *3 (E.D. Pa. Feb. 14, 2017).
Federal courts consider the degree of progress made by the state courts when determining
whether a delay is inordinate. See Lee, 357 F.3d at 342. In cases in which courts have excused
exhaustion due to an inordinate delay, the delay in petitioners' state post-conviction proceedings
was still ongoing at the time of federal habeas review. See Wojtczak, 800 F.2d at 354
(unresolved after thirty-three months); cf Cristin, 281 F.3d at 411 (concluding that thirty-three
month delay did not excuse exhaustion under inordinate delay exception as state court ruled on
Cristin's state post-conviction petition one week after he filed his federal habeas petition);
Wallace v. Dragovich, 143 F. App'x 413, 418 (3d Cir. 2005)(finding that petitioner's failure to
exhaust was not excusable on basis of inordinate delay, where previously stalled state habeas
proceeding had resumed). The Court has not identified any cases holding that a petitioner's
failure to exhaust can be excused on the basis of a delay in a state post-conviction proceeding
when that delay has already ended. See , e.g., Vreeland v. Davis, 543 F. App'x 739, 741-42 (10 th
Cir. 2013).
Here, none of the seventeen Petitioners appealed the denial of their Rule 61 motions. In
fact, they admit they purposefully decided to forgo post-conviction appeals in order to proceed
immediately with federal habeas petitions. Id. Petitioners assert that the average three-year span
between the filing of their Rule 61 motions and the Superior Court's adjudication of those
motions constitutes inordinate delay and the possibility of continued delay in the Delaware
9
See Story, 26 F.3d at 405-06 (citing cases).
23
Supreme Court "unnecessarily ri sk[ed] mooting [Petitioners' ] federal claims before [they]
[would be] able to reach Federal Comi." (D.I. 1 at 6)
The Court rejected an almost identical argument in Boyer, because Boyer' s postconviction proceeding was not in a state of suspended animation when he filed his habeas
Petition. See Boyer, 2018 WL 5801545 , at *4-5. The Court also noted that Boyer's mistrust of
the Delaware Supreme Court' s ability to decide his post-conviction appeal within a certain timeframe was insufficient to excuse him from exhausting state court remedies for his claim. See
Boyer, 2018 WL 5801545, at *4-5.
Like Boyer, Petitioners did not file their Petitions while their Rule 61 motions were in a
state of suspended animation. As a result, Petitioners also cannot rely on allegations of
inordinate delay to excuse their failure to exhaust.
2. Futility on the Merits
Petitioners also ask the Court to excuse their failure to exhaust on the ground that it
would have been futile to present their claim to the Delaware Supreme Court, because that court
has already considered and rejected numerous identical or similar OCME misconduct claims.
But futility on the merits does not constitute cause for a procedurally defaulted claim. Engle v.
Isaac, 456 U.S . 107, 130 (1982)(petitioner "may not bypass the state courts simply because he
thinks they will be unsympathetic to the claim"). The Third Circuit has applied Eng/e's
reasoning in the context of exhaustion, opining that "likely futility on the merits [] in state court
of a petitioner' s habeas claim does not render that claim exhausted within the meaning of§
2254(b)(l)(A) so as to excuse the petitioner's failure to exhaust that claim by presenting it in
state court before asserting in a fe deral habeas petition." Parker v. Kelchner, 429 F.3d 58, 64 (3d
Cir. 2005). More specifically, " [a] llowing petitioners to bypass state court merely because they
24
believe that their constitutional claims would have failed there on the merits would fly in the face
of comity and would deprive state courts of a critical opportunity to examine and refine their
constitutional jurisprudence." Id.
Both the procedural history of Petitioners' Rule 61 proceedings and the instant "futility
on the merits" argument are substantially similar to the procedural history of Boyer's Rule 61
proceeding and Boyer's "futility on the merits" argument. See Boyer, 2018 WL 5801545, at *45. Applying the reasoning in Engle and Parker, the Court declined to excuse Boyer's failure to
exhaust his claims on the basis of "likely futility on the merits." Boyer, 2018 WL 5801545, at
*5. The Third Circuit agreed; it declined to grant Boyer a certificate of appealability, explicitly
stating, "We have rejected the argument that likely futility on the merits of a claim in state court
excuses a habeas petitioner's failure to exhaust that claim." (See D.I. 23 in Boyer, Civ. A. No.
17-834-LPS) Given these circumstances, the Court concludes that Petitioners' failure to exhaust
state remedies is not excused on the ground of likely futility on the merits.
3. Deficient Rule 61 procedures
In their last attempt to justify the failure to exhaust state remedies, Petitioners contend
that Rule 61 's procedures are so deficient that the Rule would not have provided them with an
opportunity to obtain relief, thereby demonstrating that it would have been futile to present their
claim to the Delaware Supreme Court on post-conviction appeal. However, "[f]ederal courts
may upset a State's postconviction relief procedures only if they are fundamentally inadequate to
vindicate the substantive rights provided." Dist. Attorney's Office for the Third Jud. Dist. v.
Osborne, 557 U.S . 52, 69 (2009). Federal courts may excuse the exhaustion requirement when
"it appears that the prisoner's rights have become an ' empty shell ' or that the state process is a
'procedural morass ' offering no hope ofrelief." Hankins v. Fu/comer, 941 F.2d 246,250 (3d
25
Cir. 1991).
Here, Petitioners do not substantiate their contention that Rule 61 is inadequate, nor do
they cite any case finding that Rule 61 is a deficient corrective process. In fact, this Court has
consistently found that Rule 61 is an independent and adequate state procedural ground that
precludes federal habeas review. See, e.g. , Trice v. Pierce, 2016 WL 2771123 , at *4 (D. Del.
May 13, 2016); Maxion v. Snyder, 2001 WL 848601 , at *10 (D. Del. July 27, 2001).
Petitioners' conclusory allegations about the inadequacy of Rule 61 do not demonstrate that its
procedures are an "empty shell" or a "procedural morass offering no hope for relief."
Thus, for the aforementioned reasons, the Court concludes that Petitioners' failure to
exhaust state remedies does not fa ll within the narrow "futility" exception to the exhaustion
doctrine.
B. Procedural Default
Having determined that Petitioners ' intentional failure to appeal the denial of their Rule
61 motions is not excusable, Petitioners' habeas claim remains unexhausted. At this juncture,
any attempt by Petitioners to exhaust state remedies by presenting the claim in new Rule 61
motions would be barred as untimely under Delaware Superior Court Criminal Rule 61(i)(l) and
as successive under Rule 61(i)(2). See Del. Super. Ct. Crim R. 61(i)(l)(establishing a one year
deadline for filing Rule 61 motions); Del. Super. Ct. Crim. R. 61(i)(2)(barring second or
successive Rule 61 motion unless certain pleading requirements are satisfied). Consequently, the
Court must treat the claim as technically exhausted but procedurally defaulted, which means that
the Court cannot review the merits of the claim absent a showing of cause and prejudice, or that
a miscarriage of justice will result absent such review. See Lines, 208 F.3d at 160.
To demonstrate cause for a procedural default, a petitioner must show that "some
26
objective factor external to the defense impeded counsel ' s efforts to comply with the State's
procedural rule." Murray 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 fai lure to review the claim will result in a fundamental miscarriage of justice.
See Edwards v. Carpenter, 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 the conviction of one who is actually innocent." Murray, 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).
To the extent Petitioners' three-pronged futility argument should also be viewed as an
attempt to establish cause for their procedural default, the argument is unavailing. In order to
establish cause, Petitioners must demonstrate that an external factor prevented them from
appealing the denial of their Rule 61 motion. However, nothing prevented Petitioners from filing
post-conviction appeals - they simply elected not to do so. Thus, Petitioners' belief that it would
have been futile to present their claim to the Delaware Supreme does not constitute cause for
their procedural default.
In the absence of cause, the Court does not need to address prejudice. The Court further
27
concludes that the miscarriage of justice exception does not excuse Petitioners' procedural
default. Although Petitioners contend that there is a reasonable probability that they would not
have pled guilty had they known about the OCME misconduct, and also that they may have
sought and received "a substantial reduction in the plea-bargained sentence as a condition of
forgoing a trial" (D.I. 1 at 18), neither of these assertions constitutes new reliable evidence of
their actual innocence. Accordingly, the Court will deny the instant Petitions as procedurally
barred from federal habeas review.
IV.
EVIDE TIARY HEARING
As an alternative request for relief, Petitioners summarily ask the Court to "hold an
evidentiary hearing and allow full briefing on his [or her] claim." (D.I . 1 at 20) It is unclear
whether they request an evidentiary hearing on the underlying OCME misconduct/involuntary
guilty plea claim or on the procedural default of that claim. As explained below, the Court
concludes that an evidentiary hearing is not warranted on either issue.
A.
Evidentiary Hearing on OCME Misconduct/Involuntary Guilty Plea Claim
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A") permits
evidentiary hearings on habeas review in a limited number of circumstances. 10 See Campbell v.
10
Prior to the enactment of AEDPA, "the decision to grant an evidentiary hearing was generally
left to the sound discretion of district courts." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
However, evidentiary hearings were mandatory in six specific circumstances: "If (1) the merits
of the factual dispute were not resolved in the state hearing; (2) the state factual determination is
not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the
state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation
of newly discovered evidence; ( 5) the material facts were not adequately developed at the statecourt hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas
applicant a full and fair fact hearing." To wnsend v. Sain, 372 U.S. 293, 313 (1963), overruled on
other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). While AEDPA has not changed
the "basic rule" of leaving the decision to grant an evidentiary to the discretion of the district
courts, it has imposed certain limitations on the exercise of that discretion via§ 2254(e)(2). See
28
Vaughn , 209 F.3d 28 0, 286 (3 d Cir. 2000) . For instance, 28 U.S.C. § 2254(e) provides:
(1) In a proceeding instituted by an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional
error, no reasonable factfi nder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2254(e). "Under the opening clause of§ 2254(e)(2), a failure to develop the factual
basis of a claim is not established unless there is a lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner's counsel. " Williams v. Taylor, 529 U.S. 420, 433
(2000). "Diligence will require in the usual case that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the manner prescribed by state law. " Id. at 437. When
determining if a petitioner has been di ligent, " [t]he question is not whether the facts could have
been discovered but instead whether the prisoner was diligent in his efforts." Id. at 435. In
short, if the factual basis of the cl aim was not developed but the petitioner was diligent in
Cristin, 281 F.3 d at 41 3.
29
pursuing the claim in state court, the opening phrase of§ 2254(e)(2) does not bar an evidentiary
hearing. See Lark v. Sec 'y Pennsylvania Dep 't of Corr., 645 F.3d 596, 614 (3d Cir. 2011).
Nevertheless, "a petitioner who diligently but unsuccessfully seeks an evidentiary hearing
in state court still is not entitled to an evidentiary hearing in federal court under AEDP A.
Rather,[ ... ] whether to hold a hearing for a petitioner who is not at fault under§ 2254(e)(2)
remains in the discretion of the di strict court, and depends on whether the hearing would have
the potential to advance the petitioner's claim. " Taylor v. Horn , 504 F.3d 416, 444 (3d Cir.
2007) (emphasis in original); see Schriro v.Landrigan, 550 U.S . 465, 473 (2007) (explaining that
the "basic" pre-AEDPA rule leaving the decision on whether to grant an evidentiary hearing to
the "sound discretion of district courts" has not changed under AEDP A). " Where a petitioner
fails to forecast to the district court evidence outside the record that would help his cause or
' otherwise to explain how his claim would be advanced by an evidentiary hearing,' a court is
within its discretion to deny the claim." Buda v. Stickman, 149 F. App 'x 86, 90 (3d Cir. 2005).
Here, none of the seventeen Petitioners had evidentiary hearings in their Rule 61
proceedings. 11 However, three of the seventeen Petitioners - Turner, Finney, and Watson knowingly decided to forego an evidentiary hearing when they agreed with the Superior Court' s
assessment that an evidentiary hearing was not warranted in their Rule 61 proceedings because
the issues were legal in nature. 12 (See D.I. 13-21 at 7-36 in Finney, Civ. A. No. 17-723-RGA)
11
The Rule 61 motions fil ed by the seventeen Petitioners presented the identical OCME
misconduct/involuntary guilty plea cl aim. The Superior Court denied all seventeen Rule 61
motions for substantially the same reason, namely, because the Petitioners knowingly and
voluntarily admitted during their plea coll oquy that they committed the drug crimes.
12
The fact that Turner, Finney, and Watson knowingly waived an evidentiary hearing in state
court, and admitted that the issue was legal in nature, suggests that they may not be seeking an
30
With respect to those three cases, the Superior Court explained that, "factually the critical factor
appears to be whether the defendant pied guilty or proceeded to trial," and it was "willing to rule
on th[e] outstanding [Rule 61] Motions based upon the pleadings filed to date," subject to the
parties' agreement. Id. In turn, whi le it is not entirely clear, it appears as though thirteen of the
remaining fourteen Petitioners (excluding Gibson) may have implicitly agreed to forego an
evidentiary hearing in their cases. 13
Although Turner, Finney, and Watson explicitly agreed to forego an evidentiary hearing,
it appears that they technically satisfied§ 2254(e) (2)'s diligence requirement because, at a
minimum, the Superior Court's letter indicates that they originally sought an evidentiary hearing
in the manner prescribed by state law. The Court reaches the same conclusion with respect to the
aforementioned thirteen Petitioners (who may or may not have implicitly agreed to forego an
evidentiary hearing). And finall y, there is no indication that Petitioner Gibson either implicitly
or explicitly waived an evidentiary hearing. In short, even though none of the seventeen
Petitioners received an evidentiary hearing in state court, it appears that they exercised the type
of diligence contemplated by § 2254(e)(2). Thus,§ 2254(e) does not bar an evidentiary
evidentiary hearing on the substantive claim presented in this proceeding but, rather, that they are
seeking an evidentiary hearing on the issue of procedural default.
13
1n a letter filed in all but Petitioner Gibson's case, the OPD asserted that, "On March 21, 2017,
[the Superior] Court stated that it 'will proceed to rule [on the OCME motions currently pending
in New Castle County] based upon the submissions which have been made."' (D.I. 16-18 at 1 in
Bailey , Civ. A. No. 17-790-RGA) Attached to that letter is a list of the individuals with pending
Rule 61motions, and all but Gibson ' s name are on that list. (Id.) Since, in that same letter, the
OPD did not challenge the Superior Court ' s expressed intent to rule on the Rule 61 motions on
the basis of the filings, it would appear that all remaining Petitioners except Gibson knowingly
waived an evidentiary hearing.
31
hearing, 14 which means that the Court retains discretion over the decision to conduct an
evidentiary hearing .
Nevertheless, Petitioners have not met their burden of showing that an evidentiary
hearing would be meaningful in relation to the OCME mi sconduct/involuntarily guilty plea
claim. Their single-sentence request for a hearing does not forecast any evidence beyond that
existing in the record that would help their cause, nor does it explain how a new hearing would
advance their claim. Moreover, given their admissions of guilt during their guilty plea colloquies
and their failure to assert their actual innocence, Petitioners have not alleged facts that, if true,
would permit them to prevail on their OCME misconduct/involuntary guilty plea claim.
Accordingly, the Court concludes that an evidenti ary hearing on the OCME
misconduct/involuntary guilty plea claim is not warranted in any of the instant cases.
B.
Evidentiary Hearin g on Procedural Default
The Third Circuit has held that§ 2254(e)(2) does not bar an evidentiary hearing to
determine if a petitioner can establish cause and prejudice to avoid a procedural default.
See Cristin, 281 F.3 d at 416- 17 (holding that "the plain meaning of § 2254( e)(2) ' s introductory
language does not preclude federal hearings on excuses fo r procedural default at the state
level."). Consequently, it is within the Court' s di scretion to hold an evidentiary hearing on
Petitioners' excuses for their failure to appeal the denial of their Rule 61 motions.
14
Alternatively, if the Court should conclude that the aforementioned sixteen Petitioners (all but
Gibson) did not satisfy the diligence requirement of§ 2254(e)(2), then the Court would only be
permitted (but not required) to hold an evidentiary hearing if Petitioners demonstrated that their
cases fell within the very limited circumstances set forth in § 2254(e)(2)(A) and (B). Since
Petitioners' single-sentence request for an evidentiary hearing does not come close to satisfying
the requirements of§ 2254(e)(2)(A) or (B), in thi s alternate scenario, § 2254( e)(2) would bar the
Court from holding a hearing in those sixteen cases. The Court would still have discretion over
whether to grant Gibson an evidentiary hearing.
32
As previously discussed, the Court has considered, and rejected, Petitioners' reasons for
the procedural default, and they do not indicate any other evidence/reason that may excuse their
failure to appeal the denial of their Rule 61 motions. Therefore, the Court will not hold an
evidentiary hearing on the issue of procedural default.
V.
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 22 54 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 seventeen Petitions do not warrant relief.
Reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court will
not issue a certificate of appealability in any of the instant seventeen cases.
VI.
CONCLUSION
For the reasons discussed, the Court concludes that all seventeen Petitions must be
denied. An appropriate order will be entered.
33
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