Ellerbe v. Metzger et al

Filing 49

MEMORANDUM Signed by Judge Colm F. Connolly on 3/11/2024. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BERNARD ELLERBE,
Petitioner,
Civil Action No. 17-1231-CFC

V.

ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM

I.

INTRODUCTION

Petitioner has filed a Motion to Reopen his habeas proceeding pursuant to
Federal Rule of Civil Procedure 60(b)(4) and Rule 60(d)(1) ("Motion to Reopen").
(D.I. 43) For the reasons set forth below, the Court will dismiss the Motion to Reopen.

II.

BACKGROUND

As set forth more fully in the Court's September 25, 2020 Memorandum Opinion,
a Delaware Superior Court jury convicted Petitioner in January 2015 of drug dealing,
aggravated possession of heroin, possession of drug paraphernalia, two counts of first
degree reckless endangering, disregarding a police officer's signal, and reckless driving.
(D.I. 34 at 2); see also State v. Ellerbe, 2016 WL 4119863, at *1 (Del. Super. Ct. Aug. 2,
2016). The Superior Court sentenced Petitioner to 18 years of imprisonment at Level V,
followed by decreasing levels of supervision. (D.I. 34 at 2); see also Ellerbe, 2016 WL
4119863, at *1. Petitioner filed a notice of appeal. (D.I. 34 at 2) In August 2015, while

his appeal was pending, Petitioner filed a prose motion for reduction of sentence. (Id.
at 2-3) The Superior Court deferred decision on the motion for reduction of sentence
during the pendency of Petitioner's direct appeal. (D.I. 18-2 at 189-190) Petitioner
voluntarily withdrew his direct appeal in September 2105, and the Superior Court denied
Petitioner's motion for reduction of sentence on January 11, 2016. (Id. at 187-192)
Petitioner did not appeal that decision.
In December 2016, this time represented by counsel, Petitioner filed a motion for
postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61
motion"). The Superior Court denied the Rule 61 motion in August 2016, and the
Delaware Supreme Court affirmed that decision in May 2017. See Ellerbe, 2016 WL
4119863, at *4; State v. Ellerbe, 161 A.3d 674 (Table), 2017 WL 1901809, at *4 (May 8,
2017). Petitioner filed a second Rule 61 motion, which the Superior Court summarily
dismissed. See State v. Ellerbe, 2017 WL 4271207 (Del. Super. Ct. 26, 2017).
Petitioner did not appeal.
Thereafter, Petitioner filed in this Court a§ 2254 Petition asserting the following
two ineffective assistance of counsel ("IATC") claims: (1) trial counsel provided
ineffective assistance by failing to impeach the DEA forensic chemist who analyzed the
drugs seized in his case with evidence of a pending DEA disciplinary proceeding
("Claim One"); and (2) trial counsel provided ineffective assistance by failing to
challenge the DEA forensic chemist's use of the hypergeometric sampling method to
analyze the drugs in Petitioner's case ("Claim Two"). (D.I. 34 at 8) The Court denied
Claim One as meritless and Claim Two as procedurally barred. (D.I. 34; D.I 35) On
2

October 1, 2020, Petitioner simultaneously filed a notice of appeal from that decision
(D.I. 36) and a timely motion to alter or amend the judgment pursuant to Federal Rule of
Civil Procedure 59(e) (D.I 37). The Third Circuit stayed Petitioner's appeal pending the
Court's disposition of his Rule 59(e) motion. (D.I. 39) The Court denied Petitioner's
Rule 59(e) motion on January 13, 2022. (D.I. 45; D.I. 46).
On March 15, 2022, the Third Circuit denied Petitioner's request for a certificate
of appealability with respect to this Court's denial of his Petition and terminated
Petitioner's appeal. (D.I. 47) The Third Circuit stated that, "for substantially the same
reasons stated by the District Court, Appellant's claims are either procedurally defaulted
or without merit. Jurists of reason would also agree that Appellant failed to demonstrate
cause and prejudice or miscarriage of justice necessary to excuse the default." (D.I. 47
at 1) Petitioner filed a motion for the Third Circuit to grant a panel rehearing, 1 which the
Third Circuit denied. See Ellerbe v. Metzger, C.A. 20-3018, Order (D.I. 37) (3d Cir. May
6, 2022). Petitioner then filed in the United States Supreme Court a petition for writ of
certiorari, which was denied on October 31, 2022. See Ellerbe v. May, 143 S.Ct. 388
(Oct. 31, 2022).
On August 23, 2023, Petitioner filed the pending Motion to Reopen his habeas
proceeding pursuant to Rule 60(b)(4) and (d)(1). (D.I. 48 at 6-12)

Ill.

SECOND OR SUCCESSIVE BAR
When, as here, a petitioner files a Rule 60(b) or (d) motion after the denial of his

1See

Ellerbe v. Metzger, C.A. 20-3018, Motion {D.I. 36) (3d Cir. Mar. 28, 2022).
3

habeas petition, a court must first determine if the Rule 60(b) or (d) motion constitutes a
second or successive motion under the Antiterrorism and Effective Death Penalty Act
("AEDPA"). With respect to Rule 60(b) motions, the Third Circuit has explained:
in those instances in which the factual predicate of a petitioner's
Rule 60(b) motion attacks the manner in which the earlier habeas
judgment was procured and not the underlying conviction, the
Rule 60(b) motion may be adjudicated on the merits. However,
when the Rule 60(b) motion seeks to collaterally attack the
petitioner's underlying conviction, the motion should be treated
as a successive habeas petition.
Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Although the Third Circuit has

not expressly addressed the applicability of the second or successive bar with respect
to Rule 60(d) motions, several circuit courts have held that the AEDPA's second or
successive rule applies regardless of whether the motion is filed under Rule 60(b) or
Rule 60(d). See Yellowbear v. Hill, 859 F. App'x 295, 299 (10th Cir. 2021) (explaining
"the fact that [the petitioner] presented his Rule 60(b) motion in a pleading styled as an
independent action under Rule 60(d)(1), does not change the analysis we use to
determine if his pleading is an unauthorized second or successive § 2254 habeas
petition."); Christian v. Thomas, 982 F.3d 1215, 1221 n. 5 (9th Cir. 2020) ("We analyze
whether a filing advances an unauthorized claim under AEDPA using this same
standard regardless of whether the original filing is a Rule 60(b) motion or, as here, a
Rule 60(d) independent action."); Johnson v. Davis, 746 F. App'x 375, 380 (5th Cir.
2018) (explaining that Rule 60(d)(1) motions are affected by AEDPA's second or
successive bar); Gonzalez v. Sec'y for Dep't of Corr., 366 F.3d 1253, 1277 n.11 (11 th
Cir. 2004).
4

Under AEDPA, a prisoner cannot file a second or successive habeas petition
without first obtaining approval from the Court of Appeals. Absent such authorization, a
district court cannot consider the merits of a subsequent petition. 28 U.S.C. §
2244(b)(3)(A). "When a second or successive habeas petition is erroneously filed in the
district court, the district court's only option is to dismiss the petition or transfer it to the
court of appeals pursuant to 28 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d
128,139 (3d Cir. 2002).
The following background information is relevant to the Court's determination as
to whether the instant Motion to Reopen constitutes a second or successive habeas
request. During Petitioner's trial, the DEA forensic chemist testified that she utilized the
hypergeometric sampling method to determine that the drugs seized from Petitioner
were heroin. In Claim Two of his Petition, Petitioner asserted that trial counsel was
ineffective for not challenging the use of the hypergeometric sampling method because,
at the time of his trial in 2015, 16 Del. C. § 4751 D only explicitly permitted
hypergeometric sampling for prescription drugs. 2 He argued that trial counsel's failure

2The

version of§ 4715D in effect at the time of Petitioner's trial provided that:
(a) In any prosecution under this subchapter, in which the
weight or quantity of a controlled substance is an element of
the offense, the State need not prove that the defendant had
any knowledge as to the weight or quantity of the substance
possessed. The State need only prove that the defendant
knew that the substance was possessed; and, that the
substance was that which is alleged, and that the substance
weighed a certain amount or was in a certain quantity.
(b) In any prosecution under this subchapter, in which the
quantity of a controlled substance is an element of the
5

to challenge the use of the method essentially "allowed the State to engraft upon the
statute language to get a conviction." (D.I. 3 at 1-4, 6) According to Petitioner, the fact
that the 2014 version of§ 4751 D did not explicitly permit hypergeometric sampling in
cases involving non-prescription drugs demonstrates that he should only have been
convicted of dealing and possessing the amount of heroin the expert actually tested.
(Id.)

In his Petition, Petitioner acknowledged that Claim Two was procedurally
defaulted, but argued that the Court should excuse the default under Martinez v. Ryan,

offense, and the controlled substance is alleged to be a
"prescription drug" as defined in§ 4701 of this title, and the
alleged prescription drug consists of multiple doses that
appear to be substantially identical, evidence that a chemist
or other qualified witness properly tested one dose, and found
the presence of a controlled substance, shall be prima facie
evidence that the "substantially identical doses" each
contained the controlled substance that is a prescription drug
for purposes of determining whether the State has proven the
number of doses constituting the Tier quantities set forth in§
4751 C(2)j. or (4)j. of this title. Nothing in this subsection
precludes the right of any party to introduce any evidence
supporting or contradicting evidence offered pursuant to this
subsection.
16 Del. C. § 471 SD (2011 ). In 2019, the Delaware General Assembly amended § 471 SD
by adding subsection (c):
(c) The identity or composition of a controlled substance, or a
mixture containing a controlled substance, may be
established by utilizing a hypergeometric sampling plan or
other scientifically accepted methodology.
16 Del. C. § 4715D (2019).
6

566 U.S. 1 (2012)3 because his IATC argument had "some merit." The Court rejected
Petitioner's argument and denied Claim Two as procedurally barred after determining
that the underlying IATC claim was not substantial because: (1) trial counsel challenged
the use of the hypergeometric sampling method by questioning the chemist on the
reliability and accuracy of the hypergeometric method; (2) the chemist only used the
hypergeometric method to determine the probability inference of identifying the
substance and determined the weight by another process; and (3) the chemist's
testimony concerning the hypergeometric sampling method satisfied Delaware Rule of
Evidence 702. (D.I. 34 at 15-17)
In his Rule 59(e) motion, Petitioner challenged the Court's conclusion that
Martinez's limited exception to procedurally defaulted IATC claims did not excuse his
procedural default of Claim Two. (D.I. 37 at 1) According to Petitioner, the Court had
• misinterpreted the underlying ineffective assistance of trial counsel argument in Claim
Two as asserting that trial counsel "failed to challenge the reliability of the
hypergeometric sampling," when he was actually arguing 4 that trial counsel was

31n

Martinez, the Supreme Court held that inadequate assistance of counsel or the
absence of representation during an initial-review state collateral proceeding may
establish cause for a petitioner's procedural default of a claim of ineffective assistance
of trial counsel. 566 U.S. at 16-17. In order to obtain relief under Martinez, a petitioner
must demonstrate that: (1) the procedural default was caused by either the lack of
counsel or post-conviction counsel's ineffective assistance during the petitioner's first
collateral proceeding in which the claim could have been heard; and (2) the underlying
ineffective assistance of defense counsel claim is substantial (i.e., has "some merit").
See Cox v. Hom, 757 F.3d 113, 119 (3d Cir. 2014).
4 1n

his own words, Petitioner alleged he was
7

ineffective for failing to argue Petitioner could only be convicted of dealing and
possessing the amount of heroin the expert actually tested because the version of
§ 4751 Din effect at the time of Petitioner's trial did not explicitly permit hypergeometric
sampling in cases involving non-prescription drugs. (D.I. 37 at 4-7)
The Court denied Petitioner's Rule 59(e) motion after determining that
Petitioner's argument failed to present a clear error of law or fact or demonstrating a
manifest injustice of the sort that would compel reconsideration of the Court's denial of
Claim Two. (D.I. 45; D.I. 46). More specifically, the Court found that trial counsel's
failure to challenge the propriety of using the hypergeometric sampling procedure did
not trigger Martinez's limited exception to the procedural default doctrine because:
(1) the hypergeometric sampling procedure was properly used in his case; and (2) there
was sufficient other evidence of drug dealing for a reasonable jury to convict Petitioner
even without using the hypergeometric sampling method to confirm that the seized
substance was heroin. (D.I. 45 at 5-6, n.3)
In the instant Motion to Reopen, Petitioner contends that the Court's denial of
Claim Two is void under Rule 60(b)(4) because the Court issued its decision without
holding a hearing on or explicitly addressing his request to have the Delaware Supreme

arguing [that his] trial attorney was deficient for not
challenging the use of hypergeometric sampling as a matter
of law. [ ... ] [T]rial counsel [ ... committed] an inexcusable
mistake of law [by] unreasonabl[y] fail[ing] to understand the
plain language of Title 16 Del. C. Sec. 4751, which doesn't
permit hypergeometric sampling on any drugs except
prescription drugs.
(D.I. 37 at 1)
8

Court certify whether the "2014-extant of 16 Del. C. § 4751 D permit[ted]
'hypergeometric sampling' to be used on any controlled substances besides
'prescription drugs."' (D.I. 48 at 4) Petitioner asserts that the question of law he wanted
the Delaware Supreme Court to certify "was determinative of trial counsel's
effectiveness." (Id.)
Petitioner also pursues relief from the denial of his Petition as an independent
action under Rule 60(d)(1 ). He contends that the Court erred by failing to
recharacterize the premise of Claim Two to be that trial counsel provided ineffective
assistance by failing to challenge the sufficiency of the evidence supporting his drug
convictions. (D.I. 48 at 10)
Although Petitioner describes the two arguments in his Motion to Reopen as
challenging the integrity of the Court's decision-making process when denying Claim
Two, the arguments challenge the validity of his underlying convictions and constitute
second or successive habeas requests. For instance, Petitioner's Rule 60(b)(4)
argument that the question of law he wanted the Delaware Supreme Court to certify
"was determinative of trial counsel's effectiveness" essentially reasserts the IATC
argument he presented in Claim Two. (D.I. 48 at 10) Petitioner's Rule 60(d)(1)
argument that "trial counsel's failure to challenge the insufficiency of the evidence []
resulted in unconstitutional drug convictions" appears to either reassert a facet of the
IATC argument presented in Claim Two or assert a new IATC argument. (Id.)

9

There is no indication that the Third Circuit authorized these second or
successive habeas requests. Therefore, the Court will dismiss the instant Motion to
Reopen for lack of jurisdiction.

IV.

RULE 60(8)(4) AND (0)(1) MOTION
Alternatively, even if the Court reviewed the instant Motion as a true Motion to

Reopen under Rule 60(b)(4) and/or Rule 60(d)(1), the Court would decline to reopen
Petitioner's habeas proceeding because the Motion lacks merit. Federal Rule of Civil
Procedure 60(b) provides that a party may file a motion for relief from a final judgment
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence, that with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59{b); (3) fraud {whether previously called intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that
justifies relief.
Fed. R. Civ. P. 60(b).
Rule 60{b){4) "authorizes the court to relieve a party from a final judgment if the
judgment is void." United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,270
(2010) (cleaned up). The list of infirmities rendering a judgment void "is exceedingly
short; otherwise, Rule 60{b)(4)'s exception to finality would swallow the rule." Id. A
Rule 60(b)(4) motion is not a substitute for a timely appeal and a judgment is not void
"simply because it is or may have been erroneous." Id. at 271. "Instead, Rule 60(b)(4)
applies only in the rare instance where a judgment is premised either on a certain type
10

of jurisdictional error or on a violation of due process that deprives a party of notice or
the opportunity to be heard." Id.
Petitioner attempts to demonstrate his entitlement to relief under Rule 60(b)(4) by
arguing that the Court deprived him of his due process right to have "a meaningful
hearing on his motion for a certified question of law" as to whether the hypergeometric
sampling method was properly utilized in his case under the "then extant" statute 16
Del. C. § 4751 D (2014), because the issue was "determinative of trial counsel's
effectiveness" and "momentous" to the procedural default determination. (0.1. 48 at 4-5)
This argument fails for two reasons. First, Petitioner could have, but did not, raise the
instant argument concerning the Court's failure to hold an evidentiary hearing when he
appealed the Court's denial of his Petition to the Third Circuit. (See 0.1. 10 in Ellerbe v.
Warden, C.A. No. 20-3018 (3d Cir~ 2020); see Johnson v. Spencer, 950 F.3d 680, 699

(10th Cir. 2020) (relief unavailable under Rule 60(b)(4) where same due process
arguments were available on appeal but party failed to raise them). Second, the Court's
failure to hold an evidentiary hearing did not amount to a due process violation under
Rule 60(b)(4). In Shinn v. Ramirez, 596 U.S. 366, 371 (2022), the Supreme Court
limited a habeas petitioner's ability to successfully assert the ineffective assistance of
post-conviction counsel as "cause" to excuse a procedural default by holding that a
federal district court may not hold an evidentiary hearing or consider any evidence
outside of the state court record to assess cause and prejudice under Martinez unless
the petitioner satisfies§ 2254(e)(2)'s stringent requirements. Id. at 387-90. Under
§ 2254(e)(2), where the petitioner has "failed to develop the factual basis of a claim in
11

state court proceedings, a federal [habeas] court may hold an evidentiary hearing on the
claim only if the claim relies on (1) a 'new' and 'previously unavailable' 'rule of
constitutional law' made retroactively applicable by [the Supreme] Court, or (2) 'a factual
predicate that could not have been previously discovered through the exercise of due
diligence.'" Ramirez, 142 S. Ct. at 1734 (quoting§§ 2254(e)(2)(A)(i), (ii)). The
petitioner must then "show that further fact finding would demonstrate, 'by clear and
convincing evidence,' that 'no reasonable fact finder' would have convicted him of the
crime charged." Id. (quoting§ 2254(e)(2)(8)).
In Petitioner's case, there is no new rule of constitutional law that was made
retroactively applicable by the Supreme Court, nor does Petitioner point to any
previously unidentifiable facts surrounding his instant argument about trial counsel's
failure to challenge the use of the hypergeometric sampling method in his case.
Consequently, the Court was not required to hold an evidentiary hearing on Petitioner's
certification of law request/Martinez argument which, in turn, means that Court's failure
to hold an evidentiary hearing on trial counsel's failure to question the applicability of
§ 4741 Din Petitioner's criminal proceeding did not deprive Petitioner of his due process
rights. Thus, Petitioner is not entitled to relief under Rule 60(b)(4).
Petitioner's reliance on Rule 60(d)(1) is equally unavailing. Rule 60(d)(1)
provides that a court has the power to "entertain an independent action to relieve a
party from a judgment, order, or proceeding." Fed. R. Civ. P. 60(d)(1 ). To prevail on a
Rule 60(d)(1) motion, a petitioner must demonstrate: "(1) a judgment which ought not, in
equity and good conscience, to be enforced; (2) a good defense to the alleged cause of

12

action on which the judgment is founded; (3) fraud, accident, or mistake which
prevented the defendant in the judgment from obtaining the benefit of his defense; (4)
the absence of fault or negligence on the part of the defendant: and (5) the absence of
any adequate remedy at law." In re Machne Israel, Inc., 48 F. App'x 859, 863 n.2 (3d
Cir. Oct. 4, 2002). Courts have consistently held that an independent action in equity is
available "only to prevent a grave miscarriage of justice." United States v. Beggerly,
524 U.S. 38, 47 (1998); see Fink v. Bishop, 2022 WL 4533855, at *2 (3d Cir. Sept. 28,
2022) (stating "Rule 60(d) permits a court to entertain an independent action to relieve a
party from a judgment in order to prevent a grave miscarriage of justice."). "An
independent action brought under Rule 60(d)(1) "is generally treated the same as a
motion under Rule 60(b)." Quarles v. Samples, 2023 WL 2497864, at *1 (E.D. Pa. Mar.
14, 2023).
Although not entirely clear, Petitioner appears to believe the Court would have
determined an IATC claim based on trial counsel's failure to challenge the sufficiency of
the evidence had "some merit" which, in turn, would have resulted with the Court
excusing his default under Martinez. Relying on this belief, Petitioner contends he can
bring an independent action under Rule 60(d)(1) because the Court erred in reviewing
Claim Two as asserting an IATC claim based on trial counsel's failure to challenge the
use of the hypergeometric sampling method instead of "recharacterizing" the IATC
argument in Claim Two as asserting that trial counsel was ineffective for not challenging
the sufficiency of the evidence supporting his drug convictions. 5 (D.I. 48 at 10)

5More

specifically, Petitioner asserts:
13

An "independent action cannot be made a vehicle for the relitigation of issues [ ... ]
that were open to litigation in the former action where [the litigant] had a fair opportunity
to make his claim or defense in that action." Bankers Mort. Co. v. United States, 423
F.2d 73, 79 (5th Cir. 1970). Whether or not Petitioner's instant IATC/insufficient evidence
argument has "some merit" still depends - at least partially - on whether the
hypergeometric sampling method was properly utilized during the testing of the heroin in
Petitioner's case. The Court already rejected Petitioner's argument that the
hypergeometric sampling method was improperly utilized in both its Memorandum
Opinion denying his Petition (D.I. 34 at 16-17) and in its Memorandum and Order
denying his Rule 59(e) Motion (D.I. 45 at 5). Additionally, Petitioner could have, but did
not, raise his argument concerning the Court's alleged "failure" to recharacterize Claim
Two when he appealed the Court's denial of his Petition. Given these circumstances,
Petitioner has not satisfied any of the required elements for relief under Rule 60(d)(1 ),
nor has he demonstrated that a miscarriage of justice will occur if the Court's judgment
is permitted to stand. 6

[R]egardless of whether or not [Petitioner's] prose pleadings were inartfully
presented, the substance of his pleadings clearly complained of trial
counsel's failure to challenge the insufficiency of evidence which resulted in
unconstitutional drug convictions.[ ... T]he District Court could have sought
clarity by commencing the "motion recharacterization' procedure before
ultimately concluding that his underlying trial counsel ineffectiveness claim
held no merit.
(D.I. 48 at 8, 10)
6Notably,

Petitioner unsuccessfully presented his argument concerning the Court's
"failure" to recharacterize Claim Two to the United States Supreme Court in his petition
for writ of certiorari.
14

Accordingly, to the extent Petitioner's instant Motion constitutes a "true" Motion to
Reopen under Rule 60(b)(4) and/or Rule 60(d)(1), the Court will deny the Motion as
meritless.

V.

CONCLUSION
For the aforementioned reasons, the Court will deny the instant Motion to

Reopen. (D.I. 48) The Court also declines to issue a certificate of appealability,
because Petitioner has failed to make a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2); see United States v. Eyer, 113 F.3d 470
(3d Cir. 1997); 3d Cir. LAR 22.2 (2011 ).

Dated: March 11, 2024
Colm F. Connolly
Chief Judge

15