Paczkowski v. State Of Delaware et al
Filing
67
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 7/29/2020. (nms)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
JOSEPH PACZKOWSKI,
Petitioner,
Civil Action No. 17-1665-RGA
V.
TRUMAN MEARS, Warden, 1 and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
MEMORANDUM OPINION
Joseph Paczkowski. Pro se Petitioner.
Carolyn Shelly Hake, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents .
July 29, 2020
Wilmington, Delaware
1
Warden Truman Mears replaced former Warden Robert May, an original party to this case. See
Fed. R. Civ. P. 25(d).
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Isl Richard G. Andrews
ANDREWS, UNITED STATES DISTRICT JUDGE:
Petitioner Joseph Paczkowski is an inmate in custody at the Sussex Correctional
Institution in Georgetown, Delaware. Petitioner filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 and an Amended Habeas Application (hereinafter
collectively referred to as "Petition"). (D.I. 1; D.I. 4) The State filed an Answer asserting that
the Petition should be dismissed as time-barred or, alternatively, as procedurally barred from
federal habeas review. (D.I. 36) Petitioner filed a Reply in Opposition. (D.I. 43) For the
reasons discussed, the Court will deny the Petitioner as time-barred and, alternatively, as
procedurally barred from federal habeas review.
I.
BACKGROUND
On August 19, 1999, Petitioner entered a Robinson plea in the Delaware Supreme Court
to one count of third degree unlawful sexual intercourse. See Paczkowski v. State, 2001
WL213354, at * 1 (Del. Jan. 2, 2001 ). Pursuant to the plea agreement, Petitioner was sentenced
to twenty years at Level V, suspended after two years for fifteen years of probation. Id.
On or about October 12, 2011 , while Petitioner was on probation, Petitioner's probation officer
filed an administrative warrant alleging that Petitioner violated the conditions of his supervision
by having unsupervised contact with two minors, S.M. , an 8-year old girl, and her brother. (D.I.
36 at 4). At the time of the offenses, Petitioner was registered as a Tier 3 sex offender and
monitored by GPS . (Id. at 2) On December 19, 2011, Petitioner was indicted on five counts of
sex offender unlawful sexual conduct against a child in violation of 11 Del. Code § 777 A for
allegedly committing sexual acts against S.M. (Id. at 1; D.I. 41-2) On April 4, 2012, Petitioner
pied guilty to one count of first degree unlawful sexual contact under 11 Del. Code§ 769 (lesser
included offense) and one count of unlawful sexual solicitation under 11 Del. Code§ 1112A
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(lesser included offense), and stipulated that he was a habitual offender for sentencing on the first
degree unlawful sexual contact offense. (D.I. 36 at 2; D.I. 41-3 at 1-8) Petitioner also pled
guilty to violating his probation ("VOP") . (D.I. 36 at 2; D.I. 41-3 at 8-9) That same day, the
Superior Court sentenced Petitioner as follows: (1) as an habitual offender to eight years at Level
V for the first degree unlawful sexual contact conviction; (2) to fifteen years at Level V for the
sexual solicitation of a child conviction, suspended upon successful completion of the Family
Problems Program for decreasing levels of supervision; and (3) to seven years at Level V for the
VOP. (D.I. 36 at 2; D.I. 41-3 at 8-10) Petitioner did not appeal his convictions and sentences.
In January 2016, Petitioner filed prose letters in the Superior Court claiming he was
innocent and his trial counsel was ineffective. He also requested new counsel, transcripts, and a
hearing. (D.I. 36 at 2-3 ; D.I. 37-5; D.I. 37-6; D.I. 37-7; D.I. 41-4) The Superior Court treated
the letters as a Rule 35 motion for modification/reduction of sentence, and denied the request
after finding that the sentence imposed was reasonable and appropriate. (D.I. 36 at 3; D.I. 37-8)
The Superior Court also informed Petitioner that his ineffective assistance of counsel allegations
had to be raised pursuant to Delaware Superior Court Criminal Rule 61. (D.I. 36 at 3; D.I. 37-8)
Petitioner did not appeal that decision.
On April 11 , 2016, Petitioner filed a pro se Rule 61 motion (D .I. 3 7-9), which the
Superior Court denied on December 7, 2016 (D.I. 37-12). The Superior Court denied
Petitioner's motion for reargument on February 20, 2017, and Petitioner did not appeal that
decision. (D.I. 36 at 3; D.I. 37-15) Petitioner filed a second Rule 61 motion on August 29, 2017
(D.I. 37-16), which the Superior Court denied as time-barred and procedurally barred on
September 6, 2017 (D.I. 37-17). Petitioner did not appeal that decision.
2
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Petitioner filed the instant Petition in November 2017, which appears to assert eighteen
grounds for relief: (1) trial counsel coerced him to plead guilty ; (2) his guilty plea was not
knowingly and voluntarily made; (3) trial counsel provided ineffective assistance of counsel in
numerous ways; (4) the indictment was unconstitutional because it identified him as a sex
offender, and it did not state where and what time the offenses occurred; (5) the State withheld
" [two] good [unidentified] witnesses for [his] defense"; (6) the version of Delaware' s Sexual
Offender Unlawful Sexual Conduct of a Child statute, 11 Del. C. § 777 A, pursuant to which he
was indicted was unconstitutional; (7) the state court failed to hold a hearing on his trial
counsel's competency, and denied him his Sixth Amendment right to competent counsel; (8) his
due process rights were violated because he was illegally detained from October 12, 2011 to
December 23 , 2011 without being charged or allowed bail during this period of time; (9) his due
process rights were violated because the initial report that he may have sexually abused S.M. was
made to his probation officer, rather than to the police; (10) the state court abused its discretion
in refusing to hold an evidentiary hearing and by ordering Delaware' s Department of Correction
to destroy evidence; (11) the State violated his due process rights by allegedly having a witness
"lie" during grand jury testimony ; (12) trial counsel had a conflict because she allegedly
represented the victim' s father, who was a witness for the State, in a "related" case, "sold [him]
out to the State," "abandoned [him]," and violated the " Code of Ethic and unprofessional
conduct"; (13) the prosecutor failed to interview or subpoena the social worker on the case; (14)
the prosecutor and probation officer withheld evidence by failing to provide GPS monitoring
information and his VOP report; (15) the prosecutor and the state court violated " Court Rules of
Superior Court Criminal," the " Code of Conduct," and "Rules of Evidence"; (16) the state court
3
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violated his rights by not informing him about his right to a preliminary hearing; (17) the state
court violated his rights by not reconsidering his motion for reargument on his Rule 61 motion;
and (18) his due process rights were violated when his probation was revoked. (D.I. 1; D.I. 4)
II.
ONE YEAR STATUTE OF LIMITATIONS
AEDP A prescribes a one-year period of limitations for the filing of habeas petitions by
state prisoners, which begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(l). Timeliness must be evaluated on a claim-by-claim basis,2 and
AEDPA' s limitations period is subject to statutory and equitable tolling. See Holland v. Florida,
560 U.S. 631 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory tolling).
Petitioner does not assert, and the Court cannot discern, any facts triggering the
application of§ 2244(d)(l)(B) or (C). However, the Court construes Petitioner' s contention that
he filed his August 2017 Rule 61 motion within one year of learning about the 2015 amendment
2
See Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004) (holding that "28 U.S.C. 2244(d)(l ),
like other statute of limitations provisions, must be applied on a claim-by-claim basis.")
4
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to 11 Del. Code § 777 A as an attempt to trigger a later starting date for the limitations period
under§ 2244(d)(l)(D). Since Claims One, Two, Four, and Six are the only Claims arguably
premised on the September 2015 amendment to § 777 A, only these particular Claims have the
potential of benefitting from Petitioner's attempt to trigger a later starting date for the limitations
period under§ 2244(d)(l)(D).
Determining if a petitioner has exercised due diligence for § 2244(d)(l )(D) purposes is
context-specific, and the essential question is "whether the petitioner should be expected to take
actions which would lead him to the information." Wilson v. Beard, 426 F.3d 653, 661-62 (3d
Cir. 2005). The later starting date under§ 2244(d)(l)(D) commences "when the factual predicate
of a claim could have been discovered through the exercise of due diligence, not when it was
actually discovered." Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004). While this standard
does not require "the maximum feasible diligence," it does require reasonable diligence in the
circumstances, and a petitioner can only avail himself of a later accrual date "if vital facts could
not have been known." Id. When evaluating a petitioner' s diligence, a court must consider that
the "statute's clear policy calls for promptness." Johnson v. United States, 544 U.S. 295, 311
(2005) (discussing 28 U.S.C. § 2255(d)(4)). Under these principles, if the amendment to§ 777A
constitutes a "factual predicate" for § 2244(d)(l )(D) purposes, September 3, 2015 constitutes the
relevant starting date, because that is the date on which the amendment became effective. See
Sparks v. Perry, 2015 WL 4638291, at *2 (E.D.N.C. Aug. 4, 2015).
Nevertheless, the Court concludes that the amendment to § 777 A does not constitute a
factual predicate for § 2244( d)(l )(D) purposes. It is generally accepted that a state court decision
clarifying or re-defining state law may trigger § 2244(d)( 1)(D) only if that state court decision
5
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was rendered in the petitioner' s own litigation history that affected his legal status. See Payne v.
Metzger, 2018 WL 1377096, at *2 (D. Del. Mar. 19, 2018); Blizzardv. Deloy, 855 F.Supp.2d
209, 212 (D. Del. 2012). A statutory amendment occurring after a petitioner' s conviction is
different from a state court decision clarifying or redefining substantive law issued in petitioner' s
own litigation history. Although the Court has not found any caselaw explicitly setting forth
when, or even if, a statutory amendment occurring after a petitioner' s conviction can provide the
factual predicate of a claim under§ 2244(d)(l)(D), the Supreme Court's reference to "new
evidence [that] could have been discovered through the exercise of due diligence" when
discussing§ 2244(d)(l)(D) ' s general applicability in McQuiggan v. Perkins provides some
instruction McQuiggan v. Perkins, 569 U.S. 383 , 398-99 (2013) (emphasis added). A statutory
amendment is a legal predicate to a claim, not "new evidence" providing a factual predicate for
§ 2244(d)(l)(D) purposes.3
In this case, Petitioner was not convicted or sentenced under § 777 A, because he pied
guilty to the lesser-included-offenses of first degree unlawful sexual contact under 11 Del. Code
§ 769 and sexual solicitation of a child under 11 Del. Code§ 1112A. (D.I. 37-4) Since the
amendment of§ 777 A did not alter any facts used in Petitioner' s conviction or sentence, the
2015 amendment to § 777 A does not reset the limitations period for Claims One, Two, Four and
3
1n addition, it appears evident that nothing in AEDP A "meant to take away state courts' ability
to handle as they see fit the always-thorny problem of the retroactivity of changes in substantive
law." Shannon v. Newland, 410 F.3d 1083, 1089 (9 th Cir. 2005). Presumably this applies just as
well to the ability of legislatures to address that "always-thorny problem" too.
6
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Six.4 Given this conclusion, the one-year period of limitations for all eighteen Claims in the
Petition began to run when Petitioner's conviction became final under§ 2244(d)(l)(A).
Pursuant to § 2244( d)(l )(A), if a state prisoner does not appeal a state court judgment, the
judgment of conviction becomes final , and the one-year period begins to run, upon expiration of
the time period allowed for seeking direct review. See Kapral v. United States, 166 F.3d 565,
575, 578 (3d Cir. 1999); Jones v. Morton , 195 F.3d 153, 158 (3d Cir. 1999). Here, the Delaware
Superior Court sentenced Petitioner on April 4, 2012, and he did not appeal that judgment.
Therefore, Petitioner' s conviction became final on May 4, 2012. See Del. Supr. Ct. R. 6(a)(ii)
(establishing a thirty day period for timely filing of notice of appeal). Applying the one-year
limitations period to that date, Petitioner had until May 6, 2013 to timely file his Petition. 5 See
Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005) (holding that Federal Rule of Civil Procedure 6(a)
and (e) applies to federal habeas petitions); Phlipot v. Johnson, 2015 WL 1906127, at *3 n. 3 (D.
4
Even if the Court were to view the September 3, 2015 amendment to§ 777A as triggering §
2244(d)(l)(D), this later starting date would not render Claims One, Two, Four, and Six timely
filed . In this scenario, the limitations period began to run on September 4, 2015 . The limitations
clock ran for 123 days until Petitioner filed the first Letter Rule 35 motion for modification of
sentence on January 4, 2016, which was denied on January 21, 2016. (D.I. 37-2 at 4; D.I. 37-8)
Although Petitioner did not appeal that decision, the Rule 35 motion tolled the limitations period
through February 22, 2016 (extended two days because February 20, 2016 was a Saturday).
Petitioner filed a Rule 61 motion on April 11 , 2016, which was denied on December 7, 2016, and
actually tolled the limitations through March 22, 2017 (longer than the usual thirty day appeal
period because Petitioner filed a motion for reargument) . At this point, another forty-nine days
of the limitations period had expired. The limitations clock started to run again on March 23,
201 7, and ran another 160 days until Petitioner filed his second Rule 61 motion on August 29,
2017. The second Rule 61 motion was denied on September 6, 2017, and tolled the limitations
through the end of the appeal period to October 6, 2017. The limitations clock started to run on
October 7, 2017, and ran the remaining thirty-two days without interruption until the limitations
period expired on November 8, 2017. Thus, even with the later starting date, Petitioner's filing
on November 12, 2017 was four days too late.
5
Since AEDPA' s one-year period ended on a weekend day, the limitations period extended
through the end of the day on Monday, May 6, 2013. See Fed. R. Civ. P. 6(a)(3).
7
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Del. Apr. 27, 2015) (AEDPA's one-year limitations period is calculated according to the
anniversary method, i.e., the limitations period expires on the anniversary of the date it began to
run).
Petitioner did not file the instant Petition until November 12, 2017, 6 approximately four
years and six months after that deadline. Thus, the Petition is time-barred and should be
dismissed, unless the limitations period can be statutorily or equitably tolled. See Jones, 195
F.3d at 158. The Court will discuss each doctrine in turn.
A. Statutory Tolling
Pursuant to § 2244(d)(2), a properly filed state post-conviction motion tolls AEDP A's
limitations period during the time the motion is pending in the state courts, including any postconviction appeals, provided that the motion was filed and pending before the expiration of
AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000). The
limitations period is also tolled for the time during which an appeal from a post-conviction
decision could be filed even if the appeal is not eventually filed. Id. at 424. However, the
limitations period is not tolled during the ninety days a petitioner has to file a petition for a writ
of certiorari in the United States Supreme Court regarding a judgment denying a state postconviction motion. See Stokes v. Dist. Attorney of Philadelphia, 247 F.3d 539, 542 (3d Cir.
2001).
6
Petitioner mailed the instant Petition in an envelope postmarked November 14, 2017 (D.I. 1 at
46), yet the Petition contains a statement indicating that Petitioner provided the Petition to prison
officials for mailing on November 12, 2017. (D.I. 1 at 1) Applying the prison mailbox rule, the
Court adopts November 12, 2017 as the filing date. See Longenette v. Krusing, 322 F.3d 758,
761 (3d Cir. 2003) (the date on which a prisoner transmitted documents to prison authorities for
mailing is to be considered the actual filing date).
8
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Petitioner filed his Rule 35 motion for modification/reduction of sentence in January
2016 and his two Rule 61 motions in April 2016 and August 2017, long after AEDPA' s
limitations period had expired in May 2013 . Therefore, none of his motions for post-conviction
relief statutorily toll the limitations period for the eighteen Claims. 7 Accordingly, the instant
Claims are time-barred, unless equitable tolling applies.
B. Equitable Tolling
The one-year limitations period may be tolled for equitable reasons in rare circumstances
when the petitioner demonstrates "(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing ." Holland, 560
U.S. at 649-50. With respect to the diligence inquiry, equitable tolling is not available where the
late filing is due to the petitioner' s excusable neglect. Id. at 651-52. As for the extraordinary
circumstance requirement, "the relevant inquiry is not whether the circumstance alleged to be
extraordinary is unique to the petitioner, but how severe an obstacle it creates with respect to
meeting AEDPA ' s one-year deadline. " Pabon v. Mahanoy, 654 F.3d 385 , 401 (3d Cir. 2011).
Notably, an extraordinary circumstance will only warrant equitable tolling if there is "a causal
connection, or nexus, between the extraordinary circumstance [] and the petitioner' s failure to
file a timely federal petition." Ross v. Varano , 712 F.3d 784, 803 (3d Cir. 2013).
Petitioner appears to believe that the limitations period should be equitably tolled for two
reasons. First, he appears to argue that tolling is warranted because he filed his August 2017
Rule 61 motion (D.I. 37-16) within one year of becoming aware that a 2015 amendment to 11
7
Although Petitioner filed a letter in the Superior Court on April 12, 2012 requesting the return
of property seized in his case (D.I. 41-1 at 3, Entry No. 30), the letter does not trigger statutory
tolling because it does not constitute a properly filed application for state post-conviction relief
for the purposes of§ 2244(d)(2) . See White v. Phelps, 2008 WL 4327031, at *4 (D. Del. Sept.
22, 2008).
9
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Del. Code § 777 A(b) removed persons registered under § 4120(b )(1) from the definition of a
"sex offender. " (D.I. 43 at 2-3) Some background information is necessary to understand this
particular argument. On December 19, 2011 , Petitioner was indicted on five counts of sex
offender unlawful sexual conduct against a child in violation of 11 Del. Code § 777 A. (D .I. 373) At the time of Petitioner' s indictment, § 777A provided, "A sex offender who knowingly
commits any sexual offense against a child is guilty of sex offender unlawful sexual conduct
against a child." 11 Del. Code § 777 A( a) (2011 ). A "sex offender" was defined as "any person
registered or required to be registered pursuant to§§ 4120(b)(l) and 4121(a)(4) of [Title 11], or
the laws of any other state, the United States or any territory of the United States." 11 Del. Code
§ 777A(b). Both first degree unlawful sexual contact (11 Del. Code§ 769) and sexual
solicitation of a child (11 Del. Code § 1112A) qualified as a "sexual offense" for purposes of§
777 A. See 11 Del. Code §§ 777 A(c) & 761 (h) (2011 ).
In September 2015 , the Delaware General Assembly amended§ 777A ' s definition of sex
offender by deleting the reference to "persons registered under§ 4120(b)(l)." In August 2017,
Petitioner filed a Rule 61 motion challenging his indictment as unconstitutional under the 2015
amendment because his 2011 indictment identified him as a sex offender due to his registration
requirement under § 4120(b)( 1). Petitioner appears to contend that the AEDP A limitations
period should be equitably tolled until August 2017 because he filed the August 2017 Rule 61
motion challenging the indictment as unconstitutional "within [one] year after the bill
[amendment] came to [his] attention by another inmate." 8 (D.I. 43 at 2, 54-57) However, this
argument is foreclosed by the fact that the retroactivity of a state's change in a statute is a matter
8
This argument is a slight variation of Petitioner' s argument that he is entitled to a later starting
date of the limitations period under§ 2244(d)(l)(D). See supra at Section II A.
10
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of state law. Without an express indication that the Delaware General Assembly intended the
2015 amendment to be applied retroactively, Petitioner is bound by the law that was in effect at
the time he committed the crime. 9 See, e.g. , Fountain v. State, 139 A.3d 837, 841 (Del. 2016)
("it is a general rule that statutory amendments operate prospectively unless the legislature
expressly states, to the contrary, that the amendments shall be retrospective."); Dahms v. State,
858 A.2d 960 (Table), 2004 WL 1874650, at *1 (Del. Aug. 17, 2004) ("Under the general
savings statute of the Delaware criminal code, an amendment to a criminal statute does not
invalidate or terminate any prosecution, regardless of the stage of the case, unless the amendment
expressly so provides."). Given these circumstances, the Court concludes that the date on which
Petitioner learned about§ 777 A's amendment does not trigger a later starting date for the
limitations period under the equitable tolling doctrine.
Petitioner's second argument for equitable tolling -- that he is actually innocent 10 -- is
similarly unavailing. In McQuiggin v. Perkins, the Supreme Court held that a credible claim of
actual innocence may serve as an "equitable exception" that can overcome the bar of AEDP A' s
one-year limitations period. McQuiggin , 569 U.S. at 386,401. However, the McQuiggin Court
cautioned that "tenable actual-innocence gateway pleas are rare," and a petitioner only meets the
threshold requirement by "persuad[ing] the district court that, in light of the new evidence, no
juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. at
386. An actual innocence claim must be based on "new reliable evidence - whether it be
9
Moreover, Petitioner was not convicted under § 777 A, because he pled guilty to the lesserincluded-offenses of first degree unlawful sexual contact under 11 Del. Code § 769 and sexual
solicitation of a child under 11 Del. Code§ 1112A. (D.I. 37-4)
10
Petitioner asserts "the evidence shows I am innocent" (D.I. 4-1 at 3), "I can prove I am
innocent" (D.I. 4-1 at 4), and "I am innocent" (D.I. 30-3 at 1).
11
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exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence []
that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, Petitioner' s
bare-bones and unsupported statements that he is innocent do not warrant equitable tolling
because they do not assert or constitute new reliable factual evidence of his actual innocence as
required by Schlup.
Petitioner does not assert that any other alleged extraordinary circumstance prevented
him from timely filing the instant Petition. 11 To the extent Petitioner's late filing was due to a
mistake or miscalculation of the one-year filing period, such a mistake does not warrant
equitably tolling the limitations period. See Taylor v. Carroll, 2004 WL 1151552, at *5-6 (D.
Del. May 14, 2004). Accordingly, the Court will dismiss the Petition as time-barred.
III.
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);
0 'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971 ). The AEDP A states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
28 U.S.C. § 2254(b)(l).
11
Although Petitioner' s Reply is more than 400 pages in length, the Reply basically re-asserts the
substantive arguments presented in the Petition, which do not address the issue of equitable
tolling.
12
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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 Werts v. Vaughn , 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" 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. Bell v. Cone , 543 U.S. 447,
451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989). A federal legal claim is "fairly
presented" to state courts when there is: "( 1) reliance on pertinent federal cases employing
constitutional analysis; (2) reliance on state cases employing constitutional analysis in like fact
situations; (3) assertion of the claim in terms so particular as to call to mind a specific right
protected by the Constitution; [or] (4) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation." McCandless v. Vaughn, 172 F.3d 255 , 261 (3d Cir.
1999).
A petitioner' s failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160
(3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160;
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
13
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exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S.
255 , 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at
750-51. To demonstrate cause for a procedural default, a petitioner must show that "some
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 failure 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 Sweger v. Chesney, 294 F.3d 506, 522-24 (3d
Cir. 2002).
14
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The record reveals that Petitioner did not exhaust state remedies for any of his eighteen
Claims, because he did not appeal the Superior Court' s denial of his two Rule 61 motions. (D.I.
30-6 at 7) At this juncture, any attempt by Petitioner to raise the Claims in a new Rule 61
motion would be barred as untimely under Delaware Superior Court Criminal Rule 61 (i)(l ). See
DeAngelo v. Johnson , 2014 WL 4079357, at *12 (D. Del. Aug. 15, 2014). Although Rule
61 (i)(l) provides for an exception to the one-year time limitation if the untimely Rule 61 motion
"asserts a retroactively applicable right that is newly recognized after the judgment of conviction
is final," no such right is implicated in the instant Claims. Similarly, the exceptions to Rule
61(i)(l)' s time-bar contained in Rule 61(i)(5) and (d)(2) do not apply to Petitioner' s case,
because he has not shown that the state courts lacked jurisdiction, that there is new evidence of
his actual innocence, or that a new rule of constitutional law retroactively applies to his Claims.
Since Petitioner is precluded from exhausting state remedies for the eighteen Claims at
this point, the Court must treat the Claims as technically exhausted but procedurally defaulted.
Consequently, the Court Court cannot review the merits of the Claims absent a showing of cause
for the default, and prejudice resulting therefrom, or upon a showing that a miscarriage of justice
will occur if the Claims are not reviewed.
Petitioner has not demonstrated cause because he does not explain why he did not present
any of the eighteen Claims on post-conviction appeal. Petitioner also cannot benefit from the
limited exception to the procedural default doctrine established in Martinez v. Ryan, 566 U.S . 1
(2012). In Martinez, the Supreme Court held that the failure to appoint counsel (or the
ineffective assistance of counsel) during an initial-review state collateral proceeding may
establish cause for a petitioner's procedural default of a claim of ineffective assistance of trial
15
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counsel. Id. at 16-17. In order to obtain relief under Martinez, a petitioner must demonstrate
that the state did not appoint counsel in the initial-review collateral proceeding, that the
underlying ineffective assistance of trial counsel claim is substantial, and that petitioner was
prejudiced. Id. at 9-10, 16-17. A "substantial" ineffective assistance of trial counsel claim is one
that has "some merit" which, given the Martinez Court' s citation to Miller-El v. Cockrell, 537
U.S. 322 (2003), appears to be governed by the standards applicable to certificates of
appealability. Id. at 13-14. Significantly, however, the Martin ez Court explicitly limited its rule,
stating that the "holding in this case does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings." Id. at 16.
(emphasis added) The Supreme Court explained, "While counsel' s errors in these [other kinds
of] proceedings preclude any further review of the prisoner' s claim, the claim will have been
addressed by one court, whether it be the trial court, the appellate court on direct review, or the
trial court in an initial-review collateral proceeding." Id. at 11 .
Here, the Martinez rule cannot provide cause for Petitioner' s default for the Claims that
do not allege ineffective assistance of trial counsel. The Martinez rule is also inapplicable to the
Claims that do allege the ineffective assistance of trial counsel, because Petitioner presented
those Claims in his Rule 61 motion. The instant default occurred because the Claims were not
then presented to the Delaware Supreme Court on appeal from that proceeding.
In the absence of cause, the Court will not address the issue of prejudice. The
miscarriage of justice exception also does not excuse Petitioner' s procedural default, because he
has not provided any new reliable evidence of his actual innocence. Accordingly, the Court will ·
alternatively deny all the Claims in the Petition as procedurally barred.
16
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IV.
PENDING MOTION
Petitioner filed a Letter Motion to Expedite the Case. (D.I. 60) Given the Court' s
conclusion that the Petition must be dismissed, the Court will dismiss the Letter Motion as moot.
V.
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether
to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2).
When a district court denies a habeas petition on procedural grounds without reaching the
underlying constitutional claims, the court is not required to issue a certificate of appealability
unless the petitioner demonstrates that jurists ofreason would find it debatable: (1) whether the
petition states a valid claim of the denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473 , 484 (2000).
The Court concludes that the instant Petition is both time-barred and procedurally barred.
In the Court's view, reasonable jurists would not find this conclusion to be debatable. Therefore,
the Court will not issue a certificate of appealability.
VI.
CONCLUSION
For the reasons discussed, the Court will dismiss the Petition as time-barred and,
alternatively, as procedurally barred. An appropriate Order will be entered.
17
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