Lewis v. State Of Delaware et al

Filing 24

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/20/2021. (lak)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICHARD B. LEWIS,
Petitioner,
v.
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1

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Civil Action No. 18-934-RGA

MEMORANDUM OPINION
Richard B. Lewis, Pro se Petitioner.
Brian L. Arban, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.

August 21, 2021
Wilmington, Delaware

Warden Robert May replaced former Warden Dana Metzger, an original party to this case. See
Fed. R. Civ. P. 25(d).

1

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/s/ Richard G. Andrews
ANDREWS, UNITED STATES DISTRICT JUDGE:
Petitioner Richard B. Lewis is an inmate in custody at the James T. Vaughn Correctional
Center in Smyrna, Delaware. Petitioner filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 and a Memorandum in Support (hereinafter collectively referred to
as “Petition”). (D.I. 2; D.I. 4) The State filed Answer in opposition. (D.I. 20) For the reasons
discussed, the Court will dismiss the Petition as barred by the limitations period prescribed in 28
U.S.C. § 2244.
I.

BACKGROUND
On June 12, 2006, a New Castle County grand jury indicted Petitioner on three counts of

first degree robbery, two counts of attempted first degree robbery, four counts of possession of a
deadly weapon during the commission of a felony (“PDWDCF”), and one count each of second
degree robbery, second degree burglary, and misdemeanor theft. (D.I. 23-3 at 7-12) Petitioner’s
trial began in the Delaware Superior Court in November 2006. (D.I. 20 at 1) When some of the
State’s necessary witnesses failed to appear to testify, the Superior Court dismissed two of the
weapons counts, one count each of first degree robbery and attempted first degree robbery, and
the second degree burglary, misdemeanor theft, and second degree robbery counts. (D.I. 23-3 at
13-15) On November 15, 2006, a Delaware Superior Court jury found Petitioner guilty of
attempted first degree robbery and two counts each of first degree robbery and PDWDCF. (D.I.
20 at 2) The Superior Court sentenced Petitioner as follows: (1) for the first degree robbery
convictions, to eight years at Level V incarceration, suspended after six years for probation; (2)
for the PDWDCF convictions, to a total of four years at Level V incarceration; and (3) for the
attempted first degree robbery conviction, to three years at Level V. (D.I. 20 at 2; D.I. 21-4 at
69); see Lewis v. State, 941 A.2d 1018 (Table), 2007 WL 4372815, at *1 (Del. Dec. 14, 2007).

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The Delaware Supreme Court affirmed Petitioner’s convictions and sentence on December 14,
2007. See Lewis, 2007 WL 4372815, at *3.
On January 22, 2008, Petitioner filed in the Superior Court a pro se motion for
postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 (“Rule 61 motion”).
(D.I. 21-7) The Superior Court denied the Rule 61 motion on April 30, 2008, and Petitioner did
not appeal that decision. (D.I. 20 at 2); see State v. Lewis, 2008 WL 1921762, at *2 (Del. Super.
Ct. Apr. 30, 2008).
Petitioner filed a second pro se Rule 61 motion on February 3, 2012. (D.I. 21-8) A
Delaware Superior Court Commissioner issued a report recommending that the Rule 61 motion
be summarily dismissed. (D.I. 21-9) On March 15, 2012, the Superior Court adopted the report
and denied Petitioner’s second Rule 61 motion because it was untimely, repetitive, and included
claims that Petitioner could have raised on direct appeal or in a prior postconviction proceeding.
(D.I. 21-10) Petitioner did not appeal that decision.
On June 10, 2016, Petitioner filed a motion for sentence reduction, which the Superior
Court denied on August 5, 2016. (D.I. 21-11; D.I. 21-12) Petitioner did not appeal that decision.
Petitioner filed a third pro se Rule 61 motion on March 22, 2017 (D.I. 21-13), which the
Superior Court dismissed on April 13, 2017 as untimely, second or successive, and meritless
(D.I. 21-14). Petitioner did not appeal that decision.
On May 29, 2018, Petitioner filed his fourth pro se Rule 61 motion. (D.I. 21-15) The
Superior Court summarily dismissed that Rule 61 motion on June 14, 2018 as untimely, second
or successive, and because it raised claims previously adjudicated by the courts. (D.I. 21-16)
Petitioner did not appeal that decision.
2

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In June 2018, Petitioner filed the instant Petition asserting the following three grounds for
relief: (1) he is mentally incompetent, and his trial, conviction and sentencing violated his
constitutional rights (D.I. 2 at 6); (2) defense counsel provided ineffective assistance by not
investigating or asserting a defense based on Petitioner’s mental illness (D.I. 4 at 2-6); and (3) he
is actually innocent (D.I. 4 at 7).
II.

ONE YEAR STATUTE OF LIMITATIONS
AEDPA prescribes a one-year period of limitations for the filing of habeas petitions by

state prisoners, which begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). AEDPA’s limitations period is subject to statutory and equitable tolling.
See Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2)
(statutory tolling).

3

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Petitioner does not assert, and the Court cannot see, any facts triggering the application of
§ 2244(d)(1)(B),(C), or (D). Therefore, the one-year period of limitations began to run when
Petitioner’s conviction became final under § 2244(d)(1)(A).
Pursuant to § 2244(d)(1)(A), if a state prisoner appeals a state court judgment but does
not seek certiorari review, the judgment of conviction becomes final, and the statute of
limitations begins to run, upon expiration of the ninety-day time period allowed for seeking
certiorari 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). In this case, the Delaware Supreme Court affirmed
Petitioner’s convictions on December 14, 2007, and he did not file a petition for a writ of
certiorari in the United States Supreme Court. As a result, Petitioner’s convictions became final
on March 13, 2008. Applying the one-year limitations period to that date, Petitioner had until
March 13, 2009 to timely file a habeas petition. See Wilson v. Beard, 426 F.3d 653, 662-64 (3d
Cir. 2005) (Fed. R. Civ. P. 6(a) applies to AEDPA’s limitations period); Phlipot v. Johnson,
2015 WL 1906127, at *3 n. 3 (D. 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, however, did not file the instant Petition until
June 23, 2018, 2 a little more than nine years 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.

2

Pursuant to the prisoner mailbox rule, the Court adopts June 23, 2018 as the filing date because
that is the date on Petitioner’s certificate of mailing. 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).
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A. Statutory Tolling
Pursuant to § 2244(d)(2), a properly filed state post-conviction motion tolls AEDPA’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. The limitations
period, however, 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. Att’y of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).
Here, Petitioner filed his first Rule 61 motion after the conclusion of his direct appeal but
during the ninety-day period in which he could have sought certiorari review of his convictions
by the United States Supreme Court. As a result, AEDPA’s limitations period did not begin to
run until his Rule 61 motion was no longer pending. Since Petitioner did not appeal the Superior
Court’s denial of his Rule 61 motion on April 30, 2008, AEDPA’s limitations period began to
run on May 30, 2008, the date on which the thirty-day appeal period expired. The limitations
clock started to run on May 31, 2008, and ran the entire one year without interruption until the
limitations period expired on June 1, 2009. 3 Given these circumstances, none of Petitioner’s
three other Rule 61 motions statutorily toll the limitations period because they were filed after
the expiration of the limitations period. Therefore, the instant Petition is time-barred, unless
equitable tolling applies.
3

The limitations period actually ended on May 30, 2009, which was a Saturday. Therefore,
Petitioner had until the end of the day on Monday June 1, 2009 to timely file a habeas petition.
See Fed. R. Civ. P. 6(a).
5

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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, a petitioner’s obligation to exercise
diligence “does not pertain solely to the filing of the federal habeas petition, rather it is an
obligation that exists during the period [the inmate] is exhausting state remedies as well.”
LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005). Equitable tolling is not available where the
late filing is due to the petitioner’s excusable neglect. See Holland, 560 U.S. 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).
Here, Petitioner appears to assert that the limitations period should be equitably tolled
because he is mentally incompetent and “severely” mentally ill. (D.I. 4 at 7) “Mental
incompetence,” however, “is not a per se reason to toll a statute of limitations. Rather, the
alleged mental incompetence must somehow have affected the petitioner's ability to file a timely
habeas petition.” Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (citation omitted), overruled
in part on other grounds by Carey v. Saffold, 536 U.S. 214 (2002). Although the Third Circuit
6

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has not set out specific criteria for determining when a petitioner's incompetence affected his
ability to timely file a habeas petition, other courts in this Circuit take a totality of circumstances
approach and consider the following factors: (1) whether the petitioner was adjudicated
incompetent and, if so, the timing of the adjudication in relation to the habeas statutory period;
(2) whether the petitioner was institutionalized for his mental impairment; (3) whether the
petitioner handled or assisted in other legal matters which required action during the federal
limitations period; and (4) whether the petitioner supported his allegations of impairment with
extrinsic evidence such as evaluations and/or medications. See Champney v. Sec’y Pa. Dep’t of
Corr., 469 F. App’x 113, 118 (3d Cir. 2012); Griffin v. Stickman, 2004 WL 1821142, at *6 (E.D.
Pa. Aug. 11, 2004) (collecting cases).
Petitioner has not satisfied this standard. First, Petitioner has not provided any evidence
that he has been adjudicated mentally incompetent. Second, the record does not contain, and
Petitioner has not provided, documentation supporting his statement that he has been housed in a
residential treatment center while serving his sentence. Although the Superior Court noted in
Petitioner’s first Rule 61 proceeding that Petitioner was in a “mental facility for a short time in
April 2005,” the timing of his residence in that facility pre-dated the criminal charges leading to
this Petition. Notably, Petitioner has not explained how being in a “mental facility” in April
2005 affected his ability to communicate with defense counsel during his criminal proceedings in
2006 or his ability to timely file a federal habeas petition sometime between May 2008 and June
2009. Third, the record indicates that Petitioner was capable of filing a timely Rule 61 motion
during AEDPA’s limitations period, and he initiated several other post-conviction motions after
the denial of his first Rule 61 motion. Finally, Petitioner has not supported his allegations of
7

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mental incompetency/mental illness with extrinsic evidence, such as evaluations or
documentation of his medications.
Petitioner also appears to assert that his delay in filing should be excused because he is
actually innocent due to the fact that he is mentally ill. 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 AEDPA’s one-year limitations period. McQuiggin v. Perkins, 133 S.Ct.
1924, 1928 (2013). Nevertheless, “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. An actual innocence claim must be based on “new reliable evidence –
whether it be 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).
In the Third Circuit, evidence is “new” for the purposes of the Schlup standard only if it was not
available at the time of trial and could not have been discovered earlier through the exercise of
due diligence, 4 except in situations where that evidence was not discovered due to the ineffective
assistance of trial counsel. See Houck v. Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010). In turn,
when determining if a petitioner’s new evidence shows it is “more likely than not that no
reasonable juror would have convicted him,” a court must consider “all the evidence, old and
new, incriminating and exculpatory, without regard to whether it would necessarily be admitted
under rules of admissibility that would govern at trial.” House v. Bell, 547 U.S. 518, 538 (2006).
4

The circuits addressing the issue are split over what constitutes “new” evidence for Schlup
purposes. The Eighth Circuit’s interpretation of “new” evidence corresponds with the Third
Circuit’s, whereas the Seventh and the Ninth Circuits do not require the exercise of due
diligence, and view “new” evidence as evidence that was not “presented” at trial. See Kidd v.
Norman, 651 F.3d 947, 953 (8th Cir. 2011) (collecting cases).
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Petitioner’s assertion of actual innocence does not equitably toll the limitations period.
As the Superior Court noted when denying Petitioner’s first Rule 61 motion:
[Defense counsel] has stated to the Court that he met with you
several times in preparation for trial. He did not detect any signs of
schizophrenia or any other mental problems. [Defense counsel]
stated that you were well aware of what you were doing in turning
down the State's plea offers and that you understood that you faced
a minimum mandatory sentence of up to 24 years if you were
convicted on all charges. His notes do not reflect that you ever told
him you had a history of mental illness. [Defense counsel]
frequently spoke to your grandmother, Rev. Janet Harmon, the
chaplain of the V.A. Hospital, in the town of Elsmere, Delaware.
Neither before or after trial did your grandmother refer to
schizophrenia or any other mental illness you may have
experienced. [Defense counsel] states that after trial but before
sentencing, his colleague […] told him that you have mental
problems.
Lewis, 2008 WL 1921762, at *1. Petitioner has not provided any new reliable evidence of his
actual innocence, nor has he provided anything to rebut or even cast doubt on the Superior
Court’s findings. Thus, Petitioner’s conclusory and unsupported assertion of innocence based on
mental illness does not warrant equitable tolling.
For all of these reasons, the Court concludes that the doctrine of equitable tolling is not
available to Petitioner on the facts he has presented. Accordingly, the Court will dismiss the
instant Petition as time-barred. 5
III.

CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether

to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2).
When a district court denies a habeas petition on procedural grounds without reaching the
5

Having concluded that the instant Petition is time-barred, the Court will not address the State’s
alternate reason for denying the Petition.
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underlying constitutional claims, the court is not required to issue a certificate of appealability
unless the petitioner demonstrates that jurists of reason would find it debatable: (1) whether the
petition states a valid claim of the denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court concludes that the instant Petition is time-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.
IV.

CONCLUSION
For the reasons discussed, the Court will dismiss the Petition as time-barred. An

appropriate Order will be entered.

10