RICHARD G. ANDREWS, District Judge.
Pending before the Court is Petitioner Michael E. Demby's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 4) The State filed an Answer in opposition, contending that the Petition should be dismissed. (D.I. 10) For the reasons discussed, the Court will dismiss the Petition.
The facts leading to Petitioner's arrest and conviction are as follows:
Ayers v. State, 97 A.3d 1037, 1038-39 (Del. 2014)(footnotes omitted).
The Delaware Supreme Court affirmed Petitioner's convictions on July 21, 2014, but held that the drug dealing and aggravated possession charges merged for purposes of sentencing. Id. at 1042. As a result, the case was remanded "for the sole purpose of merging the two charges and resentencing." Id. at 1041.
Petitioner filed a Motion for New Trial prior to resentencing, which the Superior Court denied. (D.I. 13 at 2) On January 15, 2016, in accordance with the Delaware Supreme Court's remand, the Superior Court merged the drug dealing and aggravated possession charges and resentenced Petitioner to twenty-seven years of incarceration, suspended after fifteen years for decreasing levels of supervision. (D.I. 13 at 3)
If a state's highest court adjudicated a federal habeas claim on the merits, the federal court must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted ifthe state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or the state court's decision was an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see also Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
A claim has been "adjudicated on the merits" for the purposes of28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather than on a procedural or some other ground. See Thomas V. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even "when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied." Harrington v. Richter, 562 U.S. 86, 98-99 (2011). As explained by the Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99. Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)(stating that the clear and convincing standard in§ 2254(e)(1) applies to "factual issues," whereas the unreasonable application standard of § 2254(d)(2) applies to "decisions").
The sole claim in Petitioner's timely filed § 2254 Petition asserts that the trial court violated his Sixth Amendment right to confront witnesses against him by improperly admitting into evidence wiretap recordings of conversations between Petitioner and Brooks, as well as conversations between Brooks and his mother Valerie, without "ensuring [that] a proper foundation for reliability and accuracy was established in determining a conspiracy existed." (D.I. 4 at 6; D.I. 15, Demby v. State, No. 667, 2013, State's Ans. Br., at 9) The Delaware Supreme Court denied this argument as meritless. See Ayers, 97 A.3d at 1039-40. Therefore, Petitioner will only be entitled to habeas relief if the Delaware Supreme Court's decision was either contrary to, or an unreasonable application of, clearly established federal law.
The Confrontation Clause of the Sixth Amendment provides, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the ... right to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36 (2004) and its progeny, the United States Supreme Court held that the Confrontation Clause bars the admission of testimonial statements of witnesses absent from trial that are admitted to establish the truth of the matter asserted in the statement, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. See Crawford, 541 US. at 59, 60 n. 9 (2004); see also Davis v. Washington, 547 U.S. 813, 823-24 (2006). A testimonial statement is a statement that is made during non-emergency circumstances and is a statement which the declarant would objectively foresee might be used in the investigation or prosecution of a crime. See United States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005); Davis, 547 U.S. at 822.
The threshold question in every Confrontation Clause case is whether the challenged statement is testimonial and, if so, whether it was introduced to establish the truth of the matter asserted. See Hinton, 423 F.3d at357. If the statement is not testimonial in nature, then the Confrontation Clause has no application. Notably, statements made by co-conspirators during the course of a conspiracy are non-testimonial. See United States v. Bobb, 471 F.3d 491, 499 (3d Cir. 2006)("party admissions and co-conspirator portions of disputed tape recordings are nontestimonial.").
Here, the Delaware Supreme Court's denial of Petitioner's Confrontation Clause claim was not contrary to clearly established Federal law, because the Delaware Supreme Court cited and applied Crawford in reaching its decision. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner's case [does] not fit comfortably within§ 2254(d)(1)'s `contrary to' clause").
The Court also concludes that the Delaware Supreme Court's decision involved a reasonable application of Crawford and its progeny. When affirming Petitioner's conviction, the Delaware Supreme Court explained that
Ayers, 97 A.3d at 1040. The Delaware Supreme Court then held that the "wiretap recordings are not testimonial under the Sixth Amendment because the declarants obviously did not expect their statements to be used against them, and because the statements were made in furtherance of a conspiracy." Id.
The record in this case demonstrates that the statements in the wiretap recordings were made by co-conspirators who did not believe their statements were being heard by the authorities and would be available for use in a prosecution. Therefore, the Court concludes that that Delaware Supreme Court's holding regarding the non-testimonial nature of the wiretap recordings constituted a reasonable application of Crawford and its progeny. See United States v. Hendricks, 395 F.3d 173, 181 (3d Cir. 2005)(finding surreptitiously recorded conversations more similar to "a casual remark" than a "formal statement.").
However, Petitioner contends that, even ifthe wiretap recordings would be non-testimonial in other situations, the admission of the statements in his case violated the Confrontation Clause because two law enforcement officers testified and explained what the coded language in the wiretaps meant. See Ayers, 97 A.3d at 1040. For instance, the State called Special Agent Jeffrey Dunn of the Drug Enforcement Administration as an expert in drug investigations who testified that, based on his training and experience and his review of the recordings, Brooks and Petitioner were discussing a drug deal that involved the sale of cocaine. Dunn's testimony on direct examination is set forth below.
(D.I. 15, Demby v. State, No. 667, 2013, App. to the State's Ans. Br., at B-29 to B-30) Dunn also testified about the price and quantity of the cocaine. Id. at B-30 to B-33. After Dunn testified, the State called Delaware State Police Detective Lloyd to testify, played one of the wiretap recordings for the jury, and asked Lloyd to interpret the phrase "the one." Lloyd opined that "the one" referenced one ounce of cocaine. (D.I. 15, Demby v. State, No. 667, 2014, Corrected Appellant's Op. Br. on Appeal, at 14; D.I. 15, Demby v. State, No. 667, 2014, Corrected App. to Appellant's Op. Br., at A-70)
The Delaware Supreme Court rejected Petitioner's argument that Dunn and Lloyd's expert interpretive testimony transformed the wiretaps into testimonial statements, explaining:
Ayers, 97 A.3d at 1040.
The Court concludes that the Delaware Supreme Court reasonably applied Crawford and its progeny in holding that Dunn and Lloyd's interpretive testimony did not transform the wiretap recordings from non-testimonial to testimonial statements. As the Delaware Supreme Court noted, Petitioner could have challenged the witness' interpretations through cross-examination and also could have presented his own witnesses to testify that the wiretap recordings meant something entirely different. Since the wiretap conversations remained non-testimonial, the Delaware Supreme Court's rejection of the instant Confrontation Clause claim does not warrant habeas relief under § 2254(d).
Petitioner filed two motions during the pendency of this proceeding: (1) a Motion for Leave to Retain Jurisdiction (D.I. 20); and (2) a Motion for Leave to Amend/Supplement Response to State's Answer (D.I. 21). As an initial matter, the Court notes that the Motion for Leave to Retain Jurisdiction requests the Court to stay his Petition while he expands the record on his Confrontation Clause claim via a Rule 61 motion he filed in the Superior Court on March 9, 2016, presumably because he then hopes to present an ineffective assistance of counsel claim related to that claim to the Superior Court at some unidentified time in the future. Consequently, the Court construes the Motion to be one requesting a stay of the instant proceeding and, so construed, denies the Motion for the following reasons.
As a general rule, a federal habeas court is only authorized to stay a habeas proceeding if the petition contains both exhausted and unexhausted claims, and the petitioner's ability to file a future habeas petition after proper exhaustion in the state courts will be clearly foreclosed by the expiration of AEDPA's one-year filing period. See Rhines v. Weber, 544 U.S. 269 (2005). The state court record and the record in this proceeding clearly demonstrate that Petitioner had exhausted state remedies for the sole Confrontation Clause Claim raised in his Petition at the time he filed his Petition. For instance, on October 1, 2015, the Court provided Petitioner with an Initial AEDPA Order informing him of AEDPA's requirement that he include in one § 2254 petition all the arguments he has to collaterally attack the state court judgment. (D.I. 7) On November 17, 2015, Petitioner filed his AEDPA election form indicating his understanding of the exhaustion requirement and demonstrating his wish to proceed with his Petition as currently filed. (D.1. 8) The State filed its Answer on February 5, 2016, explaining that the Petition was fully exhausted and ready to be adjudicated on the merits. (D.I. 14) Petitioner did not file the instant Motion (construed as a motion to stay) until March 21, 2016. (D.I. 20) Significantly, based on Petitioner's assertions in the Motion, it appears that the pending Rule 61 motion is an attempt to obtain further support for his already exhausted Confrontation Clause Claim. Petitioner does not assert that the Rule 61 motion presents an ineffective assistance of counsel claim, nor does he assert that he wishes to amend the instant Petition to include an ineffective assistance of counsel claim. The uncertainty surrounding Petitioner's actual intent is demonstrated by his contention that "the record needed to be expanded on the `face-to-face' provision before he makes the argument charging ineffective assistance of counsel, an issue that will
As for Petitioner's Motion for Leave to Amend/Supplement his Response, the Motion is granted, because the assertions in the Motion merely amplify the Confrontation Clause Claim already presented in his Petition and Response. The Court notes it considered the amplified argument during its review of the instant Petition.
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). 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that Petitioner's habeas claims do not warrant relief. In the Court's view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court declines to issue a certificate of appealability.
For the reasons discussed, the Court denies the Petition without an evidentiary hearing. An appropriate Order will be entered.
