GREGORY M. SLEET, Chief District Judge.
Petitioner Tyke Evans ("Evans") has filed a petition for a writ of habeas corpus pursuant to 28 U.S. C. § 2254 ("petition"). (D.I. 1; D.I. 12) The State filed an answer in opposition. (D.I. 21) For the following reasons, the court will deny the application as time-barred by the one-year limitations period prescribed in 28 U.S.C. § 2244.
On November 26, 2007, Evans was charged by information with second degree assault; possession with intent to deliver cocaine; resisting arrest; maintaining a vehicle for keeping controlled substances; criminal mischief; possession of cocaine; possession of drug paraphernalia; possession of marijuana; third degree criminal trespass; and driving with a suspended/revoked license. (D.I. 21 at 3) On April 15, 2008, Evans pled guilty to possession with intent to deliver cocaine and resisting arrest. See Evans v. State, ID No. 0709009693, Graves, J., Letter Order at 2-3 (Del. Super. Ct. Oct. 7, 2009). On June 13, 2008, the Superior Court sentenced Evans to a non-suspended period of nine years in prison.
On August 28, 2008, Evans filed motion for modification of sentence pursuant to Delaware Superior Court Criminal Rule 35, which the Superior Court denied the very next day, August 29, 2008. Evans did not appeal that decision. ld.
On April 9, 2009, Evans filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). Id. The Superior Court appointed counsel to represent Evans, and a two day evidentiary hearing was held. ld. On October 7, 2009, the Superior Court denied Evans' Rule 61 motion, and the Delaware Supreme Court affirmed that decision. See Evans v. State, 2010 WL 1692707 (Del. Apr. 27, 2010).
On April 4, 2011, Evans filed the instant habeas petition, and simultaneously moved to stay the proceeding. (D.I. 1) On June 14, 2011, pursuant to the selection indicated on Evans' AEDPA election form, the court granted Evans' request to voluntarily withdraw his petition. (D.I. 9) The court also denied his motion to stay the proceeding as moot. Id. Evans filed a motion for reconsideration of the decision to deny the stay on June 24, 2011. (D.I. 10) On July 14, 2011, after construing the reconsideration motion as a motion to reopen the case, the court reopened the case. The court permitted Evans to file an amended habeas petition, and denied his request to stay the proceeding. (D.I. 11) Evans filed an amendment to his petition on August 11, 2011, stating he wished to proceed with the claims in his original petition. (D.I. 12)
Evans' petition asserts the following four grounds for relief: (1) defense counsel provided ineffective assistance by forging plea agreement forms after Evans had signed them; (2) defense counsel was ineffective for failing to file a motion to suppress; (3) post-conviction appellate counsel provide ineffective assistance on post-conviction appeal by failing to obtain a new plea bargain; and (4) post-conviction appellate counsel was ineffective for not raising a claim pursuant to Arizona v. Gant, 556 U.S. 332 (2009).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law by the President on April 23, 1996, and habeas petitions filed in federal courts after this date must comply with AEDPA's requirements. See generally Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA prescribes a one-year period oflimitations for the filing of habeas petitions by state prisoners, which begins to run from the latest of:
28 U.S.C. § 2244(d)(1).
Evans' petition, filed in 2011, is subject to the one-year limitations period contained in§ 2244(d)(1). See Lindh, 521 U.S. at 336. Evans does not allege, and the court does not discern, any facts triggering the application of§ 2244(d)(1)(B), (C), or (D). Thus, the one-year period of limitations in this case began to run when Evans' conviction became final under § 2244(d)(1)(A).
Pursuant to § 2244(d)(1)(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 Evans on June 13, 2008, and he did not appeal. Therefore, Evans' conviction became final on July 14, 2008. See Del. Supr. Ct. R. 6(a)(ii)(establishing a 30 day period for timely filing a notice of appeal). Accordingly, to comply with the one-year limitations period, Evans had to file his§ 2254 petition by July 14, 2009. See Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005)(holding that former Federal Rule of Civil Procedure 6(a), (e) applies to federal habeas petitions).
Evans did not file his habeas petition until March 29, 2011,
Pursuant to § 2244(d)(2), a properly filed application for state collateral review tolls AEDPA's limitations period during the time the application is pending in the state courts, including any post-conviction appeals, provided that the application is filed during AEDPA's one-year limitations period. Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000). 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 post-conviction motion. See Stokes v. Dist. Attorney of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).
On August 28, 2008, Evans filed a Rule 35 motion for modification of sentence. At this juncture, forty-five days of AEDPA's limitations period had already expired. The Superior Court denied the Rule 35 motion on August 29, 2008, and Evans did not appeal that decision. Thus, the Rule 35 motion tolled the limitations period from August 28, 2008 through September 29, 2008.
The limitations clock started to run on September 30, 2008, and ran another 190 days until Evans filed his Rule 61 motion on April 9, 2009. At this point, a total of 235 days of AEDPA's limitations period had lapsed. The Rule 61 motion tolled the limitations period from April 9, 2009 through April 27, 2010, the date on which the Delaware Supreme Court affirmed the Superior Court's denial of his Rule 61 motion. The limitations clock started to run again on April 30, 2010, and ran the remaining 130 days until the limitations expired on September 7, 2010.
Thus, even after accounting for the statutory triggered by Evans' Rule 35 and Rule 61 motions, the instant petition was untimely. Accordingly, the instant petition must be dismissed as time-barred, unless equitable tolling applies.
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,
Jones, 195 F.3d at 159; Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001).
The Supreme Court has recognized that an attorney's egregious error or neglect may constitute an extraordinary circumstance for equitable tolling purposes. See Holland, 560 U.S. at 636-653. An "egregious error" includes instances where an attorney fails to file an appeal after an explicit request from the petitioner,
In this case, Evans asserts that the limitations period should be equitably tolled because defense counsel failed to file a direct appeal. However, Evans does not contend, and nothing in the record indicates, that he asked counsel to file a direct appeal. There is also nothing to suggest or indicate that counsel affirmatively misled Evans about filing a direct appeal. Consequently, the court cannot conclude that counsel's conduct was so egregious as to constitute an extraordinary circumstance for equitable tolling purposes.
Additionally, Evans has failed to demonstrate how defense counsel's failure to file a direct appeal actually prevented him from filing a habeas petition before the expiration of AEDPA's limitations period. As such, he has not shown the requisite causal relationship between defense counsel's conduct and Evans' failure to timely file the instant petition.
And finally, to the extent Evans' untimely filing was the result of a miscalculation regarding the one-year filing period, such mistakes do not warrant equitably tolling the limitations period. See Taylor v. Carroll, 2004 WL 1151552, at *5-6 (D. Del. May 14, 2004).
For all of these reasons, the court concludes that the doctrine of equitable tolling is not available to Evans on the facts he has presented. Accordingly, the court will dismiss the petition as time-barred.
When a district court issues a final order denying a § 2254 petition, the court 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). If a federal 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 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. Id
The court has concluded that Evans' petition filed pursuant to 28 U.S.C. § 2254 is time-barred. The court is persuaded that reasonable jurists would not find this conclusion to be debatable. Therefore, the court will not issue a certificate of appealability.
For the reasons discussed, the court will deny as time-barred Evans' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
An appropriate order will be entered.
