SUE L. ROBINSON, UNITED STATES DISTRICT JUDGE.
Currently before the court is Warren Small's ("petitioner") application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 ("application"). (D.I. 8) The State filed an answer in opposition. (D.I. 19) For the reasons that follow, the court will dismiss petitioner's § 2254 application.
The facts leading up to petitioner's arrest and conviction are as follows:
Small v. State, 106 A.3d 1050 (Table), 2015 WL 71631, at *1-2 (Del. Jan. 5, 2015).
Petitioner was arrested on September 28, 2012 and subsequently indicted on possession of a firearm by a person prohibited ("PFBPP"). (D.I. 19 at 2) His defense counsel moved to withdraw on June 4, 2013, and petitioner waived his right to counsel on June 18, 2013, the first day of trial. A Delaware Superior Court jury found petitioner guilty as charged. Id. Petitioner moved for a new trial, which the Superior Court denied. Id. On November 15, 2013, the Superior Court sentenced petitioner to eight years and six months at Level V, with credit for 221 days previously served, suspended after five years for six months at Level IV, followed by two years at Level III probation. (D.I. 19 at 3) On February 28, 2014, the Superior Court corrected petitioner's sentence as follows: eight years at Level V, with credit for 221 days previously served, suspended after five years for two years at Level IV, in turn suspended after six months for two years at Level III.
Petitioner appealed, and the Delaware Supreme Court affirmed his conviction and sentence on January 5, 2015. See Small, 2015 WL 71631. However, on April 22, 2014, while his appeal was pending, petitioner filed a state petition for a writ of
On April 30, 2015, petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 19 at 3) In July 2015, petitioner's former pre-trial counsel and stand-by counsel at trial filed a responsive Rule 61 affidavit. The Superior Court denied the Rule 61 motion as moot on August 3, 2015 based on petitioner's July 22, 2015 notification that "the Rule 61 post-conviction motion in IN12-10-2278 ID No. 1209020733 is to be withdrawn." (D.I. 22-1 at Entry No. 74) Petitioner did not appeal that decision.
Petitioner timely filed the instant application in January 2016. (D.I. 8)
A federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). One prerequisite to federal habeas review is that a petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by "fairly presenting" the substance of the federal habeas claim to the state's highest court, either on direct appeal or in a post-conviction proceeding, and in a procedural manner permitting the state courts to consider it on the merits. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Castille v. Peoples, 489 U.S. 346, 351 (1989).
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 exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64 (1989).
A federal court cannot review 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, 111 S.Ct. 2546. 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 during his trial created more than a possibility of prejudice; he must show that the errors worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.
Alternatively, if a petitioner demonstrates that a "constitutional violation
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 if the 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 of 28 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. 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"; 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." Harrington v. Richter, 562 U.S. 86, 98-100 (2011).
Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. 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. 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 factual decisions).
The instant application asserts twenty-nine claims, as set forth below.
In claims one, two, three, and twenty-six, petitioner contends that the police obtained the search and arrest warrants in violation of Franks v. Delaware, 438 U.S. 154 (1978), and that the Superior Court erred in not holding a hearing to consider this issue. The court concurs with the State's assertion that these claims allege a violation of petitioner's Fourth Amendment rights.
Pursuant to Stone v. Powell, 428 U.S. 465, 494 (1976), a federal court cannot provide habeas review of a Fourth Amendment claim if the petitioner had a full and fair opportunity to litigate the claim in the state courts. See also Wright v. West, 505 U.S. 277, 293 (1992). The "full and fair" hearing requirement is satisfied if the state courts provided the petitioner with a pre-trial suppression hearing and the Fourth Amendment claim was considered on appeal. See United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978); United States ex rel. Petillo v. New Jersey, 562 F.2d 903, 906-07 (3d Cir. 1977). In the Third Circuit, a petitioner can avoid the Stone bar only by demonstrating that the state system contains a structural defect that prevented full and fair litigation of the Fourth Amendment claim; "[a]n erroneous or summary resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar." Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002).
Rule 41 of the Delaware Superior Court Criminal Rules authorizes a defendant to file a pre-trial motion to suppress evidence, thereby providing a mechanism for presenting Fourth Amendment issues to the Delaware State Courts. Consequently, no structural defect in Delaware's system prevented petitioner from litigating his claim. Additionally, the fact that petitioner's pre-trial counsel did not file such a motion to suppress is immaterial to Stone's "full and fair opportunity" analysis because it does not constitute a structural defect.
It is well-established that "[s]tate courts are the ultimate expositors of state law,"
In claim eighteen, petitioner contends that the Superior Court improperly denied his state habeas petition. However, a petitioner's challenge to a state collateral proceeding is not cognizable on federal habeas review. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998)("the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state ... proceeding that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation.")(emphasis in original); Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004)(extending Hassine to any allegations of error in the course of a petitioner's post-conviction proceeding, not just to a delay of such a proceeding). Therefore, the court will deny claim eighteen for failing to allege an issue cognizable on federal habeas review.
As explained more fully below, claims four through seventeen, nineteen through twenty-five, and claim twenty-nine are deemed technically exhausted but procedurally defaulted for various reasons. However, given the repetitive nature of these claims, the court will address petitioner's argument as to why he believes he exhausted state remedies, as well as the miscarriage of justice exception to the exhaustion doctrine in the instant section. The court notes that its rejection of petitioner's exhaustion argument and the miscarriage of justice exception applies to all of the procedurally barred claims. The court will independently address the cause and prejudice test for the claims below.
In his reply to the State's answer, petitioner contends that he did not default any of his claims, because this court's issuance of its order directing petitioner to file a filled out § 2254 form application relieved him of the obligation to satisfy AEDPA's exhaustion requirement. Petitioner appears to believe that the court's acceptance of his documents for filing purposes somehow constituted a decision regarding the exhaustion requirement. This argument is unavailing. AEDPA's exhaustion pre-requisite can only be satisfied by properly filing a state post-conviction motion in state court; the filing of a federal habeas application, and a federal court's acceptance of such a filing, in no way affects a petitioner's requirement to exhaust, and does not constitute a determination that the petitioner satisfied the exhaustion requirement. To the extent the
In claim four, petitioner contends that the Superior Court should have excluded his statement to the police because he involuntarily waived his Miranda rights. The record reveals that petitioner moved to suppress his police statement on the day of trial, and the Superior Court refused to consider the motion because "the time for filing motions was over and it was a trial day, not a suppression day." Small, 2015 WL 71631, at *3. On direct appeal, petitioner challenged the Superior Court's decision and argued that the Superior Court should have suppressed his police statement. The Delaware Supreme Court affirmed the Superior Court's refusal to consider petitioner's "untimely efforts at trial to suppress his statement to the police and evidence obtained as a result of the warrants." Id.
Since petitioner presented the argument in claim four on direct appeal, he has exhausted state remedies. However, by affirming the Superior Court's refusal to consider petitioner's attempt to suppress his police statement because it was untimely, the Delaware Supreme Court articulated a "plain statement" under Harris v. Reed that its decision rested on procedural grounds. The State contends that the procedural rule regarding the timing of a suppression motion constitutes an independent and adequate procedural rule precluding federal habeas review. Whether or not the rule constitutes an independent and adequate state procedural rule is a question of first impression for this court. For the following reasons, the court concludes that the timeliness pre-requisite regarding a suppression motion constitutes an independent and adequate state law barrier to federal habeas review.
A state procedural rule is "independent" if it is independent of the federal question. See Coleman, 501 U.S. at 750; see also Leake v. Dillman, 594 Fed.Appx. 756, 758-59 (3d Cir. 2014). "A state procedural rule is adequate if it was firmly established and regularly followed at the time of the alleged procedural default." Ford v. Georgia, 498 U.S. 411, 424 (1991). To "be considered firmly established and regularly followed, (1) the state procedural rule must speak in unmistakable terms; (2) all appellate courts must have refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance must be consistent with other decisions." Lewis v. Hom, 581 F.3d 92, 105 (3d Cir. 2009)(internal citations omitted). Delaware's time limitation for suppression motions, and the Delaware Supreme Court's application of these pre-requisites to petitioner's case, satisfy all of these requirements.
Second, the Delaware Supreme Court's affirmance of the Superior Court's denial of petitioner's suppression efforts as untimely was consistent with other Delaware Supreme Court decisions. For instance, since at least 1998, the Delaware Supreme Court has regularly refused to consider suppression claims on direct appeal when the defendant has not filed a motion to suppress in Superior Court. See Davis v. State, 38 A.3d 278, 281 (Del. 2012); Miller v. State, 2010 WL 3328004, at *2 (Del. Aug. 24, 2010); Mathis v. State, 2008 WL 2083148, at *2 (Del. May 19, 2008); Pennewell v. State, 2003 WL 2008197, at *1-2 (Del. Apr. 29, 2003); Mays v. State, 2003 WL 231615, at *5 (Del. Jan. 31, 2003); Barnett v. State, 691 A.2d 614, 616 (Del. 1997)(abrogated on other grounds).
Given the Delaware Supreme Court's explicit explanation that its refusal to review the substance of petitioner's instant argument was due to the fact that petitioner's efforts to suppress his police statement were untimely, the court concurs with the State's contention that the Delaware Supreme Court relied on an independent and adequate state procedural rule in refusing to review the merits of claim four. Thus, claim four is procedurally defaulted, meaning that the court cannot review its merits 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 claim is not reviewed.
Having determined that petitioner failed to demonstrate cause, the court will not address the issue of prejudice. Therefore, the court will deny claim four as procedurally barred.
In claims five, six, and sixteen, petitioner asserts that pre-trial counsel provided ineffective assistance by failing to file a motion to suppress. Although petitioner filed a Rule 61 motion raising these claims, the Superior Court granted his request to voluntarily withdraw the Rule 61 motion in August 2015. As a result, petitioner did not present the instant claims to the Delaware Supreme Court on post-conviction appeal, which means that they are unexhausted. However, since any attempt to present these claims in a new Rule 61 motion would be time-barred under Rule 61(i)(1), the court must treat the claims as exhausted but procedurally defaulted.
Petitioner does not allege a cause for his default of these claims. To the extent the court should consider the absence of appointed counsel for petitioner's Rule 61 motion as providing cause under Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), the court concludes that it cannot
In claim seven, petitioner appears to contend that a police officer's identification of him in a search warrant and during the preliminary hearing was impermissibly suggestive. Petitioner did not present this argument to the Delaware Supreme Court. Since any attempt to obtain further review of this claim in a new Rule 61 motion would be barred as untimely under Rule 61 (i)(1) and procedurally defaulted under Rule 61 (i)(3), claim seven is deemed technically exhausted but procedurally defaulted. Petitioner does not allege any additional cause for his default of the instant claim. As such, the court will not address the issue of prejudice. Thus, the court will deny claim seven as procedurally barred.
In claim eight, petitioner contends that the State improperly used his co-defendant brother's statement against him in violation of the Confrontation Clause. Petitioner did not present this argument to the Delaware Supreme Court. Since any attempt to obtain further review of this claim in a new Rule 61 motion would be barred as untimely under Rule 61 (i)(1) and procedurally defaulted under Rule 61 (i)(3), claim eight is deemed technically exhausted but procedurally defaulted.
Petitioner does not allege any additional cause for his default of the instant claim and, as a result, the court does not need to address the issue of prejudice. Nevertheless, petitioner cannot demonstrate any prejudice caused by the default of this claim. During his trial, a police officer testified: "At some point when we interviewed [Theodore Small] on the scene, he mentioned that he was aware that his brother was keeping a gun in a safe." (D.I. 22-5 at 30) Petitioner objected, and the Superior Court sustained the objection and instructed the jury: "Ladies and gentlemen, there has been some testimony as to what Theodore Small has said. You are to disregard any testimony about Theodore Small's statements. He is not here at this point" Id. Given these circumstances, petitioner cannot establish that he would be prejudiced by the court's refusal to consider this claim. Therefore, the court will deny claim eight as procedurally barred.
In claims nine and seventeen, petitioner argues that police perjured themselves during his trial. He raised this argument in his Rule 61 motion. However, since he withdrew that motion, he never presented the claims to the Delaware Supreme Court. Any attempt to obtain further review of these claims in a new Rule 61 motion would be barred as untimely under Rule 61 (i)(1) and procedurally defaulted by Rule 61 (i)(3). Therefore, these
Petitioner does not allege any cause for his default and, even if the court were to view Martinez as providing cause, petitioner cannot demonstrate prejudice. Petitioner appears to argue that he did not "give" police the key to the safe containing the gun, because the police patted him down and found the keys in his pocket. (D.I. 22-5 at 42, 43; D.I. 22-7 at 28) This semantic argument does not establish prejudice, because the keys opened up the safe in which the gun was found. Any dispute as to how petitioner's keys went from his pocket to the police who used the keys to unlock the safe does not amount to perjury, because petitioner has not demonstrated that the police officer intentionally made a false statement or that the statement was material. See Del. Code tit. 11, §§ 1224 and 1235(a).
Petitioner also complains about the manner in which the police collected drug evidence and about purported inconsistencies on that topic. However, since petitioner was only indicted on PFBPP, he cannot show prejudice regarding any drug-related testimony that he himself elicited from police witnesses during cross-examination. For all of these reasons, the court will deny claims nine and seventeen as procedurally barred.
In claim ten, petitioner asserts that the State failed to give discovery materials previously supplied to pre-trial counsel to him personally after the Superior Court granted him permission to represent himself. Specifically, petitioner requested pictures of the Suboxone, recordings of serial numbers on money used in the controlled buys that police conducted prior to obtaining a search warrant, and photos of the keys and safe itself. Petitioner filed numerous discovery motions after his trial, but he did not appeal the Superior Court's denial of the motions. Moreover, although petitioner presented this argument in his withdrawn Rule 61 motion, he never presented it to the Delaware Supreme Court on post-conviction appeal, and any attempt to obtain further review would be barred under Rule 61 (i)(1) and Rule 61(i)(3). Thus, the claim is procedurally defaulted.
Even if the court presumes that Martinez provides cause for petitioner's default of claim ten, he cannot demonstrate prejudice. In its July 9, 2015 order, the Superior Court found:
(D.I. 22-10 at 8) The Superior Court recounted the lengthy list of discovery materials the State provided, which included a CD containing photographs. The alleged absence of photographs of drugs found in the search or serial numbers from currency used in the controlled buys preceding the search might have had some relevance to drug crimes but, again, the grand jury only indicted petitioner on PFBPP. Regarding photographs of the keys and the safe, police testified to taking photographs of the safe, but not of the keys, and to not retaining the keys in evidence. (D.I. 22-7 at 28)
Small, 2015 WL 71631, at *3-*4 (footnotes and paragraph numbers omitted). For all of these reasons, the court concludes that petitioner has not shown he will be prejudiced if the court refuses to review claim ten. Accordingly, the court will deny claim ten as procedurally barred.
In claims eleven and twenty-five, petitioner assert that the Superior Court incorrectly denied his motion for new trial because the State failed to prove that the firearm was operable. Although petitioner filed a motion for new trial, operability of the firearm does not appear to have been the basis for that motion. Additionally, petitioner did not present a claim regarding lack of evidence of operability of the firearm to the Delaware Supreme Court. Thus, these claims were not exhausted.
At this juncture, if petitioner were to file a new motion for post-conviction relief in which he raised the issue, the state courts would deny the claims under Rule 61 (i)(1) and Rule 61 (i)(3). Therefore, the claims are deemed exhausted but procedurally defaulted.
Petitioner has not asserted any cause for his default of these two claims and, as a result, the court does not need to address the issue of prejudice. Nevertheless, any attempt to demonstrate prejudice would fail. Delaware law expressly defines a firearm as "any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded. It does not include a BB gun." 11 Del. Code § 222(11); see, e.g., Poon v. State, 880 A.2d 236, 239 (Del. 2005). Since the State was not required to prove that the weapon police found in the safe with petitioner's photo identification was operable, the court will deny the instant claims as procedurally barred.
Petitioner asserts that the Superior Court deprived him of access to transcripts from the preliminary hearing in his case for use during his cross examination of police officers. Petitioner never presented the claims to the Delaware Supreme Court, and were he to do so now, they would be barred by Rule 61 (i)(1) and Rule 61 (i)(3). Thus, the claims are deemed exhausted but procedurally defaulted.
Petitioner does not assert any cause for his default. He also cannot demonstrate any prejudice from this court's refusal to
(D.I. 22-3 at 11)
The trial transcripts also reflect that petitioner used the preliminary hearing transcripts while he cross-examined at least one police witness.
(D.I. 22-5 at 38)
Given all of these circumstances, the court will deny claims twelve and twenty-four as procedurally barred.
In claim thirteen, petitioner contends that the State submitted an altered copy of his photo identification. Although petitioner presented this claim to the Delaware Supreme Court on direct appeal, that court analyzed it only for plain error under Delaware Supreme Court Rule 8 due to petitioner's failure to raise the issue during his trial in the Superior Court. See Small, 2015 WL 71631, at *3 n.9. Rule 8 is an independent and adequate state law ground that precludes federal habeas review, absent a showing of cause and prejudice or a miscarriage of justice. See Campbell, 515 F.3d 175. Therefore, the claim is procedurally defaulted.
Petitioner does not assert cause for his default. Although the court does not need to address the issue of prejudice in these circumstances, the record demonstrates that petitioner will not prejudiced if the court does not review his instant argument. As the Delaware Supreme Court held on direct appeal,
Small, 2015 WL 71631, at *3. Thus, the court will deny claim thirteen as procedurally barred.
Next, petitioner asserts that the State misled jurors by: telling them they did not need photographic evidence of the keys police used to open the safe, misrepresented petitioner's brother's role, lied about petitioner's address, and improperly argued that more than one person could possess property. Petitioner did not present this argument to the Delaware Supreme Court, and any attempt to do so in a new Rule 61 motion and subsequent appeal would be barred under Rule 61 (i)(1) and Rule 61 (i)(3). Thus, claim fourteen is exhausted but procedurally defaulted.
Petitioner does not assert any cause for his default of the instant claim. In the absence of cause, the court will not address the issue of prejudice. Accordingly, the court will deny claim fourteen as procedurally barred.
In claim fifteen, petitioner contends that the Superior Court improperly denied his motion to continue his trial. Petitioner presented this claim in his withdrawn Rule 61 motion, but he did not present this claim to the Delaware Supreme Court. Any attempt to exhaust this claim would be barred by Rule 61 (i)(1) and Rule 61(i)(3). Thus, the claim is exhausted but procedurally defaulted.
Petitioner does not allege cause for his default. Moreover, even if the court presumes Martinez provides cause for the default of this claim, petitioner cannot demonstrate prejudice. Petitioner does not suggest what evidence he would have presented or what witnesses he would have called had the trial been delayed. Thus, the court will deny claim fifteen for being procedurally barred.
In claims nineteen, twenty, and twenty-one, petitioner contends that appellate counsel should have raised certain issues rather than asserting that he could not find any meritorious issues to raise on appeal and that he should not have filed a motion to withdraw. Petitioner never presented these claims to the Delaware Supreme Court. At this juncture, he would be time-barred from presenting the argument in a new Rule 61 motion under Rule 61 (i)(1). Thus, the claims are procedurally defaulted.
Petitioner does not allege any cause for his default of the instant claims. In the absence of cause, the court does not need to address the issue of prejudice. Nevertheless, petitioner has failed to demonstrate any indication that the Delaware Supreme Court's decision on appeal would have been different if appellate counsel had raised the issues petitioner contends should have been raised on appeal. Accordingly, the court will deny claims nineteen, twenty, and twenty-one as procedurally barred.
In claim twenty-two, petitioner appears to contend that the Delaware Supreme Court erred by failing to appoint new appellate counsel to represent him on direct appeal when his appellate counsel filed a no merit brief and moved to withdraw. This argument is also unavailing. The State contends that this claim is not cognizable on federal habeas review, but the court is not persuaded. However, the record reveals that petitioner did not exhaust state remedies for this claim because he did not present it to the Delaware Supreme Court. Therefore, the court cannot consider the merits of the argument absent a showing of cause and prejudice, or a showing that a miscarriage of justice
As with the majority of petitioner's other claims, he does not assert any cause for his default. In the absence of cause, the court does not need to address the issue of prejudice. Nevertheless, for the following reasons, the court concludes that petitioner cannot demonstrate that he will suffer prejudice if claim twenty-two is denied as procedurally barred.
To begin, even though petitioner represented himself at trial, he requested, and was appointed, counsel to represent him during his direct appeal. See Small, 2015 WL 71631, at *1. The appellate attorney was not the same attorney who served as stand-by counsel to petitioner during his trial.
In turn, as explained by the Delaware Supreme Court on direct appeal:
Small, 2015 WL 71631, at *1. After setting forth and applying the applicable United States Supreme Court precedent governing motions to withdraw, id., the Delaware Supreme Court opined that
Small, 2015 WL 71631, at *4.
The Supreme Court has held that an attorney may withdraw from representing a client on appeal, so long as the attorney follows a procedure that "affords adequate and effective appellate review to [the] indigent defendant[]" and, therefore, "reasonably ensures that an indigent appeal will be resolved in a way that is related to the merit of that appeal." Smith v. Robbins, 528 U.S. 259 (2000). In Anders v. California,
In Delaware, motions to withdraw from representing an appellant are governed by Delaware Supreme Court Rule 26(c) which, in turn, is modeled on the procedure set forth in Anders. See Del. Sup. Ct. R. 8, Committee Comment. The record in petitioner's case reveals that counsel followed the proper procedure for withdrawal under Rule 26 and, therefore, he also followed the proper withdrawal procedure articulated in Anders. For example, counsel thoroughly reviewed the record, determined that there were no meritorious appellate claims, and drafted a Rule 26 motion to withdraw as well as an appellate brief. (D.I. 8-1 at 84-94; D.I.9 at 110) Counsel then provided petitioner with a copy of the motion to withdraw, the appellate brief, and a letter advising petitioner that he could provide written points that he wanted appellate counsel to include in the brief within thirty days. Petitioner did not provide appellate counsel with any such points, but he did provide the Delaware Supreme Court with materials he wished that court to consider in connection with the appeal. (D.I. 8-1 at 84-94; D.I.9 at 110) Finally, the Delaware Supreme Court conducted its own independent review of the record, determined that counsel made a conscientious examination of the record before moving to withdraw, and concluded that petitioner's appeal was wholly without merit and that his case was "devoid of any arguably appealable issue." Small, 2015 WL 71631, at *4. Given these circumstances, petitioner has failed to demonstrate sufficient prejudice to excuse his default. Accordingly, the court will deny claim twenty-two as procedurally barred.
Next, petitioner contends that the trial transcripts contain inaccuracies and that the court reporter destroyed the transcript of Corporal Gigliotti's June 21, 2013 testimony. This claim was never presented to the Delaware Supreme Court, and is procedurally defaulted because any further review would be barred by Rule 61 (i)(1) and Rule 61(i)(3).
Petitioner does not assert any cause for his default of this claim which, in turn, relieves the court of a duty to address the issue of prejudice. Nevertheless, petitioner cannot show prejudice. In its July 9, 2015 order denying petitioner's discovery related motions, the Superior Court opined that
The record is clear that Cpl. Gigliotti did not testify:
(D.I. 9 at 80-81). Given these circumstances, petitioner cannot show what prejudice he would suffer from this court's refusal to consider the claim. Hence, the court will deny claim twenty-three as procedurally barred.
During his defense case, petitioner called three police officers as witnesses (Casey Bouldin, Kevon Cumberbatch, and Roberto Herrera-Cortes). During the State's cross examination of Detective Cumberbatch, petitioner objected on the basis that this was not the officer he wanted to call, and asked the court to strike all of Cumberbatch's testimony. (D.I. 22-7 at 15)
In claim twenty-nine, petitioner contends that Detective Bouldin should not have testified, because he wanted to call a police officer who arrested him whose physical description he gave as a bald headed black man with glasses, who actually was not bald, but had been wearing a ski mask at the time of petitioner's arrest. Petitioner seems to suggest that he actually intended to call Detective Hererra-Cortes.
As an initial matter, the court is not persuaded that the instant claim asserts an issue cognizable on federal habeas review. However, even if it is cognizable, the claim is procedurally barred. Petitioner did not present claim twenty-nine to the Delaware Supreme Court, and any attempt to exhaust state remedies at this juncture would be barred by Rule 61 (i)(1) and Rule 61(i)(3). Petitioner does not assert any cause for his default of the claim. He also cannot demonstrate any prejudice. Petitioner seems to suggest that the officer he really wanted to call to the stand was Detective Herrera-Cortes, yet Detective Herrera-Cortes testified during the State's case-in-chief and when petitioner called him in the defense case. Accordingly,
In claims twenty-seven and twenty-eight, petitioner contends that the State selectively prosecuted him because it did not charge other people in the residence with weapons offenses. These claims are exhausted since petitioner presented them to the Delaware Supreme Court on direct appeal. The Delaware Supreme Court denied these claims on their merits. Therefore, petitioner will only be entitled to habeas corpus relief if the Delaware Supreme Court's decision was either contrary to, or an unreasonable application of, clearly established federal law.
The clearly established federal law governing selective prosecution claims was set forth in Wayte v. United States, 470 U.S. 98, 607 (1985). In Wayte, the Supreme Court opined that the executive branch has "`broad discretion' as to whom to prosecute." Wayte, 470 U.S. at 607 (quoting United States v. Goodwin, 457 U.S. 368, 380 n. 11 (1982). "[T]he decision to prosecute is particularly ill-suited to judicial review." Wayte, 470 U.S. at 607. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Id. The constitution only limits prosecutorial discretion when "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. at 608 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).
As an initial matter, even though the Delaware Supreme Court did not cite to Wayte when denying the instant claim, the Delaware Supreme Court case to which it did cite (Albury v. State, 551 A.2d 53, 61 (Del. 1988)) cited to Wayte. Therefore, the Delaware Supreme Court's decision is not contrary to clearly established federal law.
The court also concludes that the Delaware Supreme Court reasonably applied Wayte to petitioner's case. When denying the instant claims, the Delaware Supreme Court opined that:
Small, 2015 WL 71631, at *4 (footnotes and paragraph numbers omitted).
In this case, petitioner has failed to establish a prima facie claim of selective prosecution, because he does not contend the State prosecuted him based on any unjustifiable standard. As the Delaware Supreme Court observed, the women present in the residence whom police did not arrest were not persons prohibited from possessing a firearm. The State also prosecuted petitioner's brother regarding the
Presently pending before the court is petitioner's motion for representation by counsel. (D.I. 15) The court has already determined that petitioner's application must be denied. Therefore, the court will dismiss as moot petitioner's motion for representation by counsel.
When a district court issues a final order denying a § 2254 application, 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).
The court has concluded that petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 should be denied as procedurally barred. Reasonable jurists would not find this conclusion to be debatable. Consequently, the court declines to issue a certificate of appealability.
For the reasons stated, petitioner's application for habeas relief filed pursuant to 28 U.S.C. § 2254 is denied. An appropriate order shall issue.
For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that:
1. Petitioner Warren Small's application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED and the relief requested therein is DENIED. (D.I. 8)
2. Petitioner's motion for representation by counsel is DISMISSED as moot. (D.I. 15)
3. The court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
