RICHARD G. ANDREWS, District Judge.
Presently pending before the Court is Petitioner Frederick H. Mitchell's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 1) The State filed an Answer in opposition. (D.I. 6) For the reasons discussed, the Court will dismiss the Petition.
In August 2014, Petitioner was indicted on charges of aggravated drug dealing, aggravated possession of heroin, second degree conspiracy, possession of marijuana, resisting arrest, tampering with physical evidence, failure to wear a seatbelt, and two counts of possession of drug paraphernalia. (D.I. 6 at 1) On January 21, 2015, Petitioner pled guilty to possession of heroin in a Tier 4 quantity (as the lesser included offense of possession of heroin in a Tier 5 quantity) and second degree conspiracy. Id. The Superior Court sentenced Petitioner to a total of seventeen years of Level V incarceration, suspended after eight years for eighteen months of Level III probation. See Mitchell v. State, 128 A.3d 994 (Table), 2015 WL 7575022, at *1 (Del. Nov. 24, 2015). Petitioner filed a motion to reduce sentence on April 9, 2014, which the Superior Court denied. (D.I. 6 at 2) He appealed his convictions and sentences, and the Delaware Supreme Court affirmed the Superior Court's decision on November 24, 2015. See Mitchell, 2015 WL 7575022, at *2.
In January 2016, Petitioner filed a pro se motion for post-conviction relief pursuant to Rule 61. See State v. Mitchell, 2016 WL 1621580, at *1 (Del. Super. Ct. Mar. 22, 2016). The Superior Court denied the Rule 61 motion. Id. Petitioner appealed, and the Delaware Supreme Court affirmed the Superior Court's judgment in August 2016. See Mitchell v. State, 145 A.3d 508 (Table), 2016 WL 4191930, at *2 (Del. Aug. 4, 2016).
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); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). The AEDPA states, in pertinent part:
28 U.S.C. § 2254(b)(1).
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 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).
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. 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 (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").
Petitioner timely filed his § 2254 Petition, which asserts the following four Claims: (1) defense counsel provided ineffective assistance by advising him to enter a guilty plea without first obtaining a forensic report and/or investigating the drug evidence in his case; (2) the State failed in its duty to test the drugs and to provide him with the test results and chain of custody information before he entered his plea; (3) the Superior Court abused its discretion in sentencing him without a forensic report proving the alleged drugs were an illegal substance; and (4) defense counsel coerced him into pleading guilty by untruthfully telling him that there was a lab report that showed the substances had been confirmed as illegal drugs despite the fact that there was no lab report.
In Claim One, Petitioner contends that defense counsel was ineffective for advising him to plead guilty without first investigating the chain of custody of the drugs and obtaining a forensic report concerning the result of any drug evidence testing. (D.I. 1 at 6) According to Petitioner, without such investigation, defense counsel had no way of knowing the true weight of the drugs or whether they were an illicit substance.
The clearly established Supreme Court precedent governing ineffective assistance of counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S. 668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness," with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. A petitioner must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). In the context of a guilty plea, a petitioner satisfies Strickland's prejudice prong by demonstrating that, but for counsel's error, there is a reasonable probability that he would have insisted on proceeding to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). A court can choose to address the prejudice prong before the deficient performance prong, and reject an ineffective assistance of counsel claim solely on the ground that the defendant was not prejudiced. See Strickland, 466 U.S. at 698. Finally, although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
With respect to the first prong of the § 2254(d)(1) inquiry, a "state court decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court precedent, or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from that reached by the Supreme Court." Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). In this case, the Delaware Supreme Court's decision was not contrary to clearly established federal law because it correctly identified the Strickland/Hill standard applicable to Claim One.
The Court must also determine if the Delaware Supreme Court reasonably applied the Strickland/Hill standard to the facts of Petitioner's case. When performing the second prong of the § 2254(d) inquiry, the Court must review the Delaware Supreme Court's decision with respect to Petitioner's ineffective assistance of counsel claim through a "doubly deferential" lens.
On post-conviction appeal, the Delaware Supreme Court denied as meritless Petitioner's contention that defense counsel was ineffective for not obtaining a forensic analysis of the seized drugs before advising him to plead guilty. The Delaware Supreme Court determined that: (1) Petitioner's statements during his guilty plea colloquy belied his assertion that defense counsel's failure to obtain the test during the pre-plea time period coerced him into entering a guilty plea; and (2) Petitioner failed to demonstrate how counsel's failure to obtain a lab report prejudiced him. For the reasons set forth below, the Court concludes that this decision involved a reasonable application of the Strickland/Hill standard.
It is well-settled that "[s]olemn declarations in open court carry a strong presumption of verity" that create a "formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Here, the transcript of Petitioner's plea colloquy contains his clear and explicit statements that he discussed his case with defense counsel and he was satisfied with his opportunity to confer with defense counsel. (D.I. 10-1 at 30-32, 34, 36) Petitioner explicitly acknowledged that he and defense counsel had reviewed the evidence and penalties for the two charges to which he was pleading guilty. (Id. at 34) Petitioner understood the constitutional rights he was waiving by pleading guilty, and also understood that he faced a total maximum sentence of seventeen years if convicted at trial. (Id. at 32-36) In turn, the Truth-In-Sentencing Guilty Plea Form signed by Petitioner indicates that he knowingly and voluntarily entered into his plea agreement; he was satisfied with defense counsel's representation and that defense counsel had fully advised him of his rights; he had not been promised anything not contained in the plea agreement; he was not forced or threatened to enter the plea agreement; and he knew he faced a possible total maximum sentence of seventeen years for the offense in the plea agreement. (D.I. 10-2 at 16)
Petitioner's unsupported allegations in this proceeding fail to provide compelling evidence as to why the statements he made during the plea colloquy should not be presumptively accepted as true. Consequently, the Delaware Supreme Court reasonably applied Blackledge in holding that Petitioner was bound by the representations he made during the plea colloquy and on the Truth-In-Sentencing form.
In addition, Petitioner cannot demonstrate a reasonable probability that he would have gone to trial but for defense counsel's failure to obtain forensic testing of the drugs seized by the police. First, he does not assert that forensic testing of the drug evidence would have shown that the drugs were not heroin. Second, there was substantial evidence of Petitioner's guilt. The police recovered approximately 5,374 small bags of suspected heroin, weighing 80.67 grams,
Third, Petitioner received a significant benefit by pleading guilty. In exchange for his plea, the State allowed Petitioner to plead guilty to a lesser-included offense and dropped several charges, significantly reducing the amount of prison time he faced.
Given all of these circumstances, Petitioner cannot satisfy the prejudice prong of the Strickland/Hill standard. Accordingly, the Court concludes that the Delaware Supreme reasonably applied clearly established federal law in denying Claim One.
In Claim Two, Petitioner contends the State had a duty to test the drug evidence in his case and provide him with a report of the test results so that he could "craft an intelligent defense or enter an intelligent plea deal." (D.I. 1 at 8) Petitioner presented this Claim to the Superior Court, which denied it as waived by Petitioner's voluntary plea of guilty. See Mitchell, 2016 WL 1621580, at *3. Petitioner also presented Claim Two on post-conviction appeal, but the Delaware Supreme Court did not specifically address it. See Mitchell, 2016 WL 4191930, at *1. In these circumstances, the Court must review Claim Two de novo.
Although not entirely clear, Petitioner appears to contend that his plea was unintelligent because he did not have all the relevant information (i.e., a lab report proving he possessed illegal drugs) when deciding whether to enter a guilty plea. Liberally construing this argument as corresponding with the Brady v. Maryland argument Petitioner presented on post-conviction appeal (D.I. 10-4 at 9-10), the Court views Claim Two as alleging that the State violated federal constitutional law by failing to provide Petitioner with a lab report concerning the drug evidence test results before he entered his plea.
Petitioner's argument is frivolous. Although the State is constitutionally required to disclose material exculpatory or impeachment evidence prior to a defendant's criminal trial,
Moreover, in Tollett v. Henderson, the Supreme Court held:
Tollett v. Henderson, 411 U.S. 258, 267 (1973). A voluntary and knowing guilty plea bars a defendant from raising antecedent non-jurisdictional
Accordingly, the Court will deny Claim Two as meritless.
Claim Three asserts the following: the "Superior Court abused its discretion in sentencing [Petitioner] should have been provided with a forensic analysis report on the drugs to prove a positive test result, evidentiary value was not met." (D.I. 1 at 9) The Court liberally construes Claim Three as asserting an argument that the sentencing court violated Petitioner's due process rights by determining his sentence without referring to a forensic lab report to verify the drug identity and/or quantity.
The record reveals that Petitioner did not present Claim Three to the Delaware state courts as a federal constitutional issue. For instance, on direct appeal, counsel's Rule 26(c) brief
Given this record, the Court concludes that Petitioner did not fairly present the instant federal due process/sentencing argument to the Delaware Supreme Court on direct or post-conviction appeal. Consequently, Claim Three is unexhausted.
At this juncture, any attempt by Petitioner to raise Claim Three in a new Rule 61 motion would be barred as untimely under Delaware Superior Court Criminal Rule 61(i)(1). See DeAngelo v. Johnson, 2014 WL 4079357, at *12 (D. Del. Aug. 15, 2014). Although Rule 61(i)(1) 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 Claim. Similarly, the exceptions to Rule 61(i)(1)'s time-bar contained in Rule 61(i)(5) and (d)(2) do not apply to Petitioner's case, because he does not allege actual innocence, lack of jurisdiction, or that a new rule of constitutional law applies to this Claim.
Since Petitioner is precluded from exhausting Claim Three at this point, the Court must treat the Claim as technically exhausted but procedurally defaulted. Consequently, the Court Court cannot review the merits of Claim Three 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 Claim Three in federal due process terms on post-conviction appeal. Although the absence of cause obviates the Court's obligation to address prejudice, the Court nevertheless finds that Petitioner cannot establish prejudice. The Due Process Clause prohibits a sentencing court from relying on materially false or unreliable information when imposing a sentence. See United States v. Tucker, 404 U.S. 443, 447-49 (1972); Townsend v. Burke, 334 U.S. 736 (1948). The possibility that the sentencing court in this case may have determined Petitioner's sentence without referring to a forensic report regarding the drug evidence
Finally, Petitioner has not satisfied the miscarriage of justice exception to the procedural default doctrine because he has not provided new reliable evidence of his actual innocence. Accordingly, the Court will deny Claim Three as procedurally barred from federal habeas review.
In his final Claim, Petitioner asserts that defense counsel coerced him to plead guilty by telling him there was a forensic report indicating a positive test result for the drugs, and that he would lose if he went to trial. (D.I. 1 at 11) According to Petitioner, defense counsel knowingly deceived him because no such test results existed. Id.
The record reveals that Petitioner did not present Claim Four to the Delaware state courts on post-conviction appeal.
Petitioner has not demonstrated cause because he does not provide any reason for failing to present the instant Claim to the state courts. In the absence of cause, the Court will not address the issue of prejudice. Moreover, the miscarriage of justice exception to the procedural default doctrine is inapplicable because the Petitioner has not provided new reliable evidence of his actual innocence. Accordingly, the Court will deny Claim Four as procedurally barred from federal habeas review.
In his AEDPA Election Form, filed nine months after the State filed its Answer,
Amendments to habeas petitions are governed by Federal Rule of Civil Procedure 15. See United States v. Duffus, 174 F.3d 333, 336 (3d Cir. 1999). Since federal habeas corpus actions are subject to a one-year statute of limitations,
A court may also deny leave to amend where the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); Middlebrook v. Carroll, 470 F.Supp.2d 411, 419 (D. Del. 2007), aff'd 293 F. App'x 858 (3d Cir. 2008). An amendment is futile if the proposed pleading could not withstand a motion to dismiss. See City of Cambridge Re. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 278 (3d Cir. 2018). Examples of futility in the habeas context include time-barred amendments that do not relate back to the original petition, procedurally barred amendments, and amendments lacking arguable merit. See Bernard v. United States, 2019 WL 3719405, at *2 (D.N.J. Aug. 5, 2019)(noting that amending with time-barred claim that does not relate back would be futile); Hall v. Phelps, 641 F.Supp.2d 334, 342 (D. Del. 2009).
In this case, although the Petition is timely, Petitioner filed his amendment request long after the expiration of AEDPA's limitations period. Consequently, Petitioner's three new proposed Claims are time-barred and, therefore, impermissible amendments, unless they relate back to the original Petition.
The premise of proposed Claim Five is that defense counsel provided ineffective assistance by failing to provide Petitioner with a copy of the forensic report containing the drug test results. This argument is similar to assertions raised in Claim One (defense counsel was ineffective for advising Petitioner to enter a guilty plea without first obtaining a forensic report) and Claim Four (defense counsel provided ineffective assistance by untruthfully telling Petitioner there was a forensic report indicating a positive test result for the drugs, and that he would lose if he went to trial, because Petitioner asserts that no such test results existed). Since these three Claims arise out of a common core of operative facts, proposed Claim Five is not time-barred.
Nevertheless, the Court will deny Petitioner's request to include Claim Five in the instant Petition because such an amendment would be futile. The Court has concluded that Claim One lacks merit and that Claim Four is procedurally barred from federal habeas review. Given proposed Claim Five's similarity to both, as well as Petitioner's failure to exhaust state remedies for Claim Five, the Court concludes that Claim Five is procedurally barred and lacks arguable merit.
Petitioner's request to amend his Petition to include Claims Six and Seven is similarly unsuccessful. First, Claims Six and Seven cannot escape being time-barred under the relation-back doctrine because they are not tied to a common core of operative facts with any of the Claims in the original Petition. The ineffective assistance of counsel allegations in the original Petition focus on defense counsel's failure to obtain a copy of the drug evidence test results, and do not even remotely refer to the allegations in Claims Six and Seven regarding defense counsel's failure to file any pre-plea or pre-trial motions. See United States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999)(a completely new claim of ineffective assistance of counsel does not necessarily relate back to an earlier general ineffective assistance of counsel claim). Second, even if Claims Six and Seven were not time-barred, granting Petitioner leave to include them in his Petition would be futile because they are procedurally barred from habeas review. The record reveals that Petitioner did not present proposed Claims Six and Seven to the Delaware state courts in his Rule 61 proceeding, he is barred from returning to state court to exhaust state remedies for the Claims, and he has not demonstrated any cause and prejudice for excusing his default, nor presented new reliable evidence of his innocence.
In sum, Claims Five, Six, and Seven either lack arguable merit, are time-barred, or are procedurally barred. Therefore, the Court will deny Petitioner's request to amend on the basis of futility.
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). 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 the instant Petition does not warrant relief. Reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate of appealability.
For the reasons discussed, the Court concludes that the Petition must be denied. An appropriate Order will be entered.
Richter, 562 U.S. at 105 (internal citations omitted).
Mitchell, 2015 WL 7575022, at *2. The Court has not found any reference to Petitioner's "closed mind" argument in the Rule 26(c) opening appellate brief or in the Delaware Supreme Court's appellate decision.
