Gee v. Attorney General of the State of Delaware et al, No. 1:2011cv00416 - Document 21 (D. Del. 2014)
Court Description: MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 4/2/14. (cla, )
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TERRELL GEE, ) ) Petitioner, ) ) ) v. Civ. No. 11-416-SLR I ) DAVID PIERCE, Warden, and and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents. 1 ) ) ) ) ) Terrell Gee. Prose petitioner. Elizabeth R. McFarlan, Deputy Attorney General, Delaware Departme t of Justice, Wilmington, Delaware. Counsel for respondents. MEMORANDUM OPINION April J. , 2014 Wilmington, Delaware 1 Warden David Pierce replaced former Warden Perry Phelps, a original party to this case. See Fed. R. Civ. P. 25(d). I. INTRODUCTION Currently before the court is Terrell Gee's ("petitioner") amende application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (D. I. 9) For he reasons that follow, the court will dismiss petitioner's § 2254 application as time-bar ed by the oneyear period of limitations prescribed in 28 U.S.C. § 2244(d)(1 ). II. FACTUAL AND PROCEDURAL BACKGROUND On July 16, 2006, the Wilmington Police Department received a complaint that a 1 I ten year old girl ("S.D.") had been sexually abused. (D. I. 16 at 1) S.D.jwas interviewed at the Chidren's Advocacy Center on August 10, 2006. She told a forersic investigator ! that petitioner had raped her on more than twenty-one occasions betwten January 2005 and June 2006. /d. Petitioner and S.D. were cousins. See Stat~ v. Gee, 2009 ! WL 3720165, at *1 (Del. Super. Nov. 3, 2009). Petitioner was subsequently indicted on five counts of second d+gree rape. In i March 2007, a Superior Court jury found petitioner guilty of three of th~ five rape I counts. On June 22, 2007, the Superior Court sentenced petitioner to~ total of thirty! six years at Level V incarceration, suspended after thirty years for a tet of probation. The Delaware Supreme Court affirmed petitioner's convictions and serltence on June 4, ! 2008. See Gee v. State, 950 A.2d 658 (Table), 2008 WL 2267186 (Ddl. June 4, 2008). I On June 3, 2009, petitioner filed in the Superior Court his first mption for post1 conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D. I. 18, Del. Super. Crim. Dkt. Entry No. 33) The Superior ourt denied the Rule 61 motion on November 3, 2009. See State v. Gee, 2009 WL 37 0165 (Del. Super. Nov. 3, 2009). Petitioner appealed, and the Delaware Suprem Court affirmed the Superior Court's judgment on September 23, 2010. See Gee v. S te, 5 A. 3d 630 (Table), 2010 WL 3719891 (Del. Sept. 23, 2010). Petitioner filed a sedond Rule 61 motion on January 24, 2011. See State v. Gee, 2011 WL 880851, at J1 n.14 (Del. Super. Feb. 23, 2011). The Superior Court denied the motion on Febr ary 23, 2011, and it does not appear that petitioner appealed that decision. I Petitioner's pending § 2254 application asserts one claim that d~fense counsel I provided ineffective assistance by not requesting the minor victim S.D. Ito be examined ! by a defense medical expert. The State filed an answer, asserting tha~ the application I should be denied as time-barred or, alternatively, as procedurally barred. (D.I. 16) The application is ready for review. Ill. ONE YEAR STATUTE OF LIMITATIONS The Antiterrorism and Effective Death Penalty Act of 1996 ("AE PA") was signed into law by the President on April 23, 1996, and it prescribes a ne-year period of limitations for the filing of habeas petitions by state prisoners. 28 U. .C. § 2244(d)(1). The one-year limitations period begins to run from the Ia est of: (A) the date on which the judgment became final by the conclus on of direct review or the expiration of the time for seeking such review; I I (B) the date on which the impediment to filing an application crerted by State action in violation of the Constitution or laws of the United State' is removed, if the applicant was prevented from filing by such State action; 1 (C) the date on which the constitutional right asserted was initial y recognized by the Supreme Court, if the right has been newly recognized by th Supreme Court and made retroactively applicable to cases on collateral review; r (D) the date on which the factual predicate of the claim or claim presented could have been discovered through the exercise of due diligen e. 2 28 U.S.C. § 2244(d)(1). Petitioner's § 2254 application, dated May 2011, is subject to th one-year limitations period contained in§ 2244(d)(1). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Petitioner does not allege, and the court does not discern, an facts triggering the application of§ 2244(d)(1 )(B), (C), or (D). Thus, the one-year peri d of limitations I in this case began to run when petitioner's conviction became final un1er § 2244(d)(1)(A). I Pursuant to§ 2244(d)(1)(A), if a state prisoner appeals a state ~ourt judgment I but does not seek certiorari review, the judgment of conviction become~ final ninety I days after the state appellate court's decision. See Kapral v. United S~ates, 166 F.3d 565, 575, 578 (3d Cir. 1999); Jones v. Morton, 195 F.3d 153, 158 (3d ¢ir. 1999). Here, I the Delaware Supreme Court affirmed petitioner's conviction and sent,nce on June 4, 2008, and he did not seek certiorari review. Therefore, petitioner's co1viction became final on September 2, 2008 and, to comply with the one-year limitation~ period, he had I to file his§ 2254 application by September 2, 2009. See Wilson v. Be~rd, 426 F.3d I 653 (3d Cir. 2005)(holding that former Federal Rule of Civil Procedure p(a) and (e) applies to federal habeas petitions). I In May 2011, petitioner filed in this court a handwritten letter sta ing that he was wrongfully convicted of rape and that he did not receive a fair trial or di ect appeal. (0.1. 1) The letter is dated May 6, 2011. The court issued its standard AED A order 1 informing petitioner of his rights, and provided him with a form § 2254 ~etition to be 1 I filled out. (D. I. 7) Petitioner filed the form petition as his amended hab as application, and the amended application is dated August 18, 2011. (D. I. 9) The 3 ate contends that the date of filing should be viewed as August 18, 2011, the date o the amended application. However, the court views petitioner's initial handwritten le eras providing the relevant filing date for limitations purposes, 2 because that letter cle rly asserts a request for federal habeas relief. As such, the petitioner filed the insta t application on May 6, 2011. 3 1 Given these circumstances, the application is time-barred and +auld be I dismissed, unless the limitations period can be statutorily or equitably tplled. See Holland v. Florida, 560 U.S. 631, 645 (201 O)(equitable tolling); 28 U.S.C. § I 2244(d)(2)(statutory tolling). The court will discuss each doctrine in turh. A. Statutory Tolling Pursuant to§ 2244(d)(2), a properly filed state post-conviction motion tolls '! AEDPA's limitations period during the time the action is pending in the ~tate courts, I including any post-conviction appeals, provided that the motion was fil~d and pending ! I before the expiration of AEDPA's limitations period. See Swartz v. Meters, 204 F.3d i 417, 424-25 (3d Cir. 2000); Price v. Taylor, 2002 WL 31107363, at *2 (p. Del. Sept. 23, I 2002). Here, petitioner filed his first Rule 61 motion on June 3, 2009. the Superior I Court denied the motion, and the Delaware Supreme Court affirmed thft decision on September 23, 2010. Thus, petitioner's first Rule 61 motion tolled the !limitations period 2 Aithough the court views petitioner's handwritten letter as the r levant document for limitations purposes, it views petitioner's amended and more compr hensible application as the relevant document for discerning his grounds for ha eas relief. 3 Applying the prison mailbox rule, the court adopts as the filing ate the date on the letter, May 6, 2011. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003); Woods v. Kearney, 215 F. Supp. 2d 458, 460 (D. Del. 2002)(date on p tition is presumptive date of mailing and, thus, of filing). 4 from June 3, 2009 through September 23, 2010. When petitioner filed his Rule 61 motion on June 3, 2009, 273 days of AEDPA's I limitations period had already expired. The limitations clock started to run again on September 24, 2010, and ran the remaining ninety-two days without in~erruption until the limitations period expired on December 27, 2010. 4 Although petitiolner filed a ! second Rule 61 motion on January 24, 2011, that motion was filed aft,r the expiration of the limitations period and has no statutory tolling effect. Therefore, t~e application is i time-barred unless equitable tolling applies. B. Equitable Tolling The one-year limitations period may be tolled for equitable reas1ns in rare circumstances when the petitioner demonstrates "(1) that he has been !pursuing his rights diligently, and (2) some extraordinary circumstance stood in his tay and prevented timely filing." Holland, 560 U.S. at 640 (emphasis added). ~quitable tolling is not available where the late filing is due to the petitioner's excusablelneglect. /d.; Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 618-19 (3d Cirf 1998). ! Consistent with these principles, the Third Circuit has explained that e~uitable tolling of ' AEDPA's limitations period may be appropriate in the following circum,tances: (1) where the defendant actively misled the plaintiff; I (2) where the plaintiff was in some extraordinary way prevented! from asserting i his rights; or (3) where the plaintiff timely asserted his rights mistakenly in th+ wrong forum. Jones, 195 F.3d at 159. 4 The limitations period actually expired on December 25, 2010, Saturday. Therefore, the limitations period extended through the end of day on M nday, December 27, 2010. See Fed. R. Civ. P. 6(a)(1)(C). 5 Petitioner does not explicitly assert, and the court cannot discer , any reason justifying the application of the equitable tolling doctrine to the circums ances of his case. To the extent petitioner's statement that "an exam would have s~own that the ! I alleged victim was never penetrated nor was she sexually active but st~ll a virgin" should i be viewed as an attempt to trigger equitable tolling on the basis of act~al innocence, it is unavailing. (0.1. 9 at 13) Notably, neither the Supreme Court nor thf Third Circuit have determined whether a credible claim of actual innocence can eq~itably toll AEDPA's limitations period. See, e.g., Teagle v. Diguglielmo, 336 F. A!PP'x 209, 212-13 (3d Cir. 2009)(non-precedential); McKeever v. Warden SCI-Graterford,! 486 F.3d 81, 84 n.5 (3d Cir. 2007). Nevertheless, even if a petitioner's actual innocenc~ could warrant I equitable tolling, petitioner would have to demonstrate (a) "new reliabld evidence" that was previously unavailable and establishes that it is more likely than nr that no reasonable juror would have convicted him, and (b) that he exercised rrasonable diligence in bringing his claim. See Schlup v. Delo, 513 U.S. 298, 324,1327-28 (1995); Teagle, 336 F. App'x. at 212-13; Reed v. Harlow, 2011 WL 4914869 a~ *2 n.2 (3d Cir. ! Oct. 17, 2011)(non-precedential). In addition to his statement regardinp S.D.'s virginity, petitioner has circled a portion of defense counsel's Rule 61 affidavit w~erein defense counsel states that he is not convinced that the jury made the correct ~ecision and that he believes the complaining witness will eventually recant her testimony. (D. I. 11) However, neither of these statements constitute new reliable evidence jot petitioner's I actual innocence. Thus, petitioner's assertion of actual innocence doe~ not provide a i ! basis for equitable tolling. Finally, to the extent petitioner's untimely filing was the result of 6 miscalculation regarding the one-year filing period, such mistakes do not warrant equi ably tolling the limitations period. See Taylorv. Carroll, 2004 WL 1151552, at *5-6 (D Del. May 14, 2004). Accordingly, the court will dismiss the application as time-barre .5 IV. CERTIFICATE OF APPEALABILITY I I 1 When a district court issues a final order denying a§ 2254 appliFation, the court I must also decide whether to issue a certificate of appealability. See 3~ Cir. L.A.R. 22.2 (2011 ). A certificate of appealability is appropriate when a petitioner mjakes a "substantial showing of the denial of a constitutional right" by I demonstr~ting "that reasonable jurists would find the district court's assessment of the con,titutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 J.s. 473, 484 I (2000). If a federal court denies a habeas application on procedural gro~nds without reaching the underlying constitutional claims, the court is not required tp issue a I certificate of appealability unless the petitioner demonstrates that jurist~ of reason would find it debatable: (1) whether the application states a valid claim lof the denial of a constitutional right; and (2) whether the court was correct in its proced~ral ruling. /d. "Where a plain procedural bar is present and the district court is correc~ to invoke it to dispose of the case, a reasonable jurist could not conclude either that ~he district court I erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484. The court has concluded that petitioner's application for a writ o~ habeas corpus The court's conclusion that the instant application is time-barre~ obviates the need to discuss the State's alternative reason for denying the applicati~n. 5 7 pursuant to 28 U.S.C. § 2254 is time-barred. Reasonable jurists wouldl not find this I conclusion to be debatable. Consequently, the court declines to issue a certificate of appealability. V. CONCLUSION 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. 8
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