Fatir v. Thomas
| Decision Date | 13 July 2000 |
| Docket Number | No. Civ.A. 97-79 GMS.,Civ.A. 97-79 GMS. |
| Parties | Amir FATIR, Petitioner, v. James THOMAS, and The Attorney General of the State of Delaware, Respondents. |
| Court | U.S. District Court — District of Delaware |
Amir Fatir, petitioner pro se.
Loren C. Meyers, Delaware Department of Justice, Wilmington, DE, for respondents.
On December 24, 1996, Petitioner Amir Fatir ("Fatir") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 As discussed more fully below, Fatir challenges the constitutionality of (1) the statute pursuant to which he was sentenced, 11 Del.C. § 4209; (2) the manner in which the Delaware Supreme Court construed § 4209; and (3) the procedures pursuant to which he was resentenced after a portion of § 4209 was found to be unconstitutional. For the reasons that follow, the court will deny Fatir's petition.
In 1976, after a trial by jury in the Delaware Superior Court, Fatir2 and three co-defendants were each convicted of first degree murder, first degree robbery, and conspiracy in the second degree. Fatir was also convicted of possession of a deadly weapon during the commission of a felony. The four men were convicted based on their alleged participation in the robbery of a liquor store on May 5, 1975, during which a store clerk was shot and killed. In April 1976, all four men were sentenced to death for their murder convictions in accordance with the then-existing version of 11 Del.C. § 4209(a). That version, which has since been amended, provided as follows:
In any case in which a person is convicted of first degree murder the court shall impose a sentence of death. If the penalty of death is determined to be unconstitutional the penalty for first degree murder shall be life imprisonment without benefit of parole.
Hobbs v. State, 538 A.2d 723, 723 (Del. 1988) (quoting 11 Del.C. § 4209(a) (1974)). Fatir was present in court and represented by counsel when his sentence was imposed.
On July 2, 1976, the United States Supreme Court ruled that the mandatory death penalty statutes of North Carolina and Louisiana were unconstitutional. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Because those decisions called into question the constitutionality of § 4209, the Delaware Supreme Court consolidated the nine cases then pending (including Fatir's) in which death sentences had been imposed under § 4209. The cases were consolidated for the limited purpose of addressing the following three certified questions:
1. Are the provisions governing punishment for first degree murder in 11 Del.C. § 4209(a) constitutional under Woodson v. North Carolina and related cases? (Including the questions of the constitutionality of both sentences of § 4209(a) and the separability thereof.)
2. If the answer to question 1 is no, what sentence may be imposed?
3. If the answer to question 2 is "life imprisonment without benefit of parole," what does that sentence mean in light of 11 Del.C. § 4371 et seq.?3
State v. Spence, 367 A.2d 983, 985 (Del. 1976).
After considering briefs filed by counsel for the affected parties, the Delaware Supreme Court struck down the mandatory death provision in the first sentence of § 4209(a). See id. at 988. It then concluded, however, that the second sentence of § 4209(a) — mandating a sentence of "life imprisonment without benefit of parole" in the event the death penalty were determined to be unconstitutional — was severable and constitutionally valid as to each of the defendants. See id. at 989. Finally, it concluded that the "good time" credit provisions of §§ 4371 and 4372 were inapplicable to life sentences under § 4209(a), such that "life imprisonment without benefit of parole" under § 4209(a) meant "confinement for the balance of the life of the person convicted." Id. at 990.
Fatir and his three co-defendants appealed their convictions to the Delaware Supreme Court, raising various arguments unrelated to sentencing. In an opinion dated May 3, 1980, the Court affirmed each of the defendants' convictions. It noted, however, that resentencing would be necessary on the first degree murder convictions in accordance with the decision in State v. Spence. See Hooks v. State, 416 A.2d 189, 208 n. 10 (Del.1980). The Court described Spence as having "ruled that the sentence to be imposed in this case for Murder in the first degree is life imprisonment without benefit of parole under 11 Del.C. § 4209(a) (1974)." Hooks, 416 A.2d at 193 (citing Spence).
On remand, the Superior Court judge issued a written order vacating the death sentences originally imposed and sentencing each of the four defendants to life imprisonment without benefit of parole. The defendants moved to vacate the life sentences and to require that the new sentences be imposed in open court in the presence of the defendants and counsel. The Superior Court judge denied their request.
The four defendants, with the assistance of counsel, then appealed their life sentences to the Delaware Supreme Court. The sole issue raised on appeal was whether the court below violated the defendants' constitutional rights by sentencing them by written order, rather than in open court in their presence and with the assistance of counsel. The Court denied the appellants' request for relief. It emphasized that the lower court had "no discretion whatsoever" on remand. See Hooks v. State, 429 A.2d 1312, 1314 (Del.1981). Because the sentencing judge was required to follow the Delaware Supreme Court's mandate and sentence the defendants to life imprisonment without benefit of parole, the Court found no reversible error in the imposition of that sentence by written order. See id.
Fatir and two of his co-defendants then filed petitions for writs of habeas corpus in the United States District Court for the District of Delaware.4 The petitioners raised various challenges to their convictions, none of which are related to the sentencing issues raised in Fatir's present petition. The district court denied their petitions, rejecting some of the claims as unexhausted and other claims on the merits. See Abubake v. Redman, 521 F.Supp. 963 (D.Del.1981). The Third Circuit Court of Appeals vacated the district court's judgment, ruling that the petition was a "mixed petition" requiring dismissal without prejudice under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See Abubake v. Redman, 696 F.2d 980 (3d Cir.1982).
In 1983, Fatir filed a motion for post-conviction relief in the Delaware Superior Court, asserting several claims unrelated to his sentencing. That motion was denied. See State v. Hobbs, 1987 WL 8269 (Del.Super. Mar.10, 1987). Fatir, with the assistance of counsel, appealed that denial to the Delaware Supreme Court, again raising arguments unrelated to the issues presented in his present petition. The Court affirmed the lower court's ruling. See Hobbs v. State, 538 A.2d 723 (Del. 1988).
After several unsuccessful attempts at having his sentence commuted, Fatir filed the instant petition for a writ of habeas corpus.
Fatir's petition purports to set forth seven separate grounds for relief. From those seven, the court can perceive the following five distinct grounds for relief5:
• Ground One — By resentencing Fatir by written order, the Superior Court denied Fatir's constitutional rights to be present in court and to allocute before sentencing is imposed;
• Ground Two — By resentencing Fatir by written order, the Superior Court denied Fatir's constitutional rights to have counsel present and to have counsel speak on his behalf before sentencing is imposed;
• Grounds Three and Seven — In mandating a sentence of life imprisonment without possibility of parole, § 4209(a) unconstitutionally removes all discretion from the sentencing judge, in violation of due process and separation of powers principles;
• Ground Five — The Delaware Supreme Court's construction of "life imprisonment without benefit of parole" in § 4209(a) as excluding the possibility of reduction in sentence for "good time" credits under §§ 4371 and 4372 violated ex post facto principles protected by the due process clause of the Fourteenth Amendment to the Constitution; and
• Ground Six — The imposition of a life sentence enhanced by the ex post facto construction just described constituted cruel and unusual punishment in violation of the Eighth Amendment.
As indicated above (and discussed more fully below), the court views Grounds Three and Seven as being essentially identical. Further, Ground Four of the petition does not set forth a separate ground for relief. In Ground Four, Fatir contends that the Delaware Supreme Court erred when it concluded that the resentencing in this case was analogous to a modification or reduction of sentence pursuant to Rule 35(b) of the Delaware Superior Court Rules of Criminal Procedure, which apparently may be accomplished by written order. This is not a separate ground for relief. Rather, the Court's comparison to Rule 35(b) was merely part of its reasoning in rejecting Fatir's argument that he was constitutionally entitled to be present and represented by counsel at his resentencing. See Hooks v. State, 429 A.2d 1312, 1314 (Del.1981). Fatir has reasserted those rights in Grounds One and Two of his Petition. His rejection of the Delaware Supreme Court's analogy is therefore properly viewed as part of his argument in support of those two grounds.
A federal petition for a writ of habeas corpus may not be granted to a person incarcerated pursuant to a state court judgment unless he has first exhausted remedies that are available in state court. See 28 U.S.C. § 2254(b)(1); Lambert v. Blackwell, 134 F.3d 506, 513 ...
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