Garvey v. Phelps, Civil Action No. 09–788–SLR.

• Decision Date: 06 January 2012
• Docket Number: Civil Action No. 09–788–SLR.
• Citation: 840 F.Supp.2d 782
• Parties: Robert K. GARVEY, Petitioner, v. Perry PHELPS, Warden, and Joseph R. Biden, III, Attorney General of the State of Delaware, Respondents.
• Court: U.S. District Court — District of Delaware

840 F.Supp.2d 782

Robert K. GARVEY, Petitioner,

v.Perry PHELPS, Warden, and Joseph R. Biden, III, Attorney General of the State of Delaware, Respondents.

Civil Action No. 09–788–SLR.

United States District Court, D. Delaware.

Jan. 6, 2012.

Robert K. Garvey, Pro se Petitioner.

Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Respondents.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Petitioner Robert K. Garvey (“petitioner”) is a Delaware inmate in custody at the James T. Vaughn Correctional Center in Smyrna, Delaware. Presently before the court is petitioner's amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 28) For the reasons that follow, the court will dismiss his application.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

On the afternoon of July 14, 2001, Turquoise Williams and Benjamin Finnell traveled to a Wilmington shopping center looking for clothes to wear to Philadelphia's annual Greek Festival. While there, they met two women, Rebecca King and Tracey Vanderworker. The four spoke and agreed to meet later that night. King and Vanderworker then left and approached petitioner and two others, Donial Fayson and Leonard Manlove. In search of money, the five agreed to rob Williams and Finnell later that night. According to their plan, the two women would lead Williams and Finnell to a Wilmington apartment complex, where petitioner would be waiting to rob them.

In the early morning hours of July 15, 2001, petitioner, armed with a handgun, traveled to the apartment building. Meanwhile, King and Vanderworker picked up Williams, Finnell, and Donald Jordan, and drove them to the apartment complex. When they arrived, however, the three men were reluctant to leave the vehicle. Eventually, King and Vanderworker persuaded them to go inside the apartment building. Once they got out of the car, petitioner approached Williams. Williams resisted, and petitioner fired a shot. Although the shot missed Williams, it struck and killed Jordan.

Wilmington police arrested petitioner on July 15, 2001. A New Castle County grand jury indicted him on the following charges: first degree murder (“felony murder”); two counts of possession of a firearm during the commission of a felony (“PFDCF”); first degree robbery; attempted first degree robbery; second degree conspiracy; and two counts of carrying a concealed deadly weapon. In January 2002, petitioner filed a motion to suppress post-arrest statements that he made to the police. The Superior Court held an evidentiary hearing on the suppression motion in June 2002, and denied it in September 2002. Following a fifteen-day trial, a Superior Court jury convicted petitioner of all charges. After a three-day penalty hearing, the jury unanimously found that the State had proven the existence of a statutory aggravating circumstance rendering petitioner eligible for the death penalty, but recommended a sentence of life in prison by a vote of nine to three. On December 17, 2003, 2003 WL 23095685, the Superior Court sentenced petitioner to life plus thirty years in prison. The Delaware Supreme Court affirmed petitioner'sconvictions and sentence. See generally Garvey, 873 A.2d 291.

Petitioner filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 (“Rule 61 motion”) in September 2005, alleging ineffective assistance of counsel. See State v. Garvey, 2006 WL 1495786 (Del.Super. May 25, 2006). The Superior Court denied the motion as meritless, and the Delaware Supreme Court affirmed that judgment. Id.;Garvey v. State, 925 A.2d 503 (Table), 2007 WL 1221136 (Del. Apr. 26, 2007). Petitioner then filed two more Rule 61 motions, one in August 2007 and the other in February 2009, both of which were denied by the Superior Court as procedurally barred. See State v. Garvey, 2008 WL 1952159 (Del.Super. Feb. 13, 2008); State v. Garvey, 2009 WL 1037740 (Del.Super. Apr. 8, 2009). The Delaware Supreme Court affirmed those judgments. See Garvey v. State, 962 A.2d 917 (Table), 2008 WL 4809435 (Del. Nov. 5, 2008); Garvey v. State, 979 A.2d 1110 (Table), 2009 WL 2882873 (Del. Sept. 10, 2009).

Petitioner timely filed a § 2254 application (D.I. 2) in this court. After numerous extensions of time, petitioner filed an amended application (D.I. 28) in March 2011. The State filed an answer (D.I. 35), arguing that the application should be denied in its entirety as procedurally barred. Petitioner filed a reply (D.I. 40) and then a motion for leave to file a supplement to his amended application which contained the supplement (D.I. 42); in his supplement, petitioner argued that his application should not be denied as procedurally barred because he is “actually innocent.”

III. GOVERNING LEGAL PRINCIPLESA. Exhaustion and Procedural Default

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. See28 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. 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, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997).

A petitioner's failure to exhaust state remedies will be excused if state procedural rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.2000); see Teague v. Lane, 489 U.S. 288, 297–98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although deemed exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F.3d at 160;Coleman v. Thompson, 501 U.S. 722, 750–51, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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, 111 S.Ct. 2546;Harris v. Reed, 489 U.S. 255, 260–64, 109 S.Ct. 1038, 103 L.Ed.2d 308 (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. 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, 106 S.Ct. 2639, 91 L.Ed.2d 397 (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, 106 S.Ct. 2639.

Alternatively, if a petitioner demonstrates that a “constitutional violation has probably resulted in the conviction of one who is actually innocent,” Murray, 477 U.S. at 496, 106 S.Ct. 2639, then a federal court can excuse the procedural default and review the claim in order to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.2001). The miscarriage of justice exception applies only in extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Murray, 477 U.S. at 496, 106 S.Ct. 2639. A petitioner establishes actual innocence by asserting “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial,” showing that no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339–40 (3d Cir.2004).

IV. DISCUSSION

The amended application presents the following two grounds for relief: (1) petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated because he was not personally present during the voir dire of fifteen prospective jurors; and (2) petitioner's conviction for first degree felony murder violates his due process rights under Fifth and Fourteenth Amendments because (a) there is insufficient evidence to support the conclusion that petitioner's “criminally negligent” killing was committed “in furtherance of his first degree robbery offense, and (b) he is actually innocent of criminally negligent first degree felony murder under 11 Del. C. § 636(a)(6) (2003), because the Delaware General Assembly repealed former § 636(a)(6) in 2004 and “reclassified [the offense] down” to second degree murder. Although petitioner raised both of these claims in his second Rule 61 motion, and then to the Delaware Supreme Court on post-conviction appeal, the Delaware Courts denied the claims as procedurally barred under Rule 61(i)(2) due to petitioner's failure...