Hardwick v. Pierce

• Decision Date: 10 December 2015
• Docket Number: Civ. No. 12–1254–SLR
• Parties: James Hardwick, Petitioner, v. David Pierce, Warden, and Attorney General of the State of Delaware, Respondents.
• Court: U.S. District Court — District of Delaware

148 F.Supp.3d 338

James Hardwick, Petitioner,

v.David Pierce, Warden, and Attorney General of the State of Delaware, Respondents.¹

Civ. No. 12–1254–SLR

United States District Court, D. Delaware.

Signed December 10, 2015

James Hardwick. Pro se petitioner.

Gregory E. Smith. Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

ROBINSON

, District Judge

I. INTRODUCTION

Petitioner James Hardwick (“petitioner”) is a Delaware inmate in custody at the James T. Vaughn Correctional Center in Wilmington, Delaware. Presently before the court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

. (D.I. 3; D.I. 11) For the reasons that follow, the court will dismiss his application.

II. FACTUAL AND PROCEDURAL BACKGROUND

As set forth by the Delaware Supreme Court in Hardwick v. State, 971 A.2d 130, 132 (Del.2009)

, and by the Superior Court in State v. Hardwick, 2011 WL 2535559 (Del.Super. June 7, 2011), the facts leading to petitioner's arrest and conviction as a consequence of having sexual relations with his underage stepdaughter, Alice Smith, and her friend, Peggy Lane (both pseudonyms), are as follows:

In 2004, petitioner married Alice's mother and moved into her home. Petitioner's adult nephew, Matthew, also stayed at the house occasionally.

Peggy testified that in July 2005, when she was thirteen years old, she spent the night at Alice's house. Late in the evening, she, Alice, Matthew, and petitioner were in the living room. Matthew was sleeping on the sofa while petitioner played on the computer. Peggy and Alice saw that petitioner was watching pornography. Noticing that the girls were looking at the computer screen, petitioner asked whether they liked what they saw. He then offered to teach Peggy how to do the acts portrayed in the pornography and invited the girls into the basement to look at Playboy magazines. According to Peggy, the girls agreed. Peggy alleged that, in the basement, petitioner and the two girls engaged in a variety of sexual acts. Peggy also testified about another sexual incident that took place shortly thereafter at a townhouse in Delaware City involving her, petitioner, and Matthew, as well as numerous occurrences of group sex involving petitioner, Matthew, and the two girls. According to Peggy, she had sex with petitioner at least twenty times on various occasions and she consented to all of those sexual encounters with petitioner.

Alice, who was twelve in the summer of 2005, also testified at trial. She corroborated Peggy's testimony about the incident in her basement when Peggy and her stepfather first had sex, although she testified that only Peggy was interested in the pornography and she tried to talk Peggy out of engaging in sexual conduct with petitioner, Alice also testified that she only overheard Peggy and petitioner engaging in sexual conduct once at the Delaware City townhouse. Alice did not support Peggy's allegations of multiple encounters of group sex. She denied engaging in any sexual activity with either Peggy or petitioner on any of the occasions Peggy mentioned; however, she testified that petitioner had forced her to perform oral sex on him at least once a month since she was ten years old.

In 2007, Peggy told her then-boyfriend about her sexual encounters with petitioner. At some point, Alice told Matthew about the sexual encounters with petitioner, but she made Matthew promise not to tell anyone. According to Alice, Matthew seemed surprised. Someone notified the police and the police arrested petitioner. The police interviewed both girls.

Hardwick, 971 A.2d at 132–33

.

After some discussion with Peggy and her parents about Peggy making a pretext phone call to [petitioner], Peggy called [petitioner]. They spoke to each other three times over two days on August 28 and 29, 2007. All were recorded with her parents' consent. The police gave her “talking points.” She described her boyfriend's unsatisfactory (alleged) attempts at oral sex to which he asked if she wanted a “refresher” course. The idea, he said, was to get her as “hot” as she could be.

[Petitioner] asked Peggy when she wanted to do it. She asked if she could bring a friend (there was no “friend” who was going to be there). He asked Peggy if she remembered Delaware City. He said she needed to be really aroused and have energy to do anal intercourse. He spoke to her of past acts of oral sex on him and how she had been rewarded. [Petitioner] said the girlfriend Peggy was bringing had to be trusted. Peggy said she was fifteen and [petitioner] said that was okay.

They set up a meeting in front of a store at People's Plaza in Glasgow at 10:00 a.m. on September 5, 2007. [Petitioner] showed up as arranged. He was arrested. When searched, the police found a condom in his pants pocket. They recovered a cell phone with the same number Peggy had called in late August.

Hardwick, 2011 WL 2535559, at *2

.

During the police investigation, Detective Rubin of the Newark Police Department interrogated Matthew, the only other individual with information regarding the allegations. During that interrogation, Matthew claimed that petitioner and he did not commit the alleged sexual acts. The State taped that interview and sent it to defense counsel. The defense hired a defense investigator to interview Matthew.

Hardwick, 971 A.2d at 132–33

.

Petitioner was arrested on September 5, 2007. (D.I. 16 at 3) On November 26, 2007 he was indicted on thirty-six counts of first degree rape, two counts of attempted second degree rape, and two counts of continuous sexual abuse of a child. He was re-indicted on March 3, 2008. Id.

On May 27, 2008, a five day jury trial commenced in the Superior Court. (D.I. 16 at 4) The tapes of the phone calls between petitioner and Peggy were admitted into evidence during the trial. See Hardwick v. State, 47 A.3d 523 (Table), 2012 WL 1067150, at *1 (Del. Mar. 27, 2012)

. Both Alice and Peggy testified during the trial, but Matthew did not.² Id.

At the close of the evidence, and before jury instructions, the Superior Court dismissed seven counts of first degree rape, and the counts of continuous sexual abuse of a child. The jury convicted petitioner on all remaining charges. Id. The Superior Court sentenced petitioner to thirty-one consecutive life sentences. Id. Represented by new counsel, petitioner appealed. The Delaware Supreme Court affirmed his convictions and sentences on April 22, 2009. See

Hardwick, 971 A.2d at 133.

In June 2009, petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61

(“Rule 61 motion”) asserting, inter alia, ineffective assistance of counsel. The Superior Court appointed counsel to represent petitioner, but petitioner discharged counsel and proceeded pro se. On March 10, 2011, the Superior Court denied the Rule 61 motion, and then re-issued its opinion on June 7, 2011. See

Hardwick, 2011 WL 2535559. The Delaware Supreme Court affirmed that judgment on March 27, 2012. See

Hardwick, 2012 WL 1067150.

Petitioner timely filed a § 2254

application in this court. (D.I.1) The State filed an answer, arguing that the court should deny the application because the claims are either procedurally barred or do not warrant relief under § 2254(d). (D.I.16)

III. GOVERNING LEGAL PRINCIPLES

A. 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. 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. 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).

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 treated as technically 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...