Johnson v. Ellingsworth, Civ. A. No. 90-255-JLL.

• Decision Date: 03 February 1992
• Docket Number: Civ. A. No. 90-255-JLL.
• Court: U.S. District Court — District of Delaware
• Parties: Raymond C. JOHNSON, Petitioner, v. John ELLINGSWORTH, Warden, Sussex Correctional Institution, and Charles M. Oberly, Attorney General of the State of Delaware, Respondents.

783 F. Supp. 215

Raymond C. JOHNSON, Petitioner, v. John ELLINGSWORTH, Warden, Sussex Correctional Institution, and Charles M. Oberly, Attorney General of the State of Delaware, Respondents.

Civ. A. No. 90-255-JLL.

United States District Court, D. Delaware.

February 3, 1992.

Raymond C. Johnson, pro se.

Loren C. Meyers, Deputy Atty. Gen., Delaware Dept. of Justice, Wilmington, Del., for respondents.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

In July of 1981 the petitioner, Raymond Johnson, was convicted by a jury in Delaware Superior Court of sexual assault, unlawful imprisonment, first degree sodomy, and first degree rape. Docket Item ("D.I.") 9 at 1. Counsel for the petitioners, two public defenders, then filed motions for a new trial. Memorandum ("Memo."), D.I. 2 at 1. While the motions were pending, the petitioner dismissed the public defenders and retained private counsel, Arlen Meckler. Mr. Meckler did not pursue these motions, and the case moved to the sentencing phase. The petitioner was sentenced to life imprisonment plus 67 years on April 19, 1982. Id.

On April 23, 1982, Meckler attempted to challenge the convictions in a postconviction motion under former Rule 35 of Delaware's Rules of Criminal Procedure ("First Postconviction Motion").¹Id. at Exhibit ("Ex.") 3. Johnson alleges that he instructed Meckler to file a direct appeal of his conviction, which was never done. Id. at 1-2. On May 24, 1982, Johnson attempted to appeal his conviction himself, but the appeal was dismissed as untimely under 10 Del.C. § 147 and Delaware Supreme Court Rule 6.²Id. at Ex 4. Nevertheless, Meckler continued to represent Johnson in the postconviction proceeding. The Superior Court held an evidentiary hearing on the First Postconviction Motion and denied the motion on November 24, 1984, in a lengthy opinion decided on the merits. Id. at Ex. 5. Meckler wrote a letter to Johnson informing him of his right to appeal the Superior Court ruling within 30 days, but Johnson alleges that the letter was sent so late that it effectively deprived him of a chance to appeal.³Id. at Ex. 6 & Ex. 7. The petitioner attempted to appeal the Superior Court's postconviction decision, but on March 7, 1985, the Delaware Supreme Court found the appeal untimely under 10 Del.C. § 147 and Delaware Supreme Court Rule 6. Id. at Ex. 8.

Over three and one half years later, in October, 1989, the petitioner filed a Motion to Reverse Conviction and Vacate Sentence under Rule 35 ("Second Postconviction Motion"). The Second Postconviction Motion alleged that the petitioner had been denied effective assistance of counsel because of his former attorney's failure to appeal his conviction directly or appeal the dismissal of his First Postconviction Motion, as well as other claims raised in his First Postconviction Motion. Id. at Ex. 10. The petitioner had also filed a motion for appointment of counsel in order to pursue his appeal ("Third Postconviction Motion"). Id. at 2. The Superior Court denied the Second Postconviction Motion on November 8, 1989, on the grounds that it was later than three years after the conviction, which generally bars appeals under Delaware Superior Court Criminal Rule 61(i).⁴Id. at Ex. 11. Implicitly the Superior Court appears to have also denied the Third Postconviction Motion. The petitioner attempted to appeal these rulings. Id. at 2-3 & Ex. 12. The Delaware Supreme Court affirmed the Superior Court's holding with regard to the Second Postconviction Motion on February 8, 1990, id. at Ex. 15, and summarily denied the Third Postconviction Motion on December 16, 1989. Id. at Ex. 13. The petitioner then filed a Motion for Reargument, or in the Alternative, for a Rehearing En Banc on February 23, 1990, id. at Ex. 16, which the Delaware Supreme Court denied on March 5, 1990. Id. at Ex. 17. Because all of the petitioner's claims before the Court have already been addressed to the Delaware courts in previous motions, the petitioner has adequately exhausted his state remedies. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir.1984). The petitioner has now brought forth a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See D.I. 2. He alleges that (1) his substituted counsel's failure to file a direct appeal violated his right to effective assistance of counsel; (2) the failure of the Delaware courts to appoint counsel in his postconviction proceedings violated his right to effective assistance of counsel on appeal; and (3) the dismissal of the petitioner's case on a procedural basis without hearing his appeal violated his right to an appeal. Petition, D.I. 2. The respondents have filed an answer requesting the dismissal of the petition. See D.I. 9.

II. DISCUSSION

A. Procedural Default

Recent decisions of the United States Supreme Court guide our decision. As the Supreme Court has recently held,

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, ___ U.S. ___, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Accordingly, the Court shall examine the petitioner's claim under this standard.

1. The Existence of a Procedural Default

The Third Circuit has recently addressed the determination of whether a state court judgment rests on a procedural default in light of recent United States Supreme Court cases. See Caswell v. Ryan, 953 F.2d 853 (3d Cir.1992). In 1989, the Third Circuit laid out a test for determining whether a state judgment "reflects a consideration and dismissal of the merits or constitutes a dismissal on procedural grounds caused by untimeliness" by consideration of a number of factors.⁵ See Bond v. Fulcomer, 864 F.2d 306, 310-11 (3d Cir. 1989). Shortly thereafter, the United States Supreme Court addressed the issue in Harris v. Reed, stating that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment on the case `clearly and expressly' states that its judgment rests on a state procedural bar." 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (citations omitted). The Third Circuit held that Harris undermined their decision in Bond. Hull v. Freeman, 932 F.2d 159 (3d Cir.1991). In Coleman v. Thompson, the Supreme Court limited the scope of the plain statement rule of Harris. Examination of the habeas petition is barred by procedural default if the judgment of the last state court "`fairly appears' to rest primarily on state law."⁶ Caswell v. Ryan, 953 F.2d at 859 (quoting Coleman v. Thompson, ___ U.S. ___, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991)). After reviewing this doctrinal history, the Third Circuit held that Coleman effectively overruled its decision in Hull, for the factors in Bond rejected by Hull accurately foreshadowed the standard in Coleman. Id. The Court must therefore determine whether the decision of the Delaware Supreme Court fairly appears to rest primarily on state law.

This case does not test the outer limits of the standard for determining whether a procedural default has occurred. The Delaware Supreme Court was unequivocal and straightforward in its reliance on Delaware law to deny the petitioner's postconviction motion. In its order, the Delaware Supreme Court specifically relied on Rule 61's three year time bar and noted that "Johnson made no effort to show why his otherwise untimely motion for postconviction relief was an exception to the general requirement of Rule 61."⁷Johnson v. State, No. 493, 1989, slip op. at 4 (Del.1990) 571 A.2d 787 (table) (attached at D.I. 2 at Ex. 15). The order refers exclusively to Delaware procedural rules and Delaware cases. See id. Consequently, the decision fairly appears to rely on state procedural grounds.

2. Independence and Adequacy of the State Grounds

In order to judge the independence and adequacy of the state grounds, the Court must ascertain if (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts consistently apply the procedural rules. Bond v. Fulcomer, 864 F.2d 306, 311-12 (3d Cir. 1989) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). In this case the applicable state rule clearly bars postconviction motions brought three years after a conviction, absent a showing of cause and prejudice or a miscarriage of justice. See Del.Super.Ct.Crim.R. 61(i)(1). The Delaware Supreme Court, the only appellate court addressing the issue, applied this rule in a straightforward manner, stating that the three year bar applied and that Johnson had not established himself to be in any exception. See Johnson v. State, No. 493, 1989 (Del.1990) 571 A.2d 787 (table). Finally, the rule must be "strictly or regularly followed" in order to be adequate. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 1736, 12 L.Ed.2d 766 (1964)). Although the rule is fairly recent, Delaware courts have consistently applied the rule to bar postconviction motions brought after three years. See, e.g., Mazzatenta v. State, 593 A.2d 590 (Del.1991) (table) (text in WESTLAW); Ross v. State, 588 A.2d 1142 (Del.1991) (table) (text in WESTLAW); Bagwell v. State, 586 A.2d 1201 (Del.1991) (table) (text in WESTLAW); Abdul-Akbar v. State, 582 A.2d 934 (Del.1990) (table) (text in WESTLAW); Younger v. State, 580 A.2d 552 (Del.1990); Carter v. State, 574 A.2d 262 (Del.1990) (table) (text in...