Kirk v. Carroll
| Decision Date | 30 January 2003 |
| Docket Number | No. CIV.A.02-345-JJF.,CIV.A.02-345-JJF. |
| Parties | Mark A. KIRK, Petitioner, v. Thomas CARROLL, Warden, Respondent |
| Court | U.S. District Court — District of Delaware |
Mark A. Kirk, Pro Se Petitioner.
Thomas E. Brown, Esquire of the State of Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondent.
Presently before the Court is a Petition under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (the "Petition") (D.I.I) filed by Petitioner, Mark A. Kirk. Also pending in this matter are Petitioner's Motion for Discovery (D.I.4), Petitioner's Motion to Amend his Support Memorandum (D.I. 11) and Petitioner's Motion for Appointment of Counsel (D.I. 19). For the reasons set forth below, the Court will deny the Petition, grant the Motion to Amend, and deny as moot the Motion for Appointment of Counsel and the Motion for Discovery.
In 1997, following a bench trial, Petitioner was convicted in Delaware Superior Court of three counts of first degree felony murder, one count of third degree arson, two counts of first degree assault, and one count of third degree assault. Petitioner was sentenced to three mandatory life terms in prison plus twenty three years. The conviction and sentence were affirmed on direct appeal. Kirk v. State, No. 532, 1997, 1999 WL 415802 (Del. April 29, 1999).
Petitioner filed a motion for state postconviction relief in the Delaware Superior Court pursuant to Rule 61 of the Superior Court Rules of Criminal Procedure. On May 23, 2000, the Superior Court denied Petitioner's motion, and Petitioner appealed. State v. Kirk, ID No. 9612002650-R1 . On October 16, 2000 the Delaware Supreme Court affirmed this denial. Kirk v. State, No., 271, 2000, 2000 WL 1637418 (Del. October 16, 2000). Petitioner filed a second motion for state post-conviction relief in 2001. The Superior Court denied this second motion on June 25, 2001. State v. Kirk, ID No. 96120556-R2, 2001 WL 755942 (Del.Super. Ct. June 25, 2001). The Delaware Supreme Court affirmed this denial on February 12, 2002. Kirk v. State, No. 508, 2001, 2002 WL 256741 (Del. Feb. 12, 2002).
Petitioner has now filed the current Petition for federal habeas relief. Also pending in this matter are Petitioner's motion for discovery, motion to amend and motion for appointment of counsel.
Pursuant to the federal habeas statute:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). Grounded on principles of comity, the requirement of exhaustion of state court remedies ensures 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), cert, denied, 532 U.S. 980, 121 S.Ct. 1621, 149 L.Ed.2d 483 (2001).
To satisfy the exhaustion requirement, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Although a state prisoner need not "invoke extraordinary remedies" to satisfy exhaustion, he must fairly present each of his claims to the state courts. Id. at 844^5,119 S.Ct. 1728. A claim has not been fairly presented unless it was presented "at all levels of state court adjudication." Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir.2002). If a claim has not been fairly presented, and further state court review is procedurally barred, the exhaustion requirement is deemed satisfied because further state court review is unavailable. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.2000), cert, denied, 531 U.S. 1082, 121 S.Ct. 785, 148 L.Ed.2d 681 (2001). Although deemed exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F.3d at 160. In addition, where a state court refuses to consider a petitioner's claims because he failed to comply with an independent and adequate state procedural rule, his claims are deemed exhausted but procedurally defaulted. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Werts, 228 F.3d at 192. A federal court may not consider the merits of procedurally defaulted claims unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Lines, 208 F.3d at 160.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") mandates the following standards of review:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States ... 28 U.S.C. § 2254(d). A federal court may issue a writ of habeas corpus under this provision only if it finds that the state court decision on the merits of a claim either: (1) was contrary to clearly established federal law, or (2) involved an unreasonable application of clearly established federal law. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Petitioner articulates the following claims for relief:1
(1) Petitioner's statements were obtained in violation of his Fifth Amendment right to remain silent and were involuntary because they were coerced;
(2) Trial counsel rendered ineffective assistance of counsel because he failed to argue for suppression of statements at the suppression hearing as Petitioner requested;
(3) Trial counsel rendered ineffective assistance of counsel by arguing for a lesser felony in a felony murder trial;
(4) Trial counsel rendered ineffective assistance of counsel by failing to move for the recusal of the trial judge;2
(5) Trial counsel rendered ineffective assistance of counsel because he failed to retain a third expert;
(6) The Petitioner was denied his Sixth and Fourteenth Amendment right to a fair trial because the state presented falsified evidence;
(7) There was insufficient evidence to sustain the conviction; and
(8) The indictment was defective. Respondent acknowledges that Petitioner has exhausted claims 1-2 and claims 4-7 and contends that these claims should be rejected on their merits. Respecting claim 3 for ineffective assistance of counsel and claim 8 for a deficient indictment, Respondent asserts that although these claims are excused from the exhaustion requirement, they are procedurally barred from federal habeas review because Petitioner failed to fairly present them to the Delaware Supreme Court on post-conviction appeal.
A. Petitioner's Statements
Petitioner's first claim is that his statements should have been suppressed because they were obtained in violation of his Fifth Amendment right to remain silent. The Petitioner claims that during an interview on December 5, 1996 he invoked his right to silence, and therefore the statements following that invocation should have been suppressed. (D.I. 2 at 3; Opening Brief in Case No. 532, 1997 at 14-16). Petitioner was questioned by the police four times before he was arrested, twice on December 4, 1996 and twice on December 5, 1996. These interviews occurred at the police station. Petitioner left the police station on December 4 and returned voluntarily the following day. Petitioner received warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) on each day. The final interview on December 5 was videotaped and lasted five hours and forty-one minutes. In this interview Petitioner admitted pouring rum on the burner which started the fire that consumed the apartment building.
Petitioner claims that he asserted his right to remain silent at least two times during this last interview. Specifically, Petitioner asserts that he asserted his right to remain silent by the following statements:
A. I don't have anything to tell you. You don't believe me A. You know what I really want to do> is, if I'm going to be charged, just go ahead and get it over with.
M. You don't think you are going to remember anything
A. Just get it over with. M. Have you remembered anything else?
A. Nothing. I can't.
Petition Appendix at A-1, A-2. Additionally, on direct appeal, Petitioner claimed that the following statements violated his right to remain silent.
A. I can't. Just take me away, please. Take me away.
M. I can't say anything good about you.
A. Don't say anything good about me. Just take me the fuck away. M. Mark are you a bad person?
A. No.
M. Don't end it like this Mark. This is your opportunity.
Opening Brief in Case No. 532, 1997 at 14-15 (quoting Tr. of December 5, 1996 Interview at 118). Thereafter, the officers continued questioning the Petitioner and he admitted to pouring rum on the burner which started the fire that consumed the apartment building. The Petitioner claims that these statements invoked his right to remain silent and that any further questioning violated that right; therefore the statements following his...
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