Nickerson v. Wesley
| Decision Date | 25 August 2015 |
| Docket Number | Civil Action No. 12-721-GMS |
| Parties | DENZEL NICKERSON, Petitioner, v. STEVEN WESLEY, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents. |
| Court | U.S. District Court — District of Delaware |
Denzel Nickerson. Pro se petitioner.
Elizabeth R. McFarlan, Delaware Department of Justice, Wilmington, Delaware. Counsel for Respondents.
August 25, 2015
Wilmington, Delaware
Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Denzel Nickerson ("Nickerson"). (D.I. 3) For the reasons discussed, the court will deny the petition.
Shortly after 4:00 p.m. on July 17, 2010, Wilmington Police Patrolwoman Kecia Rosado responded to a person with a gun complaint at East 27th Street and Bowers Street in the City of Wilmington, Delaware. (D.I. 1 at 2) The call from the police dispatcher identified the suspect as an African-American male wearing a brown striped shirt and brown shorts and holding a large .45 caliber handgun. Id.
When Officer Rosado arrived, she observed Nickerson, who matched the description broadcast. (D.I. 16 at 3) As she entered the 1300 block of East 27th Street in her marked police car, the officer saw Nickerson on the south side of the street standing with approximately eight other males. When Nickerson saw Officer Rosado, he quickly turned away and began walking eastbound on East 27th Street toward Bowers Street in an "awkward manner" - he put his cell phone to his ear and then bent forward at the waist, almost at a forty-five degree angle, keeping his back to the police officer. Nickerson continued walking away from Officer Rosado, while looking over his right shoulder approximately five times. Id.
Officer Rosado called to Nickerson to stop, but he did not. (D.I. 16 at 3) As other officers approached from the opposite direction, Nickerson stopped walking and turned toward Officer Rosado exclaiming, "What, I'm talking to my mom?" It was then that Officer Rosado saw a bulge in Nickerson's front waistband showing through his shirt. Recognizing that it appeared he had a gun, the officer immediately ordered Nickerson to the ground. When shepatted him down, Officer Rosado could feel the large, hard metal object in Nickerson's front waistband. She then lifted the front of Nickerson's shirt and discovered a large, silver handgun with a brown grip pad on the handle in his waistband. It was a .45 caliber Kimber Team Match II, semi-automatic handgun with one bullet in the chamber and seven in the magazine. Id.
A further search of Nickerson revealed cash and a small black plastic bag that was knotted at the top. (D.I. 16 at 3) There were four individual bundles within the black plastic bag, and each had a rubber band around it. One of the bundles contained eight small clear plastic bags with a blue rubber band tied around it, and the other three bundles each contained thirteen small clear plastic bags with black rubber bands tied around them. All together, there were forty-seven small clear ziplock bags that contained a light blue wax paper bag in each, and each bag had a hand printed on it with a thumb pointing up and the letters "D.O.A." stamped in blue ink. Each contained heroin. Id. at 3-4.
Nickerson was arrested and subsequently indicted for, inter alia, possession with intent to deliver heroin, possession of heroin within 1,000 feet of a school, possession of heroin within 300 feet of a place of worship, possession of a firearm during the commission of a felony, carrying a concealed deadly weapon, possession of a firearm by a person prohibited, resisting arrest, and loitering. (D.I. 16 at 1) Because of a collateral violation of probation in another case, this matter was assigned to the Superior Court Fast Track calendar. (D.I. 18, State v. Nickerson, IN10-08-2311R1, Commr's. Rep. & Rec. at 3 (Del. Super. Ct. Mar. 12, 2012) The case proceeded to final case review, and Nickerson rejected the State's plea offer. Id. Trial was scheduled to start on February 16, 2011. Id. However, on February 16, 2011, Nickerson pled guilty to possession of a firearm during the commission of a felony. (D.I. 16 at 1) The Stateentered a nolle prosequi to the rest of the charges. Id. The plea colloquy transcript reveals that Nickerson admitted to possession of a .45 caliber semiautomatic handgun while engaged in felony drug possession and also confirmed that he was dissatisfied with his counsel's representation. (D.I. 18, Plea Colloquy Transcript dated Feb. 16, 2011, at 7-8, 11-12)
The Superior court immediately sentenced Nickerson to the minimum mandatory term of five years at Level V, followed by six months at Level IV. (D.I. 16 at 2) Nickerson did not appeal his conviction and sentence. Id.
On June 21, 2011, Nickerson filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") asserting the following three grounds for relief: (1) defense counsel failed to file a motion to suppress evidence; (2) defense counsel failed to request the tape of the informant and the police dispatcher; and (3) defense counsel failed to investigate or pursue Nickerson's contention that his arrest was due to profiling. (D.I. 18, Motion for Postconviction Relief) A Superior Court Commissioner issued a Report and Recommendation that the Rule 61 motion be summarily dismissed. The Superior Court adopted that recommendation and summarily dismissed the motion on March 29, 2012. Nickerson did not appeal that judgment.
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "to reduce delays in the execution of state and federal criminal sentences . . . and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003).Pursuant to AEDPA, 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). AEDPA imposes procedural requirements and standards for analyzing the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). AEDPA states, in pertinent part:
28 U.S.C. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to give "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, 526 U.S. at 844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural mannerpermitting the court to consider the claims on their merits. Bell, 543 U.S. at 451 n.3; Castille v. Peoples, 489 U.S. 346, 351 (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 (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 (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; Harris v. Reed, 489 U.S. 255, 260-64 (1989).
Federal courts may not consider 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. 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 (1986). To demonstrate actual prejudice, a petitioner must show "that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d...
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