Rogers v. Johnson

• Decision Date: 26 September 2017
• Docket Number: Civ. Act. No. 14-413-LPS
• Parties: D'ANDRE ROGERS, Petitioner, v. G.R. JOHNSON, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
• Court: U.S. District Court — District of Delaware

D'ANDRE ROGERS, Petitioner, v. G.R. JOHNSON, Warden, and ATTORNEY GENERAL OF THE

STATE OF DELAWARE, Respondents.

Civ. Act. No. 14-413-LPS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

September 26, 2017

D'Andre Rogers. Pro Se Petitioner.

Elizabeth R. McFarlan, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

MEMORANDUM OPINION

September 26, 2017

Wilmington, Delaware

STARK, U.S. District Judge:

I. INTRODUCTION

Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 and an Amended Application (hereinafter referred to collectively as "Petition") filed by Petitioner D'Andre Rogers ("Petitioner"). (D.I. 1; D.I. 5) The State has filed an Answer in Opposition. (D.I. 14) For the reasons discussed, the Court will dismiss the Petition.

II. BACKGROUND

[O]n the night of January 3-4, 2009, [Petitioner] drove his friend, Kenneth Miller, to the Wilmington residence of Miller's ex-girlfriend, Tonya Backus. Backus' new boyfriend, Derek Hoey, was present. Miller and Hoey became involved in a confrontation. [Petitioner] decided to become involved. [Petitioner] entered the residence and shot Hoey at least four times with a handgun, killing hm. [Petitioner] and Miller fled. [Petitioner] was arrested four months later in North Carolina, where he was staying with Miller's relatives.

State v. Rogers, 2013 WL 285735, at *1 (Del. Super. Ct. Jan. 17, 2013).

On May 19, 2010, a Delaware Superior Court jury convicted Petitioner of second degree murder (as a lesser included offense of first degree murder) and possession of a firearm during the commission of a felony ("PFDCF"). See State v. Rogers, 2013 WL 285735, at *1 (Del. Super. Ct. Jan. 17, 2013). Following a bench trial on a third charge, the Superior Court found Petitioner guilty of possession of a deadly weapon by a person prohibited ("PDWBPP"). Id. at *1 n.1. The Superior Court sentenced Petitioner on September 24, 2010 to a total of forty years at Level V incarceration, suspended after thirty-five years, followed by decreasing levels of probation. (D.I. 14 at 3; see also Rogers, 2013 WL 285735, at *1. Petitioner appealed, and the Delaware Supreme Court affirmed his conviction and sentence on March 20, 2102. See Rogers v. State, 41 A.3d 430 (Table), 2012 WL 983198, at *1 (Del. Mar. 20, 2012).

On April 3, 2012, Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). See Rogers, 2013 WL 285735, at *1. TheSuperior Court denied the motion on February 22, 2013. See State v. Rogers, 2013 WL 1450928, at *1 (Del. Super. Ct. Feb. 22, 2013). Petitioner filed a notice of appeal from that decision on April 1, 2013, which the Delaware Supreme Court dismissed as untimely on April 10, 2013. See Rogers v. State, 2013 WL 1489472 (Del. Apr. 10, 2013). The Delaware Supreme Court denied Petitioner's motion for reargument on April 30, 2013. (D.I. 14 at 4)

In a letter dated March 14, 2014, Petitioner asked the Court to grant habeas relief from his state court conviction. (D.I. 1) Liberally construing the letter as a request for habeas relief, the Court issued an order informing Petitioner of his rights under United Sates v. Miller, 197 F.3d 644 (3d Cir. 1999), provided a form habeas petition for him to fill out, and also provided an AEDPA election form for him to indicate how he wished to proceed. (D.I. 4) In July 2104, Petitioner filed the completed form habeas petition. (D.I. 5) This Petition asserts four claims: (1) while instructing the jury about the elements for second degree murder, the Superior Court erred when explaining the phrase "cruel, wicked and depraved indifference to human life"; (2) defense counsel provided ineffective assistance by failing to suppress a recorded statement Petitioner made to police; (3) juror bias prejudiced Petitioner's trial; and (4) defense counsel provided ineffective assistance by withholding helpful evidence. (D.I. 5 at 5, 7, 8, 10) The State filed an Answer, asserting that the Petition should be dismissed as time-barred or, alternatively, because the claims are procedurally barred or meritless. (D.I. 14)

On February 2, 2016, Petitioner filed a second Rule 61 motion, which the Superior Court denied on March 9, 2016. See State v. Rogers, 2016 WL 908915 (Del. Super. Ct. Mar. 9, 2016). The record does not indicate whether Petitioner appealed that decision.

III. ONE YEAR STATUTE OF LIMITATIONS

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law on April 23, 1996. 28 U.S.C. § 2244(d)(1). AEDPA prescribes a one-year period of limitations for the filing of habeas petitions by state prisoners, which begins to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). AEDPA's limitations period is subject to statutory and equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory tolling).

Focusing on the form petition filed in July 2014, the State contends that the Petition should be dismissed as time-barred. However, the Court views the letter and papers Petitioner filed in March 2014 (D.I. 1) as the relevant document for determining the timeliness of this proceeding. For the reasons set forth below, the Court concludes that the instant proceeding is not time-barred.

Petitioner's § 2254 Petition, filed in 2014, is subject to the one-year limitations period contained in § 2244(d)(1). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Petitioner does not allege, and the Court cannot discern, any facts triggering the application of § 2244(d)(1)(B), (C), or (D).Given these circumstances, the one-year period of limitations began to run when Petitioner's conviction became final under § 2244(d)(1)(A).

Pursuant to § 2244(d)(1)(A), if a state prisoner appeals a state court judgment but does not seek certiorari review, the judgment of conviction becomes final ninety days after the state appellate court's decision. See Kapral v. United States, 166 F.3d 565, 575, 578 (3d Cir. 1999); Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999). Here, the Delaware Supreme Court affirmed Petitioner's conviction on March 20, 2012, and he did not seek certiorari review. Consequently, his conviction became final on June 19, 2012. Applying the one-year limitations period to that date, Petitioner had until June 19, 2013 to timely file his Petition. See Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005) (holding that former Federal Rule of Civil Procedure 6(a) and (e) applies to federal habeas petitions); Fed. R. Civ. P. 6(a)(1) (providing day of event that triggers period is excluded when computing time periods). Petitioner, however, waited until March 2014¹ to file the Petition. Thus, his habeas Petition is untimely, unless the limitations period can statutorily or equitably tolled. See Jones, 195 F.3d at 158. The Court will discuss each doctrine in turn.

A. Statutory Tolling

Pursuant to § 2244(d)(2), a properly filed state post-conviction motion tolls AEDPA's limitations period during the time the action is pending in the state courts, including any post-conviction appeals, provided that the motion was filed and pending before the expiration of AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000); Price v. Taylor, 2002 WL 31107363, at *2 (D. Del. Sept. 23, 2002). A post-conviction motion that is untimely understate law is not properly filed for § 2244(d)(2) purposes and, therefore, has no statutory tolling effect. See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).

On February 22, 2013, before his conviction became final, Petitioner filed a Rule 61 motion in the Delaware Superior Court. As such, the Rule 61 motion was filed before AEDPA's limitations period began to run.

The Superior Court denied the Rule 61 motion on February 22, 2013, Petitioner filed a notice of appeal from the denial of the Rule 61 motion on April 1, 2013, and the Delaware Supreme Court dismissed the appeal as untimely on April 10, 2013. However, since the Delaware Supreme Court dismissed Petitioner's Rule 61 appeal as untimely, his post-conviction appeal statutorily tolled the limitations clock only for thirty days, and not for the entire pendency of the post-conviction appeal. Given these circumstances, AEPA's limitations period was tolled from June 19, 2012, the date on which Petitioner's conviction became final, through March 25, 2013, the date on which the thirty-day period for appealing the denial of the Rule 61 motion expired. The limitations clock started to run on March 26, 2013. Applying one year to that date demonstrates that Petitioner had until March 26, 2014 to file a timely federal habeas petition. Given these circumstances, the Petition filed on March 14, 2014² is timely.

IV. GOVERNING LEGAL PRINCIPLES

Congress enacted 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 filedby a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the...