Weber v. May

• Court: U.S. District Court — District of Delaware
• Writing for the Court: STARK, U.S. Circuit Judge:
• Decision Date: 30 September 2022
• Docket Number: Civ. Act. 13-283-LPS
• Citation: Weber v. May, Civ. Act. 13-283-LPS (D. Del. Sep 30, 2022)
• Parties: PAUL EDWARD WEBER, Petitioner, v. ROBERT MAY, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

PAUL EDWARD WEBER, Petitioner, v. ROBERT MAY, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.^[1]

Civ. Act. No. 13-283-LPS

United States District Court, D. Delaware

September 30, 2022

Paul Edward Weber. Pro so Petitioner.

Andrew J. Vella, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

MEMORANDUM OPINION

STARK U.S. Circuit Judge:

I. INTRODUCTION

Pending before the Court is a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and two amended Petitions (hereinafter collectively referred to as "Petition") filed by Petitioner Paul Edward Weber ("Petitioner"). (D.I. 1; D.I. 58; D.I. 63; D.I 113) The Petition presents 17 claims for relief based on alleged violations of several federal constitutional principles and the alleged misinterpretation and misapplication of Delaware sentencing law. The State filed Answers in Opposition, to which Petitioner filed a Reply. (D.I. 12; DI. 77; D.I. 94; D.I. 105) For the reasons discussed, the Court will dismiss the Petition because the claims are either meritless, procedurally barred, or not cognizable on federal habeas review.

II. BACKGROUND

In 2001, a Delaware Superior Court jury convicted Petitioner of second degree forgery and misdemeanor theft due to his forgery of a check for $300. See Weber v. State, 812 A.2d 225 (Table), 2002 WL 31235418, at *1 (Del. Oct. 4 2002); Weber v. State, 197 A.3d 492 (Table), 2018 WL 5993473, at *1 (Del. Nov. 13, 2018). The Superior Court sentenced him to 30 days of imprisonment at Level V for each conviction. See Weber, 2002 WL 31235418, at *1. Petitioner appealed his convictions and sentences to the Delaware Supreme Court, which dismissed the appeal for lack of jurisdiction because Petitioner's term of imprisonment for each conviction did not exceed one month. See id.

Thereafter on August 18, 2004,

at approximately 10:00 p.m., 74 year old Frederick Naspo stopped to refuel his car at the Shell gas station on the corner of Kirkwood Highway and Duncan Road, in New Castle County. As Naspo got out to pump gas, a man with a cigarette behind his ear approached him at the pump. Naspo said, "Good evening," and asked the man whether he intended to smoke near the gas pump. According to Naspo, the man replied, "No, I'm going to take your car." With both hands, the man grabbed for Naspo's car keys, twice telling Naspo that he had a gun. Failing to get the car keys, the man ran away. Naspo had the gas station attendant call the police.

At 10:13 p.m., Delaware State Police Sergeant Mark Hawk responded to the Shell gas station and met with Naspo. Naspo told Hawk that his assailant was a white male, about 35 years old and approximately five feet eight inches tall, 160 pounds, wearing jeans and a loose fitting blue shirt. While speaking with Naspo, Hawk learned that police had a suspect detained in the parking lot of a nearby Sleepy's mattress store, about a block and a half away. The suspect appeared to match Naspo's description of his assailant.

Hawk drove Naspo to the Sleepy's parking lot for a showup identification of the detained suspect, who was [Petitioner], a man whom Hawk had encountered several times before, dating back to 1984. Naspo viewed [Petitioner] from the backseat of Hawk's patrol vehicle. To Naspo, it appeared that [Petitioner] wore military fatigues; however, at trial Hawk testified that [Petitioner] had worn blue jeans and an oversized blue shirt. Unconvinced that [Petitioner] was his assailant, Naspo told police that [Petitioner] was not the man that assaulted him. Police released [Petitioner] and drove him home.

That same night, Hawk interviewed the Shell gas station attendant and learned that the gas station had a video surveillance system. Because the attendant did not have access to the surveillance system, Hawk would have to return in the morning to view the tapes. On August 19, 2004, at around 10:00 a.m., Hawk returned to the gas station and viewed the video surveillance tape. Upon reviewing the footage, Hawk recognized that Naspo's assailant was [Petitioner]. Hawk testified that the man in the video had the same facial features as [Petitioner], and wore the same clothing Petitioner had worn when he was detained in the Sleepy's parking lot: an oversized blue shirt and blue jeans.

Hawk went to [Petitioner's] residence with an arrest warrant and arrested [Petitioner] in his bedroom. At the time, [Petitioner] wore nothing but his underwear, so Hawk grabbed a pair of blue jeans and a blue shirt from the floor of [Petitioner's] bedroom. The police transported [Petitioner] to Troop 2 for booking and processing.

Weber v. State, 38 A.3d 271, 273-74 (Del. 2012).

Petitioner was indicted on charges of attempted first degree robbery and attempted first degree carjacking. See Weber v. State, 971 A.2d 135, 140 (Del. 2009). In 2005, a Delaware Superior Court jury convicted him of both charges, and he was sentenced as an habitual offender to a total of 28 years of imprisonment at Level V (25 years for the robbery conviction and three years for the carjacking conviction). See Id. On appeal, the Delaware Supreme Court affirmed Petitioner's conviction for attempted first degree carjacking, but reversed his conviction for attempted first degree robbery, and remanded the case back to the Superior Court for a new trial. See Id. at 142 (hereinafter "Weber II”). In 2010, the State retried Petitioner for attempted first degree robbery, and a Delaware Superior Court jury convicted him of that offense. See Weber v. State, 38 A.3d 271, 274 (Del. 2012) (hereinafter "Weber II”). The State moved to declare Petitioner an habitual offender, and the Superior Court granted that motion following a hearing. See Id. Petitioner's felony conviction in 2001 for forging a $300 check served as one of the predicate offenses for Petitioner's habitual offender status. See Weber, 2018 WL 5993473, at *1. Petitioner was subsequently sentenced to 25 years of imprisonment at Level V for the robbery conviction. The Delaware Supreme Court affirmed Petitioner's convictions and sentence on February 21, 2012. See Weber II, 38 A.3d at 278. Petitioner petitioned the United States Supreme Court for a writ of certiorari, which the Supreme Court denied on October 1, 2012. See Weber v. Delaware, 568 U.S. 865 (2012).

In February 2013, the attorney who represented Petitioner in his Delaware criminal trial and direct appeal ("defense counsel") filed the first Petition in this proceeding, which asserted eight claims for relief. (D.I. 1) On August 6, 2013, Petitioner, acting pro se, filed in the Delaware Superior Court a motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), alleging that defense counsel was ineffective at trial and on direct appeal. (D.I. 11-4) Petitioner, however, informed the Superior Court that he wished defense counsel to continue representing him in the instant federal habeas proceeding. Id. The State filed a motion to stay the instant proceeding due to the possible conflict of interest and also filed an Answer to the original petition. (D.I. 11; D.I. 12) Defense counsel filed a reply opposing a stay. (D.I. 15) After considering additional briefing, the Honorable Sue L. Robinson (now retired) granted the motion to stay on July 1, 2014. (D.I. 21) Recognizing the conflict of interest caused by defense counsel's representation of Petitioner in his Rule 61 proceeding, the Delaware Superior Court stayed Petitioner's Rule 61 proceeding and attempted to appoint conflict counsel to represent Petitioner. (D.I. 78-1 at 33-34, Entry Nos. 204, 205)

In June 2015, defense counsel filed in this Court a document titled "Petition for Expungement via Habeas Corpus, Coram Nobis, and/or Audita Querala" ("petition for expungement") which initiated the opening of another civil action. See Weber v. Pierce, 2015 WL 7306119, at *1 (D. Del. Oct. 29, 2015). In the petition for expungement, defense counsel argued that Petitioner's 2001 second degree forgery conviction was unconstitutional and should not have been used to enhance Petitioner's 2010 sentence for attempted first degree robbery. Id. Judge Robinson denied the petition for expungement for two reasons: (1) the Court did not have jurisdiction to issue a writ of coram nobis or a writ of audita querela for Petitioner's 2001 Delaware forgery conviction, because those writs are generally limited to challenging federal convictions; and (2) the Court lacked jurisdiction over the proceeding to the extent the expungement petition was brought pursuant to 28 U.S.C. § 2254, because Petitioner was no longer "in custody" for the 2001 forgery conviction. See id.

Meanwhile, defense counsel continued to file motions in Petitioner's Delaware state postconviction proceedings in an attempt to challenge the use of his forgery conviction as a predicate offense that qualified him as an habitual offender. The Superior Court denied all of those motions, (D.I. 77 at 1-2), and the Delaware Supreme Court affirmed those decisions. See Weber v. State, 113 A.3d 1081 (Table), 2015 WL 2329160 (Del. May 12, 2015). Thereafter, acting pro se, Petitioner sought a writ of mandamus from the Delaware Supreme Court to order the Superior Court to allow him to successfully challenge his 2001 second degree forgery conviction. See Matter of Weber, 189 A.3d 184 (Table), 2018 WL 2446803 (Del. May 30, 2018). The Delaware Supreme Court dismissed his mandamus petition. Id.

In April 2016, the Superior Court appointed conflict counsel to represent Petitioner in his Rule 61 proceeding. (D.I. 78-1 at 40-41, Entry No. 269) Conflict counsel filed an amended Rule 61 motion on March 24, 2017. (D.I. 78-1 at 42, Entry No. 281) The Superior Court denied the...