United States District Court, D. Delaware
Anthony White. Pro se petitioner.
James T. Wakley, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
GREGORY M. SLEET, District Judge.
Pending before the court is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition") (D.I. 3) filed by petitioner Anthony White ("White"). (D.I. 3) The State has filed an answer in opposition, contending that the petition must be dismissed as untimely. (D.I. 15) For the following reasons, the court will deny the application as time-barred by the one-year limitations period prescribed in 28 U.S.C. § 2244.
On March 15, 2006, Jaywann Tucker and his friend, Ahmand Phoenix, were hanging out on the street after school. Tucker saw Qy-Mere Maddrey and decided to rob him. Tucker held a gun to Maddrey's face and took Maddrey's cell phone and marijuana. Maddrey then called his friend, White, and told him about the robbery. About half an hour later, Maddrey and White found Tucker and Phoenix on the street. Maddrey asked Tucker for Maddrey's cell phone and Tucker told him that he did not have it. White then pulled out a gun and started shooting at Tucker, who ran behind some buildings. White followed him and shot Tucker in the face, left shoulder and left foot.
White v. State, 957 A.2d 2 (Table), 2008 WL 4107980, at *1 (Del. Sept. 5, 2008). White was indicted on charges of attempted first degree murder, possession of a deadly weapon during the commission of a felony, and second degree conspiracy. See White v. State, 994 A.2d 745 (Table), 2010 WL 1781021 (Del. May 12, 2010). In March 2007, a Delaware Superior Court convicted him of attempted first degree murder and the weapons offense and acquitted him of conspiracy. He was sentenced to an aggregate of twenty-nine years of incarceration, suspended after twenty-four years for a period of probation. Id. White appealed, and the Delaware Supreme Court affirmed his convictions and sentence on September 5, 2008. White, 2008 WL 4107980, at *1.
Acting pro se, White filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") on January 14, 2009. See State v. White, Cr. ID No. 0603015418A, Comm'r Rep. & Rec. (Del. Super. Ct. May 1, 2009). The Superior Court denied the Rule 61 motion on July 1, 2009, and White appealed. See White, 2010 WL 1781021. The Delaware Supreme Court affirmed the Superior Court's judgment on May 4, 2010, and denied reargument on May 12, 2010. Id.
On August 16, 2010, this time represented by counsel, White filed a second Rule 61 motion. On November 10, 2010, a Superior Court Commissioner recommended that the Rule 61 motion be denied because the claims asserted therein were time-barred under Rule 61(i)(1) and procedurally barred under Rule 61(i)(2), (3), and (4). See State v. White, 2010 WL 5313561 (Del. Super. Ct. Nov. 10, 2010). The Superior Court adopted that Recommendation on December 13, 2010 and denied the Rule 61 motion, and the Delaware Supreme Court affirmed that decision. See State v. White, ID No. 0603015418A, Order, Jurden, J. (Del. Super. Ct. Dec. 13, 2010); White v. State, No.8, 2011, Order (Del. May 3, 2011).
On August 17, 2010, while his second Rule 61 motion was pending, White filed a pro se federal habeas petition, along with a motion to stay the proceeding during the pendency of his second Rule 61 proceeding. (D.I. 1 and 4 in White v. Phelps, Civ. A. No. 10-731-ER) White contended that he wished to include in his federal habeas petition the claims raised in the second Rule 61 motion, but that the claims were unexhausted for federal habeas purposes because he could present them to the Superior Court via the exceptions to procedural bars as contained in Rule 61(i)(1), (2), and (5). White also contended that a stay was necessary because there would only be thirty days left in AEDPA's limitations period once his second Rule 61 proceeding ended. After determining that White's calculation regarding the limitations period was incorrect, and that AEDPA's limitations period would not clearly foreclose his ability to file a habeas petition upon the completion of his second Rule 61 proceeding provided that the second Rule 61 motion was properly filed under the Delaware state court rules, the Honorable Eduardo C. Robreno denied the motion to stay. (D.I. 7 in White v. Phelps, Civ. A. No. 10-731-ER) Pursuant to governing law, Judge Robreno gave White two choices: (1) he could delete the unexhausted claims and continue his habeas proceeding with the exhausted claims; or (2) he could have his habeas petition dismissed without prejudice and file one all-inclusive habeas petition upon exhaustion of state remedies. Id. White asked to voluntarily withdraw his habeas petition, and Judge Robreno dismissed the petition without prejudice on December 17, 2010. (D.I. 8 and 11 in White v. Phelps, Civ. A. No. 10-731-ER)
White filed the instant pro se habeas petition in July 2011, alleging the following six claims: (1) the judge presiding over his trial violated his due process rights by communicating with the jury ex parte ; (2) his rights under the Confrontation Clause were violated when the State used out-of-court statements against him without laying the proper foundation; (3) the trial court erred by not declaring a mistrial sua sponte or sanctioning the prosecutor for his blatant disregard of the court's rules, orders, and objections; (4) trial counsel provided ineffective assistance; (5) the prosecutor engaged in various forms of misconduct, including retaliation, unduly influencing witnesses Meddrey and Tucker, purposefully ignoring the trial court's order prohibiting the State from mentioning White's prior weapons conviction, and making racist remarks during closing; and (6) the Delaware Supreme Court erred on post-conviction appeal by denying his claims as procedurally barred. (D.I. 3) The State filed an answer in opposition, alleging that the petition should be denied as time-barred or, alternatively, that the court should deny four claims as procedurally barred, one claim for failing to assert an issue cognizable on federal habeas review, and one claim as meritless. (D.I. 15)
II. ONE YEAR STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law by the President on April 23, 1996, and habeas petitions filed in federal courts after this date must comply with the AEDPA's requirements. See generally Lindh v. Murphy, 521 U.S. 320, 336 (1997). 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).
White's petition, filed in 2011, is subject to the one-year limitations period contained in § 2244(d)(1). See Lindh, 521 U.S. at 336. White does not allege, and the court does not discern, any facts triggering the application of § 2244(d)(1)(B), (C), or (D). Thus, the one-year period of limitations in this case began to run when White'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 upon expiration of the ninety-day time period allowed for seeking certiorari review. 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). In this case, the Delaware Supreme Court affirmed White's conviction and sentence on September 5, 2008. Following that decision, White did not file a petition for a writ of certiorari in the United States Supreme Court. Consequently, White's conviction became final for the purposes of § 2244(d)(1) on December 4, 2008. Accordingly, to comply with the one-year limitations period, White had to file his § 2254 petition by December 4, 2009. See Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005)(holding that former Federal Rule of Civil Procedure 6(a), (e) applies to federal habeas petitions).
White did not file his habeas petition until July 25, 2011,  approximately one and one-half years after the expiration of AEDPA's statute of limitations. Thus, the petition is time-barred, unless the limitations period can be statutorily or equitably tolled. See Holland v. Florida, 560 U.S. 631, 645 (2010)(equitable tolling); ...