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McDougal v. Wesley

United States District Court, D. Delaware

November 24, 2014

ANDRE McDOUGAL, Petitioner,
v.
STEVEN WESLEY, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

Andre McDougal. Pro se petitioner.

Maria Knoll, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

GREGORY M. SLEET, District Judge.

Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Andre McDougal ("McDougal"). (D.I. 3) The State has filed an answer in opposition. For the reasons discussed, the court will deny the petition.

I. BACKGROUND

In January 2008, a Delaware Superior Court jury found McDougal not guilty of first degree murder, but was hung on the lesser-included charges of second degree murder, manslaughter, and two weapon charges. See McDougal v. State, 31 A.3d 76 (Table), 2011 WL 4921345, at *1 (Del. Oct. 17, 2011). In September, 2008, on the day of his re-trial, McDougal pled guilty to a single charge of manslaughter. Id. He was sentenced, effective July 28, 2006, to twenty years in prison, suspended after three years for one year of Level III probation. Id. McDougal did not appeal his conviction or sentence.

In January, 2010, the Superior Court found that McDougal had violated the terms of his probation from his 2008 manslaughter conviction. See McDougal, 2011 WL 4921346, at *1. McDougal was resentenced to seventeen years at Level V, suspended for seventeen years at Level IV, to be suspended after six months for one year at Level III probation. Id.

On November 18, 2010, Detective Smith of the Wilmington Police Department, Operation Safe Streets, was conducting surveillance in the 2300 block of Carter Street, a high crime area considered to be an open air drug market in the City of Wilmington. See McDougal v. State, 53 A.3d 302 (Table), 2012 WL 3862030, at *2 (Del. Sept. 19, 2012). Detective Smith's attention was drawn to a male with short hair, wearing a black leather jacket and black pants. This individual, McDougal, entered the block and entered the alleyway on the east side of the street, just north of 2312 Carter Street. After approximately 30 seconds, he walked onto a small porch located at 2312 Carter Street and sat on the porch steps. Immediately thereafter, another individual, Keith Webb, entered the same porch, staying approximately 2-3 minutes. Webb then sat beside McDougal on the porch steps. At this point, McDougal got up, went onto the porch for a couple of minutes and then returned to sit on the steps. After McDougal sat back down, two unknown males approached him from the north side of Carter Street and McDougal engaged in a hand-to-hand transaction with them. Specifically, it appeared as if one the males handed money to McDougal who handed him an object in return. Additional law enforcement officers were called in to perform the stop of the individuals. Sergeant Villaverde stopped James Hamilton, the male who received the object from McDougal, and seized 4 bags of heroin stamped "Jaguar" from him. Hamilton advised that he had purchased the heroin for $5 a bag from the male in the black leather jacket and short hair (McDougal), giving him a $20 bill. McDougal was also detained and found to have in his possession $20.51. A search of the porch of 2312 Carter Street uncovered 130 small plastic baggies on a chair, each containing blue wax paper baggies stamped "Jaguar" which contained heroin. On the chair, right next to the heroin, the police found a fully loaded.38 revolver, which had been reported stolen. A baseball hat that was also found on the chair was able to easily conceal the contraband. McDougal was arrested and subsequently indicted on charges of trafficking in heroin, possession with intent to deliver heroin, possession of a firearm during the commission of a felony, possession of a firearm by a person prohibited, and receiving a stolen firearm. (D.I. 14 at 2-3); see McDougal, 2012 WL 3862030, at *2.

In March 2011, following a contested violation of probation hearing ("VOP" hearing), the Superior Court found that McDougal had violated the terms of his probation, and resentenced him to seventeen years at Level V, suspended after fifteen years for two years at Level III probation. See McDougal, 2011 WL 4921345, at *1. The basis of his VOP included the new drug and weapon charges, as well as a missed curfew. McDougal appealed his VOP decision, and the Delaware Supreme Court affirmed the Superior Court's VOP decision and sentence. Id.

II. GOVERNING LEGAL PRINCIPLES

A. The Antiterrorism and Effective Death Penalty Act of 1996

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 AEDP A, 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).

B. Exhaustion and Procedural Default

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. ...


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