United States District Court, D. Delaware
BILLY G. JOHNSON, Petitioner,
KARL HINES, Bureau Chief, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents.
Billy G. Johnson, Petitioner, Pro se.
Elizabeth R. McFarlan. Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
SUE L. ROBINSON, United States District Judge.
Presently before the court is petitioner Billy G. Johnson's (" petitioner" ) application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 1; D.I. 3) Petitioner was under the supervision of the Delaware Office of Probation and Parole when he filed the instant application. For the reasons that follow, the court will dismiss his application.
II. FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2006, Delaware State Police Detective William Crotty was working undercover for the Sussex County Drug Task Force. While driving through the Cool Spring Farms areas of Milton, Delaware, Detective Crotty was flagged down by petitioner. Detective Crotty stopped his vehicle and petitioner asked him what he " needed." From this question Detective Crotty inferred that petitioner was offering to sell him illegal drugs. Detective Crotty asked petitioner for " tree," a term commonly understood to mean marijuana. Petitioner responded that he could help and asked Detective Crotty for a ride around the corner. Detective Crotty agreed and followed petitioner's directions to a yellow house on Meadowview Drive. Detective Crotty gave $40 to petitioner, who then told the Detective to drive down the street and wait for him.
Detective Crotty parked about 100 yards away, and watched petitioner knock twice on the door of the yellow house. No one answered. Petitioner then walked back to Detective Crotty's car and told him that they would have to wait. Shortly thereafter, two cars pulled up to the yellow house and two men got out. Petitioner told Detective Crotty to wait, and approached the two men. Detective Crotty then observed petitioner and the two men engage in a series of hand-to-hand exchanges, after which the other men left the scene.
Suspecting that petitioner had just bought drugs, Detective Crotty motioned for petitioner to return to his car. The Detective asked petitioner if he now had the marijuana he had asked for earlier. Petitioner replied that to get marijuana, Detective Crotty would have to drive him and his girlfriend Lynn Bates (who was standing outside of the yellow house) to a different part of town. Because Detective Crotty did not want to have more than one other person in his car, he asked petitioner if he could purchase crack cocaine instead of marijuana. Petitioner told Detective Crotty to drive up the street and then come back.
As Detective Crotty was driving away, he looked in his rear view mirror and saw petitioner hand something to Bates. Detective Crotty turned his car around, intending to drive back towards petitioner, but petitioner waved him away and pointed toward Bates, indicating that Crotty should go to Bates to purchase the drugs. Crotty dove up to Bates, who handed him a package containing crack cocaine, after which Detective Crotty drove away.
In November 2006, petitioner was charged with delivery of cocaine and second degree conspiracy. See State v. Johnson, 2010 WL 1138867, at *1 (Del. Super. Mar. 24, 2010). At petitioner's trial, Bates testified that she was petitioner's girlfriend, that petitioner gave her some crack cocaine, and that petitioner told her to give it to Detective Crotty. Id.
On September 11, 2008, a Delaware Superior Court jury convicted petitioner of delivery of cocaine and second degree conspiracy. See Johnson, 2009 WL 2006881, at *2. The Superior Court sentenced him as an habitual offender to an aggregate of seven years of Level V incarceration, suspended after five years for two years of probation. See Johnson, 2010 WL 1138867, at *1. The Delaware Supreme Court affirmed petitioner's convictions and sentence on direct appeal. See Johnson, 2009 WL 2006881, at *3.
In September 2009, petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 (" Rule 61 motion" ), asserting three grounds for relief: (1) ineffective assistance of counsel; (2) improper habitual offender sentence; and (3) improper indictment and jury instructions regarding accomplice liability. See Johnson, 2010 WL 1138867, at *1. The Superior Court denied petitioner's Rule 61 motion, and the Delaware Supreme Court affirmed that decision. Id.; see Johnson v. State, 5 A.3d 630 (Table), 2010 WL 3672859 (Del. Sept. 21, 2010).
Petitioner filed a second Rule 61 motion, alleging: (1) the trial court violated his constitutional rights by adding the offense of liability for the conduct of another to the indictment; (2) the trial court violated his constitutional rights by instructing the jury on the offense of liability for the conduct of another because the offense was not included in the indictment; (3) the trial court improperly sua sponte amended the indictment to include the offense of the liability for the conduct of another; and (4) there was insufficient evidence for the grand jury to indict ...