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Phlipot v. Johnson

United States District Court, D. Delaware

April 27, 2015


Matthew M. Phlipot. Pro se Petitioner.

Karen V. Sullivan, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.


RICHARD G. ANDREWS, District Judge.

Petitioner Matthew M. Phlipot ("Petitioner") filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and an Amendment to that Application (hereinafter collectively referred to as "Petition"). (D.I. 1; D.I. 10) The State filed an Answer in opposition, and Petitioner filed a Reply. (D.I. 15; D.I. 18) For the reasons discussed, the Court will deny the Petition as barred by the limitations period prescribed in 28 U.S.C. § 2244.


On February 29, 2009, Petitioner entered a guilty plea to endangering the welfare of a child. (D.I. 15 at 4) This charge stemmed from Petitioner's interactions with a seventeen year old female ("KK") when he was thirty-two. Id. at 2. Petitioner was sentenced to probation, and ordered to have no contact with KK in any manner, either directly or through a third party. Id. at 4. Despite the no-contact order, Petitioner sent KK numerous emails. He created a special Yahoo! account through which he would create a message for KK to read that would not indicate an obvious "sent" or "received" message. A subpoena to Yahoo! allowed access to that information, and KK saved, printed, and gave copies of some of the emails to the Delaware State Police. Id.

Thereafter, Petitioner was indicted in May 2009 on four counts of fourth degree rape. (D.I. 15 at 1) In October 2009, the grand jury returned a superseding indictment charging Petitioner with the original four counts of rape and an additional twenty-seven counts of criminal contempt, six counts of witness tampering, and one count of falsely reporting an incident. Id. Following a jury trial in the Delaware Superior Court, Petitioner was convicted of two counts of fourth degree rape, twenty-seven counts of criminal contempt, and six counts of witness tampering. See Phlipot v. State, 19 A.3d 302 (Table), 2011 WL 1716366, at *2 (Del. May 3, 2011). The jury acquitted Petitioner on the two other charges of fourth degree rape, and the Superior Court dismissed the charge for falsely reporting an incident charges on a motion for judgment of acquittal. See State v. Phlipot, 64 A.3d 856, 857 (Del. Super. Ct. 2012); (D.I. 15 at 1) On August 12, 2010, the Superior Court sentenced Petitioner to five years at Level V incarceration on each of the rape charges (for a total of ten years at Level V incarceration), followed by six months at Level IV home confinement and two years of probation; an aggregate of eight years at Level V incarceration on the witness tampering charges, suspended for probation; and a $100 fine on each of the twenty-seven counts of criminal contempt.[2] See Phlipot, 2011 WL 1716366, at *2. The Delaware Supreme Court affirmed Petitioner's convictions and sentences on May 3, 2011. Id.

On March 2, 2012, Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). See Phlipot, 64 A.3d at 858. The Superior Court denied the Rule 61 motion on December 18, 2012, and the Delaware Supreme Court affirmed that decision on April 25, 2013. See id. at 867; Phlipot v. State, 65 A.3d 167 (Table), 2013 WL 1798946 (Del. Apr. 25, 2013).

Petitioner filed a motion for modification of sentence on September 2, 2014, which the Superior Court denied on September 16, 2014. (D.I. 17, Del. Super. Ct. Crim. Dkt. Entry Nos. 151, 152)

The instant Petition is dated March 17, 2014, and asserts the following grounds for relief: (1) the Superior Court improperly instructed the jury that mistake of age was not a defense for the rape offenses, and defense counsel provided ineffective assistance by not objecting to the Superior Court's improper instruction and also by failing to advance a mistake of age defense; (2) defense counsel provided ineffective assistance by failing to present a meritorious defense and by seeking to exclude the evidence that Petitioner engaged in sexual intercourse with KK in Maryland; and (3) the State violated Brady v. Maryland, 373 U.S. 83 (1963) by withholding exculpatory evidence.[3] The State contends that the Court should deny the Petition as time-barred. (D.I. 15 at 5-16) Alternatively, the State contends that Petitioner's ineffective assistance of counsel claims should be denied for failing to satisfy § 2254(d), and his remaining claims should be denied as procedurally defaulted. (D.I. 15 at 16-27) Petitioner filed a Reply asserting that his untimely filing should be excused because he is actually innocent. (D.I. 18)


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 ...

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