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Neal v. Pierce

United States District Court, D. Delaware

February 24, 2017

MICHAEL NEAL, Petitioner,
v.
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

          Edson A. Bostic. Federal Public Defender's Office, Wilmington, Delaware. Counsel for petitioner.

          Maria T. Knoll, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

          MEMORANDUM OPINION

          Sleet, District Judge

         Pending before the court is a petition and an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition") filed by petitioner Michael Neal ("Neal"). (D.I. 1; D.I. 42) The State filed an answer in opposition. (D.I. 9; D.I. 43) For the reasons discussed, the court will deny the petition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

A. The New Year's Eve Robberies
On December 31, 2008, a group of armed men wearing gloves and disguises robbed three businesses in Wilmington. The first business was Cutrona Liquors. The co-owners, Ashok and Navin Patel, testified at trial that three men rushed into the store brandishing a gun. The men pointed the gun at Ashok and ordered him and his wife into a corner of the store. While one member of the gang guarded the door, another emptied cash and receipts from a box, and the third removed vodka from a display. The robbers fled the scene in a white car. Ashok followed the car and obtained the license plate number, which he later turned over to the police.
The robbers next visited Dun-Rite Dry Cleaners. Soo Kim, a co-owner, testified that three men casually entered the store while she attended to a customer. After the customer left, the three men rushed toward her with a gun. Kim fled to the back of the store and called the police. Her husband and another employee opened the cash register for the robbers.
The group then descended upon Creative Images Barber Shop. Larry Parks, the owner, testified at trial that three men entered the store brandishing guns and demanding money, wallets, and cell phones. The robbers held Parks at gunpoint and pistol whipped two customers with a gun.
Wilmington Police located and arrested four men in a white Chevrolet Lumina later that day. Inside the car, officers discovered the spoils of their felonious escapade: a handgun, masks, liquor bottles, cash, and other items plundered from the stores. Officers eventually identified the men in the car as Kevin Berry, Robert Brown, Michael Neal, and Kadeem Reams.
A grand jury indicted Neal on 36 counts related to the New Year's Eve robberies: nine counts each of First Degree Robbery, Possession of a Firearm During the Commission of a Felony, and Second Degree Conspiracy.
B. Neal's Trial
Neal's trial began on August 11, 2009. Prior to trial, the State offered each of the four co-defendants a plea bargain in exchange for his testimony at any of the other co-defendants' trials. Berry, Brown, and Reams accepted their plea offers. Neal did not accept his plea offer and proceeded to trial.
At trial, the State presented 85 exhibits and the testimony of 24 witnesses. The State also planned to present the testimony of Neal's three co-defendants pursuant to the terms of their plea bargains. The State presented Brown's testimony, which implicated Neal as having played a role in the inception, planning, and execution of the robberies. On cross-examination, however, Brown admitted to initially telling the police that Neal had not participated in the robberies. Neal's trial counsel did not request a Bland instruction[1] and the trial judge did not sua sponte give a Bland instruction regarding Brown's testimony.
The State declined to call Berry and Reams when it learned that the two co-defendants had made out-of-court statements tending to exculpate Neal. Berry made the exculpatory statement to his attorney, while Reams spoke directly to the Attorney General and detectives. The State related this information to Neal's trial counsel.
Neal's trial counsel then attempted to call Berry and Reams to testify on [Neal's] behalf. Each of them, however, invoked his Fifth Amendment right against self-incrimination and refused to testify. Berry and Reams feared that if they testified in Neal's defense, they would breach their plea bargains with the State. Without their testimony, Neal's trial counsel sought to admit Berry's and Reams' out-of-court statements under 11 Del. C. § 3507. After brief argument on the issue, the trial judge concluded that the statements were not admissible under Section 3507. The trial judge reasoned that Berry and Reams would not be "subject to cross examination" under the statute if they invoked their Fifth Amendment privileges. Neal's lawyer asserted no other basis to admit the statements. Neal called no other witnesses and presented no evidence in his defense. A jury convicted Neal on all 36 counts and the trial judge sentenced him to 54 years incarceration.

Neal v. State, 80 A.3d 935, 939-40 (Del. 2013). Neal appealed, and the Delaware Supreme Court affirmed his convictions. See Neal v. State, 3 A.3d 222 (Del. 2010).

         In June 2011, Neal filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the motion, and the Delaware Supreme Court affirmed that decision. See State v. Neal, 2013 WL 1871755, at *12 (Del. Super. Ct. May 1, 2013); Neal, 80 A.3d at 952. Neal moved for a rehearing en banc, which the Delaware Supreme Court denied. (D.I. 9 at 5)

         While represented by a privately retained attorney, Neal timely filed his original habeas petition in February 2014. (D.I.I) The State filed an answer. (D.I. 9) Thereafter, Neal's attorney passed away, and the Federal Public Defender was appointed in his place. Now represented by the Federal Public Defender, Neal filed a reply brief, (D.I. 27), to which the State filed a sur reply (D.I. 35). After obtaining the court's permission, Neal filed an amended petition. (D.I. 42) The State filed a response, (D.I. 43), and Neal filed a reply (D.I. 45).

         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 AEDPA, 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. See 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). AEDPA states, in pertinent part: .-

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be ...

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