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Burton v. Pierce

United States District Court, D. Delaware

March 30, 2017

MARVIN BURTON, Petitioner,

          Mark S. Greenberg. Counsel for petitioner.

          Elizabeth R. McFarlan, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.


          Sleet District Judge

         Pending before the court is a petition and a supplemental petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition") filed by petitioner Marvin Burton ("Burton"). (D.I. 1; D.I. 10; D.I. 23) The State filed an answer in opposition. (D.I. 24) For the reasons discussed, the court will deny the petition.


         A. The Facts [1]

C.B. was 11-years-old when Burton sexually abused her. Burton is her father. Kesha Davis is her mother. Burton and Kesha were involved in a romantic relationship in 1992 when they were 25 and 16, respectively. He ended the relationship after Kesha became pregnant with C.B. Several years later Burton was convicted of two counts of Unlawful Sexual Intercourse in the Third Degree and sentenced to serve four and one-half years in prison. The victim was a 13-year-old girl. C.B. had no contact with Burton until after he was released from prison in January 2004. Vivian Burton did not know that C.B. was her granddaughter until after Burton was released from prison. Burton and Kesha resumed their relationship soon after he was released from prison.
Burton moved into a trailer behind his parents' house on their property after he was released from prison. The trailer was used primarily for storage and had only one bedroom. It did not have running water or air-conditioning. Kesha moved into the trailer with Burton. C.B. moved into Burton's parents' house. Kesha and her three children had been staying with Kesha's aunt, Sharon Hernandez. When Kesha and C.B. moved to Burton's parents' property, Kesha's other two children, A and Z, remained with Sharon until they moved in with their father[2] in May 2004. Burton and Kesha did not spend nights in the house. They stayed in the trailer. C.B. did not spend nights in the trailer. She stayed in the house. C.B. spent some nights with her other relatives that summer, primarily those who had children her age.
Vivian Burton worked part-time cleaning houses one or two days a week. Marvin Burton, Sr. worked full-time at Kent-Sussex Industries, They both left in the morning for work. Thus, there were times when Vivian and Marvin Burton, Sr. were not at their home. Burton worked for a contractor who was renovating a school during the day and a cleaning service at night. His construction job eventually ended, leaving him only with the night job. Kesha cut hair during the day and also worked at the cleaning service at night.
Burton was convicted of improperly touching C.B.'s breasts with his hands and her buttocks with his penis and raping her vaginally with his fingers and penis. His sexual abuse of C.B. escalated quickly over a short period of time. The improper sexual contact occurred one evening in Burton's parents' house at the end of the school year, possibly in May or June. C.B., Kesha and Burton were in the house. C.B. and Burton were in the hallway near the bathroom. Kesha was in the living room. Burton touched C.B.'s breasts and hugged her so forcefully from behind that she could feel his penis rubbing against her buttocks through her clothing. When Kesha left the living room to check on C.B., she saw Burton hugging C.B. from behind. Burton moved away from C.B. after Kesha saw him.
The rapes occurred in the morning at Burton's parents' house in August. The first rape occurred while C.B. was asleep in her bed. She woke up when Burton put his fingers in her vagina. This happened while Vivian Burton and Kesha were at work. C.B. and Burton were alone in the house that day. The second rape occurred after C.B. had gotten out of bed and was getting ready to take a shower. Burton came into her room, pushed her onto the bed, removed her pajamas, got on top of her and put his penis in her vagina. Burton stopped after about five minutes and left the room. This also happened while Vivian Burton and Kesha were at work. C.B. did not tell anyone about Burton raping her because he told her that he would get in trouble and go to jail and she would be sent away.
Burton and Kesha got married on September 1, 2004. However, their marriage quickly unraveled. Burton, who was a pastor of sorts, started calling and visiting his ex-wife regularly and counseling a teenage girl on the phone. Kesha got tired of this and moved to North Carolina with C.B. and her other children around the middle of September. She and her children returned to Delaware to attend her brother's birthday party in October. During the trip home, Kesha asked C.B. if she wanted to see Burton while they were in Delaware. C.B. became upset and told Kesha about some of the things that Burton had done to her. This prompted Kesha to arrange a three-way cell phone call between C.B., Burton and Rhonda Street, her cousin. She had Rhonda listen in on the conversation between C.B. and Burton. Burton did not know that Rhonda was listening in on his conversation with C.B. He made a number of incriminating statements during the conversation that Rhonda heard, including telling C.B. that she needed to change her story about him touching her. This led to an investigation by the police, more disclosures by C.B., the charges against Burton, and his trial.
B. The Trial
The State's ease against Burton rested largely on the testimony of C.B., Kesha, Rhonda, Karen Smail and Christopher Judge. C.B, testified about Burton touching her breasts with his fingers and her buttocks with his penis and placing his fingers and penis in her vagina at his parents' house. Kesha testified about seeing Burton "grinding" against C.B. at his parents' house. C.B., Kesha and Rhonda testified about the three-way phone conversation with Burton where he made incriminating statements about sexually assaulting C.B. Karen Smail is the nurse who examined C.B. She testified that C.B.'s hymen was broken and that the results of her examination led her to believe that C.B. had engaged in sexual activity. Christopher Judge is a records custodian for Verizon Wireless, His testimony linked the cell phone numbers belonging to Kesha, Burton and Rhonda to a three-way cell phone call on October 2, 2004.
Burton's defense was that he was never alone with C.B. at his parents' house, that C.B. had recanted her allegations of sexual abuse, and that C.B. had spent some time with her other relatives that summer. His defense rested on the testimony of Vivian Burton, Stacie Brittingham, Katrina Morris and Tionyell Cannon. Burton used Vivian Burton's testimony to attack the two rape charges by attempting to show that he was never alone with C.B. at his parents' house. Vivian Burton testified about C.B.'s living arrangements while C.B. was at her house. C.B. was never alone with Burton in her house the entire summer. She would be with both Burton and Kesha. If Vivian Burton left the house, C.B. would not be left alone in the house by herself. She would be either with her mother or at a relative's house according to Vivian Burton.
Burton used Stacie Brittingham's testimony to attack the unlawful sexual contact charge by attempting to show that C.B. had said that it did not happen. Stacie testified about a conversation she had with C.B. about the "grinding incident." She has two children, Tiara and Melvin, C.B. attended Tiara's birthday party and spent the night at Stacie's house on Saturday, August 21, 2004. Kesha picked up C.B. the next day. However, according to Stacie, before C.B. left, Stacie and Kesha talked about the "grinding incident" in the hallway at Vivian Burton's house, Stacie testified that she asked C.B. if this happened. C.B. said that it did not according to Stacie. Kesha testified at the trial that C.B., when asked by Stacie if anything had happened with Burton, said that it did not. C.B. admitted at the trial that she told Stacie and Kesha that Burton did not do anything to her, but she added that her denial was not true. She did not tell Kesha and Stacie the truth because she thought her siblings, which [sic] she had just gotten to know, would be mad at her if she got Burton, their father, in trouble.
Burton used the testimony of Katrina Morris and Tionyell Cannon to show that C.B. had spent some time with them that summer. Katrina Morris testified about C.B, spending some time with her and her husband, Eric Morris, at their house in the summer. They have four children and live approximately one-quarter of a mile away from Burton's parents' house. C.B. used to come and "stay the night" with Katrina and Eric all the time during the summer of 2004. C.B. had sleep-overs with Katrina's oldest daughter, Erica. During the Summer of 2004, from the time school got out in June until it started back in September, C.B. spent "four or five nights straight" either the weekend before or after the 4th of July, and then three or four times after that "she spent a night or two" according to Katrina.
Tionyell Cannon testified about C.B. spending time with her. She has three children, one of which, Jaquesha Burton, was fathered by Burton. Tionyell has never been married to Burton. C.B. "spent the night" with her "maybe about six to ten times" during the Summer of 2004.
However, none of Burton's witnesses testified that C.B. had moved out of his parents' house in July and was not living there in August and September.

Burton, 2010 WL 3946275, at * 1-4.

         C. Procedural Background

         In August 2005, a Delaware Superior Court jury convicted Burton on one count each of first degree rape (victim under the age of 12), second degree rape (victim under the age of 12), and second degree unlawful sexual contact. The Superior Court sentenced him as a habitual offender to two life sentences plus two years at Level V incarceration. (D.I. 24 at 1) Burton appealed, and his appellate counsel moved to withdraw after finding no arguable meritorious claims for relief to present to the court. See Burton v. State, 907 A.2d 145 (Table), 2006 WL 2434914, at *1 (Del. Aug. 21, 2006). The Delaware Supreme Court informed Burton he could present any issues he wished to include for presentation to the court, but he elected not to do so. Id. The Delaware Supreme Court affirmed Burton's convictions and sentences. Id.

         On August 16, 2007, Burton filed his first pro se motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the Rule 61 motion. See State v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3, 2008). Burton appealed in June 2008, and then subsequently attempted to supplement the record with various affidavits. Because the trial court had not considered the new evidence in the first instance, the Delaware Supreme Court remanded the case to the Superior Court to allow that court to consider Burton's new evidence. See Burton v. State, 968 A, 2d 491 (Table), 2009 WL 537194 (Del, Mar. 4, 2009). On remand, the Superior Court granted Burton's request for an evidentiary hearing. See Burton, 2010 WL 3946275, After the evidentiary hearing was held in 2009, but before the Superior Court issued its decision, the State provided Burton with a DVD of C.B. recanting her testimony. (D.I. 10 at 7) The DVD was generated in January 2010 by the Child Advocacy Center ("CAC") in connection with an interview of C.B. regarding her status as a foster child. Id. In this video, C.B. told the interviewer that her accusations against Burton were a "fraud." Id. On March 5, 2010, Burton filed a motion to re-open the record in the Superior Court, alleging that the DVD constituted evidence of Burton's actual innocence and that the DVD also supported his ineffective assistance of counsel claim. (D.I. 21-10 at 30, Entry No. 143) The Superior Court docket reflects that the Superior Court planned to schedule a hearing regarding the recantation. (D.I. 21-10 at 30, Entry No. 144) Instead, however, the Superior Court held an office conference on this issue on June 15, 2010. (D.I. 21-10 at 30, Entry No. 154)

         On June 18, 2010, the Superior Court denied the motion to reopen, explaining that the scope of the Delaware Supreme Court's remand "is clearly limited to consideration of whether the three new statements [in the affidavits] would have affected my decision on Mr. Burton's claim of ineffective assistance of counsel. Therefore, I will consider the record closed and will issue a written decision on the record before me." (D.I. 21-10 at 31, Entry No, 155) After considering the 2009 evidentiary hearing testimony and subsequent briefing, the Superior Court denied Burton's Rule 61 motion in its entirety on September 30, 2010. See Burton, 2010 WL 3946275, Burton appealed, and the Delaware Supreme Court affirmed that decision. See Burton v. State, 29 A.3d 245 (Table), 2011 WL 4342636 (Del. Sept. 15, 2011).

         Represented by counsel, Burton timely filed a federal habeas petition in November 2011. (D.I. 1) In June 2012, Burton moved, with the consent of the State, to stay the habeas proceeding to allow him to exhaust one of his claims. (D.I. 16) The court granted the motion to stay. (D.I. 17)

         In June 2012, C.B. pled guilty to first degree assault and possession of a deadly weapon during the commission of a felony, based on an incident in which C.B. stabbed another woman for talking to C.B.'s son's father. See State v. Burton, 2014 WL 5468874, at *5 (Del. Super. Ct. Aug. 27, 2014). During the pre-sentence investigation in that case, C.B. informed the investigator that she was under pressure from Burton's family to recant her ...

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