United States District Court, D. Delaware
OTTO G. GIBBS, Petitioner,
PHIL MORGAN, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
pending before the Court is Petitioner Otto G. Gibbs'
Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C.
§ 2254 ("Petition"). (DI. 1) On June 20, 2011,
Petitioner was on probation for his 1997 conviction for
second degree unlawful intercourse when he was arrested for
failing to properly register as a sex offender. (D.I. 1;
see also Gibbs v. Carroll, 2004 WL 1376588 (D. Del.
June 17, 2004); Gibbs v. Morgan, 2015 WL 5319819 (D.
Del. Sept. 14, 2015)) On October 11, 2011, Petitioner pled
guilty to failing to register as a sex offender and was
immediately sentenced to sixty days of incarceration. (D.I. 1
filed the instant Petition in 2013. Although not entirely
clear, Petitioner appears to contend that the Delaware
Superior Court violated his right to counsel by refusing to
appoint an attorney to represent him during his December 20,
2010 sex offender tier assessment hearing. (D.I. 1 at 18)
Petitioner appears to assert that Del. Code Ann. tit. 11,
§ 4120 created a liberty interest in having
representation during a sex offender tier assessment hearing,
and, therefore, the Superior Court's refusal to appoint
counsel violated his due process rights. Id.
Petitioner also asserts that the application of Del. Code
Ann. tit. 11, § 4120 to his case violates the Ex Post
Facto Clause and the Double Jeopardy Clause. (D.I. 1 at 19)
courts are required to liberally construe pro se
filings. See Rqyce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998). Nevertheless, a district court may summarily
dismiss a habeas petition "if it plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief." See
Rule 4, 28 U.S.C. foll. § 2254. Pursuant to 28 U.S.C.
§ 2254(a), a federal district court has jurisdiction
over a habeas petition filed on behalf of a person in custody
pursuant to the judgment of a State court "only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States."
extent Petitioner asserts that his sex offender tier hearing
and his designation as a Tier III sex offender pursuant to
§ 4120 violated the Ex Post Facto Clause, and his right
to be protected against Double Jeopardy, the Court notes that
it has already considered and denied this identical argument
in another habeas petition filed by Petitioner. See
Gibbs, 2015 WL 5319819 at *3-*4. Therefore, the Court
will not address this repetitive argument here.
Petitioner's contention that the Superior Court violated
his Due Process rights by denying his motion for the
appointment of counsel during his December 2010 sex offender
tier assessment hearing, the Court concludes that summary
dismissal of this argument is appropriate. The Due Process
Clause of the Fourteenth Amendment protects certain
fundamental rights. See White v. Napoleon, 897 F.2d
103, 111 (3d Cir. 1990). The first step in analyzing if a
prisoner's Due Process rights have been violated is
determining if the prisoner has been deprived of an existing
liberty or property interest. See Swarthout v.
Cooke, 562 U.S. 216, 219 (2011). "A liberty
interest may arise from the Constitution itself, by reason of
guarantees implicit in the word 'liberty', or it may
arise from an expectation or interest created by state laws
or policies." Wilkinson v. Austin, 545 U.S.
209, 221 (2005). If the prisoner has been deprived of a
liberty interest, then the Court must engage in a further
inquiry to determine if the procedures followed by the State
were constitutionally sufficient. See Swarthout, 562
U.S. at 219.
Court has not found any Supreme Court case holding that a
convicted sex offender has a liberty interest in being
represented by counsel during a sex offender tier assessment
hearing, and Delaware has not created a statutory right to
counsel in such proceedings. Consequently, Petitioner did not
have a liberty interest in being represented by counsel
during his December 2010 tier assessment hearing. See,
e.g., Wilkerson v. State, 897 A.2d 768 (Table), 2006 WL
822733, at *2 (Del. Mar. 28, 2006) ("[T]riis Court has
previously ruled that this 'compulsory approach' to
sex offender registration and community notification does not
implicate any state or federal constitutional liberty or
privacy interest and does not constitute a violation of
either due process or equal protection."). As such, the
Superior Court's denial of Petitioner's request for
counsel during his sex offender tier assessment hearing did
not implicate the Due Process Clause.
on the foregoing, Petitioner's instant complaint about
the Superior Court's denial of his motion for the
appointment of counsel constitutes a challenge to the
Delaware Superior Court's interpretation and application
of Delaware law. It is well-settled that state law errors do
not present issues cognizable on Federal habeas review.
See Estelk v. McGuire, 502 U.S. 62, 67-68 (1991).
Accordingly, the Court concludes that it lacks jurisdiction
over the Petition.
reasons set forth above, the Court will summarily dismiss the
instant Petition for lack of jurisdiction. The Court will
also decline to issue a certificate of appealability because
Petitioner has failed to make a "substantial showing of
the denial of a constitutional right." See 28
U.S.C. § 2253(c)(2); 3d Cir. L.A.R. 22.2 (2011);
United States v. Eyer, 113 F.3d 470 (3d Or. 1997). A
separate Order will be entered.