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Wheeler v. Pierce

United States District Court, D. Delaware

May 16, 2017


          Daemont Wheeler. Pro se Petitioner.

          Katherine Joy Garrison, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.



         Presently pending before the Court is Petitioner Daemont Wheeler's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 3) The State filed an Answer in opposition, contending that the Petition should be dismissed in its entirety. (D.I. 17)

         For the reasons discussed, the Court will dismiss the Petition.

         I. BACKGROUND

On November 13, 2009, Herbie Davis was shot in the back and leg several times while he was in the kitchen of Tricia Scott's home near Dover. Davis lived in Wilmington but stayed at Scott's home occasionally and considered her his fiancée. Davis and Scott were planning on Davis moving into her home. Several of Tricia Scott's children, including Shani and Amber, and grandchildren, also lived with her.
[Petitioner] was Amber's boyfriend and frequently stayed in Amber's bedroom in the basement of Scott's home. In 2009, Amber gave birth to a baby, fathered by [Petitioner]. Davis testified that he and [Petitioner] did not get along after Davis told [Petitioner] that he should get a job to help support Amber, the baby, and the household.
Davis testified that shortly before the shooting on November 13, 2009, [Petitioner] had been downstairs with Amber. Davis and Shani were in the kitchen area. When [Petitioner] came upstairs, he had a disagreeable exchange with Davis before [Petitioner] walked out the back door. Davis then went out the front door to smoke a cigarette and returned several minutes later.
Davis testified that after he returned and was talking with Shani in the kitchen area, [Petitioner] came up behind him and shot him several times after saying, "I really don't like you." After shooting Davis, [Petitioner] fled. Davis fell to the kitchen floor and told Shani that he could not feel his legs. Shani called 911 and applied pressure to Davis' leg. When Amber rushed upstairs to the kitchen, after hearing the gun shots, Shani told her: "Daemont just shot Herbie-''
Mr. Herbie." At 8:55 p.m. on November 13, 2009, Delaware State Police Corporal Thomas Lamon was dispatched to investigate a report that someone had been shot. Corporal Lamon was the first police officer to arrive at Trisha Scott's home. When Corporal Lamon entered the residence, he saw Davis on the kitchen floor surrounded by blood. Shani was kneeling over Davis. Corporal Lamon testified that Davis and Shani were the only people in the kitchen, and that Shani "was clearly upset, shaken." Davis told Corporal Lamon, "Daemont shot me."
Delaware State Police Detective Mark Ryde was the chief investigating officer. When he arrived at the Scott residence, Detective Ryde conducted separate recorded interviews of Trisha Scott's two daughters, Shani and Amber. Those interviews were conducted in Detective Ryde's police car.
After the on-scene investigation concluded. Detective Ryde attempted to locate the suspect, [Petitioner]. After Detective Ryde was unable to locate [Petitioner] at two addresses, he prepared an arrest warrant. That arrest warrant was placed in the National Crime Index Center database.
On November 23, 2009, Detective Ryde received information that [Petitioner] might be at a certain apartment in Harrington, Delaware. The apartment house was owned by Mary Zachery. Detective Ryde obtained a search warrant. Inside the unoccupied apartment. Detective Ryde found a document and prescription medication with [Petitioner]'s name. Later, Detective Ryde conducted an imrecorded interview of Mary Zachery at State Police Troop No. 3.
In January 2010, in an effort to locate [Petitioner], Detective Ryde contacted the United States Marshal's Task Force. [Petitioner] was apprehended on January 27, 2010, in Wayne County, Michigan. After waiving an extradition hearing, [Petitioner] was returned to Delaware on February 17, 2010.

Wheeler V. State, 36 A.3d 310, 312-13 (Del. 2012)

         Petitioner was indicted for attempted first degree murder, possession of a firearm during the commission of a felony ("PFDCF"), possession of a firearm by a person prohibited ("PFBPP"), and possession of ammunition by a person prohibited ("PABPP"). (D.I. 17 at 1) In April 2011, a Delaware Superior Court jury convicted Petitioner of all charges. See Wheeler, 36 A.3d at 313. The Superior Court sentenced him as an habitual offender to life in prison on the attempted first degree murder charge, and to a total of thirty-eight years of incarceration on the remaining charges. Petitioner appealed, and the Delaware Supreme Court affirmed his convictions and sentences on February 7, 2012. See Wheeler, 36 A.3d at 312.

         In December 2012, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61, alleging ineffective assistance of counsel. The Superior Court denied the motion on October 3, 2013. See Wheeler, 36 A.3d at 312. On appeal, the Delaware Supreme Court vacated the Superior Court's judgment without addressing its merits, and remanded the case back to the Superior Court so that it could appoint counsel to represent Petitioner. See Wheeler v. State, 83 A.3d 738 (Table), 2014 WL 44715, at *1 (Del. Jan. 2, 2104). In January 2015, appointed counsel notified the Superior Court that counsel had thoroughly reviewed the record and were unable to assert any meritorious post-conviction claims. Counsel filed a motion to withdraw and a supporting memorandum of law pursuant to Delaware Superior Court Criminal Rule 61(e)(2). (D.I. 20-4 at 131-143) Petitioner filed a response. On February 27, 2015, the Superior Court granted post-conviction counsel's motion to withdraw and denied the Rule 61 motion. (D.I. 20-4 at 188) Post-conviction counsel and Petitioner filed notices of appeal, and post-conviction counsel filed a motion for the appointment of substitute counsel. See Wheeler v. State, 127 A.3d 1163 (Table), 2015 WL 6150936, at *2 (Del. 2015). The Delaware Supreme Court permitted post-conviction counsel to withdraw and appointed substitute post-conviction counsel ("appellate post-conviction counsel"). Thereafter, appellate post-conviction counsel filed a brief and motion to withdraw. Id. On October 19, 2015, the Delaware Supreme Court affirmed the Superior Court's decision and denied appellate post-conviction counsel's motion to withdraw as moot. Id. at *5.


         A. 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. 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). The 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 granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         The exhaustion requirement is based on principles of comity, requiring a petitioner to give "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural manner permitting the court to consider the claims on their merits. See Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989).

         A petitioner's failure to exhaust state remedies will be excused if state procedural rules preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted, such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state's highest court, but that court "clearly and expressly" refuses to review the merits of the claim due to an independent and adequate state procedural rule, the claim is exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64(1989).

         Federal courts may not consider the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting therefrom, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless v. Vaughn, 172 F.3d255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51. To demonstrate cause for a procedural default, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show "that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.

         Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). A petitioner demonstrates a miscarriage of justice by showing a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner must present new reliable evidence - not presented at trial - that demonstrates "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." House V. Bell, 547 U.S. 518, 537-38 (2005); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).

         B. Standard of Review

         If a state's highest court adjudicated a federal habeas claim on the merits, the federal court must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, " or the state court's decision was an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see also Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).

         A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather than on a procedural or some other ground. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even "when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied." Harrington v. Richter, 562 U.S. 86, 98 (2011). As recently explained by the Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.

         Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions).


         Petitioner's timely filed § 2254 Petition asserts the following six grounds for relief: (1) the Superior Court's admission of certain testimony violated Petitioner's Sixth Amendment right to confront witnesses; (2) the State violated Petitioner's due process right to a fair trial by failing to turn over a witness' taped statement as required by Delaware Superior Court Criminal Rule 26.2 and Jencks v United States,353 U.S. 657 (1957); (3) the State engaged in prosecutorial misconduct; (4) defense counsel provided ineffective assistance; (5) ...

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