United States District Court, D. Delaware
D'Andre Rogers. Pro Se Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General of the
Delaware Department of Justice, Wilmington, Delaware.
Attorney for Respondents.
U.S. DISTRICT JUDGE:
before the Court is an Application For A Writ Of Habeas
Corpus Pursuant To 28 U.S.C. § 2254 and an Amended
Application (hereinafter referred to collectively as
"Petition") filed by Petitioner D'Andre Rogers
("Petitioner"). (D.I. 1; D.I. 5) The State has
filed an Answer in Opposition. (D.I. 14) For the reasons
discussed, the Court will dismiss the Petition.
[O]n the night of January 3-4, 2009, [Petitioner] drove his
friend, Kenneth Miller, to the Wilmington residence of
Miller's ex-girlfriend, Tonya Backus. Backus' new
boyfriend, Derek Hoey, was present. Miller and Hoey became
involved in a confrontation. [Petitioner] decided to become
involved. [Petitioner] entered the residence and shot Hoey at
least four times with a handgun, killing hm.
[Petitioner] and Miller fled. [Petitioner] was arrested four
months later in North Carolina, where he was staying with
State v. Rogers, 2013 WL 285735, at *1 (Del. Super.
Ct. Jan. 17, 2013).
19, 2010, a Delaware Superior Court jury convicted Petitioner
of second degree murder (as a lesser included offense of
first degree murder) and possession of a firearm during the
commission of a felony ("PFDCF"). See State v.
Rogers, 2013 WL 285735, at *1 (Del. Super. Ct. Jan. 17,
2013). Following a bench trial on a third charge, the
Superior Court found Petitioner guilty of possession of a
deadly weapon by a person prohibited ("PDWBPP").
Id. at *1 n.l. The Superior Court sentenced
Petitioner on September 24, 2010 to a total of forty years at
Level V incarceration, suspended after thirty-five years,
followed by decreasing levels of probation. (D.I. 14 at 3;
see also Rogers, 2013 WL 285735, at *1. Petitioner
appealed, and the Delaware Supreme Court affirmed his
conviction and sentence on March 20, 2102. See Rogers v.
State, 41 A.3d 430 (Table), 2012 WL 983198, at *1 (Del.
Mar. 20, 2012).
April 3, 2012, Petitioner filed a motion for post-conviction
relief pursuant to Delaware Superior Court Criminal Rule 61
("Rule 61 motion"). See Rogers, 2013 WL
285735, at *1. The Superior Court denied the motion on
February 22, 2013. See State v. Rogers, 2013 WL
1450928, at *1 (Del. Super. Ct. Feb. 22, 2013). Petitioner
filed a notice of appeal from that decision on April 1, 2013,
which the Delaware Supreme Court dismissed as untimely on
April 10, 2013. See Rogers v. State, 2013 WL 1489472
(Del. Apr. 10, 2013). The Delaware Supreme Court denied
Petitioner's motion for reargument on April 30, 2013.
(D.I. 14 at 4)
letter dated March 14, 2014, Petitioner asked the Court to
grant habeas relief from his state court conviction. (D.I. 1)
Liberally construing the letter as a request for habeas
relief, the Court issued an order informing Petitioner of his
rights under United Sates v. Miller, 197 F.3d 644
(3d Cir. 1999), provided a form habeas petition for him to
fill out, and also provided an AEDPA election form for him to
indicate how he wished to proceed. (D.I. 4) In July 2104,
Petitioner filed the completed form habeas petition. (D.I. 5)
This Petition asserts four claims: (1) while instructing the
jury about the elements for second degree murder, the
Superior Court erred when explaining the phrase "cruel,
wicked and depraved indifference to human life"; (2)
defense counsel provided ineffective assistance by failing to
suppress a recorded statement Petitioner made to police; (3)
juror bias prejudiced Petitioner's trial; and (4) defense
counsel provided ineffective assistance by withholding
helpful evidence. (D.I. 5 at 5, 7, 8, 10) The State filed an
Answer, asserting that the Petition should be dismissed as
time-barred or, alternatively, because the claims are
procedurally barred or meritless. (D.I. 14)
February 2, 2016, Petitioner filed a second Rule 61 motion,
which the Superior Court denied on March 9, 2016. See
State v. Rogers, 2016 WL 908915 (Del. Super. Ct. Mar. 9,
2016). The record does not indicate whether Petitioner
appealed that decision.
ONE YEAR STATUTE OF LIMITATIONS
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") was signed into law on April 23, 1996. 28
U.S.C. § 2244(d)(1). 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 was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). AEDPA's limitations period
is subject to statutory and equitable tolling. See
Holland v. Florida, 560 U.S. 631, 645 (2010)
(equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory
on the form petition filed in July 2014, the State contends
that the Petition should be dismissed as time-barred.
However, the Court views the letter and papers Petitioner
filed in March 2014 (D.I. 1) as the relevant document for
determining the timeliness of this proceeding. For the
reasons set forth below, the Court concludes that the instant
proceeding is not time-barred.
§ 2254 Petition, filed in 2014, is subject to the
one-year limitations period contained in § 2244(d)(1).
See Lindh v. Murphy,521 U.S. 320, 336 (1997).
Petitioner does not allege, and the Court cannot discern, any
facts triggering the application of § 2244(d)(1)(B),
(C), or (D). Given these circumstances, the one-year period