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George v. Metzger

United States District Court, D. Delaware

September 21, 2018

MONIR A. GEORGE, Petitioner,

          Monir A. George. Pro se Petitioner.

          Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.




         Presently pending before the Court is Petitioner Monk A. George's ("Petitioner") Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 1) The State filed an Answer in opposition. (D.I. 11) For the reasons discussed, the Court will dismiss the Petition.


         During a fundraising event for St. Mary's Coptic Orthodox Church in May 2008, Petitioner shot Malak Michael, a deacon and chief fundraiser for the church. See George v. State, 5 A.3d 630 (Table), 2010 WL 4009202, at *1 (Del. Oct. 13, 2010). Michael died on arrival at Christiana Hospital. Petitioner also attempted to shoot Reverend Mina Mina, another member of the clergy. The shootings were motivated by Petitioner's belief that the church clergy were corrupt and he blamed Michael in particular for his break-up with his wife. Id.

         Petitioner was charged by indictment with first degree murder, attempted first degree murder, first degree reckless endangering, and three counts of possession of a firearm during the commission of a felony. See George, 2010 WL 4009202, at *1. Petitioner waived his right to a jury trial and, after an eight-day bench trial in October 2009, the Superior Court found Petitioner guilty but mentally ill on all charges. (D.I. 13 at 57, 534, 892) He was sentenced to life in prison for the first degree murder conviction, and to a total of 19 years at Level V for the remaining convictions. See George, 2010 WL 4009202, at *1. The Delaware Supreme Court affirmed Petitioner's convictions and sentences on direct appeal. See Id. at *2.

         In October 2011, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 11 at 2; D.I. 13 at 832) The Superior Court denied the Rule 61 motion on June 29, 2012. See George p. State, 2012 WL 2553347 (Del. Super. Ct. June 29, 2012). On post-conviction appeal, the Delaware Supreme Court vacated that decision and remanded the case to the Superior Court so that counsel could be appointed to represent Petitioner in his Rule 61 proceeding. See George v. State, 61 A.3d 618 (Table), 2013 WL 543899, at *1 (Del. Feb. 12, 2013). On remand, the Superior Court denied Petitioner's Rule 61 motion, and the Delaware Supreme Court affirmed that decision on March 6, 2015. See George v. State, 2015 WL 1000228, at *4 (Del. Mar. 6, 2015).


         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. 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). 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 also 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. Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); see also 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; Hams 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.3d 255, 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 (2006); see 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 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 Or. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003).


         Petitioner timely filed the § 2254 Petition presently pending before the Court, which asserts the following five grounds[2] for relief: (1) his waiver of a jury trial was not knowing and voluntary; (2) defense counsel provided ineffective assistance by failing to argue that the trial judge's insufficient colloquy rendered his waiver of a jury trial unknowing and involuntary, and by rejecting the Superior Court's offer to have an independent psychiatrist evaluate Petitioner's competency; (3) appellate counsel provided ineffective assistance by filing a no-merits brief on direct appeal; (4) the Superior Court denied his right to due process during his Rule 61 proceeding by not granting him an evidentiary hearing; and (5) he was denied his right of confrontation when he was not included in an office teleconference that occurred on October 21, 2009 during his bench trial.

         A. Claim One: Waiver of Jury Trial

         In Claim One, Petitioner contends that he did not voluntarily waive his right to trial by jury because the trial court's colloquy did not comply with Davis v. State,809 A.2d 565 (Del. 2002). The State contends that the instant Claim should be denied because it only asserts a state law error that is not cognizable on federal habeas review. The Court disagrees with the State's characterization. Since the Davis decision references both Delaware and federal law governing the validity of jury trial waivers, [3] the Court views Petitioner's reliance on Davis as an assertion that his federal ...

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