United States District Court, D. Delaware
MONIR A. GEORGE, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
A. George. Pro se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware
Department of Justice, Wilmington, Delaware. Attorney for
U.S. DISTRICT JUDGE
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.
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.
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.
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).
GOVERNING LEGAL PRINCIPLES
Exhaustion and Procedural Default
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
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
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).
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).
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.
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).
Standard of Review
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
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).
timely filed the § 2254 Petition presently pending
before the Court, which asserts the following five
grounds 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.
Claim One: Waiver of Jury Trial
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,  the Court views
Petitioner's reliance on Davis as an assertion
that his federal ...