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Carrero v. Metzger

United States District Court, D. Delaware

September 24, 2018

DENNY CARRERO, Petitioner,

          Denny Carrero. Pro se Petitioner.

          Sean P. Lugg, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.



         Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 ("Petition") filed by Petitioner Denny Carrero ("Petitioner"). (D.I. 3) The State has filed an Answer in opposition. For the reasons discussed, the Court will dismiss the Petition.

         I. BACKGROUND

         On November 30, 2010, Petitioner pled guilty to one count of trafficking in cocaine (less than 100 grams) and one count of the lesser included offense of trafficking in cocaine (10-50 grams). (D.I. 12 at 4) On that same day, the Superior Court sentenced Petitioner to an aggregate of 20 years at Level V incarceration, suspended after 10 years for decreasing levels of supervision, (Id.) Petitioner did not file a direct appeal.

         On December 30, 2010, Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 12 at 5) On January 6, 2011, he moved to withdraw his guilty plea and, on February 11, 2011, he moved for modification of his sentence. (Id.) The Superior Court denied Petitioner's motion for modification of sentence on February 22, 2011, and denied both his Rule 61 motion and the motion to withdraw his guilty plea on June 23, 2011. (Id.) Petitioner did not appeal those decisions. Petitioner filed a second motion for modification/correction of sentence on March 22, 2013, which the Supenor Court denied on April 10, 2013. (D.I. 15-20 at 4) He did not appeal that decision.

         On March 13, 2014, Petitioner filed his second Rule 61 motion, which the Superior Court summarily dismissed on April 2, 2014. (D.I. 15-20 at 5) Petitioner filed an appeal. Soon thereafter, die State provided Petitioner with supplemental discovery, i.e., the chain of custody report regarding die drug evidence that was sent to and tested at die Office of die Chief Medical Examiner ("OCME") in this case. (D.I. 3 at 47) The Delaware Supreme Court affirmed the Superior Court's denial of Petitioner's second Rule 61 motion on May 21, 2015. See Carrero v. State, 115 A.3d 1214 (Table), 2015 WL 3367940, at *3 (Del. May 21, 2015).

         In July 2015, Petitioner filed a 15-page form § 2254 Petition with 150 pages of attached exhibits. (D.I. 3) The form Petition asserts the following four grounds for relief: (1) Petitioner's Fourth Amendment rights were violated because the "search warrants obtained and carried out were done on the wrong locations and vehicles, thereby making them illegal" (D.I. 3 at 5); (2) Petitioner's rights under the Fifth and Sixth Amendments were violated because "evidence reports and ... the police report clearly show discrepancies that occurred with the OCME case [and the discrepancies] show evidence tampering took place [b]y the State acquiescing to the fact and convicting individuals [whether] by plea bargains or trials. The State cannot positively prove there was no tampering in this case with the evidence" (D.I. 3 at 7); (3) Petitioner's Fourteenth Amendment/Equal Protection rights were violated because the "court abused its discretion" and because of "prosecutorial misconduct" (D.I. 3 at 8); and (4) Petitioner's rights under the Fourteenth Amendment were violated, because the "withholding of critical evidentiary problems as stated in the OCME investigation and ¶¶ questionable ethics by [its] employees have affected the credibility of ¶¶ the evidence reliability Q [and] the effectiveness of the judicial system by what appears to be a covering up for illegal mistakes" (D.I. 3 at 10). The last part of each of the four Claims contains Petitioner's handwritten statement "see attached exhibits." (D.I. 3) The State filed an Answer also argues that the Petition should be dismissed in its entirety as time-barred. (D.I. 12 at 6-10) The State's Answer also asserts that, if the Petition is not dismissed as time-barred, all four claims should be dismissed as procedurally barred. (D.I. 12 at 10-13) Finally, the State alternatively argues that Claims One and Three should be dismissed as non-cognizable Fourth Amendment Claims, and that Claims Two and Four should be denied for failing to satisfy § 2254(d). (D.I. 12 at 13-17) Petitioner filed a Reply, arguing that relief should be granted because of the corruption "within the State's own mechanisms" (D.I. 19 at 3), as demonstrated by the fact that the police did not have a search warrant and that the evidence in his case should not have been used because the OCME evidentiary scandal casts doubt on its reliability (D.I. 19 at 4).


         As summarized by the Delaware Supreme Court, the relevant information regarding the OCME evidence mishandling is set forth below:

In February 2014, the Delaware State Police ("DSP") and the Department of Justice ("DOJ") began an investigation into criminal misconduct occurring in the Controlled Substances Unit of the OCME. The investigation revealed that some drug evidence sent to the OCME for testing had been stolen by OCME employees in some cases and was unaccounted for in other cases. Oversight of the lab had been lacking, and security procedures had not been followed. One employee was accused of "dry labbing" (or declaring a test result without actually conducting a test of the evidence) in several cases. Although the investigation remains ongoing, to date, three OCME employees have been suspended (two of those employees have been criminally indicted), and the Chief Medical Examiner has been fired.
There is no evidence to suggest that OCME employees tampered with drug evidence by adding known controlled substances to the evidence they received for testing in order to achieve positive results and secure convictions. That is, there is no evidence that the OCME staff "planted" evidence to wrongly obtain convictions. Rather, the employees who stole the evidence did so because it in fact consisted of illegal narcotics that they could resell or take for personal use.

Brown v. State, 108 A.3d 1201, 1204-05 (Del. 2015). On June 6, 2014, the Delaware Department of Justice sent a letter to Petitioner stating that one or more individuals in the chain of custody for his case was indicted on criminal charges resulting from the OCME investigation. (D.I. 15-8 at 1) The letter further stated that the State had no evidence that the drugs in Petitioner's case were compromised. (D.I. 15-8 at 1)


         While the Court has a duty to liberally construe a pro se petitioner's filings, the Court does not have a duty to add arguments that a petitioner did not actually include in his petition. See Castillo v. McCain, 2017 WL 1232444, at *4 (E.D. La. Feb. 9, 2017) ("It is neither required nor appropriate for a court to scour a state-court record to divine the issues that a petitioner is attempting to raise in his petition."). "Mere reference in a federal petition to various state-court records or incorporating by reference grounds raised in attached exhibits is insufficient." Castillo, 2017 WL 1232444, at *4. Considering that there are 150 pages of exhibits attached to Petitioner's form Petition, [2] and considering that the exhibits penned by Petitioner assert numerous arguments, the Court concludes that Petitioner's statement "see attached exhibits" does not identify with sufficient particularity specific facts to articulate separate additional claims from the four Claims set forth in the form Petition. See Ross v. Williams, 896 F.3d 958, 967 (9th Cir. 2018). In other words, the Court does not view Petitioner's statement "see attached exhibits" as incorporating all the arguments asserted in those exhibits. For instance, although Petitioner presented an ineffective assistance of trial counsel claim on post-conviction appeal (D.I. 3 at 91-93; D.I. 15-16 at 2-4), he does not raise that claim in the instant Petition. Rather, the Court views his statement "see attached exhibits" as an attempt to amplify the specific arguments asserted in the four Claims contained on the form Petition.

         The Court's construction of Petitioner's Claims does not correspond with the State's construction. For example, given the reference to the OCME scandal, the State characterizes Claims Two and Four as arguing that Petitioner's guilty plea was rendered invalid because the State violated Brady v. Maryland, 373 U.S. 83 (1963), by not informing him of the OCME evidence mishandling prior to his pleading guilty. (D.I. 12 at 10) The State's construction of the two Claims in its Answer mirrors the State's interpretation of one of Petitioner's arguments during his post-conviction appeal.[3] (D.I. 15-15; D.I. 16-1) However, after reviewing the allegations in all four Claims in conjunction with the relevant corresponding arguments in the exhibits, the Court cannot concur with the State's characterization of Claims Two and Four in this case.[4] Rather, using the exhibits that were actually penned by Petitioner to amplify and supplement the arguments in the original Petition, the Court interprets the four Claims in the Petition as asserting the following arguments: (1) Petitioner's Fourth Amendment rights were violated because the search warrants were illegal (D.I. 3 at 5, 17-18 (Arguments I, II, III), 23-37); (2) Petitioner would not have pled guilty if he had known about the discrepancies in the weight of the drugs as set forth in the police report and the medical lab report - and the fact that two employees in the chain of custody for the drug evidence in his case were later indicted in connection with the OCME scandal demonstrate that the State cannot prove that there was no evidence tampering in this case (D.I. 3 at 7, 18 (Argument IV), 68- 70, 90, 96); (3) the prosecution engaged in misconduct by permitting the introduction of the evidence when it knew the search warrants were illegal and the trial court abused its discretion in denying the motion to suppress (D.I. 3 at 8, 18 (Argument IV), 38-40); and (4) the trial court would have granted his motion to suppress if the OCME evidence mishandling scandal had been revealed prior to Petitioner's suppression hearing, because the evidence mishandling revealed by the OCME investigation casts doubt on the reliability of the evidence in Petitioner's case, undermines the integrity of the judicial system, and "adds credence" to Petitioner's argument that the drug evidence was inadmissible (D.I. 3 at 10, 68-69, 84).


         In Claim One, Petitioner contends his Fourth Amendment rights were violated when the Superior Court declined to suppress evidence in this case. In Claim Three, he contends that the prosecutor engaged in misconduct by presenting evidence obtained via the allegedly illegal search warrant. For the following reasons, the Court concurs with the State that these Claims assert non-cognizable Fourth Amendment arguments that must be dismissed as barred by Stone v. Powell, 428 U.S. 465, 494 (1976).

         Pursuant to Stone, a federal habeas court cannot review a Fourth Amendment claim if the petitioner had a full and fair opportunity to litigate the claim in the state courts. See Stone, 428 U.S. at 494.; see also Wright v. West, 505 U.S. 277, 293 (1992). A petitioner is considered to have had a full and fair opportunity to litigate such claims if the state has an available mechanism for suppressing evidence seized in or tainted by an illegal search or seizure, irrespective of whether the petitioner actually availed himself of that mechanism. See U.S. ex rel Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1980); Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980). Conversely, a petitioner has not had a full and fair opportunity to litigate a Fourth Amendment claim - and, therefore, avoids the Stone bar -- if the state system contains a structural defect that prevented the state court from fully and fairly hearing that Fourth Amendment argument See Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). Significantly, "an erroneous or summary resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar." Id.

         In this case, the Petitioner filed a pre-trial motion to suppress the evidence pursuant to Rule 41 of the Delaware Superior Court Rules of Criminal Procedure, and the Superior Court denied that motion only after conducting a hearing. This record clearly demonstrates that Petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim in the Delaware state courts. The fact that Petitioner disagrees with these decisions and/or the reasoning utilized therein is insufficient to overcome the Stone bar. Moreover, Petitioner does not contend that a structural defect exists in ...

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