United States District Court, D. Delaware
MARVIN S. BURROUGHS Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondent.
S. Burroughs. Pro se Petitioner.
Kathryn Joy Garrison, Deputy Attorney General of the Delaware
Department of Justice, Wilmington, Delaware. Attorney for
ANDREWS, UNITED STATES DISTRICT JUDGE.
Marvin S. Burroughs ("Petitioner") is an inmate in
custody at the James T. Vaughn Correctional Center in Smyrna,
Delaware. Petitioner filed an 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, asserting that the Petition should be dismissed
because the claims are not cognizable on federal habeas
review or, alternatively:, because they are time-barred.
(D.I. 8) For the reasons discussed, the Court will deny the
16, 2008, a Delaware Superior Court jury convicted Petitioner
of first degree robbery, possession of firearm during the
commission of a felony, possession of a deadly weapon by a
person prohibited, and second degree conspiracy. See
State v. Burroughs, 2016 WL 1436949, at *2 (Del. Super.
Ct. Apr. 4, 2016). The Superior Court sentenced Petitioner as
a habitual offender on May 15, 2009 to life imprisonment plus
thirty-five years of Level V incarceration. (D.I. 8 at 1) The
Delaware Supreme Court affirmed Petitioner's convictions
on January 26, 2010. See Burroughs v. State, 988
A.2d 445, 451 (Del. 2010).
February 22, 2011, Petitioner filed a motion for
postconviction relief pursuant to Delaware Superior Court
Criminal Rule 61 ("Rule 61 motion"). See State
v. Burroughs, 2013 WL 11277121, at *2 (Del. Super. Ct.
Oct. 17, 2013). The Superior Court denied the Rule 61 motion
on October 17, 2013, see Id. at *4, and Petitioner
filed an appeal on February 11, 2014. See Burroughs v.
State, 91 A.3d 561 (Table), 2014 WL 1515102, at *1 (Del.
Apr. 16, 2014). The Delaware Supreme Court dismissed the
appeal as untimely and remanded the matter so that the
Superior Court could appoint counsel to represent Petitioner
in filing a second Rule 61 motion. See Burroughs,
2014 WL 1515102, at * 1. The Superior Court appointed new
counsel for Petitioner, who then filed a second amended Rule
61 motion on May 4, 2015. (D.I. 8 at 3; D.I. 11-5 at 20) The
Superior Court denied the Rule 61 motion on April 4, 2016.
See Burroughs, 2016 WL 1436949, at *7. The Delaware
Supreme Court affirmed that decision on October 27, 2016.
See Burroughs v. State, 150 A.3d 776 (Table), 2016
WL 6311116, at *1 (Del. Oct. 27, 2016).
filed the instant Petition in November 2016, asserting the
following three grounds for relief: (1) the Delaware State
Courts erred by denying Petitioner's claim alleging that
post-conviction counsel provided ineffective assistance by
withdrawing an ineffective assistance of appellate counsel
claim; (2) the Delaware State Courts erred by denying
Petitioner's claim alleging that post-conviction counsel
provided ineffective assistance by failing to assert an
ineffective assistance of trial counsel claim; and (3) prior
postconviction counsel provided ineffective assistance by
failing to assert that there was insufficient evidence to
convict in light of the trial court's discrediting
Smullen's testimony. (D.I. 3)
federal court may consider a habeas petition filed by a state
prisoner only "on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). Allegations of
error in state collateral proceedings are not cognizable on
federal habeas review, because "the federal role in
reviewing an application for habeas corpus is limited to
evaluating what occurred in the state ... proceeding that
actually led to the petitioner's conviction."
Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir.
1998) ("what occurred in the petitioner's
collateral proceeding does not enter in to the
habeas calculation.") (emphasis in original). Moreover,
a claim asserting the ineffective assistance of
post-conviction counsel does not assert an issue cognizable
on federal habeas review, because a petitioner does not have
Sixth Amendment right to counsel in collateral proceedings.
See Martinez v. Ryan, 566 U.S. 1, 9 (2012) (Supreme
Court explicitly refrained from recognizing or creating an
automatic constitutional right to counsel in collateral
One, Two, and Three allege that post-conviction counsel
provided ineffective assistance during Petitioner's
collateral proceedings, and also that the Delaware State
Courts erred in denying him relief on post-conviction review.
Since none of the arguments assert issues cognizable on
federal habeas review, the Court will deny these three Claims
for failing to assert a proper basis for federal habeas
ONE YEAR STATUTE OF LIMITATIONS
the Claims were cognizable on habeas review, they are
time-barred. 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 ...