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Burroughs v. Metzger

United States District Court, D. Delaware

November 19, 2018

MARVIN S. BURROUGHS Petitioner,
v.
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondent.[1]

          Marvin S. Burroughs. Pro se Petitioner.

          Kathryn Joy Garrison, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

          MEMORANDUM OPINION

          ANDREWS, UNITED STATES DISTRICT JUDGE.

         Petitioner 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 Petition.

         I. BACKGROUND

         On May 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).

         On 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).

         Petitioner 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)

         II. COGNIZABILITY

         A 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 proceedings).

         Claims 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 relief.

         III. ONE YEAR STATUTE OF LIMITATIONS

         Even if 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 ...

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