United States District Court, D. Delaware
Benjamin McMillan. Pro Se Petitioner.
T. Knoll, Deputy Attorney General of the Delaware Department
of Justice, Wilmington, Delaware. Attorney for Respondents.
U.S. DISTRICT JUDGE
before the Court is an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 filed by Petitioner
Benjamin A. McMillan ("Petitioner"). (D.I. 1; D.I.
3; D.I 11; D.I. 12; D.I. 15; D.I. 16) The State filed an
Answer in Opposition (D.I. 25) and Petitioner filed a
Traverse (D.I. 32). For the reasons discussed, the Court will
dismiss the Petition as time-barred under the limitations
period prescribed in 28 U.S.C. § 2244.
September 5, 2006, Petitioner was indicted for trafficking in
cocaine, possession with intent to deliver a narcotic
controlled substance, maintaining a vehicle for keeping
controlled substances, tampering with physical evidence,
possession of drug paraphernalia, resisting arrest, and
possession of a non-narcotic schedule I controlled substance.
(D.I. 25 at 1) On March 21, 2007, Petitioner pled guilty to
trafficking in cocaine and tampering with physical evidence,
in exchange for which the State entered a nolle
prosequi as to the remaining charges as well as a
pending violation of probation in another case. (D.I. 25 at
1; see also McMillan v. State, 115 A.3d 1215
(Table), 2015 WL 3444673, at *1 (Del. May 27, 2015)) The
Superior Court immediately sentenced Petitioner as a habitual
offender to eighteen years at Level V for trafficking in
cocaine, and to two years at Level V, suspended for
decreasing levels of supervision, for tampering with physical
evidence. See McMillan, 2015 WL 3444673, at *1.
Petitioner filed a timely notice of appeal, but voluntarily
withdrew it on April 19, 2007. (D.I. 28-1; D.I. 28-14 at 2)
22, 2007, Petitioner filed a motion for sentence
modification, which the Superior Court denied on June 5,
2007. (D.I. 28-14 at 2-3) Petitioner filed a second motion
for sentence modification on July 13, 2009, which was denied
on August, 7, 2009, and then filed a third motion to modify
sentence on September 3, 2009, which was denied on October
22, 2009. (D.I. 28-14 at 3) Petitioner did not appeal any of
April 12, 2010, Petitioner filed his first pro se
motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion").
(D.I. 25 at 2) The Superior Court denied the motion on May 5,
2010, and the Delaware Supreme Court affirmed that decision
on September 7, 2010. See McMillan v. State, 3 A.3d
1098 (Table), 2010 WL 3490181, at *1 pel. Sept. 7, 2010).
filed a motion for sentence reduction on January 24, 2011.
(D.I. 28-14 at 4) The Superior Court denied the motion on
August 16, 2011, and the Delaware Supreme Court affirmed that
decision on February 21, 2012. Id.; see also McMillan v.
State, 38 A.3d 1255 (Table), 2012 WL 556467, at *1 (Del.
Feb. 21, 2012). On May 8, 2013, Petitioner filed another
motion for correction of sentence, which the Superior Court
denied on September 3, 2013. Petitioner did not appeal that
decision. (D.I. 25 at 3)
filed his second Rule 61 motion on September 15, 2014. (D.I.
25 at 3) The Superior Court denied the motion on March 3,
2015, and the Delaware Supreme Court affirmed that decision
on May 27, 2015. See McMillan v. State, 115 A.3d
1215 (Table), 2015 WL 3444673, at *2 (Del. May 27, 2105).
first document Petitioner filed in this case - a Memorandum
of Law - is dated November 2015. (D.I. 1) During the months
following that filing, Petitioner filed a form Petition (D.I.
3), an Amended Petition (D.I. 12), and three amendments (D.I.
11; D. I. 15; D.I. 16). The claims asserted in the Amended
Petition (D.I. 12) and amendments (D.I. 11; D.I. 15; D.I. 16)
(hereinafter referred to as "Petition") assert all
of Petitioner's grounds for relief (D.I 21), which
consist of the following four Claims: (1) the State violated
Brady v. Maryland, 373 U.S. 83 (1963) during the
plea process by (a) not disclosing the possibility the drug
evidence in his case may have been tampered with while held
at the OCME in 2006-2007; (b) not disclosing the drug weight
discrepancies between the lab and police reports; and (c) not
disclosing that OCME employee Farnham Daneshgar may have left
the OCME in 1990 amid allegations that he was dry labbing and
that he was re-hired in 2006; (2) Petitioner's guilty
plea was rendered involuntary because of the State's
failure to provide the aforementioned Brady material
prior to the entry of his guilty plea; (3) the State violated
Petitioner's due process rights because the Medical
Examiner was unreliable and lacked credibility; and (4)
defense counsel provided ineffective assistance (a) by
failing to share the police reports and lab reports with
Petitioner which, when compared, reveal a drug weight
discrepancy; (b) by failing to investigate Petitioner's
case; (c) by failing to challenge the sufficiency of the drug
evidence in a motion to suppress; and (d) by coercing
Petitioner into pleading guilty because Petitioner had failed
to pay the attorney's fee.
OCME CRIMINAL INVESTIGATON
summarized by the Delaware Supreme Court, the relevant
information regarding the mishandling of ...