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McMillan v. Metzger

United States District Court, D. Delaware

March 25, 2019

BENJAMIN MCMILLAN, Petitioner,
v.
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

          Benjamin McMillan. Pro Se Petitioner.

          Maria T. Knoll, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

          MEMORANDUM OPINION

          STARK; U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Pending 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.

         II. BACKGROUND

         On 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)

         On May 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 those decisions.

         On 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).

         Petitioner 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)

         Petitioner 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).

         The 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.

         III. OCME CRIMINAL INVESTIGATON

         As summarized by the Delaware Supreme Court, the relevant information regarding the mishandling of ...


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