United States District Court, D. Delaware
Brendan O'Neill, Office of Defense Services for the State
of Delaware, Wilmington, Delaware. Attorney for Petitioner.
L. Arban, Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware. Attorney for Respondents.
ANDREWS, UNITED STATES DISTRICT JUDGE.
before the Court is an Application For A Writ Of Habeas
Corpus Pursuant To 28 U.S.C. § 2254
("Petition") filed by Petitioner Nicole Cox. (D.I.
2) The State filed an Answer in opposition, to which
Petitioner filed a Reply. (D.I. 9; D.I. 13) For the reasons
discussed, the Court will dismiss Petitioner's §
2254 Petition as time-barred by the one-year period of
limitations prescribed in 28 U.S.C. § 2244(d)(1).
October 29, 2013, Petitioner pled guilty to drug dealing,
second degree escape, and second degree conspiracy. (D.I. 9
at 1) On that same day, the Superior Court sentenced
Petitioner as follows: (1) for drug dealing, to eight years
of Level V incarceration, suspended after ninety days for one
year of Level III probation; (2) for second degree
conspiracy, to two years of Level V incarceration, suspended
for one year of Level II probation; and (3) for second degree
escape, to two years at Level V incarceration, suspended for
one year of Level II probation. (D.I. 9 at 2) Petitioner did
not file a direct appeal.
20, 2014, 2014, Delaware's Office of Defense Services
("OPD") filed a motion for post-conviction relief
pursuant to Delaware Superior Court Criminal Rule 61
("Rule 61 motion") on Petitioner's behalf,
which the Superior Court dismissed on April 20, 2015. (D.I. 9
at 2) The Superior Court denied her motion for reargument on
June 17, 2015. The Delaware Supreme Court affirmed the
Superior Court's denial of Petitioner's Rule 61
motion on December 9, 2015. (D.I. 9 at 2)
September 21, 2016, the OPD filed a § 2254 Petition on
Petitioner's behalf, asserting that Petitioner's lack
of knowledge of an evidence scandal at the Office of the
Chief Medical Examiner ("OCME") was material to her
decision to plead guilty and, therefore, her guilty plea was
involuntary pursuant to Brady v. United States, 397
U.S. 742, 748 (1970). (D.I. 2) Petitioner also argues that
the Delaware Supreme Court made unreasonable findings of fact
during her post-conviction appeal regarding OCME misconduct.
The State filed an Answer asserting that the Petition should
be dismissed as time-barred or, alternatively, because the
claim is meritless. (D.I. 9) Petitioner filed a Reply,
asserting that the Petition should be deemed timely filed
after applying § 2244(d)(1)(D) and the doctrine of
equitable tolling. (D.I. 13 at 6-8)
OCME CRIMINAL INVESTIGATION
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
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).
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") prescribes a one-year period of
limitations for the filing of habeas petitions by state