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.
MEMORANDUM OPINION 
NOREIKA, U.S. DISTRICT JUDGE
before the Court is a Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (“Petition”)
filed by Petitioner Elwood Ross (“Petitioner”).
(D.I. 2). The State filed an Answer in opposition, to which
Petitioner filed a Reply. (D.I. 12; D.I. 18). For the reasons
discussed, the Court will dismiss Petitioner's §
21, 2011, Petitioner pleaded guilty to trafficking in cocaine
(10 to 50 grams) and DUI. (D.I. 12 at 2). On that same day,
the Superior Court sentenced Petitioner to a total of
twenty-five years and six months at Level V incarceration,
suspended after seven years for probation. (D.I. 12 at 2).
Petitioner did not file a direct appeal.
August 22, 2011, Petitioner filed a motion for modification
of sentence, which the Superior Court denied on September 16,
2011. (D.I. 12 at 2). Petitioner appealed, and the Delaware
Supreme Court dismissed the appeal as untimely on December 2,
2011. (D.I. 12 at 2).
5, 2014, Delaware's Office of Defense Services
(“OPD”) filed a motion for postconviction relief
pursuant to Delaware Superior Court Criminal Rule 61
(“Rule 61 motion”) on Petitioner's behalf.
(D.I. 15 at ¶ 361). The Superior Court denied the Rule
61 motion on April 20, 2015, and denied his motion for
reargument on June 17, 2015. (D.I. 12 at 2). The Delaware
Supreme Court affirmed the Superior Court's denial of
Petitioner's Rule 61 motion on December 9, 2015. (D.I. 12
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
his decision to plead guilty and, therefore, his 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 his 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 claims are meritless. (D.I. 12).
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. 18).
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
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
Brown v. State, 108 A.3d 1201, 1204-05 (Del. 2015).
PETITION IS NOT TIME-BARRED
Antiterrorism and Effective Death Penalty Act of 1996
(“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 for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). AEDPA's limitations period
is subject to statutory and equitable tolling. See
Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable
tolling); 28 U.S.C. § 2244(d)(2) (statutory tolling).
§ 2254 Petition, filed in 2016, is subject to the
one-year limitations period contained in § 2244(d)(1).
See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The
State contends that the starting date for the limitations
period is July 22, 2010, the date on which Petitioner's
conviction became final. (D.I. 12 at 7). Petitioner, however,
appears to assert that he is entitled to a later starting
date for AEDPA's limitations period - April 15, 2014 -
under § 2244(d)(1)(D), because that is the date on which
the State began to notify defendants in certain active cases
about the OCME evidence misconduct. (D.I. 18 at 2).
order to determine if the April 15, 2014 revelation of the
OCME misconduct constitutes a newly discovered factual
predicate warranting a later starting date for the
limitations period under §2244(d)(1)(D), the Court must
first distill Petitioner's OCME misconduct argument to
its core. The argument appears to be two-fold. First,
Petitioner asserts a twist on the typical Brady v.
Maryland, 373 U.S. 83 (1963) claim by alleging that the
State's affirmative representation that it had fulfilled
its Brady v. Maryland obligation when, in fact, it
did not disclose the at-that-time undiscovered OCME
misconduct, violated his constitutional rights and affected
his ability to voluntarily enter a guilty plea. Second, he
contends that the Delaware state courts should have deemed
his guilty plea involuntary under Brady v. United
States, 397 U.S. 742, 748 (1970) due to the State's
failure to disclose the Brady v. Maryland evidence,
i.e., the OCME misconduct. In short, Petitioner
asserts that his lack of knowledge about the OCME misconduct
is vital to his habeas claim because that lack of knowledge
rendered his guilty plea involuntary and unknowing under
Brady v. United States.
to Brady v. United States, a guilty plea is
considered involuntary if it is “induced by threats (or
promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfillable
promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the
prosecutor's business (e.g. bribes).”
Brady, 397 U.S. at 755. A violation of Brady v.
Maryland occurs when the government fails to disclose
evidence materially favorable to the accused, including both
impeachment evidence and exculpatory evidence.See United
States v. Bagley, 473 U.S. 667, 676 (1985). For purposes
of the inquiry under § 2244(d)(1)(D), whether or not the
OCME misconduct affected, or could have affected,
Petitioner's decision to plead guilty depends on whether
the drugs in his case were tested by the OCME and the results
were provided to him prior to entering a plea. Therefore, in
order to trigger a later starting date under §
2244(d)(1)(D) for this involuntary plea/Brady v.
Maryland claim, Petitioner must show that (1) the drug
evidence in his case was tested by the OCME and he received
the results of the test before entering a plea; and (2)
exercising due diligence, he could not have learned that the
evidence in his case may have been part of the compromised
drug evidence involved in the OCME scandal until April 15,
2014. For the following reasons, the Court concludes that
Petitioner has met this burden.
the State provided the OCME report to Petitioner on April 7,
2011, and he pleaded guilty on June 21, 2011. (D.I. 7 at 3;
D.I. 12 at 2). Second, facts sufficient to provide a basis
for a good faith claim that state employees engaged in
impermissible conduct were not available to defense counsel
until April 15, 2014 when, as part of its Brady v.
Maryland obligation, the State informed Petitioner and
other defendants that all drug evidence housed at the lab was
susceptible to compromise. (D.I. 18 at 2).
these circumstances, the Court concludes that AEDPA's
limitations period in this case began to run on April 15,
2014. Accordingly, to comply with the
one-year limitations period, Petitioner had to file his
§ 2254 petition by April 15, 2015. See Wilson v.
Beard, 426 F.3d 653 (3d Cir. 2005) (holding that Federal
Rule of Civil Procedure 6(a) and (e) applies to federal
habeas petitions); Phlipot v. Johnson, 2015 WL
1906127, at *3 n.3 (D. Del. Apr. 27, 2015) (AEDPA's
one-year limitations period is calculated according to the
anniversary method, i.e., the limitations period
expires on the anniversary of the triggering event).
did not file the instant § 2254 Petition until September
21, 2016, approximately one year and four months after the
expiration of AEDPA's statute of limitations. Therefore,
the Petition is time-barred, unless the limitations period
can be statutorily or equitably tolled. See Holland v.
Florida, 560 U.S. 631, 645 (2010)(equitable tolling); 28
U.S.C. § 2244(d)(2) (statutory tolling).
to § 2244(d)(2), a properly filed application for state
collateral review tolls AEDPA's limitations period during
the time the application is pending in the state courts,
including any post-conviction appeals, provided that the
application is filed during AEDPA's one-year limitations
period. Swartz v. Meyers, 204 F.3d 417, 424-25 (3d
Cir. 2000). The limitations period, however, is not tolled
during the ninety days a petitioner has to file a petition
for a writ of certiorari in the United States Supreme Court
regarding a judgment denying a state post-conviction motion.
See Stokes v. Dist. Attorney of Philadelphia, 247
F.3d 539, 542 (3d Cir. 2001). Here, when Petitioner filed his
Rule 61 motion on May 5, 2014, twenty days of the limitations
period had already expired. The Rule 61 motion tolled the
limitations period from June 20, 2014 December 9, 2015, the
date on which the Delaware Supreme Court affirmed the
Superior Court's denial of the motion. The limitations
clock started to run again on December 10, 2015, and ran
another 286 days until Petitioner filed the instant Petition
on September 21, 2016. At that point in time, there were
fifty-nine days remaining in AEDPA's limitations period.
Thus, the Petition is timely filed, and the Court will
proceed to review the claims in the Petition.
STANDARD OF REVIEW
state's highest court has adjudicated a federal habeas
claim on the merits, the federal court must review the claim
under the deferential standard contained in 28 U.S.C. §
2254(d). A claim has been “adjudicated on the
merits” for the purposes of 28 U.S.C. § 2254(d) if
the state court decision finally resolves the claim on the
basis of its substance, rather than on a procedural or some
other ground. See Thomas v. Horn, 570 F.3d 105, 115
(3d Cir. 2009). Pursuant to 28 U.S.C. § 2254(d), federal
habeas relief may only be granted if the state court's
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, ”
or the state court's decision was an unreasonable
determination of the facts based on the evidence adduced in
the trial. See 28 U.S.C. § 2254(d)(1) &
(2); see also Williams v. Taylor, 529 U.S. 362, 412
(2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.
2001). This deferential standard of § 2254(d) applies
even “when a state court's order is unaccompanied
by an opinion explaining the reasons relief has been
denied”; as recently explained by the Supreme Court,
“it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 98-100 (2011).
a federal court must presume that the state court's
determinations of factual issues are correct. See 28
U.S.C. § 2254(e)(1); see also Appel, 250 F.3d
at 210. This presumption of correctness applies to both
explicit and implicit findings of fact, and is only rebutted
by clear and convincing evidence to the contrary.
See 28 U.S.C. § 2254(e)(1); see also
Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000);
Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)
(stating that the clear and convincing standard in §
2254(e)(1) applies to factual issues, whereas the
unreasonable application standard of § 2254(d)(2)
applies to factual decisions).
presented the argument in Claim One to the Superior Court in
his Rule 61 motion, which the Superior Court denied as
meritless. On post-conviction appeal, the Delaware Supreme
Court found that the Superior Court should have denied
Petitioner's Rule 61 motion as procedurally barred under
Delaware Superior Court Criminal Rule 61(i)(1) because it was
filed more than one year after the judgment of conviction was
final. See Banks, 2015 WL 8481972, ...