United States District Court, D. Delaware
MARTIN E. FOUNTAIN, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
E. Fountain. Pro se Petitioner.
T. Knoll, Deputy Attorney General, 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 and an Amended
Application (hereinafter together referred to as
"Petition") filed by Petitioner Martin E. Fountain
("Petitioner"). (D.I. 1; D.I. 5) The State filed an
Answer in opposition. (D.I. 10) For the reasons discussed,
the Court will deny the Petition.
March 2003, a Delaware Superior Court jury found Petitioner
guilty of two counts of possession with intent to deliver
cocaine, two counts of possession with intent to deliver
cocaine within 1, 000 feet of a school, two counts of
delivery of cocaine within 300 feet of a park, two counts of
possession of drug paraphernalia, and one count of
unauthorized use of food stamps. See Fountain v.
State, 139 A.3d 837, 839 (Del. 2016). The Superior Court
sentenced Petitioner to 103 years at Level V incarceration,
suspended after thirty years and eight months for decreasing
levels of supervision. On August 18, 2004, the Delaware
Supreme Court affirmed Petitioner's convictions and
sentences on direct appeal. See id.; see also D.I.
10 at 1.
February 2, 2007, Petitioner filed 2. pro se motion
for post-conviction relief under Delaware Superior Court
Criminal Rule 61 ("Rule 61 motion"). (D.I. 10 at 1)
The Superior Court denied the Rule 61 motion, and the
Delaware Supreme Court affirmed that decision on January 12,
2009. (D.I. 10 at 1-2)
September 17, 2013, Petitioner filed pro se motion
for correction of illegal sentence, which the Superior Court
denied. (D.I. 10 at 2) Petitioner filed a motion for
reconsideration, which the Superior Court denied as untimely.
Petitioner appealed the Superior Court's denial of his
motion for correction of sentence, and the Delaware Supreme
Court affirmed the Superior Court's decision on August
19, 2014. (D.I. 10 at 2)
March 17, 2015, Petitioner tiled a pro se motion for
review of sentence and judgment of relief, seeking to modify
his sentence of consecutive terms under Delaware's
Amended Sentencing Act, 11 Del. C. § 3901(d). See
Fountain, 139 A.3d at 839. The Superior Court denied
that motion on April 30, 2015. (D.I. 10 at 2)
12, 2015, Petitioner filed a motion to arrest judgment,
asking to have his two cocaine sentences run concurrently,
not consecutively, pursuant to the Amended Sentencing Act, 11
Del. C. § 3901(d). The Superior Court denied the motion
on May 22, 2015, explaining that it would not consider
Petitioner's repetitive requests for reduction of
sentence and declining to apply the Amended Sentencing Act
retroactively. See Fountain, 139 A.3d at 839.
Petitioner appealed. On June 3, 2016, the Delaware Supreme
Court affirmed the Superior Court's decision that the
Amended Sentencing Act applies only prospectively and,
therefore, could not apply retroactively to Petitioner's
sentences that were imposed before the Act's effective
date. Id. at 843.
federal court may consider a habeas petition filed by a state
prisoner only "on the ground that he is in custody of
the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). Claims based on
errors of state law are not cognizable on federal habeas
review, and federal courts cannot re-examine state court
determinations of state law issues. See Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975) ("State courts are
the ultimate expositors of state law."); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) ("[It] is not
the province of a federal habeas court to reexamine
state-court determinations on state-law questions.").
sole ground for relief, Petitioner asserts that the Delaware
Supreme Court violated the Ex Post Facto clause
when, in 2016, it affirmed the Superior Court's denial of
his motion to have his cocaine sentences run concurrently and
held that Delaware's Amended Sentencing Act, 11 Del. C.
§ 3901(d), does not apply retroactively. (D.I. 1; D.I.
5) A brief historical summary is helpful in understanding
Petitioner was sentenced in 2003, he was subject the 1977
version of 11 Del. C. § 3901(d), which provided that
"[n]o sentence of confinement of any criminal defendant
by any court of this State shall be made to run concurrently
with any other sentence of confinement imposed on such
criminal defendant." Fountain, 139 A.3d at 840.
On July 9, 2014, "§ 3901(d) was amended to give
courts the discretion, with certain exceptions, to impose
concurrent or consecutive sentences of confinement."
Henry v. State, 2019 WL 3211455, at *1 n.4 (Del.
July 16, 2019). In May 2015, Petitioner filed a motion to
arrest judgment, in which he asked to have the 2014 version
of § 3901(d) ("Amended Sentencing Act")
applied to his case so that his two Level V fifteen year
sentences for his cocaine convictions, imposed in 2003, would
run concurrently rather than consecutively. The Superior
Court refused to apply the Amended Sentencing Act
retroactively and denied ...