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Fisher v. DeMatteis

United States District Court, D. Delaware

September 30, 2019

WESLEY J. FISHER, Petitioner,
CLAIRE DEMATTEIS, Commissioner, Delaware Department of Corrections, SHANE TROXLER, Bureau Chief, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

          J. Brendan O'Neill, Office of Defense Services for die State of Delaware, Wilmington, Delaware. Attorney for Petitioner.

          Kathryn j. Harrison, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.



         Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C § 2254 ("Petition") filed by Petitioner Wesley j. Fisher ("Petitioner"). (D.I. 2) The State filed an Answer in opposition (D.I. 9), to which Petitioner filed a Reply (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).

         I. BACKGROUND

         On March 5, 2012, Petitioner pled guilty to two counts of drug dealing (marijuana). (D.I. 9 at 1) On that same day, the Superior Court sentenced Petitioner to a total of sixteen years of Level V incarceration, suspended after eight years and thirty days for eighteen months of Level III probation. (D.I. 9 at 1-2) Petitioner did not file a direct appeal.

         On April 20, 2012, Petitioner filed a motion for modification of sentence, which the Superior Court denied on June 12, 2012. Petitioner filed a second motion for modification of sentence on August 16, 2013, which the Superior Court denied on September 24, 2013. (D.I. 9 at 2)

         On July 14, 2014, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). On January 16, 2015, Delaware's Office of Defense Services ("OPD") filed a second Rule 61 motion on Petitioner's behalf, instructing the Superior Court to disregard Petitioner's pro se Rule 61 motion. The Superior Court summarily dismissed the Rule 61 motion on April 20, 2015. (D.I. 9 at 2; see State v. Anderson 2015 WL 2067158 (Del. Super. Ct. Apr. 20, 2015)). The Superior Court denied Petitioner's motion for reargument on June 17, 2015. See State v. Banks, 2015 WL 4400130 pel. Super. Ct. June 17, 2015). The Delaware Supreme Court affirmed the Superior Court's denial of Petitioner's Rule 61 motion on December 9, 2015. See Banks v. State, 2015 WL 8481972 (Del. Dec. 9, 2015).

         On 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 claim is meritless. (D.I. 9) Petitioner filed a Reply, conceding that the Petition was filed after the expiration of the statute of limitations period but asserting that it should be deemed timely filed through the application of the doctrine of equitable tolling. (D.I. 13 at 7).


         The 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 crirninal 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 been fired.
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).


         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prescribes a one-year period of limitations for the filing of habeas petitions by state ...

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