United States District Court, D. Delaware
WESLEY J. FISHER, Petitioner,
CLAIRE DEMATTEIS, Commissioner, Delaware Department of Corrections, SHANE TROXLER, Bureau Chief, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
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
U.S. 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 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. §
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.
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)
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).
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).
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 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
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