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 James McNeill.
(D.I. 2) The State filed an Answer in opposition, to which
Petitioner filed a Reply. (D.I. 18; D.I. 23) For the reasons
discussed, the Court will deny Petitioner's § 2254
September 2013, Petitioner pled guilty to aggravated
possession of cocaine and aggravated possession of
alprazolam. (D.I. 18 at 1) On that same day, the Superior
Court sentenced Petitioner as follows: (1) for possession of
cocaine, to five years of Level V incarceration and
successful completion of a drug treatment program; and (2)
for possession of alprazolam, one year at Level V, suspended
for one year of Level III probation. (D.I. 18 at 2)
Petitioner did not file a direct appeal.
8, 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 December 3, 2014. (D.I.
18 at 2). The Delaware Supreme Court affirmed the Superior
Court's denial of Petitioner's Rule 61 motion on
October 12, 2015. (D.I. 18 at 2)
September 19, 2016, the OPD filed a § 2254 Petition on
Petitioner's behalf, asserting that Petitioner's lack
of knowledge of the OCME misconduct 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 denied as time-barred and, alternatively, as meritless.
(D.I. 18) Petitioner filed a Reply in opposition. (D.I. 23)
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).
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 October 4, 2013, the date on which Petitioner's
conviction became final. (D.I. 18 at 6) 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. 23 at 6-7)
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 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) 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
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.
Petitioner pled guilty on September 4, 2013. The OCME report
concerning the drug evidence in this case is signed and dated
July 17, 2013, and presumably, was provided to Petitioner on
or around that date. (D.I. 22-8 at 393) 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. 23 at 7)
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 date it began to run).
did not file the instant § 2254 Petition until September
19, 2016, approximately one year and five 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). However, the limitations period 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).
when Petitioner filed his Rule 61 motion on May 8, 2014,
twenty-three days of AEDPA's limitations period had
already expired. The Rule 61 motion tolled the limitations
from May 8, 2014 through October 12, 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 October 13, 2015, and ran the remaining 342 days
without interruption until AEDPA's limitations period
expired on September 19, 2016. However, since Petitioner
filed his Petition on September 19, 2016, the Petition is
timely. Given these circumstances, the Court will review the
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