Rollins v. May

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

DUANE ROLLINS, Petitioner, : v. Civ. Act. No. 19-1255-LPS ROBERT MAY, Warden, and : ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents. :

MEMORANDUM OPINION

Duane Rollins. Pro Se Petitioner. Kathryn Joy Gartison , Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

August 30, 2021 Wilmington, Delawate

shane OS: prstilé joan I. INTRODUCTION Pending before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 USS.C. § 2254 (“Petition”) filed by Petitioner Duane Rollins (“Petitioner”). (D.I. 2) The State has filed Motion to Dismiss, to which Petitioner has filed a Reply. (D.I. 17; D.I. 19) For the reasons discussed, the Court will grant the Motion to Dismiss and dismiss the Petition as time-barred under the limitations period prescribed in 28 U.S.C. § 2244. II. BACKGROUND As set forth by the Delaware Supreme Court in Petitioner’s direct appeal, the facts leading to Petitionet’s arrest and conviction are as follows: In February 2013, [Petitioner], was indicted for two counts of Strangulation and one count each of Assault in the Second Degtee, Offensive Touching, Tertoristic Threatening, Assault in the Third Degree, and Endangering the Welfare of a Child. These chatges arose from [Petitioner’s] assault on his pregnant girlfriend and her son. On September 4, 2013, Petitioner pled guilty to two counts of Strangulation and the State entered a nolle prosequi on the remaining charges. As part of the plea agreement, the State indicated that it would seek to declate [Petitioner] a habitual offender under 11 Ded C. § 4214(a) on the second count of Strangulation, but would waive proceeding against [Petitioner] as a habitual offender on the first count of Strangulation, the State agteed to cap its Level V tecommendation on the second count of Strangulation to fifteen years, and [Petitioner] agreed that he was eligible for habitual offender sentencing. During the guilty plea colloquy, [Petitioner] told the Superior Court that he signed the Truth—In— Sentencing Guilty Plea form after reviewing it with his trial counsel, he freely and voluntarily decided to plead guilty, he understood that he would not have a trial and was waiving cettain constitutional rights, he committed both counts of Strangulation, and he understood that he faced a sentence of five yeats to life imprisonment. On November 15, 2013, after he was a declared a habitual offender as to the second count of Strangulation, [Petitioner] was sentenced to fifteen yeats of Level V incatceration for the second count of Strangulation and five years of Level V incatceration, suspended for decreasing levels of supervision, for the first count of Strangulation. On: appeal, [Petitioner] argued that the sentencing judge, as well as the ptosecutor and his trial counsel, mistakenly believed that Strangulation

was statutotily categorized as a violent offense under 11 Ded C. § 4201(c) and requited at least a minimum mandatoty sentence of five yeats of Level V incarceration under Section 4214(a). The State agreed and filed a motion to remand for resentencing. [The Delaware Supreme] Coutt vacated the Superior Court's judgment and remanded for resentencing. On June 10, 2014, [Petitioner] filed a motion to withdraw his guilty plea. In the motion, [Petitioner] argued that his guilty plea was not knowing, intelligent, and voluntaty because his trial counsel mistakenly believed that Strangulation was a violent felony and incorrectly informed [Petitioner] that he faced a minimum mandatory sentence of five yeats for Strangulation. [Petitioner] claimed that he considered this minimum mandatoty time in deciding to plead guilty. The State opposed the motion and argued that [Petitioner] did not meet his burden of showing that there was fair and just reason to permit the withdrawal of his guilty plea under Superior Court Criminal Rule 32(d). On July 31, 2014 [Petitioner] filed a pro se motion to dismiss his trial counsel and for appointment of new counsel. [Petitioner] argued that his trial counsel provided ineffective assistance by misinforming him that he faced a five year minimum mandatoty sentence and by showing letters he exchanged with the victim to the State and reading portions of those letters aloud at the November 15, 2013 sentencing hearing. On August 7, 2014, [Petitioner’s] trial counsel filed a motion to withdraw on the grounds that [Petitioner] had filed a complaint with the Office of Disciplinary Counsel regarding the minimum mandatory sentence mistake and the letters. The Superior Court denied all of the motions in a letter opinion dated August 22, 2014. [Petitioner] filed a pro se notice of appeal, which was dismissed as interlocutoty. On January 16, 2015, [Petitioner] was declared a habitual offender and tesentenced to ten years of Level V incarceration for the second count of Strangulation and five years of Level V incarceration, suspended after two yeats for decreasing levels of supervision, for the first count of Strangulation. As a result of the remand and te-sentencing, [Petitionet’s] non-suspended Level V time decteased from fifteen years to twelve yeats. Rollins v. State, 123 A.3d 471 (Table), 2015 WL 5032041, at *1 (Del. 2015). On August 25, 2015, the Delaware Supreme Court affirmed Petitionet’s convictions and tesentence. See zd. at *4. On August 25, 2016, Petitioner filed a motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 (“Rule 61 motion”). (D.I. 19 at 3) The Superior Court denied the 2 □

Rule 61 motion on March 14, 2018. See State v. Rollins, 2018 WL 1363808 (Del. Super. Ct. Mar. 14, 2018). Petitioner appealed, and the Delaware Supreme Court affirmed that judgment on October 16, 2018. See Rollins v. State, 196 A.3d 412 (Table), 2018 WL 5044333 (Del. Oct. 16, 2018). Petitioner filed the instant § 2254 Petition in July 2019, which appears to assert the following two grounds for relief: (1) defense counsel provided ineffective assistance by failing to request a competency heating before Petitioner entered a guilty plea; and (2) the Superior Court violated Petitioner’s constitutional rights by failing to hold a competency hearing swa sponte. (D.I. 2 at 5; DI. 3) III. ONE YEAR STATUTE OF LIMITATIONS The Antiterrorism and Effective Death Penalty Act of 1996 (“‘AEDPA”) prescribes a one- yeat 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 tecognized by the Supreme Court, if the tight has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; ot (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. Sve Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory tolling).

Petitioner’s § 2254 Petition, filed in 2019, is subject to the one-year limitations period contained in § 2244(d)(1). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Petitioner does not allege, and the Court cannot discern, any facts triggering the application of § 2244(d)(1)(B), (©), ot (D). Given these citcumstances, the one-year period of limitations began to run when Petitioner’s conviction became final under § 2244(d)(1)(A). Pursuant to § 2244(d)(1)(A), if state prisoner appeals a state court judgment but does not seek certiorari review, the judgment of conviction becomes final ninety days after the state appellate coutt’s decision. See Kapral v. United States, 166 F.3d 565, 575, 578 (3d Cir. 1999); Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999). The Delaware Supreme Court affirmed Petitioner’s convictions and resentencing on August 25, 2015, and he did not file a petition for writ of cettiorari. As a tesult, Petitioner’s judgment of conviction became final ninety-days after the Delaware Supreme Coutt’s decision, on November 23, 2015. Applying the one-year limitations period to that date, Petitioner had until November 23, 2016' to timely file his Petition. See Wilson v. Beard, 426 F.3d 653 (3d Cit. 2005) (holding that Federal Rule of Civil Procedute 6(a) and (e) applies to federal habeas petitions), Phhpot v. Johnson, 2015 WL 1906127, at *3 n. 3 (D. Del. Apr. 27, 2015) (AEDPA’s one-year limitations period is calculated according to anniversary method, .., limitations petiod expites on the anniversaty of triggering event).

! The Court notes that 2016 was a leap year, consisting of 366 days. However, “[e]very federal citcuit that has addressed the issue has concluded that [the] method in [in Fed. R. Civ. P. 6], z¢., the ‘anniversaty’ method, for calculating a time period [applicable to] AEDPA’s one-year limitation period.” Nunez v. California, 2014 WL 809206, at *3 n.9 (N.D. Ohio Feb. 25, 2014) (collecting cases). “Under the ‘anniversary’ method, the first day of the one-year limitations period is the day after the triggering event, thus giving petitioners ‘until the close of business on the anniversary date of...’ the triggering event to file a federal habeas petition.” Id. (internal citation omitted). Using the anniversaty method in this case (and, essentially, ignoring the leap day), results in November 23, 2016 being the last day of AEDPA’s limitations period.

Petitioner filed the instant Petition on July 2, 2019,’ approximately two and one-half years after the expiration of the limitations period. Thus, his Petition is untimely, unless the limitations period can be statutorily or equitably tolled. See Jones, 195 F.3d at 158. A. Statutory Tolling Pursuant to § 2244(d)(2), a properly filed state post-conviction motion tolls AEDPA’s limitations period during the time the action is pending in the state courts, including any post- conviction appeals, provided that the motion was filed and pending before the expiration of AEDPA’s limitations period. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d Cir. 2000); Price », Taylor, 2002 WL 31107363, at *2 (D. Del. Sept. 23, 2002). 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 Coutt regatding a judgment denying a state post-conviction motion. See Stokes v. Dist. Attorney of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001). In addition, a post-conviction motion that is untimely under state law is not properly filed for § 2244(d)(2) purposes and, therefore, has no statutory tolling effect. See Pace v. DiGughelmo, 544 U.S. 408, 414 (2005). Here, 275 days of AEDPA’s limitations petiod lapsed before Petitioner filed his first Rule 61 motion on August 25, 2016. The Superior Court denied the motion, and the Delaware Supreme Coutt affirmed that decision on October 16, 2018. Consequently, Petitioner’s Rule 61 motion tolled the limitations petiod from August 25, 2016 through October 16, 2018.

2Pursuant to the prisoner mailbox rule, the Court adopts July 2, 2019 as the filing date because that is the date on Petitioner’s certificate of mailing. See Longenette v. Krusing, 322. F.3d 758, 761 Gd Cir. 2003) (date on which prisoner transmitted documents to prison authorities for mailing is considered actual filing date).

The limitations clock statted to run again on October 17, 2018 and ran the remaining ninety days without interruption until the limitations period expired on Januaty 15, 2019. Thus, even with the applicable statutory tolling, the Petition is time-barred, unless equitable tolling is applicable. B. Equitable Tolling AEDPA’s limitations period may be tolled for equitable reasons in appropriate cases. See Holland, 560 U.S. at 645. A petitioner can only qualify for equitable tolling by demonstrating “(1) that he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing;”’ mere excusable neglect is insufficient. See Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004). Consistent with these principles, the Third Circuit has specifically limited the equitable tolling of AEDPA’s limitations petiod to the following circumstances: (1) where the defendant (or the court) actively misled the plaintiff; (2) where the plaintiff was in some extraordinary way prevented from assetting his rights; or (3) where the plaintiff timely asserted his rights mistakenly in the wrong forum. Jones, 195 F.3d at 159; see also Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001). Petitionet does not allege, and the Court does not discern, that any extraordinary circumstances prevented him from timely filing the instant Petition. Rather, he erroneously asserts that AEDPA’s one-year period began to run October 16, 2018, the date on which the Delaware Supteme Coutt affirmed the denial of his Rule 61 motion. (D.I. 17 at 2) As previously explained, however, AEDPA’s one-year limitations period started to run on November 24, 2015, the date on which his conviction became final. While the Rule 61 motion acts to statutorily toll the limitations

*Holland, 560 U.S. at 648. □

petiod, it does not completely re-start the limitations period. Petitioner’s mistaken understanding of the law or miscalculation regarding the one-year filing period does not warrant equitably tolling the limitations period. See Taylor v. Carroll, 2004 WL 1151552, at *5-6 (D. Del. May 14, 2004). Based on the foregoing, the Court concludes that that the doctrine of equitable tolling is not available to Petitioner on the facts he has presented. Accordingly, the Court will dismiss the instant Petition as time-barred. IV. PENDING MOTIONS Petitioner has filed two Motions for Issuance of a Certificate of Appealability (D.I 22; D.I. 25); and a Motion for Leave to Proceed on Appeal In Forma Pauperis (D.I. 23). All three Motions ate captioned for the Third Circuit and concern the Court’s Order dated September 30, 2020, which granted the State leave to file a Motion to Dismiss. (See D.I. 18) Since the Motions ate captioned for the Third Circuit, and since the Third Circuit has already dismissed as interlocutory Petitioner’s appeal of the Court’s September 30, 2020 Order (See D.I. 26), the Court will dismiss all three Motions as moot. V. CERTIFICATE OF APPEALABILITY A district court issuing a final order denying a § 2254 petition must also decide whether to issue a cettificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2). A federal court denying a habeas petition on procedural grounds without teaching the underlying constitutional claims is not required to issue a certificate of appealability unless the petitioner demonstrates that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural tuling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Court has concluded that the instant Petition does not warrant telief because it is time- batted. Reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court declines to issue a certificate of appealability. VI. CONCLUSION For the reasons discussed, the State’s Motion to Dismiss is GRANTED, and Petitioner’s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DISMISSED. An apptoprtiate Order will be entered.