Rust v. DeMatteis

• Court: District Court, D. Delaware
• Decided: September 18, 2019
• Docket: 1:16-cv-00858
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

RODGER RUST, : Petitioner, : Vv. : Civ. Act. No. 16-858-RGA CLAIRE DEMATTEIS, Commissioner,! ALAN — : GRINSTEAD, Bureau Chief, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, : Respondents. :

MEMORANDUM OPINION

J. Brendan O’Neill, Office of Defense Services for the State of Delaware, Wilmington, Delaware. Attorney for Petitioner. Brian L. Arban, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

September Y , 2019 Wilmington, Delaware

'Commissioner Claire DeMatteis has replaced former Commissioner Robert M. Coupe, an original party to this case. See Fed. R. Civ. P. 11(d).

Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 (“Petition”) filed by Petitioner Michael Bethard. (D.I. 2) The State filed an Answer in opposition, to which Petitioner filed a Reply. (D.I. 11; D.I. 17) 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). L BACKGROUND On May 10, 2010, Petitioner pled guilty to trafficking in cocaine (50 to 100 grams) and maintaining a dwelling, and he pled nolo contendere to possession of a deadly weapon by a person prohibited (“PDWBPP”). (D.I. 11 at 1-2) On June 25, 2010, the Superior Court sentenced Petitioner to a total of thirty-six years at Level V, suspended after eight years for reduced levels of supervision. (D.I. 11 at 2) Petitioner did not file a direct appeal. On August 31, 2010, Petitioner filed a motion for modification of sentence, which the Superior Court denied on September 7, 2010. He did not appeal that decision. On February 1, 2011, Petitioner filed a second motion for sentence modification, which the Superior Court denied on February 8, 2011. The Delaware Supreme Court affirmed that decision on August 31, 2011. (D.I. 11 at 2) On September 13, 2011, Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 (“Rule 61 motion”), which the Superior Court summarily dismissed on September 29, 2011 because it was another request to modify his sentence. (D.I. 11 at 2) On March 27, 2015, 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”), which the Superior Court dismissed on April 10, 2015. (D.I. 11 at 2) The Delaware Supreme Court affirmed that decision on November 18, 2015. (D.I. 11 at 2) On September 23, 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. 11) Petitioner filed a Reply, asserting that the Petition should be deemed timely filed after applying § 2244(d)(1)(D) and the doctrine of equitable tolling. (D.I. 15 at 7-8) A. OCME CRIMINAL INVESTIGATION 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 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 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). I. TIMELINESS 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 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). Petitioner’s § 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 July 26, 2010, the date on which Petitioner’s

conviction became final. (D.I. 11 at 7) 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. 17 at 7) In 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 argument to its core. The argument appears to be two-fold. First, Petitioner contends that the State violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose that there was ongoing misconduct at the OCME during the time he was considering whether to enter a 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 States. Pursuant 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 USS. 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. First, the OCME report concerning the drug evidence in Petitioner’s case was completed on February 2, 2010 and signed on May 5, 2010 (D.I. 7 at 9; D.I. 15-8 at 73), and he pled guilty on May 10, 2010. 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.1 17 at 7)

*A petitioner establishes a Brady v. Maryland violation by showing that: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or it had impeachment value: (2) the prosecution suppressed the evidence, either willfully or inadvertently; and (3) the evidence was material. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir. 2004). Although the Delaware State Police (“DSP”) began its investigation into compromised drug evidence on January 15, 2014, and the Deputy Attorney General’s office informed defense counsel on February 21, 2014 that an investigation into the evidentiary practices at the OCME had started on February 20, 2014, the Court concurs with Petitioner’s contention that sufficient

Given these circumstances, the Court concludes that AEDPA’s limitations period in this case began to run on April 15, 2014.4 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 triggering event, which is usually the date on which the judgment of conviction became final). Petitioner did not file the instant § 2254 Petition until September 23, 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 facts for the instant argument were not available until the State provided the relevant information on April 15, 2015. See Biden: Investigation of State Medical Examiner’s Drug Lab Reveals Systemic Failings, Urgent Need for Reform, Dep’t of Justice, Att’y Gen.’s Website (June 19, 2014), https://news.delaware.gov/2014/06/19/biden-investigation-of-state-medical-examiners- drug-lab-reveals-systemic-failings-urgent-need-for-reform/. ‘The State relies on Harmon v. Johnson, 2016 WL 183899, at *3 (D. Del. Jan. 14, 2016) to support its argument that § 2254(d)(1)(D) is inapplicable and therefore cannot trigger a later starting date in Petitioner’s case. The Court disagrees, because Harmon is distinguishable. Harmon argued that his conviction should be vacated because the State violated Brady v. Maryland by failing to disclose its knowledge of the OCME drug evidence scandal during his plea process and by waiting until long after his conviction in 2012 to disclose the tampering. See Harmon, 2016 WL 183899, at *2-3. However, since the drug evidence in Harmon was never sent to the OCME for testing, the court found that the revelation of the OCME scandal in 2014 could not constitute a new factual predicate for Harmon’s substantive Brady v. Maryland claim. Id. Here, unlike Harmon, Petitioner argues that the alleged lack of knowledge of the OCME misconduct was material to his decision to plead guilty, thereby rendering his guilty plea involuntary under Brady v. United States. In addition, unlike in Harmon, the drug evidence in Petitioner’s case was sent to the OCME for further testing after the initial field test, and Petitioner received a copy of the OCME report prior to pleading guilty. Thus, given these circumstances, the Court concludes that the revelation of the OCME scandal constitutes a new factual predicate for Petitioner’s instant argument.

Holland v. Florida, 560 U.S. 631, 645 (2010)(equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory tolling). The Court will discuss each doctrine in turn. A. Statutory Tolling Pursuant 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 March 27, 2015, 346 days of AEDPA’s limitations period had expired. The Rule 61 motion tolled the limitations period from March 27, 2015 through November 18, 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 November 19, 2015, and ran the remaining nineteen days until it expired on December 8, 2015. Thus, the Petition is time-barred, unless equitable tolling applies. B. Equitable Tolling Pursuant to the equitable tolling doctrine, the one-year limitations period may be tolled in very rare circumstances for equitable reasons when the petitioner demonstrates “(1? that: he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (emphasis added). Equitable tolling is not available where the late filing is due to the petitioner’s excusable neglect. /d.; Miller v. New

Jersey State Dept. of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998). A petitioner's obligation to act diligently applies to both his filing of the federal habeas application and to his filing of state post-conviction applications. See LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir.2005). In turn, the Third Circuit has explained that equitable tolling of AEDPA’s limitations period may be appropriate in 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 asserting his rights; or (3) where the plaintiff timely asserted his rights mistakenly in the wrong forum. Jones, 195 F.3d at 159; Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001). Here, Petitioner contends that equitable tolling is warranted because a significant portion of his “delay” in waiting until March 27, 2015 to file his Rule 61 motion was “caused by extraordinary circumstances created by a deceptive member of the prosecution team.” (D.I. 17 at 8) He contends that [i]t would be inequitable to prevent him from seeking relief when several similarly situated petitioners will have their claims heard even though they discovered the misconduct at the same time as he did, filed their petitions at the same time or after he did and exhausted their state remedies around the same time as he did. It is unfair to penalize him because his counsel’s state resources were significantly strained due to the hundreds of motions they filed upon discovery of the misconduct. (D.I. 17 at 8-9) Petitioner also states that additional extraordinary circumstances resulted from the systemic nature of the government misconduct. Counsel had to: 1) identify which of a vast number of clients had viable claims; 2) contact all of those clients; 3) file a vast number of petitions for those with legitimate claims; 4) operate with limited state resources strained by the volume of filings; 5) stop filing petitions in order to research and brief issues raised due to the Superior Court’s abrupt and drastic amendment to Rule 61 without notice to counsel; 6) prepare

for, participate in, and submit briefing following a 3-day evidentiary hearing to uncover further evidence of OCME misconduct; and 7) repeatedly supplement filed motions with new evidence of misconduct that continued to trickle out over the next two or more years. (D.I. 17 at 8) Petitioner’s equitable tolling argument is unavailing. To begin, the events on Petitioner’s “list” of alleged “extraordinary circumstances” do not constitute extraordinary circumstances for equitable tolling purposes. See Hendricks v. Johnson, 62 F. Supp. 3d 406, 411 (D. Del. 2014)(explaining that “attorney error, miscalculation, inadequate research, or other mistakes” do not amount to extraordinary circumstances for equitable tolling purposes). Even if these “events” could somehow be construed as extraordinary, Petitioner has not demonstrated that they actually prevented him from filing a basic habeas petition. See Ross v. Varano, 712 F.3d 784, 803 (3 Cir. 2013)(“[F]or a petitioner to obtain relief [via equitable tolling] there must be a causal connection, or nexus, between the extraordinary circumstances he faced and the petitioner’s failure to file a timely federal petition.”). For instance, Petitioner concedes that, as of April 15, 2014, he had a reasonable basis to conclude that drug evidence of all types at the OCME had been compromised. (D.I. 17 at 7) Given this concession, the Court is not persuaded by Petitioner’s assertion that he could not have filed his Rule 61 motion before March 27, 2015. Additionally, since Petitioner was aware of enough basic facts of the OCME scandal in April 2014, he has failed to demonstrate that he was actually prevented from filing a timely protective petition’ in this Court before the expiration of AEDPA’s limitations period on December 8,

‘In Pace v. DiGuglielmo, the Supreme Court explained that a “petitioner’s reasonable confusion about whether a state filing would be timely” when attempting to exhaust state remedies may constitute good cause for him to file a “protective petition in federal court and ask[] the federal

2015. See Ross, 712 F.3d at 803 (3 Cir. 2013). Similarly, Petitioner’s failure to timely file a petition during the nineteen days remaining in AEDPA’s limitations period after Delaware Supreme Court issued its post-conviction appellate decision also precludes a finding that Petitioner exercised the requisite “due diligence” to warrant equitably tolling the limitations period. See, e.g., Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)(once the extraordinary circumstance ends, petitioner must exercise reasonable diligence in filing his petition). For all of these reasons, the Court concludes that the doctrine of equitable tolling is not available to Petitioner on the facts he has presented. Accordingly, the Court will deny the instant Petition as time-barred.® Ill. CERTIFICATE OF APPEALABILITY A district court issuing a final order denying a § 2254 petition must also decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). A certificate of appealability is appropriate when a petitioner makes a “substantial showing of the denial of a constitutional right” by demonstrating “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the court 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

court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 U.S. 408, 416 (2005). °Having concluded that it must deny the Petition as time-barred, the Court will not address the State’s alternate reason for denying the Petition. 0

constitutional right; and (2) whether the court was correct in its procedural ruling. See Slack, 529 USS. at 484. The Court has concluded that the instant Petition is time-barred. Reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate of appealability. IV. CONCLUSION For the reasons discussed, Petitioner’s Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 is DENIED. An appropriate Order will be entered.