Ortwein v. Coupe

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PATRICIA ORTWEIN, Petitioner, : Vv. : Civ. Act. No. 16-860-LPS CLAIRE DEMATTEIS, Commissioner, : Delaware Department of Corrections, : SHANE TROXLER, Bureau Chief, and : ATTORNEY GENERAL OF THE STATE OF - : DELAWARE, Respondents. 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. MEMORANDUM OPINION September 30, 2019 Wilmington, Delaware ‘Commissioner Claire DeMatteis and Bureau Chief Shane Troxler have replaced former Commissioner Robert M. Coupe and former Bureau Chief Alan Grinstead, original parties to the case. See Fed. R. Civ. P. 11(d). fol Judge: Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 US.C. § 2254 (“Petition”) filed by Petitioner Patricia Ortwein (“Petitioner”). (D.I. 2) The State filed an Answer in opposition (D.I. 11), to which Petitioner filed a Reply (D.I. 15). 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. PROCEDURAL BACKGROUND On Match 19, 2013, Petitioner pled guilty to two counts of drug dealing and a violation of probation. (D.I. 11 at 1) On that same day, the Superior Court sentenced Petitioner as a habitual offender to four years of Level V incarceration for the first drug dealing conviction, and on the second drug dealing conviction to ten years of Level V incarceration, suspended upon completion of the Key program for lesser levels of supervision. (D.I. 11 at 1-2) Petitioner did not file a direct appeal. On January 16, 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”) on Petitioner’s behalf. The Superior Court summarily dismissed the Rule 61 motion on February 12, 2015. (D.L. 11 at 2) The Delaware Supreme Court affirmed the Superior Court’s denial of Petitionetr’s Rule 61 motion on December 2, 2015. See Wilhiams v. State, 129 A.3d 231 (Table), 2015 WL 7776322 (Del. Dec. 2, 2015). 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 her decision to plead guilty and, therefore, her 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 her 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, 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. 15 at 7) 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). Il. TIMELINESS The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) prescribes a oneyear 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 equitable and statutory 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). In its Answer, the State calculates that Petitioner’s judgment of conviction became final on April 18, 2013, and AEDPA’s statute of limitations expired on April 19, 2014. (D.I. 11 at 5-6) Since Petitioner did not file the instant Petition until September 21, 2016, the State argues that the Petition should be dismissed as time-barred. In her Reply to the State’s Answer, Petitioner concedes that she filed the instant Petition after the expiration of the limitations period on Apmil 19, 2014. (D.I. 15 at 7) However, she appears to assert that she is entitled to 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. 15 at 6-7) She then contends that the Court should deem the Petition timely filed by applying the doctrine of equitable tolling. (D.I. 15 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 she was considering whether to enter a plea. Second, she contends that the Delaware state courts should have deemed her 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 her lack of knowledge about the OCME misconduct is vital to her habeas Claim because that lack of knowledge rendered her 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 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 her case were tested by the OCME and the results were provided to her prior *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). 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 her case was tested by the OCME and she received the results of the test before entering a plea; and (2) exercising due diligence, she could not have learned that the evidence in her case may have been part of the compromised drug evidence involved in the OCME scandal until April 15, 2014. Petitioner has met her burden. First, the OCME report concerning the drugs in this case was signed on February 22, 2013° (and presumably available to Petitioner), and she entered a guilty plea on March 19, 2013. 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 15 at 7) Given 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, *(D.I. 7 at 8); see also (D.I. 17-4 at 102-103) *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 facts to make the instant argument were not available until the State provided the relevant information on Apnl 15, 2015. See Biden: Investigation of State Medical Examiner’s Drug Lab Reveals Systemic Fatlings, 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-labreveals-svstemic-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. 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 Petitioner had to file her § 2254 petition by April 15, 2015. See Widson 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); Phkpot 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 period expires on anniversary of triggering event). 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. 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. See 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 wnt 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). scandal in 2014 could not have constituted a new factual predicate for Harmon’s substantive Brady ». Maryland claim. Id. Here, by contrast, 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. Given these circumstances, which are quite different than those presented in Harmon, the Court concludes that the revelation of the OCME scandal constitutes a new factual predicate. Here, when the OPD filed Petitioner’s Rule 61 motion on January 16, 2015, 276 days of AEDPA’s limitations period had already expired. The Rule 61 motion tolled the limitations from January 17, 2015 through December 2, 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 December 3, 2015, and ran the remaining eighty-nine days without interruption until the limitations period expired on March 1, 2016. Thus, even with the applicable statutory tolling, the Petition is time-barred, unless equitable tolling is available. B. Equitable Tolling Pursuant to the equitable tolling doctrine, the one-year limitations period may be tolled in very tare 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. Id; 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 nghts mistakenly in the wrong forum. See 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 “he pursued he rights diligently” and {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. 15 at 7-9) Petitioner also states that [a]dditional 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 in State v. Irvin 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. 15 at 8) Petitioner’s equitable tolling argument is unavailing. She raised the issue of the OCME drug evidence scandal in her Rule 61 motion that she filed in the Delaware Superior Court on January 16, 2015, and the Delaware Supreme Court affirmed the denial of the Rule 61 motion on December 2, 2015. These dates demonstrate that Petitioner could have filed a timely “protective” § 2254 petition’ °The Supreme Court has 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 court to stay and abey the - federal habeas proceedings until state remedies are exhausted.” Pace v. DiGughelmo, 544 U.S. 408, 416 (2005). in this Court, along with a motion to stay the proceeding while awaiting the Delaware state courts’ post-conviction decisions, or she could have filed a habeas petition during the remaining eighty-nine days in AEDPA’s limitations period following the Delaware Supreme Court’s decision in her postconviction appeal. See Ross v. Varano, 712 F.3d 784, 804 (3d Cir. 2013)(“[FJor 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.”). Petitioner has not demonstrated that she (or her counsel) was prevented from filing a basic habeas petition in this Court. Similarly, Petitioner’s failure to timely file a petition during the eighty-nine days remaining in AEDPA’s limitations period after the 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 extraordinary circumstance ends, petitioner must exercise reasonable diligence in filing her petition). Finally, to the extent the delayed filing was due to a miscalculation or mistake on the part of the attorney(s) representing Petitioner, “attorney error, miscalculation, inadequate research, or other mistakes” do not amount to extraordinary circumstances for equitable tolling purposes. Hendricks v. Johnson, 62 F. Supp. 3d 406, 411 (D. Del. 2014). In short, Petitioner cannot demonstrate that the OCME scandal, and/or the timing of the State’s disclosure about the OCME scandal, actually prevented her from timely filing a petition seeking federal habeas relief. For all of these reasons, the Court concludes that the doctrine of equitable tolling is not available to Petinoner on the facts she has presented. Accordingly, the Court will deny the instant Petition as time-barred.’ "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. 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 constitutional right; and (2) whether the court was correct in its procedural ruling. See S/ack, 529 U.S. 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.