Free Response to Habeas Petition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JERMAINE BARNETT, Petitioner, v. THOMAS CARROLL, Warden and JOSEPH R. BIDEN III, Attorney General for the State of Delaware Respondents.1 ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 06-583-JJF

ANSWER Pursuant to Rule 5 of the Rules Governing Section 2254 Actions, 28 U.S.C. foll. § 2254, respondents state the following in response to the petition for a writ of habeas corpus: In August 2005, the grand jury indicted Jermaine Barnett, Hector Barrow, and Lawrence Johnson, charging them with three counts of first degree murder and various other charges relating to the June 25, 1995 shooting of Thomas Smith. See Del. Super. Ct. Crim. Dkt. Item 1 in case no. 9506017682 ("Superior Court Docket Item __"). Johnson was tried first; he was acquitted of intentional first degree murder, but convicted of two counts of first degree felony murder. His convictions were affirmed on appeal. Johnson v. State, 709 A.2d 1158 (Del. 1998). See also Barrow v. State, 749 A.2d 1230 (Del. 2000) (consolidated appeal). In a joint trial, Barrow and Barnett were convicted of intentional first degree murder, two counts of first degree felony murder and other charges. See Superior Court Docket Item 140; Barrow, 749 A.2d at

See Fed.R.Civ.P. 25(d)(1). Attorney General Joseph R. Biden, III, assumed office on January 2, 2007, replacing former Attorney General Carl C. Danberg, an original party to this case.

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1233. After a penalty hearing, Barnett and Barrow were sentenced to death. See State v. Barrow, 1998 Del. Super. LEXIS 419 (Del. Super. Ct. February 3, 1998). On direct appeal, the Delaware Supreme Court reversed the first degree intentional murder convictions of Barrow and Barnett, ordering a new trial on that count. Against the claim that the admission of Johnson's statement was erroneous, the Delaware Supreme Court affirmed each defendant's convictions for felony murder, concluding that the error was harmless. The death sentences, however, were vacated. See Barrow, 749 A.2d at 1245. On remand, the Superior Court conducted a second penalty hearing. Superior Court Docket Item 240. On January 4, 2002, the Superior Court sentenced Barnett to life imprisonment for the two first degree felony murder convictions. Superior Court Docket Item 248; State v. Barrow, 2002 WL 88934 (Del. Super. Ct. Jan. 4, 2002). Barnett did not appeal his sentence. On January 27, 2005, Barnett petitioned Superior Court for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61. Superior Court Docket Item 255. On December 6, 2005, the court denied Barnett's motion as untimely under Rule 61(i)(1).2 Superior Court Docket Item 270. See also State v. Barrow, 2005 WL 3436609 (Del. Super. Ct. Dec. 6, 2005). Barnett appealed the denial of his motion for postconviction relief on March 30, 2006. The Delaware Supreme Court dismissed Barnett's appeal as being untimely. See Barnett v. State, 2006 WL 2371338 (Del. Aug. 14, 2006).

Delaware Superior Court Criminal Rule 61(i) provides, in relevant part: "Bars to Relief. (1) Time limitation. A motion for postconviction relief ay not be filed more than one year after the judgment of conviction is final...."

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Discussion In Barnett's original trial, the prosecution introduced out-of-court statements made by Johnson. Barrow, 749 A.2d at 1236. In his petition for federal habeas relief, Barnett raises four challenges, all of which are predicated on the admission of Johnson's statement. D.I. 1 at 6-12. Barnett is not entitled to relief because the claims presented in his petition are untimely under 28 U.S.C. § 2244(d). Because Barnett's petition was filed in September 2006, it is subject to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), signed into law by the President on April 24, 1996. See generally Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding the AEDPA applies to "such cases as were filed after the statute's enactment."); Lawrie v. Snyder, 9 F. Supp.2d 428, 433 n.1 (D. Del. 1998); Dawson v. Snyder, 988 F. Supp. 783, 802-03 (D. Del. 1997). By the terms of § 2244(d)(1), as amended by AEDPA, a federal habeas

petitioner must file the petition within one year of the date on which the state court judgment became final upon the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A); Calderon v. Ashmus, 523 U.S. 740, 742-43 (1998).3 Barnett's conviction became final on February 5, 2002, the day when the 30 day window to appeal his resentencing to the Delaware Supreme Court expired. See Lindsey v. Carroll, 421 F. Supp. 2d 806, 809 (D. Del. 2006) (citations omitted); Del. Supreme Court Rule 6(a)(ii). Accordingly, under § 2244(d)(1)(A), Barnett had until

February 5, 2003 to file his petition for habeas relief. Barnett did not file his petition until September 16, 2006, three years, seven months, and eleven days beyond the one year limitations period of § 2244(d)(1)(A).4 Therefore, the petition is untimely and must be dismissed, unless the

Barnett does not allege, nor can respondents discern, any reason to believe that the terms of 28 U.S.C. § 2244(d)(1)(B)-(D) are applicable. 4 The petition is dated September 16, 2006. D.I. 1, at 16. That is the presumptive date on which Barnett gave the petition to prison officials for mailing. In turn, that date is the date the petition is deemed filed. See, e.g., Woods v. Kearney, 215 F. Supp.2d 458, 460 (D. Del. 2002).

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time period can be statutorily or equitable tolled. See Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999). In turn, the tolling mechanism of § 2244(d)(1) does not save Barnett's petition from the running of the limitations period. See 28 U.S.C. § 2244(d)(2). When applicable, § 2244(d)(2) tolls the one-year period of § 2244(d)(1) during the time that a properly filed state postconviction action is pending in the state courts. While Barnett may have filed for state postconviction relief, he did not do so until after the one year statute of limitation period of § 2244(d)(1) had run. As a result, his filing neither reset nor revived the limitations period. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Woods, 215 F. Supp.2d at 462 (citing cases); Spencer v. Snyder, 2002 WL 1774234, at *2 (D. Del. July 24, 2002) (citing cases).5 Accordingly, Barnett's petition is thus untimely under section 2244(d) and must be dismissed. Of course, as the Court has repeatedly noted, the limitation period might be subject to equitable tolling. See, e.g., Thomas v. Snyder, 2001 WL 1555239, at *3-4 (D. Del. Nov. 28, 2001) (describing rule). Equitable tolling, however, applies only where the petitioner "has in some extraordinary way been prevented from asserting his or her rights." Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Here, Barnett has failed to allege or demonstrate any extraordinary circumstances that prevented him from filing his petition with the Court in a timely manner. Indeed, Barnett cannot credibly allege that the substance of his legal argument or the foundational facts were unavailable to him during the limitations period; in

Furthermore, when Barnett finally petitioned for postconviction relief, the Superior Court denied it as untimely under Rule 61(i)(1). See Barrow, 2005 WL 3436609 , at *2. Similarly, the Delaware Supreme Court dismissed Barnett's appeal of the order denying his postconviction motion as untimely under its Rule 6(a)(iii). Because Barnett's motion for postconviction relief was not properly filed, the motion and the ensuing appeal each being untimely, it would not have statutorily tolled the one-year limitations period under § 2244(d)(1). See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).

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fact, at the end of his direct appeal, Barnett had all the information upon which he relies in the instant petition. Furthermore, equitable tolling requires diligence on the part of the petitioner. Miller, 145 F.3d at 618-19. Barnett's delay of more then three years and seven months does not reflect any degree of diligence on his part. Accordingly, the petition is untimely under § 2244(d), and there is no basis upon which any relevant time should be excluded by virtue of the equitable tolling doctrine. Conclusion Based upon the Superior Court docket sheet, it appears that transcripts of Barnett's trial and sentencing proceedings have been prepared. In the event that the Court directs the production of any transcript, respondents cannot state with specificity when such transcript would be available. However, respondents reasonably anticipate that such production would take 90 days from the issuance of any such order by the Court. For the foregoing reasons, the petition for writ of habeas corpus should be dismissed without further proceedings.

/s/Kevin M. Carroll Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836 [email protected]

Dated: February 2, 2007

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CERTIFICATE OF SERVICE I hereby certify that on February 2, 2007, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on February 2, 2007, I have mailed by United States Postal Service, the same documents to the following non-registered participant:

Jermaine Barnett SBI No. 330792 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 [email protected] Date: February 2, 2007

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