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

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2000 `WL 1092125 (D.Del,)
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Only the Westlaw citation is currently available. corpus relief, petitioner raises four claims. Because
none of these claims challenges the constitutionality
of his underlying conviction and sentence, the court
United States District Court, D. Delaware. shall deny his application.
` Rocco Jolm ZECCA, Petitioner, FN1. The state court records consist only
v. of the state court docket sheet. All
Raphael WILLIAMS, Warden, Respondent. references to the state court records in this
opinion refer to this docket sheet.
No. Civ.A.99-524—SI..R.
11. DISCUSSION
July 2}, 2000.
The essence of petitioner's habeas corpus
Rocco John Zecca, Felton, Delaware, for application is that he was held at Gander Hill prison
Petitioner, pro se. for several months before being allowed to
participate in the boot camp diversion program. It
Thomas E. Brown, Deputy Attorney General, appears from the state court docket sheet that the
Delaware Department of Justice, Wilmington, Delaware Department of Correction ("DOC")
Delaware, for respondent. initially prohibited petitioner from participating in
the boot camp program because of a clerical error
MEMORANDUM OPINION that led DOC officials to believe petitioner had pled
‘ guilty to the charges that the state, in fact, had not
ROBINSON, J. prosecuted. (DI. 1, Ex. 6; D.l. I'? at No. 25)
Consequently, petitioner remained at Gander Hill
I. INTRODUCTION prison awaiting entry into the September boot camp
"elass." (Di. 17 at No. 25) It appears from the
*1 Oarrently before the court is petitioner Rocco record that petitioner has completed boot camp and
John Zecca's application for habeas corpus relief has been released from custody. (D.I. 24 (May 5,
tiled pursuant to 23 U.S.C. § 2254. Petitioner was 2000 letter to court from petitioner indicating
indicted in November I997 in the Delaware change of address to Felton, Delaware)) Because
Superior Court for trafficking in cocaine, possession petitioner remains under supervised release,
with intent to deliver cocaine, maintaining a vehicle however, his habeas corpus petition is not moot.
for keeping controlled substances, and second
degree conspiracy. (D.I. 17 at No. 3) [FNI] In Although not rnoot, his petition does not state
December 1998, petitioner pled guilty to trafficking grounds for habeas corpus relief. To seek relief
in cocaine, and the state entered a nolte prosegui under the federal habeas corpus statute, a prisoner
with respect to the remaining charges. (D.l. I'? at must allege that he is "in custody in violation of the
No. 18) The Superior Court sentenced petitioner to Constitution or laws of the United States." 28
three years imprisonment, which it suspended upon U.S.C. § 2254(a). Petitioner does not challenge the
petitioner's completion of a "boot camp" diversion constitutionality of his guilty plea or his sentence.
program, and to two and one-half years of Instead, petitioner's application for habeas corpus
supervision. (D.I. 17 at No. 19; see also ll Del, C. § relief rests primarily on his contention that he was
6705, 67I2(d)(l)-(5)) The Superior Court also incarcerated for a longer period of time than if he
ordered petitioner held at "Level V" pending were promptly admitted to the boot camp program.
placement in the boot camp diversion program. There is no dispute, however, that he was not
(D.I. 17 at No. 19) In his application for habeas incarcerated beyond his three year minimum '
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mandatory sentence. indeed, the Superior Courts Notwithstanding this waiver of the exhaustion
sentencing order indicates that the Superior Court requirement, the court can only consider petitioners
entered a judgment of conviction against petitioner grounds for relief if he can demonstrate cause for
under 16 Del. C. § 4753 (which carries a minimum his failure to raise them to the Delaware Supreme
mandatory three year sentence) and that, in lieu of Court and actual prejudice or "that failure to
this three year sentence, petitioner was "remanded consider the claims will result in a fundamental
to the custody of the [DOC] upon the condition that miscarriage of justice." Coleman v. Thompson, 501
he shall complete the boot camp diversion program U.S. 722, 750 (1991). To show cause, the petitioner
." (D.l. 17 at No. 19) This was fully consistent with must demonstrate that "something external to the
` Delaware law. See ll Del. C. § 6712(t) (providing petitioner, something that cannot fairly be attributed
that the Superior Court "shall have the authority to to him" impeded his efforts to comply with the
remand the offender to the custody of the State‘s procedural rules. ki at 753. Such factors
Department of Correction at Accountability Level include interference by government officials,
lll, IV, or V until such offender is placed in a boot constitutionally ineffective assistance of counsel, or
camp facility"). Accordingly, petitioner’s habeas the unavailability of the factual or legal basis for a
corpus application fails to allege a constitutional claim. See, ag., McClesl:ey v. Zont, 499 U.S. 467,
violation and, as such, does not state a claim for 494 (l99l).
reliefunder 23 U.S.C. § 2254.
Petitioner‘s application is devoid of any showing of
*2 Even if his application stated grounds for relicti cause for his failure to raise his claims to the
petitioner has failed to exhaust his state law Delaware Supreme Court. Because petitioner has
remedies. A habeas petitioner must exhaust those not established cause, the court need not inquire as
remedies still available in state court. 23 U.S.C. § to whether petitioner suffered prejudice. See Bailey
2254(b)(l)(A). State remedies are unexhausted if v. Snyder, 355 F.Supp. 1392, 1402 (D.Del.l993),
the petitioner "has the right under the law of the nfld 68 F.3d 736 (3d Cir.l995).
State to raise, by any available procedure, the
question presented." Id. § 2254(c). Thus, a Alternatively, the court Call consider otherwise
petitioner must raise before the state court of last procedurally barred claims if petitioner
resort the factual and legal premises of the claims demonstrates that failure to do so would constitute a
for relief asserted in the § 2254 petition. See "miscarriage of justicc." See Schlup v. Defo, 513
Choussorct' v. Fulcomer, SI6 F.2d 925 (3d Cir.1987) U.S. 293, 314-15 (1995). This exception applies _
, Gibson v. Scheidemanrel, 805 F.2d 135, 138 (3d only in "extraordinary cases." Id at 321. As noted,
Cir.l986). petitioner was not incarcerated beyond the three
year minimum mandatory sentence. Accordingly,
Here, petitioner has not raised his claims for relief his incarceration was not amiscarriage of justice.
to the Delaware Supreme Court. In fact, petitioner
did not even appeal the Superior Court's denial of lll. CONCLUSION
his motion for correction of sentence. (D .1. 17 at
No. 23) Accordingly, petitioner has failed to *3 For the aforementioned reasons, the court shall
exhaust his state remedies. lt appears, however, that deny petitioners application for federal habeas _
an attempt to raise these claims before the Delaware corpus relief. An appropriate order shall issue.
Supreme Court would be futile because 10 Del. C. §
147 requires him to file a notice of appeal within 30 2000 WL 1092125 (D.Del.)
days after the judgments entry. Where the state
remedies are no longer available, a habeas END OF DOCUMENT
petitioner is excused from the exhaustion
requirement. See Teague v. Lone, 439 U.S. 288,
293 (1989) (finding that because "collateral relief
would be unavailable to petitioner," "fundamental
fairness" requires that the exhaustion requirement ·
be deemed fulfilled).
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