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

Case1:O4-cv-01446-GIVIS Document11-2 Filed O4/19/2005 Page10f4
IN THE UNITED STATES DISTRICT COURT _
FOR THE DISTRICT OF DELAWARE
RUSSELL HECKINGER, · ) `
Petitioner, g Civil Action No. 98-339-LDN ‘
v. I g
SHERESE BREWINGTDN-CARR, et al., )
Respondents. g QiB.D.E.B _
I 1. Petitioner_Russel1 Heckinger_has filed a petition for I
habeas relief pursuant to 28 U.S.C. § 2254. [Docket Item {0.1.} _
1]. Respondents have filed an answer [D.I. 8]. -
- - 2. In May, 1993, Mr. Heckinger pled guilty in Delaware
Superior court to first degree robbery, first degree kidnaping,
I possession of a deadly weapon during commission of a felony, and _ I
two counts of third degree burglary. He was sentenced to 11 _
years imprisonment, suspended after six years for various levels I
of probation. Mr. Heckinger made no appeals concerning his _
I conviction. _
3. In May, 1998, Mr. Eeckinger filed an application for
- state habeas corpus relief in the Superior Court. The court
denied the petition on May 27, 1998, and Mr. Heckinger did not ‘
appeal the court's decision. _
4. In Mr. Heckinger's pending habeas petition, he does not .
challenge the underlying convictions in his case; rather, he -
claims that he isIentit1ed to placement in work release status
1. I
I Ex.

I -‘ Case1:O4—cv-01446-GIVIS D0cument11-2 Filed O4/19/2005 Page20f4
and should not be incarcerated in level V. Mr. Heckinger did not
present this issue to the Delaware Supreme Court because he never
appealed the denial of his state habeas petition. Therefore,
this claim is procedurally defaulted under Delaware Supreme Court _
Rule 6(a)(iii), which requires notice of appeals to be filed
— within 30 days of entry of the court's order.
5. . In order to gain federal review of his procedurally
defaulted claim, petitioner must establish (1) cause for his
procedural default and resulting prejudice, Qgleman;y1_Ihgmpsgn,
501 U.S. 722, 750 (1991): Q§EH§1l.!».B!§H, 953 F.2d 853, 860-61 -
(3d Cir._1992}; or (2) that failure to review the claims will
'result in a fundamental miscarriage of justice.” Qglgmdn, 501
U.S. at 750. To demonstrate cause, petitioner must show that
“some objective factor external to the defens€‘precluded his _
U compliance with state procedural rules. MgQlg5keg_xL_Zgnt, 499
U.S. 467, 493 (1991). Under this standard, cause can be U
demonstrated by showing that the “factual or legal basis of a
claim was not reasonably_available to counsel" or that government
interference rendered procedural compliance impracticable. `
, 477 U.s. 478, 488 (1986). There is nothing
presented by petitioner, nor is there anything in the record to
demonstrate that the cause of the procedural defaultswas·external
to the petitioner. Additionally, there is no miscarriage of
justice alleged by petitioner. Accordingly, this claim is -
I denied. '
6. Furthermore, petitioner’s claim regarding work release
-

`- Case 1:O4—cv—O1446-GI\/IS D0cument11-2 Filed O4/19/2005 Page30f{i
is not proper in a habeas petition. Petitioner's claim deals
with the conditions of confinement, which is properly brought as
a civil rights complaint: · I
‘ If the prisoner is seeking what can fairly be described
as a quantum change in the level of custody -— whether ·
outright freedom, or freedom subject to the limited
reporting and financial constraints of bond or parole
- or probation, or the run of the prison in contrast to
the approximation to solitary confinement that is
disciplinary segregation -- then habeas corpus is his
remedy. But if he is seeking a different program or
location or environment, then he is challenging the
conditions rather than the fact of his confinement and
his remedy is under civil rights law ....
GI¤ham.!l.Broglin, 922 F.2d 379, 381 (7th Cir. 1991). In graham,
the court went on to hold that the appropriate vehicle to _
challenge the prison's denial of a work release application was
by way of a civil rights action. Ldi_ §e2.al&Q, E:eise£.¥i
Rodriguez. 411 U.S. 475. 498-99 (1973):
` BH£s¤n.Q£.RIi&Qns, 52 F.3d 137 (7th Cir. 1995); Qamdgggylaah I
Rghinsgn, 641 F.2d 138 (3d Cir. 1981). A court, in its ..
_ discretion, may change the style of a complaint from a habeas I
. ‘ petition to a civil rights action, in order to avoid dismissal.
P In this matter, however, that is unnecessary, because petitioner
has filed a civil rights action in this Court alleging the same
facts as here. sag Hagkjaga;_ya_Karr, 98-518-LON. Therefore,
Mr. Heckinger's habeas petition is denied. ~w I ‘ I
3

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// · = . Case 1:04-cv-01446-GIVIS . Document 11-2 Filed O4/19/2005 Page 4 of 4
I NOW, THEREFORE, IT IS ORDERED that:
1. Russell Heckinger's Petition under 28 U.S.C. § 2254 for
Habeas corpus Relief is DENIED.
2. No probable cause exists for appeal. .
_ _. ?Z_. fr (fi .,
Joseph J. Longobardi, D.J.