Free Motion for Leave to File Excess Pages - District Court of Delaware - Delaware

Case 1:08-cv-00203-SLR

Document 8

Filed 06/23/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL J. ANKER, Petitioner, v. ELIZABETH NEAL, Acting Warden, John L. Webb Correctional Facility, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. : : : : Civil Action No. 08-203 SLR : : : : : :

MOTION TO WAIVE PAGE LIMITATIONS FOR FILING OF BRIEF The Petitioner hereby moves the Court to waive the page limitation of 40 pages under Local Rule 7.1.3(a)(4) and for for leave to file an Opening Brief in Support of Petition for Habeas Corpus to contain not more than forty-eight (48) pages. In making this request, counsel is mindful of the maxim that "the process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail...is the hallmark of effective appellate advocacy." Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). Conversely, the decision as to which issues to pursue on appeal falls on the attorney, and counsel is required to exercise "professional judgment." Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996). In this case, the Petitioner was convicted of nine counts of Felony Theft arising from allegations that Petitioner and a co-defendant, Laura Larks (Petitioner's daughter and sole employee), misappropriated various sums of money from a client escrow account maintained by Anker in his law practice. Following his convictions, Petitioner was sentenced to a total of 5 years in jail, followed by probation. He was also ordered to pay restitution of $554,046.00. Petitioner's convictions and sentence were affirmed by the Supreme Court of Delaware on direct appeal. See, Anker v. State, 2006 Del. LEXIS 578 (Del. 2006) This proceeding is for habeas corpus review of the summary denial of Petitioner's state court Motion for post-conviction relief which alleged denial of counsel and ineffective assistance of counsel under the Sixth Amendment. See, See, State v. Anker, 2007 Del. Super. LEXIS 209, aff'd,

Case 1:08-cv-00203-SLR

Document 8

Filed 06/23/2008

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Anker v. State, 2008 Del. Lexis 17 (Del. 2008). After a thorough and conscientious review of the record, counsel has identified the following arguments, briefly outlined below, which, in the exercise of counsel's professional judgment, have substantial merit and warrant inclusion in the Opening Brief: 1. At the time of Petitioner's trial in the Delaware Superior Court, his attorney was suffering from a major depressive disorder which resulted in a constructive denial of counsel under the Sixth Amendment and United States v. Cronic, 466 U.S. 648 (1984). 2. The Petitioner's Sixth Amendment claim under Cronic was "fairly presented" to the Delaware courts, who completely ignored the claim and therefore did not decide the claim on the merits. Because the Cronic claim was not decided on the merits in the state court, the claim should be reviewed de novo in this habeas proceeding, rather than under the more restrictive review mandated by the AEDPA. 3. The Petitioner's trial attorney was "ineffective" under the Sixth Amendment and Strickland v. Washington, 466 U.S. 688 (1984). The decision by the Delaware courts to summarily deny Petitioner's Sixth Amendment claim was contrary to and was an unreasonable application of Strickland. This Motion is not opposed by the Respondents.

/s/ Joseph M. Bernstein JOSEPH M. BERNSTEIN (#780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 302-656-9836 (Fax) E-mail: [email protected] Attorney for Petitioner Dated: June 23, 2008

Case 1:08-cv-00203-SLR

Document 8-2

Filed 06/23/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL J. ANKER, Petitioner, v. ELIZABETH NEAL, Acting Warden, John L. Webb Correctional Facility, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. : : : : Civil Action No. 08-203 SLR : : : : : : ORDER AND NOW, this _____ day of June , 2008, IT IS ORDERED that Petitioner is hereby granted leave to file an Opening Brief not to exceed _____ pages, exclusive of tables of contents and citations. ____________________________ District Judge

Case 1:08-cv-00203-SLR

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Filed 06/23/2008

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CERTIFICATE OF SERVICE I hereby certify that on June 23, 2008, I electronically filed the foregoing Motion to Waive Page Limitations with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Elizabeth R. McFarlan, Esquire Department of Justice 820 N. French Street Wilmington, DE 19801

/ s/ Joseph M. Bernstein JOSEPH M. BERNSTEIN (Bar #780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 E-mail: [email protected]