Free Petition for Writ of Habeas Corpus - District Court of Delaware - Delaware

Case 1:08-cv-00203-SLR

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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. : : : : : :

PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. §2254 1. Name and location of court which entered the judgment of conviction under attack: Superior Court of the State of Delaware (New Castle County), 500 N. King Street, Wilmington, DE 19801. 2. Date of judgment of conviction: (1) conviction by jury - August 4, 2005; (2) sentencing date - November 4, 2005. 3. Length of Sentence: Petitioner was sentenced to 19 years in jail, suspended after serving 5 years, followed by probation. 4. Nature of offense involved: (1) 6 counts of Theft > $100,000; (2) 3 counts of Theft > $50,000; 1 count of Conspiracy Second Degree 5. What was your plea? - Not Guilty 6. If you pleaded not guilty, what kind of trial did you have? - Jury trial 7. Did you testify at the trial? - Yes 8. Did you appeal from the judgment of conviction? - Yes 9. If you did appeal, answer the following: (a) Name of court - Supreme Court of Delaware (b) Result - convictions and sentence were affirmed (c) Date of result and citation - October 31, 2006 (motion for rehearing denied on December 5, 2006); Anker v. State, 2006 Del. LEXIS 578 (d) Grounds raised: 1. Whether Anker was denied his right to a fundamentally fair trial when the State was permitted to introduce evidence that prior to the trial, the "Lawyers' Fund" had paid off many of the unpaid mortgages that were the basis of the Theft charges against Anker. This evidence, which was totally irrelevant to any issue in the trial, clearly suggested

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to the jury that the legal profession, by paying off the unpaid mortgages, had already decided that Anker was guilty. 2. Whether Anker was denied his right to a fundamentally fair trial when the State was permitted to introduce evidence that the defendant was a tax delinquent and evidence of other "bad acts" committed by the defendant. 3. Whether Anker was denied his right to a fundamentally fair trial when the trial court ruled that the defendant would be barred from presenting expert psychiatric testimony that his "intent" to commit the alleged thefts was influenced by his relationship with his daughter, a co-defendant in the case. (e) If you sought further review of the decision on appeal by a higher state court, please answer the following: Not applicable. (f) If you filed a petition for certiorari in the United States Supreme Court, please answer the following with respect to each direct appeal: Not applicable. 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications or motions with respect to this judgment in any court, state or federal? Yes. 11. If your answer to 10 was "yes," give the following information: (A) (1) Name of Court - Delaware Superior Court (New Castle County) (2) Nature of proceeding - Petition for post-conviction relief under Superior Court Criminal Rule 61. (3) Grounds raised: Whether the performance of defendant's counsel in the trial amounted to ineffective assistance of counsel under the 6th Amendment to the U.S. Constitution and Article I, §7 of the Delaware Constitution in the following respects: Claim No. 1: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the investigation of the defendant by the Office of Disciplinary Counsel ("ODC") and actions taken by the Lawyers' Fund for Client Protection ("Lawyers' Fund") to pay off several of the unpaid mortgages that were the basis of the Theft charges against Anker. Claim No. 2: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the emotional and financial impact of defendant's alleged thefts on the alleged victims. Claim No. 3: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the defendant's character and "bad acts" allegedly committed by the defendant. Claim No. 4: Defense counsel was ineffective in failing to educate the jury concerning the distinction between an attorney's liability for a violation of attorney disciplinary rules of conduct, on the one hand,

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and liability for criminal conduct, on the other hand. Claim No. 5: Defense counsel was ineffective in failing to utilize at trial evidence that had been developed by William F. Glanz ("Glanz"), an investigator who had been retained to assist in the preparation of the defense. Claim No. 6: The defendant was deprived of his right to the effective assistance of counsel because defense counsel had failed to disclose to the defendant that during the course of his representation defense counsel was suffering from a major depressive disorder which caused him to virtually neglect and ignore his professional obligations to his clients, including Anker, and which eventually led to the filing of numerous disciplinary charges against defense counsel by ODC. See, In re Allan Wendelburg, Case No. 501, 2006 (Del. 2006). motion? (4) Did you receive an evidentiary hearing on your petition, application or No.

(5) Result - The Rule 61 Motion was denied. State v. Anker, 2007 Del. Super. LEXIS 209 (July 26, 2007); aff'd, Anker v. State, 2008 Del. Lexis 17 (January 9, 2008). (b) As to any second petition.... Not applicable (c) Did you appeal to the highest state court having jurisdiction the result of action taken on any petition, application or motion? Yes. (d) If you did not appeal...... Not applicable 12. Grounds for Habeas Corpus Relief: Ground 1. Whether Anker was denied his right to a fundamentally fair trial when the State was permitted to introduce evidence that prior to the trial, the "Lawyers' Fund" had paid off many of the unpaid mortgages that were the basis of the Theft charges against Anker. This evidence, which was totally irrelevant to any issue in the trial, clearly suggested to the jury that the legal profession, by paying off the unpaid mortgages, had already decided that Anker was guilty. Ground 2. Whether Anker was denied his right to a fundamentally fair trial when the State was permitted to introduce evidence that the defendant was a tax delinquent and evidence of other "bad acts" committed by the defendant. Ground 3. Whether Anker was denied his right to a fundamentally fair trial when the trial court ruled that the defendant would be barred from presenting expert psychiatric testimony that his "intent" to commit the alleged thefts was influenced by his relationship with his daughter, a co-defendant in the case. Ground 4. Whether the performance of Anker's trial counsel was "ineffective" under the 6th Amendment to the United States Constitution and Strickland v. Washington, 466 U.S. 668 (1984) in

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the defendant's trial in the following respects: Claim No. 1: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the investigation of the defendant by the Office of Disciplinary Counsel ("ODC") and actions taken by the Lawyers' Fund for Client Protection ("Lawyers' Fund") to pay off several of the unpaid mortgages that were the basis of the Theft charges against Anker. Claim No. 2: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the emotional and financial impact of defendant's alleged thefts on the alleged victims. Claim No. 3: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the defendant's character and "bad acts" allegedly committed by the defendant. Claim No. 4: Defense counsel was ineffective in failing to educate the jury concerning the distinction between an attorney's liability for a violation of attorney disciplinary rules of conduct, on the one hand, and liability for criminal conduct, on the other hand. Claim No. 5: Defense counsel was ineffective in failing to utilize at trial evidence that had been developed by William F. Glanz ("Glanz"), an investigator who had been retained to assist in the preparation of the defense. Claim No. 6: The defendant was deprived of his right to the effective assistance of counsel because defense counsel had failed to disclose to the defendant that during the course of his representation defense counsel was suffering from a major depressive disorder which caused him to virtually neglect and ignore his professional obligations to his clients, including Anker, and which eventually led to the filing of numerous disciplinary charges against defense counsel by ODC. See, In re Allan Wendelburg, Case No. 501, 2006 (Del. 2006). With respect to Claim 1 through Claim 5 above, it is further alleged that Anker was "prejudiced" under Strickland in that if a proper and timely objection had been made to the admission of the evidence referred to therein, there exists a reasonable probability that the outcome of Anker's trial would have been different. With respect to Claim 6, the major depressive disorder suffered by Anker's trial counsel at the time of Anker's trial resulted in a situation where Anker suffered prejudice per se under Strickland because his attorney had totally ceased to function as an attorney. See, United States v. Cronic, 466 U.S. 648 (1984)(prejudice is presumed where there is a constructive denial of counsel). 13. If any of the grounds listed in 12 were not previously presented in any court, state or federal, state briefly what grounds were not so presented and give your reasons for not presenting them. Not applicable. 14. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment now under attack? No. 15. Give the names and addresses of each attorney who represented you at each stage

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of the judgment attacked herein: (1) the following attorney represented the petitioner during all or part of the period from the time of his arrest through conviction and sentence in the trial court. Allan Wendelburg, Esquire 24 Stirrup Run Stirrup Farms Hockessin, DE (2) The following attorney represented petitioner on direct appeal Joseph M. Bernstein, Esquire 800 N. King Street - Suite 302 Wilmington, DE 19801 (3) The following attorney represented the petitioner in state court post-conviction proceedings and on appeal in post-conviction proceedings Joseph M. Bernstein, Esquire 800 N. King Street - Suite 302 Wilmington, DE 19801 16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes, sentenced on more than one count of Indictment. 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? No. WHEREFORE, petitioner prays that the Court grant petitioner all relief to which he may be entitled under this Petition /s/ Joseph M. Bernstein JOSEPH M. BERNSTEIN (#780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 Attorney for Petitioner

I declare under penalty of perjury that the foregoing is true and correct. /s/ Daniel J. Anker Daniel J. Anker, Petitioner Dated: ____________

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