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

ROBERT R. MEADES, Petitioner, v. THOMAS L. CARROLL, et al., Respondents.

) ) ) ) ) ) ) ) )

C.A.No. 07-223-***

ANSWER Pursuant to the Rules Gove rning § 2254 Actions, 28 U.S.C. foll. § 2254, Respondents state the following in response to the petition for writ of habeas corpus: Facts At approximately 2:00 p.m. on March 25, 1982, Robert Meades entered the Wilmington Savings Fund Society ("WSFS") in the Penn Mart Shopping Center in New Castle, Delaware. Meades went first to the customer service station, and then into the customer line. Meades then approached Gwendolyn Washington at her teller station. As Meades walked up to Washington's station, he threw a bag on the counter and directed Washington to "put your money in the bag." Meades then turned his back on Washington, pulled a dark stocking mask over his face, turned back to Washington and pointed a gun at her. Washington complied with Meades' demand, and placed approximately $1,300 into the bag, along with a dye pack. Meades then took his bag to the next teller station, that of Virginia Murray: slamming the bag onto the counter, Meades told Murray to put money into the bag and continued to brandish the gun. Murray and another teller, Dinah Mikulcik, put an

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additional amount of cash into the bag. Meades next took his bag to a third teller, Margaret Gocella, pointed the gun at her, again put the bag on the counter, leaned over the counter and stated "fill it up, bitch." Gocella, with the assistance of another teller, placed approximately $1,600 into the bag, along with another dye pack. Meades then returned to Mikulicik, again pointed the gun at her, and asked her if she had pulled the alarm. Meades finally left the bank and instructed everyone inside to "hit the floor" as he fled. Procedural History On May 11, 1982, the New Castle County grand jury indicted Robert Meades on three counts of robbery in the first degree (11 Del. C. § 832) and one count of conspiracy in the second degree (11 Del. C. § 512). (D.I. 1). 1 A jury trial commenced in Superior Court on September 20, 1982, at the conclusion of which Meades was convicted of all charges. (D.I. 12). On November 8, 1982, Superior Court sentenced Meades to a total of 32 years imprisonment (10 years for each count of first degree robbery and 2 years for conspiracy, with each sentence to be served consecutively). (D.I. 14). Meades appealed his conviction, and on May 31, 1983, the Delaware Supreme Court affirmed the convictions. Meades v. State, No. 365, 1982, (Del. May 31, 1983). In a separate criminal action in 1984, Meades was charged with murder in the first degree, conspiracy in the first degree, and possession of a deadly weapon during the commission of a felony. Meades eventually pled guilty to promoting prison contraband (Crim. Act. No. IN 84-060061), and he was sentenced to an additional 10 years incarceration. On July 31, 1987, Meades moved for a reduction of his sentence under Criminal Rule 35. (D.I. 22). On September 11, 1987, Superior Court denied Meades' motion.
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"D.I." references in this section are to the Superior Court's docket items (ID No. 8200289DI).

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(D.I. 23). Meades appealed this decision, and on April 22, 1988, the Delaware Supreme Court affirmed the judgment of Superior Court. Meades v. State, No. 334, 1987 (Del. Apr. 22, 1988). Meades next filed a petition for writ of habeas corpus in this Court. See Ex. A. In March 1989, the United States Magistrate Judge to whom the case had been referred recommended dismissal. Meades v. Young, Civ. A. No. 88-233-JLL (D. Del. March 14, 1989) (Ex. B). On April 5, 1989, the Court accepted and adopted the report and recommendation, dismissing the petition for writ of habeas corpus. Meades v. Young, Civ. A. No. 88-233. (D. Del. April 5, 1989). 2 On January 22, 1999, Meades filed a second motion for reduction of sentence (D.I. 29); that motion was denied on March 15, 1999. (D.I. 30). On January 30, 2002, Meades filed a third motion for reduction of sentence. (D.I. 31). On February 26, 2002, Superior Court denied this motion. (D.I. 32). Meades appealed, and on May 2, 2002, the Delaware Supreme Court affirmed the Superior Court's judgment. Meades v. State, No. 108, 2002 (Del. May 2, 2002). On September 17, 2004, Meades filed a fourth motion to reduce his sentence. (D.I. 40). Superior Court denied this motion on February 25, 2005. (D.I. 41). On July 5, 2005, Meades filed a petition for writ of mandamus in Superior Court. In that case, Meades sought to compel various Department of Correction officials to credit him with additional amounts of meritorious good time credits. 3 On May 8, 2006, Superior Court denied Meades' petition for writ of mandamus. Meades appealed the

2

Meades filed another petition for writ of habeas corpus on December 16, 1991 against John Ellingsworth, Warden of the Sussex Correctional Institution, and Charles Oberly, Attorney General of the State of Delaware. On May 5, 1993, this Court dismissed Meades' petition on the basis that his claims related to timely review of his federal detainer and should have been directed against the United States Parole Commission. Meades v. Ellingsworth, Civ. A. No. 91-687 (D. Del. May 5, 1993). 3 Meades v. Hosterman, Civ. Act. No. 05M-07-011.

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denial of his petition, and on August 23, 2006, the Delaware Supreme Court affirmed the judgment of the Superior Court. 4 Argument In papers dated April 19, 2007, and filed on April 26, 2007, Meades initiated the instant petition for writ of habeas corpus. (D.I. 1). Although Meades describes four "grounds" for relief in his petition, it is apparent that he has only one claim: that he has a state-created liberty interest to receive meritorious good time credits; that the Department of Correction ("DOC") has failed to credit him all credits owed to him for participation in rehabilitative programs; and that, therefore, he should already have been conditionally released from incarceration. Meades has failed to allege a cause of action cognizable in federal habeas. Meades' complaint fundamentally is one that alleges that a state agency has failed to follow state law. Such a claim does not raise a federal constitutional issue relevant to the fact or duration of Meades' confinement. In Preiser v. Rodriguez, 411 U.S. 475, 500 (1975), the United States Supreme Court held that when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser dealt with a scenario where an inmate was statutorily entitled to good time credits, and because of misconduct in prison, the inmate had those credits revoked by prison authorities. Id. at 477-78. A challenge to a disciplinary hearing that resulted in the loss of good-time credit is properly asserted as a claim for habeas corpus relief because the claim impacts the length of a prisoner's sentence. See, e.g., Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002).
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Meades v. Hosterman, No. 239, 2006 (Del. Aug. 23, 2006).

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Meades, however, has not alleged a revocation of earned credits, but rather a failure by correctional authorities to attribute him credits according to his interpretation of state law. Fundamentally, Meades' claim is not a federal issue. The Constitution does not guarantee good-time credit, but a state may statutorily create a liberty interest in good-time credit, thus invoking the Fourteenth Amendment, and thus the prisoner cannot be deprived of earned good-time credit without procedural due process. Wolff v. McDonnell, 418 U.S. 539, 94 (1974). State law, however, determines whether "good time credits constitute a protected liberty interest." Sup't, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 105 (1985). This Court has held that the Delaware parole statute does not create a protected liberty interest, such that the denial of parole does not give rise to a cause of action in federal habeas. See Eskridge v. Casson, 471 F.Supp. 98, 101 (D. Del. 1979). Even more similar to the present case, this Court has held that Delaware law does not create a liberty interest in the right to participate in work or education programs while incarcerated. See Nicholson v. Carroll, 390 F.Supp. 2d 429, 435 (D. Del. 2005). Meades' contention that he should have been credited with more meritorious good time credits for participation in rehabilitative programs while incarcerated likewise does not raise a federal claim. See Brown v. Mahoney, 71 F. App'x 722, 727 (9th Cir. 2003) (liberty interest in good time credits arises only when rules in force provide for granting of good time credits). To the extent that Meades' claim can be construed to implicate a due process liberty interest that is cognizable in federal habeas, that claim is exhausted. See Smith v. Digmon, 434 U.S. 332 (1978). Meades presented his complaint that he had not been awarded sufficient meritorious good time credits in a petition for writ of mandamus to

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Superior Court. On May 8, 2006, after a hearing on the matter, Superior Court concluded that Meades had not established his right to be credited with additional good time. The Delaware Supreme Court affirmed the judgment of the Superior Court that Meades had failed to establish a clear legal right to additional good time credits. The Delaware Supreme Court's decision that Meades had failed to establish that he was entitled to additional good time credits amounted to a reasonable application of clearly established federal law for purposes of section 2254(d)(1). The sentences that Meades is presently serving were imposed before the enactment of the Truth- in-Sentencing Act in 1989 ("TIS"). Under pre- TIS law (11 Del. C. § 4372 (Repl. 1979)), 5 an inmate automatically received a reduction of his sentence for good behavior at the following rate: 5 days per month in his first year of incarceration; 7 days per month in his second year of incarceration; 9 days per month in his third year of incarceration; and 10 days per month in every subsequent year of incarceration. This good time credit to reduce the incarcerated portion of one's sentence was given on all non- mandatory sentences. Pre- TIS sentenced inmates could also earn additional meritorious good time credits for participation in prison work programs and for exceptional achievement in approved rehabilitative programs. See 11 Del. C. § 4374 (Repl. 1979). Section 4374 provided that regardless of the number of programs in which an inmate participates, he could not earn more than 5 days per month in meritorious good time; the 5 days each month are in addition to the statutory good time earned under section 4372.

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Sections 4372 and 4374 were redesignated in 1980 as section 4382 and 4384, respectively. 62 Del. Laws ch. 317.

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In Meades' case, DOC credited him with a total of 4932 days of statutory good time. Meades has not disputed that calculation. Furthermore, DOC credited Meades with a total of 322 days of meritorious good time. (See D.I. 1 at 8 (indicating DOC has been awarding 2 days of meritorious good time credits each month)). DOC acknowledged that it did not credit with Meades with 5 days of meritorious good time each month of his incarceration, but the decision to award fewer than 5 days of meritorious good time was based on the number of days and hours that Meades actually worked or participated in programs. In order for an inmate to earn the maximum 5 days per month of meritorious good time, the inmate would have to work more than 5 hours a day in at least 21 days of the month. See Affidavit of Cindy Wright. The Due Process Clause protects the state created right to meritorious good time if the program is approved and otherwise satisfies the regulations. The Delaware Supreme Court's decision is not unreasonable under 2254(d)(1): the court determined that Meades had not satisfied the criteria for receiving 5 days (in contrast to 2 days). That decision by the Delaware Supreme Court is a reasonable application of clearly established federal law. Meades cannot demonstrate that the Delaware Supreme Court's decision amounted to an unreasonable application of clearly established federal law. Under 28 U.S.C. § 2254(d), a federal court can only issue a writ of habeas corpus if the state court decision being challenged was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "Contrary to ... clearly established federal law" means "diametrically different," opposite in character or nature," or "mutually opposed." Williams v. Taylor, 529 U.S. 362, 405 (2000). "Moreover, the state court judgment must

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not merely be contrary to law as articulated by any federal court. It must contradict `clearly established' decisions of the United States Supreme Court alone." Fischetti v. Johnson, 384 F.3d 140, 147 (3d Cir. 2004). "An unreasonable application of Supreme Court precedent occurs when a state court applies the correct rule to specific facts in an objectively unreasonable way." Id. at 148. "Touchstone precedents are not to be examined by looking to broad pronouncements or generative principles in [Supreme Court precedent]." Id. Meades simply cannot demonstrate that the Delaware Supreme Court's decision affirming the DOC's calculation of Meades' meritorious good time credits was contrary to clearly established federal law. Meades' petition is also subject to dismissal as being untimely under 28 U.S.C. § 2244(d). Under section 2244(d), a one year limitation period applies "to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." In the context of state parole decisions and the forfeiture of good time credits, the limitations period begins to run on "the date the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). See, e.g, Kimbrell v. Cockrell, 311 F.3d 361, 363-64 (5th Cir. 2002); Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003) ("factual predicate" for claim not determined by asking when inmate exhausted state remedies, but rather by inquiring into when inmate could have learned of the factual basis of his claim through the exercise of due diligence); Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003) (when inmate could have discovered loss of good time credits by operation of law, date of parole revocation served as triggering date for limitations period).

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The Superior Court sentenced Meades on November 8, 1982. As early as 1986, Meades contends that he was not being credited with all meritorious good time due to him. (D.I. 1 at 9). Because Meades' conviction was final before the passage of

AEDPA, the one-year limitations period on the filing of a petition for writ of habeas corpus by a state prisoner became effective on April 24, 1996; the limitations period began to run against Meades as of the date of enactment of AEDPA. See, e.g., Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Sena v. New Mexico Corrections, 66 F. App'x 174, 176-77 (10th Cir. 2003); Algenstedt v. Champion, 42 F. App'x 129, 131 (10th Cir. 2002) (inmate who received monthly accounting of good time throughout incarceration should have been aware of calculation well before April 24, 1996); Murphy v. Espinoza, 401 F.Supp.2d 1048, 1052 n.5 (C. D. Cal. 2005). Thus, the one-year period for the filing of any federal habeas petition by Meades expired on April 23, 1997. Meades' petition for writ of mandamus could not toll a habeas limitations period that had already expired. Likewise, Meades could not restart a limitations period that had already expired. See, e.g., Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) ("A state application filed after expiration of the limitations period does not relate back so as to toll idle periods preceding the filing of the federal petition."). A pro se prisoner's habeas petition is deemed filed on the date he delivers it to prison officials for mailing to the district court; Meades' petition is dated April 19, 2007. (D.I. 1). In the absence of proof respecting the date of delivery, that date is the presumptive date the petition was delivered to prison officials for mailing. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003); Woods v. Kearney, 215

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F.Supp.2d 458, 460 (D. Del. 2002). Meades' petition is thus untimely under section 2244(d). See Woods, 215 F.Supp.2d at 460. Meades cannot save his untimely petition by invoking the doctrine of equitable tolling, as that doctrine only applies when: "(1) the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999). Meades has not articulated any basis under which the doctrine would arguably be appropriate, nor do Meades' own submissions suggest that such a doctrine has any application in the present case. On the contrary, Meades' pleadings suggest that he has disagreed with DOC's calculation of his meritorious good time from "1986 to 2004." (D.I. 1 at 9). Finally, Meades' petition must be dismissed pursuant to 28 U.S.C. § 2244(b) which precludes the filing of successive petitions without authorization from the court of appeals. The United States Supreme Court has excluded from section 2244 claims that were not ripe for review at the time of filing of the first habeas petition. See Panetti v. Quarterman, __U.S. __, 2007 WL 1836653, at *12 (June 28, 2007). As explained above in relation to the timeliness of Meades' good time claim, he was aware of this issue as early as 1986. Meades' good time claim was, therefore, ripe in 1989 when he filed his first petition for writ of habeas corpus. The Third Circuit addressed a similar factual scenario in Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005). A subsequent habeas petition that challenges the administration of a sentence is not a second or successive petition within the meaning of § 2244 if the claim had not arisen or could not have been raised at the time of the prior

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petition. Id. at 817. In Benchoff, the inmate had already received denials of parole at the time he filed his first petition. Id. at 819. The Third Circuit expressly held that an inmate is not excused from raising administration of sentence claims from a petition that attacks the legality of his conviction. Id. Furthermore, simply because an administration of sentence claim may not have been exhausted when the prisoner files his first habeas petition, the prisoner may not withhold the claim to provide himself with a second habeas petition. Id., citing Rose v. Lundy, 455 U.S. 509, 521 (1982). See In re Minarik, 166 F.3d 591, 604-05 (3d Cir. 1999) (unexhausted nature of claim does not excuse failure to present claim in first petition). Several other courts of appeal have also held to be successive petitions administration of sentence claims where the inmate was aware of the factual predicate of those claims at the time of his initial habeas. See Woodberry v. McKune, 130 F. App'x 246, 246 (10th Cir. 2005); Crone v. Cockrell, 324 F.3d 833, 837 (5th Cir. 2003). Cf., In re Cain, 137 F.3d 234, 236-37 (5th Cir. 1998); Hill v. State, 297 F.3d 895, 898-99 (9th Cir. 2002) (not a successive petition when inmate could not have been aware of the administration of sentence claim at the time of initial petition). Dismissal of Meades' claim here as a successive petition thus depends on a finding that Meades was aware of the rate at which DOC awarded him meritorious good time credits before he filed his first habeas petition in 1989. Based on Meades' pleadings that the alleged improper calculation of meritorious good time started in 1986, and the fact that inmates can and do routinely request a copy of their offender status sheet that shows their short-term release date and amount of good time credits earned, Meades could have brought this

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administration of sentence claim in his first habeas petition. The instant petition should thus be dismissed as a successive petition under § 2244(b). A hearing took place regarding Meades' state petition for writ of mandamus on May 8, 2006. The hearing was recorded, but the proceeding has not been transcribed. In the event that this Court requires a transcript of the mandamus hearing, Respondents anticipate that such transcript could be produced within 90 days from the date of the Court's order. Wherefore, Respondents request that Meades' petition for writ of habeas corpus be dismissed without further proceedings. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Gregory E. Smith_____________ Gregory E. Smith, I.D. No. 3869 Deputy Attorney General 820 North French Street, 7th Floor Carvel State Building Wilmington, Delaware 19801 (302) 577-8398

Dated: July 6, 2007

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CERTIFICATION OF SERVICE The undersigned certifies that on July 6, 2007, he electronically filed the attached Answer with the Clerk of Court using CM/ECF. The undersigned further certifies that on July 9, 2007 that he mailed by United States Postal Service the document(s) to the following non-registered participant:

Robert R. Meades SBI No. 00124648 Delaware Correctiona l Center 1181 Paddock Road Smyrna, Delaware 19977

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/_Gregory E. Smith__________ Gregory E. Smith, ID # 3869 Deputy Attorney General 820 North French Street, 7th Floor Carvel State Building Wilmington, Delaware 19801 (302) 577-8398