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 GRAYLIN HALL, Petitioner, v. THOMAS L. CARROLL, Warden and JOSEPH R. BIDEN III, Attorney General for the State of Delaware Respondents.1 ) ) ) ) ) ) ) ) ) ) ) ANSWER Pursuant to Rule 5 of the Rules Governing Section 2254 Actions, 28 U.S.C. § 2254, respondents state the following in response to the petition for a writ of habeas corpus: On March 13, 2000, Petitioner, Graylin L. Hall, was indicted for first degree robbery, first degree assault, second degree burglary, possession of burglar's tools, possession of drug paraphernalia, and possession of marijuana. See Del. Super. Ct. Crim. Dkt. Items 2, 5 in case no. 0001001994A ("Superior Court Docket Item __"). The Superior Court granted Hall's motion to sever the possession of drug paraphernalia and possession of marijuana charges. Superior Court Docket Item 22. The matter then proceeded to a trial before a Superior Court jury on July 25, 2000. Superior Court Docket Item 25. The jury acquitted Hall of first degree robbery, but convicted him on the remaining charges. Superior Court Docket Item 25. On August 3, 2000, the State moved See Fed.R.Civ.P. 25(d)(1). Attorney General Joseph R. Biden, III, assumed office on January 2, 2007, replacing former Attorney General Carl C. Danberg, an original party to this case. 1
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to declare Hall an habitual offender under Del. Code Ann. Tit. 11, § 4214(b). Superior Court Docket Item 29. The Superior Court granted the State's motion and, on October 27, 2000, sentenced Hall to life imprisonment for the burglary conviction, three years imprisonment for second degree assault, and three years imprisonment for possession of burglar's tools. Superior Court Docket Item 29. On December 26, 2001, the Delaware Supreme Court affirmed Hall's conviction and sentence on direct appeal. See Hall v. State, 788 A.2d 118 (Del. 2001). On November 19, 2004, Hall filed a motion for postconviction relief, which the Superior Court denied on May 3, 2005. Superior Court Docket Items 53, 64. On Hall's appeal of that decision, the Delaware Supreme Court affirmed the Superior Court's decision and issued its mandate on January 3, 2006. Hall v. State, 2005 Del. LEXIS 508 (Del. Dec. 13, 2005). Hall then filed a motion for correction of his sentence on January 25, 2006; Superior Court denied that motion on February 3, 2006. Hall then moved to alter or amend judgment or, in the alternative, for reargument on February 15, 2006; Superior Court denied that motion on February 24, 2006. Superior Court Docket Items 72, 73, 74, 75. Hall then appealed the Superior Court's denial of his motions; the Supreme Court affirmed the denials. Hall v. State, 2006 Del. LEXIS 568 (Del. Oct. 27, 2006). Discussion In his petition for federal habeas relief, Hall raises two claims. First, he

complains that the trial judge incorrectly instructed the jury on the element of physical injury for second degree burglary. Second, he claims that the State failed to present sufficient evidence to allow the Superior Court to declare him an habitual offender. Both

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claims were presented to the Delaware Supreme Court, thereby exhausting Hall's state court remedies.2 Despite having exhausted state remedies, Hall is not entitled to federal habeas relief because the claims presented in his petition are untimely under 28 U.S.C. § 2244(d). Hall's petition was filed on December 27, 2006,3 subjecting it to the

Antiterrorism and Effective Death Penalty Act ("AEDPA") signed into law by the President on April 24, 1996. See generally Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding the AEDPA applies to "such cases as were filed after the statute's enactment."); Lawrie v. Snyder, 9 F. Supp.2d 428, 433 n.1 (D. Del. 1998); Dawson v. Snyder, 988 F. Supp. 783, 802-03 (D. Del. 1997). By the terms of § 2244(d)(1), as amended by

AEDPA, a federal habeas petitioner must file the petition within one year of the date on which the state court judgment became final upon the conclusion of direct review. See 28 U.S.C. § 2244(d)(1)(A); Calderon v. Ashmus, 523 U.S. 740, 742-43 (1998).4 Hall's conviction became final on March 26, 2002 when the period in which Hall could have filed a petition for a writ of certiorari with the United States Supreme Court expired. He, therefore, had until March 26, 2003 to file petition for federal habeas relief without running afoul of the one year limitations period of § 2244(d)(1). See Satterfield v. Hall presented his claim about the burglary jury instructions to the Delaware Supreme Court in his appeal from the denial of his motions to correct an illegal sentence or, alternatively, for reargument, filed on February 3 and 15, 2006. See Hall v. State, 2006 Del. LEXIS 568, *3 (Oct. 26, 2006). Hall also presented his argument about the sufficiency of the evidence supporting his declaration as an habitual offender to the Delaware Supreme Court. See Hall v. State, 778 A.2d 118, 125-29 (Del. 2001). 3 The petition is dated December 26, 2006. D.I. 1, at 16. That is the presumptive date on which Hall gave the petition to prison officials for mailing. In turn, that date is the date the petition is deemed filed. See, e.g., Woods v. Kearney, 215 F. Supp.2d 458, 460 (D. Del. 2002). 4 Hall does not allege, nor can respondents discern, any reason to believe that the terms of 28 U.S.C. § 2244(d)(1)(B)-(D) are applicable. 3
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Johnson, 434 F.3d 185, 191 (3d Cir. 2006); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Hall did not file his petition until December 26, 2006, well beyond the March 26, 2003 deadline. Accordingly, his petition is untimely and must be dismissed unless the time period can be statutorily or equitably tolled. See Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999). In turn, the tolling mechanism of § 2244(d)(1) does not save Hall's petition from the running of the limitations period. See 28 U.S.C. § 2244(d)(2). When applicable, § 2244(d)(2) tolls the one-year period of § 2244(d)(1) during the time that a properly filed state postconviction action is pending in the state courts. Hall, however, did not initiate any postconviction litigation until November 11, 2004, well after the limitations period had expired. Moreover, postconviction litigation commenced after the limitations period has expired does not reset or revive the limitations period. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Woods, 215 F. Supp.2d at 462 (citing cases); Spencer v. Snyder, 2002 U.S. Dist. LEXIS 14754, *5-6 (D. Del. July 24, 2002) (citing cases). Accordingly, Hall's petition can not be saved by the application of the statutory tolling provisions. Of course, this Court has repeatedly noted that the limitations period may be subject to equitable tolling. See, e.g., Thomas v. Snyder, 2001 U.S. Dist. LEXIS 19969, at *10-11 (D. Del. Nov. 28, 2001) (describing rule). Equitable tolling, however, applies only where the petitioner "has in some extraordinary way been prevented from asserting his or her rights." Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Here, Hall has failed to allege or demonstrate any extraordinary circumstances that prevented him from filing his petition with the Court in a timely

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manner. Hall's claim challenging the sufficiency of the evidence supporting the Superior Court's declaring him an habitual offender was one of two issues raised in Hall's direct appeal. The facts underlying Hall's argument that the jury was improperly instructed on the burglary charge were also available to him during the limitations period. Accordingly, he cannot credibly allege that the legal argument or supporting facts were unavailable to him during the limitations period. See, e.g., Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Moreover, equitable tolling requires diligence on the part of the prisoner. Miller, 145 F.3d at 618-19. In this instance, Hall waited four years before filing his petition, despite his access to the factual underpinnings of his argument. Such a delay is hardly a sign of diligence on Hall's part. See LaCava v. Kyler, 398 F.3d 271, 278-79 (3d Cir. 2005). Accordingly, his claim is untimely under § 2244(d), and there is no basis upon which any relevant time should be excluded by virtue of the equitable tolling doctrine. Conclusion Based upon the Superior Court docket sheet, it appears that transcripts of Hall's trial and sentencing have been prepared. In the event that the Court directs the production of any transcript, respondents cannot state with specificity when such transcript would be available. However, respondents reasonably anticipate that such production would take 90 days from the issuance of any such order by the Court.

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For the foregoing reasons, the petition for writ of habeas corpus should be dismissed without further proceedings. /s/Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836 [email protected] DATE: March 30, 2007

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CERTIFICATE OF SERVICE I hereby certify that on March 30, 2007, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on March 30, 2007, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Graylin Hall No. 00159336 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ James T. Wakley Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4612 Date: March 30, 2007

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