Opinion
Civil Action No. 01-278-GMS
December 10, 2003
MEMORANDUM AND ORDER
Following a jury trial in the Delaware Superior Court, petitioner Dammeyin A. Johnson was convicted of second degree unlawful sexual intercourse, second degree unlawful sexual contact, unlawful imprisonment, assault., and two counts of an aggravated act of intimidation. He is presently serving an eighteen year sentence at the Delaware Correctional Center in Smyrna, Delaware. Johnson has filed with the court the current petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a request for the appointment of counsel. (D.I.s 1, 4.) For the reasons explained below, the court will deny his petition and dismiss the appointment of counsel request as moot.
I. PROCEDURAL AND FACTUAL BACKGROUND
On September 4, 1997, Andrea Collins and a friend took Johnson's car without his consent and drove to the Christiana Mall, in Christiana, Delaware. When Collins returned without the car, Johnson chased her, grabbed her by the hair, and forced her to walk throughout Wilmington to look for his car Eventually, Collins and Johnson ended up in his bedroom at his mother's house, where he slapped her, choked her, and forced her to engage in sexual intercourse against her will.
The Delaware Supreme Court used this pseudonym pursuant to Del. Supr. Ct R. 7(d).
These facts are recited as set forth in the Delaware Supreme Court decision, Johnson v. State, 753 A.2d 438 (Del. 2000).
Once Johnson fell asleep, Collins escaped and anonymously called the Wilmington police to report the incident. She showered, and did not receive medical attention. Later that day, Collins was arrested on an outstanding Family Court warrant. She then advised the police about her rape. However, against the advice of the police, she refused to have a sexual assault medical examination performed at the hospital. On October 27, 1997, a grand jury in the Delaware Superior Court charged Johnson with first degree unlawful sexual intercourse, two counts of first degree kidnapping, third degree unlawful sexual penetration, third degree assault, two counts of an aggravated act of intimidation, theft and third degree assault, (D J. 12, Appendix to App/s Op. Br. at A-5 to A-8.)
At trial, Johnson denied forcing Collins to accompany him or to have sexual intercourse with him. However, he did admit to striking Collins after he learned about the charges she lodged against him. During the trial, Johnson asked for a missing evidence jury instruction regarding the lack of medical evidence (" Deberry instruction"). Although the Superior Court denied the Deberry instruction, it did permit Johnson to present to the jury evidence of Collins' refusal to have a medical examination and to argue in summation that a medical examination may have had exculpatory value for the defense. See Johnson v. State, 753 A.2d 438, 442 (Del. 2000).
The jury acquitted Johnson of first degree unlawful sexual intercourse and first degree kidnapping, but found him guilty of the lesser included offenses of second degree unlawful sexual intercourse and second degree unlawful imprisonment. Before sentencing, Johnson filed a motion for a new trial, alleging: (1) the weight of the evidence did not support the verdict; and (2) the conviction for unlawful intercourse in the second degree was inconsistent with the jury verdict of not guilty for kidnapping in the first degree. (DJ. 12 at A-9-A-13.) The Superior Court denied the motion for a new trial. Johnson was sentenced to a total of eighteen years at Level V incarceration, suspended after thirteen years for one year at Level IV supervision, followed by two years of Level III supervision, and then two years at Level II.
Johnson appealed his convictions, alleging: 1) the trial court erred in refusing his request for a missing evidence instruction under Deberry, and 2) the trial court erred in failing to grant his motion for a new trial on the charge of unlawful sexual intercourse in the second degree. (DJ. 12, Appellant's Op. Br. in Johnson v. State, No. 41, 1999.) The Delaware Supreme Court affirmed Johnson's conviction. Johnson v. Stale, 753 A.2d 438 (Del. 2000). Johnson did not apply for state post-conviction relief.
II. GOVERNING LEGAL PRINCIPLES
A. Standard of Review
A federal district court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 ILS.C. § 2254(a). When the petitioner is in state custody pursuant to a state court judgment, and the federal claims asserted in the habeas case were previously adjudicated in state court on the merits, then a federal court cannot grant a writ of habeas corpus unless it finds that the state court decision either: (1) was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d), According to Third Circuit precedent, a federal habeas claim was adjudicated on the merits in state court only if it "is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2000).
If the state court did adjudicate the federal habeas claim on the merits, then the federal court must review the claim pursuant to a two-step analysis under § 2254(d)(J). Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 880 (3d Cir. 1999) (en banc); see also Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000), cert. denied, 532 U.S. 980 (2001). First, the federal court must identify the applicable United States Supreme Court precedent and then determine whether the state court decision is contrary to that precedent. Matteo, 171 F.3d at 888. The petitioner cannot merely demonstrate "that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome," Matteo, 171. F.3d at 888.
If the federal court concludes that the state court adjudication is not contrary to the Supreme Court precedent, the court must then determine whether the state court judgment rests upon an objectively unreasonable application of clearly established federal law, as determined by the United States Supreme Court. Id at 880. This analysis involves determining "whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted." Id, at 891.
When applying the standard under § 2254(d)(1), a federal court must presume that a state court's determinations of fact are correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). A petitioner can only rebut this presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Exhaustion and Procedural Default
The federal habeas statute states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant,28 U.S.C. § 2254(b)(1). Before seeking habeas relief from a federal court, a state petitioner must first exhaust remedies available in the state courts. The state prisoner must give "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'SulIivan v. Boerckel, 526 U.S. 838, 844-45 (1999). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
To satisfy the exhaustion requirement, a petitioner must demonstrate that the claim was fairly presented to the state's highest court, either on direct appeal or in a post-conviction proceeding. See Lambert v. Blackwell 134 F.3d 506, 513 (3d Cir. 1997) (citations omitted); Coverdale v. Snyder, 2000 WL 1897290, at *2 (D, Del. Dec. 22, 2000). However, if the petitioner raised the issue on direct appeal, then the petitioner does not need to raise the same issue again in a state post-conviction proceeding. Lambert, 134 F.3d at 513; Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992) (citations omitted).
A petitioner fairly presents a federal claim to the state's highest court for purposes of exhaustion by asserting a legal theory and facts that are substantially equivalent to those contained in the federal habeas petition. Covcrdale, 2000 WL 1897290, at *2; Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996), The petitioner does not need to identify a specific constitutional provision in his state court brief, provided that "the substance of the . . . state claim is virtually indistinguishable from the [constitutional] allegation raised in federal court." Santana v. Fenton, 685 F-2d 71, 74 (3d Cir. 1982) (quoting Biscaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir. 1980). The exhaustion requirement of § 2254(b) is satisfied if the petitioner presented his federal habeas claims to the state court, even if the state court did not discuss or consider the claims. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). "The exhaustion requirement of 28 U.S.C. § 2254(b)-(c) has been judicially interpreted to mean that claims must have been presented to the state courts; they need not have been considered or discussed by those courts." Id. (citing Picard v. Connor, 404 U.S. 270, 275 (1971)); United Stales ex rel. Geisler v. Walters, 510 F-2d 887, 892 (3d Cir. 1975).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules preclude a petitioner from seeking further relief in state courts. Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir 2001); see league v. Lane, 489 U.S. 288, 297-98 (1989). Similarly, if a state court refused to consider a petitioner's claims for failing to comply with an independent and adequate state procedural rule, the claims are deemed exhausted. Harris v. Reed, 489 U.S. 255, 263 (1989); Werts, 228 F.3d at 192.
Although the failure to exhaust state remedies may be excused, unexhausted claims are still procedurally defaulted. Lines, 208 F.3d at 160. Federal courts may not consider the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting there from, or that a fundamental miscarriage of justice will result if the court does not review the claim. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman v. Thompson, 501 U.S. 722, 750-51 (1999); Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992), Because the cause and prejudice exception to the procedural default doctrine is two-pronged, the petitioner must allege cause for the procedural default before the federal court need determine whether the petitioner has demonstrated actual prejudice. See Smith v. Murray, 477 U.S. 527, 533 (1986).
To demonstrate cause for a procedural default, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner can demonstrate actual prejudice by showing "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank 266 F.3d 218, 224 (3d Cir 2001), In order to demonstrate a miscarriage of justice, the petitioner must show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). A petitioner establishes actual innocence by proving that no reasonable juror would have voted to find him guilty beyond a reasonable doubt. Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).
III. DISCUSSION
A. Claim One: Trial court erred in failing to give a Dcberry jury instruction
Johnson's first claim for relief is that the Delaware Superior Court committed plain error by denying his request for a missing evidence instruction under Deberry v. State, 457 A.2d 744 (Del 1983). (D.I. 1.) The State correctly acknowledges that Johnson exhausted this claim by presenting it on direct appeal to the Delaware Supreme Court, (D.L 10 at 3.) The State also asserts that Johnson is not entitled to relief under 28 U.S.C. § 2254(d) because the state courts reasonably applied the relevant constitutional standards in denying the instruction and upholding such denial. ( Id. at 4-6.)
Although the State provides a well-reasoned argument for denying relief under § 2254(d)(1), the court concludes that it need not reach this analysis. Johnson has not presented the court with a cognizable claim, nor did he fairly present a federal constitutional claim to the Delaware Supreme Court. The court disagrees with the State's summarization of
Johnson's claim as asserting a due process violation because Johnson neither specifically nor implicitly alleges a federal due process violation. (DX 10 at 3.) At most, he alleges a violation of the Delaware due process standard and Delaware precedent as contained in Deberry v. State, 457 F.2d 744 (Del. 1983) and its progeny. A quick review of the relevant Delaware caselaw and the record at hand illustrates that Johnson's argument regarding the Delaware Superior Court's error in denying his request for a Deberry instruction is entirely premised on Delaware law.
In Deberry v. State, 457 A.2d 744 (Del. 1983), the Delaware Supreme Court held that the State, including its police agencies, is obligated under the Delaware constitution's due process standards to preserve evidence material to a defendant's guilt or innocence. See Lolly, 611 A.2d 956, 959-60 (Del 1992). The Delaware Supreme Court later extended the Deberry holding to claims that the police had failed to gather the possibly exculpatory evidence in the first place. Id, at 960. Basically, once the state court establishes that the "State must bear the responsibility for the loss of [or failure to gather] material evidence, an appropriate jury instruction is required as a matter of due process under the Delaware constitution." Lolly, 611 A.2d at 961. A missing evidence instruction requires "the jury to infer that, had the evidence been preserved [or procured], it would have been exculpatory to the defendant" Lunnon v. State, 710 F.2d 197, 199 (Del. 1998).
At Johnson's trial, the Delaware Superior Court denied his request for a Deberry instruction because it determined that the government did not play a role in Collins' failure to receive a medical examination, Johnson, 753 A.2d at 441. On direct appeal, Johnson claimed that the Superior Court erred in denying his requested Deberry instruction, which is essentially the same claim he raises here. The Delaware Supreme Court carefully reviewed the relevant state precedent, and then specifically affirmed the Superior Court's decision because "the record in this case reflects that no government agent played a role in Collins' failure to seek medical attention." Id. at 442.
A federal court may consider a habeas corpus petition filed by a state petitioner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A claim alleging a mere error of state law does not constitute a violation of due process, and thus, is not cognizable on federal habeas review. See Engle v. Isaac, 456 U.S. 107, 121 (1982) (citing Gryger v. Burke, 334 U.S. 728, 731 (1948)); Pulley v. Harris, 465 U.S. 37, 41 (1984); Riley v. Harris, 277 F.3d 261., 310 n. 8 (3d Cir. 2001). For example, the "fact that [a jury] instruction was allegedly incorrect under state law is not a basis for habeas relief." See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Even if a petitioner couches a state law claim in terms of federal due process or equal protection, a federal court cannot grant federal habeas relief. Dorn v. Kearney, 1997 WL 811565, at *2 (D, Del. Dec. 10, 1997). Moreover, alleging that a state court committed plain error in rendering a decision does not allege a violation of due process. See Bright v. Snyder, 218 RSupp.2d 573, 579 (D.Del. 2002).
Johnson's petition asserts that "the trial court committed plain error by denying defendant's request for a Deberry instruction." (D.I. 1 at 5.) He contends that "the State failed to preserve potentially exculpatory evidence for [sic] which could have been secured had the victim been examined. Such evidence, if secured, could [have] possibly exonerated the defendant but, at best, warranted a Deberry instruction in the absence of same." ( Id) Clearly, these statements only allege a violation of state law, and they are not even couched in terms of federal due process. The Delaware Supreme Court has repeatedly stated that the Deberry standard differs significantly from the federal missing evidence standard as set forth, in Youngblood v. Arizona, 488 U.S. 51 (1988), See Lolly, 611 A.2d at 959-60. Thus, it is clear that the petitioner's mere recitation of the Deberry standard does not implicate the federal due process clause. Moreover, Johnson's allegation that the Superior Court committed plain error by denying the instruction does not implicate the federal due process clause. Bright v. Snyder, 218 F. Supp.2d 573, 579 (D.Del. 2002). The court concludes that Johnson has only asserted a violation of state law, thereby failing to present this court with a claim cognizable on federal habeas review.
Under Youngblood, a criminal defendant can only succeed on a denial of due process claim based upon the police's failure to preserve potentially useful evidence by showing bad faith on the part of police. In contrast, under Deberry, the "conduct of the state's agent is a relevant consideration, but is not determinative." Lolly, 611 A.2d at 959-60.
Even if the court were to interpret Johnson's federal habeas claim as asserting a federal due process violation, Johnson failed to exhaust state remedies because he did not present a federal constitutional claim to the Delaware Supreme Court. The court has reviewed Johnson's brief submitted to the Delaware Supreme Court on appeal The brief does not contain one citation to any federal constitutional provision, statute or case interpreting any federal constitutional provision. Rather, Johnson's argument on direct appeal relied solely on cases from the Delaware courts interpreting Delaware law. Once again, there is no reference to the federal missing evidence standard enunciated in Youngblood, Further, the State's answering brief did not interpret the claim as asserting a federal constitutional issue, nor did the Delaware Supreme Court analyze it as such. At most, Johnson's Deberry claim in state court asserted a violation of the Delaware Constitution, as illustrated by his contention that "a Lolly missing evidence instruction . . . is required as a matter of due process under the Delaware Constitution when the court determines from the totality of the circumstances that the State must bear responsibility for the loss of evidence," (D.L 12, Appellant's Op. Br. at 8, 9.) A violation of state constitutional standards does not automatically constitute a violation of federal constitutional standards. See Twyman v. Carr, 1997 WL 309456, at *3 (D. Del. Apr 7, 1997). For these reasons, the court concludes that Johnson did not fairly present a federal due process claim to the Delaware Supreme Court.
Because Johnson failed to present a. federal claim to the Delaware Supreme Court, and Delaware Superior Court Criminal Rule 61(i)(3) precludes him from seeking further relief in the state courts, this claim is procedurally defaulted. See Super-Ct. Crim. R. 61(i)(3); Mundy v. Snyder, 2002 WL 1285547, at *4 (D. Del. June 10, 2002) (under Rule 61(i)(3), failure to raise an issue on direct appeal renders a claim procedurally defaulted absent a showing of cause and prejudice). Consequently, federal habeas review of this claim is unavailable absent a showing of cause for the default and prejudice resulting therefrom, or that a miscarriage of justice will result if the court fails to review the claim. Mundy, 2002 WL 1285547, at *4; Coleman, 501 U.S. at 750,
Johnson does not allege, nor does the record reveal, any reason for his failure to present this claim as a federal due process violation to the Delaware Supreme Court. Because Johnson does not allege cause, the court does not need to reach the question of prejudice. See Smith v. Murray, 477 U.S. 527, 533 (1986). Moreover, Johnson, has not alleged that he is actually innocent. Thus, he has not alleged that a fundamental miscarriage of justice will result from failure to review this claim. As a result, federal habeas review of claim one is unavailable.
In conclusion, not only did Johnson fail to assert a federal constitutional claim to the state supreme court, but also he failed to allege a federal constitutional claim to this court As such, because Johnson has only asserted a violation of state law, he has failed to assert a claim cognizable on federal habeas review. Accordingly, the court will dismiss this claim.
B. Claim Two: Inconsistent verdicts and insufficient evidence to support conviction for unlawful sexual intercourse in the second degree
Johnson's second claim asserts that his conviction for second degree unlawful sexual intercourse was not supported by the record, (D I. 1 at 5.) In support of this claim, he states that he "was exonerated from the lead charges of kidnap/rape in the first degree," ( Id) These assertions mirror his claim on direct appeal that his conviction was against the weight of the evidence and that his conviction for unlawful sexual intercourse in the second degree was inconsistent with his acquittal for kidnapping and rape in the first degree. See Johnson, 753 A.2d at 442.
The State asserts that Johnson has exhausted state remedies, The State contends, however, that Johnson is not entitled to relief under § 2254(d)(1) because the Delaware Supreme Court's adjudication of this claim was neither contrary to, nor an unreasonable application, of well-settled United States Supreme Court precedent. (D.I. 10 at 6-9.)
While the court agrees that the insufficient evidence claim asserted in Johnson's habeas petition is the same claim he presented to the Delaware Supreme Court, the court is again confronted with the question of whether Johnson has actually alleged a federal constitutional claim. A broad reading of this claim suggests that Johnson attempts to allege violations of both state and federal law. See Jackson v. Virginia, 443 U.S. 307, 321 (1979) (a petitioner who asserts there is insufficient evidence to support his conviction has "stated a federal constitutional claim . . . cognizable in a federal habeas proceeding").
As previously explained, to the extent that this claim rests on state law, it is not cognizable in this habeas proceeding. However-, to the extent that Johnson's insufficient evidence claim asserts a violation of his federal constitutional right to due process, he has presented the court with a cognizable claim for federal habeas relief The court must next determine whether Johnson has exhausted state remedies, and if he has, the appropriate standard of review to apply.
According to the United States Supreme Court, a federal due process claim has not been fairly presented to a state court unless the court has been "alerted to the fact that the prisoner [is] asserting claims under the United States Constitution." Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Johnson's appellate brief failed to cite any federal constitutional provision or other federal law to support his insufficient evidence claim. However, after evaluating this claim under both federal and state Iaw5 the Delaware Supreme Court held that the verdicts were consistent and that there was sufficient evidence to support Johnson's conviction. See Johnson, 753 A.2d at 442 (citing Jackson v. Virginia, 443 U.S. 307 (1979)). As such, the court concludes that this claim is both exhausted and adjudicated on the merits. See Everett, 290 F.3d at 508. The court must now determine if the Delaware Supreme Court's adjudication of this claim was either contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
The clearly established federal law governing insufficiency of evidence claims is Jackson v. Virginia, 443 U.S. 307 (1979). Pursuant to Jackson, a reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational truer of fact could have found the essential elements of the crime beyond a reasonable doubt" Jackson, 443 U.S. at 319. This standard must be applied "with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. 324 n. 16; see Orban v. Vaughn, 123 F.3d 727, 731 (3d Cir 1997). Further, the reviewing court must draw all reasonable inferences from the evidence in favor of the prosecution and presume that the jury resolved all doubts based on conflicting evidence in the prosecution's favor. See Wright v. West, 505 U.S. 277, 296-97 (1992) (citing Jackson, 443 U.S. at 326).
Under the applicable Delaware law at the time of Johnson's trial, Johnson could be found guilty of unlawful sexual intercourse in the first degree if: 1) he intentionally had sexual intercourse with Collins without her consent; 2) Collins was not Johnson's voluntary social companion at the time of the offense; and 3) Collins had not permitted Johnson to engage in sexual intercourse with her within the previous twelve months. 11 DEL. C. ANN. § 775 (1995); D.I. 12, Appendix to App. Op. Br. No. 41, 1999, Ex. A-5. Johnson was convicted of the lesser included offense of second degree unlawful sexual intercourse. This result required the jury to find that he intentionally engaged in sexual intercourse with Collins without her consent and that Collins was not his voluntary social companion at the time of the offense, 11 DEL. C. ANN, § 774(2)(1995), The only difference between first and second degree unlawful sexual intercourse was the element of previous consensual intercourse.
During Johnson's trial, Collins testified that Johnson had beaten and raped her after forcing her to go to his bedroom. See Johnson, 753 A.2d at 440. In Delaware, a rape victim's uncorroborated testimony is sufficient to establish that unlawful sexual intercourse actually occurred. See Hammond v. Snyder, 2000 WL 1239993, at *4 (D, Del Aug. 23, 2000); Collazo v. State, 719 A.2d 947, at **2 (Del. 1998), Here, the jury could have rejected Collins5 testimony that she had not engaged in consensual intercourse in the preceding twelve month period (a necessary element for first degree unlawful sexual intercourse) and still have found the evidence sufficient to establish the essential elements of unlawful sexual intercourse in, the second degree beyond a reasonable doubt As such, the jury's decision to convict Johnson of second degree unlawful sexual intercourse was not inconsistent with its decision to acquit him of first degree unlawful sexual intercourse.
Johnson was also charged with two counts of first degree kidnapping, which required a finding that he unlawfully restrained Collins for the purpose of sexually assaulting her. 11 Del. C Aim. § 781 (1995); D.I. 12, Appendix to App. Op. Br. No. 41, 1999, Ex, A-5, A-6. He was convicted of the lesser included offense of second degree unlawful imprisonment, 11 Del, C. Ann. § 781 (1995), requiring the jury to find only that Johnson knowingly and unlawfully restrained Collins; the purpose of such restraint was not relevant.
At Johnson's trial, Collins testified that Johnson grabbed her and forced her to walk around the city, eventually leading her back to his house and confining her in his bedroom. See Johnson? 753 A.2d at 440, This testimony provided a sufficient basis to lead a rational trier of fact to find Johnson guilty of second degree unlawful imprisonment See Jackson, 443 U.S. at 319.
Further, the jury's decision to acquit Johnson of first degree kidnapping (requiring unlawful restraint for the purpose of sexual assault) was not inconsistent with its decision to convict him of second degree unlawful sexual intercourse. The jury could reasonably have concluded that the restraint used to keep Collins in the bedroom was part of the second degree unlawful sexual intercourse, and thus, not sufficient to establish a required element for first degree kidnapping. See Weber v. State, 547 A.2d 948, 957-59 (Del 1988). However, it was also reasonable for the jury to conclude that the restraint used during the march through Wilmington to search for Johnson's car constituted second degree unlawful imprisonment, a completely separate act of restraint from that exhibited during the subsequent rape. See id.
In short, viewing the evidence in a light most favorable to the State, the court concludes that a rational jury could reasonably conclude that Johnson was guilty of second degree unlawful sexual intercourse and second degree unlawful imprisonment, and that such convictions were not inconsistent with his acquittal for first degree rape and kidnapping. As such, the Delaware Supreme Court's rejection of Johnson's challenge to the sufficiency of the evidence was neither contrary to, nor an unreasonable application of, clearly established federal law. Consequently, this claim does not provide a basis for federal habeas relief.
C. Application for the Appointment of Counsel
Johnson, asks the court to appoint counsel pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United District States District Courts, 28 U.S.C. foll. § 2254, for the "limited purpose of representing defendant at an evidentiary hearing." (DJ. 4.) Because Rule 7 does not address the appointment of counsel, the court presumes that Johnson meant to cite Rule 8(c). 28 U.S.C. foll. § 2254. Johnson asserts that counsel should be appointed because he is "ignorant of the law." Id
It is well settled that Johnson does not have a Sixth Amendment right to counsel in this habeas proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Roberson, 194 F.3d 408, 415 n. 5 (3d Cir. 1999). However, a district court may appoint counsel to represent an indigent habeas petitioner "if the interest of justice so requires." Rule 8(c), 28 U.S.C. foll. § 2254, As explained above, the court is dismissing Johnson's § 2254 petition because it fails to allege any grounds for federal habeas relief. In these circumstances, the "interests of justice" do not require the appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B). Thus, the court will deny Johnson's application for the appointment of counsel.
IV. CERTIFICATE OF APPEALABILITY
Finally, the court must decide whether to issue a certificate of appealabilty. See Third Circuit Local, Appellate Rule 22,2. A certificate of appealability may only be issued when a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel 529 U.S. 473, 484 (2000).
Moreover, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the court is not required to issue a certificate of appealability unless the petitioner demonstrates that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Id. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id.
For the reasons stated above, the court concludes that neither of Johnson's claims provide a basis for federal habeas relief. Reasonable jurists would not find these conclusions unreasonable. Consequently, Johnson has felled to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued.
V. CONCLUSION
For the foregoing reasons. IT IS HEREBY ORDERED THAT:
1. Dammeyin A. Johnson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED, and the relief requested therein is DENIED. (D.I. 1.)
2. Dammeyin A. Johnson's application for the appointment of counsel is DENIED as moot. (D.I. 4.)
3. The court declines to issue a certificate of appealability.
IT IS SO ORDERED.