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Malin v. Phelps

United States District Court, Third Circuit

July 1, 2013

TERRY C. MALIN, Petitioner,
v.
PERRY PHELPS, Warden, and and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

Terry C. Malin. Pro se petitioner.

Maria Knoll, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Currently before the court is Terry Malin's ("petitioner") application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (D.I. 1) For the reasons that follow, the court will dismiss petitioner's § 2254 application as time-barred by the one-year period of limitations prescribed in 28 U.S.C. § 2244(d)(1).

II. FACTUAL AND PROCEDURAL BACKGROUND

At noon on September 4, 2006, sixty-year old Martha Oxford was watching television at her home in New Castle, Delaware, when petitioner knocked on her door. Oxford recognized petitioner as the son of a handyman who had done work for her over the years. When Oxford answered the door, petitioner told her that his car had broken down, and he asked to use the telephone. Oxford let petitioner into her residence and, once inside, petitioner attacked her, tied her hands behind her back with a rope, and put his belt around her neck. Petitioner attempted without success to penetrate Oxford's vagina and/or anus with his penis. He then tightened the belt around her neck until she lost consciousness. See Malin v. State, 3 A. 3d 1098 (Table), 2008 WL 438717, at *2 (Del. Sept. 24, 2008).

When Oxford regained consciousness, she found that petitioner was still in her bedroom, rummaging through her belongings. Petitioner hog-tied Oxford and left, taking with him her car keys, cell phone and credit cards. Oxford went to the hospital where she was examined by a sexual assault nurse. Id.

Petitioner was arrested the following day in Maryland by the Maryland State Police. Petitioner was driving Oxford's car and had with him her cell phone and credit cards. Id.

In October 2006, petitioner was indicted on one count of attempted first degree murder, first degree robbery, second degree burglary, and theft of a motor vehicle; two counts of attempted first degree rape; and four counts of possession of a deadly weapon during the commission of a felony. Id. at *1. Petitioner waived his right to a jury trial and proceeded to a bench trial on December 4, 2007. Id.

At trial, the sexual assault nurse who had examined Oxford testified that Oxford suffered from redness, swelling, and an abrasion in her vaginal/anal area. Id. at *2. According to the nurse, Oxford also suffered a traumatic injury to her left vocal cord and hemorrhaging of her eyes and throat, all of which were consistent with strangulation. Id.

Petitioner testified at trial, stating that he and Oxford engaged in consensual sexual activity at Oxford's residence. Id. He also stated that an intruder appeared while he was at Oxford's residence, demanding money from them for a previous drug sale, and that the intruder choked and robbed Oxford. Id.

On December 5, 2007, petitioner was found guilty of one count of attempted first degree rape, first degree assault (as a lesser included offense of attempted first degree murder), first degree robbery, second degree burglary, and four counts of possession of a deadly weapon during the commission of a felony. Id. at *1. The Superior Court sentenced him to a total of fifty-three years at Level V, followed by decreasing levels of supervision. Id. Petitioner appealed, and the Delaware Supreme Court affirmed his convictions on September 24, 2008. Id.

On March 9, 2009, petitioner filed in the Superior Court a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the Rule 61 motion on September 9, 2009. (D. I. 14, State v. Malin, ID# XXXXXXXXXX, Order, ...


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