United States District Court, D. Delaware
Leroy Cook. Pro se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.
RICHARD G. ANDREWS, District Judge.
Pending before the Court is Petitioner Leroy Cook's ("Petitioner") Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. I; D.I. 2; D.I. 3) The State filed an Answer in opposition, contending that the Petition should be dismissed as time-barred. (D.I. 15) For the reasons discussed, the Court will deny the Petition as barred by the limitations period prescribed in 28 U.S.C. § 2244.
In 1995, Petitioner began engaging in sexual intercourse with a ten-year old child referred to in this case as "V.B." (D.I. 15 at 1) V.B. became pregnant with Petitioner's child when she was fifteen years old, and the child was born on September 2, 2001. At the time of impregnation, Petitioner was twenty-eight years old. Id.
Wilmington police arrested Petitioner on September 19, 2006. Id. Petitioner was originally indicted on November 27, 2006 and charged with five counts of second degree rape and one count of continuous sexual abuse of a child. Id. at 2. On November 26, 2007, an amended indictment charged Petitioner with the same offenses but changed the dates for the rape counts, and added five counts of first degree unlawful sexual intercourse related to the earlier period of misconduct. On January 8, 2008, Petitioner pled guilty to a single count of second degree rape, in exchange for which the State dismissed the balance of the indictment. As part of the plea agreement, the State also agreed to refrain from moving to sentence Petitioner as an habitual offender, and promised not to recommend more than a ten-year prison sentence. On March 14, 2008, the Superior Court sentenced Petitioner to twenty-five years at Level V, suspended after twelve years for decreasing levels of supervision. Petitioner did not appeal. Id.
On October 29, 2008, Petitioner filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied on May 20, 2009. (D.I. 17, Super. Ct. Crim. Dkt.) The Delaware Supreme Court affirmed that decision. See Cook v. State, 991 A.2d 17 (Table), 2010 WL 682545 (Del. Feb. 26, 2010). Petitioner filed his second Rule 61 motion on April 13, 2010, which was denied on April 21, 2010. See State v. Cook, 2010 WL 2244372 (Del. Super. Ct. April 21, 2010). The Delaware Supreme Court affirmed that decision on September 14, 2010, and denied Petitioner's motion for reargument en bane on October 1, 2010. See Cook v. State, 5 A.3d 629 (Table), 2010 WL 3565495 (Del. Oct. 1, 2010). Petitioner filed a third Rule 61 motion on October 19, 2010, which the Superior Court denied on January 28, 2011. See State v. Cook, 2011 WL 2163584 (Del. Super. Ct. Jan. 28, 2011). The Delaware Supreme Court affirmed that decision on March 10, 2011. See Cook v. State, 15 A.3d 216 (Table), 2011 WL 880847 (Del. Mar. 10, 2011). Petitioner filed a fourth Rule 61 motion on November 7, 2011, and a fifth Rule 61 motion on August 16, 2012. The Superior Court denied both motions, and the Delaware Supreme Court affirmed those decisions. See State v. Cook, 2012 WL 1415627 (Del. Super. Ct. Feb. 24, 2012); Cook v. State, 49 A.3d 1192 (Table), 2012 WL 3096623 (Del. July 30, 2012); State v. Cook, 2012 WL 5384195 (Del Super. Ct. Aug. 21, 2012); Cook v. State, 58 A.3d 982 (Table), 2012 WL 6155911 (Del. Dec. 10, 2012).
In March 2013, Petitioner filed the § 2254 Petition presently pending before this Court. The Petition asserts one ineffective assistance of counsel claim and one claim that the indictment and its amendment were illegal. The State contends that the Court should deny the Petition as time-barred.
A. Statute of Limitations
AEDPA prescribes a one-year period of limitations for the filing of habeas petitions by state prisoners, which begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...