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Kellum v. Pierce

United States District Court, D. Delaware

March 7, 2014

MELVIN N. KELLUM, Petitioner,
v.
DAVID PIERCE, Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. [1]

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Melvin N. Kellum, petitioner, Pro se.

Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, Counsel for respondents.

OPINION

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MEMORANDUM OPINION

ROBINSON, District Judge.

I. INTRODUCTION

Petitioner Melvin N. Kellum (" petitioner" ) is a Delaware inmate in custody at the James T. Vaughn Correctional Center in Wilmington, Delaware. Presently before the court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 3) For the reasons that follow, the court will dismiss his application.

II. FACTUAL [2] AND PROCEDURAL BACKGROUND

On March 10, 2006, Adrien Turner, a drug dealer, was sitting on an electrical box on a street corner in Wilmington. His brother and several other people were present. Petitioner approached Turner, and the two started to talk. When the talk turned into an argument, petitioner pulled out a gun and shot Turner in the thigh. Turner fell off the electrical box, and petitioner shot him four more times in the waist area. Petitioner then fled, and

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Turner was taken to the hospital. Turner identified petitioner twice from photo arrays. On May 1, 2006, petitioner was indicted and charged with first degree attempted murder, possession of a firearm during the commission of a felony, and possession of a deadly weapon by a person prohibited (" PDWPP" ).

Petitioner's Superior Court jury trial began on February 27, 2007. At trial, Turner recanted his story and denied that petitioner shot him. Turner explained that he had identified petitioner to the police because he had some issues with petitioner concerning a woman. Turner claimed he was shot by an unknown stranger. Turner's brother was unable to identify petitioner as the shooter.

During the trial, petitioner presented an " alibi defense" consisting of testimony from his sister and mother. Both witnesses testified that petitioner was at his sister's residence when the shooting occurred. Petitioner's mother testified as follows:

Prosecutor: And your remark [to defense counsel] that we had to sit down and really think about where we were that day, who is we?
Mother: Oh, just -- oh, I was -- my husband and all, we were just trying to figure out that day, where was Melvin that day. You know, was he with me? Because, basically, he wasn't out of the house unless he was with me or with my daughter.
Prosecutor: So you all got together to try to figure out where he was that day?
Mother: Now, we all didn't get together, a few of us got together and I was trying to remember where was Melvin that day. And I took it back and I remembered that day, that was the day I dropped him off at Rashieda's house.

Petitioner's sister corroborated this story and testified as follows:

Defense Counsel: And what -- describe that for me please. Were you able to recall what you did that day, the day of the shooting?
Sister: Yes.
D. Counsel: And what was it you were doing that day on the 10th of March?
Sister: Actually, I was at home. My brother came over that morning.
D. Counsel: How did he get to your house?
Sister: My mother brought him over.
D. Counsel: And why was it that he went to your residence that day?
Sister: She told me she had some stuff she had to do and he wanted to come over my house for a while while she handled her business.
D. Counsel: At the time -- at that time, and today, if you want to comment on that what was your relationship with your brother Melvin? How would you describe your relationship with him?
Sister: Very close.
D. Counsel: Did you spend with him either at your house or other locations during that time?
Sister: Yes.
* * *
D. Counsel: All right. What did you do with him that day that you can recall and advise the jury what you remember about his participation with you that day?
Sister: Actually, when he first got there, I made breakfast. We watched a little TV. After that, I remember him playing a video game for a little while before he left.
* * *
D. Counsel: What else can you tell us about that day? During the day, what did you do with him?

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Sister: Pretty much that was it. We just hung out a little bit, a little conversation, mainly watched movies, played video games. That was about it.
D. Counsel: Did you leave him at any time? Did you go out of the house at any time and ...

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