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Page v. Pierce

United States District Court, D. Delaware

April 24, 2014

DARREL D. PAGE, Petitioner,
v.
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

Darrel D. Page. Pro se Petitioner.

Karen V. Sullivan, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

MEMORANDUM OPINION

RICHARD A. ANDREWS, District Judge.

Petitioner Darrel D. Page ("Petitioner") has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 1; D.l. 17) The State filed an Answer in opposition, contending that the Petition should be dismissed as time-barred or, alternatively, that the Court should dismiss some claims as meritless and other claims as procedurally 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.

I. BACKGROUND

On June 12, 2003, a Delaware Superior Court jury convicted Petitioner ofthree counts of first degree murder, one count of attempted first degree murder, five counts of possession of a firearm during the commission of a felony, one count of second degree robbery, one count of first degree conspiracy, one count of second degree conspiracy, and one count of endangering the welfare of a child. See State v. Page, 2006 WL 532128, at *1 (Del. Super. Ct. Feb. 24, 2006). The jury recommended the death penalty by a vote of eight to four on each of the three counts of first degree murder. On February 24, 2006, after a full consideration of the relevant considerations, the Superior Court judge sentenced Petitioner to three life sentences plus a term of years. Id. at *15. The Delaware Supreme Court affirmed Petitioner's convictions and sentences on direct appeal. See Page v. State, 934 A.2d 891, 901 (Del. 2006).

On October 10, 2008, while represented by counsel, Petitioner filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 22 at 3 n.3) In March 2009, the Superior Court ordered trial counsel to file a Rule 61 affidavit responding to Petitioner's allegations of ineffective assistance. (D.I. 27 at 22, Del. Super. Ct. Crim. Dkt. Item No. 158) Without obtaining Petitioner's response to the Rule 61 affidavit, the Superior Court denied the Rule 61 motion on April 28, 2009. See State v. Page, 2009 WL 1141738 (Del. Super. Ct. Apr. 28, 2009). Petitioner filed a motion for reconsideration, which the Superior Court denied on May 11, 2009. (D.I. 27 at 23, Del. Super. Ct. Crim. Dkt. Item No. 166) Petitioner appealed that decision, and the Delaware Supreme Court remanded the case to the Superior Court to allow Petitioner an opportunity to respond to his former counsel's Rule 61 affidavit. See Page v. State, 994 A.2d 745 (Table), 2010 WL 2169506, at *2 (Del. May 11, 2010). On remand, the Superior Court denied Petitioner's Rule 61 motion. d. Petitioner appealed, and the Delaware Supreme Court again remanded the case to the Superior Court to augment the record, because one ofPetitioner's defense attorneys had not provided a Rule 61 affidavit even though he had been ordered to do so. After the record was expanded to include the additional Rule 61 affidavit and supplemental memoranda from the parties, the Superior Court denied Petitioner's Rule 61 motion on March 17, 2010. Id. The Delaware Supreme Court affirmed that decision on May 11, 2010. See id. at *7.

Actingpro se, Petitioner filed his second Rule 61 motion on March 11, 2011. See State v. Page, 2011 WL 1213841 (Del. Super. Ct. Mar. 30, 2011). The Superior Court denied the motion, see id., and the Delaware Supreme Court affirmed that decision. Page v. State, 35 A.3d 419 (Table), 2012 WL 11615 (Del. Jan. 3, 2012), reh'g denied, (Jan. 24, 2012).

On March 19, 2013, again actingpro se, Petitioner filed a third Rule 61 motion, which the Superior Court dismissed. See State v. Page, 2013 WL 4828600, *2, *5 (Del. Super. Ct. Aug. 13, 2013). The Delaware Supreme Court affirmed that decision on December 4, 2013. See Page v. State, 82 A.3d 730 (Table), 2013 WL 6389595 (Del. Dec. 4, 2013).

In May 2013, Petitioner filed the§ 2254 Petition presently pending before the Court. The Petition asserts six claims: (1) Petitioner's Sixth Amendment right to a speedy trial was violated; (2) trial counsel provided ineffective assistance by failing to protect Petitioner's right to a speedy trial; (3) the trial court abused its discretion by admitting into evidence "unnecessary, gory photographs"; (4) the trial court erred by admitting Kim Still's out-of-court statement pursuant to 11 Del. C. § 3507, because it was involuntary and unnecessarily cumulative and prejudicial; (5) the trial court erred in denying Petitioner's first Rule 61 motion without allowing Petitioner an opportunity to respond to trial counsel's affidavit and, on remand, by limiting the issues that were addressed at the evidentiary hearing; and (6) appellate counsel provided ineffective assistance by failing to challenge the admissibility of Kim Still's testimony based on Rules 410, 402, and 404(b) of the Delaware and Federal Rules of Evidence, and also for failing to file a motion for new trial based on the alleged perjury of a witness at trial. (D.I. 1; D.l. 17) The State contends that the Court should deny the Petition as time-barred or, alternatively, as meritless and procedurally barred.

II. ONE YEAR STATUTE OF LIMITATIONS

AEDPA prescribes a one-year period oflimitations 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 ...

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