United States District Court, D. Delaware
Decided May 9, 2014.
Walter Allen, petitioner, Pro se.
Gregory E. Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, Counsel for respondents.
SUE L. ROBINSON, UNITED
STATES DISTRICT JUDGE.
Currently before the court is Walter Allen's (" petitioner" ) application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (D.I. 3) 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).
In August 2003, petitioner was indicted on the following charges: first degree robbery; possession of a firearm during the commission of felony; and second degree conspiracy. (D.I. 15 at 1) Petitioner was extradited to Delaware from Pennsylvania pursuant to the Interstate Agreement on Detainers (" IAD" ) and held pending trial. Id. On October 24, 2005, petitioner pled guilty to first degree robbery and possession of a firearm during the commission of a felony; in exchange, the State entered a nolle prosequi on the second degree conspiracy charge. See Allen v. Morgan, 23 A.3d 864 (Table), 2011 WL 2506956 (Del. 2011). That same day, the Superior Court sentenced petitioner to three years at Level V on the firearm conviction, and to an additional five years at Level V, suspended after two years for two years of probation, on the robbery conviction. See Allen, 23 A.3d 864, 2011 WL 2506956, at *1. Petitioner did not appeal his convictions or sentences.
On December 8, 2005, petitioner was transferred to Pennsylvania pursuant to the IAD to finish serving his Pennsylvania sentence. (D.I. 15 at 1) Exactly five years later, on December 8, 2010, petitioner was returned to Delaware to start serving his Delaware sentence. Id.
Petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 (" Rule 61 motion" ) on January 6, 2011, and a petition for writ of habeas corpus on January 28, 2011. (D.I. 15 at 2) On February 2, 2011, the Superior Court denied both the Rule 61 motion and the petition for writ of habeas corpus, and petitioner did not appeal those decisions. Id. Instead, he filed a second habeas petition on March 1, 2011, and a second Rule 61 motion on March 18, 2011. The Superior Court denied both on April 2, 2011. Id. Petitioner appealed, and the Delaware Supreme Court affirmed both decisions. See Allen v. Morgan, 23 A.3d 864, 2011 WL 2506956 (Del. June 22, 2011)(petition for writ of habeas corpus); Allen v. State, 23 A.3d 864 (Table), 2011 WL 2739594 (Del. 2011)(Rule 61 motion).
Thereafter, petitioner filed the pending § 2254 application asserting four grounds for relief: (1) defense counsel provided ineffective assistance by failing to properly inform him about the laws prior to his acceptance of the plea agreement; (2) there was a miscarriage of justice; (3) petitioner is illegally being held past the completion of his Delaware sentence because the five years he spent in a Pennsylvania prison should be credited against the five-year Delaware sentence imposed on October 24, 2005; and (4) the flag that was in the Superior Court at the time of sentencing demonstrates that the Superior Court lacked jurisdiction to convict and sentence petitioner. (D.I. 3) ...