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Barr v. Pierce

United States District Court, D. Delaware

August 6, 2014

JAMES A. BARR, III, Petitioner,
v.
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

James A. Barr, III. Pro se Petitioner.

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

MEMORANDUM OPINION

RICHARD G. ANDREWS, District Judge.

Presently pending before the Court is Petitioner James A. Barr, Ill's ("Petitioner") Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 3) The State filed an Answer in opposition, contending that the Petition should be dismissed as procedurally barred. (D.I. 11) For the reasons discussed, the Court will dismiss the Petition.

I. BACKGROUND

In October 2011, Petitioner picked up Cheryl Truitt ("Truitt"), her three-month old baby, and a friend of Truitt's to do some errands. (D.I. 11 at 1, 16) When they were returning home, Petitioner began to speak to Truitt as though they were in a relationship. Truitt said she was not his girlfriend, and the two began arguing. They were still arguing when Petitioner dropped off Truitt's friend at her home. Shortly after they pulled away from the friend's home, Petitioner slammed on the brakes, pulled a knife out of his pants and told Truitt he was going to kill her. Truitt tried to take the knife away from Petitioner, but cut herself. She then got out of the car, grabbed the car seat containing the baby from the backseat and tried to run away. Petitioner caught Truitt and pushed her up against a wall, which caused Truitt to drop the car seat. Petitioner forced Truitt's head up in order to slice her neck, but lost his grip and stuck the knife in her mouth, chipping her front tooth and cutting her lips. Petitioner pulled the knife out and cut Truitt's face. (D.I. 11 at 1, 2, 16-17)

Truitt's friend saw the car stop and saw Truitt get out of the car and attempt to run away from Petitioner. (D.I. 11 at 17) When she realized Petitioner had a knife, she called the police and screamed at Petitioner, which allowed Truitt to escape. Truitt's friend grabbed the car seat and refused to hand the baby over to Petitioner despite the fact that he was threatening her with a knife. Petitioner threatened Truitt's friend and then fled the scene. Id.

Petitioner was arrested in October, 2011 and was subsequently indicted on the charges of first degree assault, possession of a deadly weapon during the commission of a felony ("PDWDCF"), terroristic threatening, and endangering the welfare of a child. (D.I. 11 at 2) On May 24, 2012, Petitioner pied guilty to second degree assault as a lesser included offense of first degree assault and to PDWDCF. On August 3, 2012, the Delaware Superior Court sentenced Petitioner, effective as of October 29, 2011, to a total of twenty years at Level V incarceration, suspended after twelve years to Level IV supervision, suspended after eight months for two years at Level III supervision with TASC supervision. (D.I. 11 at 3) He did not appeal his convictions or sentence.

Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") on October 12, 2012, and a motion for reconsideration of his sentence on October 22, 2012. (D.1. 11 at 3) The Superior Court denied the motion for reconsideration of sentence because it raised a claim of ineffective assistance of counsel that should be considered part of his previously filed Rule 61 motion. Id.

After reviewing defense counsel's affidavit in response to Petitioner's Rule 61 motion and Petitioner's reply, the Superior Court denied the Rule 61 motion on January 14, 2013. See State v. Barr, Case No. 1110019632, Order, J. Streett (Del. Super. Ct. Jan. 14, 2013). Petitioner filed a notice of appeal on March 1, 2013, which the Delaware Supreme Court denied as untimely on March 19, 2013. (D.I. 11 at 3; D.I. 13, Barr v. State, No. 88, 2013, Notice to Show Cause dated Mar. 1, 2013 and Order of Dismissal dated Mar. 19, 2013)

II. EXHAUSTION AND PROCEDURAL DEFAULT

Absent exceptional circumstances, a federal court cannot grant habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). The AEDPA states, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not ...

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