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Comer v. Pierce

United States District Court, D. Delaware

November 12, 2014

LAMAR COMER, Petitioner,
v.
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents

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Lamar Comer. Pro se petitioner.

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

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MEMORANDUM OPINION

ROBINSONSUE L. ROBINSON, District Judge.

I. INTRODUCTION

Petitioner Lamar Comer (" petitioner" ) is a Delaware inmate in custody at the James T. Vaughn Correctional Center in Smyrna, 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 AND PROCEDURAL BACKGROUND[1]

On October 25, 2004, at approximately 7:00 p.m., Bakeem Mitchell was shot and killed by a stray bullet near the corner of Fifth and Madison Streets in Wilmington, Delaware. Ballistic evidence introduced at trial indicated that Mitchell was an innocent bystander killed by a ricocheted bullet

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in a shootout involving petitioner, Derrick Williams, Clifford Reeves, and Frank Johnson.

Although the facts and testimony were in dispute, it appears that, at the moment Mitchell was shot, Johnson was driving his vehicle the wrong way on Fifth Street in Wilmington, through its intersection with Madison Street. Some trial evidence indicated that petitioner and his codefendants, Williams and Reeves, began shooting at Johnson near Sixth and Monroe Streets, and that they continued to fire at Johnson from the comer of Fifth and Monroe as he drove his vehicle up Fifth Street. Supporting this scenario, ten 9 mm bullet casings were recovered from the intersection of Fifth and Monroe. One witness indicated that petitioner, on foot, had pursued Johnson's vehicle up Fifth Street, continuing to fire his weapon. Other trial evidence indicated that Johnson may have either returned fire towards petitioner, Williams, and Reeves, or executed a " drive-by" shooting of Mitchell.

Petitioner, Williams, and Reeves were each indicted on murder in the first degree (felony murder of Mitchell), attempted murder in the first degree (Johnson), conspiracy in the first degree (Johnson), reckless endangering in the first degree, possession of a firearm/ammunition by a person prohibited (" PFPP" ), and three counts of possession of a firearm during the commission of a felony (" PFDCF" ). At trial, the State argued that petitioner and his co-conspirators had recklessly engaged in a gunfight with Johnson. The State's theory was that, although all three co-defendants initially ran after Johnson's car and fired at it, petitioner was the only person still firing on Fifth Street and, thus, was the only person capable of striking Mitchell. The State also presented evidence that no gunfire came from Johnson's car. The State suggested that the only person who could have killed Mitchell was petitioner.

In contrast, [petitioner's] defense was that the two incidents were separate criminal actions, and that he, Williams, and Reeves happened to be firing at Johnson at the same time Johnson was attempting to murder Mitchell. [Petitioner] argued that the testimony was too inconsistent to harmonize, and that the jury could not possibly determine who was shooting at the time Mitchell was killed. [Petitioner] also argued that Johnson was the only person firing a gun, and since Johnson's testimony was so inconsistent, Johnson could not be believed.[2] [Petitioner] contended that there was no physical evidence tying him to the crime scene and never admitted that he was even near the crime scene during the shooting. Over the objection of [petitioner], the trial court instructed the jury as follows on the element of causation:

A Defendant causes the death of another person when the Defendant's voluntary act brings about that person's death, which would not have happened but for Defendant's act. If it is demonstrated beyond a reasonable doubt that a Defendant recklessly fired shots along with others and a person's death was caused by one of those shots, or if it is proved beyond a reasonable doubt that

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[a] Defendant recklessly participated in an exchange of gunfire that caused a person's death, then the State need not prove that a particular shot, fired by a particular person caused the death. The State, however, must prove beyond a reasonable doubt that a Defendant recklessly participated actively in the fatal shooting and that the death did not occur independently from Defendant's conduct, before it can be said that he was a legal cause of the death.

Comer, 977 A.2d at 337 (emphasis added).

The jury subsequently found petitioner guilty of: first degree felony murder of Mitchell (hereinafter referred to as " felony murder" ); attempted first degree assault of Johnson (lesser included offense of attempted first degree murder of Johnson); conspiracy in the first degree (Johnson); reckless endangering in the first degree; and three counts of possession of a firearm during the commission of a felony (" PFDCF" ). Comer, 977 A.2d at 337. Petitioner was not found guilty of the PFPP charge. The jury acquitted Reeves and Williams of all charges except the lesser-included offense of second degree conspiracy. Id.

On direct appeal, the Delaware Supreme Court reversed petitioner's first degree murder conviction due to a faulty jury instruction given on that charge. See Comer, 977 A.2d at 342-3. The case was remanded to the Superior Court for a new trial on the felony murder charge or, in the alternative, the imposition of a conviction of manslaughter as a lesser-included offense. Id. at 344. The State elected the latter alternative. See Comer v. State, 23 A.3d 864 (Table), 2011 WL 2361673, at *1 (Del. June 13, 2011). Judgment was entered for manslaughter, and petitioner was resentenced. Id.

On February 3, 2010, petitioner filed a motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61. See State v. Comer, 2010 WL 3511024 (Del. S.Ct. Aug. 31, 2010). The Superior Court denied the Rule 61 motion, and the Delaware Supreme Court affirmed that decision. See Comer, 2011 WL 2361673, at *1.

Petitioner timely filed a § 2254 application in this court. (D.I. 1) The State filed an answer in opposition, asserting that the application should be denied in its entirety. (D.I. 15)

III. GOVERNING LEGAL PRINCIPLES

A. Exhaustion and Procedural Default

A federal court may consider a habeas petition filed by a state prisoner only " on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). One prerequisite to federal habeas review is that a petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by " fairly presenting" the substance of the federal habeas claim to the state's highest court, either on direct appeal or in a post-conviction proceeding, and in a procedural manner permitting the state courts to consider it on the merits. See Du ...


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