United States District Court, D. Delaware
Damien Wilkinson. Pro se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.
RICHARD G. ANDREWS, District Judge.
Petitioner Damien Wilkinson ("Petitioner") has filed an 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. (D.I. 13) For the reasons discussed, the Court will deny the Petition as barred by the limitations period prescribed in 28 U.S.C. § 2244.
The facts leading to Petitioner's conviction are set forth below, as summarized by the Delaware Supreme Court in Petitioner's direct appeal.
In April 2008, C.W., her four children, her fiance, Arturo Juarez, and her brother, [Petitioner], all lived in the same house in Richardson Park. At the time, C.W.'s daughter, C.B., was four years old. While living with his sister and her family, [Petitioner] occasionally babysat his nieces and nephews.
On the afternoon of April 20, after coming home from work, C.W. observed C.B. making a motion of going in and out of her mouth with her right index finger, a gesture C.W. had never seen her make before. When C.W. asked her daughter "where she got that from, " C.B. answered that "Uncle Day-Day makes her do that to him." (Uncle Day-Day was C.B.'s nickname for Petitioner.) C.W. asked C.B. "what else Uncle Day-Day makes her do, " and C.B. answered that "he stuck his tail in her butt and squirted milk all over my bed." When Petitioner came home that evening, C.W. confronted him with C.B.'s statements. Petitioner became "shaky, " and he started throwing up.
The next day, C.W. reported the information to the New Castle County police. Officer Eric Sherkey collected the sheets, pillowcases, and comforter from C.W.'s bed and advised the family to seek immediate medical assistance at the A.I. DuPont Hospital for Children. Genetic testing of bodily fluids on the bedding could not exclude Petitioner as a contributor from the five samples tested. The probability that someone other than Petitioner was the contributor of that genetic material was 1 in 6, 536, 000, 000, 000, 000, 000 (quintillion).
On April 28, C.B. was given a multi-disciplinary evaluation at the Children's Advocacy Center ("CAC"), triggered by the report of sexual abuse. The evaluation consisted of an interview by Terry Kaiser and a medical examination by Allan DeJong, M.D. During her interview, C.B. told Kaiser that [Petitioner] made her "get the milk out, " and that the "milk" went on "Mommy's bed." (Through the use of anatomical drawings, Kaiser determined that C.B. used the term "butt" to describe her vagina, and a "tail" to describe a penis.) Dr. DeJong found no signs of recent injury to the genital or anal area.
On May 1, Officer Sherkey and Detective Karen Crowley interviewed Wilkinson. He was advised of his Miranda rights and signed a waiver form. He denied the alleged activity. On June 20, 2008, Petitioner was arrested and later charged with two counts of rape in the first degree under 11 Del. C. § 773(a)(5)), and two counts of rape in the first degree under 11 Del. C. § 773(a)(6).
Wilkinson v. State, 979 A.2d 1111 (Table), 2009 WL 2917800, at *1 (Del. Sept. 14, 2009).
The State nolle prossed two counts of rape prior to the start of trial. In February 2009, a Superior Court jury found Petitioner guilty of both remaining counts of rape in the first degree. Id. at *2. On April 3, 2009, Petitioner was sentenced to a total of fifty-five years at Level V, suspended after serving fifty years for two years at Level IV, suspended in turn after six months for one year and six months at Level III. Id. Petitioner appealed, and the Delaware Supreme Court affirmed Petitioner's convictions and sentence on September 14, 2009. Id.
On January 14, 2010, Petitioner filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 3 at 32-35) The Superior Court denied that Rule 61 motion on April 29, 2010. (D.I. 3 at 42-49) Petitioner filed a notice of appeal from that ...