Submitted: April 13, 2015
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Colleen K. Norris, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Andre McDougal, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 22nd day of June, 2015, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. In January 2008, a Superior Court jury found Defendant Andre McDougal not guilty of Murder in the First Degree and was hung on the lesser-included charges of Murder in the Second Degree and Manslaughter as well as two weapon charges.
2. In September 2008, on the day of his retrial, Defendant pled guilty to a single count of Manslaughter.
3. Defendant was sentenced to 20 years at Level V incarceration, to be suspended after three years, for one year of Level III probation.
4. In January 2010, Defendant was found to have committed a Violation of Probation ("VOP") and was re-sentenced to 17 years at Level V, to be suspended for 17 years at Level IV, in turn to be suspended after 6 months, for one year at Level III probation.
5. On March 2, 2011, following a contested VOP hearing, Defendant was again found to have committed a VOP and was re-sentenced to 17 years at Level V, to be suspended after 15 years, for 2 years at Level III probation.
6. Defendant appealed his March 2, 2011 VOP finding to the Delaware Supreme Court. On October 17, 2011, the Delaware Supreme Court affirmed the Superior Court's VOP finding and sentence. The mandate from the Delaware Supreme Court affirming the judgment of the Superior Court was filed on November 4, 2011.
7. Thereafter, Defendant filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court, District of Delaware, in which he contested the VOP finding and sentence on a number of different grounds. On November 24, 2014, the Delaware District Court denied his habeas corpus petition finding it to be without merit.
8. The charges which formed the basis for the VOP at issue in this action, stemmed from a curfew violation and from drug and weapon charges that occurred on November 18, 2010. In a separate action, Criminal Action No. 1011012275, Defendant was indicted on those drug and weapon charges.
9. That action, Criminal Action No. 1011012275, on the drug and weapon charges was tried after the March 2, 2011 VOP hearing was held in this case. That separate action was tried before a Superior Court jury in September 2011. In that separate action, Defendant was convicted of Trafficking in Heroin, Possession with Intent to Deliver Heroin and Possession of a Firearm by a Person Prohibited. Defendant was found not guilty of Possession of a Firearm During the Commission of a Felony and Receiving a Stolen Firearm.
10. In that action, Criminal Action No. 1011012275, Defendant was sentenced as a habitual offender to prison for the remainder of his natural life on each of the two drug convictions and was sentenced to five years at Level V on the weapon conviction.
11. In that action, Criminal Action No. 1011012275, Defendant filed a direct appeal to the Delaware Supreme Court. On September 5, 2012, the Delaware Supreme Court affirmed that judgment of the Superior Court.
12. In that action, Criminal Action No. 1011012275, Defendant filed a motion for postconviction relief. In that case, Defendant timely filed a Rule 61 motion after his jury trial resulted in a conviction and he was sentenced as a habitual offender under 11 Del. C. § 4214(b) for the drug convictions, and 11 Del. C. § 4214(a) for the weapon conviction. In that case, counsel was appointed to assist Defendant on his Rule 61 motion.
13. Defendant's Rule 61 motion in that action, Criminal Action No. 1011012275, remains pending and is not the subject of this decision.
14. The contested VOP at issue stems from a curfew violation and from drug and weapon charges that occurred on November 18, 2010. The facts which formed the basis for the March 2, 2011 contested VOP were set forth by the Delaware Supreme Court in its decision on Defendant's direct appeal,  were set forth by the Delaware District Court in its decision on Defendant's petition for a writ of habeas corpus,  and are contained in the record of the VOP hearing. The facts are set forth below.
15. As to the curfew violation, Defendant's supervising probation officer testified that on September 13, 2010, Defendant missed a curfew check.
16. As to the drug and weapon charges, Detective Smith, of the Wilmington Police Department, Operation Safe Streets, testified that on November 18, 2010, he was conducting surveillance in the 2300 block of Carter Street, in Wilmington, Delaware. The area was known ...