United States District Court, D. Delaware
Daryl Andrus. Pro se petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
GREGORY M. SLEET, District Judge.
Pending before the court is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition") filed by petitioner Daryl Andrus ("Andrus"). (D.I. 1) The State has filed an answer in opposition. (D.I. 13) For the following reasons, the court will deny the petition as time-barred by the one-year limitations period prescribed in 28 U.S.C. § 2244.
The facts leading to Andrus' arrest and conviction are set forth below, as summarized by the Delaware Supreme Court in Andrus v. State, 719 A.2d 947 (Table), 1998 WL 736338 (Del. Oct. 1, 1998):
On April 4, 1995, there was a party at 407 7th Street, Holloway Terrace, the residence of Daryl "Babe" Andrus. John "Dwayne" Cathell brought over a case of beer around noon and sat on the porch drinking with Andrus and two other men. Fogg arrived around 2:30 p.m. with a 12-pack of beer and Cheryl Adams. James "JD" Dilley was there also. Dilley and Andrus had been friends for years, although two weeks earlier Andrus had severely beaten Dilley on the face. Dilley was a small man, weighing about 150 pounds and five feet three inches tall. He had a clawed right hand.
The party migrated from the front porch to the back where Fogg provoked Cathell into fighting by kicking Cathell's leg and knocking his hat off. Subsequently, the party moved down to the basement where Cathell and Fogg fought again. Dilley got between the two men, but Andrus hit Dilley out of the way and broke up the fight.
Around 8:00 p.m., Andrus, Fogg and Adams went to a tavern. They stayed there for about an hour and a half. According to Adams, Fogg and Andrus were rowdy and excited from the drinking and earlier fighting.
On their way back to Andrus's residence, they stopped at a liquor store. They arrived at Holloway Terrace at approximately 10:00 or 10:30 p.m. Dilley was there. When Adams left approximately 20 minutes later, only three people remained in the dwelling: Dilley, who was in the living room trying to get a fire started in a wood stove, and Andrus and Fogg, who were in the kitchen pouring glasses of black sambucca.
The next morning at approximately 7:30 a.m. an ambulance from the local fire company responded to 407 7th Street. When they arrived on the scene, Fogg directed them inside where they found a body wearing boxer shorts and socks. There was blood all over the walls and carpets of the house. Fogg started mouthto-mouth resuscitation while the emergency medical technicians began CPR compressions. Fogg told them, "I don't understand what happened, we were talking to him this morning."
Andrus was arrested on April 6, 1995, and was subsequently indicted along with his co-defendant, Jeffrey Fogg, on one count of first degree intentional murder and one count of first degree conspiracy. (D.I. 13 at 1) In April 1996, a Delaware Superior Court jury convicted Andrus and Fogg on both counts. Two days later, Andrus moved to set aside the verdict. The Superior Court denied the motion after hearing oral argument. In July 1996, the Superior Court sentenced Andrus to a mandatory life sentence for the murder conviction and to five years of incarceration, suspended after four years for probation, for the conspiracy conviction. Id. Andrus appealed, and the Delaware Supreme Court remanded the case for reconsideration of Fogg's pre-trial motion to sever in light of a possible Bruton violation. Once returned from remand, the Delaware Supreme Court affirmed Andrus' convictions on October 1, 1998. See Andrus, 1998 WL 736338.
Andrus filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") on September 27, 2001, which alleged, inter alia, a claim that the State violated Brady v. Maryland, 373 U.S. 83 (1963) by not divulging the existence of a secret agreement it had with trial witness Robert Richmond. See State v. Andrus, 2010 WL 2878872, at *1 (Del. Super. Ct. July 22, 2010). A hearing for the Brady claim was scheduled for January 2002, but was postponed indefinitely because Richmond was incarcerated in Georgia and unavailable to testify. Id. The Superior Court held a hearing on the other claims and denied the Rule 61 motion on March 12, 2003; the Superior Court did not address the Brady /Richmond secret agreement claim in its decision. See State v. Andrus, 2003 WL 1387115 (Del. Super. Ct. Mar. 12, 2003). The Delaware Supreme Court affirmed the Superior Court's judgment on March 12, 2004. See Andrus v. State, 844 A.2d 991 (Table), 2004 WL 691922 (Del. Mar. 12, 2004).
Andrus filed a second Rule 61 motion on May 2, 2007, once again alleging the Brady / Richmond secret agreement claim. See State v. Andrus, 2008 WL 1952161 (Del. Super. Ct. Apr. 15, 2008). The Delaware Superior Court denied the second Rule 61 motion on April 15, 2008 without addressing the Brady claim, explaining that the "situation at the time of Andrus' first motion, " where "the whereabouts of Richmond were unknown or it was impossible to extradite Richmond to Delaware, " "remains the situation now." Id. at *1. In 2009, Delaware obtained custody of Richmond and the Superior Court held a hearing to take Richmond's testimony regarding Andrus' Brady /Richmond secret agreement claim. Andrus was represented by his original post-conviction counsel in the renewed evidentiary hearing. After the completion of the hearing, the Superior Court denied the Brady ...