United States District Court, D. Delaware
Augustus Hebrew Evans, Jr., James T. Vaughn Correctional
Center, Smyrna, Delaware, Pro Se Plaintiff.
ANDREWS, U.S. District Judge
Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. He appears pro se
and has paid the filing fee. The Court proceeds to review and
screen the Complaint (D.I. 4) and its amendment (D.I. 13)
pursuant to 28 U.S.C. §1915A(b).
Court takes judicial notice of the following, all of which is
relevant to the instant Complaint. In 2007, Plaintiff was
convicted of second degree assault; aggravated menacing,
resisting arrest, and two counts of possession of a deadly
weapon during the commission of a felony. See Evans v.
State, 968 A.2d 491 (table), 2009 WL 367728, at *2-3
(Del. Feb. 13, 2009). He was sentenced as a habitual offender
to seventy-nine years of incarceration at Level V, suspended
after seventy-two years for a period of probation.
Id. The Delaware Supreme Court affirmed Plaintiffs
convictions and sentences on direct appeal. Id.
2009, Plaintiff filed a Rule 61 motion for postconviction
relief challenging his 2007 convictions and sentences.
See State v. Evans, 2009 WL 2219275 (Del. Super.
July 6, 2009). The Delaware Superior Court denied the motion,
and the Delaware Supreme Court affirmed the decision. See
Evans v. State, 985 A.2d 390 (table), 2009 WL
3656085 (Del. Oct 7, 2009).
February 2010, Plaintiff filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the District of Delaware. See
Evans v. Phelps, 2012 WL 1134482 (D. Del. Apr. 2,
2012). The application was denied following a determination
that the claims lacked merit. Id. at *14. Plaintiff
appealed and, after the United States Court of Appeals for
the Third Circuit declined to issue a certificate of
appealability, it terminated the appeal. See Evans v.
Phelps, C.A. No. 12-2159 (3d Cir. Oct. 4, 2012).
Plaintiff then filed a petition for writ of certiorari in the
United States Supreme Court which was denied on April 22,
2013. See Evans v. Phelps, __ U.S. __, 133 S.Ct.
2007, 2013 WL 800350 (2013).
February 19, 2013, Plaintiff filed a second Rule 61 motion
for postconviction relief challenging his 2007 convictions
and sentences, which was denied as procedurally barred and
repetitive. See State v. Evans, 2013 WL 1090979, at
*1 (Del. Super. Feb. 25, 2013). Plaintiff then filed a
petition for a writ of mandamus in the Supreme Court of the
State of Delaware to compel the Delaware Superior Court to
rule on the merits of his postconviction motion rather than
base the decision on Rule 61's procedural bars. See
In re Evans, 2013 WL 1807871 (Del. Apr. 29, 2013). The
Delaware Supreme Court denied the petition on April 29, 2013.
Id. On October 10, 2013, the Delaware Supreme Court
affirmed the Superior Court's dismissal of Plaintiffs
second Rule 61 motion for postconviction relief. See
Evans v. State, 2013 WL 5614265 (Del. Oct. 10,
2013, Plaintiff filed a complaint in the Delaware Superior
Court against Judge Henley Graves ("Judge Graves")
and Brendan O'Neill ("O'Neill"), both named
defendants in the instant case, as well as other individuals.
See Evans v. Graves, 2013 WL 5460177 (Del. Super.
Sept. 30, 2013). Plaintiff sued Graves and O'Neill in
their official and individual capacities and asserted they
violated his right to due process under the Fourteenth
Amendment. Plaintiff attempted to advance claims of
"intentional conspiracy of the collective defendants and
state agencies to advance a continued abuse and violation of
civil rights of a selective class of people, " with all
claims related to the denial of Plaintiff's second motion
for postconviction relief. Id. at *3. The complaint
also alleged a continuing conspiracy "'for the
purpose of directly depriving Negroes and similarly situated
person as Plaintiff equal protections of the law and exercise
of substantial constitutional rights.'" Id.
The Superior Court dismissed the complaint finding each
assertion was frivolous and/or failed to state a claim upon
which relief may be granted. Id. at *6.
December 6, 2013, the Superior Court denied Plaintiff's
motion for a new trial. See In re Evans, 91 A.3d 561
(table), 2014 WL 1779361, n.4 (Del. May 1, 2014). Plaintiff
filed a third motion for postconviction relief in the
Delaware Superior Court and, while it remained pending, filed
a petition for writ of mandamus before the Delaware Supreme
Court to direct the Superior Court to consider motions he had
filed under Rules 33 and 61. See In re Evans, 2014
WL 1779361, at *1 (Del. May 1, 2014). The Delaware Supreme
Court denied the petition for a writ of mandamus on May 1,
2014, and noted that Plaintiffs excessive, frivolous filings
were abusive, placed an undue burden on the court system, and
directed the Clerk of Court not to grant any future
in forma pauperis motions that Plaintiff
filed without first submitting the motion for review.
April 23, 2014, the Superior Court denied Plaintiffs third
Rule 61 motion for postconviction relief. See Evans v.
State, 100 A.3d 1021 (table), 2014 WL 4104785 (Del. Aug.
19, 2014). On appeal, the Delaware Supreme Court affirmed the
dismissal, agreeing with the Superior Court's conclusion
that Plaintiffs "effort to revisit his [claims] by
repackaging same under a claim of judicial bias and/or
incompetence must fail, " and concluded that Plaintiffs
derivative claim of "judicial bias/abuse of
discretion" was not supported by the record and without
merit. Id. at *2. Plaintiff filed a fourth motion
for postconviction relief and the Superior Court summarily
dismissed the motion on October 31, 2014. Evans v.
State, 108 A.3d 1224 (table), 2015 WL 214057 (Del. Jan.
14, 2015). On appeal, the Delaware Supreme Court affirmed the
judgment and found that the Superior Court did not err in
summarily dismissing Plaintiffs fourth motion for
postconviction relief. Id. at *2. Plaintiff was
warned that if he continued to file appeals from the denial
of repetitive and meritless claims, he risked being enjoined
from filing appeals without first seeking leave of court.
Court in March 2015, Plaintiff filed a petition for a writ of
error coram nobis with respect to his 2007 convictions.
See Evans v. Pierce, 201 F.Supp.3d 560, 562 (D. Del.
2016). In April 2015, Plaintiff filed an application in the
United States Court of Appeals for the Third Circuit
requesting authorization to file a second or successive
habeas application, which was denied for Plaintiffs failure
to satisfy the requirements for obtaining the authorization.
See id.; see also In re Evans, C.A. No. 15-1726 (3d
Cir. Apr. 9, 2015).
27, 2015, Plaintiff filed a Rule 60(b)(6) motion for
reconsideration, seeking relief from the Third Circuit's
refusal to permit him to file a second or successive habeas
application, and/or seeking relief from the denial of his
first § 2254 application, which he had filed in 2012.
See Evans v. Pierce, 201 F.Supp.3d at 562. On
December 22, 2015, this Court dismissed Plaintiffs petition
for a writ of error coram nobis for lack of jurisdiction, and
dismissed the Rule 60(b) motion for lack of jurisdiction
because it constituted an unauthorized second or successive
habeas application. See Id. Plaintiff's
subsequent motion for reconsideration was denied on August
17, 2016. Id. On appeal, the ruling was summarily
affirmed. See Evans v. Warden, C.A. No. 16-3542 (3d
Cir. Nov. 10, 2016).
meantime, Plaintiff filed a fifth Rule 61 motion for
postconviction relief in the Superior Court. Evans v.
State, 128 A.3d 994 (table), 2015 WL 7758307 (Del. Dec.
1, 2015). In its denial, the Superior Court informed
Plaintiff that it would not accept any future Rule 61 motions
unless he first sought, and received, the trial court's
permission to file. Id. at *1. Plaintiff appealed
and then voluntarily dismissed the appeal.
he sought leave to file a sixth Rule 61 motion and, when
leave was denied by the Superior Court, Plaintiff filed an
appeal with the Delaware Supreme Court. Id. at *2.
On December 1, 2015, the Delaware Supreme Court affirmed the
denial of Plaintiffs request finding no error of law or abuse
of discretion and noting that Plaintiff had unsuccessfully
pursued postconviction relief under Rule 61 five different
times and he refuses to accept the Superior Court's
rulings on his motions. Id. The Delaware Supreme
Court concluded that Plaintiff's untimely, repetitive,
and frivolous filings constituted an abuse of the judicial
process and directed the Clerk of Court to refuse any future
filing from Plaintiff related to his criminal convictions and
sentences unless the filing is accompanied by the required
filing fee or a completed motion to proceed in forma
pauperis with a sworn affidavit containing the
certifications required by 10 Del. C. § 8803(e) and that
motion is first granted by the Supreme Court. Id.
February 26, 2016, Plaintiff filed a petition for a writ of
mandamus seeking relief from his criminal convictions.
See Matter of Evans, 135 A.3d 762 (table), 2016 WL
1221966 (Del. Mar. 23, 2016). On March 23, 2016, the Delaware
Supreme Court ordered the petition stricken and dismissed the
matter after Plaintiff failed to pay the filing fee or submit
a request to proceed in forma pauperis as required
in the Delaware Supreme Court's December 1, 2015 order.
Id. at *1.
March 1, 2016, Plaintiff filed a sixth motion for
postconviction relief in the Superior Court. (D.I. 4-1 at
p.87). The Superior Court adopted and incorporated its May
26, 2015 ruling of the fifth motion for postconviction relief
and advised Plaintiff that the sixth motion would not be
considered or acted upon as it merely repeated previous
complaints that had been adjudicated several times.
(Id.). Plaintiffs appeal to the Delaware Supreme
Court was dismissed when he did not submit the filing fee or
a motion to proceed in forma pauperis and then
failed to respond to a show cause order. See Evans v.
State, 135 A.3d 762 (table), 2016 WL 2585786 (Del. Apr.
point, Plaintiff filed a petition for a writ of habeas
corpus, and it was denied by the Superior Court. See
Evans v. State, 150 A.3d 1193 (table), 2016 WL 6459580
(Del. Oct. 31, 2016). The Superior Court held that
Plaintiff's writ of habeas corpus sought to challenge his
underlying convictions and sentences by asserting that the
trial judge was biased. Id. at *1. Plaintiff
appealed, and the Delaware Supreme Court issued a notice for
Plaintiff to show cause why his appeal should not be
dismissed as frivolous, malicious, or for failing to state a
claim. Id. In response, Plaintiff contended that a
structural error exists in his criminal case due to judge
bias, that the issue had never been adjudicated, and that a
writ was the only means to have the issue resolved.
Id. The Delaware Supreme Court found the appeal
frivolous and dismissed it on October 31, 2016. It noted
there was no basis for a writ of habeas corpus and that
Plaintiffs contention that his claim of judicial bias had
never been adjudicated was simply incorrect. Id.
November 16, 2016, the Superior Court denied Plaintiff's
applications attacking his conviction. (D.I. 13-1 at p.7). On
November 29, 2016, the Superior Court denied several filings
wherein Plaintiff continue to attack his conviction.
Id. The Order states, "[r]egardless of whatever
labels you choose to put on your motions, they are all
repetitive, previously adjudicated, too late, and
frivolous." Id. at p.8. Plaintiff next filed a
petition for a writ of mandamus claiming that he was entitled
to the disqualification of the Superior Court judge assigned
to his criminal matter (i.e., Judge Graves). See
Matter of Evans, 157 A.3d 142 (table), 2017 WL 568348
(Feb. 6, 2017). On February 6, 2017, the Delaware Supreme
Court dismissed the petition, stating that the "issue
has been previously litigated against him." Id.
at *1. On April 6, 2017, the Supreme Court received documents
from Plaintiff, entitled "Rule 60(b) Motion to Reopen
Case" and "Rule 60(b) Motion Appendice." (D.I.
13-1 at p.6). Plaintiff was advised that the Supreme Court no
longer had jurisdiction to address the matter raised in the
documents, it would take no further action with respect to
the documents, and that it would no longer accept any filings
captioned in the matter. Id.
meantime, Plaintiff commenced this action on January 19, 2017
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that
Defendants denied him due process and the right to equal
protection of rules, statutes, laws and constitutions.
Plaintiff contends that he has demonstrated he is in prison
under an illegal conviction and sentence, and alleges that
Defendants are individually liable, that Defendants conspired
to uphold ...