United States District Court, D. Delaware
DURRELL T. DUPREE, Petitioner.
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
Durrell T, DuPree. Pro se petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
before the court is an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254
("petition") filed by petitioner Durrell T. DuPree
("DuPree"). (D.I. 1) The State filed an answer in
opposition. (D.I. 8) 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 first incident occurred in November or December 2001,
when DuPree walked up to a high school acquaintance, Jabbar
Foster, who was sitting in a park with two friends near the
Saddlebrook development. DuPree was holding a gun. and told
Foster that someone had told him that Foster was planning to
beat him up. Foster heard the gun being cocked and testified
that he thought he was going to die. The incident ended when
Foster and his friends said they did not know what DuPree was
The second incident occurred on September 4, 2002. Robert
Vicks, who knew DuPree through a friend, was driving through
Hampton Green when he stopped to see some friends. At that
time, DuPree asked Vicks if Vicks would like to "hook up
with some sugar babes." At DuPree's instruction,
Vicks and his passenger, Kelvin Powers, drove to the Ashton
Condominiums parking lot. When Vicks pulled into the parking
spot. DuPree was standing about ten feet away and motioned
for Vicks to wait. A moment later, a man opened the driver
side door, held a gun to Vicks' head, and ordered Vicks
to ''give it up." Vicks resisted, and during his
struggle with the assailant. Vicks noticed DuPree making eye
contact with the assailant. Vicks decided that he should stop
fighting with the assailant and try to flee. As Vicks drove
away, however, the assailant shot him and his passenger.
The third incident occurred shortly after the September
4th shooting. Vicks was driving with his fiancee,
Lindsay Donnelly, and his brother. Vicks pulled into a gas
station and DuPree, driving a green Firebird, pulled in
behind him. Vicks drove off and DuPree followed, Hashing his
lights. As Vicks was waiting to turn into a restaurant
parking lot, DuPree fired four shots at Donnelly's car
and then sped off. A few days later, a bullet was retrieved
from one of the tires on Donnelly's car. That bullet was
the same caliber as the bullets retrieved from two of the
other September incidents.
The fourth incident occurred on September 10, 2002, when
Lavon Byard and two other man ran into DuPree at a
convenience store near Saddlebrook. DuPree told the three men
that he had a gun, but nothing happened in the store. As
Byard started walking home, DuPree came up to Byard and
started checking the contents of Byard's pockets. DuPree
found nothing, and then pulled out his gun and aimed it at
Byard's stomach. DuPree told Byard that he was not going
to get him, and Byard walked away.
The last incident occurred on September 11, 2002, when DuPree
approached Byard and three of his friends in the Saddlebrook
development. DuPree told them he had a gun and wanted to
shoot someone because his cousin had been robbed the night
before. The four men attacked DuPree, and, during the fight,
DuPree shot and wounded three of them. The weapon used in
this incident was the same as the weapon used on September
Dupree v. State, 860 A.2d 810 (Table), 2004 WL
2154288, at * 1 (Del. 2004).
29, 2003, a Delaware Superior Court jury convicted DuPree of
attempted first degree robbery, two counts of first degree
assault, two counts of second degree assault, five counts of
possession of a firearm during the commission of a felony
("PFDCF"), and four counts of attempted aggravated
menacing; the Superior Court also found DuPree guilty of one
count of possession of a deadly weapon by a person prohibited
("PDWBPP). (D.I. 8 at 3) The Superior Court sentenced
DuPree on October 15, 2003 to a total of seventeen years and
eight months at Level V incarceration, followed by probation,
with the first fifteen years being a minimum mandatory
sentence. Id. at 4. The Delaware Supreme Court
affirmed DuPree's convictions and sentence on October 4,
2004. See DuPree, 2004 WL 2154288, at *2.
23, 2011, DuPree filed a motion for modification of sentence,
which the Superior Court denied. (D.I. 10 at 188) On
September 22, 2011, the Superior Court granted DuPree's
request to have the Greentree program added to his sentence.
(D.I. 10 at 189) DuPree filed a second motion for
modification of sentence on August 15, 2012, which the
Superior Court denied on September 21, 2012. (D.I. 189 at
October 5, 2012, DuPree filed a pro se motion for
postconviction relief pursuant to Delaware Supreme Court
Criminal Rule 61 (Rule 61 motion), which the Superior Court
denied on February 7, 2013 as procedurally barred. See
DuPree v. State, 69 A.3d 370 (Table), 2013 WL 3355868,
at * 1 (Del. 2013). The Delaware Supreme Court affirmed that
decision on June 28, 2013. A/.at*2.
filed a third motion for modification of sentence on July 9,
2013, which the Superior Court denied on July 17, 2013. (D.I.