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Dupree v. Metzger

United States District Court, D. Delaware

August 7, 2017

DURRELL T. DUPREE, Petitioner.
v.
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

          Durrell T, DuPree. Pro se petitioner.

          Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

          MEMORANDUM OPINION

         Pending 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.

         I. BACKGROUND

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 talking about.
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 4th.

Dupree v. State, 860 A.2d 810 (Table), 2004 WL 2154288, at * 1 (Del. 2004).

         On July 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.

         On May 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 262)

         On 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.

         DuPree filed a third motion for modification of sentence on July 9, 2013, which the Superior Court denied on July 17, 2013. (D.I. ...


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