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State v. Ploof

Superior Court of Delaware

December 28, 2017

STATE OF DELAWARE,
v.
GARY W. PLOOF, Defendant.

          Submitted: October 3, 2017

         On the State's "Second Motion for Summary Dismissal of Amended Second Post-Conviction Relief Motion." GRANTED.

          John Williams, Esquire, Deputy Attorney General, Department of Justice, Dover, Delaware, Attorney for the State.

          Herbert W. Mondros, Margolis Edelstein, Wilmington, Delaware, Attorney for Defendant Gary W. Ploof.

          MEMORANDUM OPINION

          Richard R.

         I. INTRODUCTION

         Before this Court is the State's Second Motion for Summary Dismissal of Defendant's Amended Second Post-Conviction Relief Motion filed May 23, 2017.[1] Defendant has filed this Amended Second Motion (amending his Original Second Motion) more than a year after his conviction became final. Thus, it is procedurally barred under Del. Super. Ct. Crim. R. 61(i)(1)&(2). Furthermore, his claim fails to fall into the "actual innocence" exception to the procedural bars pursuant to Del. Super. Ct. Crim. R. 61(d)(2)(i); Defendant has made an insufficient showing "that new evidence exists that creates a strong inference that" he is "actually innocent." This Court has applied the current version of Del. Super. Ct. Crim. R. 61 as amended on June 4, 2014. Accordingly, the State's Second Motion for Summary Dismissal of both 1) Defendant's Amended Second Motion and 2) his Original Second Motion is GRANTED.

         II. PROCEDURAL HISTORY [2]

         The procedural history of this Kent County case provided by the State in its motion for summary dismissal is not contested by Defendant. As such, the procedural history of this case is set forth below in toto:

1. On June 16, 2003, a Kent County Superior Court jury convicted [Defendant] of the first degree murder of his wife, Heidi Ploof, and possession of a firearm during the commission of a felony. Following a penalty hearing, the jury found 12-0 that the murder was committed for pecuniary gain (a $100, 000 life insurance policy on [Defendant's] spouse that went into effect three days before her murder), and also unanimously concluded that the aggravation evidence outweighed the mitigation evidence. After denying a defense new trial motion [State v. Ploof, 2003 WL 21999033 (Del. Super. Aug. 20, 2003)], then President Judge Ridgely sentenced Ploof to death. State v. Ploof 2003 WL 21999031 (Del. Super. Aug. 22, 2003) (FINDINGS AFTER PENALTY HEARING).
2. On direct appeal, the Delaware Supreme Court in 2004 affirmed [Defendant's] convictions and death sentence. Ploof v. State, 856 A.2 539 (Del. 2004). [Defendant] filed no petition for certiorari review in the United States Supreme Court, but on July 6, 2005, he did file a.pro se first post-conviction relief motion in this Court. When [prior] post-conviction counsel was subsequently appointed to assist [Defendant], amended post-conviction relief motions were filed in the Superior Court on June 9, 2008 and August 1, 2008. (Docket Items # 237-38, 242, and 252).
3. Pursuant to the provisions of Del. Super. Ct. Crim. R. 61(h), Judge Young [who had been subsequently re-assigned to this case] conducted a 6 day evidentiary hearing on October 26-28, and November 1, 3, and 12, 2010 to consider evidence in support of [Defendant's] post-conviction relief contentions contained in the 2005 first motion and the 2008 amended first motion. (Docket Item # 285). Following post-hearing briefing, Judge Young on January 30, 2012 denied postconviction relief. State v. Ploof, 2012 WL 1413483 (Del. Super. Jan. 30, 2012).
4. The Delaware Supreme Court on June 4, 2013 affirmed the denial of post-conviction relief on the guilt phase claims, but remanded for reweighing of the penalty phase evidence. Ploof v. State, 75 A.3d 811 (Del. 2013). This Court submitted its Findings of Facts and Conclusions of Law on Remand on July 15, 2013. State v. Ploof, 2013 WL 9916948 (Del. Super. July 15, 2013). Next, on October 13, 2013, the Delaware Supreme Court affirmed the denial of postconviction relief on the capital penalty phase claims. Ploof v. State, 75 A.3d 840 (Del. 2013). The Delaware Supreme Court Mandate was issued on October 4, 2013, following the decision on the guilty phase claims. (Exhibit A).
5. On January 17, 2014, after completion of State collateral review, [Defendant] filed a petition for federal habeas corpus relief in the United States District Court for the District of Delaware. Ploof v. Coupe, C. A. No. 13-294-LPS. District Court Judge Stark issued a Stay and Abeyance Order of the federal habeas proceeding on December 15, 2014. (Exhibit B).
6. While the federal habeas petition was pending in the Delaware District Court, [Defendant] on November 26, 2014 filed a second Motion for State post-conviction relief in this Court. (Docket Item # 327). Because this second Rule 61 Motion was procedurally barred as untimely under Del. Super. Ct. Crim. R. 61(i)(1), and as a repetitive motion under Del. Super. Ct. Crim. R. 61(i)(2), as amended effective June 4, 2014, the State on December 18, 2014 moved for summary dismissal of the November 26, 2014 second motion for post-conviction relief. (Docket Item # 331). Although summary dismissal of the November 26, 2014 second motion for post-conviction relief is required by Del. Super. Ct. Crim. R. 61(d)(5) for lack of jurisdiction, this Court has never ruled on the State's December 18, 2014 motion summary dismissal of the second motion for post-conviction relief.
7. Following the State Supreme Court decision in Powell v. State, 153 A.3d 69 (Del. 2016), [Defendant's] death sentence for the first degree murder conviction in IKOl-12-0066 was vacated on April 13, 2017, and [Defendant] has been resentenced to natural life for that homicide conviction. (Exhibit C).[3]

         III. THE PARTIES' CONTENTIONS

         A. The State's Contentions

The State's contentions state as follows:
8. Although [Defendant] is no longer a capital defendant, new counsel has filed an amended second motion for post-conviction relief on May 23, 2017 (Docket Item #355). Like the November 26, 2014 original second Rule 61 motion, this 188 page second amended motion[4] is also procedurally barred by Del. Super. Ct. Crim. R. 61(i)(1) as untimely, and by Del. Super. Ct. Crim. R. 61(i)(2) as a second motion. [Defendant] does not meet either exception of Del. Super. Ct. Crim. R. 61(d)(2)(i and ii), and summary dismissal of both the November 26, 2014 original second Rule 61 motion and the May 23, 2017 amended second Rule 61 motion are also procedurally defaulted under Del. Super. Ct. Crim. R. 61(i)(3), if not previously presented, or under Del. Super. Ct. Crim. R. 61(i)(4), if previously adjudicated.[5] After the June 4, 2014 amendment of Del. Super. Ct. Crim. R. 61, the prior "interest of justice" and "miscarriage of justice" exceptions to the procedural bars of Del. Super. Ct. Crim. R. 61(i)(l-4) no longer exist.
9. In an attempt to avoid the procedural bars of Del. Super. Ct. Crim. R. 61(i)(l-4), [Defendant] makes several arguments in his May 23, 2017 amended second motion for post-conviction relief. None of [Defendant's] arguments against application of the procedural bars to the November 2[6], 2014 original Second Rule 61 motion or the May 23, 2017 amended Second Rule 61 motion is meritorious, and both second motions are procedurally barred and must be summarily dismissed. Del. Super. Ct. Crim. R. 61(d)(5).
10. ... By filing a second Rule 61 motion and now an amended second Rule 61 motion, [Defendant] is attempting to prolong his State collateral review and require the unnecessary expenditure of limited judicial resources. [Defendant] had a jury trial in 2003, where the jury rejected his trial testimony that his wife committed suicide. His murder conviction was affirmed on direct appeal in 2004. [Defendant] was afforded an extensive evidentiary hearing of 6 days in 2010 to present numerous post-conviction relief claims. The denial of post-conviction relief by this Court in January 2012 was also affirmed by the [Delaware] Supreme Court in two opinions in 2013. [Defendant] has already had ample opportunity for State collateral review of a crime that occurred in November 2001. It is not an abuse of discretion to summarily deny [Defendant's] attempt to restart the State postconviction relief process anew a second time.
11. At page 12 of his May 23, 2017 amended Second Rule 61 motion, [Defendant] argues that the version of Del. Super. Ct. Crim. R. 61 in effect prior to the June 4, 2014 amendment of Rule 61 should apply to his November 2[6], 2014 initial second motion and this May 23, 2017 amended second motion. [Defendant] is incorrect. The Delaware Supreme Court has rejected this contention, and pointed out in Collins v. State, 2015 WL 4717524, at *1 (Del. Aug. 6, 2015) that ". . . the [post-conviction] motion was controlled by the version of Rule 61(i)(5) in effect on September 9, 2014 when the motion was filed, not by the former version of the rule as Collins contends." See also Coble v. State, 2016 WL 2585796, at *1 (Del. Apr. 28, 2016) ("Superior Court erroneously applied the provisions of Superior Court Rule 61 that were in effect before the appellant filed his second Rule 61 petition on September 1, 2015"); State v. Miller, 2017 WL 1969780, at *5 (Del. Super. May 11, 2017) ("Because Rule 61 was significantly amended on June 4, 2014, the Court will consider later in the Opinion when each defendant filed his or her respective motion and apply the version of the Rule in effect at that time."); State v. Hubbard, 2017 WL 480567, at *5 (Del. Super. Jan. 25, 2017) ("The version of the Rule in effect at the time that Defendant's pro se motion for postconviction relief was filed, requires the Court to reject a motion for postconviction relief if it is procedurally barred."). Similarly, the fact that [Defendant] filed a timely first Rule 61 motion in 2005 does not mean that a new second motion filed in November 2014 is also timely. Compare Denney v. State, 2016 WL 3382220, at *2 (Del. June 10, 2016) (". . . as the State points out, Denney's filing of his first motion for sentence modification within ninety days of his sentencing does not make any subsequent motions for sentence modification that he filed more than ninety days after his sentencing fall within the ninety-day time period set forth in Rule 35(b)."). [Defendant's original November 2[6], 2014 Second Rule 61 motion and the May 23, 2017 amended second Rule 61 motion are both governed by the provisions of Rule 61 as amended on June 4, 2014, and both of those filings are now procedurally barred.
13. The version of Del. Super. Ct. Crim. R. 61 in effect when [Defendant] filed his original second post-conviction relief motion controls the deposition of that motion and the May 23, 2017 amended second motion. Collins v. State, 2015 WL 4717524, at *1 (Del. Aug. 6, 2015); Coble v. State, 2016 WL 2585793, at *1 (Del. Apr. 28, 2016). Under Del. Super. Ct. Crim. R. 61, as amended on June 4, 2014, any post-conviction relief motion filed "more than one year after the judgment of conviction is final" is procedurally barred. The "miscarriage of justice" exception to the 61(i)(1) time bar contained in former Del. Super. Ct. Crim. R. 61(i)(5) was eliminated by the June 4, 2014 amendment of Rule 61. [Defendant's] original second Rule 61 motion filed November 2[6], 2014 was not filed within 1 year of the June 4, 2013 Supreme Court decision on the guilt phase claims of the first post-conviction relief request [Ploofv. State, 75 A.3d 811 (Del. 2013)], or the October 4, 2013 Supreme Court Mandate for that appeal. (Exhibit A). The November 2[6], 2014 filing is also more than 1 year after the October 30, 2013 Supreme Court decision on the penalty phase claims [Ploofv. State, 75 A.3d 840 (Del. 2013)], although all of those capital penalty phase claims are now moot because [Defendant's] prior death sentence was vacated by this Court on April 13, 2017. (Exhibit C). A petition which is filed beyond the applicable statute of limitations must be dismissed because the court lacks jurisdiction to hear the untimely filing. "Time is a jurisdictional requirement." Carr v. State, 554 A.2d 778, 779 (Del. 1989) (untimely appeal from denial of eighth post-conviction relief motion). See also Bey v. State, 402 A.2d 362, 363 (Del. 1979); Preform Building Components, Inc. v. Edwards, 280 A.2d 697, 698 (Del. 1971); McMillan v. State, 2013 WL 5974110, at *1 (Del. Nov. 7, 2013). Both [Defendant's] November 2[6], 2014original second Rule 61 motion and the May 23, 2017 amended second Rule 61 motion are untimely and they are now procedurally barred by Del. Super. Ct. Crim. R. 61(i)(1). These untimely second Rule 61 filing must be summarily dismissed because this Court lacks jurisdiction to hear the matter. There is no "manifest injustice" exception to the time bar of Rule 61(i)(1) now available.[6]

         The State also responded to two of Defendant's arguments in its August 23, 2017 Reply Brief, in which the State argued:

II. COMITY. At pages 2-4 of [Defendant's] July 31, 2017 response, it is argued that a return to State court as permitted by Judge Stark's December 15, 2014 Stay and Abeyance Order further policies of Federal-State comity. [Defendant] adds that after his April 13, 2017 Superior Court resentencing, his May 23, 2017 Amended Second Rule 61 Motion ". . . presents only those claims challenging the validity of his convictions." (Ploof July 31, 2017 response at p.4).
Comity is a consideration in Federal habeas corpus litigation, but it is a lesser concern for State collateral review. Absent exceptional circumstances, a federal court will not entertain the claims of a habeas corpus petitioner until he has exhausted State remedies. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). The underlying policy of the State exhaustion requirement is rooted in the tradition of comity; that is, the State must be given the "initial opportunity to pass upon and correct" alleged violations of the petitioner's constitutional rights. Picard v. Connor, 404 U.S. 270, 275 (1971) (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). See also Tillett v. Freeman, 868 F.2d 106 (3d. Cir 1989).
Traditionally, to exhaust his claims, a petitioner must fairly present the identical claims (on both facts and legal theory) he wants the Federal habeas court to review to all levels of the State judicial system, including the State's highest court. See Anderson v. Harless, 459 U.S. 4 (1982); Gibson v. Scheidmantal, 805 F.2d 135 (3d Cir. 1986). Here, [Defendant] has satisfied any comity requirement when he first filed a direct appeal of his June 2003 first degree murder conviction to the Delaware Supreme Court which affirmed [Defendant's] conviction and sentence in 2004. Ploofv. State, 856 A.2d 539 (Del. 2004). Next, [Defendant] pursued available State collateral review back in the Superior Court where a 6 day evidentiary hearing was conducted on October 26-28, and November 1, 3 and 12, 2010 to consider [Defendant's] post-conviction relief claims. The Kent County Superior Court denied post-conviction relief on January 30, 2012. State v. Ploof 2012 WL 1413483 (Del. Super. Jan. 30, 2012). This denial of State post-conviction relief was affirmed by the Delaware Supreme Court on June 4, 2013 for the guilt phase claims [Ploofv. State, 75 A.3d 811 (Del. 2013)], and on October 30, 2013 for the capital penalty phase claims. Ploofv. State, 75 A.3d 840 (Del. 2013).
For purposes of comity, State court review was concluded on October 30, 2013. Comity does not require that [Defendant] be permitted to return to State court to pursue new post-conviction claims over 14 years after his June 2003 trial. [Defendant] has already had one full round of State court reviews. Merritt v. Pierce, 2017 WL 927615, at *1 (D. Del. Mar 6, 2017). All Judge Stark's December 15, 2014 Order did was permit a return to State court to determine if summary dismissal is required in light of the June 4, 2014 amendment of Del. Super. Ct. Crim. R. 61. The Delaware District Court December 2014 Order is not a mandate that further State collateral review is permitted.
. . .
V. GUY V. STATE. [Defendant had originally] argue[d] at pages 11-13 of his July 31, 2017 response that Guy v. State, 82 A.3d 710 (Del. 2013) "is still good law [for the proposition that the pre-June 4, 2014 provisions of Rule 61 should govern this case] and provides this Court an avenue by which to consider [Defendant's] claims." [Defendant] is incorrect.
The Delaware Supreme Court on July 31, 2017 definitively rejected this contention. In Coles v. State, 2017 WL 3259697, at *2 (Del. July 31, 2017), the [Delaware] Supreme Court ruled: ". . . this Court's decision in Guy v. State, which was decided before the substantive amendments to Rule 61 in June 2014, has no applicability to his case." Coles is binding on this trial court, and it holds that Guy has no application to Rule 61 filings after June 4, 2014.

         Any reliance by [Defendant] on Guy now is unavailing. The dicta in Guy about ineffective assistance of post-conviction counsel is no basis for [Defendant] to attack the actions of his prior Rule 61 counsel. Guy is not still good law.[7]

         B. Defendant's Contentions

         First, Defendant argues that both his Amended Second Motion and Original Second Motion before this Court are "designed to 'further the policies of federal-state comity and judicial economy."[8] Defendant contends that by "[Respecting the principles of comity, [he] is now simply affording the Delaware courts the opportunity to correct the constitutional violations underlying his convictions, many of which this Court has never heard."[9] Defendant implicitly seems to argue that the filing of motions for post-conviction relief upon "return to state court" furthers "comity" between the Delaware courts and the federal courts.[10]

         Second, Defendant asserts that "this Court should not deem his [current] Rule 61 motion as second of successive[]" because "when a defendant is resentenced, he or she is confined pursuant to a new judgment even if the adjudication of guilt is undisturbed."[11]

         Third, Defendant contends that "[t]he most recent version of Rule 61 (June, 2014) [] neglects the mandates of due process and equity to which this Court must adhere."[12] Defendant points out that "[i]n 2005, when [Defendant] filed his initial Rule 61 motion ... if a claim had not been raised in a prior post-conviction proceeding or had been previously adjudicated, Rule 61 explicitly allowed the court to consider the claim in the interest of justice."[13] Defendant also identifies that "[s]imilarly, if a defendant raised a colorable claim that there was a miscarriage of justice, Rule 61 again explicitly allowed the court to consider the claim, even if it was untimely or had not been raised in a prior proceeding."[14] Defendant requests that this Court apply the pre-amendment Rule 61 in order to afford Defendant a "safety valve[, ]" "safeguard[, ]" or "fail-safe."[15]

         Fourth, Defendant argues that he was deprived of his rights to due process when he "received no notice of [the June 4, 2014 Rule 61 amendment]."[16] Defendant contends that when "the Superior Court issued an order amending Rule 61 by . . . removing references to [the] equitable exceptions to its procedural bars[, ]" Defendant should have been "provided notice and an opportunity 'to be heard'" because he is a '"part[y] whose rights are . . . affected[.]'"[17]

         Fifth, Defendant contests the State's use of Collins, distinguishing it factually.[18] Defendant argues that because both of the defendants in Collins and Coble pled guilty, they "waiv[ed] numerous appellate rights."[19] Defendant contends that because Defendant did not accept a guilty plea, he "is entitled to full appellate review of his case, ...


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