Submitted: October 3, 2017
State's "Second Motion for Summary Dismissal of
Amended Second Post-Conviction Relief Motion."
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.
this Court is the State's Second Motion for Summary
Dismissal of Defendant's Amended Second Post-Conviction
Relief Motion filed May 23, 2017. 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.
PROCEDURAL HISTORY 
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
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
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
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).
THE PARTIES' CONTENTIONS
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 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. 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, 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, 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, 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, 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, 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,
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.
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.
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.
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." 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." 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
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."
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." 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." 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." Defendant requests that this Court apply
the pre-amendment Rule 61 in order to afford Defendant a
"safety valve[, ]" "safeguard[, ]" or
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]." 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[.]'"
Defendant contests the State's use of Collins,
distinguishing it factually. Defendant argues that because
both of the defendants in Collins and Coble
pled guilty, they "waiv[ed] numerous appellate
rights." Defendant contends that because
Defendant did not accept a guilty plea, he "is entitled
to full appellate review of his case, ...