United States District Court, D. Delaware
Payne. Pro Se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware
Department of Justice, Wilmington, Delaware. Attorney for
U.S. DISTRICT JUDGE
before the Court is an Application For A Writ Of Habeas
Corpus Pursuant To 28 U.S.C. § 2254 filed by Petitioner
Ronald Payne ("Petitioner"). (D.L 3) The State has
filed an Answer in Opposition. (D.I. 11) For the reasons
discussed, the Court will dismiss the Petition as time-barred
under by the limitations period prescribed in 28 U.S.C.
January 1988, Petitioner was indicted on two counts of
assault in a detention facility and one count of possession
of a deadly weapon during the commission of a felony
("PDWDCF"). See Payne v. State, 82 A.3d
730 (Table), 2013 WL 6411598, at *1 Del. Dec. 6, 2013).
Petitioner's jury trial started in May 1988, but the
Delaware Superior Court declared a mistrial on May 4, 1988
after the jury failed to reach a verdict. Id. at *1.
Following a re-trial in November 1988, a Delaware Superior
Court jury found Petitioner guilty of one count of assault in
a detention facility and one count of PDWDCF. He was
sentenced as a habitual offender to life in prison with the
possibility of parole. Id. The Delaware Supreme
Court affirmed that decision. See Payne v. State,
577 A.2d 754 (Table), 1990 WL 84673 (Del. May 29, 1990).
filed his first motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61
motion") on May 25, 1993. The Superior Court denied the
motion on December 1, 1993, and the Delaware Supreme Court
affirmed that decision on March 9, 1994. See Payne v.
State, 640 A.2d 655 (Table), 1994 WL 91244 (Del. Mar. 9,
August 6, 1997, the Board of Parole denied Petitioner's
application for parole, and made him eligible to re-apply
after August 2003. (D.L 11 at 2) Petitioner has not
re-applied for parole. (D.I. 11 at 2 n.3)
filed his second Rule 61 motion on March 7, 2001. The
Superior Court denied the motion, and he did not appeal that
decision. See State v. Payne, 2001 WL 755347 (Del.
Super. Ct. June 29, 2001); D.I. 11 at 2. Petitioner filed his
third Rule 61 motion on March 22, 2013, which the Superior
Court denied on April 23, 2013. See State v. Payne,
Case No. 880000107DI, Order, Streett, J. (Del. Super Ct. Apr.
23, 2013). The Delaware Supreme Court affirmed that decision
on December 6, 2013. See Payne, 2013 WL 6411598, at
*2 (Del. Dec. 6, 2013).
instant Petition is dated November 2014, and asserts two
grounds for relief: (1) defense counsel provided ineffective
assistance by failing to argue that the State engaged in
prosecutorial misconduct by improperly altering Counts One
and Three of the indictment and also by failing to
demonstrate Petitioner's actual innocence; and (2) the
State violated Petitioner's right to due process and the
ex post facto clause by retroactively eliminating
his non-discretionary good time release credits pursuant to
the Delaware Supreme Court's decision in Evans v.
State, 872 A.2d 539 (Del. 2005) ("Evans
II). (D.I. 3 at 5, 7)
ONE YEAR STATUTE OF LIMITATIONS
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") was signed into law on April 23, 1996. 28
U.S.C. § 2244(d)(1). AEDPA prescribes a one-year period
of limitations for the filing of habeas petitions by state
prisoners, which begins to run from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...