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Dunbar v. Wesley

United States District Court, D. Delaware

March 28, 2018

MICHAEL DUNBAR, Petitioner,
v.
STEVEN WESLEY, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

          Michael Dunbar. Pro Se Petitioner.

          Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

          MEMORANDUM OPINION

          STARK, U.S. District Judge:

         I. INTRODUCTION

         Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 and two Amended Applications (hereinafter referred to collectively as "Petition") filed by Petitioner Michael Dunbar ("Petitioner"). (D.I. 1; D.I. 3; D.I. 9) The State has filed an Answer in Opposition. (D.I. 12) For the reasons discussed, the Court will deny the Petition.

         II. BACKGROUND

         In April 2007, a New Castle grand jury indicted Petitioner on charges of first degree murder and possession of a deadly weapon during the commission of a felony. (D.I. 12 at 2; D.I. 14 at 1, Entry No. 2) On October 8, 2008, Petitioner pled guilty but mentally ill to the lesser included offense of manslaughter, in exchange for which the State dismissed the balance of the indictment. (D.I. 12 at 2; D.I. 14 at 17, Entry No. 64) The Superior Court sentenced Petitioner on December 12, 2008 to fifteen years of imprisonment, suspended after five years for decreasing levels of supervision. (D.I. 12 at 2)

         Petitioner did not appeal his conviction. Instead, he filed the following post-conviction motions: (1) a motion for modification of sentence on August 11, 2009, which the Superior Court denied on August 20, 2009 (D.I. 14 at 19, Entry Nos. 68, 69); (2) a motion for reduction of sentence on August 27, 2009, which the Superior Court denied on September 9, 2009 (D.I. 14 at 19, Entry Nos. 70, 71); (3) a second motion for reduction of sentence on October 20, 2009, which the Superior Court denied on November 16, 2009 (D.I. 14 at 19, Entry Nos. 72, 73); (4) a third motion for reduction of sentence on July 25, 2011, which the Superior Court denied on July 28, 2011 (D.I 14 at 19, Entry Nos. 74, 75); and (5) a state petition for writ of habeas corpus on August 11, 2011, which the Superior Court denied on August 12, 2011 (D.I. 14 at 21, Entry Nos. 76, 77). Petitioner did not appeal any of those decisions.

         On May 3, 2012, the Superior Court modified Petitioner's sentence by decreasing his level of probation and scheduling a status of treatment ("TASC") hearing. (D.I. 14 at 21, Entry No. 78; D.I. 14 at 116-18) On June 28, 2012, the Superior Court found Petitioner had violated his probation ("VOP") and sentenced him to ten years at Level V, suspended for five years at Level III. (D.I. 14 at 21, Entry No. 79; D.I. 12 at 2) On August 31, 2012, the Superior Court found Petitioner had violated the terms of his VOP for a second time ("second VOP"), and sentenced him to nine and one-half years imprisonment, with credit for twenty-eight days previously served, suspended upon completion of CREST for Level III probation. (D.I. 12 at 2) As a result of a TASC status conference, the Superior Court modified the second VOP sentence on May 30, 2013 by removing the CREST requirement and placing Petitioner on Level III probation. Id. On October 31, 2013, the Superior Court found Petitioner had violated the terms of his probation for a third time ("third VOP"), and sentenced him to nine and one-half years imprisonment at Level V, with credit for sixty days previously served, suspended upon successful completion of the KEY program for four years at Level IV CREST, suspended in turn upon successful completion of that program for four years at Level III probation. Id. The Delaware Supreme Court affirmed the Superior Court's decision. See Dunbar v. State, 91 A.3d 561 (Table), 2014 WL 1512797 (Del. Apr. 15, 2014).

         Thereafter, Petitioner filed five state habeas petitions, all of which were denied by the Superior Court. (D.I. 12 at 3) The Superior Court also denied Petitioner's motions for sentence correction and modification. Id.

         Petitioner filed a § 2254 Petition in November 2014, an Amended Petition in December 2014, and another Amended Petition in April 2015[1] (hereinafter referred to as "Petition"). (D.I. 1; D.I. 3; D.I. 9) Although the Petition technically asserts five Claims, the Claims can be distilled down to two arguments: (1) Petitioner's original underlying conviction is illegal because he did not knowingly and voluntarily enter his guilty but mentally ill plea; and (2) the Superior Court incorrectly calculated the sentence it imposed for his third VOP. The State filed an Answer, asserting that the illegal conviction Claim should be denied as time-barred, and the improper third VOP sentence Claim should be denied for failing to state an issue cognizable on habeas review. (D.I. 12)

         III. DISCUSSION

         A. Illegal Underlying Conviction

         Petitioner appears to allege that his underlying conviction is illegal because he did not knowingly and voluntarily enter his guilty but mentally ill plea. (D.I. 1 at 4; D.I. 9 at 2-5) The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prescribes a one-year period of limitations for the ...


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