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State v. Shah

Superior Court of Delaware

December 5, 2018

STATE OF DELAWARE, Plaintiff,
v.
KUSHAL SHAH, f/k/a GERRON M. LINDSEY, Defendant.

          Submitted: June 14, 2018

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT:

         (I) DEFENDANT'S REQUEST TO FILE TWELFTH MOTION FOR POSTCONVICTION RELIEF BE DENIED; (II) DEFENDANT'S TWELFTH MOTION FOR POSTCONVICTION RELIEF BE SUMMARILY DISMISSED; (III) DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL BE DENIED; AND (IV) DEFENDANT'S MOTION TO AMEND PETITION FOR POSTCONVICTION RELIEF BE DENIED AS MOOT

          Elizabeth McFarlan, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Kushal Shah, f/k/a Gerron M. Lindsey, pro se.

          KATHARINE L. MAYER, COMMISSIONER

         This 5th day of December, 2018, upon consideration of Defendant's various pleadings related to his Twelfth Motion for Postconviction Relief and the record in this matter, the following is my Report and Recommendation.

         BACKGROUND

         Defendant, Kushal Shah, f/k/a Gerron Lindsey, plead guilty but mentally ill in June of 2002 to one count of first degree murder. Since then, Defendant has inundated the State and Federal Courts with Petitions for a Writ of Habeas Corpus, Writs of Mandamus, appeals, motions for reconsideration, motions to correct illegal sentences, motions to withdraw guilty pleas, and no less than eleven (11) motions for postconviction relief. Throughout these filings, Defendant challenged the performance of trial counsel on at least four (4) occasions and presented claims of "newly discovered evidence" on at least two (2) previous occasions. Defendant was represented by counsel for several of his post-conviction filings.

         On September 10, 2015, the Superior Court issued an Order adopting a Commissioner's Report and Recommendation that Defendant's Tenth Pro Se Motion for Postconviction Relief should be denied.[1] In the Tenth Order, the Superior Court accepted the Commissioner's recommendation that Defendant should be barred from filing future motions due to an abuse of the system by filing repetitive and meritless motions. The Tenth Order concludes by prohibiting Defendant from filing further motions for postconviction relief unless approved by the Court. The Tenth Order was affirmed by the Delaware Supreme Court.[2]

         Despite this, Defendant filed an eleventh Motion for Postconviction Relief.[3]On appeal from the denial of the Eleventh Motion, the Delaware Supreme Court reminded Defendant that the Superior Court had enjoined him from filing further motions for postconviction relief unless approved by the Court.[4]

         On June 14, 2018, Defendant filed his twelfth Motion for Postconviction Relief[5] and presented one argument, that is further bolstered by way of a legal memorandum:

Newly discovered evidence based on ineffective assistance of counsel. I recently learned via freedom of information act that a Wilmington Police officer was identified in the live line up as the shooter.

         Defendant's Twelfth Motion argues he saw a picture of an individual named Caro Spearman in the newspaper, who he learned is a police officer, and "realized that Caro Spearman was identified as the shooter in his live lineup."[6] Along with the Twelfth Motion, Defendant submitted a letter that states, "I am requesting the court's permission to file the enclosed petition for postconviction relief." Defendant also filed a Motion for Appointment of Counsel.[7] On July 31, 2018, Defendant filed a Motion to Amend Petition for Postconviction Relief (the "Amendment").[8] By way of the Amendment, Defendant argues the United States Supreme Court's decision in Lee v. United States, 137 S.Ct. 1958 (2017) (hereinafter "Lee") applies retroactively to his case and in particular he asks for it to apply to his first motion for postconviction relief and his eighth motion for postconviction relief.[9]

         For the following reasons, I recommend that Defendant's request to file the Twelfth Motion be denied, that the Twelfth Motion be summarily dismissed, that the Motion for Appointment of Counsel be denied and that the Amendment be denied as moot.

          DEFENDANT'S RULE 61 MOTION

         Before considering the merits of a defendant's post-conviction claims, the Court must first determine whether there are any procedural bars to the motion.[10]After reviewing Defendant's submissions, it is evident that even if the Court were to consider the Twelfth Motion, pursuant to Super. Ct. Crim. R. 61(d)(5) the motion may be summarily dismissed because it is procedurally barred and it plainly appears, after considering the record in the case and ...


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