Submitted: June 14, 2018
REPORT AND RECOMMENDATION THAT:
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.
Shah, f/k/a Gerron M. Lindsey, pro se.
KATHARINE L. MAYER, COMMISSIONER
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.
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
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. 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
this, Defendant filed an eleventh Motion for Postconviction
Relief.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
14, 2018, Defendant filed his twelfth Motion for
Postconviction Relief 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.
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." 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. On July 31, 2018,
Defendant filed a Motion to Amend Petition for Postconviction
Relief (the "Amendment"). 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.
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
considering the merits of a defendant's post-conviction
claims, the Court must first determine whether there are any
procedural bars to the motion.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 ...