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State v. Desmond

United States District Court, D. Delaware

December 11, 2018

STATE OF DELAWARE, Plaintiff/Respondent,
v.
CHRISTOPHER R. DESMOND, Defendants/Petitioner.

         Delaware Supreme Court No. 383, 2018 Superior Court of the State of Delaware in and for New Castle County Crim. A. No. 91009844DI

          Christopher R. Desmond, Defendant/Petitioner, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro se Plaintiff.

          MEMORANDUM OPINION

          NOREIKA, U.S. DISTRICT JUDGE.

         Defendant/Petitioner Christopher R. Desmond ("Defendant") filed a notice of removal on August 21, 2018 of State v. Desmond, Delaware Supreme Court No. 282, 2018 and Delaware Superior Court Crim. ID No. 91009844DI. (D.I. 3). He removed the matter pursuant to 28 U.S.C. § 1455 which sets forth the procedure for removal of criminal prosecutions. Defendant appears pro se and has been granted leave to proceed in forma pauperis, but he paid the filing fee. The Court proceeds to screen the case pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). For the reasons discussed below, the Court will summarily remand the matter to the Delaware Supreme Court and/or the Superior Court of the State of Delaware in and for New County.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Following are the facts set forth in the Superior Court's July 10, 2018 Order denying Defendant's eleventh motion for postconviction relief. See State v. Desmond, 2018 WL 3409916, at *1 (Del. Super. July 10, 2018) (footnotes omitted):

1. Defendant was convicted in November 1992 of Robbery First Degree and related crimes. The factual and procedural history of both the case and the "plethora" of subsequent postconviction actions are incorporated by reference from the Court's opinion issued January 5, 2011. For an overview of Defendant's first six motions for postconviction relief, see State v. Desmond, 2011 WL 91984 (Del. Super. Ct. Jan. 5, 2011). In that opinion, the Court procedurally barred Defendant's seventh motion for postconviction relief by determining that Defendant's claims were not asserted in prior proceedings or were previously adjudicated.
2. Subsequently, this Court summarily dismissed Defendant's eighth motion for postconviction relief on March 7, 2012, finding that Defendant's eighth motion was procedurally barred. The Delaware Supreme Court affirmed that decision on August 9, 2012.
3. On February 26, 2013, this Court denied Defendant's ninth motion for postconviction relief as procedurally barred as untimely and repetitive. As a consequence, Defendant's motion for appointment of counsel was denied as moot.
4. In 2014, this Court deemed three filings listed below to be "subsequent motions pursuant to Superior Court Criminal Rule 61 for Postconviction Relief."
1. October 7, 2013: Motion to Amend Defendant's Correction of Illegal Sentence.
2. October 14, 2013: Motion to Amend Original Dismissal Motion DI29, DI 31 Pursuant [sic] Superior Court Civil Rule 15(c), (d) and Superior Court Criminal Rules of Procedure Rule 57(d).
3. October 14, 2013: Motion to Amend Pursuant to the Superior Court Criminal Rule 61(e) and 61(b)(6) Appointment of Counsel for the Unresolved D.I. 64.
As a result, this Court denied the motions (interpreted as the tenth motion for postconviction relief) as repetitive pursuant to Rule 61(i)(2) and procedurally ...

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