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Ayers v. Akinbayo

United States District Court, D. Delaware

March 25, 2019

DASHAWN AYERS, Petitioner,
v.
KOLAWOLE AKINBAYO, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

          Dashawn Ayers. Pro se Petitioner.

          Kathryn Joy Garrison, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.

          MEMORANDUM OPINION

          STARK, U.S., JUDGE

         Pending before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition") filed by Petitioner Dashawn Ayers ("Petitioner"). (D.I. 3) The State has filed an Answer in opposition. (D.I. 1) For the reasons discussed, the Court will dismiss the Petition and deny the relief requested.

         I. BACKGROUND

         The facts leading to Petitioner's arrest and conviction are as follows:

In May and June 2012, the Delaware State Police led a multi-agency law enforcement team that was investigating drug sales in Kent County, Delaware. The team used wiretaps to monitor communications by Galen Brooks, the target of the investigation. On May 26, 2012, the police heard a phone conversation between Brooks and Michael Demby, which led them to believe that a drug deal was about to take place. Based on that call, the police established surveillance at the McKee Crossing Shopping Center, and at Brooks's father's home on Red Oak Drive in Dover. In the next call, the police heard Brooks telling Demby to prepare a package of cocaine and to bring it to the buyer, who would be driving a Dodge Caravan. Brooks told Demby that the price was $2400. The police saw Demby leave the Red Oak Drive home and place a package in the trunk of a Honda parked at the house. Demby and Brooks's brother, James, then got into the Honda and drove off.
At the McKee Crossing Shopping Center, the police saw [Petitioner] seated in a Dodge Caravan in the parking lot. Demby and James arrived in the Honda and parked next to the Caravan. Demby got out of the Honda and got into the Caravan, while James went into a store in the shopping center. After a few minutes, Demby got out of the Caravan and went into the store James had entered. Shortly thereafter, the two men left the store, returned to the Honda, and drove away. [Petitioner], driving the Caravan, also left the parking lot.
One of the officers in the surveillance unit that was following [Petitioner] instructed Delaware State Police Corporal Timothy Valeski to conduct a traffic stop on the Caravan. [Petitioner] produced his license, but when Valeski told him to exit the car, [Petitioner] put the Caravan in gear and fled before the police could search it. Valeski was instructed not to pursue [Petitioner] for public safety reasons.
After the meeting at the shopping center, the police contrived to monitor Brooks' phone conversations. Demby called Brooks and told him that everything had gone well and that he had the money. Brooks told Demby to keep $100 for his participation and to give the remaining $2300 to Valerie Brooks, his mother. Valerie called Brooks a few minutes later to tell him that she received the money. Brooks told his mother to keep $50 for herself.
[Petitioner] turned himself in to the Delaware State Police on June 1, 2012, stating that he knew he had outstanding warrants. The next day, Brooks and Demby had a telephone conversation in which Brooks agreed to give Demby one ounce of cocaine for the good work Demby had done. Police later observed an exchange of money between the two men. On June 14, 2012, the Delaware State Police arrested Demby. A Kent County Grand Jury returned an indictment against [Petitioner], Demby, Brooks, and eleven other individuals. [Petitioner] was charged with one count of Drug Dealing, one count of Aggravated Possession, and one count of Conspiracy Second Degree. Demby was charged with two counts of Drug Dealing, two counts of Aggravated Possession, two counts of Conspiracy Second Degree, one count of Criminal Solicitation Second Degree, and one count of Possession of Drug Paraphernalia.
Before trial, [Petitioner] and Demby unsuccessfully moved to suppress the wiretap evidence. [Petitioner] also filed a Motion to Sever, which was denied. The jury convicted [Petitioner] on all counts. Demby was convicted of one count of Drug Dealing, one count of Aggravated Possession, one count of Conspiracy Second Degree, and one count of Possession of Drug Paraphernalia. He was acquitted on the remaining charges. [Petitioner] and Demby filed separate appeals, which were consolidated for consideration and decision.

Ajers v. State, 97 A.3d 1037, 1038-39 (Del. 2014) (footnotes omitted). The Delaware Supreme Court affirmed Petitioner's convictions on July 21, 2014, but held that the drug dealing and aggravated possession charges merged for purposes of sentencing. See Id. at 1042. As a result, the case was remanded "for the sole purpose of merging the two charges and resentencing." Id. at 1041. On November 5, 2014, the Superior Court resentenced Petitioner to a total of twenty-seven years at Level V incarceration, suspended after eight years for decreasing levels of supervision. (D.I. 11 at 2)

         On June 1, 2015, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion). The Superior Court appointed counsel, but subsequently granted counsel's motion to withdraw. See Ayers v. State, 166 A.3d 103 (Table), 2017 WL 2729563, at *1 (Del. June 23, 2017). The Superior Court denied the Rule 61 motion, and the Delaware Supreme Court affirmed that judgment. Id. at *3.

         II. LEGAL STANDARDS

         A. ...


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