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Kanda v. Metzger

United States District Court, D. Delaware

March 25, 2019

KESSELEE KANDA, Petitioner,
v.
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

          Kesselee Kanda. 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

         Presently pending before the Court is Petitioner Kesselee Kanda's ("Petitioner") Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 1) The State filed an Answer in opposition. (D.I. 7) For the reasons discussed, the Court will dismiss the Petition.

         II. BACKGROUND

         In August 2011, a Delaware Superior Court jury found Petitioner guilty of eleven counts of second degree burglary, eleven counts of second degree conspiracy, nine counts of theft, five counts of criminal mischief, two counts of possession of a firearm with an obliterated serial number, and one count of receiving a stolen firearm. See Kanda v. State, 54 A.3d 256 (Table), 2012 WL 4862590, at *1 (Del. Oct. 12, 2012). Movant moved to dismiss two of the felony theft convictions, which the Superior Court granted. (D.I. 7 at 3) The Superior Court sentenced Petitioner to a total of 143 years and 150 days at Level V incarceration, suspended after eleven and one-half years at Level V incarceration, followed by decreasing levels of supervision. Id. The Delaware Supreme Court affirmed Petitioner's convictions and sentence. See Kanda, 2012 WL 4862590, at *3.

         In November 2012, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), alleging ineffective assistance of counsel. The Superior Court appointed conflict counsel ("post-conviction counsel") to represent Petitioner during the Rule 61 proceeding. (D.I. 7 at 3) Post-conviction counsel moved to withdraw. Id. On June 27, 2014, a Superior Court Commissioner filed a Report and Recommendation recommending that the Rule 61 motion should be summarily dismissed and that post-conviction counsel's motion to withdraw should be dismissed as moot. (D.I. 10-13 at 14) The Superior Court adopted the Report and Recommendation on August 14, 2014, and denied the Rule 61 motion. (D.I. 10-13 at 14-15) The Delaware Supreme Court affirmed that decision. See Kanda v. State, 108 A.3d 1225 (Table), 2015 WL 518830, at *3 (Del. Feb. 5, 2015).

         III. GOVERNING LEGAL PRINCIPLES

         A. Exhaustion and Procedural Default

         Absent exceptional circumstances, a federal court cannot grant habeas relief unless the petitioner has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b); OSullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Vicardv. Connor, 404 U.S. 270, 275 (1971). The AEDPA states, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to ...

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