United States District Court, D. Delaware
Kesselee Kanda. Pro se Petitioner.
Gregory E. Smith, Deputy Attorney General of the Delaware
Department of Justice, Wilmington, Delaware. Attorney for
U.S. DISTRICT JUDGE.
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.
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.
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).
GOVERNING LEGAL PRINCIPLES
Exhaustion and Procedural Default
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 ...