United States District Court, D. Delaware
Smith. Pro se Petitioner.
L. Arban, Deputy Attorney General of the Delaware Department
of Justice, Wilmington, Delaware. Attorney for Respondents.
MEMORANDUM OPINION 
CONNOLLY, UNITED STATES DISTRICT JUDGE:
before the Court is Petitioner David Smith's
("Petitioner") Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254. (D.I. 1) The State filed a
Motion for Leave to File a Motion to Dismiss (D.I. 7)
simultaneously with the Motion to Dismiss (D.I. 7-1). The
Court granted the State's Motion for Leave to File a
Motion for Dismiss (D.I. 12), and provided Petitioner with an
opportunity to respond. For the reasons discussed, the Court
will grant the State's Motion to Dismiss and deny the
Petition as barred by the limitations period prescribed in 28
U.S.C. § 2244.
facts leading to Petitioner's arrest and conviction are
On April 22, 2013, Karen Trump ("Trump") contacted
the New Castle County Police Department ("NNCPD")
because her three year old daughter had disclosed that her
uncle, [Petitioner], had pulled down her pants, bent her over
her bed, and touched her butt. The victim told her mother
that [Petitioner] then spread her butt apart and that it hurt
her. The victim was interviewed at the Child Advocacy Center
and again stated that [Petitioner] hurt her in her bedroom
when he used his hands to pull her butt apart.
On May 1, 2003, New Castle County Detective Connie Jackson
("Detective Jackson") took [Petitioner] into
custody and read him Miranda warnings. [Petitioner]
waived his rights and agreed to speak to Detective Jackson.
[Petitioner] admitted that he had pulled the victim's
pants down and pulled her butt apart. [Petitioner] further
discussed several other incidents including occasions where
he was molested as a child, incidents when he was a child and
engaged in sexual acts with other children, and other
occasions when he was either a teenager or an adult and had
molested several other children.
At the time of the incident, [Petitioner] was a registered
sex offender and on probation from a 1996 conviction for
Unlawful Sexual Intercourse in the Third Degree. As a result,
Probation and Parole filed a Violation of Probation report
alleging that [Petitioner] had violated the terms and
conditions of his probation by committing a new sexual
offense against a child and for having contact with a child
under the age of eighteen.
State v. Smith, 2016 WL 3342578, at *2 (Del. Super.
Ct. June 7, 2016). On June 16, 2003, Petitioner was indicted
and charged with second degree rape and second degree
unlawful sexual contact. Id. at *1. On September 10,
2003, Petitioner pled guilty to the lesser-included offense
of third degree rape. Id. As part of his plea
bargain, Petitioner also admitted that he violated his
probation by committing a new sexual offense against a child.
Id. On February 6, 2004, the Superior Court
sentenced Petitioner to a total of 25 years and 6 months at
Level V incarceration, suspended after 20 years and 6 months
for decreasing levels of supervision. Id. Petitioner
did not appeal.
5, 2004, Petitioner filed a motion for sentence reduction,
which the Superior Court denied on June 16, 2004. (D.I. 13 at
2) Petitioner did not appeal that decision.
filed a pro se motion for post-conviction relief
pursuant to Delaware Superior Court Criminal Rule 61
("Rule 61 motion") on October 17, 2013. The
Superior Court denied that motion on June 7, 2016. See
Smith, 2016 WL 3342578, at *8. Petitioner filed a notice
of appeal, and the Delaware Supreme Court dismissed the
appeal as untimely on July 27, 2016. See Smith v.
State, 145 A.3d 429 (Table), 2016 WL 4097505, at *1
(Del. July 27, 2016).
2016, Petitioner filed the instant Petition asserting the
following grounds for relief: (1) defense counsel provided
ineffective assistance by failing to file a direct appeal;
(2) defense counsel provided ineffective assistance during
the pre-plea and plea process by failing to provide
documentation concerning Petitioner's psycho-forensic
evaluation and determination that he was competent to enter a
guilty plea; and (3) Petitioner did not voluntarily and
knowingly enter his guilty plea because he was taking the
antipsychotic drug Zyprexa during the pre-plea and plea
process stages. (D.I. 1 at 3-5). The State asserts that the
Petition should be dismissed for being time-barred. (D.I. 13)