IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

V. Cr. ID. No. 0002019767

KUSHAL SHAH, f/k/a
GERRON M. LINDSEY,

V\/\_/\./\./\./\/\./\/\./\/

Defendant.

Submitted: June 14, 2018
Decided: December 5, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION THAT:

(I) DEFENDANT’S REQUEST TO FILE TWELFTH MOTION
FOR POSTCONVICTION RELIEF BE DENIED;

(II) DEFENDANT’S TWELFTH MOTION FOR
POSTCONVICTION RELIEF BE SUMMARILY DISMISSED;

(III) DEFENDANT’S MOTION FOR APPOINTMENT OF
COUNSEL BE DENIED; AND

(IV) DEFENDANT’S MOTION TO AMEND PETITION FOR
POSTCONVICTION RELIEF BE DENIED AS MOOT

Elizabeth McFarlan, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.

Kushal Shah, f/k/a Gerron M. Lindsey, pro se.

MAYER, Commissioner

This 5"‘ day of December, 2018, upon consideration of Defendant’s various
pleadings related to his TWelfth Motion for Postconviction Relief and the record in
this matter, the following is my Report and Recommendation.

BACKGROUND

Defendant, Kushal Shah, f/k/a Gerron Lindsey, plead guilty but mentally ill
in June of 2002 to one count of first degree murder. Since then, Defendant has
inundated the State and Federal Courts with Petitions for a Writ of Habeas Corpus,
Writs of Mandamus, appeals, motions for reconsideration, motions to correct illegal
sentences, motions to Withdraw guilty pleas, and no less than eleven (l l) motions
for postconviction relief. Throughout these filings, Defendant challenged the
performance of trial counsel on at least four (4) occasions and presented claims of
“newly discovered evidence” on at least two (2) previous occasions. Defendant Was
represented by counsel for several of his post-conviction filings.

On September lO, 2015, the Superior Court issued an Order adopting a
Commissioner’s Report and Recommendation that Defendant’s Tenth Pro Se
Motion for Postconviction Relief should be denied.l In the Tenth Order, the Superior
Court accepted the Commissioner’s recommendation that Defendant should be

barred from filing future motions due to an abuse of the system by filing repetitive

 

' State v. Lindsey, 2015 WL 5675838 (Del. Super. Sept. 10, 2015) (the “Tenth
Order”).

and meritless motions. The Tenth Order concludes by prohibiting Defendant from
filing further motions for postconviction relief unless approved by the Court. The
Tenth Order was affirmed by the Delaware Supreme Court.2
Despite this, Defendant filed an eleventh Motion for Postconviction Relief.3
On appeal from the denial of the Eleventh Motion, the Delaware Supreme Court
reminded Defendant that the Superior Court had enjoined him from filing further
motions for postconviction relief unless approved by the Court.4
On June 14, 2018, Defendant filed his twelfth Motion for Postconviction
Relief5 and presented one argument, that is further bolstered by way of a legal
memorandum:
Newly discovered evidence based on ineffective
assistance of counsel. I recently learned via freedom of
information act that a Wilmington Police officer was
identified in the live line up as the Shooter.

Defendant’s Twelfth Motion argues he saw a picture of an individual named Caro

Spearman in the newspaper, who he learned is a police officer, and “realized that

 

2 Shah v. State, 2015 WL 9436813 (Del. Dec. 22, 2015).

3 State v. Shah, 2017 WL 5075368 (Del. Super. Oct. 31, 2017) (the “Eleventh
Motion”).

4 Shclh v. Sl‘af€, 2018 WL 211()995 (D€l. May 7, 2018).
5 D.l. # 244 (the “Twelfth Motion”).

Caro Spearman was identified as the shooter in his live lineup.”6 Along with the
Twelfth Motion, Defendant submitted a letter that states, “I am requesting the court’s
permission to file the enclosed petition for postconviction relief.” Defendant also
filed a Motion for Appointment of Counsel.7 On July 31, 2018, Defendant filed a
Motion to Amend Petition for Postconviction Relief (the “Amendment”).8 By way
of the Amendment, Defendant argues the United States Supreme Court’s decision in
Lee v. United States, 137 S. Ct. 1958 (2017) (hereinafter “Lee”) applies retroactively
to his case and in particular he asks for it to apply to his first motion for
postconviction relief and his eighth motion for postconviction relief.9

For the following reasons, l recommend that Defendant’s request to file the
Twelfth Motion be denied, that the Twelfth Motion be summarily dismissed, that the
Motion for Appointment of Counsel be denied and that the Amendment be denied

as moot.

 

6 Defendant attaches only a page 2 of what appears to be a report from an

Investigator (See Exhibit 40 to D.I. # 244). lt is not dated and is clearly incomplete
7 D.I. # 245.
8 D.I. # 250.

9 See D.I. # 249 referencing Docket Nos. 64, 172.

DEFENDANT’S RULE 61 MOTION

Before considering the merits of a defendant’s post-conviction claims, the
Court must first determine whether there are any procedural bars to the motion.10
After reviewing Defendant’s submissions, it is evident that even if the Court were to
consider the Twelfth Motion, pursuant to Super. Ct. Crim. R. 61(d)(5) the motion
may be summarily dismissed because it is procedurally barred and it plainly appears,
after considering the record in the case and prior proceedings, that the movant is not
entitled to relief. As such, the Court should not consider the merits of the claims.ll
I. Defendant’s Twelfth Motion is untimely

Defendant’s Twelfth Motion is procedurally barred by Super. Ct. Crim. R.
61(i)(1) for having been filed more than one year after the conviction became final.12
Defendant’s Twelfth Motion, having been filed almost sixteen (16) years after the

conviction became final, is untimely. Any ineffective assistance of counsel claim is

 

10 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

ll Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Paul v. State, 2011
WL 3585623 (Del. Aug. 15, 2011), at *1 (“Delaware law provides that the Superior
Court must first consider whether the defendant has satisfied the procedural
requirements of Rule 61 before considering the merits of his postconviction
motion.”)

'2 Defendant did not submit a direct appeal and therefore his conviction became
final in July of 2002. Super. Ct. Crim. R. 61(m)(1).

likewise subject to the timeliness bar of Rule 61(i)(1) and therefore, Defendant’s
claims in this regard have been asserted too late.
II. Defendant’s challenge to the lineup was Waived

Prior to entering into the plea, Defendant was aware that the victim, as well
as other witnesses, were unable to make a positive identification from the
photographic line-up. Although Defendant claims he recently learned that
Spearman, who was identified in the live line-up, was a police officer, that
information is not relevant to the analysis. Regardless of Spearman’s profession,
Defendant was aware that the “Second Witness” that viewed the line-up identified
the person in “Position 4” (Spearman) and not Defendant. Two other witnesses
identified Defendant as the shooter. Any claims that now purport to challenge the
evidence against him, including the line-up and the results therefrom, having not
been previously asserted, despite many opportunities to do so, are now deemed
waived pursuant to Super. Ct. Crim. R. 61(i)(3). Defendant has not established cause
for his failure to raise these claims sooner nor prejudice from a violation of his

rights.13

 

13 Super. Ct. Crim. R. 61(i)(3)(A) & (B).

III. Defendant’s Twelfth Motion does not meet the standard of “newly
discovered evidence” or a newly applicable constitutional rigm

As this is Defendant’s twelfth motion for postconviction relief, the claims
should only be considered if the motion either (i) pleads with particularity that new
evidence exists that creates a strong inference that the movant is actually innocent
in fact of the acts underlying the charges of which he was convicted; or (ii) pleads
with particularity a claim that a new rule of constitutional law, made retroactive to
cases on collateral review by the United States Supreme Court or the Delaware
Supreme Court, applies to the movant’s case and render the conviction or death
sentence invalid.14 All grounds for relief available to a movant are required to have
been set forth in the first motion for relief under Super. Ct. Crim. R. 61.15

Defendant argues “newly discovered evidence” demonstrates trial counsel
was ineffective for not challenging the lineup or notifying him that the police officer
was identified in the lineup. This Court recently examined both State and Federal
precedent and set forth a standard for determining what constitutes “new evidence”
in the context of Super. Ct. Crim. R. 61(d)(2)(i).16 A defendant must: (1) persuade

the court that no juror acting reasonably would have voted to find him guilty beyond

 

14 Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).
15 Super. Ct. Crim. R. 61(i)(2)(ii).

16 State v. Sykes, 2017 WL 6205776, at * 5-6 (Del. Super. Dec. 7, 2017).

a reasonable doubt; (2) present new reliable evidence that was not available at the
time of trial; and (3) demonstrate that the evidence could not have been discovered
earlier through the exercise of due diligence.17 Defendant’s Twelfth Motion fails to
meet the required standard for presentation of new evidence.

By way of Defendant’s Third Motion for Postconviction Relief, while arguing
ineffective assistance of counsel for failure to investigate witnesses, counsel for
Defendant highlighted the failure of the victim and witnesses to make a positive
identification18 Although he now argues a police officer was identified in the live
line-up, it does not alter the fact that he knew that at least one witness had not
positively identified him as the shooter. That information was available to
Defendant prior to entry into the plea and Defendant plead guilty and waived the
right to challenge the State’s evidence against him. Even accepting the piecemeal
report submitted as Exhibit 40 by Defendant, two witnesses identified Defendant as
the shooter, and one identified the person in “Position 4” which was Spearman. The
fact that Spearman is a police officer does not change the import of the
identifications nor does it create a strong inference that Defendant is actually

innocent of the acts for which he was convicted.

 

17 State v. Flowers, 2018 WL 1169644 (Del. Super. Mar. 6, 2018) (quoting Phlipot
v. Johnson, 2015 wL 1906127, ar *4(D.De1. 2015)).

18 See Lz`na’sey v. State, Case No. 375, 2007 at Docket No. 7, A80.

8

Defendant’s Amendment attempts to seek reconsideration of his past motions
by citing Lee.19 In Lee, the United States Supreme Court, citing Strickland” (a 1984
case), held that Lee received ineffective assistance of counsel when his attorney
incorrectly advised him that pleading guilty would not result in his deportation.21
This decision did not create a new rule of constitutional dimensions applicable
retroactively to Defendant’s case. Rather, the United States Supreme Court applied
the Stricklana’ standard to the unique facts of Lee’s case and found that the Sixth
Amendment guarantees a defendant the effective assistance of counsel even if a
defendant pleads guilty in a case that was likely to resolve in a conviction if it

l.22 Crucial to the present analysis is that the decision observed the

proceeded to tria
difference between Lee’s case and other plea cases. If a defendant argues that his
decision about going to trial turned on the prospects of success (as Defendant argues

here), then he must show that he would have been better off going to trial absent

attorney error.23 In fact, “Courts should not upset a plea solely because of post hoc

 

19 Notably, Lee was decided in June of 2017 - while Defendant’s Eleventh Motion
for Postconviction Relief was pending before the Superior Court and before his
appeal of that decision to the Delaware Supreme Court.

20 Stricklana’ v. Washington, 466 U.S. 688 (1984).
21 137 S. Ct. 1958.
22 Ia'. at 1964.

23 Ia’. at 1965.

assertions from a defendant about how he would have pleaded but for his attorney’s
deficiencies.”24 In Lee, the difference was that the defendant plead guilty solely to
avoid deportation, which counsel wrongly advised him was not possible. Here,
Defendant does not attempt to argue that the determinative issue for his plea was the
lineup and identification As such, Lee does not grant Defendant relief from the
procedural bars.
IV. Defendant is prohibited from filing meritless motions

This Court and the Delaware Supreme Court have admonished Defendant for
his repetitive, meritless and frivolous filings. The Twelfth Motion is another
attempt, sixteen years too late, to challenge the evidence against him and should be
summarily dismissed on this basis as well.
Motion for Appointment of Counsel

Pursuant to Superior Court Criminal Rule 61(e)(3), if the conviction resulted
from a plea of guilty or nolo contendere, the court “may” appoint counsel if it is
determined that (i) defendant is presenting a timely filed first motion for
postconviction relief; (ii) the conviction has been affirmed by final order upon direct
appellate review, or review was unavailable; (iii) the motion sets forth a substantial

claim that the movant received ineffective assistance of counsel; (iv); granting the

 

24 Id. at 1967.

10

motion would result in vacatur of the judgment of conviction for which the movant
is in custody; and (v) specific exceptional circumstances warrant the appointment of

counsel.

This is not Defendant’s first motion for postconviction relief, nor was it timely
filed. Defendant did not seek appellate review of his conviction and no exceptional

circumstances were presented to warrant appointment of counsel.

F or all of the foregoing reasons, the request to file the Twelfth Motion for
Postconviction Relief should be DENIED; Defendant’s Twelfth Motion for
Postconviction Relief should be SUMMARILY DISMISSED; the Motion for
Appointment of Counsel should be DENIED; and the Motion to Amend should be
DENIED AS MOOT.

IT IS SO RECOMMENDED.

Q@”s\\

Commissimer§lTii/€U Mayer

oc: Prothonotary
cc: Elizabeth McFarland, Esquire
Kushal Shah, f/k/a Gerron Lindsey

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