IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 0002019767

KUSHAL KALPAN SHAH,
f.k.a. GERRON LINDSEY,
Defendant.

Date submitted: April 25, 2017
Date decided: August 23, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S ELEVENTH MOTION FOR POSTCONVICTION
RELIEF AND MOTION FOR APPOINTMENT OF COUNSEL

Delaware Department of Justice, 820 N. French St. 7th Floor, Wilmington, DE,
19801.

Kushal K. Shah, f.k.a. Gerron Lindsey, pro se.

MANNING, Commissioner:

This 23rd day of August, 2017, upon consideration of defendant Kushal K.
Shah’s motion for postconviction relief (hereinafter the “Motion”), I find and
recommend the following:

Procedural History

Shah pled guilty but mentally ill on April 9, 2002 to one count of Murder in
the First Degree. He Was thereafter sentenced to Life in prison Without the
possibility of parole. Almost immediately after pleading guilty Shah moved to
Withdraw his guilty plea_a request that Was repeatedly denied. Since that time,
Shah has ceaselessly litigated in an unsuccessful effort to undo his guilty plea. The
docket in this case reflects that the instant Motion, filed on April 18, 2017, is Shah’s
eleventh motion for postconviction relief.

Shah’s claims for postconviction relief, quoted verbatim, are as follows:

Ground One: Miller v. Alabama violation. Movant’s sentence did not

meet constitutional standards because there Was no
consideration of his immature brain development.

Ground TWo: Ineffective Assistance of Counsel. This claim is as

Well based on the decision in Miller v. Alabama
because counsel failed to consider Movant’s youth

and lack of brain development at the time of the
offense.

An_alys_is

It is well established that he procedural requirements of Superior Court
Criminal Rule 61 must be addressed before considering the merits of any argument.l

Shah’s Motion was filed on April 18, 2017, over 14 years from the date his
conviction became final. Therefore, pursuant to Rule 6l(i)(l), the Motion is
untimely. Additionally, this is Shah’s eleventh motion for postconviction relief and
it is therefore a successive motion subject to the procedural requirements of Rule
6l(i)(2). Because Shah’s claims do not allege with particularity any new evidence
that creates a strong inference of his actual innocence, nor a new claim of
constitutional law that is retroactive to his case, he has failed to meet the pleading
requirements of Rule 6l(i)(2).

In his Motion, Shah cites to Miller v. Alabama, 562 U.S. 460 (2012), as the
basis for his argument. In Miller, the Unites States Supreme Court held that the
Eighth Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile homicide offenders The facts in this case are that
Shah pled guilty and was sentenced as an adult.2 Even assuming what Shah’s argues

is true-that counsel failed to consider Movant’s youth and lack of brain

 

1 See Younger v. State, 580 A.2d 552, 556 (Del. 1990).

2 As part of his Motion, Shah conceded that “on the day of the offense l had
reached the chronological age of adulthood (18). However, I was merely 21 days
over 18.”

development at the time of the offense-the holding in Mz`ller does not reach as far
as Shah would like. Thus, Miller is not applicable to Shah’s case.
Finally, Shah’s motion for appointment of counsel should be denied as it fails
to meet the pleading requirements of Rule 6l(d)(2).
Conclusion
For the foregoing reasons, Shah’s Motion is procedurally barred and should
be Summarily Dismissed pursuant to Rule 6l(d)(5).

IT IS SO RECOMMENDED.

Bradley V. B ing,

Commissioner

oc: Prothonotary
cc: Defendant via first class mail

