IN THE SUPREME COURT OF THE STATE OF DELAWARE

KUSHAL SHAH f/k/a GERRON §
LINDSEY, §
§ No. 514, 2015
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware,
v. § in and for New Castle County
§
STATE OF DELAWARE, {5 Cr. ID No. 0002019767
§
Plaintiff Below, §
Appellee. §

Submitted: November 2, 2015
Decided: December 22, 2015

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This 22"Cl day of December 2015, upon consideration of the appellant’s
opening brief, the appellee’s motion to afﬁrm, and the record below, it appears to
the Court that:

(1) The appellant, Kushal Shah f/k/a Gerron Lindsey, ﬁled this appeal
from the Superior Court’s denial of his tenth motion for postconviction relief under
Superior Court Criminal Rule 61 (“Rule 61”). The State of Delaware has ﬁled a
motion to afﬁnn the judgment below on the ground that it is manifest on the face

of Shah’s opening brief that his appeal is without merit. We agree and afﬁrm.

(2) The record reﬂects that, in 2002, Shah pled guilty but mentally ill to
Murder in the First Degree. In exchange for his guilty plea, the State agreed not to
seek the death penalty and dismissed other criminal charges pending against Shah.
Shah was sentenced to life imprisonment. Shah did not ﬁle a direct appeal.

(3) Shah has subsequently ﬁled multiple, unsuccessﬁJI motions for
postconviction relief.I On July 14, 2015, Shah ﬁled his tenth motion for
postconviction relief under Rule 61. Shah contended that his counsel was
ineffective. A Superior Court Commissioner recommended denial of the motion
on the grounds that Shah had failed to overcome the procedural bars of Rule 61.
The Superior Court adopted the Commissioner’s report and recommendation and
denied Shah’s motion for postconviction relief. This appeal followed.

(4) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de nova.2 The procedural requirements of
Rule 61 must be considered before any substantive issues are addressed.3 In his

opening brief, Shah contends that his ineffective assistance counsel claim

' See, e.g., Lindsey v. State, 2014 WL 98645 (Del. Jan. 9, 2014) (afﬁrming Superior Court’s
denial of eighth motion for postconviction relief); Lindsey v. State, 2009 WL 243399 (Del. Feb.
3, 2009) (afﬁrming Superior Court’s denial of fourth motion for postconviction relief); Lindsey
v. State, 2003 WL 98784 (Del. Jan. 7, 2003) (afﬁrming Superior Court’s denial of ﬁrst motion
for postconviction relief).

2 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

3 Younger v. State, 530 A.2d 552, 554 (Del. 1990).

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overcomes the procedural bars of Rule 61(i)(1)4 and Rule 61(i)(4).5 Shah,
however, relies on a version of Rule 61 that was no longer in effect at the time he
ﬁled his tenth motion for postconviction relief.

(5) Effective June 4, 2014, Rule 61 provided that a second or subsequent
motion for postconviction relief would be summarily dismissed unless the
defendant was convicted after trial and the motion pled with particularity either: (i)
a claim that new evidence existed that created a strong inference that he was
actually innocent; or (ii) a new rule of constitutional law made retroactive to cases
on collateral review rendered his convictions invalid.6 Under Rule 61(d)(2),
summary dismissal of Shah’s postconviction was appropriate because it was his
tenth motion for postconviction relief after a guilty plea, not a trial. Shah also
failed to plead with particularity a claim that satisﬁed Rule 61(d)(2)(i) or Rule
61(d)(2)(ii).

(6) We note that this is Shah’s tenth unsuccessful motion for

postconviction relief. In the future, if Shah ﬁles additional petitions, we do not

4 Super. Ct. Crim. R. 61(i)(l)(effective before June 1, 2014) (“A motion for postconviction relief
may not be ﬁled more than one year after the judgment of conviction is ﬁnal or, if it asserts a
retroactively applicable right that is newly recognized after the judgment of conviction is ﬁnal,
more than one year after the right is ﬁrst recognized by the Supreme Court of Delaware or by the
United States Supreme Court”).

5 Super. Ct. Crim. R. 61(i)(4) (effective before June 4, 2014) (“Any ground for relief that was
formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an
appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter
barred, unless reconsideration of the claim is warranted in the interest of justice”).

5 Super. Ct. Crim. R. 61(d)(2) (effective June 4, 2014).

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intend to continue to invest scare judicial resources in addressing his repetitive
claims. We encourage Shah to be mindful of Rule 610).7

NOW, THEREFORE, IT IS ORDERED that motion to afﬁrm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

 

7 Super. Ct. Crim. R. 610) (“If a motion is denied, the state may move for an order requiring the
movant to reimburse the state for costs and expenses paid for the movant from public funds”).

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