Free Response to Habeas Petition - District Court of Delaware - Delaware

Case 1:05-cv-00920-JJF

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Filed 03/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LAKISHA SHORT, Petitioner v. PATRICK RYAN, Warden, and CARL C. DANBERG, Attorney General of the State of Delaware, Respondents : : : : : : : : : : :

Civ. Act. No. 05-920-JJF

ANSWER Pursuant to Rule 5 of the Rules Governing Section 2254 Actions, 28 U.S.C. foll. ' 2254, respondents state the following in response to the petition for a writ of habeas corpus: 1. The grand jury indicted Lakisha Short in October 2003, charging her with first degree robbery, aggravated menacing, and three weapons offenses. One of the weapons offenses, possession of a deadly weapon by a prohibited person, was severed from the other counts of the indictment before trial in March 2004. A Superior Court jury convicted Short of one count of first degree robbery, one count of aggravated menacing, and two counts of possession of a firearm during the commission of a felony. On the prosecution's motion, Short was declared an habitual offender under Del. Code Ann. tit. 11, §4214(a): she was sentenced to a total of 60 years imprisonment, suspended after 55 years for 1 year probation. On direct appeal, the state supreme court affirmed

Case 1:05-cv-00920-JJF

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Short's convictions. Short v. State, 865 A.2d 512 (Del. 2004). Short then applied for state post-conviction relief in June 2005. Superior Court denied the motion in October 2005; Short took no appeal from that decision. 2. Short has applied for federal habeas relief, making the same complaints that she made in the state post-conviction action. Compare D.I. 2 with State v. Short, 2005 WL 2841613, mem. op. at *1 (Del. Super. Oct. 25, 2005). However, Short's claims fail because she failed to appeal from the Superior Court decision that denied her motion for postconviction relief. In the first instance, if there is no available state remedy, Short is excused from the exhaustion requirement. See Teague v. Lane, 489 U.S. 288, 298 (1989). She can not now appeal to the state supreme court: the appeal would be dismissed as being untimely under state law. See Dorsey v. Carroll, 393 F.Supp.2d 272, 276 (D. Del. 2005). Short also can not return to Superior Court to present her claims again in order to appeal from the ensuing decision: because of her failure to appeal the earlier decision, state law precludes reconsideration of the claims Short made in her June 2005 post-conviction motion. Dorsey, 393 F.Supp.2d at 276; Qualls v. Williams, 2004 WL 2283595, mem. op. at *3 (D. Del. Sept. 29, 2004); Kennedy v. Kearney, 1996 WL 534877, mem. op. at *2-3 (D. Del. Sept. 11, 1996). Because there is no available state remedy, Short is excused from the exhaustion requirement. See Teague, 489 U.S. at 297-98; Dorsey, 393 F.Supp.2d at 276. 3. However, review of Short's claims is barred unless she shows cause for failing to have appealed and actual prejudice stemming from the alleged constitutional errors. E.g., Beaty v. Patton, 700 F.2d 110, 112-13 (3d Cir. 1983) (failure to appeal constitutes

Case 1:05-cv-00920-JJF

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procedural default); Dorsey, 393 F.Supp.2d at 277; Qualls, mem. op. at *4. Short says nothing in her federal papers about her failure to have appealed the Superior Court decision. As a result, Short has not established cause for the default, and that alone is enough to warrant dismissal. E.g., Dorsey, 393 F.Supp.2d at 277; Qualls, mem. op. at *4. 4. On the basis of the Superior Court docket, it appears that the transcript of Short's trial and sentencing has been prepared. In the event that the Court directs production of any transcript, respondents cannot state with specificity when the transcript could be produced, but reasonably expect that production would take 90 days from the issuance of any order by the Court. 5. The petition for a writ of habeas corpus should accordingly be dismissed without further proceedings.

/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 [email protected] Date: March 24, 2006