State v. Shah

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, )
)
Defendant. )

Submitted: February 4, 2020
Decided: January 11, 2023

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S THIRTEENTH MOTION FOR POSTCONVICTION
RELIEF

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

Herbert W. Mondros, Esquire, Rigrodsky Law, P.A., Wilmington, Delaware,
Attorney for Defendant.

O’CONNOR, Commissioner
 This 11th day of January, 2023, upon consideration of the parties’ pleadings

related to Defendant’s Thirteenth 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

(“GBMI”) in June of 2002 to one count of First Degree Murder. In consideration of

accepting the plea, the State agreed to not seek the death penalty, and entered a nolle

prosequi on the remaining ten counts of the Indictment.

Defendant did not file a direct appeal. He has, however, persistently filed, in

State and Federal Court, Petitions for a Writ of Habeas Corpus, Writs of Mandamus,

Appeals, Motions for Reconsideration, Motions to Correct an Illegal Sentence,

Motions to Withdraw Guilty Pleas, and twelve prior Motions for Postconviction

Relief. Defendant was represented by counsel for several of his post-conviction

filings, including the one now pending before the Court.

Because Defendant has inundated the Delaware State Courts with repetitive

Motions for Postconviction Relief, the Superior Court, after rejecting Defendant’s

ninth and tenth Motions, directed that Defendant was prohibited from filing any

further Motions without prior court approval.1

1
State v. Lindsey, 2014 WL 1677350, at *1 (Del. Super. Apr. 9, 2014); State v. Lindsey, 2015
WL 5675838, at *2 (Del. Super. Sept. 10, 2015).
1
 The Delaware Supreme Court has also taken notice of Defendant’s proclivity

for filing successive postconviction motions. In its Orders affirming the judgment

of the Superior Court related to Lindsey’s tenth and eleventh Motions for

Postconviction Relief, the Delaware Supreme Court advised Defendant that it would

not continue to invest scarce judicial resources in addressing repetitive

postconviction claims.2

Undeterred, on February 5, 2020, Defendant filed a thirteenth Motion for

Postconviction Relief in which he concedes he is procedurally barred from

presenting the claim.3 Nonetheless, Defendant argues the “unusual facts of this

case” require that (a) the procedural bar in Superior Court Criminal Rule 61(d)(2)

be waived, and (b) “the rule announced in Taylor v. State4 be applied retroactively

and Defendant’s conviction and sentence should be reversed, because Defendant’s

GBMI plea did not comply with the requirements of 11 Del. C. § 408(a), since

Defendant was not permitted to withdraw his GBMI plea before his second GBMI

hearing.”5

2
Shah v. State, 2015 WL 9436813, at *2 (Del. Dec. 22, 2015); Shah v. State, 2018 WL 2110995,
at *1 (Del. May 7, 2018).
3
Defendant concedes “[t]he instant motion is Defendant’s thirteenth motion for post-conviction.
Because he momentarily pled GBMI as a mentally ill eighteen-year-old and was not convicted
after a trial, he is procedurally barred from relief on successive motions.” Docket Item (“DI”) 285,
Defendant’s Motion for Leave to File an Amended Rule 61 Motion for Postconviction Relief
(hereinafter “Defendant’s Motion”), p. 5.
4
Taylor v. State, 213 A.3d 560 (Del. July 8, 2019).
5
Defendant’s Motion, p. 5-6.
2
 For the following reasons, I recommend Defendant’s thirteenth Motion for

Postconviction Relief be summarily dismissed.

DEFENDANT’S RULE 61 MOTION

Before considering the merits of a defendant’s postconviction claims, the

Court must first determine whether there are any procedural bars to the motion. 6

After reviewing Defendant’s submissions, it is evident that the thirteenth Motion for

Postconviction Relief must be summarily dismissed pursuant to Superior Court

Criminal Rule (“Rule”) 61(d)(2) 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.7

I. Defendant’s Thirteenth Motion is repetitive and therefore procedurally

barred pursuant to Rule 61(i)(2).

Rule 61(i)(2)(i) does not allow for the filing of successive postconviction

motions. Specifically, the Rule states:

(2) Successive motions.
(i) No second or subsequent motion is permitted under this Rule
unless the second or subsequent motion satisfies the pleading
requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this
Rule.

Rule 61(d)(2)(i-ii), referenced in Rule 61(i)(2), provides as follows:

6
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7
Id., see also Paul v. State, 2011 WL 3585623, at *1 (Del. Aug. 15, 2011) (“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.”)
3
 (d) Preliminary consideration . . .
(2) Second or subsequent postconviction motions.
A second or subsequent motion under this rule shall be
summarily dismissed, unless the movant was convicted after a trial and
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 renders the conviction or
death sentence invalid.8

This is Defendant’s thirteenth Motion for Postconviction Relief. As the State noted,

there is no provision in Rule 61 which allows for a successive postconviction motion

after a guilty plea. The majority of Defendant’s prior motions for postconviction

relief have been summarily dismissed due to procedural bars. Like the motions that

have proceeded it, this motion is repetitive, procedurally barred and subject to

summary dismissal for failing to satisfy the procedural hurdle of Rule 61(i)(2)(i).

II. Even if the procedural bar of Rule 61(i)(2)(i) was waived, Defendant

cannot meet the pleading requirements of Rule 61(d)(2)(ii).

Defendant acknowledges his postconviction motion is procedurally barred

pursuant to Rule 61(i)(2), as it is a successive motion and his conviction is the result

of a plea. But, Defendant asserts he is entitled to a waiver of the procedural bar

8
Super. Ct. Crim. R. 61(d)(2)(i-ii) (emphasis added).
4
because of the “unusual facts of this case.” His claim goes, if the procedural bar is

waived, he can argue that the Delaware Supreme Court’s decision in Taylor v. State

constitutes a new rule of constitutional law which should be made retroactive to

cases on collateral review by the Delaware Supreme Court. It does not, and

Defendant’s argument is briefly addressed below.

A plain reading of Rule 61(i)(2) in conjunction with Rule 61(d)(2)

demonstrates Defendant’s claim must be summarily dismissed. As Defendant

concedes, the rule only applies to defendants who were convicted after a trial.9 In

2002, Defendant resolved his case with a plea. Therefore, his claim is procedurally

barred, and Rule 61(d)(2) directs that his claim “shall be summarily dismissed.”10

Defendant’s assertion that the procedural bar of being “convicted after a trial”

can be waived by the Court is contrary to the plain language of Rule 61 and Delaware

law.11 The Delaware Supreme Court has applied Rule 61(d)’s conviction after trial

provision to affirm the judgment of the Superior Court in denying at least two of

Defendant’s prior postconviction motions.12

9
Super. Ct. Crim. R. 61(d)(2)(i) (emphasis added).
10
Super. Ct. Crim. R. 61(d)(2).
11
As this Court previously concluded, “to protect the procedural integrity of Delaware’s Rules,
this Court will not consider the merits of a postconviction claim that fails any of Rule 61’s
procedural hurdles.” State v. Page, 2009 WL 1141738 at *13 (Del. Super. Apr. 28, 2009)
(emphasis added).
12
See Shah, 2015 WL 9436813, at *2 (“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.”); also see Shah v. State, 2019 WL 3069662, at *1 & n. 3 (Del. July 12,
5
 Assuming arguendo that the Rule’s “conviction after trial” requirement were

waived, Taylor does not create a new rule of constitutional law which was made

retroactive to cases on collateral review by the Delaware Supreme Court.13

Defendant argues Taylor stands for the proposition that a defendant entering

a GBMI plea has a right to withdraw his plea, pursuant to 11 Del. C. § 408(a), at any

time before the second GBMI hearing.14 Defendant mis-states the Delaware

Supreme Court’s holding in Taylor. In Taylor, the Delaware Supreme Court held

that a defendant entering a GBMI plea has “an absolute right to withdraw a guilty

but mentally ill plea before the plea is accepted by the court.”15 It just so happened

in Taylor that the Superior Court did not accept Taylor’s plea until the second GBMI

hearing. The triggering event for when a defendant, entering a GBMI plea, can no

longer withdraw that GBMI plea for any reason whatsoever is when the Court

accepts the defendant’s plea. It is not up to the time preceding a second GBMI

hearing.

In Taylor, the defendant appeared before the Court to plead guilty but

mentally ill to two offenses: manslaughter and possession of a deadly weapon

during the commission of a felony.16 On October 13, 2017, the Court began

2019) (With regard to Defendant’s twelfth postconviction motion, he “was not convicted after trial
and did not satisfy the requirements of Superior Court Criminal Rule 61(d)(2).”).
13
Super. Ct. Crim. R. 61(d)(2)(i).
14
D.I. 285, Defendant’s Motion, p. 5-6.
15
Taylor, 213 A.3d at 568.
16
Id. at 564.
6
defendant Taylor’s initial GBMI plea hearing.17 Understanding more than one

hearing was necessary to comply with 10 Del. C. § 408(a), the Court at Taylor’s first

GBMI hearing conferred with counsel and conducted a plea colloquy, but deferred

accepting Taylor’s plea until the second GBMI hearing.18

As planned, the plea colloquy at the first GBMI hearing concluded without

the Court accepting Taylor’s plea.19 The day after Taylor’s first GBMI hearing,

Taylor wrote to counsel, informed counsel he wanted to withdraw the plea, and asked

counsel to file a motion to withdraw.20 Trial counsel refused to submit a motion to

withdraw, because counsel believed the plea was in Taylor’s best interest. Taylor

then made several pro se requests to withdraw the plea before and during the second

GBMI hearing, some presented directly to the Court.21

On January 9, 2018, Taylor appeared before the Superior Court for the second

GBMI hearing. At that second hearing, the Court intended to (a) review the

presentence investigation report and any other relevant reports; (b) determine

whether the evidence established Taylor was mentally ill at the time of the offense;

(c) accept Taylor’s GBMI plea; and (d) impose a sentence.22 But, at the second

17
Id.
18
Id.
19
The Court discussed the requirements of § 408(a) with counsel and it was agreed that the Court
would proceed by conducting the hearing, but defer accepting the plea until sentencing, when the
Court would have the presentence report. Id.
20
Id.
21
Id. at 564-65.
22
Id. at 564-66.
7
GBMI hearing, Taylor told the Court he wanted to withdraw the plea prior to the

Court accepting it.23 The Court did not consider Taylor’s request to withdraw the

plea because Taylor was represented by counsel, and the Court concluded Rule 47

only permitted Taylor’s attorney to move to withdraw the plea.24 Taylor’s attorney

declined Taylor’s request to move to withdraw, so the motion to withdraw was

neither presented by counsel nor ruled upon by the Court. The Court then accepted

Taylor’s GBMI plea as knowing, intelligent and voluntary, concluded Taylor

suffered from a mental illness at the time of the offense, and sentenced him.25

On appeal, the Delaware Supreme Court reversed, concluding:

[t]he court should also have permitted Taylor to withdraw his plea at
the second hearing. While Rule 47 allows a court to disregard pro se
filings from defendant’s represented by counsel, plea proceedings are
governed by Superior Court Criminal Rule 11. Rule 11 requires an
extensive colloquy directly between the trial judge and the defendant
where the trial judge seeks to determine whether the guilty plea is
offered knowingly, intelligently and voluntarily. At the January 9, 2018
hearing, Taylor asked to withdraw his guilty plea offer and thus could
not have offered his plea voluntarily. Because the court had not yet
accepted Taylor’s plea, it should have acknowledged that Taylor was
withdrawing his offer to plead guilty and let the case go to trial.26

23
Id. at 565-66.
24
Id. at 565. Rule 47 provides, in pertinent part:
The court will not consider pro se applications by defendants who are represented by
counsel unless the defendant has been granted permission to participate with counsel
in the defense. Super. Ct. Crim. R. 47.
25
Taylor, 213 A.3d at 565-66.
26
Id. at 569-70 (emphasis added).
8
 Taylor had an absolute right to withdraw the GBMI plea until the moment the

Court accepted Taylor’s plea during the second GBMI hearing.27 This holding was

“consistent with the rules of other courts generally applicable to any plea not yet

accepted by the court . . ..”28 It was not a new rule of constitutional law made

retroactive to cases on collateral review by the Delaware Supreme Court, and the

Court’s opinion is consistent with Rule 11(d), which requires the Superior Court

insure a Defendant’s plea is a voluntary act in every Superior Court plea.29 Taylor

simply clarified the application of 11 Del. C. § 408(a) in the context of a Rule 11

plea and a defendant’s Sixth Amendment Autonomy Interest in entering a GBMI

plea.

In contrast to Taylor, on April 9, 2002, Defendant appeared before the Court

to enter a GBMI plea. During the first GBMI hearing, the Court reviewed with

Defendant his answers to the TIS Guilty Plea form – specifically where he indicated

he voluntarily decided to plead guilty to the charge and “was not under the influence

27
Id. at 569.
28
Id. at 568. Pursuant to Superior Court Criminal Rule 11(d), the Superior Court must be satisfied
that every plea is voluntarily entered before it is accepted. See infra n. 29.
29
Super. Ct. Crim. R. 11(d) provides:
(d) Insuring That the Plea Is Voluntary.
The court shall not accept a plea of guilty or nolo contendere without first, by
addressing the defendant personally in open court, determining that the plea is
voluntary and not the result of force or threats or of promises apart from a plea
agreement. The court shall also inquire as to whether the defendant's willingness to
plead guilty or nolo contendere results from prior discussions between the attorney
general and the defendant or the defendant's attorney.
9
of alcohol or drugs at the time he signed the guilty plea form that affected his ability

to know and understand the charge against him.”30 Defendant also advised the Court

he was taking medications for depression and sleep, he understood he was pleading

guilty to Murder First Degree, and he would receive a life sentence.31 Importantly,

“the Court was able to witness Defendant’s demeanor during the plea colloquy and

found him to be alert and that he verbally answered all questions in an appropriate

manner.”32 The Court completed a comprehensive plea colloquy with Defendant

and on April 9, 2002, at the conclusion of the first GBMI hearing, the court accepted

Defendant’s plea as a knowing, intelligent and voluntary decision.33

The Court accepted Defendant’s GBMI plea on April 9, 2002. Thereafter, on

April 17, 2002, at Defendant’s request, counsel filed a Motion to Withdraw Guilty

Plea.34 On May 22, 2002, after considering counsel’s submissions and conducting a

review of the record, the Court denied Defendant’s Motion.35

30
State v. Lindsey, 2002 WL 1463103, at *1 (Del. Super. May 21, 2002).
31
Id. at *2.
32
Id.
33
DI 54, April 9, 2002 Plea Colloquy Transcript, p. 12, l. 2-4. Defendant’s Motion claims his
plea was “not fully accepted until the second hearing.” DI 285, Defendant’s Motion, p. 6. The
record evidence before the Court directly contradicts Defendant’s claim.
34
DI 53. Defendant’s Motion to Withdraw Plea, p.1, ¶ 1-3. Defendant’s Motion claimed he was
a patient at the Delaware State Hospital at the time of the plea; he was receiving medication
which affected his ability to understand what he was doing, and as a result of the medication, he
was unable to appreciate his plea. Id.
35
Lindsey, 2002 WL 1463103, at *1.
10
 On June 27, 2002, the Court convened the second GBMI hearing. At that

hearing, the Court concluded Defendant suffered from a mental illness at the time of

the offense and his guilty plea was supported by substantial evidence.36 The Court

then sentenced the Defendant.37 The procedure followed by the Superior Court in

2002 when it entered a GBMI plea pursuant to 11 Del. C. §408(a) is in complete

accord with the guidance the Delaware Supreme Court provided for entering a

GBMI plea in Taylor in 2019.38

Defendant’s claim is procedurally barred and requires summary dismissal.

Moreover, Defendant misinterprets the holding in Taylor and asserts facts not

supported by the record. Pursuant to Taylor, the right to withdraw a GBMI plea

expires once the Court accepts a defendant’s GBMI plea, not, as Defendant argues,

at any time before the second GBMI hearing.39

36
DI 115, June 27, 2002 Sentencing Transcript, p. 19, l. 1-6.
37
Id., p. 19, l. 22 – p. 20, l.7.
38
Taylor, 213 A.3d at 569, n. 45. (“For future guidance, we interpret the statute as follows. A
defendant can plead guilty but mentally ill to a crime, and the court can accept the plea in the
same hearing after finding under Superior Court Criminal Rule 11 that the defendant’s plea is
made knowingly, intelligently, and voluntarily. But, the court should defer adjudicating the
defendant guilty but mentally ill of the crime until after it holds a hearing where the sole issue is
the defendant’s mental illness. As part of the evidence at the second mental illness hearing, the
court should consider the presentence investigation. After the second hearing, if the court is
satisfied that the requirements of § 408(a) have been met, the court should adjudicate the defendant
guilty but mentally ill of the offense and impose sentence. If the statutory requirements are not
met, the court should strike the plea or allow the defendant to withdraw it.” (emphasis added.))
39
Id. at 568-69.
11
III. Defendant should be prohibited from filing meritless motions.

This Court and the Delaware Supreme Court have admonished Defendant for

compromising the Court’s resources and filing repetitive and meritless motions for

postconviction relief. Absent the implementation of an amendment to Superior

Court Criminal Rule 61(i) that would be retroactively applied to Defendant’s case

and allow him to avoid the procedural bars identified infra, any future postconviction

motion is procedurally barred and subject to summary dismissal. Because the

Defendant conceded that his Motion is procedurally barred absent a waiver, he

cannot in any future circumstance overcome Rule 61(i)(2)’s procedural bar.

Defendant should be ordered to not file future Motions for Postconviction Relief

without first obtaining leave of the Court. The thirteenth Motion For Postconviction

Relief should be summarily dismissed.

12
 CONCLUSION

For all of the foregoing reasons, the Motion for Leave to File An Amended

Rule 61 Motion for Postconviction Relief should be DENIED; Defendant’s

thirteenth Motion for Postconviction Relief should be SUMMARILY

DISMISSED; and the Court should ORDER Defendant not file future Motions for

Postconviction Relief without first obtaining leave of the Court.

IT IS SO RECOMMENDED.

/s/ Martin B. O’Connor
Commissioner Martin B. O’Connor

oc: Prothonotary
cc: Elizabeth McFarlan, Esquire
Herbert W. Mondros, Esquire

13