On June 15, 2012, the Worcester County police found in a wooded area near the Delaware–Maryland border the body, later identified as Nicole Bennett, a missing Delaware resident. Through investigation, Maryland authorities came to believe that Burton was responsible for Mrs. Bennett's death and charged him with first- and second-degree murder. Because Burton was a resident of Delaware, Maryland Governor Martin O'Malley submitted an application for requisition to Delaware Governor Jack Markell, who, in turn, issued a Governor's Warrant of Rendition for Burton. Delaware authorities apprehended Burton in Sussex County, Delaware on August 6, 2012. After failing to obtain habeas corpus relief in Delaware, Burton was transported to Worcester County.
A Maryland grand jury indicted Burton on crimes related to Mrs. Bennett's death including murder, rape, and kidnapping.3 The State of Maryland notified Burton that it would be seeking the death penalty, but, when Maryland repealed the death penalty in 2013, that notice was withdrawn.
On May 31, 2013, the State's Attorney for Worcester County wrote Burton's counsel:
Please find attached copy of a letter dated May 8, 2013 from the Delaware Department of Justice regarding the above referenced criminal matter.4
Based upon recent discussion with other interested jurisdictions it has been determined that the Delaware Department of Justice will indict and prosecute your client on charges related to the kidnapping, rape, and murder of Nicole Bennett on June 14, 2012. The Delaware Department of Justice has expressed their intent to initiate a capital prosecution against the Defendant. Any prosecution by Delaware will supersede the current criminal case in the State of Maryland.
This criminal matter may be concluded in the State of Maryland should the Defendant agree to the following conditions:
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2. The Court will impose the following binding sentences:
a. As to the Count One, First Degree Murder, the Defendant will receive a sentence of Life without the Possibility of Parole, consecutive to any other sentence previously imposed upon the Defendant in Worcester County, Maryland or in any other jurisdiction;
b. As to Count Three, First Degree Rape, the Defendant will receive a sentence of Life without the Possibility of Parole, consecutive to Count One and consecutive to any other sentence previously imposed upon the Defendant in Worcester County, Maryland or in any other jurisdiction....
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If your client fully accepts each and every term and condition of this letter please sign and have your client sign the original and return it to the State no later than noon on July 1, 2013 at which time this offer will expire....
Burton rejected the plea offer, and on August 12, 2013, the State nol prossed5 all pending charges in Maryland.
Seven days later, a Delaware grand jury indicted Burton on two counts of first-degree murder and one count of first-degree rape related to Mrs. Bennett's death. On September 25, 2013, Governor Markell submitted an application for requisition to Governor O'Malley. That submission included (1) Governor Markell's signed application for requisition along with the sworn statement of Deputy Attorney General Elizabeth R. MacFarlan, (2) a docket sheet, (3) a grand jury indictment, (4) a warrant for Burton's arrest, (5) the Delaware Attorney General's Identification Report including a fingerprint card, and (6) an annexed application for requisition, which included an application for requisition signed by Governor Markell, representations by Deputy Attorney General Elizabeth R. MacFarlan, and copies of the Delaware Code concerning murder and rape. Governor O'Malley signed a Governor's Warrant of Rendition for Burton on October 28, 2013.
As authorized by Maryland Code (2001, 2008 Repl. Vol.), § 9–110 of the Criminal Procedure Article (“C.P.”), Burton filed a Writ of Habeas Corpus challenging his extradition to Delaware. At a November 4, 2013 hearing, the circuit court held:
The case of Michigan versus Doran ... limit[s] the Court's [consideration to] four items: ... whether the extradition documents on their face are in order. There's been argument, primarily the argument has been the identification ... isn't good enough, it said Wicomico instead of Worcester, even though I have the file here and everyone knew it was Worcester. I quite frankly find that to be equivalent to a typo. It's what the case referred to as a minor irregularity and I find—both arguments that [Burton has] made on that issue being minor irregularities.
Whether the Petitioner has been charged with a crime in the demanding state.... Of course he had been charged with two counts of first degree murder and one count of first degree rape.
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[T]he third one is whether the petitioner is the person named in the request for extradition. And I find the arguments that were made in that regard are without merit, it's almost desperate. There's no requirement about finger prints.... We have an affidavit in the file saying he's who he is, it's signed by him .... it's just without merit.
Whether the Petitioner is a fugitive.... Under the extradition ... definition ... if you're in another state and charged with a crime from another state you're a fugitive.... [Y]ou don't have to sneak over here. And the fact that he came over here against his will ... makes no difference as far as the extradition process goes.
So on those four [Burton] loses.... But I do want to go just a little bit further and address these arguments.... [Burton argues that] [t]he prosecution[']s attempt to extradite [him] back to Delaware is vindictive and violated the due process clause of the United States Constitution and the Maryland Declaration of Rights.... You could draw the conclusion that it's vindictive. But it's a guess, it's simply a guess. There's been no offer of proof or anything, it's just that, well, you've got this letter, and you know, we've had numerous hearing[s] and motions, we've had three trial dates set. So in the meantime Maryland did away with the death penalty and Delaware still has theirs and that's the only reason it's being sent there is because ... they want to subject [Burton] to the death penalty.... [T]hat's a good argument I suppose, but all it is is [Burton's] suggestion of what it indicates to [him], it's really nothing else. So [Burton] lose[s] on that argument....
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[Burton contends that his] extradition ... violated the Eighth Amendment to the United States Constitution and Article[s] of the Maryland Declaration of Rights. And again, I think this had to do with the death penalty and the vindictiveness and all and I've addressed that. So really it's the same argument, it's just their raising it to a constitutional level. But for all of the same reasons the Court rules against [Burton] on that argument....
[Burton asserts that] the State of Maryland is legally bound to its previous statements and is collaterally estopped from now adopting an inconsistent position. Actually, if you want to get technical about it, they're not. They nolle prossed the case. It's no longer in existence, and what we're doing now is we're arguing what the State of Delaware is alleging who's the one now trying to get [Burton] back there to prosecute him. So I don't find any merit in [that] argument ...
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[The State argues that that constitutional claims are] not within the permissible scope of the habeas corpus hearing; he may be right, but I addressed [them] anyway. Even if permissible the argument is without merit and not supported by any authority. I've addressed that and I agree....
[The State] says minor irregularities ... minor defects in the wording or discrepancies between charging papers and the requisition do not affect the asylum state's action. In other words, to be considered problems of the demanding state. And that's sort of what I've alluded to a couple of times ... A lot of these arguments seem more appropriately raised in Delaware than here, and undoubtedly as [Burton's] counsel suggests they will be raised there ...
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[T]he former application for requisition was made by the State of Maryland, not the State of Delaware, therefore, there's been no former application for requisition but that demanding state which is something I've already alluded to and I agree. That there was no delay in the prosecution of the said crime and the application of a requisition. Being [that Delaware] just recently charged him in Delaware with these crimes, I'll have to agree with that, but undoubtedly that is going to be a very serious argument to be raised in Delaware.
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The circuit court denied the writ, but, at Burton's request, later ordered a stay of his extradition pending this timely appeal.
