Kirk v. Phelps

• Citation: 596 F.Supp.2d 835
• Decision Date: 09 February 2009
• Docket Number: No. 08-37-JJF.,08-37-JJF.
• Parties: Mark Anthony KIRK, Petitioner, v. Perry PHELPS, Warden, and Attorney General of the State of Delaware, Respondents.
• Court: U.S. District Court — District of Delaware

596 F.Supp.2d 835

Mark Anthony KIRK, Petitioner, v. Perry PHELPS, Warden, and Attorney General of the State of Delaware, Respondents.

Civil Action No. 08-37-JJF.

United States District Court, D. Delaware.

February 9, 2009.

Mark Anthony Kirk, Pro se Petitioner.

Gregory E. Smith, Deputy Attorney General of the Delaware Department of Justice, Wilmington, DE, for Respondents.

MEMORANDUM OPINION

FARNAN, District Judge.

Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 ("Petition") filed by Petitioner Mark Anthony Kirk ("Petitioner"). (D.I. 1; D.I. 5.) For the reasons discussed, the Court will dismiss the Petition as second or successive.

I. FACTUAL AND PROCEDURAL BACKGROUND¹

On the night of December 3, 1996, Petitioner and his girlfriend, Darlene Hamby, returned to Hamby's apartment extremely intoxicated after spending the day drinking heavily with friends. Hamby's two sons, ages ten and sixteen, were in their bedrooms when Petitioner and Hamby began to argue vehemently about the day's events. At the height of the argument, Petitioner decided that he was finished with their turbulent relationship, told Hamby that he was leaving her, and began to pack his belongings.

According to the evidence produced at trial, Petitioner was so enraged and so inebriated, that he grabbed a partially full bottle of Captain Morgan's Spiced Rum, proceeded to the kitchen, turned on the right front burner of the stove to the highest position, and emptied the bottle onto the burner when it was on high. Petitioner's eyebrows were singed and he sustained partial burns to this face as the alcohol burst into flames. The fire began to spread to the pressed board cabinets above the stove, but Petitioner made no effort to extinguish the fire or to warn Hamby and her children that the kitchen was ablaze. Rather, he moved away from the kitchen and continued packing his clothes.

Hamby and her older son became aware of the fire consuming their apartment minutes later when the smoke alarm activated. Hamby exited the apartment while her older son grabbed her younger son and escaped as well. Petitioner also escaped unscathed. However, other tenants asleep in the apartment building were not so fortunate. Steven Rivera and his two children, who resided in the apartment above Hamby's apartment, suffocated to death in the smoke caused by the fire. Several other residents suffered extensive injuries as they jumped for their lives from the upper stories of the apartment.

Petitioner initially denied starting the fire, but then he eventually admitted to the police in recorded statements that he intentionally poured the accelerant containing alcohol on the hot burner for the purpose of starting a fire. A bench trial was held in the Delaware Superior Court, during which Petitioner's statements to the police were introduced against him. In addition, information regarding the flammability factor of Captain Morgan's Spiced Rum and the pooling effect under the burner, which caused the vaporization and consequent ignition of the ethanol in the rum, was also admitted into evidence for the Superior Court's consideration.

On October 23, 1997, after hearing all the evidence, the Superior Court judge found, beyond a reasonable doubt, that Petitioner intentionally started the fire that ultimately caused the deaths of a father and his two children. Petitioner was convicted of three counts of First Degree Felony Murder(11 Del.Code Ann. § 636(a)(2)), one count of the lesser included offense of Third Degree Arson (11 Del. Code Ann. § 801), two counts of First Degree Assault (11 Del.Code Ann. § § 613(a)(4)), and one count of the lesser included offense of Third Degree Assault (11 Del.Code Ann. § 611). The State sought the death penalty, but the Delaware Superior Court judge found that the existing mitigating circumstances outweighed the existing aggravating circumstances. On December 3, 1997, Petitioner was sentenced to three mandatory consecutive life sentences in connection with the First Degree Felony Murder convictions, ten years of incarceration at Level V for each of the First Degree Assault convictions, two years of incarceration at Level V for the Third Degree Arson conviction, and one year of incarceration at Level V for the Third Degree Assault conviction. Petitioner filed a direct appeal, and the Delaware Supreme Court affirmed his convictions and sentences. Kirk v. State, 734 A.2d 159 (Table), 1999 WL 415802 (Del. Apr. 29, 1999).

In September 1999, Petitioner filed an application for post conviction review pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied in May 2000. Petitioner appealed, and the Delaware Supreme Court affirmed the Superior Court's decision. See Kirk v. State, 2000 WL 1637418 (Del.2000). Petitioner filed his second Rule 61 motion in the Superior Court in March 2001. The Superior Court denied Petitioner's second Rule 61 motion, and the Delaware Supreme Court affirmed that decision in February 2002. Kirk v. State, 2002 WL 256741 (Del.2002).

Petitioner filed his first federal habeas petition ("Petition I") in this Court in May 2002. The Court denied Petition I as meritless in January, 2003. Kirk v. Carroll, 243 F.Supp.2d 125 (D.Del.2003). Petitioner filed a Motion For Certificate Of Appealability in the Third Circuit. Court of Appeals, which was denied in July 2003. See State v. Kirk, 2004 WL 396407 (Del.Super.Ct. Feb. 26, 2004).

While his Motion For Certificate Of Appealability was still pending in the Third Circuit, Petitioner filed his third Rule 61 motion in the Delaware Superior Court on April 9, 2003. Petitioner alleged that some of his convictions should be vacated due to recently decided case, Williams v. State, 818 A.2d 906 (Del.2003). The State conceded that Petitioner's Felony Murder and First Degree Assault convictions should be vacated under Williams. On February 26, 2004, the Superior Court vacated Petitioner's three convictions for First Degree Felony Murder and his two convictions for First Degree Assault. The Superior Court then reduced the three Felony Murder convictions to three Manslaughter convictions, reduced Petitioner's two First Degree Assault convictions to two Second Degree Assault convictions, and set the matter for a new re-sentencing hearing. Kirk, 2004 WL 396407, at *7. Thereafter, on February 11, 2005, the Superior Court re-sentenced Petitioner to 10 years at Level V incarceration for each of the three Manslaughter convictions and 8 years at Level V incarceration for each of the two Second Degree Assault convictions. Petitioner's sentences for Third Degree Arson and Third Degree Assault remained the same as before—2 years and 1 year at Level V incarceration, respectively. See Kirk v. State, 889 A.2d 283 (Table), 2005 WL 3526325, at *2 (Del. Dec. 23, 2005). The Delaware Supreme Court affirmed Petitioner's re-sentencing. Id.

In March 2007, Petitioner filed his fourth Rule 61 motion in the Superior Court, which the Superior Court denied. On December 5, 2007, the Delaware Supreme Court affirmed the Superior Court's decision. Kirk v. State, 2007 WL 4260174 (Del.2007).

Petitioner filed the habeas application ("Petition") pending before the Court in January 2008. (D.I. 1.; D.I. 5.) The State filed a Motion to Dismiss the Petition as second or successive. (D.I. 15.) The Petition is now ready for review.

II. DISCUSSION

A. The Petition Must Be Dismissed As Second Or Successive

Pursuant to 28 U.S.C. § 2244(b)(3)(A), a petitioner must obtain permission from the appropriate court of appeals before filing a second or successive habeas petition in a federal district court. Generally, a habeas petition is classified as second or successive if a prior petition has been decided on the merits, the subsequent petition asserts a claim that was or could have been raised in the prior habeas petition, and the prior and subsequent petitions challenge the same conviction. See 28 U.S.C. §§ 2244(a),(b)(1); In re Olabode, 325 F.3d 166, 169-73 (3d Cir.2003); cf. Slack v. McDaniel, 529 U.S. 473, 485-86, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ("a habeas petition filed in the district court after an initial habeas petition was unadjudicated on the merits and dismissed for failure to exhaust state remedies is not a second or successive petition"). If a petitioner erroneously files a second or successive habeas petition in a district court without first obtaining permission from the court of appeals, "the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.2002).

Petition I asserted eight grounds for relief: (1) coerced/involuntary confession; (2) ineffective assistance of counsel for failure to move to suppress Petitioner's statement to the police; (3) ineffective assistance of counsel for arguing for a lesser-included felony in a felony-murder trial; (4) ineffective assistance of counsel for failing to move to recuse the trial judge; (5) ineffective assistance of counsel for failure to retain a third expert regarding flammability; (6) the presentation of falsified evidence violated Petitioner's Sixth and Fourteenth Amendment Rights; (7) the prosecution presented insufficient evidence to support Petitioner's convictions and (8) the indictment was facially deficient. The instant Petition asserts three grounds for relief: (1) Petitioner was denied a fair trial because his confession was involuntary and coerced; (2) defense counsel provided ineffective assistance by retaining the flammability expert used at trial rather than a better expert; and (3) the "newly discovered" Lentini video proves that Captain Morgan's Spiced Rum could not have been the cause of the fire. The State argues that the Court lacks subject matter jurisdiction over the instant proceeding because the Petition constitutes a second or...