1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

STATE OF DELAWARE,

 Plaintiff, 

 v.

KUSHAL SHAH, f/k/a GERRON M. 

LINDSEY,

 Defendant.

 

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) Cr. ID. No. 0002019767

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Submitted: January 31, 2023

Decided: April 4, 2023

Upon Commissioner’s Report and Recommendation

That Defendant’s Motion for Postconviction Relief

Should Be Denied

ADOPTED

ORDER

Elizabeth R. McFarlan, Esq., Deputy Attorney General, Department of Justice, 

Wilmington, DE, Attorney for the State

Herbert W. Mondros, Esq., Rigrodsky Law, P.A., Wilmington, DE, Attorney for 

Defendant

JOHNSTON, J.
2

This 4

th day of April, 2023, the Court has considered the Motion for Leave 

to File an Amended Rule 61 Motion for Postconviction Relief, the Commissioner’s 

Report and Recommendation, Defendant’s Appeal from the Commissioner’s 

Findings of Fact and Recommendations, the State’s Response to Defendant’s 

Appeal, and the relevant proceedings below.

PROCEDURAL POSTURE

On February 5, 2020, Defendant Kushal K. Shah (“Defendant”) filed his 

thirteenth Motion for Postconviction Relief, a supporting memorandum of law, and 

a Motion for Appointment of Counsel. A Superior Court Commissioner granted 

Defendant’s motion for appointment of counsel on September 24, 2020. On 

November 2, 2021, Defendant’s counsel filed a Motion to Withdraw as Counsel. 

The motion was granted. New counsel entered his appearance on November 12, 

2021. On April 18, 2022, Defendant’s counsel filed a Motion for Leave to File an 

Amended Rule 61 Motion for Postconviction Relief. The State responded on July 

13, 2022. Defendant replied on August 16, 2022. 

The motion was referred to a Superior Court Commissioner in accordance 

with 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed 

findings of fact and conclusions of law. The Commissioner issued the Report and 

Recommendation on January 11, 2023. The Commissioner recommended that 

Defendant’s thirteenth Motion for Postconviction Relief be summarily dismissed, 
3

and that the Court should order Defendant not to file future Motions for 

Postconviction Relief without first obtaining leave of the Court.

“Within ten days after filing of a Commissioner’s proposed findings of fact 

and recommendations . . . any party may serve and file written objections.”1 On 

January 25, 2023, Defendant filed his Appeal from the Commissioner’s Findings 

of Fact and Recommendations. The State filed its response on January 31, 2023. 

The Court now conducts its de novo review.

ANALYSIS

Alleged Conflict

Defendant contends the Commissioner that issued the recommendation may 

be conflicted because he worked at the Delaware Department of Justice before 

becoming a Commissioner. The Commissioner was assigned to this case, after 

recusing himself from Department of Justice matters for his initial year of service 

on the Court, in accordance with Delaware Judges’ Code of Judicial Conduct Rule 

2.11(A)(4)(a). The State has represented that the Commissioner had no 

involvement in the prosecution of the Defendant prior to joining the Court. 

Because the only contention is that the Commissioner worked at the Delaware 

Department of Justice, a hearing is not warranted. 

1 Super. Ct. Crim. R. 62(a)(5)(ii).
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The Court finds the assigned Commissioner is not conflicted from issuing 

his Recommendation and Report in this matter. There is no indication that the 

Commissioner could not be impartial in this matter. 

Procedural Bar

Defendant’s thirteenth Motion for Postconviction relief is procedurally 

barred by Rule 61(i)(2)(i) and Rule 61(d)(2)(i–ii). Rule 61(i)(2)(i) states: “No 

second or subsequent motion is permitted under this Rule unless that 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) states: 

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.

Defendant pled guilty but mentally ill to a First-Degree Murder in 2002. 

Defendant has acknowledged his thirteenth Postconviction Motion is procedurally 

barred because it is a successive motion regarding a conviction from a plea—not a 
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trial. However, Defendant contends he should be granted a waiver because of “the 

unusual facts of this case.”2

The Court finds a waiver is not warranted.3 

Retroactivity

If the procedural bar were waived, Defendant argues the Delaware Supreme 

Court’s decision in Taylor v. State4constitutes a new rule of constitutional law that 

should be “made retroactive to cases on collateral review” and “render[] the 

conviction . . . invalid.”5

“[N]ew constitutional rules of criminal procedure will not be applicable to 

those cases which have become final before the new rules are announced.”

6

 

However, “new substantive rules generally apply retroactively.”

7

 Additionally, 

“new ‘watershed rules of criminal procedure,’ which are procedural rules 

‘implicating the fundamental fairness and accuracy of the criminal proceeding,’” 

2 Def.’s Mot. for Leave to File an Am. Rule 61 Mot. for Postconviction Relief, at 5. 

3

State v. Page, 2009 WL 1141738, at *3 (Del. Super.), aff’d, 994 A.2d 745 (Del. 2010) (“To 

protect the procedural integrity of Delaware’s rules, the Court will not consider the merits of a 

postconviction claim that fails any of Rule 61’s procedural requirements.”). The Court also 

notes that the Delaware Supreme Court has affirmed the Court’s ruling on at least two prior 

occasions that Defendant is procedurally barred from postconviction relief due to his plea. Shah 

v. State, 2019 WL 3069662 (Del.), at *1 (denying Shah’s twelfth motion for postconviction relief 

because “Shah was not convicted after trial and did not satisfy the requirements of Superior 

Court Criminal Rule 61(d)(2)”); Shah v. State, 2015 WL 9436813, at *2 (Del.) (“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.”).

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213 A.3d 560 (Del. 2019). 

5 Rule 61(d)(2)(ii). 

6 Teague v. Lane, 489 U.S. 288, 310 (1989).

7

Schriro v. Summerlin, 542 U.S. 348, 351 (2004).
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may be applied retroactively.8 A case does not announce a new substantive rule 

when it merely applies or clarifies principles from a previous case.9 “To qualify as 

watershed under the second exception, a rule must[:]” (1) “be necessary to prevent 

‘an impermissibly large risk’ of an inaccurate conviction;” and (2) “‘alter our 

understanding of the bedrock procedural elements essential to the fairness of a 

proceeding.’”10

Under Taylor v. State, a defendant has “an absolute right to withdraw a 

guilty but mentally ill plea before the plea is accepted by the court.”11 11 Del. C. § 

408(a) outlines the procedure the Court must follow in finding a defendant guilty 

but mentally ill:

Where a defendant’s defense is based upon allegations 

which, if true, would be grounds for a verdict of “guilty, 

but mentally ill” or the defendant desires to enter a plea to 

that effect, no finding of “guilty, but mentally ill” shall be 

rendered until the trier of fact has examined all appropriate 

reports (including the presentence investigation); has held 

a hearing on the sole issue of the defendant’s mental 

illness, at which either party may present evidence; and is 

satisfied that the defendant did in fact have a mental illness 

at the time of the offense to which the plea is entered. 

Where the trier of fact, after such hearing, is not satisfied 

that the defendant had a mental illness at the time of the 

offense, or determines that the facts do not support a 

“guilty, but mentally ill” plea, the trier of fact shall strike 

8 Powell v. Delaware, 153 A.3d 69, 72 (Del. 2016) (quoting Saffle v. Parks, 494 U.S. 484, 495 

(1990)).

9 Richardson v. State, 3 A.3d 233, 238 (Del. 2010); Younger v. State, 580 A.2d 552, 554 

(Del.1990)). 

10 Richardson, 3 A.3d at 239.

11 Taylor, 213 A.3d at 568.
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such plea, or permit such plea to be withdrawn by the 

defendant. A defendant whose plea is not accepted by the 

trier of fact shall be entitled to a jury trial, except that if a 

defendant subsequently waives the right to a jury trial, the 

judge who presided at the hearing on mental illness shall 

not preside at the trial.

In Taylor v. State, the Delaware Supreme Court also offered the following 

guidance for the proper procedures to follow when accepting a guilty but mentally 

ill plea:

For future guidance, we interpret [11 Del. C. § 408(a)] 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.12

The Court finds the holding and guidance from Taylor v. State do not 

represent either a new substantive rule of constitutional law, or a watershed rule of 

criminal procedure. Rather, the Delaware Supreme Court merely clarified the 

12 Id. at 569 n.45. 
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application of 11 Del. C. § 408(a). In Taylor v. State, the Delaware Supreme Court 

stated: “Our interpretation of § 408(a) is consistent with the rules of other courts 

generally applicable to any plea not yet accepted by the court, the common law, 

and, . . . a defendant’s Sixth Amendment autonomy interest in controlling his plea 

decision.”13 Because the Court merely clarified a § 408(a) and other caselaw, 

Taylor v. State did not announce a new “substantive rule” or “watershed rule of 

criminal procedure.”

Right to Withdraw Guilty Plea

If Taylor v. State were to constitute either a “new substantive rule,” or 

“watershed rule of criminal procedure,” Defendant contends that he had a right to

withdraw his guilty plea between when the Court accepted his plea, and when the 

Court adjudicated the Defendant mentally ill at the time of the crime. 

In Defendant’s case, the Court accepted Defendant’s plea during a hearing

on April 9, 2002.14 On June 27, 2002, the Court adjudicated the defendant guilty 

but mentally ill in a second hearing15“on the sole issue of the defendant’s mental 

illness.”

16 In between the two hearings, Defendant filed a Motion to Withdraw his 

13 213 A.3d at 568.

14 See State v. Lindsey, 2002 WL 1463103, at *1–2 (Del. Super.) (explaining the procedures the 

court went through in accepting the Defendant’s guilty plea).

15 June 27, 2002 Hr’g Tr, 19:1–6 (finding that Dr. Foster’s report and testimony show it was 

clear defendant suffered from mental illness at the time of the incident, and that the guilty but 

mentally ill plea was supported by substantial evidence).

16 11 Del. C. § 408(a).
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plea. The Court denied the motion on May 21, 2002—the same day the Court 

received Defendant’s note, stating: “I do wanna go along with my guilty but 

mentally ill plea because I apologize for the life I took[.] I didn’t mean it. I’m 

sorry for shooting the guy[.] [I]t was a mistake and [I’m] sorry for it.” 

The Defendant’s arguments concerning the Court’s alleged procedural 

shortcomings conflate “accepting the plea” with the Court’s adjudication of the 

Defendant being mentally ill at the time of the crime. The Court’s acceptance of 

the plea, and the Court’s adjudication of the Defendant being mentally ill at the 

time of the crime, are two separate procedures. The requirement that the Court 

hold a hearing where the sole issue is the defendant’s mental illness is only 

necessary before the adjudication of the Defendant’s mental illness—not before the 

acceptance of the plea. The Court’s acceptance of the guilty but mentally ill plea 

may take place before the subsequent hearing where the sole issue is the 

defendant’s mental illness. 

The Court finds the Defendant did not have an absolute right to withdraw his 

guilty plea after the plea was accepted by the Court in the first hearing. Once the 

Court accepts the guilty but mentally ill plea, the Defendant no longer has an 

unconditional right to withdraw his plea. By accepting Defendant’s plea in the 

first hearing, and adjudicating that Defendant was mentally ill at the time of the 
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crime in the second hearing, the Court followed the procedure permitted by 11 Del. 

C. § 408(a) and amplified and clarified in Taylor v. State. 

CONCLUSION

The Court finds that the Commissioner’s Report and Recommendation,

dated January 11, 2023, should be adopted for the reasons set forth therein. The 

Commissioner’s findings are not clearly erroneous, are not contrary to law, and are 

not an abuse of discretion.17 

THEREFORE, after careful and de novo review of the record in this action, 

the Court hereby adopts the Commissioner’s Report and Recommendation in 

its entirety. Defendant’s Motion for Leave to File an Amended Rule 61 Motion 

for Postconviction Relief is hereby DENIED. Defendant’s Motion for 

Postconviction Relief is hereby SUMMARILY DISMISSED. DEFENDANT 

SHALL NOT BE PERMITTED TO FILE FUTURE MOTIONS FOR 

POSTCONVICTION RELIEF WITHOUT FIRST OBTAINING LEAVE OF 

THE COURT. 

IT IS SO ORDERED.

/s/ Mary M. Johnston

The Honorable Mary M. Johnston

17 Super. Ct. Crim. R. 62(a)(4)(iv).