State v. Ayers

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. No. 1710003395
)
JARREAU AYERS, )
)
Defendant. )

Submitted: February 27, 2025
Decided: April 3, 2025

OPINION

Upon Defendant’s Motion for Post Conviction Relief,
DENIED

Andrew J. Vella, Esquire, Chief of Appeals, Delaware Department of Justice,
Wilmington, Delaware. Attorney for the State of Delaware.

Richard Sparaco, Esquire, Law Office of Richard Sparaco, LLC, Lewes, Delaware.
Attorney for Jarreau Ayers.

BUTLER, R.J.
Jarreau Ayers asks the Court to review his trial, conviction, and direct appeal

via the device of Rule 61 of the Delaware Rules of Criminal Procedure. But he has

a problem. His motion was filed late. So the question the Court must decide, before

deciding the merits, is whether the motion is properly before the Court.

FACTS

Ayers is an inmate at the Delaware Correctional Center in Smyrna, Delaware.

On February 1, 2017, he was housed in C building when a riot broke out. The riot

resulted in the inmates’ capture of two guards and a prison counselor. One of the

guards was beaten to death by the inmates. 1

The building in which the riot took place did not have video cameras operating

at the time. As might be expected when reconstructing a riot, there were many

accounts of what happened, very few of which were consistent with one another. All

told, some 18 inmates were charged with crimes resulting from the incident.2 After

indictment in the Superior Court, the cases were segregated for purposes of trial into

1
See Ayers v. State, 251 A.3d 637, 638-39 (Del. 2021) as corrected (Apr. 23, 2021).
2
Id.

2
5 groups. 3 Ayers, co-defendants Dwayne Staats, Roman Shankaras, and Deric

Forney were designated as “Group 1” and scheduled first. 4

Pretrial delays in discovery of inmate statements and the identities of which

inmate witnesses would be testifying led to delays in appointed counsel

understanding their potential conflicts, which led to a late withdrawal of

representation by Ayers’ appointed counsel. 5 Ayers elected to represent himself at

trial rather than waiting for new counsel’s appointment. Ayers’ pro se status at trial

is a focal point of much of his Rule 61 petition, but it obviously makes ineffective

assistance of counsel claims – the I-95 of most Rule 61 claims – problematic.

All of this would be appropriate grist for a Rule 61 proceeding, but the

Supreme Court has held repeatedly that procedural compliance with Rule 61 motions

must be addressed before moving to the merits.6 In this case, the timing of the

petition is flawed.

3
Appendix 3-4.
4
A3-4, A118.
5
A13, A137-38.
6
See, e.g. Younger v. State, 580 A.2d 552, 554 (Del. 1990) (“This Court applies the rules
governing procedural requirements before giving consideration to the merits of the underlying
claim for postconviction relief.”).

3
After conviction, Ayers filed a timely direct appeal with the Delaware

Supreme Court. In that endeavor, he was appointed appellate counsel. Appellate

counsel raised a single issue in the direct appeal: the propriety of the prosecution’s

closing argument. The conviction was affirmed by a decision of the Delaware

Supreme Court, which issued its written Opinion on April 22, 2021, corrected on

April 23, 2021.7

The “Record and Mandate to the Court below” was issued on Monday, May

10, 2021.8 Superior Court received the record and mandate on Friday, May 14, as

reflected by the Superior Court Prothonotary’s stamp on the cover page. 9 The

Superior Court Prothonotary acknowledged receipt by e-filing a receipt back to the

Supreme Court on Monday, May 17, 2021. 10

Five months later, in October, 2021, Ayers wrote to the trial judge, seeking the

appointment of counsel. Notably, he did not file a Rule 61 petition. The Trial Judge,

recognizing that his request for counsel was not a motion seeking relief under Rule

61, cautioned the Defendant that the one-year clock for filing a Rule 61 motion was

7
Ayers, 251 A.3d at 637.
8
Ayers v. State (ID No. 436, 2019), D.I. 62 Record and Mandate, Trans. ID. 66585119 (May 10,
2021).
9
Ayers v. State (ID No. 436, 2019), D.I. 63 Prothonotary's Receipt of Record and Mandate,
Trans. ID 66606547 (May 17, 2024) at 1.
10
Id.
4
ticking and that requests for appointment of counsel would only be considered when

accompanied by a motion for relief under Rule 61. 11 The Court said specifically:

[T]he Court is denying your Motion for Appointment of Counsel without
prejudice at this time. You may file a Rule 61 Motion as well as another
Motion for Appointment of Counsel and the motions will be considered when
they are received. Just to remind you, you have one year from the issuance of
the mandate by the Delaware Supreme Court which occurred on May 14, 2021
to file your Rule 61 motion.12

The Defendant filed a second motion for appointment of counsel from a prison

in Pennsylvania in March, 2022. The Court again responded that it would not

appoint counsel without an accompanying Rule 61 motion and that the clock was

ticking on his filing a timely motion. The Court said:

11
State v. Ayers (ID No. 1710003395), D.I. 155 Letter from Ct. to Def. at 1 (Oct. 7, 2021).
12
Id. The Court notes that the Mandate actually issued on May 10, 2021, not May 14, 2021. It
was logged by the Superior Court Prothonotary on May 14, 2021, but the distinction is irrelevant
for these purposes. “Rule 61(i)(1) provides, among other things, that a motion for postconviction
relief may not be filed more than one year after a judgment of conviction is final. We have held
that a judgment of conviction is final once this Court issues the mandate following a defendant's
direct appeal.” Guy v. State, 82 A.3d 710, 715 (Del. 2013) (citing Staats v. State, 961 A.2d 514,
517 (Del. 2008)); see also State v. Baker, 2011 WL 4638790, at *2 (Del. Super. Sept. 22, 2011)
(citing Super. Ct. Crim. R. 61(m)(2)) (“when the Defendant has filed a direct appeal, the one year
window begins when the Supreme Court issued a mandate or order finally determining the case
on direct review.”); State v. Washington, 2011 WL 379420, at *2 (Del. Super. Feb. 2, 2011) (citing
Del. Super. Docket No. 26) (“The one year window for filing a motion for postconviction relief
began no later than December 14, 2009, when the Supreme Court issued its mandate and ended
one year later on or about December 15, 2010. Defendant failed to file his motion for
postconviction relief during this applicable one-year limit. Defendant's motion, filed in January
2011, was filed outside the applicable one-year limit, and is time-barred.”).
5
The Rule is strictly written and you have one year from the date of the
Supreme Court Mandate to file the Rule 61 motion. As the Court indicated
previously, that deadline will be May 14, 2022.13

On May 17, 2022 – one year and seven days after the mandate was issued by

the Supreme Court – Ayers filed his Rule 61 petition and contemporaneous request

for appointment of counsel. The trial judge granted the request to appoint counsel.

Thereafter, Rule 61 counsel undertook an exhaustive preparation and review of the

record, including all pretrial proceedings, the trial and the direct appeal. Rule 61

counsel then filed a 73-page brief in support of Rule 61 relief, which has been

answered by the State and replied by Rule 61 counsel.

DISCUSSION

“The first inquiry in any analysis of a post-conviction relief claim is whether

the petition meets the procedural requirements of Rule 61.” 14 Rule 61(i)(1) “timing

requirement” states that a “motion for postconviction relief may not be filed more

than one year after the judgment of conviction is final.” When does a conviction

become “final” for purposes of commencing the one-year clock to time a Rule 61

motion?

13
State v. Ayers (ID No. 1710003395), D.I. 158 Letter from Ct. to Def. at 1 (Mar. 17, 2022).
14
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991) (citing Flamer v. State, 585 A.2d 736, 747 (Del.
1990)).

6
While Rule 61 does not contain a definition of “final,” the case law does. The

Supreme Court has ruled that finality for purposes of counting a timely petition

under Rule 61 begins on the date the Supreme Court issues its Mandate on the direct

appeal. 15 Here, the Supreme Court’s Mandate on the direct appeal was issued on

May 10, 2021.16 A Rule 61 filed on or before May 10, 2022 would be considered

timely. A Rule 61 filed thereafter would be untimely and subject to dismissal. This

Rule 61 motion was filed on May 17, 2022. 17 It is untimely.

Ayers affirmatively pleads in his account of these proceedings that he filed his

Rule 61 motion on May 17, 2022.18 There is simply no question that he is correct.

15
“ Pursuant to Rule 61(i)(1), a motion for postconviction relief must be filed within one year
after the judgment of conviction is final, which occurs ‘when the Supreme Court issues a
mandate or order finally determining the case on direct review.’” Redden v. State, 150 A.3d 768,
773 (Del. 2016) (citing Super. Ct. Crim. R. 61(m)(2)).
16
Ayers v. State (No. 436, 2019), D.I. 62 Record and Mandate (May 10, 2021), Trans. ID
66585119.
17
State v. Ayers (ID No. 1710003395), D.I. 160 Mot. for Post-Conviction Relief at 1 (May 17,
2022); see also A2810.
18
State v. Ayers (ID No. 1710003395), D.I. 173 Suppl. Br. in Supp. of Pet’r’s Mot. for
Postconviction Relief at 47-48 (Dec. 27, 2023).

7
The State raised the timeliness issue in its answering brief. 19 The State takes the

position that there is nothing else to discuss as the motion was untimely.20

In reply, Ayers argues that his petition was timely because the Superior Court

Prothonotary lodged an acknowledgment of receipt of the Mandate of the Supreme

Court on May 17, 2022, the same day the petition was filed.21 But the date of the

Superior Court’s acknowledgment of receipt of the Supreme Court’s Mandate is

essentially irrelevant. The relevant date is the date of the Mandate, not the date

Superior Court affirms receipt of the Mandate.

In his reply, Ayers argues that failure to consider the merits of his motion

notwithstanding its untimeliness would constitute a “miscarriage of justice.” Ayers

says this is so because he is a long-term prison inmate, frequently confined to solitary

confinement and therefore given to various mental and emotional conditions that

would have contributed to his inability to comply with the filing deadline. Support

for this proposition is said to be found in the case of Epperson v. State.22 Perhaps

19
State v. Ayers (ID No. 1710003395), D.I. 185 State’s Resp. to Def.’s Amended Mot. for
Postconviction Relief at 7-8 (Aug. 14, 2024).
20
State v. Ayers (ID No. 1710003395), D.I. 196 State’s Resp. to Ct.’s Nov. 25, 2024 Order at 4-5
(Feb. 26, 2025).
21
State v. Ayers (ID No. 1710003395), D.I. 187 Pet’r’s Reply to State’s Br. in Opp’n to Pet’r’s
Mot. for Post-Conviction Relief at 2 (Oct. 3, 2024).
22
Id. at 1 (citing Epperson v. State, 901 A.2d 119, 119 (Del. 2006)). Epperson is hardly the
poster child for a miscarriage of justice. Rather, the specific holding was that Epperson had so
8
there was a “miscarriage of justice” standard in Rule 61(i)(5) when Epperson was

decided, but it is not there now. 23

Having concluded that the motion was untimely, the Court asked the parties

for additional briefing to hear what, if any, exception or exemption might apply that

would forgive the default in timing of this Rule 61 motion. The Court has heard

back from the parties and this is what they said:

Ayers asks the Court to consider that he is an inmate with limited access to

law libraries, mental health treatment or legal counselling concerning deadlines. He

believed mailing within the time limit would satisfy the rule’s requirement. He has

further appended to his pleading a declaration that on May 10, he was housed in

solitary confinement in Pennsylvania but nonetheless transmitted his motion to

prison authorities on May 10. Acknowledging that the Delaware Supreme Court

ruled in Carr v. State24 that there was no equitable tolling doctrine applicable to Rule

worn out his welcome in filing successive Rule 61 motions that he was barred from doing so
again without leave of the Court.
23
The Epperson Court, apparently acknowledging that a miscarriage of justice standard would
have invalidated the bar to filing a successive motion, said “in the absence of any evidence of a
miscarriage of justice, we conclude that the Superior Court correctly denied Epperson’s motion.”
Epperson, 901 A.2d at 119. The term “miscarriage of justice” is not found in the version of Rule
61 in effect as of the filing of this motion. See Webster v. State, 604 A.2d 1364, 1365 (Del. 1992)
(recounting a rule change to Rule 61 to remove a “miscarriage of justice” as a basis for relief).
24
Carr v. State, 554 A.2d 778, 779 (Del. 1989).
9
61 motions, he asks the Court to overturn Carr, or, in the alternative, to adopt a

“mailbox rule” with respect to inmate filings.

The State responds as one might expect: Rule 61(i)(5) sets forth the very

limited bases upon which the Court might excuse the one-year filing requirement

and none of them are applicable here. This is not a case in which Ayers was denied

Rule 61 counsel. One was appointed after he finally filed a motion under Rule 61.

The rule does not allow appointment of counsel prior to the filing of a Rule 61

motion. Finally equitable tolling under Rule 61 has been rejected despite numerous

previous requests. 25

ANALYSIS

The Court wrote to the Defendant twice, gratuitously reminding him of the

one-year deadline applicable to Rule 61 motions.26 The Defendant points out that

the Court misstated the deadline to be May 14 when it was May 10th, but that doesn’t

matter. He filed on May 17.27 He was late filing under either deadline.

25
E.g., Chapman v. State, 931 A.2d 436, 436 (Del. 2007); Brathwaite v. State, 2015 WL 1966250
at *4 (Del. April 27, 2015) (citing Chapman, 931 A.2d at 436); State v. Miller, 2017 WL
1969780, at *13, n.86 (Del. Super May 11, 2017) (citing Chapman, 931 A.2d at 436).
26
State v. Ayers (ID No. 1710003395), D.I. 155 Letter from Ct. to Def. at 1 (Oct. 7, 2021); State
v. Ayers (ID No. 1710003395), D.I. 158 Letter from Ct. to Def. at 1 (Mar. 17, 2022).
27
State v. Ayers (ID No. 1710003395), D.I. 160 Mot. for Post-Conviction Relief at 1 (May 17,
2022); see also A2810.
10
Defendant’s arguments concerning his inmate status and access to legal

materials, conditions of confinement and so forth are not well taken. Rule 61 expects

that it will be used almost exclusively by inmates in prisons with the same limitations

of access about which he complains. Were the Court to accept the proposition that

he gets extra time because he is an inmate, the deadline in the rule would mean

nothing.

Defendant advocates for a “mailbox rule” for inmate pleadings; but there is

no such mailbox rule applicable to inmate pleadings in Delaware. Indeed, Delaware

Rules of Criminal Procedure Rule 45 relating to “Time” specifically rejects time

extensions under Rule 61, whether for “good cause” or “excusable neglect”: “the

court may not extend the time for taking any action under Rules 29, 33, 34, 35, and

61(i)(1), except to the extent and under the Conditions stated in them.” 28 There are

no conditions “stated” in Rule 61 that except the motion from the 1 year time

requirement. In fact, Rule 61(i)(1) says “A motion for postconviction relief may not

be filed more than one year after the judgment of conviction is final” except for

retroactively applied new rules of constitutional law, which is not applicable to this

motion.

28
Super. Ct. Crim. R. 45(b).

11
Exceptions, extensions and waivers of the time requirement appear to have

universally failed when it comes to the timely filing of a Rule 61 motion. 29 Perhaps

this is due to the recognition that inmates usually suffer the very limitations

articulated by the Defendant here and to allow some exceptions puts the Court in the

dubious position of having to determine which pleadings (or pleaders) are worthy of

exception and which are not. A “bright line” rule of 1 year from the date the mandate

issues has at least the benefit of clarity and easy, uniform application.

Finally, the Supreme Court has specifically rejected the concept of “equitable

tolling” in the face of late pro se inmate pleadings.30 After considering the argument,

the Supreme Court spoke with refreshing clarity: “The doctrine

of equitable tolling is inapplicable to a motion for postconviction relief.”31

There is no “mailbox rule” for inmate pleadings in Delaware.32 There is no

equitable tolling of the Rule 61 deadline for filing.33 Rule 61 itself has no applicable

29
See, e.g., Foster v. State, 38 A.3d 1254, 1254 (Del. 2012).
30
“[I]t is settled law that the equitable tolling doctrine does not apply to a motion for
postconviction relief.” Hassett v. State, 147 A.3d 1133, 1133 (Del. 2016) (citing Turnage v. State,
2015 WL 6746644, *2 (Del. Nov. 4, 2015)).
31
Chapman, 931 A.2d at 436.
32
“ Delaware courts have never adopted a prison mailbox rule.” George v. State, 209 A.3d 24, 24
(Del. 2019) (citing Smith v. State, 47 A.3d 481, 482 (Del. 2012)).
33
Brathwaite, 2015 WL 1966250 at *4 (citing Chapman, 931 A.2d at 436).
12
relaxation of the deadline on these facts and Rule 45 specifically bars consideration

of “excusable neglect” in failing to file within 1 year. Given these many barriers to

consideration of a late filed motion under Rule 61, the Court is required to dismiss

Defendant’s motion as time barred.

IT IS SO ORDERED.

/s/ Charles E. Butler
Charles E. Butler, Resident Judge

cc: Prothonotary

13