Opinion
ID No. 70020933DI.
Date Submitted: June 29, 2007.
Date Decided: July 18, 2007.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief.
DENIED.
ORDER
This 18th day of July, 2007, upon consideration of the Motion for Postconviction Relief brought by Defendant, David Muzzi, it appears to the Court that:
1. On January 23, 1969, a jury convicted David Muzzi ("Defendant") of rape in the first degree. On June 30, 1969, this court sentenced Defendant to "[b]e imprisoned for the rest of his natural life[.]"
Docket Item, ("D.I.") 23, Sentencing Order.
2. On July 8, 1969, Defendant filed a Notice of Appeal to the Supreme Court of Delaware. Defendant claimed that the trial judge abused his discretion when he refused to accept Defendant's guilty plea to the lesser offense of assault with intent to commit rape. On April 15, 1970, the Supreme Court of Delaware held that the trial judge did not abuse his discretion because Defendant would not admit that he committed the offense to which he was pleading guilty. The Supreme Court then affirmed Defendant's conviction.
D.I. 25, Notice of Appeal.
Muzzi v. State, 265 A.2d 31, 32 (Del. 1970).
Id. at 33.
Id. at 34.
On January 11, 1977, Defendant pled guilty to a charge of escape after conviction, stemming from a 1975 prison escape, and was sentenced to three years in prison to run consecutively with his life sentence. Defendant filed his first motion for modification of sentence on January 19, 2000, and his second on February 5, 2005. This court denied both motions.
D.I. 1, Motion for Modification of Sentence.
On January 29, 2007, Defendant filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Defendant asserts three grounds for relief that implicate two broad issues: (1) factual inconsistencies in the evidence presented at trial that undermine the conviction; and (2) ineffective assistance of counsel. Defendant claims that testimony at trial demonstrates that he and the victim were in different locations at the time the rape occurred and was reported. Defendant also claims, as best as the Court can discern, that a doctor's testimony at trial demonstrates that no rape occurred, and is, therefore, inconsistent with his conviction. Lastly, Defendant claims "Effective [sic] Assistance of counsel. I feel that he did not do his job right in my case and he only talked to me one time."
D.I. 3, Motion for Postconviction Relief.
Id. In particular, Defendant states "(5) Thing at the same time. (1) The girl said the rape ended at 9:30 a.m. (2) The case worker seen her at 9:30 a.m. (3) The cop said he get the call at 9:30 a.m. and he (4) said he seen her at 9:30 a.m. at Banner Park (5) and that the Defendant was at 2900 Lancaster Av at 9:30 a.m." Id.
Id. Defendant states, "What the doctor said. The doctor said there was no force entry that the sperm was too far up in her vagina and that it was 10 to 12 hours before she wasn't raped before he had any sex relations!" Id.
Id.
5. Before addressing the merits of any postconviction relief claim, the Court must determine whether the claims pass through the procedural filters of Rule 61. Rule 61 imposes four procedural imperatives on a defendant's motion: (1) the motion must be filed within three years of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction
See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (stating that the court will not address the substantive merits of defendant's motion for postconviction relief if the claims are procedurally barred).
The Court notes that as of July 1, 2005, Rule 61(i)(1) allows for one year to file a motion for postconviction relief after a judgment of conviction becomes final.
proceedings; (3) any basis for relief not asserted in the proceedings below as required by the court rules is subsequently barred unless defendant can show cause and prejudice; and (4) any ground for relief must not have been formerly adjudicated in any proceeding unless warranted in the interest of justice. Under Rule 61(i)(5), a defendant may avoid the first three procedural imperatives if the claim is jurisdictional or is "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
SUPER. CT . CRIM . R. 61(i)(5).
6. A judgment of conviction is final for the purposes of postconviction review under the following circumstances:
(1) if the defendant does not file a direct appeal, 30 days after the Superior Court imposes sentence; (2) if the defendant files a direct appeal or there is an automatic statutory review of a death penalty, when the Supreme Court issues a mandate or order finally determining the case on direct review; or (3) if the defendant files a petition for certiorari seeking review of the Supreme Court's mandate or order, when the U.S. Supreme Court issues a mandate or order finally disposing of the case on direct review.
SUPER. CT . CRIM . R. 61(m).
7. Although Defendant's first motion is not repetitive under Rule 61(i)(2), it is still procedurally barred. His motion was not filed within three years of the final order of conviction. Rather, Defendant filed this motion over thirty-six years after
the Supreme Court of Delaware issued its final order of conviction on April 15, 1970. In addition to the fact that the motion has not been timely filed, other procedural bars are implicated here that require the Court to deny the motion. They will be addressed below.
See Muzzi, 265 A.2d at 34 (affirming the Superior Court's conviction of Defendant).
A. Factual Inconsistencies at Trial
8. Defendant alleges two instances where factual inconsistencies in the evidence at trial justify post conviction relief. Both claims are barred under Rule 61(i)(3). Specifically, Defendant has not shown cause for his failure to raise these issues on appeal or that "there was a `substantial likelihood' that, if [the issues had been raised] during his appeal, the outcome of his case would have been different." Defendant's claims are also barred under Rule 61(i)(4) because the alleged factual inconsistencies were formerly adjudicated at trial and Defendant has not made a showing that these claims must be heard in the interest of justice. This Court will not question or disturb the jury's findings of fact. Although Defendant did not raise these issues on appeal or in a prior motion, the issues of fact were decided at trial by the jury. Defendant, through counsel, had the opportunity to present evidence, raise defenses, and rebut the State's evidence, including the allegedly conflicting testimony regarding his alibi and the doctor's testimony. He did not successfully rebut that evidence because the jury convicted him. The unfavorable outcome does not diminish the jury's role in resolving any factual inconsistencies presented at trial. In addition, Defendant has neither made a claim that there have been subsequent legal developments that deprived the trial court of its authority to convict and punish the Defendant, nor has he alleged that sufficient factual developments have occurred since his conviction that would warrant reconsideration in the interest of justice.
Flamer v. State, 585 A.2d 736, 748 (Del. 1990). See also Blackwell v. State, 736 A.2d 971, 972 (Del. 1999) (requiring defendant to show "cause" and "actual prejudice" to raise additional claims not previously asserted in a postconviction proceeding).
See SUPER. CT . CRIM . R. 61(i)(4).
See Albury v. State, 551 A.2d 53, 60 (Del. 1988) ("It has long been our law that the jury is the sole judge of the credibility of the witnesses and responsible for resolving conflicts in the testimony."). See also Tyre v. State, 412 A.2d 326, 330 (Del. 1980) (explaining that it is "the duty of the jury to determine if the State has proved each necessary element of the charges beyond a reasonable doubt[.]").
See Flamer, 585 A.2d at 746 (explaining that subsequent legal developments may warrant reconsideration). See also Weedon, 750 A.2d at 527 (explaining that subsequent factual developments may warrant reconsideration in the interest of justice).
9. Defendant likewise cannot avail himself of the Rule 61(i)(5) fundamental fairness exception. The fundamental fairness exception allows a defendant to avoid the first three procedural bars if: (1) the court lacked jurisdiction or (2) he states a colorable claim that must be remedied to avoid a miscarriage of justice. This exception is narrow and the defendant has the burden of proof to show that there has been a deprivation of a substantial constitutional right that "undermined the fundamental . . . reliability" of the prior proceeding. Defendant's assertion that the evidence to convict him was inconsistent cannot be considered under the fundamental fairness exception because Defendant does not allege a substantial deprivation of a constitutional right. Defendant's first two grounds for
See SUPER. CT . CRIM . R. 61(i)(5) (Bar to relief shall not apply to a constitutional violation "that undermined the fundamental legality, reliability, integrity, or fairness of a proceeding leading to the judgment of conviction.").
Id.
Id. See also Younger, 580 A.2d at 555 (limiting application of fundamental fairness exception).
postconviction relief are, therefore, procedurally barred.
B. Ineffective Assistance of Counsel
10. Defendant's final contention is ineffective assistance of counsel. Defendant alleges, "Effective assistance of counsel[sic] — I feel that he did not do his job right in my case and he only talked to me one time." Defendant's third claim is procedurally barred because it is not timely and Defendant has failed to establish a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
D.I. 3.
SUPER. CT . CRIM . R. 61(i)(1); 61(i)(5).
11. The Court notes that Defendant could not have raised his ineffective assistance of counsel claim at trial or on direct appeal and it is, therefore, not barred under Rule 61(i)(3). Defendant's contention is also not barred under Rule 61(i)(4) because it has not been previously adjudicated. Nevertheless, Defendant cannot proceed with his untimely claim unless he satisfies the fundamental fairness exception contained in Rule 61(i)(5).
See Cobb v. State, 1996 WL 21057, at *3 (Del. Jan. 10, 1996) (explaining Rule 61(i)(3) bars all claims not raised in prior proceedings except a claim of ineffective assistance of counsel). See also Harris v. State, 293 A.2d 291, 293 (Del. 1972) (citing O'Connor v. Warden, Md. Penitentiary, 253 A.2d 434, 594 (Md.App. 1969)) ("[T]he allegation that trial counsel was incompetent need not be raised either at trial or on direct appeal in order to be available as a ground for relief under a first petition instituted under [a postconviction motion]."); SUPR. CT. R. 8 ("Questions which may be Raised on Appeal — Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.").
12. Defendant cannot avail himself of the fundamental fairness exception. Under Rule 61(i)(5), the first three procedural impediments do not apply to either a claim that the court lacked jurisdiction or a colorable claim that there was a miscarriage of justice because of a constitutional violation. As noted above, this exception is narrow and the defendant has the burden of proof to show that there has been a deprivation of a substantial constitutional right. Because Defendant has not challenged the court's jurisdiction in the motion sub judice, his ineffective assistance of counsel claim must state a colorable claim of a constitutional violation to survive the procedural bar of Rule 61(i)(1).
See Younger, 580 A.2d at 555 (limiting application of fundamental fairness exception).
13. To prevail on an ineffective assistance of counsel claim, Defendant "must show that his counsel's representation fell below an objective standard of reasonableness, and that but for his counsel's errors, the outcome of the trial would have been different." Defendant must provide the Court with sufficient facts to support his claim, not merely a conclusory allegation, to invoke the fundamental fairness exception. Defendant has not provided the Court with anything other than a conclusory allegation of ineffective assistance of counsel. Defendant has neither alleged facts showing that his "counsel's representation fell below an objective standard of reasonableness," nor has he pointed to anywhere in the record to support his factual allegation that counsel was ineffective. Consequently, Defendant has failed to demonstrate a "colorable claim that there was a miscarriage of justice" under Rule 61(i)(5). Therefore, Defendant's third claim is procedurally barred. 14. Based on the foregoing, Defendant's motion for postconviction relief is DENIED.
Guinn v. State, 882 A.2d 178, 181 (Del. 2005) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
See Jordan v. State, 648 A.2d 424, 424 (Del. 1994) (declaring that entirely conclusory allegations are legally insufficient to prove ineffective assistance of counsel). See also State v. Cooper, 2001 WL 1729147, at *2 (Del.Super.Ct. Dec. 20, 2001) (The court summarily dismissed defendant's claims of ineffective assistance of counsel and false testimony where claims were stated in a conclusory manner and "offer no specific, supporting facts to sustain the defendant's mere assertions."); State v. Brittingham, 1994 WL 750341, at *2 (Del.Super.Ct. Dec. 29, 1994) ("It is settled Delaware law that allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel."); Zimmerman v. State, 1991 WL 190298, at *1 (Del.Super.Ct. Jan. 5, 1990) ("This Court will not address Rule 61 claims that are conclusory and unsubstantiated.").
See Strickland, 466 U.S. at 688 (noting also that the first prong of Strickland contains a "strong presumption that counsel's conduct was professionally reasonable."). See also Albury, 551 A.2d at 58-59 (Del. 1988) (same).
IT IS SO ORDERED.