Opinion
I.D. No. 0407015658.
Submitted: July 7, 2008.
Decided: July 21, 2008.
UPON CONSIDERATION OF DEFENDANT'S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF
DENIEDThis 21st day of July, 2008, it appears to the Court that:
1. On April 6, 2006, a jury found Defendant Mark A. Warren ("Warren") guilty of Assault in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited. Warren was found to be an habitual offender and was sentenced to life imprisonment for his assault conviction, as well as additional sentences for his weapons convictions. His convictions were upheld on direct appeal.
Warren v. State, 925 A.2d 505, 2007 WL 1192059 (Del. Apr. 24, 2007) (Table).
2. Prior to his trial, Warren underwent a psychological and psychiatric evaluation to determine his competency to stand trial and his mental status at the time of the offenses. The physician who evaluated Warren concluded that Warren was competent to stand trial and was not guilty by reason of insanity, nor was he guilty but mentally ill.
3. Warren filed his first pro se Motion for Postconviction Relief on April 25, 2008. In his motion, Warren raises four claims. First, he argues that his counsel was ineffective because his attorney (1) never discussed the legal strategy with him; (2) failed to investigate facts and evidence; (3) never responded to calls or letters; (4) failed to prepare for trial; (5) made derogatory statements to him; (6) failed to investigate Warren's mental illness and depression; and (7) never subpoenaed character witnesses on Warren's behalf. Second, he contends that his psychological evaluation was meritless because it occurred twenty-three months after his crimes and because "paperwork was lost." Third, he argues that he had a conflict of interest with his public defender and with a jury member because a jury member went to the same school as a State witness. Although he asserts that he filed a motion to recuse his defense counsel because it was in his best interests, he does not offer any basis to suggest that counsel was conflicted. Fourth, because the victim had prior domestic issues and a criminal record, he contends that his right to a speedy trial was somehow violated. Warren offers no evidence in support of his claims.
4. In response, counsel submitted an affidavit in which he states that he: (1) consulted with Warren on more than one occasion and advised him of his rights and of the plea offer in the case; (2) reviewed the facts and medical records from the Forensics Services Unit and had his investigator interview the defendant and twelve other people identified by the defendant at least once; (3) submitted a request for Warren to be evaluated at the Delaware Psychiatric Center, whose resulting examination indicated that defendant was competent and not guilty by reason of insanity or guilty but mentally ill; (4) communicated with Warren in writing and in person and answered questions and offered information and legal opinions; (5) does not recall making a derogatory statement to him, nor can he respond where Warren has failed to offer any information about the remark; (6) denies having a conflict of interest with the defendant; and (7) lacks sufficient information to admit or deny that a jury member had a conflict of interest with a State witness, although he could not identify any conflict when reviewing the trial transcript. Counsel does admit that he failed to subpoena character witnesses on Warren's behalf but argues that he was unware of any favorable character witnesses. Moreover, he states that, had he known of these witnesses, he would not have called them as a matter of strategy because doing so would have rendered evidence of defendant's prior violent behavior admissible.
5. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
6. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply "to a claim that the court lacked jurisdiction or to 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." Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
7. In this case, most of Warren's claims are procedurally barred. Although he has filed this motion within one year of his conviction being finalized, Rule 61(i)(3) bars the claims that should have been raised in his direct appeal to the Supreme Court, including his claims that: (1) the psychological evaluation was meritless; (2) he had a conflict of interest with his attorney; and (3) his right to a speedy trial was violated. As a result, the Court will not consider any of these claims. The Court will, however, consider his claims of counsel's alleged ineffectiveness because they are now properly before this Court.
The Supreme Court filed its mandate affirming his convictions on May 17, 2007. Docket 43. Warren filed this motion on May 1, 2008, which is within the one-year period afforded by the Rules.
In his appeal, Warren did not raise any issues for the Supreme Court to consider. Even had he raised these issues, however, they would have lacked any merit. See Warren, 925 A.2d 505, 2007 WL 1192059 at *1 ("This Court has reviewed the record carefully and has concluded that Warren's appeal is wholly without merit and devoid of any arguably appealable issue.").
See, e.g., State v. Morla, 2007 WL 2566012, at *3 (Del.Super.Ct. Aug. 30, 2007) (finding that a claim of ineffective assistance of counsel is not procedurally barred because it "is a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of a proceeding.")
8. To evaluate Warren's ineffective assistance of counsel claims, the Court applies the two-part test of Strickland v. Washington. Under Strickland,
446 U.S. 668 (1984).
"the defendant must show that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different." In applying the two-part Strickland test to a defendant's claim, the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688, 694).
9. Warren has failed to meet this burden. Although he has made numerous allegations that his counsel was ineffective, these allegations are entirely conclusory and unsubstantiated. Warren does not state, for example, what derogatory statement was made or when counsel made it. While he claims that a jury witness had a conflict of interest with a State witness and that he himself had a conflict with counsel, at no time in his motion does he suggest what those conflicts were. Without any supporting evidence, the Court will not address his claims.
See, e.g., State v. Jordan, 1994 WL 637299, at *3 (Del.Super.Ct. Jun. 23, 1994), aff'd, 648 A.2d 424, 1994 WL 466142 (Aug. 25, 1994) (Table) ("This Court need not address Postconviction Relief claims that are conclusory and unsubstantiated."); State v. Brown, 1998 WL 735880, at *3 (Del. Super Ct. Aug. 20, 1998), aff'd, 734 A.2d 640, 1999 WL 591450 (Del. May 21, 1999) (Table) ("Conclusory claims raised in a defendant's motion for postconviction relief are insufficient to prove ineffective assistance of counsel and will not be addressed.").
10. Even if the Court were to address these claims, however, Warren has failed to rebut the strong presumption that counsel's conduct was reasonable. Counsel has stated that he spoke with defendant on more than one occasion, advised him of his rights, offered legal opinions, interviewed witnesses, and researched his case. The Delaware Psychiatric Center's examination indicated that Warren was competent for trial and that he could not use either of the defenses of guilty but mentally ill or not guilty by reason of insanity. Although counsel admits that he failed to call any character witnesses on Warren's behalf, counsel has explained that he would not have called any of those witnesses, even if he had known of them, because he would thereby subject the defendant to having his prior violent behavior exposed to the jury. This strategic decision was made in the reasonable exercise of counsel's judgment. Because Warren has not demonstrated that counsel's representation fell below an objective standard of reasonableness or that the result of his trial would have been different, Warren has failed to demonstrate that counsel was ineffective.
The Court notes that Warren has not suggested who the character witnesses would be, what testimony his character witnesses might have offered at trial, or how the character witness testimony would have changed the outcome of his trial. Failure to show how the outcome of his trial was prejudiced by counsel's alleged failure to subpoena character witnesses is fatal to his ineffective assistance of counsel claim. See, e.g., Brown, 1998 WL 735880 at *3.
See, e.g., State v. Lopez, 2008 WL 601743, at *2 (Del.Super.Ct. Feb. 28, 2008) (citing Strickland, 466 U.S. at 689) ("The Defendant has failed to overcome the presumption that counsel's choices were appropriate trial strategy under the circumstances, and this claim fails the first prong of the Strickland test.").
11. For all of the foregoing, Warren's Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.