Opinion
Cr. ID No. 0603015418A.
Submitted: August 18, 2010.
Decided: November 10, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Martin B. O'Connor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Anthony A. Figliola, Jr., Esquire, 1813 Marsh Road, Suite A, Wilmington, Delaware, Attorney for Defendant.
This 10th day of November 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. Following a Superior Court jury trial, Defendant Anthony White was convicted of Attempted Murder First Degree and Possession of a Firearm During the Commission of a Felony. Defendant was sentenced on June 15, 2007, and received a lengthy prison sentence. Defendant filed an appeal with the Delaware Supreme Court, which was denied on September 5, 2008.
Anthony D. White v. State, 2008 WL 4107980 (Del.).
2. On January 14, 2009, Defendant filed a motion for postconviction relief and supporting memorandum pursuant to Superior Court Criminal Rule 61. Defendant alleged numerous and overlapping claims of ineffective assistance of counsel, prosecutorial misconduct and errors made by the trial judge.
3. The Superior Court assigned Defendant's postconviction motion to a commissioner for proposed findings and recommendations. In accordance with the commissioner's briefing schedule, Defendant's trial counsel filed an affidavit, the State filed a response and Defendant filed a reply. Following full briefing on Defendant's motion, the Superior Court Commissioner issued a Report and Recommendation dated May 1, 2009 recommending that the defendant's motion for postconviction relief be denied. By Order dated May 15, 2009, the Superior Court adopted the Commissioner's May 1, 2009 Report and Recommendation and denied Defendant's motion for postconviction relief.
Superior Court Docket No. 111.
Superior Court Docket No. 112.
4. On May 28, 2009, Defendant filed a "request for reconsideration" of the Commissioner's May 1, 2009 Report and Recommendation. Defendant argued that the Commissioner's factual findings and legal conclusions were flawed, and that the Commissioner had violated due process. By Order dated July 1, 2009, the Superior Court denied Defendant's "request for reconsideration". On August 3, 2009, the Superior Court issued an "amended order" that made a clerical correction to the first sentence of the May 15, 2009 Order denying Defendant's motion for postconviction relief.
Superior Court Docket No. 113.
Superior Court Docket No. 116.
Superior Court Docket No. 118. The "amended order" replaced the words "Count II of the Defendant's Second Motion" with the words "Defendant's Motion."
5. On June 15, 2009, Defendant filed an appeal from the Superior Court's May 15, 2009 denial of his motion for postconviction relief. By Order dated May 4, 2010, the Delaware Supreme Court affirmed the judgment of the Superior Court denying Defendant's motion for postconviction relief. Defendant filed a motion for reargument which was denied on May 12, 2010.
White v. State, 2010 WL 1781021 (Del.).
6. On August 16, 2010, Defendant filed the subject motion for postconviction relief. In the subject motion, Defendant simply ignores the fact that he has already contested the Commissioner's May 1, 2009 Report and Recommendation from his prior postconviction motion. He ignores the fact that he already appealed the report and recommendation to the Superior Court judge and thereafter appealed the Superior Court's Order to the Delaware Supreme Court. He ignores the fact that he fully exercised his appellate review rights from his prior postconviction motion. Finally, he ignores the fact that he raised the same challenges to the Delaware Supreme Court in the prior appeal and that the Delaware Supreme Court has already addressed these issues.
7. Instead, Defendant seeks to start all over again and contest the Commissioner's May 1, 2009 Report and Recommendation anew. Indeed, Defendant seeks to raise the same objections and challenges to the Commissioner's May 1, 2009 Report and Recommendation in this motion that he already raised in the prior motion and which have already been addressed by the Delaware Supreme Court. Defendant is not permitted to collaterally challenge the Commissioner's Report and Recommendation from his first motion for postconviction relief by the filing of a second motion for postconviction relief.
8. Under the Court rules and case authorities, it is well established that defendants are entitled to one direct appeal and one motion for postconviction relief. While the law provides ways around the one direct appeal-one postconviction relief format, those ways are limited. They only work in extreme and extraordinary cases. Were it not for Rule 61(i) prohibitions against repetitive motion practice, defendants serving long sentences, such as Mr. White, could litigate endlessly.
State v. Bass, 2004 WL 396372 (Del.Super.), aff'd, 2004 WL 1535769 (Del.).
9. In the subject motion, Defendant again seeks to challenge the Commissioner's emphasis on the videotape of the shooting. This challenge was already the focus of Defendant's May 28, 2009 "Request for Reconsideration", which the Superior Court addressed in its Order dated July 1, 2009. This issue was again raised before the Delaware Supreme Court in Defendant's prior appeal. The Delaware Supreme Court noted the extent to which the videotape of the shooting impacted the case. The Delaware Supreme Court stated that the videotape revealed that an individual dressed in black pulled out a gun aimed it at [the victim] and chased him into a nearby alley. The Delaware Supreme Court further noted that, at trial, Defendant's counsel argued that the videotape from the surveillance camera did not clearly depict the person who aimed the gun at [the victim] or that the person fired the gun.
White v. State, 2010 WL 1781021, *1 (Del).
White v. State, 2010 WL 1781021, *1 (Del).
10. Defendant merely ignores the Delaware Supreme Court's Order and discussion of this issue, makes no mention of it in Defendant's second motion, and seeks to challenge the Commissioner's May 1, 2009 Report and Recommendation all over again as if the Delaware Supreme Court had not already considered the issue.
11. In that same vein, Defendant also challenges the Commissioner's ruling on the trial court's contact with the jury. Again, Defendant simply ignores the fact that he already raised this issue before the Delaware Supreme Court and that the Delaware Supreme Court had already thoroughly evaluated and addressed this issue.
Id. at *2-4
12. 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. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim. Moreover, if it plainly appears from the motion for postconviction relief that the movant is not entitled to relief, the Court may enter an order for its summary dismissal and cause the movant to be notified.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Super.Ct.Crim.R. 61(d)(4).
13. 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 a 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 formally 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 justice."
If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005).
Super.Ct.Crim.R. 61(i)(5).
Super.Ct.Crim.R. 61(i)(4).
14. In this case, Defendant's claims are procedurally barred. Rule 61(i)(1) applies because Defendant filed this motion more than one year after his final order of conviction. Defendant's final order of conviction was in October 2008, and this motion filed on August 16, 2010, was filed over 2 years later, clearly outside the applicable one-year limit.
15. Moreover, since Defendant's claims have already been formally adjudicated they are now barred by Rule 61(i)(4). Any objection/challenge to the Commissioner's May 1, 2009 Report and Recommendation in his first postconviction relief motion should have been made by way of appeal in that first motion. To the extent that Defendant seeks to refine his challenges to the Commissioner's prior Report and Recommendation, he was already afforded, and exercised, his rights to the appellate process and any such challenges are now exhausted. Rules 61(i) (2) and (3) would prevent this Court from considering any additional arguments or claims not previously raised. Nothing stopped Defendant from raising whatever challenges to the Commissioner's prior report that he desired. Having already been provided with a full and fair opportunity to present any issues or challenges Defendant desired to be raised, any attempt at this late juncture to begin the appellate process anew is procedurally barred.
16. In the subject motion, Defendant also contends that two cases: Martel Washington v. State, 4 A.3d 375 (Del. 2010); and Blake v. State, 3 A.3d 1077 (Del. 2010), create some newly recognized applicable right.
17. As to Defendant's contention that the Delaware Supreme Court in Martel Washington v. State, 4 A.3d 375 (Del. 2010) somehow created some newly recognized applicable right, Defendant is incorrect in this regard. In Martel Washington, the Delaware Supreme Court stated that it was applying a principle that had been announced 40 years earlier in Bland v. State, 263 A.2d 286 (Del. 1970), and reaffirmed numerous times over the ensuing 40 years, to the facts of the Martel Washington case. In 1970, in Bland, the Delaware Supreme Court held that a trial judge has the power to remove the case from the jury's consideration in a situation where there is an irreconcilable conflict in the State's case concerning the defendant's guilt. This principle was applied to the facts of the Martel Washington case. Martel Washington does not create any newly recognized retroactively applicable right.
Martel Washington v. State, 4 A.3d 375, 378-79 (Del. 2010).
Bland v. State, 263 A.2d 286, 288-289 (Del. 1970).
18. Turning to the Delaware Supreme Court's ruling in Blake v. State, 3 A.3d 1077 (Del. 2010), Defendant, in his motion, does nothing more than merely state the holding of the case itself. Indeed, the full extent of Defendant's submission on this issue is: "On July 22, 2010, the Delaware Supreme Court inBlake v. State, (No. 206, 2009, Justice Holland) held out court (sic) statements (3507) to be inadmissible if proper foundation has not been established." Although this is a correct statement of the law, Defendant (who is represented by counsel in this motion) made no effort whatsoever to explain how this holding impacts the subject action. Defense counsel fails to make any allegation, let alone any prima facie showing, that a proper foundation has not been established for any statement admitted in this case. Defendant's motion is devoid of literally any factual support. Defense counsel has wholly failed to identify any statement(s) that was not properly admitted nor has he made any attempt to thereafter explain how any alleged improper admission resulted in prejudice to the defendant. This contention, wholly lacking in any detail or substance, is conclusory, and without merit.
See, Mumitt v. State, 2010 WL 3860658, at *2 (Del. 2010) (a Section 3507 claim which does not state specifically the basis for the claim such as identify which statements are at issue and thereafter explain why the admission was prejudicial, is merely conclusory and, therefore, without merit).
19. As an aside, had Defendant's counsel on this postconviction relief motion reviewed the trial transcript, he would have discovered that Defendant's trial counsel was vigilant in ensuring that procedural safeguards were adhered to. For each and every 3507 statement admitted at trial, without exception, there is a detailed discussion regarding the foundational requirements.
20. Since Defendant's claims are procedurally barred, Defendant must meet one of the exceptions to overcome the bars to relief. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances." The Defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. It is clear from Defendant's motion that Defendant's claim does not meet the high standard that the fundamental fairness exception requires. The Court does not find that the interests of justice require it to consider this otherwise procedurally barred claim for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
21. Defendant's request for additional briefing is hereby denied. Defendant has not come forward and made even a prima facie showing that any of his claims raised in his second motion for postconviction relief have any merit. Further briefing is therefore unwarranted.
22. Defendant's motion for postconviction relief is procedurally barred, without merit, and should be denied.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.