Opinion
No. 77, 2002
Submitted: August 14, 2002
Decided: August 29, 2002
Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. IN97-02-1735 Cr. ID 9702003987.
Affirmed.
Unpublished opinion is below.
EARL EXUM, JR., Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 77, 2002 In the Supreme Court of the State of Delaware. Submitted: August 14, 2002 Decided: August 29, 2002
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
ORDER
JOSEPH T. WALSH, Justice:
This 29th day of August 2002, upon consideration of the appellant's opening brief, the State's motion to affirm, and the record below, it appears to the Court that:
(1) The defendant-appellant, Earl Exum, was convicted by a Supericor Court jury in 1998 of possession with intent to deliver heroin. This Court affirmed Exum's conviction on direct appeal. Thereafter, Exum filed a petition for postconviction relief, which the Superior Court denied. This appeal ensued. We find it manifest on the face of Exum's opening brief that his appeal is without merit. Accordingly, the judgment of the Superior Court must be affirmed.
Exum v. State, 1999 WL 624110 (Del.Supr.).
(2) In his petition for postconviction relief, Exum asserted that: (i) the Superior Court at his trial by failing to give a Lolly missing evidence instruction; (ii) the prosecutor engaged in misconduct during the closing argument at trial; and (iii) his trial counsel was ineffective. In his opening brief on appeal, Exum raises only two arguments: (i) the Superior Court abused its discretion in denying his motion for an extension of time to respond to the State's answer to his postconviction petition; and (ii) his trial counsel was ineffective. To the extent Exum failed to brief some of the issues raised in his postconviction petition below, those claims are now waived.
Lolly v. State, 611 A.2d 956 (Del. 1992).
Somerville v. State, 703 A.2d 629, 631 (Del. 1997).
(3) Having carefully considered the parties' respective positions, we find it manifest that the judgment of the Superior Court should be affirmed on the basis of the Superior Court's well-reasoned decision dated January 17, 2002. The record reflects that the Superior Court carefully reviewed each of Exum's claims concerning his counsel's allegedly deficient performance. We find no error in the Superior Court's conclusion that Exum's claims of ineffective assistance were conclusory and unsupported by the record and, thus, legally insufficient to establish that his counsel's performance fell below an objective standard of reasonableness and was prejudicial. Moreover, the record reflects that the Superior Court granted Exum's first request for an extension of time to respond to the State's answer. We find no abuse of the Superior Court's discretion in refusing to grant Exum's request for an additional extension of time.
See Strickland v. Washington, 466 U.S. 668, 688 (1984).
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.