Opinion
ID No. 0402002032.
Date Submitted: January 30, 2007.
April 27, 2007.
Edward C. Gill, Esquire, Georgetown, DE 19947.
Dear Mr. Gill:
Pending before the Court is a motion for postconviction relief which defendant Artel Hopkins ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is my decision denying the motion.
On or about February 3, 2004, defendant was arrested on the following charges: trafficking in cocaine in an amount greater than 100 grams; possession with intent to deliver a narcotic schedule II controlled substance; maintaining a building for keeping controlled substances; conspiracy in the second degree; and possession of drug paraphernalia. Trial took place on September 14-17, 2004 and resumed on September 20, 2004. The evidence showed the following. After a drug-related arrest, Pedro Marte ("Marte") informed the Delaware State Police ("DSP") that he was aware two people, one of whom was Raymond Bacon ("Bacon"), were trying to buy large quantities of cocaine. The DSP set up a "reverse" sting operation using Marte and cocaine provided by the police to set up a drug deal. Defendant and Bacon were stung. The episode was captured on videotape. The jury viewed this videotape.
Defendant was found guilty as charged. Defendant appealed and raised two issues. He argued that the trial court erred in finding that the State of Delaware ("the State") did not violate its discovery obligations with regard to a police officer's expert testimony as to the meaning of a phrase defendant uttered in the vernacular of the drug trade and that the proposed expert testimony was within the scope of the State's discovery response. He also argued that there was insufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that defendant maintained a building for keeping controlled substances. John S. Malik, Esquire ("counsel") represented defendant at trial and on appeal. The Supreme Court affirmed the convictions.Hopkins v. State, 893 A.2d 922 (Del. 2006). The mandate was dated March 20, 2006. On January 29, 2007, defendant filed his pending motion for postconviction relief.
Defendant advances four grounds for postconviction relief.
The first ground is based on the assertion that the Superior Court was involved in assisting the prosecution to set up the drug buy. Defendant maintains the following. DSP obtained the drugs which were used in the sting after obtaining their release as evidence in another criminal case which had been tried in the Superior Court. This constituted a breach of the requirement of separation between the judicial and executive branches of government. It also gave the appearance that the Superior Court was not impartial in the case and that the Court approved of the DSP's actions. Defendant admits this ground first is raised in this postconviction motion. The only exception to the procedural bar that he advances is that trial counsel was ineffective for failing to object to the evidence being submitted at trial and for not moving to dismiss the case based upon this alleged misconduct.
The second ground is ineffective assistance of counsel. Defendant argues that trial counsel was ineffective for not objecting to a statement by Detective Danny Wright that there was no lawful purpose for defendant to have drugs in his possession.
The third ground is that a statement by the prosecutor constituted an implied comment upon d efendant's not testifying. Defendant relates the followin g. He did not testify at trial. In closing argument, the prosecutor "in referring to the State's witnesses, indicated that it is better for the cards to be laid on the table." This was an indirect comment on defendant's silence; it implied that the defense was hiding behind the right to remain silent. Defendant asserts that trial counsel did not object to this argument.
In ground four, defendant asserts another claim of ineffective assistance of counsel.
Defendant references the discovery/drug lingo issue that he raised on appeal. He then states:
Defense counsel pointed out that since he was surprised by the evidence at trial he was unable to properly fully counter that evidence. When defense counsel received the cursory discovery response regarding expert witnesses from the State he had an obligation to do more preparation. He should have asked the Court for a more detailed and definite statement as to what the expert would be testifying about and the basis of the expert's opinion. Defense counsel did not do so.
Defense counsel also did not review the videotape of the actual transaction until the final case review, which occurred shortly prior to trial. This tape is where the drug lingo phrase was included. This also prevented defense counsel from being prepared to deal with the State's presentation of that testimony.
Before examining the merits of Rule 61 claims, the Court first must determine whether any procedural bars exist. In Superior Court Criminal Rule 61(i), it is provided as follows:
(i) Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall 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.
The motion was timely filed; thus, the time bar does not apply.
Defendant initially advances grounds one and three outside the context of an ineffective assistance of counsel allegation. Those claims are barred because defendant did not assert them in the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant does not make any attempt to show that exceptions to the procedural b ar exists. Absent such a showing, the claims fail.
Alternatively, defendant advances grounds one and three within the context of ineffective assistance of counsel allegations. Grounds two and four specifically are advanced within the context of ineffective assistance of counsel allegations.
Generally, claims of ineffective assistance of counsel are raised for the first time in a postconviction motion filed following a direct appeal as to the trial outcome. Therefore, the procedural bars of Rule 61 would not be applicable. But if issues raised in the Rule 61 motion could have been raised on the direct appeal, but were not, then the defendant must comply with Rule 61(i)(3) by showing cause for not raising the issue(s) on appeal and actual prejudice.
Defendant has the burden of establishing (i) deficient performance by his counsel (ii) which actually caused defendant prejudice.Strickland v. Washington, 466 U.S. 668 (1984). Deficient performance means that counsel's representation of defendant fell below an objective standard of reasonableness. Id. at 688. In considering post-trial attacks on counsel, Strickland cautions judges to review the counsel's performance from the defense counsel's perspective at the time decisions were being made. Second guessing or "Monday morning quarterbacking" should be avoided. Id. at 689.
A finding of counsels' deficient performance needs to be coupled with a showing of actual prejudice. Actual prejudice is not potential or conceivable prejudice. "The Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Strickland establishes that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686.
In this case, even if the Court assumed, without deciding, that counsel's performance was deficient, all of defendant's claims fail because he has not made any attempt to show that the deficient performance caused defendant prejudice. The burden is defendant's. To emphasize, he has not made any attempt to meet that burden. Thus, the ineffective assistance of counsel claims fail.
For the foregoing reasons, defendant's motion for postconviction relief is denied. IT IS SO ORDERED.