Opinion
No. 30109009.
Submitted: January 20, 2000.
Decided: March 24, 2000.
CRIMINAL ACTION NUMBER IN-91-09-0959-R3
MEMORANDUM OPINIONUpon Motion of Defendant for Judgment or Order Pursuant to Superior Court Civil Rule 60(b) — DENIED Upon Motion of Defendant for Postconviction Relief — DENIED
Susan B. Purcell, Esq., Deputy Attorney General, Department of Justice, for State of Delaware
Mr. Lester F. Anderson, Greensville Correctional Center, Jarratt Virginia, pro se
Defendant Lester F. Anderson has filed two types of motions seeking postconviction relief. One is the traditional motion for postconviction relief, his second, under Superior Court Criminal Rule 61. The other is relief from judgment under Superior Court Civil Rule 60(b).
Anderson was convicted of murder in the first degree on February 11, 1992. That conviction was affirmed on appeal. The mandate reflecting that decision was issued June 4, 1993. Following that affirmance, Anderson moved for postconviction relief under Rule 61. His motion was denied by this Court. The denial of his motion was affirmed on appeal. The mandate for that decision was issued on June 24, 1997.
Anderson v. State. Del.Supr., No. 350, 1992, Moore, J. (May 14, 1993) (ORDER).end;
State v. Anderson, Del.Super., Cr.A. No. IN-91-09-0959-R1, Herlihy, J. (December 17, 1996).
Anderson v. State, Del.Supr., No. 23, 1997, Hartnett, J. (June 6, 1997) (ORDER).
Anderson filed his current motions on January 18, 2000. The claims on both motions are the same. He breaks them down into several parts. First, he contends the Court committed error in its handling of an affidavit from Paul W. Davis which Anderson had supplied with his prior motion for postconviction relief. Davis testified during the State's case during the murder trial. Davis' affidavit said he committed perjury during his testimony and that a statement given to the police within hours of the murder was the result of police coercion, intimidation and threats.
Such an affidavit, Anderson argues, should have prompted this Court to conduct an evidentiary hearing. The failure to do so was error, Anderson now contends. The Court also erred, he claims, in referring in its opinion denying his motion for postconviction relief to numbers in the affidavit as a date in 1990 when really, Anderson asserts, it is Davis' SBI number. Instead of being "1/5/90," Anderson states Davis SBI number is ll5190.
The Court has not independently determined the accuracy of this assertion. It will accept the assertion for purposes of this opinion. The disposition in this opinion of this assertion explains why no independent checking was needed.
Anderson's next argument is that court-appointed counsel representing him in his earlier motion had a conflict of interest. The conflict, he contends, arose because that counsel was himself under attack by Davis for ineffective assistance of counsel at the time of his representation of Anderson in the earlier postconviction proceedings. The only affect of this alleged conflict, which Anderson cites, is that counsel did not pick up this Court's error regarding the SBI number on Davis' affidavit. He makes several other conclusory complaints against counsel, including that the conflict caused a loss of confrontation and cross-examination.
Anderson's final claim in support of his current motions is one of prosecutorial misconduct. He contends the prosecutor should have prevented this Court in committing error when it confused Davis' SBI number for a date the affidavit was executed. Her failure to do so, he says amounts to misconduct. There also is a hint that she allowed perjured testimony, Davis', to occur at trial and in this way committed misconduct.
DISCUSSION
Before undertaking a review of the claims which Anderson now raises, the Court must determine if there are procedural impediments to that review. The first and obvious impediment is that these claims are time barred. The mandate issued when Anderson's conviction was affirmed on direct appeal is dated June 4, 1993. The current motions were filed January 18, 2000. Any claim not brought within three years of June 4, 1993 is time barred.
Maxion v. State, Del.Supr., 686 A.2d 148, 150 (1996).
Superior Court Criminal Rule 61(i)(1); Jackson v. Stare, Del.Supr., 654 A.2d 829, 831 (1995).
There are three exceptions to this time bar. One is if there is an assertion of a retroactively right newly recognized by the Delaware Supreme Court or the United States Supreme Court. Anderson makes no such assertion. His memorandum in support of the current motion cites a number of cases and general constitutional principles but none are newly recognized or applicable. The second exception to the time bar is that this Court lacked jurisdiction over his case. No other court in this State has jurisdiction over a person of Anderson's age charged with murder in the first degree. This exception, therefore, is inapplicable. The third exception to the time bar is whether there is a colorable claim that there was a miscarriage of justice of a constitutional dimension that undermined the fundamental legality, reliability or fairness of the prior proceedings.
Rule 61(i)(1).
Rule 61(i)(5).
Rule 61(i)(5).
This exception to the time bar has been labeled as "narrow." It does not provide relief to Anderson from the time bar. There are several reasons. One, the whole issue of Davis' trial testimony and the affidavit was considered by this Court before and resolved against Anderson. That resolution was affirmed. The repackaging does nothing new and the Court does not relitigate refined or restated claims.
Bailey v. State, Del.Supr., 588 A.2d 1121 1129-30 (1991).
Riley v. State, Del.Supr., 585 A.2d 719, 721 (1990).
A second reason why the fairness exception is unhelpful to Anderson relates to the basic thrust of these two current motions. That thrust is his claim that the Court confused Davis' SBI number of 115190 with a date of execution of the affidavit which was 10/25/95. The 115190 number was not labeled as Davis' SBI number on Davis' affidavit. In the earlier opinion, this Court stated:
There are two dates on Davis' affidavit. One is "1/5/90" and the other is "10/25/95." The earlier date predates the murder and must be some kind of mistake. But the later date is subsequent to the murder and the trial so no counsel would have been aware of the affidavit.
State v. Anderson, supra, at 13.
This quote shows it was of no moment in this Court's denial of Anderson's prior motion that there may have been a misunderstanding of what 115190 was. In short, Anderson's current claims are much ado about nothing. That translates into a finding that there is no relief exception in Rule 61 to the time bar of Rule 61(i)(1).
Anderson obviously appreciates the time bar of Rule 61 to his current motion for postconviction relief. That appreciation manifests itself in his concurrently filed motion under Civil Rule 60(b) for relief from judgment or order. As noted the claims made in his Criminal Rule 61 motion are identical to or substantively the same as the basis for his Civil Rule 60(b) motion. It revolves around the claimed mistake of what 115190 is or was.
If a mistake, it does not rise to the level of prompting relief from the judgment rendered in this Court's earlier decision. The discussion above illustrates the total lack of role of the number 115190 in that decision. To present this claim for relief under Civil Rule 60(b) is no more than a not-so-subtle end run around the time bar of Rule 61(i)(1). The Rule 60(b) motion lacks merit and is an impermissible means to achieve postconviction relief.
There is another procedural bar to consideration of Anderson's current motions. That bar is that the issues he now raises were formerly adjudicated. Anderson seeks to relitigate the affidavit from Davis which states he lied at trial and was coerced into giving his initial statement to the police. But this Court explained in its earlier decision that the issue of whether Davis was coerced into giving a statement to the police was known to trial counsel and explored by him. This Court also considered the statement in Davis' affidavit that he had perjured himself during his trial testimony. This claim was reviewed and adjudicated in this Court's earlier decision.
Superior Court Criminal Rule 61(i)(4); Dawson v. State, Del.Supr., 673 A.2d 1187, 1194 (1996).
State v. Anderson, supra, at 13-14.
Though repackaged, Anderson's current claims are nothing more than rehashings of arguments previously raised and rejected. This Court's earlier rejection, as noted, was affirmed on appeal. In short, Anderson's current claims have been fully adjudicated as to Davis' trial testimony and affidavit. As such, they are barred.
Skinner v. State, Del.Supr., 607 A.2d 1170, 1172 (1992).
Anderson also now contends the Court erred in not holding a hearing on the issues raised by Davis' affidavit. Davis, Anderson says, should have testified in such an evidentiary hearing about his alleged perjured trial testimony and the alleged coercion he suffered at the hands of the police when he talked to them shortly after the murder. In its earlier decision, this Court discussed the need for an evidentiary hearing and found none was necessary. That decision was part of the Supreme Court's affirmance of the denial of Anderson's first motion for postconviction relief. To hold or not hold such a hearing is a discretionary matter. In short, the need for a hearing, raised again, in these motions has been adjudicated and is barred.
Outten v. State, Del.Supr., 720 A.2d 547, 551 (1998).
Younger v. State, Del.Supr., 580 A.2d 552 (1990).
Now, however, as repackaged, all of Anderson's claims are of Court error, ineffective assistance of counsel and prosecutorial misconduct. The Court has already explained that whatever error was made in the earlier opinion, if any at all, was unimportant. If the mistake about Davis' SBI number was of no moment, appointed counsel could not have been ineffective. To show ineffectiveness, Anderson must show counsel's representation fell below an objective standard of reasonableness and that counsel's errors were prejudicial to his defense.
Shelton v. State, Del.Supr., 744 A.2d 465, 475 (2000).
Anderson argues appointed counsel's failure to bring to this Court's attention the error about 115190 was due to a conflict of interest. The conflict arises, he says, because, while representing him by appointment on his earlier motion, Davis was claiming appointed counsel had been ineffective in representing him in an unrelated proceeding. But, Anderson's claim of ineffectiveness falls apart upon analysis. First, he cannot satisfy either test of ineffectiveness. While perhaps mistaken in interpreting what 115190 meant, the Court did not take that number into account in reaching its earlier decision. This means there was no professional error committed in appointed counsel's "failure" to correct any possible Court misunderstanding. Since there was no error in failing to do so, there was not ineffective assistance of counsel. Besides, it seems odd that it has taken Anderson himself two and a half years, at a minimum, to bring this "mistake" to the Court's attention.
Righter v. State, Del.Supr., 704 A.2d 262 (1997), cert. denied, 523 U.S. 1126, 118 S.Ct. 1814, 140 L.Ed.2d 951 (1998).
Nor can Anderson show prejudice, that, but for counsel's error, the result of the earlier postconviction relief proceedings would have been different. Even assuming it was erroneous for counsel not to have corrected the Court, the failure to do so had no affect and would have had no affect on the Court's earlier denial of his earlier motion. Failure to show prejudice means his claim of ineffectiveness fails on that ground, too.
Gattis v. State, Del.Supr., 697 A.2d 1174, 1178 (1998).
Stone v. State, Del.Supr., 690 A.2d 924, 926 (1996).
In an effort to magnify the importance of the SBI number issue and his claim of ineffectiveness, Anderson wraps it in a claim that appointed counsel had a conflict of interest. He cites to Davis' claim of ineffectiveness against the same appointed counsel. The alleged conflict of interest claim did not make counsel ineffective and that is the second reason why his ineffectiveness contention lacks merit.
While true that Davis had accused appointed counsel of ineffectiveness in Davis' own matter (drug and assault convictions), that does not create a conflict in this case. As just discussed, appointed counsel did not commit professional error and there was no prejudice suffered by Anderson. In short, even if a conflict, it had no role in this Court's earlier decision. But, there is more. This Court found Davis' claim of ineffectiveness to be without merit. That determination was affirmed. In addition, this Court cannot see the relationship between Davis' attack on his counsel and anything appointed counsel did or did not do in this case. Anderson's claim lacks merit on analysis.
State v. Davis, Del.Super., Cr.A. Nos. IN-94-09-0598, IN-94-09-1143, Alford, J. (February 11, 1997).
Davis v. State, Del.Supr., No. 110, 1997, Veasey, C.J. (October 8, 1997) (ORDER).
Anderson also attacks the effectiveness of appointed counsel's representation by claiming his rights to due process, meaningful confrontation and cross-examination were lost. No specifics are offered. A defendant making claims of ineffective assistance of counsel must make specific allegations of misconduct or actual prejudice and substantiate them. Anderson's claims are not specific and are unreviewable. Nor is this Court required to consider conclusory allegations.
Wright v. State, Del.Supr., 671 A.2d 1353, 1356 (1996) cert. denied 517 U.S. 1249, 116 S.Ct. 2509, 135 L.Ed.2d 198 (1996).
Bratcher v. State, Del.Supr., No. 331, 1998, Veasey, C.J. (November 10, 1998) (ORDER).
Part of his repackaged claim involving Davis' affidavit is to accuse the prosecutor of misconduct. Explicitly, he says she should have told the Court of its alleged error concerning the SBI number. But, as mentioned, his real complaint is that the Court erred about the 115190 number. The lack of merit of this claim has been made manifest. Even as repackaged, it still lacks merit.
Implicitly, Anderson accuses the prosecutor of using perjured testimony at trial. But, the record does not support this implicit contention. Trial counsel was aware of Davis' claim of police coercion and that his trial testimony differed from the statement given to the police. Under the circumstances, the prosecutor cannot be correctly accused of offering perjured testimony.
It is probable that this implicit contention is barred as not having been raised in the earlier motion for postconviction relief. Superior Court Criminal Rule 61(i)(2). The Court believes a more straight-forward rejection of this contention is better.
Conlon v. State, Del.Supr., 441 A.2d 638, 640 (1982).
The issue of the differences between Davis' trial testimony and his statement to the police were explored in this Court's earlier decision. If anything, whatever perjury may have been committed was in Anderson's favor, not the State's.
But, the Court finds the accusation of prosecutorial misconduct, whether explicit or implicit, is nothing more than a repackaging of the claims involving Davis which were previously considered and rejected. The Court will not consider repackaged claims.
Flamer v. State, Del.Supr., 585 A.2d 736 (1990).
Whether repackaged or not, these claims have all been adjudicated and are barred. But, as with the time bar, there is a potential relief to this bar, too. Reconsideration may be undertaken in the interests of justice. This exception has been interpreted to mean that Anderson must show that subsequent legal proceedings have shown that this Court lacked the authority to convict or punish him. Anderson has made no such showing. He has not shown, therefore, that there is relief from the bar of prior adjudication.
Rule 61(i)(4).
Flamer, 585 A.2d at 745.
For the reasons indicated, there are procedural bars to consideration of Anderson's current claims. Further, he has not demonstrated that there is relief from any of these bars.
CONCLUSION
For the reasons stated herein, defendant Lester F. Anderson's motions for relief from judgment and for postconviction relief are DENIED.
IT IS SO ORDERED.
__________________J.