Opinion
I.D. No. 0004013377, Cr. A. No. PN00-05-0167, IN00-05-0168, IN00-05-0169, IN00-05-0170.
Submitted: September 15, 2003.
Decided: December 17, 2003.
Upon Defendant's Pro Se Motion for Postconviction Relief: DENIED.
ORDER
This 17th day of December, 2003, upon consideration of the defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, it appears to this Court that:
1. On May 8, 2000, the movant, Brandon Ayers ("Defendant"), was indicted by a Grand Jury and charged with Possession With Intent to Deliver a Narcotic Schedule I Controlled Substance, in violation of Title 16 Del. C. § 4751 of the Delaware Code, Possession of a Controlled Substance Within 1000 Feet of a School, in violation of Title 16 Del. C. § 4767(a)(1) of the Delaware Code, Possession of a Controlled Substance Within 300 Feet of a Park or Recreation Park, in violation of Title 16 Del. C. § 4768 of the Delaware Code, and Possession of a Non-Narcotic Schedule I Controlled Substance, in violation of Title 16 Del. C. § 4754 of the Delaware Code.
2. On October 29, 2001, the day his trial was scheduled to begin, Defendant entered into a plea agreement as to all four drug charges. Defendant plead guilty to Possession, Use or Consumption of a Controlled Narcotic Substance, a lesser included offense of Possession With Intent to Deliver a Narcotic Schedule I Controlled Substance, and entered pleas of guilty to the three other indicted charges. On this same date, the Court sentenced Defendant to: 1) one year at Level V Key Program in connection with IN00-05-0167; 2) three years at Level V, suspended after serving two years at Level V for one year supervision at Level III Aftercare, in connection with IN00-05-0168; 3) three years at Level V, suspended after serving two years at Level V for one year supervision at Level III Aftercare, in connection with IN00-05-0169; and 4) six months incarceration at Level V, suspended for six months supervision at Level II, in connection with IN00-05-0170. Defendant did not file a direct appeal from his conviction to the Delaware Supreme Court.
3. On January 14, 2002, Defendant filed a motion for postconviction relief pursuant to Superior Court Rule 61. In the motion, Defendant stated three grounds upon which he claimed that his rights had been violated: 1) ineffective assistance of counsel; 2) suppression of favorable evidence; and 3) failure to be informed of Miranda rights. By Order, dated April 4, 2002, the Court denied Defendant's Rule 61 motion. On appeal, the Delaware Supreme Court affirmed. Defendant also filed a Motion for Modification of Sentence on July 9, 2003. As the motion was filed ninety days after imposition of Defendant's sentence, and was thus time-barred, this Court denied the motion on September 11, 2003.
4. Defendant filed this second pro se motion for postconviction relief on August 5, 2003, seeking to set aside the judgment based on violations of his constitutional rights under the United States Constitution and the Delaware Constitution. Defendant asserts three grounds for relief in support of his contention that his rights have been violated. Defendant claims ineffective assistance of counsel as ground one, arguing that "[d]efense counsel refused to investigate [sic] case and obtain Rule 16 discovery information to properly prepare for trial which threatened defendant's hopes of proving his innocence at trial." In support of this contention, Defendant argues that his counsel failed to investigate the confession he made to his probation officer, and which, he maintains, the State intended to use against him if he went to trial. According to the Defendant, his counsel "[r]efused to request for [sic] Rule 16 discovery package which would have contained mitigating evidence pertaining to [sic] probation officer's statements."
Defendant's Motion for Rule 61 Postconviction Relief, at 3 (hereinafter "Def. Mot. at ___.").
Def. Mot. at 8.
Def. Mot. at 9.
As ground two, Defendant alleges that his guilty plea was coerced because the State threatened the Defendant with the possibility of using his confession against him at trial. Defendant states that he "[f]elt threatened to elect to going [sic] before [sic] a trial, where such action between the probation officer and the defense attorney's [sic] provided the `nexus' in coercing the defendant into signing the plea agreement which violated defendant's due process under the Fourteenth Amendment." Consequently, Defendant maintains that his plea was not entered into knowingly, voluntarily and intelligently.
Def. Mot. at 3.
Def. Mot. at 11.
Finally, as his third ground for relief, Defendant asserts that his right to be free from unlawful searches and seizures, guaranteed by the Fourth Amendment of the United States Constitution and Article I, § 6 of the Delaware Constitution, was violated when he "[w]as illegally seized and searched by his probation officer based on a warrantless search while defendant never violated any provisions of his probation." Defendant's Fourth Amendment claim stems from his contention that:
Def. Mot. at 11.
[T]he probation officer acted off of an alleged tip by an anonymous caller, which is considered an arrest based on suspicion and without a warrant and the delay of [sic] arraignment and [sic] arrest was for the purpose of furnishing an opportunity for further interrogation, which [sic] concludes that the alleged so-called confession and arrest was illegal, which caused the heroin found secluded in an allyway [sic] behind a brick in a wall and marijuana found inside defendant's sock, illegally seized and inadmissable [sic] if defendant elected to go to trial.
Def. Mot. at 12.
5. Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *3 (Del.Super.Ct.) (citing Younger, 580 A.2d at 554).
6. Upon initial review of Defendant's motion for postconviction relief, the Court finds that because Defendant's postconviction motion was filed within three years after the judgment of conviction became final, he is not procedurally barred from relief under Rule 61(i)(1). The time bar of Super. Ct. Crim. R. 61(i)(1) provides:
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
A motion for postconviction relief may not be filed more than three years 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 three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Super. Ct. Crim. R. 61(i)(1).
7. With respect to Defendant's substantive arguments, the claim of ineffective assistance of counsel is most properly examined within the purview of subdivision (i)(4) of Rule 61. Rule 61(i)(4) provides that, "[a]ny 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 consideration of the claim is warranted in the interest of justice." The "interest of justice" exception of Rule 61(i)(4) has `been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant].'" When invoking the "interest of justice" provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim, the movant must show that subsequent legal developments have revealed that the trial court lacked the aforementioned authority to convict or punish.
Super. Ct. Crim. R. 61(i)(4).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Flamer v. State, 585 A.2d 736, 746 (Del. 1990) (citing comparatively Davis v. United States, 417 U.S. 333, 342 (1974)).
Defendant previously raised an ineffective assistance of counsel claim in his first motion for postconviction relief that was considered and rejected by this Court and, subsequently by the Delaware Supreme Court, in July 2002. In his prior motion, he claimed that his counsel failed to stay in contact with him and failed to subpoena credible witnesses. Similarly, in the current motion, Defendant now alleges that his counsel's representation was tainted because he failed to request non-existent, exculpatory, Rule 16 discovery material in preparation for his defense.
The Delaware Supreme Court has repeatedly held that under Superior Court Criminal Rules 61(b)(2) and 61(i)(2), a defendant must include all available grounds pertaining to an ineffective assistance of counsel claim in his or her first motion for postconviction relief. If the first motion is incomplete, then the Court will not consider the merits of a claim presented for evaluation in the second motion, unless the defendant can prove either the occurrence of a constitutional violation or the necessity in the "interest of justice."
Nicholson v. State, 1990 WL 168266, at *2 (Del.).
While Rule 61(i)(4) allows for consideration of certain issues which have been previously litigated in the "interest of justice," the Court is not required to reconsider a previously adjudicated claim, simply because the claim may have been "refined or restated." The issues underlying Defendant's ineffective assistance of counsel claim were carefully addressed by the Court in its April 4, 2002 Order denying Defendant's prior postconviction motion. Notwithstanding the fact that Defendant has failed to offer an argument why the Court should consider the merits of his ineffective assistance of counsel claim in the "interest of justice," the Court concludes that the interest of justice would not be served by any further consideration of Defendant's redundant and unsubstantiated claim. Therefore, Defendant's claim is precluded from reconsideration under Rule 61(i)(4).
Riley v. State, 585 A.2d 719, 721 (Del. 1990); Nicholson, 1990 WL 168266, at *2; Younger, 580 A.2d at 556.
8. A review of Defendant's two remaining grounds for relief, coerced guilty plea and unlawful search and seizure, indicates that these were also not raised in his first Rule 61 motion, or in his appeal to the Delaware Supreme Court following denial of that motion. Defendant's failure to raise these claims previously requires that they initially be evaluated under the criterion mandated in Rule 61(i)(2). Rule 61(i)(2) provides, "[a]ny 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 is warranted in the interest of justice." Subdivision (b)(2), in turn, provides, "[t]he motion shall specify all the grounds for relief which are available to the movant and of which the movant has or, by the exercise of reasonable diligence, should have knowledge, and shall set forth in summary form the facts supporting each of the grounds thus specified."
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(b)(2) (emphasis added).
The two purported violations of Defendant's rights raised in his current motion are directly related to the set of factual circumstances surrounding his arrest, custodial interrogation, and subsequent plea hearing, which occurred on the day that his trial was to begin. His contention of being subjected to a coerced guilty plea directly relates to conduct at the time of his scheduled trial and was already addressed in the Court's order denying his first motion for postconviction relief. Specifically, the Court ruled that "[D]efendant plead guilty to these charges, [and] in doing so he signified that he understood the constitutional rights he was relinquishing by his plea. . . . [A] defendant is bound by the statements he made on the signed Plea Form and during the in court colloquy unless he proves otherwise by clear and convincing evidence." Defendant's third contention, that he was the victim of an illegal search and seizure, directly relates to his arrest, custodial interrogation, and the ensuing search of the alleyway. In conjunction with subdivision (b)(2), Defendant has not presented any reason or justification for not raising these grounds at the time he filed his first Rule 61 motion. Since both grounds now being asserted by Defendant in his current motion for relief were available to him at the time he filed his first Rule 61 motion, but were not asserted at that time, they are barred by Rule 61(i)(2).
State v. Ayers, 2002 WL 1503449, at *1 (Del.Super.Ct.) (citations omitted).
In light of subdivision (i)(2)'s threshold procedural requirements, the Court can not further review these two grounds for relief, unless consideration of these grounds is warranted in the "interest of justice." Delaware law has interpreted the "interest of justice" exception narrowly, only allowing further consideration of the claim to "allege or establish that the Superior Court lacked the authority to convict or punish him." Defendant has not invoked, or submitted for consideration, this aspect of Rule 61 in his present motion. As a consequence, the Court finds that Defendant's claims of coerced guilty plea and unlawful search and seizure are barred by Rule 61(i)(2).
Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (citing Flamer, 585 A.2d at 746); State v. Kirk, 2001 WL 755942, at *2 (Del.).
9. Rule 61(i)(3) contains another bar, by providing that "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default, and (B) [p]rejudice from violation of the movant's rights." Upon a comprehensive review of the record, the Court can not find any indication that the Defendant raised the aforementioned claims at the plea, at the sentencing, or on a direct appeal. For that reason, they are barred by Rule 61(i)(3), absent a demonstration of cause for relief from the default and prejudice. Defendant has made no attempt to show cause for his procedural default or to demonstrate prejudice. Thus, Defendant's claims are also barred under Rule 61(i)(3).
Super. Ct. Crim. R. 61(i)(3).
10. Lastly, although the Defendant has not expressly addressed the fact that his claims are barred by Rule 61(i)(2), the Court must complete a full analysis of the procedural bars comprising Rule 61 in a light most favorable to the Defendant, exhausting all the remaining procedural safeguards to which he may be entitled. Hence, the Court must address whether the Rule 61(i)(2) bar is overcome by the charge of Rule 61(i)(5).
Generally, the bars of Rule 61 may potentially be overcome by Rule 61(i)(5). Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." Specifically, Rule 61(i)(5) provides:
Bailey, 588 A.2d at 1129.
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.
Super. Ct. Crim. R. 61(i)(5).
The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. Accordingly, when a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis added).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
Id. (citing comparatively Younger v. State, 580 A.2d 552, 555 (Del. 1990) (fundamental fairness exception of Rule 61(i)(5) applies where petitioner shows he was deprived of a substantial constitutional right).
Since Defendant does not contend that this Court lacked jurisdiction, in order to surmount the obstacle of Rule 61(i)(2), he must satisfy the "fundamental fairness" or miscarriage of justice" exception contained in subdivision (i)(5). Defendant, therefore, has the burden of presenting 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.
If a movant presents a genuine "colorable claim," it will be sufficient to avoid dismissal of the claim and will require the Court to examine the evidentiary issues. It is worth noting, however, that once a movant makes a showing that he is entitled to relief, thereby avoiding summary dismissal of his motion, an evidentiary hearing is not necessarily required. The Court may instead elect to examine the evidentiary issues presented in the party's submissions and in the record without a hearing. Also, whether the movant has presented a "colorable claim" may be determined on the basis of the postconviction motion itself, prior to any responses being filed. Moreover, "[i]n a postconviction proceeding, the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief." In other words, `[t]he petitioner bears the burden of establishing a `colorable claim' of injustice. (citation omitted). While `colorable claim' does not necessarily require a conclusive showing of trial error, mere `speculation' that a different result might have [sic] obtained certainly does not satisfy the requirement."
Super. Ct. Crim. R. 61(d)(4) states:
Summary dismissal. If it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified.
Super. Ct. Crim. R. 61(h) states in part:
Evidentiary hearing. (1) Determination by court. After considering the motion for postconviction relief, the state's response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable . . . (3) Summary Disposition. If it appears that an evidentiary hearing is not desirable, the judge shall make such disposition of the motion as justice dictates.
Bailey, 588 A.2d at 1130 (citing Younger v. State, 580 A.2d 552, 555 (Del. 1990)) (emphasis added).
State v. Getz, 1994 WL 465543, at *11 (Del.Super.).
As previously indicated, Defendant's second assertion is that his guilty plea was coerced. The Court has thoroughly examined the record and finds that this claim lacks both credibility and merit. The proceedings surrounding Defendant's submission of a guilty plea to all four drug charges belies his unfounded allegation. The record also reveals that his allegation of having suffered at the hands of an illegal search and seizure is, at best, frivolous, and contrary to documented facts. Thus, the Court holds that the Defendant has failed to assert in his motion a "colorable claim" of a miscarriage of justice resulting in a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. As such, Defendant has not successfully satisfied the Rule 61(i)(5) burden to overcome subdivision (i)(2)'s bar to relief. Therefore, Rule 61(i)(5) is not applicable.
For all the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Rule 61 is hereby DENIED.