Opinion
IK95-12-0239 thru 0243-R1, ID No. 951108690
July 3, 2001
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Robert J. O'Neill, Jr., Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
David W. Jones, Esq., Brown, Shiels, Beauregard Chasanov, Dover, Delaware for the defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION
On December 5, 1996 Defendant Mary Nell Barlow ("Barlow") was found guilty by a jury as charged of one count of Possession With Intent to Deliver Cocaine, 16 Del. C. § 4751; one count of Conspiracy in the Second Degree, 11 Del. C. § 512; one count of Trafficking Cocaine 16 Del. C. § 4753A(a)(2)(c); one count of Maintaining a Dwelling for Keeping Controlled Substances, 16 Del. C. § 4755 (a); and one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771. Thereafter on January 31, 1999, Barlow was sentenced to fifteen years minimum mandatory incarceration followed by Probation. A timely notice of appeal was filed with the State Supreme Court. In her appeal, Barlow claimed that the Superior Court erred by failing to give an accurate jury instruction on the definition of constructive possession. The Supreme Court affirmed Barlow's conviction and sentence. Next, Barlow filed a motion for reduction of sentence which the Superior Court denied.
Barlow v. State, Del. Supr., No. 90, 1997, Berger, J. (Nov. 11, 1997) (Order).
Finally, Barlow filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In her motion, Barlow makes the following claims: (1) that her trial counsel was ineffective when he told the jury that Barlow would prove her innocense through her own testimony, therefore drawing the jury's attention to her ultimate failure to testify; (2) that counsel was likewise ineffective when he (a) permitted the admission into evidence of admissions by Barlow that she had engaged in uncharged bad acts, specifically Delivery of Cocaine; and (b) by failure to seek a cautionary instruction to the jury requesting the limited permissible use of that evidence.
I. FACTS
The following is the description of the facts in this case taken from the Supreme Court's opinion:
Barlow was arrested when members of a Dover Police drug surveillance team executed a search warrant at a Comfort Inn motel room. Barlow was registered at the room. She and a small child were the only occupants when the police arrived. After being given her Miranda warnings, Barlow told the police officers that there were drugs in her locked suit case and that the key to the suit case was in her purse. One of the officers retrieved the key, opened the suit case and found a plastic bag of cocaine and a gram scale. Barlow gave several different stories about the drugs. First she claimed that the cocaine belonged to a man named Richard Jones. Later, she said his real name was Carl Hannah. Barlow said her codefendant, Katherine Brooks, was the one who brought the drugs to Delaware from California. Atone point, Barlow told the police that she and Brooks were sent to Delaware to sell drugs. At another time, she claims that Carl Hannah was going to fly to Delaware and sell the cocaine. Barlow presented no evidence at trial. Her defense, apparently, was that the cocaine did not belong to her.
The total amount of cocaine seized was 387 grams.
Barlow v. State, supra at 2.
II. DISCUSSION
Under Delaware law, the Court must first determine whether Barlow has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of her postconviction relief claims. Under Rule 61 postconviction claims for relief must be brought within three years of the conviction becoming final. Barlow's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Barlow's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.Neither of Barlow's grounds for relief were raised on direct appeal or at trial. Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: 1) cause for the procedural fault; and 2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim of miscarriage of justice stemming from a constitutional violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction."
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Both of Barlow's claims, however, are premised on allegations of ineffective assistance of counsel. She has therefore seemingly alleged sufficient cause for not having asserted this ground for relief at trial and on direct appeal. This type of claim is not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Barlow, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduct[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather to succeed on a claim of ineffective assistance of counsel a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) ( "Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687.
Id. at 694.
Younger v. State, 580 A.2d 556; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989); Skinner v. State, Del.Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER); Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, mem. op. at 9.
Strickland at 689.
In the case at bar, Barlow attempts to show cause for his procedural default by making conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Barlow's Rule 61 petition and should result in summary dismissal for each of her ineffective assistance of counsel claims.
See e.g. Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996); Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1992) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).