Opinion
Cr.A. No. IN88-06-0851 R3
Submitted: May 18, 1999
Decided: May 21, 1999 Motion Summarily Dismissed: February 8, 2000.
Upon Review of Defendant's Motion for Post-Conviction Relief, SUMMARILY DISMISSED.
James G. Brown, pro se.
ORDER
This is the Court's response to the Defendant's second motion for postconviction relief filed on April 20, 1999 pursuant to Superior Court Criminal Rule 61. This second motion arises out of his conviction for certain crimes which occurred on March 21, 1988.
Procedural and Factual History
On May 21, 1988, a woman was sexually assaulted and robbed near the grounds of the Friends Lower School in Delaware. The woman furnished police with a description of the perpetrator, stating that he was a black male in a green shirt and possibly gray pants. A witness in the area of the Friends Lower School provided the police with a description of a black male he saw on the grounds of the school who wore a green shirt and gray pants. The victim stated that he smelled of horses. She also told police that he had stolen a ring from her. On June 7, 1988, a pawn shop informed the police that the stolen ring had been sold to them by a person identifying himself as James G. Brown ("Defendant"). The witness identified Defendant in a photo line-up. Defendant was arrested on June 8, 1988, and while in police custody he confessed to the commission of the crimes.
On July 20, 1988, Defendant was indicted on charges of having committed Kidnapping First Degree ( 11 Del. C. § 783A), Unlawful Sexual Intercourse First Degree ( 11 Del. C. § 775) and Robbery Second Degree ( 11 Del. C. § 831).
At his arraignment on July 27, 1988, Defendant entered a plea of not guilty. On the morning of March 20, 1989, the day scheduled for trial, an office conference was held at the request of defense counsel. Defendant had concerns regarding defense counsel's ability to represent him. During the hearing, the Court concluded that despite an inappropriate comment made by defense counsel to Defendant on the night before trial, counsel had filed numerous motions on behalf of Defendant and otherwise competently and adequately discharged her professional duties. Having been satisfied with defense counsel's representation, the Court gave Defendant the option to proceed to trial as scheduled with defense counsel or proceed as pro se. On March 21, 1989, Defendant plead guilty to Unlawful Sexual Intercourse in return for dismissal of the kidnapping and robbery charges. Defendant was sentenced to life with the first 20 years mandatory incarceration pursuant to 11 Del. C. § 4205(a). At the request of Defendant, the sentencing took place immediately.
On April 21, 1989, Defendant, acting pro se, moved to withdraw his guilty plea. The Superior Court denied Defendant's request, rejecting his argument of ineffective assistance of counsel. The Delaware Supreme Court summarily affirmed the Superior Court's decision. Defendant failed to pursue the appeal, and it was dismissed by the Supreme Court on September 11, 1992. Thereafter, Defendant sought federal habeas relief in the District Court for the State of Delaware, alleging numerous grounds for relief. The district court denied Defendant's application. Defendant filed a motion for postconviction relief and an amended motion for postconviction relief in this Court on April 9, 1992 and May 2, 1992, respectively. His motion was denied on October 21, 1992. Defendant appealed the decision on June 21, 1993 and it was affirmed by the Supreme Court on November 30, 1993.
Brown v. State, Del. Supr., No. 186, 1989 (Sept. 11, 1989).
Brown v. Redman, Civ. Action No. 89-574-HF (D. Del. June 14, 1991).
State v. James G. Brown, Del. Super., Cr.A. No. IN88-06-0850 to 0852, Gebelein, J. (Oct. 21, 1992) (Mem. Op.).
Brown v. State, Del. Supr., No. 216, 1993 (Nov. 5, 1993).
Defendant again moved for federal habeas relief. The district court dismissed his petition on December 6, 1995. Defendant's certificate of appealability to the United States Court of Appeals for the Third Circuit was denied on July 7, 1997 because Defendant failed to demonstrate his actual innocence permitting review of his successive claims. Defendant applied for a writ of certiorari to the United States Supreme Court. His case was not accepted for review.
Brown v. Kearney, Civ. Action No. 95-137-JJF (D. Del. Dec. 6, 1995).
Brown v. Kearney, Civ. Action No. 96-7712, Mansmann, J. (3d Cir. Jul. 7, 1997).
Defendant has now filed his second motion for postconviction relief.
Discussion
1. Grounds Asserted in Current Motion for Post-Conviction Relief
In this motion, Defendant asserts: (1) police misconduct; (2) prosecutorial misconduct; (3) that his counsel was ineffective for refusing to present Defendant's requested defense, for failing to request jury instructions as ordered by Defendant, for failing to facilitate an attorney-client relationship, for refusing to argue against perjury and racial discrimination, for unconstitutionally suppressing Brady material, exclusion of witnesses requested by Defendant, defense counsel's refusal to argue the validity of a search and arrest warrant; (4) that as a result of his defense counsel's ineffectiveness, his guilty plea is invalid; (5) that there was no evidentiary hearing to prevent the "repetitive miscarriage of justice"; and (6) that the Superior Court committed plain error in denying Defendant's request for removal and replacement of counsel.
2. Grounds Asserted in Previous Motion for Post-Conviction Relief
In Defendant's previous motion for postconviction relief, he asserted: (1) misconduct by the defense attorney, prosecutor, police and judge; (2) the prosecution failed to prove "every essential fact of the crimes charged"; (3) that the evidence presented was insufficient to sustain a conviction; (4) that the prosecution was relieved of the duty to prove every critical fact in dispute; (5) that the actions of the police and the prosecution's case were unconstitutional; (6) that the suppression hearing was violative of due process for failure to determined that defendant's statement was involuntarily made under duress; (7) that the Court committed plain error when it determined that F.B.I. Test Analysis evidence was admissible; (8) that the Court committed plain error by allowing allegedly false fingerprint evidence to be presented; (9) that the Court committed plain error in accepting Defendant's guilty plea; (10) that the Court must allow Defendant to withdraw his plea for lack of voluntariness and attorney misconduct; (11) exclusion of witnesses requested by Defendant; (12) the alleged exclusion of medical reports and F.B.I test analysis results; (12) failure of defense counsel to request jury instructions as demanded by Defendant; (13) failure of defense counsel to argue against alleged perjury by prosecution witnesses; (14) defense counsel's harmful advice to withdraw defense motion for physical police line-up; (15) creation of false evidence; and (16) failure to argue discovery violation.
3. Grounds Asserted in Defendant's Petitions for Federal Habeas Review
In addition, the Delaware District Court for the State of Delaware, responding to Defendant's first institution of a habeas corpus action, addressed Defendant's allegations of: (1) error by the Delaware Supreme Court on appeal in addressing only petitioner's attempted withdrawal of guilty plea and not his other claims of trial error (2) ineffective assistance of counsel; (3) denial of lower court transcripts in prosecuting his appeal; (4) lack of probable cause for arrest and search warrants; (5) Grand Jury Indictment allegedly based on false information; (6) falsification of evidence; (7) involuntary confession; and (8) lack of evidence connecting defendant to the crime.
Brown v. Redman, CIV A No 89-574-JJF, June 14, 1991, Longobardi, p. 8
In Defendant's first habeas petition, he alleged as separate grounds for habeas relief the following: (1) alibi defense for Defendant; (2) lack of positive identification of petitioner by both the victim and the witness; (3) alteration of victim's and witness' statements by the police; (4) negative F.B.I. test results of Defendant's hair and fiber samples; (5) bogus composite sketch of Defendant. The district court addressed the above allegations under the heading of "lack of evidence connecting petitioner to the offense."
In Defendant's second habeas petition, Defendant claimed: (1) the police illegally manufactured evidence and engaged in other misconduct; (2) the prosecuting attorney illegally manufactured evidence and engaged in other misconduct; (3) his defense attorney did not provide constitutionally effective assistance and engaged in other misconduct; (4) the Superior Court of Delaware committed plain error; (5) the state failed to file an Answering Brief; and (6) the Delaware Supreme Court's ruling regarding Petitioner's attack on his guilty plea was clearly erroneous.
4. Consideration of Defendant's Current Motion for Post-Conviction Relief
When considering a motion for postconviction relief, this Court must apply the procedural requirements before considering the merits of the claim. This Court ordinarily should not consider the merits of postconviction claims where a procedural bar exists. This motion for postconviction relief is procedurally barred.
Younger v. State, Del. Supr., 580 A.2d 552, 553 (1990), citing Harris v. Reed, 489 U.S. 255, 265 (1989); State v. Flowers, Del. Super., C.A. No. 930020980DI, Barron, J., (Nov. 6, 1995).
Younger, 580 A.2d at 554, Flowers, supra at 1.
A. Time Bar
First, on November 30, 1993, the Supreme Court judged Defendant's conviction final. Pursuant to Rule 61(i)(l), Defendant's motion is time-barred because more than three years have passed after the final judgment of conviction.
B. Former Adjudication
Second, Rule 61(i)(4) states that "[a]ny ground for relief that was formerly adjudicated, whether . . . in an appeal, in a post conviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." Defendant has filed one previous post-conviction relief motion and two petitions for federal habeas corpus. From the extensive record in this case, it is clear to this Court that despite Defendant's re-labeling of certain grounds, every single ground currently alleged and every supporting factor has previously been addressed in one of his previous motions for relief.
First, in the district court opinion on Defendant's second petition for habeas corpus, the court stated that several arguments raised in Defendant's then-present petition were the same as those identified in his first petition. Those claims were: (1) the police misconduct charges; (2) the prosecuting attorney misconduct charges; and (3) the ineffective assistance of counsel charge. The district court stated therein that it would not "revisit these issues due to the application of Rule 9(b) which provides that, 'a second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits'."
Sanders v. United States, 373 U.S. 1, 15 (1963).
In addition, with specific regard to Defendant's current allegation of ineffective assistance of counsel, Defendant raised this ground in his previous motion for postconviction relief, and moreover, now supports the allegation with the same facts utilized in his first motion. The allegation of ineffective assistance of counsel and the supporting facts were discussed at length in this Court's Memorandum Opinion issued on October 21, 1992. As such, Defendant's current allegation of ineffective assistance of counsel and the supporting allegations have been formerly adjudicated in a prior postconviction proceeding and on appeal to the Supreme Court from the Superior Court's decision. It has been decided twice by the district court and by this Court in its previous opinion, in the plea hearing and in correspondence with this Court during litigation, that defense counsel was adequately prepared for trial, that she effectively represented Defendant, that she properly and professionally discharged her strategic decision making duties, that she filed numerous pre-trial motions to protect Defendant's rights and that Defendant stated that he was satisfied with her representation.
See State v. Brown, supra n. 3, Brown v. Redman, supra n. 2 and Brown v. Kearney, supra n. 5.
Furthermore, with regard to Defendant's allegations of police and prosecutorial misconduct, the issues he raises in support of these contentions were likewise addressed in this Court's prior Opinion. The grounds for relief in Defendant's previous postconviction relief motion are labeled differently than they are in this motion. Nevertheless, despite the literal label defendant gives to his grounds, the complaints Defendant currently has with the prosecutor, police, judge, defense counsel, the evidence and his plea, are not new nor are the facts with which he supports such allegations new. Both the facts that support the allegations and the allegations themselves have previously been considered by this Court and the district court. With regard to Defendant's allegations of police and prosecutorial misconduct, the facts he illuminates in support of these contentions were addressed in this Court's prior Opinion wherein the this Court addressed Defendant's contentions that the State failed to prove their case as required, that Defendant's confession was coerced, that his Counsel conspired with the State, and that the police manufactured evidence.
In Defendant's current motion for postconviction relief, Defendant alleges that the Superior Court committed plain error in denying Defendant's request for removal and replacement of counsel. This issues was squarely addressed in the opinion on his second petition for federal habeas corpus relief. The district court therein addressed Defendant's claim that the Superior Court erred when it allegedly violated his "constitutional right to be effectively represented by a defense attorney during a criminal trial. . . ." First, Defendant's current motion raises the same claim, supported not by facts but by three pages of case law. Regardless of Defendant's lack of supporting facts, it is clear that this allegation has been previously addressed and dismissed. Second, this allegation is better addressed as a claim of ineffective assistance of counsel, and it is clear that such an allegation has repeatedly been made and denied. And in fact, the district court's second opinion stated "the Court views [this claim] of alleged Superior Court error as yet another effort to challenge the finding that he received constitutionally effective assistance of counsel."
Brown v. Kearney, supra n. 5 at 3. (citation omitted).
Defendant's Motion for Post-Conviction Relief p. 129 — 131 (Apr. 20, 1999).
Brown v. Kearney, supra n. 5 at 4.
Next, in his current motion, Defendant complains that there was no evidentiary hearing to prevent the "repetitive miscarriage of justice." In the district court's second opinion denying federal habeas relief, Defendant contended that the Superior Court erred by violating established rules of evidence. Defendant couches his current allegation in an allegation of suppression of Brady materials. The district court previously addressed this allegation, noting that because Defendant entered a guilty plea on the second day of his trial, he is not entitled to review of alleged constitutional violations that occurred prior to the plea. This Court adopts the district court's finding.
Brown v. Kearney, supra n. 5 at 3.
Brown v. Kearney, supra n. 5 at 4.
Finally, Defendant currently alleges that as a result of his defense counsel's ineffectiveness, his guilty plea is invalid. The second district court opinion dismissed this claim pursuant to Rule 9(b) because Defendant presented this ground for relief, couched in an ineffectiveness assistance of counsel claim, in his first habeas petition. The transcript duplicated in the first district court opinion reflects the knowing and voluntary nature of Defendant's plea. The transcript also reflects a conversation between defense counsel, the prosecution and the Court addressing Defendant's concerns regarding defense counsel's representation. Defendant even stated that he was satisfied with defense counsel's representation and that he believed that counsel's advice to plead guilty was her best advice. In addition, this Court addressed this ground in its previous opinion denying postconviction relief.
See supra, p. 9
MR. LETANG: I would like a colloquy with the Court, if I could, suggestively, in light of yesterday's in camera discussion with the parties, to have the Court make an inquiry and to establish satisfactorily that the entry of this plea is not a product of what the subject matter of discussions were yesterday with respect to counsel's and client's problems but in fact this is a plea that is knowingly, voluntarily entered as a result of the potential consequences had this matter gone to the jury. . . .
. . .
MS. PERILLO: [A] discussion about the possibility of a plea disposition in this case did not come up for the first time either last night or this morning, but it is a matter that . . . the Defendant and myself have talked about periodically.
I would like the record to reflect, and I believe Mr. Letang would confirm this, that I had made efforts over the course of this case, including as recently as this morning, to persuade the/State to offer a plea that would be more lenient. . . . But Mr. Letang was unreceptive to my pleas . . . this was the best plea offer the State was going to be extending.
. . .
THE COURT: Have you freely and voluntarily decided to enter this plea of guilty today?
DEFENDANT: Yes.
. . .
THE COURT: Has anybody threatened you or coerced you to make you plead guilty today?
DEFENDANT: No.
. . .
THE COURT: Do you understand that you will be giving up all of those constitutional rights that go along with a trial?
DEFENDANT: Yes.
. . .
THE COURT: Have you discussed your case and your rights with your attorney?
DEFENDANT: Yes.
THE COURT: Are you satisfied with her advice?
DEFENDANT: Yes.
THE COURT: We understand that yesterday you had a disagreement with your attorney. Do you feel at this time that she is giving you her best advice on these charges?
DEFENDANT: Yes, this is her best advice, yes, yes.
. . .
THE COURT: Mr. Brown, is there anything that you would like to say at this time?
DEFENDANT: I don't have a tremendous amount to say. I'm sorry for the victim and myself. That's the situation. I mean, that's about it. I mean, what else can I say?
THE COURT: Mr. Brown, as you know, there's no discretion in what the Court can do in this case.
DEFENDANT: I know, 45 years.
. . .
Transcript ("Tr."), March 21, 1989, at 3-15.
Conclusion
Prior opinions addressing Defendant's petitions for postconviction and habeas relief plainly indicate that Defendant has had the same grounds addressed five times, twice by the federal district court, once by the Supreme Court and now twice by this Court. Despite Defendant's re-labeling of the grounds and reorganization of the facts in support of the grounds, it is clear to this Court that each and every allegation has been previously considered on its merits. This Court, therefore, finds that Defendant's second postconviction relief motion is procedurally barred on the basis of Rules 61(i)(1) and (4).
As a result of the forgoing, Defendant James G. Brown's Motion for Post Conviction Relief is SUMMARILY DISMISSED pursuant to Rule 61(d)(4).
IT IS SO ORDERED.