Opinion
No. ID# 9604001462.
submitted: January 19, 2000.
Decided: March 28, 2000.
On Defendant Leroy Cook's Pro Se Motion for Postconviction Relief.
DENIED.This 28th day of March, 2000, upon consideration of Defendant's pro se Motion for Postconviction Relief, it appears to this Court that:
1. Leroy Cook (Defendant) has filed this pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Defendant alleges that his conviction is the result of ineffective assistance of counsel. For the reasons stated below, Defendant's Motion is DENIED.
2. Defendant was arrested on April 29, 1996 for a March 31, 1996 robbery of a Wilmington, Delaware Super Giant grocery store. Following a jury trial, Defendant was found guilty of one count Robbery Second Degree and was sentenced to five years at Level V; suspended after two and one half years for two and one half years at Level IV; suspended after six months for one year at Level III; followed by one year at Level II.
Defendant has filed a motion for postconviction relief which alleges ineffective assistance of counsel. Specifically, Defendant alleges that he was "denied assistance of counsel because copy [sic] of Rule (16) was not given to the Defendant until the day of trial (3-5-98) therefore, Defendant did not know about blood samples or any other evidence that was collected and or used at trial."
Defendant's Motion for Postconviction Relief at 3.
3. When considering a motion of postconviction relief, the Court must first apply the procedural bars of Rule 61(i) before considering the merits of the individual claims. To protect the integrity of the procedural rules, ordinarily the Court should not consider the merits of a postconviction claim where a procedural bar exists. Under Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the Rules of Superior Court, is thereafter barred unless the movant shows both (1) cause for relief from the procedural default and (2) prejudice from violation of the movant's rights. A showing of cause is not satisfied by showing merely that a claim was not timely raised; a movant must show "some external impediment" which prevented him from raising the claim. To show prejudice, a movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); see also Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Flamer v. State, Del. Supr., 585 A.2d 736, 745 (1990), Winn v. State, Del. Supr., No. 257, 1992, Moore, J. (Feb. 9, 1993) (ORDER); Webster v. State, Del. Supr., No. 65, 1992, Horsey, J. (Apr. 1, 1992) (ORDER).
State v. Gattis, Del. Super., Cr. A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger v. State. 580 A.2d at 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER); Hicks v. State, Del. Supr., No. 417, 1991, Walsh, J. (May 56, 1992) (ORDER)).
Younger, 580 A.2d at 556 (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer, 585 A.2d at 748.
4. Defendant attached a memorandum supporting his claim of ineffective assistance of counsel to his motion. Defendant's supporting allegations (all relating to the "blood samples") are set forth below in toto.
1.) Counsel denied defendant effective assistance of counsel by violating his constitutional guarnty [sic] of due process of law by not informing defendant about blood samples and or any other evidence that was collected and or used at trial.
2.) Defendant did not receive copy of Rule (16)(d)(4). Until (3-5-98) the day of trial, which counsel had in his possession since (5-28-96). therefore defendant had no knowledge of blood samples or any other evidence that was collected and or used at trial.
3.) Counsel had two years to inform defendant about the blood samples and or any other evidence that counsel was aware of. Had counsel done so, results would have been different.
4.) Counsel errors were a miscarriage of justice because of a constutional [sic] violation that undermined the fundamental legality, reliability, integerity [sic] and fairness of the proceedings leading to the judgment of conviction. If counsel had not errored [sic], results would have been different.
5.) Counsel's assistance was not reasonably effective because counsel breached his duty to investigate exculpatory evidence that was not disclosed to the defendant. Had counsel done so, he would of found that blood samples were not the defendant's and there would have been no conviction in this case.
6.) Defendant's trial counsel made virtually no investigation of exculpatory evidence concerning identification, when in fact counsel's defense at trial was mistaken identity. Had counsel done so, there would have been no conviction in this case.
7.) Counsel made errors so serious that counsel was not functioning as "counsel" guaranteed [sic] to the defendant by the sixth amendment, the deficient performance prejudiced the defendant because counsel's errors were so serious that it deprived the defendant of a fair trial, a trial whose result is reliable. Had counsel not errored [sic]. there would have been no conviction in this case.
8.) Counsel's performance fell below an objective level of reasonableness because counsel never intended to do any kind of investigation whatsoever, nor did counsel intended [sic] to inform defendant about blood samples and or any other evidence that counsel was aware of. Had counsel done either of the above, there would have been no conviction in this case.
9.) Trial counsel could have and should have consulted with the defendant about exculpatory evidence and or any other evidence that counsel was aware of Counsel fell below his performance by not performing his constitutionally mandated duty to consult with the defendant about important decisions and to keep defendant informed of important developments in course [sic] of the presecution [sic]. Counsel had two years to consult with the defendant about blood samples and or any other evidence that counsel was aware of. Had counsel done so, there would have been no conviction in this case.
5. To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. Defendant must prove his allegations by a preponderance of the evidence. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1998) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Robinson v. State, Del. Supr., 291 A.2d 279 (1972).
State v. Mason, Del. Super, Cr. A. No. IN93-02-0279-RI, Barron, J. (April 11, 1996) (Mem. Op.) at 7.
6. Defendant has not made the requisite showing as to the first prong. Whenever evaluating the conduct of counsel in the context of a motion for postconviction relief, this Court must indulge "a strong presumption that counsel's conduct was professionally unreasonable." Further, the Court must make "every effort . . . to eliminate the distorting effects of hindsight[.]" [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Any inadvertence of counsel does not amount to "cause" unless it rises to the level of ineffectiveness in violation of the 6th Amendment.
Albury at 58.
Strickland, 466 U.S. at 689.
Id at 690.
Murray, at 492 (1986).
7. Trial counsel for Defendant, Raymond M. Radulski, Esquire stated in his responsive affidavit to the Court that it was his "normal practice to share information with clients when received" and that there had been no information in his correspondence file that indicated the State's Rule 16 discovery response had not been made available to Defendant. Furthermore, counsel for Defendant stated that he had made a strategic decision at trial to argue that the State had failed to preserve the blood directly to the jury. Specifically, counsel for Defendant stated that "[t]his was a case of identification, and the fact that an unidentified blood sample was found in the car was brought to the jury's and the Supreme Court's attention. Given the fact that such evidence was not preserved by the State, the defense could not have conducted independent testing, as is not suggested by Defendant."
Radulski aff. at 2.
Id.
8. This Court finds that Defendant has not shown that counsel's representation fell below an objective standard of reasonableness required under the first prong of Strickland. For the reasons stated, Defendant's pro se Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.
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cc: Original to Prothonotary Presentence Colleen K. Norris, Esquire, Deputy Attorney General Leroy Cook Raymond M. Radulski, Esquire