Opinion
I.D. No. 0602023552.
Submitted: September 19, 2007.
Decided: November 30, 2007.
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF DENIED.
ORDER
1. On September 12, 2006, Everett was convicted of: (1) Possession of a Deadly Weapon by a Person Prohibited and sentenced to 5 years mandatory at Level V; (2) Possession of a Firearm by a Person Prohibited and Possession of Ammunition by a Person Prohibited and sentenced to 5 years at Level V (suspended for 2 years at Level III); and (3) Possession of a Weapon with a Removed, Obliterated or Altered Serial Number and sentenced to 2 years at Level V (suspended for 2 years at Level III).
2. On September 6, 2007, Everett's filed a pro se motion for postconviction relief based on ineffective assistance of counsel. On October 31, 2007, Everett filed an Amended Motion pursuant to Superior Court Criminal Rule 61(b)(6). Everett claims: (i) counsel failed to argue, during the suppression hearing, that the seizure of Defendant was unlawful; (ii) counsel failed to raise the "stalking horse" argument before the Supreme Court on direct appeal; and (iii) counsel failed to have the pre-search checklist or administrative search warrant produced at trial. Everett requests an evidentiary hearing, or in the alternative, dismissal of the case with prejudice.
3. In evaluating a postconviction relief motion, the Court must first ascertain if any procedural bars of Superior Court Criminal Rule 61(i) apply. If a procedural bar is found to exist, the Court should refrain from considering the merits of the individual claims. This Court will not address claims for postconviction relief that are conclusory and unsubstantiated.
See Younger v. State, 580 A.2d 552, 554 (Del. 1990).
See Younger, 580 A.2d at 555 (Del. 1990); State v. Conlow, C.A. IN78-09-0985R1, at 5 (Del.Super. Oct. 5, 1990); State v. Gallo, C.A. IN87-03-0589-0594, at 10 (Del.Super. Sept. 2, 1988).
4. Pursuant to Rule 61(a), a motion for postconviction relief must be based on "a sufficient factual and legal basis." According to Rule 61(i)(1), a postconviction relief motion may not be filed more than a year after judgment of conviction is final or one year after a newly-discovered, retroactively-applicable right is recognized by the United States Supreme Court or the Delaware Supreme Court. Pursuant to Rule 61(b)(2): "[T]he motion shall specify all the grounds for relief which are available to movant . . ., and shall set forth in summary form the facts supporting each of the grounds thus specified."
5. Any ground for relief not asserted in a prior postconviction relief motion is thereafter barred unless consideration of the claim is necessary in the interest of justice. Grounds for relief not asserted in the proceedings leading to the judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default; and (2) prejudice from violation of movant's rights. Any formerly-adjudicated ground for relief, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(4).
6. To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that counsel's errors were so grievous that counsel's performance fell below an objective standard of reasonableness; and (2) actual prejudice, that is, that there is a reasonable degree of probability that but for counsel's errors, the outcome of the proceedings would have been different. In making a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. Although the Strickland standard is a two-part test, the showing of prejudice is so central to this claim that "[i]f it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, which we expect will often be so, that source 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 representations were true, the claim may be dismissed on this basis alone.
Strickland v. Washington, 466 U.S. 668, 694 (1984); Albury v. State, 551 A.2d 53, 58 (Del. 1988).
Younger v. State, 580 A.2d 552, 556 (Del. 1990); Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).
Strickland, 466 U.S. at 697.
7. Ground (i). Everett asserts that counsel failed to argue, at the suppression hearing, unlawful detainment prior to the search. Everett cites Hicks v. State to support his contention that where there is no reasonable basis to suspect the detainee has committed a crime, any detention of that defendant is unlawful. Everett also argues that, "the officers were aware of the fact that you cannot arrest someone for a misdemeanor that's committed outside of officer presence."
631 A.2d 6, 9 (Del. 1993).
8. The police may detain a suspect they believe has committed, is committing or will commit a crime for up to two hours. Prior to arresting Everett, the police spoke to a witness, who stated that Everett struck her in the face. She also identified the car he was driving. The police ran a data check on Everett and learned he was currently on probation and had a long criminal history, including weapons violations. The police then asked the witness whether she had seen Everett with a firearm. The witness stated she saw Everett with a gun one week prior and he currently had a gun in the vehicle. Thus, the police who detained Everett had reason to believe he was in possession of a deadly weapon, in violation of his probation. Possession of a deadly weapon by a person prohibited is a class F felony. Therefore, Everett has not shown with reasonable probability that the suppression hearing outcome would have been affected by his counsel's failure to argue unlawful detention.
9. Ground (ii). Everett alleges that his attorney erred by "the fact counsel only raised to the Supreme Court the Search and not the `Stalking Horse'[argument] which was addressed at suppression hearing." On June 20, 2007, Everett appealed his convictions to the Delaware Supreme Court. The Supreme Court specifically addressed whether the probation officer "acted in contravention of Probation and Parole Procedure 7.19 by performing a search `solely on the basis of a request from law enforcement officials.'" The Supreme Court found the probation officer's actions were "in substantial compliance with DOC regulations and reasonable." This Court finds that the stalking horse argument was raised before the Supreme Court. Everett is barred from arguing, in a postconviction motion, a ground for relief that formerly was adjudicated.
United States v. Richardson, 849 F.2d 439, 441 (9th Cir. 1988) (probation officer acts as a stalking horse if probation search is conducted on prior request of and in concert with law enforcement officers).
Everett v. State of Delaware, 2007 WL 1850906, at *1 (Del.Supr.).
Id. at *2.
Super. Ct. Crim. R. 61(i)(4).
10. Ground (iii). Everett alleges that defense counsel failed to request production of the pre-search checklist and administrative search warrant. Everett offers no evidence that production of these documents would have changed the outcome of the case. The probation officer knew of Everett's previous conviction for Carrying a Concealed Deadly Weapon, and had been provided all of the information known to the police. Prior to the search, the officer spoke to Everett. When asked if he had a weapon in the car, Everett started "sweating profusely and just looked really scared." The officer, having a good rapport with Everett, recognized his behavior was abnormal.
11. The Court finds the probation officer had reasonable grounds under which to conduct a search. Assuming, aguendo, that the technical requirements of the pre-search checklist and administrative search warrant were not followed, the probation officer still satisfied the "reasonableness inquiry" requirement under the Delaware and United States Constitutions. Thus, there is no evidence Everett was prejudiced by counsel's failure to produce the pre-search checklist or administrative search warrant.
H Fuller v. State, 844 A.2d 290, 292 (Del. 2004)H.
THEREFORE, Defendant's Motion for Postconviction Relief is hereby DENIED. Defendant's request that the Court order production of the "pre-search checklist" and administrative warrant is hereby DENIED as moot.
IT IS SO ORDERED.