Opinion
ID No. 0612015700.
Submitted: September 8, 2009.
Decided: December 30, 2009.
On Defendant's Motion for Postconviction Relief — DENIED.
Brian J. Robertson, Esquire, Department of Justice, Wilmington, Delaware, Attorney for State of Delaware.
Ryan Flamer, Howard R. Young Correctional, Wilmington, Delaware. Pro Se Defendant.
ORDER
On this 30th day of December 2009, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. Ryan Flamer ("Defendant") has filed a Motion for Postconviction Relief on June 19, 2009 pursuant to Superior Court Criminal Rule 61 ("Rule 61"), to which the State has responded. For the reasons set forth below, Defendant's Motion for Postconviction Relief is DENIED.
2. Defendant was indicted on December 19, 2006 on various drug and driving related offenses. On June 26, 2007, a jury found Defendant guilty of Trafficking in Cocaine; Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance; and Possession with Intent to Deliver a Non-Narcotic Schedule I Controlled Substance. The Defendant was found not guilty of Conspiracy Second Degree and the State entered a nolle proseque on all other charges. The Supreme Court affirmed the judgments of the Superior Court in their July 1, 2008 opinion.
3. Prior to addressing the merits of a postconviction relief claim, the Court must first determine whether the Motion meets the procedural requirements set forth in Rule 61(i). Under this section of Rule 61 certain parameters are given governing the proper filing of a motion for postconviction relief: (1) the motion must be filed within one year of the final judgment of conviction; (2) any ground for relief not raised in a prior postconviction motion will be barred if raised in the instant Motion; (3) any claims which the Defendant failed to assert in the proceedings leading to his conviction are barred, unless he is able to show cause and prejudice; and (4) any ground for relief raised in this Motion must not have been formerly adjudicated in any proceeding leading to the conviction, unless the interest of justice requires reconsideration.
See Torres v. State, 2009 W L 1175 048, at *2 (Del. May 1, 200 9).
See Super. Ct. Crim. R. 61(i)(1)-(5).
4. Although Defendant's present Motion is timely filed, Defendant's first claim stating "the trial court erred when it allowed a copy of a recorded telephone conversation to be admitted into evidence . . ." is procedurally barred under Rule 61(i)(4). Defendant raised this claim in a directed appeal in which the Delaware Supreme Court confirmed this Court's ruling.
Def.'s Mot. at 3.
5. Rule 61(i)(4) bars claims that were formerly adjudicated in any proceeding leading to the conviction, unless Defendant proves that reconsideration of the claims are warranted in the "interest of justice." In Flamer v. State, 585 A.2d 736, 745-46 (Del. 1990), the Supreme Court held "[i]n order to invoke the `interest of justice' provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Because the Supreme Court affirmed the Superior Court's holding as to this matter and because Defendant does not allege any subsequent legal developments in his motion that would affect his case, this Court must reject Defendant's first ground for relief.
Flamer v. State, 585 A.2d 736, 746 (Del. 1990).
6. Next, Defendant makes two separate claims of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-part test set forth in Strickland v. Washington. First, the Defendant must establish that "counsel's representation fell below an objective standard of reasonableness." When evaluating this prong, the Court must hold "a strong presumption that counsel's conduct was professionally reasonable." Second, the Defendant must actually show a reasonable probability of a different result but for trial counsel's alleged errors.
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 687-88.
Albury v. State, 551 A.2d 53, 59 (Del. 1988) (citing Strickland, 466 U.S. at 689).
Strickland, 466 U.S. at 694.
7. Defendant first asserts that "Mr. Capone was not doing his job" when the tape recording was admitted into evidence. Defendant claims that "Mr. Capone did not do any investigation in this case and had Mr. Capone done some research he would have had some case [l]aw to cite in this case to keep the court from admitting a four minute snapshot of a fifteen minute phone conversation."
Def.'s Mot. at 3.
Def.'s Mot. at 3.
8. First, the Defendant fails to mention that Mr. Capone did make a verbal motion to suppress the tape on the first day of the trial which the trial court denied. Faced with this decision by the Court, Mr. Capone then made a strategic decision to only allow the 4 minute segment of the 15-minute call "because he did not think the Defendant would be helped to any degree by having the jury hear everything he had to say during the entire 15 minute conversation." This appears to be a reasonable and appropriate decision by counsel. There is nothing to suggest the other 11 minutes had any information important to the Defendant's defense and continuing to play the tape could have adversely affected the jury's opinion about the Defendant. This was a reasonable strategic decision by counsel that will not be second guessed by the Court.
Capone Aff. at 2.
9. Defendant next argues ineffective assistance of counsel when "Mr. Capone allowed Mr. Robertson to mis[lead] the jury with the untrue statement that [Defendant] was carrying $6,000 worth of cocaine when his car was traveling in on I-495." While the Court appreciates this is the Defendant's view of the evidence, it is inconsistent with the evidence that fairly suggested that he dropped the drugs in his girlfriend's lap when it became clear they were going to be stopped by the police. A police expert testified as to the value of the drugs so the argument of the prosecutor was an appropriate characterization of the evidence. As such, the Defendant's counsel's failure to object was not ineffective.
Def.'s Mot. at 3.
10. Defendant's final argument is that the officer stopped him and his girlfriend because of their race. Under Rule 61(i)(3), any claims which the Defendant failed to assert in the proceedings leading to his conviction are barred, unless he is able to show cause and prejudice. Here, the issue of racial profiling should have been raised during trial. It wasn't because there is nothing to suggest that such conduct occurred. The Defendant's girlfriend was driving the vehicle and it was stopped for speeding. The girlfriend subsequently received a speeding ticket to which she pled guilty. This claim is without merit and will be summarily denied.
11. For the reasons set forth above, the Defendant's Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.