Opinion
Cr. ID No. 0703031898.
Submitted: September 21, 2010.
Decided: September 28, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Steven P. Wood, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
John E. Foster, Sussex Correctional Institution, Georgetown, Delaware, pro se.
MEMORANDUM OPINION
This 28th day of September 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On September 20, 2007, a Superior Court jury found Defendant John E. Foster guilty of Robbery Second Degree and Burglary Second Degree. On November 2, 2007, the Superior Court declared Defendant Foster a habitual offender and sentenced him to a total of 18 years at Level V. This sentence was reduced to a total of 17 years at Level V on May 6, 2009.
The sentence was reduced by 1 year because of Foster's substantial assistance in connection with an unrelated criminal prosecution.
2. Defendant appealed his conviction which was affirmed by the Delaware Supreme Court on October 24, 2008.
John E. Foster v. State, 961 A.2d 526 (Del. 2008).
3. On February 18, 2009, Defendant Foster filed a motion for postconviction relief pursuant to Rule 61. In that motion he raised numerous issues including various ineffective assistance of counsel claims. In connection with that motion, Foster's counsel's affidavit was obtained, which answered in detail all of Foster's claims, as well as a response from the State. Following full briefing on Defendant's motion, the Superior Court Commissioner issued a Report and Recommendation dated October 1, 2009 recommending that the defendant's motion for postconviction relief be denied.
Superior Court Docket No. 128.
4. Defendant filed an appeal from the Commissioner's Report and Recommendation. The Superior Court, after reviewing de novo the Commissioner's Report and Recommendation, accepted the report and recommendation in its entirety, and denied Defendant's motion for postconviction relief.
State v. Foster, 2010 WL 781289 (Del.Super.)
5. Defendant appealed the Superior Court's January 19, 2010 Order to the Delaware Supreme Court. The Delaware Supreme Court affirmed the judgment of the Superior Court denying Defendant's motion for postconviction relief.
State v. Foster, 2010 WL 3002007 (Del.).
6. On September 13, 2010, Defendant filed the subject motion for postconviction relief. In the subject motion, Defendant raises two claims. Both claims are disorganized, unintelligible and incoherent. The first claim has something to do with the sufficiency of the evidence concerning the victim's identification of the perpetrator. The second claim is entitled "Brady Material Violation" and appears to involve allegations of the late production of evidence.
7. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim. Moreover, if it plainly appears from the motion for postconviction relief that the movant is not entitled to relief, the Court may enter an order for its summary dismissal and cause the movant to be notified.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Super.Ct.Crim.R. 61(d)(4).
8. Before turning to the procedural bars that exist in this case, it is important to note that Defendant's claims presented in this motion are wholly conclusory, unintelligible and incoherent. The Court need not address Rule 61 claims that are unintelligible and incoherent. For this reason, in and of itself, Defendant's motion for postconviction relief should be denied. For the sake of completeness, however, the procedural bars provide a separate and independent basis for the denial of Defendant's motion.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super. 2007).
9. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in a prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005).
Super.Ct.Crim.R. 61(i)(5).
Super.Ct.Crim.R. 61(i)(4).
10. In this case, Defendant's claims are procedurally barred. Rule 61(i)(1) applies because Defendant filed this motion more than one year after his final order of conviction. Defendant's final order of conviction was in November 2008, and this motion filed on September 13, 2010, was filed almost 2 years later, clearly outside the applicable one-year limit.
11. Moreover, under the court rules and case authorities, it is well established that defendants are entitled to one direct appeal and one motion for postconviction relief. While the law provides ways around the one direct appeal-one postconviction relief format, those ways are limited. They only work in extreme and extraordinary cases. Were it not for Rule 61(i) prohibitions against repetitive motion practice, defendants serving long sentences, such as Mr. Foster, could litigate endlessly.
State v. Bass, 2004 WL 396372 (Del.Super.), aff'd, 2004 WL 1535769 (Del.).
12. To the extent that Defendant raised the claims presented herein in his direct appeal or in his first motion for postconviction relief, Rule 61(i) (4) precludes this Court's consideration of the claims presented herein, since they have already been formally adjudicated. As to Defendant's first claim regarding the sufficiency of the identification evidence, Foster already challenged the sufficiency of the evidence in claims couched as ineffective assistance of counsel contentions as well as an "actual innocence" contention. The Delaware Supreme Court has already held that there was no support in the record that Foster's counsel committed professional errors that prejudiced the outcome of either his trial or his appeal. The Delaware Supreme Court recognized that Foster and the victim knew each other. Foster's convictions were based on the victim's identification of him to a neighbor at the time of the crimes and during a photographic line-up. Nothing Foster's attorney either did or did not do could have altered that fact. As to Defendant's second claim regarding the late production of evidence, Foster already raised contentions that he was prejudiced by the State's failure to produce evidence in a timely fashion. Moreover, Defendant already raised the late production of his arrest photo on the last day of trial.
State v. Foster, 2010 WL 3002007, at 1 (Del.).
See, Commissioner's Report and Recommendation of October 1, 2009, at pgs. 4-5.
Id. at 13.
13. To the extent that Defendant has restated or refined his claim, the Superior Court is not required to re-examine any claim that has received "substantive resolution" at an earlier time simply because the claim is now refined or restated.
Johnson v. State, 1992 WL 183069, *1 (Del.Supr.).
14. Rules 61(i) (2) and (3) would prevent this Court from considering any additional arguments or claims not previously raised. Defendant filed a direct appeal and nothing stopped him from raising the claims asserted herein. Neither of the claims presented herein allege the ineffectiveness of counsel. Indeed, in support of his first claim on the insufficiency of evidence, Defendant refers to his counsel's closing argument at trial pointing out the discrepancies and shortcomings of the testimony of witnesses concerning the victim's identification of the perpetrator. Moreover, all of the exhibits that Defendant attaches to the subject motion in support thereof are either pre-trial material or trial transcripts. Defendant does not refer to anything new or recently discovered. There was no reason why Defendant could not have raised the issues presented herein on direct appeal.
15. After his direct appeal, Defendant had an opportunity to seek postconviction relief, which he did, and then he took an appeal from the first motion for postconviction relief's denial. There was no reason why Defendant could not have raised the issues presented herein, to the extent that he did not, in his first, timely filed, postconviction relief motion.
16. Defendant's claims raised herein were required to be raised by Defendant on his direct appeal and/or first postconviction relief motion and are barred by Rule 61(i)(3). Defendant had time and opportunity to raise any issue in his prior, timely filed, direct appeal and/or postconviction motion and either did so, or neglected to do so. Indeed, the issues raised in this motion were related to trial testimony and conduct from Defendant's trial in September 2007. Defendant was aware of, had time to, and the opportunity to raise the issues presented herein in a timely filed motion. Having already been provided with a full and fair opportunity to present any issues desired to be raised, any attempt at this late juncture to raise a new claim is barred.
17. Since Defendant's claims are procedurally barred, Defendant must meet one of the exceptions to overcome the bars to relief. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances." The Defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. It is clear from Defendant's motion that Defendant's claim does not meet the high standard that the fundamental fairness exception requires. The Court does not find that the interests of justice require it to consider this otherwise procedurally barred claim for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.