Opinion
ID No. 0703031898.
Submitted: October 6, 2010.
Decided: December 20, 2010.
On Defendant's Objections to Commissioner's Recommendations.
Following De Novo Review, Commissioner's Report and Recommendation ACCEPTED.
Steven P. Wood, Esquire, Department of Justice, Wilmington, Delaware, Attorney for the State.
John E. Foster, Pro Se.
ORDER
On September 13, 2010, defendant, John E. Foster, filed his second Motion for Postconviction Relief. It was referred to a Superior Court Commissioner pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of fact and conclusions of law. The Commissioner issued the Report and Recommendation on September 28, 2010. The Report sets forth the procedural history, defendant's asserted grounds for Rule 61 relief, and analysis of the relevant facts and law. The Commissioner recommended that defendant's second motion for postconviction relief be denied.
On October 5, 2010, defendant filed objections to the Commissioner's Report and Recommendation. Additionally, that day, defendant filed a third motion for postconviction relief, reasserting the arguments he made in his second motion for postconviction relief. Finally, on October 13, 2010, defendant filed a motion styled "Reconsideration from Sept 28, 2010 Decision." Defendant's objections, third motion for postconviction relief, and motion for reconsideration are substantially similar, asserting the same objections to the September 28, 2010 Report and Recommendation and the same grounds for relief as his September 13, 2010 motion for postconviction relief. Therefore, the Court considers these three submissions to be objections to the September 28, 2010 Report and Recommendation.
Defendant raises two issues concerning his September, 2007 trial. First, defendant claims that the evidence was insufficient to identify him as the perpetrator. Defendant asserts that a witness testified that the victim stated that "somebody" committed the crime, and the witness was not positive that the victim stated that it was defendant. Second, defendant contends that there was a "Brady Law Material Violation." Defendant argues that he was entitled to receive his arrest photo from the State prior to his trial. The photo was lost due to the State's negligence, and he did not receive it until the last day of his trial. Defendant asserts that these defects warrant postconviction relief.
Defendant's motion is time-barred pursuant to Rule 61(i)(1), as it was filed more than one year after his conviction. The Court finds that the Rule 61(i)(5) miscarriage of justice exception does not apply, as defendant has not established that he suffered a constitutional violation that led to his conviction.
Further, defendant's motion is precluded by Rule 61(i)(4), because the claims he asserts have been formally adjudicated. The witness's identification testimony was weighed by the jury at defendant's trial, and the Delaware Supreme Court addressed defendant's argument when it considered his February 18, 2009 motion for postconviction relief. The Court found: "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." Defendant's contention that he was prejudiced by the late production of his arrest photo was addressed by this Court on the last day of defendant's trial, and considered in defendant's February 18, 2009 motion for postconviction relief. Defendant has not established that reconsideration is warranted in the interest of justice.
Foster v. State, 2010 WL 3002007, at *1 (Del.).
The Court finds that defendant's arguments lack merit. Defendant's substantive arguments were considered during his September, 2007 trial, and addressed in the decision on defendant's February 18, 2009 motion for postconviction relief. Defendant's arguments are procedurally barred by Rule 61(i)(1) and Rule 61(i)(4).
THEREFORE, defendant's objections to the Commissioner's Report and Recommendation are hereby DENIED. The Court, having reviewed de novo the Commissioner's Report and Recommendation, pursuant to Superior Court Criminal Rule 62, hereby ACCEPTS THE REPORT AND RECOMMENDATION IN ITS ENTIRETY. DEFENDANT'S SECOND MOTION FOR POSTCONVICTION RELIEF IS HEREBY DENIED.
IT IS SO ORDERED.