Opinion
ID. No. 0411002216A.
Submitted: March 19, 2008.
Decided: June 9, 2008.
Motion for Postconviction Relief.
Donnie Ray Hawkins SBI #, Sussex Correctional Institute, Georgetown, DE.
Melanie C. Withers, Esquire, Deputy Attorney General, Delaware Department of Justice, Georgetown, DE.
Carole J. Dunn, Esquire, Assistant Public Defender, Public Defender of the State of Delaware, Georgetown, DE.
Memorandum Opinion
Dear Counsel and Mr. Hawkins:
This is my decision on Donnie R. Hawkins' second motion for postconviction relief. A jury found Hawkins guilty of Possession of a Weapon During the Commission of a Felony (two counts), Aggravated Menacing (two counts), Assault in the Third Degree, Unlawful Imprisonment in the Second Degree (two counts), Endangering the Welfare of a Child, Offensive Touching (two counts), Disorderly Conduct, Driving a Vehicle with a Prohibited Alcohol Content, and Driving after Judgment Prohibited. The convictions arose out of an incident involving Hawkins, his wife, Carol Hawkins, and her nine-year-old daughter, Rebecca Bolen, on November 3, 2004. The day in question started out uneventfully, but ended up with Hawkins terrorizing his wife and stepdaughter. The Supreme Court affirmed Hawkins' convictions on July 11, 2006. The State of Delaware was represented at trial by Melanie C. Withers, Esquire. Hawkins was represented at trial by Carole J. Dunn, Esquire. Hawkins filed his first motion for postconviction relief on September 13, 2006. I denied it on August 6, 2007. The Supreme Court affirmed my denial of Hawkins' first motion for postconviction relief on January 7, 2008.
905 A.2d 747, 2006 WL 1932668 (Del. July 11, 2006) (TABLE).
Hawkins v. State, 941 A.2d 1018, 2008 WL 187956 (Del. Jan. 7, 2008)(TABLE).
Hawkins alleges in his second motion for postconviction relief that (1) Dunn was ineffective, (2) the trial court abused its discretion by not granting a continuance to Dunn so that she would have enough time to subpoena witnesses for trial and by limiting Dunn's cross-examination of the State's witnesses and by commenting on the reliability of the State's evidence and witnesses, and (3) the State misled him about its case and withheld facts that would have led to the discovery of exculpatory evidence. Dunn is now too ill to respond to Hawkins' allegations. Withers submitted an affidavit responding to Hawkins' allegations.
DISCUSSION
A. Ineffective Assistance of Counsel
Hawkins alleges that Dunn failed to (1) conduct a reasonable investigation of the State's case, (2) file the proper pre-trial motions, (3) object to inadmissable police testimony, (4) subpoena key witnesses for trial, and (5) lay a proper foundation pursuant to 11Del.C. § 3507 for the admission at trial of his stepdaughter's out-of-court statements. The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "rebut a 'strong presumption' that trial counsel's representation fell within the 'wide range of reasonable professional assistance,' and this Court must eliminate from its consideration the 'distorting effects of hindsight when viewing that representation.'" There is no procedural bar to claims of ineffective assistance of counsel. I have concluded that, given the nature of Hawkins' allegations, there is no need to hold a hearing.
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 687.
Id. at 687.
Id. at 687.
State v. Coleman, 2003 WL 22092724 (Del.Super. Feb. 19, 2003).
Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689.
Coleman, 2003 WL at *1, citing State v. Johnson, Del. Super. Ct., Cr. A. No. 97-10-0164(R1), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super. Ct., Cr. A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
Hawkins' allegations of ineffectiveness of counsel are conclusory. He has not (1) stated what Dunn should have investigated, (2) identified the pre-trial motions that Dunn should have filed, (3) identified the inadmissible police testimony that Dunn should have objected to, (4) identified the key witnesses that Dunn should have subpoenaed for trial, and (5) identified his stepdaughter's out-of-court statements that Dunn should have established a foundation for pursuant to 11 Del.C. § 3507. Hawkins has also not stated how Dunn's alleged deficiencies prejudiced his defense. Therefore, Hawkins has failed to show that Dunn's performance was both deficient and prejudicial to his defense.
Hawkins other two claims could have been raised on appeal and are, therefore, procedurally barred pursuant to Superior Court Criminal Rule 61(i)(3) unless Hawkins is able to show cause for relief from the procedural bar and prejudice as a result of any violation of his rights. However, "this bar to relief does not apply 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." Hawkins alleges that he did not raise these claims earlier because he was not aware of them until a "paralegal" at prison told him about them. This is not sufficient cause to overcome the precedent bar of Rule 61(i)(3). Hawkins also has not, as I will discuss below, shown that any of his rights were violated or that there was a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings that let to the convictions against him.
Outten v. State, 720 A.2d 547, 556 (Del. 1998).
Outten, 720 A.2d at 556, citing Super. Ct. Crim. R. 61(i)(5).
B. Abuse of Discretion
Hawkins alleges that I abused my discretion because I did not grant a continuance to Dunn so that she would have enough time to subpoena witnesses for trial. I addressed this allegation in Hawkins' first motion for postconviction relief and concluded that there was no merit to it because the witnesses that Hawkins wanted to testify would not have been helpful to his case. Hawkins also alleges that I abused my discretion by repeatedly commenting on the reliability of the State's witnesses and evidence while limiting Dunn's cross-examination of the State's witnesses. Hawkins has not, however, cited a single instance of this in the trial transcript. Thus, this allegation is conclusory and, as such, merits no further consideration.
C. Prosecutorial Misconduct
Hawkins alleges that the State misled him about its case and withheld facts from him which could have led to the discovery of exculpatory evidence. However, Hawkins has provided no information concerning any evidence that the State withheld from him or any examples of the defense being misled. Thus, this allegation is also conclusory and, as such, merits no further consideration.
CONCLUSION
Hawkins' second motion for postconviction relief is DENIED.
IT IS SO ORDERED.