Opinion
ID#: 9801007022
Submitted: July 29, 2002
Decided: October 9, 2002
ORDER
Upon Defendant's Third Pro Se Motion for Postconviction Relief — DENIED
Last May, Jackson filed his third motion for postconviction relief. By order dated June 21, 2002, under Superior Court Criminal Rule 61(d)(4) the court summarily denied all but one of Jackson's latest claims. His claims were repetitive or otherwise barred under Superior Court Criminal Rule 61(i)(3) and (4). One of Jackson's claims caught the court's attention, however, and the court ordered expansion of the record under Superior Court Criminal Rule 61(g).
Jackson claimed that his court-appointed counsel on direct appeal had a conflict of interest. Specifically, Jackson implied that his appellate counsel once prosecuted Jackson. At the least, that created an appearance of impropriety. The court ordered expansion of the record although the court observed that it appeared preliminarily "that Jackson's claim of ineffective assistance of counsel on appeal is procedurally barred because he failed to raise it in his first motion for postconviction relief and he has not shown cause nor prejudice." The court, however, decided that Jackson's claim justified creating a record.
At the court's behest and consistent with Superior Court Criminal Rule 61(g)(2), Jackson's appellate counsel submitted a letter dated June 28, 2002. Jackson's appellate counsel attached a copy of a letter he sent to Jackson on December 17, 1999. The 1999 letter clearly establishes that Jackson understood that his appellate counsel had a potential conflict of interest, which counsel had brought to Jackson's attention in a meeting in Gander Hill prison on December 9, 1999. Counsel's 1999 letter memorialized counsel's explanation that "if you had some reservations with my representation, you should voice your concerns at the very earliest opportunity." Jackson's appellate counsel also cautioned Jackson:
It is important to clearly set out and resolve these types of issues before any significant representation occurs. Now that you have had an opportunity to consider this matter further, I would invite you to share any thoughts or concerns you have. Otherwise, I will begin to prepare your appeal, as I indicated I would.
Jackson did not voice any concerns during his direct appeal. Nor did he express concerns during his first postconviction relief proceedings. Jackson first complained about his appellate counsel's alleged conflict of interest almost two years after Jackson's conviction was affirmed and almost three years after Jackson clearly was given his first opportunity to challenge his appellate counsel's appointment.
Consistent with Superior Court Criminal Rule 61(g)(3), after receiving Jackson's appellate counsel's submissions the court afforded Jackson an opportunity to admit or deny his appellate counsel's statements. In his response, Jackson explains that his appellate counsel was "convincing" and "assuring." Jackson claims:
I was, at that time, confronted with a dilemma, in that, I had to trust a man I didn't trust to meet my appeal deadline or attempt to have him removed without substantial grounds other than the fact that I didn't trust him. So I remained silent and allowed him to proceed.
Jackson further explains that:
. . . after the filing of my opening brief . . . I realized I had made a mistake in allowing [his court-appointed appellate counsel] to remain as my counsel as his effort on appeal was minimal, at best.
Similarly, in his response Jackson states:
Therefore, the fact of the matter, is that prior to the filing of my appeal, I wanted to believe there would be no conflict of interest with [court-appointed counsel], but since the filing of his brief, I believe there is a conflict.
In his response, Jackson does not explain why, if he never trusted his court-appointed counsel, he did not accept his court-appointed counsel's invitation to raise the issue "before any significant representation occurs." More importantly, Jackson does not explain why, once he came to believe that his appellate counsel was not acting in Jackson's best interest, Jackson did not raise the issue then. Moreover, Jackson does not attempt to explain why, after his appeal was affirmed, he did not raise a conflict of interest issue during his first postconviction relief proceeding.
The most likely explanation for Jackson's inexplicable behavior is that his claim is insincere. The court recalls Jackson's behavior during his trial and his approach to his first and second motions for postconviction relief. This is the latest instance of Jackson's posturing.
It is clear that Jackson not only knew about his appellate counsel's theoretical conflict of interest, Jackson also clearly knew that he could have made an issue of it either at the outset of his trial counsel's representation, during Jackson's direct appeal or during his original postconviction relief proceedings. The court concludes, under Superior Court Criminal Rule 61(i)(3) that Jackson's ground for relief based upon his appellate counsel's alleged conflict of interest has been procedurally defaulted and Jackson has shown neither cause for relief from the procedural default, nor prejudice from violation of his rights. Therefore, this ground for relief is barred.
The court is satisfied further that Superior Court Criminal Rule 61(i)(5), which can provide relief from Rule 61's procedural bars does not apply because Jackson has made no colorable claim that there was a miscarriage of justice due to a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Although Rule 61(i)(5) does not speak directly to claims of ineffective assistance of counsel on appeal, the court finds that Rule 61(i)(5) does not provide Jackson with relief from his procedurally defaulted claim concerning his appellate counsel's alleged conflict of interest.
For the foregoing reasons, Jackson's latest motion for postconviction relief, filed in May 2002, is DENIED.
IT IS SO ORDERED.