Opinion
Def. ID No. 0612005942.
Date Submitted: September 18, 2009.
December 16, 2009.
Chad McCloskey, Georgetown, DE.
Letter Opinion
Dear Mr. McCloskey:
This is my decision on your Motion for Postconviction Relief. You were convicted of a number of charges arising out of a string of burglaries and thefts that occurred over a three month period of time in 2006. The Supreme Court upheld your convictions in a decision dated January 27, 2009. You argue that you should get a new trial because (1) the trial court allowed inadmissable hearsay during your trial, (2) a witness perjured himself during your trial, (3) the prosecutor committed misconduct during your trial, and (4) your lawyer did not effectively represent you during your trial. You were represented by Dean C. Johnson, Esquire. The State of Delaware was represented by Donald R. Bucklin, Esquire. Johnson and Bucklin have submitted affidavits responding to your allegations. This is your first Motion for Postconviction Relief and it was filed in a timely manner. I have concluded that, given the nature of your allegations, a hearing is not necessary.
McCloskey v. State, 966 A.2d 348 (Table), 2009 WL 188857 (Del. Jan. 27, 2009).
Your first three claims are barred by Superior Court Criminal Rule 61(i)(3) and (4) because they could have been raised on appeal and were not, or were raised on appeal and rejected by the Supreme Court. As to those claims that could have been raised on appeal, you have not met the requirements set forth in Rule 61(i)(3) and (5) requiring consideration of those claims now. As to those claims that were raised on appeal and rejected by the Supreme Court, you have not met the requirements set forth in Rule 61(i)(4) for reconsideration of those claims now.
You allege that Johnson was ineffective because he (1) failed to investigate, locate and question the State's witness, (2) failed to talk to your alibi witness, (3) failed to obtain your medical records, and (4) withheld discovery from you. 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.
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, 1999 WL 7435612, at *1 (Del. Super. Aug. 12, 1999); State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Dec. 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
a. The State's Witnesses
You allege that Johnson failed to locate, investigate and question the State's witnesses. You do not state which of the State's witnesses Johnson failed to locate, investigate and question. You also do not state how this prejudiced your defense. I note that your case was tried twice, which allowed you and Johnson to get a preview of the State's case against you and to question the State's witnesses twice. This allegation is conclusory and without merit.
b. The Defendant's Alibi Witness
c. The Defendant's Medical Records
d. Discovery material
You allege that Johnson withheld discovery from you. You do not state what discovery was withheld from you. You also do not state how this prejudiced your defense. This allegation is conclusory and without merit.
CONCLUSION
Your Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.