Opinion
I.D. No. 30201462DI.
Submitted: July 31, 2007.
Decided: November 27, 2007.
UPON CONSIDERATION OF DEFENDANT'S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF DENIED.
This 27th day of November, 2007, it appears to the Court that:
1. On March 30, 1992, the State indicted Tyrone L. Miller ("Miller") on charges of Kidnapping in the First Degree ("Kidnapping 1st"), Attempted Unlawful Sexual Intercourse in the First Degree ("USI 1st"), and Unlawful Sexual Penetration in the Third Degree ("USP 3rd"). On May 10, 1993, a jury found Miller not guilty as to the charge of Kidnapping 1st but was unable to reach verdict as to the charges of USI 1st or USP 3rd. At his second trial on July 21, 1993, a jury found Miller guilty of the USI 1st charge and the USP 1st charge. On October 8, 1993, this Court sentenced Miller to life imprisonment for the USI 1st charge and to five years at Level V for the USP 3rd charge.
2. Miller filed a timely appeal to the Delaware Supreme Court. On April 29, 1994, the Delaware Supreme Court affirmed Miller's convictions and sentences. Miller then filed his first motion for postconviction relief on April 21, 1995. This Court denied the motion on July 19, 1995. Miller did not appeal the Superior Court's denial of his postconviction motion.
Miller v. State, 1994 WL 175598 (Del. Apr. 29, 1994).
3. On January 11, 1999, Miller filed a pro se motion for transcripts. This Court denied the motion in a letter opinion dated February 9, 1999.
4. Miller then filed a petition for an extraordinary writ of relief to the Delaware Supreme Court. The Supreme Court denied the petition on May 6, 2002, finding that Miller failed to appeal the Superior Court's decision as to his first postconviction motion as required by Rule 61, and that Miller had failed to show any basis for relief. Miller then filed a petition for a writ of habeas corpus on June 30, 2003. This Court denied the petition on July 2, 2003.
In re Petition of Miller, 2002 WL 938194 at *1 (Del. May 6, 2002).
5. On July 31, 2007, Miller filed this, his second pro se motion for postconviction relief. In addition to the postconviction motion, Miller also filed a motion for transcripts, supported by an Affidavit to Proceed in Forma Pauperis.
6. In this motion, Miller raises four grounds for postconviction relief. Specifically, Miller argues: (1) that his right to effective of assistance of counsel was violated under the Sixth Amendment to the U.S. Constitution and the Fourteenth Amendment; (2) that his counsel failed to raise an insanity claim, even though he was admitted six times to the Delaware State Hospital before the crime; (3) that this Court lacked jurisdiction to sentence him because he was incompetent and mentally ill; and (4) that his trial judge failed to conduct a competency hearing. As a result of these errors, Miller asks this Court for any and all proper relief.
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 ("Rule 61"). If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim. In that case, the Court may summarily dismiss the defendant's claim "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief[.] "
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
Super. Ct. Crim. R. 61(d)(4).
8. 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 any 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 formerly 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 before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
9. In this case, all of Miller's claims are procedurally barred. Rule 61(i)(1) applies because Miller filed this motion more than three years after his final order of conviction. Moreover, Rule 61(i)(4) precludes this Court's consideration of Miller's insanity defense arguments because the Superior Court and Supreme Court formerly adjudicated these claims in their previous decisions. Since Miller's claims are procedurally barred, Miller must meet one of the exceptions to overcome the bars to relief.
10. Miller 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, such as when the right relied upon has been recognized for the first time after a direct appeal." The Superior Court addressed Miller's ineffective assistance of counsel arguments, as well as his counsel's failure to raise an insanity defense, in its opinion in 1995. Specifically, the Superior Court explained:
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-98 (1989)).
State v. Miller, 1995 WL 1937153 (Del.Super.Ct. Jul. 18, 1995).
Your allegation is that [Counsel] was ineffective for not raising a mental illness defense. However, both attorneys who represented you found that you understood the charges against you and were able to participate in your defense. Furthermore, the psychiatrist who evaluated you found no indication of a mental infirmity that would serve as the basis for a mental illness defense. Based on these uncontroverted facts, [Counsel's] decision not to attempt such a defense was eminently reasonable. In fact, at your first trial, [Counsel] argued your consent defense so convincingly that the jury found you not guilty of kidnapping and was unable to reach a verdict on the remaining two charges.
You yourself, Mr. Miller, made it clear to the police, to both your attorneys, to two juries at two separate trials, and to this Court, that you had every intention of having sex with the victim and that your sole defense to the charges was consent, not mental illness. The Court therefore concludes that you have not been able to demonstrate that [Counsel's] representation fell below an objective standard of reasonableness or to overcome the presumption that his efforts on your behalf were professionally reasonable. If there is no constitutional infirmity in counsel's representation, there can be no prejudice to your case.
Id. at *2.
11. As the record makes clear, Miller was not only evaluated by a physician, who found no evidence of mental illness, but also chose instead to pursue a defense of consent. Moreover, Miller did not appeal the Superior Court's denial of his first postconviction motion. By failing to appeal, it is clear that Miller's attempt to reargue these issues is barred by res judicata.
See Olfers v. Nanticoke Homes, Inc., 1996 WL 453334, at *3 (Del.Super.Ct. May 28, 1996) ("In short, the Court is convinced that the issue of whether Claimant was entitled to $2250 in attorney's fees became res judicata when the Board, in 1994, clearly ruled to the contrary and Claimant failed to either directly appeal, or to move for reargument on, this decision.").
12. Even if the Court were to assume that res judicata does not bar consideration of defendant's claims, which it does, Miller does nothing other than offer a conclusory statement that his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment rights (without specifying which rights) were violated. Miller offers neither support from the record nor any analysis. The Court has repeatedly stated that it will not address conclusory claims.
See State v. Jordan, 1994 WL 637299, at *3 (Del.Super.Ct. Jun. 23, 1994) ("This Court need not address Postconviction Relief claims that are conclusory and unsubstantiated."); Zimmerman v. State, 1991 WL 190298, at *1 (Del.Super.Ct. Sept. 17, 1991) (citations omitted) ("This Court will not address Rule 61 claims that are conclusory and unsubstantiated."); State v. Canon, 1999 WL 1441997, at *3 (Del.Super.Ct. Dec. 9, 1999) (finding Defendant's claim "repetitive, vague, and entirely conclusory, warranting summary dismissal "); State v. Brown, 1998 WL 735880, at *3 (Del. Super Ct. Aug. 20, 1998) ("Conclusory claims raised in a defendant's motion for postconviction relief are insufficient to prove ineffective assistance of counsel and will not be addressed."); State v. Dividu, 1992 WL 52348, at *2 (Del.Super.Ct. Feb. 12, 1992) ("[M]ovant has failed to provide any factual support for his perfunctory allegations. He does not state, for example, in what regard his counsel failed to prepare for trial[.] As Rule 61(b)(2) obviously contemplated, without this information I am unable to effectively evaluate the merit of movant's claims.").
13. Miller next asks this Court to award him all trial transcripts and all sentencing transcripts or, in the alternative, to order the Office of the Public Defender to furnish transcripts to his correctional facility so that the employees can make copies for him, in order to proceed with his appeal. He argues that he is indigent and cannot afford to order them or photocopy them. He notes that the Office of the Public Defender found him to indigent. If the Court doubts his indigency, Miller argues that this Court must make a record under State v. Stacey for further review. Miller has also supplied an affidavit as support of his indigency.
358 A.2d 380 (Del. 1976).
14. "There is no blanket constitutional right to a free transcript for the purpose of preparing a post-trial motion." "The Constitution requires that materials such as transcripts are provided only after judicial certification that they are necessary to decide non-frivolous issues in a pending case." Under Superior Court Criminal Rule 61(d)(3), "[t]he judge may order the preparation of a transcript of any part of the prior proceedings in the case needed to determine whether the movant may be entitled to relief." Therefore, "it is within the discretion of the Judge who examines the Motion and contents of the record to determine whether to order preparation of a transcript. . . ."
State v. Allen, 2002 WL 31814750, at *1 (Del.Super.Ct. Nov. 4, 2002).
State v. Johnson, 1999 WL 1568387, at *1 (Del.Super.Ct. Feb. 8, 1999) (citing State v. Bordley, 1989 WL 135691, at *1 (Del.Super.Ct. Oct. 26, 1989)).
Super. Ct. Crim. R. 61(d)(3).
State v. Quill, 1999 WL 1229313, at *1 (Del.Super.Ct. Oct. 18, 1999).
15. A "criminal defendant who fails to articulate specific allegations of constitutional infirmity is not entitled to a transcript as a matter of right." The decisions of this Court make clear that "when the defendant offers no factual basis and fails to clearly identify any fundamental rights that were violated, the Court will find the defendant's claim `frivolous' and deny the motion."
Johnson, 1999 WL 1568387 at *1.
State v. Boardley, 1992 WL 354176, at *1 (Del.Super.Ct. Nov. 6, 1992).
16. In this case, Miller has failed to establish any constitutional violation. Moreover, he has not offered any evidence that establishes he "may be entitled to relief" as required by Rule 61(d)(3). Though he claims he needs the transcripts to prepare his appeal, Miller has already appealed his conviction once, chosen not to appeal his first postconviction motion, and filed numerous other motions directly to the Supreme Court, all of which have been denied. As a result, the Court fails to find any valid reason, and Miller offers none, that transcripts could assist him in filing postconviction relief motions or appeals.
17. Moreover, Miller misapplies State v. Stacey. The Supreme Court in Stacey required an indigency hearing to determine whether the defendant, who conducted his own defense at trial, was entitled to assistance of counsel. Thus, the Supreme Court addressed a fundamental constitutional protection — a defendant's right to have counsel at trial. In contrast, Miller has already been appointed two public defenders. Miller has offered no law, nor can the Court find any, that requires an indigency hearing for purposes of obtaining transcripts for postconviction motion. As a result, his claim is "frivolous," and Miller's Motion for Transcripts is hereby DENIED.
18. For all of the foregoing reasons, Miller's Motion for Postconviction Relief and Miller's Motion for Transcripts are hereby DENIED.
IT IS SO ORDERED.