Opinion
I.D. No. 93007979DI.
Submitted: September 12, 2008.
Decided: October 24, 2008.
UPON CONSIDERATION OF DEFENDANT'S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF DENIED.
This 24rd day of October, 2008, it appears to the Court that:
1. In 1994, Defendant Joseph Russo ("Russo") was tried and convicted of two counts of Unlawful Sexual Intercourse in the first degree, five counts of Unlawful Sexual Contact in the second degree, and one count of Unlawful Sexual Penetration in the third degree. He was sentenced to life in prison plus forty years, to be served consecutively. Russo's convictions were affirmed on appeal.
State v. Russo, 670 A.2d 1340 (Del. 1995) (TABLE).
2. Russo filed this, his first motion for postconviction relief, on September 12, 2008. Russo seeks relief under Superior Court Criminal Rule 61 on the following grounds: (1) that he was denied his Sixth Amendment Confrontation Clause rights; (2) that the "Court allowed [the] Prosecutor, Detective and Social Service Worker to give testimonial [hearsay statements]" in violation of Crawford v. Washington, which bars admission of out-of-court testimonial statements against a defendant when the hearsay declarant is unavailable and the defendant has no opportunity to cross-examine; and (3) that he received ineffective assistance of appellate counsel. Russo submits that he did not previously raise these grounds because he was "[u]naware of these issues until [ Crawford] shed light on this subject matter," indicating that his ineffective assistance of appellate counsel claim is based upon appellate counsel's failure to challenge the use of testimonial hearsay at Russo's trial. Russo did not provide any supporting facts in his motion, but instead attached a petition for leave to file a supplemental memorandum of law in support of his motion.
U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]").
541 U.S. 36 (2004).
As discussed further infra, the three grounds Russo asserts really amount to two claims, since the substance of his Confrontation Clause claim is the alleged Crawford violation.
Docket 58.
3. Before addressing the substantive merits of any claim for postconviction relief, the Court must determine whether the defendant has satisfied the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). To protect the procedural integrity of Delaware's rules, the Court will not consider the merits of a postconviction claim that fails any of Rule 61's procedural requirements.
Younger v. State, 580 A.2d 552, 554 (Del. 1990); see also Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); State v. Mayfield, 2003 WL 21267422, at *2 (Del.Super. June 2, 2003).
State v. Gattis, 1995 WL 790951, at *3 (Del.Super. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
4. Rule 61(i) establishes four procedural bars to motions for postconviction relief: (1) the motion must be filed within three years of a final judgment of conviction; (2) any grounds for relief which were not asserted previously in any prior postconviction proceeding are barred; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. However, a defect under Rule 61(i)(1), (2), or (3) will not bar a movant's "claim that the court lacked jurisdiction or . . . 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." In addition, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
The motion must be filed within three years if the final order of conviction occurred before July 1, 2005, and within one year if the final order of conviction occurred on or after July 1, 2005. See Rule 61, annot. Effect of amendments. For the purposes of Rule 61, a judgment of conviction becomes final under the following circumstances: "(1) If the defendant does not file a direct appeal, 30 days after the Superior Court imposes sentence; (2) If the defendant files a direct appeal or there is an automatic statutory review of a death penalty, when the Supreme Court issues a mandate or order finally determining the case on direct review; or (3) If the defendant files a petition for certiorari seeking review of the Supreme Court's mandate or order, when the United States Supreme Court issues a mandate or order finally disposing of the case on direct review." Super. Ct. Crim. R. 61(m).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
5. As an initial matter, the Court will not grant Russo's request for permission to file a supplemental memorandum. This Court has previously observed that the objectives of Rule 61 in advancing judicial economy and the finality of judgments require a defendant to identify all grounds for relief in a "concise, cogent and summary manner." In all but the rarest of cases, a movant should be able to fully present his claims and the bases for them within the length limitation guidelines set forth by this Court. Furthermore, while Russo's motion lacks supporting facts, which he apparently planned to provide in a supplemental filing, he has provided sufficient explanation of his legal arguments for the Court to conclude that his claims are barred.
State v. Hammons, 2003 WL 23274833, at *2 (Del.Super. Dec. 29, 2003).
See id. at *3 ("[Although] Rule 61 is silent as to the specific permitted length of a motion for postconviction relief . . the Court looks to the comparable rationale, fundamental to another limiting rule found within the Superior Court Civil Rules of Procedure, for guidance. In particular, Rule 107(g) limits the length of an opening or answering brief to thirty-five pages without leave of Court.").
6. Although stated as three separate grounds, Russo's claims amount to two related allegations: (1) that his Confrontation Clause right was violated by the introduction of testimonial hearsay at trial, contrary to the Crawford rule, and (2) that his appellate counsel was ineffective for raising this Confrontation Clause issue on appeal. Russo's conviction became final when the Delaware Supreme Court issued a mandate denying his appeal on August 2, 1996, and both claims are thus time-barred by Rule 61(i)(1). Because this is Russo's first motion for postconviction relief and because Crawford was not decided until 2004, none of the other procedural bars of Rule 61(i) is applicable.
7. Neither of Russo's claims constitutes a "miscarriage of justice" that would overcome the time-bar under Rule 61(i)(5). Following the United States Supreme Court's holding that Crawford is not a "watershed rule" of criminal procedure applied retroactively in federal habeas corpus proceedings, Delaware courts have refused to apply Crawford retroactively in Delaware postconviction claims under Rule 61. Thus, even accepting for the purposes of this motion that Russo could identify instances of testimonial hearsay introduced at his trial in 1994, his Confrontation Clause argument does not present a "colorable claim that there was a miscarriage of justice," because Crawford does not apply retroactively. Rather, the earlier rule of Ohio v. Roberts, which permitted the admission of out-of-court testimonial statements falling within a hearsay exception, controls Russo's case.
Whorton v. Bockting, 549 U.S. 406 (2007).
See McGriff v. State, 929 A.2d 784, 2007 WL 1454883, at *1 (Del. May 18, 2007) (TABLE).
Id.; see also State v. McAllister, 2007 WL 1065110, at *2 (Del.Super. Apr. 5, 2007).
448 U.S. 56 (1980).
8. Similarly, Rule 61(i)(5) will not salvage Russo's ineffective assistance claim. In evaluating an ineffective assistance of counsel claim under Rule 61(i)(5), the Court applies the two-part Strickland test, requiring the defendant to show both that counsel's representation fell below an objective standard of reasonableness and that the errors by counsel amounted to prejudice. The defendant faces a "strong presumption that the representation was professionally reasonable" in attempting to meet the first prong. Under the second prong, the defendant must affirmatively demonstrate prejudice by showing a reasonable probability that, but for counsel's errors, the proceeding would have had a different result. The same standard governs claims of ineffectiveness raised against both trial and appellate counsel.
See Staats v. State, ___ A.2d ___, ___, 2008 WL 4605933, at *2-3 (Del. Oct. 17, 2008) ("The Strickland standards apply to ineffective assistance of counsel claims regardless of whether the claim has met the procedural requirements of Rule 61(i)(1) or is evaluated under subsection (i)(5) for a colorable claim that a miscarriage of justice has occurred because of a Sixth Amendment violation.").
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (citation omitted).
Strickland, 466 U.S. at 694; see also Fletcher v. State, 2006 WL 1237088, at *2 (Del.Super. May 9, 2006).
Younger v. State, 580 A.2d at 556; State v. Nave, 1998 WL 442932, at *1 (Del.Super. May 8, 1998).
9. Simply put, Russo's appellate counsel can hardly be faulted for not raising a challenge to the admission of testimonial hearsay when such statements were admissible at the time of trial, the new rule of Crawford would not be announced until nearly a decade after appeal, and Crawford would not apply to defendant's case after it was decided. In view of the controlling law under Roberts at the time of Russo's trial, counsel's failure to challenge the introduction of any such hearsay statements on appeal neither fell below objective standards of professional reasonableness nor caused prejudice to Russo. Russo therefore cannot establish that appellate counsel rendered ineffective assistance under either prong of the Strickland.
Even if Crawford had retroactive effect, counsel's failure to anticipate changes in existing law is not ineffective assistance. See, e.g., Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995) (collecting cases).
10. For the foregoing reasons, Russo's motion for postconviction relief is hereby DENIED.