Opinion
I.D. No. 9703005786.
Submitted: June 25, 2008.
Decided: August 25, 2008.
Upon Defendant's Motion for Postconviction Relief.
DENIED.Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
James G. Trump, Smyrna, Delaware, pro se.
ORDER
This 25th day of August, 2008, upon consideration of Defendant's Third Motion for Postconviction Relief, it appears to the Court that:
1. On July 8, 1998, Defendant was convicted of 15 counts of Unlawful Sexual Intercourse, First Degree, and on December 4, 1998, he was sentenced to 225 years of imprisonment. Defendant's conviction became final on June 9, 2000, when the Delaware Supreme Court denied his direct appeal of his conviction.
Trump v. State, 753 A.2d 963 (Del. 2000).
Defendant filed his first motion for postconviction relief on September 6, 2000, which the Court subsequently allowed him to withdraw. In 2003 Defendant filed a writ of habeas corpus with the United States District Court for the District of Delaware. The District Court denied Defendant's habeas petition on November 14, 2003. On December 15, 2003, Defendant, acting pro se, renewed his motion for postconviction relief in this Court, which he subsequently amended on January 22, 2004. This Court ultimately denied Defendant's motion as procedurally barred, it having been filed beyond the three year limitations period. The Supreme Court affirmed this decision on appeal.
Trump v. Kearney, 2003 WL 22769598 (D. Del.).
State v. Trump, 2004 WL 1874691 (Del. Super).
Trump v. State, 2005 WL 583749 (Del.Supr.).
Defendant filed his second motion for postconviction relief on May 16, 2006, which this Court summarily dismissed on July 5, 2006, holding that it was "plain that Defendant [was] not entitled to relief as all of [the grounds raised were] conclusory." The Delaware Supreme Court affirmed on appeal on December 15, 2006.
State v. Trump, 2006 WL 1875523, at *1 (Del.Super.)
Trump v. State, 2006 WL 3692587 (Del.Supr.).
2. Defendant filed this, his third motion for postconviction relief, on October 18, 2007. As grounds for relief, Defendant claims: 1) that his conviction was in violation of the Due Process Clause because he was incompetent; 2) prosecutorial misconduct, which lead to a violation of Due Process, and denied Defendant a fair trial; 3) that the trial judge abused his discretion and committed errors of law; and 4) ineffective assistance of counsel. Plaintiff claims that he has not previously raised these claims "due to ineffective assistance of counsel, and his mental capacity that prohibits him from being able to litigate effectively."
Defendant has also filed a "Motion to Expand the Record" for the Court to consider Defendant's June 17, 2008 affidavit, which challenges the facts set forth in his counsel's January 14, 2008 affidavit. The Court grants this motion, and has considered the affidavit in making its decision on this motion for postconviction relief.
Aff. of James G. Trump, ¶ 2 (June 17, 2008).
Aff. of Raymond J. Otlowski, Esquire, ¶ 2 (January 14, 2008).
3. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Superior Court Criminal Rule 61.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Superior Court Criminal Rule 61(i)(1) provides that "[a] motion for postconviction relief may not be filed more than three years after the judgment of conviction is final." Superior Court Criminal Rule 61(i)(2) bars any grounds for relief that were not asserted in a prior postconviction proceeding. Superior Court Criminal Rule 61(i)(3) provides that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred" unless the movant shows "[c]ause for relief from the procedural default and . . . [p]rejudice from violation of the movant's rights." This Court has held that when a claim is not raised a defendant's direct appeal to the Delaware Supreme Court, then that claim is procedurally barred under Rule 61(i)(3).
State v. Kendall, 2001 WL 392650, at *8 (Del.Super.).
However, the procedural bars are inapplicable, pursuant to Superior Court Criminal Rule 61(i)(5), "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." "While [a] `colorable claim' does not necessarily require a conclusive showing of trial error, mere `speculation' that a different result might have obtained certainly does not satisfy the requirement."
State v. Getz, 1994 WL 465543, at *11 (Del.Super.) (finding no exception under Rule 61(i)(5) to the procedural bars of Rule 61).
Claims of ineffective assistance of counsel potentially fall under the "fundamental fairness" exception of Superior Court Criminal Rule 61(i)(5), which claims require further analysis. In order to establish a claim of ineffective assistance of counsel, a claimant must establish that: 1) counsel's representation fell below an objective standard of reasonableness; and 2) but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different. Furthermore, a movant must assert "concrete allegations of actual prejudice" to his or her rights.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
State v. Childress, 2001 WL 1610766, at *1 (Del.Super.).
4. Defendant's claims are procedurally barred under Superior Court Criminal Rules 61(i)(1)-(3). The motion was filed more than three years after his conviction became final on June 9, 2000, and is barred pursuant to Rule 61(i)(1). Rule 61(i)(2) further acts to bar those claims not raised in Defendant's prior motions for postconviction relief. Additionally, those claims not raised by Defendant on direct appeal are barred pursuant to Rule 61(i)(3). Furthermore, none of the exceptions to these procedural bars are availing. Thus, Defendant's third motion for postconviction relief is denied.
Defendant's first ground for relief, alleging that he was incompetent, is unfounded. "Competency is determined by whether the defendant is able to consult with his lawyer rationally, whether the defendant has a rational as well as factual understanding of the proceedings against him, and whether the defendant was able to assist in preparing his defense." In his affidavit, Defendant's trial counsel stated that defendant never mentioned any mental health issues and that counsel "did not detect any mental deficiencies" that approached the level of making Defendant unable to assist in the defense or incompetent to stand trial. Moreover, Defendant has not presented any evidence that he was incompetent at the time of his trial. Therefore, no "colorable claim" exists.
Aff. of Raymond J. Otlowski, Esquire, ¶ 2 (January 14, 2008).
Defendant's second ground for relief, alleging that the prosecutor at trial made improper statements in his closing argument, is without merit because the prejudice resulting from the prosecutor's comments (if, indeed, there was any) was cured by the Court's instructions to the jury members to rely on their own memories rather than the arguments of the attorneys. The Court also instructed the jury that what is said in opening and closing statements is not evidence.
Defendant, in his third ground for relief, claims that the trial judge abused his discretion and committed plain error by engaging in unrecorded sidebar conversations. However, Defendant points to no sidebar that covered substantive issues, and the Court recollects none. Defendant fails to recognize that not every comment made in the courtroom need be transcribed by a court reporter; for example, issues regarding scheduling are routinely discussed without a court reporter.
Defendant claims ineffective assistance of counsel as his fourth and final ground for relief. Defendant alleges that his counsel should have investigated Defendant's mental health issues; however, as previously stated, Defendant's counsel observed nothing indicating that Defendant had mental deficiencies. Defendant also alleges that his counsel did not interview witnesses who Defendant argues should have been interviewed; however, counsel made every attempt to locate favorable witnesses, but was either unsuccessful or determined that the witnesses were unfavorable. Defendant has not shown that: 1) counsel's representation fell below an objective standard of reasonableness; and 2) but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different.
Id. at ¶¶ 4-5.
Several procedural bars are applicable, and Defendant has failed to show an exception to these procedural bars. Therefore, Defendant's motion is denied.
5. For the reasons stated, Defendant's "Motion to Expand the Record" is GRANTED, and Defendant's Motion for Postconviction relief is DENIED.
IT IS SO ORDERED.