Opinion
I.D. No. 9603000529.
Submitted: March 17, 2005.
Decided: May 17, 2005.
On Defendant's Third Motion for Postconviction Relief.
DENIED.Caroline Lee Cross, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Kevin L. Washington, Smyrna, Delaware.
ORDER
This 17th day of May, 2005, upon the third motion for postconviction relief filed by Kevin L. Washington ("Defendant"), it appears to the Court that:
1. Defendant was indicted for three counts of Unlawful Sexual Intercourse First Degree and one count of Unlawful Sexual Penetration Third Degree. These charges stemmed from sexual assaults Defendant had committed against his then eight-year-old daughter. The facts that developed during a jury trial held in April 1998, however, led Defendant's counsel to request the giving of a jury instruction on the lesser included offense of Unlawful Sexual Contact Second Degree. On April 31, 1998, Defendant was convicted by a jury of two counts of Unlawful Sexual Intercourse First Degree, one count of Unlawful Sexual Contact Second Degree, and one count of Unlawful Sexual Penetration Third Degree. The Supreme Court affirmed on direct appeal, and in doing so rejected Defendant's claim that "plain error" had been committed relative to the sufficiency of the evidence as to the charge of Unlawful Sexual Contact Second Degree. Defendant was sentenced to 70 years at Level V for the two Unlawful Sexual Intercourse First Degree charges; two years at Level V for the Unlawful Sexual Penetration Third Degree charge; and two years at Level V (suspended after one year for one year at Level IV) for the Unlawful Sexual Contact Second Degree charge.
11 Del. C. § 775 (1995) (repealed 1998).
11 Del. C. § 770 (1995) (repealed 1998).
11 Del. C. § 768 (2001).
Washington v. State, 748 A.2d 408 (Del. 2000). On appeal, Defendant's trial counsel filed a Rule 26(c) brief together with a motion to withdraw; the Supreme Court entered an order appointing new counsel to brief Defendant's appeal. See Supr. Ct. R. 26(c) (providing that "[i]f the trial attorney, after a conscientious examination of the record and the law, concludes that an appeal is wholly without merit, the attorney may file a motion to withdraw").
2. Defendant thereafter filed his first pro se motion for postconviction relief. One of the claims Defendant asserted related to the charge of Unlawful Sexual Contact Second Degree, as Defendant argued that "prosecutorial misconduct" was committed because of an "insufficient indictment." This Court denied Defendant's motion as procedurally barred, and specifically found that Defendant's claim relative to the Unlawful Sexual Contact charge had been formerly adjudicated through the appeal process and should not then be reexamined in the interest of justice. The Court also found that Defendant had failed to rebut any presumption that his counsel's performance was not reasonable and professional.
State v. Washington, 2002 Del. Super. LEXIS 363, appeal dismissed, 803 A.2d 429 (Del. 2002) (noting that Defendant failed to timely file a notice of appeal).
Id.
Defendant filed a second pro se motion for postconviction relief in which Defendant asserted numerous claims of error. Most of the asserted claims related to his Unlawful Sexual Contact conviction, as Defendant maintained that this Court "lack[ed] . . . jurisdiction" when it "change[d] the indictment in the middle of the [Defendant's] trial," and that this Court "committed judicial misconduct and plain error and also abused [its] discretion for allowing the . . . prosecution to change the . . . indictment in the middle of . . . trial[.]" Defendant claimed that his counsel was ineffective because he "failed to raise . . . [this issue] on direct appeal. . . ." Defendant also contended that, due to the State's "failure to exonerate" him following the testimony adduced at trial that the victim did not remember "anything about [her] butt" having been "touched," the "Due Process Clause of the 14th Amendment" had been violated. Additionally, Defendant contended that "the trial prosecution was vindictive in prosecuting . . . [him] because he rejected a plea offer. . . ." And Defendant claimed that his "convictions, sentence[s], confinement and punishment [are] illegal and or unlawful."
Subsequent to submission of his Motion for Postconviction Relief, Defendant also filed a "Motion to Amend" in which he asserted two additional claims of error: 1) that this Court "committed judicial misconduct and reversible error and abused [its] discretion by allowing an unsigned police report to be admi[tted] in . . . court . . ."; and 2) that the State "committed prosecutorial misconduct" by withholding evidence of "the history of . . . syphilis . . . between the parents of the alleged victim."
Def.'s "Memorandum of Law for Postconviction Relief" at 3.
Id. at 6.
Id. at 4.
Id. at 5.
Id.
Id. at 6.
This Court found that the claims in Defendant's second motion were subject to the former adjudication bar of Rule 61 (i)(4) "unless reconsideration of the claim is warranted in the interest of justice." The claims in Defendant's second motion were denied in part as Defendant's claims were barred as formerly adjudicated and summarily dismissed in part as the claims for postconviction relief that were conclusory and unsubstantiated claims do not entitled a defendant to relief.
See, e.g., Younger, 580 A.2d at 555 (stating that "conclusory . . . allegations of ineffectiveness of counsel" do not "lead . . . to the conclusion that the claim should be considered . . .").
3. Defendant claims three grounds for relief in his third motion for postconviction relief. Defendant asserts as ground one that "the State's Rule(9) warrant — indictment is false because the [the deputy attorney general's] handwriting is one in (sic) the same with the foreperson." As ground two Defendant contends that his indictment violates Rule 6(f) because he asserts that if the indictment is false then at least 9 jurors could not have concurred as required by 10 Del. C. § 4505 to find for the indictment. The third ground for relief is that this Court failed to tell the jurors, in relation to the lesser included offense of Unlawful Sexual Contact Second Degree, that the victim's out-of-court statement was inconsistent with her in-court statement.
Specifically, the third count of Unlawful Sexual Intercourse First Degree was contemplated because of an allegation that Defendant had anal intercourse with the victim. However, at trial the victim testified that she did not remember "anything about [her] butt" having been "touched." Trial Tr. of 4/29/98 at 60.
4. 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 Super. Ct. Crim. R. 61. 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 or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court."
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(1).
Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." "The interest of justice [exception under Rule 61(i)(4)] has been narrowly defined to require the movant to show that the trial court lacked the authority to convict or punish him." Additionally, Rule 61(d)(4) provides that "[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," then this Court "may enter an order for . . . summary dismissal . . . [of the motion]."
Super. Ct. Crim. R. 61(i)(4).
State. Wright, Del. Super., 653 A.2d 288, 298 (1994) (citing Flamer v. State, 585 A.2d 736, 746 (1990)).
However, the procedural bar of Rule 61(i)(1) may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraph (1) . . . shall 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 judgement of conviction."
5. This Court finds that grounds one and two of Defendant's motion for postconviction relief are procedurally barred by Rule 61(i). To the extent that this Court can determine, grounds one and two appear to be claims of prosecutorial misconduct in that Defendant claims the prosecutor forged the signature of the foreperson on the indictment. Defendant seems to be claiming in ground one that either his case never went before a Grand Jury and the prosecutor forged an indictment or that if his case did go to a Grand Jury, then the Grand Jury did not return an indictment and the prosecutor forged the signature of the foreperson. Ground two is an extension of ground one in so much that it claims a violation of Rule 6(f) because 9 Grand Jurors did not concur on the indictment (either because there was no Grand Jury or the prosecutor overrode a Grand Jury's decision not to indict).
Defendant has withdrawn ground three. Defendant's Reply at 7.
Under Rule 61(i)(1), Defendant's claims are procedurally barred because Defendant's third motion for postconviction relief was filed after the period of limitation had run. Defendant's convictions were affirmed on direct appeal to the Delaware Supreme Court on March 3, 2000; therefore, Defendant had until March 3, 2003 in which to file motions for postconviction relief. Defendant filed this third motion for postconviction relief on October 29, 2004, or more than a year and seven months late. The fundamental constitutional violation exception and the "miscarriage of justice" exception contained within Rule 61(i)(5) do not apply here because Defendant's claims of prosecutorial misconduct are conclusory and unsubstantiated. Defendant has claimed a "miscarriage of justice" but has failed to establish any colorable claim of injustice.
Further, Defendant has raised in his third motion for postconviction relief substantially the same claims raised on direct appeal, in his first motion for postconviction relief and his second motion for postconviction relief. Although couched in different terms, the Court finds that the claims Defendant asserts in his third motion for postconviction relief are sufficiently of the same character as his claims of "prosecutorial misconduct," and "improper indictment," that were asserted in Defendant's prior motions. As such, the claims in Defendant's second motion are subject to the former adjudication bar of Rule 61(i)(4). Defendant is not entitled to rehash old claims in the hope that the Court will reconsider those claims. Defendant has not shown that "reconsideration of the claim is warranted in the interest of justice."
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (holding that "a defendant is not entitled to have a court re-examine an issue that has been previously resolved `simply because the claim is refined or restated'") (quoting Riley v. State, 585 A.2d 719, 721 (Del. 1990)).
For the foregoing reasons, Defendant's third motion for postconviction relief is DENIED.