Opinion
CR. A. NOS. IN 02-11-0195; IN 02-11-0196; IN 02-11-0197; IN 02-11-0198; IN 02-11-0199 DEF. ID. 0207002276.
Submitted: February 2, 2007.
Decided: July 11, 2007.
SUMMARILY DISMISSED.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief.
ORDER
This 11th day of July, 2007, upon consideration of Defendant David Davis' Motion for Postconviction Relief, it appears to the Court that:
1. On December 16, 2003, David Davis ("Defendant"), against the advice of counsel, rejected a plea offer by the State whereby Defendant would plead guilty to three counts of Rape Third Degree (Class B felonies), and in exchange, the State agreed not to pursue any other charges against the Defendant. Additionally, the State agreed to cap its recommended sentence at ten years. On December 17, 2003, Defendant's counsel informed the Court of Defendant's belief that a guilty verdict could be overturned on appeal based on ineffective assistance of counsel. Counsel had already explained to Defendant the unlikelihood that such a claim would succeed "unless there is some sort of gross negligence on the part of his defense," and the Court directed counsel to explain to Defendant the Strickland Standard. After that explanation, Defendant was invited to advise the Court about any concerns he had, and he declined. On December 18, 2003, Defendant was convicted by a jury of three counts of Rape First Degree, one count of Attempted Rape First Degree, and one count of Terroristic Threatening. The jury failed to reach a verdict on the fourth count of Rape First Degree.
Trial Colloquy, Docket Item ("D.I.") 50 at 4:23-10:8, 11:14-12:8.
Trial Colloquy, D.I. 48 at 2:14-4:19.
Id.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 4:20-21.
Verdict, D.I. 37.
Id.
2. On February 26, 2004, Defendant was sentenced as follows: for IN02-11-0195-W, Rape First Degree, seventeen years at Level V, suspended after the mandatory fifteen years for two years Level IV Work release, suspended after six months for eighteen months Level III; for IN02-11-0196-W, Rape First Degree, mandatory fifteen years at Level v and ordered to pay $2314 in restitution to Christiana Care; for IN02-11-0197-W, Rape First Degree, mandatory fifteen years at Level V; for IN02-11-0198-W, Attempted Rape First Degree, mandatory fifteen years at Level V; for IN02-11-0199-W, Terroristic Threatening, one year at Level V, suspended for one year Level II, to run concurrently with the probationary period of IN02-11-0195-W. The sentence was to become effective when Defendant was released from incarceration in Maryland for unrelated crimes.
Sentencing Order, D.I. 43.
Id.
3.On March 11, 2004, Defendant filed a direct appeal to the Delaware Supreme Court, claiming that when this Court granted a continuance due to a medical examiner backlog that delayed the availability of DNA results, it violated the 180 day trial window afforded him by the Interstate Agreement on Detainers. The Delaware Supreme Court affirmed Defendant's convictions, holding that the delay was a justified discretionary decision by this Court given the circumstances, because it was possible the DNA results could have exonerated Defendant. Those results eventually came back as inconclusive.
Supreme Court Mandate, D.I. 56.
Id.
Trial Colloquy, D.I. 50 at 8:6-9.
4.On February 21, 2007, Defendant filed the present pro se motion seeking postconviction relief under Delaware Superior Court Criminal Rule 61. Because this is a pro se motion, the Court will allow more leeway than if the motion had been prepared by a professional lawyer. Because this is Defendant's first motion for postconviction relief, the Court will address each of Defendant's claims. Defendant attacks his conviction on the following grounds: ineffective assistance of counsel (failure to enter "crucial exculpatory DNA lab result into evidence"; failure to hire a private lab to conduct DNA testing on epithelial cells; failure to "cross-examine the SANE nurse report") and prosecutorial misconduct (failure "to request a microscopic hair comparison [or] mitochondrial DNA testing" which would exonerate Defendant).
Super. Ct. Crim. R. 61 ("Rule 61").
See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
5. Before addressing the merits of any postconviction relief claim, the Court first must determine whether the claims pass through the procedural filters of Rule 61. To protect the integrity of the procedural rules, the Court will not address the substantive aspects of the claims if Defendant's claims are procedurally barred. Rule 61(i), as it applies to this case, imposes four procedural imperatives: 1) the motion must be filed within three years of a final order of conviction; 2) any basis for relief must have been asserted previously in any prior post-conviction proceedings; 3) any basis for relief must have been asserted at trial or on direct appeal as required for the court rules; and 4) any basis for relief must not have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant can circumvent the first three imperatives when the claim is jurisdictional or is a "colorable claim that there was a miscarriage of justice because of a constitutional violation[.]"
See Younger v. State, 580 A.2d 552, 554 (Del. 1990)("This Court applies the rules governing procedural requirements before giving consideration to the merits of the underlying claim for postconviction relief."); Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991)("The first inquiry in any analysis of a post-conviction relief claim is whether the petition meets the procedural requirements of Rule 61.")
Younger, 580 A.2d at 554; Bailey, 588 A.2d at 1127.
6. Applying the procedural filters to the present motion, Defendant's claims of ineffective counsel are not barred, but his claim of prosecutorial misconduct is barred. Defendant filed his motion within three years of his final conviction, so his claims are not time barred under Rule 61(i)(1) as it was written at that time. Because Defendant has had no prior postconviction proceedings, his claims are not barred under Rule 61(i)(2). Rule 61(i)(3) requires that any claim Defendant makes here must have also been made at trial, unless Defendant shows both a cause for relief and actual prejudice. This Rule does not bar Defendant's ineffective counsel claim, because he made clear at trial that he was unhappy with his counsel. Defendant never raised an issue of prosecutorial misconduct prior to conviction, fails to show either cause or prejudice as required by Rule 61(i)(3)(A) and (B), and fails to circumvent this procedural bar via Rule 61(i)(5), so that claim is procedurally defaulted and SUMMARILY DISMISSED. Rule 61(i)(4), barring previously adjudicated claims, does not apply to the surviving claims of ineffective counsel.
Under Rule 61(m)(2), Defendant's conviction became final on December 30, 2004, when the Delaware Supreme Court issued its Mandate affirming Defendant's convictions. Supreme Court Mandate, D.I. 56. At that time, Rule 61(i)(1) allowed three years, rather than the current one year, to file a motion for postconviction relief. Defendant's motion, filed February 21, 2007, is therefore not time barred.
Trial Colloquy, D.I. 48 at 2:14-4:21.
Also, Defendant's claim rests upon an inference that the prosecutor should have doggedly pursued a possible avenue of proving Defendant's innocence, a position contrary to the American adversarial judicial system. This claim would therefore be summarily dismissed even if it were not procedurally barred, as Defendant failed to provide "a sufficient factual and legal basis for a collateral attack on a criminal conviction" as required by Rule 61(a)(1) and Rule 61(b)(2).
7. In order for the Court to fairly assess a Rule 61 motion, the defendant must provide "a sufficient factual and legal basis for a collateral attack upon a criminal conviction" by "set[ting] forth in summary form the facts supporting each of the grounds thus specified." Claims that are merely conclusory and unsubstantiated risk being summarily dismissed. For an allegation of ineffective assistance of counsel, the defendant must meet the two-pronged Strickland test by showing that his counsel performed at a level "below an objective standard of reasonableness," and that "the deficient performance prejudiced the defense." The first prong requires the defendant to show by a preponderance of the evidence that the defense counsel was not reasonably competent, while the second prong requires the defendant to show "that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different." When the Court chooses to dismiss on either prong, it need not address the remaining prong.
Rule 61(a)(1).
Rule 61(b)(2).
See, e.g., Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996) (holding that a petitioner must substantiate concrete allegations of attorney ineffectiveness or risk summary dismissal).
Strickland, 466 U.S. at 687-88.
Id. at 687-88, 694.
State v. Slade, 2002 WL 1974023, at *4 (Del.Super.) ( citing Strickland, 466 A.2d 668, 697).
8. Defendant's first claim of ineffective assistance of counsel is not exactly clear, but it appears to the Court that Defendant makes the following argument: swabs from the victim's mouth and vagina did not yield sperm that could be tested for DNA; the victim testified that "fellatio ejaculation did occurre [sic]"; therefore the lack of sperm was "exonerating evidence that impeaches the victim's testimonys [sic], and excluse [sic] me as the perpelator [sic]." Defendant claims his counsel unreasonably failed to enter this "crucial exculpatory DNA lab result" into evidence.
Def. Mot. for Postconviction Relief, D.I. 58.
Id.
9. This allegation is conclusory and unsubstantiated, contrary to the trial record, and illogical. First, Defendant offers no evidence to support this argument, merely stating the conclusion that he is innocent and the DNA lab results proved it. Second, the victim did not testify that Defendant ejaculated. In 109 pages of testimony, the only time the victim was asked if the Defendant ejaculated, she responded that she was not sure. Third, even if the victim had testified that Defendant ejaculated, the Defendant has established no natural or logical progression between a lack of sperm and counsel's ineffectiveness or Defendant's innocence. Therefore, this claim is
Trial Colloquy, D.I. 48 at 39:9-12.
SUMMARILY DISMISSED.
10. Defendant's next claim is that his counsel was constitutionally deficient by failing to hire a private laboratory to conduct a DNA test after the state Medical Examiner found no sperm to test. Defendant claims that had his counsel pursued epithelial cell tests, "subsequent DNA testing would prove my innocences [sic], there for [sic] deprive [sic] of a fair trial . . . under 6 amendment." Although Defendant claims his Constitutional rights were violated, he offers no evidence to support this unsubstantiated and conclusory statement. Consequently, this claim is SUMMARILY DISMISSED.
Def. Mot. for Postconviction Relief, D.I. 58.
12. Defendant's final claim appears to be that his counsel was constitutionally deficient by failing to "cross-examine the SANE nurse report." Because a nurse's written report obviously cannot be cross-examined, the Court assumes Defendant means "defense counsel failed to cross-examine the SANE nurse concerning her report." The record clearly shows that defense counsel extensively cross-examined the SANE nurse, Nurse Dougherty, and the SANE report was thoroughly covered in that cross-examination. As Defendant's final claim lacks factual support, it is
Id.
Trial Colloquy, D.I. 48 at 150:11-203:16.
SUMMARILY DISMISSED.
IT IS SO ORDERED.