Opinion
I.D. #0306015047.
Submitted: August 18, 2006.
Decided: September 25, 2006.
Upon Defendant's Motion for Postconviction Relief. DENIED.
Stephen M. Walther, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
John Folks, Smyrna, Delaware, pro se.
ORDER
This 25th day of September, 2006, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
A. Procedural history
1. John Folks ("Defendant") was arrested on June 23, 2003, and then indicted on July 28, 2003, for Robbery First Degree, Possession of a Deadly Weapon during the Commission of a Felony ("PDWDCF"), Possession of a Deadly Weapon by a Person Prohibited, and Resisting Arrest. At trial in January 2004, the jury found Defendant guilty of First Degree Robbery and PDWDCF. This Court sentenced Defendant as a habitual offender to a total of 40 years of Level V incarceration. Defendant appealed his conviction on the grounds that the trial court erred by failing to declare a mistrial following a juror's in-court remark, by admitting a post-arrest statement, and by sentencing him as a habitual offender. On April 25, 2005, the Supreme Court affirmed the conviction but vacated Defendant's sentencing and remanded for resentencing, holding that the State had failed to prove that Folks was a habitual offender beyond a reasonable doubt. This Court resentenced Defendant on July 8, 2005 to 12 years at Level V, suspended after 10 years for 2 years at decreasing levels of supervision for the robbery conviction and 10 years at Level V on the weapon conviction. Defendant appealed again and the Supreme Court affirmed on February 17, 2006. 2. Defendant filed this timely motion for postconviction relief pursuant to Superior Court Criminal Rule 61 on March 27, 2006. Defendant's motion alleges ineffective assistance of counsel, double jeopardy, prosecutorial misconduct, and judicial misconduct.
A motion to sever this count was filed and granted by the Court.
The state nolle prossed this count before trial.
Folks v. State, 2005 WL 974782 (Del.Supr.).
Folks v. State, 2006 WL 212102 (Del.Supr.).
B. Possible procedural bars
3. Before addressing the merits of a motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61 ("Rule 61"). If a procedural bar exists, then the Court will not consider the merits of the postconviction claim. Rule 61(i) will bar (1) a motion filed more than one year after a final judgment of conviction, (2) any ground for relief that was not asserted in a prior postconviction proceeding, (3) any ground for relief that was not asserted at trial or on direct appeal, as required by court rules, (4) any ground for relief that was formerly adjudicated. Claimants can avoid the first three of these procedural bars, however, if under 61(i)(5), if they can show the court lacked jurisdiction or "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
4. In applying the procedural bars to this motion, Defendant's claim of "judicial misconduct" is barred by Rule 61(i)(4). Defendant alleges that this Court erred by considering a 1977 conviction of carrying a concealed deadly weapon for purposes of his resentence. However, Defendant already appealed this issue to the Supreme Court and lost. Therefore, this Court will not address the merits of that claim.
Folks, 2006 WL 212102, at *2 ("the Superior Court was within its discretion to consider the previous 1977 conviction in sentencing Folks, since it constituted relevant information pertaining to Folks' personal history").
5. This is the first opportunity Defendant has had to raise his ineffective assistance of counsel claims. Thus, none of the procedural bars of Rule 61 preclude consideration of this claim. Therefore, the Court will address the merits of the claim.
C. Ineffective assistance of counsel
6. To succeed on an ineffective assistance of counsel claim, Defendant must show both (a) "that counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a real probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Failure to satisfy one prong will render the claim unsuccessful and the court need not address the remaining prong. Moreover, allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel; the defendant must allege concrete allegations of actual prejudice and substantiate them. Furthermore, when evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance." i. Double jeopardy
Stickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Jordan v. State, 1994 WL 466142 (Del Supr.) (citing Younger v. State, 580 A.2d 552 (Del. 1990)).
Id. at 689.
7. Defendant asserts that his convictions of First Degree Robbery and PDWDCF violate double jeopardy protections, in that his possession of a weapon was incorporated in the robbery charge, thus he is being punished twice for the "same offense." He claims that both his defense counsel at trial and his defense counsel on appeal were ineffective for failing to make this argument. However, the Defendant cannot show that defense counsels' decision not to raise this issue fell below an objective standard of reasonableness when the Delaware Supreme Court has consistently rejected this argument. Defendant also raises this double jeopardy claim as an independent ground in his motion, but as already stated, this claim has no merit.
See Thomas v. State, 467 A.2d 954 (Del. 1983) (rejecting defendant's claim that imposition of separate sentences for Robbery First Degree and PDWDCF violated the Double Jeopardy Clause of the Fifth Amendment).
ii. Jury selection process/prosecutorial misconduct
8. Defendant next challenges the jury selection process. He claims that "he was denied due process of law and prejudiced against, when the prosecutor purposely and selectively excluded afro-americans from the jury during his peremptory challenges" in violation of Batson v. Kentucky. He raises this issue under the grounds of ineffective assistance of counsel as well as prosecutorial misconduct. However, he provides no specific evidence that supports this conclusory allegation, nor did he attempt to demonstrate any prejudice that resulted. Therefore, this claim fails under the two-prong test articulated in Strickland.
476 U.S. 79 (1986).
9. In addition, Defendant argues that his counsel was ineffective when he failed to include in the jury voir dire a question as to whether any of the potential jurors had seen Defendant's case on television or in the newspaper. The transcript, however, directly contradicts this allegation. The pool of jurors was asked, "Do you know anything about this case through personal knowledge, discussion with anyone, the news media, or any other source?" Therefore, this claim is meritless.
Trial Tr. of 1/15/2005 at 8.
iii. Counsel's performance at trial
10. Defendant next makes several claims about his counsel's performance at trial. It is plain from the motion and the record that none of Defendant's claims entitle him to relief as they are all completely conclusory. First, he faults counsel for not compelling the prosecution to produce an alleged exculpatory interrogation tape. He makes no attempt to explain how this tape would have affected the outcome of the case. Further, the record and trial counsel's affidavit suggest that there was no such tape. Thus, this conclusory claim also fails to demonstrate ineffective assistance of counsel.
See Younger, 580 A.2d at 556 (holding that conclusory allegations are legally insufficient to prove ineffective assistance of counsel).
James A. Bayard, Jr. Aff. at 2.
11. Next, Defendant claims his counsel should have made more objections during the trial, including objections to what he refers to as "surprise witnesses." He asserts that the prosecution did not notify him or his counsel of two of the state's witnesses until the day of trial. In addition, Defendant states that his counsel should not have allowed Mevey and Diehl to be excused after testifying because Simpson (a "surprise witness") later contradicted their testimony. However, Defendant has not alleged any facts to suggest that counsel's conduct fell below an objective standard of reasonableness or that he suffered actual prejudice.
Strickland, 466 U.S. at 689 ("It is all tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.")
12. Defendant also claims that counsel did not ask enough questions on cross-examination. Specifically, Defendant states "his counsel prejudiced him and denied him equal protection under the law when he refused to ask vital and important questions to the state's witnesses on cross-examination. Petitioner argues that his counsel only asked witnesses enough question to satisfy the court and that his questions were baseless and effortless." Similarly he asserts that counsel's summation was too short. In his motion, he claims "in closing arguments, his counsel used approximately four pages to sum up his argument, while the prosecution used approximately twenty-two pages to sum up his argument." These claims are conclusory. He does not provide any concrete allegations of actual prejudice. Moreover, the Supreme Court has stated that, in the context of opening and closing statements, "[b]revity alone does not state a claim of ineffective assistance of counsel."
Flamer v. State, 585 A.2d 736, 757 (Del. 1990) (holding that counsel's failure to give longer, more detailed opening and closing statements was not ineffective assistance of counsel).
13. Defendant alleges that counsel refused to allow him to stand in front of the jury in order to compare his height to that of the victim. Defendant did not explain why this was would have been relevant or how he was prejudiced as a result. Consequently, Defendant has not satisfied the requirements for an ineffective assistance of counsel claim.
14. Defendant also argues that "his counsel failed to investigate the existence of accomplices." This is a vague and conclusory allegation. He makes no concrete assertions to support this claim, nor does he even suggest that there were accomplices. Therefore, this claim also fails to demonstrate ineffective assistance of counsel.
15. Defendant further claims that he was prejudiced when his counsel "abandoned him" on his second appeal. Supreme Court Rule 26(c) ("Rule 26(c)") allows trial attorneys to withdraw if, after a careful review of the record, they determine that there is no merit to the appeal. The Supreme Court conducted its own review of the record in connection with his counsel's Rule 26(c) motion to withdraw, and determined that the appeal was "wholly without merit and devoid of any arguably appealable issues." Again, Defendant has failed to make the requisite showing of ineffective assistance of counsel.
Folks, 2006 WL 212102, at *2.
iv. Habitual offender
16. Defendant alleges both his counsel at trial and his counsel on appeal provided ineffective assistance of counsel on the issue defendant's status as a habitual offender. These claims are moot. Defendant appealed his original sentence to the Supreme Court which vacated the sentence after finding the State had not met its burden in proving Defendant was a habitual offender. Therefore, if any mistake was made, it has been cured by that decision.
Folks, 2005 WL 974782 at *3.
17. For the reasons stated, Defendant's Motion for Postconviction Relief is DENIED.