Opinion
ID No. 9712003463.
Submitted: June 19, 2007.
Decided: July 17, 2007.
Upon Consideration of Defendant's Pro Se Motion for Reargument., CR. A. NO.: IN97-12-0663, CR. A. NO.: IN97-12-0663-R10.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief.
SUMMARILY DISMISSED.
DENIED.
ORDER
This 17th day of July, 2007, upon consideration of Defendant, John E. Miller's, Motion for Reargument of the Court's decision Summarily Dismissing his Ninth Motion for Postconviction Relief, it appears to the Court that:
1. On February 15, 2007, John E. Miller ("Defendant") filed his Ninth Motion for Postconviction Relief ("Motion") pursuant to Superior Court Criminal Rule 61 ("Rule 61"). On June 6, 2007, this Court summarily dismissed the Motion pursuant to Rule 61(d)(4).
State v. Miller, No. IN97-12-0663, 2007 WL 1651970 (Del.Super.Ct. June 6, 2007). See also SUPER. CT . CRIM . R. 61(d)(4) ("Summary Dismissal — If 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, the judge may enter an order for its summary dismissal and cause the movant to be notified.").
2. In his letter dated June 19, 2007, Defendant requests clarification of the Court's June 6, 2007 order. Defendant's request, in essence, asks the Court to revisit the claims it addressed in the Motion, and will therefore be treated as a motion for reargument. Defendant raised two legally cognizable claims in his ninth motion for postconviction relief: (1) that his counsel was ineffective; and (2) that the Supreme Court of Delaware improperly considered issues that the Superior Court did not address in the proceedings below.
Docket Item ("D.I.") 261, Motion for Reargument.
3. In his Motion for Reargument, the Defendant claims that the Court failed to address two separate claims raised in the Motion: "(1) my attorney failed to investigate the basis of the plea/prosecution and inform me there was no basis and that I was factually innocent [and] (2) my attorney failed to inform me correctly of my sentence exposure." Together these claims amount to an ineffective assistance of counsel allegation. The Court acknowledged and thoroughly considered each allegation Defendant raised when it decided the Motion. The Court determined that it "plainly appears from the motion . . . and the [voluminous] record of prior proceedings . . . that the [Defendant] is not entitled to relief." Specifically, the Court found that Defendant's claims were simply "repackaged" versions of the
D.I. 256, Ninth Motion for Postconviction Relief.
See SUPER. CT . CRIM . R. 61(d)(4). See also State v. Miller, No. IN97-12-0663, 2007 WL 1651970 (Del.Super.Ct. June 6, 2007).
same claims previously addressed. Defendant's Motion for Reargument asks the Court to address the merits of the Motion (yet again), but he has done nothing to persuade the Court to depart from its finding that the Motion merely rephrases numerous prior allegations of ineffective assistance of counsel that have been thoroughly considered by this court and the Supreme Court of Delaware.
See State v. Miller, No. IN97-12-0663, 2007 WL 1651970 (Del.Super.Ct. June 6, 2007).
See State v. Miller, 2006 WL 1148679 (Del.Super.Ct. Jan. 5, 2006), aff'd, 901 A.2d 120 (Del. 2006) (refusing to address Defendant's claims on the merits because Defendant's claim was a "mere repackaging of his earlier claim. . . . under the rubric of ineffective assistance of counsel."); State v. Miller, IN97-12-0663-R1, Herlihy, J. (Del.Super.Ct. Dec. 2, 2002), aff'd, 840 A.2d 1229 (Del. 2003) (Defendant claimed ineffective assistance of counsel because, inter alia, "[c]ounsel failed to investigate or misinterpreted the defendant's criminal history and failed to investigate trial issues.").
4. As stated, Defendant's second claim in his Motion was that the Supreme Court improperly considered issues in Defendant's appeal that had not been addressed by this court in its decision on an earlier motion for postconviction relief. In particular, the Motion states "I raised these issues in my first postconviction motion but the Superior Court didnt [sic] address them in its December 2, 2002 order, but the Delaware Supreme Court did address them in the resulting appeal[.]"
D.I. 256.
Id. (referring to Defendant's claims that "(1) my attorney failed to investigate the basis of the plea/prosecution and inform me there was no basis and that I was factually innocent; [and] (2) my attorney failed to inform me correctly of my sentence exposure.").
5. After thorough consideration of the voluminous record, specifically Defendant's first motion for postconviction relief and the Supreme Court's subsequent order affirming that decision, the Court again rejects Defendant's claims that the Supreme Court's December 23, 2003 opinion addressed issues not considered by the Superior Court. The Supreme Court addressed: (1) Defendant's voluntary guilty plea; (2) effective assistance of counsel; and (3) Defendant's claim of actual innocence. This court's denial of Defendant's first motion for postconviction relief also addressed each of these issues: (1) Defendant's voluntary guilty plea; (2) effective assistance of counsel; and (3) Defendant's claim of actual innocence. Defendant's argument on this point in the Motion is not supported by the record and is, therefore, completely without merit.
State v. Miller, IN97-12-0663-R1, Herlihy, J., (Del.Super.Ct. Dec. 2, 2002), aff'd, 840 A.2d 1229 (Del. 2003).
State v. Miller, 840 A.2d 1229 (Del. 2003).
State v. Miller, IN9 7-12-0663-R1, at 17-18, 24, Herl ihy, J., (Del.Super.Ct. Dec. 2, 2002) (finding that Defendant's plea was voluntary because Defendant pled guilty "knowing there was a risk of habitual offender sentencing" and Defendant "told the judge taking the plea that it was voluntary and no one was forcing him to enter it.") In addition, the order references the same plea colloquy that the Supreme Court opinion relied upon to conclude that Defendant's counsel discussed the likelihood that the Defendant would be sentenced as a habitual offender. Id.
Id. at 16-24 (dismissing numerous allegations of counsel's ineffectiveness, none of which were so prejudicial as to create a reasonable probability that the outcome of the proceedings would have been different). The Court notes that both this court and the Supreme Court cited Downer v. State, 543 A.2d 309, 312-13 (Del. 1988) to support the conclusion that Defendant's guilty plea acted as a waiver of any defects in the prosecution.
State v. Miller, IN97-12-06 63-R1, at 2 5, H erl ihy, J., (Del.Super.Ct. Dec. 2, 2002) (stating that Defendant's claim that Probation and Parole was responsible for the robbery because it did not properly supervise the Defendant while he was on probation "is devoid of merit").
6. Based upon the foregoing, Defendant's Motion for Reargument of the Court's June 6, 2007 order summarily dismissing his ninth motion for postconviction relief is DENIED.
IT IS SO ORDERED.
This 17th day of July, 2007, upon consideration of Defendant, John E. Miller's Tenth Motion for Postconviction Relief, it appears to the Court that:
1. On April 13, 1998, John E. Miller ("Defendant") pled guilty to Robbery First Degree. On August 28, 1998, the court declared Defendant to be a habitual offender and sentenced him to thirty years incarceration. On August 4, 1999, Defendant's guilty plea was affirmed by the Supreme Court of Delaware.
Miller v. State, 737 A.2d 531 (Del. 1999).
2. On June 19, 2007, Defendant filed the present motion, his tenth formal motion for postconviction relief, pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Defendant filed the motion sub judice only thirteen days after this Court summarily dismissed his ninth motion for post conviction relief, and on the same day he filed a Motion for Reargument regarding his ninth motion. For the reasons that follow, Defendant's tenth motion for postconviction relief is SUMMARILY DISMISSED. In addition, because Defendant has abused the judicial process through the repeated filing of frivolous petitions and appeals, the Court ORDERS that no further pro se petitions for extraordinary relief filed by Defendant regarding criminal action number IN97-12-0663-R10 will be docketed without a specific Order of this Court that the motion is neither repetitive nor frivolous.
See Docket Item "D.I." 262, Tenth Motion for Postconviction Relief. See also SUPER. CT. CRIM. R. 61(b)(1) ("Form of Motion — An application under this rule shall be made by a motion for postconviction relief. The movant must use the prescribed form which shall be made available without charge by the prothontary. The motion shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the movant.").
D.I. 258, Ninth Motion for Postconviction Relief.
D.I. 261, Motion for Reargument. See also State v. Miller, No. IN97-12-0663, Slights, J., Motion for Reargument, (Del.Super.Ct. July XX, 2007).
3. Ordinarily, before addressing the merits of any postconviction relief claim, the Court must determine whether the claims pass through the procedural filters found in Rule 61(i). The Court will not address the procedural bars, however, "if 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, the judge may enter an order for its summary dismissal and cause the movant to be notified."
SUPER. CT. CRIM. R. 61(d)(4).
4. Defendant's tenth motion amounts to nothing more than a request to the Court for legal advice. Defendant asserts a conclusory allegation that his attorney "lied" to the Defendant prior to entering the guilty plea and asks the Court to "[p]lease tell me if its [sic] okay For him to lie to me and tell me what lies he's definetly [sic] not allowed to tell me." Defendant further inquires, "is it from my attorney that I get my knowledge about why or why not I should enter a plea and all the things I need to know to enter it voluntarily?" The Court cannot and will not give Defendant legal advice or guidance. The Court is satisfied that "it plainly appears" that Defendant is not entitled to relief because he has not stated any grounds for relief, only requests for legal advice.
D.I. 262, Tenth Motion for Postconviction Relief.
Id.
See THE DELAWARE JUDGES' CODE OF JUDICIAL CONDUCT Canon 5(F) (1994) ("Practice of Law — A judge should not practice law."). See also Karney v. Coastal Zone Industrial Control Bd., 2005 WL 3844219, at *5 (Del.Super.Ct. Mar. 18, 2005)("To expound upon a case in which a party has no right, or a challenged right, to complain is to render an impermissible advisory opinion."); Dep't of Corrections v. Delaware Correctional Officers Ass'n, 2002 WL 31926610, at *1 (Del.Ch. Dec. 23, 2002) MASTER'S REPORT ( citing McDermott Inc. v. Lewis, 531 A.2d 206, 211 (Del. 1987); Sannini v. Casscells, 401 A.2d 927, 930 (Del. 1979)("The courts of this state do not render advisory opinions[.]").
SUPER. CT . CRIM . R. 61(d)(4).
5. Defendant also requests that the Court appoint counsel. "There is no constitutional right to the appointment of counsel in postconviction proceedings." Pursuant to Rule 61(e)(1), "[t]he court will appoint counsel . . . only in the exercise of discretion and for good cause shown, but not otherwise." The Defendant has not shown any cause, let alone good cause, for the Court to appoint counsel now, on his tenth motion for postconviction relief. This Court will not delay the inevitable by appointing counsel to assist the Defendant in filing repetitive motions for postconviction relief that are entirely devoid of merit. Accordingly, the Court, in its sound discretion, will not appoint counsel.
Roth v. State, 2006 WL 1186806, at *2 (Del. May 2, 2006) (affirming Superior Court's refusal to appoint counsel). See also Floyd v. State, 1992 WL 183086, at *1 (Del. July 13, 1992) ("[I]t is settled law that there is no constitutional right to counsel during post-conviction proceedings.").
SUPER. CT . CRIM . R. 61(e)(1) (emphasis supplied).
Cf. SUPER. CT . CRIM . R. 61(e)(2) ("Motion to Withdraw — If counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw.").
See Roth, 2006 WL 1186806, at *2 (holding that the Superior Court did not abuse its discretion in refusing to appoint counsel in a postconviction proceeding where the "claims were not complex and were lacking in factual support."). See also Warrington v. State, 2006 WL 196437, at *1 (Del. Jan. 24, 2006) (stating that defendant's claims lacked factual basis and consequently did not meet the good cause standard under Rule 61(e)(1)); Ellingsworth v. State, WL 31477130, at *2 (Del. Nov. 4, 2002) (affirming Superior Court's refusal to appoint counsel in postconviction proceeding because the defendant's allegation that his attorney "lied under oath" did not constitute good cause pursuant to Rule 61(e)).
6. Defendant's court records indicate that he has filed a minimum of eleven formal and/or informal Rule 61 motions for postconviction relief on the following dates: July 18, 2002; April 5, 2004; August 31, 2004; December 17, 2004; October 14, 2005; June 9, 2006; July 21, 2006; August 3, 2006; November 21, 2006; February 26, 2007; and June, 19, 2007. Defendant has also filed two unsuccessful petitions for habeas corpus relief, one on April 26, 2004 and another on August 2, 2004. Additionally, Defendant has filed two motions for reduction of sentence, the first on December 8, 1998, accompanied by a motion to reconsider on February 11, 1999, and the second on September 21, 2001. On March 14, 2000, Defendant filed a motion for correction of illegal sentence. Defendant did not prevail on any of his numerous postconviction motions and yet he continually burdens this Court with a variety of repetitive and frivolous motions. Defendant's expansive record is not limited to this Court; the Supreme Court of Delaware has entertained Defendant's appeals on numerous occasions. Overwhelming as it is, this list does not include at least forty other requests Defendant has made of this Court, the Prothonotary, the Attorney General's office, the Public Defenders office, the Court Reporter's office, and the Delaware Bar Foundation relating to this case. Defendant has demonstrated in the motion sub judice that he will continue to file motions for postconviction relief as soon as the Court addresses his last-filed motion. Seven years ago, Judge Herlihy warned, "In all honesty, there will be a time, if it has not already passed, where it gets impossible to continue to answer your questions." That time has come.
See D.I. 162; 179; 197; 201; 206; 229; 233; 235; 246; 256; 262.
See D.I. 183; 191.
See D.I. 25; 34; 151.
See D.I. 90.
See D.I. 48; 63; 68; 124; 132; 153; 159; 160; 228; 232; 261.
See D.I. 50; 97; 178; 205; 224. (D.I. 97 was voluntarily withdrawn by Defendant).
See, e.g., D.I. 20; 32; 38; 44; 57; 59; 73; 70; 74; 84; 119; 121; 126; 149; 231; 242.
D.I. 106, Apr. 17, 2000 Letter from Judge Herlihy to John Miller.
7. Rule 61 provides criminal defendants with an additional means to attack a final judgment. It is imperative to the judiciary, society, and the criminal defendant, however, that each case achieve finality. "It is a matter of fundamental import that there be a definitive end to the litigable aspect of the criminal process." The procedural bars of Rule 61(i) further the interests of finality by eliminating untimely, repetitive, and/or meritless claims. Rule 61 is not intended to be an avenue for defendants to flood the court with repetitive and frivolous motions. Here, the extensive record clearly signifies Defendant has abused the judicial process, and that will no longer be tolerated.
Flamer v. State, 585 A.2d 736, 745 (Del. 1990) ("Postconviction relief is a colla remedy which provides an avenue for upsetting judgments that otherwise have become final. It is not designed as a substitute for direct appeal.").
Id.
8. Based o n the for egoing, Defen dant's ten th motio n for po stconvic tion relief is SUMMARILY DISMISSED.
9. IT IS FURTHER ORDERED that no further pro se petitions for extraordinary relief filed by Defendant regarding criminal action number IN97-12-0663-R10 will be docketed without a specific Order of this Court that the motion is neither repetitive nor frivolous. IT IS SO ORDERED.
See State v. Johnson, 2000 WL 1637318, at *2 (Del. Oct. 16, 2000) (ordering that "no further filings by [defendant] . . . will be docketed without a Justice of this Court determining that they are neither repetitive nor frivolous."). See also Oney v. State, 1987 WL 37997, at *2 (Del. July 2, 1987) ("No further suits or appeals which are in the nature of post-conviction applications . . . will be entertained in the Delaware Supreme Court or the Delaware Superior Court without leave of a justice or judge of the court involved who shall first determine that the proposed application is neither repetitious nor frivolous."); State v. Haskins, Crim. Action Nos. IN86080702, 86080803, 86080704, Jurden, J., ORDER (Del.Super.Ct. June 27, 2007) ("Defendant's repetitive and frivolous motions constitute an egregious abuse of the Court's judicial process . . . It is hereby ordered that . . . in the absence of a specific Order of this Court, the Prothonotary shall not docket any further pro se petitions for extraordinary relief filed by Defendant[.]").