Opinion
ID No. 0310017917.
Submitted: May 25, 2007.
Decided: July 5, 2007.
Upon Defendant's Motion for Postconviction Relief.
DENIED.Ipek K. Medford, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Kenneth D. Pierce, Smyrna, Delaware, pro se.
ORDER
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant, Kenneth D. Pierce, was charged by indictment with Robbery in the First Degree, Conspiracy in the Second Degree, and Criminal Mischief. The indictment charged crimes committed at Motel 6 near New Castle on September 29, 2003.
Brian J. Bartley Aff. at ¶ 2.
Defendant was represented by the public defender's office, and during the period before trial, Defendant met with counsel at Howard R. Young Correctional Institute (formerly "Gander Hill") on at least sixteen occasions to discuss various aspects of trial strategy. Beyond interviews with Defendant, counsel conducted pre-trial preparation and interviews, and filed a pre-trial Motion In Limine to preclude the victim's in-court identification of the Defendant, which was unsuccessful.
Id. at ¶ 3.
Id. at 4-5.
In discussing various trial strategies, Defendant apparently advised counsel that he should have been charged with theft but not robbery. Defendant stated to counsel that "I know I took some money." Defense counsel then decided to use this information to discredit the victim at trial and to suggest to the jury that the victim might have fabricated the robbery to avoid the embarrassment of violating company policy, which forbade keeping large amounts of cash on hand.
Id. ¶ 6.
Id. at Ex. B.
Id. at ¶ 6.
Prior to trial on September 2, 2004, defense counsel secured a plea offer to Robbery Second Degree with a recommended sentence of five years. Defendant rejected the plea offer.
Id. at ¶ 10.
Id.
Trial commenced on September 9, 2004 and following a two day jury trial, Defendant was convicted of Robbery First Degree and Conspiracy Second Degree. Mr. Pierce elected not to testify on his own behalf, and throughout the trial defense counsel emphasized that the most severe offense Mr. Pierce should be convicted of was theft. Despite defense counsel's efforts, guilty verdicts were returned with respect to both felony charges.
Id. at ¶ 2.
Id.
Sentencing was conducted on November 19, 2004 at which time Defendant was sentenced to a minimum mandatory term of twenty-five years incarceration. Defendant was sentenced as a habitual offender. Prior to this conviction, Defendant had been previously adjudicated and sentenced as a habitual offender on November 12, 1999 pursuant to 11 Del. C. § 4214(a) for the offense of Burglary in the second degree. Moreover, in a subsequent case dated December 1, 2003, Defendant admitted that he was a habitual offender.
Id.
Id. at ¶ 10.
Id.
After imposition of sentence, an appeal was timely pursued. Defense counsel filed a merit brief advancing several arguments for reversal of Defendant's conviction. However, despite counsel's efforts, the convictions and sentences were affirmed on August 10, 2005. The Supreme Court held that (1) the prosecutor's statement during rebuttal argument that the defense counsel's argument belied common sense did not improperly impugn integrity of defense counsel and was appropriate under the circumstances; (2) the prosecutor did not vouch for the credibility of the victim's testimony; and (3) the photographs of victim's injuries were properly authenticated. Defendant then filed this pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61 on December 15, 2006.
Pierce v. State, 2005 WL 1949966 (Del.Supr.).
II. PARTIES' CONTENTIONS
Defendant's pro se motion for postconviction relief sets forth seven grounds upon which he requests that the Court overturn his conviction.
Defendant's first ground for reversal asserts that there was a conflict between him and his trial attorney. Defendant contends that the Court was sufficiently appraised of the conflict, and the Court erred in not conducting an inquiry or ordering a hearing on the claim. Defendant asserts that he has a sixth amendment right to representation that is free from conflict and that the Court committed error in not examining that possible conflict. Defendant asserts that this error leads to an automatic reversal.
Def.'s Mot. for Postconviction Relief 1.
Defendant never explicitly states in ground one exactly what the conflict was.
Def.'s Mot. for Postconviction Relief 1.
Id.
Defendant's second ground alleges that he was denied due process when the trial court refused to honor defense counsel's jury instruction for the lesser offense of robbery in the second degree. Defendant asserts that neither prosecution nor victim produced any medical or scientific proof of physical injury. Defendant alleges that this deprived him of a fair trial because the Court failed to honor the request that the jury be instructed of the lesser offense of Robbery in the Second Degree.
Id. at 2.
Id.
Id.
Defendant's third claim is that he was illegally sentenced as a habitual offender. Defendant alleges that the motion filed by the prosecution to declare him a habitual offender did not comply with basic due process requirements. Defendant claims that the prosecutor "is lettered in the law" and should know that his filing failed to comply with constitutional requirements.
Id. at 3.
Id.
Id.
Defendant's fourth contention accuses defense counsel of misconduct for failing to withdraw from the case. Defendant alleges the defense counsel was racist and made racial remarks to him during meetings. In addition, Defendant alleges that defense counsel should have withdrawn because of a federal lawsuit that he himself had filed against defense counsel. Defendant asserts that "the most mind boggling act and omission in this case is trial counsel's obvious failure or refusal to, at a minimum to at least file a motion to withdraw from this case. However, it is abundantly clear that counsel's intent . . . for remaining on the case was to ensure a conviction." Defendant contends that defense counsel's allegedly racist allegations and conspiracy to get a conviction deprived him of a right to a fair trial.
Id. at 4.
Id.
Id.
Id.
Id.
Defendant's fifth contention charges defense counsel with admitting to the jury that Defendant was guilty. Defendant again asserts that defense counsel's statements to the jury regarding theft is a clear indicator that defense counsel sought to bias the jury against the Defendant. Defendant argues that defense counsel's statements created two conflicting theories that could not be reconciled. Defendant contends that defense counsel's conflicting theories "left the door open for the prosecution to put the final nail in defendant's coffin."
Id. at 5.
Id.
Id.
Defendant's sixth account alleges that the defense counsel should have known that the State's motion to sentence him as a habitual offender was unconstitutional. He states defense counsel failed to challenge a serious flaw and that this grievous error is enough to overturn the conviction because another counsel would have ensured him a lesser penalty.
Id. at 7.
Id.
Defendant's last ground generally attacks his representation at trial, during sentencing and on appeal. Defendant accuses counsel of various blunders and states that defense counsel "abandon the cause following racially and discriminatory statements." Defendant asserts that this entitles him to a new trial.
Id.
Id.
In response to Defendant's allegations, the State responds that Defendant's first three contentions should be procedurally barred because Defendant failed to raise grounds one, two and three on direct appeal and in this motion has "failed to show (1) `some external impediment' which prevented him from raising the claim and (2) a `substantial likelihood' that if the issue had been raised on appeal, the outcome would have been different. Because the Defendant failed to raise these contentions earlier, the State contends that they are procedurally barred from consideration in the instant motion.
State's Response to Def.'s Mot. for Postconviction Relief 4.
The State responds to Defendant's fourth allegation by arguing that Defendant has failed to provide concrete reasons required under law. Furthermore, the State contends that Defendant failed to show that his counsel's representation fell below the standard of reasonableness, and Defendant does not demonstrate that there is reasonable probability that the proceeding would have turned out differently but for this allegation. Lastly, the State argues that Defendant's position is without merit because he himself created the conflict by filing the lawsuit in federal court shortly before trial.
Id. at 5.
Id.
Id.
The State responds to Defendant's fifth allegation by stating that Defendant's conclusory arguments fail to give concrete reason required by Strickland v. Washington. Furthermore, the State argues that Defendant fails to satisfy the second prong of the Strickland analysis because he fails to show that the outcome of the trial would have been different given the weight of evidence stacked against him.
Strickland v. Washington, 466 U.S. 668, 668 (1984) (stating that "in order to prevail on a claim of ineffective assistance of counsel, Defendant must establish: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that bute for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different").
State's Response to Def.'s Mot. for Postconviction Relief 6.
The State responds to grounds six and seven by arguing that Defendant failed to go through the Strickland analysis. The State argues that Defendant gives no reason for these arguments and his arguments fail to provide sufficient basis for either prong of the Strickland analysis.
Id.
Id.
III. DISCUSSION
When considering a motion for postconviction relief, the Court must first apply the procedural bars of Super. Ct. Crim. R. 61. If a potential bar exists, then the claim is barred, and the Court should 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. A claimant can avoid the first three of these procedural bars, if under 61(i)(5) the claimant can show that the court lacked jurisdiction or makes "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
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)).
Saunders v. State, 1995 WL 24888 (Del.Supr.); Hicks v. State, 1992 WL 115178 (Del.Supr.); State v. Gattis, 1995 WL 790961 (Del.Super.) (citing Younger v. State, 580 A.2d at 554).
In applying the procedural bars to this motion, grounds one, two and three are barred by Rule 61(i)(3) because of Defendant's failure to raise these grounds on direct appeal. Defendant's failure to raise these contentions means that they are barred unless Defendant can show (1) some external impediment which prevented him from raising the claim and (2) a substantial likelihood that if the issue had been raised on appeal, the outcome would have been different. Because Defendant's brief does not set forth any reason why he did not bring the claim on appeal and there appears to be no miscarriage of justice as required by 61(i)(5), claims one, two and three are procedurally barred under Super. Ct. Crim R. 61(i)(3).
State v. Pierce, 2000 WL 303454 (Del.Super.).
Grounds four through seven allege ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, Defendant must show (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." Defendant must satisfy the proof requirements of both prongs in order to succeed on an ineffective assistance of counsel claim; failure to do so as to one prong will render the claim unsuccessful, and the Court need not address the remaining prong. Defendant must prove allegations by a preponderance of the evidence. 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. Finally, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Albury v. State, 551 A.2d 53, 58 (Del. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Id.
State v. Wright, 653 A.2d 288, 294 (Del.Super.1994).
State v. Mays, 2006 WL 2560184 (Del.Super.). See also Jordan v. State, 1994 WL 466142 (Del.Supr.); Younger v. State, 580 A.2d 552 (Del. 1990).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Defendant 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 because they are all conclusory. In ground four, Defendant claims that his counsel's failure to withdraw from the case in light of a federal lawsuit deprived him of his right to an effective counsel. Here, the Defendant makes unsubstantiated assertions and fails to provide concrete evidence of bias. Defendant fails to demonstrate how counsel's representation fell blow the objective standard, and does not cite anywhere in the record that the pending lawsuit affected counsel's ability to represent Defendant. In addition, Defendant fails to analyze how the result would have been different if counsel had withdrawn. Furthermore, this argument is without merit because it was the Defendant himself that created the supposed conflict. Therefore, because Defendant has failed to satisfy either prong of the requisite Strickland analysis, ground four fails.
See Younger, 580 A.2d at 556 (holding that conclusory allegations are legally insufficient to prove ineffective assistance of counsel).
In ground five, Defendant makes conclusory statements that defense counsel's remarks at trial denied him proper representation. He states that the outcome of the trial would have been different if he had had different counsel, but he fails to give concrete reasons why this is the case. There is no indication in the record that counsel was ineffective at closing argument. Defense counsel attacked the weakness of the victim's testimony and reiterated those weaknesses at closing argument. Defendant's failure to give concrete reasons of poor representation fails to satisfy the first prong of the analysis set forth in Strickland. Furthermore, Defendant also fails to satisfy the second prong because nowhere does he demonstrate how the outcome would have been different given the weight of evidence against him. Therefore, this claim also fails.
In ground six, Defendant argues that his counsel was ineffective during sentencing in allowing him to be declared a habitual offender. This argument is without merit because he offers no support and fails to mention that he has already been declared a habitual offender in 1999. Defendant fails to satisfy either prong of the Strickland analysis, and therefore ground six is also without merit.
Defendant's final ground attacks his representation at trial, during sentencing, and on appeal. He fails to go through the Strickland analysis. Defendant does not provide any sufficient basis for either prong under the law. Therefore, count seven is also without merit.
IV CONCLUSION
For the reason stated above, Defendant's motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.