Opinion
I.D. No. 0504024519.
Date Submitted: May 22, 2007.
Date Decided: October 30, 2007.
Defendant's Pro Se Motion for Postconviction Relief, DENIED.
Alfonso Quintero, Smyrna, Delaware, Defendant, pro se.
Ralph D. Wilkinson IV, Esq., Public Defender of the State of Delaware, Wilmington, DE.
Martin O'Connor, Esq., Wilmington, DE.
OPINION
I. INTRODUCTION
The defendant collaterally attacks his convictions on drug and conspiracy charges. He claims, among other things, that constitutional violations, ineffective assistance of counsel, and newly discovered evidence require this Court to grant a new trial. All but the ineffective assistance of counsel claim are procedurally barred and therefore SUMMARILY DISMISSED. And because the defendant fails to establish that his counsel was ineffective, that claim is DISMISSED.
II. BACKGROUND
On April 7, 2006, a jury convicted defendant Alfonso Quintero of Trafficking in Cocaine, Possession With Intent to Deliver a Narcotic Schedule II Controlled Substance, Use of a Vehicle for Keeping Controlled Substances, and Conspiracy in the Second Degree. Quintero was sentenced to a mandatory eight years at Level V for the Trafficking charge, and on each of the remaining charges he was sentenced to two years Level V suspended immediately for twelve months Level III, followed by six months Level II, to run concurrently. The defendant appealed his convictions. On November 22, 2006, the Delaware Supreme Court affirmed, finding that his appeal was without merit. On May 22, 2007, Quintero filed this current pro se motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. In his motion, he states seven grounds for relief: (1) violation of the Confrontation Clause; (2) use of inadmissible hearsay; (3) improper vouching; (4) abuse of discretion; (5) `plain error'; (6) newly discovered evidence; and (7) ineffective assistance of counsel.III. DISCUSSION
A. Claims One Through Six are Procedurally Barred.Before addressing the merits of a postconviction relief claim, the Court must first 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 a defendant's claims are procedurally barred. Rule 61(i) provides:
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.") See also Younger v. State, 580 A.2d 552, 554 (Del. 1990).
(1) Time limitation. A motion for postconviction relief may not be filed more than one year 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 one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court;
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice;
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights;
(4) Former adjudication. Any 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;
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision 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 judgment of conviction.
Applying the procedural filters to the current claims, the Court finds that all the defendants' grounds for relief are procedurally barred except the claim of ineffective counsel. The Delaware Supreme Court determined that Quintero's first four claims: violation of the Confrontation Clause, use of inadmissible hearsay, improper vouching, and abuse of discretion, were "without merit." Consequently, they are procedurally barred under Rule 61(i)(4). Quintero argues this Court should re-adjudicate the claims "in the interest of justice." The "interest of justice" exception under Rule 61(i)(4) has been narrowly construed to mean that "the trial court lacked the authority to convict or punish [the defendant]". Because Quintero does not claim that this Court lacked authority to convict or punish him, his first four claims (violation of the Confrontation Clause, use of inadmissible hearsay, improper vouching, and abuse of discretion) do not satisfy the "interest of justice" exception and are procedurally barred under Rule 61(i)(4). Therefore, these claims are SUMMARILY DISMISSED.
Quintero's claims are not time barred, contrary to the State's reading of Rule 61(m) in its Response to Ground VII of Defendant's Motion for Post-Conviction Relief. Quintero correctly asserts that under Rule 61(m)(2) and Rule 61(i)(1), this motion is timely. In response to Quintero's direct appeal, the Delaware Supreme Court issued a mandate affirming his convictions on December 8, 2006. His conviction became final on that date. The instant motion, filed on May 22, 2007, was well within a year following final conviction as required by Rule 61(i)(1). Movant's Reply to State's Response to Ground VII of Defendant's Motion for Postconviction Relief ("Movant's Reply"), D.I. 32.
Quintero, 2006 WL 3392915.
Id.
Flamer v. State, 585 A.2d 736, 746 (Del. 1990).
Quintero's fifth claim is that this Court committed reversible "plain error" by not having the "State put on record the attempts made as to the "unavailability of informant witnesses." This claim is procedurally barred under Rule 61(i)(3) because Quintero never raised the issue prior to conviction and he fails to show either cause or prejudice as required by Rule 61(i)(3)(A) and (B).
Super. Ct. Crim. R. 52 ("plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court").
This claim does not fall within the exceptions set forth in Rule 61(i)(5) because he fails to allege, much less prove, any constitutional violation concerning the unavailability of informant witnesses. Under D.R.E. 509, the identity of informers is privileged unless Quintero can show that the disclosure would materially aid his defense. Quintero fails to show how the disclosure of the informant's identity could materially aid his defense. Defense counsel states in his Response that "[t]here would not have been anything that would have materially aided the defendant in pursuing the motion and [he] determined that such a motion would be frivolous." Furthermore, Quintero's Sixth Amendment Confrontation right was not violated because he had the opportunity to cross-examine Detective Schiavi. Because Quintero fails to show cause and prejudice as required under Rule 61(i)(3)(A) and (B), and because his claim does not concern a Constitutional violation as required under Rule 61(i)(5), this claim fails the procedural bars and is SUMMARILY DISMISSED.
Defense Counsel's Response to Ground VI of Defendant's Motion for Post-Conviction Relief ("Defense
Counsel's Resp."), D.I. 33.
Defendant's sixth claim regarding newly discovered evidence is barred under Rule 61(i)(3) and fails to fall within the exception provided in Rule 61(i)(5). Quintero's "newly discovered evidence" is that he learned he had a constitutional [sic] right to be informed, prior to trial, of his right to contact his home country's consulate. This is "newly discovered" information in that Quintero claims he did not learn of this right until after his conviction. Quintero's failure to raise this issue prior to conviction requires him to show cause and prejudice under Rule 61(i)(3)(A) and (B). In his original Motion, Quintero claims he failed to raise the issue at trial because he was unaware of his right. This is not sufficient "cause" because "[a defendant's] claim of ignorance is insufficient to establish cause for his failure to raise the issue of consular notification in the proceedings leading to his conviction." Quintero fails to establish prejudice because his claim that "the Consular's Office most likely would not have let the Justice system" tread on the constitutionally protected rights of "a Mexican citizen is conclusory and unsubstantiated.
Motion, D.I. 27.
Id.
Id.
State v. Vasquez, 2001 WL 209867 at 1 (Del.Super.).
Movant's Reply at 3.
Quintero's claim does not prevail under Rule 61(i)(5). Quintero relies upon State v. Reyes to support his claim that his Constitutional rights were violated by counsel's failure to inform him of his right to contact the Mexican consul. Reyes no longer reflects the current law regarding consular notification, however, because it is based on caselaw that has been overruled. In State v. Vasquez, the Superior Court stated that because the decision in Reyes was based on overruled caselaw, the Court would likely decide the matter differently.
740 A.2d 7 (Del.Super. 1999).
H United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir.1999)H, overruled by H United States v. Lombera-Camorlinga, 206 F.3d 882, 888 (9th Cir.2000)H.
State v. Vasquez, 2001 WL 755930 at 1 (Del.Super.).
Currently, Delaware does not recognize Defendant's right to contact his consul under the Vienna Convention on Consular Rights as a Constitutional right. "Although treaty rights are guaranteed by the Supremacy Clause [of the United States Constitution], the clause does not elevate a treaty right to a constitutional right as described in Subsection (i)(5) of Rule 61." Because Quintero is unable to circumvent the procedural bars via Rule 61(i)(5), this claim is procedurally barred and is SUMMARILY DISMISSED.
Vasquez, 2001 WL 209867 at 2; see also State v. Marks, 2002 WL 841057 at 2 (Del.Super. 2002)( citing Breard v. Greene, 523 U.S. 371, 377 (1988) (stating that "it is extremely doubtful that the violation [of the V.C.C.R.] should result in the overturning of a final judgment of conviction without some showing that the violation had a n effect on the trial.")).
B. Quintero's Ineffective Assistance of Counsel Claim Fails the Strickland Test.
In his seventh claim, Quintero alleges five grounds for ineffective assistance of counsel. This claim is not procedurally barred because a Rule 61 motion is the appropriate vehicle for such a motion, even when the claim has not been previously raised. To prevail on this claim, Quintero must meet the two-pronged Strickland test by showing that (1) counsel performed at a level "below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." The first prong requires Quintero to show by a preponderance of the evidence that the defense counsel was not reasonably competent, while the second prong requires Quintero 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 a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong. Here, the Court will address the first prong for each of Quintero's five grounds for ineffective assistance of counsel.
See HReynolds v. Ellingsworth, 843 F.2d 712, 723 (3d Cir.1988)H, cert. denied, H488 U.S. 960 (1988)H.
H Strickland v. Washington, 466 U.S. 668, 687-88 (1984)H.
H Id. at 687-88, 694.
H Id. at 697.
1. Inadequate Preparation for Trial.
Quintero claims that defense counsel inadequately prepared him for trial. He alleges that "counsel never did the adequate norm for getting a criminal Defendant prepared for trial, the knowledge to know what type of strategy the defense was planning to put before a jury or whether to request a judge trial. . . . There is no factual basis to support this claim. Defense counsel spoke with Quintero several times with the use of an interpreter, visited him twice while he was incarcerated in Gander Hill, and had several discussions regarding the factual and legal issues in his case. It is clear from the record that defense counsel's performance in preparing Quintero for trial did not fall below an objective standard of reasonableness.
Motion, D.I. 27.
Defense Counsel's Resp., D.I. 33.
Trial Tr. 9:13-18, April 6, 2005, D.I. 21.
2. Failure to File Proper Pretrial Motions.
Quintero claims that defense counsel did not file proper pretrial motions. There is no factual basis to support this claim either. Counsel filed a Motion to Dismiss on June 27, 2005. Counsel states that he did not file any other motions because he thought them to be without merit. Quintero fails to show that his attorney's refusal to file additional motions was objectively unreasonable.
Mot. to Dismiss, D.I. 5.
Defense Counsel's Resp., D.I. 33.
3. Failure to Sufficiently Ascertain Probable Cause on the Record.
Quintero next argues that defense counsel failed to ascertain police probable cause on the record. Upon review of Detective Schiavi's affidavit, the Court finds that the police had probable cause to believe that Quintero was engaged in drug activity based on information from a reliable informant and their own independent investigation. The record further reflects that plaintiff's counsel thoroughly explored, through direct examination, the factual basis for probable cause. Therefore, this claim is without merit.
Specifically, the affidavit stated that on April 29, 2005, Detective Schiavi was informed by a confidential source that Defendant was going to conduct a cocaine transaction.32 Previous investigations revealed that Defendant operated a red Ford Expedition with the license plate DE CI 9504; prior arrest photo's verified Defendant's identity. Detective Schiavi, working with the Special Investigations Unit, set up surveillance in a location where Defendant was known to frequent. Detective Schiavi was contacted by a second confidential source that Defendant was selling cocaine out of the red Ford Expedition. Defendant's vehicle was observed on the east end of Astro Shopping Center with Defendant and co-Defendant walking from the vehicle to El Jefe Restaurant. Although there were ample open parking spaces, the vehicle was parked approximately 500 feet away from the restaurant. Schiavi Aff., D.I. 1.
Trial Tr. 43:17-59:2, April 6, 2005, D.I. 21.
4. Failure to Sufficiently Question Detective Schiavi Regarding the Informant's Credibility.
Quintero argues that defense counsel failed to properly question Detective Schiavi about his relationship with the informant. Quintero fails to assert any factual basis to establish that counsel's line of questioning was unreasonable or deficient. Counsel elicited testimony establishing that the informant was not a police officer and that it is common for informants to be paid or work off charges. The Court finds such questioning sufficient to test the credibility and bias of the informant and does not find that defense counsel's performance, in this regard, fell below an objective standard of reasonableness.
Trial Tr. 16:2-18:4, April 7, 2005, D.I. 22.
5. Failure to Interview or Subpoena the Co-Defendant.
Quintero argues that defense counsel failed to interview or subpoena the co-defendant. Based on defense counsel's theory of defense, i.e. that the cocaine possibly belonged to co-defendant and not Quintero, he made a strategic decision not to subpoena the co-defendant. Defense counsel's decision not to call the co-defendant and run the risk that the co-defendant would disavow ownership, was reasonable under the circumstances.
All of Quintero's claims regarding his lawyer's performance fail the first prong of Strickland. Quintero fails to establish by a preponderance of evidence that defense counsel's conduct fell below reasonable professional standards. Consequently, Quintero's seventh claim based on ineffective assistance of counsel is DISMISSED.