DEF. I.D.: 75060892DI.
Submitted: September 26, 2006.
Decided: December 12, 2006.
CR. A. NOS.: IN75-06-0892R1; IN75-06-08 95-R1; IN75-06-0900-R1; IN75-06-0905-RI., Upon Consideration of Defendant's Pro Se Motion for Post Conviction Relief DENIED.
This 12th day of December, 2006, upon consideration of the Motion for Post conviction Relief brought by Defendant, Amir Fatir, it appears to the Court that:
1. On March 18, 1976, Sterling Hobbs, also known as Amir Fatir ("Defendant"), was convicted by jury of murder in the first degree, robbery in the first degree, conspiracy in the second degree, and possession of a deadly weapon during the com mission of a felony. Defendant was tried with co-defendants Clarence Hooks, Wilbur Johnson and Robert Golson. On April 27, 1976, Defendant was sentenced to death for murder in the first degree. The Supreme Court of Delaware, however, subsequently held that the death penalty was unconstitutional and directed that the defendant be sentenced to life imprisonment.
See State v. Spence, 367 A.2d 983 (Del. 1976) (holding that the death penalty is unconstitutional).
2. On September 8, 1976, all four defendants moved for a new trial on the ground of juror prejudice. On September 17, 1976, the motion was denied because the defendants did not "prove that [a] juror was prejudiced against them and that they were deprived of a fair trial as a result of that prejudice."
See Docket Item "D.I." 92.
Id. (citing United States v. Provenzano, 240 F.Supp. 398 (D.N.J. 1965), aff'd per curiam, 353 F.2d 1011 (3rd Cir. 1965), cert. den., 384 U.S. 905 (1966)) (requiring evidence of juror prejudice and a deprivation of a fair trial as a result of such prejudice to justify motion for a new trial).
3. On May 30, 1980, the Supreme Court of Delaware affirmed the conviction. The Court discussed, among other issues not relevant here, the voirdire process regarding the exclusion of jurors opposed to the death penalty. The Court noted that the applicable standard states "only those jurors who would be unable to render an impartial verdict because of their opposition to capital punishment could be excused for cause." The Court concluded the trial court "adhered painstakingly to the standard" when it excluded only those jurors opposed to the death penalty who could not reach a guilty verdict regardless of the evidence presented. On July 10, 1980, as directed, this court ordered that the Defendant be imprisoned for life without parole instead of the death penalty.
Hooks v. State, 416 A.2d 189 (Del. 1980).
Witherspoon v. Illinois, 391 U.S. 510 (1968) (overturning a defendant's death penalty sentence due to an exclusion of all jurors who had express conscientious scruples against capital punishment).
Hooks, 426 A.2d at 194-95.
Id. at 194. See 11 Del. C. § 3301 ("[T]he juror shall be sworn as a juror in the case, unless the juror has conscientious scruples against finding a verdict of guilty in a case where the punishment is death, even if the evidence should so warrant[.]"). See also Steigler v. State, 277 A.2d 662 (Del.Super.Ct. 1971) (upholding the constitutionality of § 3301).
4. On October 29, 1981, Defendant filed a Motion for Post conviction Relief under Superior Court Criminal Rule 61 ("Rule 61"). This court held the motion in abeyance because the Defendant's petition for a writ of habeas corpus was pending before the United States District Court for the District of Delaware. That petition was denied on September 9, 1981.
United States ex rel. Abubake v. Redman, 521 F.Supp. 963 (D. Del. 1981).
5. Defendant re filed his Motion for Post conviction Relief on November 21, 1983, and subsequently amended that motion on M ay 22, 1984, because his first motion was held in abeyance. Two principal theories emerged from Defendant's numerous arguments: (1) h e was denied his Sixth Amendment right to an impartial jury because the court unjustifiably excluded prospective jurors opposed to the death penalty; and (2) he was denied his Sixth Amendment right to effective assistance of counsel based on multiple errors allegedly committed by trial counsel before and during the trial.
D.I. 144 (motion for postconviction relief); D.I. 145 (amendment of motion for postconviction relief).
6. In an Opinion and Order dated March 10, 1987, this court denied the Defendant's motion for postconviction relief because Defendant did not show how the jury selection process prejudiced his trial. Additionally, Defendant was un able to sustain h is in effective assistance of counsel claim because he did not show how his counsel's alleged errors prejudiced the outcome of the trial.
See Strickland v. Washington, 466 U.S. 668 (1984) (explaining two part-test of ineffective assistance of counsel: (1) counsel's performance was outside t he objective range of reasonable professional judgment and (2) such deficiency prejudiced the outcome of defendant's trial).
7. On September 19, 2006, Defendant filed a second Motion for Post conviction Relief claiming: (1) violation of h is right to a fair trial due to prosecutorial misconduct of Deputy Attorney General Peter Bosch because he was not licensed to practice law in Delaware; (2) violation of his due process rights under the Fourteenth Amendment because the trial judge failed to instruct the jury on a lesser offense; (3) violation of his due process rights under the Fourteenth Amendment because his conviction of first degree murder pursuant to Section 4209(a) of the Delaware Criminal Code is not severable from the sentencing provision later declared unconstitutional; (4) the prosecutor improperly used peremptory challenges to strike black jurors in violation of the Equal Protection Clause of the Fourteenth Amendment and Sixth Amendment; (5) violation of the Rule of Lenity because his life sentence must be not exceed 45 years; and (6) his sentence of life imprisonment with out parole "violate sex post facto and rule of lenity."
Mem. for Post conviction Relief, Sept. 19, 2006.
8. Before addressing the merits of any postconviction relief claim, the Court 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 imposes four procedural imperatives on Defendant's motion: (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 postconviction proceedings; (3) any basis for relief must have been asserted at trial or on direct appeal as required by 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 may avoid the first three procedural imperatives if 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) ("It is well-settled that the Superior Court and this Court must address the procedural requirements of Rule 61 before considering the merits of this motion.").
9. A conviction is final for purpose of postconviction review under the following circumstances:
(i) if the defendant does not file a direct appeal, 30 days after the Superior Court imposes a sentence; ( ii) if the defendant files a direct appeal or there is an automatic statutory review of a death penalty, when the Supreme Court issues a mandate or order finally determining the case on direct review; or (iii) if the defendant files a petition for certiorari seeking review of the Supreme Court's mandate or order, when the U.S. Supreme Court issues a mandate or order finally disposing of the case on direct review.
Del. Super. Ct. Crim R. 61(m).
10. Defendant's motion is procedurally barred. First, his motion was not filed within three years of the final order of conviction. Rather, he filed this motion twenty-six years after the Supreme Court of Delaware issued its final order of conviction on May 30, 1980. Second, five of the six grounds for postconviction relief raised in the Petition sub judice are procedurally barred because Defendant never raised them in a prior postconviction proceeding, at trial, or direct appeal. These are: (1) prosecutorial misconduct; (2) violation of due process due to the trial judge's failure to instruct jury on a lesser offense; (3) violation of due process because he was convicted for first degree murder pursuant to § 4209(a) of the Delaware Criminal Code which was not severable; (4) unfair sentencing since he received life in prison as opposed to 45 years under the Rule of Lenity; and (5) that his life without parole sentence violates ex post facto and the rule of lenity. Third, Defendant has not shown cause for failing to raise these claims at a prior postconviction proceeding or that "there was a `substantial likelihood' that, if [the issue had been raised] during his appeal, the outcome of his case would have been different."
The Court has applied the limitation period applicable at the time of Defendant's conviction and sentence. The current limitation period is one year from the date the conviction and sentence became final. See Super. Ct. Crim. R. 61(i)(1).
See Del. Super. Ct. Crim. R. 61(i)(1). See also Hooks v. State, 416 A.2d 189 (Del. 1980) (affirming the Superior Court's convictions of Defendant and co-defendants Hooks, Johnson, and Golson).
Del. Super. Ct. Crim R. 61(i)(3).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990). See also Blackwell v. State, 736 A.2d 971, 972 (Del. 1999) (requiring defendant to show "cause" and "actual prejudice" to raise additional claims not previously asserted in a postconviction proceeding).
11. As to the sixth claim — Defendant's claim that his due process rights were violated due to the prosecution's improper use of preemptory challenges to strike black jurors — this claim is also procedurally barred because it was formerly adjudicated in Hooks v. State. In Hooks, the Supreme Court of Delaware held that there was no systematic exclusion of black jurors because Defendant "ha[d] not made a showing that the State used its preemptory challenges towards a `purposeful, deliberate exclusion of black people'" or that it challenged jurors "on the sole ground of group bias."
See Del. Super. Ct. Crim R. 61(i)(4) (barring claims that were formerly adjudicated "unless reconsideration of the claim is warranted in the interest of justice."). See also Hooks, 469 A.2d at 196 (considering defendants' claim that the prosecutor improperly used its peremptory challenges to exclude black jurors).
Id. at 196 (rejecting defendants' claim concerning improper use of peremptory challenges).
12. Defendant has not made a showing under Rule 61(i)(4) that the "improper peremptory challenge" that was formerly adjudicated must be heard in the "interest of justice." The "interest of justice" exception applies only when a defendant shows that subsequent legal developments demonstrate the trial court lacked the authority to convict or punish the defendant or that a significant factual development occurred, such as credible recantations by multiple prosecution witnesses. The purpose is to allow a truly innocent person to pass through the procedural bars of the court. Here, Defendant has neither made a claim that there have been subsequent legal developments that deprived the trial court of its authority to convict and punish the Defendant, nor has he alleged that factual developments have occurred since his conviction that would show his innocence.
Super. Ct. Crim. R. 61(i)(4) does not apply to any other claims raised by the Defendant because it only applies to "any ground for relief that was formerly adjudicated." The following claims were not "formerly adjudicated:" (1) prosecutorial misconduct; (2) violation of due process due to the trial judge's failure to instruct jury on a lesser offense; (3) violation of due process because he was convicted for first degree murder pursuant to § 4209(a) of the Delaware Criminal Code which was not severable; (4) unfair sentencing since he received life in prison as opposed to 45 years under the Rule of Lenity; and (5) that his life without parole sentence violates ex post facto and the rule of lenity. Thus, only Rule 61(i)(5) can relieve him of the procedural bars applicable to these claims.
See Flamer, 585 A.2d at 746 (holding that there was authority to convict the defendant since subsequent legal developments did not apply to defendant's case).
See e.g. Weedon v. State, 750 A. 2d 521 (Del. 2000) (remanding the case back to the lower court for fact-finding as to the veracity of a material witness's claim of false testimony).
See Webster v. State, 604 A.2d 1364, 1366 (Del. 1992) (holding that Defendant's "claims are not an attempt to show an error in the trial . . . [to] raise doubt as to the reliability of the conviction" but rather to argue an infringement on a constitutional right).
13. Defendant likewise cannot avail himself of the Rule 61(i)(5) fundamental fairness exception with respect to his remaining claims that are otherwise procedurally barred. The fundamental fairness exception allows a defend ant to avoid the first three procedural bars if (1) the court lacked jurisdiction or (2) he states a colorable claim that must be remedied to avoid a miscarriage of justice. This latter exception is narrow and the defendant has the burden of proof to show that there has been a deprivation of a substantial constitutional right that "undermined the fund a mental . . . reliability" of the prior proceedings. Defendant's assertion that his life sentence violates the rule of lenity cannot be considered under the fundamental fairness exception because it does not allege a substantial deprivation of a constitutional right. The Court will address each of Defendant's five remaining claims under Rule 61(i)(5) because he has framed them as constitutional deprivations.
See Super Ct. Crim. R. 61(i)(5) (Bar to relief shall not apply to a constitutional violation that "undermined the fundamental legality, reliability, integrity or fairness of a proceeding leading to the judgment of conviction").
Id. See also Webster, 604 A.2d at 1366 (remanding case to Superior Court to determine whether defendant's guilty pleas were knowing and voluntary in order to determine the applicability of the fundamental fairness exception).
Super. Ct. Crim. R. 61(i)(5). See also Younger v. State, 580 A.2d 552 (Del. 1990) (limiting application of fundamental fairness exception).
14. Prosecutorial Misconduct: A defendant is entitled to a postconviction remedy "on the ground that a court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction or capital sentence." Defendant's claim that he was denied a right to a fair trial because Deputy Attorney General Peter Bosch purportedly was not licensed to practice law in Delaware is w holly unsupported by a "sufficient factual . . . basis." Defendant has neither provided any independent support for this claim nor has he pointed the Court to any place in the record that would support this claim.
Super. Ct. Crim. R. 61(a)(1) (emphasis supplied).
15. Violation of due process due to the trial judge's failure to instruct jury on a lesser offense: Defendant fails to state a colorable claim that his du e process rights were denied because the trial judge did not instruct the jury on a lesser offense. At the time of Defendant's conviction in 1976, Del aware law allowed a jury to return a verdict of guilty on a lesser included offense "if the evidence warrants such finding ." In Matthews, the Supreme Court of Delaware addressed the issue of "whether or not it was a denial of due process of law for the Trial Court not to instruct the jury sua sponte at the trial . . . that it could bring in a verdict . . . [of] a lesser included offense[.]" The Court held that there w as no denial of due process for lack of a lesser included offense instruction because defense counsel did not request the instruction and the facts of the case d id not indicate that the instruction was necessary. Specifically, the defendants did not challenge the State's case in chief but rather challenged the identity of the perpetrators. Here, Defendant has not set forth any facts in his case that indicate the instruction was necessary. He has simply alleged that "[e]vidence presented at trial and the prosecutions own argument and theory" warranted a lesser included offense instruction. In addition, Defendant does not aver that he requested an instruction on a lesser included offense of second degree murder or manslaughter during trial and is, therefore, procedurally barred from alleging a constitutional deprivation thirty years later on such grounds.
Matthews v. State, 310 A.2d 645 (Del. 1973) (quoting 11 Del. C. § 3707 (1973)). The Court notes that Defendant's claim also fails under Delaware law at the time Defendant filed this motion. Currently, Delaware courts follow the "party autonomy" approach to determine whether the trial court must instruct the jury on a lesser included offense. See Chao v. State, 604 A.2d 1351, 1357-58 (Del. 1992) (holding that Delaware will follow the "party autonomy" approach). The "party autonomy" approach directs "trial judges [to] withhold deciding the issue of whether there is a rational basis in the evidence to charge the jury on a lesser-included offense unless requested to do so by a party." See State v. Cox, 851 A.2d 1269, 1273-74 (Del. 2003) (holding that trial counsel bears the burden to request a lesser-included offense instruction). Defendant has not alleged (or directed the court to any part of the record) that Defendant's counsel requested a jury instruction on a lesser included offense.
Matthews, 310 A.2d at 645.
Matthews, 310 A.2d at 645.
Mem. For Post conviction Relief, Sept. 19, 2006.
16. Violation of due process because first degree murder conviction under Section 4209(a) is not severable from the sentencing provision later declared unconstitutional: At the time Defendant was convicted of first degree murder, § 4209(a) read: "In any case in which a person is convicted of first degree murder the court shall impose a sentence of death. If the penalty of death is determined to be unconstitutional the penalty for first degree murder shall be life imprisonment without benefit of parole." Defendant argues that his sentence is unconstitutional because the first sentence w as declare d unconstitutional and the second sentence cannot be severed from the first. The Supreme Court of Delaware ad dressed this very issue in State v. Spence when it held that the second sentence of § 4209(a) "may be `given effect' standing alone[.]" In Spence, the defendants posited that the second sentence was not severable from the first because (1) the legislature intended to enact the death penalty making the sentences " intertwined"; and (2) "that, since the recent decisions of the United States Supreme Court struck down the procedures followed in imposing the death sentence, and not the death sentence itself, the condition precedent for the operation of the second sentence of § 4209(a) has not occurred." The Court flatly rejected both arguments because the legislature's intent was "manifest, indeed unquestionable" that the second sentence take effect in the event that the death penalty was declared unconstitutional, which in fact occurred, and the second sentence was properly severed in accordance with the Delaware statute concerning severability of provisions. Defendant raises the same two arguments advanced in Spence to challenge the constitutionality of the severability of § 4209(a) while acknowledging the Court's holding in Spence. Because the Court has previously held that the merits inherent in Defendant's claim are "untenable," Defendant has failed to state a colorable claim that must be remedied to avoid a miscarriage of justice.
11 Del. C. § 4209(a) (1976).
Id. (citing § 308).
17. Violation of the Sixth and Fourteenth Amendments of the U.S. Constitution because the prosecutor improperly used peremptory challenges to strike black jurors: Defendant fails to show a deprivation of a substantial constitutional right because his due process claims received a full inquiry. In Hooks, the Supreme Court of Delaware held that the trial court did not abuse its discretion during juror selection. More importantly, the Court held that there w as not a systematic exclusion of black jurors and that the Defendants did not show that the State used its preemptory challenges to purposefully and deliberately exclude black jurors.
Cf. Webster, 604 A.2d 1364 (holding that defendant invoked the fundamental fairness exception because there was no prior inquiry of constitutional claims).
18. Sentence of life imprisonment "violates ex post facto and rule of lenity": Defendant fails to state a colorable claim of a miscarriage of justice on the grounds that his sentence of life imprisonment without parole violates the ex post facto clause of the United States Constitution and the rule of lenity. Defendant incorrectly quotes 11 Del. C. § 6535 as stating "Persons committed to the institutional care of the Department shall be dealt with humanely, with effort directed to their rehabilitation, to effect their return to the community as safely and promptly as practicable." He relies on this language to support his argument that his sentence conflicts with "the letter and intent of [11 Del. C. § ] 6535" and therefore violates the ex post facto clause and the rule of lenity. Defendant's claim is wholly without merit. The "letter and intent" of the statute to justify Defendant's argument does not exist. Section 6535 actually reads:
Mem. For Post conviction Relief, Sept. 19, 2006.
The Department [of Correction] shall promulgate rules and regulations for the maintenance of good order and discipline in the facilities and institutions of the department, including procedures for dealing with violations. Prisoners of the Department shall have access to those portions of the disciplinary rules that apply to them, at places and times deemed reasonable and appropriate by the Commissioner. There shall be a record of charges of infractions by inmates, any punishments imposed and of medical inspections made.
Chapter 65 of Title 11 of the Delaware Code pertains to the functions of Department of Correction ("DOC") and its subchapter VII relates to the discipline, medical care, and discharge duties performed by the DOC. Within that subchapter, section 6535 delegates to the DOC the duty to establish disciplinary rules and regulations. The manner in which DOC handles internal disciplinary matters has no bearing on the propriety of the defendant's convict ion or sentence and cannot, therefore, support Defendant's claim for postconviction relief.
19. Because Defendant's arguments are without merit, Defendant fails to demonstrate a "colorable claim that there was a miscarriage of justice" under Rule 61(i)(5). Therefore, Defendant's motion is procedurally barred by Rule 61.
20. Based on the foregoing, Defendant's motion for postconviction relief is DENIED.