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finding that attorney's decision not to cross-examine sole witness regarding her alleged alcohol problem was "professionally sound"
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ID: 0211001914, CR. A. No. IN02-12-1917-R1.
Date Submitted: December 20, 2004.
Date Decided: March 14, 2005.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief.
SUMMARILY DISMISSED in part and DENIED in part.ORDER
This 14th day of March, 2005, upon consideration of the Motion for Postconviction Relief brought by Defendant, Ricky J. Hamby Jr., it appears to the Court that:
1. Mr. Hamby was convicted by a jury of felony theft. He was sentenced to two years at Level 5, suspended after serving one year for decreasing levels of probation. Mr. Hamby's counsel appealed the judgment and sentence on his behalf and then moved to withdraw pursuant to Supreme Court of Delaware Rule 26(c) ("Rule 26"). Despite being informed of his ability to identify issues for appeal and to respond to his counsel's position, Mr. Hamby did neither. The State moved to affirm the Superior Court's judgment and, on March 1, 2004, the Supreme Court of Delaware affirmed Mr. Hamby's conviction and sentence upon finding that Mr. Hamby's appeal was "wholly without merit and devoid of any arguably appealable issue." Mr. Hamby now brings his first motion for postconviction relief pursuant to Delaware Superior Court Rule 61 ("Rule 61").
DEL. SUPR. CT. R. 26(c) (2004) ("Appeals without merit. If the trial attorney, after a conscientious examination of the record and the law, concludes that an appeal is wholly without merit, the attorney may file a motion to withdraw.").
D.I. 33.
DEL. SUPER. CT. CRIM. R. 61 (2004).
2. Mr. Hamby raises three grounds for postconviction relief. First, he contends that defense counsel's filing of a Rule 26 motion was inappropriate because there were appealable issues. He requests that the Court grant him the right to appeal and appoint him new counsel. Next, Mr. Hamby argues that there was insufficient evidence to support the guilty verdict. Specifically, he argues that the only evidence against him was the testimony of Kim Malanafy who Mr. Hamby alleges was compelled to provide false testimony. Mr. Hamby's final ground for postconviction relief is based upon ineffective assistance of counsel. He contends that his counsel failed effectively to cross-examine Ms. Malanafy.
3. Before addressing the merits of any postconviction relief claim, the Court first 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(i) imposes four procedural imperatives: 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 proceeding; 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 of these procedural imperatives if the claim is jurisdictional or is a "colorable claim that there was a miscarriage of justice because of a constitutional violation." Rule 61(d)(4) further provides that any claim may be summarily dismissed if "it plainly appears from the motion for postconviction relief and the record of prior postconviction proceedings in the case that the movant is not entitled to relief. . . ."
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.").
Id.
A. The Rule 26 Claim
4. As his first basis for postconviction relief, Mr. Hamby argues that counsel's Rule 26 motion was inappropriate because there were, in fact, grounds to appeal his conviction. He requests that the Court grant him a right to appeal and appoint him new counsel. When his counsel filed the Rule 26 motion, Mr. Hamby was informed of his right to supplement his attorney's presentation to the Delaware Supreme Court. Mr. Hamby chose not to exercise that right and did not present any issues for appeal. Consequently, the Supreme Court reviewed the record and found that Mr. Hamby's appeal was "wholly without merit and devoid of any arguably appealable issue." Any basis for challenging counsel's Rule 26 motion should have been raised by Mr. Hamby on direct appeal. Because he chose not to present any claim at that time, his belated effort to perfect an appeal in the form of a Rule 61 application cannot be countenanced. The claim is Summarily Dismissed pursuant to Rule 61(i)(3).
D.I. 33.
See State v. Benson, 2002 WL 537590, at *4 (Del.Super.) (finding that defendant's claims were barred because he did not raise them on direct appeal in response to counsel's Rule 26 motion).
B. The Insufficient Evidence Claim
5. Next, Mr. Hamby argues that there was insufficient evidence to support the jury verdict of guilt. Specifically, he alleges that the only evidence to support the verdict was the testimony of Kim Malanafy, whom Mr. Hamby contends was compelled to give false testimony. Again, the Court finds that this claim is procedurally barred. Mr. Hamby should have brought this claim on his direct appeal but did not. Consequently, the claim is barred under Rule 61(i)(3) and Summarily Dismissed.
See Id.
C. The Ineffective Assistance of Counsel Claim
6. Mr. Hamby's final claim for postconviction relief is grounded in alleged ineffective assistance of counsel. He contends that his counsel did not effectively cross-examine Kim Malanafy. Specifically, Mr. Hamby alleges that counsel was ineffective because he did not cross-examine Ms. Malanafy regarding: (1) an alcohol problem that he alleges she suffers from; (2) Mr. Hamby's ability physically to commit the crime; (3) information regarding Ms. Malanafy's whereabouts the night of the theft; and (4) an alleged exculpatory statement that she made.
7. When a defendant raises a colorable claim of ineffective assistance of counsel, the procedural bars of Rule 61(i) are inapplicable because there may be "a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceeding." In order to succeed on an ineffective assistance of counsel claim, the United States Supreme Court held in Strickland v. Washington that a defendant must show both: (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonably probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." There is a strong presumption that the legal representation was professionally reasonable. And the failure to prove either the cause or the prejudice prong will render the claim unsuccessful. In such instances, the court need not address the other prong. Initially, the accused bears the burden of showing that counsel's inadequacy affected the outcome of the trial. If this is shown, the burden shifts to the State to demonstrate that the outcome was not tainted. If the accused fails to meet his initial burden, the claim fails.
See Rule 61(i)(5). See also State v. St. Louis, 2004 WL 2153645, at *3 (Del.Super.) ("Since the Supreme Court generally will not hear a claim for ineffective assistance of counsel on direct appeal, the procedural default rules do not bar those assertions of errors premised on ineffective assistance of counsel.").
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Flamer v. State, 585 A.2d 736, 753-54 (Del. 1990) (citations omitted).
Strickland, 466 U.S. at 697.
Id.
Stevenson v. State, 469 A.2d 797, 799 (Del. 1983) (citations omitted).
Id.
8. The Court finds that Mr. Hamby's ineffective assistance of counsel claim fails to meet either prong of the Strickland test. First, the Court is satisfied that counsel's cross-examination of Ms. Malanafy was professionally sound. Moreover, Mr. Hamby's argument is based on the supposition that additional cross-examination of Ms. Malanafy in the areas he has identified would have changed the verdict. As an initial matter, Mr. Hamby has not shown that the Court would have permitted the cross-examination he believes should have been initiated. Additionally, Mr. Hamby provides no support for his allegation that if counsel had cross-examined Ms. Malanafy in these additional areas, such cross-examination would have changed the outcome of the trial. Without specific evidence that the additional cross-examination would have changed the outcome of the trial, Mr. Hamby is unable to meet his burden under Strickland. Accordingly, his allegation of ineffective assistance of counsel is denied.
See D.I. 30, at 172-74, 76.
For example, Mr. Hamby has not shown that cross-examining Ms. Malanafy concerning an alleged alcohol problem would be allowed for impeachment. See D.R.E. 608(b) ("specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may . . ., if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. . . ."). Additionally, he has not shown that opinion testimony by Ms. Malanafy concerning Mr. Hamby's physical ability to commit the crime would be admissible and not excluded as speculative. See D.R.E. 701 ("If the witness is not testifying as an expert, the witness' testimony in the form of opinions . . . is limited to those opinions which are (a) rationally based on the perception of the witness and (b) helpful to a fact in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.") See also D.R.E. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.").
See Rule 61(b)(2) ("The [postconviction relief] motion shall specify all the grounds for relief which are available . . ., and shall set forth in summary form the facts supporting each of the grounds specified."). See also State v. Cooper, 2001 WL 1729147, at *2 (Del.Super.) (dismissing defendant's claims where there was "no specific, supporting facts to sustain the defendant's mere assertions."); State v. Lenoir, 2002 WL 1753169, at *1 (Del.Super.) (dismissing defendant's claims where the "defendant failed to set forth his claims with specificity and supporting facts.").
9. Based on the foregoing, Mr. Hamby's Motion for Postconviction Relief is SUMMARILY DISMISSED in part and DENIED in part.