Opinion
Def. I.D. No. 0112016209.
Submitted: March 15, 2004.
Decided: May 10, 2004.
Upon Defendant's Motion for Postconviction Relief. SUMMARILY DISMISSED in part and DENIED in part.
ORDER
This 10th day of May, 2004, upon consideration of the Motion for Postconviction Relief brought by Defendant, Derek M. Rogers, it appears to the Court that:
1. Mr. Rogers was charged with Attempted Robbery in the First Degree, Assault in the First Degree, two counts of Possession of a Firearm During the Commission of a Felony and Wearing a Disguise. He was convicted by a jury and, on May 30, 2003, was sentenced to a total of twenty two (22) years at Level V. He filed a motion to reduce his sentence, which was denied by the Court on September 16, 2003 because the case was on direct appeal to the Supreme Court of Delaware. The Supreme Court affirmed the conviction and sentence on December 12, 2003. Mr. Rogers now brings his first motion for postconviction relief pursuant to Rule 61 of the Delaware Criminal Rules of Procedure.
Originally, Mr. Rogers was charged with Attempted Murder, but the State amended the indictment to include the lesser charge of Assault in the First Degree.
DEL. SUPER. CT. CRIM. R. 61. (2003).
2. Mr. Rogers raises several grounds in support of his motion. Ground One is an ineffective assistance of counsel claim. He alleges that his counsel "violated the Delaware [L]awyers Rules of Professional Conduct which gave a prejudicial ruling to Defendant's rights under 5th and 14th Amendment." Specifically, he argues that his counsel violated Rule 1.3 of the Delaware Lawyers' Rules of Professional Conduct because he did not zealously represent Mr. Rogers and allowed the case to be prosecuted when there was insufficient evidence to prove the elements of the crimes beyond a reasonable doubt. According to Mr. Rogers, his counsel also violated Rule 1.4 of the Delaware Lawyers' Rules of Professional Conduct because he kept Mr. Rogers "in the dark" about legal matters. In Ground Two, Mr. Rogers argues that due process was violated because the trial court lacked the authority to convict him of the crimes when every element had not been proven beyond a reasonable doubt at trial. Finally, Ground Three asserts that Mr. Rogers was wrongfully prosecuted because there was insufficient evidence linking him to the crimes.
3. The Court must determine whether the procedural bars of Rule 61 apply before reaching the merits of the claims. Ground Two and Ground Three are based on the same premise: that there was insufficient evidence to both prosecute and convict Mr. Rogers. Accordingly, they will be considered together.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citation omitted).
4. Mr. Rogers is barred from raising any claims previously adjudicated "in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding . . . unless reconsideration of the claim is warranted in the interest of justice." Mr. Rogers bases his argument that there was a lack of evidence to charge and convict on the credibility of several witnesses. Specifically, he points to the testimony of a detective that the search of Mr. Rogers' home did not reveal any evidence directly linking him to the crime. He also points to statements made by the victim after the crime took place which he contends were exculpatory. It is well-established that "[t]he jury is the sole judge of each witness' credibility and is solely responsible for resolving any conflicts in all of the testimony it hears." The jury was instructed that "[t]he burden of proof is upon the State to prove all of the facts necessary to establish each and every element of the crime charged beyond a reasonable doubt . . . [p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt." Mr. Rogers had his day in court to litigate the adequacy of the evidence and the credibility of the witnesses — it will not be revisited here.
DEL. SUPER. CT. CRIM. R. 61(i)(4)(2003).
See Motion for Postconviction Relief at 3-4 (citing to testimony of the victim and a detective).
Hardin v. State, 840 A.2d 1217, 1224 (Del.Super.Ct. 2003) (citations omitted).
See Jury Instructions at 19. See also State v. Washington, 2002 WL 826902, at *4 (Del.Super.) (holding that "resolution of [Defendant's] case ultimately turns on issues of credibility, which are for a jury to decide.").
The "interest of justice" exception to Rule 61(i)(4) is narrowly construed. The defendant must show that the trial court lacked the authority to convict or punish him. See State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citation omitted). Mr. Rogers was tried and convicted by a jury, and his conviction was affirmed by the Delaware Supreme Court. He has not pointed to any evidence showing that he is entitled to reconsideration of his claim. See Washington, 2002 WL 826902, at *3-4. See also infra note 7.
5. Furthermore, even if the adequacy of the evidence was not addressed at Mr. Rogers' trial, Grounds Two and Three also are barred under Superior Court Criminal Rule 61(i)(3), which prohibits a movant from raising any ground not asserted in the proceedings leading to the conviction unless: (1) there is cause for relief from the procedural default, and (2) there has been prejudice to the defendant. In order to show prejudice, a movant must demonstrate "a `substantial likelihood' that if the issue had been raised on appeal, the outcome would have been different." This bar may be overcome by Rule 61(i)(5), which states: "[the bar of Rule 61(i)(3)] 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 undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This exception is construed narrowly, and applied only in limited circumstances.
DEL. SUPER. CT. CRIM. R. 61(i)(3)(2003).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990) (citations omitted).
DEL. SUPER. CT. CRIM. R. 61(i)(5)(2003).
Washington, 2002 WL 826902, at *3.
6. Mr. Rogers did not assert these grounds in his direct appeal. He claims that he did not do so because his counsel "lacked diligence," and that the trial court lacked jurisdiction to convict. The Court will not address claims of prejudice that are unsubstantiated, and there is no support in the record for Mr. Rogers' conclusory allegations. Accordingly, he has failed to show cause and prejudice under Rule 61(i)(3) and has not demonstrated a "miscarriage of justice" under Rule 61(i)(5). Therefore, Mr. Rogers' Second and Third Grounds are SUMMARILY DISMISSED.
See id.
7. This leaves Mr. Rogers' ineffective assistance of counsel claim, a claim that passes through the procedural bars of Rule 61 and must, therefore, be decided on the merits. In order to recover on an ineffective assistance of counsel claim, a defendant must show that: (1) the attorney's conduct did not meet professional standards, and (2) such conduct was prejudicial to the defendant. There is "a strong presumption that counsel's conduct was professionally reasonable." The failure to prove either the cause or the prejudice prong will render the claim unsuccessful, and 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 is without merit.
Younger, 580 A.2d at 556 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
Albury v. State, 551 A.2d 53, 59 (Del. 1988) (citing Strickland, 466 U.S. at 689)).
See Wright, 653 A.2d at 294. See also Strickland, 466 U.S. at 697.
Stevenson v. State, 469 A.2d 797, 799 (Del. 1983) (citations omitted).
Id.
8. Mr. Rogers' allegation of prejudice is conclusory and unsubstantiated. He has not demonstrated any competent evidence that attorney error affected the outcome of the trial. Accordingly, his ineffective assistance claim is without merit. Therefore, Mr. Rogers' First Ground for relief is DENIED.
Exum v. State, 2002 WL 2017230, at *1 (Del.) (affirming Superior Court's finding that ineffective assistance allegations were conclusory and unsupported by the record).