Brown v. State ( 2014 )


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  •            IN THE SUPREME COURT OF THE STATE OF DELAWARE
    MICHAEL A. BROWN,                       §
    §     No. 223, 2014
    Defendant-Below,                  §
    Appellant,                        §     Court Below: Superior Court of
    §     the State of Delaware in and for
    v.                                §     New Castle County
    §
    STATE OF DELAWARE,                      §
    §
    Plaintiff-Below,                  §     Cr. ID No. 0412008486
    Appellee.                         §
    Submitted: June 25, 2014
    Decided:   August 28, 2014
    Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.
    ORDER
    This 28th day of August 2014, upon consideration of the appellant’s opening
    brief and the appellee’s motion to affirm, it appears to the Court that:
    (1)    The appellant, Michael A. Brown, filed this appeal from the denials of
    his fourth motion for postconviction relief and motion for appointment of counsel
    under Superior Court Criminal Rule 61 (“Rule 61”). Brown also appeals the
    Superior Court’s denial of his motion for transcripts at State expense.          The
    appellee, State of Delaware, has moved to affirm the Superior Court judgments on
    the ground that it is manifest on the face of Brown’s opening brief that the appeal
    is without merit.1 We agree and affirm.
    (2)     In 2005, Brown was indicted on numerous counts of Robbery in the
    First Degree, Attempted Robbery in the First Degree, Wearing a Disguise During
    the Commission of a Felony, and Possession of a Firearm During the Commission
    of a Felony. Brown was tried before a jury in 2006. At the close of the State’s
    case-in-chief, Brown’s trial counsel moved to dismiss five counts in the
    indictment, arguing that the State had not presented sufficient evidence to sustain a
    conviction on those counts. The Superior Court denied the motion to dismiss. At
    the end of the eight-day trial, the jury convicted Brown of most of the offenses
    charged in the indictment, including multiple counts of Robbery in the First
    Degree, Attempted Robbery in the First Degree, Wearing a Disguise During the
    Commission of a Felony, and Possession of a Firearm During the Commission of a
    Felony.
    (3)     On direct appeal, Brown argued, without success, that the prosecutor
    committed misconduct when delivering the State’s closing statement.               We
    concluded that the argument was without merit and affirmed the Superior Court
    judgment.2        In his first motion for postconviction relief, Brown reargued the
    1
    Del. Supt. Ct. R. 25(a).
    2
    Brown v. State, 
    2007 WL 2399227
    (Del. Aug. 22, 2007).
    2
    prosecutorial misconduct claim as an ineffective counsel claim, asserting that his
    trial counsel’s failure to object to the prosecutor’s closing statement was
    ineffective representation.          Also, Brown argued that his trial counsel was
    ineffective for failing to move to dismiss the indictment on the basis of insufficient
    evidence. When denying the motion, the Superior Court ruled that both aspects of
    Brown’s ineffective assistance of counsel claim were procedurally barred and that
    the underlying claim of insufficient evidence was without merit. The court found
    that:
    The undisputed record contradicts Brown’s claim that
    there was no direct or circumstantial evidence linking
    him to the crimes for which he was convicted. At trial,
    there was testimony from the victims of the robberies,
    surveillance tapes, testimony from the police, and
    evidence from a search of his person and home, all of
    which demonstrated that he was the perpetrator of the
    crimes. The Court thus finds that the jury had more than
    sufficient evidence to convict Brown.3
    Brown did not appeal the Superior Court’s denial of his first postconviction
    motion.
    (4)     In his second motion for postconviction relief, Brown asserted
    ineffective assistance of counsel based on his trial counsel’s failure to present an
    alibi defense and to move to suppress illegally seized evidence. Brown’s second
    postconviction motion was referred to a Superior Court Commissioner who issued
    3
    State v. Brown, 
    2008 WL 555921
    , at *2 (Del. Super. Ct. Feb. 28, 2008).
    3
    a report recommending that the motion should be summarily dismissed as
    procedurally barred. The Commissioner found that the alibi defense claim was
    “substantially no differen[t]” from the insufficient evidence claim raised in the first
    postconviction motion, and that Brown should have raised “all that he believed was
    wrong with his counsel’s representation” in his first postconviction motion.4 The
    Superior Court adopted the Commissioner’s report and recommendation and
    denied the motion.5 Brown did not appeal from that decision.
    (5)    In his third motion for postconviction relief, Brown again asserted
    ineffective assistance of counsel, alleging that his trial counsel was ineffective
    when he failed to investigate and interview prospective witnesses, when he advised
    Brown to reject a plea, and when he forced Brown to take the stand and “commit
    perjury.” Brown asserted that any procedural bars to the ineffective counsel claim
    should be excused under the United States Supreme Court’s 2012 decision in
    Lafler v. Cooper.6
    (6)    Brown’s third postconviction motion was referred to a Commissioner
    who issued a report recommending that the motion should be summarily dismissed
    4
    State v. Brown, Cr. ID No. 0412008486, at 124 (Del. Super. Comm’r Feb. 6, 2009).
    5
    
    Id., at 128
    (Del. Super. Ct. Aug. 1, 2011).
    6
    See Lafler v. Cooper, ___ U.S. ___, 
    132 S. Ct. 1376
    (2012) (addressing a defense counsel’s duty
    to communicate a plea offer effectively).
    4
    as procedurally barred.7 The Commissioner found that the Lafler decision was
    inapposite to Brown’s case and did not excuse the applicable procedural bars.
    After that, Brown filed a motion for appointment of counsel, which the Superior
    Court denied. The court found that:
    Brown has not shown good cause why the Court should
    appoint counsel on his behalf. As the voluminous record
    indicates, Mr. Brown has had ample opportunity to raise
    any claims he may have had regarding his convictions
    and sentences. Moreover, although he may be unskilled
    at law, Mr. Brown has filed numerous pro se motions,
    including three Superior Court Rule 61 motions. In those
    motions, Mr. Brown has discussed federal and state case
    law and has been able to assert and prosecute varying
    bases for relief without counsel.8
    By order filed on July 19, 2013, the Superior Court, after considering Brown’s
    objections and reviewing the matter de novo, adopted the Commissioner’s report
    and recommendation and denied the motion.9 Brown’s appeal from the denial of
    his third postconviction motion was dismissed as untimely filed.10
    (7)     In his fourth motion for postconviction relief, the denial of which
    forms the basis of this appeal, Brown asserted several grounds for relief based on
    ineffective assistance of counsel and insufficient evidence. Brown also filed a
    motion for appointment of counsel. By separate orders filed on April 14, 2014, the
    7
    State v. Brown, Cr. ID No. 0412008486, at 136 (Del. Super. Comm’r Mar. 5, 2013).
    8
    State v. Brown, 
    2013 WL 1182219
    (Del. Super. Ct. Mar. 15, 2013).
    9
    State v. Brown, Cr. ID No. 0412008486, at 145 (Del. Super. Ct. July 19, 2013).
    10
    Brown v. State, 
    2013 WL 6389742
    (Del. Dec. 4, 2013).
    5
    Superior Court denied the postconviction motion as procedurally barred and the
    motion for appointment of counsel as without merit.11
    (8)    On appeal, Brown argues that the Superior Court abused its discretion
    when it barred his ineffective assistance of counsel claim “without first utilizing
    the Strickland test.”12 The claim is without merit. Because Brown’s original
    ineffective assistance of counsel claim was based on underlying claims of
    prosecutorial misconduct and insufficient evidence that were previously considered
    and found to be without merit, the court’s analysis of the ineffective counsel claim
    under the Rule 61 procedural bars rather than Strickland was “entirely correct.”13
    Brown “is not entitled to have a court re-examine an issue that has been previously
    resolved ‘simply because the claim is refined or restated.’”14
    (9)    To the extent Brown argues that the Superior Court abused its
    discretion when it denied his motion for appointment of counsel and motion for
    transcripts at State expense, his arguments are without merit. The rule in effect in
    January 2014, when Brown filed his fourth postconviction motion, provided that,
    11
    State v. Brown, Cr. ID No. 0412008486, at 152-53 (Del. Super. Ct. April 14, 2014).
    12
    The Strickland test was developed by the United States Supreme Court to determine
    ineffective assistance of counsel. Under Strickland, a petitioner must show that “counsel’s
    representation fell below an objective standard of reasonableness” and that “there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
    been different.” Strickland v. Washington, 
    466 U.S. 668
    , 687-88, 694 (1984).
    13
    Skinner v. State, 
    607 A.2d 1170
    , 1173 (Del. May 11, 1992) (concluding that a prior disposition
    of an issue on direct appeal “was, in fact, a substantive resolution of . . . [the] present
    ineffectiveness of counsel claim”).
    14
    
    Id. at 1172
    (quoting Riley v. State, 
    585 A.2d 719
    , 721 (Del. 1990)).
    6
    in a second or subsequent motion for postconviction relief, the court will appoint
    counsel “only in the exercise of discretion and for good cause shown, but not
    otherwise.”15 Similarly, in the absence of a showing of good cause, a defendant
    does not have a right to free transcripts to pursue postconviction relief.16 In this
    appeal from the denial of an untimely fourth postconviction motion raising
    formerly adjudicated claims, Brown has not demonstrated, and the record does not
    reflect, good cause for the appointment of counsel or for transcripts at State
    expense.
    (10) When reviewing the denial of postconviction relief, this Court will
    address any applicable procedural bars before considering the merits of any claim
    for relief.17       In this case, Brown’s fourth postconviction motion is barred as
    untimely under Rule 61(i)(1)18 and repetitive under Rule 61(i)(2).19                     Brown’s
    claims of ineffective assistance of counsel and insufficient evidence are barred as
    formerly adjudicated under Rule 61(i)(4).20                    On appeal, Brown has not
    demonstrated that reconsideration of any of the formerly adjudicated claims is
    15
    Del. Super. Ct. Crim. R. 61(e)(1) (2013).
    16
    Miller v. State, 
    2008 WL 623236
    (Del. Mar. 7, 2008) (citing United States v. MacCollum, 
    426 U.S. 317
    , 325-26 (1976)).
    17
    Younger v. State, 
    580 A.2d 552
    , 554 (Del. 1990).
    18
    See Del. Super. Ct. Crim. R. 61(i)(1) (barring motion filed more than one year after judgment
    of conviction is final).
    19
    See 
    id. at (i)(2)
    (barring any ground for relief not asserted in a prior postconviction proceeding
    as required by R. 61(b)(2)).
    20
    See 
    id. at (i)(4)
    (barring formerly adjudicated claim).
    7
    warranted under the narrow “in the interest of justice” exception found under Rule
    61(i)(4).21 Nor has Brown demonstrated that the claims warrant review under Rule
    61(i)(5) because of a constitutional violation so substantial that is constitutes a
    “miscarriage of justice” undermining the “fundamental legality . . . or fairness of
    the proceedings”22 or under Rule 61(i)(1) because of a newly recognized
    retroactively applicable right.23
    (11) Finally, we note the obvious. This is Brown’s fourth Rule 61 petition.
    On appeal from the denial of the motion, we have invested considerable time
    detailing our reasons why we conclude that the Superior Court properly found that
    Brown’s claims do not present grounds for relief from his judgment of convictions.
    In the future, if Brown files additional petitions, we do not intend to continue to
    invest scarce judicial resources in addressing his repetitive claims.                     We also
    encourage Brown to be mindful of subsection (j) of Rule 61.24
    21
    See 
    id. (providing that
    a formerly adjudicated claim may be reconsidered in the interest of
    justice). See Lindsey v. State, 
    2014 WL 98645
    , at *3 (Del. Jan. 9, 2014) (quoting Weedon v.
    State, 
    750 A.2d 521
    , 527-28 (Del. 2000)).
    22
    See 
    id. at (i)(5)
    (providing that the procedural bars of (i)(1), (2) and (3) shall not apply “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”).
    23
    See 
    id. at (i)(1)
    (providing that an untimely motion may be considered when it asserts a newly
    recognized retroactively applicable right).
    24
    See Del. Super. Ct. Crim. R. 61(j) (“If a motion is denied, the state may move for an order
    requiring the movant to reimburse the state for costs and expenses paid for the movant from
    public funds.”).
    8
    NOW, THEREFORE, IT IS ORDERED, that the motion to affirm is
    GRANTED. The judgment of the Superior Court is AFFIRMED.
    BY THE COURT:
    /s/ Leo E. Strine, Jr.
    Chief Justice
    9