Morgan v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
THOMAS A. MORGAN, §
§
Defendant Below, § No. 318, 2015
Appellant, §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Sussex County
§ Cr. lDNo. 92805729DI
Plaintiff Below, §
Appellee. §
Submitted: September 8, 2015
Decided: September 30, 2015
Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
O R D E R
This 30th day of September 2015, upon consideration of the appellant Thomas
A. Morgan’s opening brief, the appellee’s motion to affirm, and the record below, it
appears to the Court that:
(1) The appellant, Thomas A. Morgan, filed this appeal from the Superior
Court’s order summarily dismissing his seventh motion for postconviction relief
under Superior Court Criminal 'Rule 61 (“Rule 61”). The State of Delaware has
moved to affirm the Superior Court’s judgment on the ground that it is manifest on
the face of Morgan’s opening brief that the appeal is without merit. We agree and
affirm.
(2) The record reflects that, in 1993, a Superior Court jury convicted
Morgan of two counts of Unlawful Sexual Intercourse in the First Degree, one count
of Unlawful Sexual Contact in the Second Degree, and one count of Kidnapping in
the Second Degree. Morgan was sentenced to a total period of thirty-six years of
Level V incarceration, suspended after thirty-two years for decreasing levels of
supervision. This Court affirmed Morgan’s convictions on direct appeal.1 We also
affirmed the Superior Court’s denial of Morgan’s first, second, third, fourth, and
fifth motions for postconviction relief.2
(3) On May 13, 2015, Morgan filed his seventh motion for postconviction
relief. Morgan argued that: (i) his trial counsel was ineffective because, inter alia,
he failed to present evidence of Morgan’s reading and writing disabilities; (ii) the
prosecutor engaged in misconduct by withholding a taped statement of the victim;
(iii) a police officer lied in the affidavit of probable cause for the arrest warrant; and
(iv) the Superior Court acted with a closed mind when it denied Morgan’s motion to
have new counsel appointed for the direct appeal of his conviction. Morgan also
sought appointment of counsel under Martinez v. Ryan.3
1 Morgan v. State, 1994 WL 202272 (Del. May 5, 1994).
2 Morgan v. State, 2008 WL 727035 (Del. Mar. 19, 2008); Morgan v. State, 2006 WL 2787497(Del. Sept. 26, 2006); Morgan v. State, 2005 WL 53272 (Del. Jan. 7, 2005); Morgan v. State, 1998
WL 280353 (Del. May 7, 1998); Morgan v. State, 1995 WL 57368 (Del. Feb. 9, 1995).
3 132 S. Ct. 1309 (2012).
2
(4) On May 21, 2015, the Superior Court summarily dismissed the motion
for postconviction relief. The Superior Court found that Morgan’s motion was
untimely under Rule 61(i)(1) and repetitive under Rule 61(i)(2). The Superior Court
also denied Morgan’s request for appointment of counsel. This appeal followed.
(5) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.4 The procedural requirements of
Rule 61 must be considered before any substantive issues are addressed.5 In his
opening brief, Morgan argues that he overcame the procedural hurdles of Rule 6 1 (i)
because review of his claims is warranted in the interest of justice under Rule
61(i)(2) and he pled a colorable claim of a miscarriage of justice under Rule 61(i)(5).
Morgan does not make any arguments regarding the Superior Court’s denial of his
motion for appointment of counsel in his opening brief and has therefore waived that
claim.6
(6) In arguing that he overcame the procedural hurdles of Rule 61(i),
Morgan disregards recent amendments to Rule 61. Effective June 4, 2014, Rule
6 1 (d) provided:
(2) Second or subsequent postconviction motions. A second or
subsequent motion under this rule shall be summarily dismissed, unless
the movant was convicted after a trial and the motion either:
4 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
5 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
6 Supr. Ct. R. 14(b)(vi)(A)(3); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
3
(i) pleads with particularity that new evidence exists that creates a
strong inference that the movant is actually innocent in fact of the acts
underlying the charges of which he was convicted; or
(ii) pleads with particularity a claim that a new rule of constitutional
law, made retroactive to cases on collateral review by the United States
Supreme Court or the Delaware Supreme Court, applies to the movant’ s
case and renders the conviction or death sentence invalid.7
This was Morgan’s seventh postconviction motion. Morgan has not pled with
particularity a claim under either Rule 61(d)(2)(i) or Rule 61(d)(2)(ii). Thus, the
Superior Court did not err in summarily dismissing Morgan’s seventh motion for
postconviction relief.
(7) We have now concluded for a sixth time that the Superior Court
properly denied Morgan’s motion for postconviction relief under Rule 61. We will
not continue to invest scarce judicial resources to address untimely and repetitive
claims. If Morgan continues to file appeals from the denial of untimely and
repetitive postconviction motions, he risks being enjoined from filing such appeals
in this Court without first seeking leave of the Court.8 Morgan should also be
mindful of Rule 610)?
7 Super. Ct. R. 61(d)(2).
8 See, e.g., Evans v. State, 2015 WL 214057, at *2 (Del. Jan. 14, 2015); Biggins v. State, 2011
WL 2731214, at *1 (Del. July 11, 2011).
9 Super. Ct. R. 610) (“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”).
4
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland
Justice