State v. Hassan-El

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. # 0107017049
)
AKBAR HASSAN-EL, )
)
Defendant. )
Submitted: December 18, 2023
Decided: February 20, 2024
ORDER DENYING DEFENDANT’S MOTION FOR
DISCOVERY AND INSPECTION AND MOTION FOR TRANSCRIPTS
Upon consideration of Defendant Akbar Hassan-El’s (“Hassan-El”) Motion
for Discovery and Inspection1 (the “Discovery Motion”) and Motion for Transcripts2
(the “Transcripts Motion”), the Court finds the following:
1. Following his retrial in May, 2005, a jury found Hassan-El guilty of
Murder in the First Degree, Murder in the Second Degree, Possession of a Firearm
During the Commission of a Felony, Attempted Robbery in the Second Degree, and
Conspiracy in the Second Degree.3 On September 30, 2005, he was sentenced to
life in prison on the felony murder conviction, and to 45 years at Level V on the
remaining convictions.4 The Supreme Court affirmed Hassan-El’s convictions and
1
D.I. 230.
2
D.I. 231.
3
D.I. 143.
4
D.I. 158.
sentences on direct appeal.5 This Court provided Hassan-El with copies of
transcripts of the trial proceedings in connection with his direct appeal.6
2. Subsequently, Hassan-El has filed at least two motions for
postconviction relief under Superior Court Criminal Rule 61. The first was denied
in 2008 and the second was denied on January 27, 2010 (the “2010 Order”). 7 Both
were affirmed on appeal to the Supreme Court.8
3. Hassan-El filed a motion for transcripts in connection with his appeal
of the 2010 Order.9 That motion was denied because it was out of time and otherwise
procedurally barred, and therefore, Hassan-El provided no valid need for the
transcripts.10
4. Pending are Hassan-El’s two recently filed motions: the Discovery
Motion, pursuant to Superior Court Criminal Rule 16, which seeks a broad array of
materials without further explanation or comment; and the Transcripts Motion,
which seeks copies of transcripts of every court proceeding before, during, and after
both trials.
5
Hassan-El v. State, 911 A.2d 685 (Del. 2006).
6
See D.I. 178.
7
State v. Hassan-El, 2008 WL 3271229 (Del. Super. July 31, 2008); State v. Hassan-El, 2010
WL 359697 (Del. Super. Jan. 27, 2010).
8
Hassan-El v. State, 966 A.2d 347 (Table), 2009 WL 234625 (Del. Feb. 2, 2009); Hassan-El v.
State, 5 A.3d 630 (Table), 2010 WL 3673003 (Del. Sept. 21, 2010).
9
D.I. 225.
10
Id.2
5. The Rules of Criminal Procedure do not provide for additional
discovery in postconviction proceedings. “Superior Court Criminal Rule 16 applies
to pre-trial discovery and does not afford relief to a Defendant post-sentencing.”11
“Nowhere in Rule 16 does the duty to provide discovery continue after the
conviction has become final.”12
6. However, this Court “possesses ‘inherent authority under Rule 61 in the
exercise of its discretion to grant particularized discovery for good cause shown.’”13
In the postconviction stage, a movant bears a heavier burden to establish “good
cause” for discovery.14 “Especially at the postconviction stage, ‘petitioners are not
entitled to go on a fishing expedition through the government’s files in hopes of
finding some damaging evidence.’”15
7. Similarly, there is no absolute right to free transcripts in the
postconviction stage.16 “The Constitution requires that materials such as transcripts
are provided only after judicial certification that they are necessary to decide non-
frivolous issues pending in a case.”17 Thus, this Court has discretion under Criminal
11
State v. Daniels, 2016 WL 6610319, at *3 (Del. Super. Oct. 14, 2016).
12
State v. Schultz, 2015 WL 4739503, at *2 (Del. Super. July 31, 2015).
13
Cabrera v. State, 173 A.3d 1012, 1032 (Del. 2017) (quoting Dawson v. State, 673 A.2d 1186,
1197 (Del. 1996)).
14
Id. at 1033.
15
Id. (quoting State v. Jackson 2006 WL 1229684, at *2 (Del. Super. May 3, 2006)).
16
State v. Demby, 2007 WL 214411, at *2 (Del. Super. Jan. 25, 2007).
17
State v. Russell, 2019 WL 6248340, at *1 (Del. Super. Nov. 15, 2019) (citation omitted).
3
Rule 61(d)(4) to order that transcripts be provided at State expense when a defendant
has shown “good cause” and stated a “particularized need” for the transcripts.18
8. The Discovery Motion lists 16 categories of documents and
information Hassen-El seeks in discovery, including statements of confidential
informants, his prior criminal record, and statements made by persons who will
testify at trial. While the Discovery Motion identifies what materials Hassen-El
wants, he provides no factual or legal basis supporting a need for these materials.
9. The Transcripts Motion is likewise deficient. Hassan-El requests
copies of transcripts of all proceedings in this Court. He asserts that transcripts were
prepared for his counsel in connection with his direct appeal and that he requested a
copy of the transcripts from the Office of the Public Defender, which request has
been denied. He asserts that he needs all of these transcripts to prepare a pro se
motion for postconviction relief. Hassen-El does not state the grounds for any such
motion, but baldly states that he needs the transcripts “to review the merits of the
defendant’s case.”
10. Hassan-El’s motions must be denied. First, Hassen-El has already filed
two postconviction motions, which have been denied. Under Rule 61(d)(2),
subsequent motions “shall be summarily dismissed” unless the defendant pleads
with particularity that he is “actually innocent” or he pleads with particularity a new
18
Id.; Super. Ct. Crim. R. 61(d)(4).
4
rule of constitutional law that applies to his case which renders his conviction
invalid. Hassen-El has not stated any ground on which he would be permitted to
pursue a third postconviction motion. Thus, his desire to file another postconviction
motion is not a sufficient ground on which to grant the motions.
11. Second, Hassen-El failed to provide any factual or legal support for his
motions. Thus, he has failed to show good cause or a particularized need for the
transcripts or any discovery. Absent a showing of good cause and particularized
need for these materials, the Court will not exercise its discretion to grant Hassan-
El’s requests. Accordingly, the Discovery Motion and the Transcripts Motion are
DENIED.
February 20, 2024
/s/Kathleen M. Miller
The Honorable Kathleen M. Miller
Original to prothonotary
Andrew Witherell, Esq.
Office of the Attorney General
Office of Defense Services
Akbar Hassen-El SBI# 00417270
5