State v. Conkey

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) I.D. No. 1911011245
)
SHAMIR CONKEY, )
)
Defendant. )
Submitted: March 15, 2024
Decided: March 25, 2024
Upon Defendant Shamir Conkey’s Motion for Postconviction Relief
SUMMARILY DISMISSED
Upon Defendant Shamir Conkey’s Motion for Appointment of Counsel
DENIED
ORDER
Monil Amin, Esquire, Samuel Kenney, Esquire, Deputy Attorneys General,
DEPARTMENT OF JUSTICE, 820 North French Street, Wilmington, DE 19801,
Attorneys for State of Delaware.
Shamir Conkey, SBI #480003, Howard R. Young Correctional Institution, P.O.
Box 9561, Wilmington, DE 19899, Defendant, pro se.
WHARTON, J.
This 25th Day of March 2024, upon consideration of Defendant, Shamir
Conkey’s (“Conkey”) Motion for Postconviction Relief, his Motion for
Appointment of Counsel, and the record in this case, it appears to the Court that:
1. Conkey was convicted by a jury of Robbery in the First Degree, Assault
in the Second Degree, and Reckless Endangering in the Second Degree. He was
sentenced on all three counts. Conkey appealed to the Delaware Supreme Court.
That Court remanded the matter to this Court for the purpose of merging the assault
and reckless endangering sentences.1 On April 14, 2023, this Court resentenced
Conkey to 25 years at Level V, suspended after five years for decreasing levels of
supervision on the robbery charge and eight years at Level V suspended after two
years for concurrent probation on the assault charge.2 Conkey did not pursue a
further appeal to the Delaware Supreme Court after his sentencing on remand.
2. This Motion for Postconviction Relief (“PCR Motion”) pursuant to
Superior Court Criminal Rule 61, Conkey’s first, was filed timely on March 15, 2024.3
It is accompanied by his Motion for Appointment of Counsel.4 The motion raises two
claims of ineffective assistance of counsel (“IAC”).5 The first alleges:
Counsel, Patrick Collins, practiced IAC to defendant
because counsel failed to communicate plea offer to
defendant from the state wherein the state offered a plea to
1
Conkey v. State, 2022 WL 17751464 (Del. Dec. 19, 2022).
2
D.I. 49.
3
Def.’s PCR Mot., D.I. 50.
4
Def.’s Mot. for Appoint. Of Counsel, D.I. 51.
5
Def.’s PCR Mot., D.I 50.
2
(5) yrs in prison. Had counsel communicated the plea
offer to defendant, defendant would have accepted the
offer where he would have received (5) yrs as a part of the
plea as opposed to the (7) years he received @ trial.6
The second alleges:
Counsel, Patrick Collins, practiced IAC to Defendant
because counsel failed to explain to the jury in court that
defendant is blind in his left eye, which significantly
contributed to Defendant’s conduct during the offense.
Had counsel explained this to the jury, the jury would have
returned a not guilty verdict.7
3. Rule 61 is the exclusive remedy for those “in custody under a sentence
of this court seeking to set aside the judgment of conviction…”8 This Rule balances
finality “against … the important role of the courts in preventing injustice.”9 Before
addressing the merits of a defendant’s motion for postconviction relief, the Court
must first apply the procedural bars of Superior Court Criminal Rule 61(i). 10 If a
procedural bar exists, then the Court will not consider the merits of the
postconviction claim.11 Under Delaware Superior Court Rules of Criminal
Procedure, a motion for postconviction relief can be barred for time limitations,
repetitive motions, procedural defaults, and former adjudications. A motion exceeds
time limitations if it is filed more than one year after the conviction becomes final
6
Id.7
Id.8
Super. Ct. Crim. R. 61(a)(1).
9
Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010) (citation omitted).
10
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
11
Id.3
or if it asserts a newly recognized, retroactively applied right more than one year
after it was first recognized.12 A second or subsequent motion is repetitive and
therefore barred.13 The Court considers a repetitive motion only if the movant was
convicted at trial and the motion pleads with particularity either: (1) actual
innocence;14 or (2) the application of a newly recognized, retroactively applied rule
of constitutional law rendering the conviction invalid.15 Grounds for relief “not
asserted in the proceedings leading to the judgment of conviction” are barred as
procedurally defaulted unless the movant can show “cause for relief” and “prejudice
from [the] violation.”16 Grounds for relief formerly adjudicated in the case,
including “proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.17
Additionally, “[t]his Court will not address claims for post-conviction relief that are
conclusory and unsubstantiated.”18
4. To successfully bring an IAC claim, a claimant must demonstrate: (1)
that counsel’s performance was deficient; and (2) that the deficiencies prejudiced the
12
Super. Ct. Crim. R. 61(i)(1).
13
Super. Ct. Crim. R. 61(i)(2).
14
Super. Ct. Crim. R. 61(d)(2)(i).
15
Super. Ct. Crim. R. 61(d)(2)(ii).
16
Super. Ct. Crim. R. 61(i)(3).
17
Super. Ct. Crim. R. 61(i)(4).
18
State v. Guinn, 2006 WL 2441945, at *4 (Del. Super. Aug 16, 2021). See also
Gattis v. State, 697 A.2d 1174, 1178-79 (Del. 1997); Younger, 580 A.2d at 556;
State v. McNally, 2011 WL 7144815, at *5 (Del. Super. Nov. 16 2011); State v.
Wright, 2007 WL 1982834, at *1 n.2 (Del. Super. July 5, 2007).
4
claimant by depriving him or her of a fair trial with reliable results.19 To prove
counsel’s deficiency, a defendant must show that counsel’s representation fell below
an objective standard of reasonableness.20 Moreover, a defendant must make
concrete allegations of actual prejudice and substantiate them or risk summary
dismissal.21 “[A] court must indulge in a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” 22 A successful
Sixth Amendment claim of IAC requires a showing “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”23
5. An inmate must satisfy the proof requirements of both prongs to
succeed on an IAC claim. Failure to do so on either prong will doom the claim and
the Court need not address the other.24 Further, The Court may enter an order
summarily dismissing a PCR motion “if it plainly appears from the [motion] and the
record of prior proceedings in the case that the movant is not entitled to relief.”25
19
Strickland v. Washington, 466 U.S. 668, 688 (1984).
20
Id. at 667-68.
21
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
22
Strickland, 446 U.S. at 689.
23
Id. at 694.
24
Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an
attorney performed deficiently if the deficiency did not prejudice the defendant.”).
25
Super. Ct. Crim. R. 61(d)(5).
5
6. Conkey’s PCR Motion is a first timely motion under Rule 61 alleging
IAC. Accordingly, it is not subject to any of the bars of Rule 61(i). Therefore, the
Court examines it on the merits.
7. The Court begins with the observation that Conkey has misidentified his
trial counsel. Patrick Collins, Esquire did not represent Conkey at trial. Mr. Collins
represented Conkey on appeal and at his resentencing.
8. The Court turns first to Conkey’s IAC complaint that trial counsel failed
to advise him of the State’s five year plea offer, which he would have accepted had
he known of it. Conkey’s claim that he was unaware of the plea offer simply is wrong.
That rejected plea offer bears his signature.26 Also, he stated in open court that he
rejected that offer.27
9. Conkey’s second IAC claim is that counsel was ineffective in not
informing the jury that he was blind in one eye.28 According to Conkey, had trial
counsel done so, he would have been acquitted. Conkey does not explain how this
information would have resulted in a not guilty verdict, or even how it is relevant. As
a result, he fails to substantiate a concrete allegation of actual prejudice. This failure
26
D.I. 24.
27
Tr. Case Review Hr’g., July 6, 2021, at 2-3.
28
Def.’s PCR Mot, D.I.
6
has made the risk of summary dismissal a reality, since It plainly appears to the Court
from the PCR Motion and record in this case that Conkey is not entitled to relief.29
THEREFORE, for the reasons set out above, Defendant Shamir Conkey’s
Motion for Postconviction Relief is SUMMARILY DISMISSED. His Motion for
Appointment of Counsel is DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
29
See, Wright v. State, 671 A. 2d at 1356.
7