IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEVON GARNER, §
§
Defendant Below, § No. 492, 2014
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 9811012529
Plaintiff Below, §
Appellee. §
Submitted: September 24, 2014
Decided: October 9, 2014
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
ORDER
This 9th day of October 2014, upon consideration of the appellant’s opening
brief, the appellee’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, Devon Garner, filed this appeal from the Superior
Court’s denial of his second motion for postconviction relief. The State of
Delaware has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Garner’s opening brief that his appeal is without merit.1
We agree and affirm.
1
Supr. Ct. R. 25(a).
(2) The record reflects that, on February 9, 2000, a Superior Court jury
found Garner guilty of Attempted Murder in the First Degree, Conspiracy in the
First Degree, Conspiracy in the Second Degree, Reckless Endangering in the First
Degree, and two counts of Possession of a Firearm During the Commission of a
Felony. Garner was sentenced to Level V incarceration for the balance of his
natural life, plus an additional twenty-two years of Level V incarceration. This
Court affirmed the Superior Court’s judgment on direct appeal.2
(3) Garner filed his first motion for postconviction relief on August 4,
2004. The motion included seven ineffective assistance of counsel claims. The
record does not reflect that Garner requested appointment of counsel. After
receiving an affidavit from Garner’s trial and appellate counsel, the Superior Court
concluded that the ineffective assistance of counsel claims lacked merit. The
Superior Court summarily dismissed Garner’s remaining claims as procedurally
barred by Superior Court Criminal Rule 61 (“Rule 61”). This Court affirmed the
Superior Court’s decision.3
(4) On September 19, 2013, Garner filed his second motion for
postconviction relief. In this motion, Garner argued that he was deprived of
counsel in his first postconviction proceeding and was therefore entitled to re-
2
Garner v. State, 2001 WL 1006178 (Del. Aug. 7, 2001).
3
Garner v. State, 2005 WL 3143435 (Del. Nov. 22, 2005).
2
litigate the ineffective assistance of counsel claims he had raised in 2004, with the
assistance of counsel. The Superior Court denied the motion on the grounds that it
was untimely under Rule 61(i)(1),4 repetitive under Rule 61(i)(2),5 and
procedurally defaulted under Rule 61(i))(3)6 and that Garner’s lack of counsel in
his first postconviction proceeding did not constitute a miscarriage of justice under
Rule 61(i)(5).7 This appeal followed.
(5) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.8 The procedural requirements of
Rule 61 must be considered before addressing any substantive issues.9 In this
appeal, Garner argues that he has overcome the procedural bars of Rule 61(i)
because his lack of counsel in his first postconviction proceeding, which included
ineffective assistance of counsel claims, constituted a miscarriage of justice under
4
Super. Ct. Crim. R. 61(i)(1) (barring motion filed more than three years after judgment of
conviction is final) (amended in 2006 to reduce filing period to one year).
5
Super. Ct. Crim. R. 61(i)(2) (barring any ground for relief not asserted in prior postconviction
proceeding).
6
Super. Ct. Crim. R. 61(i)(3) (barring claim not raised in proceedings leading to conviction).
7
Super. Ct. Crim. R. 61(i)(5) (providing that barred claims can be reviewed if there is colorable
claim of miscarriage of justice due to constitutional violation that undermined fairness of
proceedings).
8
Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
9
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
3
Rule 61(i)(5). In support of this argument, Garner relies on United States Supreme
Court cases like Martinez v. Ryan10 and this Court’s decisions in cases like Holmes
v. State11 to contend that he had a constitutional and statutory right to counsel in his
first postconviction proceeding. This reliance is misplaced.
(6) First, none of the United States Supreme Court cases cited by Garner
hold that indigent defendants have a constitutional right to appointment of counsel
in postconviction proceedings. Martinez, for example, holds that a lack of counsel
or inadequate assistance of counsel during initial postconviction proceedings may
establish cause for a defendant's procedural default of a claim of ineffective
assistance of counsel at trial in pursuing federal habeas corpus relief.12 Martinez
does not hold that there is a federal constitutional right to counsel in first
postconviction proceedings.13 To the extent Garner claims that he had a right to
counsel in his first postconviction proceeding under the Delaware Constitution, his
10
---U.S.---, 132 S. Ct. 1309, 182 L.E.2d 272 (2012).
11
2013 WL 2297072 (Del. May 23, 2013).
12
Martinez, 132 S. Ct. at 1320.
13
Id. at 1315 (“This is not the case, however, to resolve whether [an exception to the
constitutional rule that there is no right to counsel in collateral proceedings] exists as a matter of
constitutional law.”).
4
cursory references to the Delaware Constitution do not properly present that claim
for review and that claim is therefore waived.14
(7) Second, this Court did not hold in Holmes or subsequent cases that
amendments to Rule 61(e)(1), which provided for appointment of counsel in an
indigent defendant’s first postconviction proceeding, created a retroactive right to
counsel for indigent defendants pursuing subsequent motions for postconviction
relief. In Holmes, we held that the Superior Court abused its discretion in denying
Holmes' motion for the appointment of counsel to assist him in his first
postconviction proceeding.15 We remanded for the appointment of counsel under
the recently amended Rule 61(e)(1).16 This Court has held that the amendment to
Rule 61(e)(1) was not retroactive.17 Given that this is Garner’s second
postconviction motion, Holmes and the other cases that Garner relies upon are
simply not applicable here. We conclude therefore that the Superior Court did not
14
Ortiz v. State, 869 A.2d 285, 290-91 (Del. 2005) (holding that proper presentation of alleged
violation of Delaware Constitution requires more than conclusory reference to section of
Delaware Constitution).
15
2013 WL 2297072, at *1.
16
Holmes, 2013 WL 2297072, at *1. See also Stevens v. State, 2013 WL 4858987 (Del. Sept.
10, 2013) (vacating denial of defendant’s first postconviction motion and remanding for
appointment of counsel); Howard v. State, 2013 WL 3833335 (Del. July 19, 2013) (remanding
denial of defendant’s first postconviction motion for appointment of counsel and
reconsideration); Ayers v. State, 2013 WL 3270894 (Del. June 24, 2013) (same).
17
Roten v. State, 2013 WL 5808236, at *1 (Del. Oct. 28, 2013).
5
err in finding that Garner’s second motion for postconviction relief was
procedurally barred and that Garner failed to overcome the procedural hurdles.
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/ Henry duPont Ridgely
Justice
6