IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
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v. ) I.D. 82007915DI
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LEON POWELL, )
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Defendant. )
MEMORANDUM OPINION
Defendant was convicted in 1983 of murder in the first degree for
the stabbing death of Aaron Portlock. Some 31 years later he has
brought his first Rule 61 motion. In that motion he alleges:
1. He was indicted under the wrong statute.
2. He was found guilty of felony murder but not found
guilty of any underlying felony.
3. The trial court abused its discretion when it allowed
his counsel to have a private polygraph examination
administered to him.
4. The prosecutor misled the trial court into allowing him
to undergo a private polygraph examination.
These claims are procedurally barred because they have been filed too
late.
Criminal Rule 61 provides that motions for post-conviction relief
must be filed within one year of the date on which the conviction became
final. It provides:
Time limitation. A motion for postconviction relief
may not be filed more than one year after the
judgment of conviction is final or, if it asserts a
retroactively applicable right that is newly
recognized after the judgment of conviction is
final, more than one year after the right is first
recognized by the Supreme Court of Delaware or
by the United States Supreme Court. 1
The instant motion was filed more than 30 years after Defendant’s
conviction became final and is obviously time-barred. Rule 61 contains
an exception to the time bar for defendants who can show cause for, and
prejudice flowing from, the untimely filing. Defendant makes no such
showing in this case.
Rule 61 also exempts from procedural bars instances in which the
defendant can:
(i) plead[ ] 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) plead[ ] 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. 2
1 Super. Ct. Crim. R. 61(i)(1).
2 Super. Ct. Crim. 61(d)(2)(i)-(ii).
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Again, Defendant makes no such showing. With respect to his claim that
he was indicted under the wrong statute, the court notes he was indicted
under 11 Del. C. § 636 for intentional murder. The evidence was that
Defendant stabbed his victim in the back twice, and the jury found him
guilty of that offense. It is difficult to see, therefore, how this amounts to
an indictment under the wrong statute. With respect to Defendant’s
complaint that he is not guilty of felony murder, because was not
convicted of an underlying felony, the short answer is that he was not
prosecuted for, and not convicted of, felony murder.
The remaining claims also do not amount to an exception to the
procedural bar. Prior to trial, Defendant, through his counsel, sought
permission to take a privately administered polygraph examination.
Apparently some of the results of that examination were favorable to
Defendant and others were not. His claim that this court exceeded its
discretion by acceding to his request allowing him to take a privately
administered lie detector examination is wholly without merit. This
court’s alleged error could not possibly have resulted in any prejudice
since the results of that examination were never admitted into evidence.
Likewise, the contention about being misled by the prosecutor is without
merit. Apparently Defendant had some unilateral hope that if he did well
on the test the prosecutor would take that into consideration in
connection with any charging decisions or plea negotiations. As the trial
judge noted, the prosecutor was never obligated to accept the results of
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the examination, and apparently the prosecutor chose not to consider
the mixed results when deciding to prosecute Defendant. Defendant now
attempts to transmute this into some form of “objectionable tactic” by the
prosecutor. The purported “tactic” is not even remotely objectionable.
Moreover, assuming that some wild flight of imagination could lead to the
conclusion this was, the fact remains that Defendant has failed to show
how he was prejudiced by it.
Defendant sought appointment of counsel in connection with this
Rule 61 motion. He contends that he has a right to counsel under both
the Federal Constitution and Rule 61 itself. He is incorrect. It is a
common misconception among prisoners that the United States Supreme
Courts’ decision in Martinez v. Ryan 3 extended the Sixth Amendment
right to counsel to post-conviction proceedings. But the Martinez
decision was not grounded on the Sixth Amendment. Rather, “Martinez
simply held that, as a matter of equity, certain federal habeas corpus
petitions from state prisoners would not be subjected to federal
procedural bars if the state prisoner was not represented by counsel
when the prisoner first sought to challenge the effectiveness of his trial
counsel.” 4 As the Delaware Supreme Court has found:
According to [Defendant], the United States
Constitution provides a litigant with a right to
counsel to present a postconviction petition.
[Defendant] suggests that the United States
Supreme Court's holding in Martinez v. Ryan
3 132 S. Ct. 1309 (2012).
4 State v. Frazier, 2013 WL 3339406, at *3 (Del.Super. June 19, 2013).
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supports that broad proposition. But that is not
so. To the extent that Harris asks us to innovate,
go beyond what Martinez holds, and construct
an argument he fails to make himself for
expanding the circumstances where the federal
Constitution requires a state government to
provide counsel to a litigant, we decline to do
so. 5
Although Rule 61 itself creates a right to counsel under limited
circumstances, those circumstances do not exist here. Rule 61 provides
in pertinent part:
The judge shall appoint counsel for an indigent
movant's first timely postconviction motion and
request for appointment of counsel if the motion
seeks to set aside: (i) a judgment of conviction
after a trial that has been affirmed by final order
upon direct appellate review and is for a crime
designated as a class A, B, or C felony under 11
Del. C. § 4205(b); (ii) a judgment of conviction
after a trial that has been affirmed by final order
upon direct appellate review and resulted in the
imposition of a sentence under 11 Del. C. §
4214(b); or (iii) a sentence of death. 6
The instant motion has been filed more than one year after Defendant’s
conviction became final, and therefore it is not “timely.” 7 Consequently,
Defendant has no right to appointed counsel in this matter. Rule 61
vests this court with discretion to appoint counsel in limited
circumstances. Assuming, but not deciding, those circumstances are
5 Harris v. State, 99 A.3d 227 (Del. 2014) (TABLE) (footnotes omitted).
6 Super. Ct. Crim. Rule 61 (e)(1) (emphasis added).
7 Super. Ct. Crim. Rule 61 (i)(1) (“A motion for postconviction relief may not be filed
more than one year after the judgment of conviction is final”). Rule 61also gives this
court discretion to appoint counsel in certain post-conviction matters, but the court
finds there is nothing in the instant petition which causes it to exercise its discretion in
favor of appointing counsel.
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present here, the court declines to exercise its discretion in favor of
appointing counsel because of the absence of any arguably meritorious
claims in Defendant’s motion.
It is therefore ordered that Defendant’s request for counsel is
DENIED and his motion for post conviction relief is DISMISSED.
John A. Parkins, Jr.
Date: November 24, 2014 Superior Court Judge
oc: Prothonotary
cc: Leon Powell, SBI 00176898, JTVCC, Smyrna, Delaware
Joseph S. Grubb, Esquire, Department of Justice, Wilmington,
Delaware
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