IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
v. ) Cr. ID No. 0909002859
)
SALAAT ISLAM, )
)
Defendant. )
Submitted: August 28, 2014
Decided: November 25, 2014
Upon Consideration of Defendant’s Motion
For Postconviction Relief, DENIED.
Upon Counsel’s Motion to Withdraw, GRANTED.
OPINION
Matthew Frawley, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.
Saagar B. Shah, Esquire, Wilmington, DE, Attorney for the Defendant.
Salaat M. Islam, James T. Vaughn Correctional Center, Smyrna, Delaware.
MEDINILLA, J.
INTRODUCTION
On June 15, 2010, Defendant Salaat Islam (“Defendant”) pleaded guilty to
two counts of Robbery First Degree, two counts of Assault Second Degree, and
one count each of Possession of a Firearm during the Commission of a Felony and
Conspiracy Second Degree. On October 22, 2010, this Court sentenced Defendant
to 15 years at Level V incarceration, including 11 years of minimum mandatory
time, with a period of probation to follow. Defendant filed the instant Motion for
Postconviction Relief on November 6, 2013. Defendant’s appointed counsel filed
a Motion to Withdraw on June 18, 2014, on the grounds that there are no
meritorious claims which can be ethically advocated. For the reasons that follow,
Defendant’s Motion for Postconviction Relief is DENIED and Counsel’s Motion
to Withdraw is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
On September 3 and 4, 2009, the Wilmington Police Department were called
to investigate three separate robberies involving two individuals who were later
identified as the Defendant and his co-defendant, Kevin Martin.
The first robbery took place shortly before midnight on September 3 on
West Fifth Street in Wilmington. One of the assailants was armed with a black
2
lever-action rifle and the other demanded the victim turn over the contents of his
pockets, including a cell phone and five dollars.
The second robbery took place just after midnight on September 4 on North
Clayton Street in Wilmington. Two individuals,1 one armed with a black lever-
action rifle, approached five men and instructed them not to move. The unarmed
individual took a wallet with $60 cash from one of the victims. A second victim
attempted to grab the rifle from the armed assailant, but was shot in the chest and
upper torso. A third victim was also shot in the face, and the unarmed assailant
took $57 from his person after he fell to the ground.
The third robbery took place at approximately 3:00 am on September 4 on
East Tenth Street in Wilmington. A man, later determined to be the Defendant,
approached three men and asked for a cigarette. The three men ignored Defendant
while a second man, later determined to be Kevin Martin, appeared from behind a
van armed with a black rifle. Martin pointed the rifle at the three men while
Defendant demanded that the victims remove all their clothing and give up their
belongings. Defendant flaunted his tattoos and bragged about his membership in
the “Bloods” street gang. When one of the victims attempted to flee, Martin shot
him in the hip, calf, and ankle.
1
Wilmington Police arrested a man who was identified by one of the victims as one of the
assailants on September 5, 2009. This suspect was apparently ruled out because he was released
and the charges were nolle prossed on September 10, 2009.
3
Police assembled a photographic array of 30 known members of the
“Bloods” street gang. At the hospital, the victim shot during the third robbery
positively identified Defendant as one of the two men involved. A second victim
of that same robbery also independently identified Defendant from the
photographic lineup.
During a taped, post-Miranda interview with Wilmington Police on
September 9, 2009, Kevin Martin confessed to the three robberies and implicated
Defendant as his co-conspirator. A search of Kevin Martin’s residence uncovered
a black lever-action rifle that matched the casings found at the scenes of the second
and third robberies. Defendant also gave a taped, post-Miranda interview at the
City of Chester probation office where he was serving probation. Defendant was
arrested by Wilmington Police on September 24, 2009.
On October 30, 2009, a Grand Jury indicted Defendant and Kevin Martin on
charges to include 25 felonies and one misdemeanor for their alleged involvement
in the three robberies. On June 15, 2010, Defendant entered a guilty plea to
Robbery First Degree, two counts of Assault Second Degree, and one count each
of Possession of a Firearm during the Commission of a Felony and Conspiracy
Second Degree. During the plea colloquy, Defendant acknowledged his guilt of
these offenses. This Court accepted Defendant’s plea as being knowing,
4
intelligent, and voluntary. On October 22, 2010, this Court sentenced Defendant to
20 years at supervision Level V, of which 11 years are minimum mandatory, to be
suspended after 15 years with a period of probation to follow.
Defendant filed this Motion for Postconviction Relief on November 6, 2013.
Defendant’s sole claim is that his trial counsel rendered ineffective assistance
because he failed to discover and disclose that Defendant was incarcerated in
Pennsylvania at the time of the three robberies to which he pleaded guilty. As this
is his first motion, counsel was appointed for the purpose of representing
Defendant pursuant to Rule 61(e)(1) (“Rule 61 Counsel”). Rule 61 Counsel filed a
Motion to Withdraw as Counsel on June 18, 2014. In order to thoroughly evaluate
Defendant’s Rule 61 Motion, and Rule 61 Counsel’s Motion to Withdraw, this
Court enlarged the record by directing Defendant’s trial counsel to submit an
affidavit responding to Defendant’s claims. Trial Counsel’s affidavit was filed on
August 28, 2014.
5
DISCUSSION
MOTION TO WITHDRAW AS COUNSEL
This Court will first consider Defense Counsel’s Motion to Withdraw. Rule
61(e)(2) provides:
If counsel considers the movant's claim to be so lacking
in merit that counsel cannot ethically advocate it, and
counsel is not aware of any other substantial ground for
relief available to the movant, counsel may move to
withdraw. The motion shall explain the factual and legal
basis for counsel's opinion and shall give notice that the
movant may file a response to the motion within 30 days
of service of the motion upon the movant.
In his Motion to Withdraw, Rule 61 Counsel represents that he has
undertaken a thorough analysis of the record and determined that Defendant’s
claims are not sufficiently meritorious to be ethically advocated.2 Rule 61 Counsel
further represents that his careful review of the record revealed no other
meritorious claims for relief available to Defendant.3 The Motion to Withdraw
includes a detailed description of both factual and legal bases for this opinion, and
gives Defendant proper notice of his right to respond within 30 days. Defendant
did not respond to the Motion to Withdraw.
2
Motion to Withdraw at 1, 10, State v. Islam, Case No. 0909002859 (Del. Super. June 18, 2014).
3
Id. at 11.
6
This Court also conducted its own review of the record, and is satisfied that
Rule 61 Counsel properly determined that Defendant does not have a meritorious
claim. 4 Defense Counsel’s Motion to Withdraw as Counsel is therefore
GRANTED.
MOTION FOR POSTCONVICTION RELIEF
Defendant seeks relief pursuant to Rule 61 based on a claim of ineffective
assistance of trial counsel. Specifically, Defendant contends that trial counsel
failed to properly investigate and notify the State that Defendant was incarcerated
in Pennsylvania during the time of the alleged robberies.
I. Procedural Bars
Prior to addressing the substantive merits of any claim for postconviction
relief, the Court must first determine whether Defendant has met the procedural
requirements of Superior Court Criminal Rule 61. 5 If a procedural bar exists, then
the claim is barred, and the Court should not consider the merits of the claim. 6
Specifically, Rule 61(i) imposes four procedural imperatives: (1) the motion must
be filed within one year of a final order of conviction; (2) any basis for relief must
have been asserted previously in a prior postconviction proceeding; (3) any basis
4
Roth v. State, 2013 WL 5918509, at *1 (Del. 2013).
5
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
6
Id.
7
for relief must have been asserted at trial or on direct appeal as required by the
court rules unless the movant can show cause for relief and prejudice to his rights;
and (4) any basis for relief must not have been formally adjudicated in any
proceeding.
The Court considers the four mandates and finds that Defendant is
procedurally barred under 61(i)(1)-(3). The instant motion was filed after the one-
year time bar under 61(i)(1). Because Defendant’s conviction resulted from a
guilty plea, Defendant did not assert his claim at trial or on direct appeal. This is
Defendant’s first Motion for Postconviction Relief, however, and none of the
claims put forth in this motion were previously asserted.
Procedural bars to relief can be overcome if Defendant’s claim falls within
the exception set forth under Rule 61(i)(5):
The bars to relief in paragraphs (1), (2), and (3) of this
subdivision shall not apply to a claim that the court
lacked jurisdiction or to a colorable claim that there was
a miscarriage of justice because of a constitutional
violation that undermined the fundamental legality,
reliability, integrity or fairness of the proceedings leading
to the judgment of conviction.
The “miscarriage of justice” or “fundamental fairness” exception contained
in Rule 61(i)(5) is “[a] narrow one and has been applied only in limited
8
circumstances.”7 One such occasion is where the defendant alleges that the
assistance of his trial counsel was so ineffective as to prejudice his constitutional
rights. This Court will, therefore, entertain the merits of his motion pursuant to
Rule 61(i)(5).
II. Defendant’s Claim
a. Ineffective Assistance of Counsel
Defendant’s sole claim is that the assistance of his trial counsel was
ineffective because due diligence would have revealed the fact that Defendant was
incarcerated in Pennsylvania on September 3 and 4, 2010 – the date of the
robberies to which Defendant pleaded guilty.
Defendant argues that he had a valid basis to assert an alibi defense, that his
attorney failed to pursue said defense, and as such, he makes a claim for ineffective
assistance of counsel. In order to prevail on an ineffective assistance of counsel
claim, a defendant must meet the two-pronged Strickland test by showing that
counsel performed at a level below an objective standard of reasonableness, and
7
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis
added).
9
that the deficient performance prejudiced the defense.8 That is, counsel’s deficient
performance was so prejudicial as to undermine faith in the outcome. 9
In this case, Defendant’s argument that trial counsel was ineffective is
without any factual support whatsoever. The record is devoid of evidence to
support Defendant’s contention that he was incarcerated in Pennsylvania at the
time of the robberies. First, Defendant gave a statement to Wilmington Police on
September 9, 2009 at the City of Chester Probation Office where Defendant was a
probationer at the time. 10 Defendant was on probation, and not incarcerated, on
September 3 and 4, 2009. Defendant’s trial counsel states in his affidavit to this
Court that Defendant’s claim is “contrary to the evidence presented and the facts
made available” at the time Defendant entered his guilty plea. 11 Defendant
admitted his guilt for these crimes and his plea was accepted as knowing, voluntary
and intelligent. Finally, after diligently investigating Defendant’s claim, Rule 61
Counsel represents to this Court that Defendant’s claim “fails on the facts.”
Considering these facts and its own careful consideration of the record, this Court
finds Defendant’s claim to be entirely without merit.
8
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
9
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
10
Pursuant to the Interstate Compact Agreement, Defendant was serving probation in
Pennsylvania on a sentence imposed by this Court in Delaware.
11
Under Delaware law, there is a strong presumption that defense counsel’s conduct constitutes
a sound trial strategy. Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).
10
Conclusory allegations are insufficient to establish a claim of ineffective
assistance of counsel. 12 Defendant simply cannot substantiate his claim that he
was incarcerated at the time of these crimes. Even if he had been, he fails to make
out a claim that the assistance of his trial counsel fell below an objective standard
of reasonableness, or that such conduct resulted in prejudice to his defense.
Accordingly, Defendant has not established a violation of his Sixth Amendment
rights and fails to establish that there was a miscarriage of justice because of a
constitutional violation pursuant to Rule 61(i)(5).
After carefully reviewing the record, this Court agrees with Rule 61 Counsel
that Defendant can assert no other meritorious claims for relief. Accordingly,
Defendant’s Motion for Postconviction Relief is DENIED, and Rule 61 Counsel’s
Motion to Withdraw is GRANTED.
IT IS SO ORDERED.
/s/ Vivian L. Medinilla
Judge Vivian L. Medinilla
cc: Prothonotary
12
See Younger, 580 A.2d at 556 (“[defendant] has made no concrete allegations of “cause” . . .
and thus, does not substantiate to any degree such a claim.”).
11