IN THE SUPREME COURT OF THE STATE OF DELAWARE
FRED HUFFMAN, §
§
Defendant Below, § No. 515, 2014
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § Cr. ID No. 1112004258
§
Plaintiff Below, §
Appellee. §
Submitted: May 8, 2015
Decided: July 6, 2015
Before HOLLAND, and VALIHURA, and VAUGHN, Justices.
ORDER
This 6th day of July 2015, upon consideration of the parties’ briefs and the
record below, it appears to the Court that:
(1) The appellant, Fred Huffman, pled guilty to Unlawful Sexual
Intercourse in the Second Degree. Huffman appeals the Superior Court’s denial of
his first motion for postconviction relief under Superior Court Criminal Rule 61
(“Rule 61”). We find no merit to Huffman’s appeal and affirm the Superior
Court’s judgment.
(2) The record reflects that, in March 2012, Huffman was indicted for
seven counts of Unlawful Sexual Intercourse in the First Degree and five counts of
Unlawful Sexual Contact in the Second Degree. The indictment alleged that
Huffman sexually assaulted his stepdaughter (the “Stepdaughter”) between January
1991 and December 1995 when the Stepdaughter was less than sixteen years old.
The Stepdaughter reported Huffman’s assaults to the police in November 2010.
(3) On September 17, 2012, Huffman pled guilty to one count of
Unlawful Sexual Intercourse in the Second Degree as a lesser included offense of
Unlawful Sexual Intercourse in the First Degree. A presentence investigation
(“PSI”) report was ordered. Before sentencing, Huffman filed multiple pro se
submissions, including two petitions for a writ of habeas corpus, a motion for bail
reinstatement, special prosecutor, and to set aside plea, a motion to dismiss for
delayed indictment, a motion to dismiss counsel or appoint new counsel, and a
motion for the PSI report. The Superior Court denied the motions.
(4) On July 26, 2013, Huffman was sentenced, effective September 17,
2012, to twenty years of Level V incarceration, suspended after ten years for
decreasing levels of supervision. Per the terms of the plea agreement, Huffman
was also required to register as a Tier III sex offender. Huffman did not file a
direct appeal.
(5) On June 26, 2014, Huffman filed his first motion for postconviction
relief. Huffman asserted a number of convoluted and overlapping claims that can
be summarized as follows: (i) the date of Huffman’s offense was manipulated in
order to increase his statutory punishment; (ii) prosecution of Huffman’s offense
2
was time-barred and the amendment of 11 Del. C. § 205 (“Section 205”) to extend
the statute of limitations violated the Ex Post Facto Clause of the United States
Constitution; (iii) the State improperly withdrew a more favorable plea offer before
Huffman had an opportunity to consider it; (iv) the length of Huffman’s probation
was excessive and he should not have been required to register as a Tier III sex
offender; (v) the plea offered in the Richards v. State1 case reflected that the
Department of Justice was biased against Huffman; (vi) the Department of
Correction was not adequately treating his various medical ailments; (vii) the State
used an outdated criminal history and disclosed that history to the Stepdaughter in
violation of 11 Del. C. § 8513; (viii) he was entitled to credit for time he spent out
of prison on bail; (ix) he was denied his right to review the PSI report before the
sentencing hearing; (x) he did not intentionally molest the Stepdaughter; (xi) he
was subjected to double jeopardy; and (xii) obstruction of justice.
(6) In a letter filed with the Superior Court on July 25, 2014, Huffman
reiterated his claims. Despite challenging his sentence and conviction on a variety
of grounds, Huffman also claimed that he took responsibility for his misconduct
and did not deny culpability for his offense. On August 12, 2014, Huffman filed a
motion for appointment of counsel.
1
It appears that Huffman is referring to State v. Richards, Cr. ID No. 0712004992 (Del. Super.
Ct.).
3
(7) In an order dated August 21, 2014, the Superior Court denied
Huffman’s motions for postconviction relief and appointment of counsel. The
Superior Court concluded that Huffman was challenging his sentence rather than
his conviction and therefore his claims and motion for appointment of counsel
were outside the scope of Rule 61. This appeal followed.
(8) This Court reviews the Superior Court’s denial of postconviction
relief for abuse of discretion and questions of law de novo.2 The Court must
consider the procedural requirements of Rule 61 before addressing any substantive
issues.3 Issues that Huffman fails to raise in his opening brief or that he attempts to
incorporate by reference to his Superior Court filings are waived.4
(9) As he did in the Superior Court, Huffman raises a number of
convoluted and overlapping claims while purporting to take responsibility for his
actions against the Stepdaughter. Huffman does not challenge the Superior Court’s
denial of his motion for postconviction counsel under Rule 61(e). We agree with
2
Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
3
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4
Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the
opening brief shall be deemed waived and will not be considered by the Court on appeal.”);
Supr. Ct. 14(c) (“Appellant shall not reserve material for reply brief which should have been
included in a full and fair opening brief.”); Ploof v. State, 75 A.3d 840, 866 (Del. 2013) (holding
defendant waived issues that were incorporated by reference to Superior Court briefing).
Lampkins v. State, 2010 WL 4735029, at *1 n.5 (Del. Nov. 22, 2010) (declining to address claim
raised for first time in reply brief). Huffman asks this Court to review the Superior Court’s
denial of his motions to replace counsel, to assign a special prosecutor, and to set aside a plea
without making any arguments in support of this request in his opening brief.
4
the Superior Court that many of Huffman’s claims fall outside the scope of Rule
61, but conclude that some of the claims do fall within the scope of Rule 61. We
nonetheless affirm the Superior Court’s denial of Huffman’s motion for
postconviction relief on the independent and alternative ground that he failed to
overcome the procedural hurdles of Rule 61 for the claims that fell within the
scope of Rule 61.5
(10) Huffman first argues that the five year statute of limitations in effect
at the time of his offense had expired by the time of his indictment and that
amendment of Section 205 to extend the statute of limitations for certain sexual
offenses violated the Ex Post Facto Clause. Huffman could have raised these
claims in a timely direct appeal, but did not do so. These claims are therefore
barred by Rule 61(i)(3) unless Huffman can establish cause for his failure to raise
these claims on appeal and prejudice from the violation of his rights6 or satisfy the
requirements of Rule 61(i)(5). Huffman does not attempt to satisfy the cause and
prejudice requirements of Rule 61(i)(3), but instead relies upon Rule 61(i)(5).
(11) Effective June 4, 2014, Rule 61(i)(5) provides:
5
Unitrin, Inc. v. American Gen. Corp., 651 A.2d 1361, 1390 (Del.1995) (noting that Delaware
Supreme Court may affirm judgment on basis of different rationale than rationale articulated by
trial court).
6
Super. Ct. Crim. R. 61(i)(3) (2014) (providing that claim not asserted in proceedings leading to
judgment of conviction is barred unless movant shows cause for default and prejudice from
violation of movant’s rights).
5
Bars inapplicable. The bars to relief in paragraphs (1), (2), (3), and (4)
of this subdivision shall not apply either to a claim that the court
lacked jurisdiction or to a claim that satisfies the pleading
requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of
this rule.
These subparagraphs require that a movant:
(i) pleads 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) pleads 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.7
(12) Assuming that Huffman’s statute of limitations claim constitutes a
claim that the Superior Court lacked jurisdiction,8 this claim is without merit.
First, Huffman’s reliance on April 3, 1990 as the date of the offense is misplaced.
The April 3, 1990 date appeared in the arrest warrant, but the indictment charged
Huffman with committing crimes against the Stepdaughter between January 1991
and December 1995. At the guilty plea colloquy, the indictment was amended to
reflect that Huffman was pleading guilty to Unlawful Sexual Intercourse in the
Second Degree as a lesser included offense of Unlawful Intercourse in the First
Degree and that the crime occurred on or between January 1, 1993 and December
7
Super. Ct. Crim. R. 61(d)(2) (2014).
8
Cf. Cane v. State, 560 A.2d 1063, 1065-66 (Del. 1989) (construing Section 205 “to be
jurisdictional in nature” and to confer substantive rights that defendant cannot waive).
6
31, 1993. The transcript of the guilty plea reflects that Huffman understood the
relevant time period was January 1, 1993 to December 31, 1993.9
(13) Second, the General Assembly amended Section 205(e) in 2003 to
provide that a prosecution for certain sexual offenses, including Unlawful Sexual
Intercourse in the Second Degree, could be commenced at any time.10 Section
205(e) applies to all causes of action arising before or after July 15, 1992.11 Thus,
the statute of limitations had not expired by the time of Huffman’s indictment in
2012. Huffman argues that the amendment of Section 205(e) violated the Ex Post
Facto Clause of the United States Constitution, but we rejected a similar argument
in Hoennicke v. State.12
(14) In Hoennicke, the appellant argued that his 2009 prosecution for
various sexual offenses committed between 1988 and 1992 was time-barred
because the five-year statute of limitations in effect at the time of the offenses had
expired and that the 2003 amendment of Section 205(e) violated the Ex Post Facto
clause.13 This Court noted that the General Assembly amended Section 205(e) on
9
Appendix to State’s Answering Brief at B35.
10
11 Del. C. § 205(e) (2003).
11
Id.
12
13 A.3d 744 (Del. 2010).
13
Id. at 745.
7
July 15, 1992 to permit “prosecution of delineated sexual offenses after the
expiration of the five year general limitation period if the prosecution commenced
within 2 years of the initial disclosure of misconduct to an appropriate law
enforcement agency.”14 Based upon this 1992 amendment, prosecution of the
appellant was not time-barred at the time of the 2003 amendment because the
victim had not yet reported the crime to any law enforcement agency. 15 We
concluded that the unlimited statute of limitations period as applied to the
appellant’s offenses did not violate the Ex Post Facto Clause because it simply
extended the statute of limitations and did not revive a prosecution where the
statute of limitations had already expired.16
(15) Based upon the reasoning in Hoennicke, application of the unlimited
statute of limitations period to Huffman’s offenses did not violate the Ex Post
Facto Clause because those offenses were not disclosed to law enforcement until
November 2010. Accordingly, prosecution of Huffman was not time-barred and
the Superior Court did not lack jurisdiction.
(16) Again relying upon the April 3, 1990 date, Huffman claims that he
was subject to a two year minimum Level V sentence, not the ten year minimum
14
Id. at 746.
15
Id. at 747.
16
Id.
8
Level V sentence for offenses committed on or after June 30, 199017 and that was
reflected in Truth-in-Sentencing Guilty Plea form he signed. Huffman also attacks
the requirement that he register as a Tier III sex offender and the imposition of
probation after his release from prison. These claims are not cognizable under
Rule 61.18
(17) Huffman next argues that he was denied his right under Superior
Court Criminal Rule 32(c)(3) to review the PSI report seven days before
sentencing. This claim is outside the scope of Rule 61.19
(18) Based upon the State v. Richards case and, for the first time on appeal,
the State v. Wheeler20 case, Huffman claims that the prosecution unfairly
discriminated against him. Huffman did not raise this claim on appeal and has not
shown cause for his failure to raise this claim on appeal. Nor has Huffman met
17
11 Del. C. § 774 (1990) (providing that minimum sentence for person convicted of Unlawful
Sexual Intercourse in the Second Degree was ten years). Former 11 Del. C. § 774 was repealed
and replaced by 11 Del. C. § 772 (Rape in the Second Degree), which also provides for a ten
year minimum sentence.
18
Super. Ct. Crim. R. 61(a) (“This rule governs the procedure on an application by a person in
custody under a sentence of this court seeking to set aside the judgment of conviction or a
sentence of death on the ground that the court lacked jurisdiction or on any other ground that is a
sufficient factual and legal basis for a collateral attack upon a criminal conviction or a capital
sentence.”) (emphasis added); Pearlman v. State, 2009 WL 766522, at *1 (Del. Mar. 25, 2009)
(holding claim that only implicated non-capital sentence was not cognizable under Rule 61).
19
Super. Ct. Crim. R. 61(a).
20
It appears that Huffman is referring to State v. Wheeler, Cr. ID No. 1310019248 (Del. Super.
Ct.), which has been the subject of recent press coverage.
9
the pleading requirements of Rule 61(i)(5). Accordingly, this claim is barred by
Rule 61(i)(3).
(19) Huffman next contends that his criminal history was shown to the
Stepdaughter in violation of 11 Del. C. § 4322 and 11 Del. C. § 8513. According
to Huffman, the Stepdaughter disclosed this information to others to defame him.
This claim is outside the scope of Rule 61.21 Huffman’s vague and unsupported
references to health problems are also outside the scope of Rule 61.22
(20) Huffman further claims that his criminal history contained
information more than ten years old and unspecified inaccuracies that prejudiced
the prosecutor and Superior Court. Huffman did not raise this claim on appeal and
has not shown cause for his failure to raise this claim on appeal. Nor has Huffman
met the pleading requirements of Rule 61(i)(5). Accordingly, this claim is barred
by Rule 61(i)(3).
(21) Huffman next appears to contend that he has a right under 11 Del. C.
§ 3901 to credit for time spent while he was out on bail. This claim is not
cognizable under Rule 61.23
21
See supra n.19.
22
See supra n.19.
23
See supra n.19.
10
(22) Huffman next argues that the prosecution withdrew a more favorable
plea offer on the pretext of error before he had the opportunity to accept it.
Huffman did not raise this claim on appeal and has not shown cause for his failure
to raise this claim on appeal. Nor has Huffman met the pleading requirements of
Rule 61(i)(5). Accordingly, this claim is barred by Rule 61(i)(3).
(23) Finally, Huffman contends that his right to a speedy trial was violated.
Huffman did not raise this claim on appeal and has not shown cause for his failure
to raise this claim on appeal. Nor has Huffman met the pleading requirements of
Rule 61(i)(5). Accordingly, this claim is barred by Rule 61(i)(3).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
11