IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
STATE OF DELAWARE )
)
v. ) I.D. No. 9510007098
)
KEVIN C. BRATHWAITE, )
)
Defendant )
Submitted: July 31, 2017
Decided: October 23, 2017
On Defendant’s Motion for Postconviction Relief and Motion for Appointment of
Counsel. SUMMARILY DISMISSED.
ORDER
John W. Downs, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Gregory E. Smith, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Kevin C. Brathwaite, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.
COOCH, R.J.
This 23rd day of October, 2017, upon consideration of Defendant’s
Fourth Motion for Postconviction Relief and Fourth Motion for Appointment
of Counsel, it appears to the Court that:
1. In 1998, a jury found Kevin Brathwaite (“Defendant”) guilty of
multiple counts of unlawful sexual intercourse and related crimes
in the assaults of three women. Defendant was sentenced to six
life terms, plus an additional 110 years. The Supreme Court of
1
Delaware affirmed Defendant's convictions on direct appeal on
October 22, 1999.1
2. Defendant filed his First Motion for Postconviction
Relief/Motion for a New Trial in 1999.2 This Court denied that
Motion on March 17, 2003 and the Supreme Court of Delaware
affirmed the decision on July 10, 2006.3
3. Defendant subsequently filed, pro se, a petition for a writ of
habeas corpus that was denied by the United States District
Court.4 The Third Circuit affirmed this denial on March 22,
2011.5
4. On February 28, 2013, Defendant filed his second, pro
se, Motion for Postconviction Relief. A Commissioner
recommended denial of the motion and the Court adopted the
Commissioner's Report and Recommendation on May 14,
2013. Defendant did not appeal.
5. Defendant filed his third, pro se, Motion for Postconviction
Relief on July 9, 2014 asserting six grounds for relief.6 This
Court denied Defendant’s Motion on procedural grounds on
August 29, 2014.7
6. Defendant also filed three Motions for Appointment of Counsel
on January 29, 2014; March 4, 2014; and June 19, 2015.8 This
Court denied the January 29, 2014 and March 4, 2014 Motions
on April 29, 2014 holding that “Defendant's motion fails to
establish the requisite good cause because it does not provide any
1
State v. Brathwaite, 2014 WL 4352170 (Del. Super. Ct. Aug. 29, 2014), aff'd, 113 A.3d 1080
(Del. 2015).
2
Brathwaite v. State, 903 A.2d 322 (Del. 2006).
3
Id.
4
Brathwaite v. Phelps, 2009 WL 3345595 (D. Del. Oct. 16, 2009), aff'd, 418 F. App'x 142 (3d Cir.
2011).
5
Brathwaite v. Phelps, 418 F. App'x 142 (3d Cir. 2011), cert denied 131 S.Ct. 3038 (2011).
6
State v. Brathwaite, 2014 WL 4352170, at *1 (Del. Super. Ct. Aug. 29, 2014), aff'd, 113 A.3d
1080 (Del. 2015).
7
Id. at *4.
8
Id.
2
factual support or legally viable argument which would justify
granting the relief sought. He simply proclaims in conclusory
terms that there were errors and/or misconduct by his attorney
which were extremely prejudicial to his defense.”9 The Court
denied Defendant’s Third Motion for Appointment of Counsel
for the same reasons on August 29, 2014.10
7. On April 27, 2015, the Supreme Court of Delaware affirmed this
Court’s denial of Defendant’s Third Motion for Postconviction
Relief and Third Motion for Appointment of Counsel.11
8. Defendant has now filed his Fourth Motion for Postconviction
Relief and his Fourth Motion for Appointment of Counsel based
on the following grounds for relief:
a. “[An] affidavit and sworn statement establish by clear and
convincing evidence [Defendant’s] actual innocence and
constitutes newly discovered evidence that was previously
unavailable.”12
b. “[T]he trial judge abused his discretion in failing to continue
the trial on the Court’s own motion and further failed to report
prosecutorial misconduct and potential felony law
violations[.]”
c. “[A]ppellate counsel rendered ineffective representation by
failing to raise the above issues on appeal.
Defendant also raises various arguments that his trial counsel
was ineffective, such as trial counsel failed to subpoena,
9
Id.
10
Id. at *4 (denying both Defendant’s Third Motion for Postconviction Relief and Third Motion
for Appointment of Counsel).
11
Brathwaite v. State, 113 A.3d 1080 (Del. 2015) (holding that “the denial of Brathwaite's third
motion for postconviction relief and motions for appointment of counsel . . . should be affirmed
on the basis of the Superior Court's well-reasoned orders dated April 29, 2014 and August 29,
2014.”).
12
Defendant provided two affidavits as exhibits to his Motion. The first Affidavit is from one of
Defendant’s ex-girlfriends, Valerie A. Relation. (“Affidavit A”). The second affidavit is from the
cousin of one of Defendant’s victims who testified against him, Salan Chapman. (“Affidavit B”).
3
investigate, locate, and impeach certain witnesses, failed to offer
timely objections at trial, failed to adequately raise arguments
related to potential exculpatory Brady evidence, and that trial
counsel “exhibited [a] conflict of interest by failing to report
witness intimidation by Government Agents.”
9. Rule 61 is the remedy for defendants “in custody under a
sentence of this court seeking to set aside the judgment of
conviction . . . .”13 This Court “must first consider the procedural
requirements of Rule 61 before addressing any substantive
issues.”14 The procedural “bars” of Rule 61 are:
timeliness, repetitiveness, procedural default, and former
15
adjudication. A motion is untimely if it is filed more than one
year after the conviction is finalized or defendant asserts a new
constitutional right that is retroactively applied more than one
year after it is first recognized.16
10. A motion is repetitive if it is a “second or subsequent motion.”17
The procedural default bar applies where grounds for relief are
not raised “in the proceedings leading to the judgment of
conviction,” unless defendant can show “cause for relief” and
“prejudice from [the] violation.”18 Grounds for relief that have
been formerly adjudicated in the case including “proceedings
leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus
hearing” are barred.19 “If any of these bars apply, the movant
must show entitlement to relief under Rule 61(i)(5)”.20 The
contentions in a Rule 61 motion must be considered on a “claim-
by-claim” basis.21
13
Del. Super. Ct. Crim. R. 61.
14
State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting
Bradley v. State, 135 A.3d 748, 756 (Del. 2016)).
15
Del. Super. Ct. Crim. R. 61(i); Stanford, WL 2484588, at *2.
16
Del. Super. Ct. Crim. R. 61(i)(1).
17
Del. Super. Ct. Crim. R. 61(i)(2).
18
Del. Super. Ct. Crim. R. 61(i)(3).
19
Del. Super. Ct. Crim. R. 61(i)(4).
20
Stanford, WL 2484588, at *2.
21
State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (holding that “Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).
4
11. Before it may address the merits of Defendant’s Fourth Motion
for Postconviction Relief, this Court must analyze the procedural
bars of Superior Court Criminal Rule 61(i).22 If one or more of
the procedural bars applies, then this Court will not proceed to
consider the merits of Defendant’s postconviction claim.23
12. Defendant’s Motion is procedurally barred for several reasons.
Defendant’s Motion was filed more than three years24 after
Defendant’s conviction was finalized under Rule 61(i)(1) when
his direct appeal was denied in 1999.25
13. Also, as this is Defendant’s Fourth Motion for Postconviction
Relief, it is procedurally barred as repetitive.
14. Even if the Court were to look past the untimely and repetitive
procedural bars to Defendant’s Motion, it nonetheless fails.
15. Defendant’s argument that he was afforded ineffective assistance
of counsel is procedurally barred as previously adjudicated.
Defendant has unsuccessfully argued ineffective assistance of
counsel in all four of his motions for postconviction relief. The
issue has been thoroughly addressed in both state and federal
courts. As this Court has previously held, “[s]imply restating or
reframing these claims does not change the fact that Defendant's
arguments have already been considered and rejected.”26
22
Brathwaite, 2014 WL 4352170, at *2.
23
Id.
24
The one-year limitation is an amendment to Rule 61, effective July 1, 2005. Defendant is
therefore subject to the original three year limitations period prior to 2005. Defendant is still,
however, twelve years beyond that limitation.
25
Del. Super. Ct. Crim. R. 61(m)(2) (A judgment of conviction is final for the purpose of this rule
. . . [i]f the defendant files a direct appeal or there is an automatic statutory review of a death
penalty, when the Supreme Court issues a mandate or order finally determining the case on direct
review.”
26
Brathwaite, 2014 WL 4352170, at *2 (holding that “Defendant's claims as to ineffective
assistance of counsel, his issues with conflicted counsel, and pro se rights are procedurally barred
as previously adjudicated.”).
5
16. Further, Defendant again asserts a newly discovered evidence
ground for relief. This ground for relief is also procedurally
barred as previously adjudicated. In Defendant’s First Motion for
Postconviction Relief, this Court illustrated the standard for
newly discovered evidence in response to Defendant’s argument
that he was entitled to a new trial:
In order to warrant the granting of a new trial on the ground of
newly discovered evidence, it must appear (1) that the evidence is
such as will probably change the result if a new trial is granted; (2)
that it has been discovered since the trial and could not have been
discovered before by the exercise of due diligence; (3) that it is not
merely cumulative or impeaching. 27
17. While the evidence in question here differs from the 2003
evidence, the reasoning remains consistent. First, the author of
Affidavit A admits that she could have been located to testify at
Defendant’s trial in 1997 with relative ease.28 It is thus not
evidence that “could not have been discovered before by the
exercise of due diligence.”29 Also, Affidavit B is “merely . . .
impeaching” because it questions the credibility of one of
Defendant’s victims who testified against him.30
18. Further, as to the grounds for relief that trial counsel rendered
ineffective assistance of counsel for an alleged failure to take
certain actions during the course of the trial, that argument is
likewise unavailing. Delaware courts have consistently held
“[t]he decision about what evidence to present remains with
defense counsel and in a given case counsel may, quite
reasonably, refrain from presenting evidence.”31 To support a
27
State v. Brathwaite, 2003 WL 1410155, at *3 (Del. Super. Ct. Mar. 17, 2003), aff'd, 903 A.2d
322 (Del. 2006) (quoting State v. Hamilton, 406 A.2d 879, 880 (Del. Super. Ct. 1974)).
28
Def.’s Mem. In Support of Mot. For Postconviction Relief, Ex. A at 4-5, (July 31, 2017) (“It
definitely would not have been very hard to locate me if he had actually tried at all.”)
29
Hamilton, 406 A.2d at 880.
30
Def.’s Mem. In Support of Mot. For Postconviction Relief, Ex. B at 2, (July 31, 2017) (“So
when [Salan Chapman] says her and Kevin were never intimately involved, she is blatantly and
absolutely telling a lie.”).
31
Flamer, 585 A.2d at 757 (citing several Burger v. Kemp, 483 U.S. 776, 790 (1987)); see also
Rodriguez v. State, 109 A.3d 1075, 1077 (Del. 2015) (holding that trial counsel’s failure to object
to evidence, failure to move for mistrial, failure to suppress evidence, and decision to defer giving
6
claim of ineffective assistance of counsel, a defendant must
demonstrate counsel’s deficiency as measured by an objective
level of reasonableness and that the deficiency deprived
defendant of a fair trial with reliable results.32 “Mere allegations
of ineffectiveness will not suffice. A defendant must make
specific allegations of actual prejudice and substantiate them.” 33
Defendant’s conclusory allegations that his trial counsel was
ineffective because he “failed to” take certain specific actions
that Defendant now identifies in retrospect, are insufficient to
make a claim of ineffective assistance of counsel.
19. Finally, as this is Defendant’s Fourth Motion for Appointment of
Counsel, it is procedurally barred as repetitive. Additionally, not
unlike his previous Motions for Appointment of Counsel,
Defendant again asserts only conclusory statements that he needs
counsel. His assertions fail to show good cause because they lack
factual support and fail to provide a legally viable argument.
Therefore, Defendant’s Motion for Postconviction Relief is SUMMARILY
DISMISSED.
IT IS SO ORDERED.
______________________
Richard R. Cooch, R.J.
cc: Prothonotary
Investigative Services
his opening statement until the close of the State’s case as a matter of trial strategy did not support
a claim of ineffective assistance of counsel.).
32
Strickland v. Washington, 466 U.S. 668, 688 (1984).
33
Brathwaite, 2014 WL 4352170, at *4 (quoting Wright v. State, 671 A.2d 1353, 1356 (Del.
1996)).
7