IN THE SUPREME COURT OF THE STATE OF DELAWARE
HECTOR BARROW, § § Defendant Below, § No. 527, 2014 Appellant, § § v. § Court Below: Superior Court § of the State of Delaware, STATE OF DELAWARE, § in and for New Castle County § Cr. ID No. 9506017661 Plaintiff Below, § Appellee. §
Submitted: November 21, 2014 Decided: January 5, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
ORDER
This 5th day of January 2015, 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, Hector Barrow, filed this appeal from the Superior
Court’s denial of his third 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 Barrow’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, in May 1997, a Superior Court jury found
Barrow and his co-defendant Jermaine Barnett guilty of Intentional Murder in the
First Degree, Felony Murder in the First Degree based on Recklessness, Felony
Murder in the First Degree based on Criminal Negligence, and other charges
arising from the 1995 robbery and murder of a gun shop owner. Barrow and
Barnett were sentenced to death. On direct appeal, this Court reversed each
defendant's intentional murder conviction and remanded for a new penalty
hearing.2 After the second penalty hearing, the Superior Court sentenced Barrow
and Barnett to life imprisonment. Barrow did not appeal that sentence.
(3) Barrow filed his first motion for postconviction relief on January 27,
2005. Barrow requested appointment of counsel in May 2005. The Superior Court
found that Barrow’s claims were procedurally barred by Superior Court Criminal
Rule 61 (“Rule 61”).3 The Superior Court also concluded that Barrow’s ineffective
assistance of counsel claims lacked merit.4 The Superior Court did not address
Barrow’s request for appointment of counsel. On appeal, Barrow only challenged
2 Barrow v. State, 749 A.2d 1230 (Del. 2000). 3 State v. Barrow, 2005 WL 3436609, at *2-3 (Del. Super. Ct. Dec. 6, 2005). 4 Id. at *3-4.
2 the denial of one of his ineffective assistance of counsel claims. This Court
affirmed the Superior Court’s denial of that claim.5
(4) Barrow filed his second motion for postconviction relief on August
29, 2007. The Superior Court found that the motion was procedurally barred by
Rule 61. This Court dismissed Barrow’s untimely appeal.6
(5) Barrow filed his third motion for postconviction relief on January 28,
2014. Relying on the U.S. Supreme Court’s decision in Martinez v. Ryan7 and our
decision in Holmes v. State,8 Barrow argued that he was entitled to appointment of
counsel because he did not have the assistance of counsel in his first postconviction
proceedings. Barrow also claimed that his trial counsel was ineffective for failing
to subpoena or question three State witnesses regarding deals they struck with the
prosecutor, failing to investigate a relationship among the three witnesses, and
failing to object to testimony regarding the meaning of a Jamaican slang word used
by Barrow.
5 Barrow v. State, 2006 WL 3579058 (Del. Dec. 11, 2006). 6 Barrow v. State, 2009 WL 189869 (Del. Jan. 13, 2009). 7 ---U.S.---, 132 S. Ct. 1309, 182 L.E.2d 272 (2012). 8 2013 WL 2297072 (Del. May 23, 2013).
3 (6) The Superior Court held that Barrow’s claims were untimely under
Rule 61(i)(1),9 his claim that he was entitled to counsel in his first postconviction
proceedings was barred by Rule 61(i)(3)10 because he did not raise that issue on
direct appeal, and his ineffective assistance of counsel claims were barred by Rule
61(i)(2)11 to the extent they were not raised before and by Rule 61(i)(4)12 to the
extent they were previously adjudicated.13 The Superior Court also held that
Barrow failed to show that review was required in the interest of justice under Rule
61(i)(2)14 or Rule 61(i)(4)15 or due to a colorable claim of a miscarriage of justice
under Rule 61(i)(5).16
9 Super. Ct. Crim. R. 61(i)(1) (barring postconviction motion filed more than three years after judgment of conviction is final) (amended in 2006 to reduce filing period to one year). 10 Super. Ct. Crim. R. 61(i)(3) (barring any ground for relief not asserted in proceedings leading to conviction). 11 Super. Ct. Crim. R. 61(i)(2) (barring claim not raised in previous postconviction proceeding). 12 Super. Ct. Crim. R. 61(i)(4) (barring claim that was formerly adjudicated). 13 State v. Barrow, 2014 WL 4180121, at *2 (Del. Super. Ct. Aug. 25, 2014). 14 Super. Ct. Crim. R. 61(i)(2) (providing claim is not barred if review is warranted in interest of justice). 15 Super. Ct. Crim. R. 61(i)(4) (providing claim is not barred if reconsideration is warranted in interest of justice). 16 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).
4 (7) On appeal, Barrow contends that the Superior Court abused its
discretion by failing to appoint counsel for him in his first postconviction
proceedings because he raised ineffective assistance of counsel claims. Barrow
claims his counsel was ineffective because they failed to investigate deals struck
with several State witnesses, who he claims were the actual perpetrators of the
1995 crimes, and refused to challenge the linguistics expertise of a police officer
who testified about the meaning of a Jamaican slang word used by Barrow.
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.17 The procedural requirements
of Rule 61 must be considered before addressing any substantive issues. 18 Barrow
argues that he has overcome the procedural bars of Rule 61(i) because he has pled
a colorable claim of a miscarriage of justice under Rule 61(i)(5) based on his
counsel’s ineffective assistance.
(9) Barrow’s conclusory and unsupported allegations of ineffective
assistance do not state a colorable claim of a miscarriage of justice under Rule
61(i)(5). In support of his claim that his counsel was ineffective for failing to
investigate three people (two men who were State witnesses and the aunt of one of
the men) who were supposedly responsible for the underlying crimes, Barrow
17 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 18 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5 contends that two witnesses described the suspects as two men and a woman.
Barrow does not cite to anything in the record supporting this contention. The
record reflects that the witnesses identified three men as suspects and one witness
did not think Barrow was one of the suspects because she thought he looked like a
girl.
(10) The record also contradicts Barrow’s claim that his counsel was
ineffective for refusing to challenge the linguistics expertise of a deputy marshal
who testified about the meaning of a Jamaican slang word used by Barrow.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
HECTOR BARROW, § § Defendant Below, § No. 527, 2014 Appellant, § § v. § Court Below: Superior Court § of the State of Delaware, STATE OF DELAWARE, § in and for New Castle County § Cr. ID No. 9506017661 Plaintiff Below, § Appellee. §
Submitted: November 21, 2014 Decided: January 5, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
ORDER
This 5th day of January 2015, 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, Hector Barrow, filed this appeal from the Superior
Court’s denial of his third 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 Barrow’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, in May 1997, a Superior Court jury found
Barrow and his co-defendant Jermaine Barnett guilty of Intentional Murder in the
First Degree, Felony Murder in the First Degree based on Recklessness, Felony
Murder in the First Degree based on Criminal Negligence, and other charges
arising from the 1995 robbery and murder of a gun shop owner. Barrow and
Barnett were sentenced to death. On direct appeal, this Court reversed each
defendant's intentional murder conviction and remanded for a new penalty
hearing.2 After the second penalty hearing, the Superior Court sentenced Barrow
and Barnett to life imprisonment. Barrow did not appeal that sentence.
(3) Barrow filed his first motion for postconviction relief on January 27,
2005. Barrow requested appointment of counsel in May 2005. The Superior Court
found that Barrow’s claims were procedurally barred by Superior Court Criminal
Rule 61 (“Rule 61”).3 The Superior Court also concluded that Barrow’s ineffective
assistance of counsel claims lacked merit.4 The Superior Court did not address
Barrow’s request for appointment of counsel. On appeal, Barrow only challenged
2 Barrow v. State, 749 A.2d 1230 (Del. 2000). 3 State v. Barrow, 2005 WL 3436609, at *2-3 (Del. Super. Ct. Dec. 6, 2005). 4 Id. at *3-4.
2 the denial of one of his ineffective assistance of counsel claims. This Court
affirmed the Superior Court’s denial of that claim.5
(4) Barrow filed his second motion for postconviction relief on August
29, 2007. The Superior Court found that the motion was procedurally barred by
Rule 61. This Court dismissed Barrow’s untimely appeal.6
(5) Barrow filed his third motion for postconviction relief on January 28,
2014. Relying on the U.S. Supreme Court’s decision in Martinez v. Ryan7 and our
decision in Holmes v. State,8 Barrow argued that he was entitled to appointment of
counsel because he did not have the assistance of counsel in his first postconviction
proceedings. Barrow also claimed that his trial counsel was ineffective for failing
to subpoena or question three State witnesses regarding deals they struck with the
prosecutor, failing to investigate a relationship among the three witnesses, and
failing to object to testimony regarding the meaning of a Jamaican slang word used
by Barrow.
5 Barrow v. State, 2006 WL 3579058 (Del. Dec. 11, 2006). 6 Barrow v. State, 2009 WL 189869 (Del. Jan. 13, 2009). 7 ---U.S.---, 132 S. Ct. 1309, 182 L.E.2d 272 (2012). 8 2013 WL 2297072 (Del. May 23, 2013).
3 (6) The Superior Court held that Barrow’s claims were untimely under
Rule 61(i)(1),9 his claim that he was entitled to counsel in his first postconviction
proceedings was barred by Rule 61(i)(3)10 because he did not raise that issue on
direct appeal, and his ineffective assistance of counsel claims were barred by Rule
61(i)(2)11 to the extent they were not raised before and by Rule 61(i)(4)12 to the
extent they were previously adjudicated.13 The Superior Court also held that
Barrow failed to show that review was required in the interest of justice under Rule
61(i)(2)14 or Rule 61(i)(4)15 or due to a colorable claim of a miscarriage of justice
under Rule 61(i)(5).16
9 Super. Ct. Crim. R. 61(i)(1) (barring postconviction motion filed more than three years after judgment of conviction is final) (amended in 2006 to reduce filing period to one year). 10 Super. Ct. Crim. R. 61(i)(3) (barring any ground for relief not asserted in proceedings leading to conviction). 11 Super. Ct. Crim. R. 61(i)(2) (barring claim not raised in previous postconviction proceeding). 12 Super. Ct. Crim. R. 61(i)(4) (barring claim that was formerly adjudicated). 13 State v. Barrow, 2014 WL 4180121, at *2 (Del. Super. Ct. Aug. 25, 2014). 14 Super. Ct. Crim. R. 61(i)(2) (providing claim is not barred if review is warranted in interest of justice). 15 Super. Ct. Crim. R. 61(i)(4) (providing claim is not barred if reconsideration is warranted in interest of justice). 16 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).
4 (7) On appeal, Barrow contends that the Superior Court abused its
discretion by failing to appoint counsel for him in his first postconviction
proceedings because he raised ineffective assistance of counsel claims. Barrow
claims his counsel was ineffective because they failed to investigate deals struck
with several State witnesses, who he claims were the actual perpetrators of the
1995 crimes, and refused to challenge the linguistics expertise of a police officer
who testified about the meaning of a Jamaican slang word used by Barrow.
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.17 The procedural requirements
of Rule 61 must be considered before addressing any substantive issues. 18 Barrow
argues that he has overcome the procedural bars of Rule 61(i) because he has pled
a colorable claim of a miscarriage of justice under Rule 61(i)(5) based on his
counsel’s ineffective assistance.
(9) Barrow’s conclusory and unsupported allegations of ineffective
assistance do not state a colorable claim of a miscarriage of justice under Rule
61(i)(5). In support of his claim that his counsel was ineffective for failing to
investigate three people (two men who were State witnesses and the aunt of one of
the men) who were supposedly responsible for the underlying crimes, Barrow
17 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 18 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5 contends that two witnesses described the suspects as two men and a woman.
Barrow does not cite to anything in the record supporting this contention. The
record reflects that the witnesses identified three men as suspects and one witness
did not think Barrow was one of the suspects because she thought he looked like a
girl.
(10) The record also contradicts Barrow’s claim that his counsel was
ineffective for refusing to challenge the linguistics expertise of a deputy marshal
who testified about the meaning of a Jamaican slang word used by Barrow.
Barrow’s counsel did challenge the linguistics expertise of the witness, but the
Superior Court decided the witness’s testimony was admissible under Delaware
Rule of Evidence 702. Barrow has thus failed to plead a colorable claim of a
miscarriage of justice under Rule 61(i)(5) based on ineffective assistance of
counsel.
(11) Finally, Barrow has not shown he is entitled to relief based on his
claim that the Superior Court should have appointed counsel in his first
postconviction proceedings because he raised ineffective assistance of counsel
claims in those proceedings. If Barrow wished to challenge his lack of counsel in
his first postconviction proceedings, despite his request for appointment of
counsel, then he should have raised that claim in his appeal of the Superior Court’s
denial of his first motion for postconviction relief. He did not do so.
6 (12) Barrow also fails to identify any relevant authority supporting his
claim that he was entitled to appointment of counsel in his first postconviction
proceeding because he raised ineffective assistance of counsel claims. In Martinez,
the U.S. Supreme Court held 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.19 The U.S. Supreme Court did not
hold that there is a federal constitutional right to counsel in first postconviction
proceedings.
(13) In Holmes, this Court 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.20 We remanded for the appointment of
counsel under the recently amended Rule 61(e)(1).21 Rule 61(e)(1) was amended
in May 2013 to provide that the Superior Court would appoint counsel for an
indigent defendant’s first postconviction proceeding, but that amendment only
applied to postconviction motions filed on or after May 6, 2013, and was not made
19 Martinez, 132 S. Ct. at 1320. 20 2013 WL 2297072, at *1. 21 Id.
7 retroactive.22 Because Barrow’s first motion for postconviction relief was filed in
2005, Rule 61(e)(1) and our related holding in Holmes are not applicable. Nor has
Barrow established good cause for appointment of counsel. We conclude that the
Superior Court did not err in finding that Barrow’s third motion for postconviction
relief was procedurally barred and that Barrow failed to overcome the procedural
hurdles.
(14) We also note that this is Barrow’s third postconviction motion. We
have invested considerable time detailing the reasons why Barrow’s claims are
barred. We will not continue to invest scarce judicial resources to address
untimely and repetitive claims. We encourage Barrow to be mindful of Rule
61(j).23
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/ Leo E. Strine, Jr._____________ Chief Justice
22 Cook v. State, 2014 WL 2949413, at *1 (Del. June 26, 2014); Roten v. State, 2013 WL 5808236, at *1 (Del. Oct. 28, 2013). 23 Super. Ct. Crim. R. 61(j) (“If a motion is denied, the state may move for an order requiring the movant to reimburse the state for costs and expenses paid for the movant from public funds.”).