Hester v. State

• Court: Supreme Court of Delaware
• Decided: September 6, 2018
• Docket: 267, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CORNELL HESTER, § § No. 267, 2018 Defendant Below, § Appellant, § Court Below: Superior Court of the § State of Delaware v. § § Cr. ID No. 0912010604 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: July 11, 2018 Decided: September 6, 2018

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

(1) In 2010, a Superior Court jury found the appellant, Cornell Hester,

guilty of second degree burglary and other crimes. Following his Superior Court

conviction, Hester was sentenced to an unsuspended twelve-year term of Level V

incarceration followed by probation. On direct appeal, we affirmed Hester’s

conviction and sentence.1 Since then, Hester has brought eleven challenges to his

conviction and sentence—eight motions for correction or reduction of sentence

under Superior Court Criminal Rule 35, two motions for postconviction relief under

1 Hester v. State, 2011 WL 3717051 (Del. Aug. 23, 2011). Superior Court Criminal Rule 61, and a federal habeas corpus petition—all without

success.

(2) This appeal is from the Superior Court’s order of April 19, 2018,

summarily dismissing Hester’s second motion for postconviction relief, under Rule

61(d)(2). The State has filed a motion to affirm the Superior Court’s judgment on

the ground that it is manifest on the face of Hester’s opening brief that the appeal is

without merit. Having considered the parties’ submissions and the record on appeal,

we conclude that the Superior Court properly applied the Rule 61(d)(2) procedural

bar to Hester’s second postconviction motion.

(3) On appeal, Hester argues that his second postconviction motion was

dismissed in error because a 2013 amendment of Rule 61(e)(1) satisfied the

procedural hurdle in Rule 61(d)(2)(ii). His argument is without merit. The 2013

amendment of Rule 61(e)(1), which provided for the appointment of counsel for an

indigent movant’s first postconviction motion, was adopted on May 6, 2013 and

applied to postconviction motions filed on or after that date. As such, it was not a

new, retroactively-applicable rule of constitutional law, and it does not satisfy the

procedural hurdle of Rule 61(d)(2)(ii)2 as Hester would have us conclude.3

2 Rule 61(d)(2)(ii) requires the summary dismissal of a second postconviction motion unless the movant was convicted after a trial and the motion “pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review . . . applies to the movant’s case.” 3 Roten v. State, 2013 WL 5808236 (Del. Oct. 28, 2013). 2 (4) Hester’s remaining arguments on appeal simply repeat those that were

made, without success, in his first motion for postconviction relief, in one or more

of his eight motions seeking a correction or reduction of sentence, or in his federal

habeas corpus petition. To the extent Hester raised new grounds for relief in his

opening brief, those grounds were not presented to the Superior Court in the first

instance and, therefore, were not considered in this appeal.4

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice

4 Del. Supr. Ct. R. 8. 3