IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) ) MICHAEL JONES, ) Case No. 9911016309 ) Defendant. )
Date Submitted: September 7, 2016 Date Decided: December 16, 2016
MEMORANDUM OPINION AND ORDER
Elizabeth R. McFarlan, Esquire, and Colleen K. Norris, Esquire, Department of Justice, Wilmington, Delaware. Attorneys for the State.
Natalie S. Woloshin, Esquire, Woloshin, Lynch & Natalie, P.A., Wilmington, Delaware. Attorney for Defendant Michael Jones.
Upon Consideration of Petitioner Michael Jones’ Amended Motion for Postconviction Relief SUMMARILY DISMISSED
Upon Consideration of State’s Motion for Summary Dismissal GRANTED
After a trial, a jury found Michael Jones guilty of fifteen felonies, including three
convictions for First Degree Murder.1 The Court then sentenced Mr. Jones on September
16, 2005.2 After the United States Supreme Court’s decision in Miller v. Alabama,3
Delaware enacted 11 Del. C. §§ 4204A(d)(2) and 4209A to address situations where the
Court had sentenced or would sentence juveniles for First Degree Murder. Mr. Jones
filed a motion for resentencing. The Court granted the motion and resentenced Mr. Jones
on June 30, 2014 (the “Resentence”).
1 The Court dismissed one count of Possession of a Firearm by a Person Prohibited. 2 Case No. 9911016309, Superior Court Criminal Docket No. 162. Further references to the docket will be as “D.I. No. __.” 3 132 S. Ct. 2455 (2012). Mr. Jones did not directly appeal the Resentence. Instead, Mr. Jones filed his
Motion for Postconviction Relief on June 22, 2015 (as amended through Petitioner
Michael Jones’s Amended Motion for Postconviction Relief on November 16, 2015, the
“Rule 61 Motion”). The State did not respond to the Rule 61 Motion. Instead, on
November 24, 2015, the State filed its State’s Motion for Summary Dismissal (the
“Dismissal Motion”). The parties then filed replies and supplements to the Dismissal
Motion. The Court held a hearing on the Dismissal Motion on May 16, 2016 and took
the matter under advisement.
The Court has reviewed the record in connection with the Rule 61 Motion and the
Dismissal Motion. Moreover, the Court has considered all arguments made in support
and against the relief sought in the Rule 61 Motion and the Dismissal Motion. For the
reasons set forth below, the Court SUMMARILY DISMISSES the Rule 61 Motion and
GRANTS the Dismissal Motion.
BACKGROUND AND PROCEDURAL HISTORY
THE TRIAL AND APPEAL4
Mr. Jones and Darrel Page were members of a drug ring in Wilmington,
Delaware. Cedric Reinford was the leader of the operation. On the evening of
November 20, 1999, Mr. Jones, Mr. Page, and Mr. Reinford were together in Mr.
Reinford’s car in Wilmington.
On November 20, 1999, Mr. Jones, whose date of birth is March 14, 1982, was 17
years, 8 months old.
4 For the facts surrounding the incident and trial, the Court is relying heavily on the “Background” portion of the Delaware Supreme Court’s decision in Jones v. State, 940 A.2d 1, 6-7 (Del. 2007).
2 While the three were in Mr. Reinford’s car, Mr. Jones shot and killed Mr.
Reinford. Mr. Page and Mr. Jones then dowsed Mr. Reinford and his car with gasoline
and set it on fire. Mr. Page and Mr. Jones then decided to go to Mr. Reinford’s house to
steal drug money from a safe in Mr. Reinford’s home. After arriving at Mr. Reinford’s
house, Mr. Jones shot Mr. Reinford’s brother, Muhammad, in the face. Mr. Jones then
went to a bedroom and shot and killed Mr. Reinford’s fiancée, Maneeka Plant.
Miraculously, Muhammad survived and called 911 at 3:20 a.m. on November 21, 1999.
Later on November 21, 1999, at a hospital, Muhammad was able to identify both
Mr. Page and Mr. Jones from a photo lineup and told the police what had happened. The
subsequent police investigation led the police to question Kim Still, Mr. Page’s girlfriend.
Ms. Still told the police of Mr. Page’s plan to recruit Mr. Jones to help him kill Mr.
Reinford. Ms. Still also explained the circumstances surrounding why she drove to
Philadelphia to pick up a car borrowed by Mr. Page and Mr. Jones, what happened when
she met up with the two men, and what Mr. Page said to Ms. Still upon her being told by
the police over the phone to return to Wilmington for questioning.
Mr. Page was arrested on November 3, 2000. The grand jury indicted Mr. Page
and Mr. Jones on January 29, 2001. Mr. Jones was subsequently arrested on September
11, 2001 and extradited to Delaware on October 29, 2001.
The Court originally scheduled Mr. Jones’ trial to start on November 12, 2002.
During a January 25, 2002 proof positive hearing, the State notified the Court and Mr.
Jones that it intended to seek the death penalty. After a court-ordered stay of all capital
murder cases, Mr. Jones’ trial was rescheduled for November 24, 2003.5 Shortly before
5 The Court stayed all capital murder cases after the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002). See Jones, 940 A.2d at 6 n. 3.
3 his trial, Mr. Jones filed a motion to obtain new counsel. The Court granted that motion
on November 17, 2003.
Mr. Jones’ trial then began on January 11, 2005. After a full trial, the jury found
Mr. Jones guilty of three counts of Murder First Degree, Robbery First Degree, Arson
Second Degree and related weapons and conspiracy charges. Following the penalty
phase of Mr. Jones’ trial, the jury recommended, by a vote of eleven-to-one on two of the
Murder First Degree counts and ten-to-two on the third Murder First Degree count, that
Mr. Jones be sentenced to death. Before sentencing, the United States Supreme Court
decided Roper v. Simmons6 which made Mr. Jones ineligible for the death penalty
because of his age.
After Simmons was decided, but before sentencing, counsel for Mr. Jones filed
motions for the trial judge’s recusal and for a new trial, both of which the trial judge
denied. The Court sentenced Mr. Jones as follows: three counts of Murder First Degree –
life imprisonment on each count; Robbery First Degree – 5 years; Arson Second Degree
– one year; Endangering the Welfare of a Child (felony) – one year; three counts of
Conspiracy First Degree – 2 years on each count; Conspiracy Second Degree – one year;
four counts of Possession of a Firearm During the Commission of a Felony – 5 years on
each count.
Mr. Jones appealed the judgment of conviction on October 12, 2005. The
Delaware Supreme Court remanded the appeal for an evidentiary hearing. The Court
held the evidentiary hearing on June 5, 2007 and issued its ruling on July 2, 2007. After
the hearing, the Delaware Supreme Court affirmed the judgment of conviction on
6 543 U.S. 551 (2005).
4 December 12, 2007. The Delaware Supreme Court issued its Mandate on January 3,
2008.
THE FIRST POSTCONVICTION MOTION
On May 21, 2008, Mr. Jones filed a pro se motion for postconviction relief (the
“First Postconviction Motion”) under Rule 61 of the Superior Court Rules of Criminal
Procedure (“Criminal Rule 61”). The First Postconviction motion is lengthy (112 pages
long) and supported by exhibits.7 On May 30, 2008, the Superior Court judge who
oversaw the Court’s conflicts program appointed counsel (“Rule 61 Counsel”) to
represent Mr. Jones in connection with the First Postconviction Motion. However, the
Superior Court judge assigned to the First Postconviction Motion – Mr. Jones’ trial judge,
then presiding over Mr. Jones’ criminal case – does not appear to have provided notice to
Mr. Jones regarding the appointment of the Rule 61 Counsel. Mr. Jones, and not the Rule
61 Counsel, presented the First Postconviction Motion to the Court. The Court ordered
Mr. Jones’ trial counsel to submit affidavits regarding the relief sought in the First
Postconviction Motion.
Without awaiting further briefing or argument, the Court denied the First
Postconviction Motion on September 3, 2008.8 The Court’s decision is detailed. The
Court specifically addresses Mr. Jones’ request for appointment of counsel and for an
evidentiary hearing. In denying those requests, the Court stated:
[Mr.] Jones has not demonstrated good cause for the Court to appoint counsel to assist in presenting this motion. As the record reflects, [Mr.] Jones submitted a one-hundred-and-twelve page postconviction motion in which he: (1) reviewed the record; (2) cited case law; and (3) made notes throughout numerous transcripts and letters in support of his arguments. He also included hundreds of pages of trial transcripts that he cited in his
7 State v. Jones, I.D. No. 9911016309, 2008 WL 4173816, at *22 (Del. Super. Sept. 3, 2008). 8 Id. at *23.
5 motion. Although a brief filed by an attorney would have been more succinct, [Mr.] Jones has fully developed his arguments and presented a coherent motion for the Court to analyze. Therefore, the Court declines to exercise its discretion to appoint counsel.
Furthermore, the Court is satisfied that appointment of counsel in this case would have been wasteful and unnecessary because [Mr.] Jones’ claims lack merit. The Court has analyzed every single claim raised by [Mr.] Jones, none of which are supported by the record. Moreover, counsels’ responses to the motion did not raise any further issues that the Court deemed appropriate for additional research, argument, or consideration. Indeed, the performance of defense counsel during the guilt phase of this case was of the highest caliber, notwithstanding [Mr.] Jones’ valiant, thorough, and creative efforts to undermine it in his postconviction relief motion. Therefore, the Court declines to have an evidentiary hearing to address [Mr.] Jones’ claims.9
The record does not reflect any involvement by the Rule 61 Counsel on matters
related to the First Postconviction Motion when that motion was pending before the
Court.
On October 23, 2008, Mr. Jones appealed the Court’s decision on his First
Postconviction Motion. The Rule 61 Counsel prosecuted the appeal. After briefing and
oral argument, the Delaware Supreme Court affirmed the Court’s decision on the First
Postconviction Motion.10
THE WRIT OF HABEAS CORPUS
Mr. Jones next sought relief in the Federal Courts. In 2009, Mr. Jones filed a
petition for writ of habeas corpus (the “Petition”) in the United States District Court for
the District of Delaware. Mr. Jones raised nine grounds for relief in the Petition: (i)
illegal arrest; (ii) speedy trial violations; (iii) a Brady violation; (iv) abuse of discretion
by the Court on certain evidentiary rulings; (v) prosecutorial misconduct; (vi) ineffective
9 Id., 2008 WL 4173816, at *22-23 (citations omitted). 10 Jones v. State, 968 A.2d 492 (table), 2009 WL 595574 (Del. 2009)(decision after “consideration of the briefs of the parties, and their contentions in oral argument….”).
6 assistance of trial counsel; (vii) a Batson violation and related prosecutorial misconduct;
(viii) abuse of discretion by the Court as to the admission of prior statements and certain
photos of the victim and failing to sequester certain witnesses; and (ix) judicial
misconduct and abuse of discretion by the Court in denying motions to recuse and for a
new trial. The District Court denied the Petition.
Mr. Jones appealed the District Court’s denial of the Petition to the United States
Court of Appeals for the Third Circuit. The Third Circuit granted Mr. Jones application
for appeal on three issues: (i) whether the District Court erred in finding Mr. Jones’
speedy trial claim procedurally defaulted; (ii) if so, whether Mr. Jones’ right to a speedy
trial was violated; and (iii) whether Mr. Jones’ due process rights were violated when the
Court denied Mr. Jones’ motions to recuse and for a new trial. The Third Circuit
appointed counsel to represent Mr. Jones in the appeal. After receiving briefing on the
issues, on January 30, 2015, the Third Circuit affirmed the District Court’s denial of the
Petition.
THE RESENTENCE
The United States Supreme Court issued Miller v. Alabama in 2012. Utilizing 11
Del. C. §§ 4204A and 4209A and Rule 35A of the Superior Court Rules of Criminal
Procedure, Mr. Jones moved to be resentenced. The Court granted the motion. The
Court granted a request by Mr. Jones for appointment of conflicts counsel on December
20, 2013. On June 30, 2014, the Court held a sentencing hearing. At the conclusion of
the hearing, the Court resentenced Mr. Jones to three life sentences for the Murder First
Degree convictions – the Resentence. Mr. Jones did not appeal the Resentence.
7 THE RULE 61 MOTION
On June 23, 2015, Mr. Jones, through counsel, filed the Rule 61 Motion. On
November 16, 2015, Mr. Jones amended the Rule 61 Motion. The Rule 61 Motion
asserts five claims for relief: (i) the felony murder conviction must be vacated based on
the holdings of State v. Williams and State v. Chao because evidence shows the murder
was not in the furtherance of Robbery First Degree; (ii) trial counsel was ineffective
because they did not properly investigate evidence demonstrating Mr. Jones’ innocence;
(iii) trial counsel was ineffective by failing to object to two 11 Del. C. § 3507 statements;
(iv) trial counsel was ineffective during trial and on direct appeal; and (v) the Resentence
was disproportionate to other juvenile resentencings under 11 Del. C. §§ 4204A and
4209A.
THE DISMISSAL MOTION, THE RESPONSE AND THE REPLY
On November 24, 2015, the State filed the Dismissal Motion, seeking summary
dismissal of the Rule 61 Motion as untimely and procedurally barred. Mr. Jones first
responded to the Dismissal Motion on December 18, 2015, filing his Response to Motion
for Summary Dismissal. On March 23, 2016, Mr. Jones filed an Amended Response to
Motion for Summary Dismissal (the “Response”). In the Response, Mr. Jones argues that
the Rule 61 Motion is (i) timely because it was filed within one year of the Resentence;
(ii) is not procedurally barred because the Court should apply the version of Criminal
Rule 61 in effect before June 1, 2015 that contained the “fundamental fairness” exception
of Criminal Rule 61(i)(5); and (iii) the Rule 61 Motion should be considered Mr. Jones’
first request for relief under Criminal Rule 61 because Mr. Jones was not afforded use of
8 his Rule 61 Counsel in 2008. On March 31, 2016, the State filed its State’s Reply to
Jones’ Amended Response to Motion for Summary Dismissal (the “Reply”).
The Court held a hearing on May 16, 2016. At that hearing, the Court heard
arguments on the Dismissal Motion, the Response and the Reply. After the hearing, on
May 20, 2016, Mr. Jones’ counsel sent an electronic-mail communication to the Court,
enclosing a Delaware Supreme Court decision relied on by counsel at the May 16, 2016
hearing.
DISCUSSION
LEGAL STANDARD UNDER CRIMINAL RULE 61
In the briefing, the parties state that Mr. Jones filed the Rule 61 Motion on June
22, 2014. This is incorrect. The docket in this criminal case clearly shows that the Rule
61 Motion was filed on June 22, 2015 and not on June 22, 2014.11 This makes sense as
the Court did not resentence Mr. Jones until June 30, 2014.12 Accordingly, the Court
will apply the version of Criminal Rule 61 that was in effect on June 22, 2015.13
The Criminal Rule 61(i), effective June 1, 2015, establishes four procedural bars
to postconviction relief.14 Criminal Rule 61(i)(1) provides that a motion for
postconviction relief must be filed within one year of a final judgment of conviction.15
Under Criminal Rule 61(i)(2), successive motions are barred unless the motion satisfies
11 D.I. No. 259 (Rule 61 Motion filed on June 22, 2015 and docketed on June 23, 2015). 12 D.I. No. 252. 13 The Court is applying the version of Criminal Rule 61 that was in effect at the time of the filing of the Motion. See Younger v. State, 580 A.2d 552, 554 (Del. 1990). In the initial briefings to the Court, both parties relied on Criminal Rule 61, effective prior to June 1, 2015, as the controlling version of Criminal Rule 61. In response, the Court asked both parties to provide a letter brief to the Court explaining why the Court should, or should not, utilize the June 1, 2015 version of Criminal Rule 61 instead of Criminal Rule 61 in place prior to June 1, 2015. Both parties agree that, because Mr. Jones filed the Rule 61 Motion on June 22, 2015, the version of Criminal Rule 61, effective on June 1, 2015, controls the Rule 61 Motion. See Def.’s. Letter Br. at 1; State’s Letter Br. at 1–2. 14 Super. Ct. Crim. R. 61(i)(1)-(4). 15 Super. Ct. Crim. R. 61(i)(1).
9 the pleading requirements of Rule 61(d)(2)(i) or (d)(2)(ii).16 Rule 61(i)(3) bars
consideration of any claim not asserted in the proceedings leading up to the judgment of
conviction unless the movant can show “cause for relief from the procedural default” and
“prejudice from violation of movant’s rights.”17 Criminal Rule 61(i)(4) provides that
“any ground for relief that was formerly adjudicated, whether in the proceedings leading
to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a
federal habeas corpus proceeding, is thereafter barred.”18
The procedural bars contained in Criminal Rule 61(i)(1-4) may be rescinded only
if there is a means by which to do so in the applicable subsection of Rule 61.19 Absent
such relief, Rule 61(i)(5) provides additional reprieve from the procedural bars described
in Rule 61(i)(1-4).20 Under Rule 61(i)(5), “[t]he 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.”21
Criminal Rule 61(d), including subparts 61(d)(2)(i) and (ii), provides:
(d) Preliminary consideration.
(1) First postconviction motion. A first postconviction motion shall be presented promptly to the judge who accepted a plea of guilty or nolo contendere or presided at trial in the proceedings leading to the judgment under attack. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge in accordance with the procedure of the court for assignment of its work. The judge shall
16 Super. Ct. Crim. R. 61(i)(2). 17 Super. Ct. Crim. R. 61(i)(3). 18 Super. Ct. Crim. R. 61(i)(4). 19 State v. MacDonald, No. 90010077DI, 2007 WL 1378332, *4 (Del. Super. May 9, 2007). 20 Id.; Super. Ct. Crim. R. 61(i)(5). Criminal Rule 61 was amended in June, 2014, and replaced the “manifest injustice” and “interest of justice” exceptions with the present version of Criminal Rule 61(i)(5). DELAWARE RULES ANNOTATED, at 892 (2015 ed. 2014). 21 Super. Ct. Crim. R. 61(i)(5).
10 promptly examine the motion and contents of the files relating to the judgment under attack.
(2) Second or subsequent postconviction motions. A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after trial and the motion either:
(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 that 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.22
Criminal Rule 61(i) establishes two procedural bars to motions for postconviction
relief that are relevant here: (1) the motion must be filed within one year of a final
judgment of conviction;23 and (2) any motion for postconviction relief must satisfy
Criminal Rule 61(d)(2).24
THE RULE 61 MOTION IS PROCEDURALLY BARRED AND MUST BE SUMMARILY DISMISSED
The Rule 61 Motion is untimely.
Under Criminal Rule 61(i)(1), the Criminal Rule must have been filed within one
year after Mr. Jones’ conviction became final. Mr. Jones appealed his conviction in 2005
and the Supreme Court affirmed his conviction and issued a mandate on March 15, 2007.
Unless an exception applied, the Rule 61 Motion needed to be filed within a year from
March 15, 2007.
22 Super. Ct. R. Crim. P. 61(d)(2). 23 Super. Ct. R. Crim. P. 61(i)(1). 24 Super. Ct. R. Crim. P. 61(i)(2).
11 Mr. Jones argues that the Rule 61 Motion is timely because it was filed within a
year of his resentencing on June 30, 2014. It is true that the Rule 61 Motion was filed
within a year of June 30, 2014; however, the date of the resentencing does not control
here. The Court has previously addressed this argument and rejected it in State v.
Govan.25 Although not a lengthy opinion, the decision in Govan involves a similar
situation. Arthur Govan was convicted in 1993.26 Thereafter, Mr. Govan filed a series of
post-conviction motions.27 The Court modified Mr. Govan’s sentence on November 25,
2009.28 The Court then summarily dismissed Mr. Govan’s pending Criminal Rule 61
motion as not filed within one year of a final judgment of conviction.29 The Supreme
Court affirmed the Court’s summary dismissal of Mr. Govan’s post-conviction motion.30
Like Mr. Govan, Mr. Jones was convicted years ago – in 2005. Moreover, the
convictions were upheld on appeal on March 15, 2007. The Rule 61 Motion was filed on
June 22, 2015 which is more than one year from the date when his conviction became
final. Unless a newly recognized retroactively applicable right applies, the Rule 61
Motion is untimely.31
25 State v. Govan, ID. No. 92010166, 2010 WL 424235 (Del. Super. Feb. 5, 2010), aff’d, Govan v. State, 988 A.2d 937 (table), 2010 WL 424235 (Del. 2010). 26 Id. at ¶1. 27 Id. at ¶¶ 3-6. 28 Id. at ¶8. 29 Id. at ¶11 (“Here, Defendant’s motion has not been filed within the one-year limitation. Defendant was initially convicted in 1993, and his convictions were upheld on appeal in 1995 – fourteen years ago.”). 30 Govan v. State, 988 A.2d 937 (table), 2010 WL 424235, at *1 (Del. 2010)(“Appellant’s fourth motion for postconviction relief clearly was time-barred, repetitive, and previously adjudicated, and appellant failed to overcome these procedural hurdles.”). 31 Criminal Rule 61 might allow Mr. Jones to attack his sentence, were it capital. But, due to the decision in Roper v. Simmons (which made Mr. Jones ineligible for the death penalty because of his age even though the jury had voted 11-1 and 10-2 in favor of application of the death penalty), Mr. Jones was sentenced to life in prison, and thus there is no relief available to him under Criminal Rule 61, as it concerns only capital sentences. See Super. Ct. Crim. R. 61(a)(1).
12 Mr. Jones claims that the Rule 61 Motion, as a whole, is timely because it was
filed within one year of his resentencing.32 As noted above, this could possibly be
relevant for any challenges arising from Mr. Jones’ resentencing, but since the Court did
not impose a death penalty sentence on Mr. Jones, Criminal Rule 61 provides no
remedy.33
Mr. Jones argues that the Court should look to the United States Supreme Court’s
decision in Magwood v. Patterson,34 as a basis that the Rule 61 Motion is timely with
respect to his attack on his underlying convictions.35 However, as the State correctly
points out, Magwood only allowed the defendant to challenge matters concerning his
resentencing,36 and explicitly left unaddressed the question of whether a defendant could
challenge an underlying conviction.37 Moreover, Magwood involves a federal habeas
statute that allows a convicted person to challenge a non-capital sentence. Criminal Rule
61 does not. The Supreme Court’s decision in Magwood regarding the ability to only
challenge issues arising out of the resentencing follows a federal trend,38 and arguably a
national one.39 The Court agrees with the national trend that a resentencing of a
32 E.g., Def.’s Mot. at 6. 33 See Super. Ct. Crim. R. 61(a)(1). 34 561 U.S. 320, 322 (2010). 35 Def.’s Amended Resp. to State’s Mot. at ¶¶35-36. 36 Magwood v. Patterson 561 U.S. 320, 339 (2010). 37 Id. at 342, n. 16 (noting that “Several Courts of Appeal” have held that a convicted person who succeeds on habeas petition and is resentenced can only challenge that part of the judgment that arises as a result of the successful action). 38 See Pratt v. State, 129 F.3d 54, 63 (1st Cir. 1997); Esposito v. United States, 135 F.3d 111, 113-14 (2d Cir. 1997); Kirk v. Phelps, 596 F.Supp.2d 835, 839-40 (D. Del., 2009); In re Taylor, 171 F.3d 185 (4th Cir. 1999); Lang v. United States, 474 F.3d 348, 352-53 (6th Cir. 2007); Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997); Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985); In re Green, 215 F.3d 1195, 1196 (11th Cir. 2000). 39 See State v. Rosales, 66 P.3d 1263, 1267 (Ariz. Ct. App. 2003)(finding that movant’s previous motion did not preclude him from attacking his sentencing because it did not provide an opportunity for him to raise the claims he brings now); People v. McPherson, 53 P.3d 679, 681 (Colo. App. 2001)(finding that resentencing does not restart statutory post-conviction remedy clock for movant to challenge underlying convictions); Boyd v. State, 106 So.3d 11, 12 (Fla. Dist. Ct. App. 2013)(determining that post-conviction remedy clock runs, for the purposes of challenging sentencing, when movant’s sentence is filed); State v.
13 defendant does not “re-set the post-conviction remedy clock” with respect to the
underlying conviction.
Mr. Jones could contend that the Rule 61 Motion is timely because it asserts a
newly retroactively applicable right from either Williams v. State40 or State v. Chao41 –
arguing that his murder conviction violates the rulings in those cases. This argument
would also fail. Judgment on his underlying conviction became final when the Supreme
Court issued its mandate on March 15, 2007. Williams and Chao were decided in 200242
and 200743 respectively. As such, the Rule 61 Motion would need to have been filed
before March 15, 2008.
The Rule 61 Motion is a Successive Motion Procedurally Barred for Failing to Plead the Existence of New Exculpatory Evidence or a New Rule of Constitutional Law, Made Retroactive to Cases on Collateral Review by the United States Supreme Court or the Delaware Supreme Court.
The Rule 61 Motion is procedurally barred as successive and failing to satisfy
Criminal Rule 61(i)(5) and 61(d)(2). Criminal Rule 61 mandates that all grounds for
post-conviction relief be stated in the first motion, and that subsequent motions may only
include matters unable to be addressed by appeal or previous motion for post-conviction
relief.44 Thus, any motion containing grounds for relief that were addressed—or could
Brumfield, 152 So.3d 870 (La. 2014)(finding that sentence vacation did not allow movant to challenge underlying conviction when facts for said motion were known at time of trial); Bain v. State, 59 S.W.3d 625, 626-27 (Mo. Ct. App. 2001); State v. Dugan, 627 A.2d 1240, 1242-43 (N.J. Super. Ct. App. Div. 1996); State v. Dawson No. 2012-CA-54, 2013 WL 1870540 at *4 (Ohio Ct. App. May 3, 2013); Baker v. State, 989 S.W.2d 739 (Tenn. Crm. App. 1998); but see also, State v. Viramontes, 118 P.3d 630, 631-32 (Ariz. Ct. App. 2005)(finding that resentencing starts the clock for movant’s ability to challenge sentencing and underlying conviction). 40 818 A.2d 906 (Del. 2002). 41 931 A.2d 1000 (Del. 2007). 42 Williams, 818 A.2d at 906. 43 Chao, 931 A.2d at 1000. 44 Rule (i)(2); See also Younger v. State, 580 A.2d 552, 554-55 (Del. 1990).
14 have been addressed—in a previous motion, are deemed successive insofar as the motion
pertained to those grounds. 45
Mr. Jones first filed the First Postconviction Motion on May 21, 2008.46 The
Court denied that motion on September 3, 2008. Mr. Jones, with the assistance of the
Rule 61 Counsel, appealed the September 3, 2008 decision. The Supreme Court affirmed
the September 8, 2008 decision in Jones v. State47on March 9, 2009.48 Any and all
grounds for attacking Mr. Jones’ convictions were made, or should have been made in the
First Postconviction Motion.49 Mr. Jones’ attacks on his convictions are successive, and
the matter formerly adjudicated.
Mr. Jones makes two arguments that the Rule 61 Motion is not successive. First,
Mr. Jones contends that the Court should not have considered the First Postconviction
Motion under Criminal Rule 4750 because Mr. Jones proceeded pro se at a time when he
was represented by an attorney. Second, Mr. Jones argues that the claims made in the
Rule 61 Motion fall into a type of “interest of justice” exception.51
Criminal Rule 47 merely states a represented defendant does not have a right to
have his or her pro se motion considered. The Supreme Court has held, however, that
trial courts are given the discretion to entertain pro se motions made by represented
parties – i.e., it is within the Court’s discretion to allow a criminal defendant to
participate in his own defense even while represented by counsel.52 A fact not fully
45 Del. Super. Crim. R. 61(i)(4). 46 Def.’s Mot. at 3. 47 968 A.2d 492(table), 2009 WL 595574 (Del. 2009). 48 Def.’s Mot. at 4. 49 Super. Ct. Crim. R. 61(b)(2). 50 Def’s Amended Resp. at ¶ 26 51 Id. at ¶ 24. 52 Pringle v. State, No. 694, 2011, 2013 WL 1087633 (Del. March 13, 2013)(citing In re Haskins, 551 A.2d 65, 66 (Del. 1988)).
15 addressed by the parties is that the Court did consider whether Mr. Jones could proceed
pro se. Moreover, Mr. Jones could have, but did not, challenge that determination on
appeal.
In its September 3, 2008 decision, the Court addressed and denied Mr. Jones’
request to proceed with counsel on the First Postconviction Motion. The Court stated:
[Mr.] Jones has not demonstrated good cause for the Court to appoint counsel to assist in presenting this motion. As the record reflects, [Mr.] Jones submitted a one-hundred-and-twelve page postconviction motion in which he: (1) reviewed the record; (2) cited case law; and (3) made notes throughout numerous transcripts and letters in support of his arguments. He also included hundreds of pages of trial transcripts that he cited in his motion. Although a brief filed by an attorney would have been more succinct, [Mr.] Jones has fully developed his arguments and presented a coherent motion for the Court to analyze. Therefore, the Court declines to exercise its discretion to appoint counsel. 53
Mr. Jones appealed the September 3, 2008 decision. If the Court was wrong in its
September 3, 2008 decision regarding appointment of counsel, allowing Mr. Jones to
proceed even though appointed counsel by another judge, application of Criminal Rule
47 or otherwise, Mr. Jones (and the Rule 61 Counsel) could, and should, have raised the
issue before the Supreme Court. In any event, the Supreme Court affirmed the
September 8, 2008 decision.54
Mr. Jones’ “interest of justice” exception has not existed since Criminal Rule 61
was amended in June of 2014.55 Despite this, Mr. Jones argues that the Court should
consider this motion for post-conviction relief his first, because it is his first such motion
53 Id., 2008 WL 4173816, at *22-23 (citations omitted). 54 The Court also agrees with the State’s position that failure to have counsel on a first postconviction motion does not mean that a subsequently filed motion with counsel is not considered a successive motion. See, e.g., Washington v. State, 100 A.3d 1022(table), 2014 WL 4243590 (Del. 2014); Roten v. State, 80 A.3d 961 (table), 2013 WL 5808236 (Del. 2013). 55 DELAWARE RULES ANNOTATED, at p. 892 (2015 ed. 2014).
16 filed with the aid of counsel,56 and that the conduct of the trial judge deprived Mr. Jones
of a meaningful opportunity to raise his claims.57 In support, Mr. Jones notes that the
Supreme Court, in Guy v. State,58 found the defendant’s third motion for post-conviction
relief should not be considered successive because he had no opportunity to raise his
ineffective assistance of counsel claims.59 But Guy is inapplicable here: the Supreme
Court based its decision on the now non-existent “in the interest of justice” exception,60
and the case concerned a motion dealing with claims arising from the defendant’s post-
conviction proceedings—not the underlying convictions themselves.61
The Rule 61 Motion asserts five claims for relief: (i) the felony murder conviction
must be vacated based on the holdings of State v. Williams and State v. Chao because
evidence shows the murder was not in the furtherance of Robbery First Degree; (ii) trial
counsel was ineffective because they did not properly investigate evidence demonstrating
Mr. Jones’ innocence; (iii) trial counsel was ineffective by failing to object to two 11 Del.
C. § 3507 statements; (iv) trial counsel was ineffective during trial and on direct appeal;
and (v) the Resentence was disproportionate to other juvenile resentencings under 11 Del.
C. §§ 4204A and 4209A. Mr. Jones does not plead with particularity that new evidence
creates a strong inference that he is innocent or that a new (i.e., within the past year) rule
of constitutional law applies retroactively to invalidate his sentence. Instead, Mr. Jones
makes claims of ineffective assistance of counsel, a claim regarding two older Supreme
Court decisions and a claim regarding sentencing that cannot be raised under Criminal
56 Def.’s Amended Resp. at ¶ 36. 57 E.g., Id. at ¶¶ 25-26, 28. 58 82 A.3d 710 (Del. 2013). 59 Def.’s Amended Resp. at ¶¶27-28; Guy v. State, 82 A.3d at 715-16. 60 Guy, 82 A.3d at 714. 61 Id. at 712.
17 Rule 61(a)(1). As such, the Court holds that the Rule 61 Motion is procedural barred and
should be summarily dismissed.
CONCLUSION
Therefore, for the reasons set forth above, the Petitioner Michael Jones’ Amended
Motion for Postconviction Relief is SUMMARILY DISMISSED and the State’s Motion
for Summary Dismissal is GRANTED.
/s/ Eric M. Davis Eric M. Davis, Judge