Opinion
ID #9703005786.
Submitted: May 19, 2004.
Decided: August 2, 2004.
On Defendant's Pro Se Amended Motion for Postconviction Relief. DENIED.
ORDER
On this 2nd day of August, upon Defendant's amended motion for postconviction relief filed by James Trump ("Trump"), it appears to the Court that:
1. Trump was convicted on July 8th, 1998 of fifteen counts of Unlawful Sexual Intercourse, First Degree. Trump was sentenced on December 4, 1998 to two hundred and twenty-five years in prison. Trump's conviction became final on June 9, 2000 when the Delaware Supreme Court denied his direct appeal of his conviction. Trump filed a motion for postconviction relief on September 6, 2000. In January 2001, Trump requested that his motion for postconviction relief be withdrawn "until a later date." This Court granted Trump's request to withdraw his petition. In 2003 Trump filed a writ of habeas corpus with the United States District for the District of Delaware. The District Court denied Trump's habeas petition on November 14, 2003. On December 15, 2003, Trump, acting pro se, filed a second motion for postconviction relief in this Court. Trump then filed an amended motion for postconviction relief on January 22, 2004. In April 2004, Trump's attorney of record at trial, Raymond J. Otlowski, Esquire, filed an affidavit with this Court addressing Trump's ineffective assistance of counsel claim.
Trump v. State, 753 A.2d 963 (Del. 2000).
Trump's Letter of January 19, 2001 to this Court, Dkt. # 75.
The September 6, 2000 motion for postconviction relief was filed within the three-year statute of limitations period of Rule 61; however, after withdrawing the motion, Trump failed to follow up on the petition by re-filing within the statute of limitation. This situation is analogous to a defendant filing a motion for postconviction relief within the statute of limitations, which is denied by this Court, and then filing another motion for postconviction relief beyond the statute of limitation.
Trump v. Kearney, 2003 WL 22769598 (D.Del).
Counsel stated in his affidavit that "the only thing I would do if I tried this case again, would be to come down as hard as physically and mentally possible to encourage Mr. Trump to accept the State's plea offer . . . [as] [h]e would have been out of jail shortly after his sentencing."
2. Before addressing the merits of any claim(s) raised in a motion seeking postconviction relief, the Court must first consider the procedural elements of Superior Court Criminal Rule 61. To protect the integrity of the procedural rules, the Court should not consider the merits of postconviction claims where a procedural bar exists.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, Del. Super., Cr.A. No IN-90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
Under Superior Court Criminal Rule 61(i)(1), a motion for postconviction relief "may not be filed more than three years after judgment of conviction is final. . . ." The procedural bar of Superior Court Criminal Rule 61(i)(1) may potentially be overcome by the "fundamental fairness" exception in Superior Court Criminal Rule 61(i)(5), but that exception is narrow and is applied only in limited circumstances. This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal.
Super. Ct. Crim. R. 61(i)(1).
Younger, 580 A.2d at 555.
Webster v. State, 604 A.2d 11364, 1366 (Del. 1992).
Rule 61(i)(2) provides that "[a]ny ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice." The Supreme Court has held that a defendant must raise all grounds in the initial motion for postconviction relief to support the appeal or those grounds will be deemed waived and will not be addressed by the Supreme Court on the appeal.
Super. Ct. Crim. R. 61(i)(2).
Slade v. State, 818 A.2d 970 (Del. 2003) (holding that to the extent a post conviction relief defendant has not argued other grounds to support his appeal that are raised previously, those grounds are deemed waived and will not be addressed by the Supreme Court on the appeal).
If a movant presents a genuine "colorable claim," it will be sufficient to avoid dismissal of the claim and will require the Court to examine the evidentiary issues. However, once a movant makes a showing that he is entitled to relief, thereby avoiding summary dismissal of his motion, an evidentiary hearing is not necessarily required. The Court may instead elect to examine the evidentiary issues presented in the submissions of the party and in the record without a hearing. Whether a movant has presented a "colorable claim" may be determined on the basis of the postconviction motion itself.
State v. Smith, 2004 Del. Super. LEXIS 208 * 10-11.
State, 2004 Del. Super. LEXIS 208 * 11.
State, 2004 Del. Super. LEXIS 208 * 11.
State, 2004 Del. Super. LEXIS 208 *11.
However, "[i]n a postconviction proceeding, the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief." This Court has held that "[t]he petitioner bears the burden of establishing a `colorable claim' of injustice. (Citation omitted). While `colorable claim' does not necessarily require a conclusive showing of trial error, mere `speculation' that a different result might have been obtained certainly does not satisfy the requirement."
Bailey, 588 A.2d at 1130 (citing Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Webster, 604 A.2d at 1366.
A defendant "must support . . . ineffective assistance of counsel claims with concrete allegations of actual prejudice, otherwise the movant risks summary dismissal." Superior Court Criminal Rule 61(d)(4) provides that if it "plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified."
Younger, 580 A.2d at 556.
Super. Ct. Crim. R. 61(d)(4).
3. Trump's motion for postconviction relief is denied as procedurally barred by Rule 61(i)(1) because it was filed more that three years after his conviction became final. Trump's conviction became final on June 9, 2000 when the Delaware Supreme Court denied his direct appeal of his conviction. Trump filed this motion for postconviction relief on December 15, 2003. Trump concedes that "his first application for postconviction relief [was] unfortunately filed three years after the final judgment on direct appeal which means that his application is procedurally barred under Rule 61(i)(2)."
Defendant's Motion for Postconviction Relief at 5 (hereinafter "Def's Mot. at ___").
4. Trump argues, however, that his petition should be heard by this Court pursuant to Rule 61(i)(5). Trump argues that there has been a "fundamental miscarriage of justice" because he was denied an opportunity to present evidence that would exculpate him. Trump claims that he was denied Brady material in the form of the victim's diary, which Trump asserts would show that the accusations against him were fabricated by the victim's mother and that "all the State's primary witnesses made false statements and testified falsely against [him] during trial." Trump asserts that "this diary is evidence of actual innocence because it contains specific dates and times of all daily activities of [the victim]." Trump further asserts that "most of the people listed on the [witness list provided by Trump to counsel were] never notified or interviewed" by trial counsel. Trump also argues that his trial counsel "waived his constitutional right to obtain and present [the diary as] actual innocence." Trump relies on a case from the United States Court of Appeals for the Fifth Circuit for the proposition that relief can be granted on a procedurally barred petition "where the petitioner can make a persuasive showing that he is actually innocent of the charges."
Def's Mot. at 5-6.
Def's Mot. at 6-7.
Def's Mot. at 15.
Def's Reply Br. at 8.
Def's Reply Br. at 7.
Def's Reply Br. at 6. Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) (holding that "[t]he fundamental miscarriage of justice exception to the rule that state procedural default bars federal habeas review is limited to cases where the petitioner can make a persuasive showing that he is actually innocent of the charges against him.")
5. The State argues that Trump's petition should be denied because 1) it was untimely filed and 2) the claims have been formerly adjudicated. The State contends that under Rule 61(i)(1) Trump is procedurally barred from bringing the instant petition. The State asserts that Trump's petition for postconviction relief which was filed December 15, 2003 and amended on January 22, 2004 is beyond the three year statute of limitation, which expired on June 9, 2003. The State further argues even if the petition was not time-barred, then it is barred by Rule 61(i)(2) and (4) because his claim of perjured testimony is "effectively a sufficiency of the evidence claim," which has previously been decided.
State's Answer Letter Memorandum at 2.
6. Trump is not entitled to relief pursuant to Rule 61(i)(5) because he has not shown that there is a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the conviction." Trump's argument is based almost entirely upon the victim's diary and the information that may be contained in that diary. He claims, without any support, that the diary will contain "specific dates and times of all daily activities" of the victim.
Trump's argument appears to be premised upon the idea that because some of the original charges against him were nolle prossed because the dates of the alleged sexual conduct were alleged to have occurred during the time Trump was in prison that discrepancies will be found between the alleged dates in the diary and actual events. He asserts that if there are dates in the diary that relate to sexual contact between Trump and the victim, those dates will either match the dates that coincide with the dates he was charged with committing the crimes or the dates will be different. If the dates are the same, then the diary does not add any new evidence that was not already known to Trump at the time of trial. If the dates are different, then this would be evidence that would go only to the credibility of the witnesses' testimony. The United States District Court for the District of Delaware in the habeas corpus action filed by Trump addressed the issue of credibility and found that the victim's "testimony was somewhat imprecise, but she was subject to impeachment through cross-examination." The District Court held that "credibility determinations are solely within the province of the factfinder."
Trump v. Kearney, 2003 WL 22769598 *1 (D.Del).
Trump, 2003 Wl 22769598 *7.
Some of the claims of a "fundamental miscarriage of justice" are based on supposed perjured testimony by the State's witnesses, which Trump claims the State knew was false and used anyway. As the State argues, the claims of perjury are merely a recasting of Trump's sufficiency of the evidence claims, which have previously been adjudicated. There is no new evidence to support the claims of perjured testimony. The claims of perjury are based on possible inconsistences in testimony, an unsubstantiated claim that the nolle prosequi of some of the charges was a pretext to conceal false accusations and an unsupported claim that the victim's mother somehow "solicited" the testimony of Ronald Lyons. This Court notes the District Court's conclusions in Trump's habeas corpus action, which held that the victim's testimony was sufficient to establish the elements of the crime and that the sexual contact actually occurred; Lyons' testimony provided additional evidence that the sexual intercourse occurred; and the credibility of testimony is a determination to be made by the jury.
Lyons testified that Trump confessed to him that he had sexual contact with the victim.
Trump, 2003 Wl 22769598 *6.
Trump's claims relating to the actions of his trial counsel in relation to the alleged perjury are attempts by Trump to reargue his claim of ineffective assistance of counsel, which was formerly adjudicated by the Delaware Supreme Court. The additional claims of ineffective assistance of counsel made by Trump in the instant petition were not raised below and are barred by Rule 61(i)(2). As far as the claims against trial counsel in relation to the alleged perjured testimony and the supposed exculpatory nature of the victim's diary constituting "fundamental miscarriage of justice," this Court denies the claims because Trump has not shown that there is a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the conviction."
For the foregoing reasons, Trump's motion for postconviction relief is DENIED.