State v. Drake ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. No. 0509011266A
)
)
STEVEN DRAKE, )
)
Defendant. )
Submitted: January 3, 2023
Decided: February 6, 2023
COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED
Diana Dunn, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.
Steven Drake, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
O’CONNOR, Commissioner
1
This 6th day of February, 2023, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.
BACKGROUND FACTS
On May 2, 2006, after a five-day trial, a jury found Defendant guilty of Rape
First Degree, Robbery First Degree, Assault Second Degree, Burglary Second
Degree, Attempted Robbery First Degree, five counts of Wearing a Disguise During
the Commission of a Felony, and five counts of Possession of a Firearm During the
Commission of a Felony.
On August 4, 2006, the Court sentenced Defendant to serve his natural life in
prison for the Rape First Degree conviction, and thirty-two years of incarceration for
the other convictions. The Delaware Supreme Court affirmed Defendant’s
convictions on direct appeal.1
On November 24, 2008, Defendant filed his first pro se Motion for
Postconviction Relief, raising three ineffective assistance of counsel claims: (1)
counsel did not assist him in trial, and counsel did not ask witnesses the specific
questions Defendant wanted him to ask; (2) counsel did not seek to suppress
1
Drake v. State, 928 A.2d 768 (Del. 2007). Defendant argued, on direct appeal, that “the trial
judge violated his right to self-representation when she ‘forced’ him to reconcile his differences
with his court appointed attorney after he knowingly and intelligently waived his Sixth
Amendment right to counsel.” Id. at 769. Defendant also claimed, “the trial court erred when it
refused to instruct the jury on the claim of right defense provided by 11 Del. C. §857.” Id.
2
evidence and failed to object to the presentation of impermissibly admitted evidence;
and (3) counsel did not call or contact any witnesses on his behalf. 2 The Superior
Court summarily dismissed Defendant’s postconviction motion, concluding
Defendant’s allegations were “completely conclusory” and the motion was
procedurally barred as untimely filed.3
On November 9, 2022, Defendant filed a second pro se Motion for
Postconviction Relief,4 claiming the Superior Court denied his Sixth Amendment
right to represent himself at trial, a decision which he characterizes as a “structural
defect.”5 In effect, Defendant re-cycles the argument presented on direct appeal to
the Delaware Supreme Court, that the Court violated his Sixth Amendment right to
represent himself at trial. This time around, Defendant claims appellate counsel was
ineffective for not arguing the Court’s decision to allow him to represent himself
was a “structural defect” – allowing him to overcome the procedural bars of Rule
61(i)(1)-(4).6 As will be discussed below, Defendant’s argument is misplaced, and
his claim is procedurally barred.
2
State v. Drake, 2008 WL 5264880, at *1 (Del. Super. Dec. 15, 2008).
3
Id. at *1-2. Defendant did not avoid the procedural bar, because he could not demonstrate a
colorable constitutional claim pursuant to the version of Rule 61(i)(5) in effect at the time the
motion was filed.
4
Docket Item (“DI”) 58, November 9, 2022 Pro Se Motion for Postconviction Relief.
5
DI 59, November 9, 2022 Memorandum to Support the Application for Postconviction Relief.
6
The current version of Superior Court Criminal Rule (“Rule”) 61(i)(5) provides that the
procedural bars identified in Rule 61(i)(1)-(4) shall not apply either to a claim that the court lacked
jurisdiction or a claim that satisfies the pleading requirements of Rule 61(d)(2) – that new evidence
exists which creates a strong inference that Defendant is actually innocent in fact, or that a new
3
PROCEDURAL BARS
In any motion for postconviction relief, this Court must first determine
whether a defendant has satisfied the procedural requirements of Superior Court
Criminal Rule 61 before giving consideration to the merits of the underlying claims.7
Rule 61(i)(1) prohibits the Court from considering a motion for postconviction relief
unless it is filed within one year after the judgment of conviction is final.8 Rule
61(i)(2) prohibits the filing of repetitive motions for postconviction relief, unless:
under Rule 61(d)(2)(i), the movant “pleads with particularity that new evidence
exists that creates a strong inference” of actual innocence; or, under Rule
61(d)(2)(ii),“that a new rule of constitutional law, made retroactive to cases on
collateral review,” applies to the movant’s case.9
Rule 61(i)(3) provides that “any ground for relief that was not asserted in the
proceedings leading to the judgment of conviction, as required by the rules of this
Court, is thereafter barred, unless the movant shows (a) cause for relief from the
procedural default and (b) prejudice from the violation of movant’s rights.”10
rule of Constitutional law, made retroactive to cases on collateral review by the United States
Supreme Court or the Delaware Supreme Court applies to movant’s case. See Rule 61(i)(d)(2)(i)-
(ii).
7
Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (quoting Shelton v. State, 744 A.2d 465, 474 (Del.
1999)).
8
Super. Ct. Crim. R. 61(i)(1). A judgment of conviction is final “when the Supreme Court issues
a mandate or order finally determining the case on direct review.” Drake, 2008 WL 5264880, at
*1.
9
Super. Ct. Crim. R. 61(i)(2).
10
Super. Ct. Crim. R. 61(i)(3).
4
Rule 61(i)(4) provides that “[a]ny 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.”11
Rule 61(i)(5) provides that any claim barred by Rule 61(i)(1)-(4) may
nonetheless be considered if the claim is jurisdictional or otherwise satisfies the
pleading requirements of Rule 61(d)(2)(i) or (d)(2)(ii).12
Defendant’s present Motion for Postconviction Relief was filed on November
9, 2022. Defendant’s judgment of conviction became final on June 28, 2007, when
the Supreme Court issued its mandate. Pursuant to Rule 61(i)(1), Defendant’s
Motion is filed fifteen years too late. Moreover, Defendant has failed to allege any
facts implicating the exception to the Rule 61(i)(1) procedural bar.13 Defendant’s
claim is procedurally barred as untimely.
Defendant’s Motion is also repetitive pursuant to Rule 61(i)(2), as this is his
second postconviction motion. Defendant could potentially overcome this
procedural bar by demonstrating this Motion satisfies the pleading requirements of
Rule 61(i)(2), but he has failed tplead with particularity that new evidence exists
11
Super. Ct. Crim. R. 61(i)(4).
12
Super. Ct. Crim. R. 61(i)(5).
13
Super. Ct. Crim. R. 61(i)(1). To avoid the procedural bar, Defendant must “allege facts
supporting a claim that there exists a retroactively applicable right that is newly recognized after
the judgment of conviction was final, more than one year after the right was first recognized by
the Delaware Supreme Court or the U.S. Supreme Court.” Id.5
which creates a strong inference that he is factually innocent,14 or plead with
particularity a claim that a new rule of constitutional law, made retroactive to cases
on collateral review by the Delaware Supreme Court or the U.S. Supreme Court,
applies to his case and renders his conviction invalid.15 Defendant has not met the
exacting pleading standards of Rule 61(i) or Rule 61(d)(2), and the claim is
procedurally barred as repetitive.
Pursuant to Rule 61(i)(4), Defendant’s claim is procedurally barred because it
was formerly adjudicated on direct appeal. On direct appeal, Defendant’s appellate
counsel argued the Court violated Defendant’s Sixth Amendment right to represent
himself by convincing him to allow counsel to represent him after he had previously
been permitted to represent himself at trial. Now, Defendant raises a virtually
identical claim, but argues appellate counsel was ineffective for not claiming the
denial of his Sixth Amendment right to self-representation is a “structural error.”
The record does not support Defendant’s claim.
On direct appeal in 2007, the Delaware Supreme Court concluded the trial
judge did not force or coerce Defendant into accepting counsel he previously
dispatched.16 In fact, the Delaware Supreme Court concluded Defendant “clearly
14
See Id.15
See Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
16
Drake, 929 A.2d at 772.
6
revoked his request to represent himself.”17 Defendant’s claim in the second Motion
for Postconviction Relief was formerly adjudicated on direct appeal.
Defendant seeks to overcome the procedural bar in Rule 61(i) by relying on a
prior version of Rule 61(i)(5).18 Specifically, prior to June 4, 2014, Rule 61(i)(5)
allowed defendants relief from the procedural bars noted in Rule 61(i)(1)-(4) if they
could show the court lacked jurisdiction or that the defendant made a “colorable
claim that there was a miscarriage of justice because of a constitutional violation.”
But, on June 4, 2014, Rule 61(i)(5) was amended. The amended Rule removed the
“miscarriage of justice” language and substituted the following:
“The 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.”19
Rule 61(d)(2)(i)-(ii) does not help Defendant’s cause. To invoke this Rule the
Defendant must claim the court lacked jurisdiction, or plead with particularity a
claim that a new rule of constitutional law was made retroactive to cases on collateral
review by the Delaware Supreme Court or the U.S. Supreme Court.20 Defendant has
not done so.
17
Id.
18
This Court is required to apply the version of Rule 61(i)(5) in effect at the time Defendant filed
his Motion. Jones v. State, 2015 WL 6746873, at *1, n. 4 (Del. Nov. 14, 2015)(citing Order
Amending Rule 61 of the Superior Court Rules of Criminal Procedure (Del. Super. June 4,
2014)).
19
Super. Ct. Crim. R. 61(i)(5).
20
Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
7
CONCLUSION
Defendant’s postconviction claim is procedurally barred pursuant to Rules
61(i)(1), 61(i)(2), and 61(i)(4), and Defendant’s claim that appellate counsel
provided deficient representation in not preserving his Sixth Amendment right to
self-representation is not supported by the record. The Delaware Supreme Court
expressly rejected this claim on direct appeal.21
For all of the aforestated reasons, I recommend the Motion for Postconviction
Relief should be SUMMARILY DISMISSED.
IT IS SO RECOMMENDED.
/s/ Martin B. O’Connor
Commissioner Martin B. O’Connor
oc: Prothonotary
21
Drake, 929 A.2d at 772.
8