June 19, 2013
STATE OF DELAWARE
PAUL A. FAHMY, Defendant.
Paul A. Fahmy, SBI 00436964, JTVCC, Smyrna, DelawareMichael C. Heyden, Esquire, Wilmington, Delaware James J. Kriner, Esquire; Ipek K. Medford, Esquire, Department of Justice, Wilmington, Delaware
John A. Parkins, Jr. Superior Court Judge
Defendant was convicted of attempted murder in the first degree and possession of a deadly weapon during the commission of a felony. His conviction was affirmed on direct appeal. Thereafter Fahmy filed a motion for post conviction relief in which he alleged, among other things, that he did not receive effective representation from his counsel. This court denied that application, and that denial was affirmed by the Delaware Supreme Court. Presently before the court is Fahmy's second motion for post conviction relief in which he once again alleges his trial counsel was ineffective. He also argues that (1) his pretrial identification was impermissibly suggestive; (2) this court committed plain error and abused its discretion when it allowed an expert to testify a metal fragment was removed from the victim's head; and (3) this court committed plain error when it instructed on attempt to commit a felony murder. Each of these claims is procedurally barred.
a. The ineffective assistance of counsel claims
This is the second round of ineffective assistance of counsel claims made by Defendant. The court has reviewed those claims and the affidavit filed by Fahmy's trial counsel (this is counsel's second affidavit). Although the court believes Fahmy's claims are likely frivolous, it cannot reach those merits because they are procedurally barred.
Rule 61(i)(4) prohibits re-litigation of issues which were previously decided. In 2008 Fahmy claimed in a Rule 61 motion that his trial counsel was ineffective because (1) counsel failed to move for a sentence modification; (2) failed to adequately confer with him before trial; (3) talked to witnesses without his consent; and (4) failed to file a motion to sever his trial from his codefendant's trial. As mentioned earlier those claims were denied by this court and that denial was affirmed by the Supreme Court. Now he claims his counsel was ineffective by (1) allowing improper questioning of a detective;(2) failing to subpoena certain witnesses; (3) failing to challenge ballistics testimony; and (4) failing to investigate physical evidence. This court's denial of Fahmy's previous Rule 61 motion based upon ineffective assistance of counsel bars his latest iteration of that claim. In State v. Wright the defendant challenged the language used by the interrogating officer when administering the Miranda warnings to the defendant. Defendant's confession was challenged in several proceedings, albeit never on the basis of the specific language used by the officer when he gave those warnings. The Supreme Court held that this argument was barred. "[A] defendant is not entitled to have a court re-examine an issue that has been previously resolved simply because the claim is refined or restated." Accordingly Fahmy's attempt to re-litigate his Sixth Amendment claim simply by conjuring new ways in which his counsel may have been ineffective is procedurally barred.
b. Improperly suggestive identification
Defendant argues for the first time that the victim's identification of him was made under improperly suggestive circumstances. This claim is barred by Rule 61(i)(1), (2) and (3). Fahmy relies upon Rule 61(i)(5) to excuse these procedural defaults. That portion of the rule requires Fahmy to show "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." Here Fahmy's claim that his identification was the result of unnecessarily suggestive circumstances is based upon his condition that the victim was in a hospital; bed and allegedly under the effects of alcohol and pain killers when he identified Fahmy. This falls far short of the requisite showing under Rule 61(i)(5).
(3) Allowing expert to testify about metal fragment found in victim's head
Fahmy argues that this court should have sua sponte excluded expert testimony that a metal fragment removed from the victim's head was a bullet because there allegedly was no scientific corroboration of the expert's conclusions. The portion of the transcript upon which Fahmy relies merely shows that the expert did not match the bullet to a gun because no gun was recovered. This does not come close to the showing required by Rule 61(i)(5).
4. Instructing on attempt to commit felony murder
Fahmy contends that he was denied his constitutional rights when the court ostensibly instructed on "attempt to commit felony murder." No such instruction was given, and therefore Fahmy cannot satisfy 61(i)(5).
For the foregoing reasons Defendant's Rule 61 motion is