Date Submitted: April 22, 2014
ORDER DENYING DERIOUS J. JOHNSON'S MOTION FOR POSTCONVICTION RELIEF
ERIC M. DAVIS, JUDGE
This 23rd day of July, 2014, upon consideration of the Motion for Postconviction Relief (the "Rule 61 Motion") filed by Derious J. Johnson; the facts and legal authorities set forth in the Rule 61 Motion; and, the entire record in this case:
1. On October 21, 2003, a jury found Mr. Johnson guilty of Rape First Degree. The State filed a motion to declare Mr. Johnson a habitual offender pursuant to 11 Del. C. § 4214(b).
2. This Court sentenced Mr. Johnson to life imprisonment on December 5, 2003. Mr. Johnson filed an appeal to the Delaware Supreme Court, arguing the Court erred in allowing the prosecutor to cross-exam Mr. Johnson with respect to his previous felony convictions. The Supreme Court ruled the Court's error, if any, was not clear error and affirmed Mr. Johnson's convictions and sentence. The Supreme Court filed its Mandate on August 11, 2004.
3. Mr. Johnson filed his first pro se motion for postconviction relief on October 14, 2004. Mr. Johnson asserted numerous claims, including claims of ineffective assistance of counsel. This Court characterized his assertions under the postconviction motion as similar to those made in previous filings. This Court denied Mr. Johnson's first motion for postconviction relief on December 21, 2004.
4. Mr. Johnson then filed a second motion for postconviction relief, which was docketed by the Prothonotary on June 21, 2010. In Mr. Johnson's second motion, Mr. Johnson asserted four grounds for relief, all alleging ineffective assistance of counsel – "deficient performance, " failure to investigate and interview witnesses, failure to consult an expert and, finally, failure of counsel to "prepare a coherent defense."
5. This Court referred the second motion for postconviction relief to a commissioner.The commissioner entered an order of briefing, received an affidavit from trial counsel, a brief from the State and a responsive filing from Mr. Johnson. On March 8, 2011, the commissioner submitted Commissioner's Findings of Fact and Recommendations. The commissioner recommended that Mr. Johnson's second motion for postconviction be summarily dismissed under Criminal Rule 61(i)(4). Specifically, the commissioner found that Mr. Johnson was attempting to reargue ineffective assistance of counsel on slightly different terms and noted that "[t]he Delaware Supreme Court has held that 'a defendant is not entitled to have a court re-examine an issue simply because the claim is refined or restated.'"
6. On February 23, 2012, Mr. Johnson sought relief with this Court under Criminal Rule 35. Mr. Johnson argued that his sentence needed to be modified because the State did not meet its burden under 11 Del. C. § 4214(b). Specifically, Mr. Johnson argued:
On 10/21/2003 Movant Derious J. Johnson was sentenced to life in prison because of being convicted of his 3rd subsequent felony, which moved the State of Delaware to pursue the 'Habitual offender under 11. Del.C. § 4214(B). Using movants prior (1998) "P.W.I.D." conviction as one of the predicate felonys needed to declare movant an Habitual offender. However, at movant sentencing the State did not meet there burden of proof. At the sentencing proceeding, the State only offered into evidence a court docket sheet and a indictment of movants prior 1998 conviction case # 9709002535 dated 05/04/98. However, the state failed to present the text of the guilty plea that movant plead guilty to that formed the base of the 1998 conviction.
Mr. Johnson contended that the State did not provide substantial evidence as necessary under 11 Del. C. § 4214(b) and relied upon Morales v. State, 696 A.2d 390 (Del. 1997), and certain Federal holdings, in support of his arguments. On March 7, 2012, this Court denied Mr. Johnson's request to modify his sentence under Criminal Rule 35, holding that the sentence was appropriate for all the reasons stated a the time of sentencing, that no additional information had been presented to the Court that would warrant a reduction or modification of the sentence AND that the Court's habitual offender status determination was legally correct. Mr. Johnson did not appeal the Court's March 7, 2012 order.
7. Mr. Johnson has also attempted to raise his "lack of substantial evidence" argument directly with the Supreme Court of Delaware. On or about April 26, 2012, Mr. Johnson petitioned the Supreme Court for a writ of certiorari. In denying the petition, on May 9, 2012, the Supreme Court held:
In this case, Johnson has challenged his sentencing as an habitual offender on several occasions. Most recently, Johnson filed a motion for correction of sentence, which the Superior Court denied on March 7, 2012. Johnson did not file an appeal from that ruling. Because Johnson had available a remedy of a direct appeal, he may not now seek to invoke this Court's original jurisdiction through the certiorari process. Because Johnson has failed to meet the threshold requirements for the issuance of a writ of certiorari, we conclude that his petition must be dismissed.
8. Now before the Court is the Rule 61 Motion – Mr. Johnson's third request for postconviction relief. In the Rule 61 Motion, Mr. Johnson asserts three grounds for relief under Criminal Rule 61 – procedural errors that amount to constitutional violations, insufficient evidence and ineffective assistance of counsel. While framed differently, Mr. Johnson basically makes the same claims asserted in his first two motions for ...