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State v. Barrow

Superior Court of Delaware, New Castle

August 25, 2014

STATE OF DELAWARE
v.
HECTOR BARROW Defendant.

Submitted: June 20, 2014

Upon Defendant's Third Motion for Post-conviction Relief.

Hector Barrow, pro se, Smyrna, DE.

Elizabeth R. McFarlan, Esquire, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorney for the State.

ORDER

FERRIS W. WHARTON, J.

This 25th day of August, 2014, upon consideration of Defendant's third Motion for Post-conviction Relief, the State's response and the record in this matter, it appears to the Court that:

1. Defendant Hector Barrow filed this Motion for Post-conviction Relief, his third, on January 28, 2014, alleging that his trial counsel was ineffective.[1] Specifically, he alleges that trial counsel: (i) failed to subpoena an unnamed "key witness"; and (ii) failed to object to testimony regarding the Jamaican language, testimony which related to the identification of the person who shot the victim. Additionally, he contends that the Court should have appointed counsel for assistance with his first post-conviction relief effort.[2]
2. On June 25, 1995, Defendant, and two accomplices, Jermaine Barnett and Lawrence Johnson, shot and killed Thomas Smith, during the commission of a robbery of Smith's gun shop.[3] On August 7, 1995, Defendant was indicted and charged with three counts of First Degree Murder (one count of intentional murder and two counts of felony murder), Robbery First Degree, Burglary Second Degree, Conspiracy First Degree, Conspiracy Second Degree and Possession of a Firearm during the Commission of a Felony.[4]
3. Following a four-week trial, Defendant was convicted on all counts.[5]The murder convictions resulted in the imposition of death sentences.[6]On direct appeal, the Delaware Supreme Court reversed the intentional murder conviction and sentence and the felony murder sentences, while affirming the felony murder convictions.[7] The Court ordered a new trial on the intentional murder charge and a new penalty hearing for the felony murder sentences.[8]
4. On remand, the State elected to proceed solely with the penalty hearing on the felony murder convictions. A new trial on the intentional murder charge was waived.[9] A second penalty hearing occurred in June of 2001. On January 4, 2002, the Court imposed a life sentence on the felony murder convictions.[10] Barrow did not appeal this sentence.[11]
5. On January 27, 2005, Defendant filed his first motion for post-conviction relief, alleging ineffective assistance of counsel, among other things.[12] That motion was dismissed on August 5, 2005.[13] On February 22, 2006, Defendant appealed the Court's decision, raising only a claim for ineffective assistance of counsel.[14] On January 5, 2007, the Supreme Court affirmed that decision.[15]
6. Defendant filed his second motion for post-conviction relief on August 29, 2007, raising grounds other than ineffective assistance of counsel.[16] That motion was denied on October 31, 2008.[17] Defendant filed an untimely appeal on December 9, 2008, and on January 13, 2009, the Supreme Court dismissed that appeal.[18]
7. Under the Delaware Superior Court Rules of Criminal Procedure, a motion for post-conviction relief can be barred for time limitations, repetitive motions, procedural defaults, and former adjudications.[19] A motion exceeds time limitations if it is filed more than one year after the conviction becomes final or if it asserts a newly recognized, retroactively applied right more than one year after it was first recognized.[20] A motion is considered repetitive and therefore barred if it asserts any ground for relief "not asserted in a prior post-conviction proceeding."[21] Repetitive motions are only considered if it is "warranted in the interest of justice."[22] Grounds for relief "not asserted in the proceedings leading to the judgment of conviction" are barred as procedurally defaulted unless the movant can show "cause for relief" and "prejudice from [the] violation."[23] Grounds for relief formerly adjudicated in the case, including "proceedings leading to the judgment of conviction, in an appeal, in a post-conviction proceeding, or in a federal habeas corpus hearing" are barred.[24] Former adjudications are only reconsidered if "warranted in the interest of justice."[25]
8. Before addressing the merits of Defendant's third Motion for Post-conviction Relief, the court must first apply the procedural bars of Superior Court Criminal Rule 61(i).[26] If a procedural bar exists, then the Court will ...

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