CORY D. WASHINGTON, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee
Submitted July 7, 2014
Case Closed September 11, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below--Superior Court of the State of Delaware, in and for New Castle County. Cr. ID 0808021606.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Randy J. Holland, Justice
This 26th day of August 2014, upon consideration of the appellant's opening brief, the appellee's motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Cory D. Washington, filed this appeal from the Superior Court's summary dismissal of his second motion for postconviction relief and denial of his motion for appointment of counsel. The State has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Washington's opening brief that his appeal is without merit. We agree and affirm.
(2) In February 2009, a Superior Court jury found Washington guilty of Possession with Intent to Deliver Heroin, Delivery of Heroin, and Loitering. During the trial, Washington moved for judgment of acquittal on the delivery and loitering charges. After the trial, Washington filed a motion for judgment of acquittal on the delivery charge. The Superior Court denied the motion as untimely. Washington was sentenced to a total of ten years of Level V incarceration, followed by six months of Level IV supervision, and a fine of $300.
(3) On direct appeal, this Court assumed without deciding that Washington's motion for judgment of acquittal was timely and concluded that there was sufficient evidence to prove Delivery of Heroin.
(4) Washington filed his first motion for postconviction relief on January 10, 2011. In this motion, Washington claimed that the Superior Court erred in failing to poll the jury after its verdict, the trial judge was biased in denying the motion for judgment of acquittal as untimely and should have recused himself, and Washington should not have been charged with loitering because that charge did not appear in the police report or affidavit of probable cause. Washington did not raise any ineffective assistance of counsel claims. The Superior Court referred the motion to a commissioner for a report and recommendation. The commissioner concluded that Washington's postconviction motion was procedurally barred under Superior Court Criminal Rule 61 (" Rule 61" ) and without merit. The commissioner recommended denial of the motion. The Superior Court accepted the commissioner's recommendation and denied the motion. Washington did not appeal the denial of his first postconviction motion.
(5) On November 19, 2013, Washington filed a motion for appointment of counsel and his second motion for postconviction relief. Washington argued that appointment of counsel was necessary because he was raising ineffective assistance of counsel claims for the first time, the importance of counsel under such circumstances was recognized in Martinez v. Ryan  and Holmes v. State, and he could not properly present ineffective assistance of counsel claims without the assistance of competent counsel. In his second postconviction motion, Washington claimed that his counsel was ineffective because he: (i) failed to conduct a meaningful investigation; (ii) failed to challenge the indictment based upon the lack of drugs in the purchaser's possession and the lack of drugs or marked money in Washington's physical possession; (iii) did not file a motion to suppress the testimony of the purchaser; (iv) failed to explore why the police did not obtain and test the residue of a white substance on the purchaser's face; (v) did not argue that the purchaser could have obtained the drugs from somebody other than Washington; (vi) filed an untimely motion for judgment of acquittal; (vii) failed to offer evidence that drugs and marked money were not found in Washington's physical possession; (viii) failed to request polling of the jury; and (ix) did not challenge the loitering charge.
(6) The Superior Court denied Washington's motion for appointment of counsel because he had previously filed a motion for postconviction relief. The trial court also denied Washington's second postconviction motion on the grounds that it was procedurally ...