Submitted: May 21, 2014
Darrel Page, SBI 00410556, James T. Vaughn Correctional Center, Smyrna, Delaware.
Kathleen M. Jennings, Esquire, Delaware Department of Justice, Wilmington, Delaware.
MEMORANDUM OPINION AND ORDER
Eric M. Davis Judge
1. On June 17, 2003, after a trial by jury, Mr. Page was convicted of three counts of Murder in the First Degree, one count of Robbery Second Degree, one count of Conspiracy First Degree, one count of Endangering the Welfare of a Child, and various weapons charges. After the penalty phase on the Murder in the First Degree charges, the jury recommended a death sentence for Mr. Page. On February 24, 2006, the Court sentenced Mr. Page to life imprisonment without the possibility of parole for each count of Murder in the First Degree.
2. Mr. Page appealed his convictions and sentence to the Delaware Supreme Court. He was represented by counsel separate from his trial counsel in that proceeding. In the appeal, Mr. Page contended that (1) the State violated his Sixth Amendment right to a speedy trial; (2) he received ineffective assistance of counsel at trial; and (3) the trial judge erred in admitting certain evidence -- photographs, a crime scene video, and a video of an out-of-court statement to police by Kim Still, a State's witness.
3. In an Opinion dated October 19, 2007, the Supreme Court affirmed Mr. Page's convictions and sentences. The Court held that Mr. Page was not denied his right to a speedy trial, and that this Court did not err or abuse its discretion in admitting the photographs and videos. The Supreme Court, however, did not address Mr. Page's ineffective assistance of counsel claims because that argument had not yet been considered by this Court.
4. On April 30, 2013, Mr. Page filed his third motion for postconviction relief (the "Third Motion"). This Court issued a detailed Memorandum Opinion and Order (the "Third Order") denying the Third Motion on August 13, 2013. On August 29, 2013, Mr. Page appealed the Third Order to the Supreme Court of Delaware. Subsequently, on September 19, 2013, Mr. Page seemingly filed an amendment to the Third Motion, entitled Amendment of Motion Rule 61(b)(6) (the "Amendment"). The Court purposely uses the word "seemingly" because Mr. Page had appealed the Third Order. As no other motion for postconviction relief was pending and Mr. Page was amending a Rule 61 motion, Mr. Page's September 19, 2013 filing must have been amending the Third Motion – a motion that this Court no longer had jurisdiction over because Mr. Page had already noted an appeal to the Supreme Court.
5. The Amendment, which was untimely given the Third Order and the appeal of the Third Order, supplemented the arguments made in the Third Motion. The Third Order clearly rendered moot the Amendment. Accordingly, this Court has not taken and will not take any action with respect to the Amendment.
6. The Supreme Court affirmed this Court's order denying the Third Motion on December 4, 2013. The Supreme Court entered its mandate on December 30, 2013.
7. On May 21, 2014, Mr. Page filed another motion for postconviction relief under Criminal Rule 61 (the "Fourth Motion"). In the Fourth Motion, Mr. Page contends he is entitled to relief under Rule 61(i)(5) because his right to effective assistance of counsel was violated. This marks the fourth time that Mr. Page has claimed he is entitled to relief under Rule 61 due to ineffective assistance to counsel. Here, Mr. Page contends that his 6th Amendment rights were violated because trial counsel failed to use a medical record – a toxicology report – which demonstrated that the State's purported primary witness, Reinford Muhammed, tested positive for opiates and benzodiazepines. The medical record relates to the admission of Mr. Muhammed to the hospital after Mr. Page's co-conspirator, Michael Jones, shot Mr. Muhammed in the face and left Mr. Muhammed for dead.
Legal Standard under Superior Court Criminal Rule 61
8. Superior Court Criminal Rule 61 governs motions for postconviction remedy. Before addressing the substantive merits of any claim for postconviction relief, the Court must determine whether the defendant has satisfied the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61").
9. Rule 61(i) pertains to bars of relief. Under Rule 61(i)(1), "[a] motion for postconviction relief may not be filed more than one year after the judgment of conviction is final." Under Rule 61(i)(2) any ground not asserted in a prior postconviction proceeding is barred "unless consideration of the claim is warranted in the interest of justice." Under Rule 61(i)(3), "[a]ny ground for relief not asserted in the proceedings leading to judgment of conviction … is thereafter barred, unless the movant shows (A) cause for relief from the procedural default and (B) Prejudice from violation of the movant's rights." A defect under Rule 61(i)(1), (2), or (3), will not bar a movant's "claim that the court lacked jurisdiction or . . . 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 leading to the judgment of conviction." Finally, Under Rule 61(i)(4), any ground for relief that was formerly adjudicated in the proceedings leading to conviction, postconviction proceedings, or a habeas corpus proceeding "is thereafter ...