Submitted: January 9, 2015
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr. ID 1007020835
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
Karen L. Valihura Justice
This 20th day of March 2015, after careful consideration of the parties' briefs and the record below, it appears to the Court that:
(1) The appellant, Andre Peters, filed this appeal from the Superior Court's denial of his first motion for postconviction relief under Superior Court Criminal Rule 61. We conclude that Peters' claims are untimely under Rule 61(i)(1) and that his claims of ineffective assistance of counsel do not establish a miscarriage of justice under Rule 61(i)(5). Accordingly, we affirm the Superior Court's judgment.
(2) The record reflects that Peters was arrested on August 6, 2010 and indicted on three counts of Robbery in the First Degree, four counts of Possession of a Firearm During the Commission of a Felony, one count of Burglary in the First Degree, and one count of Conspiracy in the Second Degree. The charges against Peters stemmed from a home invasion robbery in the late evening hours of July 21, 2010. Three men forcibly entered a dwelling in which three adults and three children resided. One of the intruders threatened the occupants with a gun. The intruders stole money, cell phones, and prescription drugs. One of the intruders, Christopher Crawford, was an acquaintance of the one of the victims. Crawford was arrested two days later. During an interview with police, Crawford admitted to committing the home invasion with another man named "Dre." He told police that after the home invasion, he and Dre rented a room at the Econo-Lodge on Route 13. Police went to the motel and found that Peters had rented a room there at 12:50 AM on July 22, 2010. At trial, all three adult victims identified Peters as the intruder who threatened them with a gun.
(3) The jury convicted Peters of all charges. The Superior Court sentenced him to a total period of thirty years at Level V incarceration to be suspended after serving twenty-three years in prison for a period of probation. We affirmed Peters' convictions and sentence on direct appeal.We issued the mandate following Peters' direct appeal on January 4, 2012.
(4) On January 7, 2013, Peters filed his first motion for postconviction relief, raising several claims of ineffective assistance of counsel. In June 2013, Peters requested the appointment of counsel, which the Superior Court Commissioner granted. In January 2014, Peters' appointed counsel filed a motion to withdraw under Superior Court Criminal Rule 61(e)(2), asserting that there were no arguable issues he could raise on Peters' behalf. After considering postconviction counsel's motion to withdraw, Peters' issues, his trial counsel's affidavit, and the State's response thereto, the Commissioner issued a report recommending that Peters' motion for postconviction relief be denied and that counsel's motion to withdraw be granted. The Superior Court accepted the Commissioner's report and recommendation, granted counsel's motion to withdraw and denied Peters' motion for postconviction relief. This appeal followed.
(5) When reviewing the Superior Court's denial of postconviction relief, this Court first must consider the procedural requirements of Rule 61 before addressing any substantive issues. Rule 61(i)(1) bars any claim for postconviction relief that is not filed within one year of a final judgment of conviction. A conviction becomes final when this Court issues the mandate following a defendant's direct appeal. In this case, the Court issued the mandate following Peters' direct appeal on January 4, 2012. Peters did not file his motion for postconviction relief until January 7, 2013, several days after the expiration of the one-year limitations period. Accordingly, in order to overcome the procedural bar of Rule 61(i)(1), Peters must establish 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 his conviction.
(6) In his opening brief, Peters raises several constitutional claims asserting the ineffectiveness of his appointed counsel. Thus, even though the Superior Court did not find Peters' motion to be untimely under Rule 61(i)(1), there is no consequence to Peters "because the standard for analyzing claims of ineffective assistance of counsel in a motion for [postconviction] relief is the same" whether the motion meets the procedural requirements of the rule or not. The Strickland standard applies to ineffective assistance of counsel claims regardless of whether the claim is timely under Rule 61(i)(1) or is evaluated under Rule 61(i)(5) for a colorable claim of a miscarriage of justice.
(7) Under Strickland, to prevail on a claim of ineffective assistance of counsel, a defendant must establish that (i) his trial counsel's representation fell below an objective standard of reasonableness; and (ii) but for counsel's unprofessional errors, the outcome of the trial would have been different. The defendant must set forth and substantiate concrete allegations of actual prejudice. Moreover, there is a "strong presumption" that counsel's representation was professionally reasonable.
(8) Peters' first contention is that his trial counsel was ineffective for failing to investigate a potential witness, Gabrielle Vega, who would have testified that he was known to carry a BB gun and thus could have raised reasonable doubt as to the four firearm charges. This contention is contradicted by trial counsel's affidavit. Both trial counsel and postconviction counsel indicated that they or their investigators spoke with Vega and both independently concluded that Vega would not assist Peters' defense. Trial counsel recalled that Vega was not cooperative and that she would have made a poor witness because she knew about Peters' prior felony criminal record. Trial counsel stated in his affidavit that, even if Vega could have testified that Peters was known to carry a BB gun, such testimony would not have been helpful because it would have been taken as an admission from Peters that he had committed the robbery and burglary offenses.
(9) Moreover, the State's evidence against Peters was overwhelming. One victim testified that she felt the metal of the gun when Peters pressed it against her head. Another victim testified that he was familiar with guns and that he was able to read "Millenium 9MM" on the gun that Peters held to his head. Under ...