COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF (THIRD) SHOULD BE SUMMARILY DISMISSED.
AND RULE 61 COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED
Delaware Department of Justice, Attorneys for the State.
Patrick J. Collins Esquire and Albert J. Roop, V. Esquire, Attorneys for Defendant.
BRADLEY V. MANNING, Commissioner
This 24th day of March, 2015, upon consideration of Defendant's third Motion for Postconviction Relief, the Court finds the following:
FACTS AND PROCEDURAL HISTORY
The facts leading to Flonnory's 1999 murder conviction and death sentence were well summarized by the Delaware Supreme Court in its ruling reversing that conviction, and do not need repeating here. A second trial was held in 2004 that also resulted in a murder conviction. However, at the conclusion of the penalty phase, and over the jury's recommendation, the Superior Court sentenced Flonnory to life in prison. That conviction and sentence was upheld on appeal by the Delaware Supreme Court in 2006.Flonnory filed his first motion for postconviction relief on January 26, 2007. That motion was denied by the Superior Court,  and then unsuccessfully appealed to the Supreme Court. Having exhausted all state court remedies, Flonnory then sought a writ of habeas corpus in the United States District Court for the District of Delaware, which was also denied.
Undeterred, Flonnory filed a second motion for postconviction relief in the Superior Court on March 18, 2013. That motion was subsequently denied as the Court ruled that all of Flonnory's claims were procedurally barred. Rather than appeal this denial to the Delaware Supreme Court, Flonnory filed what can best be characterized as an amended or superseding third pro se motion for Postconviction relief with the Superior Court on July 6, 2013. Flonnory also sought appointment of counsel, which was granted on July 18, 2013.
Appointed counsel (Rule 61 Counsel), filed a comprehensive Motion to Withdraw as Counsel pursuant to Rule 61(e)(2) on January 30, 2015. Superior Court Criminal Rule 61(e)(2) provides that:
If counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel's opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.
In the Motion to Withdraw, Flonnory's Rule 61 Counsel represented that, after undertaking a thorough analysis of the case, Flonnory's claims were so lacking in merit that Rule 61 Counsel could not ethically advocate any of them. Rule 61 Counsel further represented that, following a thorough review of the record, it was unaware of any other substantial claim for relief available to Flonnory. Flonnory filed his Response to Rule 61 Counsel's Motion to Withdraw on March 6, 2015.
DEFENDANT'S RULE 61 MOTION
Flonnory's claims for postconviction relief, in his own words, can be summarized as follows:
(1) Trial Counsel was ineffective for incorrectly arguing at trial, and on appeal, that it was error for the State to introduce the prior testimony of Dwayne Warren, and introduce it utilizing a State ...