DAVID M. COLES, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: June 9, 2017
Below-Superior Court of the State of Delaware Cr. ID
VALIHURA, SEITZ, and TRAYNOR, Justices.
COLLINS J. SEITZ, JR. JUSTICE.
31st day of July 2017, upon consideration of the
parties' briefs and the record on appeal, it appears to
the Court that:
appellant, David Coles, filed this appeal from the Superior
Court's denial of his second motion for postconviction
relief. After careful consideration, we affirm the Superior
Superior Court jury convicted Coles in November 2006 of
Murder in the Second Degree, Possession of a Firearm During
the Commission of a Felony, and Possession of a Deadly Weapon
by a Person Prohibited. In June 2007, the Superior Court
sentenced Coles to a total period of thirty-eight years at
Level V incarceration, to be suspended after serving
thirty-four years in prison for a period of probation. This
Court affirmed Coles' convictions and sentence on direct
appeal. Coles filed a timely first motion for
postconviction relief under Superior Court Criminal Rule 61,
which the Superior Court denied. On appeal, we reversed and
remanded for new postconviction proceedings with appointed
Coles' appointed counsel filed an amended motion for
postconviction relief on his behalf in September 2014. The
Superior Court denied that motion, and we affirmed on
appeal. In September 2016, Coles filed his second
motion for postconviction relief. The Superior Court applied
the amended version of Rule 61, which became effective June
4, 2014, and concluded that Coles' motion was
procedurally barred under Rule 61(d)(2). Thus, the Superior
Court summarily dismissed his petition without further
consideration. Coles appeals that judgment.
Coles raises four arguments in his opening brief on appeal.
First, he argues multiple claims of ineffective assistance of
counsel. Second, he contends that the Superior Court erred in
applying the procedural bar of Rule 61(d)(2) to his
ineffectiveness claims because his postconviction counsel was
ineffective in failing to raise these claims in Coles'
first Rule 61 proceeding and his claims should have been
considered in the interest of justice. Next, Coles argues
that the Superior Court erred in failing to consider his
self-defense claim as a claim of actual innocence under Rule
61(d)(2)(i). Finally, he contends that the Superior Court
erred in failing to consider his claim of error concerning a
jury instruction given at trial as a new, retroactive claim
of constitutional law under Rule 61(d)(2)(ii).
review the Superior Court's denial of postconviction
relief for abuse of discretion, although we review questions
of law de novo. Both the Superior Court and this Court
on appeal first must consider the procedural requirements of
Rule 61 before considering the merits of any underlying
postconviction claims. Rule 61 was substantially amended in June
2014 with the adoption, among other things, of new procedural
bars for second and subsequent motions found in Rule 61(d)(2)
and referenced in Rule 61(i)(5). These new procedural
requirements apply to any postconviction motion filed after
June 4, 2014.
Rule 61(d)(2), which became effective June 4, 2014 and
applies to Coles' second Rule 61 motion filed in 2016,
provides that a second or subsequent Rule 61 motion shall be
summarily dismissed unless the movant was convicted after a
trial and the motion either: (i) asserts that new evidence
exists that creates a strong inference that the movant is
factually innocent; or (ii) asserts a new, retroactive rule
of constitutional law that render the movant's conviction
or death sentence invalid. We conclude that the Superior
Court properly applied this procedural bar to Coles'
second motion and correctly concluded that the motion failed
to assert any claim of new evidence to establish his
innocence in fact or any claim of a new, retroactive rule of
constitutional law that would invalidate his convictions.
Contrary to Coles' assertion, this Court's decision
in Guy v. State,  which was decided before the
substantive amendments to Rule 61 in June 2014, has no
applicability to his case.
THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.