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State v. Henson

Superior Court of Delaware

August 7, 2017

STATE OF DELAWARE Plaintiff,
v.
JAMES H. HENSON, Defendant.

          Submitted: June 23, 2017

          Jenna R. Milecki, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          James H. Henson, Sussex Correctional Institution, Georgetown, Delaware, pro se. PARKER, Commissioner

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND MOTION FOR APPOINTMENT OF COUNSEL SHOULD BE DENIED.

          Lynne M. Parker, Commissioner.

         This 7th day of August 2017, upon consideration of Defendant's Motion for Postconviction Relief and Defendant's Motion for Appointment of Counsel, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On June 8, 1989, Defendant James H. Henson ("Defendant") was arrested and charged with Attempted Unlawful Sexual Intercourse Second Degree, Unlawful Sexual Intercourse Second Degree, and Kidnapping First Degree.

         2. During the course of its investigation, the State accumulated physical evidence related to the case against Defendant. However, due to a clerical error, much of the evidence was destroyed prior to trial. Upon learning of the destruction of the evidence, Defendant filed a motion to dismiss. The Superior Court denied the motion without prejudice, thus allowing Defendant to raise the issue at a later time.[1]

         3. At trial, in October 1990, Defendant once again moved to dismiss the case due to the State's failure to preserve the evidence.[2] After considering the issue at length, the trial court denied the motion to dismiss. However, pursuant to Deberry v. State, [3] the trial judge instructed the jury that Defendant was entitled to an inference regarding the lost evidence that the same would have been exculpatory.[4]

         4. The Superior Court jury found Defendant guilty of Attempted Unlawful Sexual Intercourse Second Degree and Unlawful Sexual Intercourse Second Degree. The jury acquitted Defendant of the Kidnapping First Degree charge.

         5. On January 4, 1991, Defendant was sentenced to life imprisonment.

         6. On direct appeal, on February 4, 1992, the Delaware Supreme Court affirmed Defendant's convictions and sentence.[5] On direct appeal, Defendant contended that the State's failure to preserve potentially exculpatory evidence violated his rights to due process and a fair trial. Following a full and thorough analysis, the Delaware Supreme Court held that the Superior Court's decision to give an instruction to the jury rather than dismissing the case was proper.[6]

         7. Also on direct appeal, Defendant contended that the prosecutor committed prosecutorial misconduct in his examination of a witness and by pulling a knife out of its sheath during his closing argument. The Delaware Supreme Court agreed that the prosecutor acted improperly but found that the prosecutorial misconduct resulted in little, if any, prejudice to Defendant.[7] The Delaware Supreme Court further found that whatever minimal prejudice resulted from the misconduct was mitigated by defense counsel's cross-examination of the witness at issue and by the trial judge's immediate curative instruction to the jury regarding the knife.[8]

         8. On December 7, 2016, over 24 years after the Delaware Supreme Court's decision on direct appeal affirming Defendant's convictions and sentence, Defendant filed the subject Rule 61 motion for postconviction relief.

         FACTS

         9. On June 8, 1989, Defendant met the victim at a bar. He and the victim had several drinks and they eventually left the bar together.[9] They drove to his apartment complex. Before exiting the car, Defendant allegedly kissed the victim and ripped her blouse. Defendant then grabbed the victim and brought her into his apartment. Once in the apartment, Defendant forced the victim to remove her clothes and attempted to have sex with her, but was unable to achieve an erection.[10]Then Defendant forced the victim to perform fellatio on him.[11] During the assault, Defendant punched the victim several times and bit her breast. [12]

         10. Ultimately, Defendant fell asleep and the victim fled. After leaving Defendant's apartment, the victim flagged down a passing car and was driven to the police station.[13]

         11. After obtaining a warrant, the police went to Defendant's apartment and arrested him.[14] At the police station, Defendant stated that: "I met this girl at a bar, took her home, attempted to have sex with her. I couldn't get it up and I passed out. I was too drunk to remember anything from that point."[15]

         DEFENDANT'S RULE 61 MOTION

         12. On December 7, 2016, Defendant filed the subject Rule 61 motion for postconviction relief. All of the claims raised by Defendant relate to trial errors and/or alleged ineffective assistance of counsel claims stemming from his trial which took place in October 1990, and for counsel's alleged failure to raise issues on direct appeal, which was decided in 1992. Consequently, all of the claims raised in the subject motion occurred no later than 1992, decades before Defendant filed this motion. Defendant raises nothing new or recently discovered in support of any of his claims. Indeed, all of the claims raised in the subject motion, and all support for those claims, were known to Defendant decades before he filed the subject motion.

         13. Defendant's motion, filed over 24 years after his final order of conviction, is time-barred and otherwise procedurally barred.

         14. Prior to addressing the substantive merits of any claim for postconviction relief, the court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61.[16] If a procedural bar exists, then the claim is barred, and the court should not consider the merits of the postconviction claim.[17]

         15. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction;[18] (2) any basis for relief must be asserted in the first timely filed motion for postconviction relief absent exceptional circumstances (i.e. discovery of new evidence or new rule of constitutional law) warranting a subsequent motion being filed;[19] (3) any basis for relief must have been asserted at trial or on direct appeal as required by the Court rules unless the movant shows prejudice to his rights and cause for relief;[20] and (4) any basis for relief must not have been formally adjudicated in any proceeding.[21] The bars to relief however do not apply to a claim that the Court lacked jurisdiction or to a claim that new evidence exists that movant is actually innocent or that there is a new law, made retroactive, that would render the conviction invalid.[22]

         16. In the subject action, Defendant's motion is time-barred. Rule 61(i)(1) requires the motion to be filed within one year from the final order of conviction.[23] The final order of conviction in this case was in 1992, [24] and this motion was filed on December 7, 2016, over 24 years later.[25] This motion was filed well outside the applicable one year limit. Defendant's claims, at this late date, are time-barred.

         17. Defendant contends that the limitations period provided by Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")[26] should apply to this Superior Court Criminal Rule 61 motion, rather than Superior Court Criminal Rule 61. The AEDPA is applicable in federal habeas corpus proceedings, not to this state court motion. The AEDPA prescribes a one year period of limitations for the filing of federal habeas petitions by state prisoners.[27] When a defendant files a habeas corpus petition in federal court, a properly filed state postconviction motion tolls AEDPA's limitation period during the time the action is pending in the state courts, provided that the motion was filed and pending before the expiration of AEDPA's limitations period.[28] In this case, the one year limitations period provided by the AEDPA appears to have elapsed about 24 years before the Defendant filed this state court postconviction motion. Consequently, it appears that any federal habeas petition filed in federal court under the AEDPA would, like the subject motion, be time barred. It appears that any such federal claims would also have been time barred for decades. The AEDPA is neither applicable to this motion nor does it remove the procedural time bar.

         18. In this state court postconviction proceeding, Superior Court Criminal Rule 61 is controlling and Superior Court Criminal Rule 61(i) provides the procedural bars that govern the subject Rule 61 motion. Rule 61(i)(1), provides for a one-year limitation period in which to file a Rule 61 motion. Defendant filed the subject motion over 24 years after his final order of conviction, well outside the one year limitations period. Defendant's motion is time barred.

         19. Rule 61(i)(2) further precludes this court's consideration of Defendant's motion since Defendant has not satisfied the pleading requirements for proceeding with this motion. Since Defendant's motion was not timely filed, in order to overcome the procedural hurdles, Defendant must establish that new evidence exists creating a strong inference of Defendant's actual innocence or the existence of a new rule of constitutional law made retroactive to this case that would render his convictions invalid.

         20. Defendant has not pled with particularity that any new evidence exists that creates a strong inference that he is actually innocent of the charges for which he was convicted or that there is a new rule of law that would render his conviction invalid. In fact, Defendant does not raise anything new or recently discovered. All of Defendant's claims stem from facts known to him at the time of his trial in 1990 and/or appeal in 1992. Moreover, Defendant does not claim the existence of any new rule of constitutional law that would be applicable in this case. As such, Rule 61(i)(2) precludes the court's consideration of Defendant's motion since he has not satisfied the pleading requirements for proceeding with this motion.

         21. Rule 61(i)(4) also precludes Defendant's claims raised herein since some of the claims were already raised and adjudicated in some fashion on Defendant's direct appeal. Both the Delaware Superior Court[29] and the Delaware Supreme Court[30] have already considered Defendant's claims related to the destruction of evidence, and have also considered Defendant's claims of prosecutorial misconduct and trial errors. The Superior Court has already held, and the Delaware Supreme Court has already affirmed, that these claims are without merit. Defendant's claims which were previously raised are now procedurally barred as previously adjudicated.

         22. Rule 61(i)(3) also prevents this court from considering any claims raised by Defendant not previously raised. Defendant's trial was held in 1990 and he was sentenced in January 1991. His direct appeal was decided in February 1992. Defendant filed the subject Rule 61 motion in December 2016, over 24 years later. Defendant was aware of, had time to, and the opportunity to raise all of the claims presented herein in a timely filed motion. All of ...


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