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State v. Brathwaite

Superior Court of Delaware

October 23, 2017

STATE OF DELAWARE
v.
KEVIN C. BRATHWAITE, Defendant

          Submitted: July 31, 2017

         On Defendant's Motion for Postconviction Relief and Motion for Appointment of Counsel. SUMMARILY DISMISSED.

          John W. Downs, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Gregory E. Smith, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Kevin C. Brathwaite, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

          ORDER

          Richard R. Cooch, R.J.

         This 23rd day of October, 2017, upon consideration of Defendant's Fourth Motion for Postconviction Relief and Fourth Motion for Appointment of Counsel, it appears to the Court that:

1. In 1998, a jury found Kevin Brathwaite ("Defendant") guilty of multiple counts of unlawful sexual intercourse and related crimes in the assaults of three women. Defendant was sentenced to six life terms, plus an additional 110 years. The Supreme Court of Delaware affirmed Defendant's convictions on direct appeal on October 22, 1999.[1]
2. Defendant filed his First Motion for Postconviction Relief/Motion for a New Trial in 1999.[2] This Court denied that Motion on March 17, 2003 and the Supreme Court of Delaware affirmed the decision on July 10, 2006.[3]
3. Defendant subsequently filed, pro se, a petition for a writ of habeas corpus that was denied by the United States District Court.[4] The Third Circuit affirmed this denial on March 22, 2011.[5]
4. On February 28, 2013, Defendant filed his second, pro se, Motion for Postconviction Relief. A Commissioner recommended denial of the motion and the Court adopted the Commissioner's Report and Recommendation on May 14, 2013. Defendant did not appeal.
5. Defendant filed his third, pro se, Motion for Postconviction Relief on July 9, 2014 asserting six grounds for relief.[6] This Court denied Defendant's Motion on procedural grounds on August 29, 2014.[7]
6. Defendant also filed three Motions for Appointment of Counsel on January 29, 2014; March 4, 2014; and June 19, 2015.[8] This Court denied the January 29, 2014 and March 4, 2014 Motions on April 29, 2014 holding that "Defendant's motion fails to establish the requisite good cause because it does not provide any factual support or legally viable argument which would justify granting the relief sought. He simply proclaims in conclusory terms that there were errors and/or misconduct by his attorney which were extremely prejudicial to his defense."[9] The Court denied Defendant's Third Motion for Appointment of Counsel for the same reasons on August 29, 2014.[10]
7. On April 27, 2015, the Supreme Court of Delaware affirmed this Court's denial of Defendant's Third Motion for Postconviction Relief and Third Motion for Appointment of Counsel.[11]
8. Defendant has now filed his Fourth Motion for Postconviction Relief and his Fourth Motion for Appointment of Counsel based on the following grounds for relief:
a. "[An] affidavit and sworn statement establish by clear and convincing evidence [Defendant's] actual innocence and constitutes newly discovered evidence that was previously unavailable."[12]
b."[T]he trial judge abused his discretion in failing to continue the trial on the Court's own motion and further failed to report prosecutorial misconduct and potential felony law violations[.]"
c. "[A]ppellate counsel rendered ineffective representation by failing to raise the above issues on appeal.
Defendant also raises various arguments that his trial counsel was ineffective, such as trial counsel failed to subpoena, investigate, locate, and impeach certain witnesses, failed to offer timely objections at trial, failed to adequately raise arguments related to potential exculpatory Brady evidence, and that trial counsel "exhibited [a] conflict of interest by failing to report witness intimidation by Government Agents."
9. Rule 61 is the remedy for defendants "in custody under a sentence of this court seeking to set aside the judgment of conviction . . . ."[13] This Court "must first consider the procedural requirements of Rule 61 before addressing any substantive issues."[14] The procedural "bars" of Rule 61 are: timeliness, repetitiveness, procedural default, and former adjudication.[15] A motion is untimely if it is filed more than one year after the conviction is finalized or defendant asserts a new ...

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