Submitted: July 31, 2017
Defendant's Motion for Postconviction Relief and Motion
for Appointment of Counsel. SUMMARILY
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
C. Brathwaite, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.
Richard R. Cooch, R.J.
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
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.
2. Defendant filed his First Motion for Postconviction
Relief/Motion for a New Trial in 1999. This Court denied
that Motion on March 17, 2003 and the Supreme Court of
Delaware affirmed the decision on July 10,
3. Defendant subsequently filed, pro se, a petition
for a writ of habeas corpus that was denied by the United
States District Court. The Third Circuit affirmed this denial on
March 22, 2011.
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. This Court denied Defendant's Motion
on procedural grounds on August 29, 2014.
6. Defendant also filed three Motions for Appointment of
Counsel on January 29, 2014; March 4, 2014; and June 19,
2015. 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." The Court denied Defendant's Third
Motion for Appointment of Counsel for the same reasons on
August 29, 2014.
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
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
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
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 . . . ." This Court "must
first consider the procedural requirements of Rule 61 before
addressing any substantive issues." The
procedural "bars" of Rule 61 are: timeliness,
repetitiveness, procedural default, and former
adjudication. A motion is untimely if it is filed more
than one year after the conviction is finalized or defendant
asserts a new ...