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State v. Mercer

Superior Court of Delaware

November 1, 2017

STATE OF DELAWARE, Plaintiff,
v.
CURTIS N. MERCER, Defendant.

          Submitted: August 15, 2017

          James J. Kriner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Curtis N. Mercer, Delaware Correctional Center, Smyrna, Delaware, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S THIRD MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.

          PARKER, Commissioner.

         This 1st day of November 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On January 16, 2009, Defendant Curtis Mercer was convicted of four counts of Rape in the First Degree, one count of Kidnapping in the First Degree, two counts of Possession of a Deadly Weapon During the Commission of a Felony, one count of Burglary in the First Degree, one count of Tampering with Physical Evidence, one count of Misdemeanor Theft and one count of Terroristic Threatening. On March 6, 2009, Defendant was sentenced to four consecutive life sentences plus nine additional years at Level V.

         2. On September 9, 2009, Defendant filed a direct appeal to the Delaware Supreme Court. By Order dated November 25, 2009, the Delaware Supreme Court affirmed the convictions and sentences.[1]

         3. On July 6, 2010, Defendant filed his first motion for postconviction relief. In that motion Defendant raised a number of ineffective assistance of counsel claims as well as various other claims.

         4. Before ruling on Defendant's first motion for postconviction relief, the Court enlarged the record by directing Defendant's trial counsel to submit an Affidavit responding to Defendant's ineffective assistance of counsel claims. Thereafter, Defendant filed a response thereto.[2]

         5. By Order dated December 15, 2010, the Superior Court denied Defendant's motion for postconviction relief.[3] The Superior Court found Defendant's contentions, including his ineffective assistance of counsel claims, to be without merit.

         6. Defendant appealed the Superior Court's December 15, 2010 Order denying his first motion for postconviction relief to the Delaware Supreme Court. By Order dated July 20, 2011, the Delaware Supreme Court affirmed the Superior Court's denial of Defendant's motion for postconviction relief.[4]

         7. On September 9, 2011, Defendant filed a second motion for postconviction relief. In the second motion, Defendant raised two claims of ineffective assistance of counsel. Specifically, Defendant claimed that his counsel was ineffective for failing to seek the suppression of an in-court identification of the Defendant at trial. Defendant also claimed that his counsel was ineffective for failing to "develop and present every issue that held trial error or violated a constitutional right".

         8. On October 5, 2011, the undersigned Superior Court Commissioner issued her Report and Recommendation recommending that Defendant's second Rule 61 postconviction motion be denied.[5] The Commissioner recommended that the motion be dismissed ...


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