Submitted: August 15, 2017
J. Kriner, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
N. Mercer, Delaware Correctional Center, Smyrna, Delaware,
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S THIRD MOTION FOR POSTCONVICTION RELIEF SHOULD
BE SUMMARILY DISMISSED.
1st day of November 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
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.
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
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.
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
Order dated December 15, 2010, the Superior Court denied
Defendant's motion for postconviction
relief. The Superior Court found Defendant's
contentions, including his ineffective assistance of counsel
claims, to be without merit.
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
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".
October 5, 2011, the undersigned Superior Court Commissioner
issued her Report and Recommendation recommending that
Defendant's second Rule 61 postconviction motion be
denied. The Commissioner recommended that the
motion be dismissed ...