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State v. Flonnory

Superior Court of Delaware

November 8, 2017

STATE OF DELAWARE, Plaintiff,
v.
FREDDY L. FLONNORY, Defendant.

          Submitted: July 18, 2017

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

          Freddy L. Flonnory, defendant, pro se.

          Bradley V. Manning Commissioner.

         This 8th day of November 2017, upon consideration of Defendant's motion for postconviction relief (herein after "Motion"), I find and recommend the following:

         FACTS AND PROCEDURAL HISTORY

         The facts leading to Flonnory's 1999 murder conviction and death sentence were well summarized by the Delaware Supreme Court in its ruling reversing that conviction, so I will not recite them again here.[1] A second trial was held in 2004 that also resulted in a murder conviction. However, at the conclusion of the penalty phase, and over the jury's recommendation, the Superior Court sentenced Flonnory to life in prison.[2] That conviction and sentence was upheld on appeal by the Delaware Supreme Court in 2006.[3] Flonnory filed his first motion for postconviction relief on January 26, 2007. That motion was denied by the Superior Court, [4] and then unsuccessfully appealed to the Supreme Court.[5] Having exhausted all state court remedies, Flonnory then sought a writ of habeas corpus in the United States District Court for the District of Delaware-which was also denied.[6]

         Flonnory then filed a second motion for postconviction relief in the Superior Court on March 18, 2013. That motion was subsequently denied as the Court ruled that all of Flonnory's claims were procedurally barred.[7] Rather than appeal this denial to the Delaware Supreme Court, Flonnory filed what can best be characterized as an amended or superseding third pro se motion for Postconviction relief with the Superior Court on July 6, 2013. Flonnory also sought appointment of counsel, which was granted on July 18, 2013.

         Appointed counsel ("Rule 61 Counsel"), filed a comprehensive Motion to Withdraw as Counsel pursuant to Rule 61(e)(2) on January 30, 2015. In the Motion to Withdraw, Flonnory's Rule 61 Counsel represented that, after undertaking a thorough analysis of the case, Flonnory's claims were so lacking in merit that Rule 61 Counsel could not ethically advocate any of them. Rule 61 Counsel further represented that, following a thorough review of the record, he was unaware of any other substantial claim for relief available to Flonnory. Flonnory filed his Response to Rule 61 Counsel's Motion to Withdraw on March 6, 2015. This third postconviction relief motion was denied by the Superior Court on June 4, 2015.

         DEFENDANT'S RULE 61 MOTION

         Flonnory's latest motion, filed on July 18, 2017, is now his fourth motion for postconviction relief. In this motion, Flonnory's claim is based on that of "newly discovered evidence." I have summarized it from his own word as follows:

Trial and postconviction counsel were ineffective for not challenging the statement of Joy Watson, taken by an FBI agent, in violation of the "absent parent" rule, Fare v. Michael 442 U.S. 707 (1979). Had this statement not been admitted into evidence as a separate trial exhibit, the outcome of the trial and/or appeal, would have been different.

         LEGAL STANDARD

         To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense.[8] The first prong requires that a defendant show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires that the defendant show that there is a reasonable ...


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