JAMES J. DURHAM, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: September 15, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
Strine, Jr. Chief Justice.
13th day of November 2017, upon careful consideration of the
parties' briefs and the Superior Court record, it appears
to the Court that:
appellant, James J. Durham, filed this appeal from the
Superior Court's summary dismissal of his second motion
for postconviction relief under Superior Court Criminal Rule
61. We affirm the Superior Court's judgment.
Following a jury trial in October 2010, Durham was convicted
of first degree robbery and other offenses. After the
verdict, Durham's trial counsel filed a motion for new
trial, which was denied on June 9, 2011. Durham was
sentenced on June 15, 2011. On direct appeal, this Court
affirmed Durham's convictions and sentence.
January 2013, with the help of postconviction counsel, Durham
filed a timely motion for postconviction relief alleging
ineffective assistance of trial counsel and appellate
counsel. In October 2013, a Superior Court Commissioner
issued a report recommending that the postconviction motion
should be denied. Durham's postconviction counsel
appealed from the report and recommendation, and the State
filed a response. On April 30, 2015, the Superior Court
adopted the report and recommendation and denied the
postconviction motion "as procedurally barred for
failure to prove cause and prejudice, and as
meritless. The Superior Court concluded that the
appeal did "not advance the motion for postconviction
relief in any substantive way." On appeal in this Court, we
affirmed the Superior Court's judgment.
February 6, 2017, Durham filed a second motion for
postconviction relief. In his pro se motion, Durham
alleged that his postconviction counsel was ineffective
because counsel failed to raise additional claims of
ineffective assistance of trial counsel in Durham's first
motion for postconviction relief.
order dated February 13, 2017, the Superior Court summarily
dismissed Durham's second postconviction motion as
procedurally barred. This appeal followed. We review the
Superior Court's dismissal of the postconviction motion
for abuse of discretion and consider questions of law under
de novo review.
Both this Court and the Superior Court are required to
consider the procedural requirements of Rule 61 before
addressing any substantive issues. In this appeal from the
summary dismissal of his second postconviction motion, Durham
claims the Superior Court considered procedural requirements
inapplicable to his motion and failed to consider relevant
First, Durham argues that the Superior Court should have
applied the version of Rule 61 in effect in 2012, when his
convictions became final after his direct appeal. According
to Durham, had the Superior Court applied the 2012 version of
Rule 61, the court would not have summarily dismissed his
second postconviction motion. Second, Durham argues that, had
the Superior Court properly applied the dictates of our 2013
decision in Guy v. State,  the court would have been
compelled to consider the merit of the claims that he raised
in his second postconviction motion. Both arguments are
2013 decision in Guy v. State decided an appeal from
the denial of a defendant's third motion for
postconviction relief under Rule 61 as it then
existed.Under the unique circumstances presented in
Guy, we found that the defendant's claims of
ineffective assistance of postconviction counsel were not
procedurally barred under Rule 61(i)(2) because the defendant
had not had a prior opportunity to raise the
claims. We also held that the one-year time
limitation in Rule 61(i)(1) would not begin to run on a
defendant's claim of ineffective assistance of
postconviction counsel until the conclusion of the appeal
from the denial of the postconviction motion filed by
postconviction counsel or the conclusion of the time in which
to file such an appeal.
June 2014, Rule 61 was substantially amended with the
adoption, among other things, of a new pleading standard for
second or subsequent motions for postconviction
relief. The new pleading standard-found in Rule
61(d)(2) and incorporated in Rule 61(i)(2) and
(i)(5)-provides that any second or subsequent postconviction
motion will be summarily dismissed unless the movant was
convicted after a trial and the motion either: (i) pleads
with particularity that new evidence exists to establish the
movant's actual innocence in fact; or (ii) pleads with
particularity that a new, retroactively applicable
constitutional rule applies to the movant's case and
renders a conviction or death sentence invalid. Rule
61(d)(2), and the other ...