Submitted: December 12, 2017
Commissioner's Report and Recommendation that
Defendant's Motion for Postconviction Relief (Fourth)
Should Be Summarily Dismissed and the Motion for Appointment
of Counsel Should Be Denied ADOPTED
Honorable Mary M. Johnston J.
6th day of March, 2018, the Court has considered the
Commissioner's Report and Recommendation, Defendant's
Motion for Postconviction Relief, Motion for Appointment of
Counsel, Motion for Evidentiary Hearing, Motion to Expand the
Record, Defendant's objections to the Commissioner's
Report and Recommendations, and the relevant proceedings
October 24, 2017, Defendant Damone E. Flowers filed this pro
se motion for postconviction relief. The motion was
referred to a Superior Court Commissioner in accordance with
10 Del. C. § 512(b) and Superior Court Criminal
Rule 62 for proposed findings of fact and conclusions of law.
The Commissioner issued the Report and Recommendation on
November 30, 2017. The Commissioner recommended that
Defendant's Motion for Postconviction Relief be summarily
ten days after filing of a Commissioner's proposed
findings of fact and recommendations . . . any party may
serve and file written objections."Defendant Flowers
filed written objections on December 15, 2017, more than ten
days after the Commissioner's November 30 report. In
addition to this procedural deficiency, upon review, the
Court finds that the Defendant fails to meet the pleading
standard of Rule 61(d)(2).
Flowers' fourth motion for postconviction relief.
"In second or subsequent postconviction motions, the
motion shall be summarily dismissed unless the defendant
establishes: 1) that new evidence exists that creates a
strong inference that he is actually innocent of the charge
for which he was convicted, or 2) the existence of a new rule
of constitutional law made retroactive to cases on collateral
review rendered his convictions invalid." "If it
plainly appears from the motion for postconviction relief
that the movant is not entitled to relief, the Court may
enter an order for its summary dismissal and cause the movant
to be notified."
relies on an outdated version of Superior Court Criminal Rule
6l(i)(5) in support of his argument. As the Commissioner stated
in her report, the current, amended version of the statute
makes plain that a subsequent postconviction motion must be
based on new evidence of actual innocence or a
new rule of constitutional law-whether there is
a colorable constitutional claim that undermined the fairness
of the proceedings is no longer the appropriate framework for
because Flower's claims rest on the longstanding
constitutional law of Brady,  his claim is
procedurally barred unless "new evidence exists that
creates a strong inference that he is actually innocent of
the charge for which he was convicted." Delaware Superior
Courts have turned to the federal standard to determine when
there is a valid claim of new evidence of actual
innocence.Evidence is considered "new"
under this standard when it "was not available at the
time of trial and could not have been discovered earlier
through the exercise of due diligence . .
." To establish actual innocence, the
petitioner's new evidence must show that it is "more
likely than not that no reasonable juror would have convicted
him." In making this determination, a court
must consider "all the evidence, old and new,
incriminating and exculpatory, without regard to whether it
would necessarily be admitted ... at
trial." A court "may consider how the
timing of the submission of [actual innocence] and the likely
credibility of the affiant. . . bear on the probable
reliability of that evidence."
appeal of the Commissioner's report, Flowers points to
four groups of evidence allegedly suppressed by the
prosecution: recordings of interviews with Bruce Duncan and
Lamar Swanson (the Duncan and Swanson tapes); statements of
Michael Bartley (the Bartley statement); a supplemental
police report relating to the testimony of Chermaine Mayo
(the Mayo report); and evidence of a deal the State allegedly
made with Swanson in exchange for Swanson's cooperation
(the Swanson deal).
all of this evidence was discovered after trial, the Court
finds that the Duncan and Swanson tapes, the Bartley
statement, and the Mayo report do not constitute
"new" evidence within the meaning of the rule. The
Defendant admits that all of the evidence except the Swanson
deal was uncovered as a result of 2010 and 2013 motions to
compel filed years before the resolution of his last motion
for post-conviction relief. At that time, Flowers,
represented by counsel, chose to proceed under the theory of
ineffective assistance of counsel, even after uncovering the
evidence of the alleged suppression on which he relies in the
present motion. Flowers "cannot avoid the procedural
bars by simply re-categorizing the same arguments that have
been adjudicated and denied." Refraining the failure to
introduce the same testimony as the result of prosecutorial
misconduct rather than ineffective counsel does not create
new evidence of actual innocence.
remaining piece of evidence, the Swanson deal, is also not
sufficient to establish new evidence of actual innocence.
Flowers contends that Swanson was awarded a release from
custody after he cooperated with the State, but "to
cover its tracks" the State rearrested Swanson only
after Flowers' first Motion for Postconviction Relief put
the State "on notice" that Flowers had become aware
of the State's "surreptitious dealing." The
Court finds that such conjecture has very little
"probable reliability" and does not make it
"more likely than not that no reasonable juror would
have convicted" Flowers.
as discussed above, Flowers has not met the pleading
requirements of Rule 61(d)(2)(i) or (ii), the Commissioner
was correct to deny the Motion for Appointment of Counsel.
For the same reason, Flowers' Motion to Expand the Record
and Motion for Evidentiary Hearing are also denied.
Court holds that the Commissioner's Report and
Recommendations dated November 30, 2017 should be adopted for
the reasons set forth therein. The Commissioner's
findings are not clearly erroneous, ...