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State v. Garvey

Superior Court of Delaware

March 29, 2018

STATE OF DELAWARE
v.
ROBERT K. GARVEY, Defendant

          Submitted: January 22, 2018

         On Defendant's Request for an Evidentiary Hearing. DENIED.

         Motion for Appointment of Counsel. DENIED.

         Sixth Motion for Postconviction Relief. DENIED.

          Martin O'Connor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Robert K. Garvey, James T. Vaughn Correctional Institution, Smyrna, Delaware, pro se.

          ORDER

          RICHARD R. COOCH, R.J.

         This 29th day of March 2018, upon consideration of Defendant's Sixth Motion for Postconviction Relief, it appears to the Court that:

         1. The basic background to Defendant's case can be found in this Court's denial of Defendant's fifth motion for postconviction relief found below:

Robert K. Garvey ("Defendant") was convicted in 2003 of Murder First Degree; Robbery First Degree; Attempted Robbery First Degree; 2 counts of Possession of a Firearm During the Commission of a Felony; 2 counts of Carrying a Concealed Deadly Weapon; and Conspiracy Second Degree. Defendant was sentenced to Life at Level V, plus 30 additional years at Level V to be served consecutively. Defendant was also sentenced to 2 years at Level II. The Delaware Supreme Court affirmed Defendant's convictions on April 28, 2005.[1]

         2. This is Defendant's sixth motion for postconviction relief. Each of Defendant's prior motions were denied.[2] Defendant filed this, his sixth motion for postconviction relief, on December 13, 2017. Defendant now requests an evidentiary hearing, moves for appointment of counsel for the fourth time, and maintains that his is entitled to postconviction relief on five grounds with an accompanying 30-page memorandum of law and various exhibits.

         3. Defendant contends that "[a] 11 ground's [sic] are based on and raised pursuant to the retroactive decision first announced on December 15, 2016 in Powell v. State, No. 316, 2016 (Del. Dec. 15, 2016)."[3]Individually, Defendant alleges his five grounds of postconviction relief as follow:

Ground one: the erroneous decision in Brice, infringed upon my right to effective counsel.
Ground two: Motion to reopen all 16 cert, questions of law [ ] dated August 9, 2002 - motion.
Ground three: Violation of the supremacy clause.
Ground four: Motion to reverse and/or vacate movant's invalid, illegal and unconstitutional conviction and/or sentence pursuant to § 4209.
Ground five: Former title 11, 636(A)(6) as a whole is unconstitutional, thus Delaware's "Hybrid" system pursuant to § 4209(e)(2) and § 4209(e)(1)(J).[4]

         4. Defendant argues, among other things, essentially that the Delaware Supreme Court's invalidation of Delaware's capital sentencing statute pursuant to 11 Del. C. § 4209 in Rauf v. State[5] deprived him of his right to effective assistance of counsel and "an effective case review/during a critical stage of [Defendant's] capital (felony) murder proceedings .. . because of the 'external ...


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