Submitted: January 22, 2018
Defendant's Request for an Evidentiary Hearing. DENIED.
for Appointment of Counsel. DENIED.
Motion for Postconviction Relief. DENIED.
O'Connor, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
K. Garvey, James T. Vaughn Correctional Institution, Smyrna,
Delaware, pro se.
RICHARD R. COOCH, R.J.
29th day of March 2018, upon consideration of Defendant's
Sixth Motion for Postconviction Relief, it appears to 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.
is Defendant's sixth motion for postconviction relief.
Each of Defendant's prior motions were
denied. 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.
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)."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 §
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 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