Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kellum

Superior Court of Delaware

June 15, 2018

STATE OF DELAWARE
v.
MELVIN KELLUM, Defendant

          Submitted: April 16, 2018

          On Defendant's Second Motion for Postconviction Relief.

          Joseph Grubb, Esquire, New Castle County Prosecutor, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Melvin N. Kellum, James T. Vaughn Correctional Institution, Smyrna, Delaware, pro se.

          ORDER

          RICHARD R. COOCH, J.

         This 15th day of June 2018, upon consideration of Defendant's Second Motion for Postconviction Relief, it appears to the Court that:

         1. In May 2006, Defendant was indicted for Attempted Murder First Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited ("PDWPP"). A jury found Defendant not guilty of Attempted Murder First Degree. However, the jury convicted Defendant of the lesser-included offense of Assault First Degree and the weapons charges. Defendant appealed his conviction to the Delaware Supreme Court and was represented by a different attorney than the one he had at trial.[1] The convictions were affirmed on May 16, 2008.[2]

         2. On January 27, 2009, Defendant filed his first motion for postconviction relief pursuant to Superior Court Criminal Rule 61.

"Defendant assert[ed] five grounds for relief in his motion: (1) the joinder of the PDWPP charge prejudiced his rights to a fair trial; (2) the Court's failure to dismiss a juror who knew one of the State's witnesses amounted to prejudicial error; (3) the in-court identification of Defendant by Detective David Simmons violated his right to a fair trial; (4) the failure to disclose a videotaped interview of an eyewitness to the defense amounted to prejudicial error; and (5) the Court's failure to give an unrequested alibi instruction to the jury was 'plain error.'"[3]

         3. On May 19, 2010, this Court denied Defendant's first motion for postconviction relief. The Delaware Supreme Court affirmed the denial for postconviction relief on January 21, 2011.[4]

         4. Defendant then applied for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 on four grounds:

"(1) defense counsel provided ineffective assistance by failing to request and argue for an alibi instruction; (2) the trial court violated his due process rights by failing to sua sponte instruct the jury regarding his alibi defense; (3) the prosecutor engaged in misconduct by making prejudicial remarks during closing argument and by failing to provide the defense with a videotaped statement of an eyewitness in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (4) appellate counsel provided ineffective assistance by failing to raise the claims petitioner requested to be raised."[5]

         5. On March 7, 2014, the United States District Court for the District of Delaware denied Defendant's application for federal habeas relief on the grounds that: (1) this Court and the Delaware Supreme Court reasonably applied Strickland to trial counsel's failure to request an alibi instruction, [6] (2) the state court reasonably applied federal law in denying claim asserting due process right to sua sponte alibi instruction, [7] (3) prosecutorial misconduct claim was procedurally defaulted, [8] and (4) Defendant failed to assert a proper basis for federal habeas relief.[9]

         6. On April 12, 2018, Defendant filed this second motion for postconviction relief to this Court pursuant to Superior Court Criminal Rule 61. Defendant asserts three grounds for relief for ineffective assistance of counsel: (1) "Defendant was denied the right to effective assistance of counsel at trial for failure to object to improper comments of the State during closing arguments[, ]"[10] (2) "Appellate counsel provided ineffective assistance of counsel in the appellate stage[, ]"[11] and (3) "Defendant was denied the right to effective assistance of counsel at trial by introducing the defense witness prior felony conviction involving dishonesty when the witness conviction was more than 10 years ago."[12]

         7. Rule 61 is the remedy for defendants "in custody under a sentence of this court seeking to set aside the judgment of conviction . . . ."[13] This Court "must first consider the procedural requirements of Rule 61 before addressing any substantive issues."[14] The procedural bars of Rule 61 include timeliness, [15] successiveness, [16] procedural default, [17] and former adjudication.[18] A motion is untimely if it is filed more than one year after the conviction is finalized or defendant asserts a new constitutional right that is retroactively applied more than one year after it is first recognized.[19] A motion is successive if it is a "second or subsequent motion."[20] If any of these bars apply, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.