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State v. Worley

Superior Court of Delaware

July 3, 2018

STATE OF DELAWARE
v.
ROBERT WORLEY, Defendant.

          Submitted: May 22, 2018

         Upon Defendant's Second Motion for Postconviction Relief SUMMARILY DISMISSED

          ORDER

          Honorable Andrea L. Rocanelli, Judge.

         Upon consideration of the second Motion for Postconviction Relief filed by Defendant Robert Worley ("Defendant"); Rule 61 of the Superior Court Rules of Criminal Procedure ("Rule 61"); the facts, arguments, and legal authorities set forth in Defendant's motion; statutory and decisional law; and the entire record in this case, the Court hereby finds as follows:

         1. Defendant was indicted on July 30, 2012 for Assault First Degree, Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF"), and Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP"). Counsel was appointed for Defendant ("Trial Counsel").

         2. The case was tried to a jury on April 9, 10, and 11, 2013. Prior to trial, the Court granted Defendant's motion to sever the PDWBPP charge. The jury found Defendant guilty of Assault First Degree and PDWDCF. The Court then conducted a bench trial and found Defendant guilty of PDWBPP.

         3. On May 17, 2012, Defendant was sentenced as an habitual offender pursuant to 11 Del. C. § 4214(a) to 55 years at Level 5.

         4. Defendant appealed to the Delaware Supreme Court, which affirmed on December 9, 2013.[1]

         5. On June 27, 2014, Defendant filed a timely first motion for postconviction relief. The Court appointed counsel to represent Defendant in connection with his postconviction relief motion ("Postconviction Counsel"). Defendant argued that Trial Counsel was ineffective by failing to: (1) suppress eyewitness identifications; (2) effectively cross-examine witnesses regarding their identifications; (3) request a more detailed eyewitness identification jury instruction; and (4) consult with and present expert testimony on the subject of eyewitness identifications. This Court found that Defendant failed to establish that Trial Counsel was ineffective, and denied Defendant's first motion for postconviction relief.[2] The Delaware Supreme Court affirmed the denial of postconviction relief on November 21, 2016.[3]

         6. On April 4, 2017, Defendant filed a second motion for postconviction relief as a self-represented litigant ("Second PCR Motion"). In his Second PCR Motion, Defendant argues that Postconviction Counsel was ineffective by failing to raise additional claims of ineffective assistance of counsel related to Defendant's Trial Counsel. Specifically, Defendant argues that Postconviction Counsel should have argued that Trial Counsel was ineffective by: (1) failing to object to prosecutorial vouching during opening and closing statements; (2) failing to challenge the State's use of a prior out of court statement of Lamar Irons in contravention of 11 Del. C. § 3507; (3) failing to object to the method in which the State introduced the prior out of court statement of Eric Irons; (4) using the victim's prior out of court statement during cross-examination under 11 Del. C. § 3507 rather than as impeachment evidence; (5) failing to object to the admission of officers' testimony regarding security camera footage which the officers viewed, but could not download; and (6) failing to challenge the State's motion to declare Defendant an habitual offender.

         7. Before addressing the merits for postconviction relief, this Court must first consider the procedural requirements of Rule 61(i).[4] A motion is procedurally sufficient for consideration on the merits if it is the defendant's first motion, [5] the motion is timely, [6] and the motion does not assert grounds for relief already adjudicated.[7]

         8. Defendant's Second PCR Motion is procedurally barred as a successive motion. Rule 61(i)(2) prohibits a defendant from filing a second or subsequent motion for postconviction relief unless the defendant:

(i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) pleads with particularity that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to movant's case and ...

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