Submitted: July 30, 2018
P. Lugg, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
J. Puller, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
13th day of August 2018, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
March 1, 2001, after a three-day trial, a Superior Court jury
found Defendant Kleon J. Puller guilty of Attempted Murder in
the First Degree, Possession of a Firearm During the
Commission of a Felony, and Endangering the Welfare of a
Child. Puller was sentenced to life for his attempted murder
conviction, five years of incarceration for his possession of
a firearm conviction, and one year of probation for
endangering the welfare of a child conviction.
February 5, 1999, Puller shot his girlfriend in the head with
a .357 Magnum revolver while his five-year-old niece was in
the room. Puller admitted to shooting his girlfriend in the
face, but claimed it was an accident. He testified that he put the
gun to her head in order to scare her but did not realize the
gun was loaded. He pulled the trigger after she said,
"Go ahead and shoot it." According to Puller, he
expected to hear only a "click", but was "in
shock" when he heard a "bang." To disprove
Puller's contention, the State relied on eyewitnesses,
medical testimony about the nature of his girlfriend's
wounds, and a videotape of the crime scene. Puller's shot
blew off a large part of his girlfriend's face, including
both of her eyes. Although the victim survived, she is blind,
severely disfigured, and brain damaged.
Puller appealed, and the Delaware Supreme Court affirmed his
convictions and sentences on April 5, 2002.
January 5, 2012, Puller filed a Rule 61 motion for
postconviction relief. Counsel was appointed to assist Puller
with that Rule 61 motion. On October 1, 2013, Rule 61 counsel
filed a motion to withdraw because he concluded that
Puller's claims were without merit and he did not find
the existence of any other meritorious claims for relief.
Puller responded to Rule 61 counsel's motion to withdraw
and raised a number of additional claims in further support
of his Rule 61 motion.
July 8, 2014, a Superior Court Commissioner issued his Report
and Recommendation recommending that Puller's Rule 61
motion be denied and that counsel's motion to withdraw be
denied as moot. On August 21, 2014, the Superior Court
found Puller's objections to the Commissioner's
Report and Recommendation to be without merit and adopted the
Commissioner's Report and Recommendation in its
entirety. The Delaware Supreme Court affirmed that
decision on January 30, 2015.
Puller raised a number of claims, including a number of
ineffective assistance of counsel claims, in his Rule 61
motion. Those claims included contentions that
counsel was ineffective for not requesting a jury instruction
that the shooting was accidental; that the jury instructions
were improper; and that the State failed to prove all the
elements of Attempted Murder in the First
Trial counsel's Affidavit in response to that Rule 61
motion explained at length the trial strategy. Trial counsel
explained that the defense's claim was that Puller was
reckless in causing these very serious injuries to his
girlfriend by drunkenly pulling the trigger of a gun that he
mistakenly thought was unloaded. As such, the defense claimed
that Puller was not guilty of Attempted Murder and only
guilty of the lesser charge of Assault First
Degree. The jury was instructed on the
lesser-included offense of Assault First
issue at trial was not whether Puller was the shooter. It was
undisputed that he was. The issue was whether the shooting
was "reckless" and he should be found guilty of
Assault First Degree or "intentional" and he should
be found guilty of Attempted Murder in the First Degree.
this case, the jury was given the option of determining
whether Puller's actions were "reckless" or
"intentional", and the jury determined Puller
intentionally attempted to kill the victim. The jury
determined that Puller's conduct was intentional not
reckless and they convicted him of Attempted Murder in the
April 15, 2015, Puller filed a federal petition for habeas
corpus. In that petition, Puller raised twelve
ineffective assistance of counsel claims. On May 16, 2016,
the federal court denied Carter's petition for habeas
relief as time-barred.
SUBJECT RULE 61 MOTION
July 23, 2018, Puller filed the subject Rule 61 motion. In
his motion, he claims that his First Degree Attempted Murder
Conviction should be vacated and he should be found guilty of
Assault First Degree or Reckless Endangering instead. Puller
claims that he did not have the requisite intent to be found
guilty cf First Degree Attempted Murder. He claims that his
actions were "reckless" rather than
"intentional." Puller contends that the "court
lacked jurisdiction" to convict him of First Degree
Attempted Murder since his conduct was "reckless"
rather than "intentional", and that he can raise
this "jurisdictional" claim at any time. Puller
also claims that his counsel was ineffective for not
requesting a Reckless Endangering jury instruction at trial.
Puller cites to Class v. United States, 138 S.Ct.
798 (2018), for the proposition that he can raise the
constitutionality of his conviction for First Degree
Attempted Murder, at any time. In Class v. United
States, the defendant, who pled guilty to a criminal
offense, challenged the constitutionality of the statute for
which he was convicted. The federal government contended that
by pleading guilty the defendant waived his right to
challenge the constitutionality of his conviction. The ...