Submitted: December 7, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
L. Valihura Justice.
consideration of the appellant's opening brief, the
State's motion to affirm, and the record on appeal, it
appears to the Court that:
appellant, Robert Garvey, appeals from the Superior
Court's order dated March 29, 2018, denying his sixth
motion for postconviction relief under Superior Court
Criminal Rule 61. The State has filed a motion to affirm the
Superior Court's judgment on the ground that it is
manifest on the face of Garvey's opening brief that the
appeal is without merit. We agree and affirm.
2003, a Superior Court jury convicted Garvey of Murder in the
First Degree, Robbery in the First Degree, Attempted Robbery
in the First Degree, four related weapons offenses, and
Conspiracy in the Second Degree. On December 17, 2003, the
Superior Court sentenced Garvey to life in prison without the
possibility of probation or parole. On direct appeal, this
Court affirmed Garvey's convictions and
sentence. Between 2007 and 2016, this Court affirmed
the Superior Court's denials of Garvey's five
previous motions for postconviction relief.
Garvey filed his sixth motion for postconviction relief on
December 13, 2017. In the motion, Garvey argued, among other
things, that his conviction and sentence are invalid because
the death penalty statute in effect at the time of
Garvey's trial and sentencing was constitutionally
infirm, as Garvey argued before trial, and as this Court
decided in Rauf v. State and Powell v.
State. The Superior Court denied the motion on
March 29, 2018. The Superior Court held that the motion was
not procedurally barred by Superior Court Criminal Rule 61
because the Court determined that Garvey had asserted "a
retroactively applicable right that is newly recognized after
the judgment of conviction is final." But the Court
held that Garvey's claims lacked merit and therefore
denied the motion for postconviction relief. Garvey now
appeals to this Court.
conclude that Garvey's motion was procedurally barred by
Superior Court Criminal Rule 61. Rule 61(d)(2) provides that
a second or subsequent motion for postconviction relief shall
be summarily dismissed unless the movant was convicted after
trial and the motion either:
(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 a claim 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 the movant's case and renders
the conviction or death sentence invalid.
Garvey argues that Rauf and Powell set
forth new rules of constitutional law that overcome the
procedural bars of Rule 61. Garvey's argument is
unavailing because, although Rauf and
Powell set forth a new rule of constitutional law,
those decisions do not apply to invalidate Garvey's
conviction or sentence. As we have held many times,
Rauf did not strike down the entirety of the
first-degree murder statute-it struck down only the death
penalty portion. Because Garvey was not sentenced to death,
but received a sentence of life imprisonment, Rauf
and Powell do not apply to Garvey's
case. For the same reason, Garvey's
contention that he previously challenged the
constitutionality of the death penalty statute-which
challenge was rejected in Brice v. State,
which was later overruled by Rauf-also is
THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED, and the judgment ...