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State v. Mercer

Superior Court of Delaware

March 26, 2019

STATE OF DELAWARE, Plaintiff,
v.
CURTIS N. MERCER, Defendant.

          Submitted: February 13, 2019

          James J. Kriner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Curtis N. Mercer, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S FOURTH MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED AND MOTIONS FOR AN EVIDENTIARY HEARING AND FOR THE APPOINTMENT OF COUNSEL SHOULD BE DENIED.

          COMMISSIONER LYNNE M. PARKER.

         This 26th day of March 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On January 16, 2009, Defendant Curtis Mercer was convicted of four counts of Rape in the First Degree, one count of Kidnapping in the First Degree, two counts of Possession of a Deadly Weapon During the Commission of a Felony, one count of Burglary in the First Degree, one count of Tampering with Physical Evidence, one count of Misdemeanor Theft and one count of Terroristic Threatening. On March 6, 2009, Defendant was sentenced to four consecutive life sentences plus nine additional years at Level V.

         2. On September 9, 2009, Mercer filed a direct appeal to the Delaware Supreme Court. By Order dated November 25, 2009, the Delaware Supreme Court affirmed the convictions and sentences.[1]

         3. On July 6, 2010, Mercer filed his first motion for postconviction relief. In that motion Mercer raised a number of ineffective assistance of counsel claims as well as various other claims.

         4. Before ruling on Mercer's first motion for postconviction relief, the Court enlarged the record by directing Mercer's trial counsel to submit an

          Affidavit responding to Mercer's ineffective assistance of counsel claims. Thereafter, Mercer filed a response thereto.[2]

         5. By Order dated December 15, 2010, the Superior Court denied Mercer's motion for postconviction relief.[3] The Superior Court found Mercer's contentions, including his ineffective assistance of counsel claims, to be without merit.

         6. Mercer appealed the Superior Court's December 15, 2010 Order denying his first motion for postconviction relief to the Delaware Supreme Court. By Order dated July 20, 2011, the Delaware Supreme Court affirmed the Superior Court's denial of Mercer's motion for postconviction relief.[4]

         7. On September 9, 2011, Mercer filed a second motion for postconviction relief. In the second motion, Mercer raised two claims of ineffective assistance of counsel. Specifically, Mercer claimed that his counsel was ineffective for failing to seek the suppression of an in-court identification of Mercer at trial. Mercer also claimed that his counsel was ineffective for failing to "develop and present every issue that held trial error or violated a constitutional right".

          8. On October 5, 2011, the undersigned Superior Court Commissioner issued her Report and Recommendation recommending that Mercer's second Rule 61 postconviction motion be denied.[5] The Commissioner recommended that the motion be denied on the basis that the claims raised therein were procedurally barred and without merit.[6]

         9. By Order dated October 24, 2011, the Superior Court adopted the Commissioner's Report and Recommendation and denied Mercer's second Rule 61 postconviction motion.[7]

         10. On August 15, 2017, Mercer filed a third motion for postconviction relief. In the third motion, Mercer claimed that his counsel was ineffective for failing to challenge his alleged illegal seizure and that the trial court erred when allowing his statement taken during that interrogation to be presented as evidence.[8]

         11. On November 1, 2017, the undersigned Superior Court Commissioner issued her Report and Recommendation recommending that Mercer's third Rule 61 postconviction motion be summarily dismissed.[9] The Commissioner recommended that the motion be summarily dismissed since

          Mercer failed to meet the pleading requirements for proceeding with the motion and that the motion was also time-barred and otherwise procedurally barred.[10]

         12. By Order dated February 28, 2018, the Superior Court, following a de novo review, summarily dismissed Mercer's third motion for postconviction relief for the reasons stated in the Commissioner's Report and Recommendation.[11]

         MERCER'S FOURTH RULE 61 MOTION

         13. On February 12, 2019, Mercer filed the subject motion, his fourth motion for postconviction relief. In this motion, Mercer contends that the post-June 2014 revision to Rule 61 should not be applied to his case. In a February 15, 2019 submission, Mercer seeks to hold the Criminal Rules Advisory Committee accountable on behalf of himself and all other "affected class defendants and legal community" for the alleged constitutional violations stemming from the post-June 2014 revision to Rule 61.

         14. Essentially Mercer claims that the post-June 2014 revision to Rule 61 violates his and other affected class defendants' due process rights, right to fair notice, right to meaningful access to the courts, and other constitutional rights.

         15. In addition to Mercer's challenge to the post-June 2014 revision to Rule 61, in his fourth motion for postconviction relief, Mercer again seeks to challenge his counsel's effectiveness during the pre-trial and trial phases of his case.

         16. Mercer's claims are without merit and his fourth motion for postconviction relief should be summarily dismissed. The Delaware Supreme Court has consistently held that the applicability of the post-June 2014 revision to Rule 61 to all Rule 61 motions filed on or after June 4, 2014, is not in violation of any constitutional rights.[12]

         17. In June 2014, Rule 61 was substantially amended. The Order amending Rule 61 provides that: "This amendment shall be effective on June 4, 2014 and shall apply to ...


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