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George v. State

Supreme Court of Delaware

April 12, 2019

MONIR GEORGE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 14, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. 0805035299

          Before VAUGHN, SEITZ, and TRAYNOR, Justices.

          ORDER

          COLLINS J. SEITZ, JR. JUSTICE

         Upon consideration of the appellant's opening brief, the appellee's motion to affirm, and the record below, it appears to the Court that:

         (1) The appellant, Monir George, filed this appeal from an order in which the Superior Court denied as untimely George's objections to a Commissioner's report. The Commissioner's report recommended that George's second motion for postconviction relief and related motions be denied. The State has moved to affirm the judgment below on the ground that it is manifest on the face of George's opening brief that his appeal is without merit. We agree and affirm.

         (2) In 2009, following a bench trial, George was found guilty but mentally ill of Murder in the First Degree, Attempted Murder in the First Degree, Reckless Endangering in the First Degree, and three counts of Possession of a Firearm During the Commission of a Felony. The evidence at trial was that in May 2008 George shot Malak Michael, a deacon and chief fundraiser for St. Mary's Coptic Orthodox Church, during a church fundraising event in a hotel banquet room. Several witnesses to the event testified at trial, and the evidence also included a photograph of George pointing a gun at the victim just before the shooting. The image was inadvertently captured by an attendee who was photographing the fundraising event. The defense did not dispute that George shot Michael; instead, the defense strategy focused on mitigating George's culpability based on mental illness or insanity. This Court affirmed George's conviction on direct appeal[1] and affirmed the Superior Court's denial of George's first motion for postconviction relief.[2]

         (3) George later filed a second motion for postconviction relief and related motions. The Superior Court referred the motions to a Commissioner. On September 17, 2018, the Commissioner issued a report recommending that the motions be denied. On September 25, 2018, George filed a "Letter of Intent to Appeal Commissioner Decision of 9-17-18," in which he stated that his case is similar to Fowler v. State[3] and requested forms and instructions for filing an appeal. On October 10, 2018, George filed a motion for reconsideration of the Commissioner's report. The Superior Court dismissed the motion as untimely and affirmed the Commissioner's report. This appeal followed.

         (4) Superior Court Criminal Rule 62(a)(5)(ii) provides that a defendant who objects to a Commissioner's report must file written objections setting forth "with particularity the basis for the objections" within ten days after the Commissioner's report is filed. In this case, the Commissioner's report was filed on September 17, 2018; any objections therefore would have been due on or before September 27, 2018. George filed his motion on October 10, 2018, and it was therefore untimely. Relying on the federal prison mailbox rule, George argues that his motion for reconsideration was timely because he gave it to prison personnel for mailing on September 29, 2018, which was within ten days of when he received the Commissioner's report. But the ten-day period for filing objections to the Commissioner's report began to run when the report was filed on September 17.[4]Moreover, the Delaware courts have never adopted a prison mailbox rule.[5] The Superior Court therefore did not err by dismissing the motion as untimely under Rule 62.[6]

         (5) The Superior Court also did not err in determining that George's "Letter of Intent to Appeal" did not comply with Rule 62(a)(5)(ii) because it did not state "with particularity" the basis for his objections to the Commissioner's report. Aside from requesting forms for filing an appeal, the letter merely stated that this case is similar to Fowler; it did not explain with particularity in what ways the cases are similar or how that should change the outcome of the motion for postconviction relief. In any event, as the Superior Court noted, this case differs from Fowler in important ways. In Fowler, the evidence provided by the State's ballistics expert, Carl Rone, was a key component of identifying the defendant as the perpetrator.[7] In this case, George shot the victim at a banquet in front of dozens of witnesses, the evidence presented at trial included a photograph of George pointing a gun at the victim just before the shooting, and George did not contend at trial that he was not the shooter-instead, the defense strategy focused on establishing that George was mentally ill or insane at the time of the offense. In stark contrast to Fowler, the ballistics testimony provided by Rone in George's trial was not central to finding George guilty.

         (6) Because the ten-day period for filing objections to a Commissioner's report is a challenging requirement for an incarcerated, pro se litigant to meet, we have also considered whether George's arguments should be addressed on the merits notwithstanding the fact that his objections were untimely under Rule 62. We hold that the arguments need not be addressed on the merits, because George's motions were subject to summary dismissal under Superior Court Criminal Rule 61.[8] 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.[9]

         (7) The Commissioner concluded that George's motion was not procedurally barred by Rule 61 because George alleged "newly discovered evidence."[10] The Commissioner therefore ...


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