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State v. McCoy

Superior Court of Delaware

July 17, 2019

STATE OF DELAWARE, Plaintiff,
v.
KADIR MCCOY, Defendant.

          Submitted: June 10, 2019

          Periann Doko, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Kadir McCoy, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND DEFENDANT'S MOTION FOR THE APPOINTMENT OF COUNSEL SHOULD BE DENIED.

          LYNNE M. PARKER, COMMISSIONER

         This 17th day of July 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND, FACTS AND PROCEDURAL HISTORY

         1. On April 13, 2015, Defendant Kadir McCoy was indicted on three counts of Robbery First Degree, two counts of Aggravated Menacing, Conspiracy Second Degree, Wearing a Disguise During the Commission of a Felony, Carrying a Concealed Deadly Weapon, two counts of Possession of a Firearm by a Person Prohibited, two counts of Possession of Ammunition by a Person Prohibited, and Resisting Arrest.

         2. On August 31, 2015, McCoy was reindicted for the above charges and additional charges including Illegal Gang Participation, two counts of Murder First Degree and multiple firearm and conspiracy offenses. The Illegal Gang Participation charge stemmed from McCoy's membership in the Touch Money Gang, also known as "TMG".

         3. One count of Murder First Degree was for the murder of Devon Lindsey. The murder occurred on January 18, 2015 on E. 29th Street in Wilmington, Delaware. The victim was shot in the head after three suspects fired inside a minivan where the victim was a passenger. McCoy was developed as a suspect through video surveillance footage of the homicide and witness statements.

         4. The second count of Murder First Degree was for the murder of William "Billy" Rollins. The murder occurred on January 24, 2015 at W. 21stStreet and Washington Street, Wilmington, Delaware. The victim was found with eleven gunshot wounds on the left side of his body and his right temple. Fifteen 9mm shell casings were located at the scene. The 9mm shell casings were ballistically matched to a 9mm handgun found in a backpack that had been tossed by McCoy on January 29, 2015, when he was fleeing from a WSFS Bank after committing a robbery. Two projectiles recovered at the homicide scene appeared to be fired by a .357 firearm. A search warrant executed at the residence of McCoy on February 3, 2015 uncovered a .357 Taurus firearm.

         5. One of the Robbery First Degree charges stemmed from the robbery on January 29, 2015 at WSFS Bank located at Union Street, Wilmington, Delaware. Two masked suspects showed guns, demanded money, and seized approximately $15, 000 in cash. Officers responded to the crime scene as the suspects were fleeing. After a brief foot chase, McCoy and his co-conspirator (Cordele Stewart) were arrested. McCoy was seen tossing a red backpack. Inside the backpack was the stolen money and a 9mm Ruger P85. The 9mm was matched to shell casings fired at the scene of the William Rollins homicide on January 24, 2015.

         6. On March 3, 2017, McCoy pled guilty to two counts of Murder Second Degree (lesser-included offenses of Murder First Degree), two counts of Possession of a Firearm during the Commission of a Felony, two counts of Conspiracy First Degree, one count of Robbery First Degree, and one count of Illegal Gang Participation.[1]

         7. In exchange for the guilty plea, the State agreed to dismiss all the other charges in the indictment.[2] Although McCoy was facing two life sentences if convicted of the Murder in the First Degree charges, and hundreds of years of prison time for the multiple robbery and firearm related charges, as part of the plea, the State agreed to cap it sentence recommendation to the minimum-mandatory period of 39 years of unsuspended Level V time.[3]

         8. On August 10, 2017, McCoy filed a motion to withdraw his guilty plea. The Superior Court denied the motion by Order dated August 17, 2017.[4] In deciding the motion, the Superior Court held that there was no procedural defect in taking the plea; that McCoy knowingly and voluntarily consented to the plea agreement; that McCoy had no basis to assert a claim of legal innocence; and that McCoy had adequate legal counsel throughout the proceedings.[5]

         9. The Superior Court further noted that McCoy was satisfied with his counsel's representation at the time of the plea, and that, as a practical matter, the plea agreement was McCoy's only option to avoid spending the remainder of his life in jail.[6]

         10. The Superior Court in denying McCoy's motion to withdraw his plea ruled that McCoy had failed to set forth any basis to warrant the withdrawal of his plea.[7]

         11. On August 18, 2017, McCoy was sentenced to the minimum-mandatory period of 39 years of unsuspended Level V time, followed by probation.

         12. McCoy did not file a direct appeal to the Delaware Supreme Court.

         MCCOY'S RULE 61 MOTION

         13. On October 16, 2018, McCoy filed the subject Rule 61 motion.

         14. While the Rule 61 motion was pending, McCoy filed an almost identical Rule 61 motion on January 17, 2019, in which he again raised the same issues that his raised in his initial motion.

         15. In the subject motion, McCoy raises three claims: (1) that his trial counsel provided ineffective assistance of counsel arising out of improprieties with his plea; (2) that trial counsel was ineffective for filing a motion to withdraw the guilty plea too late to be considered by the Court; and (3) that there was newly discovered evidence in that the firearms and tool marks examiner was subsequently arrested for "fraudulent and illegal activity."

         16. Before making a recommendation, the record was enlarged and McCoy's trial counsel was directed to submit an Affidavit responding to McCoy's claims. Thereafter, the State filed a response to the motion. McCoy was given the opportunity to file a reply thereto.[8]

         17. For the reasons discussed below, McCoy's Rule 61 motion is time-barred and otherwise procedurally barred, waived and without merit.

         McCoy's Claims Are Procedurally Barred

         18. Prior to addressing the substantive merits of any claim for postconviction relief the court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61.[9] If a procedural bar exists, then the claim is barred and the court should not consider the merits of the postconviction claim.[10]

         19. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction;[11] (2) any basis for relief must be asserted in the first timely filed motion for postconviction relief absent exceptional circumstances (ie. discovery of new evidence that creates a strong inference of defendant's actual innocence or new rule of constitutional law that would render the conviction invalid) warranting a subsequent motion being filed; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights and cause for relief; and (4) any basis for relief must not have been formally adjudicated in any prior proceeding. The bars to relief however do not apply to a claim that the court lacked jurisdiction or to a claim that new evidence exists that movant is actually innocent or that there is a new law, made retroactive, that would render the conviction invalid.[12]

         20. In the subject action, Rule 61(i)(1) precludes this court from considering McCoy's claims raised herein because McCoy's motion is time-barred.[13] To be timely, a motion for postconviction relief must be filed within one year after the judgment of conviction is final.[14] McCoy's conviction became final on or about September 17, 2017.[15] This motion was filed on October 16, 2018, outside the applicable one-year limit. McCoy's claims, at this late date, are time-barred.

         21. Rule 61(i)(2) and Rule 61(i)(5) further preclude this court's consideration of McCoy's motion since McCoy has not satisfied the pleading requirements for proceeding with this motion. Since McCoy's motion was not timely filed, in order to overcome the procedural hurdles, McCoy must establish that the court lacked jurisdiction; or that new evidence exists that creates a strong inference that defendant is actually innocent of the underlying charges for which he was convicted; or that the existence of a new rule of constitutional law made retroactive to this case would render his convictions invalid.

         22. In the subject motion, McCoy is unable to overcome the procedural hurdles of Rule 61(i)(3) by showing an exception in Rule 61(i)(5) applies. McCoy has not established that the court lacked jurisdiction, that any new evidence existed to create a strong inference that he is actually innocent of the underlying charges, or that a new rule of constitutional law exists that would render his conviction invalid. As such, McCoy has failed to meet the pleading requirements allowing him to proceed with his Rule 61 motion.

         23. Rule 61(i)(3) further prevents this court from considering any claim raised by McCoy at this late date that had not previously been raised. McCoy was aware of, had time to, and the opportunity to raise the claims presented herein in a timely filed motion.

         24. McCoy has not established any prejudice to his rights and/or cause for relief. McCoy had time and opportunity to raise any issue raised herein in a timely filed postconviction motion. There is no just reason for McCoy's delay in doing so. Having been provided with a full and fair opportunity to present any issue desired to be raised in a timely filed motion, any attempt at this late juncture to raise, re-raise or re-couch a claim is procedurally barred.

         25. Finally, Rule 61(i)(4) precludes this court's consideration of the claims presented herein since the claims regarding McCoy's guilty plea have already been formally adjudicated in McCoy's motion to withdraw his guilty plea. The Superior Court has already held that McCoy failed to set forth any basis that would warrant the withdrawal of the plea. The Superior Court already ruled that there were no procedural defects in the taking of the plea, which McCoy entered into the plea knowingly and voluntarily, ...


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