Submitted: June 10, 2019
Periann Doko, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
McCoy, James T. Vaughn Correctional Center, Smyrna, Delaware,
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED AND DEFENDANT'S
MOTION FOR THE APPOINTMENT OF COUNSEL SHOULD BE
M. PARKER, COMMISSIONER
17th day of July 2019, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
FACTS AND PROCEDURAL HISTORY
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.
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".
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.
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.
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.
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.
exchange for the guilty plea, the State agreed to dismiss all
the other charges in the indictment. 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
August 10, 2017, McCoy filed a motion to withdraw his guilty
plea. The Superior Court denied the motion by Order dated
August 17, 2017. 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.
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.
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.
August 18, 2017, McCoy was sentenced to the minimum-mandatory
period of 39 years of unsuspended Level V time, followed by
McCoy did not file a direct appeal to the Delaware Supreme
RULE 61 MOTION
October 16, 2018, McCoy filed the subject Rule 61 motion.
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
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."
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.
the reasons discussed below, McCoy's Rule 61 motion is
time-barred and otherwise procedurally barred, waived and
Claims Are Procedurally Barred
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. If a procedural bar exists, then the
claim is barred and the court should not consider the merits
of the postconviction claim.
Rule 61 (i) imposes four procedural imperatives: (1) the
motion must be filed within one year of a final order of
conviction; (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.
the subject action, Rule 61(i)(1) precludes this court from
considering McCoy's claims raised herein because
McCoy's motion is time-barred. To be timely, a motion
for postconviction relief must be filed within one year after
the judgment of conviction is final. McCoy's conviction
became final on or about September 17, 2017. This motion
was filed on October 16, 2018, outside the applicable
one-year limit. McCoy's claims, at this late date, are
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.
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.
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.
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.
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, ...