             IN THE SUPREME COURT OF THE STATE OF DELAWARE

ERIC D. RUSSELL,                      §
                                      §
        Defendant Below,              §     No. 615, 2015
        Appellant,                    §
                                      §     Court Below—Superior Court
        v.                            §     of the State of Delaware
                                      §
STATE OF DELAWARE,                    §     Cr. ID No. 0801028059
                                      §
        Plaintiff Below,              §
        Appellee.                     §

                           Submitted: January 12, 2016
                           Decided:   March 4, 2016

Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.

                                     ORDER

        This 4th day of March 2016, upon consideration of the appellant’s opening

brief, motion to remand, and motion for seal, the appellee’s motion to affirm and

responses to the appellant’s motions, and the record below, it appears to the Court

that:

        (1)    In 2009, a Superior Court jury convicted the appellant, Eric D.

Russell, of one count each of Rape in the First Degree, Indecent Exposure,

Offensive Touching, and Endangering the Welfare of a Child, and two counts of

Unlawful Sexual Contact in the First Degree. Russell was sentenced to life in
prison, plus more than thirty years of Level V incarceration. This Court affirmed

the Superior Court’s judgment on direct appeal.1

       (2)    On October 20, 2015, Russell filed his fourth motion for

postconviction relief under Superior Court Criminal Rule 61. Russell claimed that

his trial counsel was ineffective for failing to investigate before trial the testimony

of the only defense witness who testified at trial. The Superior Court concluded

that the motion was procedurally barred under Rule 61(i) and summarily dismissed

the motion. This appeal followed.

       (3)    In his opening brief, Russell raises the claim asserted in his fourth

motion for postconviction relief as well as additional claims of ineffective

assistance of counsel and a claim that his constitutional right to act as co-counsel

was violated. Russell did not raise these claims below and we will not consider

them for the first time on appeal.2 As to the ineffective assistance of counsel claim

raised in Russell’s fourth motion for postconviction relief, we review the Superior

Court’s denial of postconviction relief for abuse of discretion and questions of law

de novo.3 The procedural requirements of Rule 61 must be considered before any

substantive issues are addressed.4




1
  Russell v. State, 5 A.3d 622 (Del. 2010).
2
  See Supr. Ct. R. 8.
3
  Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                              2
      (4)    As to the claims that he did not waive by failing to present them fairly

below, Russell has not overcome the procedural hurdles of Rule 61. Effective June

4, 2014, Rule 61 provided that a second or later motion for postconviction relief

would be summarily dismissed unless the movant was convicted after trial and

pled with particularity either: (i) a claim that new evidence existed that created a

strong inference that he was actually innocent; or (ii) a new rule of constitutional

law made retroactive to cases on collateral review rendered his convictions

invalid.5 This was Russell’s fourth motion for postconviction relief. Russell did

not plead with particularity a claim under either Rule 61(d)(2)(i) or

Rule 61(d)(2)(ii). Thus, the Superior Court did not err in denying Russell’s fourth

motion for postconviction relief.

      (5)    Russell has also filed a motion to remand and to stay the proceedings

pending what he claims to be an “unexhausted Due Process 14th amendment claim

under Banks v. Horn 126 F.3d 206.”6 Russell does not offer any details concerning

this claim or why it would not be subject to summary dismissal under Rule

61(d)(2). In fact, he admits this claim was not fairly presented7 to the Superior

Court. Because the nature of the supposed claim is entirely unexplained and it was


5
  Super. Ct. R. 61(d)(2).
6
  Motion for Remand at 1; see also Banks v. Horn, 126 F.3d 206, 214 (3d Cir. 1997) (holding
district court erred in concluding that state review of inmate’s unexhausted claims was
foreclosed in death penalty case and remanding to district court to dismiss inmate’s habeas
corpus petition without prejudice).
7
  Supr. Ct. R. 8.
                                            3
never fairly presented below, it provides no basis for a remand and Russell has

shown no reason why if this claim was never pled, it is not procedurally barred.

       (6)    Finally, Russell filed a motion to seal his letters to his trial counsel.

Russell does not identify the letters he seeks to have sealed or explain the basis for

sealing any such letters in the record. This motion is denied.

       (7)    We have now concluded for a fourth time that the Superior Court

properly denied Russell’s motion for postconviction relief under Rule 61.8 We will

not continue to invest scarce judicial resources to address untimely and repetitive

claims. In the future, if Russell files a notice of appeal or a petition for an

extraordinary writ concerning his 2009 convictions, the Clerk is directed to refuse

the filing unless it is accompanied by the required filing fee or a completed motion

to proceed in forma pauperis with a sworn affidavit containing the certifications

under 10 Del. C. § 8803(e), and that motion is granted by the Court.9 Russell

should also be mindful of Rule 61(j).10

8
  Russell v. State, 2014 WL 5479314 (Del. Oct. 28, 2014); Russell v. State, 2012 WL 3961195
(Del. July 30, 2013); Russell v. State, 2012 WL 5417068 (Del. Nov. 5, 2012).
9
  10 Del. C. § 8803(e) provides:

       When a court finds that a litigant has abused the judicial process by filing
       frivolous or malicious litigation, the court may enjoin that litigant from filing
       future claims without leave of court. When so enjoined, any future requests to file
       claims must be accompanied by an affidavit certifying that:

       (1) The claims sought to be litigated have never been raised or disposed of before in any
       court;

       (2) The facts alleged are true and correct;

                                                 4
       NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED. The motion

for remand and the motion for seal are DENIED.

                                             BY THE COURT:
                                             /s/ Leo E. Strine, Jr.
                                             Chief Justice




       (3) The affiant has made a diligent and good faith effort to determine what relevant case
       law controls the legal issues raised;

       (4) The affiant has no reason to believe the claims are foreclosed by controlled law; and

      (5) The affiant understands that the affidavit is made under penalty of perjury.
10
  Super. Ct. R. 61(j) (“If a motion is denied, the state may move for an order requiring the
movant to reimburse the state for costs and expenses paid for the movant from public funds.”).
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