               IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEVON GARNER,                             §
                                          §
          Defendant Below,                §   No. 492, 2014
          Appellant,                      §
                                          §
          v.                              §   Court Below—Superior Court
                                          §   of the State of Delaware,
STATE OF DELAWARE,                        §   in and for New Castle County
                                          §   Cr. ID No. 9811012529
          Plaintiff Below,                §
          Appellee.                       §

                             Submitted: September 24, 2014
                               Decided: October 9, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                      ORDER

          This 9th day of October 2014, 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, Devon Garner, filed this appeal from the Superior

Court’s denial of his second motion for postconviction relief.         The State of

Delaware has filed a motion to affirm the judgment below on the ground that it is

manifest on the face of Garner’s opening brief that his appeal is without merit.1

We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)    The record reflects that, on February 9, 2000, a Superior Court jury

found Garner guilty of Attempted Murder in the First Degree, Conspiracy in the

First Degree, Conspiracy in the Second Degree, Reckless Endangering in the First

Degree, and two counts of Possession of a Firearm During the Commission of a

Felony. Garner was sentenced to Level V incarceration for the balance of his

natural life, plus an additional twenty-two years of Level V incarceration. This

Court affirmed the Superior Court’s judgment on direct appeal.2

         (3)    Garner filed his first motion for postconviction relief on August 4,

2004. The motion included seven ineffective assistance of counsel claims. The

record does not reflect that Garner requested appointment of counsel.         After

receiving an affidavit from Garner’s trial and appellate counsel, the Superior Court

concluded that the ineffective assistance of counsel claims lacked merit. The

Superior Court summarily dismissed Garner’s remaining claims as procedurally

barred by Superior Court Criminal Rule 61 (“Rule 61”). This Court affirmed the

Superior Court’s decision.3

         (4)    On September 19, 2013, Garner filed his second motion for

postconviction relief. In this motion, Garner argued that he was deprived of

counsel in his first postconviction proceeding and was therefore entitled to re-

2
    Garner v. State, 2001 WL 1006178 (Del. Aug. 7, 2001).
3
    Garner v. State, 2005 WL 3143435 (Del. Nov. 22, 2005).


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litigate the ineffective assistance of counsel claims he had raised in 2004, with the

assistance of counsel. The Superior Court denied the motion on the grounds that it

was untimely under Rule 61(i)(1),4 repetitive under Rule 61(i)(2),5 and

procedurally defaulted under Rule 61(i))(3)6 and that Garner’s lack of counsel in

his first postconviction proceeding did not constitute a miscarriage of justice under

Rule 61(i)(5).7 This appeal followed.

          (5)    We review the Superior Court’s denial of postconviction relief for

abuse of discretion and questions of law de novo.8 The procedural requirements of

Rule 61 must be considered before addressing any substantive issues.9 In this

appeal, Garner argues that he has overcome the procedural bars of Rule 61(i)

because his lack of counsel in his first postconviction proceeding, which included

ineffective assistance of counsel claims, constituted a miscarriage of justice under


4
  Super. Ct. Crim. R. 61(i)(1) (barring motion filed more than three years after judgment of
conviction is final) (amended in 2006 to reduce filing period to one year).
5
  Super. Ct. Crim. R. 61(i)(2) (barring any ground for relief not asserted in prior postconviction
proceeding).
6
    Super. Ct. Crim. R. 61(i)(3) (barring claim not raised in proceedings leading to conviction).
7
  Super. Ct. Crim. R. 61(i)(5) (providing that barred claims can be reviewed if there is colorable
claim of miscarriage of justice due to constitutional violation that undermined fairness of
proceedings).
8
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
9
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).


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Rule 61(i)(5). In support of this argument, Garner relies on United States Supreme

Court cases like Martinez v. Ryan10 and this Court’s decisions in cases like Holmes

v. State11 to contend that he had a constitutional and statutory right to counsel in his

first postconviction proceeding. This reliance is misplaced.

         (6)     First, none of the United States Supreme Court cases cited by Garner

hold that indigent defendants have a constitutional right to appointment of counsel

in postconviction proceedings. Martinez, for example, holds that a lack of counsel

or inadequate assistance of counsel during initial postconviction proceedings may

establish cause for a defendant's procedural default of a claim of ineffective

assistance of counsel at trial in pursuing federal habeas corpus relief.12 Martinez

does not hold that there is a federal constitutional right to counsel in first

postconviction proceedings.13 To the extent Garner claims that he had a right to

counsel in his first postconviction proceeding under the Delaware Constitution, his




10
     ---U.S.---, 132 S. Ct. 1309, 182 L.E.2d 272 (2012).
11
     2013 WL 2297072 (Del. May 23, 2013).
12
     Martinez, 132 S. Ct. at 1320.
13
   Id. at 1315 (“This is not the case, however, to resolve whether [an exception to the
constitutional rule that there is no right to counsel in collateral proceedings] exists as a matter of
constitutional law.”).

                                                  4
cursory references to the Delaware Constitution do not properly present that claim

for review and that claim is therefore waived.14

         (7)     Second, this Court did not hold in Holmes or subsequent cases that

amendments to Rule 61(e)(1), which provided for appointment of counsel in an

indigent defendant’s first postconviction proceeding, created a retroactive right to

counsel for indigent defendants pursuing subsequent motions for postconviction

relief. In Holmes, we held that the Superior Court abused its discretion in denying

Holmes' motion for the appointment of counsel to assist him in his first

postconviction proceeding.15 We remanded for the appointment of counsel under

the recently amended Rule 61(e)(1).16 This Court has held that the amendment to

Rule 61(e)(1) was not retroactive.17                 Given that this is Garner’s second

postconviction motion, Holmes and the other cases that Garner relies upon are

simply not applicable here. We conclude therefore that the Superior Court did not


14
   Ortiz v. State, 869 A.2d 285, 290-91 (Del. 2005) (holding that proper presentation of alleged
violation of Delaware Constitution requires more than conclusory reference to section of
Delaware Constitution).
15
     2013 WL 2297072, at *1.
16
   Holmes, 2013 WL 2297072, at *1. See also Stevens v. State, 2013 WL 4858987 (Del. Sept.
10, 2013) (vacating denial of defendant’s first postconviction motion and remanding for
appointment of counsel); Howard v. State, 2013 WL 3833335 (Del. July 19, 2013) (remanding
denial of defendant’s first postconviction motion for appointment of counsel and
reconsideration); Ayers v. State, 2013 WL 3270894 (Del. June 24, 2013) (same).
17
     Roten v. State, 2013 WL 5808236, at *1 (Del. Oct. 28, 2013).


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err in finding that Garner’s second motion for postconviction relief was

procedurally barred and that Garner failed to overcome the procedural hurdles.

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

GRANTED and the judgment of the Superior Court is AFFIRMED.



                                            BY THE COURT:

                                            /s/ Henry duPont Ridgely
                                            Justice




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