IN THE SUPRElVIE COURT OF TI-DE STATE OF'DELAWARE

WILLIAM GREGORY, §
§
Defendant Below, § No. 463, 2014
Appellant, §
§
V. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, . § in and for New Castle County
§ Cr. ID No. 9811012362
Plaintiff Below, §
Appellee. §

Submitted: December 17, 2014
Decided: January 12, 2015

Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
O R D E R

This 12th day of January 2015, 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, William Gregory, ﬁled this appeal from the Superior
Court’s denial of his third 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 Gregory’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, in February 2000, a Superior Court jury
found Gregory guilty of Attempted Murder in the First Degree, Conspiracy in the
First Degree, Assault in the Second Degree, Possession of a Firearm During the
Commission of a Felony, and Possession of a Deadly Weapon During the
Commission of a Felony. Gregory was sentenced to a total period of thirty years
of Level V incarceration, followed by decreasing levels of supervision. The
Superior Court afﬁrmed Gregory’s convictions on direct appeal.2

(3) In July 2004, Gregory requested appointment of counsel to assist him
with ﬁling a motion for postconviction relief. The Superior Court denied
Gregory’s request. Gregory ﬁled his ﬁrst motion for postconviction relief on
August 19, 2004 and an amended motion on June 13, 2005. Gregory alleged
invalid grand jury proceedings, prosecutorial misconduct, violations of Brady v.
Maryland,3 and ineffective assistance of counsel based on, among other things,
trial counsel’s alleged failure to conduct additional investigation of the victim’s
injuries. After concluding that the non-effective assistance of counsel claims were

untimely under Superior Court Criminal Rule 61(i)(l)4 and the ineffective

2 Gregory v. State, 2001 WL 874766 (July 25, 2001).

3 373 US. 83 (1963).

4 Super. Ct. Crim. R. 61(i)(1) (barring postconviction motion ﬁled more than three years after
judgment of conviction is ﬁnal) (amended in 2006 to reduce ﬁling period to one year).

2

assistance of counsel claims were without merit, the Superior Court denied
Gregory’s motion for postconviction relief.5 This Court afﬁrmed the Superior
Court’ 5 judgment.6

(4) Gregory ﬁled his second motion for postconviction relief on February
1, 2010. In this motion, Gregory argued that he was entitled to a Section 274 jury
instruction under Allen v. State,7 there was insufﬁcient evidence to convict him
because the victim’s medical records did not support the State’s claims, and his
trial counsel was ineffective for failing to request a Section 274 jury instruction
and failing to conduct additional investigation of the victim’s injuries. The
Superior Court concluded that the claims were procedurally barred under Rule
61(i) and that Gregory failed to overcome the procedural hurdles.8 This Court
afﬁrmed the Superior Court’s judgment.9

(5) On October 18, 2013, Gregory ﬁled a motion for appointment of
counsel and his third motion for postconviction relief. A Superior Court

Commissioner denied the motion for appointment of counsel and rejected the

5 State v. Gregory, 2005 WL 3194482 (Del. Super. Ct. Nov. 23, 2005).
6 Gregory v. State, 2006 WL 2950490 (Del. Oct. 17, 2006).

7 970 A.2d 203 (Del. 2009).

8 State v. Gregory, 2010 WL 2397010 (Del. Super. Ct. May 28, 2010).

9 Gregory v. State, 2010 WL 3636190 (Del. Sept. 20, 2010).

motion for postconviction relief as nonconforming with the Superior Court’s Rule
61 form. On February 27, 2014, Gregory ﬁled another motion for appointment of
counsel and a corrected version of his third motion for postconviction relief.

(6) In his third motion for postconviction relief, Gregory relied on
Martinez 12. Ryan10 to argue that he was entitled to appointment of counsel in his
ﬁrst postconviction proceedings and‘that his lack of counsel allowed him to re-
litigate the ineffective assistance claims raised in his previous post-conviction
motions (as well as any new ineffective assistance claims discovered) with the
assistance of counsel. On April 29, 2014, the Superior Court denied Gregory’s
motion for appointment of counsel. On July 29, 2014, the Superior Court denied
Gregory’s third motion for postconviction relief, concluding that it did not err in
denying Gregory’s motion for counsel in his ﬁrst postconviction proceedings and
that recent amendments to Rule 61 providing for the appointment of counsel in a

defendant’s ﬁrst Rule 61 proceedings were not applicable.11 This appeal followed.

10 Martinez v. Ryan, ———-— U.S. —, 132 S. Ct. 1309, 182 L.Ed.2d 272 (2012).

1‘ State v. Gregory, 2014 WL 4101666 (Del. July 29, 2014). Effective May 6, 2013, Rule 61(6)

was amended to provide that the Superior Court would appoint counsel for an indigent defendant
in their ﬁrst postconviction proceedings.

(7) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de rtovo.12 The procedural requirements

of Rule 61 must be considered before addressing any substantive issues.13

(8) Gregory ﬁrst contends that the Superior Court erred in denying his
postconviction motion on procedural grounds without permitting him the
opportunity to amend his motion or appointing counsel. Gregory did not seek to
amend his third postconviction motion before the Superior Court’s denial of that
motion. If Gregory is referring to hisiAugust 6, 2014 letter informing the Superior
Court that he intended to ﬁle a motion for reconsideration, he did not ﬁle a motion
for reconsideration. In the absence of a motion to amend or a motion for
reconsideration, Gregory has not identiﬁed any error by the Superior Court.

(9) As to Gregory’s contention that the Superior Court erred in denying
his motion for postconviction relief without appointing him counsel, Gregory fails
to make any arguments in support of his claim that he was entitled to appointment

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of counsel in his third postconviction proceedings. An appellant must state the

12 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

13 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

14 The May 2013 amendments to Rule 61 regarding appointment of counsel in an indigent
defendant’s ﬁrst postconviction proceedings applied to postconviction motions ﬁled on or after
May 6, 2013 and were not made retroactive. Cook v. State, 2014 WL 2949413, at *1 (Del. June

26, 2014); Roten v. State, 2013 WL 5808236, at *1 (Del. Oct. 28, 2013). The Martinez decision,
which permits a federal court to review a substantial ineffective assistance of counsel claim on

5

merits of an argument in his opening brief or that argument will be waived.15

Gregory fails to state the merits of this argument in his opening brief and has

therefore waived it.16

(10) Gregory next argues that his ineffective assistance of counsel and
prosecutorial misconduct claims are not procedurally barred under Rule 61(i)
because review is warranted in the interest of justice 17 and he has pled a colorable
claim of a miscarriage of justice.18 In support of this argument, Gregory relies on
his claims of ineffective assistance of counsel and his claim that the victim’s
medical records prove he is innocent. Gregory did not make these claims, which
are a reiteration and restatement of claims made in his ﬁrst and second motions for

postconviction relief, in his third motion for postconviction relief. Thus, these

claims may only be reviewed on appeal for plain error.19

federal habeas review, has no apparent application in this case. Steedley v. State, 2014 WL
4113114, at *2 (Del. Aug. 20, 2014).

15 Supr. Ct. R. 14(b)(vi)(A)(3); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).

161d

17 Super. Ct. Crim. R. 61(i)(4) (providing that claims are not barred if review is warranted in
interest of justice).

18 Super. Ct. Crim. R. 61(i)(5) (providing that claims are not barred if there is colorable claim of
miscarriage of justice due to constitutional violation that undermined fairness of proceedings).

19 Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review;
provided, however, that when the interests of justice so require, the Court may consider and
determine any question not so presented”).

(11) There is no plain error here. The Superior Court has previously
addressed and rejected Gregory’s ineffective assistance of counsel claims and his
claims based on the victim’s medical records.20 The Superior Court’s decisions
were afﬁrmed by this Court.21 To the extent Gregory tries to restate claims that
have already been resolved, “a defendant is not entitled to have a court re-examine
an issue that has been previously resolved ‘simply because the claim is reﬁned or

restated. ’”22

Gregory has not shown a basis for this Court to reconsider its
previous rulings. Accordingly, the Superior Court did not err in denying Gregory’s
third motion for postconviction relief.

(12) We note that this is Gregory’s third motion for postconviction relief.
We have invested considerable time detailing the reasons Why Gregory’s claims

are barred. We Will not continue to invest scarce judicial resources to address

untimely and repetitive claims. We encourage Gregory to be mindful of Rule

610').23

20 State v. Gregory, 2010 WL 2397010; State v. Gregory, 2005 WL 3194482.
21 Gregory v. State, 2010 WL 3636190; Gregory v. State, 2006 WL 2950490.

22 Skinner v. State, 607 A.2d 1170, 1172 (Del.1992) (quoting Riley v. State, 585 A.2d 719, 721
(Del.1990)).

23 Super. Ct. Crim. R. 610) (“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”).

7

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

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

KbggW

Justice

