      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                            )
STATE OF DELAWARE                           )
                                            )
           v.                               )      I.D. No. 9510007098
                                            )
KEVIN C. BRATHWAITE,                        )
                                            )
                  Defendant                 )


                            Submitted: July 31, 2017
                           Decided: October 23, 2017

On Defendant’s Motion for Postconviction Relief and Motion for Appointment of
                  Counsel. SUMMARILY DISMISSED.

                                   ORDER
John W. Downs, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Gregory E. Smith, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Kevin C. Brathwaite, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.

COOCH, R.J.

      This 23rd day of October, 2017, upon consideration of Defendant’s
Fourth Motion for Postconviction Relief and Fourth Motion for Appointment
of Counsel, it appears to the Court that:

      1.    In 1998, a jury found Kevin Brathwaite (“Defendant”) guilty of
            multiple counts of unlawful sexual intercourse and related crimes
            in the assaults of three women. Defendant was sentenced to six
            life terms, plus an additional 110 years. The Supreme Court of

                                        1
              Delaware affirmed Defendant's convictions on direct appeal on
              October 22, 1999.1

       2.     Defendant filed his First Motion for Postconviction
              Relief/Motion for a New Trial in 1999.2 This Court denied that
              Motion on March 17, 2003 and the Supreme Court of Delaware
              affirmed the decision on July 10, 2006.3

       3.     Defendant subsequently filed, pro se, a petition for a writ of
              habeas corpus that was denied by the United States District
              Court.4 The Third Circuit affirmed this denial on March 22,
              2011.5

       4.     On February 28, 2013, Defendant filed his second, pro
              se, Motion for Postconviction Relief. A Commissioner
              recommended denial of the motion and the Court adopted the
              Commissioner's Report and Recommendation on May 14,
              2013. Defendant did not appeal.

       5.     Defendant filed his third, pro se, Motion for Postconviction
              Relief on July 9, 2014 asserting six grounds for relief.6 This
              Court denied Defendant’s Motion on procedural grounds on
              August 29, 2014.7

       6.     Defendant also filed three Motions for Appointment of Counsel
              on January 29, 2014; March 4, 2014; and June 19, 2015.8 This
              Court denied the January 29, 2014 and March 4, 2014 Motions
              on April 29, 2014 holding that “Defendant's motion fails to
              establish the requisite good cause because it does not provide any

1
  State v. Brathwaite, 2014 WL 4352170 (Del. Super. Ct. Aug. 29, 2014), aff'd, 113 A.3d 1080
(Del. 2015).
2
  Brathwaite v. State, 903 A.2d 322 (Del. 2006).
3
  Id.
4
  Brathwaite v. Phelps, 2009 WL 3345595 (D. Del. Oct. 16, 2009), aff'd, 418 F. App'x 142 (3d Cir.
2011).
5
  Brathwaite v. Phelps, 418 F. App'x 142 (3d Cir. 2011), cert denied 131 S.Ct. 3038 (2011).
6
  State v. Brathwaite, 2014 WL 4352170, at *1 (Del. Super. Ct. Aug. 29, 2014), aff'd, 113 A.3d
1080 (Del. 2015).
7
  Id. at *4.
8
  Id.

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               factual support or legally viable argument which would justify
               granting the relief sought. He simply proclaims in conclusory
               terms that there were errors and/or misconduct by his attorney
               which were extremely prejudicial to his defense.”9 The Court
               denied Defendant’s Third Motion for Appointment of Counsel
               for the same reasons on August 29, 2014.10

       7.      On April 27, 2015, the Supreme Court of Delaware affirmed this
               Court’s denial of Defendant’s Third Motion for Postconviction
               Relief and Third Motion for Appointment of Counsel.11

       8.      Defendant has now filed his Fourth Motion for Postconviction
               Relief and his Fourth Motion for Appointment of Counsel based
               on the following grounds for relief:

               a. “[An] affidavit and sworn statement establish by clear and
                  convincing evidence [Defendant’s] actual innocence and
                  constitutes newly discovered evidence that was previously
                  unavailable.”12

               b. “[T]he trial judge abused his discretion in failing to continue
                  the trial on the Court’s own motion and further failed to report
                  prosecutorial misconduct and potential felony law
                  violations[.]”

               c. “[A]ppellate counsel rendered ineffective representation by
                  failing to raise the above issues on appeal.

               Defendant also raises various arguments that his trial counsel
               was ineffective, such as trial counsel failed to subpoena,

9
  Id.
10
   Id. at *4 (denying both Defendant’s Third Motion for Postconviction Relief and Third Motion
for Appointment of Counsel).
11
   Brathwaite v. State, 113 A.3d 1080 (Del. 2015) (holding that “the denial of Brathwaite's third
motion for postconviction relief and motions for appointment of counsel . . . should be affirmed
on the basis of the Superior Court's well-reasoned orders dated April 29, 2014 and August 29,
2014.”).
12
   Defendant provided two affidavits as exhibits to his Motion. The first Affidavit is from one of
Defendant’s ex-girlfriends, Valerie A. Relation. (“Affidavit A”). The second affidavit is from the
cousin of one of Defendant’s victims who testified against him, Salan Chapman. (“Affidavit B”).

                                                3
              investigate, locate, and impeach certain witnesses, failed to offer
              timely objections at trial, failed to adequately raise arguments
              related to potential exculpatory Brady evidence, and that trial
              counsel “exhibited [a] conflict of interest by failing to report
              witness intimidation by Government Agents.”

       9.     Rule 61 is the remedy for defendants “in custody under a
              sentence of this court seeking to set aside the judgment of
              conviction . . . .”13 This Court “must first consider the procedural
              requirements of Rule 61 before addressing any substantive
              issues.”14 The procedural “bars” of Rule 61 are:
              timeliness, repetitiveness, procedural       default, and     former
                             15
              adjudication. A motion is untimely if it is filed more than one
              year after the conviction is finalized or defendant asserts a new
              constitutional right that is retroactively applied more than one
              year after it is first recognized.16

       10.    A motion is repetitive if it is a “second or subsequent motion.”17
              The procedural default bar applies where grounds for relief are
              not raised “in the proceedings leading to the judgment of
              conviction,” unless defendant can show “cause for relief” and
              “prejudice from [the] violation.”18 Grounds for relief that have
              been formerly adjudicated in the case including “proceedings
              leading to the judgment of conviction, in an appeal, in a
              postconviction proceeding, or in a federal habeas corpus
              hearing” are barred.19 “If any of these bars apply, the movant
              must show entitlement to relief under Rule 61(i)(5)”.20 The
              contentions in a Rule 61 motion must be considered on a “claim-
              by-claim” basis.21

13
   Del. Super. Ct. Crim. R. 61.
14
   State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting
Bradley v. State, 135 A.3d 748, 756 (Del. 2016)).
15
   Del. Super. Ct. Crim. R. 61(i); Stanford, WL 2484588, at *2.
16
   Del. Super. Ct. Crim. R. 61(i)(1).
17
   Del. Super. Ct. Crim. R. 61(i)(2).
18
   Del. Super. Ct. Crim. R. 61(i)(3).
19
   Del. Super. Ct. Crim. R. 61(i)(4).
20
   Stanford, WL 2484588, at *2.
21
   State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (holding that “Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).

                                             4
       11.     Before it may address the merits of Defendant’s Fourth Motion
               for Postconviction Relief, this Court must analyze the procedural
               bars of Superior Court Criminal Rule 61(i).22 If one or more of
               the procedural bars applies, then this Court will not proceed to
               consider the merits of Defendant’s postconviction claim.23

       12.     Defendant’s Motion is procedurally barred for several reasons.
               Defendant’s Motion was filed more than three years24 after
               Defendant’s conviction was finalized under Rule 61(i)(1) when
               his direct appeal was denied in 1999.25

       13.     Also, as this is Defendant’s Fourth Motion for Postconviction
               Relief, it is procedurally barred as repetitive.

       14.     Even if the Court were to look past the untimely and repetitive
               procedural bars to Defendant’s Motion, it nonetheless fails.

       15.     Defendant’s argument that he was afforded ineffective assistance
               of counsel is procedurally barred as previously adjudicated.
               Defendant has unsuccessfully argued ineffective assistance of
               counsel in all four of his motions for postconviction relief. The
               issue has been thoroughly addressed in both state and federal
               courts. As this Court has previously held, “[s]imply restating or
               reframing these claims does not change the fact that Defendant's
               arguments have already been considered and rejected.”26



22
   Brathwaite, 2014 WL 4352170, at *2.
23
   Id.
24
    The one-year limitation is an amendment to Rule 61, effective July 1, 2005. Defendant is
therefore subject to the original three year limitations period prior to 2005. Defendant is still,
however, twelve years beyond that limitation.
25
   Del. Super. Ct. Crim. R. 61(m)(2) (A judgment of conviction is final for the purpose of this rule
. . . [i]f the defendant files a direct appeal or there is an automatic statutory review of a death
penalty, when the Supreme Court issues a mandate or order finally determining the case on direct
review.”
26
    Brathwaite, 2014 WL 4352170, at *2 (holding that “Defendant's claims as to ineffective
assistance of counsel, his issues with conflicted counsel, and pro se rights are procedurally barred
as previously adjudicated.”).

                                                 5
       16.     Further, Defendant again asserts a newly discovered evidence
               ground for relief. This ground for relief is also procedurally
               barred as previously adjudicated. In Defendant’s First Motion for
               Postconviction Relief, this Court illustrated the standard for
               newly discovered evidence in response to Defendant’s argument
               that he was entitled to a new trial:
                    In order to warrant the granting of a new trial on the ground of
                    newly discovered evidence, it must appear (1) that the evidence is
                    such as will probably change the result if a new trial is granted; (2)
                    that it has been discovered since the trial and could not have been
                    discovered before by the exercise of due diligence; (3) that it is not
                    merely cumulative or impeaching. 27

       17.     While the evidence in question here differs from the 2003
               evidence, the reasoning remains consistent. First, the author of
               Affidavit A admits that she could have been located to testify at
               Defendant’s trial in 1997 with relative ease.28 It is thus not
               evidence that “could not have been discovered before by the
               exercise of due diligence.”29 Also, Affidavit B is “merely . . .
               impeaching” because it questions the credibility of one of
               Defendant’s victims who testified against him.30

       18.     Further, as to the grounds for relief that trial counsel rendered
               ineffective assistance of counsel for an alleged failure to take
               certain actions during the course of the trial, that argument is
               likewise unavailing. Delaware courts have consistently held
               “[t]he decision about what evidence to present remains with
               defense counsel and in a given case counsel may, quite
               reasonably, refrain from presenting evidence.”31 To support a

27
   State v. Brathwaite, 2003 WL 1410155, at *3 (Del. Super. Ct. Mar. 17, 2003), aff'd, 903 A.2d
322 (Del. 2006) (quoting State v. Hamilton, 406 A.2d 879, 880 (Del. Super. Ct. 1974)).
28
   Def.’s Mem. In Support of Mot. For Postconviction Relief, Ex. A at 4-5, (July 31, 2017) (“It
definitely would not have been very hard to locate me if he had actually tried at all.”)
29
   Hamilton, 406 A.2d at 880.
30
   Def.’s Mem. In Support of Mot. For Postconviction Relief, Ex. B at 2, (July 31, 2017) (“So
when [Salan Chapman] says her and Kevin were never intimately involved, she is blatantly and
absolutely telling a lie.”).
31
   Flamer, 585 A.2d at 757 (citing several Burger v. Kemp, 483 U.S. 776, 790 (1987)); see also
Rodriguez v. State, 109 A.3d 1075, 1077 (Del. 2015) (holding that trial counsel’s failure to object
to evidence, failure to move for mistrial, failure to suppress evidence, and decision to defer giving

                                                  6
               claim of ineffective assistance of counsel, a defendant must
               demonstrate counsel’s deficiency as measured by an objective
               level of reasonableness and that the deficiency deprived
               defendant of a fair trial with reliable results.32 “Mere allegations
               of ineffectiveness will not suffice. A defendant must make
               specific allegations of actual prejudice and substantiate them.” 33
               Defendant’s conclusory allegations that his trial counsel was
               ineffective because he “failed to” take certain specific actions
               that Defendant now identifies in retrospect, are insufficient to
               make a claim of ineffective assistance of counsel.

       19.     Finally, as this is Defendant’s Fourth Motion for Appointment of
               Counsel, it is procedurally barred as repetitive. Additionally, not
               unlike his previous Motions for Appointment of Counsel,
               Defendant again asserts only conclusory statements that he needs
               counsel. His assertions fail to show good cause because they lack
               factual support and fail to provide a legally viable argument.


Therefore, Defendant’s Motion for Postconviction Relief is SUMMARILY
DISMISSED.


       IT IS SO ORDERED.

                                                            ______________________
                                                               Richard R. Cooch, R.J.


cc:    Prothonotary
       Investigative Services




his opening statement until the close of the State’s case as a matter of trial strategy did not support
a claim of ineffective assistance of counsel.).
32
   Strickland v. Washington, 466 U.S. 668, 688 (1984).
33
   Brathwaite, 2014 WL 4352170, at *4 (quoting Wright v. State, 671 A.2d 1353, 1356 (Del.
1996)).


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