l IN THE SUPREME COURT OF TI-IE`. STATE OF DELAWARE

CORY D. WASI-IINGTON, §
§
Defendant Below- § No. 152, 2014
Appellant, §
§
v. § Court Below-Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID 080802l606
Plaintiff Below- §
Appellee. §

s`ubnuned; July 7, 2014
Decided: August 26, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.
0 R D E R

This 26th day of August 2014, upon consideration of the appellant’s opening
brief, the appellee’s motion to aflirrn,‘ and the record be1ow, it appears to the Court
that:

(1) The appellant, Cory D. Washington, filed this appeal nom the
Superior Court’s summary dismissal of his second motion for postconviction relief

and denial of his motion for appointment of counsel. The State has filed a motion

' The State of Delaware acknowledges that the motion to affirm was filed more than ten days
after the June 13, 2014 date on the certificate of service with the opening brief, but indicates that
the State did not receive the opening brief until June 27, 2014. lt appears that the Prothonotary’s
Oflice received the brief on June 17, 2014 and later forwarded it to this Court, leading to the
docketing of the opening brief in this appeal on June 27, 2014. To the extent the motion to
affirm is untimely, this Court may affirm the trial court’s judgment sua sponte in accordance
with Supreme Court Rule 25(b). Marvel v. State, 2009 WL 2158107, at *1 (Del. July 21, 2009).

to affirm the judgment below on the ground that it is manifest on the face of
Washington’s opening brief that his appeal is without merit.’ We agree and affirm.

(2) In February 2009, a Superior Court jury found Washington guilty of
Possession with Intent to Deliver Heroin, Delivery of Heroin, and Loitering.
During the trial, Washington moved for judgment of acquittal on the delivery and
loitering charges. After the trial, Washington filed a motion for judgment of
acquittal on the delivery charge. The Superior Court denied the motion as
untimely. Washington was sentenced to a total of ten years of Level V
incarceration, followed by six months of Level IV supervision, and a fine of $300.

(3) On direct appeal, this Court assumed without deciding that
Washington’s motion for judgment of acquittal ~was timely and concluded that
there was sufficient evidence to prove Delivery of Heroin.’

(4) Washington filed his first motion for postconviction relief on January
10, 201 l. In this motion, Washington claimed that the Superior Court erred in
failing to poll the jury after its verdict, the trial judge was biased in denying the
motion for judgment of acquittal as untimely and should have recused himself, and
Washington should not have been charged with loitering because that charge did

not appear in the police report or affidavit of probable cause. Washington did not

2 supr. cr. R. 25@).

3 Washington v. State, 2009 WL 382321 l, at *2-3 (Del. Nov. 16, 2009).

2

raise any ineffective assistance of counsel clairns. The Superior Court referred the
motion to a commissioner for a report and recommendation. The commissioner
concluded that Washington’s postconviction motion was procedurally barred under
Superior Court Criminal Rule 61 ("Rule 61") and without merit. The
commissioner recommended denial of the motion. The Superior Court accepted
the comrnissioner’s recommendation and denied the motion. Washington did not
appeal the denial of his first postconviction motion.

(5) On November 19, 2013, Washington filed a motion for appointment
of counsel and his second motion for postconviction relief. Washington argued
that appointment of counsel was necessary because he was raising ineffective
assistance of counsel claims for the first tirne, the importance of counsel under
such circumstances was recognized in Martinez v. Ryan‘ and Holmes v. State,’ and
he could not properly present ineffective assistance of counsel claims without the
assistance of competent counsel. In his second postconviction motion, Washington
claimed that his counsel was ineffective because he: (i) failed to conduct a
meaningful investigation; (ii) failed to challenge the indictment based upon the
lack of drugs in the purchaser’s possession and the lack of drugs or marked money

in Washington’s physical possession; (iii) did not file a motion to suppress the

4 ---U.S.---, 132 S. Ct. 1309, 182 L.E.2d 272 (2012).

’ 2013 WL 2297072 (Del. May 23, 2013).

testimony of the purchaser; (iv) failed to explore why the police did not obtain and
test the residue of a white substance on the purchaser’s face; (v) did not argue that
the purchaser could have obtained the drugs n'om somebody other than
Washington; (vi) filed an untimely motion for judgment of acquittal; (vii) failed to
offer evidence that drugs and marked money were not found in Washington’s
physical possession; (viii) failed to request polling of the jury; and (ix) did not
challenge the loitering charge.

(6) The Superior Court denied Washington’s motion for appointment of
counsel because he had previously filed a motion for postconviction relief. The
trial court also denied Washington’s second postconviction motion on the grounds
that it was procedurally barred by Rule 6l(i)(1), 6l(i)(2), and 61(i)(3). This appeal
followed. l

(7) In his opening brief, Washington primarily argues that the trial court
erred in denying his motion for appointment of counsel. Relying on Martinez and
the amendment of Rule 6l(e)(l) in 2013, Washington claims he had a right to
counsel because he raised ineffective assistance of counsel claims for the first time
in his second motion for postconviction relief. Washington’s reliance on Marlinez
and the amendment of Rule 6l(e)(l) is misplaced. In Martinez, the United States
Supreme Court held that where claims of ineffective assistance of trial counsel

must be raised in an initial collateral proceeding under state law, a procedural

default will not bar a federal court from hearing a substantial ineffective assistance
of counsel claim if there was no counsel in the initial state collateral proceeding or
counsel in that proceeding was ineffective.° The United States Supreme Court did
not hold that criminal defendants who do not raise ineffective assistance of counsel
claims in their first postconviction proceedings have a right to counsel when they
raise ineffective assistance of counsel claims in subsequent motions for
postconviction relief. With respect to Rule 61(e)(1), the version in effect at the
time of Washington’s second postconviction motion provided that the Superior
Court would appoint counsel in an indigent defendant’s first postconviction
proceedings." This was Washington’s second postconviction motion, not his first.
Therefore, he was not automatically entitled to appointment of counsel under Rule
6l(e)(l) To the extent Washington argues that counsel should have been
appointed because he did not have the assistance of counsel with his first
postconviction motion, Rule 6l(e)(l) is not retroactive.“ Thus, Washington has not
shown that the Superior Court was required to appoint counsel for him in his

second postconviction proceedings.

‘ Mam'nez, 132 s. cc. ar 1320.
’ super cr crim. R. 61(¢)(1)(2013).

8 Roten v. State, 2013 WL 5808236, at *l (Del. Oct. 28, 2013).

(8) The Superior Court did not abuse its discretion in denying
Washington’s motion for appointment of counsel. Under the version of Rule
6l(e)(l) in effect at the time Washington filed his second postconviction motion,
the Superior Court could appoint counsel in a second or subsequent postconviction
proceeding "in the exercise of discretion and for good cause shown."’°
Washington’s untimely and speculative ineffective assistance of counsel claims did
not establish good cause for appointment of counsel. To prevail on an ineffective
assistance of counsel claim, a defendant must show that his cour1sel’s
representation fell below an objective standard of reasonableness and that, but for
his counsel’s unprofessional errors, there is a reasonable probability that the
outcome of the proceedings would have been different.‘° A defendant who fails to
set forth and substantiate concrete allegations of actual prejudice risks summary
dismissal of his ineffective assistance claims." Washington did not offer any
concrete allegations of actual prejudice as a result of his counsel’s alleged errors,
In addition, the jury polling and loitering ineffective assistance of counsel claims

were simply restated versions of prior postconviction claims rejected by the trial

9 super. cr R. 61(¢)(1)(2013).
w Strz'ckland v. Washz`ngton, 466 U.S. 668, 688-92 (1984).

n Younger v. State, 580 A.2d 552, 556 (Del. 1990); Chattin v. State, 2012 WL 5844886, at *2
(Del. Nov. 16, 2012).

court.'z Under these circumstances, Washington did not establish good cause for
appointment of counsel and the Superior Court did not err in denying
Washington’s motion for appointment of counsel.

(9) Although his opening brief primarily focuses on his lack of counsel in
the proceedings below, Washington also makes conclusory statements that his
ineffective assistance of counsel claims were not reviewed and that this lack of
review was "a miscarriage of justice."” Assuming Washington is complaining that
the Superior Court did not review the merits of Washington’s ineffective assistance
of counsel claims, the Superior Court first had to apply the procedural bars of Rule
6l(i)."‘ The Superior Court was only required to consider the merits of the claims
if it found that the claims were not procedurally barred under Rule 6l(i).15 The
Superior Court concluded Washington’s claims were barred by Rules 6l(i)(l),
61(i)(2), and 6l(i)(3) and did not reach the merits of Washington’s claims. If
Washington had raised his ineffective assistance of counsel claims in a timely first

postconviction motion, then the Superior Court would have addressed the merits of

'2 Riley v. State, 585 A.2d 719, 721 (Del. 1990) (recognizing courts are not required to
reconsider previously rejected claims that have been refined or restated), abrogated on other
grounds by Morgan v. Illinoz's, 504 U.S. 719 (1992).

13 Opening Brief at 2.

14 Younger v. State, 580 A.2d 552 at 554.

15 

those claims. Washington, however, did not raise his ineffective assistance of
counsel claims until his second postconviction motion, filed more than a year after
his conviction became final.

(10) If the reference to a "rniscarriage of justice"l‘ is an attempt by
Washington to argue that his ineffective assistance of counsel claims are not
procedurally barred because he stated a colorable claim of a miscarriage of justice
under Rule 61(1)(5), he did not offer any arguments in support of such a claim in
his opening brief. An appellant must state the merits of an argument in his opening
brief or that argument will be waived."' Washington failed to present the merits of
an argument that his ineffective assistance of counsel claims stated a colorable
claim under Rule 61(i)(5) in his opening brief and therefore waived that claim."’

NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED
and the judgment of the Superior Court is AFFIRMED.

BY 'I`HE COURT:

F\MM..QJLM.L

Justice U v

16 Opening Brief at 2.
" Der. supr. ct R. 14(1»)(\11)(1\)(3).

18 Murphy v. Smre, 632 A.2d 1150, 1152 (Del. 1993).

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