IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D. No. 1206000145 A&B
ROBERT WORLEY, §
Defendant. §

Submitted: May 22, 2018
Decided: July 3, 2018

Upon Defendant’s Second Motion for Postconviction Relief
SUMMARILY DISMISSED

ORDER

Upon consideration of the second Motion for Postconviction Relief filed by
Defendant Robert Worley (“Defendant”); Rule 61 of the Superior Court Rules of
Criminal Procedure (“Rule 61”); the facts, arguments, and legal authorities set forth
in Defendant’s motion; statutory and decisional law; and the entire record in this
case, the Court hereby finds as follows:

1. Defendant Was indicted on July 30, 2012 for Assault First Degree,
Possession of a Deadly Weapon During the Commission of a Felony (“PDWDCF”),
and Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”). Counsel
Was appointed for Defendant (“Trial Counsel”).

2. The case Was tried to a jury on April 9, 10, and 11, 2013. Prior to trial,

the Court granted Defendant’s motion to sever the PDWBPP charge. The jury found

Defendant guilty of Assault First Degree and PDWDCF. The Court then conducted
a bench trial and found Defendant guilty of PDWBPP.

3. On May l7, 2012, Defendant was sentenced as an habitual offender
pursuant to 11 Del. C. § 4214(a) to 55 years at Level 5.

4. Defendant appealed to the Delaware Supreme Court, which affirmed
on December 9, 2013.l

5. On June 27, 2014, Defendant filed a timely first motion for
postconviction relief. The Court appointed counsel to represent Defendant in
connection with his postconviction relief motion (“Postconviction Counsel”).
Defendant argued that Trial Counsel was ineffective by failing to: (l) suppress
eyewitness identifications; (2) effectively cross-examine witnesses regarding their
identifications; (3) request a more detailed eyewitness identification jury instruction;
and (4) consult with and present expert testimony on the subject of eyewitness
identifications This Court found that Defendant failed to establish that Trial
Counsel was ineffective, and denied Defendant’s first motion for postconviction
relief.2 The Delaware Supreme Court affirmed the denial of postconviction relief on

November 21 , 2016.3

 

1 Worley v. State, 82 A.2d 730 (Table) (Del. 2013).
2 State v. Worley, 2016 WL 908913 (Del. Super. Mar. 9, 2016).
3 Worley v. State, 151 A.3d 898 (Table) (Del. 2016).

2

6. On April 4, 2017, Defendant filed a second motion for postconviction
relief as a self-represented litigant (“Second PCR Motion”). In his Second PCR
Motion, Defendant argues that Postconviction Counsel was ineffective by failing to
raise additional claims of ineffective assistance of counsel related to Defendant’s
Trial Counsel. Specifically, Defendant argues that Postconviction Counsel should
have argued that Trial Counsel was ineffective by: (l) failing to object to
prosecutorial vouching during opening and closing statements; (2) failing to
challenge the State’s use of a prior out of court statement of Lamar Irons in
contravention of 11 Del. C. § 3507; (3) failing to object to the method in which the
State introduced the prior out of court statement of Eric Irons; (4) using the victim’s
prior out of court statement during cross-examination under 11 Del. C. § 3507 rather
than as impeachment evidence; (5) failing to object to the admission of officers’
testimony regarding security camera footage which the officers viewed, but could
not download; and (6) failing to challenge the State’s motion to declare Defendant
an habitual offender.

7. Before addressing the merits for postconviction relief, this Court must
first consider the procedural requirements of Rule 6l(i).4 A motion is procedurally

sufficient for consideration on the merits if it is the defendant’s first motion,5 the

 

4Baileyv s¢a¢e, 588A2d 1121 1127 (Dei 1991)
5 Super. Ct. Crim. R. 61(1)(2).

3

motion is timely,6 and the motion does not assert grounds for relief already
adjudicated7
8. Defendant’s Second PCR Motion is procedurally barred as a successive
motion. Rule 6l(i)(2) prohibits a defendant from filing a second or subsequent
motion for postconviction relief unless the defendant:
(i) pleads with particularity that new evidence exists that creates a
strong inference that the movant is actually innocent in fact of
the acts underlying the charges of which he was convicted; or
(ii) pleads with particularity that a new rule of constitutional law,
made retroactive to cases on collateral review by the United

States Supreme Court or the Delaware Supreme Court, applies to
movant’s case and renders the conviction or death sentence

invalid.8
Defendant concedes that he cannot meet these pleading requirements9 Therefore,
Defendant’s Second PCR Motion must be summarily dismissed10
9. Defendant argues that his Second PCR Motion should not be summarily
dismissed under Guy v. State.ll In Guy, a defendant filed a second motion for

postconviction relief asserting claims of ineffective assistance of counsel relating to

counsel for his first motion for postconviction relief. The State argued that the

 

6 Super. Ct. Crim. R. 61(1)(1).

7 Super. Ct. Crim. R. 61(1)(4).

8 super. Ct. Crim. R. 61(d)(2).

9 Defendant’s Reply to State’s Resp., May 17, 2018, at 4.

10 Super. Ct. Crim. R. 61(d)(2) (providing that a second motion for postconviction
relief “shall be summarily dismissed” unless the movant can satisfy the enhanced

pleading requirements).
ll 82 A.3d 710 (Del. 2013).

defendant was time-barred because his second motion for postconviction relief was
not filed within one year of his judgment of conviction becoming final.12 The
Delaware Supreme Court held that “a claim that appointed postconviction counsel
was constitutionally ineffective will not occur until the defendant has the opportunity
to pursue a second postconviction motion.”13 Accordingly, the Delaware Supreme
Court held that “fairness requires that the one-year time limitation on a claim of
ineffective assistance of postconviction counsel shall begin to run when the
defendant’s appeal to this Court from the Superior Court’s denial of his first motion
for postconviction relief is concluded.”14

10. Defendant argues that, under Guy, this is his first opportunity to raise
ineffective assistance of counsel claims relating to Postconviction Counsel, such that
his claims should not be summarily dismissed However, Defendant’s argument
fails because the procedural bar at issue in Guy was the one-year time-bar, not the
successive motions bar. Rule 61 was amended after Guy to add that successive
motions shall be summarily dismissed unless the movant can meet the pleading
requirements of Rule 61(d)(2). Since then, the Delaware Supreme Court has
consistently held that a defendant’s second motion for postconviction relief is still

subject to the successive motions procedural bar, even if it raises the ineffectiveness

 

12 Id. at 715.
13 Ia’.
141¢1'.

of postconviction counsel.15 Therefore, even if Defendant’s Second PCR Motion
was timely under Guy, Defendant was still obligated to satisfy the pleading
requirements of Rule 61(d)(2) to avoid summary dismissal of his successive
postconviction motion.

ll. Defendant also argues that his Second PCR Motion should not be
summarily dismissed because he can meet the exceptions provided in Rule 61(1)(3)
and Rule 61 (i)(5). Defendant’s arguments are without merit.

12. Rule 61(1)(3) is an additional procedural bar to postconviction relief
that provides:

Any ground for relief that was not asserted in the proceedings leading

to the judgment of conviction, as required by the rules of this court, is

thereafter barred, unless the movant shows (A) Cause for relief from

the procedural default and (B) Prejudice from violation of the movant’s

rights.16
Defendant asserts that he can meet the cause and prejudice exceptions contained in
Rule 61(i)(3) to avoid summary dismissal However, these exceptions only apply as
to the specific procedural bar contained in Rule 6l(i)(3). Defendant’s Second PCR
Motion is not barred by the procedural default bar of Rule 61 (i)(3), but the successive

motions bar of Rule 6l(i)(2). Therefore, Defendant cannot rely on the exceptions

contained in Rule 6l(i)(3) to avoid summary dismissal of his Second PCR Motion.

 

15 HOlmeS v. State, 180 A.3d 41 (Tabl€) (D€l. 2018); Durham v. State, 173 A.3d 1061
(Tabie) (Dei. 2017); Coles v. S¢a¢e, 169 A.3d 858 (Tabie) (D@i. 2017).
16 Super. Ct. Crim. R. 61(1)(3').

6

13. Rule 6l (i)(5) provides that the procedural bars to relief “shall not apply
either to a claim that the court lacked jurisdiction or to a claim that satisfies the
pleading requirements” of Rule 61(d)(2).17 Here, Defendant already concedes that
he cannot meet the pleading requirements of Rule 61(d)(2). In addition, Defendant
cannot establish that the Court lacked jurisdiction over his convictions for Assault
First Degree, PDWDCF, and PDWBPP. Therefore, Defendant cannot avail himself
of Rule 61(1)(5) to avoid summary dismissal of his Second PCR Motion.

14. Defendant’s Second PCR Motion is procedurally barred under Rule
61(i)(2). Accordingly, because Defendant cannot meet he pleading requirements of
Rule 61(d)(2), his Second PCR Motion must be summarily dismissed

NOW, THEREFORE, this 3"1 day of July, 2018, Defendant’s Second

Motion for Postconviction Relief is hereby SUMMARILY DISMISSED.

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1"

IT IS SO ORDERED. 1 z

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Th`€i{onorable Andrea L:"Rauanelli

 

17 Super. Ct. Crim. R. 61(1)(5).

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