IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,
Cr. ID No. 0805035299

¥v.

MONIR A. GEORGE,

Nee” See” eee” ee” Set” ee” ee meet” mae”

Defendant.

Submitted: April 7, 2020
Decided: May 11, 2020

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S THIRD MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED, DEFENDANT'S

MOTION FOR APPOINTMENT OF COUNSEL SHOULD BE DENIED
AND DEFENDANT?’S MOTION FOR AN EVIDENTIARY HEARING
SHOULD BE DENIED

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

Monir George, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.

MAYER, Commissioner
This 11" day of May, 2020, upon consideration of Defendant’s Third Motion

for Postconviction Relief (the “Third Motion”), I hereby recommend as follows:
BACKGROUND

In 2008, during a charity fundraising event, Monir George (“Defendant”) shot
and killed a man.' Moments prior to the shooting an attendee inadvertently captured
a photograph of Defendant aiming the gun at the victim and dozens of participants
witnessed the events as they transpired. On March 6, 2009, the State produced
discovery including, Det. Brown’s Supplemental Report Dated May 27, 2008 and
several reports and notes from Cpl./Det. Papili.2, Diane Walsh and Joseph Grubb,
Deputy Attorney Generals, represented the State at trial. The defense did not dispute
that Defendant shot the victim. Rather, the defense focused on Defendant’s mental
health. In October of 2009, after a non-jury trial, the Court found Defendant guilty
but mentally ill of Murder First Degree, Attempted Murder First Degree, Possession
of a Firearm During the Commission of a Felony (three counts) and Reckless

Endangering. Defendant’s conviction was affirmed on appeal.

 

' A full recitation of the facts may be found in the Supreme Court’s Order affirming the conviction
at Case No. 59, 2010.

? DL # 45.

> DL #119.
On October 7, 2011, Defendant filed his first Motion for Postconvicion Relief
presenting claims of ineffective assistance of counsel (the “First Motion”).4 The
Superior Court denied the First Motion? but on appeal, the Supreme Court remanded

the matter.®

The Court appointed counsel to represent Defendant on the motion,
additional briefing ensued, and the Superior Court again denied the First Motion.
That decision was affirmed on appeal.’

On July 5, 2018, Defendant filed his second Motion for Postconviction Relief
(the “Second Motion”).2 In the Second Motion, Defendant argued “newly
discovered evidence” relating to the State’s ballistics expert. The Superior Court
denied the Second Motion and that decision was affirmed on appeal.’

On March 20, 2020, Defendant filed his Third Motion for Postconviction
Relief {the “Third Motion”), followed by a Motion for Appointment of Counsel, a
Motion for Evidentiary Hearing, and a Memorandum of Law.'* Through his Third

Motion, Defendant once again argues “newly discovered evidence” justifies

 

4 DL #121.

> DL. #s 129, 140.

6 DL # 143. |
7 DL. #s 158, 166, 169.
§ DI. #170. |
° DL #s 178, 183, 189.

10 DLL. #s 190, 191, 192, 195.
vacating his conviction. However, this time, Defendant argues that Joseph Grubb,
DAG engaged in aggressive prosecutorial conduct in another case!! and that the
State failed to disclose all available witnesses in Defendant’s case. Essentially, since
Defendant learned of the events involving Mr. Grubb in the Robinson case, he
decided to go back and review his file. Defendant identified witnesses and
photographs referenced in the reports of Detectives Brown and Papili that he
believes would have assisted his defense.'*
DEFENDANT’S THIRD MOTION

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the motion.!? Defendant’s Third Motion is
procedurally barred. First, the Third Motion, having been filed more than one year
from the date of the Supreme Court’s Mandate on direct appeal, is untimely.'* In

addition, unless Defendant is able to meet an exception to the bars, his Third Motion

 

'' Defendant cites State v, Robinson, 209 A.3d 25 (Del. 2019) (hereinafter “Robinson’”).

!2 Defendant’s Third Motion also alludes to an additional claim relating to a “strange bullet” that
was found at the scene. Defendant acknowledges that the State was unable to connect the bullet
to Defendant, it was an exhibit at trial, and was available throughout the proceedings. Therefore,
this claim can be dismissed outright as it is clearly not newly discovered evidence that he is actually
innocent of the facts underlying the conviction. °

'S Younger v. State, 580 A.2d 552, 554 (Del. 1990).
‘4 Super. Ct. Crim. R. 61(m)(2) and Super. Ct. Crim. R. 61(/)(1).. To the extent Defendant’s

arguments may be interpreted as ineffective assistance of counsel claims, the motion is subject to
the same time-bar. See Felton vy. State, 2008 WL 308231 (Del. Feb. 1, 2008).
shall be summarily dismissed as repetitive.!5 Defendant was required to include all
bases for relief available to him in his First (or Second) Motion.!© Defendant
asserted ineffective assistance of counsel claims in his First Motion, and newly
discovered evidence theories in his Second Motion, and any subsequent attacks are
now prohibited. Finally, pursuant to Super. Ct. Crim. R. 61(i)(3) and (4), any ground
for relief that was not previously raised is deemed waived, and any claims that were
formerly adjudicated, whether in the proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or in a federal habeas
corpus proceeding, are thereafter barred. To the extent Defendant failed to present

his claims through the First or Second Motions, or on appeal of those matters, the

claims were waived.

To prevail, Defendant must plead with particularity that there is new evidence
creating a strong inference that he is actually innocent of the facts underlying the
acts leading to the conviction.'? Defendant’s Third Motion presents no new
evidence. The State produced the reports from Detectives Brown and Papili very
early in the litigation. The names of witnesses or references to photographs were

available to Defendant and his counsel prior to trial. Furthermore, Defendant has

 

'S Super. Ct. Crim. R. 61(d)(2), (5) & G\(2)H).
16 Super. Ct. Crim. R. 61(i)(2)(ii).

7 Super. Ct. Crim. R. 61(d)(2).
failed to demonstrate how this evidence would have supported his defense.'® There
were multiple witnesses, a photo showing Defendant aiming the gun at the victim,
and the defense at trial conceded that he was the shooter. The information identified
by Defendant does not exculpate him of the victim’s murder and he cannot simply
speculate that this information could have assisted his case.!? Defendant has failed
to create a strong inference that he is actually innocent of the facts underlying the
conviction and the Third Motion should be dismissed.”
Defendant’s Motion for Appointment of Counsel

Pursuant to Superior Court Criminal Rule 61(e)(5), the court “may” appoint
counsel for a successive postconviction relief motion if it satisfies the pleading
requirements of Rule 61(d)(2)(i) or (ii). Defendant's motion does not satisfy these
requirements, Therefore, the Motion for Appointment of Counsel should be denied.

Defendant’s Motion for Evidentiary Hearing
Pursuant to Superior Court Criminal Rule 61(h), if it appears that an

evidentiary hearing is not desirable, the judge should dispose of the motion. I have

 

18 According to Defendant, the two witnesses would have testified that a fight occurred between
another church member and the victim a month before the incident,

See Sykes v. State, 2018 WL 4932731 (Del. Oct. 10, 2018 (denying postconviction relief based
on purported newly discovered evidence).

*0 There is also no merit to Defendant’s assertion that Mr. Grubb engaged in any misconduct in
this case. As noted above, there were multiple prosecutors assigned to the case and the State timely
produced the police reports.
 

lound no justification for an evidentiary hearing in this matter and the request should

be denied.

For all of the foregoing reasons, Defendant’s Third Motion for Postconviction
Relief should be SUMMARILY DISMISSED, the Motion for Appointment of
Counsel should be DENIED and the Motion for Evidentiary Hearing should be
DENIED.

iT ISSO RECOMMENDED.

 

Commissioner Katharine L. Mayer

oe: Prothonotary
Gregory Smith, DAG
Monir George
