      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                    IN AND FOR NEW CASTLE COUNTY

                                            )
STATE OF DELAWARE                           )
                                            )      I.D. No. 0311009491A
         v.                                 )
                                            )
MICHAEL D. CHAMBERS,                        )
                                            )
                       Defendant.           )
                                            )


                           Submitted: September 21, 2015
                            Decided: December 16, 2015

              On Defendant’s Fourth Motion for Postconviction Relief.
                                    DENIED.

                                      ORDER
Brian J. Robertson, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Michael D. Chambers, State Correctional Institution of Albion, Albion,
Pennsylvania, pro se.

COOCH, R.J.

      This 16th day of December, 2015, upon consideration of Defendant’s
Fourth Motion for Postconviction Relief, it appears to the Court that:

         1.     On September 26, 2006, Michael D. Chambers (“Defendant”)
                was found guilty of Possession of Cocaine with Intent to
                Distribute; Use of a Dwelling to Keep Controlled Substances;
                Possession of a Non-Narcotic Controlled Substance; and
                Possession of a Firearm During the Commission of a Felony. 1

1
    Chambers v. State, 2008 WL 590897, at *1 (Del. Mar. 5, 2008) (TABLE).
              Defendant was sentenced under 11 Del. C. § 4214(a) as a
              habitual offender to 25 years at Level V with 3 years of
              decreasing supervision to follow.2 Following his sentencing,
              Defendant appealed this Court’s denial of his motion for a new
              trial or judgment of acquittal to the Delaware Supreme Court.
              The Delaware Supreme Court affirmed the denial on March 5,
              2008, finalizing his judgment of conviction. 3

       2.     Defendant filed three previous motions for postconviction
              relief. 4 Each of Defendant’s previous motions have been
              denied by this Court. Defendant has now filed a Fourth Motion
              for Postconviction Relief (“Motion”), claiming that he received
              an “illegal sentence.” 5 Specifically, Defendant asserts that he
              cannot be sentenced under 11 Del. C. § 4214(a), because the
              “statute violates the fifth [sic] amendment [sic], as th[at]
              criminal law is unconstitutionally vague.” 6 Defendant argues
              that the decision in Johnson v. U.S. invalidates his sentence.7
              Defendant contends that Johnson held sentencing a defendant
              under the residual clause of the Armed Career Criminal Act
              violates the Due Process Clause of the Fifth Amendment.
              Therefore, his sentence as a habitual offender also violates due
              process and he is entitled to relief. 8

       3.     Defendant’s Motion is controlled by Superior Court Criminal
              Rule 61. 9 Before addressing the merits of this Motion, the
              Court must address any procedural requirements.10


2
  Chambers v. State, 2008 WL 590897, at *1-2 (Del. Mar. 5, 2008) (TABLE).
3
  Chambers v. State, 2008 WL 590897, at *4 (Del. Mar. 5, 2008) (TABLE).
4
  D.I. 63, 71, 79.
5
  Def’s. Fourth Mot. for Postconviction Relief, at 3.
6
  Id.
7
  135 S.Ct. 2551, 2563 (2015).
8
  Since Defendant was sentenced as a habitual offender under a state statute, the Due
Process Clause of the Fourteenth Amendment applies and not the Due Process Clause of
the Fifth Amendment. Compare Johnson, 135 S.Ct. 2551, 2563 (2015) (holding that a
federal law was unconstitutionally vague under the Due Process Clause of the Fifth
Amendment), with Kolender v. Lawson, 461 U.S. 352, 353-54 (1983) (holding a state
statute is unconstitutionally vague under the Due Process Clause of the Fourteenth
Amendment).
9
  Super. Ct. Crim. R. 61.
10
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                          2
       4.      Under Rule 61(i), a motion for postconviction relief can be
               procedurally barred for time limitations, successive motions,
               procedural defaults, and former adjudications. 11 If a procedural
               bar exists, the Court will not consider the merits of the
               postconviction claim unless the Defendant can show that,
               pursuant to Rule 61(i)(5), the procedural bars are inapplicable.

       5.      Rule 61(i)(5), provides for consideration of otherwise
               procedurally barred claims in two different situations. First,
               when a defendant pleads with particularity that there is new
               evidence that creates a strong inference that the defendant is
               actually innocent. 12 Second, when the defendant pleads with
               particularity that a new rule of constitutional law that has been
               made to apply retroactively on collateral review by the United
               States Supreme Court or the Delaware Supreme Court renders
               the defendant’s conviction or death sentence invalid.13

       6.      Defendant’s Motion is time-barred pursuant to Rule 61(i)(1). 14
               Defendant’s Motion was filed more than 1 year after
               Defendant’s judgment of conviction. Defendant’s judgment of
               conviction became finalized on March 5, 2008. Defendant filed
               this Motion on August 31, 2015, almost seven-and-a-half years
               after his judgment of conviction became final.

       7.      However, Defendant does plead with particularity that a new rule
               of constitutional law renders his sentence invalid. Nevertheless,
               Defendant’s reliance on Johnson is misplaced. The defendant in
               Johnson was sentenced under the federal Armed Career Criminal
               Act of 1984 (“Act”), 15 which imposes greater penalties for repeat
               offenders. Under the Act, a defendant faces a more severe
               punishment if he has three or more convictions for a “violent
               felony.” 16 A violent felony is defined, in part, as any “conduct
               that presents a serious potential risk of physical injury to
11
   Super. Ct. Crim. R. 61(i)(1)-(4).
12
   Super. Ct. Crim. R. 61(d)(2)(i).
13
   Super. Ct. Crim. R. 61(d)(2)(ii).
14
   See Super. Ct. Crim. R. 61(i)(1) (barring postconviction motions filed more than 1 year
after judgment of conviction is final); Felton v. State, 2008 WL 308231, at* 2 (Del. Feb.
1, 2008) (TABLE) (measuring the start of the filing period for a Rule 61 motion from the
date the direct Supreme Court mandate was issued and direct appeal process concluded).
15
   18 U.S.C. § 924.
16
   18 U.S.C. § 924 (e)(1).
                                            3
              another.”17 This language in the Act is known as the “residual
              clause.”

       8.     The United States Supreme Court held that sentencing a
              defendant under the residual clause violates the defendant’s right
              of due process, because the language in the Act is vague. A
              statute is void for vagueness when it fails to give a person of
              ordinary intelligence notice or “it is so indefinite that it
              encourages arbitrary and erratic” outcomes. 18 The Court stated:

                      The [sentencing] court's task goes beyond deciding whether
                      creation of risk is an element of the crime. That is so
                      because, unlike the part of the definition of a violent felony
                      that asks whether the crime ‘has as an element the use ... of
                      physical force,’ the residual clause asks whether the crime
                      ‘involves conduct’ that presents too much risk of physical
                      injury. 19

              Therefore, the Court held “that the indeterminacy of the wide-
              ranging inquiry required by the residual clause both denies fair
              notice to defendants and invites arbitrary enforcement by
              judges.”20

       9.     Delaware’s habitual offender statute does not have the same
              wide-ranging inquiry as its federal counterpart. The language of
              11 Del. C. § 4214 under which Defendant was sentenced states,
              “[a]ny person who has been 3 times convicted of a felony, other
              than those which are specifically mentioned in subsection (b) of
              this section, . . . is declared to be a habitual offender.” 21

       10.    Under 11 Del. C. § 4214(a), there is very little room for arbitrary
              judicial enforcement or denial of fair notice to the defendant.
              Felonies are statutorily defined. There is no judicial discretion

17
   18 U.S.C. § 924 (e)(2)(B)(ii). The United States Supreme Court notes in Johnson that
the Act also includes four enumerated crimes and states that decision does not call the
constitutionality of that part of the Act into question. Johnson, 135 S.Ct. at 2563
(“Today’s decision does not call into question the application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.”).
18
   Costa v. Pitkins, 2010 WL 4054302, at 2 (E.D. Pa. Sept. 28, 2010).
19
   Johnson, 135 S.Ct. at 2557 (emphasis in original).
20
   Id.
21
   11 Del. C. § 4214(a).
                                            4
            that would allow a judge to determine that one charge against one
            defendant is a felony, but that same charge against another
            defendant is not a felony. Furthermore, once a defendant is
            convicted of a felony, he has notice that he is a felon. The
            defendant looses the right to possess a firearm, vote, hold public
            office, serve on a jury, and is be disqualified from certain jobs in
            both the public and private sector. Therefore, Delaware’s
            habitual offender statute is not unconstitutionally vague, because
            there is no judicial discretion that would encourage arbitrary and
            erratic outcomes, and a defendant has notice before he is
            determined to be a habitual offender that he has a felony
            conviction.

Therefore, since Defendant’s Motion is DENIED.



      IT IS SO ORDERED.

                                                  ______________________
                                                    Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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