   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

                                     )
STATE OF DELAWARE                    )
                                     )      I.D. No. 0603002909
      v.                             )
                                     )
HILLARD M. WINN                      )
                                     )
                  Defendant          )


                        Submitted: August 1, 2014
                        Decided: October 2, 2014

            On Defendant’s Motion for Postconviction Relief.
                    SUMMARILY DISMISSED.

           On Defendant’s Motion for Appointment of Counsel.
                        DENIED AS MOOT.

              On Defendant’s Motion for Evidentiary Hearing.
                         DENIED AS MOOT.


                               ORDER
Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State

Hillard M. Winn, Smyrna, Delaware, pro se

COOCH, R.J.

       This 2nd day of October, 2014, upon consideration of Defendant’s
First Motion for Postconviction Relief, Motion for Appointment of Counsel,
and Motion for Evidentiary Hearing, it appears to the Court that:
       1.     Defendant Hillard M. Winn was found guilty in April 2006 of
              Burglary in the First Degree, Assault in the Third Degree,
              Possession of a Deadly Weapon During the Commission of a
              Felony, and Terroristic Threatening.1 Defendant was sentenced
              as a habitual offender to a total of thirty-four years at Level V,
              suspended after thirty-two years for one year at Level IV,
              suspended after six months with the balance to be served on
              probation. 2 The Delaware Supreme Court affirmed Defendant’s
              convictions and sentences on appeal.3

       2.     Defendant then filed a Motion for Correction of Illegal
              Sentence pursuant to Rule 35 in 2010. Defendant’s Rule 35
              Motion was denied by this Court and again, the Delaware
              Supreme Court affirmed that judgment on appeal.4

       3.     Most recently, Defendant filed a habeas petition in the United
              States District Court for the District of Delaware. 5 The district
              court dismissed Defendant’s habeas petition on September 29,
              2011. 6

       4.     Defendant filed the instant motion on June 17, 2014 along with
              a Motion for Appointment of Counsel and a Motion for an
              Evidentiary Hearing. 7 Defendant asserts nine grounds in his
              lengthy postconviction motion:

                      1) Denial of assistance of counsel when another judge of
                      this Court refused to remove existing counsel and appoint
                      new counsel pre-trial “even where [existing] counsel
                      demonstrated a lack of understanding of the laws
                      involved;”
1
  For additional procedural history and facts not relevant to this motion, see Winn v.
Phelps, 2011 WL 4543968 (D. Del. Sept. 29, 2011).
2
  Docket #68 (Sept. 4, 2008). The original sentence was vacated and re-entered in 2008
after the Delaware Supreme Court affirmed Defendant’s convictions and sentences on
appeal. See Winn v. State, 947 A.2d 1123, 2008 WL 223257 (Del. 2008) (TABLE).
3
  See Winn v. State, 947 A.2d 1123, 2008 WL 223257 (Del. 2008) (TABLE).
4
  See State v. Winn, 2010 WL 2477867 (Del. Super. Jun. 17, 2010) aff'd, 15 A.3d 218
(Del. 2011)
5
  See Winn v. Phelps, 2011 WL 4543968 (D. Del. Sept. 29, 2011)
6
  See id.
7
  Although Defendant filed all three motions on June 17, 2014, they were not docketed
until July 21, 2014.
                                           2
2) Ineffective assistance of counsel pre-trial because
“counsel refused to investigate relevant issues involving
complaining witnesses [sic] hospital records, defense
witnesses and facts supporting probable cause affidavit,
or file any pre-trial motions;”
3) Denial of assistance of appellant counsel because
“after Defendant had elected to represent himself at trial
rather than accept assistance of counsel from Mr.
Manning, the Court’s offer of assistance of counsel on
appeal only by Mr. Manning was constructive denial of
counsel . . . ;”
4) Discovery violations that occurred when “the State
denied expert evidence but submitted expert opinions at
trial, presented pictures, envelopes and letters that was
[sic] not provided in discovery or prior to introduction at
trial;”

5) Due process violation when “the state used
fundamentally inconsistent theories during pretrial and
trial proceedings;”
6) Due process violation “when Court permitted the state
to introduce summary narrative as prior statements
without requiring the pre-requisite showings pursuant to
11 Del. C. § 3507;” This action by the Court, Defendant
argues, “caused a considerable amount of confusion and
frustrated the defenses ability to examine the evidence of
the statement as well as cross examine the witnesses
regarding it;”

7) Due process violation “when the Court denied
[Defendant] fair review of his Motion to Supress/Dismiss
made verbally on the day of trial on the bases [sic] of
newly discovered evidence, disclosed to the defense after
the Court had denied initial Motion to Suppress filed on
or about August 8th, 2006;”

8) Due process violation when “the State’s attorney
knowingly used . . . perjurious testimony to obtain
convictions against [Defendant]. Evidence was in the

                   3
                      State’s possession, prior to trial, that established . . . that
                      the complaining witness said to investigating officer that
                      Winn did not hit her with the alleged weapond [sic].
                      However, the state solicited testimony and evidence from
                      that witness to evidence the contrary;”
                      9) Due process violation when the Court refused at the
                      sentencing hearing to hear Defendant on the issue of
                      “whether or not Win admitted or denied the alleged prior
                      predicated offenses forming the basis for the State’s
                      motion to declare Winn a habitual offender. . . .
                      Foreclosing the issue of Winn’s habitual offender’s [sic]
                      status without affording him the hearing required by
                      statute, constitutes a closed mind and denys [sic] Winn
                      due process of law.” 8


       5.     Defendant’s Motion for Postconviction Relief is controlled by
              the recently amended Superior Court Criminal Rule 61 as it was
              filed after the new rule took effect on June 4, 2014.9 Under
              Superior Court Criminal 61(i), a Motion for Postconviction
              relief can be potentially procedurally barred for time
              limitations, successive motions, procedural defaults, and former
              adjudications. 10

       6.     Rule 61(i)(1) provides that a motion exceeds time limitations if
              it is filed more than one year after the conviction is finalized, or
              if the motion asserts a newly recognized, retroactively applied
              right more than one year after it is first recognized. 11

       7.     Rule 61(i)(2) provides that a motion is successive if it is the
              second or subsequent motion made under this Rule, and such
              successive motions are prohibited unless the pleading
              requirements of 61(d)(2)(i) or (ii) are met. 12

8
  Def.’s Motion for Postconviction Relief at 2-5.
9
  The most recent set of amendments to Super. Ct. Crim. R. 61 took effect on June 4,
2014.
10
   Super. Ct. Crim R. 61(i)(1)-(4).
11
   Super. Ct. Crim. R. 61(i)(1).
12
   Super. Ct. Crim. R. 61(i)(2). For further discussion of the pleading standards
articulated in the newly amended Rule, see infra.
                                           4
       8.     Rule 61(i)(3) bars consideration any ground for relief “not
              asserted in the proceedings leading to the judgment of
              conviction,” unless the movant can show “cause for relief from
              the procedural default” and “prejudice from violation of the
              movant’s rights.”13

       9.     Rule 61(i)(4) bars consideration of any ground for relief
              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.”14

       10.    Before addressing the merits of this Motion for Postconviction
              Relief, the Court must address any procedural requirements of
              Superior Court Criminal Rule 61(i).15 If a procedural bar exists,
              then the Court will not consider the merits of the postconviction
              claim unless the Defendant can show that the exception found in
              Rule 61(i)(5) applies.16

       11.    Rule 61(i)(5), as recently amended, provides that consideration
              of otherwise procedurally barred claims is limited to claims that
              the Court lacked jurisdiction, or claims that satisfy the new
              pleading standards set forth in 61(d)(2)(i) and (ii). 17 The new
              pleading standards require that the Motion either:

                   (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 a claim that a new
                        rule of constitutional law, made retroactive to
                        cases on collateral review by the United States
                        Supreme Court or the Delaware Supreme



13
   Super. Ct. Crim. R. 61(i)(3).
14
   Super. Ct. Crim. R. 61(i)(4).
15
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
16
   Super. Ct. Crim. R. 61(i)(5).
17
   Id.
                                           5
                        Court, applies to the movant’s case and
                        renders the conviction . . . invalid.18

       12.    This Court finds that all nine of Defendant’s claims are time-
              barred pursuant to Rule 61(i)(1) as Defendant’s motion was filed
              more than one year after Defendant’s conviction was finalized on
              direct appeal. 19

       13.    Further, assuming arguendo that Defendant’s claims are not
              time-barred, all nine claims are barred either as formerly
              adjudicated or as a procedural default. 20 For clarity, this Court
              will take up each ground for relief in the order presented by
              Defendant.

       14.    Ground one, although captioned as “denial of assistance of
              counsel,” articulates a substantively identical argument to that of
              Defendant’s pre-trial Motion to Disqualify Counsel. In that
              Motion, and again in the instant motion, Defendant alleged that
              he had to explain the law to appointed counsel and that counsel
              needed to be told to file pre-trial motions and other “appropriate
              paperwork.”21 Defendant’s Motion to Disqualify Counsel was
              denied by another judge of this Court and appointed counsel
              remained the attorney of record until Defendant’s Motion for a
              Waiver of Counsel was granted. 22 Ground one, having been ruled
              on pre-trial, is barred at least in part for former adjudication. To
              the extent that Defendant raises a new argument, albeit
              impliedly, that the Court erred when it declined to appoint new


18
   Super Ct. Crim R. 61(d)(2)(i).
19
   See Super. Ct. Crim. R. 61(i)(1) (barring postconviction motion filed more than one
year after judgment of conviction is final); Felton v. State, 945 A.2d 594 (Del. 2008)
(measuring start of filing period from date direct Supreme Court mandate was issued and
direct appeal process concluded). The Supreme Court mandate was issued in Defendant’s
case on January 28, 2008. See Winn v. State, 947 A.2d 1123 (Del. 2008).
20
   Super. Ct. Crim R. 61(i)(3)-(4).
21
   See Docket #11 (Jun. 23, 2006) (captioned as “Motion to Dismiss Counsel”); See also
Def.’s Motion for Postconviction Relief at 3 (“[T]he court refused to appoint new counsel
even where counsel demonstrated a lack of understanding of the laws involved.”)
22
   Docket #12 (Jul. 10, 2006) (denying Motion to Disqualify Counsel). As appointed
counsel was not disqualified, the Court was not required to appoint new counsel pursuant
to Super. Ct. Crim. R. 44(d); See also Docket #15 (Aug. 7, 2006) (granting Defendant’s
Motion for Waiver of Counsel).
                                           6
              counsel, this Court finds that the claim is barred on grounds of
              procedural default.

       15.    Ground two, assuming arguendo that it is not time barred, is also
              without merit. Defendant’s chief argument supporting his
              ineffective assistance of counsel claim is that his appointed
              counsel refused to investigate a number of issues relating to his
              defense. 23

       16.    To successfully articulate an ineffective assistance of counsel
              claim, a claimant must demonstrate: 1) that counsel’s
              performance was deficient, and 2) that the deficiencies
              prejudiced the Defendant by depriving him or her of a fair trial
              with reliable results. 24 To prove counsel’s deficiency, a
              Defendant must show that counsel’s representation fell below an
              objective standard of reasonableness.25 Moreover, a defendant
              must make concrete allegations of actual prejudice and
              substantiate them or risk summary dismissal. 26 “[A] court must
              indulge a strong presumption that counsel's conduct falls within
              the wide range of reasonable professional assistance.” 27 A
              successful Sixth Amendment claim of ineffective assistance of
              counsel requires a showing “that there is a reasonable probability
              that, but for counsel’s unprofessional errors, the result of the
              proceeding would have been different.” 28

       17.    Defendant contentions that trial counsel did not investigate
              several issues related to his case are vague, conclusory, and
              clearly do not satisfy either prong of Strickland. It is of note that
              counsel only represented the Defendant for approximately five
              months, and was permitted by the Court to withdraw as counsel
              about five months prior to trial. 29 Counsel would have had ample

23
   Def.’s Motion for Postconviction Relief at 3.
24
   Strickland v. Washington, 466 U.S. 668, 688 (1984).
25
   Id.
26
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
27
   Strickland, 466 U.S. at 689.
28
   Id. at 694.
29
   Defendant’s case was accepted in Superior Court on March 14, 2006, and although it is
unclear the exact date that counsel entered his appearance on Defendant’s behalf, it is
clear that counsel was allowed to withdraw on August 7, 2006. See Docket #15 (Aug. 7,
2006). At most, Defendant was represented by appointed counsel for five months.
                                           7
               time prior to trial to fully investigate the issues of which
               Defendant now complains if the Defendant did not decide to
               proceed pro se. In sum, this Court finds Defendant’s second
               ground for relief to be time-barred, but assuming arguendo that it
               was not time-barred, this Court further finds the claim to be
               without merit.

       18.     Grounds three, four, five, and six are barred on grounds of
               procedural default. The record bears no evidence that the
               Defendant brought these issues to the Court’s attention during
               the trial phase, nor did he set forth the claims upon appeal to the
               Delaware Supreme Court. Assuming arguendo that these claims
               are not time-barred they are procedurally defaulted pursuant to
               61(i)(3) for failure to raise the claims at the appropriate time.
               Moreover, Defendant has neither shown cause for relief from the
               procedural default nor prejudice from violation of the movant’s
               rights sufficient to survive the procedural bar of 61(i)(3). 30

       19.     Ground seven is barred for former adjudication. The substance of
               Defendant’s argument is that he was entitled to review of his
               “Motion to Suppress/Dismiss.” Defendant’s pre-trial “Motion to
               Suppress/Dismiss” was denied by another judge of this Court.
               Upon Defendant’s verbal request for review because of alleged
               new evidence, the Court refused to reexamine the Motion.31
               Similarly, this Court declines to reexamine the Motion as this
               claim for relief falls squarely within 61(i)(4), barring
               consideration of claims formerly adjudicated in proceedings
               leading to the judgment of conviction.


30
   Super. Ct. Crim. R. 61(i)(3); See also Younger v. State, 580 A.2d 552 (Del.
1990)(further explaining procedural default standard). Procedural bars aside, with respect
to ground three, Defendant does not have an absolute right under the Sixth Amendment
to be represented by counsel of his own choosing, nor does a criminal defendant have a
Sixth Amendment right to a “meaningful relationship” with counsel. See Yelardy v.
Pierce, 2014 WL 1339390, at *9 (D. Del. Mar. 31, 2014). This Court declines to discuss
the merits of this claim further.
31
   Def.’s Motion for Postconviction Relief at 5 (wherein Defendant argues that the Court
“denied Due Process and a fair trial when the Court denied him fair review of his Motion
to Suppress/Dismiss made verbally on the day of trial on the bases [sic] of newly
discovered evidence disclosed to the defense after the court had denied initial motion to
suppress . . . .”); See also Docket #24 (Sept. 1, 2006)(denying Motion to Dismiss
Indictment and to Suppress Evidence).
                                            8
       20.    Ground eight is similarly barred on grounds of former
              adjudication. The substance of Defendant’s argument here is that
              the State elicited “perjurious” testimony from the victim because
              the victim testified that the Defendant hit her with the alleged
              weapon, but had previously made a recorded statement to police
              to the contrary. 32 Although repackaged in a slightly different
              fashion, Defendant set forth a substantively identical argument in
              his post-trial Motion for Acquittal/Mistrial. 33 As that motion was
              already ruled on by this Court, this ground for relief is barred
              pursuant to 61(i)(4).

       21.    Ground nine is similarly barred due to former adjudication.
              Defendant’s argument is that he was denied a hearing on his
              status as a “habitual offender” and that a hearing on the issue was
              required by statute. 34 Defendant previously raised this ground for
              relief in his Motion for Correction of Illegal Sentence pursuant to
              Rule 35. 35 This Court denied that motion in mid-2010 and the
              Delaware Supreme Court affirmed the decision in 2011.36
              Because this claim has been adjudicated in a previous
              proceeding, it is barred from consideration under 61(i)(4).

       22.    Having determined that all nine of Defendant’s claims are
              procedurally barred in more than one way, this Court further
              finds that Defendant fails to demonstrate, pursuant to 61(i)(5),
              that any of his nine claims are exempt from the procedural bars
              of 61(i). 37 Specifically, none of Defendant’s arguments
              articulate any factual basis to survive the pleading standards of
              61(d)(2) as required by the Rule.38 As a result of Defendant’s
              failure to meet the pleading standards referenced in 61(i)(5),

32
   Def.’s Motion for Postconviction Relief at 5.
33
   Def.’s Motion for Acquittal/Mistrial at 2 (contending that a taped statement where the
victim stated that Defendant did not hit her with a crowbar “clearly exonerated” him from
that charge.).
34
   Def.’s Motion for Postconviction Relief at 6.
35
   See State v. Winn, 2010 WL 2477867 (Del. Super. Jun. 17, 2010) aff'd, 15 A.3d 218
(Del. 2011)
36
   See id. at *1 (finding that “in the absence of a showing of predjudice, a separate
hearing on a defendant’s habitual offender status is not required.”).
37
   Super. Ct. Crim R. 61(i)(5) (requiring satisfaction of the pleading requirements in
61(d)(2)(i)-(ii) for review of an otherwise barred claim);
38
   Super. Ct. Crim. R. 61(i)(5) (referring to 61(d)(2)(i) and (ii) for requisite pleading
standards).
                                           9
               Defendant’s Motion for Postconviction Relief is
               SUMMARILY DISMISSED.

       23.     In Defendant’s separate Motion for Appointment of Counsel,
               Defendant argues that Holmes v. State and Amended Superior
               Court Rule 61(e) together entitle him to counsel for his first
               postconviction motion under the Rule. 39 First, Defendant’s
               reliance on Holmes is misplaced. The Delaware Supreme Court
               in Holmes held that the Superior Court has abused its discretion
               under a prior version of Rule 61 when it denied a motion for
               appointment of counsel in an initial postconviction
               proceeding. 40 Contrary to Defendant’s suggestion, the Supreme
               Court did not articulate a constitutional right or entitlement to
               counsel in first post conviction proceedings. 41 Rather, the
               appropriate consideration under Rule 61 is whether Defendant’s
               motion is timely, and this Court finds, as discussed supra, that
               the Motion was untimely. 42 Further, because Defendant’s
               Motion for Postconviction Relief is SUMMARILY
               DISMISSED, Defendant’s Motion for Appointment of Counsel
               is rendered moot and is DENIED.

       24.     In Defendant’s Motion for Evidentiary Hearing, he argues that
               because he has made “certain preliminary showings,” Franks v.
               Delaware entitles him to an evidentiary hearing. 43 Specifically,
               Defendant sets forth four allegedly false statements that, he
               suggests, satisfies his burden to make such “preliminary
               showings.” Defendant’s reliance on Franks is misplaced as
               pursuant to Rule 61, whether or not an evidentiary hearing

39
   Def.’s Mot. For Appointment of Counsel at 1.
40
   See Holmes v. State, 67 A.3d 1022, 2013 WL 2297072, at *1 (Del. 2012) (TABLE).
41
   See id.; See also Roten v. State, 80 A.3d 961, 2013 WL 5808236, at *1 (Del. 2013)
(TABLE) (noting that the Supreme Court “did not hold in Holmes that a right to counsel
in first postconviction proceedings exists as a matter of Delaware constitutional law.”).
42
   Super. Ct. Crim. R. 61(e) (explaining that judge is only required to appoint counsel for
first postconviction motions that are timely and meet certain other requirements
(emphasis added)).
43
   Def.’s Mot. For Evidentiary Hg. at 1; See also Franks v. Delaware , 438 U.S. 154
(1978) (holding that defendant must make a “substantial preliminary showing” that “a
false statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment . . . requires that a
hearing be held at the defendant's request.”) .
                                            10
             should be held is at the judge’s discretion.44 “It is well-settled
             that the Superior Court is not required to conduct an evidentiary
             hearing upon a Rule 61 motion if, on the face of the motion, it
             appears that the petitioner is not entitled to relief.” 45 “If it
             appears that an evidentiary hearing is not desirable, the judge
             shall make such disposition of the motion as justice dictates.” 46
             It appears on the face of Defendant’s motions that he is not
             entitled to relief. Accordingly, this Court has decided, in its
             discretion, not to grant the Defendant an evidentiary hearing.
             Further, because Defendant’s Motion for Postconviction Relief
             is SUMMARILY DISMISSED, Defendant’s Motion for
             Appointment of Counsel is rendered moot and is DENIED.




Therefore, Defendant’s Motion for Postconviction Relief is SUMMARILY
DISMISSED, Defendant’s Motion for Appointment of Counsel is DENIED
AS MOOT, and Defendant’s Motion for Evidentiary Hearing is DENIED
AS MOOT.


      IT IS SO ORDERED.

                                                     ______________________
                                                       Richard R. Cooch, R.J.

cc:   Prothonotary
      Investigative Services
      Barzilai K. Axelrod, Esquire
      Hillard M. Winn




44
   Super Ct. Crim. R. 61(h)(1).
45
   Hawkins v. State, 839 A.2d 666, 2003 WL 22957025, at *1 (Del. 2003) (ORDER).
46
   Super Ct. Crim. R. 61(h)(3).
                                        11
