            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                            )
                                              )
                      Plaintiff,              )
                                              )
                                              )
       v.                                     )      Cr. ID. No. 9707012190
                                              )
                                              )
FREDDY FLONNORY,                              )
                                              )
                      Defendant.              )


                                   Decided: March 24, 2015

        COMMISSIONER’S REPORT AND RECOMMENDATION THAT

    DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF (THIRD)
               SHOULD BE SUMMARILY DISMISSED.
                            AND
  RULE 61 COUNSEL’S MOTION TO WITHDRAW SHOULD BE GRANTED


Delaware Department of Justice, 820 N. French St. 7th Floor, Criminal Division,
Wilmington, Delaware, 19801, Attorneys for the State.

Patrick J. Collins Esquire and Albert J. Roop, V. Esquire, 8 East 13th Street, Wilmington,
Delaware 19801, Attorneys for Defendant.




MANNING, Commissioner
        This 24th day of March, 2015, upon consideration of Defendant’s third Motion

for Postconviction Relief, the Court finds the following:

                          FACTS AND PROCEDURAL HISTORY

        The facts leading to Flonnory’s 1999 murder conviction and death sentence were

well summarized by the Delaware Supreme Court in its ruling reversing that conviction,

and do not need repeating here. 1 A second trial was held in 2004 that also resulted in a

murder conviction. However, at the conclusion of the penalty phase, and over the jury’s

recommendation, the Superior Court sentenced Flonnory to life in prison. 2          That

conviction and sentence was upheld on appeal by the Delaware Supreme Court in 2006.3

Flonnory filed his first motion for postconviction relief on January 26, 2007. That

motion was denied by the Superior Court, 4 and then unsuccessfully appealed to the

Supreme Court. 5 Having exhausted all state court remedies, Flonnory then sought a writ

of habeas corpus in the United States District Court for the District of Delaware, which

was also denied. 6

        Undeterred, Flonnory filed a second motion for postconviction relief in the

Superior Court on March 18, 2013. That motion was subsequently denied as the Court

ruled that all of Flonnory’s claims were procedurally barred. 7 Rather than appeal this

denial to the Delaware Supreme Court, Flonnory filed what can best be characterized as

an amended or superseding third pro se motion for Postconviction relief with the




1
  See Flonnory v. State, 778 A.2d 1044, 1046 (Del. 2001).
2
  See State v. FLonnory, 2004 WL 1658496 (Del. Super).
3
  See Flonnory v. State, 893 A.2d 507 (Del. 2006).
4
  See State v. Flonnory, 2008 WL 495780 (Del. Super).
5
  See Flonnory v. State, 2008 WL 3906077 (Del.).
6
  See Flonnory v. Phelps, 2010 WL 3023657 (D. Del.).
7
  See State v. Flonnory, 2013 WL 2149885, at *2 (Del. Super.).


                                                   1
Superior Court on July 6, 2013. 8 Flonnory also sought appointment of counsel, which

was granted on July 18, 2013.

        Appointed counsel (Rule 61 Counsel), filed a comprehensive Motion to Withdraw

as Counsel pursuant to Rule 61(e)(2) on January 30, 2015.

Superior Court Criminal Rule 61(e)(2) provides that:

              If counsel considers the movant’s claim to be so lacking in
              merit that counsel cannot ethically advocate it, and counsel is
              not aware of any other substantial ground for relief available to
              the movant, counsel may move to withdraw. The motion shall
              explain the factual and legal basis for counsel’s opinion and
              shall give notice that the movant may file a response to the
              motion within 30 days of service of the motion upon the
              movant.

        In the Motion to Withdraw, Flonnory’s Rule 61 Counsel represented that, after

undertaking a thorough analysis of the case, Flonnory’s claims were so lacking in merit

that Rule 61 Counsel could not ethically advocate any of them. Rule 61 Counsel further

represented that, following a thorough review of the record, it was unaware of any other

substantial claim for relief available to Flonnory. Flonnory filed his Response to Rule 61

Counsel’s Motion to Withdraw on March 6, 2015.



                             DEFENDANT’S RULE 61 MOTION

        Flonnory’s claims for postconviction relief, in his own words, can be summarized

as follows:

    (1) Trial Counsel was ineffective for incorrectly arguing at trial, and on appeal, that it
        was error for the State to introduce the prior testimony of Dwayne Warren, and
        introduce it utilizing a State agent to substitute for Warren’s live testimony; and,


8
  This motion was rejected by the Court as non-conforming and was never docketed. However, the July 6,
2013, motion was provided to, and utilized by Rule 61 Counsel in their briefing and has been considered by
the Court in its entirety in reaching this ruling.


                                                    2
     (2) Trial Counsel was ineffective by not obtaining a certified ballistics expert to rebut
         and challenge the validity of the State’s expert.

        In his third postconviction motion, Flonnory fails to assert any new arguments.

Rather, Flonnory attempts to cure the procedural defaults cited by the Court in the denial

of his second postconviction motion. Flonnory largely restates the arguments from his

prior Postconviction motion, but adds a section to each claim arguing that he also has a

“colorable claim that there was a miscarriage of justice because of a constitutional

violation” under Superior Court Criminal Rule 61(i)(5).


                                       LEGAL STANDARD

         To prevail on an ineffective assistance of counsel claim, a defendant must meet

the two-pronged Strickland test by showing that: (1) counsel performed at a level “below

an objective standard of reasonableness” and that, (2) the deficient performance

prejudiced the defense. 9 The first prong requires that a defendant show by a

preponderance of the evidence that defense counsel was not reasonably competent, while

the second prong requires that the defendant show that there is a reasonable probability

that, but for defense counsel’s unprofessional errors, the outcome of the proceedings

would have been different. 10

        When a court examines a claim of ineffective assistance of counsel, it may

address either prong first; where one prong is not met, the claim may be rejected without

contemplating the other prong. 11

        Mere allegations of ineffectiveness will not suffice; a defendant must make and

substantiate concrete allegations of actual prejudice. 12 An error by defense counsel, even

9
  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
10
   Id.
11
   Id. at 697.


                                                    3
if professionally unreasonable, does not warrant setting aside a judgment of conviction if

the error had no effect on the judgment. 13 Finally, and of most applicability here, a

reviewing court need not consider the merits of a Rule 61 motion if the motion is

procedurally barred. 14

                                      PROCEDURAL BARS

         Flonnory’s claims are time-barred under Superior Court Criminal Rule 61(i)(1)

because this third Motion was not filed within one year of the date the conviction became

final.

         Superior Court Criminal Rule 61(i)(1):

         Time Limitation. A motion for postconviction relief may not be filed more than
         one year after the judgment of conviction is final or, if it asserts a retroactively
         applicable right that is newly recognized after the judgment of conviction is final,
         more than one year after the right is first recognized by the Supreme Court of
         Delaware or by the United States Supreme Court.

         Additionally, Flonnory’s claims are, again, procedurally barred under Rule

61(i)(4) as previously adjudicated. Both of Flonnory’s claims have been examined, and

denied, by prior rulings of this Court and the Delaware Supreme Court. Merely adding

that a “colorable claim” of a “constitutional violation” occurred, at this point in time,

does not change this fact.

         As to Flonnory’s first postconviction claim, the Delaware Superior Court, 15

Delaware Supreme Court, 16 and District Court of Delaware, 17 all previously addressed a


12
   Younger v. State, 580 A.2d 552, 556 (Del. 1990).
13
   Strickland, 466 U.S. at 691.
14
   Younger, 580 A.2d at 554.
15
   State v. Flonnory, 2008 WL 495780, at *3(Del. Super.) (finding that the issue was fully argued by
counsel at trial and therefore procedurally barred by Rule 61(i)(4)).
16
   See Flonnory v. State, 893 A.2d 507, 533 (Del. 2006) (holing it was not error to admit Dwayne Warren’s
former testimony).
17
   See Flonnory v. Phelps, 2010 WL 3023657, at *3 (D. Del.) (holding that the Delaware Supreme Court’s
denial was not contrary to nor an unreasonable application of Strickland v. Washington).


                                                    4
nearly identical argument as to what Flonnory makes now. Each court held that it was

not error to admit Warren’s prior testimony.               Additionally, any argument as to the

manner in which the prior testimony was presented to the jury, not previously raised at

trial, direct appeal, the first postconviction motion, or federal writ, is deemed waived and

thus procedurally barred under Rule 61(i)(2).

        Flonnory’s second postconviction claim is also procedurally barred.                       First,

assuming arguendo, that Flonnory is raising an argument not previously asserted in prior

motions, his arguments are waived, and thus barred under Rule 61(i)(2). 18 The reality,

however, is that Flonnory’s arguments are merely a continuation of previous arguments

concerning the firearms and ballistics evidence presented at the 2004 trial. Flonnory now

attempts to repackage, re-label and refine these arguments, despite having argued some

form of them all along. As noted in prior opinions of this Court, Trial Counsel advanced

the best possible strategy they could in light of witness testimony that Flonnory was in

possession of a semi-automatic handgun, and not a revolver. 19 Flonnory’s argument

concerning the need for a “certified ballistics expert” is conclusory and speculative at

best.   Flonnory has failed to identify an expert or expert opinion, propounding the

evidence he seeks, much less provide one to the Court in support of his argument. To the

extent that Flonnory’s arguments at this stage in the proceedings do not advance any type

of new or novel claims, they are meritless under Strickland, and procedurally barred as

previously adjudicated under Rule 61(i)(4).




18
   Incidentally, the same conclusion was reached by this Court in ruling upon Flonnory’s second
postconviction motion in 2013. See Flonnory, 2013 WL 2149885, at *3.
19
   See State v. Flonnery, 2008 WL 495780, at *3 (Del. Super.).


                                                    5
           For all of the foregoing reasons, Flonnory’s Motion should be SUMMARILY

DISMISSED 20 and Rule 61 Counsel’s Motion to Withdraw should be GRANTED.

           IT IS SO RECOMMENDED.



                                                    /s/ Bradley V. Manning
                                                    BRADLEY V. MANNING,
                                                    Commissioner

oc:        Prothonotary
cc:        Defendant




20
     Superior Court Criminal Rule 61(d)(4).


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