IN THE SUPREl\/IE COURT OF THE STATE OF DELAWARE

ABEL MAYMI, §
§ No. 313, 2014
Defendant BeloW, §
Appellant, § Court Below-Superior Court
§ of the State of DelaWare in and
v. § for NeW Castle County
§
STATE OF DELAWARE, §
§
Plaintiff BeloW, § Cr. ID No. 04100 143 67
Appellee. §

Submitted: July 3, 2014
Decided: September 25, 2014

Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.
0 R D E R

This 25th day of September 2014, upon consideration of the appellant’s
opening brief and the appellee’s motion to affirm, it appears to the Court that:

(1) The appellant, Abel Maymi, filed this appeal from the Superior
Court's May 21, 2014 denial of his third motion for postconviction relief under
Superior Court Criminal Rule 61 ("Rule 61").1 The appellee, State of Delaware,

has moved to affirm the judgment of the Superior Court on the ground that it is

1 sm¢e v. Maymz, 2014 WL 2537000 (Del. sup@r. cc. May 21, 2014).

manifest on the face of Maymi’s opening brief that the appeal is without merit.z
We agree and affirm.

(2) The record reflects that Maymi pled guilty in May 2005 to one count
of Rape in the Second Degree, two counts of Rape in the Third Degree, and one
count of Continuous Sexual Abuse of a Child. ln September 2005, the Superior
Court sentenced Maymi to a total of twenty years incarceration.

(3) Maymi filed a motion to withdraw his guilty plea in 2008. Maymi
alleged that his guilty plea was unknowing and involuntary because the plea
agreement and truth-in-sentencing form had not been read to him in Spanish so he
could understand them. Because the motion was filed after Maymi’s sentencing,
the Superior Court properly considered it under Rule 61.3 By order dated January
14, 2009, the Superior denied the motion after reviewing the guilty plea transcript
and concluding that the plea was knowing and voluntary and that there was no
evidence of manifest injustice.

(4) In April 2009, Maymi filed a motion for postconviction relief under
Rule 61. The motion was referred to a Superior Court Commissioner. By report
and recommendation dated May 12, 2009, the Commissioner determined that the

motion raised claims that had been fully addressed on the merits in Maymi’s prior

2 Del. supr. cr. R. zs(a).

3 See Del. Super. Ct. Crim. R. 32(d) (governing plea withdrawal); Blackwell v. State, 736 A.2d
971, 972-73 (Del. 1999).

plea withdrawal motion and recommended that the postconviction motion should
be denied as procedurally barred under Rule 61(i)(1)-(4) as untimely, repetitive,
procedurally defaulted, and formerly adjudicated/l Thereafter, upon de novo
review of the matter and consideration of Maymi’s objections to the
Commissioner’s report and recommendation, the Superior Court accepted the
report and recommendation and denied relief. On appeal, we affirmed.$

(5) Maymi’s second postconviction motion in November 2009 alleged
that his counsel was ineffective for failing to file a direct appeal from the 2005
guilty plea. After considering Maymi’s ineffective assistance of counsel claim on
its merits, a Commissioner submitted a report and recommendation dated
December 8, 2009, concluding that the claim was without merit and recommending
that the postconviction motion should be denied as without merit and as
procedurally barred. After de novo review, the Superior Court accepted the

Commissioner’s report and recommendation and denied relief. On appeal, we

affirmed.6

4 See Del. Super. Ct. Crim. R. 61(i)(1) (barring postconviction motion filed more than one year
after the judgment of conviction is final); id. at (i)(2) (barring any ground for relief not asserted
in a prior proceeding as required under (b)(2)); id. at (i)(3) (barring any ground for relief not
asserted in the proceedings leading to the judgment of conviction); z`d. at (i)(4) (barring formerly
adjudicated claim).

5 Maymi v. State, 2009 WL 3083021 (Del. Sept. 25, 2009).
6 Maymi v. State, 2010 WL 2854264 (Del. July 2l, 2010).

3

(6) ln July 2010, Maymi again alleged, this time in a federal habeas
petition, that his counsel was ineffective for failing to file an appeal from the guilty
plea. In 2011, the District Court of Delaware denied the petition as time barred7
and denied a motion for reconsideration.g

(7) Maymi returned to the Superior Court in 2013, filing his third
postconviction motion in April 2013 and a supplement to the motion in September
2013. In October 2013, the Superior Court appointed counsel to assist Maymi.
Counsel was directed to review and evaluate the matter and file a supplemental or
amended postconviction motion or, in the alternative, if appropriate, a motion to
withdraw with a supporting memorandum.9

(8) On February 6, 2014, Maymi’s counsel filed a motion to withdraw as
counsel with a supporting memorandum. Counsel represented that he had
carefully reviewed the record and had determined that there were no meritorious
claims. Counsel also represented that he sent a copy of the motion and
memorandum to Maymi and advised Maymi that he could file a response within
thirty days. The record does not reflect that Maymi filed a response to counsel’s

motion.

7 Maymi v. Phelps, 2011 WL 4006645 (D. Del. Sept. 9, 2011).
8 Maymi v. Phelps, 2011 WL 6034480 (D. Del. Dec. 5, 2011).

9 See Del. Super. Ct. Crim. R. 61(e)(2) ("lf 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.").

4

(9) By report and recommendation dated March 27, 2014, a
Commissioner recommended that Maymi’s third postconviction motion should be
denied, and that counsel’s motion to withdraw should be granted. Thereafter, upon
de novo review of the matter and consideration of Maymi’s objections to the
Commissioner’s report and recommendation, the Superior Court accepted the
report and recommendation and denied Maymi’s postconviction motion and
granted counsel’s motion to withdraw.l° This appeal followed.

(10) When reviewing a Superior Court denial of postconviction relief`, this
Court will address any applicable procedural bars before considering the merits of
any claim for relief.u In this case, having considered the Rule 6l(i) procedural
bars, the Court has determined, as did the Superior Court, that Maymi’s third
postconviction motion is barred under Rule 61(i)(1)-(4).12 On appeal, Maymi has
not established that his third postconviction motion involves a colorable claim of a
manifest injustice because of a constitutional violationB or a newly-recognized

retroactively applicable right.m Nor has he shown any indication that

‘° sane v. Maymz, 2014 WL 2537000 (Del. Super. ct May 21, 2014).
11 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
12 See supra note 4.

13 See Del. Super. Ct. Crim. R. 61(i)(5) (providing that the procedural bars of (i)(l), (2), and (3)
shall not apply to a colorable claim that there was a miscarriage of justice because of a
constitutional violation).

14 See Del. Super. Ct. Crim. R. 61(i)(1) (providing that an untimely motion may be considered
when the movant asserts a newly recognized retroactively applicable right).

5

consideration of his third postconviction motion or his formerly adjudicated claim
is warranted in the interest of justice.l$

(11) We also note that this is Maymi’s third Rule 61 petition. We have
now invested considerable time detailing our reasons why we conclude that the
Superior Court properly found that Maymi’s claims were procedurally barred
under Rule 61(i)(1)-(4) as untimely, repetitive, procedurally defaulted, and
formerly adjudicated. ln the future, if Maymi files additional petitions, we do not
intend to continue to invest scarce judicial resources in addressing his repetitive
claims. We also encourage Maymi to be mindful of subsection (i) of Rule 61.

(12) Having carefully considered the parties’ positions on appeal, we
conclude that the Superior Court’s judgment should be affirmed on the basis of the
May 21, 2014 order that adopted the Commissioner’s well-reasoned report and
recommendation dated March 27, 2014.16 The Superior Court did not err when
determining that Maymi’s third motion for postconviction relief was procedurally

barred without exception.

15 See Del. Super. Ct. Crim. R. 61(i)(4) (providing that a formerly adjudicated claim may be
considered "in the interest of justice"). "[A] defendant is not entitled to have a court re-exarnine
an issue that has been previously resolved "simply because the claim is refined or restated."’
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d 719, 721
(Del. 1990)).

16 sane v. Maymz, 2014 WL 2537000 (Del. Super. Ct. May 21, 2014).
6

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRl\/[ED.
BY THE COURT:

/s/ Randv J. Hollana'
Justice

