            IN THE SUPREME COURT OF THE STATE OF DELAWARE

DANIEL A. DICKSON,                         §
                                           §
       Defendant Below,                    §   No. 664, 2014
       Appellant,                          §
                                           §
       v.                                  §   Court Below: Superior Court
                                           §   of the State of Delaware,
STATE OF DELAWARE,                         §   in and for Kent County
                                           §   Cr. ID No. 1005001870
       Plaintiff Below,                    §
       Appellee.                           §

                             Submitted: February 13, 2015
                             Decided: March 11, 2015

Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.

                                        ORDER

       This 11th day of March 2015, upon consideration of the appellant Daniel A.

Dickson’s opening brief, the appellee’s motion to affirm,1 and the record below, it

appears to the Court that:

       (1)    Dickson filed this appeal from the Superior Court’s October 29, 2014

order summarily dismissing his first motion for postconviction relief. The State of

Delaware has moved to affirm the Superior Court’s judgment on the ground that it




1
  Dickson’s motion for leave to respond to the motion to affirm is denied. Under Supreme Court
Rule 25(a), no response to a motion to affirm is permitted unless requested by the Court. The
Court did not request a response to the motion to affirm and finds no good cause to permit a
response in this case.
is manifest on the face of Dickson’s opening brief that the appeal is without merit.2

We agree and affirm.

          (2)    The record reflects that, in March 2011, a Superior Court jury found

Dickson guilty of two counts of Robbery in the First Degree, two counts of

Possession of a Firearm During Commission of a Felony (“PFDCF”), Burglary in

the Third Degree, Wearing a Disguise During the Commission of a Felony,

Conspiracy in the Second Degree, and Reckless Endangering in the Second

Degree. Dickson was sentenced to a total period of sixty-eight years Level V

incarceration, suspended after twelve years for decreasing levels of supervision.

We affirmed the Superior Court’s judgment on November 22, 2011.3

          (3)    On October 8, 2014, Dickson filed his first motion for postconviction

relief. Dickson argued that: (i) the Superior Court erred in permitting amendment

of the indictment at the close of the State’s case; (ii) the committing magistrate

judge erred in authorizing his arrest for crimes committed while he was outside of

Delaware; (iii) his counsel and the State failed to disclose that one of the arresting

police officers was arrested for prescription drug offenses and was connected with

the robbery victims (who were involved in prescription drug dealing); and (iv) his

counsel was ineffective because he failed to subpoena, confront, or cross-examine

2
    Supr. Ct. R. 25(a).
3
    Dickson v. State, 2011 WL 5868352 (Del. Nov. 22, 2011).

                                               2
the police officer. Dickson stated that he did not discover the information relating

to the police officer until November 2013.              In addition to the motion for

postconviction relief, Dickson filed a motion for an evidentiary hearing and a

motion for appointment of counsel.

         (4)     The Superior Court summarily dismissed Dickson’s motion for

postconviction relief as time-barred under Superior Court Criminal Rule 61(i)(1).

The Superior Court denied Dickson’s motion for an evidentiary hearing and

motion for appointment of counsel as moot. This appeal followed.

         (5)     We review the Superior Court’s denial of postconviction relief for

abuse of discretion and questions of law de novo.4 The procedural requirements of

Superior Court Criminal Rule 61 (“Rule 61”) must be considered before any

substantive issues are addressed.5 In his opening brief, Dickson argues that: (i) the

Superior Court erred in dismissing his motion for postconviction relief because his

counsel and the State conspired to withhold exculpatory evidence of the

investigation and arrest of one of the arresting police officers for drug offenses; (ii)

the prosecutor violated American Bar Association trial standards by withholding

this exculpatory evidence and conspiring with Dickson’s counsel to conceal the

evidence; and (iii) his counsel was ineffective because he failed to disclose,

4
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
5
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).

                                                 3
interview, confront, or cross-examine the police officer. Dickson does not argue

the merits of the other claims he raised in the Superior Court (amendment of the

indictment, errors by the committing magistrate judge, entitlement to an

evidentiary hearing, and entitlement to appointment of counsel) and therefore those

claims are waived.6

         (6)     As    the    Superior     Court       recognized,   Dickson’s      motion     for

postconviction relief was untimely under Rule 61(i)(1) because it was filed more

than one year after his conviction became final in 2011.7                    To overcome this

procedural bar, Dickson argues that he filed his motion within one year of

discovering exculpatory evidence of the investigation and arrest of one of the

arresting police officers for prescription drug offenses. The police officer at issue

found cash with the victims’ identification in Dickson’s pockets after he was

arrested and a gun on the roof of the house where the robbery occurred. This

police officer did not testify at Dickson’s trial.

         (7)      Based on these arguments, it appears that Dickson seeks to invoke

Rule 61(i)(5) and Rule 61(d)(2)(i). Under Rule 61(i)(5), the time bar of Rule

61(i)(1) does not apply to a claim that the Superior Court lacked jurisdiction or to a

6
    Del. Supr. Ct. R. 14(b)(vi)(A)(3); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
7
  Super. Ct. Crim. Rule 61(i)(1) (2014) (barring postconviction motion filed more than one year
after conviction is final or, if it asserts retroactively applicable right that is newly recognized
after conviction, more than one year after right is first recognized by this Court or United States
Supreme Court).

                                                   4
claim that that satisfies the pleading requirements of Rule 61(d)(2)(i) or Rule

61(d)(2)(ii).8 A claim satisfies these pleading requirements, if it:

          (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 Court, applies to the
          movant’s case and renders the conviction or death sentence invalid.9

          (8)    Dickson’s contentions regarding the investigation and arrest of one of

the police officers who arrested him do not create a strong inference that Dickson

is actually innocent of the acts underlying his convictions. The trial record reflects

that multiple police officers responded to a call reporting a home invasion. The

victims testified that two masked men in black hooded sweatshirts broke into the

home, pointed guns at them, demanded money, and struck them each several times

in the head with guns. The robbers took over $900 in cash and ran out of the back

door of the house.

          (9)    The victims ran out the front door where they encountered arriving

police officers. One of the arriving police officers testified that Dickson and

another man fled to the back of the house as the police approached and that he

8
 Super. Ct. R. 61(i)(5) (“The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision
shall not apply either to a claim that the court lacked jurisdiction or to a claim that satisfies the
pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.”).
9
    Super. Ct. R. 61(d)(2).

                                                 5
found a loaded gun lying next to Dickson’s leg when he handcuffed Dickson. The

victims saw the police with the two intruders in their custody. One victim

recognized Dickson as someone he knew. Given this record, the investigation and

arrest of one of the police officers involved in Dickson’s arrest do not create a

strong inference that Dickson is actually innocent of the acts underlying his

convictions for Robbery in the First Degree, PFDCF, Burglary in the Third Degree,

Disguise, Conspiracy in the Second Degree, and Reckless Endangering in the

Second Degree. Thus, the Superior Court did not err in dismissing Dickson’s

motion for postconviction relief as time-barred. Nor did the Superior Court err in

denying Dickson’s motion for an evidentiary hearing and motion for appointment

of counsel.

      NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

                                            BY THE COURT:
                                            /s/ Leo E. Strine, Jr.
                                            Chief Justice




                                        6
