      IN THE SUPREME COURT OF THE STATE OF DELAWARE

OTTO GARY GIBBS                            §
(a.k.a. BOBBY MILLER),                     §
                                           §       No. 91, 2015
       Defendant Below,                    §
       Appellant,                          §       Court Below: Superior Court of
                                           §       the State of Delaware in and for
       v.                                  §       New Castle County
                                           §
STATE OF DELAWARE,                         §       Cr. ID No. 9605001774
                                           §
       Plaintiff Below,                    §
       Appellee.                           §

                           Submitted: March 23, 2015
                            Decided:  June 18, 2015

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

                                     ORDER

       This 18th day of June 2015, upon consideration of the appellant‟s

opening brief and the appellee‟s motion to affirm under Supreme Court Rule

25(a), it appears to the Court that:

       (1)    The appellant, Otto Gary Gibbs,1 filed this appeal from the

Superior Court‟s denial of his second motion for postconviction relief under

Superior Court Criminal Rule 61. The State of Delaware moved to affirm

the Superior Court‟s judgment on the ground that it is manifest on the face


1
 The defendant was arrested under the name Gary Gibbs, but it was later discovered that
his real name is Bobby Miller. See State v. Gibbs, 2014 WL 6670676, at *1 (Del. Super.
Nov. 12, 2014) (Comm‟r Order and Opinion).
of Gibbs‟ opening brief that the appeal is without merit. We agree and

affirm.

       (2)     In 1997, Gibbs was tried in the Superior Court on one count of

unlawful sexual intercourse in the second degree.2 At trial, Gibbs‟ defense

was that the sexual intercourse was consensual. The evidence against Gibbs

included testimony from the police detective who took photographs of “what

appeared to be blood” on the floor of the crime scene, the bathroom of

Gibbs‟ motel room, as well as testimony from the victim and the victim‟s

friend who had accompanied her to Gibbs‟ room.3 The record reflects that

the police detective‟s testimony and the relevant photographs were admitted

into evidence without objection from the defense.

       (3)     Gibbs was convicted by the jury and sentenced in October 1997

to twenty years at Level V, suspended after fifteen years for decreasing

levels of supervision. This Court affirmed his conviction and sentence on

direct appeal in 1998.4 In 1999, Gibbs filed a series of motions seeking the

appointment of counsel for assistance in filing his first motion for

postconviction relief. The Superior Court denied the motions on the basis


2
  11 Del C. § 774(1) (1996) (repealed 1998) (defining second degree unlawful sexual
intercourse as intentionally engaging in sexual intercourse without the victim‟s consent
and inflicting physical, mental or emotional upon the victim).
3
  See State v. Gibbs, 2014 WL 6670676, at *2 (Del. Super. Nov. 12, 2014) (Comm‟r
Order and Opinion) (citing Testimony of Brandi Stocks, Tr. Transcript, Vol. 1, p. 93).
4
  Gibbs v. State, 1998 WL 977116 (Del. Nov. 19, 1998).
                                            2
that there is no right to counsel when seeking postconviction relief, and that

Gibbs had not demonstrated good cause why counsel should be appointed.

       (4)     Gibbs filed his first motion for postconviction relief in 2001.

He claimed, in relevant part, that his trial counsel was ineffective for failing

to object to the admission of the police detective‟s testimony and

photographs “of what appeared to be blood” at the crime scene. In its order

denying his postconviction motion, dated January 7, 2002, the Superior

Court ruled that Gibbs failed to show that his trial counsel‟s alleged errors

were prejudicial.       On appeal, this Court affirmed the Superior Court‟s

judgment.5

       (5)     In 2003, Gibbs raised a similar claim of ineffective assistance

of counsel in a habeas corpus petition filed in the U.S. District Court for the

District of Delaware.6 By memorandum opinion dated June 17, 2004, the

U.S. District Court dismissed the petition as time-barred.7

       (6)     In March 2013, Gibbs filed his second motion for

postconviction relief in the Superior Court.8 Gibbs claimed that, under the



5
  Gibbs v. State, 2002 WL 2008163 (Del. Aug. 28, 2002).
6
  Gibbs v. Carroll, 2004 WL 1376588, at *2 (D. Del. June 17, 2004).
7
  Id., at *4.
8
  The record reflects that the motion was originally filed in November 2011, but was
returned as illegible. In the letter returning the motion, the Superior Court advised Gibbs
that he could “redraft it and resubmit it in a more readable form.” Gibbs resubmitted the
motion in March 2013.
                                             3
U.S. Supreme Court‟s decision in Martinez v. Ryan,9 he was entitled to the

appointment of counsel to relitigate the claims raised in his first motion for

postconviction relief.      He also recited the same claims of ineffective

assistance he asserted in his first motion.10

       (7)    The Superior Court appointed counsel to review and evaluate

Gibbs‟ second motion for postconviction relief in August 2013. On April

28, 2014, Gibbs‟ appointed counsel filed a motion to withdraw along with a

supporting memorandum under Superior Court Rule 61(e)(2).11                    Gibbs‟

counsel represented that he had carefully analyzed the claims raised in

Gibbs‟ second postconviction motion and determined that they were without

merit and that there were no other potentially meritorious grounds for relief.

       (8)    The Superior Court then appointed a Superior Court

Commissioner to evaluate Gibbs‟ claims and his counsel‟s motion to

withdraw.     The Commissioner issued a report on November 12, 2014,

recommending that Gibbs‟ second motion for postconviction relief be

denied, and that Gibbs‟ counsel be granted leave to withdraw.12                   The

Commissioner determined that Gibbs‟ claim of a right to counsel based on

9
  Martinez v. Ryan, 132 S.Ct. 1309 (2012).
10
   See State v. Gibbs, 2014 WL 6670676, at *3 (Del. Super. Nov. 12, 2014) (Comm‟r
Order and Opinion) (“Defendant‟s claim is an almost verbatim quote of the exact same
claim he raised in his 2001 motion.”).
11
   Del. Super. Ct. Crim. R. 61(e)(2) (2013) (now renumbered (e)(6)).
12
   State v. Gibbs, 2014 WL 6670676 (Del. Super. Nov. 12, 2014) (Comm‟r Order and
Opinion).
                                          4
the Martinez decision was without merit, and that his ineffective counsel

claims were procedurally barred as formerly adjudicated under Rule

61(i)(4).13 By order dated February 5, 2015, the Superior Court accepted the

Commissioner‟s report and recommendation, denied Gibbs‟ postconviction

motion, and granted his counsel‟s motion to withdraw.14                     This appeal

followed.

       (9)     On appeal, we review the denial of postconviction relief for

abuse of discretion and questions of law de novo.15                   Having carefully

considered the parties‟ positions on appeal and the record before the

Superior Court, we conclude that the Superior Court‟s judgment should be

affirmed. First, as the Superior Court determined, this Court has rejected the

argument that Martinez v. Ryan entitles a defendant who proceeded without

counsel in his first postconviction proceeding to be appointed counsel to “re-

do” that proceeding.16 Second, we agree with the Superior Court that Gibbs‟

ineffective assistance of counsel claim was procedurally barred as formerly

adjudicated under Rule 61(i)(4).17 “[A] defendant is not entitled to have a



13
   Id., at *3.
14
   State v. Gibbs, 2015 WL 544887 (Del. Super. Feb. 5, 2015) adopting 2014 WL
6670676 (Del. Super. Nov. 12, 2014) (Comm‟r Order and Opinion).
15
   Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
16
   Frazier v. State, 2014 WL 259434, at ¶ 4 (Del. Jan. 21, 2014); Riley v. State, 2014
WL98643, at ¶ 5 (Del. Jan. 9, 2014).
17
   See Del. Super. Ct. Crim. R. 61(i)(4) (2013) (barring formerly adjudicated claim).
                                             5
court reexamine an issue that has been previously resolved „simply because

the claim is refined or restated.‟”18

       (10) Furthermore, this Court finds no basis to reconsider his

ineffective assistance of counsel claims “in the interest of justice.”19 “This

Court has held that „[i]n order to invoke the „interest of justice‟ provision of

Rule 61(i)(4) to obtain relitigation of a previously resolved claim a movant

must show that subsequent legal developments have revealed that the trial

court lacked the authority to convict or punish him.‟” 20 There have been no

such “subsequent legal developments” since Gibbs‟ 1997 trial, as Martinez

does not require reconsideration of a previously adjudicated claim,21 and

Gibbs has cited no other relevant “legal developments.” The “interests of

justice” exception to Rule 61(i)(4) was always intended to be narrow,22




18
   Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d
719, 721 (Del. 1990)).
19
   See Del. Super. Ct. Crim. R. 61(i)(4) (2013) (permitting reconsideration of a formerly
adjudicated claim “in the interest of justice”).
20
   Weedon v. State, 750 A.2d 521, 527 (Del. 2000) (quoting Flamer v. State, 585 A.2d
736, 746 (Del. 1990)).
21
   Evans v. State, 77 A.3d 271 (Del. 2013) (“We reject Evans‟ contention that Martinez v.
Ryan required the Superior Court to consider the merits of his formerly adjudicated
claims.”).
22
   See Weedon, 750 A.2d at 528 (discussing the scope of the “interests of justice”
exception); see also Wright v. State, 91 A.3d 972, 986 (Del. 2014) (discussing the
distinction between the “interests of justice” exception to Rule 61(i)(4) and the
“miscarriage of justice” exception contained in Rule 61(i)(5), and observing that a claim
barred by Rule 61(i)(4) can only be considered in the interests of justice).
                                           6
which recent amendments to the Rule make clear.23 In that regard, we note

that Gibbs has not come forward with any new evidence of his actual

innocence. In fact, Gibbs does not even now contend that he had any

reasonable basis to assert that the photographs were not of blood, much less

that he gave his trial counsel any rational basis on which to object to the

characterization of the photographs on the ground that they depicted

something other than blood.

       NOW, THEREFORE, IT IS ORDERED, that the State‟s motion to

affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.

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




23
   See Del. Super. Ct. Crim. R. 61(d)(2) (2014) (providing that “any second or subsequent
postconviction motion will be summarily dismissed unless the movant was convicted
after a trial and the motion either: (i) pleads with particularity that new evidence exists to
establish the movant‟s actual innocence in fact; or (ii) pleads with particularity that a
new, retroactively applicable constitutional rule applies to the movant‟s case and renders
a conviction or death sentence invalid.”); Del. Super. Ct. Crim. R. 61(i)(4) (2014)
(eliminating interest of justice exception).
                                              7
