       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                    )
                                     )
            v.                       )      I.D. No. 9506017661
                                     )
HECTOR BARROW                        )
                                     )
            Defendant.               )


                           Submitted: June 20, 2014
                           Decided: August 25, 2014

           Upon Defendant’s Third Motion for Post-conviction Relief.
                                 DENIED.

                                     ORDER




Hector Barrow, pro se, Smyrna, DE.

Elizabeth R. McFarlan, Esquire, Department of Justice, 820 N. French St.,
Wilmington, Delaware, Attorney for the State.

WHARTON, J.
      This 25th day of August, 2014, upon consideration of Defendant’s third
Motion for Post-conviction Relief, the State’s response and the record in this
matter, it appears to the Court that:

       1.     Defendant Hector Barrow filed this Motion for Post-conviction Relief,
              his third, on January 28, 2014, alleging that his trial counsel was
              ineffective.1 Specifically, he alleges that trial counsel: (i) failed to
              subpoena an unnamed “key witness”; and (ii) failed to object to
              testimony regarding the Jamaican language, testimony which related
              to the identification of the person who shot the victim. Additionally,
              he contends that the Court should have appointed counsel for
              assistance with his first post-conviction relief effort. 2

       2.     On June 25, 1995, Defendant, and two accomplices, Jermaine Barnett
              and Lawrence Johnson, shot and killed Thomas Smith, during the
              commission of a robbery of Smith’s gun shop. 3 On August 7, 1995,
              Defendant was indicted and charged with three counts of First Degree
              Murder (one count of intentional murder and two counts of felony
              murder), Robbery First Degree, Burglary Second Degree, Conspiracy
              First Degree, Conspiracy Second Degree and Possession of a Firearm
              during the Commission of a Felony. 4

       3.     Following a four-week trial, Defendant was convicted on all counts.5
              The murder convictions resulted in the imposition of death sentences. 6
              On direct appeal, the Delaware Supreme Court reversed the
              intentional murder conviction and sentence and the felony murder
              sentences, while affirming the felony murder convictions. 7 The Court
              ordered a new trial on the intentional murder charge and a new
              penalty hearing for the felony murder sentences. 8

       4.     On remand, the State elected to proceed solely with the penalty
              hearing on the felony murder convictions. A new trial on the


1
  Def.’s Mot. for Post-conviction Relief at 2.
2
  Id. at 3.
3
  Barrow v. State, 749 A.2d 1230, 1234 (Del. 2000).
4
  State v. Barrow, 1998 WL 733212, at *1 (Del. Super. Feb. 3, 1998).
5
  State v. Barrow, 2005 WL 3436609, at *1 (Del. Super. Dec. 6, 2005).
6
  Id.
7
  Barrow, 749 A.2d 1230, 1234.
8
  Id.
                                              2
              intentional murder charge was waived. 9 A second penalty hearing
              occurred in June of 2001. On January 4, 2002, the Court imposed a
              life sentence on the felony murder convictions. 10 Barrow did not
              appeal this sentence.11

       5.     On January 27, 2005, Defendant filed his first motion for post-
              conviction relief, alleging ineffective assistance of counsel, among
              other things.12 That motion was dismissed on August 5, 2005. 13 On
              February 22, 2006, Defendant appealed the Court’s decision, raising
              only a claim for ineffective assistance of counsel. 14 On January 5,
              2007, the Supreme Court affirmed that decision.15

       6.     Defendant filed his second motion for post-conviction relief on
              August 29, 2007, raising grounds other than ineffective assistance of
              counsel. 16 That motion was denied on October 31, 2008.17 Defendant
              filed an untimely appeal on December 9, 2008, and on January 13,
              2009, the Supreme Court dismissed that appeal. 18

       7.     Under the Delaware Superior Court Rules of Criminal Procedure, a
              motion for post-conviction relief can be barred for time limitations,
              repetitive motions, procedural defaults, and former adjudications.19 A
              motion exceeds time limitations if it is filed more than one year after
              the conviction becomes final or if it asserts a newly recognized,
              retroactively applied right more than one year after it was first
              recognized.20 A motion is considered repetitive and therefore barred if
              it asserts any ground for relief “not asserted in a prior post-conviction
              proceeding.” 21 Repetitive motions are only considered if it is
              “warranted in the interest of justice.” 22 Grounds for relief “not asserted
              in the proceedings leading to the judgment of conviction” are barred as

9
  State v. Barrow, 2002 WL 88934, at *1 (Del. Super. Jan. 4, 2002).
10
   State v. Barrow, 2005 WL 3436609, at *1.
11
   Barrow v. State, 913 A.2d 569 (Del. 2006) (TABLE).
12
   Dkt. 254.
13
   Dkt. 268.
14
   Dkt. 270.
15
   Dkt. 273.
16
   Dkt. 274.
17
    Dkt. 284.
18
   Dkt. 285.
19
   Super. Ct. Crim. R. 61(i).
20
   Super. Ct. Crim. R. 61(i)(1).
21
   Super. Ct. Crim. R. 61(i)(2).
22
   Id.
                                               3
              procedurally defaulted unless the movant can show “cause for relief”
              and “prejudice from [the] violation.” 23 Grounds for relief formerly
              adjudicated in the case, including “proceedings leading to the judgment
              of conviction, in an appeal, in a post-conviction proceeding, or in a
              federal habeas corpus hearing” are barred. 24 Former adjudications are
              only reconsidered if “warranted in the interest of justice.” 25

       8.     Before addressing the merits of Defendant’s third Motion for Post-
              conviction Relief, the court must first apply the procedural bars of
              Superior Court Criminal Rule 61(i). 26 If a procedural bar exists, then
              the Court will not consider the merits of the post-conviction claim. 27

       9.     Defendant’s claims are procedurally barred pursuant to Rule 61(i)(1).
              Defendant’s conviction became final on January 4, 2003. This
              Motion was filed over ten years after Defendant’s conviction became
              final. Moreover, Defendant’s first motion was also time-barred, since
              it was filed over three years after his conviction became final,
              exceeding the then three year time limitation. 28 Defendant has not
              offered any evidence of a retroactively applicable right that was newly
              recognized after his judgment of guilt became final in order to
              overcome the time bar. Defendant originally appeared to suggest that
              he had a retroactively recognized right to counsel based on Martinez
              v. Ryan.29 In his Reply, he expressly rejects that suggestion,
              however.30 In any event, Martinez “did not create a new right such as
              to qualify as a means of relief from the procedural bar of Rule
              61(i)(1).    Further, since Martinez did not establish a new
              constitutional right, it cannot be applied retroactively.” 31 If all of that
              were not enough, this motion was filed more than a year after
              Martinez was decided, exceeding the one year time bar for newly
              recognized rights. 32 Instead, Defendant argues that the trial court
              abused its discretion in denying his request for appointment of counsel

23
   Super. Ct. Crim. R. 61(i)(3).
24
   Super. Ct. Crim. R. 61(i)(4).
25
   Id.
26
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
27
   Id.
28
   Barrow, 2005 WL 3436609, at *2.
29
   132 S.Ct. 1309 (1202).
30
   Dkt. 291.
31
   State v. Travis, 2013 WL 1196332, at *3 (Del. Super. Mar. 25, 2013), aff’d sub nom.,
Anderson v. State, 69 A.3d 370 (Del. 2013) and aff’d, 69 A.3d 372 (Del. 2013).
32
   Super. Ct. Crim. R. 61(i)(1).
                                               4
              in his first post-conviction relief motion, citing Holmes v. State.33
              However, since that first motion itself was untimely, the trial court’s
              denial of Defendant’s request for counsel was not an abuse of
              discretion.

       10.    Defendant’s claim that he should have been provided with counsel for
              his untimely initial post-conviction relief motion is subject to
              procedural default under Rule 61(i)(3) as well, since he did not raise
              that issue in his appeal from the denial of that motion.34
              Defendant has offered no cause for relief from the procedural default
              occasioned by his failure to raise the issue on appeal. Similarly, he
              has not shown prejudice from his own failure to raise that issue, nor
              could he, since the request for counsel was made in connection with
              an untimely post-conviction relief motion and was properly denied by
              the trial court.

       11.    Defendant’s claim for ineffective assistance of counsel also is
              procedurally barred. To the extent his current claims are different than
              those previously asserted, they are barred by Rule 61(i)(2). To the
              extent they repeat those previously raised, they are barred as previously
              adjudicated under Rule 61(i)(4).

       12.    The Court does not find that “the interest of justice” 35 makes the above
              Rule 61(i)(2) and (4) bars to relief inapplicable. The “interest of
              justice” exception applies when (1) “the previous ruling was clearly in
              error or there has been an important change in circumstances, in
              particular, the factual basis for issues previously posed,” or (2) there is
              an “equitable concern of preventing injustice.” 36 The “interest of
              justice” exception is narrow and will only be applied in limited
              circumstances.37 No such circumstances exist here. The previous
              ruling was clearly not in error given the untimeliness of Defendant’s
              initial motion and there has been no important change in circumstances.
              Moreover, there is no “equitable concern of preventing injustice” since
              the evidence that Defendant was a participant in the felony murder of
              Thomas Smith was strong and the issue of who was the actual shooter
              was rendered moot when the trial court issued its decision after the

33
   67 A.3d 1022 (Del. 2013); Dkt. 286.
34
   Barrow v. State, 913 A.2d 569 (Del. 2006) (TABLE).
35
   Super Ct. Crim. R. 61(i)(2) and (4).
36
   Lindsey v. State, 2014 WL 2178453, at *3 (Del. May 27, 2014) (quoting Weedon v. State, 750
A.2d 521, 527-28 (Del. 2000))
37
   Id.
                                              5
              second penalty hearing. In that opinion, the trial court determined that it
              was unable to determine which of the three participants was the shooter
              and imposed life sentences. 38

       13.    Finally, the Court does not find that the bars to relief are inapplicable
              under Rule 61(i)(5). By its terms, that rule only provides relief from
              the bars found in Rules 61(i)(1)-(3). The bar to relief of Rule 61(i)(4)
              remains unaffected by Rule 61(i)(5). Defendant does not address Rule
              61’s bars to relief in his papers, and, hence, makes no argument that his
              underlying ineffective assistance of counsel claim raises a “colorable
              claim that there was a miscarriage of justice because of a constitutional
              violation that undermined the legality, reliability, integrity or fairness
              of the proceedings leading to the judgment of conviction.”39 Such an
              argument would lack merit in any case, since he has failed to show that
              he has a colorable claim.

       14.    To successfully articulate a colorable ineffective assistance of counsel
              claim, a claimant must demonstrate that counsel’s performance was
              deficient, and that, but for such deficiency, there is a reasonable
              probability that the result of the proceeding would have been
              different.40 “Mere allegations of ineffectiveness will not suffice. A
              defendant must make specific allegations of actual prejudice and
              substantiate them.” 41 Defendant’s first claim is that trial counsel
              should have subpoenaed an unnamed “key witness” to “ascertain the
              exact nature of the deal struck between the witness and the prosecutor
              in exchange for testimony.” 42 This allegation is far too lacking in
              specificity and in articulable prejudice to meet either prong of
              Strickland. Defendant’s second claim is that defense counsel failed to
              object to a witness’ testimony regarding Jamaican language and that
              such testimony was used to identify the shooter. 43 Whether the claimed
              failure to object meets the performance deficiency prong of Strickland
              is immaterial, since it clearly does not meet the prejudice prong. The
              identity of the shooter was relevant to the intentional murder charge
              and the penalty imposed. Since both of those issues were resolved in
              Defendant’s favor, he cannot complain of prejudice for his trial
              counsel’s failure to object to the testimony.

38
   State v. Barrow, 2002 WL 88934, at *3 (Del. Super. Jan. 4, 2002).
39
   Super. Ct. Crim. R. 61(i)(5).
40
   Strickland v. Washington, 466 U.S. 668 (1984).
41
   Wright v. State, 671 A,2d 1353, 1356 (Del. 1996).
42
   Def’s Mot. for Post-conviction Relief at 3.
43
   Id. at 4.
                                               6
      Therefore, Defendant’s third Motion for Post-conviction Relief is DENIED.


IT IS SO ORDERED.


                                                    /s/ Ferris W. Wharton, J.



oc:   Prothonotary
cc:   Investigative Services
      Elizabeth McFarlan, Esquire
      Anthony Figliola, Esquire
      Hector S. Barrow, SBI # 33




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