           IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL A. BROWN,                       §
                                        §     No. 223, 2014
      Defendant-Below,                  §
      Appellant,                        §     Court Below: Superior Court of
                                        §     the State of Delaware in and for
      v.                                §     New Castle County
                                        §
STATE OF DELAWARE,                      §
                                        §
      Plaintiff-Below,                  §     Cr. ID No. 0412008486
      Appellee.                         §

                          Submitted: June 25, 2014
                          Decided:   August 28, 2014

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

                                     ORDER

      This 28th day of August 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, Michael A. Brown, filed this appeal from the denials of

his fourth motion for postconviction relief and motion for appointment of counsel

under Superior Court Criminal Rule 61 (“Rule 61”). Brown also appeals the

Superior Court’s denial of his motion for transcripts at State expense.          The

appellee, State of Delaware, has moved to affirm the Superior Court judgments on
the ground that it is manifest on the face of Brown’s opening brief that the appeal

is without merit.1 We agree and affirm.

          (2)     In 2005, Brown was indicted on numerous counts of Robbery in the

First Degree, Attempted Robbery in the First Degree, Wearing a Disguise During

the Commission of a Felony, and Possession of a Firearm During the Commission

of a Felony. Brown was tried before a jury in 2006. At the close of the State’s

case-in-chief, Brown’s trial counsel moved to dismiss five counts in the

indictment, arguing that the State had not presented sufficient evidence to sustain a

conviction on those counts. The Superior Court denied the motion to dismiss. At

the end of the eight-day trial, the jury convicted Brown of most of the offenses

charged in the indictment, including multiple counts of Robbery in the First

Degree, Attempted Robbery in the First Degree, Wearing a Disguise During the

Commission of a Felony, and Possession of a Firearm During the Commission of a

Felony.

          (3)     On direct appeal, Brown argued, without success, that the prosecutor

committed misconduct when delivering the State’s closing statement.               We

concluded that the argument was without merit and affirmed the Superior Court

judgment.2        In his first motion for postconviction relief, Brown reargued the


1
    Del. Supt. Ct. R. 25(a).
2
    Brown v. State, 2007 WL 2399227 (Del. Aug. 22, 2007).

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prosecutorial misconduct claim as an ineffective counsel claim, asserting that his

trial counsel’s failure to object to the prosecutor’s closing statement was

ineffective representation.          Also, Brown argued that his trial counsel was

ineffective for failing to move to dismiss the indictment on the basis of insufficient

evidence. When denying the motion, the Superior Court ruled that both aspects of

Brown’s ineffective assistance of counsel claim were procedurally barred and that

the underlying claim of insufficient evidence was without merit. The court found

that:

                 The undisputed record contradicts Brown’s claim that
                 there was no direct or circumstantial evidence linking
                 him to the crimes for which he was convicted. At trial,
                 there was testimony from the victims of the robberies,
                 surveillance tapes, testimony from the police, and
                 evidence from a search of his person and home, all of
                 which demonstrated that he was the perpetrator of the
                 crimes. The Court thus finds that the jury had more than
                 sufficient evidence to convict Brown.3

Brown did not appeal the Superior Court’s denial of his first postconviction

motion.

         (4)     In his second motion for postconviction relief, Brown asserted

ineffective assistance of counsel based on his trial counsel’s failure to present an

alibi defense and to move to suppress illegally seized evidence. Brown’s second

postconviction motion was referred to a Superior Court Commissioner who issued

3
    State v. Brown, 2008 WL 555921, at *2 (Del. Super. Ct. Feb. 28, 2008).

                                                 3
a report recommending that the motion should be summarily dismissed as

procedurally barred. The Commissioner found that the alibi defense claim was

“substantially no differen[t]” from the insufficient evidence claim raised in the first

postconviction motion, and that Brown should have raised “all that he believed was

wrong with his counsel’s representation” in his first postconviction motion.4 The

Superior Court adopted the Commissioner’s report and recommendation and

denied the motion.5 Brown did not appeal from that decision.

          (5)    In his third motion for postconviction relief, Brown again asserted

ineffective assistance of counsel, alleging that his trial counsel was ineffective

when he failed to investigate and interview prospective witnesses, when he advised

Brown to reject a plea, and when he forced Brown to take the stand and “commit

perjury.” Brown asserted that any procedural bars to the ineffective counsel claim

should be excused under the United States Supreme Court’s 2012 decision in

Lafler v. Cooper.6

          (6)    Brown’s third postconviction motion was referred to a Commissioner

who issued a report recommending that the motion should be summarily dismissed




4
    State v. Brown, Cr. ID No. 0412008486, at 124 (Del. Super. Comm’r Feb. 6, 2009).
5
    Id., at 128 (Del. Super. Ct. Aug. 1, 2011).
6
  See Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012) (addressing a defense counsel’s duty
to communicate a plea offer effectively).

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as procedurally barred.7 The Commissioner found that the Lafler decision was

inapposite to Brown’s case and did not excuse the applicable procedural bars.

After that, Brown filed a motion for appointment of counsel, which the Superior

Court denied. The court found that:

                 Brown has not shown good cause why the Court should
                 appoint counsel on his behalf. As the voluminous record
                 indicates, Mr. Brown has had ample opportunity to raise
                 any claims he may have had regarding his convictions
                 and sentences. Moreover, although he may be unskilled
                 at law, Mr. Brown has filed numerous pro se motions,
                 including three Superior Court Rule 61 motions. In those
                 motions, Mr. Brown has discussed federal and state case
                 law and has been able to assert and prosecute varying
                 bases for relief without counsel.8

By order filed on July 19, 2013, the Superior Court, after considering Brown’s

objections and reviewing the matter de novo, adopted the Commissioner’s report

and recommendation and denied the motion.9 Brown’s appeal from the denial of

his third postconviction motion was dismissed as untimely filed.10

         (7)     In his fourth motion for postconviction relief, the denial of which

forms the basis of this appeal, Brown asserted several grounds for relief based on

ineffective assistance of counsel and insufficient evidence. Brown also filed a

motion for appointment of counsel. By separate orders filed on April 14, 2014, the

7
    State v. Brown, Cr. ID No. 0412008486, at 136 (Del. Super. Comm’r Mar. 5, 2013).
8
    State v. Brown, 2013 WL 1182219 (Del. Super. Ct. Mar. 15, 2013).
9
    State v. Brown, Cr. ID No. 0412008486, at 145 (Del. Super. Ct. July 19, 2013).
10
     Brown v. State, 2013 WL 6389742 (Del. Dec. 4, 2013).

                                                 5
Superior Court denied the postconviction motion as procedurally barred and the

motion for appointment of counsel as without merit.11

          (8)    On appeal, Brown argues that the Superior Court abused its discretion

when it barred his ineffective assistance of counsel claim “without first utilizing

the Strickland test.”12 The claim is without merit. Because Brown’s original

ineffective assistance of counsel claim was based on underlying claims of

prosecutorial misconduct and insufficient evidence that were previously considered

and found to be without merit, the court’s analysis of the ineffective counsel claim

under the Rule 61 procedural bars rather than Strickland was “entirely correct.”13

Brown “is not entitled to have a court re-examine an issue that has been previously

resolved ‘simply because the claim is refined or restated.’”14

          (9)    To the extent Brown argues that the Superior Court abused its

discretion when it denied his motion for appointment of counsel and motion for

transcripts at State expense, his arguments are without merit. The rule in effect in

January 2014, when Brown filed his fourth postconviction motion, provided that,
11
     State v. Brown, Cr. ID No. 0412008486, at 152-53 (Del. Super. Ct. April 14, 2014).
12
   The Strickland test was developed by the United States Supreme Court to determine
ineffective assistance of counsel. Under Strickland, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness” and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
13
  Skinner v. State, 607 A.2d 1170, 1173 (Del. May 11, 1992) (concluding that a prior disposition
of an issue on direct appeal “was, in fact, a substantive resolution of . . . [the] present
ineffectiveness of counsel claim”).
14
     Id. at 1172 (quoting Riley v. State, 585 A.2d 719, 721 (Del. 1990)).

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in a second or subsequent motion for postconviction relief, the court will appoint

counsel “only in the exercise of discretion and for good cause shown, but not

otherwise.”15 Similarly, in the absence of a showing of good cause, a defendant

does not have a right to free transcripts to pursue postconviction relief.16 In this

appeal from the denial of an untimely fourth postconviction motion raising

formerly adjudicated claims, Brown has not demonstrated, and the record does not

reflect, good cause for the appointment of counsel or for transcripts at State

expense.

          (10) When reviewing the denial of postconviction relief, this Court will

address any applicable procedural bars before considering the merits of any claim

for relief.17       In this case, Brown’s fourth postconviction motion is barred as

untimely under Rule 61(i)(1)18 and repetitive under Rule 61(i)(2).19                     Brown’s

claims of ineffective assistance of counsel and insufficient evidence are barred as

formerly adjudicated under Rule 61(i)(4).20                    On appeal, Brown has not

demonstrated that reconsideration of any of the formerly adjudicated claims is

15
     Del. Super. Ct. Crim. R. 61(e)(1) (2013).
16
  Miller v. State, 2008 WL 623236 (Del. Mar. 7, 2008) (citing United States v. MacCollum, 426
U.S. 317, 325-26 (1976)).
17
     Younger v. State, 580 A.2d 552, 554 (Del. 1990).
18
   See Del. Super. Ct. Crim. R. 61(i)(1) (barring motion filed more than one year after judgment
of conviction is final).
19
  See id. at (i)(2) (barring any ground for relief not asserted in a prior postconviction proceeding
as required by R. 61(b)(2)).
20
     See id. at (i)(4) (barring formerly adjudicated claim).

                                                    7
warranted under the narrow “in the interest of justice” exception found under Rule

61(i)(4).21 Nor has Brown demonstrated that the claims warrant review under Rule

61(i)(5) because of a constitutional violation so substantial that is constitutes a

“miscarriage of justice” undermining the “fundamental legality . . . or fairness of

the proceedings”22 or under Rule 61(i)(1) because of a newly recognized

retroactively applicable right.23

       (11) Finally, we note the obvious. This is Brown’s fourth Rule 61 petition.

On appeal from the denial of the motion, we have invested considerable time

detailing our reasons why we conclude that the Superior Court properly found that

Brown’s claims do not present grounds for relief from his judgment of convictions.

In the future, if Brown files additional petitions, we do not intend to continue to

invest scarce judicial resources in addressing his repetitive claims.                     We also

encourage Brown to be mindful of subsection (j) of Rule 61.24



21
   See id. (providing that a formerly adjudicated claim may be reconsidered in the interest of
justice). See Lindsey v. State, 2014 WL 98645, at *3 (Del. Jan. 9, 2014) (quoting Weedon v.
State, 750 A.2d 521, 527-28 (Del. 2000)).
22
   See id. at (i)(5) (providing that the procedural bars of (i)(1), (2) and (3) shall not apply “to a
colorable claim that there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading
to the judgment of conviction”).
23
  See id. at (i)(1) (providing that an untimely motion may be considered when it asserts a newly
recognized retroactively applicable right).
24
   See Del. Super. Ct. Crim. R. 61(j) (“If a motion is denied, the state may move for an order
requiring the movant to reimburse the state for costs and expenses paid for the movant from
public funds.”).

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

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




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