        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                     IN AND FOR NEW CASTLE COUNTY



STATE OF DELAWARE                      )
                                       )
                                       )
             v.                        )      I.D.   82007915DI
                                       )
                                       )
LEON POWELL,                           )
                                       )
             Defendant.                )


                          MEMORANDUM OPINION


        Defendant was convicted in 1983 of murder in the first degree for

the stabbing death of Aaron Portlock.         Some 31 years later he has

brought his first Rule 61 motion. In that motion he alleges:

                  1. He was indicted under the wrong statute.

                  2. He was found guilty of felony murder but not found

                     guilty of any underlying felony.

                  3. The trial court abused its discretion when it allowed

                     his counsel to have a private polygraph examination

                     administered to him.

                  4. The prosecutor misled the trial court into allowing him

                     to undergo a private polygraph examination.


These claims are procedurally barred because they have been filed too

late.
         Criminal Rule 61 provides that motions for post-conviction relief

must be filed within one year of the date on which the conviction became

final. It provides:

                 Time limitation. A motion for postconviction relief
                 may not be filed more than one year after the
                 judgment of conviction is final or, if it asserts a
                 retroactively applicable right that is newly
                 recognized after the judgment of conviction is
                 final, more than one year after the right is first
                 recognized by the Supreme Court of Delaware or
                 by the United States Supreme Court. 1


The instant motion was filed more than 30 years after Defendant’s

conviction became final and is obviously time-barred. Rule 61 contains

an exception to the time bar for defendants who can show cause for, and

prejudice flowing from, the untimely filing. Defendant makes no such

showing in this case.

         Rule 61 also exempts from procedural bars instances in which the

defendant can:

                 (i) plead[ ] 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) plead[ ] 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. 2


1   Super. Ct. Crim. R. 61(i)(1).
2   Super. Ct. Crim. 61(d)(2)(i)-(ii).


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Again, Defendant makes no such showing. With respect to his claim that

he was indicted under the wrong statute, the court notes he was indicted

under 11 Del. C. § 636 for intentional murder. The evidence was that

Defendant stabbed his victim in the back twice, and the jury found him

guilty of that offense. It is difficult to see, therefore, how this amounts to

an indictment under the wrong statute.         With respect to Defendant’s

complaint that he is not guilty of felony murder, because was not

convicted of an underlying felony, the short answer is that he was not

prosecuted for, and not convicted of, felony murder.

      The remaining claims also do not amount to an exception to the

procedural bar. Prior to trial, Defendant, through his counsel, sought

permission to take a privately administered polygraph examination.

Apparently some of the results of that examination were favorable to

Defendant and others were not. His claim that this court exceeded its

discretion by acceding to his request allowing him to take a privately

administered lie detector examination is wholly without merit.           This

court’s alleged error could not possibly have resulted in any prejudice

since the results of that examination were never admitted into evidence.

Likewise, the contention about being misled by the prosecutor is without

merit. Apparently Defendant had some unilateral hope that if he did well

on the test the prosecutor would take that into consideration in

connection with any charging decisions or plea negotiations. As the trial

judge noted, the prosecutor was never obligated to accept the results of



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the examination, and apparently the prosecutor chose not to consider

the mixed results when deciding to prosecute Defendant. Defendant now

attempts to transmute this into some form of “objectionable tactic” by the

prosecutor.      The purported “tactic” is not even remotely objectionable.

Moreover, assuming that some wild flight of imagination could lead to the

conclusion this was, the fact remains that Defendant has failed to show

how he was prejudiced by it.

        Defendant sought appointment of counsel in connection with this

Rule 61 motion. He contends that he has a right to counsel under both

the Federal Constitution and Rule 61 itself.              He is incorrect.   It is a

common misconception among prisoners that the United States Supreme

Courts’ decision in Martinez v. Ryan 3 extended the Sixth Amendment

right to counsel to post-conviction proceedings.                  But the Martinez

decision was not grounded on the Sixth Amendment. Rather, “Martinez

simply held that, as a matter of equity, certain federal habeas corpus

petitions from state prisoners would not be subjected to federal

procedural bars if the state prisoner was not represented by counsel

when the prisoner first sought to challenge the effectiveness of his trial

counsel.” 4 As the Delaware Supreme Court has found:

               According to [Defendant], the United States
               Constitution provides a litigant with a right to
               counsel to present a postconviction petition.
               [Defendant] suggests that the United States
               Supreme Court's holding in Martinez v. Ryan

3   132 S. Ct. 1309 (2012).
4   State v. Frazier, 2013 WL 3339406, at *3 (Del.Super. June 19, 2013).


                                            4
                supports that broad proposition. But that is not
                so. To the extent that Harris asks us to innovate,
                go beyond what Martinez holds, and construct
                an argument he fails to make himself for
                expanding the circumstances where the federal
                Constitution requires a state government to
                provide counsel to a litigant, we decline to do
                so. 5

        Although Rule 61 itself creates a right to counsel under limited

circumstances, those circumstances do not exist here. Rule 61 provides

in pertinent part:

                The judge shall appoint counsel for an indigent
                movant's first timely postconviction motion and
                request for appointment of counsel if the motion
                seeks to set aside: (i) a judgment of conviction
                after a trial that has been affirmed by final order
                upon direct appellate review and is for a crime
                designated as a class A, B, or C felony under 11
                Del. C. § 4205(b); (ii) a judgment of conviction
                after a trial that has been affirmed by final order
                upon direct appellate review and resulted in the
                imposition of a sentence under 11 Del. C. §
                4214(b); or (iii) a sentence of death. 6


The instant motion has been filed more than one year after Defendant’s

conviction became final, and therefore it is not “timely.” 7 Consequently,

Defendant has no right to appointed counsel in this matter.                         Rule 61

vests    this   court    with     discretion     to   appoint     counsel      in    limited

circumstances.        Assuming, but not deciding, those circumstances are


5  Harris v. State, 99 A.3d 227 (Del. 2014) (TABLE) (footnotes omitted).
6  Super. Ct. Crim. Rule 61 (e)(1) (emphasis added).
7 Super. Ct. Crim. Rule 61 (i)(1) (“A motion for postconviction relief may not be filed

more than one year after the judgment of conviction is final”). Rule 61also gives this
court discretion to appoint counsel in certain post-conviction matters, but the court
finds there is nothing in the instant petition which causes it to exercise its discretion in
favor of appointing counsel.


                                             5
present here, the court declines to exercise its discretion in favor of

appointing counsel because of the absence of any arguably meritorious

claims in Defendant’s motion.

     It is therefore ordered that Defendant’s request for counsel is

DENIED and his motion for post conviction relief is DISMISSED.




                                               John A. Parkins, Jr.
Date: November 24, 2014                        Superior Court Judge




oc: Prothonotary

cc: Leon Powell, SBI 00176898, JTVCC, Smyrna, Delaware
    Joseph S. Grubb, Esquire, Department of Justice, Wilmington,
    Delaware




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