   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                      )
STATE OF DELAWARE                     )
                                      )      I.D. No. 0304012678
      v.                              )
                                      )
DARIUS D. BROADNAX,                   )
                                      )
                   Defendant.         )


                       Submitted: February 24, 2016
                          Decided: May 9, 2016
                         Corrected: May 10, 2016

           On Defendant’s Third Motion for Postconviction Relief.
                     SUMMARILY DISMISSED.

       On Defendant’s Second Motion for Appointment of Counsel.
                        DENIED AS MOOT.

                                ORDER
Joseph S. Grubb, New Castle County Prosecutor, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Darius D. Broadnax, James T. Vaughn Correctional Center, Smyrna
Delaware, pro se.

COOCH, R.J.

     This 9th day of May, 2016, upon consideration of Defendant’s Third
Motion for Postconviction Relief and Second Motion for Appointment of
Counsel, it appears to the Court that:

      1.     Defendant Darius D. Broadnax was found guilty following a
             jury trial of Murder Second Degree (as a lesser included offense
             to Murder First Degree) and Possession of a Deadly Weapon
              During the Commission of a Felony.1 This Court sentenced
              Defendant to 20 years at Level V, followed by 4 years of
              decreasing levels of supervision.2 Defendant’s conviction and
              sentence were upheld by the Delaware Supreme Court on
              March 22, 2005.3 On Defendant’s direct appeal, counsel filed a
              motion to withdraw because “there were no arguable issues.”4

       2.     Six days after the Delaware Supreme Court affirmed
              Defendant’s conviction and sentence, Defendant filed his First
              Motion for Postconviction Relief and First Motion for
              Appointment of Counsel. In his First Motion for
              Postconviction Relief, Defendant claimed ineffective assistance
              of counsel because his trial counsel allegedly failed to: (1)
              suppress a pretrial statement; (2) object to alleged hearsay
              statements; (3) object to the State’s leading questions and his
              “right not to testify; and (4) investigate issues that could be
              raised on appeal.”5 Defendant’s First Motion for
              Postconviction Relief was summarily dismissed by this Court
              on June 14, 2006. On his appeal of this Court’s summary
              dismissal, the Supreme Court stated, “Although Defendant sets
              forth the legal standard for a claim of ineffective assistance of
              counsel, he failed to offer any facts to support his contentions.”6

       3.     On August 28, 2012, Defendant filed a Second Motion for
              Postconviction Relief, in which he: (1) again raised a claim of
              ineffective assistance of counsel for trial counsel’s alleged
              failure to inform him of a favorable plea offer; and (2) claimed
              this Court erred by denying his First Motion for Appointment
              of Counsel.7 Defendant’s Second Motion for Postconviction
              Relief was denied on Nov. 13, 2012. The Supreme Court
              affirmed this Court’s denial of Defendant’s Second Motion for

1
  Broadnax v. State, 870 A.2d 1191, 2005 WL 678006, at* 1 (Del. Supr. Mar. 22, 2005)
(TABLE).
2
  State v. Broadnax, 69 A.3d 370, 2013 WL 3270891, at* 1 (Del. Supr. June 24, 2013)
(TABLE).
3
  Broadnax, 2005 WL 678006, at* 1 (Del. Supr. Mar. 22, 2005) (TABLE).
4
  Broadnax, 2013 WL 3270891, at* n. 1 (Del. Supr. June 24, 2013) (TABLE).
5
  State v. Broadnax, 2006 WL 1679583, at* 1–2 (Del. Supr. June 14, 2014).
6
  Id. at 2.
7
  Broadnax v. State, 69 A.3d 370, 2013 WL 3270891, at* 1 (Del. Supr. June 24, 2013)
(TABLE).
                                          2
              Postconviction Relief and stated, “[T]here is simply no factual
              basis for [Defendant’s] assertion that his counsel failed to
              inform him of the State’s plea offer. Similarly, because this
              claim is contradicted by the record, there can be no merit to
              [Defendant’s] second claim that the Superior Court should have
              appointed counsel.”8

       4.     On February 24, 2016, Defendant filed his Third Motion for
              Postconviction Relief and Second Motion for Appointment of
              Counsel. In his Third Motion for Postconviction Relief,
              Defendant claims “newly-discovered facts” entitle him to relief.
              Defendant’s claims are: (1) this Court abused its discretion and
              he suffered ineffective assistance of counsel because a
              videotaped out-of-court statement was allowed in the jury
              room; and (2) this Court abused its discretion and he suffered
              ineffective assistance of counsel for failing “to present
              arguments and a[] lesser-included[-]offense [i]nstruction.”9

       5.     Defendant’s Third Motion for Postconviction Relief is
              controlled by Superior Court Criminal Rule 61.10 Before
              addressing the merits of this Motion, the Court must address
              any procedural requirements of Superior Court Criminal Rule
              61(i).11

       6.     Under Rule 61(i), a motion for postconviction relief can be
              procedurally barred for time limitations, successive motions,
              procedural defaults, and former adjudications.12 If a procedural
              bar exists, then the Court will not consider the merits of the
              postconviction claim unless the Defendant can show that,
              pursuant to Rule 61(i)(5), the procedural bars are inapplicable.

       7.     Rule 61(i)(5), provides for consideration of otherwise
              procedurally barred claims in three different situations. First,
              when a defendant pleads with particularity that there is new
              evidence that creates a strong inference that the defendant is

8
  Id.
9
  Def’s. Opening Mem. at 1. The Court notes that Defendant was in fact found guilty of a
lesser-included offense and not the offense with which he was originally charged.
10
   Super. Ct. Crim. R. 61.
11
   See Younger v. State, 580 A.2d 552, 554 (Del. 1990).
12
   See Super. Ct. Crim. R. 61(i)(1)-(4).
                                           3
               actually innocent.13 Second, when the defendant pleads with
               particularity that a new rule of constitutional law that has been
               made to apply retroactively on collateral review by the United
               States Supreme Court or the Delaware Supreme Court renders
               the defendant’s conviction or death sentence invalid.14 Finally,
               the procedural bars of this Rule do not apply when a defendant
               claims that this Court lacked jurisdiction.15

       8.      This Court finds that all of Defendant’s claims are procedurally
               barred pursuant to Rule 61(i). Motions filed more than 1 year
               after Defendant’s conviction is finalized are time-barred.16
               Defendant’s judgment of conviction was finalized on March 22,
               2005, by the Delaware Supreme Court. Defendant did not file
               his Third Motion until February 24, 2016, almost 11 years later.
               Defendant’s Third Motion is also a successive motion, since this
               is his third motion.

       9.      Furthermore, Defendant’s attempt to avoid the procedural bars
               by claiming that he is entitled to relief based on “newly-
               discovered facts” is meritless and a bad-faith attempt to usurp the
               Rule. Therefore, the Court will not discuss the merits of his
               claims and Defendant’s Third Motion for Postconviction Relief
               is SUMMARILY DISMISSED.

       10.     Finally, since Defendant’s Third Motion for Postconviction
               Relief is summarily dismissed, Defendant’s Second Motion for
               Appointment of Counsel is DENIED AS MOOT.




13
   Super. Ct. Crim. R. 61(d)(2)(i).
14
   Super. Ct. Crim. R. 61(d)(2)(ii).
15
   Super. Ct. Crim. R. 61(i)(5).
16
   See Super. Ct. Crim. R. 61(i)(1) (barring postconviction motions filed more than 1 year
after judgment of conviction is final); Felton v. State, 945 A.2d 594, 2008 WL 308231
at* 2 (Del. Feb. 1, 2008) (TABLE) (measuring the start of the filing period for a Rule 61
motion from the date the direct Supreme Court mandate was issued and direct appeal
process concluded).
                                            4
IT IS SO ORDERED.

                                   ______________________
                                     Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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