      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                           )
STATE OF DELAWARE                          )
                                           ) ID#0907019543A
           v.                              )
                                           )
LEONARD M. TAYLOR,                         )
                                           )
                  Defendant                )


                         Submitted: January 11, 2017
                           Decided: March 3, 2017

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

   On Defendant’s Request for an Evidentiary Hearing. DENIED AS MOOT.

                                  ORDER
Elizabeth R. McFarlan, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Leonard M. Taylor, James T. Vaughn Correctional Institution, Smyrna, Delaware,
pro se.

COOCH, R.J.

     This 3rd day of March 2017, upon consideration of Defendant’s Second
Motion for Postconviction Relief, it appears to the Court that:

      1.    On January 31, 2011, following a jury trial, Defendant was convicted
            of non-capital Murder First Degree and Possession of a Firearm
            During the Commission of a Felony. On April 29, 2013, Defendant
            filed a Motion for Postconviction Relief. The Court appointed
            counsel to represent Defendant in that motion.


                                       1
       2.     In his first Motion for Postconviction Relief, Defendant asserted the
              following grounds for postconviction relief:

                     His first assertion is that trial counsel was ineffective because he
                     allegedly failed to advise the State that Defendant was willing to
                     plead “no contest” to the charge of manslaughter. Defendant
                     acknowledges that the State offered him a plea agreement to the
                     charge of manslaughter, but with that offer he would have had to
                     plead “guilty.” Defendant claims that he asked his trial counsel if
                     he could plead “no contest,” and trial counsel told him that was not
                     possible without consulting the State. Defendant claims that “[t]rial
                     counsel did not even know [Defendant's] plea options, because he
                     never discussed [Defendant's] no contest plea proposal with the
                     State.” Finally, Defendant claims that this deficient performance
                     by trial counsel prejudiced him, because if he was able to secure a
                     no contest plea to manslaughter, “his sentence would have been
                     vastly less, even at its maximum, than the one he is currently
                     serving.”1

       3.     This Court denied Defendant’s first Motion for Postconviction Relief,
              finding that Defendant had failed to show that his trial counsel’s
              representation of him fell below an objective standard of
              reasonableness as required by Strickland v. Washington. That decision
              was affirmed by the Delaware Supreme Court.2

       4.     On November 17, 2016, Defendant filed this second Motion for
              Postconviction Relief. In his second motion, Defendant claims
              sixteen grounds for relief:

                     [Ground One:] Trial counsel was ineffective by failing to exercise
                     sound judgment, by allowing State to sandbag the defense through
                     improper solicited statement from witness on direct examination
                     that inflamed the minds of the jurors, creating incurable underlying
                     prejudice against the defendant’s innocence.

                     ...



1
 State v. Taylor, 2016 WL 1714142, at *4 (Del. Super. Apr. 26, 2016).
2
 Taylor v. State, 2016 WL 6311117 (Del. Oct. 27, 2016) (affirming on the basis of this Court’s
decision).
                                               2
[Ground Two:] Trial and appellate counsel were both ineffective in
each stage of the trial and direct appeal advocacy process by
failing to know or use applicable applications of law to defend the
Defendant’s right pursuant to the Fifth and Sixth Amendments
against self-incrimination, and the due process provisions of the
fourteenth amendments.

...

[Ground Three:] Trial counsel and appellate counsel were both
ineffective in each stage of trial and direct appeal advocacy by
failing to investigate and present the evidence showing that Mr.
Briggs was a government agent, or raise argument on direct appeal
that trial counsel abused its discretion by allowing State to provide
testimony by witnesses in its case-in-chief, as under the party-
opponent and doctrine of completeness rules.

...

[Ground Four:] Trial counsel and appellate counsel were both
ineffective for failing to file [a] motion to suppress or object to
irrelevant testimony entered by Mr. Rimpol at Defendant’s trial of
uncharged criminal enterprise (drug trafficking). That exposed
him to additional charges as inadmissible, or for failing to file
direct appeal of abuse of discretion for admitting irrelevant
evidence under plain error.

...

[Ground Five:] The State failed to establish adequate foundation of
witnesses out-of-court statements to authorities, or trial testimonies
by not asking each witness whether or not their statements were
true.

...

[Ground Six:] The State failed to disclose exculpatory evidence to
the defense in violation of Delaware Rules of Evidence 16(a) under
discovery and inspection, Brady and Jencks.

...




                          3
[Ground Seven:] Defendant’s Fourth Amendment right to
expectation of privacy was violated by the State’s illegal search
and seizure of his cell phone.

...

[Ground Eight:] [The] State violated Defendant’s confrontation
clause through the admission of testimonial hearsay.

...

[Ground Nine:] Defendant’s Fifth Amendment right was violated
under Miranda.

...

[Ground Ten:] State’s prosecutor knowingly deprived the
Defendant the right of fair trial by knowingly allowing Eric Briggs
to commit perjury by testifying that his testimony was not in
exchange for leniency in State’s prosecution for numerous felony
offenses.

...

[Ground Eleven:] The trial court abused its discretion by admitting
items into evidence allegedly used in disposing of victim’s body
which could not be linked to the crime and varied in appearances,
as well as not having matching identification witnesses.

...

[Ground Twelve:] The State violated the Defendant’s Fourteenth
Amendment under the Equal Protection and Due Process Clauses
to the United States and Delaware Constitutions.

...

[Ground Thirteen:] Trial Counsel was incompetent during both
pretrial and trial stages and operated under a conflict of interest
which affected his client’s right to effective assistance of counsel.

...

[Ground Fourteen:] Movant was denied a fair trial in violation of
the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 7 of the Delaware Constitution

                          4
                        ...

                        [Ground Fifteen:] Movant’s right to due process and equal
                        protection was denied in violation of Article VI, and the Fifth,
                        Sixth, and Fourteenth Amendments to the United States
                        Constitution.

                        ...

                        [Ground Sixteen:] Movant was denied due process and equal
                        protection in violation of the United States Constitution; and due
                        process and a fair trial in violation of Article I, Section 7 of the
                        Delaware Constitution.3

                Defendant did not request the appointment of counsel in his Second
                Motion for Postconviction Relief.

         6.     Before considering the merits of a motion for postconviction relief,
                this Court must first determine whether or not the motion is
                procedurally barred under Superior Court Criminal Rule 61(i). As
                this is Defendant's second motion for postconviction relief, Rule
                61(d)(2) pertaining to successive motions is the applicable one in this
                matter. Under Rule 61(d)(2), successive motions for postconviction
                relief are procedurally barred unless the defendant

                        (i) pleads 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) pleads 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.4

         7.     In the case at bar, Defendant has failed to satisfy either test that would
                permit him to overcome the procedural bar. With respect to Rule
                61(d)(2)(i), Defendant has not alleged that “new evidence exists that
                creates a strong inference” that Defendant is innocent of the crimes of

3
    Defendant’s Second Motion for Postconviction Relief, 4-59.
4
    Super. Ct. Crim. R. 61(d)(2)
                                                  5
               which he was convicted. Accordingly, Defendant has failed to plead
               with any particularity that new evidence exists that creates a strong
               inference of actual innocence.

       8.      With respect to Rule 61(d)(2)(ii), Defendant has failed to show that a
               new rule of constitutional law made retroactive to his case exists.
               Many of Defendants’ sixteen claims for postconviction relief contain
               allegations that his constitutional rights were violated. However,
               Defendant has failed to set forth that any of the cases cited by him
               establish “new rule[s] of constitutional law, made retroactive to cases
               on collateral review.” Accordingly, as Defendant has failed to
               overcome the procedural bars to successive motions for
               postconviction relief, Defendant's second Motion for Postconviciton
               Relief is summarily dismissed, as required by Rule 61(d)(2).

       9.      The Court addresses separately Defendant’s claim of ineffective
               assistance of postconviction counsel, alleged in “Ground Fourteen” of
               his motion. There is no constitutional right to the effective assistance
               of counsel on a defendant’s collateral attack on his conviction.5
               Accordingly, Defendant’s argument on this point is without merit.

   Therefore, Defendant’s Second Motion for Postconviction Relief is
SUMMARILY DISMISSED.

       Defendant's request for an evidentiary hearing is DENIED AS MOOT.

IT IS SO ORDERED.

                                                                   ______________________
                                                                    Richard R. Cooch, R.J.
oc:    Prothonotary
cc:    Investigative Services




5
 See Cochran v. State, 2007 WL 1452725, at *1 n.13 (Del. May 17, 2007) (providing “there is
no constitutional right to counsel in collateral attacks on convictions.”); State v. Zebroski, 2013
WL 5786359, at *5 (Del. Super. Sept. 30, 2013) (providing “The right to effective assistance of
counsel is dependent on the right to counsel itself.”).
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