IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

)
)
)
)
)
v. ) Cr. ID. No. 0306015699
)
)

JASON A. HAINEY, )

)

Defendant. )

Submitted: July 3, 2018
Decided: July 13, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED

Joe Grubb, Esquire, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorneys for the State of Delaware.

Jason A. Hainey, pro se

MAYER, Cornmissioner

This 13th day of July, 2018, upon consideration of Defendant’s Motion for
Postconviction Relief and the record in this matter, the following is my Report and
Recommendation.

BACKGROUND AND PROCEDURAL HISTORY

On February 12, 2004, a jury convicted Defendant, Jason Hainey, of First
Degree Murder, First Degree Felony Murder, Attempted Robbery First Degree, and
two counts of Possession of a Firearm During the Commission of a Felony. The
Delaware Supreme Court affirmed the conviction on appeal.l The facts underlying
the conviction Were set forth at length in the Supreme Court’s opinion. Briefly, in
August of 2001, Defendant Went to the house of Michael Mercer intending to rob
him and shot him six times. Sometime later, law enforcement located the gun and
the State Was able to connect the gun and the murder to Defendant through Witness
testimony. On appeal, the Supreme Court found that there Was sufficient evidence
to find Defendant guilty beyond a reasonable doubt.

On June 15, 2006, Defendant filed a pro se Motion for Postconviction Relief
(the “First Motion”). After full briefing, the Superior Court denied Defendant’s First
Motion (the “PCR Order”). Amongst the fourteen (14) arguments presented, the
court found no merit to the claims (l) challenging the suppression testimony of the

ballistics expert; or (2) that counsel Was ineffective because he failed to move for a

 

' Hainey v. State, 878 A.2d 430 (Del. 2005).
2

judgment of acquittal. On March 31, 2008, the DelaWare Supreme Court affirmed
the PCR Order.2

Defendant also filed a Petition for a writ of hapeas corpus With the United
States District Court for the District of DelaWare. On July 12, 2011, the District
Court issued a Memorandum Opinion dismissing the application3 Through his
petition, Defendant asserted four grounds for relief including:

(1)there Was insufficient evidence to support the jury’s verdict,

thereby depriving him of due process; (2) the Superior Court

deprived him of due process by erroneously admitting a gun into

evidence; (3) defense counsel provided ineffective assistance by

failing to argue or object that the ‘prosecution used

misleading/perjured testimony and. . .misrepresented evidence to

convict’; by failing to subpoena a key Witness; and by failing to

file a motion for judgment of acquittal; and (4) appellate counsel

provided ineffective assistance by failing to appeal the
aforementioned claims.4

The District Court held that: (1) the DelaWare Supreme Court did not unreasonably
decide there Was sufficient evidence to support the convictions;5 (2) claim two Was

barred by the DelaWare state court decisions and the denial of his ineffective

 

2 See Hainey v. State, 2008 WL 386599 (Del. Mar. 31, 2008).
3 See Hainey v. Phelps, 2011 WL 2708621 (D. Del., July 12, 2011).
4 Id. at *4.

5 Id. at *6.

assistance of counsel claim was not contrary to law;6 and (3) the Delaware Supreme
Court’s denial of claim three was not contrary to law or unreasonable.7 Defendant
appealed to the United States Court of Appeals for the Third Circuit. At that time,
he again argued that the trial court violated his constitutional rights by allowing the
gun into evidence. The Third Circuit denied his certificate of appealability and his
request for a rehearing8

On June 29, 2018, Defendant filed his Second Motion for Postconviction
Relief (the “Second Motion”). The Second Motion presents three claims: (1)
counsel was ineffective for failing to file a Rule 29 motion during trial; (2) the judge
erred and trial counsel was ineffective for allowing evidence of the weapon at trial;
and (3) trial counsel was ineffective for not challenging the ATF testimony/ballistics
evidence at trial or on appeal. For the reasons set forth below, I recommend that the
Second Motion be summarily dismissed

LEGAL ANALYSIS
The Court must first determine whether there are any procedural bars to the

motion before considering the merits of the claims.9 Pursuant to Superior Court

 

6 Hainey v. Phelps, 2011 WL 2708621, at *9 (D. Del., Juiy 12, 2011).
7 Id. 31*10-15.
8 Hazney v. Phelps, NO. 11-3321 (3rd Cir. oct. 27, 2011).

9 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4

Criminal Rule 61(d)(2), a second or subsequent postconviction motion must be
summarily dismissed unless the movant was convicted after a trial and the defendant
either (i) pleads with particularity that new evidence exists creating a strong
inference that he is actually innocent of the acts underlying the charges of conviction;
or (ii) pleads with particularity a claim that a new rule of constitutional law, made
retroactive to cases on collateral review, applies to the case and renders the
conviction invalid. In addition, several procedural bars may apply to prohibit further
relief. Specifically, (i) any motion for postconviction relief must be filed within one
year after the judgment of conviction is final; (ii) any second or subsequent pleading
must satisfy the requirements of Rule 61(d)(2); (iii) any ground for relief that was
not asserted in the proceedings leading to the judgment of conviction is barred unless
the movant establishes cause and prejudice; and (iv) any ground for relief that was
formerly adjudicated in the proceedings leading to conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing, is thereafter barred.10
Claims of ineffective assistance of counsel are subject to the time constraints set

forth in the rule.ll

 

10 See Super. Ct. Crim. R. 61(i)(1)-(4).

" See State v. Lum, 2007 WL 104145, at *3 (Del. Super. Mar. 22, 2007) (holding
claims of ineffective assistance of counsel filed more than 16 years after conviction
became final were procedurally barred); State v. Marine, 2015 WL 3429920 (Del.

5

Defendant’s Second Motion, having been filed almost thirteen (13) years after
the mandate issued on appeal, is untimely and time barred.12 Furthermore, as this is
Defendant’s Second Motion, he is deemed to have presented all relevant arguments
through his First Motion and will only be permitted to present a successive motion
if the exceptions to the bar are met. Defendant has not met those exceptions
Defendant neither argues that newly discovered evidence exonerates him, nor that a
new constitutional law has been issued that would now relieve him of his conviction.

Finally, all of the arguments presented in the Second Motion are barred as
formerly adjudicated Throughout the briefing and supplements on his First Motion,
the issue of the filing of a Rule 29 motion was addressed as well as the allegation
that there was an “abuse of discretion by the trial judge for suppressing ballistics
expert testimony while still allowing a gun” into evidence. These claims were
denied by the court in the PCR Order and affirmed on appeal. To the extent not
formerly adjudicated by the Delaware state court decisions, all of Defendant’s claims

were thoroughly addressed in the habeas corpus proceedings13

 

Super. May 13, 2015) (finding motion filed more than 9 years after sentencing was
procedurally barred as untimely).

'2 The Supreme Court Mandate was issued on July 5, 2005 (D.I. # 74). Pursuant
to Super. Ct. Crim. R. 61(m), the judgment of conviction became final when the
Supreme Court issued a mandate finally determining the case on direct review.

13 Defendant has also not plead any grounds for the exceptions to the procedural
bars. See Super. Ct. Crim. R. 61(1)(5) and (d)(2)(i), (ii).

6

Summary dismissal is appropriate if it plainly appears from the motion and
the record of the proceedings that the movant is not entitled to relief.14 Here, it is
evident from the Second Motion and the extensive prior proceedings both in the
State courts as well as the Federal courts, that Defendant is not entitled to relief.

For all of the foregoing reasons, Defendant’s second Motion for
Postconviction Relief should be SUMMARILY DISMISSED.

IT IS SO RECOMMENDED.

 

 

 

14 Super. Ct. Crim. R. 61(d)(5).

