      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                    )
                                     )      I.D. No. 30500267DI
      v.                             )
                                     )
WILLIS L. GRAYSON, II                )
                                     )
                  Defendant          )


                           Submitted: May 19, 2014
                           Decided: August 14, 2014

            Upon Defendant’s Fifth Motion for Postconviction Relief.
                                  DENIED.

             Upon Defendant’s Motion for Appointment of Counsel.
                                DENIED.

               Upon Defendant’s Motion for Evidentiary Hearing.
                                 DENIED.


                                    ORDER

James J. Kriner, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Willis L. Grayson, II, Smyrna, Delaware, pro se.

COOCH, R.J.

      This 14th day of August 2014, upon consideration of Defendant’s Fifth
Motion for Postconviction Relief, Motion for Appointment of Counsel, and Motion
for Evidentiary Hearing, it appears to the Court that:

      1.    Defendant Willis Grayson (“Defendant”) filed this Fifth Motion for
            Postconviction Relief and Motion for Evidentiary Hearing based on
                  several theories, most prominent among being that Defendant asserts
                  he is entitled to counsel under the decisions in Martinez v. Ryan 1 and
                  Holmes v. State.2

         2.       A jury found Defendant guilty of two counts of Rape Second Degree
                  on September 16, 1985. Defendant was subsequently sentenced on
                  March 7, 1986 to thirty years at Level V for each conviction,
                  sentences to run consecutively, for a total of sixty years. The Supreme
                  Court of Delaware affirmed Defendant’s convictions on direct appeal
                  on April 10, 1987.3

         3.       Defendant’s First Motion for Postconviction Relief, filed pro se, was
                  denied by this Court on December 15, 1992. The Supreme Court of
                  Delaware affirmed the denial of that motion on March 15, 1993;
                  Defendant raised eight grounds for relief in his initial motion with the
                  Superior Court, but only three when appealing this Court’s denial to
                  the Supreme Court of Delaware, thereby waiving the remaining five
                  claims. 4 As set forth in the Court’s opinion denying Defendant’s
                  initial motion for postconviction relief, Defendant’s alleged grounds
                  for relief were as follows: 1) “Absence of medical record;” 2)
                  “Sufficiency of the evidence;” 3) Vagueness of statute;” 4)
                  “Admission of the medical record;” 5) Unlawful use of peremptory
                  challenges;” 6) “Grand jury proceedings;” 7) “Ineffective assistance
                  of counsel;” and 8) “Admission of testimony concerning a ‘riding
                  crop.’” 5

         4.       Defendant filed his Second Motion for Postconviction Relief pro se
                  on May 17, 2002, and this motion was summarily dismissed.6 This
                  motion was a “cookie cutter” submission; it was one of multiple
                  identical motions for postconviction relief and supporting memoranda
                  that were submitted by convicted sex offenders within the same

1
  132 S.Ct. 1309 (2012).
2
  67 A.3d 1022 (Del. 2013).
3
  Grayson v. State, 524 A.2d 1 (Del. 1987).
4
  Grayson v. State, 622 A.2d 1095 (Del. 1993). Defendant apparently filed his initial motion for postconviction relief
on June 26, 1992, beyond the three year limitation of Superior Court Criminal Rule 61(i)(1) prior to its amendment
in 2005, but this Court determined that the three year period was tolled by virtue of a docketing error with
Defendant’s July 11, 1989 “Motion for Judgment of Evidentuary [sic] Hearing New Trial.” State v. Grayson, I.D.
No. 30500267DI, at 1 (Del. Super. Dec. 15, 1992).
5
  Id. at 2-13.
6
  State v. Grayson, 2002 WL 1335523 (Del. Super. June 13, 2002).

                                                          2
                  general timeframe. 7 Therefore, Defendant’s Second Motion for
                  Postconviction Relief was deemed “utterly without merit” and
                  summarily dismissed by this Court. 8 The Supreme Court of Delaware
                  affirmed this summary dismissal on September 19, 2002. 9

         5.       Defendant filed his Third Motion for Postconviction Relief pro se on
                  March 27, 2007. Defendant asserted four grounds for relief including
                  1) double jeopardy, (2) lack of jurisdiction, (3) prejudice due to the
                  absence of a certain medical report, and (4) ineffective assistance of
                  counsel. 10 This Court found Defendant’s claims to be procedurally
                  barred, summarily dismissed Defendant’s motion, and denied his
                  request for appointment of counsel under Rule 61 (e) for failure to
                  show good cause. 11 The Supreme Court of Delaware affirmed this
                  summary dismissal on January 7, 2008.12

         6.       Defendant filed his Fourth Motion for Postconviction Relief pro se on
                  November 8, 2010.13 Defendant raised four grounds for
                  postconviction relief in the instant motion: 1) double jeopardy; 2) The
                  “second” trial court lacked jurisdiction; 3) “Filure [sic] to produce and
                  provide Defendant with complete copy of ITC’s [presumably “initial
                  trial court”] mistrial transcript,” and 4) ineffective assistance of
                  counsel. 14 This Court, again, summarily dismissed Defendant’s Fourth
                  Motion for Postconviction Relief finding all of Defendant’s grounds
                  either conclusory or procedurally barred:

                           [T]his Court finds that, while perhaps some of Defendant's claims
                           may be “somewhat differently packaged and articulated, the
                           substance of Defendant's newest claims” have been fully and fairly
                           litigated and decided over the 23 year post-trial history of this case.
                           Further, even if any of Defendant's instant claims were novel,

7
  Id.
8
  Id. at *2.
9
  Grayson v. State, 812 A.2d 224, 2002 WL 31107571 (Del. Sep. 19, 2002) (ORDER) (“The Superior Court did not
err in concluding that Grayson's motion for postconviction relief was time-barred and that Grayson had failed to
overcome this procedural hurdle.”)
10
   State v. Grayson, 2007 WL 1064451 (Del. Super. Apr. 9, 2007).
11
   Id. at 2.
12
    Grayson v. State, 941 A.2d 1018, 2008 WL 187934 (Del. Jan. 7, 2008) (ORDER) (“The Superior Court did not
err in concluding that appellant's third motion for postconviction relief was untimely, that his claims were otherwise
procedurally barred, and that appellant had failed to overcome the procedural hurdles.”).
13
   State v. Grayson, 2011 WL 285599 (Del. Super. Jan. 18, 2011).
14
   Id. at *1.

                                                          3
                           Defendant has not shown that the consideration of any of his
                           claims is warranted in the interests of justice, as he has failed to
                           articulate any factual basis to support the contention that
                           “subsequent legal developments have revealed that the trial court
                           lacked the authority to convict or punish him.” 15

         7.       The Supreme Court of Delaware affirmed this summary dismissal on
                  August 18, 2011.16

         8.       Defendant now files his Fifth Motion for Postconviction Relief. In
                  addition, he has also filed a Motion for Appointment of Counsel and a
                  Motion for an Evidentiary Hearing. Defendant asserts six grounds in
                  his lengthy, circuitous postconviction motion, all variations or
                  combinations of the following set of arguments: 1) ineffective
                  assistance (both during trial and his appeal), 2) abuse of discretion by
                  the Court for denying Defendant’s previous requests for counsel and
                  postconviction motions, 3) lack of jurisdiction, 4) alleged failure of
                  the Court to provide Defendant with a “complete” transcript, 5)
                  Double Jeopardy, and 6) Defendant is entitled to counsel under the
                  decisions in Holmes and Martinez. 17 Defendant argues that the issues
                  with his First Motion for Postconviction Relief filed in 1992 and the
                  Court’s previous alleged “abuses of discretion” overcome any
                  procedural bars under Superior Court Rule of Criminal Procedure
                  61.18

         9.       In Defendant’s separate Motion for Appointment of Counsel,
                  Defendant again relies on Martinez, arguing :

                           [T]he issues raised are pursuant to 6th Amendment. Issues are
                           raised as a result of the “new rule” of constitutional law on cases of
                           “collateral review” by the United States Supreme Court that was
                           previously unavailable, that are specific to the right to counsel on
                           collateral review of the Sixth Amendment ineffective assistance of
                           counsel claim. 19

         10.      Defendant also states good cause exists for counsel because his
                  Motion for Postconviction Relief requires discovery “which he has

15
   Id. at *4 (footnotes omitted).
16
   Grayson v. State, 27 A.3d 551, 2011 WL 3652475 (Del. Aug. 18, 2011) (ORDER) (“The Superior Court did not
err when determining that the appellant's fourth motion for postconviction relief was procedurally barred, and that
the appellant offered no reason to excuse the procedural defaults.”).
17
   Def.’s Mot. for Postconviction Relief.
18
   Id. at 5.
19
   Def.’s Mot. for Appointment of Counsel.

                                                         4
                been constantly denied, i.e., documents and/or records were
                incomplete; denials were on the basis he is an imprisoned inmate.” 20

        11.     In Defendant’s Motion for Evidentiary Hearing, Defendant makes a
                nearly identical argument to his Motion for Appointment of Counsel.
                He asserts postconviction motions are “civil litigation” and therefore
                he is entitled to “a full and fair hearing before the Court to present his
                case.”21

        12.     Whether or not an evidentiary hearing should be held is at the judge’s
                discretion. 22 “It is well-settled that the Superior Court is not required
                to conduct an evidentiary hearing upon a Rule 61 motion if, on the
                face of the motion, it appears that the petitioner is not entitled to
                relief.”23 “If it appears that an evidentiary hearing is not desirable, the
                judge shall make such disposition of the motion as justice dictates.”24

        13.     Under the Delaware Superior Court Rules of Criminal Procedure, a
                Motion for Postconviction Relief can be barred for time limitations,
                repetitive motions, procedural defaults, and former adjudications. 25 A
                motion exceeds time limitations if it is filed more than one year after
                the conviction is finalized or they assert a newly recognized,
                retroactively applied right more than one year after it is first
                recognized.26 A motion is considered repetitive and therefore barred if
                it asserts any ground for relief “not asserted in a prior postconviction
                proceeding.” 27 Repetitive motions are only considered if it is
                “warranted in the interest of justice.” 28 Grounds for relief “not asserted
                in the proceedings leading to the judgment of conviction” are barred as
                procedural default unless movant can show “cause for relief” and
                “prejudice from [the] violation.” 29 Grounds for relief formerly
                adjudicated in the case, including “proceedings leading to the judgment
                of conviction, in an appeal, in a postconviction proceeding, or in a
                federal habeas corpus hearing” are barred.30 Former adjudications are
                only reconsidered if “warranted in the interest of justice.”31
20
   Id.
21
   Def.’s Mot. for Evidentiary Hrg.
22
   Super Ct. Crim. R. 61(h)(1).
23
   Hawkins v. State, 839 A.2d 666, 2003 WL 22957025, at *1 (Del. 2003) (ORDER).
24
   Super Ct. Crim. R. 61(h)(3).
25
   Super. Ct. Crim. R. 61(i).
26
   Super. Ct. Crim. R. 61(i)(1).
27
   Super. Ct. Crim. R. 61(i)(2).
28
   Id.
29
   Super. Ct. Crim. R. 61(i)(3).
30
   Super. Ct. Crim. R. 61(i)(4).
31
   Id.

                                                     5
         14.      Before addressing the merits of this Fifth Motion for Postconviction
                  Relief, the court must first apply the procedural bars of Superior Court
                  Criminal Rule 61(i). 32 If a procedural bar exists, then the Court will
                  not consider the merits of the postconviction claim. 33

         15.      All of Defendant’s claims are procedurally barred under Rule 61(i).
                  Defendant’s conviction was finalized in 1987, twenty-seven years ago
                  and well outside the time barrier of Rule 61. 34 Defendant does not
                  appear to argue a retroactive right under Martinez 35 and argues no other
                  retroactive rights to overcome this bar. The majority of Defendant’s
                  claims, including ineffective assistance, abuse of discretion, lack of
                  jurisdiction, transcript issues, and double jeopardy, have also been
                  previously adjudicated at some length and are therefore barred.
                  Defendant readily admits “[t]hroughout this Defendant’s
                  [postconviction motions] he has always raised [ineffective assistance of
                  counsel] claims, as well as Double Jeopardy, 2nd Trl. Ct., Lacked
                  Jurisdiction; [Court] and State failed to produce and provide him with a
                  complete copy of the mistrial proceedings…” 36 The Court has
                  addressed, and rejected, all of Defendant’s arguments as to those
                  grounds in previous motions. Simply restating these claims does not
                  change the fact that Defendant’s arguments have already been decided
                  in this Court. 37

         16.      Defendant’s arguments as to appointment of counsel, assuming
                  arguendo that they are not time-barred, are barred as a procedural
                  default. If this ground is indeed new, Defendant fails to show “cause
                  for relief” and “prejudice from [the] violation” other than bald
                  assertions that he was denied an alleged litany of state and federal
                  constitutional rights under Holmes and Martinez when the court denied
                  him counsel. On the contrary, the Delaware Supreme Court has held
                  that there is neither a federal nor a state constitutional right to counsel
                  in a postconviction proceeding. The Supreme Court held in Roten v.
                  State:

32
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
33
   Id.
34
   The one-year limitation is an amendment to Rule 61, effective July 1, 2005. Defendant is therefore subject to the
original three year limitations period prior to 2005. Defendant is still, however, twenty-four years beyond that
limitation.
35
   Def.’s Mot. for Postconviction Relief at 6.
36
   Id. at 7.
37
   Younger, 580 A.2d 552 at 556 (“Neither federal nor state courts are required to relitigate in postconviction
proceedings those claims which have been previously resolved.”).

                                                          6
                           The United States Supreme Court held in Martinez v. Ryan that
                           inadequate assistance of counsel during initial postconviction
                           proceedings may establish cause for a defendant's procedural
                           default of a claim of ineffective assistance of counsel at trial in
                           pursuing federal habeas corpus relief. Contrary to Roten's
                           contention, Martinez does not hold that there is a federal
                           constitutional right to counsel in first postconviction proceedings.
                           Furthermore, Roten misreads this Court's decision in Holmes v.
                           State. In Holmes, we held that the Superior Court abused its
                           discretion in denying Holmes' motion for the appointment of
                           counsel to assist him in his first postconviction proceeding. We
                           remanded for the appointment of counsel under the Superior
                           Court's new Criminal Rule 61(e), which allows for the
                           appointment of counsel in first postconviction proceedings. The
                           rule was adopted May 6, 2013 and is not retroactive. We did not
                           hold in Holmes that a right to counsel in first postconviction
                           proceedings exists as a matter of Delaware constitutional law. 38

         17.      Further, since Martinez did not establish a new constitutional right, it
                  cannot be applied retroactively.”39 Defendant may not apply Martinez
                  or Holmes retroactively to his claim. As such, Defendant’s arguments
                  fail to overcome the bar of Rule 61 (i)(3).

         18.      Defendant’s attempts to overcome the procedural bars of Rule 61 in the
                  “interests of justice” or under the exceptions of Rule 61 (i)(5) 40 due to
                  the docketing issue of his first motion or previous Court denials also
                  fail. As this Court held in its Fourth Motion for Postconviction Relief
                  decision:
                           Any errors in docketing were remedied by this Court's
                           determination that the procedural bar of Rule 61(i)(1) was tolled as
                           of the filing date of Defendant's first motion for postconviction
                           relief, which was thoroughly considered and properly denied.
                           Thus, it is clear from the face of Defendant's instant motion and the
                           record of his prior proceedings that Defendant's claims do not meet
                           the high standard that the fundamental fairness exception
                           requires. 41




38
   Roten v. State, 80 A.3d 961, 2013 WL 5808236, at *1 (Del. Oct. 28, 2013) (ORDER) (footnotes omitted).
39
   State v. Travis, 2013 WL 1196332, at *3 (Del. Super. Mar. 25, 2013), aff'd sub nom., Anderson v. State, 69 A.3d
370 (Del. 2013) and aff'd, 69 A.3d 372 (Del. 2013).
40
   Super. Ct. Crim. R. 61 (i)(5) (“Bars Inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this
subdivision shall not apply to a claim that the court lacked jurisdiction or 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.”).
41
   Grayson, 2011 WL 285599, at *4 (footnotes omitted).

                                                         7
         19.      Additionally, this Court finds that the “interests of justice” do not
                  require any of the above procedural bars to be reversed. The Delaware
                  Supreme Court has explained:

                           [T]he “interest of justice” exception provides two pathways to
                           demonstrate that a claim is not procedurally barred. The exception
                           applies when (1) “the previous ruling was clearly in error or there
                           has been an important change in circumstances, in particular, the
                           factual basis for issues previously posed,” or (2) there is an
                           “equitable concern of preventing injustice.” But the interest of
                           justice exception is narrow and will only be applied in limited
                           circumstances. 42

                   “Justice does not require that an issue that has been previously
                  considered and rejected be revisited simply because the claim is
                  refined or restated.”43 Defendant’s substantial claims have been
                  addressed by this Court and he provides no new evidence that
                  warrants a reversal of the procedural bars.

         20.      Newly amended Rule 61 (e), effective February 1, 2014, states that
                  “For an indigent movant's untimely first postconviction proceeding or
                  an indigent movant's second or subsequent postconviction
                  proceedings, the court will appoint counsel only in the exercise of
                  discretion for good cause shown, but not otherwise.”44

         21.      Defendant’s motion was filed after the effective date, but he has failed
                  to show good cause to appoint counsel. For the reasons stated above
                  in addressing his request for counsel in his postconviction claim, this
                  Court finds Defendants Motion for Appointment of Counsel to also be
                  without merit.

         22.      Superior Court Rule of Criminal Procedure 57(d) allows for the
                  incorporation of civil procedure when no criminal procedure is
                  provided so long as it is not “inconsistent” with criminal rules. 45 Rule
                  57 (d) is inapplicable here, despite Defendant’s simply incorrect
                  assertions that postconviction motions are “civil,” because
                  postconviction evidentiary hearings are governed by Rule 61(h)(1). It

42
   Lindsey v. State, 83 A.3d 738, 2014 WL 98645, at *3 (Del. Jan. 9 2014) (ORDER)(footnotes omitted) (quoting
Weedon v. State, 750 A.2d 521, 527-28 (Del. 2000).
43
   Riley v. State, 585 A.2d 719, 721 (Del. 1990), abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719
(1992).
44
   Super. Ct. Crim. R. 61 (e)(1).
45
   Super. Ct. Crim. R. 57 (d) (“In all cases not provided for by rule or administrative order, the court shall regulate
its practice in accordance with the applicable Superior Court civil rule or in any lawful manner not inconsistent with
these rules or the rules of the Supreme Court.”).

                                                           8
            appears on the face of Defendant’s motions that he is not entitled to
            relief. Accordingly, the Court has decided, in its discretion, not to
            grant the Defendant an evidentiary hearing.


Therefore, Defendant’s Fifth Motion for Postconviction Relief, Motion for
Appointment of Counsel and Motion for Evidentiary Hearing are DENIED.

IT IS SO ORDERED.
                                                       ______________________
                                                       Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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