              IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMES J. DURHAM,                            §
                                            §      No. 106, 2017
         Defendant Below,                   §
         Appellant,                         §      Court Below—Superior Court of the
                                            §      State of Delaware
         v.                                 §
                                            §      Cr. ID No. 1003006262 (K)
STATE OF DELAWARE,                          §
                                            §
         Plaintiff Below,                   §
         Appellee.                          §

                              Submitted: September 15, 2017
                              Decided:   November 13, 2017

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

                                          ORDER

         This 13th day of November 2017, upon careful consideration of the parties’

briefs and the Superior Court record, it appears to the Court that:

         (1)    The appellant, James J. Durham, filed this appeal from the Superior

Court’s summary dismissal of his second motion for postconviction relief under

Superior Court Criminal Rule 61. We affirm the Superior Court’s judgment.

         (2)    Following a jury trial in October 2010, Durham was convicted of first

degree robbery and other offenses. After the verdict, Durham’s trial counsel filed a

motion for new trial, which was denied on June 9, 2011.1 Durham was sentenced



1
    State v. Durham, 2011 WL 3568267 (Del. Super. June 9, 2011).
on June 15, 2011. On direct appeal, this Court affirmed Durham’s convictions and

sentence.2

       (3)    In January 2013, with the help of postconviction counsel, Durham filed

a timely motion for postconviction relief alleging ineffective assistance of trial

counsel and appellate counsel. In October 2013, a Superior Court Commissioner

issued a report recommending that the postconviction motion should be denied.

Durham’s postconviction counsel appealed from the report and recommendation,

and the State filed a response. On April 30, 2015, the Superior Court adopted the

report and recommendation and denied the postconviction motion “as procedurally

barred for failure to prove cause and prejudice, and as meritless.3 The Superior Court

concluded that the appeal did “not advance the motion for postconviction relief in

any substantive way.”4 On appeal in this Court, we affirmed the Superior Court’s

judgment.5

       (4)    On February 6, 2017, Durham filed a second motion for postconviction

relief. In his pro se motion, Durham alleged that his postconviction counsel was

ineffective because counsel failed to raise additional claims of ineffective assistance

of trial counsel in Durham’s first motion for postconviction relief.



2
  Durham v. State, 2012 WL 11617 (Del. Jan. 3, 2012).
3
  State v. Durham, 2015 WL 2066778 (Del. Super. April 30, 2015).
4
  Id.
5
  Durham v. State, 2016 WL 499348 (Del. Feb. 8, 2016).
                                             2
       (5)    By order dated February 13, 2017, the Superior Court summarily

dismissed Durham’s second postconviction motion as procedurally barred. This

appeal followed. We review the Superior Court’s dismissal of the postconviction

motion for abuse of discretion and consider questions of law under de novo review.6

       (6)    Both this Court and the Superior Court are required to consider the

procedural requirements of Rule 61 before addressing any substantive issues. 7 In

this appeal from the summary dismissal of his second postconviction motion,

Durham claims the Superior Court considered procedural requirements inapplicable

to his motion and failed to consider relevant case law.

       (7)    First, Durham argues that the Superior Court should have applied the

version of Rule 61 in effect in 2012, when his convictions became final after his

direct appeal. According to Durham, had the Superior Court applied the 2012

version of Rule 61, the court would not have summarily dismissed his second

postconviction motion.        Second, Durham argues that, had the Superior Court

properly applied the dictates of our 2013 decision in Guy v. State,8 the court would

have been compelled to consider the merit of the claims that he raised in his second

postconviction motion. Both arguments are without merit.




6
  Claudio v. State, 958 A.2d 846, 850 (Del. 2008).
7
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
8
  Guy v. State, 82 A.3d 710 (Del. 2013).
                                               3
      (8)    Our 2013 decision in Guy v. State decided an appeal from the denial of

a defendant’s third motion for postconviction relief under Rule 61 as it then existed.9

Under the unique circumstances presented in Guy, we found that the defendant’s

claims of ineffective assistance of postconviction counsel were not procedurally

barred under Rule 61(i)(2) because the defendant had not had a prior opportunity to

raise the claims.10 We also held that the one-year time limitation in Rule 61(i)(1)

would not begin to run on a defendant’s claim of ineffective assistance of

postconviction counsel until the conclusion of the appeal from the denial of the

postconviction motion filed by postconviction counsel or the conclusion of the time

in which to file such an appeal.11

      (9)    In June 2014, Rule 61 was substantially amended with the adoption,

among other things, of a new pleading standard for second or subsequent motions

for postconviction relief.12 The new pleading standard—found in Rule 61(d)(2) and

incorporated in Rule 61(i)(2) and (i)(5)—provides that any second or subsequent

postconviction motion will be summarily dismissed unless the movant was

convicted after a trial and the motion either: (i) pleads with particularity that new

evidence exists to establish the movant’s actual innocence in fact; or (ii) pleads with


9
  Id.
10
   Id. at 715.
11
   Id. at 715–16.
12
    See Del. Super. Ct. Crim. R. 61(d)(2) (Supp. 2017) (governing second or subsequent
postconviction motions).
                                          4
particularity that a new, retroactively applicable constitutional rule applies to the

movant’s case and renders a conviction or death sentence invalid.13 Rule 61(d)(2),

and the other amendments to Rule 61 in June 2014, were made effective on June 4,

2014 and apply to motions for postconviction relief filed on or after that date,

including Durham’s motion filed in February 2017.14

       (10) Durham argues that, because the claims raised in his second

postconviction motion consisted entirely of claims of ineffective assistance of

postconviction counsel, the claims should have been considered on their merits

under Guy v. State because Durham had no prior opportunity to raise the claims, and

he raised the claims in a timely fashion. But Durham’s argument disregards the

pleading requirements now in effect under Rule 61(d)(2). The Superior Court was

required to consider the procedural requirements of Rule 61(d)(2) before addressing

any of the substantive issues raised in his second postconviction motion.15

       (11) The       Superior Court         summarily dismissed           Durham’s       second

postconviction motion after concluding that Durham failed to satisfy the

requirements of Rule 61(d)(2). We affirm that decision on appeal and hold that,



13
   Id. R. 61(i)(2), (i)(5).
14
    See Order Amending Rule 61 of the Superior Court Rules of Criminal Procedure (Del. Super.
Ct. June 4, 2014) (“This amendment shall be effective on June 4, 2014 and shall apply to
postconviction motions filed on or after that date.”); see also Jones v. State, 2015 WL 6746873, at
*1 n.4 (Del. Nov. 4, 2015) (noting that “the new version of Rule 61 . . . applies to all
‘postconviction motions filed on or after’ June 4, 2014”).
15
   Supra note 7.
                                                5
even if he did not have a prior opportunity to raise his ineffective assistance of

postconviction counsel claims, and even if, under Guy v. State, he raised the claims

in a timely fashion, Durham still was required to satisfy the requirements of Rule

61(d)(2) to avoid the summary dismissal of his second postconviction motion.16

Because Durham did not satisfy the requirements of Rule 61(d)(2), the Superior

Court did not err in dismissing his petition.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                            BY THE COURT:
                                            /s/ Leo E. Strine, Jr.
                                            Chief Justice




16
   Cf. Coles v. State, 2017 WL 3259697, at *2 (Del. July 31, 2017) (finding 2013 decision in Guy
v. State inapplicable in appeal from summary dismissal of second postconviction motion under
Rule 61(d)(2)).
                                               6
