IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
ID# 0603009059

V.

MELVIN KELLUl\/I,

Defendant

Submitted: April 16, 2018
Decided: June 15, 2018

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

ORDER

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

Melvin N. Kellum, James T. Vaughn Correctional Institution, Smyrna, Delaware,
pro se.

COOCH, R.J.

This 15th day of June 2018, upon consideration of Defendant’s Second
Motion for Postconviction Relief, it appears to the Court that:

l. In May 2006, Defendant Was indicted for Attempted Murder
First Degree, Possession of a Firearrn During the Cornrnission of
a Felony, and Possession of a Deadly Weapon by a Person
Prohibited (“PDWPP”). A jury found Defendant not guilty of
Attempted Murder First Degree. However, the jury convicted
Defendant of the lesser-included offense of Assault First Degree
and the Weapons charges Defendant appealed his conviction to
the Delaware Supreme Court and Was represented by a different

l

attorney than the one he had at trial.l The convictions were
affirmed on May 16, 2008.2

2. On January 27, 2009, Defendant filed his first motion for
postconviction relief pursuant to Superior Court Criminal Rule 61.

“Defendant assert[ed] five grounds for relief in his motion:
(1) the joinder of the PDWPP charge prejudiced his rights
to a fair trial; (2) the Court's failure to dismiss a juror who
knew one of the State's witnesses amounted to prejudicial
error; (3) the in-court identification of Defendant by
Detective David Simmons violated his right to a fair trial;
(4) the failure to disclose a videotaped interview of an
eyewitness to the defense amounted to prejudicial error;
and (5) the Court's failure to give an unrequested alibi
instruction to the jury was ‘plain error.”’3

3. On May 19, 2010, this Court denied Defendant’s first motion for
postconviction relief. The Delaware Supreme Court affirmed the denial
for postconviction relief on January 21, 2011.4

4. Defendant then applied for federal habeas corpus relief pursuant to 28
U.S.C. § 2254 on four grounds:

“(1) defense counsel provided ineffective assistance by
failing to request and argue for an alibi instruction; (2) the
trial court violated his due process rights by failing to sua
sponte instruct the jury regarding his alibi defense; (3) the
prosecutor engaged in misconduct by making prejudicial
remarks during closing argument and by failing to provide
the defense with a videotaped statement of an eyewitness
in violation of Braa’y v. Marylana’, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963); and (4) appellate counsel

 

' Kellum v, Sm¢e, 950 A.2d 659 (Del. 2008).

2 Id.

3 Smre v. Kellum, 2010 WL 2029059 (Del. super. Ct. May 19, 2010), ajj"d, 12 A.3d 1154 (Dei.
2011).

4 Kellum v. Srare, 12 A.3d 1154 (Del. 2011).

provided ineffective assistance by failing to raise the
claims petitioner requested to be raised.” 5

On March 7, 2014, the United States District Court for the District of
Delaware denied Defendant’s application for federal habeas relief on
the grounds that: (1) this Court and the Delaware Supreme Court
reasonably applied Strickland to trial counsel’s failure to request an
alibi instruction,6 (2) the state court reasonably applied federal law in
denying claim asserting due process right to sua sponte alibi
instruction,7 (3) prosecutorial misconduct claim was procedurally
defaulted,8 and (4) Defendant failed to assert a proper basis for federal
habeas relief.9

On April 12, 2018, Defendant filed this second motion for
postconviction relief to this Court pursuant to Superior Court Criminal
Rule 61. Defendant asserts three grounds for relief for ineffective
assistance of counsel: (1) “Defendant was denied the right to effective
assistance of counsel at trial for failure to object to improper comments
of the State during closing arguments[,]”lo (2) “Appellate counsel
provided ineffective assistance of counsel in the appellate stage[,]”ll
and (3) “Defendant was denied the right to effective assistance of
counsel at trial by introducing the defense witness prior felony

 

5 Kellum v. Pz`erce, 24 F. Supp.3d 390 (D. Del. 2014).

6 Ia’. at 401, 403. (“[T]he Superior Court correctly identified the Strickland standard applicable to
petitioner's ineffective assistance of counsel claim. Thus, the Delaware Supreme Court's
affirmance of that decision was not contrary to clearly established federal law.”).

7 Id. at 404

Given the lack of Supreme Court holdings squarely addressing a trial court's duty
to sua sponte instruct the jury on alibi (or another defense) in the absence of a
defendant's request for such an instruction, the court concludes that the Delaware
state court decisions were not contrary to, or an unreasonable application of, clearly
established federal law.

8 Ia'. at 405 (“Consequently, petitioner's prosecutorial misconduct claim is procedurally defaulted,
meaning that the court cannot review its merits absent a showing of cause and prejudice, or that
petitioner is actually innocent.”).

9 Id. at 406 (“Postconviction counsel's failure to include claims on post-conviction appeal does not
assert a cognizable issue for habeas review, because petitioner does not have a Sixth Amendment
right to counsel in a post-conviction appeal.”).

10 Def.’s Mot. For Postconviction Relief at 12.

ll Id. at 20.

conviction involving dishonesty when the witness conviction was more

than 10 years ago.”12
7. Rule 61 is the remedy for defendants “in custody under a sentence of
this court seeking to set aside the judgment of conviction . . . .”'3 This

Court “must first consider the procedural requirements of Rule 61
before addressing any substantive issues.”14 The procedural bars of
Rule 61 include timeliness,15 successiveness,16 procedural
default,l7 and former adjudication.18 A motion is untimely if it is filed
more than one year after the conviction is finalized or defendant asserts
a new constitutional right that is retroactively applied more than one
year after it is first recognized19 A motion is successive if it is a “second
or subsequent motion.”z° If any of these bars apply, the movant must
show entitlement to relief under Rule 61(i)(5).21 The contentions in a
Rule 61 motion must be considered on a “claim-by-claim” basis.22

8. Defendant’s motion is procedurally barred because it is both untimely
and repetitive.

9. According to Rule 61(i)(1), “[a] motion for postconviction relief may
not be filed more than one year after the judgment of conviction is final
or, if it asserts a retroactively applicable right that is newly recognized
after the judgment of conviction is final, more than one year after the
right is first recognized by the Supreme Court of Delaware or by the
United States Supreme Court.”23 Defendant has not asserted that either
Rule 61(i)(2) exception is applicable here. Thus, Defendant’s motion is
untimely.

 

12 Id. at 24.

13 Del. Super. Ct. Crim. R. 61.

14 State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting
Bl”adl€y V. Sl`clie, l35 A.3d 748, 756 (Del. 2016)).

'5 la'. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(1)).

'6 Ia'. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(2)).

17 Ia'. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(3)).

18 Id. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(4)).

19 Del. Super. Ct. Crim. R. 61(i)(1).

20 Del. Super. Ct. Crim. R. 61(i)(2).

2' Stanford, WL 2484588, at *2.

22 State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (holding that “Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).

23 Del. Super. Ct. Crim. R. 61(i)(l).

10. As this is Defendant’s second motion for Postconviction relief, it is
repetitive pursuant to Delaware Superior Court Criminal Rule 61(i)(2).
According to Rule 61(i)(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.24

Defendant has not asserted that either Rule 61(i)(2) exception is
applicable here. In the case at bar, Defendant has failed to satisfy either
test that would permit him to overcome the procedural bar in Rule
61(i)(2). Defendant alleges three ineffective assistance of counsel
grounds for relief related to representation at both trial and appellate
stages. Defendant has not alleged that new evidence exists nor that a
new rule of constitutional law made retroactive to cases on collateral
review is applicable to his case.

11. Defendant fails to demonstrate a basis for recovery pursuant to Del.
Super. Ct. Crim. R. 61. Accordingly, Defendant’s Second Motion for
Postconviction Relief is SUMMARILY DISMISSED.

IT IS SO ORDERED.

MJ(K(M,¢

Richard R. Cooch, J.

 

cc: Prothonotary
Investigative Services

 

24 Del. super. Ct. Crim. R. 61(d)(2).

