      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                    )
                                     )      I.D. No. 9510007098
      v.                             )
                                     )
KEVIN C. BRATHWAITE                  )
                                     )
                  Defendant.         )


                            Submitted: July 9, 2014
                           Decided: August 29, 2014

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

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

                         Upon Defendant’s Motion for Discovery.
                                 DENIED.

                                    ORDER

Gregory E. Smith, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Kevin C. Brathwaite, Smyrna, Delaware, pro se.

COOCH, R.J.

     This 29th day of August, 2014, upon consideration of Defendant’s Third
Motion for Postconviction Relief, it appears to the Court that:

      1.    In 1998, a jury found Kevin Brathwaite (“Defendant”) guilty of
            multiple counts of unlawful sexual intercourse and related crimes in
                 the assaults of three women. 1 Defendant was sentenced to six life
                 terms, plus an additional 110 years.2 The Supreme Court of Delaware
                 affirmed Defendant’s convictions on direct appeal on October 22,
                 1999. 3

        2.       Defendant filed his First Motion for Postconviction Relief/Motion for
                 a New Trial in 1999.4 It was denied and the Supreme Court of
                 Delaware affirmed the decision on July 10, 2006. 5

        3.       Defendant subsequently filed, pro se, a petition for a writ of habeas
                 corpus that was denied by the United States District Court. 6 The Third
                 Circuit affirmed this denial on March 22, 2011. 7

        4.       Defendant filed his second, pro se, Motion for Postconviction Relief
                 on February 28, 2013 8 on the grounds he was entitled to relief under
                 Martinez v. Ryan. 9 A Commissioner recommended the motion be
                 denied and the Court adopted the Commissioner’s Report and
                 Recommendation on May 14, 2013. 10 Defendant did not appeal.

        5.       Defendant now files this 101 page Third Motion for Postconviction
                 Relief with two voluminous appendices based on the following six
                 grounds for relief:

                               a. “Because Movant was never provided formal notice of the
                                  charges against him, as guaranteed by the Sixth
                                  Amendment and Del. Const. Art.1, §7, the Superior Court
                                  never lawfully invoked its subject matter jurisdiction to try,
                                  convict or punish Movant rendering his convictions null &
                                  void.”

                               b. “When the Superior Court denied Movant his fundamental
                                  right to formal notice, it also denied him Due Process of
                                  Law and a fair trial in violation of the Sixth and Fourteenth
                                  Amendments of the U.S. Constitution and Art. 1 §7 of the
                                  Delaware Constitution.”

1
  St.’s Response at 3.
2
  Id.
3
  Braithwaite v. State, 741 A.2d 1025, 1999 WL 1090581 (Del. Oct. 22, 1999) (ORDER).
4
  For a more detailed account of Defendant’s complicated procedural history, see Brathwaite v. State, 903 A.2d 322
(Del. 2006).
5
  Id.
6
  Brathwaite v. Phelps, 2009 WL 3345595 (D. Del. 2006).
7
  Brathwaite v. Phelps, 418 Fed.Appx. 142 (3d Cir. 2011), cert denied, 131 S.Ct. 3038 (2011).
8
  Motion for Postconviction Relief, Docket #199 (Feb. 28, 2013).
9
  132 S.Ct. 1309 (2012).
10
   Order, Docket #205 (May 14, 2013).

                                                        2
                              c. “Movant was denied his Sixth and Fourteenth Amendment
                                 right to effective assistance of counsel during direct appeal
                                 by appellate counsel’s failure to raise a jury instruction
                                 error that was per se reversible error.”

                              d. “The trial court lost the jurisdiction to proceed after it
                                 denied Movant a Faretta hearing on his unequivocal, timely
                                 request to proceed pro se in violation of the Sixth and
                                 Fourteenth Amendments of the U.S. Constitution and Del.
                                 Const., Art. 1, §7.”

                              e. “Movant was denied his right to have access to the courts
                                 when tangible evidence was illegally confiscated and lost
                                 by the state prosecutor’s office.”

                              f. “The Superior Court denied Movant his Sixth Amendment
                                 right to conflict free counsel when the court allowed
                                 counsel to continue representing Movant after he had been
                                 disqualified due to a conflict of interest.” 11

        6.       Defendant argues that jurisdictional issues, the rules applied, and
                 counsel’s ineffective assistance (during trial and post-trial) overcome
                 any procedural bars under Superior Court Rule of Criminal Procedure
                 61 and require the Court to hold an evidentiary hearing. 12

        7.       Defendant also filed a Motion for Appointment of Counsel and
                 Motion for Discovery. 13 Defendant filed two previous Motions for
                 Appointment of Counsel with his current postconviction motion on
                 January 29, 2014 and March 4, 2014.14 This Court has already denied
                 these motions in an order dated April 29, 2014 holding that
                 “Defendant’s motion fails to establish the requisite good cause
                 because it does not provide any factual support or legally viable
                 argument which would justify granting the relief sought. He simply
                 proclaims in conclusory terms that there were errors and/or
                 misconduct by his attorney which were extremely prejudicial to his
                 defense.” 15

        8.       Defendant filed this Third Motion for Appointment of Counsel on
                 June 19, 2014. 16 In it, Defendant again offers only conclusory
11
   Def.’s Mot. for Postconviction Relief at 4-5.
12
   Def.’s Reply at 3-4.
13
   Def.’s Mot. for Appointment of Counsel; Def.’s Mot. for Discovery.
14
   Docket # 211 (Jan. 29, 2014); Docket #212 (March 4, 2014).
15
   Order, Docket #214 (Apr. 29, 2014).
16
   Docket #218 (June 19, 2014).

                                                        3
                 statements that his previous counsel was ineffective, that his current
                 postconviction motion is “very complex,” and that the State colluded
                 with the Department of Corrections to “illegally confiscate” evidence
                 that supports his claim. 17 In his Motion for Discovery, Defendant
                 requests “all letters and photographs…confiscated by the
                 [D]epartment of [C]orrections and a copy of a handwriting expert’s
                 report to “properly present his appeal issues.” 18

        9.       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. 19 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.20 A motion is considered repetitive and therefore barred
                 if it asserts any ground for relief “not asserted in a prior
                 postconviction proceeding.”21 Repetitive motions are only considered
                 if it is “warranted in the interest of justice.” 22 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.” 23 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. 24
                 Former adjudications are only reconsidered if “warranted in the
                 interest of justice.” 25 The procedural bars may also be overcome if
                 Defendant presents 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.”26

        10.      Before addressing the merits of this Third Motion for Postconviction
                 Relief, the court must first apply the procedural bars of Superior Court

17
   Def.’s Mot. for Appointment of Counsel at 1-2.
18
   Def.’s Mot. for Discovery at 1-2.
19
   Super. Ct. Crim. R. 61(i).
20
   Super. Ct. Crim. R. 61(i)(1).
21
   Super. Ct. Crim. R. 61(i)(2).
22
   Id.
23
   Super. Ct. Crim. R. 61(i)(3).
24
   Super. Ct. Crim. R. 61(i)(4).
25
   Id.
26
   Super. Ct. Crim. R. 61(i)(5).

                                                    4
                  Criminal Rule 61(i). 27 If a procedural bar exists, then the Court will not
                  consider the merits of the postconviction claim. 28

         11.      Defendant’s Motion is procedurally barred in several ways. First,
                  Defendant’s motion was filed more than three years 29 after Defendant’s
                  conviction was finalized under Rule 61(i)(1) when his direct appeal
                  was denied in 1999.30 Defendant argues no retroactive rights to
                  overcome this bar.

         12.      In addition, Defendant’s claims as to ineffective assistance of counsel,
                  his issues with conflicted counsel, and pro se rights are procedurally
                  barred as previously adjudicated. These issues have been thoroughly
                  addressed in both state and federal courts. Simply restating or
                  reframing these claims does not change the fact that Defendant’s
                  arguments have already been considered and rejected. 31

         13.      Even if the Court were to consider the ineffective assistance assertion
                  as to jury instructions as new, then it is barred as a repetitive motion
                  under Rule 61(i)(2) and the requirements of Rule 61(b)(2). Defendant
                  would have had knowledge of the ground when he filed his original
                  postconviction motion and his failure to include it bars further
                  consideration. This Court does not find Defendant’s argument that he
                  was unaware of this ground due to a missing page of the transcript 32
                  compelling, as he was present when the jury instructions were read.
                  Likewise, Defendant would also have had knowledge of his allegedly
                  faulty notice of the indicted charges and his first and second grounds
                  could also be considered repetitive.

         14.      Defendant’s ground asserting missing evidence, assuming it is not
                  time-barred, can also be barred as procedurally defaulted. Defendant
                  contends that because the confiscation happened during his post-
                  conviction proceedings that he could not have asserted it in an earlier
                  postconviction motion. 33 Defendant, however, fails to show “cause for

27
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
28
   Id.
29
   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, twelve years beyond that limitation.
30
   Super. Ct. Crim. R. 61(m)(2) (“A judgment of conviction is final for the purpose of this rule … If the defendant
files a direct appeal or there is an automatic statutory review of a death penalty, when the Supreme Court issues a
mandate or order finally determining the case on direct review”).
31
   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.”).
32
   Def.’s Mot. for Postconviction Relief at 43.
33
   Def.’s Reply at 3.

                                                           5
                  relief” and “prejudice from [the] violation” beyond bald assertions of
                  “actual injury” and complaints that the Court then “adjudicate[d] the
                  proceedings based upon theoretical conjecture” when the Judge
                  presumed the evidence presented would have been used to argue the
                  victim was not telling the truth (which is exactly what Defendant
                  contends that evidence supports). 34 Defendant’s arguments fail to
                  overcome this bar.

         15.      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) 35 due to
                  the failure of the Superior Court to establish and/or maintain
                  jurisdiction over his case, the unconstitutionality of the Superior Court
                  Rules applied, and counsels’ ineffective assistance (both during and
                  after trial) fail. This Court finds that the “interest of justice” does 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. 36

                   “Justice does not require that an issue that has been previously
                  considered and rejected be revisited simply because the claim is
                  refined or restated.”37 Defendant’s substantial claims have been
                  addressed by this Court and he provides no new evidence that
                  warrants a reversal of the procedural bars.

         16.      Turning to Defendant’s jurisdictional arguments, this Court finds
                  them to be without merit. Defendant argues that “[t]here are
                  …numerous jurisdictional issues that must be addressed which can


34
   Def.’s Mot. for Postconviction Relief at 80-83.
35
   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.”).
36
   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).
37
   Riley v. State, 585 A.2d 719, 721 (Del. 1990), abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719
(1992).

                                                          6
                  never be waived or barred.” 38 “However, as stated above, a challenge
                  to the court's jurisdiction must be ‘colorable’ to avoid being subjected
                  to the three year limitations period. Any jurisdictional claim which is
                  frivolous on its face will be barred from consideration by application
                  of Rule 61(i)(1).”39 This Court finds Defendant’s claims, and
                  specifically his claim that issues with his indictment and other court
                  errors either failed to establish or extinguished subject matter
                  jurisdiction, to be “frivolous on [their] face” and therefore do not
                  overcome the bars of Rule 61. 40

         17.      Defendant also asserts that he must overcome the procedural bars of
                  Rule 61 because he has “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 “This exception to the
                  procedural bars is very narrow and is only applicable in very limited
                  circumstances.”42 However, “[a] claim of ineffective counsel in
                  violation of the Sixth Amendment to the United States Constitution, by
                  its very nature, qualifies as just such an exception.” 43 Defendant claims
                  his ineffective assistance of counsel claims therefore overcome the
                  procedural bar. This Court finds that Defendant has failed to show that
                  he has “a colorable claim.” Also Defendant’s extensive complaints
                  about his counsel have previously addressed by this Court and others.
                  The Court finds these arguments, while lengthy, unpersuasive to apply
                  the “very narrow” exception of Rule 61(i)(5).

         18.      To successfully articulate an ineffective assistance of counsel claim, a
                  claimant must demonstrate first that counsel’s performance was
                  deficient. To prove counsel’s deficiency, a Defendant must show that
                  counsel’s representation fell below an objective standard of
                  reasonableness.44 “Mere allegations of ineffectiveness will not suffice.
                  A defendant must make specific allegations of actual prejudice and

38
   Def.’s Reply at 3.
39
   Nasir v. State, 593 A.2d 590, 1991 WL 78453, at *1 (Del. May 3,1991) (ORDER).
40
   See Grosvenor v. State, 913 A.2d 569, 2006 WL 3461435 (Del. Dec. 1, 2006) (ORDER) (holding Defendant’s
argument that the Court lacked jurisdiction because a burglary charge in his indictment was invalid failed to
overcome the time-bar of Rule 61). See also Nasir, 593 A.2d 590 at *1 (“Nasir contends that the Superior Court lost
jurisdiction because of a discrepancy between the original charges in the arrest warrant and the charges contained in
the Grand Jury indictment. We find this argument to be a totally frivolous basis for a jurisdictional claim and,
therefore, hold that the Superior Court was correct in procedurally barring the claim from consideration.”).
41
   Super. Ct. Crim. R. 61(i)(5).
42
   State v. Wilmer, 2003 WL 751181 (Del. Super. Feb. 28, 2003), aff'd, 827 A.2d 30 (Del. 2003).
43
   Id.
44
   Strickland v. Washington, 466 U.S. 668, 688 (1984).

                                                          7
                 substantiate them.” 45 “[A] court must indulge a strong presumption that
                 counsel's conduct falls within the wide range of reasonable professional
                 assistance.” 46 Secondly, a Defendant must demonstrate that the
                 deficiencies prejudiced the Defendant by depriving him or her of a fair
                 trial with reliable results. A successful Sixth Amendment claim of
                 ineffective assistance of counsel requires a showing “that there is a
                 reasonable probability that, but for counsel’s unprofessional errors, the
                 result of the proceeding would have been different.” 47 Defendant has
                 simply failed to show that the potential jury instruction error meets (or
                 any of the other errors alleged) meets his burden.

        19.      This Court already addressed Defendant’s Motion for Appointment of
                 Counsel in its decision dated April 29, 2014. As discussed above,
                 Defendant again asserts only conclusory statements that he needs
                 counsel which fail to show good cause why this matter should be
                 revisited.

        20.      Addressing Defendant’s Motion for Discovery “[t]his Court [has]
                 noted that Rule 61 does not provide for additional discovery but that it
                 has the power to grant ‘particularized discovery for good cause
                 shown.’”48 Defendant’s bare bones motion that these items are “very
                 pertinent and necessary for [Defendant] to be able to properly present
                 his appeal issues” fails to establish good cause for this Court to grant
                 particularized discovery.

        21.      Whether or not an evidentiary hearing should be held is at the judge’s
                 discretion. 49 “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.”50 “If it appears that an evidentiary hearing is not desirable, the
                 judge shall make such disposition of the motion as justice dictates.” 51
                 It 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.


45
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
46
   Strickland, 466 U.S. at 689.
47
   Id. at 694.
48
   State v. Manley, 2011 WL 6000796 (Del. Super. Nov. 28, 2011) (quoting Dawson v. State, 673 A.2d 1186, 1197
(Del. 1996).
49
   Super Ct. Crim. R. 61(h)(1).
50
   Hawkins v. State, 839 A.2d 666, 2003 WL 22957025, at *1 (Del. 2003) (ORDER).
51
   Super Ct. Crim. R. 61(h)(3).

                                                      8
Therefore, Defendant’s Third Motion for Postconviction Relief, Motion for
Appointment of Counsel and Motion for Discovery are DENIED.

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

oc:   Prothonotary
cc:   Investigative Services




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