IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
ID# 0107010230

V.

ROBERT K. GARVEY,

Defendant

Submitted: January 22, 2018
Decided: March 29, 2018

On Defendant’s Request for an Evidentiary Hearing. DENIED.
Motion for Appointment of Counsel. DENIED.
SiXth Motion for Postconviction Relief. DENIED.

ORDER

Martin O’Connor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Robert K. Garvey, James T. Vaughn Correctional Institution, Srnyrna, Delaware,
pro se.

COOCH, R.J.

This 29th day of March 2018, upon consideration of Defendant’s Sixth
Motion for Postconviction Relief, it appears to the Court that:

1. The basic background to Defendant’s case can be found in this Court’s denial
of Defendant’s fifth motion for postconviction relief found below:

Robert K. Garvey (“Defendant”) Was convicted in 2003 of Murder
First Degree; Robbery First Degree; Attempted Robbery First
Degree; 2 counts of Possession of a Firearm During the Commission
of a Felony; 2 counts of Carrying a Concealed Deadly Weapon; and
Conspiracy Second Degree. Defendant Was sentenced to Life at

l

Level V, plus 30 additional years at Level V to be served
consecutively. Defendant Was also sentenced to 2 years at Level
II. The Delaware Supreme Court affirmed Defendant's convictions

on April 28, 2005.l

2. This is Defendant’s sixth motion for postconviction relief. Each of
Defendant’s prior motions Were denied.2 Defendant filed this, his sixth
motion for postconviction relief, on December 13, 2017. Defendant
now requests an evidentiary hearing, moves for appointment of counsel
for the fourth time, and maintains that his is entitled to postconviction
relief on five grounds with an accompanying 30-page memorandum of
law and various exhibits.

3. Defendant contends that “[a]ll ground’s [sic] are based on and raised
pursuant to the retroactive decision first announced on December 15,

2016 in Powell v. State, No. 316, 2016 (Del. Dec. 15, 2016).”3
Individually, Defendant alleges his five grounds of postconviction
relief as follow:

Ground one: the erroneous decision in Brice, infringed upon my
right to effective counsel.

Ground two: Motion to reopen all 16 cert. questions of law [] dated
August 9, 2002 - motion.

Ground three: Violation of the supremacy clause.

Ground four: Motion to reverse and/or vacate movant’s invalid,
illegal and unconstitutional conviction and/or sentence pursuant to
§ 4209.

Ground five: Forrner title 11, 636(A)(6) as a Whole is
unconstitutional, thus Delaware’s “Hybrid” system pursuant to §
4209(e)(2) and § 4209(e)(1)(J).4

4. Defendant argues, among other things, essentially that the Delaware
Supreme Court’s invalidation of Delaware’s capital sentencing statute

 

' State v. Garvey, 2015 WL 5750124, at *1 (Del. Super. Ct. Sept. 30, 2015), c_lff'd, 145 A.3d 430
(Del. 2016) (footnotes omitted).
2 Garvey v. Phelps, 840 F. Supp. 2d 782, 791 (D. Del. 2012); Garvey, 2015 WL 5750124; Stale v.
Garvey, 2013 WL 6913365 (Del. Super. Ct. Dec. 20, 2013), qu"a', 93 A.3d 653 (Del. 2014); Slale
v. Garvey, 2009 WL 1037740 (Del. Super. Ct. Apr. 8, 2009), q_f/'d, 979 A.2d 1110 (Del. 2009);
State v. Garvey, 2008 WL 1952159 (Del. Super. Ct. Feb. 13, 2008), qjj"a', 962 A.2d 917 (Del.
2008); State v. Garvey, 2006 WL 1495786 (Del. Super. Ct. May 25, 2006), q/j"a’, 925 A.2d 503
(Del. 2007).
: Def.’s Mot. for Postconviction Relief at 3, D.I. 264.

Id.

pursuant to 11 Del. C. § 4209 in Raufv. State5 deprived him of his right
to effective assistance of counsel and “an effective case review/during
a critical stage of [Defendant’s] capital (felony) murder proceedings . .
. because of the ‘external constraints’ placed on [his] defense attorney
by the erroneous Brz'ce court decision . . . .”6

5. Rule 61 is the remedy for defendants “in custody under a sentence of
this court seeking to set aside the judgment of conviction . . . .”7 This
Court “must first consider the procedural requirements of Rule 61
before addressing any substantive issues.”8 The procedural bars of Rule
61 include timeliness,9 successiveness,'O procedural default,ll and
former adjudication.12 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 recognized.13 A motion is successive if it is a “second or
subsequent motion.”14 If any of these bars apply, the movant must show
entitlement to relief under Rule 61(i)(5).15 The contentions in a Rule 61
motion must be considered on a “claim-by-claim” basis.'6

6. Defendant’s motion is not time-barred pursuant to Del. Super. Ct. Crim.
R. 61(i)(1) although Defendant filed this motion more than one year
after his conviction became final on April 28, 2005.l7 Because
Defendant “asserts a retroactively applicable right that is newly
recognized after [his] judgment of conviction is final,” Defendant may
file within “one year after the right is first recognized by the Supreme

 

5 145 A.3d 430, 432 (Del. 2016) (overruling Brice v. State, 815 A.2d 314 (Del. 2003)).

6 Ia’. at 11.

7 Del. Super. Ct. Crim. R. 61.

8 State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting

Bradley v. State, 135 A.3d 748, 756 (Del. 2016)).

9 ld. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(1)).

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

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

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

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

'4 Del. Super. Ct. Crim. R. 61(i)(2).

15 Stanford, WL 2484588, at *2.

16 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.”).

'7 The Supreme Court mandate was issued in Defendant's case on April 28, 2005. See Garvey v.
State, 873 A.2d 291 (Del.2005).

Court of Delaware . . . .”'8 Defendant claims that the Delaware Supreme
Court’s decision in Powell v. State, which in effect applied the Rauf
holding retroactively to previous capital cases, applies to his case.19
Powell was decided on December 15, 2016. As such, since Defendant’s
sixth motion for postconviction relief, which he filed on December 13,
2017, “asserts a retroactively applicable right that is newly
recognized[,]”20 it appears to be timely.Z'

Defendant’s claims nonetheless lack merit. Defendant challenges his
capital case on the grounds that Rauf and Powell “render[ ] his
conviction invalid . . . .”22 Defendant seems to argue that post-Rauf
defense representation provides more opportunities for defendants
facing life imprisonment to negotiate favorable plea deals and that
Defendant “was deprived of this opportunity . . . .”23 Defendant’s claim
lacks a basis for relief,

First and foremost, Defendant avoided capital punishment under 11
Del. C. § 4209 because during the penalty phase of his trial, the jury
found that the aggravating circumstances did not outweigh the
mitigating circumstances24 Thus, this Court sentenced Defendant to
“imprisonment for the remainder of the defendant's natural life without
benefit of probation or parole or any other reduction.”25
“The Rauf decision did lay out a new rule of constitutional law, but it
only applies to cases where the defendant has been sentenced to death.
Here, Defendant was sentenced to life in prison; therefore, Rauf does
not have any effect on his sentence.”26

Moreover, the Delaware Supreme Court in Powell vacated a
defendant’s death sentence in light of the Rauf decision’s retroactive

 

'8 Del. Super. Ct. Crim. R. 61(i)(1).
19 153 A.3d 69 (D€l. 2016).

20 Del. Super. Ct. Crim. R. 61(i)(1).
21 This Court notes, however, that to the extent Defendant asserts a postconviction claim that does

not necessarily involve the “retroactively applicable right that is newly recognized” by Powell,
that claim is procedurally barred by the one-year rule under Del. Super. Ct. Crim. R. 61(i)(1).
22 Def.’s Mot. for Postconviction Relief at 3, D.I. 264.

23 Ia'. at 6-7.

24 Garvey, 2003 wL 23095685, ar *4.
25 Id. (imposing 11 Del. C. § 4209(d)).
26 Szare v. Hassen, 2017 wL 2303978, ar *2 (Del. Super. Ct. May 25, 2017), q/Td, 169 A.3d 860

(Del. 2017).

10.

11.

effect.27 The Delaware Supreme Court held that “Powell's death
sentence must be vacated and he must be sentenced to ‘imprisonment
for the remainder of his natural life without benefit of probation or
parole or any other reduction.”’28 Rauf did not invalidate 11 Del. C. §
4209 in its entirety. “Rauf did not . . . invalidate the entirety of section
4209, and, as we said in Powell, the statute's life-without-parole
alternative is the correct sentence to impose on a defendant whose death
sentence is vacated. And we find no constitutional fault in imposing
that sentence on him.”29 Accordingly, Rauf s retroactive application
through Powell has no effect on Defendant because he was not
sentenced to death.

Second, the retroactivity of Rauf to Defendant or his counsel’s trial
strategy in 2003 does not warrant relief under Del. Super. Ct. Crim. R.
61(i)(1). This Court in State v. Brice held:

The Delaware Supreme Court’s ruling in Rauf v. State has a
retroactive effect on death penalty cases in which the defendant's
death sentence had been imposed before Rauf was decided.
However, there is no legal basis that would be retroactively apply
the holding in Rat¢f to Defendant's claim here. No person could
foresee that the Delaware death penalty statute would be deemed
unconstitutional thirteen years after Defendant decided to plead
guilty in order to avoid the then legal death penalty applicable to the
Defendant. Defendant's decision to plead guilty after the State's
case-in-chief was made after considering the applicable law at the
time.30

Although the defendant in Brz'ce elected to plead guilty and forgo trial,
the analysis is analogous to Defendant’s argument Defendant was not
deprived of his right to effective assistance of counsel merely because
now after Rauf defense attorneys in general have negotiated plea
bargains for their clients.

Defendant fails to demonstrate a basis for recovery pursuant to Del.
Super. Ct. Crim. R. 61. Accordingly, Defendant’s request for an

 

27 Powell, 153 A.3d at 76.

28 Id. (applying 11 Del. C. § 4209(d)(2)).

29 Zebroski v. State, No. 294, 2017, 2018 WL 559678, at *1 (Del. Jan. 25, 2018); see also Taylor
v. State, No. 367, 2017, 2018 WL 1212021, at *1 (Del. Mar. 7, 2018).

30 2017 WL 6028875, at *3 (Del. Super. Ct. Nov. 30, 2017).

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evidentiary hearing, his Motion for Appointment of Counsel, and
Motion for Postconviction Relief are DENIED.

IT IS SO ORDERED.

Richard R. Cooch, J.

 

cc: Prothonotary
Investigative Services

