               IN THE SUPREME COURT OF THE STATE OF DELAWARE

KENNETH T. DEPUTY,                       §
                                         §   No. 219, 2014
          Defendant-Below,               §
          Appellant,                     §
                                         §
          v.                             §   Court Below: Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for Kent County
                                         §   Cr. ID 9612008864
          Plaintiff-Below,               §
          Appellee.                      §

                             Submitted: June 11, 2014
                              Decided: July 14, 2014

Before STRINE, Chief Justice, HOLLAND, and BERGER, Justices.

                                      ORDER

          This 14th day of July 2014, upon consideration of the opening brief, the

appellee’s motion to affirm under Supreme Court Rule 25(a), and the record, it

appears to the Court that:

          (1)    The defendant-appellant, Kenneth T. Deputy, filed this appeal from

the Superior Court’s summary dismissal of his fifth motion for postconviction

relief. The State of Delaware has filed a motion to affirm the judgment below on

the ground that it is manifest on the face of Deputy’s opening brief that his appeal

is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)    In September 1997, Deputy was found guilty by a Superior Court jury

of attempted first degree robbery, first degree assault, and possession of a deadly

weapon during the commission of a felony. Deputy was sentenced to twenty-seven

years of Level V incarceration, suspended after twenty-two years for decreasing

levels of supervision. This Court affirmed Deputy’s convictions on direct appeal.2

Since then, Deputy has filed four unsuccessful motions under Superior Court

Criminal Rule 61 (“Rule 61”)3 and an unsuccessful habeas corpus petition in

federal court.4

         (3)    On September 6, 2013, Deputy filed his fifth motion for

postconviction relief with a supporting memorandum of law. Deputy also moved

for an evidentiary hearing, appointment of counsel, and transcripts. On April 17,

2014, the Superior Court summarily dismissed Deputy’s fifth postconviction

motion as barred under Rule 61(i)(1), (i)(2), (i)(3), and (i)(4). The Superior Court

denied the motion for an evidentiary hearing and the motion for appointment of

counsel as moot and denied the motion for transcripts. This appeal followed.


2
    Deputy v. State, 1998 WL 700168 (Del. Aug. 10, 1998).
3
 Deputy v. State, 2010 WL 3003075 (Del. Aug. 2, 2010) (affirming summary dismissal of fourth
postconviction motion); Deputy v. State, 2009 WL 2448235 (Del. Aug. 11, 2009) (affirming
summary dismissal of third postconviction motion); Deputy v. State, 2003 WL 1890011 (Del.
Apr. 17, 2003) (affirming summary dismissal of second postconviction motion); Deputy v. State,
2000 WL 313437 (Del. Mar. 9, 2000) (affirming denial of first postconviction motion).
4
    Deputy v. Garraghty, 2001 WL 640982 (D. Del. June 4, 2001).

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          (4)     This Court reviews the Superior Court’s denial of postconviction

relief for abuse of discretion and questions of law de novo.5 The Court must

consider the procedural requirements of Rule 61 before addressing any substantive

issues.6

          (5)     In    his    fifth   postconviction       motion   and   the   accompanying

memorandum, Deputy claimed: (1) the procedural bars of Rule 61 should not apply

because unbriefed points raised by Deputy in connection with his counsel’s

preparation of a Supreme Court Rule 26(c) (“Rule 26”) brief should not have been

considered on direct appeal; (2) there was misconduct and perjury by the arresting

officer; (3) a photo line-up was impermissibly suggestive; (4) the arrest warrant

and indictment were defective; (5) the Superior Court should have given a missing

evidence instruction after a photo array was lost or destroyed between Deputy’s

first and second trials;7 (6) there was insufficient evidence supporting his

convictions; (7) there was corruption and misconduct by court officials, police,

prosecutors, and public defenders; (8) his trial counsel’s filing of a Rule 26(c) brief

was improper and unconstitutional; and (9) ineffective assistance of counsel based

upon conflicts of interest and the failure to challenge the indictment, move to

5
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
6
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7
    The first trial resulted in a hung jury and mistrial.

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suppress the photo array, continue challenging the loss of the photo array after the

trial court denied defense counsel’s motion to dismiss, request a lost evidence

instruction, move for judgment of acquittal, and advocate for Deputy at sentencing.

Deputy essentially claims that he is entitled to relief in the interests of justice or

due to a miscarriage of justice under Rule 61(i)(5).

       (6)    All of the claims in Deputy’s fifth postconviction motion have

previously been raised and rejected,8 and are therefore procedurally barred under

Rule 61(i)(4). This Court has also previously found that consideration of Deputy’s

claims was not warranted in the interest of justice under Rule 61(i)(2) and (i)(4),

that there was no evidence of any cause for relief from the procedural default or

any prejudice resulting from a violation of Deputy’s rights under Rule 61(i)(3), and

that there was no evidence the Superior Court lacked jurisdiction or that there was


8
  Deputy v. State, 2010 WL 3003075 (Del. Aug. 2, 2010) (affirming summary dismissal of fourth
postconviction motion, which included claims based on defective indictment, lack of missing
evidence instruction, and ineffective assistance of counsel for failing to challenge indictment);
Deputy v. State, 2009 WL 2448235 (Del. Aug. 11, 2009) (affirming summary dismissal of third
postconviction motion, which included claims based on Rule 26(c) brief, arrest warrant, and
ineffective assistance of counsel for failure to challenge loss of photo array); Deputy v. State,
2003 WL 1890011 (Del. Apr. 17, 2003) (affirming summary dismissal of second postconviction
motion, which included virtually all of claims raised in fifth postconviction motion); Deputy v.
State, 2000 WL 313437 (Del. Mar. 9, 2000) (affirming denial of first postconviction motion,
which included claims based on misconduct by arresting officer, suggestive photo identification,
and insufficient evidence); Deputy v. State, 1998 WL 700168 (Del. Aug. 10, 1998) (finding no
plain error in connection with arrest, arrest warrant, and indictment claims, finding no error in
denial of motion to dismiss based upon missing photo array, concluding there was sufficient
evidence, and affirming convictions); Deputy v. State, 1999 WL 743921 (Del. Super. Ct. Sept.
17, 1999) (adopting commissioner’s report and recommendations and dismissing first
postconviction motion), aff’d, Deputy v. State, 2000 WL 313437 (Del. Mar. 9, 2000) .

                                               4
a miscarriage of justice due to a constitutional violation under Rule 61(i)(5).9

Deputy has not established any reason for a different result here. Deputy’s vague

references to recent issues with drug evidence at the medical examiner’s office

(which arose more than a decade after Deputy’s non-drug related convictions) and

conclusory and unsupported claims of actual innocence do not satisfy the interest

of justice exception under Rule 61(i)(2) and (i)(4) or state a colorable claim of a

miscarriage of justice under Rule 61(i)(5).10 Nor does Zebroski v. State,11 in which

this Court remanded the Superior Court’s dismissal of a second postconviction

motion in a death penalty case because the Superior Court had not addressed the

interest of justice or miscarriage of justice exceptions, dictate a different result.

Unlike the claims in Zebroski, Deputy’s claims have been rejected numerous times

and this Court has previously found reconsideration of his claims unwarranted

under the Rule 61 interest of justice and miscarriage of justice exceptions.


9
 Deputy v. State, 2010 WL 3003075 (Del. Aug. 2, 2010); Deputy v. State, 2009 WL 2448235
(Del. Aug. 11, 2009); Deputy v. State, 2003 WL 1890011 (Del. Apr. 17, 2003).
10
   Younger v. State, 580 A.2d 552, 554 (Del. 1990) (explaining that conclusory statements do not
satisfy the interest of justice exception under Rule 61(i)(2) and (i)(4) or the miscarriage of justice
exception under Rule 61(i)(5)). Cases in which this Court has previously found that the interests
of justice require an exception to the procedural bars of Rule 61(i)(2) or (i)(4) have involved
specific allegations of compelling subsequent factual or legal developments that suggest, for
example, that a conviction was procured by false testimony or that the court lacked the authority
to punish the defendant. See, e.g., Weedon v. State, 750 A.2d 521, 528 (Del. 2000) (finding an
exception in the interest of justice under Rule 61(i)(4) where multiple witnesses recanted their
testimony).
11
     12 A.3d 1115 (Del. 2010).

                                                  5
      (7)    In light of this record, the Superior Court did not abuse its discretion

in dismissing Deputy’s fifth postconviction motion as procedurally barred, denying

his motions for appointment of counsel and an evidentiary hearing as moot, and

denying his motion for transcripts.

      NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.




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




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