IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,

Cr. ID NO. 0804033000

CURTIS N. MERCER,

Defendant.

Submitted: February 13, 2019
Decided: March 26, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S FOURTH MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED
AND
MOTIONS FOR AN EV][DENTIARY HEARING AND F()R THE
APPOINTMENT OF COUNSEL SHOULD BE DENIED.

J ames J. Kriner, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attomey for the State.

Curtis N. Mercer, J ames T. Vaughn Correctional Center, Smyrna, Delaware,
pro Se.

PARKER, Commissioner

This 26th day of March 2019, upon consideration of Defendant’s
Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY

l. On January 16, 2009, Defendant Curtis Mercer Was convicted of four
counts of Rape in the First Degree, one count of Kidnapping in the First
Degree, two counts of Possession of a Deadly Weapon During the
Commission of a Felony, one count of Burglary in the First Degree, one
count of Tampering With Physical Evidence, one count of Misdemeanor
Theft and one count of Terroristic Threatening. On March 6, 2009,
Defendant Was sentenced to four consecutive life sentences plus nine
additional years at Level V.
2. On September 9, 2009, Mercer filed a direct appeal to the Delaware
Supreme Court. By Order dated November 25, 2009, the DelaWare Supreme
Court affirmed the convictions and sentences.l
3. On July 6, 2010, Mercer filed his first motion for postconviction
relief. In that motion Mercer raised a number of ineffective assistance of
counsel claims as Well as various other claims.
4. Before ruling on Mercer’s first motion for postconviction relief, the

Court enlarged the record by directing Mercer’s trial counsel to submit an

 

l State v. Mercer, 2009 WL 4164765 (Del.).

Affidavit responding to Mercer’s ineffective assistance of counsel claims.
Thereafter, Mercer filed a response thereto.2

5. By Order dated December 15, 2010, the Superior Court denied
Mercer’s motion for postconviction relief.3 The Superior Court found
Mercer’s contentions, including his ineffective assistance of counsel claims,
to be Without merit.

6. Mercer appealed the Superior Court’s December 15, 2010 Order
denying his first motion for postconviction relief to the DelaWare Supreme
Court. By Order dated July 20, 2011, the DelaWare Supreme Court affirmed
the Superior Court’s denial of Mercer’s motion for postconviction relief.4

7. On September 9, 2011, Mercer filed a second motion for
postconviction relief. In the second motion, Mercer raised two claims of
ineffective assistance of counsel. Specifically, Mercer claimed that his
counsel Was ineffective for failing to seek the suppression of an in-court
identification of Mercer at trial. Mercer also claimed that his counsel Was
ineffective for failing to “develop and present every issue that held trial error

or violated a constitutional right”.

 

2 Superior Court Cr‘iminal Rule 6l(g)(1).
3 Sra£e v. Mercer-g 2010 WL 5307842 (Del.Super.).
4 Stae‘e v. Mercer_. 201 l WL 2927774 (Del.).

8. On October 5, 2011, the undersigned Superior Court Commissioner
issued her Report and Recommendation recommending that Mercer’s
second Rule 61 postconviction motion be denied.5 The Commissioner
recommended that the motion be denied on the basis that the claims raised
therein Were procedurally barred and Without merit.6

9. By Order dated October 24, 2011, the Superior Court adopted the
Commissioner’s Report and Recommendation and denied Mercer’s second
Rule 61 postconviction motion.7

10. On August 15, 2017, Mercer filed a third motion for postconviction
relief. In the third motion, Mercer claimed that his counsel Was ineffective
for failing to challenge his alleged illegal seizure and that the trial court
erred When allowing his statement taken during that interrogation to be
presented as evidence.8

11. On November 1, 2017, the undersigned Superior Court Commissioner
issued her Report and Recommendation recommending that Mercer’s third
Rule 61 postconviction motion be summarily dismissed9 The

Commissioner recommended that the motion be summarily dismissed since

 

5 State v. Mercer, 2011 WL 4730541 (Del.Super.).

6 Ia’.

7 Superior Court Docket No. 60- Order dated October 24, 2011 denying
Defendant’s Rule 61 motion.

SStczte v. Mercer, 2017 WL 7803922 (Del.Super.).

9 State v. Mercer, 2017 WL 7803922 (Del.Super.).

Mercer failed to meet the pleading requirements for proceeding with the
motion and that the motion was also time-barred and otherwise procedurally
barred.10
12. By Order dated February 28, 2018, the Superior Court, following a de
novo review, summarily dismissed Mercer’s third motion for postconviction
relief for the reasons stated in the Commissioner’s Report and
Recommendation.l '

MERCER’S FOURTH RULE 61 MOTION
13. On February 12, 2019, Mercer filed the subject motion, his fourth
motion for postconviction relief. In this motion, Mercer contends that the
post-June 2014 revision to Rule 61 should not be applied to his case. In a
February 15, 2019 submission, Mercer seeks to hold the Criminal Rules
Advisory Committee accountable on behalf of himself and all other
“affected class defendants and legal community” for the alleged
constitutional violations stemming from the post-June 2014 revision to Rule
61.
14. Essentially Mercer claims that the post-June 2014 revision to Rule 61

violates his and other affected class defendants’ due process rights, right to

 

10 [al
ll Superior Court Docket No. 67- Order dated February 23, 2018 denying
Defendant’s third motion for postconviction relief.

fair notice, right to meaningful access to the courts, and other constitutional
rights.

15. In addition to Mercer’s challenge to the post-June 2014 revision to
Rule 61, in his fourth motion for postconviction relief, Mercer again seeks to
challenge his counsel’s effectiveness during the pre-trial and trial phases of
his case.

16. Mercer’s claims are without merit and his fourth motion for
postconviction relief should be summarily dismissed The Delaware
Supreme Court has consistently held that the applicability of the post-June
2014 revision to Rule 61 to all Rule 61 motions filed on or after June 4,
2014, is not in violation of any constitutional rights.12

17. In June 2014, Rule 61 was substantially amended. The Order
amending Rule 61 provides that: “This amendment shall be effective on June
4, 2014 and shall apply to postconviction motions filed on or after that
date.'3

18. The amendment included, among other things, a new pleading
standard for second or subsequent motions for postconviction relief. The

new pleading standard- found in Rule 61(d)(2) and incorporated in Rule

 

12 Turnage v. State, 2015 WL 6746644 (Del.); Ploofv. State, 2018 WL
4600814 (Del.); State v. Taylor, 2018 WL 31999537 (Del.Super.), ajjf’d,
2019 WL 990718 (Del.).

13 See, Order Amending Super.Ct.Crim.R. 61.

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 that creates a strong inference that the movant is actually innocent in
fact; or (ii) pleads with particularity that a new, retroactively applicable
constitutional rule applies to the movant’s case and renders a conviction
invalid.

19. The post-2014 version of Rule 61 limits the relief provided in the pre-
2014 version of Rule 61 of a defendant’s right to bring renewed applications
for postconviction relief if consideration of the claim is “warranted in the
interest or justice” or to prevent “a miscarriage ofjustice.” Accordingly, the
previous “miscarriage of justice” and “in the interest of justice” exceptions
to the procedural bars of Rule 61 no longer apply.

20. The Delaware Supreme Court has previously considered challenges to
the amended Rule 61 and has consistently held that the post-June 2014
version of Rule 61 is to be applied to all Rule 61 motions filed on or after
June 4, 2014. The Delaware Supreme Court has consistently held that the
amended Rule 61 does not place any unconstitutional restrictions on a
defendant’s right to access the courts, does not violate due process, does not

violate fair notice, is not impermissibly retroactive, and is not a violation of

any other constitutional rights.14 The binding Delaware Supreme Court
authority on the constitutionality of the post-June 2014 revisions to Rule 61,
and its applicability to every Rule 61 filed on or after June 4, 2014, compels
the summary dismissal of Defendant’s pending Rule 61 motion.

21. In Turnage v. State, 15 the Delaware Supreme Court explained that
states have no obligation to provide postconviction relief. Thus, Delaware
has afforded a right to postconviction relief that it does not have to afford at
all. As such, the amended Rule 61 provides more due process and access to
the courts than is constitutionally required.16

22. Moreover, the amended Rule 61 still provides a broad right to file a
first petition within one year after the judgment of conviction is final and
even allows successive petitions in the compelling circumstance when a
person pleads with particularity that new evidence exists that creates a strong
inference that the movant is actually innocent or that a new rule of
constitutional law, made retroactive to cases on collateral review, applies to

the movant’s case and renders the conviction invalid.17

 

14 Turnage v. State, 2015 WL 6746644 (Del.); Ploofv. State, 2018 WL
4600814 (Del.); State v. Taylor, 2018 WL 31999537 (Del.Super.), aff ’a’,
2019 WL 990718 (Del.).

15 Tw‘m?ge v. sz‘e_, 2015 WL 6746644, *1 (Del.)

16 Turnage v. State, 2015 WL 6746644, *1 (Del.)

17 101

23. The amended Rule 61 does not foreclose all possibilities of post-
conviction relief; it simply requires that such challenges be brought together
and filed within a one-year period.'8 Any contention that the amended Rule
61 is impermissibly applied retroactively is factually erroneous A
defendant does not have a right to pursue any postconviction claim
indefinitely.19 Rule 61 was intended to correct errors in the trial process, not
to allow defendants unlimited opportunities to relitigate their convictions20
Any argument that amended Rule 61 denies a defendant due process of law
and meaningful access to the courts is without merit.21

24. Rule 61 as amended on June 4, 2014 has now been in effect for over
four and one-half years. Mercer, as well as the public at large, have now
been on notice for over four and one-half years of the rule revision.

25. The United States Supreme Court has recognized that as
postconviction relief motion practice continues to evolve, added restrictions
placed on second and subsequent petitions are constitutional and well-within

the evolutional process.22

 

18 Id.

19 Turnage v. State, 2015 WL 6746644 (Del.); Ploofv. State, 2018 WL
4600814 (Del.); State v. Taylor, 2018 WL 31999537 (Del.Super.), ajf’a',
2019 WL 990718 (Del.).

20P100fv. S!a:‘e, 2018 WL 4600814 (Del.).

21 Turnage v. State, 2015 WL 6746644 (Del.).

22 Felker v. Turpl`n, 518 U.S. 651, 664 (1996).

26. The federal statute governing the filing of federal habeas corpus
petitions was amended in 1996 to include a provision similar to the post-
2014 revision to Rule 61 limiting renewed applications for postconviction
relief.23 The United States Supreme Court held that this similar federal
provision limiting the filing of successive federal petitions for
postconviction relief did not violate the United States Constitution in any
respect.24

27. Turning to the subject action, all of Mercer’s prior Rule 61 motions
were properly decided pursuant to the provisions of Rule 61 in effect at the
time of the filing of each respective motion, Each of his three previous Rule
61 motions were denied. Mercer’s challenges to the enforceability,
applicability and constitutionality of the post-2014 version of Rule 61 is
denied in light of the binding authority to the contrary.

28. Mercer’s third Rule 61 motion was filed in August 2017, over three
years after the post-2014 version of Rule 61 had been in effect. That motion
was decided pursuant to the post-2014 version of Rule 61. Any objection to
the application of Rule 61 should have been made within one year of the
revision, by June 2015. It was not made within that one-year period. It was

not even made at the time of the filing of Mercer’s third motion, in August

 

23 See, 28 U.S.C. §2244(b) (2016).
24 Felker v. Turpin, 518 U.S. 651, 664 (1996).

2017, over three years after the revision was in effect. Mercer did not
challenge the enforceability and constitutionality of the post-2014 Rule 61 to
his third motion for postconviction relief in August 2017. Instead, Mercer
waited until four and one-half years after the rule was revised, to object to its
application to him and to others similarly situated.

29. The amended rule was well-established and regularly used by the time
Mercer filed this fourth Rule 61 motion. Mercer was well aware of the
existence of the amended Rule 61 for years before he filed the subject
motion and cannot now complain of any fair notice rights violations.

30. Mercer’s challenges to the post-2014 revision to Rule 61 on his own
behalf and on behalf of all others is denied in light of the binding authority
to the contrary. Any claim against the Delaware Rules Advisory Committee
in connection with the post-June 2014 revision to Rule 61 is likewise
without merit. Rule 61 was properly revised and was in effect and
applicable to all Rule 61 motions filed on and after June 4, 2014.

31. As to Mercer’s substantive claims, this motion, like Mercer’s third
Rule 61 motion, failed to meet the pleading requirements of the post-June
2014 revision to Rule 61 and, therefore, this motion should be summarily
dismissed. Mercer’s claims in the subject motion stem from facts known to

him pre-trial and during trial. Mercer does not have a right to unlimited

10

opportunities to relitigate his convictions. Mercer does not raise anything
new or recently discovered. Mercer does not raise any new evidence at all,
let alone new evidence that would create a strong inference that he is
actually innocent. In accordance with the mandates of the post-2014
revisions to Rule 61, the Rule 61 in effect at the time of the filing of this
motion, Mercer’s motion should be summarily dismissed.25

32. In addition, Defendant’s motion also falls short of other procedural
requirements If a procedural bar exists, then the claim is barred and the
court should not consider the merits of the claim.26

33. Rule 61 (i) imposes four procedural imperatives: (1) the motion must
be filed within one year of a final order of conviction;27 (2) any basis for
relief must be asserted in the first timely filed motion for postconviction
relief absent exceptional circumstances (ie. discovery of new evidence or
new rule of constitutional law) warranting a subsequent motion being filed;
(3) any basis for relief must have been asserted at trial or on direct appeal as
required by the court rules unless the movant shows prejudice to his rights
and cause for relief; and (4) any basis for relief must not have been formally

adjudicated in any proceeding The bars to relief however do not apply to a

 

25 Super.Ct.Crim.R. 61(d)(2) & 5; and Rule 61(i).
26 Younger v. State, 580 A.Zd 552, 554 (Del. 1990).
27 Super.Ct.Crim.R. 61(i)(1).

11

claim that the court lacked jurisdiction or to a claim that new evidence exists
that movant is actually innocent or that there is a new law, made retroactive,
that would render the conviction invalid.28

34. This motion, like Mercer’s second and third motions, is time-barred,
since it was filed well outside the applicable one-year limit. Mercer’s final
order of conviction was in 2009 and this motion was filed in 2019, about 10
years later. Mercer’s claims, at this late date, are time-barred.

35. As previously discussed, Rule 61(i)(2) further precludes this court’s
consideration of Defendant’s motion since Defendant has not satisfied the
pleading requirements for proceeding with this motion. Defendant has not
established that new evidence exists creating a strong inference of
Defendant’s actual innocence or the existence of a new rule of constitutional
law made retroactive to this case that would render his conviction invalid.
36. Rule 61(i)(3) and Rule 61(i)(4) also prevent this court from
considering any claim raised by Defendant at this late date. Either Mercer
previously raised the subject claims in some fashion on direct appeal and/or
in his previously filed post-conviction motions and the claims are now
barred by Rule 61(i)(4) as previously raised and adjudicated, or Mercer

failed to timely raise these claims and they are barred by Rule 61(i)(3).

 

28 Super.Ct.Crim.R. 61 (effective June 4, 2014).

12

37. There is no question that Mercer was aware of, had time to, and the
opportunity to raise the claims presented herein in a timely filed motion,
Mercer’s subject claims stem from facts known to him at the time of his
arrest in 2008 and at the time of trial in January 2009. There was nothing
preventing Mercer from timely raising these claims if he truly believed they
were of any merit.

38. Mercer has not established any prejudice to his rights and/or cause for
relief. Mercer was provided with a full and fair opportunity to present any
issue-desired to be raised in a timely filed motion on direct appeal and/or in a
timely filed first postconviction motion. Any attempt at this late juncture to
raise or re-raise a claim is procedurally barred.

MOTION FOR COUNSEL IS DENIED

39. Mercer’s request for the appointment of counsel is denied. Rule 61,
as amended effective June 4, 2014, provides that for second and subsequent
postconviction relief motions, such as the subject motion, counsel is to be
appointed only in limited exceptional situations.29 Having fully, thoroughly
and carefully considered Mercer’s motion and the evidentiary record, none

of the exceptional circumstances giving rise to the entitlement to the

 

29 Super.Ct.Crim.R. 61(e)(4).

13

appointment of counsel exist in this case.30 Since Mercer has failed to
overcome the procedural hurdles warranting the appointment of counsel in
this untimely, fourth postconviction motion, the appointment of counsel is
denied.
MOTION FOR EVIDENTIARY HEARING IS DENIED
40. Mercer’s request for an evidentiary hearing is denied. Following a
full, comprehensive and thorough review of the evidentiary record, Mercer’s
allegations were either reasonably discounted as not supported by the record
or not material to a determination of Mercer’s claims. It does not appear that
an evidentiary hearing will aid in the resolution of this motion and is denied.
CONCLUSION

41. F or all of the foregoing reasons, Mercer’s Fourth Motion for
Postconviction Relief should be SUMMARILY DISMISSED Any claim
stemming from the applicability, enforceability or constitutionality of the
post-2014 revision to Rule 61 to all Rule 61 motions filed on or after June 4,
2014 is without merit.

42. As to the substantive claims raised in the subject motion, Mercer has

failed to meet the pleading requirements for proceeding with this fourth

 

30 Super.Ct.Crim.R. 61(e)(4).

14

motion for postconviction relief. Mercer’s motion is also time-barred and
otherwise procedurally barred.

43. In light of Mercer’s motion being summarily dismissed, Mercer’s
Motion for the Appointment of Counsel and Motion for an Evidentiary

Hearing are DENIED.

IT IS SO RECOMMENDED.

j ` M/t _//_/\

" . ./
(i'bmmlssloner Lynne M. Parker

oc: Prothonotary
Dade D. Werb, Esquire

15

