IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

V.

FREDDY FLONNORY, Cr. ID. No. 97070 l 2 1 90

S€€é\J\/\/

Defendant.

Submitted: June 15, 2016
Decided: August l9, 2016

Upon Defendant’s Fourth Motion for Postconviction Relief
SUMMARILY DISMISSED

ORDER

This 19th day of August, 20l6, upon consideration of Defendant’s Fourth
Motion for Postconviction Relief, it appears to the Court that:

l. On October 31, 1998, following a jury trial, Defendant l*`reddy
Flonnory was found guilty of two counts of Murder First Degree, three counts of
Possession of a Firearrn During the Commission of a Felony, Attempted Murder
First Degree, Conspiracy First Degree, and Possession of a Deadly Weapon by a

Person Prohibited. Defendant was sentenced to death.

2. On August 14, 2001, the Delaware Supreme Court reversed the
conviction and remanded the case to the Superior Court for a new trial. A second

trial was held in 2004. On February 2, 2004_, following a jury trial, Defendant was

found guilty of two counts of Murder First Degree, three counts of Possession of a
Firearrn During the Commission of a Felony, Attempted Murder First Degree,
Conspiracy First Degree, and Possession of a Deadly Weapon by a Person
Prohibited. Defendant was sentenced to life in prison. Defendant’s conviction and
sentence were upheld by the Delaware Supreme Court on February l, 2()06.

3. On January 26, 2007, Defendant filed his first Motion for
Postconviction Relief. By Opinion dated February 14, 2008, the Court denied
Defendant’s motion. On August 26, 2008, the Delaware Supreme Court affirmed
the Superior Court decision. Defendant then sought a writ of habeas corpus in the

United States District Court for the District of Delaware, which was denied on July

30, 2010.

4. On March l3, 2013, Defendant filed his second Motion for
Postconviction Relief. By Opinion dated May 15, 2013, the Court denied
Defendant’s motion. On July 6, 2013, Defendant filed an amended Motion for
Postconviction Relief. Defendant also sought appointment of counsel, which was
granted on July 18, 2013. On January 30, 2015, appointed counsel ("Rule 61
Counsel") filed a Motion to Withdraw as Counsel pursuant to Superior Court
Criminal Rule 6l(e)(2).l The motions were referred to a Superior Court

Commissioner in accordance with 10 Del. C. § 5l2(b) and Rule 62 for proposed

l All "Rules" referred to hereinafter will be the Superior Court Criminal Rules.
2

findings of fact and conclusions of law. On March 24, 2015, the Commissioner
issued the Report and Recommendation, recommending that Defendant’s Motion
for Postconviction Relief be denied, and that Counsel’s Motion to Withdraw be
granted. On June 4, 2015, the Superior Court issued an Order adopting the
Commissioner’s Report and Recommendation.

5. Now before the Court is Defendant’s fourth Motion for
Postconviction Relief`, filed on June l5, 2016. Defendant asserts claims of
ineffective assistance of counsel and conflict of interest against Rule 61 Counsel.
Defendant argues that Rule 61 Counsel’s association with the Office of Defense
Services "divided counsel’s loyalties." Defendant also argues that Rule 61
Counsel’s representation fell below an objective standard of reasonableness
because he failed to argue that Defendant’s out-of-court statement was not properly
admitted at trial under Section 3507 of Title ll of the Delaware Code.

6. Defendant’s fourth Motion for Postconviction Relief is govemed by
Rule 6l. Before addressing the merits of Defendant’s motion, the Court must
determine if any procedural bars exist that would prevent the Court from
considering the Motion. Pursuant to Rule 6l(i), a motion for postconviction relief
can be procedurally barred if the motion is untimely, repetitive, a procedural
default exists, or if the claim has been formerly adjudicated. If a procedural bar

exists, the Court will not consider the merits of Defendant’s motion unless

Defendant can demonstrate that an exception under Rule 61(i)(5) exists. Rule
61(i)(5) provides that procedural bars can be overcome if 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.z

7. The Court finds that Defendant’s claims are procedurally barred
pursuant to Rule 6l(i)(2). This is Defendant’s fourth Motion for Postconviction
Relief. Rule 6l(i)(2) provides: "No second or subsequent motion is permitted
under this rule unless that second or subsequent motion satisfies the pleading
requirements of subparagraphs of (2)(i) or (2)(ii) of subdivision (d) of this rule.
Defendant has not asserted that either exception applies.

THEREFORE, Defendant Freddy Flonnory’s Motion for Postconviction
Relief is hereby SUMMARILY DISMISSED.

IT IS SO ORDERED.

    

e Mary M. Johnston

2 super. cc. crim. R. 61(<1)(2)@)_(11)_

