       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                    )
                                      )
       v.                             )
                                      )
TYRONE A. REDDEN,                     )
                                      )    ID. No. 0701015161
            Defendant.                )
                                      )
                                      )


                         Decided: September 1, 2015

                                 ORDER

        On Defendant’s for Motion Postconviction Relief. DENIED.




Scott, J.
         1.    On October 24, 2007, Defendant Tyrone A. Redden (“Redden”)

was found guilty of three counts of Burglary Second Degree, three counts of

Theft Over $1,000, three counts of Conspiracy Second Degree, one count of

Possession of Burglar’s Tools, one count of Theft of a Firearm, and one

count of Possession of a Deadly Weapon by a Person Prohibited. Redden

was represented by Jerome M. Capone, Esquire at trial. On January 25,

2008, Redden was declared a habitual offender under 11 Del. C. §4214(a)

and sentenced to serve 32 years of Level V incarceration, followed by six

months at Level IV work release and then Level III probation.

         2.    Represented by Andrew W. Gonser, Esquire, Redden raised only

two issues on his direct appeal to the Delaware Supreme Court. 1 Redden

first argued that the trial judge denied his right to an impartial and fair jury

when the judge failed to instruct the jury that it could not infer his guilt from

his co-defendant’s flight.2 Redden’s second argument was that the trial

judge erred in denying his motions for mistrial and severance, based on facts

arising out of his co-defendant’s flight. On January 14, 2009, the Delaware

Supreme Court affirmed Redden’s convictions.                 On February 6, 2009,

Redden’s judgment of conviction became final.



1
    See Supreme Court Docket No. 81, 2008; Redden v. State, 3 A.3d 1098 (Del. 2009).
2
    Redden’s co-defendant in this case was James L. Ross. Case No. 0701014963.


                                            2
         3.   On June 3, 2009, Redden filed a pro se Motion for New Trial

under Delaware Superior Court Criminal Rule 33, which also raised

substantive issues under Superior Court Criminal Rule 61. In this motion,

Redden argued that he was denied his right to a fair trial because the trial

judge was biased by the fact that the judge resided in the same development

where one of the attempted burglaries occurred. Redden also argued that he

should be granted a new trial because juror misconduct occurred when Juror

No. 14’s driver was present in the courtroom during portions of trial

proceedings when the jury was not present. On June 30, 2009, the Superior

Court denied Redden’s Motion for New Trial as to the judicial bias

challenge under Superior Court Criminal Rules 33 and 61, but did not

address the juror misconduct issue.3

         4.   On July 27, 2009, Redden appealed the Superior Court’s June 30

Order to the Delaware Supreme Court.4             Initially, the Supreme Court

remanded the case back to the Superior Court for adjudication of the juror

misconduct issue. On January 12, 2010, the Superior Court again denied

Redden’s Motion for New Trial on both grounds alleged under Superior




3
    See June 30, 2009 Order.
4
    See Supreme Court Docket No. 424, 2009.


                                              3
Court Criminal Rules 33 and 61,5 which the Supreme Court affirmed on

June 25, 2010. 6

         5.    On August 20, 2013, Redden filed a pro se Motion for

Postconviction Relief, along with a motion requesting appointment of

counsel. On July 10, 2014, Redden, through his appointed postconviction

counsel John A. Barber, Esquire, filed an Amended Motion for

Postconviction Relief (“Amended Motion”). Redden’s Amended Motion

provided two grounds as the bases for his claim. Redden’s first asserted

ground is that his trial counsel was ineffective for failing to object to the

introduction of out-of-court statements of State’s witnesses Eugene Lai and

Desarie Dennis, on the basis that the State did not establish the foundational

requirements of truthfulness for admission of an out-of-court statement

pursuant to 11 Del. C. § 3507. Redden’s second asserted ground is that his

appellate counsel was ineffective for failing to appeal Redden’s convictions,

on the basis that the trial court committed reversible error by allowing the

prior out-of-court statements of the State’s witnesses to be presented to the

jury. In other words, Redden’s second ground for his Amended Motion

imputes his claim of the ineffectiveness of his trial counsel to his appellate

counsel, for failing to raise the argument on Redden’s first appeal.

5
    Redden v. State, 2010 WL 893685 (Del. Super. Jan. 12, 2010).
6
    Redden v. State, 2010 WL 2560041 (Del. Jun. 25, 2010).


                                             4
       6.    Both Mr. Capone and Mr. Gonser have filed their affidavits and

the State has responded to Redden’s Amended Motion. Upon reviewing the

underlying facts and the parties’ submissions, the Court finds Redden’s

Amended Motion for Postconviction Relief is procedurally barred under

Superior Court Criminal Rule 61(i).7

       7.    Rule 61(i) imposes four procedural imperatives: (1) the motion

must be filed within one year of a final order of conviction; (2) any ground

for relief that was not asserted in a prior post conviction proceeding is

thereafter barred; (3) any ground for relief must have been asserted at trial or

on direct appeal as required by the court rules; (4) any ground for relief must

not have been formerly adjudicated in any proceeding leading to the

judgment of conviction.8

       8.    Redden’s claims are time barred under Rule 61(i)(1), which

prohibits the Court from considering a motion for postconviction relief

unless it is filed within one year of the date the conviction became final. For

purposes of this rule, where a defendant files a direct appeal, the judgment of

conviction becomes final when the Delaware Supreme Court issues a



7
  See Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991) (“The first inquiry in any analysis
of a post-conviction relief claim is whether the petition meets the procedural
requirements of Rule 61.”) See also Younger v. State, 580 A.2d 552, 554 (Del. 1990).
8
  Super. Ct. Crim. R. 61(i)(1)-(4).


                                            5
mandate or order finally determining the case on direct review. 9 In this case,

Redden was sentenced on January 25, 2008. However, Redden directly

appealed his convictions to the Delaware Supreme Court.                    As such,

Redden’s judgment became final pursuant to the Supreme Court’s order on

February 6, 2009. Redden current motion for postconviction relief was filed

on August 20, 2013. Therefore, Redden’s claims are time barred because

the motion was filed more than one year from the date of final judgment in

this case.10

       9.      Redden’s claims are also procedurally barred under Rule 61(i)(2)

because the grounds for relief that Redden asserts in this motion were not

raised in his prior motion for postconviction relief. Although Redden avers

that the Amended Motion is his first motion for postconviction relief, the

prior Superior Court and Supreme Court opinions in this case reflect issues

previously raised and adjudicated pursuant to Rule 61.

       10. After his final judgment of conviction, Redden filed a Motion for

New Trial on June 3, 2009, alleging both judicial bias and juror misconduct.

The Superior Court ultimately denied Redden’s motion for a new trial,


9
 Del. Super. Ct. Crim. R. 61(m).
10
  While Redden’s Amended Motion was filed through his appointed counsel on July 10,
2014, Redden filed his original pro se motion for postconviction relief on August 20,
2013. The Court uses August 20, 2013 to determine whether the motion is time barred
under Rule 61(i)(1) because it is the earliest filing of the current motion for
postconviction for relief.


                                          6
deciding both issues under Rule 33 and Rule 61. On June 25, 2010, the

Delaware Supreme Court affirmed the Superior Court’s decision on that

motion, holding that “[t]he Superior Court did not err when concluding that

Redden’s motion for new trial was procedurally barred under both Superior

Court Criminal Rule 33 and Superior Court Criminal Rule 61.” 11           The

Supreme Court further stated that, “[r]elief under Superior Court Criminal

Rule 61 is barred because Redden did not allege cause why he did not

previously raise the issues, and he did not demonstrate that the issues

otherwise warranted exceptional review.” 12 As such, the Amended Motion

is properly considered Redden’s second motion for postconviction relief.

Therefore, Reddens claims are barred under Rule 61(i)(2) because his

ineffective assistance of counsel claims were not raised in Redden’s June 3,

2009 motion for new trial and postconviction relief.

         For the reasons discussed above, Redden’s Motion for Postconviction

Relief pursuant to Superior Court Criminal Rule 61, is hereby DENIED.


IT IS SO ORDERED.
                                             /s/CALVIN L. SCOTT
                                             Judge Calvin L. Scott, Jr.




11
     Redden, 2010 WL 2560041, at *1.
12
     Id.


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