   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                 IN AND FOR NEW CASTLE COUNTY

                                      )
STATE OF DELAWARE                     )
                                      )      I.D. No. 9412011308
      v.                              )
                                      )
CURTIS L. DEMBY                       )
                                      )
                   Defendant          )


                          Submitted: April 1, 2014
                          Decided: June 18, 2014

           On Defendant’s Third Motion for Postconviction Relief.
                                DENIED.

On Defendant’s “Motion for Trial Transcripts as well as to Proceed Informa
                               Pauperis.”
                               DENIED.



                                 ORDER

Joseph S. Grubb, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Curtis L. Demby, Smyrna, Delaware, pro se.


COOCH, R.J.

     This 18th day of June 2014, upon consideration of Defendant’s Third
Motion for Postconviction Relief, it appears to the Court that:

      1.     Defendant Curtis Demby (“Defendant”) was initially found
             guilty in March 1996 of First Degree Murder and Possession of
                 a Firearm During the Commission of a Felony. 1 Defendant’s
                 conviction was reversed and remanded by the Supreme Court of
                 Delaware.2 At Defendant’s second trial, he was again found
                 guilty of the same charges and the conviction was affirmed by
                 the Supreme Court. 3 He is currently serving a life sentence
                 without possibility of probation or parole for the murder
                 conviction plus an additional twenty years for the firearms
                 offense. 4

        2.       Defendant’s First Motion for Postconviction Relief was filed in
                 January 2003. That motion was a collection of conclusory
                 allegations stating “see memorandum” in lieu of support. 5 That
                 memorandum was never filed, the motion was denied, and
                 Defendant took no appeal. 6 His Second Motion for
                 Postconviction Relief was filed in July 2006. It was denied on
                 the basis that the motion was time-barred. 7

        3.       Defendant filed this current Third Motion for Postconviction
                 Relief on March 18, 2014. 8 Defendant subsequently filed an
                 Amendment to his Motion for Postconviction Relief stressing
                 his request for counsel. 9 Defendant also submitted several
                 miscellaneous documents with the Court requesting access to
                 transcripts and to proceed in forma pauperis. 10 Defendant
                 contends that he cannot “file any successful claims” without
                 transcripts.11

        4.       As discussed previously in his Second Motion for
                 Postconviction Relief, “there is no constitutional right to the
                 provision of a free trial transcript for the preparation of a post-


1
  State v. Demby, 2007 WL 214411, at *1 (Del. Super. Jan. 25, 2007).
2
  Demby v. State, 695 A.2d 1152 (Del. 1997).
3
  Demby v. State, 744 A.2d 976 (Del. 2000).
4
  Def.’s Mot. for Postconviction Relief at 1.
5
  Ltr. dated June 3, 2003 from the Court to Mr. Bunitsky and Mr. Demby.
6
  Demby, 2007 WL 214411, at *1.
7
  Id. at *2.
8
  Def.’s Mot. for Postconviction Relief.
9
  Def.’s (Notice Amend.) Please Attach to Post-Conviction and Accompany Letter/Mot. Req. Counsel.
10
   Def.’s Mot. for Trial Transcr. as well as to Proceed Informa Pauperis, Docket #293 (Feb. 20, 2014),
Def.’s Mot. for Trial Transcr. as well as to Proceed Informa Pauperis, Docket #294 (Feb. 27, 2014), Def.’s
Mot. for Trial Transcr. as well as to Proceed Informa Pauperis, Docket #287 (Mar. 6, 2014), Def.’s Amend.
to Trial Transcr. Req. Mot., Docket #292 (Apr. 1, 2014).
11
   Def.’s Amend. To Tr. Transcr. – Req. Mot. (3-6-14) Filed Date at 2.

                                                    2
                  trial motion.”12 “[I]t is within the discretion of the judge who
                  has examined the motion and contents of the record to
                  determine whether to order the preparation of a transcript of any
                  part of the prior proceedings.” 13 For reasons stated below,
                  Defendant’s claims are either devoid of merit or are
                  procedurally barred and will not be aided by the preparation of
                  transcripts. Therefore the Motion for Transcripts is DENIED.

         5.       Defendant also states that he is indigent and requests to proceed
                  in forma pauperis. “A consideration of the motion to proceed
                  in forma pauperis requires a consideration of the petition.” 14 In
                  Buchanan v. State, the Delaware Supreme Court recently
                  affirmed a defendant’s Third Motion for Postconviction Relief
                  as procedurally barred and denied his motion to proceed in
                  forma pauperis nunc pro tunc. 15 It held his claims were either
                  “previously considered and rejected” or “frivolous because [he]
                  had no legal or equitable right to the appointment of counsel to
                  pursue claims that were procedurally barred.” 16 Again, for
                  reasons stated below, this Court also holds his Motion to
                  Proceed In Forma Pauperis is frivolous and therefore
                  DENIED.

         6.       Defendant requests counsel based on a retroactive application
                  of the Martinez v. Ryan decision.17 Defendant’s reliance on
                  Martinez is misplaced. The holding in Martinez “permits a
                  federal court to review a ‘substantial’ ineffective assistance of
                  counsel claim on federal habeas review.”18 It does not apply to
                  state court proceedings.19 Martinez “did not create a new right

12
   Demby, 2007 WL 214411, at *2 (quoting State v. Doran, 1992 WL 1468859, at *1 (Del. Super. June 12,
1992)). See also State v. Bordley, 1989 WL 135691, at *1 (Del. Super. Oct. 26, 1989) (“A prisoner has no
absolute right to a transcript to assist him in the preparation of a collateral attack on his conviction.
Constitutional requirements are met by providing such materials only after judicial certification that they
are required to decide the issues presented in a non-frivolous pending case.”).
13
   Doran, 1992 WL 1468859, at *1.
14
   Johnson v. State, 2003 WL 22787631, at *1 (Del. Super. Nov. 5, 2003) (citing 10 Del. C. § 8803(b) and
dismissing the petition as factually and legally frivolous).
15
   2014 WL 2159325, at *1 (Del. 2014).
16
   Id.
17
   132 S.Ct. 1309 (2012).
18
   Morrisey v. State, 2013 WL 2722142, at *2 (Del. June 11, 2013).
19
   State v. Desmond, 2013 WL 1090965, at *3 (Del. Super. Feb. 26, 2013); State v. Rodgers, 2012 WL
3834908, *2 (Del. Super. Aug. 30, 2012); State v. Finn, 2012 WL 2905101, at *2 (Del. Super. July 17,
2012) (“Martinez does not change Delaware’s longstanding rule that defendants are not entitled
postconviction relief counsel.”); State v. Smith, 2012 WL 5577827, at *1 (Del. Super. June 14, 2012), aff’d,
53 A.3d 303 (Del. 2012) (TABLE).

                                                     3
                 such as to qualify as means of relief from the procedural bar of
                 Rule 61(i)(1). Further, since Martinez did not establish a new
                 constitutional right, it cannot be applied retroactively.” 20

        7.       Before addressing the merits of a Motion for Postconviction
                 Relief, the Court must first apply the procedural bars of Superior
                 Court Criminal Rule 61.21 If a procedural bar exists, then the
                 Court will not consider the merits of the postconviction claim. 22

        8.       Under the Delaware Superior Court Rules of Criminal
                 Procedure, a Motion for Postconviction Relief can be barred for
                 time limitations, repetitive motions, procedural defaults, and
                 former adjudications.23 Procedural bars will not apply if the
                 court lacks jurisdiction or if there is “a colorable claim that
                 there was a miscarriage of justice because of a constitutional
                 violation that undermined the fundamental legality, reliability,
                 integrity or fairness of the proceedings leading to the judgment
                 of conviction.”24 A motion exceeds time limitations if it is filed
                 more than one year after the conviction is finalized or it asserts
                 a newly recognized, retroactively applied right more than one
                 year after it is first recognized. 25 A judgment of conviction
                 becomes final “when the Supreme Court issues a mandate or
                 order finally determining the case on direct review.” 26

        9.       “If it plainly appears from the motion for postconviction relief
                 and the record of prior proceedings in the case that the movant
                 is not entitled to relief, the judge may enter an order for its
                 summary dismissal and cause the movant to be notified.” 27 “A
                 movant must support his or her assertions with ‘concrete
                 allegations of actual prejudice, or risk summary dismissal.’” 28
                 “This Court will not address Rule 61 claims that are conclusory


20
   State v. Travis, 2013 WL 1196332, at *3 (Del. Super. Mar. 25, 2013), aff'd sub nom., Anderson v. State,
69 A.3d 370 (Del. 2013) and aff'd, 69 A.3d 372 (Del. 2013).
21
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
22
   Id.
23
   Super. Ct. Crim. R. 61(i).
24
   Super. Ct. Crim. R. 61(i)(5).
25
   Super. Ct. Crim. R. 61(i)(1).
26
   Super. Ct. Crim. R. 61(m)(2).
27
   Super. Ct. Crim. R. 61(d)(4).
28
   State v. Chambers, 2008 WL 4137988, at *1 (Del. Super. Aug. 25, 2008) (quoting State v. Childress,
2000 WL 1610766, at *1 (Del. Super. Sept. 19, 2000)).

                                                     4
                  and unsubstantiated.” 29 Sufficiently developed allegations are
                  required in support of all grounds for relief, including claims of
                  ineffective assistance of counsel.30 The word “conclusory” has
                  been defined as, “[e]xpressing a factual inference without
                  stating underlying facts on which the inference is based.” 31

         10.      All of Defendant’s grounds in his Third Motion for
                  Postconviction Relief are time-barred under Rule 61(i)(1).
                  Defendant’s judgment of conviction became final on January
                  26, 2000 when the Supreme Court issued the mandate in his
                  case.32 As Defendant’s Motion was filed more than fourteen
                  years after this date and it fails to cite “a colorable claim,” his
                  motion is time-barred and therefore DENIED.

         11.      Alternatively, Defendant’s Motion proffers merely conclusory
                  allegations in support of his claims and provides no further
                  supplementation.

                  Defendant’s arguments in support of his claimed grounds for
                  relief are set forth, in toto:

                           Ground One: Ineffective assistence [sic] during trial

                                    There were 7 mistrial request my lawyers made not
                                    the recuqisit [sic] level of challenge to the states
                                    case.

                           Ground Two: In effective assistance during appeal

                                    My lawyers failed to appeal decision by lower court
                                    that statements made by me after request for
                                    attorney were admissable

                           Ground Three: Violation of right too [sic] counsel

                                    I request a attorney, and statements here used
                                    against me in violation of my 5th amendment rights.




29
   State v. Owens, 2002 WL 234739, at *1 (Del. Super. Jan. 11, 2002).
30
   See, e.g., State v. Robbins, 1996 WL 769219, at *1 (Del. Super. Dec. 18, 1996).
31
   Black’s Law Dictionary, (9th ed. 2009).
32
   Demby, 2007 WL 214411, at *1.

                                                     5
                                   I just didn’t know. Im no legal tactiction Im
                                   unfamiliar with the rules of the court and laws and I
                                   was with-out [sic] legal assistance. 33


        12.      In Defendant’s Motion, he asserts a bare-bones list of broad,
                 conclusory statements with no underlying facts or law which
                 provide any basis for the asserted inferences. Therefore, this
                 Court “will not address” his Rule 61 claim. Were the claim not
                 time-barred Defendant’s Motion could also be summarily
                 dismissed.

Defendant’s Motion for Postconviction Relief is DENIED.

        IT IS SO ORDERED.

                                                                     ______________________
                                                                       Richard R. Cooch, R.J.

oc:     Prothonotary
cc:     Investigative Services




33
  Def.’s Mot. at 3 (capitalization adjusted for clarity). Defendant did subsequently file an Amendment to
his Motion citing case law and requesting counsel. In that motion, he briefly expands upon his original
grounds for postconviction relief:

        My jury was effected with extraneous influences…They were threatened by a gun-men
        during my trial, and my lawyer didn’t appeal the instruction issued or the disqualification,
        during my trial. There were about (7.) requests for a mis-trial. My lawyer on appeal …
        was my trial lawyer, and he was not filing ineffective of trial counsel, on him-self. I’m
        no lawyer, and don’t understand many legal issues – but I know he was ineffective, and it
        would apparent with compentent[sic] counsel to assist me in my claim. My trial had a lot
        of issues. My other post-conviction was denied because, I didn’t know what I was doing,
        and also because I don’t have my trial (Demby II) transcripts. I need a lawyer.

Def.’s (Notice Amend.) Please Attach to Post-Conviction and Accompany Letter/Mot. Req. Counsel.
(capitalization adjusted for clarity).

                                                     6
