IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,
v.

DAMONE E. FLOWERS, Cr. ID. No. 9808000280A

Defendant.

Subrnitted: Decernber 12, 2017
Decided: March 6, 2018

Upon Comrnissioner’s Report and Recomrnendation that Defendant’s Motion for
Postconviction Relief (Fourth) Should Be Summarily Disrnissed
and the Motion for Appointrnent of Counsel Should Be Denied
ADOPTED
CLRM
This 6th day of March, 2018, the Court has considered the Commissioner’s
Report and Recornmendation, Defendant’s Motion for Postconviction Relief,
Motion for Appointment of Counsel, Motion for Evidentiary Hearing, Motion to
Expand the Record, Defendant’s objections to the Cornmissioner’s Report and
Recornrnendations, and the relevant proceedings beloW.
On October 24, 2017, Defendant Damone E. Flowers filed this pro se motion

for postconviction relief. The motion Was referred to a Superior Court

Commissioner in accordance with 10 Del. C. § 512(b) and Superior Court Crirninal

Rule 62 for proposed findings of fact and conclusions of law. The Commissioner
issued the Report and Recommendation on November 30, 2017. The Commissioner
recommended that Defendant’s Motion for Postconviction Relief be summarily
dismissed

“Within ten days after filing of a Commissioner’s proposed findings of fact
and recommendations . . . any party may serve and file written objections.”l
Defendant Flowers filed written objections on December 15, 2017, more than ten
days after the Commissioner’s November 30 report. In addition to this procedural
deficiency, upon review, the Court finds that the Defendant fails to meet the pleading
standard of Rule 61(d)(2).

This is Flowers’ fourth motion for postconviction relief. “ln second or
subsequent postconviction motions, the motion shall be summarily dismissed unless
the defendant establishes: 1) that new evidence exists that creates a strong inference
that he is actually innocent of the charge for which he was convicted, or 2) the
existence of a new rule of constitutional law made retroactive to cases on collateral
review rendered his convictions invalid.”2 “lf it plainly appears from the motion for
postconviction relief that the movant is not entitled to relief, the Court may enter an

order for its summary dismissal and cause the movant to be notified.”3

 

l Super. Ct. Crim. R. 62(a)(5)(ii).
2 super. Ct. Crim. R. 6i(d)(2) & (5); Ruie 6i(i).
3 Super. Ct. Crim. R. 61(d)(5).

Flowers relies on an outdated version of Superior Court Criminal Rule
6l(i)(5) in support of his argument4 As the Commissioner stated in her report, the
current, amended version of the statute makes plain that a subsequent postconviction
motion must be based on new evidence of actual innocence or a new rule of
constitutional law5_whether there is a colorable constitutional claim that
undermined the fairness of the proceedings is no longer the appropriate framework
for analysis.

Therefore, because Flower’s claims rest on the longstanding constitutional
law of Brady,6 his claim is procedurally barred unless “new evidence exists that
creates a strong inference that he is actually innocent of the charge for which he was
convicted.”7 Delaware Superior Courts have turned to the federal standard to
determine when there is a valid claim of new evidence of actual innocence.8
Evidence is considered “new” under this standard when it “was not available at the
time of trial and could not have been discovered earlier through the exercise of due

diligence . . .”9 To establish actual innocence, the petitioner’s new evidence must

 

4 See Order Amending Super. Ct. Crim. R. 61 (“This amendment shall be effective on June 4,
2014 and shall apply to postconviction motions filed on or after that date.”). Flowers filed this
postconviction motion on October 24, 2017.

5 Super. Ct. Crim. R. 61

6 Brady v. Maryland, 373 U.S. 83 (1963).

7 Super. Ct. Crim. R. 61

8 State v. Sykes, 2017 WL 6205776, at *5 (Del. Super. 2017) (“[T]he federal standard is helpful
under these circumstances, as the Court has found little guidance for interpreting the precise
meaning of new evidence in relation to a claim of actual innocence pursuant to Rule 61 (d)(2)(ii).”).
9 Id. (quoting Phlipot v. Johnson, 2015 WL 1906127, at *4 (D. Del. 2015)).

3

show that it is “more likely than not that no reasonable juror would have convicted
him.”lo In making this determination, a court must consider “all the evidence, old
and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted . . . at trial.”ll A court “may consider how the timing of the
submission of [actual innocence] and the likely credibility of the affiant . . . bear on
the probable reliability of that evidence.”12

In his appeal of the Commissioner’s report, Flowers points to four groups of
evidence allegedly suppressed by the prosecution: recordings of interviews with
Bruce Duncan and Lamar Swanson (the Duncan and Swanson tapes); statements of
Michael Bartley (the Bartley statement); a supplemental police report relating to the
testimony of Chermaine Mayo (the Mayo report); and evidence of a deal the State
allegedly made with Swanson in exchange for Swanson’s cooperation (the Swanson
deal).

Though all of this evidence was discovered after trial, the Court finds that the
Duncan and Swanson tapes, the Bartley statement, and the Mayo report do not
constitute “new” evidence within the meaning of the rule. The Defendant admits

that all of the evidence except the Swanson deal was uncovered as a result of 2010

and 2013 motions to compel filed years before the resolution of his last motion for

 

10 ]d
ll Id
121d

post-conviction relief.13 At that time, Flowers, represented by counsel, chose to
proceed under the theory of ineffective assistance of counsel, even after uncovering
the evidence of the alleged suppression on which he relies in the present motion.
Flowers “cannot avoid the procedural bars by simply re-categorizing the same
arguments that have been adjudicated and denied.”14 Reframing the failure to
introduce the same testimony as the result of prosecutorial misconduct rather than
ineffective counsel does not create new evidence of actual innocence.

The remaining piece of evidence, the Swanson deal, is also not sufficient to
establish new evidence of actual innocence. Flowers contends that Swanson was
awarded a release from custody after he cooperated with the State, but “to cover its
tracks” the State rearrested Swanson only after Flowers’ first Motion for
Postconviction Relief put the State “on notice” that Flowers had become aware of
the State’s “surreptitious dealing.” The Court finds that such conjecture has very
little “probable reliability” and does not make it “more likely than not that no

reasonable juror would have convicted” Flowers.15

 

13 Flowers argues that the evidence should not be barred because it was discovered after the
previous Motion for Postconviction Relief was filed. The final disposition of the Motion, not_ the
date of the proceeding, however, is the proper date to consider. Flowers had this information as
late as 2013. The Commissioner’s Report for Flowers’ most recent Rule 61 Motion was not issued
until April 23, 2015 and the Supreme Court ruled on it on October 21, 2016 providing plenty of
time to raise the argument he now attempts to make.

14 State v. Wood, 2017 WL 2799170, at *4 (Dei. super.).

15 Sykes, 2017 WL 6205776, at *5.

Because, as discussed above, Flowers has not met the pleading requirements
of Rule 61(d)(2)(i) or (ii), the Commissioner was correct to deny the Motion for
Appointment of Counsel. For the same reason, Flowers’ Motion to Expand the
Record and Motion for Evidentiary Hearing are also denied.

The Court holds that the Commissioner’ s Report and Recommendations dated
November 30, 2017 should be adopted for the reasons set forth therein. The
Commissioner’s findings are not clearly erroneous, are not contrary to law, and are
not an abuse of discretion.16

THEREFORE, after careful and de novo review of the record in this action,
the Court hereby adopts the Commissioner’s Report and Recommendation in its
entirety. Defendant’s Motion for Postconviction Relief is hereby DENIED.

IT IS SO ORDERED.

 
 

 

oralrl£/lary l\/I. Johnston

 

16 Super. Ct. Crim. R. 62(a)(4)(iv).

