IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Respondent/Plaintiff,

Cr. ID. N0. 0911008893

MYRON GIBB S,

Petitioner/Defendant.

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Submitted: November 10, 2016
Decided: February 10, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF AND
MOTION FOR APPOINTMENT OF COUNSEL

Myron Gibbs, JTV, 1181 Paddock Road, Smyrna, DE 19977. Petitioner, pro se.

MANNING, Commissioner:

This 10th day of February, 2017, upon consideration of petitioner Myron
Gibbs’ motion for postconviction relief (hereinafter “Motion”), I find and
recommend the following:

Facts and Procedural Historv

Following a jury trial, Gibbs Was convicted of Rape in the Second Degree,
Rape in the Fourth Degree and Offensive Touching on July 7, 2010. Gibbs Was
acquitted of Kidnapping in the Second Degree. Gibbs Was sentenced to, in total,
20 years at Level V suspended after 15 years for siX months at Level IV followed
by probation. Gibbs subsequently filed an appeal to the Delaware Supreme Court
that Was denied on August 3, 2011.l

On July 27, 2012, Gibbs filed a motion for extension of time to file a motion
for postconviction relief pursuant to Superior Ct. Crim. Rule 61.2 Gibb’s motion
for an extension of time Was denied by Judge William C. Carpenter Jr. on August
21, 2012.3 On November 13, 2012, Gibbs filed a motion for appointment of
counsel to assist him in filing his motion for postconviction relief; this motion Was
also denied as the time limit to file a motion for postconviction relief under Rule

61 had passed. On December 11, 2012, Gibbs filed a motion for postconviction

 

1 szbs v. Sm¢e, 2011 WL 3427211 (Del. August 3, 2011).
2 D.I. #52

3 D.I. #53

relief; however, this motion Was rejected by the Court as non-conforming4 On
January 4, 2013, Gibbs filed a motion to amend his motion for postconviction
relief. On January 22, 2013, Gibbs’ motions Were referred to Commissioner
Michael P. Reynolds.5 Follovving an exchange of letters between Gibbs and the
Court, Commissioner Reynolds ordered that counsel be appointed to represent
Gibbs pursuant to the recent Delaware Supreme Court decision in Holmes v. State.6

On June 2, 2014, With the assistance of counsel, Gibbs’ filed a complying
motion for postconviction relief.7 FolloWing briefing by all parties, Commissioner
Lynne M. Parker filed her Report and Recommendation stating that Gibbs’ motion
should be denied.8 After a de novo revieW, Judge Carpenter adopted
Commissioner Parker’s Report and issued his Order denying Gibbs’ motion on
April 10, 2016.9 Gibbs filed an appeal to the Delaware Supreme Court; however,

his appeal Was denied on May 20, 2016.10

 

4 D.I. #56
5 D.I. #60
6 D.I. #68; Holmes v. Smre, 2013 WL 2297072 (Del. May 23, 2013).
7 D.I. #79
8 D.I. #88
9 D.I. #89

10 Gibbs. v. sm¢e, 2016 WL 3449916 (Del. May 20, 2016).

On September 9, 2016, Gibbs filed the instant Motion for postconviction
relief. Gibbs’ Motion was referred to the undersigned Commissioner on
November 10, 2016. In his Motion, Gibbs claims that he received ineffective
assistance of counsel at trial because his counsel did not object to the section 3507
statement being entered as a exhibit that the jury could later view and because trial
counsel did not object to the trial Judge amending the indictment as to the charge
of Kidnapping in the Second Degree. Gibbs also claims that he received
ineffective assistance of counsel on appeal because his lawyer failed to raise the
above issues or include them in his 26(c) brief.11

Based upon my review of Gibbs’ Motion I did not order additional briefing,
nor did I see the need for an evidentiary hearing.

Egal Standard and Analvsis

Gibbs’ Motion is controlled by Superior Court Criminal Rule 6l. Before
addressing the merits of a motion for postconviction relief under Rule 61, a
reviewing court will first apply the procedural bars of Rule 61 .12

Rule 6l(i)(l) requires a motion for postconviction to be filed not more than

one year from the date the judgment of conviction becomes final. In this case,

 

11 D.I. #95, p3.

12 Younger v. State, 580 552, 553 (Del. 1990) (holding that the court will apply the rules
governing procedural default before giving consideration to the merits of the underlying Rule 61
claims).

Gibbs’ instant Motion is untimely as it was not filed within one year of the date his
conviction was affirmed by the Delaware Supreme Court.

Rule 61(1)(2) prohibits second or subsequent postconviction motions unless
the motion satisfies subparagraphs (2)(i) or (2)(ii) of subdivision (d) of the Rule
(i.e. the motion pleads with particularity that new evidence exists or that a new rule
of constitutional law made retroactive applies to movant’s case). The instant
Motion is Gibbs’ second motion for postconviction relief and neither of the
exceptions under subdivision (d) apply.

Finally, Gibbs’ first claim is procedurally barred as formally adjudicated
under Rule 6l(i)(4) because he raised an identically claim concerning the section
3507 statement in his first Rule 61 petition in 2014.

Conclusion

For the foregoing reasons, Gibb’s Motion should be denied and summarily
dismissed pursuant to Rule 61(d)(5); Gibbs’ motion for appointment of counsel
should also be denied as moot.

IT IS SO RECOMMENDED.

BRADLEY v?MANNlNG,
Commissioner

oc: Prothonotary
cc: Petitioner via first class mail

