IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEVON GARNER, Defendant Below, Appellant,

v. STATE OF DELAWARE, Plaintiff Below, Appellee. § § § No. 492, 2014 § § § Court Below—Superior Court § of the State of Delaware, § in and for New Castle County § Cr. ID No. 9811012529 § § Submitted: September 24, 2014 Decided: October 9, 2014 Before HOLLAND , RIDGELY , and VALIHURA , Justices. O R D E R This 9 th day of October 2014, upon consideration of the app ellant’s opening brief, the appellee’s motion to affirm, and the rec ord below, it appears to the Court that: (1) The appellant, Devon Garner, filed this appeal from the Superior Court’s denial of his second motion for postconvict ion relief. The State of Delaware has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Garner’s opening brief that his appeal is without merit. 1 We agree and affirm.

1 Supr. Ct. R. 25(a).2

(2) The record reflects that, on February 9, 2000, a Su perior Court jury found Garner guilty of Attempted Murder in the Firs t Degree, Conspiracy in the First Degree, Conspiracy in the Second Degree, Reck less Endangering in the First Degree, and two counts of Possession of a Firearm D uring the Commission of a Felony. Garner was sentenced to Level V incarcerat ion for the balance of his natural life, plus an additional twenty-two years o f Level V incarceration. This Court affirmed the Superior Court’s judgment on dir ect appeal. 2 (3) Garner filed his first motion for postconviction re lief on August 4, 2004. The motion included seven ineffective assist ance of counsel claims. The record does not reflect that Garner requested appoi ntment of counsel. After receiving an affidavit from Garner’s trial and appe llate counsel, the Superior Court concluded that the ineffective assistance of counse l claims lacked merit. The Superior Court summarily dismissed Garner’s remaini ng claims as procedurally barred by Superior Court Criminal Rule 61 (“Rule 61 ”). This Court affirmed the Superior Court’s decision. 3 (4) On September 19, 2013, Garner filed his second moti on for postconviction relief. In this motion, Garner argu ed that he was deprived of counsel in his first postconviction proceeding and was therefore entitled to re-

2 Garner v. State , 2001 WL 1006178 (Del. Aug. 7, 2001).

3 Garner v. State , 2005 WL 3143435 (Del. Nov. 22, 2005).3

litigate the ineffective assistance of counsel clai ms he had raised in 2004, with the assistance of counsel. The Superior Court denied t he motion on the grounds that it was untimely under Rule 61(i)(1), 4 repetitive under Rule 61(i)(2), 5 and procedurally defaulted under Rule 61(i))(3) 6 and that Garner’s lack of counsel in his first postconviction proceeding did not constit ute a miscarriage of justice under Rule 61(i)(5). 7 This appeal followed. (5) We review the Superior Court’s denial of postconvic tion relief for abuse of discretion and questions of law de novo

. 8 The procedural requirements of Rule 61 must be considered before addressing any su bstantive issues. 9 In this appeal, Garner argues that he has overcome the proc edural bars of Rule 61(i) because his lack of counsel in his first postconvic tion proceeding, which included ineffective assistance of counsel claims, constitut ed a miscarriage of justice under

4 Super. Ct. Crim. R. 61(i)(1) (barring motion filed more than three years after judgment of conviction is final) (amended in 2006 to reduce fil ing period to one year).
5 Super. Ct. Crim. R. 61(i)(2) (barring any ground f or relief not asserted in prior postconviction proceeding).

6 Super. Ct. Crim. R. 61(i)(3) (barring claim not ra ised in proceedings leading to conviction).

7 Super. Ct. Crim. R. 61(i)(5) (providing that barre d claims can be reviewed if there is colorable claim of miscarriage of justice due to constitution al violation that undermined fairness of proceedings).
8 Dawson v. State , 673 A.2d 1186, 1190 (Del. 1996).

9 Younger v. State , 580 A.2d 552, 554 (Del. 1990).4

Rule 61(i)(5). In support of this argument, Garner relies on United States Supreme Court cases like Martinez v. Ryan 10 and this Court’s decisions in cases like Holmes
v. State 11 to contend that he had a constitutional and statut ory right to counsel in his first postconviction proceeding. This reliance is misplaced. (6) First, none of the United States Supreme Court case s cited by Garner hold that indigent defendants have a constitutional right to appointment of counsel in postconviction proceedings. Martinez, for example, holds that a lack of counsel or inadequate assistance of counsel during initial postconviction proceedings may establish cause for a defendant's procedural defaul t of a claim of ineffective assistance of counsel at trial in pursuing federal habeas corpus relief. 12 Martinez does not hold that there is a federal constitutiona l right to counsel in first postconviction proceedings. 13 To the extent Garner claims that he had a right t o counsel in his first postconviction proceeding unde r the Delaware Constitution, his

10 ---U.S.---, 132 S. Ct. 1309, 182 L.E.2d 272 (2012)

. 11 2013 WL 2297072 (Del. May 23, 2013).

12 Martinez , 132 S. Ct. at 1320.

13 Id. at 1315 (“This is not the case, however, to resolv e whether [an exception to the constitutional rule that there is no right to couns el in collateral proceedings] exists as a matter of constitutional law.”).5

cursory references to the Delaware Constitution do not properly present that claim for review and that claim is therefore waived. 14 (7) Second, this Court did not hold in Holmes or subsequent cases that amendments to Rule 61(e)(1), which provided for app ointment of counsel in an indigent defendant’s first postconviction proceedin g, created a retroactive right to counsel for indigent defendants pursuing subsequent motions for postconviction relief. In Holmes , we held that the Superior Court abused its discre tion in denying Holmes' motion for the appointment of counsel to as sist him in his first postconviction proceeding. 15 We remanded for the appointment of counsel under the recently amended Rule 61(e)(1). 16 This Court has held that the amendment to Rule 61(e)(1) was not retroactive. 17 Given that this is Garner’s second postconviction motion, Holmes and the other cases that Garner relies upon are simply not applicable here. We conclude therefore that the Superior Court did not

14 Ortiz v. State , 869 A.2d 285, 290-91 (Del. 2005) (holding that pr oper presentation of alleged violation of Delaware Constitution requires more th an conclusory reference to section of Delaware Constitution).
15 2013 WL 2297072, at *1.

16 Holmes , 2013 WL 2297072, at *1. See also Stevens v. State , 2013 WL 4858987 (Del. Sept. 10, 2013) (vacating denial of defendant’s first pos tconviction motion and remanding for appointment of counsel); Howard v. State , 2013 WL 3833335 (Del. July 19, 2013) (remanding denial of defendant’s first postconviction motion f or appointment of counsel and reconsideration); Ayers v. State , 2013 WL 3270894 (Del. June 24, 2013) (same).
17 Roten v. State , 2013 WL 5808236, at *1 (Del. Oct. 28, 2013).6

err in finding that Garner’s second motion for post conviction relief was procedurally barred and that Garner failed to overc ome the procedural hurdles. NOW, THEREFORE, IT IS ORDERED that the motion to af firm is GRANTED and the judgment of the Superior Court is A FFIRMED.

BY THE COURT: /s/ Henry duPont Ridgely Justice