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IN THE SUPREME COURT OF THE STATE OF DELAWARE REGINALD HARRIS, Defendant-Below, Appellant,

v. STATE OF DELAWARE, Plaintiff-Below, Appellee. § § No. 479, 2013 § § § § Court Below: Superior Court § of the State of Delaware, § in and for New Castle County § Cr. ID 0402010364A § § Submitted: June 27, 2014 Decided: July 29, 2014
Before STRINE , Chief Justice, HOLLAND , and RIDGELY , Justices. O R D E R This 29th day of July 2014, upon consideration of the briefs of the parties and the record in this case, it appears to the Cour t that: (1) The defendant-appellant, Reginald Harris, filed this appeal from the Superior Court’s denial of his second motion for po stconviction relief and his motion for appointment of counsel. Harris also cha llenges the Superior Court’s denial of his motion for a transcript at the State’ s expense of a 911 call played at a June 2004 suppression hearing. We conclude that th ese arguments are not fairly presented and affirm. (2) According to Harris, the United States Constitu tion provides a litigant with a right to counsel to present a postconviction petition. Harris suggests that the2

United States Supreme Court’s holding in Martinez v. Ryan supports that broad proposition. 1 But that is not so. 2 To the extent that Harris asks us to innovate, go beyond what Martinez holds, and construct an argument he fails to make himself for expanding the circumstances where the federal C onstitution requires a state government to provide counsel to a litigant, we dec line to do so. (3) Although we recognize that Harris does not have counsel, and that his point is that he needs counsel to present his postc onviction petition effectively, a

pro se litigant still has a responsibility to fully and f airly present an argument for the recognition of a new constitutional right. 3 Harris does not make any effort do so in his brief, which is merely two and a half pag es long. Harris does not attempt to ground his argument in the text of the federal C onstitution or any precedent, nor does Harris present a coherent argument about the d uty of a state to provide a defendant with counsel for post-conviction proceedi ngs when it has already

1 ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (20 12). 2 Id. at 1315-20 (holding that “[w]here, under state law , claims of ineffective assistance of trial counsel must be raised in an initial-review collate ral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial c laim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective” but expressly declining to reach the i ssue of whether there is a constitutional exception to the general rule that there is no righ t to counsel in postconviction proceedings in such cases). 3 Flamer v. State , 953 A.2d 130, 134 (Del. 2008) (“The appealing par ty is generally afforded the opportunity to select and frame the issues it wants to have considered on appeal. A corollary to that opportunity is a requirement that the appealin g party's opening brief fully state the grounds for appeal, as well as the arguments and supporting authorities on each issue or claim of reversible error.”) (emphasis in original).3

discharged its duty, first recognized in Gideon v. Wainwright , 4 to provide trial and appellate counsel for the litigant in the direct pr oceedings. Thus, Harris’ federal claim is waived. 5 (4) Harris’ efforts to support his argument that h e has a right to counsel in a postconviction proceeding under the Delaware Cons titution are even more cursory. Harris does not cite the text of our Cons titution or any decision of the Delaware courts interpreting it. Harris also fails to explain the policy logic behind his argument. He has therefore not presented any r easoned basis in this appeal for us to recognize a novel right to counsel in post-co nviction proceedings. (5) This Court has consistently declined to conside r state constitutional claims that the appellant has failed to support oth er than with conclusory allegations. 6 “The proper presentation of an alleged violation of the Delaware Constitution should include a discussion and analys is of one or more of the criteria set forth in Jones [ v. State, 745 A.2d 856, 864-65 (Del. 1999)] or other applicab le

4 372 U.S. 335, 344-45 (1963). 5 Flamer v. State , 953 A.2d at 134 (“this Court has held that the fa ilure of a party appellant to present and argue a legal issue in the text of a n opening brief constitutes a waiver of that claim on appeal.”); see also Proctor v. Bunting , 797 A.2d 671, 672 (Del. 2002) (“It is well establ ished that this Court will not review a legal issue on ap peal unless it is fully and fairly presented in the opening brief.”).

6 Ortiz v. State , 869 A.2d 285, 290-91 (Del. 2005) (noting that def endant’s claim under Article I, §7 of the Delaware Constitution is waived where the defendant makes only a conclusory declaration of such violation in his opening brief)

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criteria.” 7 Failure to do that operates as a waiver of the cl aim. 8 We are not prepared to step out of our judicial role and attem pt to formulate an argument for Harris. That would not be equitable to the State, which can only be reasonably expected to address those arguments that Harris in fact presented in at least a minimally adequate way, and is inconsistent with ou r adversarial system of justice. (6) Similarly, Harris did not actually present the merits of any argument supporting his contentions in the summary of argume nt section of his opening brief that the trial court abused its discretion in denyi ng his motion for postconviction relief (e.g., by holding that his claims were proce durally barred) or by denying his motion for a transcript at the State’s expense. 9 An appellant must state the merits of an argument in his opening brief or that argumen t will be waived. 10 Accordingly, we will not address any of the other c laims Harris raised below. 11 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.

7 Monroe v. State , 9 A.3d 476, 2010 WL 5050863, at *2 (Del. 2010) (T ABLE) (citing Ortiz , 869 A.2d at 291, n. 4). 8 Id. (citing Del. Supr. Ct. R. 14 (b)(vi)(A)(3)). 9 Appellant’s Opening Brief at 2-6. Harris’ reply b rief is also silent on these claims. Appellant’s Reply Brief. 10 Del. Supr. Ct. R. 14(b)(vi)(A)(3). 11 Sandler v. O’Shea , 2012 WL 2870173, at *1 n.2 (Del. July 12, 2012) ( declining to address a claim raised in the summary of argument but not dis cussed in the body of the brief); Monroe v. State , 2010 WL 5050863, at *2 (Del. Dec. 8, 2010) (decli ning to address a claim referenced in the summary of argument but not addressed in the ar gument section of the brief); Murphy v. State , 632 A.2d 1150, 1152 (Del. 1993) (recognizing that the failure to raise a legal issue in the text of the opening brief generally constitutes a w aiver of that claim on appeal).5

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice