IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) I.D. No. 1702005493

) Cr. A. Nos. PN17-02-1754, etc.

DARNELL D. MARTIN, ) 

Defendant. )

Submitted: August 24, 2022

Decided: November 28, 2022

Upon Remand from the Supreme Court of Delaware, 

Defendant Darnell D. Martin’s Motion for Postconviction Relief, 

QUESTIONS ANSWERED.

Darnell Martin was discharged from probation and his sentence completed

while his postconviction proceeding was still underway here. Because he no longer 

satisfied the “in-custody” requirement to proceed under this Court’s Criminal Rule 

61, Mr. Martin’s pending postconviction motion was dismissed as moot. His appeal 

of that dismissal is now before this Court on remand to address the effects, if any, of 

a prior pardon on his standing under Rule 61.

FACTUAL AND PROCEDURAL BACKGROUND

(1) After a bench trial conviction for drug-related charges, Mr. Martin was

sentenced immediately to serve, inter alia, a 25-year term of incarceration suspended 
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after two years for 18 months of supervised probation.

1

 The two years of 

unsuspended imprisonment comprised a mandatory-minimum term of incarceration

that could not be suspended.

2

 The Delaware Supreme Court affirmed Mr. Martin’s

convictions and sentence on direct appeal—the sole claim on that direct appeal 

targeted this Court’s denial of his suppression motion.

3

(2) Mr. Martin timely filed a pro se motion for postconviction relief and a 

motion for appointment of counsel under Superior Court Criminal Rule 61.

4

 The 

Court granted the motion for appointment of counsel and Mr. Martin’s 

postconviction attorney then filed an amended Rule 61 motion on his behalf.

5

 That 

amended motion charged Mr. Martin’s previous counsel with ineffective assistance 

in the prosecution of his pre-trial suppression motion and direct appeal.6 

(3) While his postconviction motion was pending, Mr. Martin was

discharged from probation with no further obligations remaining under the imposed 

1

State v. Martin, 2019 WL 1126059, at *1 (Del. Super. Ct. Mar. 12, 2019) (denying Mr. 

Martin’s request for a reduction of sentence under Criminal Rule 35(b)); see also Sentencing 

Order, State v. Darnell D. Martin, ID No. 1702005493 (Del. Super. Ct. Jan. 12, 2018) (D.I. 31).

2 DEL. CODE ANN. tit. 16, § 4752(2) (2016) (drug dealing in a tier 2 quantity of marijuana with 

an aggravating factor is a class B felony); id. at tit. 11, §§ 4205(b)(2) & (d) (sentence “[f]or a class 

B felony [is] not less than 2 years . . . [and any] minimum, mandatory, mandatory minimum or 

minimum mandatory sentence [ ] required by subsection (b) of [§ 4205] . . . shall not be subject to 

suspension by the court”).

3 Martin v. State, 2018 WL 4959037, at *1 (Del. Oct. 12, 2018).

4

State v. Martin, 2021 WL 1030348, at *1 (Del. Super. Ct. Mar. 17, 2021).

5

Id. 

6

Id. 
-3-

sentence.

7

 In other words, he was released from all “custody” under the conviction 

challenged in his postconviction proceeding.

8

 

(4) When determining whether postconviction relief might be available to 

one no longer “in custody” under a sentence for the challenged conviction, Delaware 

Courts have long and consistently held that relief under Rule 61 is not available.

9

 

Accordingly, Mr. Martin’s postconviction motion was dismissed as moot10 because 

7

Id. 

8

See, e.g., Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (observing that to be “in 

custody” for federal habeas corpus purposes, an individual must, at least, be “subject both to 

significant restraints on liberty . . . which were not shared by the public generally, along with some 

type of continuing governmental supervision” (citations and quotation marks omitted)).

9

See Steck v. State, 2015 WL 2357161, at *2 (Del. May 15, 2015) (“As a general matter, relief 

under Rule 61 is only available when the movant is in custody on the conviction that is the subject 

of the postconviction motion.”); Ruiz v. State, 2011 WL 2651093, at *2 (Del. July 6, 2011) (finding 

movant “lack[ed] standing” to seek postconviction relief because this Court had discharged him 

from probation); Summers v. State, 2003 WL 1524104, at *1 (Del. Mar. 20, 2003) (movant was 

no longer in custody as a result of the challenged conviction “and thus [wa]s not entitled to seek 

postconviction relief” (citation omitted)); Guinn v. State, 1993 WL 144874, at *1 (Del. Apr. 21, 

1993) (finding that because movant “is no longer in custody” he “cannot seek postconviction relief 

from this sentence”); State v. Jackson, 2016 WL 7076990, at *1 (Del. Super. Ct. Dec. 5, 2016) 

(finding that as movant had no further obligation under the sentence, he was no longer “in custody”

and lacked standing to pursue his then-pending Rule 61 petition); State v. Cammille, 2014 WL 

2538491, at *1 (Del. Super. Ct. June 3, 2014) (because movant was no longer “in custody . . . in a 

manner contemplated by Rule 61” he “lack[ed] standing under Rule 61 and [wa]s not entitled to 

seek postconviction relief” (quotation marks omitted)); State v. Hinson, 2006 WL 337031, at *2 

(Del. Super. Ct. Feb. 10, 2006) (movant was “barred from relief pursuant to Rule 61 from her 

[challenged] conviction because she [wa]s not ‘in custody or subject to future custody’ for that 

challenged conviction” (citing pre-amendment Del. Super. Ct. Crim. R. 61)).

10 See Watson v. State, 2015 WL 1456771, at *2 (Del. Mar. 30, 2015) (“Generally, under 

Delaware law, once a criminal sentence is completed, any postconviction claim with respect to 

that conviction is moot because the defendant is no longer ‘in custody under [the] sentence.’” 

(alteration in original) (citations omitted). Accord Paul v. State, 2011 WL 3585623, at *1 (Del. 

Aug. 15, 2011) (finding the same). 
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he lost standing to challenge his conviction and completed sentence.11 The Court 

noted in its sua sponte dismissal order12 that, given Mr. Martin’s lengthy criminal 

history of felony drug convictions,13 no collateral consequences were suffered as a 

result of the underlying conviction.

14

(5) Mr. Martin argues this Court must consider the merits of his 

postconviction motion under the collateral consequences doctrine because he 

received an unconditional gubernatorial pardon in 2013 for his prior drug 

convictions—a fact not known to this Court when it entered its sua sponte

11 See Pumphrey v. State, 2007 WL 3087405, at *1 (Del. Oct. 23, 2007) (holding this Court “did 

not err in concluding that appellant lacked standing to pursue a motion for postconviction relief 

because appellant had completed his sentence and thus was no longer ‘in custody or subject to 

future custody’ under the sentence for which postconviction relief was sought” (quoting preamendment Rule 61(a)(1)); Fullman v. State, 2000 WL 140114, at *1 (Del. Feb. 1, 2000) (because 

movant was no longer serving a sentence on the challenged Delaware charges, he “d[id] not have 

standing to pursue his claims pursuant to Rule 61”).

12 See e.g., Humanigen, Inc. v. Savant Neglected Diseases, LLC, 238 A.3d 194, 208 (Del. Super. 

Ct. 2020) (“the Court may consider standing sua sponte” (citations omitted)); Thornton v. Bernard 

Techs., Inc., 2009 WL 426179, at *4 (Del. Ch. Feb. 20, 2009) (“because standing is jurisdictional 

in nature, the Court may raise it sua sponte” (citing Koutoufaris v. Dick, 604 A.2d 390, 401 (Del. 

1992)).

13 E.g., Sentencing Order, State v. Darnell D. Martin, ID No. 91006298DI (Del. Super. Ct. Mar. 

15, 1992) (setting forth Mr. Martin’s sentence for cocaine delivery and a related charge); 

Sentencing Order, State v. Darnell D. Martin, ID No. 93003115DI (Del. Super. Ct. May 12, 1993) 

(Mr. Martin is sentenced for possession with intent to deliver cocaine); Sentencing Order, State v. 

Darnell D. Martin, ID No. 9402004121 (Del. Super. Ct. Dec. 20, 1994) (Mr. Martin’s sentence for 

simple possession of cocaine); Sentencing Order, State v. Darnell D. Martin, ID No. 9912018840 

(Del. Super. Ct. Feb. 9, 2000) (Mr. Martin is sentenced for trafficking in cocaine).

14 See Paul, 2011 WL 3585623, at *1 (noting that “[t]he only exception to the [in custody] rule 

is when the defendant ‘suffers collateral legal disabilities or burdens’” (quoting Gural v. State, 251 

A.2d 344, 344-45 (Del. 1969))); see also Jackson, 2016 WL 7076990, at *1 (observing that with 

his lengthy criminal record, the fully discharged movant could never “establish that he would 

suffer any collateral consequences as a result of the convictions” he challenged via his thenpending Rule 61 motion (citation omitted)). 
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dismissal.

15

 In his view, he is no different than a first-time felon for purposes of the 

collateral consequences analysis.16 As a result of the underlying conviction, Mr. 

Martin contends that he, like any other first-time felon in Delaware, lost certain core 

civic rights, e.g., the right to serve on a jury and the right to purchase or possess 

firearms and ammunition.

17

(6) While considering the merits of his appeal, the Delaware Supreme 

Court determined that the effects of a pardon on a collateral consequences analysis: 

(a) was a novel issue; and (b) consideration thereof by this Court in the first instance

would be beneficial. So, the matter was remanded for the Court to address the 

following:

(i) Whether a person convicted of a felony for the first time faces collateral 

consequences under Gural v. State?

18

(ii) Whether a person who has received a pardon must be treated the same 

as a first-time felon for purposes of analyzing the collateral 

consequences rule in connection with resolving a motion for 

postconviction relief?19

15 See Martin, 2021 WL 1030348, at *1; Order for Remand ¶ 10, Martin v. State, Del. Supr., No. 

112, 2021 (Del. Oct. 28, 2021) (Montgomery-Reeves, J.) (hereinafter “Remand Order”); see also 

Def.’s Suppl. Mem. at 8, State v. Darnell D. Martin, ID No. 1702005493 (Del. Super. Ct. Dec. 13, 

2021) (D.I. 84).

16 Remand Order ¶ 10.

17 Id.

18 Id. ¶ 11 (citing Gural, 251 A.2d 344).

19 Id.
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DISCUSSION

A. COLLATERAL CONSEQUENCES AND FEDERAL HABEAS CORPUS 

(6) The collateral consequences rule is one judicially created and originates

from a 1968 United States Supreme Court decision on a federal petition for a writ of 

habeas corpus. In Carafas v. LaVallee, the Court granted the petitioner’s writ of 

certiorari though he was no longer in custody and his sentence complete.

20

 The 

Court held the completion of a petitioner’s sentence prior to the final adjudication of 

his pending habeas corpus petition challenging a state-court conviction neither 

terminated jurisdiction with respect to the application, nor did it moot the merits of 

the case, because collateral consequences of the conviction remained.

21

 

(7) Concerning some collateral consequences the Carafas petitioner might 

face, the Court observed:

In consequence of his conviction, he cannot engage in certain 

businesses; he cannot serve as an official of a labor union for a specified 

period of time; he cannot vote in any election held in New York State; 

he cannot serve as a juror. Because of these ‘disabilities or burdens 

[which] may flow from’ petitioner’s conviction, he has ‘a substantial 

stake in the judgment of conviction which survives the satisfaction of 

the sentence imposed on him.’ On account of these ‘collateral 

consequences,’ the case is not moot.22

20 391 U.S. 234, 236 (1968).

21 See id. at 237-40.

22 Id. at 237-38 (alteration in original) (citations omitted) (quoting Fiswick v. United States, 329 

U.S. 211, 222 (1946)); but cf. Spencer v. Kemna, 523 U.S. 1, 12-14 (1998) (declining to extend 

the collateral consequences presumption in federal habeas cases to parole revocations to satisfy 

Article III standing).
-7-

(8) Aside from the collateral consequences holding, the unique procedural 

posture in Carafas warrants some discussion. The Carafas appeal was filed in 

federal court, under the federal habeas corpus statute.

23 Thus, a threshold issue to 

be determined was “whether the expiration of [a] petitioner’s sentence, before his 

application was finally adjudicated and while it was awaiting appellate review, 

terminates federal jurisdiction with respect to the application.”24 

(9) The Court’s decision ultimately turned on its interpretation of the 

federal habeas statute, which in turn, resulted in the creation of the federal collateral 

consequences rule.

[W]e conclude that under the statutory scheme, once the federal 

jurisdiction has attached in the District Court, it is not defeated by the 

release of the petitioner prior to completion of proceedings on such 

application. 

The federal habeas corpus statute requires that the applicant must be ‘in 

custody’ when the application for habeas corpus is filed. . . . [Petitioner] 

is suffering, and will continue to suffer, serious disabilities because of 

the law’s complexities and not because of his fault, if his claim that he 

has been illegally convicted is meritorious. There is no need in the 

statute, the Constitution, or sound jurisprudence for denying to 

petitioner his ultimate day in court. . . . He should not be thwarted now 

and required to bear the consequences of assertedly unlawful

conviction simply because the path has been so long that he has served 

23 391 U.S. at 237-38; see also 28 U.S.C. § 2254(d) (1996) (“An application for a writ of habeas 

corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be 

granted with respect to any claim that was adjudicated on the merits in State court” unless the 

decision was contrary to clearly established Federal law, or was “based on an unreasonable 

determination of the facts in light of the evidence presented in the State court proceeding.”

(emphasis added)).

24 Carafas, 391 U.S. at 237 (emphasis added).
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his sentence. The federal habeas corpus statute does not require this

result.25

Thus, the Court concluded that a petitioner need not remain “in custody” for a federal

court to proceed to a final adjudication of the merits presented in a federal writ of 

habeas corpus.26

B. DELAWARE’S TREATMENT OF COLLATERAL CONSEQUENCES AND 

ITS POSTCONVICTION PROCEDURAL RULES

(10) The Delaware Supreme Court first incorporated a collateral 

consequences concept in Gural v. State.

27

 The Gural defendant was convicted of 

embezzlement and sentenced to three years of imprisonment.28 His postconviction 

motion—filed under this Court’s then-Rule 35—was denied.

29

 He was subsequently 

released from custody while his appeal of that denial was pending.

30

 Citing Carafas, 

Gural challenged the State’s motion to dismiss for mootness.31 

(11) Our Supreme Court ultimately dismissed his appeal as moot because he 

failed to demonstrate that, as a consequence of the instant conviction, certain 

25 Id. at 238-40 (emphasis added) (internal citation omitted). 

26 Id. at 237-42.

27 251 A.2d at 344-45.

28 Id. at 344. 

29 See id.

30 Id.

31 Id. at 344-45.
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disabilities or burdens were imposed upon him.

32

 Unlike Carafas, the Gural 

defendant had a lengthy criminal record that otherwise overshadowed the merits of 

his postconviction appeal.

33

 As such, no new collateral consequences were imposed 

or suffered on account of his instant conviction and his appeal was deemed 

meritless.

34

 

(12) Two decades later, before Delaware courts ever had occasion to revisit 

Gural’s collateral consequences discussion, this Court’s Criminal Rules were 

amended.

35

 Rule 61 replaced the Gural-era Rule 35, which had offered “a remedy 

in lieu of habeas corpus and coram nobis, to the defendant who claims that his 

conviction was obtained or his sentence imposed in violation of his constitutional 

guaranties.”36 And Rule 61, by its now present terms, has now come to “govern[]

the procedure on an application by a person in custody” seeking to collaterally attack 

his or her criminal conviction.

37

(13) In one rare factual circumstance—State v. Lewis38—our Supreme Court

32 Id. at 345.

33 Id.; see Carafas, 391 U.S. at 237. 

34 Gural, 251 A.2d at 345.

35 Younger v. State, 580 A.2d 552, 554 (Del. 1990); see also Del. Super. Ct. Crim. R. 61.

36 State v. Lewis, 797 A.2d 1198, 1200 (Del. 2002) (quoting Johnson v. State, 280 A.2d 712, 713 

n.3 (Del. 1971)).

37 Del. Super. Ct. Crim. R. 61(a)(1) (2022) (emphasis added).

38 797 A.2d 1198.
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contextualized the dichotomy between present-day Rules 35(b) and 61 and Gural’s

collateral consequences analysis under the prior embodiment of our postconviction 

rule—former Rule 35. Their co-existence is understood thusly:

While Rule 61 may provide relief comparable to a writ of habeas

corpus or coram nobis, Rule 35(b), as it exists subsequent to the 

promulgation of Rule 61, appears on its face to permit a reduction of 

sentence at the discretion of the sentencing court.

The equitable considerations presently allowable under Gural are not 

limited to the ‘fairness’ and ‘interest of justice’ exceptions to Rule

61(i). . . . Gural did not hold that a defendant can seek relief after the 

completion of a sentence only when there is a constitutional or legal 

defect alleged. In fact, Gural asserted no such defect. Rather, the Court 

held that collateral consequences, such as inability to engage in certain 

business activities or restricted civil rights, could be grounds to permit 

relief after the completion of a sentence. Such circumstantial factors are 

not considered under Rule 61(i) for the purposes of waiving a time 

limitation. The open language of Rule 35(b), however, can be plainly 

read as permitting such considerations.

Furthermore, Rule 61(a) allows for postconviction relief only when the 

defendant is ‘in custody or subject to fu[ture] custody’ for the particular 

sentence being challenged.39 

(14) Most notably, the Lewis Court—reflecting one an earlier collateral 

consequences discussion in Guinn v. State40—observed that upon satisfaction of a 

sentence, postconviction relief “cannot be secured under Rule 61, because the 

language of [Rule] 61(a) appears to create a standing bar. If the collateral 

39 Id. at 1201 (alteration and emphasis added) (citations omitted). 

40 1993 WL 144874.
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consequences rule for mootness is to have any applicability at all, it must be available 

under Rule 35 as opposed to Rule 61.”41 

(15) This Court reaffirmed that principle later in State v. Hinson.

42

 It 

concluded that “[a]ll courts in Delaware that have considered whether

postconviction relief under Rule 61 is potentially available to a person who is not ‘in

custody or subject to future custody’ for the challenged sentence have agreed that

such relief under Rule 61 is not available.”

43

 Thus, having determined that a writ of 

error coram nobis had been unequivocally abolished in Delaware, Rule 61 is “the 

‘exclusive remedy for seeking to set aside a final judgment of conviction.’”

44

 And 

it is clear that the scope of the Rule has narrowed through subsequent amendment; 

relief under the Rule is now available only to those “in custody.” So it would seem 

the Court shouldn’t apply the collateral consequences doctrine under present-day 

Rule 61 at all. But if made to, it should be a cautious enterprise given Gural’s own 

terms and the Rule’s development since Gural.

45

41 Lewis, 797 A.2d at 1201 (citing Guinn,1993 WL 144874, at *1).

42 2006 WL 337031.

43 Id. at *2 & n.8 (collecting cases).

44 Id. (quoting Heron v. State, 2001 WL 58742, at *1 (Del. Jan. 17, 2001)). In Heron v. State,

the Supreme Court affirmed the Superior Court’s treatment of a writ of error coram nobis as a

postconviction motion under Rule 61 and denied the motion under the then three year limitations

period. 2001 WL 58742, at *1.

45 See Order Amending Rule 61 of the Superior Court Rules of Criminal Procedure ¶ 1 (Del. 

Super. Ct. June 4, 2014) (amending Rule 61(a)(1) to purposefully prohibit petition by those who 

allege they are “subject to custody” due to a challenged conviction); compare Del. Super. Ct. Crim. 
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C. IF AT ALL, A FIRST-TIME FELON MIGHT RESORT TO GURAL

IN VERY LIMITED CIRCUMSTANCES.

(16) Whether a felon faces collateral consequences under Gural has already 

been addressed, in dictum, in Lewis and Guinn.

46

 “[T]he [Gural] Court held that 

collateral consequences . . . could be grounds to permit [certain] relief after the 

completion of a sentence.”47 But its very limited application was borne from the 

plain language of then-extant postconviction-relief Rule 35 “permitting such 

considerations;” whereas now relief under Rule 61 is available only “when the 

defendant is ‘in custody’ . . . for the particular sentence being challenged.”48 In turn,

now “[i]f the collateral consequences rule for mootness is to have any applicability 

at all, it must be available under Rule 35 as opposed to Rule 61.”49 

(17) To be sure, the evolution of Delaware’s collateral consequences 

decisions and postconviction rules are products of practical considerations that 

carefully balance the interests of finality and fairness in legal proceedings. Finality 

R. 61(a)(1) (2013) (pre-June 4, 2014 amendment), with Del. Super. Ct. Crim. R. 61(a)(1) (2015) 

(post-June 4, 2014 amendment). 

46 Unlike “obiter dicta,” which are non-binding, “by the way” comments, “dictum” is “judicial 

dictum” and is “a court’s ‘expression of opinion upon a point in a case argued by counsel and 

deliberately passed upon . . . though not essential to the disposition of the cause . . . [and] is entitled 

to much weight and should be followed unless it is erroneous.” Wild Meadows MHC, LLC v.

Weidman, 2020 WL 3889057, at *7 (Del. Super. Ct. July 10, 2020) (quoting Cates v. Cates, 619 

N.E.2d 715, 717 (Ill. 1993)), aff’d, 250 A.3d 751 (Del. 2021).

47 Lewis, 797 A.2d at 1201 (emphasis added) (citing Gural, 251 A.2d at 344).

48 Id. (quoting Guinn, 1993 WL 144874, at *1).

49 Id. (emphasis added) (quoting Guinn,1993 WL 144874, at *1).
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represents the notion “that at some point a criminal conviction reaches an end, a 

conclusion, a termination, [which] ‘is essential to the operation of our criminal 

justice system.’”50 Indeed, “limits on the collateral review of criminal judgments 

derive from concerns about finality. Statutes of limitations . . . for habeas corpus 

petitions by state prisoners[] obviously safeguard the repose of final criminal 

judgments.”51 So too do our own rules governing the timing of state post-sentence

challenges.

52

Notes one commentator:

[C]ollateral review threatens the public reputation of the criminal 

justice system. Without some visible and conclusive resolution to cases, 

a system of criminal justice lacks legitimacy. In Justice Harlan’s 

memorable phrase: ‘No one, not criminal defendants, not the judicial 

system, not society as a whole is benefited by a judgment providing a 

man shall tentatively go to jail today, but tomorrow and every day 

thereafter his continued incarceration shall be subject to fresh litigation 

on issues already resolved.’ Scholars and judges who articulate this 

reputational concern typically focus on the public, warning that 

frequent relitigation of settled cases will undermine public confidence 

in the criminal justice system. Variations of that concern, however, 

focus on offenders and would-be offenders, maintaining that finality is 

essential to the deterrent effect of the criminal law, or to the effective 

rehabilitation of offenders.53

50 Prost v. Anderson, 636 F.3d 578, 582-83 (10th Cir. 2011) (emphasis in original) (quoting 

Teague v. Lane, 489 U.S. 288, 309 (1989)).

51 Ryan W. Scott, In Defense of the Finality of Criminal Sentences on Collateral Review, 4 WAKE 

FOREST J.L. & POL’Y 179, 188 (2014) (citations omitted).

52 See e.g., Del. Super. Ct. Crim. R. 35(b) (severely curtailing sentence-reduction applications 

made more than 90 days after sentencing); Del. Super. Ct. Crim. R. 61(i)(1) (requiring a postconviction petition challenging a conviction to be filed within a year of the conviction becoming 

final).

53 Scott, supra note 51, at 187-88 (citations omitted).
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(18) Undoubtedly influenced by the same considerations of practicality, 

finality, and use of judicial resources, the United State Supreme Court began to 

significantly restrict the scope of federal habeas review post-Carafas.

54

 Some 

postconviction claims are no longer cognizable if state courts offer a separate 

mechanism for review.

55

 Procedural default rules prevent petitioners from 

circumventing independent and adequate state law grounds for sustaining their 

convictions.56 A heightened harmless error standard is applied “to reflect the finality 

interests at stake in the post-conviction context.”

57 And “to prevent an endless cycle 

of petition and re-petition by prisoners with nothing but time on their hands,” courts 

must strictly enforce the writ-rules.58 

(19) Delaware’s rules governing collateral attacks on convictions do much 

54 See, e.g., Edwards v. Vannoy, 141 S. Ct. 1547, 1570 (2021) (“The statute provides that ‘writs 

of habeas corpus may be granted’—not that they must be granted. . . . Exercising this remedial 

discretion, the Court began to develop doctrines aimed at returning the Great Writ closer to its 

historic office.” (Gorsuch, J., concurring) (emphasis in original) (quoting 28 U.S.C. § 2241(a)).

55 See Stone v. Powell, 428 U.S. 465, 481-82 (1976) (“[W]here the State has provided an 

opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not 

require that a state prisoner be granted federal habeas corpus relief on the ground that evidence 

obtained in an unconstitutional search or seizure was introduced at his trial.”).

56 See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (“barring federal habeas review absent a 

showing of ‘cause’ and ‘prejudice’ attendant to a state procedural waiver, be applied to a waived 

objection to the admission of a confession at trial”).

57 Edwards, 141 S. Ct. at 1570 (Gorsuch, J., concurring) (citing Brecht v. Abrahamson, 507 U.S. 

619, 633-38 (1993)).

58 Id. (Gorsuch, J., concurring) (citing McCleskey v. Zant, 499 U.S. 467, 489-93 (1991)).
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the same.59

(20) With this backdrop, dismissal of Mr. Martin’s Rule 61 motion was 

proper. The Court’s review of a Rule 61 motion must be conducted in accordance 

with the rule as it exists on the date of submission.

60

 So Mr. Martin’s application is

subject to scrutiny under the modified, current version of the Rule.

61

 As Rule 61 

requires that a petitioner must be in custody, it is Mr. Martin’s status as one no longer 

in custody that precludes him from obtaining the relief he seeks. This Court’s mere 

supposition and unexamined suggestion that application of the collateral 

consequences doctrine is still viable under current Rule 61 was a misstep. It is not—

neither for a first-time felon nor anyone who suggests he is a renewed first-time 

felon. 

(21) Thus, to answer the Supreme Court’s first question, a person convicted 

of a felony for the first time may claim to face collateral consequences under Gural 

v. State, but such a claim is not cognizable under Rule 61 because of the Rule’s nowclearly-defined scope and procedural bars.

59 Del. Super. Ct. Crim. R. 61(i)(2) (prohibiting successive petitions); id. at 61(i)(3) (barring 

grounds for relief not asserted in the proceedings leading to the judgment of conviction); id. at 

61(i)(4) (disallowing the revisitation of issues previously adjudicated). 

60 Collins v. State, 2015 WL 4717524, at *1 (Del. Aug. 6, 2015).

61 Purnell v. State, 254 A.3d 1053, 1094 (Del. 2021) (holding “a motion for postconviction relief 

is to be adjudicated in accordance with Rule 61 as it exists at the time the motion is filed” (citations 

omitted)); see e.g., State v. Dickenson, 2020 WL 1227810, at *1 (Del. Super. Ct. Mar. 2, 2020) 

(“If a procedural bar exists, then the Court will not consider the merits of the postconviction claim.”

(citing Younger, 580 A.2d at 554)).
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(22) If, however, the collateral consequences doctrine were to apply to

current Rule 61—which the Court believes it does not—it should be limited to just

the circumstances denoted by Rule 61’s most important procedural-bar exceptions. 

That is the otherwise-mooted Rule 61 prayer for relief might be deemed to survive

via the collateral consequences rule only where the movant: (a) pleads with

particularity a strong inference of actual innocence; or (b) asserts a claim that the

Court lacked jurisdiction to convict and sentence her.

(23) Here, Mr. Martin does not allege he is actually innocent or that the 

Court lacks jurisdiction. Rather, Mr. Martin alleges his trial counsel was ineffective 

for failing to have the duffle bag of drugs in the back seat of his car suppressed.62 

Just as such a claim wouldn’t warrant federal habeas review, it should not warrant 

the extension of Rule 61’s reach.63

(24) But these are not—even under Gural—the only limitations on any 

potential Rule 61 collateral consequences application. Even if Mr. Martin were to 

satisfy the exceptions suggested (which he hasn’t), he must also plead specific and 

62 See Martin, 2021 WL 1030348, at *1. 

63 “[F]ederal courts will not collaterally review claims of unreasonable search and seizure when

the defendant ‘has previously been afforded an opportunity for full and fair litigation of his claim

in the state court.’” State v. Conyers, 413 A.2d 1264, 1265-66 (Del. Super. Ct. 1979) (quoting

Stone, 428 U.S. at 469); Stone, 428 U.S. at 489-90 (“The costs of applying the exclusionary rule

even at trial and on direct review are well known: the focus of the trial, and the attention of the

participants therein, are diverted from the ultimate question of guilt or innocence that should be

the central concern in a criminal proceeding.” (citations omitted)).
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particular collateral consequences of his conviction to avoid mootness.

(25) Mr. Martin asserts he “(i) lost the right to serve on a jury, (ii) lost the 

right to own or possess a firearm or ammunition, (iii) incurred the burden of 

potentially being disqualified from public employers and federal student loans, and 

(iv) incurred the stigma of being a convicted felon nearly ten years after receiving 

his pardon.”64 But this simple listing of consequences cannot possibly satisfy the 

specificity and particularity requirement because these consequences are shared 

among all felons—first-time or other.

65

D. NO MATTER WHAT, ONE PARDONED OF A FELONY CONVICTION NEED NOT 

BE TREATED AS ONE CHALLENGING HIS VERY FIRST.

(26) It would seem the answer to the second question is easily subsumed 

within the answer to the first since neither a first-time felon nor one pardoned may 

resort to the collateral consequences doctrine under Rule 61 any longer. But given 

the mandate of the Remand Order, the Court should explain the general effect of a 

pardon of a prior felony conviction in any collateral consequences analysis that 

might be envisaged.

64 Remand Order ¶ 10 (citation omitted)).

65 Both our Supreme Court and the United States Supreme Court have confirmed the specificity 

requirement. Gural itself acknowledged collateral consequences cannot be stated in “general 

terms, with no specificity.” 251 A.2d at 345. And while Carafas first suggested that voting or 

serving on a jury could be sufficient collateral consequences to overcome mootness, the United 

States Supreme Court later in Spencer v. Kemna rejected decades of case law “accept[ing] the most 

generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to 

conviction.” 523 U.S. at 10. 
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(27) “Except as otherwise provided by the Delaware Constitution, or 

expressly by any provision of the Delaware Code or any court rule, the granting of 

an unconditional pardon by the Governor shall have the effect of fully restoring all 

civil rights to the person pardoned.”66 But the Governor of Delaware may issue a 

pardon either with conditions or unconditionally.67 So a pardoned felon, depending 

on the conditions imposed by the pardon, might regain many or most civic abilities 

lost by the felony conviction, but not all.

(28) And even an unconditionally-pardoned felony conviction still has 

lasting effects; “[w]hile the pardon may have forgiven [a] conviction, it d[oes] not 

obliterate the public memory of the offense.”68 

(29) In other words, a pardon doesn’t necessarily create a clean slate.69 

And that is an important consideration when balancing the various finality 

considerations mentioned before, the now-express limitations of our state 

postconviction rule, and fairness considerations. Put simply, one pardoned of a 

felony does not sit in precisely the same place as one first-convicted. And any resort 

to a collateral consequences rule, if any remains, need not be the same for the two. 

66 DEL. CODE ANN. tit. 11, § 4364 (2022); see Heath v. State, 983 A.2d 77, 82 (Del. 2009); see 

e.g., DEL. CODE ANN. tit. 10, § 4509(b)(6) (disqualifying from jury service “[c]onvicted felons 

who have not had their civil rights restored” (emphasis added)). 

67 Heath, 983 A.2d at 80; DEL. CODE ANN. tit. 11, § 4364 (2022). 

68 State v. Skinner, 632 A.2d 82, 85 (Del. 1993) (citations omitted).

69 Id. at 85 (“[A] pardon does not erase guilt.”). 
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(30) So, to answer the Supreme Court’s second question: when balancing 

the finality, resource, and fairness factors that contour any collateral consequences

rule, a pardoned felon need not necessarily be treated the same as one challenging 

his first conviction.

CONCLUSION

(31) The collateral consequences doctrine is no longer applicable under this 

Court’s current Rule 61. Having now had an opportunity to engage in this more 

thorough examination, the Court finds its reference to such in its earlier sua sponte

dismissal order was unnecessary. As now expressed, Rule 61’s “in custody” 

requirement is without exception. That said, were collateral consequences 

exceptions to that requirement crafted, the Court suggests it should compel—from

any movant: (i) specificity; and (ii) a showing of a strong inference of actual

innocence or that the Court lacked jurisdiction to convict and sentence in the matter. 

Lastly, a pardoned felon need not be treated the same as a first-time felon for 

purposes of applying a potential collateral consequences rule under Rule 61. So as 

for Mr. Martin, he cannot resort to the collateral consequences doctrine to revive his 

Rule 61 postconviction motion. 

 SO ANSWERED this 28th day of November, 2022.

 

 Paul R. Wallace, Judge