IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) )

v. ) I

. D

. No. 1 702005493 ) Cr. A. Nos. P N1 7

- 0 2

- 1754 , etc. DARNELL D. MARTIN , ) D efendant. )

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 complete d

while his postconviction proceeding w as 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 a s moot. His appeal

of that dismissal is now before th is 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- 2

-

after two years for 18 months of supervised probation

. 1 The two years of

unsuspended imprisonmen t comprise d 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

target ed 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 an d Mr. Martin’s

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

. 5 That

amended motion charge d 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
discharge d from probation with no further obligations remai ning under the imposed

1 State v. Martin , 2019 WL 1126059, at *1 (Del. Sup e r. 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. 1 2 , 2018) (D.I. 31).

2 D EL

. C ODE A NN

. 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 sent ence [ ] 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

C ourts have long and consistently held that relief under Rule 61 is not available

. 9

Accordingly
, Mr. Martin’s postconviction motion was dismissed as moot 10 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 onl y 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. De c. 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. Fe b. 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. C rim . 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).- 4

-

he l ost standing to challenge his convict ion and completed sentence. 11 The Court

noted in its sua sponte dismissal order 12 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 th is 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 con cluding 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 pre

amendment 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, 20 09) (“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) (se tting 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 se ntenced 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 then

pending Rule 61 motion (citation omitted) ).- 5

-

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 c ore

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

firearms and ammunition

. 17

(6) While consider ing 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 th e 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 als o 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

.- 6

- DISCUSSION

A. C OLLATERAL C ONSEQUENCES AND F EDERAL H ABEAS C ORPUS

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

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

habeas corpus. In Carafas v. LaVallee , the C ourt 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, becaus e collateral consequences of the conviction remained

. 21

(7) Concerning some collateral consequences the Carafas petitioner m ight

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 n ot 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 , 5 2 3 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

. T he 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 rul e.
[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 h abeas 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 lo ng 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 gr anted 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 St ate court proceeding.” (emphasis added) ).

24 Carafas , 391 U.S. at 237 (emphasis added)

.- 8

-

his sentence

. The federal habeas corpus statute does not require this result. 25

Thus, the C ourt 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. D ELAWARE ’ S T REATMENT OF C OLLATERAL C ONSEQUENCES AND I TS P OSTCONVICTION P ROCEDURAL R ULES
( 10 ) T he 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 C iting Carafas
,
Gural challenged the State’s motion to dismiss for mootness. 31

( 1 1 ) Our Supreme Court ultimately dismissed h is 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 23 7

- 42.

27 251 A.2d at 344

- 45

. 28 Id. at 344.

29 See id.

30 Id.

31 Id. at 344

- 45.- 9

-

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

( 1 2 ) Two decades later, b efore Delaware courts ever had occasion to revisit

Gural ’s collateral consequences discussion
, th is Court ’s Criminal Rule s 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. Lewis 38

— 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

.- 10

-

contextualize d 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.

T he equitable considerations presently allowable under Gural are not limited to the ‘f

airness ’ 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, coul d 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 suc h 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 C ourt

— r eflecting one an earlier collateral

consequences discussion in Guinn v. State 40

— 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 120 1 (alteration and emphasis added) ( citation s omitted).

40 1993 WL 144874

.- 11

-

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 re a ffirmed th at 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 ch allenged sentence have agreed that

such relief under Rule 61 is not available

. ” 43 Thus, h aving 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 R ule has narrowed through subsequent amendment;

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

the Court should n’t apply t he 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 n obis 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 th e 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.- 12

-

C. I F A T A LL , A F IRST
- T IME F ELON M IGHT R ESORT TO G URAL IN V ERY L IMITED C IRCUMSTANCES
. (16) Whether a felon fac es 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 wa s 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 sente nce 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 balanc e the interests of finality and fairness in legal proceedings. Finality

R. 6 1 (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 o f 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. Weid man , 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 120 1 (emphasis added) (citing Gural , 251 A. 2 d at 34 4 )

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

. 49 Id. (emphasis added) (quoting Guinn, 1993 WL 144874, at *1 )

.- 13

-

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 f rom 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 on e, 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 litigatio n 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 th at 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 W AKE F OREST J.L. & P OL ’ Y 179, 18 8 (2014) (citations omitted).

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

- reduction applications

ma de more than 90 days after sentencing ); Del. Super. Ct. Crim. R. 61(i)(1) ( requiring a post

conviction 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).- 14

-

(18) Undoubtedly influenced by the same considerations of practicality,

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

significantly restr ict the scope of federal habeas review post

- Carafas

. 54 S ome
postconviction claims are no longer cognizable if state courts offer a separate

m echanism for review

. 55 P rocedural 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 a ttacks 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. 46 5, 4 81

- 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) )

.- 15

-

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 R ule

. 61 As Rule 61

requires that a petitioner must be in custody
, i t is Mr. Martin’s status as one no longer

in custody that preclud es 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

—

neith er 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 now

clearly

- 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 i n accordance with Rule 61 as it exists at the time the motion is filed” (citations omitted)); s ee 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) )

.- 16

-

(22) If
, however, t he collateral consequences doctrine were to apply to

current Rule 61

— which th e Court believe s it does not

— it sh ould be lim ited to just

the circumstance s denoted by Ru le 61 ’ s most importan t procedural

- bar exceptio ns

.
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

C ourt lacked jurisdiction to convict and sentence her.

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

C ourt lack s 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 reac h. 63

(24) But th ese are not

— even under Gural

— the only limitation s 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 a n 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) ; Sto ne , 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))

.- 17

-

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, (ii i) 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 th is simple listing of consequences cannot possibly satisfy the

specif icit y and particularity requirement because these consequences are shared

among all felons

— first

- time or other

. 65

D. N O M ATTER W HAT , O NE P ARDONED OF A F ELONY C ONVICTION N EED N OT
BE T REATED A S O NE C HALLENGING H IS V ERY F IRST
. (26) It would seem t he answer to the second question is easily subsumed

within the answer to the first since neither a first

- time felon n or one pardoned may
resort to the collateral consequences doctrine under Rule 61 any longer. But given

the mandate of the R em and O rder, 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 hypothet ical of consequences as sufficient to avoid mootness in challenges to conviction.” 523 U.S. at 10.- 18

-

(27) “E xcept 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 t he Governor of D elaware 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 a ny resort
to a collateral consequence s rule, if any remains, need not be the same for the two

.

66 D EL

. C ODE A NN

. tit. 11, § 4364 (20 22 ) ; s ee Heath v. State , 983 A.2d 77, 82 (Del. 2009) ; see e.g. , D EL

. C ODE A NN

. 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; D EL

. C ODE A NN

. 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.”).- 19

-

(30) So, to answer the Supreme Court’s second question : when balancing

the finality, resource, and fairness factors that contour any collateral consequence s

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. H aving now had an opportunity to engage in this more
thorough examination , th e Court finds its reference to such in its earlier sua sponte

dismissal order was unn ecessary

. As now expressed, Rule 61’s “in custody”

requirement is without exception. That said, were collateral consequences

exception s to that requirement crafted, the Court suggests it should compel

— f rom

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

innocence or that the C ourt 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 , 20 2 2

.

P aul R. W allace , J udge