IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

)

STATE OF DELAWARE ) ) I.D. No. 9412011308

v. ) )

CURTIS L. DEMBY ) )

Defendant )

Submitted: April 1, 2014

Decided: June 18 , 201 4

O n Defendant’s Third Motion for Postconviction Relief.

DENIED

.

On Defendant’s “Motion for Trial Transcripts as well as to Proceed Informa Pauperis

. ”

DENIED

.

ORDER

Joseph S. Grubb , Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

Curtis L. Demby

, Smyrna, Delaware, pro se

.

COOCH, R.J.

This 18 th day of June 201 4 , upon consideration of Defendant’s Third

Motion for Postconviction R elief, it appears to the Court that:

1. Defendant Curtis Demby (“Defendant”) was initially found guilty in March 1996 of First Degree Murder and Possession of2 a Firearm During the Commission of a Felony. 1 Defendant’s conviction was reversed and remanded by the Supreme Court of

Delaware. 2 At Defendant’s second trial, he was again found guilty of the same charges and the conviction was affirmed by the Supreme Court. 3 He is currently serving a life sentence without possibility of probation or parole for the murder conviction plus an additional twenty years for the firearms

offense. 4

2. Defendant’s F irst Motion for Postconviction Relief was filed in January 2003. That motion was a collection of conclusory allegations stating “see memorandum” in lieu of support. 5 That

memorandum was never filed, the motion was denied

, and

Defendant to ok no appeal. 6 His S econd Motion for

Postconviction Relief was f iled in July 2006. It was denied on

the basis that the motion was time

- barred. 7

3. Defendant filed this current T hird Motion for Postconviction Relief on March 18, 2014. 8 Defendant subsequen tly filed an

Amendment to his Motion for Postconviction Relief stressing his request for counsel. 9 Defendant also submitted several miscellaneous documents with the Court requesting access to transcripts and to proceed in forma pauperis

. 10 Defendant contends that he cannot “file any successful claims” without transcripts. 11

4. As discussed previously in his S econd Motion for Postconviction Relief, “there is no constitutional right to the provision of a free trial transcript for the preparation of a pos t

-

1 State v. Demby , 2007 WL 214411, at *1 (Del. Super. Jan. 25, 2007).

2 Demby v. State , 695 A.2d 1152 (Del. 1997).

3 Demby v. State , 744 A.2d 976 (Del. 2000).

4 Def.’s Mot. for Postconviction Relief at 1.

5 Ltr. dated June 3, 2003 from the Court to Mr. Bunitsky and Mr. Demby.

6 Demby , 2007 WL 214411, at *1.

7 Id. at *2.

8 Def.’s Mot. for Postconviction Rel ief.

9 Def.’s (Notice Amend.) Please Attach to Post

- Conviction and Accompany Letter/Mot. Req. Counsel.

10 Def.’s Mot. for Trial Transcr. as well as to Proceed Informa Pauperis, Docket #293 (Feb. 20, 2014),

Def.’s Mot. for Trial Transcr. as well as to Procee d Informa Pauperis, Docket #294 (Feb. 27, 2014), Def.’s Mot. for Trial Transcr. as well as to Proceed Informa Pauperis, Docket #287 (Mar. 6, 2014), Def.’s Amend. to Trial Transcr. Req. Mot., Docket #292 (Apr. 1, 2014).

11 Def.’s Amend. To Tr. Transcr.

– Req . Mot. (3

- 6

- 14) Filed Date at 2.3 trial motion.” 12 “[I]t is within the discretion of the judge who

has examined the motion and contents of the record to determine whether to order the preparation of a transcript of any part of the prior proceedings.” 13 For reasons stated below,

Defendant ’s claims are either devoid of merit or are procedurally barred and will not be aided by the preparation of transcripts. Therefore the Motion for Transcripts is DENIED

.

5. Defendant also states that he is indigent and request s to proceed in forma pauperis . “A consideration of the motion to proceed in forma pauperis requires a consideration of the petition.” 14 In

Buchanan v. State , the Delaware Supreme Court r ecently

affirmed a defendant’s T hird Motion for Postconviction Relief as procedurally barred and d enied his motion to proceed in forma pauperis nunc pro tunc

. 15 It held his claims were either “previously considered and rejected” or “frivolous because [he] had no legal or equitable right to the appointment of counsel to pursue claims that were procedura lly barred.” 16 Again, for reasons stated below, this Court also holds his Motion to

Proceed In Forma Pauperis is frivolous and therefore

DENIED

.

6. Defendant requests counsel based on a retroactive application

of the Martinez v. Ryan decision. 17 Defendant’ s reliance on

Martinez is misplaced. The holding in Martinez “ permits a

federal court to review a ‘substantial’ ineffective assistance of

counsel claim on federal habeas review.” 18 It does not apply to state court proceedings. 19 Martinez “did not create a new right

12 Demby , 2007 WL 214411, at *2 (quoting State v. Doran , 1992 WL 1468859, at *1 (Del. Super. June 12, 1992))

. See also State v. Bordley , 1989 WL 135691, at *1 (Del. Super. Oct. 26, 1989) (“A prisoner has no absolute right to a transcript to assist him in the preparation of a collateral attack on his conviction. Constitutional requirements are met by providing such materials only after ju dicial certification that they are required to decide the issues presented in a non

- frivolous pending case.”).

13 Doran

, 1992 WL 1468859

, at *1.

14 Johnson v. State , 2003 WL 22787631, at *1 (Del. Super. Nov. 5, 2003) (citing 10 Del. C. § 8803(b) and

dismis sing the petition as factually and legally frivolous).

15 2014 WL 2159325, at *1 (Del. 2014 ).

16 Id.

17 132 S.Ct. 1309 (2012).

18 Morrisey v. State , 2013 WL 2722142, at * 2 (Del. June 11, 2013).

19 State v. Desmond , 2013 WL 1090965, at *3 (Del. Super. Feb. 26, 2013 ); State v. Rodgers , 2012 WL 3834908, *2 (Del. Super. Aug. 30, 2012 ); State v. Finn, 2012 WL 2905101, at *2 (Del. Super. July 17, 2012) (“ Martinez does not change Delaware’s longstanding rule that defendants are not entitled postconviction relief counsel.”) ; State v. Smith , 2012 WL 5577827, at *1 (Del. Super. June 14, 2012), aff’d

, 53 A.3d 303 (Del. 2012) (TABLE).4 such as to qualify as means of relief from the procedural bar of Rule 61(i)(1). Further, since Martinez did not establish a new constitutional right, it cannot be applied retroactively.” 20

7. Before addressing the merits of a Moti on for Postconviction Relief, the C ourt must first apply the procedural bars of S uperior

Court Criminal Rule 61

. 21 If a procedural bar exists, then the Court will not consider the merits of the postconviction claim. 22

8. Under the Delaware Superior Court Rules of Criminal Procedure, a Motion for Postconviction Relief can be barred for time limitations, repetitive motions, procedural defaults, and former adjudications. 23 Procedural bars will not apply if the court lacks jurisdiction or if there is “a colora ble claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment

of conviction.” 24 A motion exceed s time limitati ons if it is filed more than one year after the conviction is finalized or it assert s a newly recognized, retroactively applied right more than one year after it is first recognized. 25 A judgment of conviction becomes final “when the Supreme Court issues a mandate or order finally determining the case on direct review.” 26

9. “I f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order f or its summary dismissal and cause the movant to be notified.” 27 “A movant must support his or her assertions with ‘concrete allegations of actual prejudice, or risk summary dismissal.’” 28

“This Court will not address Rule 61 claims that are c onclusory

20 State v. Travis , 2013 WL 1196332, at *3 (Del. Super. Mar. 25, 2013), aff'd sub nom

., Anderson v. State

, 69 A.3d 370 (Del. 2013) and af f'd, 69 A.3d 372 (Del. 2013).

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

22 Id.

23 Super

. Ct. Crim. R. 61(i).

24 Super. Ct. Crim. R. 61(i)(5).

25 Super

. Ct. Crim. R. 61(i)(1).

26 Super. Ct. Crim. R. 61(m)(2).

27 Super. Ct. Crim. R. 61(d)(4).

28 State v. Chambers , 2008 WL 4137988, at *1 (Del. Super. Aug. 25, 2008) (quoting State v. Childress

, 2000 WL 1610766, at *1 (Del. Super. Sept. 19, 2000)).5 and unsubstantiated.” 29 Sufficiently developed allegations are required in support of all grounds for relief, including claims of

ineffective assistance of counsel. 30 The word “conclusory” has been defined as, “[e]xpressing a factual inference without stating underlying facts on which the inference is based.” 31

10. All of Defendant’s grounds in his Third Motion for

Po stconviction Relief are time

- barred under Rule 61(i)( 1)

. Defendant’s judgment of conviction became final on January 26, 2000 when the Supreme Court issued the mandate in his

case. 32 As Defendant’s Motion was filed more than fourteen years after this date and it fails to cite “a colorable claim

, ” his

motion is time

- barred and therefore DENIED

.

11. Alternatively , Defendant’s Motion proffers merely c onclusory allegations in support of his claims and provides no further supplementation.

Defendant’s arguments in s upport of his claimed grounds for

relief are set forth, in toto :

Ground One: Ineffective a ssistence [sic] during trial

There were 7 mistrial request my lawyers made not the recuqisit [sic] level of challenge to the states

case

.

Ground Two: In effective assistance during a ppeal

My lawyers failed to appeal decision by l ower co urt that statements made by me after request for

attorney w ere a d m iss a ble

Ground Three: Violatio n of r ight too [sic] c ounsel

I r equest a a ttorney

, and stat ements here used against me in v iolation of my 5 th amendment r ights.

29 State v. Owens , 2002 WL 234739, at *1 (Del. Super. Jan. 11, 2002).

30 See, e.g., State v. Robbins , 1996 WL 76 9219, at *1 (Del. Super. Dec. 18, 1996).

31 Black’s Law Dictionary, (9 th ed. 2009).

32 Demby , 2007 WL 214411, at *1.6 I just didn’t know. Im no legal tac tiction Im

unfamiliar with the r ules of the court and laws a nd I

was with

- out [sic] legal assistance. 33

12. In Defendant’s Motion, he asserts a bare

- bones list of broad

, conclusory statements with no underlying facts or law which provide any basis for the asserted inferences

. Therefore, this

Court “will not address” his Rule 61 claim

. Were the claim not

time

- barred Defendant’s Motion could also be s ummarily

dismissed.

Defendant’s Motion fo r Postconviction Relief is DENIED.

IT IS SO ORDERED.

______________________ Richard R. Cooch, R.J.

oc: Prothonotary

cc: Investigative Services

33 Def.’s Mot. at 3 (capitalization adjusted for clarity). Defendant did subsequently file an Amendment to his Motion citing case law and re questing counsel. In that motion, he briefly expands upon his original grounds for postconviction relief:

My jury was effected with extraneous influences...They were threatened by a gun

- men during my trial, and my lawyer didn’t appeal the instruction iss ued or the disqualification, during my trial. There were about (7.) requests for a mis

- trial. My lawyer on appeal ... was my trial lawyer, and he was not filing ineffective of trial counsel, on him

- self. I’m no lawyer, and don’t understand many legal issu es

– but I know he was ineffective, and it would apparent with compentent[sic] counsel to assist me in my claim. My trial had a lot of issues. My other post

- conviction was denied because, I didn’t know what I was doing, and also because I don’t have my t rial (Demby II) transcripts. I need a lawyer.

Def.’s (Notice Amend.) Please Attach to Post

- Conviction and Accompany Letter/Mot. Req. Counsel. (capitalization adjusted for clarity).