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, 2014

On 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 18th day of June 2014, upon consideration of Defendant’s Third 

Motion for Postconviction Relief, it appears to the Court that:

1. Defendant Curtis Demby (“Defendant”) was initially found 

guilty in March 1996 of First Degree Murder and Possession of 
2

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 First 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 took no appeal.6

 His Second Motion for 

Postconviction Relief was filed in July 2006. It was denied on 

the basis that the motion was time-barred. 7

3. Defendant filed this current Third Motion for Postconviction 

Relief on March 18, 2014.8

 Defendant subsequently 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 Second Motion for 

Postconviction Relief, “there is no constitutional right to the 

provision of a free trial transcript for the preparation of a post-

 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 Relief. 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 Proceed 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 requests 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 recently 

affirmed a defendant’s Third Motion for Postconviction Relief 

as procedurally barred and denied 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 procedurally 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 judicial 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 

dismissing 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 Motion for Postconviction 

Relief, the Court must first apply the procedural bars of Superior 

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 colorable 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 exceeds time limitations if it is filed 

more than one year after the conviction is finalized or it asserts

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. “If 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 for 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 conclusory 

 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 aff'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). 25Super. 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 

Postconviction 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 conclusory 

allegations in support of his claims and provides no further 

supplementation. 

Defendant’s arguments in support of his claimed grounds for 

relief are set forth, in toto:

Ground One: Ineffective assistence [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 appeal

My lawyers failed to appeal decision by lower court 

that statements made by me after request for 

attorney were admissable

Ground Three: Violation of right too [sic] counsel

I request a attorney, and statements here used 

against me in violation of my 5th amendment rights.

 29 State v. Owens, 2002 WL 234739, at *1 (Del. Super. Jan. 11, 2002). 30 See, e.g., State v. Robbins, 1996 WL 769219, at *1 (Del. Super. Dec. 18, 1996). 31 Black’s Law Dictionary, (9th ed. 2009). 32 Demby, 2007 WL 214411, at *1.
6

I just didn’t know. Im no legal tactiction Im 

unfamiliar with the rules of the court and laws and 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 summarily 

dismissed. 

Defendant’s Motion for 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 requesting 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 issued 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 issues – 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 trial (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).