IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) ID No. 0909018475 A/B )

v. ) ) MICHAEL T. WASHINGTON, ) ) Defendant, ) )

Submitted: May 20 , 202 2 Decided: May 24
, 20 2 2

ORDER
Upon Defendant’s Motion to Set Aside Judgment, Treated as Defendant’s Third

Motion for Postconviction Relief SUMMARILY DISMISSED

. Upon Defendant’s Motion to Amend and Supplement

MOOT

.

Carolyn S. Hake, Esquire, Deputy Attorney General, State of Delaware Department of Justice, 820 North French Street, Wilmington, DE 19801.
Michael Washington, James T. Vaugh Correctional Center, 1181 Paddock Road, Smyrna, DE, pro se.

WHARTON, J.2

This 24 th day of May, 2022, having considered Michael T. Washi ngton ’s
(“Washington”) Motion to Set Aside Judgment, 1 treated as Washington’s third

Motion for Postconviction Relief
, asking the Court to set aside it’s judgment denying
him postconviction relief and grant him a new trial
, and his Motion to Amend
Supplement, 2 it appears to the Court:

1. In November, 2010, Washington was convicted by a Superior Court
jury of two counts of each of Manslaughter and Possession of a Firearm During the
Commission of a Felony (“PFDCF”) in the shooting deaths of Leighton Francis and
Amin Guy, and , in a subsequent bench trial, an additional severed count of
Possession of a Firearm by a Person Prohibited (“PFBPP”). 3 Washington was
sentenced on February 11, 2011, to eighty

- six years of imprisonme nt at Level V,
suspended after sixty

- four years for decreasing levels of supervision. 4

2. Washington appealed his convictions to the Delaware Supreme Court.
He raised two issues on appeal: (1) the prosecutor committed misconduct when she

referred to a cel l phone call during her opening statement, and (2) the State’s ballistic

expert testified at trial, contrary to his report, that bullet fragments recovered in the

1 D.I. 205.
2 D.I. 206.
3 Washington v. State, 2011 WL 4908250
, at *1 (Del. 2011)

. 4 Id.3

700 block of E. 10 th Street “matched” those recovered from the victim’s bodies. 5

The Delawa re Supreme Court affirmed Washington’s convictions. 6

3. On March 7, 2012, Washington filed a timely pro se motion for
postconviction relief pursuant to Rule 61. 7 Later, Washington filed an Amended
Motion for Postconviction Relief on August 7, 2012. 8 Then, on February 25, 2013,
Washington filed a Motion for Appointment of Counsel. 9 After supplementation of

the record by trial counsel , appointment of postconvic tion counsel, the State’s
response, and postconviction counsel’s motion to withdraw, Washington filed

amendments to his pro se motion for postconviction relief in March 2016

. 10

Ultimately, Washington’s postconviction relief motion was denied by the Superi or

Court

. 11 T he Supreme Court affirmed th at decision. 12

4. On May 24, 2017, Washington filed a timely petition for federal habeas

relief. 13 In April of 2019, Washington moved to stay the federal proceedings to
“argue the newly discovered evidence in the Superior Court in order to properly

5 Id

. , at *3

- 4.
6 Id.
7 D.I. 64.
8 D.I. 77

. 9 D.I. 95.
10 D.I. 139.
11 State v. Washington, 2016 WL 6248462 (Del. Super. 2016).
12 Washington v. State, 2017 WL 1573119 (Del. 2017).
13 State’s Resp. to Def. ’s Second Mot. for Postconviction Relief, at 4 , D. I. 182

.4

exhaust his remedies and avoid any procedural issue[s]... in this district court.” 14

The District Court g ranted his motion and stayed the matter. 15 On August 30, 2019,
Washington filed his second pro se Motion for Postconviction Relief and a Motion
for Appointment of Counsel. 16 On September 9, 2019, the Court directed the
appointment of counsel. 17 Then, th rough counsel, Washington filed an amended

second m otion on April 28, 2020

. 18 T he State fil ed its Response on March 1, 2021. 19

Next, p ostconviction c ounsel sought, and was granted a stay of his reply until the
Delaware Supreme Court issued its opinion in Purnell v. State

. 20 That o pinion was
issued on June 17, 2021. Washington filed r eply to the State’s response on July 27,

2021. 21 The State responded to Washington’s reply on Aug. 26, 2021. 22

5. In his second postconviction relief motion, Washington contended he

was entitled to postconviction relief because newly discovered evidence create d a
strong inference that he was “ actually innocent. ” He argue d three pieces of new

evidence exist ed that undermine d confidence in the result of his tri al. First, inmate

14 Def. ’s Second Mot. for Postconviction Relief, at 9 , D.I. 173.
15 Id.
16 Def.’s Mot. for Postconviction Relief, D.I. 163 , 164

. 17 D.I. 165.
18 Def.’s Second Mot. for Postconviction Relief, D.I. 173.
19 State’s Resp. to Def. ’s Second Mot. for Postconviction Relief , D.I.
20 254 A.3d 1053 (Del. 2021).
21 Def. ’s Second Mot. For Postconviction Relief Reply to State’s Resp. , D.I. 197.
22 State’s Resp. to Def.’s Reply Brief, D.I. 199.5

w itness Christopher Waterman (“Waterman”) recanted his testimony. 23 Second,

inmate witness Isaiah Fields (“Fields”) was the beneficiary of a tacit sentence
reduction agreement that was not disclosed to the defense, resulting in a Brady

violation. 24 Third , the State ’ s expert ballistics witness
, Forensic Fir e arms Examiner
Carl Rone (“Rone”) misled the jury by misrepresenting his credentials and his

identification methods have been sho wn to be “subjective and unreliable.” 25 The

State argued Washington was procedurally barred from asserting a claim under Rule

61 because: (1) it wa s untimely; (2) it was a successive motion; and (3) his claims

related to Fields and Rhone were not raised o n direct appeal or in his first
postconviction relief motion. 26 Additionally, the State argue d that Washington ha d

failed to overcome the bars to relief erected by Rule 61 because his claims we re
neither newly discovered, nor d id they establish actual inn ocence. 27

6. On November 9, 2021, this Court denied Washington’s Second
postconviction relief motion. 28 This Court held that Washington’s m otion was
procedurally barred under Rule 61 because it was untimely, successive
, and raise d
grounds not asserted previously. Further, the Court held that Washington failed to

23 Def. ’s Second Mot. for Postconviction Relief, at 12 , D.I, 173

. 24 Id.
25 Id.
26 State’s Resp. to Def. ’s Second Mot. for Postconviction Relief, at 11

- 15, D.I. 182.
27 Id. , at 9.
28 State v. Washington, 2021 WL 5232259 (Del. Super. Ct. Nov. 9, 2021).6

overcome th o se bars because t he evidence he produced was either not newly

discovered, fail ed to establish actual innocence, or both. 29 The Delaware Supreme

Court affirmed this Court on April 7, 2022. 30

7. Washington now asks the Court to set aside its judgment denying his
second postconviction relief motion and grant him a new trial. He moves under
Superior Court Civil Rules 60( b )(1)
, (3) and (6) and 55(c). 31 Rule s 60 (b) (1)
, (3) and
(6) permit relief from a judgment due to mistake, inadvertence, surprise, excusable
neglect, fraud, misrepresentation, or other misconduct by an adverse party, or any
other reason justifying relief. Rule 55(c) provides for relief from d efault judgments.
A second motion, captioned Motion to Amend and Supplement appears only seek to

amend the motion to include a reference to Superior Court Criminal Rule 57(d).
That rule allows the application of an appropriate civil rule when no criminal rule
applies.

8. Superior Court Criminal Rule 61 is the exclusive remedy for inmates
seeking to set aside a judgment of conviction on any ground that is a sufficient
factual and legal basis for a collateral attack on a criminal conviction. 32 Acco rdingly,

to the extent this Motion seeks to set aside the Defendant’s convictions, the Court

29 Id.
30 Washington v. State, 2022 WL 1041267 (Del. 2022).
31 D.I. 205.
32 Super. Ct. Crim. R. 61(a)(1) and (2).7

treats it as a motion under Rule 61. Since the Superior Court Criminal Rules do
provide for a procedure for addressing the Defendant’s claims for relief from his

judgment of conviction, Superior Court Civil Rule s 60 and 55 are not made
applicable by Criminal Rule 57(d). Civil Rule s 60 and 55 cannot serve as a vehicle
for obtaining relief in Washington ’s criminal case. 33

9. Treating the Motion as one under Rul e 61, the Court finds that it is barred

for substantially the same reasons the Court found his previous postconviction

motion was barred

– it is untimely, successive, and fails to present newly discovered

evidence or actual innocence. Additionally, the cl aims raised in this motion were
formerly adjudicated in Washington’s last motion. 34

10. Summary dismissal is appropriate 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. 35 Here, it is plain to the Court from the Motion and

the record in this case that Washington is not entitled to relief.

11. Because granting the Motion to Amend and Supplement would have no
effect on the Court’s determination that the Motion to Set Aside Judgment, treated
as Washington’s third Motion for Postconviction Relief must be summarily

dismissed, the Court deems the Motion to Amend and Supp lement to be MOOT.

33 See, Fatir v. State, 2019 WL 5295397 (Del. 2019).
34 Super. Ct. Crim. R. 61(i)(4)
35 Super. Ct. Crim. R. 61(d)(5).8

THEREFORE , since it plainly appears from Motion and the record in this

case that Washington is not entitled to relief, the Motion , treated as a t hird Motion

for Postconviction Relief is SUMMARILY DISMISSED. The Motion to Ame nd
and Supplement is MOOT.

IT IS SO ORDERED.

/s/ 

### F erris W. Wha rton Ferris W. Wharton, J.