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, 2022

Decided: May 24, 2022

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 24th day of May, 2022, having considered Michael T. Washington’s 

(“Washington”) Motion to Set Aside Judgment,1treated 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,2it 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 imprisonment 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 cell 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.

3Washington v. State, 2011 WL 4908250, at *1 (Del. 2011).

4

Id.
3

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

The Delaware 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 postconviction 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 Superior 

Court.

11 The Supreme Court affirmed that 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 granted 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, through counsel, Washington filed an amended 

second motion on April 28, 2020.

18 The State filed its Response on March 1, 2021.19

 

Next, postconviction counsel sought, and was granted a stay of his reply until the 

Delaware Supreme Court issued its opinion in Purnell v. State.

20

 That opinion was 

issued on June 17, 2021. Washington filed reply 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 created a 

strong inference that he was “actually innocent.” He argued three pieces of new 

evidence existed that undermined confidence in the result of his trial. 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

witness 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 Firearms Examiner 

Carl Rone (“Rone”) misled the jury by misrepresenting his credentials and his 

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

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

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

related to Fields and Rhone were not raised on direct appeal or in his first 

postconviction relief motion.26 Additionally, the State argued that Washington had

failed to overcome the bars to relief erected by Rule 61 because his claims were 

neither newly discovered, nor did they establish actual innocence.27

6. On November 9, 2021, this Court denied Washington’s Second 

postconviction relief motion.28 This Court held that Washington’s motion was

procedurally barred under Rule 61 because it was untimely, successive, and raised

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 those bars because the evidence he produced was either not newly 

discovered, failed 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 Rules 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 default 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 Accordingly, 

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 Rules 60 and 55 are not made 

applicable by Criminal Rule 57(d). Civil Rules 60 and 55 cannot serve as a vehicle 

for obtaining relief in Washington’s criminal case.33

9. Treating the Motion as one under Rule 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 claims 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 Supplement 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 third Motion 

for Postconviction Relief is SUMMARILY DISMISSED. The Motion to Amend 

and Supplement is MOOT.

IT IS SO ORDERED. 

/s/ Ferris W. Wharton

Ferris W. Wharton, J.