State of Delaware v. Chrichlow.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
v.
KEINO CHRICHLOW,
Defendant.
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ID No. 0611011396
Submitted: December 26, 2012
Decided: March 28, 2013
ORDER
Upon Defendant’s Second Motion for Postconviction Relief - DENIED.
1.
On October 23, 2012, Defendant filed this, his second motion
for postconviction relief. The motion was properly referred and after preliminary
review, the court determined that all the claims were procedurally barred, with one
reservation: Defendant makes a claim under the recently decided Martinez v. Ryan.1
2.
Accordingly, the court ordered the State to respond to the
Martinez issue, which the State submitted on November 26, 2012. Defendant did not
reply in the allotted time. Thus, the matter was on submission effective December 26,
2012.
1
566 U.S. –––, 132 S.Ct. 1309 (2012).
3.
In the end, the court agrees with the State that this is simply one
of the scores of cases filed in reliance on Martinez where Martinez does not apply.
There is, however, a procedural twist to this case that bears mention.
4.
As explained in the first postconviction relief motion’s decision,
by the time Defendant’s direct appeal was due, the State had already filed its appeal
from the post-trial decision reducing several convictions from robbery first degree to
aggravated menacing.2 Although Defendant had court-appointed appellate counsel
who successfully resisted the State’s appeal,3 Defendant’s appellate counsel did not
file a direct appeal on his behalf.
5.
As also explained in the first motion for postconviction relief
decision, Defendant had one potentially viable ground for appeal. That stemmed
from trial counsel’s failure to pursue an Allen v. State4 claim concerning his
culpability as an accomplice.
6.
To assist in the first postconviction relief matter, the court
obtained appellate counsel’s Horne5 affidavit. Appellate counsel explained that he did
2
State v. Chrichlow, 2011 WL 7063684 (Del. Super. Dec. 28, 2011) (Silverman, J.).
3
State v. Bridgers, 970 A.2d 257 (Del. 2009) (TABLE).
4
970 A.2.d 203 (Del. 2009).
5
Horne v. State, 887 A.2d 973 (Del. 2005).
2
not believe Defendant’s Allen argument was meritorious and, accordingly, he did not
pursue it. He also, however, did not file a Supreme Court Rule 26(c) motion.
7.
Taking what happened during the direct appeal into account, the
court used the first motion for postconviction relief as a vehicle to give Defendant his
opportunity to present the claim he would have made on direct appeal. In other
words, the court determined that the claim was not procedurally barred and the court
addressed the claim consistent with Middlebrook v. State.6 The court considered
the claim substantively and rejected it. Defendant took an appeal and the first motion
for postconviction relief’s denial was affirmed.7
8.
In summary so far, although Defendant’s direct appeal was
procedurally irregular, as a practical matter he now stands in the position of a
convicted defendant whose direct appeal was presented under Supreme Court Rule
26 (c). That means, in effect, he had counsel for appellate purposes, but he did not
have counsel’s assistance to pursue his ineffective assistance of counsel claim
through a postconviction relief proceeding. Hence, his Martinez claim now.
6
918 A.2d 1170 (Del. 2007) (TABLE).
7
Chrichlow v. State, 49 A.3d 1192 (Del. 2012) (TABLE).
3
9.
The court agrees with the State’s argument that Martinez v. Ryan
is inapplicable. Martinez merely allows a federal habeas court to hear substantial
claims of ineffective assistance of counsel at trial if, in the initial-review collateral
proceeding in the state court, there was no counsel or counsel in that proceeding was
ineffective.8
10.
Martinez does not apply to state courts. So, it does not require,
in circular fashion, that Delaware must automatically underwrite the cost of hiring
a new lawyer in every case to overcome the strong presumption that a convicted
defendant’s trial and appellate attorneys were effective.9
11.
retro-actively.
Moreover, Martinez speaks directly about whether it is applies
Qualifying its decision as an “equitable ruling” rather than a
“constitutional ruling,” Martinez holds:
A constitutional ruling would provide defendants a
freestanding constitutional claim to raise . . . and it would
require a reversal in all state collateral cases on direct review
8
Martinez, 566 U.S. at –––, 132 S.Ct.at 1320. (“Where, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.”).
9
See State v. Finn, 2012 WL 2905101, at *2 (Del. Super. July 17, 2012) (Parkins, J.)
(“Martinez did not change Delaware’s longstanding rule that defendants are not entitled
postconviction relief counsel.”); State v. Rodgers, 2012 WL 3834908, *2 (Del. Super. Aug. 30,
2012) (Parkins, J.)
4
from state courts if the State’s system of appointing counsel
did not conform to the constitutional rule. An equitable
ruling, by contrast, permits States a variety of systems for
appointing counsel in initial-review collateral proceedings.
And it permits a State to elect between appointing counsel in
initial-review collateral proceedings or not asserting a
procedural default and raising a defense on the merits in
federal habeas proceeding. In addition, state collateral cases
on direct review from state courts are unaffected by the ruling
in this case.10
That provides a second reason why Martinez does not undermine the first motion for
postconviction relief, at least not here.
12.
Finally, the initial finding that Defendant’s other claims are
procedurally barred includes the conclusion their re-review is not warranted under
Rule 61's interest of justice exception.
For the foregoing reasons, Defendant’s second motion for postconviction
relief is DENIED.
IT IS SO ORDERED.
/s/ Fred S. Silverman
Judge
oc: Prothonotary, (Criminal Division)
pc: Josette D. Manning, Deputy Attorney General
Keino S. Chrichlow, Defendant
10
Id. at 1319-20.
5
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