State v. Galindez, ID 1712008053

CourtSuperior Court of Delaware
Writing for the CourtSheldon K. Rennie, Judge
Docket NumberID 1712008053
Decision Date18 November 2022



ID No. 1712008053

Superior Court of Delaware

November 18, 2022

Submitted: August 5, 2022


Sheldon K. Rennie, Judge

On this 18th day of November 2022, upon consideration of Defendant, Ivan Galindez's ("Defendant") Motion for Postconviction Relief ("Motion"), [1] trial counsel's affidavit in response to claims of ineffective assistance of counsel,[2] the State's response to the Motion,[3] the parties' supplemental briefing,[4] and the record in this case, it appears that:

I. Factual and Procedural History

1. On December 12, 2017, a police officer of the Wilmington Police Department was dispatched in response to a 911 call reporting a robbery. Upon arrival, the officer observed Jorge Luis Franco Martinez (the "victim") in obvious


distress, bleeding from the face and head areas. Also present at the scene was Richard Canongo, who stated he had called 911 when he heard the victim yelling for help.

2. The victim reported to the police that, at approximately 9:00 p.m. on December 12, 2017, he drove to Rodriguez Food Market, near W. 4th and Connell Streets in Wilmington, to buy groceries. When the victim was returning to his parked vehicle, he was approached by a man who demanded money. When the victim refused, the man struck him in the face and head with a metal object (possibly brass knuckles) repeatedly, eventually knocking him to the ground. Amidst the struggle, the victim managed to enter his vehicle, but was unable to drive away before the man broke the driver' side window and held a pointed object to his neck. The victim then turned over his money and the man fled.

3. On December 13, 2017, the day after the incident, the victim spotted the man who robbed him in the same area and the man was dressed the same as the night before. The victim took a picture of the man on his cellphone and later provided the photo to the police. Based on the photo, the police obtained a warrant and arrested Defendant on December 14, 2017. When Defendant was processed, a photograph was taken of him and included in a six-pack photo line-up. When presented with the photo line-up, the victim immediately identified Defendant as the man who robbed him. The photo array was later introduced at trial.


4. At trial, the victim testified to the foregoing, explained that he saw Defendant's face clearly on the night of the attack, and identified Defendant in court as his assailant. The person who called 911 after the incident, Richard Canongo, also testified at trial. He gave his account of the incident, which was substantially consistent with the victim's. Canongo also testified that the man pictured in the photograph taken by the victim was the man who assaulted and robbed the victim.

5. On August 16, 2018, after a two-day jury trial, Defendant was found guilty and convicted of one count of Robbery First Degree, one count of Assault First Degree, two counts of Possession of a Deadly Weapon During the Commission of a Felony, and one count of Criminal Mischief under $1,000 Damage to Property.[5] On January 18, 2019, Defendant was sentenced to fifty-four years of Level V imprisonment, followed by concurrent probation for two years and six months.[6]Defendant filed a timely Notice of Appeal to the Delaware Supreme Court.[7] On October 30, 2019, the Delaware Supreme Court affirmed Defendant's convictions.[8]

6. On January 17, 2020, Defendant filed a pro se Motion for Postconviction Relief and Motion for Appointment of Counsel, under Superior Court Criminal Rule


61.[9] On July 9, 2020, the Court granted Defendant's Motion for Appointment of Counsel.[10] On September 24, 2021, an Amended Motion for Postconviction Relief (the "Amended Motion") was filed by Defendant's postconviction counsel on his behalf.[11] On January 5, 2022, Defendant's trial counsel filed an affidavit in response to Defendant's claims of ineffective assistance of counsel.[12] On March 9, 2022, the State filed a response to Defendant's Amended Motion for Postconviction Relief.[13]On June 1, 2022, Defendant filed a supplement[14] to the Amended Motion, to which the State filed a supplemental response[15] on August 5, 2022. This matter is now ripe for the Court's consideration and decision.[16]

II. Standard of Review

7. Superior Court Criminal Rule 61 is the exclusive remedy for persons "in custody under a sentence of this court seeking to set aside the judgment of conviction


...."[17] In considering a motion for postconviction relief, the Court "must first consider the procedural requirements of Rule 61 before addressing any substantive issues." [18] The procedural bars of Rule 61 include: timeliness, repetitiveness, procedural default, and former adjudication.[19] This is Defendant's first Rule 61 Motion and it was filed within one year after the judgment of conviction became final. The Motion is therefore timely and not repetitive. The Court will then address whether the Motion satisfies other procedural requirements under Rule 61(i), and if yes, will consider the Motion on its merits.

III. Analysis A. Newly Discovered Evidence

8. Defendant contends that there is new exculpatory evidence not presented at trial that warrants postconviction relief. The State argues that this claim is procedurally barred under Rule 61(i)(3) because it was not asserted in the proceedings leading to the judgment of conviction and does not fall within the exceptions provided under Rule 61(i)(5).


9. Rule 61(i)(3) provides that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights."[20]Here, Defendant contends that he has become aware of a new eyewitness named Robert Perry Figgs, who is willing to testify that Defendant "acted in self-defense" in the incident for which he was convicted.[21] Specifically, the new eyewitness will testify that the victim "initiated an argument with [Defendant] and "threw the first punch." The claim of self-defense, supported by testimony of a proposed eyewitness, could have been, but was not, raised at trial or upon direct appeal. [22] Defendant also fails to show "cause for relief" from the procedural default. Defendant contends that the failure to present the self-defense claim at trial was due to his trial counsel's deficient performance in failing to discover and identify the eyewitness. As will be discussed in detail below, the Court finds that the trial counsel's alleged failure to


identify this eyewitness or pursue a self-defense claim falls short of ineffective assistance of counsel, which is required to constitute cause for relief from the procedural default.[23] Therefore, the petition for relief based on purported newly discovered evidence that supports a self-defense claim is barred under Rule 61(i)(3).

10. Defendant's newly discovered evidence claim could otherwise proceed if it satisfies one of the exceptions provided under Rule 61(i)(5). Rule 61(i)(5) provides that the bars to relief in paragraphs (1)-(4) of Rule 61(i) do not apply to a claim that "pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted."[24] "Actual innocence" requires "more than innocence of intent; it requires new evidence that a person other than the petitioner committed the crime."[25]

11. In State v. Taylor, the defendant asserted in his second postconviction motion that there was new evidence that negated the requisite intent for his


conviction of First Degree Murder, the particular offense at issue in that case, and thus proved that he was actually innocent of that crime.[26] This Court rejected that argument, finding that the defendant offered no evidence that shows he did not kill the victim.[27] The Taylor court relied upon a 10th Circuit case, Long v. Peterson, where the federal court found that "actual innocence means factual innocence, not legal innocence", and that the defendant was not factually innocent, because he "admits his actions caused his father's death", although he claimed "he only intended to hurt his adoptive father, not kill him."[28] The Taylor court held that the proffered evidence that purported to show the defendant's lack of intent fails to meet Rule 61's actual innocence standard.[29]

12. In the instant case, the proffered newly discovered evidence likewise fails to show that Defendant is factually innocent of the underlying crimes of which he was convicted. Defendant does not contend that he did not rob or assault the victim or cause his injuries; nor does he allege that someone else committed those crimes. The alleged new evidence simply purports to show that Defendant conducted all


those acts out of self-defense. This concerns the legal sufficiency of Defendant's conviction at best and does not create an inference that Defendant was "actually innocent in fact." Accordingly, Defendant's claim regarding the newly discovered evidence fails to overcome Rule 61's procedural bar.

B. Ineffective Assistance of Counsel

13. Defendant in his pro se Motion raised several claims based on ineffective assistance of counsel.[30] It is well-established under Delaware law that a claim of ineffective assistance of counsel is not barred under Rule 61(i)(3) because it could not have been raised in the proceedings leading to his conviction.[31] The ineffective assistance of counsel claims are first raised in this Motion and were not formerly adjudicated. Therefore, these claims are not procedurally barred, and the Court will consider them on the merits.

14. To prevail on an ineffective assistance of counsel...

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