D. Warren, Justice.
the court is petitioner's motion to file a second amended
petition including claims of ineffective assistance against
bis appellate counsel. This motion is opposed by the State
and has required the court to review the trial transcript and
the appellate briefs.
history of this post conviction proceeding has been a source
of considerable frustration and delay. It was originally
filed in March 2014. After counsel was appointed and after a
short extension, an amended petition was filed on July 3,
2014. That petition contended (1) that a plea offer had not
been communicated to Sterling, (2) that trial counsel had
assured Sterling he would never be convicted, (3) that trial
counsel had failed to raise a Brady argument with
respect to certain discovery violations, (4) that counsel had
failed to obtain a presentence investigation for purposes of
sentencing, and (5) that the State had also violated
Brady by withholding information relating to the
victim's criminal record. The amended petition also
vaguely alleged that trial counsel should have called
additional witnesses and offered additional evidence at
There was a significant delay in scheduling a conference with
counsel, but after various attempts by the clerk's office
to schedule a conference, one was finally held on September
10, 2015. After tbat conference the court issued an order
dated September 11, 2015, requiring Sterling's counsel to
specify the identity of the witnesses Sterling contended
should have been called at trial, the nature of the testimony
Sterling contended those witnesses would have given if
called, and the nature of any other evidence that Sterling
contended should have been offered by trial counsel. That
order also ordered Sterling to flesh out other aspects of his
amended petition, 3. The deadline for submission of the offer
of proof was November 10, 2015. However, counsel for
petitioner sought an extension to the end of December and
then Sterling, acting pro se, sought and received a further
extension to the end of January 2016. After a short
additional extension, the offer of proof was filed on
February 2, 2016.
February 2016 offer of proof was lengthy but confusing, and
as to some issues the court was unable to discern what
evidence would be offered beyond the evidence already in the
trial record. A second conference with counsel was held
on April 7, 2016, at which time counsel for petitioner stated
that he was considering whether to seek to amend the petition
a second time to assert claims of ineffectiveness by
appellate counsel. The court issued an order dated April 8,
2016 noting that the State would likely oppose a further
amendment and giving Sterling a deadline of May 6, 2016 in
which to file any motion to file a second amended petition.
That order also directed Sterling to remedy defects in his
offer of proof.
Counsel for petitioner sought and obtained a one week
extension of the May 6 deadline. However, Sterling's
motion to file a second amended petition and his amended
offer of proof were not actually filed until June 1, 2016.
State responded that at this late date Sterling should not be
given further opportunities to raise additional grounds and
that the grounds that Sterling is seeking to add are
demonstrably without merit.
Rather than solely considering the untimeliness of
Sterling's motion for leave to file a second amended
petition, the court has reviewed the underlying file, the
trial transcript, and the appellate briefs.
Sterling contends that his trial counsel, Derrick Banda, did
not adequately object to certain alleged prosecutorial
misconduct during cross-examination and summation and that
his appellate counsel, William Maselli, did not adequately
raise those issues on appeal. The trial transcript, however,
offers no support for Sterling's contention that the
prosecutor stood up and "interrupted the
cross-examination" of the victim to tell the jury that
the victim was traumatized. Proposed Second Amended Petition
¶ 4. In addition, although petitioner now contends that
the prosecutor stated her personal opinions as to the
credibility of the victim, a review of the closing argument
demonstrates that the prosecutor's arguments were
expressly based on the trial evidence. The amended
petition also contends that there was no basis for the
prosecutor's statement that the victim was afraid for her
life. However, the victim in fact testified, "I thought
I was going to die." Trial Tr. 73.
proposed amended petition also contends that appellate
counsel did not adequately brief the State's alleged
Brady violation. Proposed Second Amended Petition
¶ 5. That issue, however, was expressly raised at pages
12-21 of Maselli's appellate brief and was addressed by
the Law Court in its Memorandum Decision affirming the
conviction. State v. Sterling, Docket No.
Cum-12-497, Decision No, Mem. 13-137 (December 24, 2014).
Finally, tiie proposed amended petition attempts to resurrect
the argument that the jury instructions were flawed based on
the definitions of "bodily injury" and
"serious bodily injury." Proposed Second Amended
Petition ¶ 7. That argument was raised in Masellrs
appellate brief at pages 10-12 and was expressly rejected by
the Law Court in its memorandum decision.
proposed second amended petition was untimely, The motion to
amend was not filed until 23 months after the amended
petition and, if granted, would inevitably cause further
delay. Moreover, the court cannot find that the proposed
amendments raise any legitimate grounds for granting
post-conviction relief. Accordingly, the court does not find
good cause for the proposed amendment, U.C.D. Rule 70(c)(3),
and the motion to amend is denied.
separate order shall be issued with respect to
petitioner's Amended Offer of ...