Plaintiff: William V. Devine, Jr., Esq.
Defendant: Jeanine P. McConaghy, Esq.
the Court is Petitioner Kevin Storey's (Petitioner)
application for postconviction relief (Application).
Petitioner asserts that his attorney rendered
constitutionally ineffective assistance of counsel.
Jurisdiction is pursuant to G.L. 1956 § 10-9.1-1.
pertinent facts herein are taken from the Supreme Court case
State v. Storey, 102 A.3d 641 (R.I. 2014). On
October 27, 2009, Petitioner's then wife, Danielle
Saleeba (Ms. Saleeba), awoke to Petitioner shaking her
shoulders and demanding to know why she had not told him that
David Liese, the general manager at the restaurant where she
was employed, had been working with her the previous night.
According to Ms. Saleeba, the Petitioner then struck her on
the head with an open palm and began choking her by pushing
both hands down on her throat. She managed to break the
Petitioner's hold, only to have Petitioner stick his
fingers down her throat. Next, Ms. Saleeba attempted to get
off the bed but was struck on her left temple by Petitioner
with either his fist or his elbow.
trial, Ms. Saleeba indicated that she had "blood
squirting out the side of [her] head." Petitioner
informed her eldest son, who saw Ms. Saleeba emerge from the
bedroom, that his mother had "hit her head on the
computer desk." Furthermore, Ms. Saleeba later testified
that when she looked in the mirror in the bathroom at her
wound, she saw a "big gaping hole" on her temple
that "looked like a fountain coming out the side of
[her] head." Petitioner then drove Ms. Saleeba to the
hospital, during which time he repeatedly told her,
"[t]he next time I'm going to kill you." She
received twenty-four stitches along her left temple.
days later, Ms. Saleeba informed her mother about what had
happened and spent the night at her mother's house with
her children. The next morning, Ms. Saleeba went to the East
Providence Police station where written statements were
completed and photographs of Ms. Saleeba were taken.
Petitioner was tried by a jury in March 2012 in Providence
County Superior Court on two counts of violating G.L. 1956
§ 11-5-2: one count of assault with a dangerous weapon
and one count of felony assault resulting in serious bodily
injury. The jury returned a verdict on March 30, 2012,
convicting Petitioner of assault with a dangerous weapon
(Count 1), acquitting him of assault and battery resulting in
serious bodily injury (Count 2), but convicting him instead
on Count 2's lesser-included offense of simple assault
subsequently appealed the decision of the Superior Court,
arguing the trial justice erred by (1) denying his motions
for judgment of acquittal and new trial; (2) not allowing him
to cross-examine complaining witness concerning custody
issues involving her son; and (3) imposing an illegal
sentence. The Supreme Court denied Petitioner's appeal
and affirmed the judgment of the Superior Court on November
March 27, 2015, Petitioner filed a pro se
application for postconviction relief arguing his sentence
and conviction are in violation of the United States and
Rhode Island Constitutions. This Court appointed counsel for
Petitioner, who then investigated Petitioner's claims and
filed a corresponding memorandum in support of the
Application. In July 2016, this Court conducted a
Postconviction Relief evidentiary hearing (PCR hearing) on
Petitioner's Application. A Decision is herein rendered.
remedy of postconviction relief is available to any person
who has been convicted of a crime and who thereafter alleges
either that the conviction violated the applicant's
constitutional rights or that the existence of newly
discovered material facts requires vacation of the conviction
in the interest of justice."' DeCiantis v.
State, 24 A.3d 557, 569 (R.I. 2011) (quoting Page v.
State, 995 A.2d 934, 942 (R.I. 2010)) (further citation
omitted); see also § 10-9.1-1. Postconviction
relief applications are civil in nature and thus, are
governed by all applicable rules and statutes governing civil
cases. Ferrell v. A.T. Wall, 889 A.2d 177, 184 (R.I. 2005).
Thus, "[a]n applicant for such relief bears '[t]he
burden of proving, by a preponderance of the evidence, that
such relief is warranted' in his or her case."
Brown v. State, 32 A.3d 901, 907 (R.I. 2011) (citing
State v. Laurence, 18 A.3d 512, 521 (R.I. 2011)).
asserts five theories in support of his Application: (1) that
his attorney rendered constitutionally ineffective assistance
of counsel when she failed to present certain witnesses and
further investigate medical treatment received by Ms.
Saleeba; (2) that the conviction for assault with a dangerous
weapon and simple assault are inconsistent verdicts; (3) that
the charges of assault with a dangerous weapon and felony
assault were without probable cause as there was an error of
law categorizing his hands as a deadly weapon; (4) that
because there was no probable cause to bring the charges of
assault with a dangerous weapon and felony assault,
Petitioner's counsel should have filed a motion under
Superior Court Rules of Criminal Procedure 9.1; and (5) that
Petitioner's counsel neglected to object to the
Court's decision regarding a note the Court received
regarding the jurors' request for clarification on
Petitioner's "hands" as it relates to a
investigation, Petitioner's postconviction relief counsel
narrows the scope of the assertions alleging that
Petitioner's trial counsel should have called certain
witnesses, specifically Hospital staff, that a medical expert
should have been consulted regarding the injury to the
victim's head and to testify about the significance of
the lack of injury from the alleged strangulation. In