Unpublished Opinion is below.

CHARLES B. SANDERS, JR., Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 108, 1999. Def. ID No. 9312012607. Supreme Court of Delaware. Submitted: April 27, 1999. Decided: June 9, 1999.

Court Below Superior Court of the State of Delaware, in and for Kent County, Cr. A. Nos. K94-01-0082 thru 0085 K94-01-0265.

Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.

ORDER

This 9th day of June 1999, upon consideration of the appellant's opening brief and appendix and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:

(1) In 1994, Charles B. Sanders, Jr., was convicted by a Superior Court jury of first degree robbery, second degree kidnapping, first degree burglary, second degree assault, and attempted sexual extortion. Sanders was sentenced to forty years' incarceration. Sanders' conviction was affirmed on direct appeal.

(2) On March 4, 1998, Sanders filed his third motion for post-conviction relief. By report dated December 23, 1998, a Superior Court Commissioner recommended that the court deny Sanders' motion as procedurally barred under Superior Court Criminal Rule 61(i)(2) and (4) ("Rule 61"). By order dated March 15, 1999, the Superior Court adopted the Commissioner's recommendation and denied Sanders' third motion for post-conviction relief. This appeal followed.

(3) In his opening brief on appeal, Sanders argues: (i) that the indictment and jury instructions did not correctly set forth the elements of second degree kidnapping; (ii) that the evidence adduced at trial did not support his second degree kidnapping conviction; and (iii) that there was no showing that the in-court identification of Sanders was of independent origin. To the extent Sanders has not argued other claims that were raised in his post-conviction motion, those claims are deemed waived and abandoned and will not be addressed by this Court.

(4) When reviewing the Superior Court's denial of a post-conviction motion pursuant to Rule 61, this Court first must consider the procedural requirements of the rule before addressing any substantive issues. Under Rule 61(i)(2), Sanders was required to assert all available claims for relief in his first post-conviction motion. Rule 61(i)(4) bars consideration of any claim that was formerly adjudicated. Absent a showing that consideration "is warranted in the interest of justice," any new claim or formerly adjudicated claim is barred from further examination.

(5) On appeal, Sanders has not demonstrated that any of his briefed claims were unavailable to him at the time he filed his first motion for post-conviction relief and thus should be considered in the "interest of justice." Sanders either knew, or should have known, of the claims when he filed his first post-conviction motion. Accordingly, we are not led to conclude that the claims should be considered under Rule 61(i)(2). To the extent Sanders' in-court identification claim restates a variation of prior similar claims, that claim is also procedurally barred pursuant to Rule 61(i)(4).

(6) Sanders has not made the requisite showing of a "miscarriage of justice because of a constitutional violation" to warrant application of the exception in Rule 61(i)(5) to the procedural bar in Rule 61(i)(2). Hence, we rule that Rule 61(i)(5) does not provide relief, and Sanders' claims are procedurally barred.

(7) In this case, the Superior Court's denial of Sanders' third motion for post-conviction relief was appropriate. It is manifest on the face of Sanders' opening brief that the appeal is without merit. The issues raised on appeal are clearly controlled by settled principles of law, and there was no error of law below. To the extent the appeal presents issues of judicial discretion, clearly there was no abuse of discretion.

NOW, THEREFORE, IT IS ORDERED that the motion to affirm be, and the same hereby is, GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Joseph T. Walsh

Justice