Opinion
No. 36, 2003.
Submitted: July 3, 2003.
Decided: August 4, 2003.
Court Below-Superior Court of the State of Delaware, in and for Sussex County in IS93-09-0250 — 0252, 0255, 0258, 0260, 0262. Cr. ID Nos. 93S04679DI 93S04680DI
Affirmed.
Unpublished opinion is below.
BOBBY FOREMAN, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 36, 2003. Supreme Court of Delaware. Submitted: July 3, 2003. Decided: August 4, 2003.
Before VEASEY, Chief Justice, BERGER and STEELE, Justices.
ORDER
Myron T. Steele, Justice:
This 4th day of August 2003, upon consideration of the appellant's opening brief and the appellee's motion to affirm, it appears to the Court that:
(1) The appellant, Bobby Foreman, filed this appeal from a Superior Court order denying Foreman's motion for postconviction relief. The State has moved to affirm the Superior Court's judgment on the basis that the appeal is without merit.
(2) In 1994, Foreman was convicted of Trafficking in Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, Maintaining a Vehicle for Keeping Controlled Substances, Disorderly Conduct, Resisting Arrest, Possession of Cocaine with Intent to Deliver, and Possession of a Deadly Weapon During the Commission of a Felony. Foreman's convictions were affirmed by this Court on direct appeal in 1995.
Foreman v. State, 1995 WL 365389 (Del.Supr.)
(3) In July 2002, Foreman filed a motion for postconviction relief in the Superior Court. The docket reflects that the motion was presented to the trial judge, the Honorable Charles H. Toliver, IV, pursuant to Superior Court Criminal Rule 61(d). By letter dated September 26, 2002, Judge Toliver directed Foreman's former defense counsel and counsel for the State to file their responses to the motion by October 28, 2002.
Superior Court Criminal Rule 61(d) provides that "[t]he original [postconviction] motion shall be presented promptly to the judge who . . . presided at trial in the proceedings leading to the judgment under attack. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge in accordance with the procedure of the court for assignment of its work."
(4) By order dated October 21, 2002, Foreman's motion was summarily denied, not by Judge Toliver, but by The Honorable Richard F. Stokes. Thereafter, by order dated December 23, 2002, Judge Toliver denied the motion on the basis that an "identical" motion that was filed by Foreman had been formerly adjudicated by Judge Stokes. This appeal followed.
(5) On appeal from the Superior Court's order of December 23, 2002, Foreman claims that (i) he was convicted on the basis of the actions of a corrupt police officer who had planted drugs in Foreman's motel room; (ii) Judge Stokes should not have ruled upon the postconviction motion; and (iii) Judge Toliver's denial of the motion as "formerly adjudicated" was an abuse of discretion.
(6) Assuming, for purposes of argument, that the motion was routed to Judge Stokes in error, and that Judge Toliver's subsequent denial of the same motion as "formerly adjudicated" was an abuse of discretion, Foreman's postconviction motion and his claims on appeal are nonetheless unavailing.
See Super.Ct.Crim.R. 61(i)(4) (providing that a claim that was formerly adjudicated . . . in a postconviction proceeding . . . is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice).
(7) Superior Court Criminal Rule 61(i)(1) prohibits claims that are filed more than three years after the judgment of conviction is final unless the defendant (i) demonstrates that the Superior Court lacked jurisdiction or (ii) presents a colorable claim that there was a miscarriage of justice because of a constitutional violation. In Foreman's case, in the absence of any such showing, his motion for postconviction is clearly time-barred.
Super Ct. Crim. R. 61(i)(5).
(8) It is manifest on the face of Foreman's opening brief that this appeal is without merit. The issues presented on appeal are controlled by settled Delaware law.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.