Opinion
9505002948
February 17, 2004.
James W. Adkins, Esquire.
Dear Mr. Thomas:
On January 29, 2004, the Court received your second Motion for Postconviction Relief. It is dismissed because it is procedurally barred under Superior Court Rule 61(i).
In August of 1995, you were convicted of Assault in the First Degree, Kidnaping in the First Degree, two counts of Unlawful Sexual Intercourse in the Second Degree, two counts of Possession of a Deadly Weapon During the Commission of a Felony and Unauthorized Use of a Motor Vehicle. On October 6, 1995, you received a very lengthy sentence. No direct appeal was taken.
On May 16, 1996, you filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Your claims were ineffective assistance of counsel, suppression of favorable evidence by the State, and perjured testimony offered by the victim. On September 10, 1996, I denied your Motion for Postconviction Relief, but at that time I also set a date for resentencing you as it was apparent that your trial attorney had not perfected an appeal, contrary to your expectations. An appeal was perfected and the Public Defender's Office took over the appeal.
Therefore, issues which were ripe for appeal included not only trial issues but the postconviction ruling. The appeal to the Delaware Supreme Court raised only one issue, that being whether an additional lesser included offense should have been given on the assault charge. The Supreme Court found no error. Thomas v. State, 696 A.2d 398, 1997 WL 398917 (Del. 1997).
In your present Motion for Postconviction Relief you complain that there was error in your trial due to the introduction of prior bad acts. Also, you complain that the prosecutor committed misconduct by the introduction of prior bad acts testimony. Therefore, under recent Supreme Court decisions you argue you should be entitled to a new trial.
Your present motion is procedurally barred under Superior Court Criminal Rule 61(i)(1). This section requires that you file any motion for postconviction relief within three years from the date the judgment is final. Your application comes over six years from the Supreme Court's decision and over eight years from the time you were convicted. There is no colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability and integrity or fairness of the proceeding. Nor is there a claim that this Court lacked jurisdiction. Therefore, this claim must be dismissed pursuant to Superior Court Criminal Rule 61(i)(1).
Additionally, it is procedurally barred under Superior Court Criminal Rule 61(i)(3) in that there has been no reason shown for cause for not bringing these alleged trial errors to the Supreme Court's attention on direct appeal, nor has there been any showing of prejudice of the Defendant's rights.
Due to the odd nature as to how the case was appealed to the Delaware Supreme Court, I shall not apply the procedural bar of Superior Court Criminal Rule 61(i)(2), even though this is your second Motion for Postconviction Relief.
Nevertheless, the petition is dismissed under Superior Court Criminal Rule 61(i)(1) and Superior Court Criminal Rule 61(i)(3).