Opinion
ID No. 0304010407.
Date Submitted September 24, 2007.
September 26, 2007.
Edward C. Gill, Esquire, Georgetown, DE.
Dear Mr. Gill:
Pending before the Court is the second motion for postconviction relief which defendant John M. Franklin ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is my decision denying the motion because defendant failed to make any effort to overcome the procedural bars.
On February 25, 2004, after a six (6) day jury trial, the jury found defendant guilty of five (5) counts of rape in the first degree causing a n injury, one (1) count of terroristic threatening, and one (1) coun t of endangering the welfare of a child. On February 25, 2004, this Court sentenced defendant as follows. On each rape in the first degree count, he was sentenced to twenty-five (25) years at Level 5, for a total of one hundred twenty-five (125) years; the first fifteen (15) years of each sentence was mandatory as required by statute. 11 Del. C. § 4205. On the terroristic threatening conviction, the Court sentenced defendant to one (1) year at Level 5. On the endangering the welfare of a child conviction, it sentenced him to one (1) year at Level 5, followed by six (6) months at Level 3.
Defendant appealed to the Delaware Supreme Court. That Court affirmed the judgment of the Superior Court. Franklin v. State, Del. Supr., No. 106, 200 4, Ridgely, J. (March 2, 2005).
Defendant thereafter filed the following motions: motion for postconviction relief pursuant to Rule 61, motion for an evidentiary hearing on the Rule 61 motion, motion to expand the record to include a letter from his sister stating that he always was mentally "slow", motion for the retention of a psychiatrist to conduct a mental health evaluation on defendant, and motion for the judge's recusal from considering the other motions. In the Rule 61 motion, defendant argued that trial counsel was ineffective because she failed to file a motion that the trial judge recuse himself from presiding over the trial, failed to object to an immediate sentencing, and failed to offer mitigating evidence at defendant's sentencing. This Court granted the motion to expand the record to include the sister's letter and denied all of the remaining motions. Franklin v. State, Del. Super., Def. ID# 0304010407, Stokes, J. (Nov. 29, 2005). Defendant appealed the decisions denying the motions. The Supreme Court affirmed this Court's decisions.Franklin v. State, Del. Supr., No. 622, 2005, Ridgely, J. (May 17, 2006).
On September 19, 2007, defendant filed hi s second mot ion for postconviction relief. In that motion, he sets forth the following grounds for relief: prosecutorial misconduct, trial counsel called a witness who was devastating to the defense without consulting the defendant, and trial counsel was ineffective in cross-examining the complaining witness. Defendant does not in any way address the applicable procedural bars.
In the applicable version of Superior Court Criminal Rule 61(i), it is provided as follows:
(i) Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
The claim asserting prosecutorial misconduct is barred because defendant did not assert it in the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant does not make any attempt to show that exceptions to the procedural bar exists. Absent such a showing, the claim fails.
Defendant's other two grounds, which are ineffective assistance of counsel claims, are barred by Rule 61(i)(2) because they should have been raised in the first postconviction motion and defendant has not make any attempt to show that an exception to the procedural bar applies.
The Rule requires the moving party, whether pro se or through a lawyer, to address the procedural bars in a Rule 61 motion. It is the movant's responsibility to show why the procedural bars do not apply.
For the foregoing reasons, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.