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referencing the Rule 61 amendment change, effective July 1, 2005, which shortened the statutory period of filing from three-years to one-year
Summary of this case from State v. CaldwellOpinion
ID. No. 0107006531.
Submitted: April 15, 2009.
Decided: April 21, 2009.
Upon Defendant's Third Motion for Postconviction Relief. DENIED.
Paul R. Wallace, Esquire, Chief of Appeals, Department of Justice, Wilmington, Delaware, Attorney for the State.
Al-Hajj Lewis, Smyrna, Delaware, pro se.
ORDER
This 21st day of April 2009, upon consideration of Defendant's Third Motion for Postconviction Relief, it appears to the Court that:
1. On February 6, 2002, Defendant pled guilty to Murder in the Second Degree and Possession of a Firearm by a Person Prohibited. The Court sentenced Defendant 21 years at Level V, followed by decreasing levels of supervision. Defendant did not file a direct appeal.
2. Defendant filed his first motion for postconviction relief pro se on October 24, 2006, in which he alleged that his defense counsel failed to investigate his case and then pressured him into pleading guilty. This Court summarily dismissed the motion and the Delaware Supreme Court affirmed. Defendant filed his second motion for postconviction relief pro se on October 4, 2007, which he then withdrew on October 18, 2007.
Lewis v. State, 2007 WL 2010841 (Del.Supr.) ("In this case, the Superior Court determined, and we agree, that there is no record support for Lewis' allegations of ineffective assistance of counsel.").
3. This is Defendant's third motion for postconviction relief. Defendant again claims that his defense counsel failed to investigate his case and then pressured him into pleading guilty. In support of his claim Defendant provides two affidavits from 2006 — one from his mother and one from his sister. Defendant alleges that defense counsel failed to interview these two alleged "exculpatory witnesses." Contrary to Defendant's allegation, however, an investigator for defense counsel interviewed Defendant's sister and mother prior to Defendant's guilty plea and the results of the interviews were shared with Defendant. Furthermore, there is no explanation as to why, his mother and sister, who were aware of the allegations against Defendant and interviewed by the defense, have decided years later to make alleged exculpatory statements.
Pedersen Aff. at ¶ 13.
Defendant's sister states in her affidavit that Defendant was with her from 6:00 pm until 9:00 pm the night of the murder. Defendant's mother states in her affidavit that Defendant was dropped off at her house at 9:00 pm on the night of the murder and he stayed in the house for the rest of the night.
4. When considering a motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61. If a potential bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim. Rule 61(i)(1) will bar a motion filed more than three years after a final judgment of conviction, unless the motion asserts a "retroactively applicable right." A movant can avoid this procedural bar, however, if under Rule 61(i)(5), if the movant can show that the court lacked jurisdiction or makes "a colorable claim that there was a miscarriage of justice because of a constitutional violation." This exception, referred to as the "fundamental fairness" exception, is narrow and is applied only in limited circumstances. In addition, Rule 61(i)(4) will bar any ground for relief that was formerly adjudicated, unless reconsideration is warranted in the "interest of justice."
A 2005 amendment changed the time limit in Rule 61(i)(1) to one year; however, this amendment applies only to cases where the judgment of conviction became final after July 1, 2005. See Revisor's note to Super. Ct. Crim. R. 61.
Super. Ct. Crim. R. 61(i)(5).
Younger, 508 A.2d 555.
Id. at 61(i)(4).
5. Defendant's motion, which he filed over six years after his conviction became final, is untimely pursuant to Rule 61(i)(1). Moreover, his claim that his counsel was ineffective for failing to investigate and for pressuring him into pleading guilty was formerly adjudicated in his first postconviction proceeding and is therefore barred by Rule 61(i)(4).
Because Defendant did not file a direct appeal, his conviction became final 30 days after this Court sentenced him in 2002. Super. Ct. Crim. R. 61(m)(1).
6. Moreover, Defendant's motion does not warrant consideration under one of the procedural bar exceptions. The record demonstrates that when faced with the weight of evidence against him, Defendant voluntarily decided to plead guilty to second degree murder rather than go to trial on a first degree murder charge where the State intended to seek the death penalty. During the plea colloquy Defendant admitted shooting the victim in this case and made no indication that he was in any way dissatisfied with his counsel's performance. As the Supreme Court stated in response to Defendant's first motion for postconviction relief, "there is no record support for Lewis' allegations of ineffective assistance of counsel" in connection with his guilty plea. Therefore, Defendant's Third Motion for Postconviction Relief is DENIED.
Pedersen Aff. at ¶¶ 14, 17.
Lewis, 2007 WL 2010841 (Del.Supr.).
IT IS SO ORDERED.