Opinion
ID No. 9407015365.
Submitted: June 14, 1999.
Decided: September 1, 1999.
Upon Defendant's Pro Se Motion for Postconviction Relief. DENIED.
ORDER
This 1st day of September, 1999, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1) Kwong L. Li (Defendant) has filed this pro se motion pursuant to Super. Ct. Crim. R. 61. For the following reasons, Defendant's motion is DENIED.
The Court has attempted to characterize Defendant's assertions as recognizable legal arguments. See Jackson v. Unemployment Ins. Appeal Bd., Del. Super., C.A. No. 85A-No-9, Bifferato, J. (Sept. 24, 1986), Let. Op. at 3 (holding that the Superior Court may exhibit some degree of leniency toward a pro se litigant to ensure that his or her case is fully and fairly heard).
2) In August 1994, Defendant was indicted on one count of Attempted Murder First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony. Defendant was found guilty on June 12, 1995, by jury trial of the lesser-included offense of Assault First Degree and Possession of a Deadly Weapon During the Commission of a Felony. On August 18, 1995, this Court sentenced defendant to 3 1/2 years at Level 5 on the count of Attempted Murder First Degree and to 5 years at Level 5 on the count of Possession of a Deadly Weapon During the Commission of a Felony with 6 months at Level 4 to follow. The Court also imposed the following conditions on Defendant's sentence: a) Defendant shall have no contact with the victim Ho Chi, b) be evaluated, for emotional and/or psychological problems and c) follow any directions for treatment or counselling made by the probation officer. On August 31, 1995 Defendant's Notice of Appeal was filed with the Supreme Court, No. 338, 1995. The Supreme Court affirmed the convictions in the Superior Court by mandate dated May 21, 1996.
3) Defendant represents in his motion that this is the first motion for postconviction relief that he has filed, but this is actually the second. The first motion for postconviction relief filed on May 8, 1998 was returned by the Prothonotary to defendant for noncompliance because the motion was not signed by Defendant. Docket entry #32.
4) On June 10, 1999 Defendant then refiled his original postconviction relief motion that was previously filed on May 8, 1998 but returned because it was not signed. Defendant represents in his motion that the date of the Supreme Court's final order was May 17, 1997. That date is incorrect. The Supreme Court mandate was issued on May 17, 1996, therefore making his June 10, 1999 motion procedurally time barred since it was filed more than three years after the judgment of conviction was final. (The record does not indicate why this incorrect date appears in the motion, but the Court chooses, under the circumstances, not to pursue this matter further.)
DISCUSSION
Before considering the merits of the defendant's postconviction relief motion, the Court must apply the procedural requirements of Super. Ct. Crim. R. 61. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990). Under Super. Ct. Crim. R. 61(i)(1), a motion for postconviction relief must be filed within three years after the judgment of conviction becomes final when a direct appeal of the conviction has been taken, the three year period begins to run from the date of the issuance of the mandate by the Surpeme Court of Delaware. Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995). However, there is a fundamental fairness exception to the time limitation of Rule 61(i)(1) for colorable claims that the Court lacked jurisdiction or that the conviction was undermined by a substantial constitutional violation amounting to a miscarriage of justice. Super. Ct. Crim. R. 61(i)(5).
If a retroactively applicable right is newly recognized after a conviction is final, a claim based on such right must be filed within three years from the time such right if is first recognized by the Supreme Court of Delaware or the United States Supreme Court. Super. Ct. Crim. R. 61(i)(1). Defendant has not alleged any violation of a newly recognized right.
The defendant's conviction was affirmed and the Supreme Court mandate was issued on May 17, 1996. Thus any claims for postconviction relief must have been made prior to May 17, 1999. Li filed his postconviction relief motion on June 10, 1999. It is procedurally barred. Li has not demonstrated an applicable exception to this time bar, nor has he stated a retroactively applicable right which has been newly recognized.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.