Opinion
Def. ID No. 0503004190 (R-1).
December 14, 2007.
Richard C. Luna, Key B Quad, Georgetown, DE.
Dear Mr. Luna:
Pending before the Court is a motion for postconviction relief which defendant Richard Luna ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Contained within that motion is a motion for new trial. This is my decision denying the motions on procedural grounds.
On September 9, 2005, defendant pled guilty to a charge of rape in the first degree. He was sentenced thereon on September 9, 2005. On November 30, 2005, the Court modified the sentencing order to establish that the State of Delaware was not seeking restitution in the matter. Defendant did not file an appeal.
On December 11, 2007, defendant filed the pending motion. He asserts several grounds for relief: forced guilty plea, due process violation, no substantial evidence, ineffective assistance of counsel and "Legal citizenship of U.S." He also advances a ground of "new found evidence".
This latter ground, newly discovered evidence, is not appropriately advanced in a Rule 61 motion. Instead, it should have been filed pursuant to Superior Court Criminal Rule 33.
In Superior Court Criminal Rule 33, it is provided in pertinent part as follows:
* * * A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment. . . .
However, even if it were properly filed, it is time-barred since such a motion must be made before or within two year after final judgment. Super. Ct. Crim. R. 33.
The Rule 61 grounds also are procedurally barred. Defendant did not file his motion for postconviction relief within one year from when his judgment became final. Thus, the motion and every claim in it are time-barred. Rule 61(i)(1). Defendant also failed to assert his grounds for relief in the proceedings leading to conviction. Thus, the procedural default bar precludes all grounds in the motion other than ineffective assistance of counsel. Rule 61(i)(3). Defendant has not attempted to establish that any exceptions to the procedural bars exist. Where a Rule 61 motion is procedurally barred, the Court does not consider the merits of the claim. Younger v. State, 580 A.2d 552, 554 (Del. 1990).
The version of Superior Court Criminal Rule 61(i) applicable to defendant's case provides as follows:
Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year 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 one year 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. [Emphasis added.]
For the foregoing reasons, I deny the pending motion for postconviction relief and the motion for a new trial based on newly discovered evidence.
IT IS SO ORDERED.