Opinion
Def. ID No. 92S05729DI (R-5).
Date Submitted: November 13, 2007.
December 14, 2007.
Thomas A. Morgan, Smyrna, DE.
Dear Mr. Morgan:
Pending before the Court is the fifth motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") which Thomas A. Morgan ("defendant") has filed in the above-captioned matter.
In August, 1993, a jury found defendant guilty of charges of unlawful sexual intercourse in the first degree (2 counts), unlawful sexual contact in the second degree, and kidnapping in the second degree. The Supreme Court affirmed the judgment of the Superior Court. Morgan v. State, Del. Supr., No. 386, 1993, Moore, J. (May 5, 1994). The conviction was final for purposes of Rule 61 on May 23, 1994, when the Supreme Court issued its mandate. Super. Ct. Crim. Rule 61(m).
In Super. Ct. Crim. R. 61(m), it is provided in pertinent part:
(m) Definition. A judgment of conviction is final for the purpose of this rule as follows:
* * *
(2) If the defendant files a direct appeal . . . , when the Supreme Court issues a mandate or order finally determining the case on direct review. . . .
Defendant filed his fifth Rule 61 motion on November 8, 2007. Therein, he argues that the evidence did not support a kidnapping conviction in that the restraint "was only incidental to the commission of the underlying offense and not a separate offence [sic]."
This Court looks at the procedural bars of Rule 61 before it ever considers the merits of the claim. Younger v. State, 580 A.2d 552, 554 (Del. 1990) ("Younger"). In this case, the procedural bars prevent consideration of defendant's claim.
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 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.
First, the motion is time-barred. Rule 61(i)(1). Second, the motion is barred because it was not raised in previous Rule 61 motions. Rule 61(i)(2). Finally, it is barred because it was not raised in the proceedings leading to the judgment of conviction. Rule 61(i)(3). Defendant does not advance any exceptions to the bars except to type beside the heading, "Ground one", "In the Interest of Justice".
The Younger case directly supports this Court's decision denying the motion on procedural grounds. The case law regarding kidnapping was clearly established at the time of defendant's trial in August, 1993.Kornegay v. State, 596 A.2d 481 (Del. 1991); Weber v. State, 547 A.2d 948 (Del. 1988). Defendant had the opportunity to raise the insufficiency of evidence contention on direct appeal and in previous Rule 61 motions. Younger v. State, 580 A.2d at 554. The fundamental fairness exception set forth in Rule 61(i)(5) does not apply since it is applied to the limited circumstances where the right upon which the defendant is relying was "recognized for the first time after the direct appeal." Id. at 555. Furthermore, defendant has failed to make any showing of a constitutional deprivation. Id. Finally, defendant has made no showing that the interests of justice require a review of the merits.Id. Where the procedural bars apply, the Court does not review the merits. Id. at 552, 554.
For the foregoing reasons, the Court denies defendant's fifth motion for postconviction relief.
IT IS SO ORDERED.