Opinion
ID No. 0803009083 (R-2).
November 19, 2010.
Motion for Postconviction Relief.
Shaka S. Mumitt, SBI No. 0047, James T. Vaughn Correctional Center, Smyrna, DE.
Dear Mr. Mumitt:
The Court received your second Motion for Postconviction Relief on November 10, 2010. It is procedurally barred and must be dismissed for the reasons stated below.
You were convicted of thirteen (13) sexual offenses against your granddaughters. You received a sentence of twenty-three (23) years at Level 5 incarceration, to be followed by probation. The conviction was affirmed. Mumitt v. State, 2009 WL 3191709 (Oct. 6, 2009), 981 A.2d 1173 (Del. 2009) (TABLE).
You filed a timely Motion for Postconviction Relief which was denied on May 28, 2010 and affirmed by the Delaware Supreme Court on October 1, 2010. See Mumitt v. State, 2010 WL 3860658 (Del.).
In Ground One of your present Motion, you attack the legal protocol or timing of the introduction of the statements made by your granddaughters which were entered into evidence pursuant to 11 Del. C. § 3507.
In Ground Two you complain about the manner in which the Child Advocacy Center ("CAC") video interview was redacted prior to its presentation to the jury.
In Ground Three you complain that your attorney breached his duty of loyalty because he was not honest in his communications with you when you "pressed the defense counsel to push certain issues that the Defendant thought were important".
Your present Motion is procedurally barred because it is untimely under Superior Court Criminal Rule 61(i)(1). Your conviction was affirmed on direct appeal by decision dated October 6, 2009. Your present Motion was filed November 10, 2010. You have a one-year period in which to file motions for postconviction relief. You exercised this right and filed a previous motion for postconviction relief that was denied. The present Motion comes too late and therefore is procedurally barred. Because your first motion was timely does not mean you get to file later, untimely motions.
Your present Motion for Postconviction Relief is also barred pursuant to Superior Court Criminal Rule 61(i)(4), in that issues concerning 11 Del. C. § 3507 and the introduction of the CAC videotape were raised in the previous Motion for Postconviction Relief and have been considered by both this Court and the Supreme Court. Therefore, issues concerning the timing of the introduction of the CAC videotape pursuant to the case law under 11 Del. C. § 3507 and the manner in which it was redacted are deemed to be previously adjudicated and therefore procedurally barred. To the extent you attempt to raise new claims, they would be barred pursuant to Superior Court Criminal Rule 61 (i)(2), in that this is a repetitive Motion and these alternative grounds could have been asserted in the prior postconviction proceeding.
You have raised no issues of potential prejudice which would cause this Court to revisit the matter in the interest of justice.
Finally, as to your disagreements with trial counsel, this matter is procedurally barred because it, too, is untimely and you had the opportunity to include this complaint in your first Motion for Postconviction Relief. Accordingly, this claim is considered to be repetitive and is procedurally barred pursuant to the above discussion. There is nothing as to your allegations which impact the ultimate decision of the jury and you have not established prejudice. Therefore, there is no good reason not to apply the procedural bar.
For the above-stated reasons, your current Motion for Postconviction Relief is denied as it is untimely, contains previously adjudicated issues and is repetitive.
IT IS SO ORDERED.
Yours very truly,
THG:baj
cc: Prothonotary Department of Justice