Opinion
ID No. 0101023931.
Submitted: January 15, 2008.
April 9, 2008.
Jerome B. Reed SBI, Delaware Correctional Center, Smyrna, DE.
Memorandum Opinion — Motion for Postconviction Relief.
Dear Mr. Reed:
This is my decision on your fifth motion for postconviction relief. You were charged with Robbery in the First Degree, Possession of a Firearm During t he Commission of a Felony, Kidnapping in the Second Degree, two counts of Burglary in the Second Degree, Unlawful Imprisonment in the Second Degree, two counts of Theft, and Criminal Mischief. You were found guilty by a jury on all counts except Unlawful Imprisonment in the Second Degree, which I dismissed at the conclusion of the State's case.
You allege in your fifth motion for postconviction relief that Ruth M. Smythe, Timothy G. Willard and Thomas D. H. Barnett did not effectively represent you. You allege that all three of your attorneys failed to (1) consult with you about a plea, and (2) discuss with you the evidence against you and the discovery provided by the State. You also allege that Barnett at sentencing failed to (1) suppress statements that you made to the police, (2) retain a psychiatrist, and (3) get your school records.
Your claims of ineffective assistance of counsel could have been raised by you in your first motion for postconviction relief. Therefore, they are barred by Superior Court Criminal Rule 61(i)(2). In order to avoid the procedural bar of Rule 61(i)(2), you must demonstrate that the consideration of your claims is warranted in the "interest of justice." The "interest of justice" exception is a narrow one. In order to invoke the "interest of justice" exception, you must show that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish [you]." A factual development may also trigger the "interest of justice" exception. For example, in Weedon v. State several of the prosecution's witnesses recanted their statements, thereby defeating the presumption that Weedon's motion for postconviction relief was procedurally barred. Moreover, the bar to relief under Rule 61(i)(2) does 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." The fundamental fairness exception, as set forth in Superior Court Criminal Rule 61(i)(5), is a narrow one and has been applied only in limited circumstances. For example, the exception has been applied where the right relied upon was recognized for the first time after a direct appeal. This exception may also constitute a claim that there has been a mistaken waiver of important constitutional rights in exchange for a guilty plea. There is nothing at all about your claims of ineffective assistance of counsel that falls within these exceptions.
Flamer v. State, 585 A.2d 736, 746 (Del. 1990).
750 A.2d 521 (Del. 2000).
Id. at 528.
Superior Court Criminal Rule 61(i)(5).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id. at 555, citing Teague v. Lane, 489 U.S. 288, 297-299 (1989).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
CONCLUSION
Your fifth motion for postconviction relief is denied.
IT IS SO ORDERED.