Opinion
ID#: 9503004907
03-17-2014
STATE OF DELAWARE, v. ANDRE A RIVERA, Defendant.
ORDER
Upon Defendant's Fifth Motion for Postconviction Relief -
SUMMARILY DISMISSED,
Upon Defendant's Motion for Appointment of Counsel -
DENIED.
1. In August 1995, a jury convicted Defendant of four counts of burglary second degree and other lesser offenses. Defendant was declared a habitual offender based on 19 prior home burglaries. Accordingly, he was sentenced to four consecutive life sentences pursuant to 11 Del.C. § 4214(b). In April 1996, Defendant's conviction was affirmed.
Rivera v. State, 676 A.2d 906 (Del. 1996).
3. On December 16, 2013, Defendant, pro se, filed this, his fifth motion for postconviction relief. The Rule 61 motion was properly referred.
Super. Ct. Crim. R. 61(d)(1).
4. The motion for postconviction relief rests on two grounds: 1) ineffective assistance of counsel for failing to challenge the habitual offender status, and 2) failing to appoint postconviction counsel as sixth amendment and due process violations. The ineffective assistance of counsel claim has been previously adjudicated and is procedurally barred.
Super. Ct. Crim. R. 61(i)(4).
5. Defendant's second claim is grounded in Martinez v. Ryan. Although not mentioned specifically, it presumably is also based on the recent amendment to Superior Court Criminal Rule 61. Neither Martinez nor the amendment to Rule 61 applies to Defendant's situation, considering Defendant's first motion for postconviction relief was denied in 1996. Further, Martinez is, by its terms, an "equitable ruling" rather than a "constitutional ruling" that would apply retroactively. Similarly, the recent modification of Rule 61 is simply not retroactive.
Martinez v. Ryan, 132 S. Ct. 1309, 1311 (2012).
Super. Ct. Crim. R. 61(e)(1).
Martinez, 132 S. Ct. at 1319.
Roten v. State, 2013 WL 5808236, *1 (Del. Supr.) ("The rule was adopted May 6, 2013 and is not retroactive.") (emphasis in original).
6. Once again, the court notes it had no discretion in sentencing. Defendant was properly declared a habitual offender based on his past convictions. The sentence Defendant received was mandatory under the habitual offender statute, and has been upheld by state and federal law.
State v. Rivera, 1997 WL 528275 (Del. Super. 1997).
6. After reconsidering the matter, even with Defendant's characterizing his claims as constitutional violations, the court remains satisfied that Defendant has not sufficiently alleged either a miscarriage of justice or a colorable, constitutional claim requiring further review. Thus, the motion for postconviction relief is subject to summary dismissal.
Super. Ct. Crim. R. 61(i)(5).
--------
For the foregoing reasons, Defendant's fifth motion for postconviction relief is SUMMARILY DISMISSED. The Prothonotary shall notify Defendant.
IT IS SO ORDERED.
Fred S. Silverman
Judge
cc: Prothonotary (Criminal)
Joseph S. Grubb, Deputy Attorney General
Andre A. Rivera, Defendant