Opinion
ID No. 0105019765 (R-2).
September 27, 2007.
Walter L. Smith, Smyrna, DE.
Dear Mr. Smith:
Upon review of your file and your recently-filed Motion for Postconviction Relief, I find that it is procedurally barred and is therefore denied.
You were convicted of attempted rape in the first degree, assault in the first degree, burglary in the first degree, and wearing a disguise during a felony. Basically, you broke into a woman's house at night and attempted to rape her. Your conviction was affirmed. Smith v. State, 2002 WL 31873704, at *3 (Del. Dec. 23, 2002).
On April 7, 2004, I denied your first Motion for Postconviction Relief. Your untimely appeal was rejected by the Supreme Court.
Now after three years have passed since the first Rule 61 decision, you want to reargue the issues included in that decision — insufficient evidence of an intent to rape and a Batson claim.
Batson v. Kentucky, 476 U. S. 79 (1986).
Those claims, having been previously adjudicated over three years ago, are denied pursuant to Superior Court Criminal Rule 61(i)(1) as it has been filed years after your conviction was final and over three years since the Court denied these claims, and pursuant to Rule 61(i)(4) as being previously adjudicated.
The new claim alleges the Court limited your rights to confront witnesses by limiting cross-examination.
This claim is procedurally barred because it comes years too late (Rule 61(i)(1) and Rule 61 (i)(3)) as you have not provided any satisfactory reason as to why your present complaint could not have been raised on direct appeal.
Finally, I note this is a repetitive motion raising an issue that could have been raised in the first motion but was not. There is no good reason to revisit trial rulings made five years ago.
Your request that the Court permit your filing to go forward under Rule 61(i)(5) is denied. No miscarriage of justice has been shown under the narrow construction of this exception.
Defendant's second Postconviction Motion is denied.
IT IS SO ORDERED.