Opinion
I.D. No. 0105019765(R-3).
February 16, 2010.
Motion for Postconviction Relief.
Walter C. Smith, James T. Vaughn Correctional Center, Smyrna, DE.
Dear Mr. Smith:
The Court received your third Motion for Postconviction Relief on February 3, 2010. It is denied as being procedurally barred.
In your present Motion for Postconviction Relief, you make claims of ineffective assistance of counsel and abuse of discretion by the trial court.
In 2002, you were convicted of the offenses of attempted rape in the first degree, assault in the first degree, burglary in the first degree, and wearing a disguise during the commission of a felony. The evidence was that you broke into a dwelling occupied by a lone female. You beat her and attempted to rape her. Based upon the presentence investigation and your criminal history, the Court sentenced you to a period of thirty-six (36) years of incarceration, followed by probation.
On April 7, 2004, this Court denied your first Motion for Postconviction Relief, which raised a number of claims including six separate claims of ineffective assistance of counsel. Your appeal to the Supreme Court was denied. Smith v. State, 2004 WL1874668 (Del. Aug. 13, 2004).
Subsequently in 2007, you filed another Motion for Postconviction Relief which was denied on September 27, 2007. Again you were unsuccessful on appeal. Smith v. State, 2008 WL 732009 (Del. Mar. 20, 2008).
Now, you have filed your third Motion for Postconviction Relief which comes approximately eight (8) years after you were convicted and twenty (20) months after the Supreme Court affirmed the denial of your second Motion for Postconviction Relief.
Pursuant to Superior Court Criminal Rule 61(i)(4), all claims touching upon the issues concerning ineffective assistance of counsel that have been formerly adjudicated are denied.
To the extent you inject new claims, they, too, are procedurally barred because you have not shown cause for relief in not raising the claims earlier, nor have you shown prejudice as is required by Superior Court Criminal Rule 61(i)(3).
Finally, and most importantly, you have not established that you should receive relief from the three-year time limitation required for raising a claim pursuant to Rule 61(i)(1).
The bars are applicable because there is no claim that this Court lacked jurisdiction. Nor have you established 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 your trial.
I note in closing that the evidence as to your conviction was substantial. The victim in this case testified that she only saw and heard one person in her apartment. That person beat her, and fondled her, and attempted to rape her. Eyeglasses were left at the scene which ultimately were traced back to you by way of the prescription and DNA.
Defendant's Motion for Postconviction Relief is denied.
IT IS SO ORDERED.