Opinion
I.D. No. 0509011266A.
Submitted: December 10, 2008.
Decided: December 15, 2008.
Upon Defendant's Motion for Postconviction Relief.
SUMMARILY DISMISSED.Mark B. Chernev, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Steven Drake, Smyrna, Delaware, pro se.
ORDER
This 15th day of December 2008, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that: 1. On May 2, 2006, after a five day trial, a jury found Defendant guilty of Rape First Degree, Robbery First Degree, Assault Second Degree, Burglary Second Degree, Attempted Robbery First Degree, five counts of Wearing a Disguise During the Commission of a Felony, and five counts of Possession of a Firearm During the Commission of a Felony. On August 4, 2006, the Court sentenced Defendant to serve his natural life in prison for the rape conviction, plus 32 additional years of incarceration for the other convictions. The Supreme Court affirmed Defendant's convictions on appeal.
Drake v. State, 929 A.2d 768 (Del. 2007).
2. Defendant filed this pro se first motion for postconviction relief on November 24, 2008. Defendant's three grounds for relief, which are all essentially ineffective assistance of counsel claims, state in their entirety:
Ground one: Denial of the right to effective assistance of counsel. Public Defendant did not assist me in trial and ask the questions I had for the witnesses. Furthermore withdrawn [sic] from my case and did not call or contact any witnesses on my behalf for trial.
Ground two: Denial of right to suppression of favorable evidence. I never had a suppression hearing to look over evidence Attorney General had. Lawyer failed to [file] motions to do so and let State present evidence during trial which should have been not allowed `DNA, photos, etc.'
Ground three: Denial of right to subpoena witnesses. Public Defender failed to call witnesses in [sic] my behalf or talk to [sic] as I requested and wanted.
In addition to the stated three grounds for relief, in the section of the Rule 61 form which asks Defendant to explain why any of his grounds were not previously raised, Defendant has written an unintelligible and incoherent list of claims, which this Court need not address. See State v. Mobley, 2007 WL 32879999 (Del.Super.) (refusing to address unintelligible and incoherent claims).
3. When considering a motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61. If a potential bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim. Moreover, if it "plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified."
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Super. Ct. Crim. R. 61(d)(4). See also id. at 61(b)(2) (providing that a motion for postconviction relief "shall set forth in summary form the facts supporting each of the grounds thus specified").
4. Rule 61(i)(1) will bar a motion filed more than one year after a final judgment of conviction unless it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final. A movant can avoid this procedural bar, however, if under Rule 61(i)(5), if the movant can show that the court lacked jurisdiction or makes "a colorable claim that there was a miscarriage of justice because of a constitutional violation." This exception, referred to as the "fundamental fairness" exception, is narrow and is applied only in limited circumstances.
Id. at 61(i)(1).
Id. at 61(i)(5).
Younger, 508 A.2d 555.
5. A judgment of conviction is final "when the Supreme Court issues a mandate or order finally determining the case on direct review." Defendant's judgment of conviction became final on June 28, 2007 when the Supreme Court issued the mandate in his case. Defendant's motion, filed on November 24, 2008, is clearly outside the applicable one year time limit. Defendant can only avoid this procedural bar if he makes a colorable constitutional claim, thereby invoking the fundamental fairness exception of Rule 61(i)(5).
Defendant attempted to file a motion for postconviction relief on October 27, 2008, however, the motion was rejected for non-compliance with Rule 61. Defendant subsequently filed this motion on November 24, 2008. Even if the Court were to consider the date on which Defendant first tried to file his motion, it would still be time barred pursuant to Rule 61(i)(1).
6. It is clear from Defendant's motion that Defendant's claims do not meet the high standard that the fundamental fairness exception requires. A movant must support his or her allegations, including claims of ineffective assistance of counsel, with "concrete allegations of actual prejudice, or risk summary dismissal." Defendant's motion is completely conclusory, and Defendant has failed to support his claims of ineffective assistance of counsel with any concrete allegations of actual prejudice. Therefore, Defendant's claims do not warrant consideration pursuant to the fundamental fairness exception of Rule 61(i)(5). 7. For the reasons stated, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED.
State v. Chambers, 2008 WL 4137988, at *1 (Del.Super.) (quoting State v. Childress, 2000 WL 1610766, at *1 (Del.Super.)).
Id. (summarily dismissing the defendant's motion for postconviction relief where he alleged ineffective assistance of counsel because he failed to support his claims with concrete allegations of prejudice).
IT IS SO ORDERED.