Opinion
Case No. 0609011528A
02-25-2013
Re: State v. Augustus Evans
RESIDENT JUDGE
N440 State Mail
Augustus H. Evans, Jr.
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, Delaware 19977
Motion for Post Conviction Relief (R-2) Dear Mr. Evans:
On February 19, 2013, you filed your second Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61").
Your motion is procedurally barred pursuant to Rule 61(i)(1) in that you filed the motion four years after the Delaware Supreme Court affirmed your conviction. Your motion is also denied because it is repetitive pursuant to Rule 61(i)(2). Your first Motion for Postconviction Relief was denied by the Supreme Court in November of 2009.
Evans v. State, 2009 WL 367728 (Del.), 968 A.2d 491 (Del. 2009) (TABLE).
Evans v. State, 2009 WL 3656085 (Del.), 985 A.2d 390 (Del.) (TABLE) (rehearing denied Dec. 16, 2009).
You attempt to circumvent the procedural bars to your motion by arguing that the recent United States Supreme Court decision Martinez v. Ryan created a retroactive constitutional right to have counsel represent you on your initial postconviction motion.
132 S. Ct. 1309 (2012).
You are mistaken. The holding in Martinez is limited to federal habeas review. It does not grant a constitutional right to have counsel on postconviction matters.
State v. Smith, 2012 WL 5577827 (Del. Super.) ("Martinez v. Ryan holds that if there was no attorney representing you at your initial post-conviction proceeding, or if you had an attorney but that attorney was ineffective for failing to attack trial counsel's effectiveness, then a federal habeas court will not procedurally bar you from pursuing a claim of ineffectiveness of counsel in the federal courts."), aff'd, 2012 WL 3870567 (Del.), 53 A.2d 303) (Del. 2012) (TABLE). I have enclosed copies of these decisions herewith.
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Therefore, your present motion is procedurally barred.
IT IS SO ORDERED.
Very truly yours,
T. Henley Graves Enclosures
oc: Prothonotary
cc: Department of Justice