Opinion
I.D. No. 30500267DI.
Submitted: March 27, 2007.
Decided: April 9, 2007.
Upon Defendant's Third Motion for Postconviction Relief.
SUMMARILY DISMISSED.
Upon Defendant's Motion for Appointment of Counsel.
DENIED.
Richard G. Andrews, Esquire, Chief Prosecutor, Department of Justice, Wilmington, Delaware, Attorney for the State.
Willis L. Grayson, Smyrna, Delaware, pro se.
ORDER
This 9th day of April 2007, upon consideration of Defendant's third motion for postconviction relief, it appears to the Court that:
1. A jury found Defendant guilty of two counts of Rape Second Degree on September 16, 1985. Defendant was subsequently sentenced on March 7, 1986 to thirty years at Level V for each conviction, sentences to run consecutively, for a total of sixty years. The Supreme Court affirmed his convictions on May 11, 1987. Defendant filed his first motion for postconviction relief pro se on June 26, 1992, which this Court denied. The Supreme Court affirmed the denial of that motion on March 15, 1993. Defendant filed his second motion for postconviction relief pro se on May 17, 2002, which this Court summarily dismissed. That decision was affirmed by the Supreme Court on October 10, 2002.
Grayson v. State, 524 A.2d 1 (Del. 1987).
State v. Grayson, Del. Super., ID No. 30500267DI, Del Pesco, J. (Dec. 15, 1992).
Grayson v. State, 1993 WL 78229 (Del.Supr.).
State v. Grayson, 2002 WL 1335523 (Del.Super.).
Grayson v. State, 2002 WL 31107571 (Del.Supr.).
2. Defendant then filed this third motion for postconviction relief on March 27, 2007. Defendant's motion states four grounds for relief: (1) double jeopardy, (2) lack of jurisdiction, (3) prejudice due to the absence of a certain medical report, and (4) ineffective assistance of counsel.
3. Before addressing the merits of a motion for postconviction relief, the Court must first apply the procedural bars of Rule 61. If a procedural bar exists, then the Court will 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).
4. Rule 61(i)(1) will bar a motion filed more than three years 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 claimant can avoid this procedural bar, however, if under 61(i)(5), if the claimant 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.
An amendment changing the time limit in Rule 61(i)(1) to one year applies only to cases where the judgment of conviction became final after July 1, 2005.
Younger, 580 A.2d at 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 May 11, 1987 when the Supreme Court issued the mandate in his case. Defendant's motion, filed on March 27, 2007, is clearly outside the applicable three year time limit. Therefore, only if Defendant demonstrates that the Court lacked jurisdiction or makes a colorable constitutional claim can he avoid this procedural bar.
Super. Ct. Crim. R. 61(m)(2).
6. It is clear from Defendant's motion and the record of his prior proceedings that Defendant's claims do not meet the high standard that the fundamental fairness exception requires. His first two grounds for relief that allege a double jeopardy violation and lack of jurisdiction are meritless. Additionally, Defendant's third and fourth grounds were previously raised in his first two postconviction relief motions, which were denied by this Court.
9. Therefore, for the reasons stated above, Defendant's third motion for postconviction relief is SUMMARILY DISMISSED.
10. Additionally, Defendant requests appointment of counsel. However, there is no constitutional right to counsel in a post-conviction proceeding. Rule 61(e) provides that the Court shall "appoint counsel for an indigent movant only in the exercise of discretion and for good cause shown, but not otherwise." Defendant has not shown good cause in support of his request for appointment of counsel. Accordingly, Defendant's motion for appointment of counsel is DENIED.
Floyd v. State, 1992 WL 183086 (Del.Supr.) (citing Ross v. Moffitt, 417 U.S. 600 (1974)).
See State v. Johnson, 2004 WL 3029940 (Del.Super.) (holding that the defendant's allegations that he was poorly educated and had less access to the law library than the other inmates were "not exceptional circumstances that require court-appointed counsel").
IT IS SO ORDERED.