Submitted: June 25, 2014.
Upon Consideration of Defendant's Sixth Motion For Postconviction Relief, DENIED.
Gregory E. Smith, Deputy Attorney General, Department of Justice, Carvel State Office Building, Attorney for the State.
Alan S. Bass, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
VIVIAN L. MEDINILLA, Judge.
On this 26th day of September, 2014, upon consideration of Defendant Alan S. Bass' Sixth Motion for Postconviction Relief, it appears to the Court that:
1. In June 1983, a jury convicted Bass of two counts of Rape First Degree, three counts of Kidnapping First Degree, two counts of Robbery First Degree, Attempted Robbery First Degree, two counts of Burglary Second Degree, and Burglary Third Degree. On January 13, 1984, this Court sentenced him to a total of five life sentences plus forty-five (45) years of imprisonment. Bass' convictions and sentences were affirmed on direct appeal.
2. On September 16, 2013, Bass filed his sixth Motion for Postconviction Relief pursuant to Delaware Superior Court Criminal Rule 61, attaching a Motion for Appointment of Counsel, an Affidavit, and Memorandum of Law in support thereof. After receiving this Court's leave for an extension of time over Bass' objections,  the State filed its Response on May 30, 2014. Thereafter, Bass filed several responsive motions. Because Bass' claims are procedurally barred, this Court need not address the merits of his contentions.
3. Under Delaware law, when considering a motion for post-conviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61 before it may consider the merits of the defendant's claim. If a motion for post-conviction relief is filed after three years from the date the judgment became final, this Court "may not extend the time for taking action." Bass' convictions became final for purposes of Rule 61 on October 11, 1985, when the Delaware Supreme Court affirmed his convictions on direct appeal. Accordingly, the instant motion is time-barred. An exception to this rule exists where a motion asserts a "retroactively applicable right." No such right has been asserted, nor does one apply here.
4. Further, Rule 61 bars formerly adjudicated claims,  and those that raise arguments which could have been raised earlier but were not, unless the interests of justice so require. Procedural bars can otherwise be overcome if the movant shows "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 the proceedings leading to the judgment of conviction."
5. Bass cannot show that the interests of justice would be served by entertaining his motion, nor would a miscarriage of justice result from applying the procedural bars of Rule 61 here. In substance, the instant motions are predicated upon a mistake appearing in the State's recitation of facts during Bass' previous appeal. Specifically, in its Motion to Affirm the denial of Bass' fifth motion for postconviction relief, the State mistakenly asserted that Bass was arrested at the scene of one of his crimes. In fact, Bass was arrested some time later, after eyewitnesses picked him from a photo array. In the instant motion, Bass contends that the State's misstatement of a non-critical fact during the course of his fifth Rule 61 appeal constituted an amendment to his indictment and retroactively changed the basis for his arrest. This argument is wholly without merit. Bass' indictment by a Grand Jury constituted an independent finding of probable cause against him. He was found guilty of 11 felonies, including rapes, kidnappings, robberies, and burglaries after a trial by jury. His conviction and sentence were affirmed on direct appeal. Bass' sixth motion for post-conviction relief is procedurally barred and otherwise fails to state a colorable claim of miscarriage of justice.
6. Finally, because this Court finds no cognizable basis to grant Bass' requested relief, this Court declines to appoint counsel for his post-conviction proceedings.
7. Accordingly, Defendant's Sixth Motion for Postconviction ...