John A. Parkins, Jr. Superior Court Judge
Defendant was convicted in 1983 of murder in the first degree for the stabbing death of Aaron Portlock. Some 31 years later he has brought his first Rule 61 motion. In that motion he alleges:
1. He was indicted under the wrong statute.
2. He was found guilty of felony murder but not found guilty of any underlying felony.
3. The trial court abused its discretion when it allowed his counsel to have a private polygraph examination administered to him.
4. The prosecutor misled the trial court into allowing him to undergo a private polygraph examination.
These claims are procedurally barred because they have been filed too late.
Criminal Rule 61 provides that motions for post-conviction relief must be filed within one year of the date on which the conviction became final. It provides:
Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
The instant motion was filed more than 30 years after Defendant's conviction became final and is obviously time-barred. Rule 61 contains an exception to the time bar for defendants who can show cause for, and prejudice flowing from, the untimely filing. Defendant makes no such showing in this case.
Rule 61 also exempts from procedural bars instances in which the defendant can:
(i) plead[ ] with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) plead[ ] with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction or death sentence invalid.
Again, Defendant makes no such showing. With respect to his claim that he was indicted under the wrong statute, the court notes he was indicted under 11 Del. C. § 636 for intentional murder. The evidence was that Defendant stabbed his victim in the back twice, and the jury found him guilty of that offense. It is difficult to see, therefore, how this amounts to an indictment under the wrong statute. With respect to Defendant's complaint that he is not guilty of felony murder, because was ...