Submitted: February 16, 2015
Delaware Department of Justice, Attorneys for the State.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF (FIFTH) SHOULD BE SUMMARILY DISMISSED.
BRADLEY V. MANNING, COMMISSIONER.
This 21st day of April, 2015, upon consideration of defendant Mark A. Kirk's fifth Motion for Postconviction Relief, the Court finds the following:
FACTS AND PROCEDURAL HISTORY
Kirk was convicted of three counts of murder in 1997 and sentenced to life in prison. Subsequent motions and appeals by Kirk resulted in him being resentenced to three counts of manslaughter and various assault charges, to a total of 46 years of incarceration. The facts leading to his convictions have been recited numerous times by this Court and the Delaware Supreme Court, and do not need repeating here. Kirk has previously filed four separate motions for postconviction relief, with some success. The present motion before the Court is Kirk's fifth with the Superior Court. Kirk's most recent motion for postconviction relief was in 2007.
DEFENDANT'S RULE 61 MOTION
Kirk's claim for postconviction relief is that he has "new evidence not presented at trial" that will exonerate him. This "newly discovered evidence" is a video created by forensic fire investigator John Lentini that depicts three failed attempts to ignite a fire on an electric stove using 70-proof Captain Morgan's Rum. Kirk also makes various accusatory allegations regarding the competence of his trial counsel, competence of the defense expert who testified at trial and of the State Fire Marshal's investigation of the fire and reenactment. Finally, Kirk challenges this Court to have the "moral fiber" to give him the chance to present his "new evidence" and prove "beyond any shadow of a doubt I didn't start [the] fire."
Kirk asserts that with the most recent amendment of Superior Court Criminal Rule 61, on June 4, 2014, he should be allowed to present his "new evidence" pursuant to Rule 61(d)(2)(i). The newly amended Rule 61(d) states as follows:
(d) Preliminary consideration.
(1) First postconviction motion. -- A first postconviction motion shall be presented promptly to the judge who accepted a plea of guilty or nolo contendere or presided at trial in the proceedings leading to the judgment under attack. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge in accordance with the procedure of the court for assignment of its work. The judge shall promptly examine the motion and contents of the files relating to the judgment under attack.
(2) Second or subsequent postconviction motions. -- A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:
(i) pleads 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) pleads 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 ...