Submitted: March 30, 2015
On Defendant's Third Motion for Postconviction Relief.
On Defendant's Motion for Appointment of Counsel.
Kathleen M. Jennings, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Lee A. Israel, Smyrna, Delaware, pro se.
RICHARD R. COOCH, R.J.
This 9th day of June, 2015, upon consideration of Defendant's pro se Third Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Lee A. Israel was found guilty in November 1985 of one count of Rape First Degree, one count of Burglary First Degree, one count of Attempted Burglary Second Degree, and one count of Misdemeanor Theft. Defendant was then sentenced in February 1986 to life in prison plus fifty two years. The Delaware Supreme Court affirmed Defendant's convictions on direct appeal.
2. Defendant filed his First Motion for Postconviction Relief in July 1995. That motion was denied by this Court in February 1996 and the denial was affirmed by the Supreme Court of Delaware in June 1996.Defendant filed his Second Motion for Postconviction Relief in July 2004. That motion was summarily dismissed by this Court in September 2004 and the summary dismissal was affirmed by the Supreme Court of Delaware in February 2005. Defendant filed a federal habeas corpus petition in 2007, which was also denied.
3. Defendant filed the instant motion on March 6, 2015. The Motion asserts two grounds for relief, listed here in toto:
Ground one: The movant was denied a fair trial when Lieutenant Wilkinson testified about the conclusions of two other fingerprint analyst[s] who were not available to testify at trial.
Ground two: The movant was denied a fair trial when Joseph M. Henry M.D., testified about the test results of specimen evidence sent to a laboratory for analysis as coming back positive.
4. Defendant's Motion for Postconviction Relief is controlled by the recently amended Superior Court Criminal Rule 61 as the motion was filed after the new rule took effect on June 4, 2014. Under Superior Court Criminal 61(i), a Motion for Postconviction Relief can be potentially procedurally barred for time limitations, successive motions, procedural defaults, and former adjudications.
5. Rule 61(i)(1) provides that a motion exceeds time limitations if it is filed more than one year after the conviction is finalized, or if the motion asserts a newly recognized, retroactively applied ...