Submitted: March 30, 2015
Upon Defendant's Motion for Postconviction Relief: DENIED.
Robert J. O'Neill, Jr., Esquire, Deputy Attorney General, Delaware Department of Justice, Attorney for the State.
Richard J. Zemble, Esquire, Attorney for Defendant.
Jan R. Jurden, President Judge
Luis Rivera filed the instant Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") alleging ineffective assistance of counsel. For the following reasons, the Motion is DENIED.
On October 18, 2011, a jury convicted Luis Rivera ("Rivera") of Trafficking in Heroin 2.5–10 grams, Possession With Intent to Deliver Heroin, Maintaining a Dwelling for Drug Purposes, Tampering With Physical Evidence, Possession of Drug Paraphernalia, and Unlawful Dealing With a Child. On February 3, 2012, Rivera was sentenced to a total of 30 years at Level V, suspended after 9 years for various levels of probation.
Rivera appealed the jury verdict arguing that the trial court erred in admitting into evidence his video recorded statement to the police because he was too intoxicated to knowingly and voluntarily waive his Miranda rights. On August 21, 2012, the Delaware Supreme Court affirmed the conviction finding that Rivera's claim had no merit and was waived because Rivera's counsel was given the opportunity to present a motion to suppress before trial began, but counsel declined.
On August 7, 2013, Rule 61 Counsel assisted Rivera in filing this motion for postconviction relief pursuant to Rule 61 ("Rule 61 Motion"). Rivera asserts that Trial Counsel's failure to file a motion to suppress Rivera's confession violated his implied right to effective counsel. On March 21, 2014, Trial Counsel filed an affidavit in response to allegations of ineffective assistance of counsel.
Rivera's Rule 61 Motion was stayed from May 2, 2014, until January 26, 2015, because of an intervening motion for postconviction relief filed regarding misconduct within the Office of the Medical Examiner. That intervening motion was withdrawn by stipulation on January 26, 2015, and therefore, the Court is now considering Rivera's Rule 61 Motion filed on August 7, 2013.
Before addressing the merits of any claim for postconviction relief, the Court must first determine whether any of the procedural bars under Rule 61 are applicable. Rule 61(i)(1) provides that a motion for postconviction relief must be filed within one year of a final judgment of conviction. Under Rule 61(i)(2), any ground not asserted in a prior postconviction proceeding is barred "unless consideration of the claim is warranted in the interest of justice." Rule 61(i)(3) bars consideration of any claim not asserted in the proceedings leading up to the judgment of conviction unless the movant can show "cause for relief from the procedural default" and "prejudice from violation of the movant's rights." ...