Submitted: August 17, 2017
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE SUMMARIILY DISMISSED
Grubb, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.
E. Miller, James T. Vaughn Correctional Center, 1181 Paddock
Road, Smyrna, DE, pro se.
Katharine L. Mayer Commissioner.
14th day of September, 2017, upon consideration of
Defendant's Motion for Postconviction Relief and the
record in this matter, the following is my Report and
FACTS AND PROCEDURAL HISTORY
December 5, 2006, while serving a sentence of 30 years for a
1998 conviction, Defendant plead guilty to felony Terroristic
Threatening and two counts of Misuse of Prisoner's Mail.
Defendant was sentenced on March 16, 2007, and his conviction
was affirmed by the Delaware Supreme Court on December 12,
2007. Nine years later, Defendant has now filed
his third Motion for Postconviction Relief (the
"Motion"). Defendant's Motion argues that he was
"driven crazy by years of solitary confinement and a Hep
C treatment, " that the Court did not consider those
factors at sentencing, and therefore, he requests a sentence
adjustment to account for his mental illness as a mitigating
Court must first determine whether there are any procedural
bars to the motion before considering the merits of the
claims. It is evident that the Motion should be
summarily dismissed as procedurally barred and as such,
further briefing on this matter would not assist the
initial matter, Defendant's Motion is barred by Superior
Court Criminal Rule 61(i)(1) for having been filed more than
one year after the judgment of conviction became final.
Defendant's judgment of conviction became final in
2007.This Motion, having been filed more than
nine (9) years later, is untimely. In addition, second or
subsequent postconviction motions shall be summarily
dismissed, unless the movant was convicted after a trial and
the motion meets certain criteria. This is Defendant's
third motion under Rule 61, he was not convicted after a
trial, and as set forth below, the motion does not meet the
exceptions to the bar.
any ground for relief that was not asserted in the
proceedings leading to the judgment of conviction is barred,
unless the movant can show cause for relief from the
procedural default and prejudice from a violation of the
movant's rights.Despite an appeal of his conviction, as
well as two prior postconviction motions and appeals,
Defendant never before raised the issue presented in the
Motion. Defendant had a full and fair opportunity to raise
the issue in the prior proceedings and his failure to do so
bars his ability to raise it at this late juncture and is
deemed procedurally defaulted.
bars to relief set forth above though will not apply to a
claim that (i) the court lacked jurisdiction, (ii) pleads
with particularity that new evidence exists creating a strong
inference that the movant is actually innocent in fact of the
acts underlying the conviction, or (iii) a new rule of
constitutional law, made retroactive to cases on collateral
review, applies to render the conviction
invalid. Defendant does not argue the Court lacked
jurisdiction, has not plead any new evidence or facts
demonstrating that he is innocent of the acts giving rise to
the conviction, nor has he asserted that a new rule of
constitutional law affects his conviction. As such, Defendant
has failed to establish an exception to the procedural
to the extent Defendant seeks to modify his sentence, the
Motion is also untimely under Superior Court Criminal Rule 35
for having not been filed within 90 days of sentencing. The
Court will not consider repetitive requests to reconsider
sentencing and will only grant an exception from
the deadline in extraordinary circumstances or if 11 Del. C.
§4217 applies. Neither is present here. ...