Submitted: May 31, 2018.
Defendant's Third Motion for Postconviction Relief.
Defendant's Motion for Appointment of Counsel. DENIED.
S. Grubb, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
D. Bezarez, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.
RICHARD R. COOCH, R.J.
day of August, 2018, upon consideration of Defendant's
third Motion for Postconviction Relief and Motion for
Appointment of Counsel, it appears to the Court that:
facts of this case were set forth in this Court's opinion
issued on June 22, 2010 as follows:
On March 19, 2007, Defendant, Jose Bezarez, was indicted on
four counts of Reckless Endangering First Degree stemming
from a shooting that occurred at an apartment building in New
Castle. Defendant allegedly discharged a firearm in an
apartment located directly above the victims' apartment
and the bullets from Defendant's weapon pierced the
ceiling of the victims' apartment while the victims were
inside of their apartment. Defendant subsequently entered a
nolo contendere plea to one count of Reckless
Endangering First Degree and was sentenced to two years of
incarceration at Level V.
January 4, 2010, Defendant filed, pro se, his first
Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61. This Court denied that Motion on June 22,
2010,  and the Supreme Court of Delaware
dismissed the appeal on August 13, 2010.
Defendant filed his second, pro se, Motion for
Postconviction Relief on March 18, 2014. This Court denied
Defendant's motion on May 12, 2014. An appeal was filed
on May 27, 2014,  and the Supreme Court affirmed this
Court's judgment on December 23, 2014.
Defendant has now filed, pro se, his third Motion
for Postconviction Relief along with a Motion for Appointment
of Counsel. In this Motion for Postconviction Relief,
Defendant raises one ground for relief; that "[c]ounsel
failed to property advise Bezarez as to a plea and failed to
provide him with effective representation in violation of the
6th, and 14thamendment[s] of the U.S.
61 is the remedy for defendants "in custody under a
sentence of this court seeking to set aside the judgment of
conviction . . . ." This Court "must first consider
the procedural requirements of Rule 61 before addressing any
substantive issues." The procedural bars of Rule
61 include timeliness,  successiveness,  procedural
default,  and former adjudication. A motion is
untimely if it is filed more than one year after the
conviction is finalized or defendant asserts a new
constitutional right that is retroactively applied more than
one year after it is first recognized. A motion is
successive if it is a "second or subsequent
motion." If any of these bars apply, the movant
must show entitlement to relief under Rule