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State v. Carter
Superior Court of Delaware
August 17, 2018
STATE OF DELAWARE
JERMAINE L. CARTER, Defendant.
Submitted: August 6, 2018
ORDER SUMMARILY DISMISSING JERMAINE L. CARTER'S
MOTION FOR POSTCONVICTION RELIEF
ABIGAIL M. LEGROW, JUDGE.
17th day of August, 2018, upon consideration of the Motion
for Postconviction Relief filed by Jermaine L. Carter, the
record in this matter, and Superior Court Criminal Rule 61
("Rule 61"), it appears to the Court that:
1. On January 4, 2017, following a one-day bench trial, this
Court found Carter guilty of Assault in a Detention Facility
and immediately sentenced him to five years at Level V,
suspended after two years for 18 months at Level
III. On February 1, 2017, Carter, through
counsel, appealed the conviction and sentence. Carter's
counsel later filed a brief and a motion to withdraw under
Delaware Supreme Court Rule 26(c), asserting there were no
arguably appealable issues.
2. On June 16, 2017, the Delaware Supreme Court issued an
order affirming Carter's conviction. The Supreme Court
issued its mandate on July 5, 2017.
3. On August 6, 20 1 8, Carter filed a motion for
postconviction relief (the "Motion"). In the
Motion, Carter alleges one ground for relief:
"unreasonable search and seizure." In support,
he states "I never got a copy of the affidavit and/or
search or arrest warrant." Carter also attached to
his Motion a memorandum of law. The argument contained in
that memorandum of law, however, does not relate to
Carter's current case. Rather, the memorandum cites two
grounds for relief: one regarding withdrawal of Carter's
guilty plea and one regarding counsel's "failure to
investigate and develop mitigating evidence that would have
supported defendant's case during his
sentencing." As Carter did not plead guilty in this
case, the first argument appears unrelated to this matter or
the ground asserted in the Motion. Similarly, Carter's
argument regarding sentencing refers to a sentence imposed on
November 6, 1987.
4. Under Superior Court Criminal Rule 61(d)((5), this Court
may dismiss summarily a motion for postconviction relief if
"it plainly appears from the motion . . . and the record
of prior proceedings in the case that the movant is not
entitled to relief." One appropriate basis for summary
dismissal is an untimely postconviction motion. Rule 61
imposes a one-year time limitation on motions for
postconviction relief. Under that rule, a motion "may
not be filed more than one year after the judgment of
conviction is final . . . ." When a defendant files
a direct appeal, as Carter did in this case, a judgment of
conviction is final for purposes of Rule 61 "when the
Supreme Court issues a mandate or order finally determining
the case on direct review." The one-year time
limitation does not apply, however, to a claim that the court
lacked jurisdiction or if the defendant pleads with
particularity that (i) new evidence exists creating a strong
likelihood the defendant actually is innocent of the acts
underlying the charges of which he was convicted, or (ii) a
new rule of constitutional law, made retroactive to cases on
collateral review, applies to the case and renders the
5. The Supreme Court issued its mandate on July 5, 2017,
finally determining Carter's conviction on direct review.
Carter did not file this Motion until August 6, 2018. Under
the plain terms of Rule 61, Carter's Motion is untimely
and therefore procedurally is barred. Carter has not pleaded
specifically (or even generally) that the bar is not
applicable. Because the motion is barred procedurally, the
Court may not consider its merits.
Motion for Postconviction Relief therefore SUMMARILY
IS DISMISSED. IT IS SO ORDERED.
 D.I. 16.
Carter v. State, 2017 WL 2628161
(Del. Jun. 16, ...
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