Submitted: August 6, 2019
Commissioner's Report and Recommendation That
Defendant's Motion for Postconviction Relief Should Be
Honorable Mary M. Johnston Judge.
17th day of September 2019, the Court has
considered the Commissioner's Report and Recommendation,
Defendant's Motion for Postconviction Relief, and the
relevant proceedings below.
26, 2019, Defendant Richard S. Ferry filed this pro
se Motion for Postconviction Relief. The motion was
referred to a Superior Court Commissioner in accordance with
10 Del. C. § 512(b) and Superior Court Criminal
Rule 62 for proposed findings of fact and conclusions of law.
The Commissioner issued the Report and Recommendation on July
23, 2019. The Commissioner recommended that Defendant's
Motion for Postconviction Relief be summarily dismissed.
raises two claims in his motion. First, counsel's alleged
lack of trial strategy, and failure to disclose the
State's discovery, amounted to ineffective assistance of
counsel. Second, Defendant claims that his plea was not
to addressing the substantive merits of any claim for
postconviction relief, the Court must first determine whether
the defendant has met the procedural requirements of Superior
Court Criminal Rule 61. If a procedural bar exists, then the
claim is barred and the Court should not consider the merits
of the postconviction claim.
Motion for Postconviction Relief is time-barred. Rule
61(i)(1) requires Defendant to file his Motion for
Postconviction Relief within one year of a final order of
conviction. Defendant was sentenced on April 28, 2017.
Defendant's conviction became final on or about May 27,
2017. Defendant filed this Motion for
Postconviction Relief, over two years later, on June 26,
2019, exceeding the one-year limit.
order to overcome procedural hurdles, Defendant has three
options. Defendant may establish that: (1) the court lacked
jurisdiction; (2) new evidence exists that creates a strong
inference that Defendant is actually innocent of the
underlying charges for which Defendant was convicted; or (3)
a new rule of constitutional law made retroactive to
Defendant's case would render his convictions
motion fails to establish any of the exceptions to the
procedural bar. Neither of Defendant's claims establish
lack of jurisdiction. Defendant does not raise a new
constitutional law applicable to this case. Finally,
Defendant does not raise any new or recently
discovered evidence, or any evidence at all. All of
Defendant's claims arise from facts known to him at the
time of his plea in January 2017.
motion is otherwise procedurally barred. Rule 6l(i)(3)
further prevents this Court from considering any claim, at
this late date, that Defendant has not previously
raised. Defendant's claims stem from facts
known to him at the time of his plea in January 2017.
Defendant had time and opportunity to raise any issue in a
timely filed postconviction motion. Defendant has not
established any prejudice to his rights and/or cause for
been provided with a full and fair opportunity to present any
issue in a timely filed motion, Defendant's claims are
time-barred and otherwise procedurally barred.
Court holds that the Commissioner's Report and
Recommendation dated July 23, 2019 should be adopted for the
reasons set forth therein. The Commissioner's findings
are not clearly erroneous, ...