STATE v. HICKMAN, 0104000979 (Del.Super. 12-12-2007)

Def. ID No. 0104000979.Superior Court of Delaware, Sussex County.
December 12, 2007.

Lester J. Hickman, Smyrna, DE.

E. SCOTT BRADLEY, Judge

Memorandum Opinion — Motion for Postconviction Relief
Dear Mr. Hickman:

This is my decision on your third motion for postconviction relief. You were convicted of Trafficking in Cocaine, Possession With the Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia on August 30, 2001.[1] Following your convictions, the State filed a motion to have you sentenced as a habitual offender, pursuant to 11 Del.C. § 4214(b). I declared you a habitual offender on November 2, 2001 and sentenced you to two life sentences plus seven years at Supervision Level V.

You filed your first motion for postconviction relief on December 1, 2003. I denied it on February 6, 2004.[2] You filed your second motion for postconviction relief on October 5, 2006. I denied it on January 16, 2007.[3] You filed your third motion for postconviction relief on October 11,

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2007.

In your third motion for postconviction relief you allege that (1) your sentence was illegal because the crime of Possession With the Intent to Deliver Cocaine does not carry a life sentence; and (2) your constitutional rights were violated because you could not cross examine one of the State’s toxicologists at your trial.

Your third motion for postconviction relief is barred by Superior Court Criminal Rule 61(i)(1). This rule provides that a “motion for postconviction relief may not be filed more than one year after the judgment of conviction is final . . . “[4] Prior to a change in Rule 61 that became effective on July 1, 2005, the time limit to file a motion for postconviction relief was three years. This rule also extends the time for filing a motion for postconviction relief that is based on a right that is first recognized by the Supreme Court of the United States or Supreme Court of Delaware. Your second argument is based o Holmes v. South Carolina.[5] However, this case does not establish a newly recognized right. It merely reverses an evidentiary ruling made by the trial court that is wholly inapplicable to your case. Therefore, your deadline for filing a motion for postconviction relief was July 19, 2005. You filed your third motion for postconviction relief on October 11, 2007, more than two years after the cut-off date. Therefore, your motion for postconviction relief is barred by Rule 61(i)(1).

The bar to relief under Rule 61(i)(1) does not apply to a claim that “the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, or fairness of the proceedings leading

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to the judgment of conviction.”[6] You have not raised a colorable claim that requires consideration under this exception. I considered your first and second arguments in my decisions on your first and second motions for postconviction relief, respectively, and concluded that your arguments were wrong. Your third motion for postconviction relief is denied.

IT IS SO ORDERED.

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