         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 DEVEARL BACON,                           §
                                          §   No. 587, 2018
       Defendant Below,                   §
       Appellant,                         §
                                          §
       v.                                 §   Court Below–Superior Court
                                          §   of the State of Delaware
 STATE OF DELAWARE,                       §
                                          §   Cr. ID No. 0006017660 (N)
       Plaintiff Below,                   §
       Appellee.                          §

                          Submitted: March 25, 2019
                          Decided:   May 14, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                      ORDER

      After careful consideration of the appellant’s opening brief, the State’s motion

to affirm, and the record on appeal, it appears to the Court that:

      (1)    The appellant, Devearl Bacon, appeals from the Superior Court’s order

denying his third motion for postconviction relief under Superior Court Criminal

Rule 61 (“Rule 61”). The State has filed a motion to affirm the Superior Court’s

judgment on the ground that it is manifest on the face of Bacon’s opening brief that

his appeal is without merit. We agree and affirm.

      (2)    In June of 2001, a Superior Court jury found Bacon guilty of five counts

of first degree robbery, one count of first degree carjacking, two counts of aggravated

menacing, two counts of possession of a firearm during the commission of a felony,
two counts of possession of a deadly weapon by a person prohibited, and two counts

of wearing a disguise during the commission of a felony.

       (2)    On July 20, 2001, the Superior Court sentenced Bacon to an aggregate

of 34 years of Level V imprisonment, followed by probation. On direct appeal, this

Court affirmed Bacon’s convictions and sentence.1 In 2006 and 2016, this Court

affirmed the Superior Court’s denials of Bacon’s two previous motions for

postconviction relief.2

       (3)    Bacon filed his third motion for postconviction relief on October 3,

2018. The Superior Court concluded the motion was procedurally barred by Rule

61 and dismissed it on November 13, 2018.

       (4)    We affirm the Superior Court’s order. Bacon’s asserts that the decision

handed down by the United States Court of Appeals for the Third Circuit Court in

Mack v. Superintendent Mahoney SCI3 created a new rule of constitutional law

sufficient to excuse his procedural default under Rule 61. Bacon is incorrect. Rule

61 excuses procedural defaults if the motion pleads with particularity (i) the

existence of new evidence of actual innocence or (ii) that a new rule of constitutional




1
  Bacon v. State, 2002 WL 1472287 (Del. July 1, 2002).
2
  Bacon v. State, 2006 WL 1725589 (Del. June 21, 2006); Bacon v. State, 2016 WL 4761948
(Del. Sept. 12, 2016).
3
  714 F. App’x 151 (3rd Cir. 2017).


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law, made retroactive to cases on collateral review by the United States Supreme

Court or the Delaware Supreme Court, applies to the movant’s case.4

       The Mack decision did not create a new rule of constitutional law; the Third

Circuit merely applied the United States Supreme Court precedent of Martinez v.

Ryan5 to the facts before it.6 We have previously held that Martinez did not create a

newly-recognized retroactive right to counsel entitling a movant to overcome Rule

61’s procedural bars.7

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                            BY THE COURT:

                                            /s/ Collins J. Seitz, Jr.
                                                   Justice




4
  Super. Ct. Crim. R. 61(d)(2).
5
  566 U.S. 1 (2012).
6
  Mack, 714 F. App’x, at 152 (“We too agree that Martinez applies . . . .”).
7
  Roten v. State, 2013 WL 5808263, at *1 (Del. Oct. 28, 2013) (“Martinez does not hold that
there is a federal constitutional right to counsel in first postconviction proceedings.”).


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