IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
Vv. I.D. No. 9804001318

LEROY SHELLEY,

New New Nee eee ree” eee” eee”

Defendant.
Submitted: January 8. 2020
Decided: January 28, 2020

Upon Defendant’s Fourth Motion for Postconviction Relief

SUMMARILY DISMISSED.

ORDER

LeRoy Shelley, pro se, Smyrna, DE.

Brian J. Robertson, Esquire, Deputy Attorney General, Department of Justice, 820
N. French St., Wilmington, Delaware, Attorney for the State.

WHARTON, J.
This 28th day of January, 2020 upon consideration of Defendant’s fourth
Motion for Postconviction Relief! and the record in this matter, it appears to the
Court that:

1. | Defendant LeRoy Shelley (“Shelley”) was convicted by a jury in 2007
of two counts each of Robbery First Degree, Kidnapping Second Degree, and
Possession of a Firearm During the Commission of a Felony, as well as a single count
of Conspiracy Second Degree. He waived his right to counsel and represented himself
at trial. He was sentenced on March 6, 2008, but did not file a direct appeal. Instead,
Shelley embarked on what has turned out to be a steady course of futile litigation
described in this Court’s denial of his most recent motion under Rule 35 to vacate his
sentence. The Delaware Supreme Court affirmed that decision.’

2. Undeterred, Shelley turns to Rule 61 for the fourth time seeking relief.
In the present motion, he raises claims that: 1) the prosecutor engaged in prosecutorial
misconduct by committing a Brady violation; 2) identifying him by his race violated
his due process rights; 3) the trial court should have directed a verdict in his favor on
three counts of the indictment — robbery first degree (IN07062478), possession of a
firearm during the commission of a felony (IN07062479), and kidnapping second

degree (IN06062483); 4) the evidence was insufficient to find him guilty; 5) the trial

 

'D.1.88.
2 State v. Shelley, 2019 WL 3458725 (Del. Super. July 31, 2019).
3 Shelley v. State, 20-20 WL 91816 (Del. Jan. 7, 2010).

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court denied him due process by giving erroneous jury instructions; and 6) the trial
court should have given lesser included offense instructions

5} Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal Rule
61(i).4 If a procedural bar exists, then the Court will not consider the merits of the
postconviction claim.°

5. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred for time limitations, successive motions,
procedural default, or former adjudication.® A motion exceeds time limitations if it
is filed more than one year after the conviction becomes final, or, if it asserts a
retroactively applicable right that is newly recognized after the judgment of
conviction is final, more than one year after the right was first recognized by the
Supreme Court of Delaware or the United States Supreme Court.’ A second or
subsequent motion is considered successive and therefore barred and subject to
summary dismissal unless the movant was convicted after a trial and “pleads with
particularity that new evidence exists that the movant is actually innocent” or
“pleads with particularity a claim that a new rule of constitutional law, made

retroactive to cases on collateral review by the United States Supreme Court or the

 

* Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5 Id.

‘ Super. Ct. Crim. R, 61(i).

T Super. Ct. Crim. R. 61(4)(1).
Delaware Supreme Court, applies to the movant’s case and renders the conviction

... Invalid.’

Grounds for relief “not asserted in the proceedings leading to the
judgment of conviction” are barred as procedurally defaulted unless the movant
can show “cause for relief” and “prejudice from [the] violation.”” Grounds for
relief formerly adjudicated in the case, including “proceedings leading to the
judgment of conviction, in an appeal, in a post-conviction proceeding, or ina
federal habeas corpus hearing” are barred.!°

6. The bars to relief do not apply either to a claim that the court lacked
jurisdiction or to a claim that pleads with particularity that new evidence exists that
creates a strong inference of actual innocence,'! or that a new retroactively applied
rule of constitutional law renders the conviction invalid.!? The bars remain
applicable here because Shelley has not claimed that the Court lacked jurisdiction,
nor has he met the pleading requirements of Rule 61(d)(2)(i) or (d)(2)(it).

7. This fourth motion is barred for multiple reasons. It is untimely,
having been filed more than a year after Shelley’s judgment of conviction became

final. It is a successive motion, his fourth, that does not satisfy the pleading

requirements of Rules 61(d)(2)(i) or (d)(2)(ii). It is subject to procedural default

 

§ Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).
» Super. Ct. Crim. R. 61(1)(3).

to Super. Ct. Crim. R. 61(i)(4).

" Super. Ct. Crim. R. 61(i)(5).

2 Super. Ct. Crim. R. 61(d)(2)(4) and (11).

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because it raises grounds for relief not previously asserted without showing cause
for relief from the procedural default and prejudice from a violation of his rights.

8. Summary dismissal is appropriate if it plainly appears from the motion
for postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief.'? It is plain from this fourth motion and the record
in this case that Shelley is not entitled to relief.

Therefore, since it plainly appears from Motion for Postconviction Relief and
the record in this case that Shelley is not entitled to relief, the Motion for
Postconviction Relief is SUMMARILY DISMISSED.

IT IS SO ORDERED.

 

a W. Wharton, J.

oc: Prothonotary
cc: Investigative Services

 

8 Super. Ct. Crim. R. 61(d)(5).
