IN THE SUPREME COURT OF TI-IE STATE OF DELAWARE

BRUCE J. CARR, §
§ No. 79, 2016
Defendant Below, §
Appellant, § Court Below-Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 82002234DI
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: April ll, 2016
Decided: June 16, 2016

Before VALIHURA, VAUGHN and SEITZ, Justices.
0 R D E R

This 16"' day of June 2016, it appears to the Court that:

(l) The appellant, Bruce J. Carr, filed this appeal from the Superior
Court’s orders dated February 4, 2016, denying his letter request "to amend [his]
sentence" and his motion for new trial. The appellee, State of Delaware, has
moved to affirm the Superior Court’s judgments on the ground that it is manifest
on the face of the opening brief that the appeal is without merit. We agree and
affinn.

(2) In 1982, Carr was convicted of kidnapping, conspiracy, rape, and

attempted rape, and was sentenced to six consecutive life terms plus forty years.

The conviction was affirmed on direct appeal.l Carr has filed many unsuccessful
petitions seeking to overtum his conviction and sentences.

(3) On January 8, 2016, Carr filed a letter requesting that the Superior
Court resentence him to concurrent terms of imprisonment under a 2014
amendment to ll Del. C. § 390l(d). By order dated February 4, 2016, the
Superior Court denied the motion, ruling that section 390l(d) as amended was not
intended to have retroactive effect. The Superior Court was correct. The
amendment of section 390l(d) does not apply retroactively to sentences imposed
before Ju1y 9, 2014.1

(4) On january 14, 2016, Carr filed a motion for new trial based on newly
discovered evidence. Carr’s motion attached a copy of a News Joumal article from
April 22, 2015, reporting on a federal govemment review of criminal trials across
the country, including three unnamed cases from Delaware, in which FBI hair
examiners provided flawed testimony. Carr sought a new trial on the basis that the
evidence admitted at his 1982 trial included forensic testing conducted by the FBI,
and that his case might be one of those in which the FBI gave flawed testimony.

(5) By order dated February 4, 2015, the Superior Court summarily
denied Carr’s motion for new trial as untimely filed under Superior Court Criminal

Rule 33. The court found that the relief sought by Carr was more properly

' carr v. Sm:e, 474 A.zd 133 (Del. 1933 (Table), 1933 Del. L.Exls 520 (1)¢1. Nov. 9, 1933).
1 Fm¢nrarn v. sm1e,_“A.3d __., 2016 wL 2927750, at *4-5 (oel. may 16, 2016).

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addressed in a motion for postconviction relief under Superior Court Criminal Rule
6I.

(6) On appeal, Carr contends that he modeled his motion for new trial
after another defendant’s motion for new trial, which was not summarily denied as
untimely filed.3 Carr claims that the Superior Court’s summary denial of his
motion for new trial was an abuse of discretion.

(7) Carr’s claim is without merit. Rule 33 requires that a motion for new
trial based on newly discovered evidence must be filed within two years of final
judgment, which clearly was not done in Carr’s case. Although the Superior Court
could have considered Carr’s motion for new trial as a motion for postconviction
relief under Rule 61 ,4 it was not required to do so.

NOW, TI-IEREFORE, IT IS ORDER_ED that the motion to affirm is

GRANTED. Thejudgments of the Superior Court are AFFIRMED.

BY THE COURT:

 

3 The other case Carr refers to is Sta!e v. Biggins, Del. Super., Cr. ID No. 9609015504. The
Court is fainiliar with that case, having recently issued an Order dismissing the defendant’s
petition for an extraordinary writ. in re Biggins, Del. Supr., No. 33, 2016 (June l, 2016) (0rder).
ln that case, the defendant filed a host of motions, including a motion for new trial, referencing
the same News journal article from April 2015 as well as a June 2015 letter from the United
States Department of Justice, questioning the conclusions drawn from the microscopic hair
comparison analysis testimony at the defendant’s trial.

4 Cf Dovvnes v. Stare, 77l A.Zd 289, 292 (Del. 200l) ("[W]e now hold that a defendant may use
Rule 61 to seek a new trial even if such a motion would be time barred under Rule 33.").

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