   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                     )
STATE OF DELAWARE                    )
                                     )
      v.                             )      I.D. No. 0608011014
                                     )
TERRELL A. GEE,                      )
                                     )
                   Defendant.        )
                                     )


                        Submitted: January 4, 2016
                        Decided: March 14, 2016

           On Defendant’s Third Motion for Postconviction Relief.
                     SUMMARILY DISMISSED.

    On Defendant’s “Motion for Amendment to Rule 61 Application.”
                    SUMMARILY DISMISSED.

                                ORDER
Joseph S. Grubb, Esquire, New Castle County Prosecutor, Department of
Justice, Wilmington, Delaware.

Terrell A. Gee, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.

COOCH, R.J.

      This 14th day of March, 2016, upon consideration of Defendant’s
Third Motion for Postconviction Relief and “Motion for Amendment to Rule
61 Application,” it appears to the Court that:

      1.     On June 22, 2007, Defendant Terrell A. Gee was found guilty
             of three counts of Rape Second Degree and sentenced to 36
             years at Level V, suspended after 30 years for a term of
              probation. 1 Defendant’s conviction was upheld by the
              Delaware Supreme Court on June 4, 2008.2

       2.     On June 3, 2009, Defendant filed his First Motion for
              Postconviction Relief (“First Motion”), which was denied on
              November 3, 2009.3 This Court’s denial of Defendant’s First
              Motion was affirmed by the Delaware Supreme Court on
              September 23, 2010. 4 Defendant then filed a Second Motion
              for Postconviction Relief (“Second Motion”) on January 24,
              2011. Defendant’s Second Motion was summarily dismissed
              on February 23, 2011. 5

       3.     On December 29, 2015, Defendant filed both his Third Motion
              for Postconviction Relief (“Third Motion”) and a “Motion for
              Amendment to Rule 61 Application” (“Motion to Amend”). In
              his Motion to Amend Defendant states, “[he] is in the
              investigatory stages and continues to research a basis upon
              which to proceed” on his Third Motion. 6 Defendant also states
              that he anticipates counsel will be retained or appointed and he
              wants to preserve the opportunity for his future counsel to
              amend his Third Motion.7

       4.     Defendant’s Third Motion is controlled by Superior Court
              Criminal Rule 61. 8 Before addressing the merits of this Third
              Motion, the Court must address any procedural requirements.9

       5.     A motion for postconviction relief can be procedurally barred
              for time limitations, successive motions, procedural defaults,
              and former adjudications. 10 If a procedural bar exists, the Court
              will not consider the merits of the postconviction claim unless


1
  Gee v. State, 950 A.2d 658, 2008 WL 2267185, at* 1 (Del. June 4, 2008) (TABLE).
2
  Gee v. State, 950 A.2d 658, 2008 WL 2267185, at* 1 (Del. June 4, 2008) (TABLE).
3
  Gee v. State, 5 A.3d 630, 2010 WL 3719891, at* 1 (Del. Sept. 23, 2010) (TABLE).
4
  Gee v. State, 5 A.3d 630, 2010 WL 3719891, at* 1 (Del. Sept. 23, 2010) (TABLE).
5
  State v. Gee, 2011 WL 880851, at* 1 (Del. Super. Feb. 23, 2011).
6
  Def’s. Mot. for Amendment to Rule 61 Application, D.I.# 59 (Dec. 29, 2015).
7
  Id.
8
  Super. Ct. Crim. R. 61.
9
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
10
   Super. Ct. Crim. R. 61(i)(1)-(4).
                                          2
               the Defendant can show that, pursuant to Rule 61(d)(2), the
               procedural bars are inapplicable.

       6.      Rule 61(d)(2) provides for consideration of otherwise
               procedurally barred claims in two different situations. First,
               when a defendant pleads with particularity that there is new
               evidence that creates a strong inference that the defendant is
               actually innocent. 11 Second, when the defendant pleads with
               particularity that a new rule of constitutional law that has been
               made to apply retroactively on collateral review by the United
               States Supreme Court or the Delaware Supreme Court renders
               the defendant’s conviction or death sentence invalid.12

       7.      Defendant’s Third Motion is procedurally barred for two
               reasons. First, Defendant’s Third Motion is time barred
               pursuant to Rule 61(i)(1). 13 Defendant filed his Third Motion
               more than 1 year after his judgment of conviction became final.
               Defendant’s judgment of conviction became final on June 4,
               2008. 14 Defendant filed this Motion on December 29, 2015,
               more than seven-and-a-half years later.

       8.      Defendant’s Third Motion is also barred because it is a
               successive motion. Rule 61(i)(2) states, “[n]o second or
               subsequent motion is permitted under this Rule unless the second
               or subsequent motion satisfies the pleading requirements in” Rule
               61(d)(2). Defendant has failed to satisfy those pleading
               requirements. Defendant has not plead with any particularity that
               new evidence exists to create a strong inference that he is actually
               innocent. Nor has Defendant asserted any new rule of
               constitutional law has been made to apply retroactively to cases
               on collateral view and renders his conviction invalid.

   Therefore, Defendant’s Third Motion and Motion to Amend are
SUMMARILY DISMISSED.

11
   Super. Ct. Crim. R. 61(d)(2)(i).
12
   Super. Ct. Crim. R. 61(d)(2)(ii).
13
   See Super. Ct. Crim. R. 61(i)(1) (barring postconviction motions filed more than 1 year
after judgment of conviction is final).
14
   Felton v. State, 2008 WL 308231, at* 2 (Del. Feb. 1, 2008) (TABLE) (measuring the
start of the filing period for a Rule 61 motion from the date the direct Supreme Court
mandate was issued and direct appeal process concluded).
                                            3
      IT IS SO ORDERED.

                                   ______________________
                                     Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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