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Delaware Docket Newsletter
Summer 2014

Superior Court Rule 61 Amended

On June 4, 2014, Superior Court amended several provisions of its Criminal Rule 61, including section (a), which was amended to clarify that only movants who are currently in custody and are challenging the judgment for which they are in custody may file a motion under Criminal Rule 61.  Criminal Rule 61(d) was also amended to provide that a second or subsequent post-conviction motion will be summarily dismissed unless the movant was convicted after a trial and the motion pleads with particularity either that new evidence exists to establish the movant's actual innocence in fact, or that a new, retroactively applicable constitutional rule applies to the movant's case which renders the conviction or death sentence invalid.  Modifications to Criminal Rule 61(e) distinguished those cases in which counsel must be appointed to assist an indigent movant to pursue post-conviction relief from those cases in which appointment of counsel is discretionary.  Amended Rule 61(e) provides that the court, upon request, shall appoint counsel for any timely first post-conviction motion if the underlying conviction was imposed during trial and is for a crime designated as a class A, B or C felony, or if the conviction resulted in a habitual offender's life sentence or in a death sentence.  The court has the discretion to appoint counsel for other timely filed first post-conviction motions if the underlying conviction resulted from a guilty plea or was imposed following a trial for a less serious crime.  The amended Rules provide the specific criteria for those cases in which the court may exercise such discretion.  In addition, amendments to Rule 61(e) provide that a judge may appoint counsel for an indigent movant's second or subsequent post-conviction motion only if the motion meets the pleading requirements proscribed in new section (d)(2) of Rule 61.  Finally, Criminal Rule 61(i) was amended to incorporate new pleading standards for second or subsequent post-conviction motions, and to state that procedural bars of Criminal Rule 61(i)(1) " (4) do not apply to claims that satisfy the new pleading standards, and to clarify that exceptions to those procedural bars are limited to claims that the court lacked jurisdiction, or that satisfy the new pleading standards.  Amended Superior Court Rule 61 can be found at /Superior/pdf/criminal_rule_61_amend_2014.pdf.