Del. Super. Ct. Crim. R. 61

(a) Scope of rule.

(1) Nature of proceeding. This rule governs the procedure on an application by a person in custody

under a sentence of this court seeking to set aside the judgment of conviction or a sentence of death

on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and

legal basis for a collateral attack upon a criminal conviction or a capital sentence. A proceeding under

this rule shall be known as a postconviction proceeding.

(2) Exclusiveness of remedy. The remedy afforded by this rule may not be sought by a petition for a

writ of habeas corpus or in any manner other than as provided herein.

(b) Motion for postconviction relief.

(1) Form of motion. An application under this rule shall be made by a motion for postconviction

relief. The movant must use the prescribed form which shall be made available without charge by the

prothonotary. The motion shall be typewritten or legibly handwritten and shall be signed under

penalty of perjury by the movant.

(2) Content of motion. The motion shall specify all the grounds for relief which are available to the

movant and of which the movant has or, by the exercise of reasonable diligence, should have

knowledge, and shall set forth in summary form the facts supporting each of the grounds thus

specified.

(3) Multiple convictions. A motion shall be limited to the assertion of a claim for relief against one

judgment of conviction or, if judgments of conviction were entered on more than one offense at the

same time because of a plea agreement or joinder of offenses at trial, against multiple judgments

entered at the same time. Judgments entered at different times shall not be challenged in one motion

but only by separate motions.

(4) Time of filing. A motion may not be filed until the judgment of conviction is final.

(5) Place of filing. A motion shall be filed in the office of the prothonotary in the county in which the

judgment of conviction was entered.

(6) Amendment of motion. A motion may be amended as a matter of course at any time before a

response is filed or thereafter by leave of court, which shall be freely given when justice so requires.

(c) Duties of prothonotary.

(1) Noncomplying motion. If a motion does not substantially comply with the requirements of

subdivision (b) of this rule, the prothonotary shall return it to the movant, if a judge of the court so

directs, together with a statement of the reason for its return, and shall retain a copy of the motion and

of the statement of the reason for its return.

(2) Entry on docket. Upon receipt of a motion that appears on its face to comply with subdivision (b)

of this rule, the prothonotary shall accept the motion and enter it on the docket in the proceeding in

which the judgment under attack was entered. If the motion attacks judgments entered in separate

criminal action files, the prothonotary shall place copies of the motion in each file and make the

appropriate docket entries.

(3) Assignment of number. The prothonotary shall assign each motion for postconviction relief a

separate criminal action number, which must appear on all filings in the postconviction proceeding.

(4) Service of motion. The prothonotary shall thereupon deliver or serve a copy of the motion together

with a notice of its filing on the attorney general. The filing of the motion shall not require the

attorney general to respond to the motion unless ordered by the court.

(d) Preliminary consideration.

(1) First postconviction motion. A first postconviction motion shall be presented promptly to the

judge who accepted a plea of guilty or nolo contendere or presided at trial in the proceedings leading

to the judgment under attack. If the appropriate judge is unavailable to consider the motion, it shall be

presented to another judge in accordance with the procedure of the court for assignment of its work.

The judge shall promptly examine the motion and contents of the files relating to the judgment under

attack.

(2) Second or subsequent postconviction motions. A second or subsequent motion under this rule

shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:

(i) pleads with particularity that new evidence exists that creates a strong inference that the

movant is actually innocent in fact of the acts underlying the charges of which he was convicted;

or

(ii) 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 Delaware Supreme Court,

applies to the movant’s case and renders the conviction or death sentence invalid.

(3) Stay of proceedings. If any part of the record of prior proceedings in the case has been removed in

connection with an appeal or federal habeas corpus proceeding, the judge may stay proceedings in

this court until it has been returned.

(4) Preparation of transcript. The judge may order the preparation of a transcript of any part of the

prior proceedings in the case needed to determine whether the movant may be entitled to relief.

(5) Summary dismissal. 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, the judge may enter an order

for its summary dismissal and cause the movant to be notified.

(e) Appointment of counsel and withdrawal of counsel.

(1) Timing of request for appointment of counsel. Any indigent movant’s request for appointment of

counsel shall be filed contemporaneously with the movant’s postconviction motion. Failure to file a

contemporaneous request for appointment of counsel with the movant’s postconviction motion may

be deemed a waiver of counsel.

(2) First postconviction motions in specific cases. The judge shall appoint counsel for an indigent

movant’s first timely postconviction motion and request for appointment of counsel if the motion

seeks to set aside: (i) a judgment of conviction after a trial that has been affirmed by final order upon

direct appellate review and is for a crime designated as a class A, B, or C felony under 11 Del. C. §

4205(b); (ii) a judgment of conviction after a trial that has been affirmed by final order upon direct

appellate review and resulted in the imposition of a life sentence under 11 Del. C. § 4214; or (iii) a

sentence of death.

(3) First postconviction motions in guilty plea cases. The judge may appoint counsel for an indigent

movant’s first timely postconviction motion and request for appointment of counsel if the motion

seeks to set aside a judgment of conviction that resulted from a plea of guilty or nolo contendere only

if the judge determines that: (i) the conviction has been affirmed by final order upon direct appellate

review or direct appellate review is unavailable; (ii) the motion sets forth a substantial claim that the

movant received ineffective assistance of counsel in relation to the plea of guilty or nolo contendere;

(iii) granting the motion would result in vacatur of the judgment of conviction for which the movant

is in custody; and (iv) specific exceptional circumstances warrant the appointment of counsel.

(4) Other first postconviction motions. The judge may appoint counsel for any other first

postconviction motion only if the judge determines that: (i) the motion is an indigent movant’s first

timely postconviction motion and request for appointment of counsel; (ii) the motion seeks to set

aside a judgment of conviction after a trial that has been affirmed by final order upon direct appellate

review; (iii) the motion sets forth a substantial claim that the movant received ineffective assistance of

trial or appellate counsel; (iv) the motion sets forth a substantial claim that the movant is in custody in

violation of the United States Constitution or the Delaware Constitution; (v) granting the motion

would result in vacatur of the judgment of conviction for which the movant is in custody; and (vi)

specific exceptional circumstances warrant the appointment of counsel.

(5) Second or subsequent motions. For an indigent movant’s second or subsequent postconviction

motion, the judge may appoint counsel for an indigent movant only if the judge determines that the

second or subsequent motion satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of

subdivision (d) of this rule.

(6) Continuing duty of counsel. Unless the judge appoints counsel for a limited purpose, it shall be the

duty of counsel to assist the movant in presenting any substantial ground for relief available to the

movant. Upon entry of a final order in a postconviction proceeding, counsel’s continuing duty shall

be as provided in Supreme Court Rule 26, unless counsel has been permitted to withdraw under

subparagraph (6) of this subdivision.

(7) Motion to withdraw. If counsel considers the movant’s claim to be so lacking in merit that counsel

cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief

available to the movant, counsel may move to withdraw. The motion shall explain the factual and

legal basis for counsel’s opinion and shall give notice that the movant may file a response to the

motion within 30 days of service of the motion upon the movant. If counsel’s motion to withdraw is

granted:

(i) before final disposition of the the movant’s motion for postconviction relief — counsel’s

continuing duty is limited to: (A) notifying the movant in writing of the court’s ruling on the

motion to withdraw; (B) advising the movant in writing that it is the movant’s burden to proceed

on the motion for postconviction relief without counsel; and (C) advising the movant in writing of

the right to appeal the final disposition of the motion for postconviction relief, the rules for filing

a timely notice of appeal, and that it is the movant’s burden to file a notice of appeal of the final

disposition if desired.

(ii) simultaneously with a denial of the movant’s motion for postconviction relief — counsel’s

continuing duty is limited to: (A) notifying the movant in writing of the court’s ruling; and (B)

advising the movant in writing of the right to appeal, the rules for filing a timely notice of appeal,

and that it is the movant’s burden to file a notice of appeal if desired.

(f) State’s response.

(1) Order to respond. If the motion is not summarily dismissed, the judge shall order the attorney

general to file a response to the motion or to take such other action as the judge deems appropriate.

Unless otherwise ordered, the response shall be filed within 30 days of service of the order to respond

upon the state.

(2) Content of response. The response shall explain the factual and legal basis for the state’s position

on each ground for relief alleged in the motion in sufficient detail to enable the court to determine

whether an evidentiary hearing is desirable or summary disposition of the motion is appropriate. If the

motion contains inaccurate or incomplete information about prior proceedings, the response shall

supply the correct information.

(3) Movant’s reply. The movant may file a reply to the state’s response within 30 days of service of

the state’s response upon the movant.

(g) Expansion of record.

(1) Direction for expansion. The judge may direct that the record be expanded by the parties by the

inclusion of additional materials relevant to the determination of the merits of the motion.

(2) Materials to be added. The expanded record may include, without limitation, letters predating the

filing of the motion, documents, exhibits, and contents of the file of an appeal or federal habeas

corpus proceeding. If the motion alleges ineffective assistance of counsel, the judge may direct the

lawyer who represented the movant to respond to the allegations. Affidavits may be submitted and

considered as a part of the record.

(3) Submission to opponent. In any case in which an expanded record is directed, copies of the letters,

documents, exhibits, and affidavits proposed to be included shall be submitted to the opposing party,

who shall be afforded an opportunity to admit or deny their correctness.

(4) Authentication. The judge may require the authentication of any material filed under this

subdivision.

(h) Evidentiary hearing.

(1) Determination by court. After considering the motion for postconviction relief, the state’s

response, the movant’s reply, if any, the record of prior proceedings in the case, and any added

materials, the judge shall determine whether an evidentiary hearing is desirable.

(2) Time for hearing. If an evidentiary hearing is ordered, it shall be conducted as promptly as

practicable, having regard for the need of both parties for adequate time for investigation and

preparation.

(3) Summary disposition. If it appears that an evidentiary hearing is not desirable, the judge shall

make such disposition of the motion as justice dictates.

(i) Bars to relief.

(1) Time limitation. A motion for postconviction relief may not be filed more than one year after the

judgment of conviction is 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 is first recognized by the

Supreme Court of Delaware or by the United States Supreme Court.

(2) Successive motions.

(i) No second or subsequent motion is permitted under this Rule unless that second or subsequent

motion satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of

this rule.

(ii) Under paragraph (2) of subdivision (b) of this Rule, any first motion for relief under this rule

and that first motion’s amendments shall be deemed to have set forth all grounds for relief

available to the movant. That a court of any other sovereign has stayed proceedings in that court

for purpose of allowing a movant the opportunity to file a second or subsequent motion under this

rule shall not provide a basis to avoid summary dismissal under this rule unless that second or

subsequent motion satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of

subdivision (d) of this rule.

(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the

judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant

shows

(A) Cause for relief from the procedural default and

(B) Prejudice from violation of the movant’s rights.

(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the

proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in

a federal habeas corpus proceeding, is thereafter barred.

(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision shall

not apply either to a claim that the court lacked jurisdiction or to a claim that satisfies the pleading

requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.

(6) Movant’s response. If ordered to do so, the movant shall explain on the form prescribed by the

court why the motion for postconviction relief should not be dismissed or grounds alleged therein

should not be barred.

(j) Reimbursement of expenses. If a motion is denied, the state may move for an order requiring the

movant to reimburse the state for costs and expenses paid for the movant from public funds. The judge

may grant the motion if the movant’s claim is so completely lacking in factual support or legal basis as to

be insubstantial or the movant has otherwise abused this rule. The judge may require reimbursement of

costs and expenses only to the extent reasonable in light of the movant’s present and probable future

financial resources.

(k) Time for appeal. The time for appeal from an order entered on a motion for relief under this rule is as

provided in Supreme Court Rule 6. Nothing in these rules shall be construed as extending the time for

appeal from the original judgment of conviction.

(l) Capital cases.

(1) Scope of subdivision. This subdivision applies when a defendant seeks to set aside a sentence of

death. The defendant shall have a right to one postconviction proceeding under this subdivision. The

other subdivisions of this rule shall apply except insofar as they are inconsistent with the special

provisions of this subdivision.

(2) Waiver of rights. The defendant may waive the right to a postconviction proceeding or to appeal

an adverse ruling. The court shall not accept a waiver without addressing the defendant personally in

open court and determining that the defendant understands the legal consequences of the waiver.

(3) Status of representation. When the time for seeking certiorari to review the Supreme Court’s order

affirming a sentence of death expires or, if the defendant seeks certiorari, when the United States

Supreme Court issues a mandate or order finally disposing of the case, the court shall promptly

schedule a session with the defendant and defense counsel to determine the status of representation.

Counsel who represented the defendant at trial or on appeal may not represent the defendant in the

postconviction proceeding permitted by this subdivision unless the defendant and counsel request

continued representation. The court may not grant the request without addressing the defendant

personally in open court and determining that the defendant understands that the request for continued

representation constitutes a waiver of the right to claim that counsel’s representation at trial or on

appeal was ineffective. If the defendant requests the appointment of new counsel, the court shall

promptly rule on that request.

(4) Schedule of proceeding. When the status of representation has been determined, the court shall

enter an order setting the schedule of the postconviction proceeding within the following time limits.

The motion for postconviction relief shall be filed within 60 days of the date of the scheduling order

and shall be submitted for decision within 270 days of the date of the scheduling order. The court for

compelling cause may grant an enlargement of not more than an additional 60 days for filing or

submission or both, provided that a request for enlargement is made before the expiration of the

prescribed time period. If enlargement is granted, the court shall state its finding of compelling cause

with specificity. The court shall enter a final order within 60 days of the date of submission.

(5) Sanction for delay. Upon a party’s failure to comply with the scheduling order, the court shall

immediately issue a rule directing the party to show cause why sanctions should not be imposed for

the failure to comply. Unless a defendant shows compelling cause for failing to comply, the court

shall enter an order barring the defendant from filing a motion for postconviction relief or dismissing

the defendant’s motion for postconviction relief with prejudice.

(6) Date of execution. Following the completion of direct review, the court shall not set a date of

execution until the defendant has an opportunity for one postconviction proceeding and review by the

Supreme Court. If the defendant waives the right to a postconviction proceeding or to appeal, or the

Supreme Court dismisses the defendant’s appeal or affirms a ruling adverse to the defendant, the

court shall promptly set a date for execution no less than 90 days, unless waived, nor more than 120

days from the date that the waiver was accepted or the Supreme Court’s mandate issued.

(7) Stay for further proceedings. The court shall not entertain an application to stay an execution date

set pursuant to paragraph (6) of this subdivision for the purpose of further postconviction

proceedings. An application to stay execution for federal certiorari or habeas corpus proceedings shall

be made to the appropriate federal court. An application to stay execution for any other purpose shall

be made in accordance with Supreme Court Rule 35(e).

(m) Miscellaneous provisions.

(1) A judgment of conviction is final for the purpose of this rule as follows:

(i) If the defendant does not file a direct appeal, 30 days after the Superior Court imposes

sentence;

(ii) If the defendant files a direct appeal or there is an automatic statutory review of a death

penalty, when the Supreme Court issues a mandate or order finally determining the case on direct

review; or

(iii) If the defendant files a petition for certiorari seeking review of the Supreme Court’s mandate

or order, when the United States Supreme Court issues a mandate or order finally disposing of the

case on direct review.

(2) When a petition is properly filed under this rule while the defendant is in custody under a sentence

of this court, and that petition seeks to set aside the specific judgment of conviction for which the

defendant is then in custody, the defendant’s satisfaction of all terms of that sentence during the

pendency of the petition shall not render the petition moot if the defendant pleads that there are

continuing collateral consequences arising from the specific judgment of conviction. The court shall

decide or otherwise dispose of that pending petition in accordance with the applicable provisions of

this rule.