Opinion
CR. A. NO. 98-01-0317-R2, 98-02-1488-R2
Date Submitted: March 23, 2001
Date Decided: May 23, 2001
ORDER
This 23rd day of May, 2001, upon consideration of the Motion for Postconviction Relief filed by Defendant, Marco A. Vasquez ("Defendant"), it appears to the Court that:
1. Defendant is a resident alien from Mexico. On October 14, 1998, Defendant pleaded guilty to Murder in the Second Degree and Possession of a Firearm During the Commission of a Felony. He was sentenced by this Court on December 17, 1998 to a combined 20 years of incarceration.
2. On December 19, 2000, Defendant filed his first Motion for Postconviction Relief in which he argued that his conviction and sentence should 12 overturned because the arresting officer failed to inform him of his rights to consular notification as established under the Vienna Convention on Consular Rights.
3. On January 31, 2001, this Court denied Defendant's first motion upon concluding that Defendant procedurally was barred from pursuing his motion pursuant to Delaware Superior Court Criminal Rule 61(i)(3). The Court rejected Defendant's invocation of Rule 61(i)(5) because Defendant's claim that he was denied the right of consular notification did not implicate a fundamental or constitutional right.
State v. Vasquez, Del. Super., Cr. A. No. 98-01-0317, 98-02-1488, Slights, J. (Jan. 31, 2001)(ORDER).
Id. at 5.
4. Defendant's current motion rehashes the same ground covered in his first motion. The predicate for relief is the failure to inform him of his right to consular notification. He has made no showing that this claim was raised during the proceedings leading to his conviction. The only arguably new matter raised in the current motion is Defendant's argument that Rule 61(i)(4) provides relief for his failure to raise the claim in the initial proceedings. Specifically, he claims that the reference in Rule 61(i)(4) to the "interests of justice" is implicated by the alleged failure to advise him of his right to consular notification. The "interest of justice" exception to Rule 61's procedural bar has been narrowly defined to require that the movant show that the trial court lacked authority to convict him. Defendant has not come close to demonstrating that this standard has been met. The right which he claims he was denied — consular notification — is not of constitutional dimension. Moreover, the very decision that Defendant relies upon — State v. Reyes — was based upon case law which has since been overruled. It is very likely that this Court would decide the matter differently now based on the current state of the law regarding consular notification.
See State v. Wright, Del. Super., 653 A.2d 288 (1994).
See Murphy v. Netherland, 4th Cir., 116 F.3d 97, 100 (1997).
Del. Super., 740 A.2d 7 (1999).
See e.g. State v. Tlaseca, Del. Super., Def. I.D. 9912010951, Barron, J. (Feb. 21, 2001)(TRANSCRIPT) (denying motion to suppress based on failure to advise defendant of right to consular notification) (citing United States v. Lombera-Camorlinga, 9th Cir., 206 F.3d 882 (2000) (overruling decision relied upon in Reyes and holding that Viena Convention does not give rise to Miranda-like rights)).
5. Defendant has offered nothing new which would suggest that the Court's prior decision denying him post conviction relief was in error. Accordingly, Defendant's Motion for Postconviction Relief once again is hereby summarily DENIED pursuant to Rule 61(i)(2) (3).
IT IS SO ORDERED.