Rule 61 - Postconviction Remedy(a)Scope of rule.(1) Nature of proceeding. This rule governs the procedure on an application by a person in custody or subject to future custody under a sentence of this Court seeking to set aside a judgment of conviction on the ground that the Court lacked jurisdiction to enter the judgment or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction. 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 Clerk. 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 time for taking an appeal from the judgment of conviction has expired or, if an appeal is taken, until the record has been returned to this Court upon completion of the appeal or upon remand with direction to conduct a postconviction proceeding.(5) Place of filing. A motion shall be filed in the office of the Clerk 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 Clerk.(1) Noncomplying motion. If a motion does not substantially comply with the requirements of subdivision (b) of this rule, the Clerk 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 Clerk 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 Clerk shall place copies of the motion in each file and make the appropriate docket entries.(3) Assignment of number. The Clerk 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 Clerk 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) Reference to judge. The original 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) 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.(3) 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.(4) 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.(1) Order of appointment. The Court will appoint counsel for an indigent movant only in the exercise of discretion and for good cause shown, but not otherwise. 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.(2) 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.(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) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.(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, unless reconsideration of the claim is warranted in the interest of justice.(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the Court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.(6) Movant's response. If so 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 the Superior Court Rules. Nothing in these rules shall be construed as extending the time for appeal from the original judgment of conviction.