State of Delaware v. Rivera.

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SUPERIOR COURT OF THE STATE OF DELAWARE F R E D S. S ILVERMAN JU D G E N E W C A S T L E C OUNTY C OURTHO USE 500 N. K I N G S T R E E T , S U I T E 10400 W I L M I N G TO N , D E L A W A R E 19801 (302) 255-0669 Submitted: July 26, 2005 Decided: August 25, 2005 STATE OF DELAWARE v. AND RE A . RIVE RA, Defend ant. ) ) ) ) ) ) ) ID#: 9503004907 ORDER 1. Pursuant to Superior Court Criminal Rule 35(a), on July 13, 2005, Defend ant, pro se, filed a motion for correction of an illegal sentence. Rivera also asks for court-a ppoint ed cou nsel an d an ev identiar y hearing . 2. In 1995, afte r the Attorney General filed a motion to declare Rivera a habitual offender, the court found that Rivera had been convicted of the necessa ry predicate offenses, declared him to be a habitual offender and sentenced him as required by 11 Del. C. § 4214( b). 3. Now, Rivera claims th at the Attorn ey General h as been se lectively enforcing the habitual offender statute. Sp ecifically, Rivera alleges: for many years prosecutors have been targeting 11 Del. C . § 4214 towards certain individuals, primary blacks and Hispanics. 4. So far, Rivera s allegation is entirely conclusory. Other than that he was prosecuted under 11 Del. C. § 4214 and he is Hispanic, Rivera of fers no support for h is very serious claim. Therefo re, as it stands, Defendant has not offered anything justifying relief, including a hearing. Moro ver, the claim falls under Superior Court Criminal Rule 61, not Rule 35.1 And on its face, the claim is too late. It is time-barred under Superior Court Criminal Rule 61 (i)(3). 5. Defendant s motion is DENIED, without prejudice to De fendant s providing specific reasons for his claim that in 1995 he was subjected to selective enforcement of the habitual of fender statu te. If Defe ndant can show tha t his motion is based on more than a self-serving assumption, the court will reconsider whether an evidentiary hearing and appointment of counsel is appropriate. If, after thirty (30) days, Rivera fails to supplement his motion as called for here, the dismissal sha ll be with prejud ice. IT IS SO ORDERED. Date Judge oc: Prothonotary (Criminal Division) pc: Paul Wallace, Deputy Attorney General Andr e A. R ivera, Pro Se Defendant - DCC 1 Monroe v. State, 843 A.2d 696 (Del. 2004)(Table). 2

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