IN THE SUPREME COURT OF THE STATE OF DELAWARE
GARY W. PLOOF, §
§ No. 48, 2018
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 111003002
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: September 12, 2018
Decided: September 18, 2018
Before VALIHURA, SEITZ and TRAYNOR, Justices.
ORDER
This 18th day of September, 2018, after careful consideration of the parties’
briefs, and the record on appeal, it appears to the Court that the judgment of the
Superior Court should be affirmed on the basis of and for reasons stated in its
December 28, 2017 Memorandum Opinion and for the additional reasons set forth
below.
A motion for post-conviction relief, unless asserting a newly recognized and
retroactively applicable right, may not be filed more than one year after the judgment
of conviction is final. Appellant Gary Ploof’s judgment of conviction became final
in 2004, and the second post-conviction relief motion summarily dismissed below
was filed in 2014. Therefore, the Superior Court correctly concluded that Ploof’s
amended second motion for post-conviction relief was procedurally barred as an
untimely and successive motion. We expressly reject Ploof’s contention that his
2017 resentencing as a result of our holdings in Rauf v. State1 and Powell v. State 2
restarted the post-conviction relief clock with respect to the underlying convictions.
And because Ploof did not show that new evidence exists that creates a strong
inference that he is actually innocent, the Superior Court’s summary dismissal of
Ploof’s second post-conviction relief motion was proper.
Ploof also claims that the current iteration of Superior Court Criminal Rule 61
is unconstitutional because it fails to provide him an adequate state remedy to
address the constitutional violations that allegedly infected his trial. We disagree.
We previously addressed this question in Turnage v. State,3 where Turnage argued
that the amended Rule 61 denied her due process of law and meaningful access to
the courts:
The United States Supreme Court has held that “[s]tates have no
obligation to provide [postconviction] relief.”
Thus, Turnage is arguing about the extent to which the State has
afforded a right to postconviction relief that it does not have to afford
at all. Therefore, the amended Rule 61 provides more due process and
access to the courts than is constitutionally required. Moreover, the
amended form of Rule 61 still provides a broad right to file a first
petition within “one year after the judgment or conviction is final,” and
even allows successive petitions in the compelling circumstance when
1
145 A.3d 430 (Del. 2016) (per curiam).
2
153 A.3d 69 (Del. 2016 (per curiam).
3
2015 WL 6746644 (Del. Nov. 4, 2015) (unpublished table decision).
2
a person “pleads with particularity that new evidence exists that creates
a strong inference that the movant is actually innocent” or “that a new
rule of constitutional law, made retroactive to cases on collateral review
. . . , applies to the movant’s case.”
As we recognized in Turnage, Rule 61 does not foreclose all possibilities of
post-conviction relief; it simply requires that such challenges be brought together
and filed within a one-year period. Because Rule 61 provides more extensive due
process safeguards than are constitutionally required, Ploof’s argument is without
merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
3