IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

V. ) ID No. 1206001558
)
ONEIL ROSE, )
)
Defendant. )

ORDER

This 16th day of September, 2019, upon consideration of Defendant Oneil
Rose’s (“Defendant”) pro se Motion for Postconviction Relief (the “Motion”),' the
Court finds:

1. Defendant’s Motion is a third motion for postconviction relief pursuant to
Delaware Superior Court Rule 61 (“Rule 61”). Defendant filed his second Rule 61
motion on April 20, 2016, which was denied.?

2. Rule 61(d) explicitly bars successive motions and states that no second or
subsequent postconviction motion is permitted 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

 

'DI. 96.
7D. 95.
Supreme Court or the Delaware Supreme Court, applies to the movant’s
case and renders the conviction or death sentence invalid.

3. Defendant asserts three grounds for relief, only one of which asserts actual
innocence on the basis of new evidence or new retroactively applicable law. Ground
One (1) asserts that new evidence creates a strong inference that Defendant is
actually innocent of Possession of a Firearm By a Person Prohibited. The remaining
claims are procedurally barred. DE Super. Ct. R.61(d)(2).

4. Defendant’s “new evidence” consists of a written decision by an
Immigration Judge in Defendant’s 2005 removal proceedings. Defendant relies on
language in the decision that discusses the insufficiency of evidence, in that
proceeding, to establish that Defendant was convicted of an aggravated felony in the
immigration context.

5. However, the Immigration Judge conducted a tailored analysis to
determine if a conviction under Delaware criminal law qualifies as an aggravated
felony solely for the purposes of removal under federal immigration law. That
analysis was purely legal because Immigration Judges are restricted from
considering the underlying facts of the case, and must conform their analysis only to
statutory language and conviction documents. Mathis vy. United States, 136 S. Ct.

2243, 2248 (U.S. 2016).
6. Here, Defendant was previously convicted of Assault in the Second Degree
on July 30, 2004, which is a qualifying felony to prohibit a person from thereafter
owning or possessing a firearm.

7. Defendant appears to challenge his person prohibited status on the basis
that his prior Assault Second conviction did not satisfy the requirements to earn him
a subsequent person prohibited status.

8. Defendant incorrectly concludes that the Immigration Judge’s finding, that
Defendant’s Assault conviction does not qualify as a crime of violence in the
immigration removal context, means that the crime should not be a crime of violence
that triggers 11 Del.C. §1448(a)(1), Possession of a Firearm by a Person Prohibited.
Assault in the Second Degree is a Class D Felony under Delaware Criminal Law,
which makes it a qualifying conviction for purposes of establishing Defendant as a
person prohibited.

9. Therefore, the written decision does not raise a strong inference of
Defendant’s innocence, because the Immigration Judge did not consider any of the
factual evidence from Defendant’s conviction and did not establish that 11 Del.C. §
612 Assault in the Second Degree is a non-qualifying crime under 11 Del.C.

§1448(a)(1).
For the foregoing reasons, Defendant’s Motion for Postconviction Relief is

/
f

DENIED. /

IT IS SO ORDERED.

AL

“SheldorrK. Rennie, Judge

 

Original to Prothonotary

cc: Oneil Rose (SBI #00511629)
