Randy J. Holland, Justice.
This fifth day of January 2004, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Ward T. Evans, filed an appeal from the Superior Court's September 26, 2003 order denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The plaintiff-appellee, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Evans' opening brief that the appeal is without merit. We agree and affirm.
Supr. Ct. R. 25(a).
(2) In September 1982, Evans was convicted by a Superior Court jury of Rape in the First Degree and was sentenced to life in prison. This Court affirmed Evans' conviction and sentence on direct appeal. The record reflects that Evans has filed numerous petitions in the State and Federal courts requesting postconviction relief, all of which have been denied.
Evans v. State, Del. Supr., No. 190, 1983, Horsey, J. (June 21, 1984).
(3) In this appeal, Evans claims that the trial judge should have given a jury instruction on the lesser-included offense of Rape in the Second Degree in addition to the instruction on the lesser-included offense of Sexual Misconduct.
(4) Evans' motion is time-barred since the three-year time limit to seek postconviction relief has long passed. Evans' motion also is procedurally barred because the claim is both repetitive and procedurally defaulted. Evans has failed to demonstrate cause for relief from the procedural default and prejudice from a violation of his rights. Evans has also failed to demonstrate that the Superior Court lacked jurisdiction or that there was a miscarriage of justice due to a constitutional violation.
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(i)(3). Although the Superior Court did not address this issue, Evans' claim also appears to be barred by Super. Ct. Crim. R. 61(i)(4) because it was previously adjudicated by this Court. Evans v. State, Del. Supr., No. 511, 1988, Horsey, J. (Apr. 27, 1989).
Super. Ct. Crim. R. 61(i)(3)(A) and (B).
Super. Ct. Crim. R. 61(i)(5).
(5) Accordingly, it is manifest on the face of Evans' opening brief that this appeal is without merit because the issue presented on appeal is controlled by settled Delaware procedural law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
After the State of Delaware filed its motion to affirm, Evans moved to file an amended brief arguing that his sentence is illegal under Crosby v. State, 824 A.2d 894 (Del. 2003). Because the Superior Court did not have an opportunity to consider that issue in the first instance, Evans' motion is hereby denied. Supr. Ct. R. 8.