GREGORY M. SLEET, District Judge.
Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Troy D. McNally ("McNally"). (D.I. 3; D.I. 4) For the reasons discussed, the court will deny the petition.
As summarized by the Delaware Supreme Court in McNally v. State, 980 A.2d 364 (Del. 2009), the facts leading to his arrest and conviction are as follows:
McNally, 980 A.2d at 366.
In February 2007, McNally was indicted on twenty-three charges: ten counts of first degree reckless endangering; nine companion counts of possession of a firearm during the commission of a felony ("PFDCF"); one count of possession of a deadly weapon during the commission of a felony ("PDWDCF"); two counts of criminal mischief; and one count of endangering the welfare of a child. (D.I. 14 at 1) After three different defense attorneys withdrew prior to trial, McNally went to trial with his fourth defense attorney on January 23, 2008. (D.I.14 at 1) At the close of the State's evidence, McNally moved for a judgment of acquittal, which the Superior Court denied. See State v. McNally, 2011 WL 7144815, at *3 (Del. Super. Ct. Nov. 16, 2011). A Delaware Superior court jury convicted McNally of four counts of first degree reckless endangering (one count for each of the four people occupying 82 Strawberry Drive at the time of the shooting), four counts of PFDCF, and two counts of criminal mischief, and acquitted him of all the remaining charges. See McNally, 980 A2d at 366. The Superior Court sentenced McNally to a total of thirty-eight years of Level V incarceration, suspended after twelve years
In August 2010, McNally filed apro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). See McNally, 2011 WL 7144815 at * 1. The Superior Court denied the Rule 61 motion, and the Delaware Supreme Court affirmed that decision. See McNally v. State, 53 a.3d 302 (Table), 2012 WL 3552923 (Del. Aug. 20, 2012).
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "to reduce delays in the execution of state and federal criminal sentences . . . and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003). Pursuant to AEDPA, a federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA imposes procedural requirements and standards for analyzing the merits of a habeas petition in order to "prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). AEDPA states, in pertinent part:
28 U.S.C. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to give "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural manner permitting the court to consider the claims on their merits. Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state's highest court, but that court "clearly and expressly" refuses to review the merits of the claim due to an independent and adequate state procedural rule, the claim is exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting therefrom, or that a fundamental miscarriage of justice will result if the court does not review the claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51. To demonstrate cause for a procedural default, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show "that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). A petitioner demonstrates a miscarriage of justice by showing a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner must present new reliable evidence not presented at trial that demonstrates "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537-38 (2005); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002).
When a state's highest court has adjudicated a federal habeas claim on the merits, the federal court must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d).
Finally, when reviewing a claim under § 2254(d), a federal court must presume that the state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1); Appel, 250 F.3d at 210. This presumption of correctness applies to both explicit and implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). The Supreme Court has "not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1)." Burt v. Titlow, 134 S.Ct. 10, 15 (2013); but see Miller-EI v. Cockrell, 537 U.S. 322, 341 (2003)(stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions).
McNally's timely filed petition asserts the following four grounds for relief:
In claim one, McNally contends that trial counsel was ineffective for failing to file a pre-trial suppression motion and for failing to challenge the sufficiency of the evidence after the jury's verdict. He also contends that appellate counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the verdict. On post-conviction appeal, the Delaware Supreme Court denied the arguments as meritless. As a result, habeas relief will only be available if the Delaware Supreme Court's decision was either contrary to, or involved an unreasonable application of, clearly established federal law.
The clearly established Supreme Court precedent governing ineffective assistance of counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S. 668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness," with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that, but for counsel's error the result would have been different." Id. at 687-96. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254(d)(l) inquiry, the court notes that the Delaware Superior and Supreme Courts identified Strickland as governing McNally's instant ineffective assistance of counsel contentions. As such, the Delaware Supreme Court's decision was not contrary to clearly established federal law.
The court must also determine if the Delaware Supreme Court reasonably applied Strickland to the facts of McNally's case. See Harrington, 562 U.S. at 105-06. When performing this inquiry, the court must review the Delaware Supreme Court's denial of McNally's ineffective assistance of counsel claims through a "doubly deferential" lens. Id. "[T]he question is not whether counsel's actions were reasonable, [but rather], whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
McNally contends that trial counsel provided ineffective assistance by failing to move to suppress the evidence against him. In his Rule 61 affidavit, trial counsel explains that he did not file a suppression motion because he "did not believe there was a basis in the law to move for exclusion by the Court." (D.I. 15, State's Motion to Affirm in McNally v. State, NO. 631, 2011, at Exh. D ¶ 5) The record demonstrates the reasonableness of this decision. For instance, although the most significant evidence was obtained from the car owned by McNally's aunt without a warrant, his aunt had consented to the search, and McNally presented nothing to challenge the validity of her consent. As such, trial counsel concluded there was no legal or factual basis to suggest that a motion to suppress this evidence would have been successful. See McNally, 980 A.2d at 367. Second, the additional evidence was seized pursuant to a search warrant, and neither the record nor McNally indicates that there was a basis for challenging the validity of that warrant. Finally, trial counsel did object to the admission of the shell casing evidence during the trial because of chain of custody issues, but the trial court overruled the objection. (D.I. 15, State's Motion to Affirm in McNally v. State, No. 631, 2011, at Exh. D ¶ 5) All of these circumstances demonstrate that trial counsel's determination that he had no good faith basis to file a pre-trial suppression motion was a strategic decision based on a reasonable assessment of the evidence. Therefore, the Delaware Supreme Court reasonably applied Strickland in affirming the Superior Court' denial of this portion of claim one.
McNally also contends that trial counsel was ineffective for failing to challenge the sufficiency of the evidence supporting his convictions after the jury issued its verdict. Although the record reveals that McNally presented this ineffective assistance of counsel claim based on trial counsel's failure to raise a post-verdict insufficient evidence claim in his Rule 61 proceeding,
In order to demonstrate that there was insufficient evidence to support a defendant's convictions, the defendant must satisfy the standard articulated in Jackson v. Virginia, 443 U.S. 307 (1979). Pursuant to Jackson, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. This standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n.16. However, it is not necessary that the evidence exclude every reasonable hypothesis except that of guilt. Id. at 26. Additionally, "a federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326.
In order for McNally to be found guilty of the four counts of first degree reckless endangering under 11 Del. Code Ann. § 604, the State had to prove beyond a reasonable doubt that he recklessly engaged in conduct which created a substantial risk of death or physical injury to the four people inside 82 Strawberry Drive by firing a hand gun into that residence. In order for McNally to be found guilty of four counts of possession of a firearm during the commission of a felony under 11 Del. Code Ann. § 1447A, the State had to prove beyond a reasonable doubt that McNally did possess a firearm (handgun) during the commission of the four aforementioned felonies of first degree reckless endangering. Finally, in order for McNally to be found guilty of two counts of criminal mischief under 11 Del. Code Ann. § 811, the State had to prove beyond a reasonable doubt that McNally did intentionally cause damage in an amount of more than $1,000 to electronics and the interior walls of a trailer belonging to Shelley Stanley and a 2006 Chrysler belonging to Stacy Smith.
In this proceeding, McNally's summary and conclusive assertion that he was prejudiced by trial counsel's failure to challenge the sufficiency of the evidence supporting his convictions does not satisfy the Jackson or Strickland standards. For instance, the jury was presented with the following evidence: (1) three bullets struck the house at 82 Strawberry Drive, and four people were inside that house at the time; (2) a bullet hole was found in the left front fender of Smith's car that was parked at 102 Strawberry Drive; (3) a ballistics analysis linking a casing from the scene to a casing found inside of the car McNally was using on the night of the incident; and (4) the door handle and steering wheel of that same car tested positive for gunshot residue, as did swabs from McNally's hands. See McNally, 980 A.2d at 366-67. At trial, forensics expert Elana Foster testified that the residue on McNally's hands indicated that he either fired a gun, was near a gun when it was fired, or carne into contact with a person or object that had gunshot residue on it. Id. During the trial, the mother of McNally's children, Stacy Smith, testified that McNally had attempted to run her car off the road prior to the shooting incident at Strawberry Drive. (D.I. 15, App. to State's Ans. Br. in McNally v. State, No. 183, 2008 at B-2) She explained how she drove to her mother's house after the "running off the road" incident, and that she was in her mother's horne when she heard a car drive down the road that sounded just like the car that had attempted to run her off the road. After hearing gunshots being fired in the street, she looked out the house window and saw a car's taillights. Id. at B-3 to B-4. She explained how, after hearing the shots, she called the 911 operator to report the incident. Id. at B-16. She also explained how, although she told the 911 operator that McNally was the shooter, she was just speculating about the shooter's identity because she was still furious about McNally's earlier attempt to run her off her road. Id. She testified that she did not actually see the face of the shooter, but that she had assumed it was McNally.
Finally, the jury was presented with McNally's videotaped statement, wherein he admitted to driving the vehicle from which the evidence was obtained. Id. at B-76. He also admitted that he had cleaned the vehicle after he drove it. Id. When asked about the shells that were found in the car, he responded, "Aliens put them there." Id.
Viewing the aforementioned evidence in a light most favorable to the prosecution demonstrates that there was sufficient evidence from which a rational jury could have concluded that McNally committed the crimes of first degree reckless endangering, possession of a firearm during the commission of a felony, and criminal mischief. In turn, when the evidence is viewed in conjunction with the fact that the trial court denied trial counsel's pre-verdict motion for a judgment of acquittal, McNally cannot demonstrate a reasonable probability that the outcome of his trial would have been different but for trial counsel's failure to challenge the sufficiency of the evidence against him post-verdict. Given these circumstances, the court concludes that the Delaware Supreme Court reasonably applied Strickland in determining that trial counsel's failure to challenge the sufficiency of the evidence supporting his convictions did not amount to constitutionally ineffective assistance. Accordingly, the court will deny this portion of claim one for failing to satisfy § 2254(d).
Next, McNally contends that appellate counsel was ineffective for failing to present an appellate argument challenging the sufficiency of the evidence supporting his convictions. Claims of ineffective assistance of appellate counsel are evaluated under the same Strickland standard applicable to trial counsel. See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). An attorney's decision about which issues to raise on appeal are strategic,
Having already determined that trial counsel's failure to challenge the sufficiency of the evidence supporting McNally's convictions did not amount to constitutionally ineffective assistance of counsel, the court similarly concludes that appellate counsel did not perform ineffectively for failing to raise the same meritless argument on direct appeal. Accordingly, the court will deny this portion of claim one for failing to satisfy § 2254(d), because the Delaware Supreme Court reasonably applied Strickland when it denied his complaint about appellate counsel on post-conviction appeal.
In claim two, McNally contends that there was insufficient evidence to support his convictions for first degree reckless endangering, possession of a firearm during the commission of a felony, and criminal mischief. McNally did not present this claim to the Delaware Supreme Court on direct appeal or post-conviction appeal.
McNally attempts to establish cause for his default by blaming trial and appellate counsel for not raising the insufficient evidence claim. An attorney's ineffective assistance may constitute cause for a procedural default, but only if the attorney's ineffectiveness amounts to a Sixth Amendment violation. See Murray, 477 U.S. at 488. In this case, McNally's attempt to blame trial and appellate counsel for his default is unavailing, because the court has already determined that counsels' failure to raise this argument did not amount to constitutionally ineffective assistance.
In the absence of cause, the court will not address the issue of prejudice. Moreover, the court cannot excuse McNally's default under the miscarriage of justice exception to the procedural default doctrine, because he has not provided new reliable evidence of his actual innocence. The alleged "newly discovered evidence" provided by McNally (D.I. 17; D.I. 24) does not trigger the miscarriage of justice exception because it is "evidence" that was available to him during his trial. Accordingly, the court will deny claim two as procedurally barred from federal habeas review.
In claim three, McNally contends that his Sixth Amendment right to confront the witnesses against him was violated by the improper admission of expert testimony regarding the ballistic and gunshot residue analyses. The court will address McNally complaints about the different expert testimony separately.
The first portion of claim three contends that the ballistic expert's (Carl Rone) failure to remember the details of his analysis regarding the bullet casings deprived McNally of his right to cross-examine and confront witnesses under the Sixth Amendment. McNally presented this same argument to the Delaware Supreme Court on direct appeal, which denied the claim as meritless.
The Confrontation Clause of the Sixth Amendment provides, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the . . . right to be confronted with the witnesses against him." U.S. Const. amend. VI. One of the primary protections derived from the Confrontation Clause is the right to effective cross-examination of the State's witnesses. See Crawford v. Washington, 541 U.S. 36, 61 (2004). In turn, one function of the constitutionally protected right of cross-examination is to "attack the witness' credibility" by revealing possible "biases, prejudice, or ulterior motives." Davis v. Alaska, 415 U.S. 308, 316 (1974). Notably, however, the Confrontation Clause guarantees only "an
Here, the Delaware Supreme Court's denial of McNally's instant argument was not contrary to clearly established federal law, because that court cited to Fensterer when it denied the argument as meritless. The Delaware Supreme Court's decision also involved a reasonable application of clearly established federal law. In Fensterer, an expert analyzed hairs and opined that they had been forcibly removed, but he could not recall which of three methods he used to make that determination. See Fensterer, 474 U.S. at 17. In McNally's case, Rone, the ballistics expert, testified that the casings from the scene and the casings found in the car McNally drove had "similar markings" and were fired from the same weapon, but he could not recall precisely which markings he compared or how those markings were unique to a particular firearm. See McNally, 980 A.2d at 369. Because Rone was subject to cross-examination and disclosed his inability to recall the basis of his opinion, Rone's testimony did not violate McNally's rights under the Confrontation Clause. Accordingly, the court will deny this portion of claim three for failing to satisfy § 2254(d).
Next, McNally contends that his Sixth Amendment right to confront the witnesses against him was violated under Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) when the trial court allowed the State to present expert Elena Foster to testify about the gunshot residue ("GSR") test results without requiring the testimony of Michelle Barry, another lab employee who was part of the chain of custody for GSR testing. Although the State asserts that the Delaware Supreme Court adjudicated this argument on the merits (D.I. 14 at 14), the record reveals that McNally presented this argument to the Delaware Supreme Court as an evidentiary chain-of-custody issue under Delaware state law, not as a Confrontation Clause violation.
The threshold question for Confrontation Clause claims is whether the challenged statement is testimonial. See Davis v. Washington, 574 U.S. 813, 821 (2006). "If it is not, the the Confrontation Clause has no application." Whorton v. Bockting, 549 U.S. 406, 420 (2007).
The State contends that McNally cannot establish the Delaware Supreme Court's decision was contrary to, or an unreasonable application, Supreme Court precedent because there is no clearly established Federal law governing the instant issue. The court concurs with the State's assertion that McNally's instant claim does not warrant habeas relief, but disagrees with the State's contention that there is no "clearly established Federal law" governing this particular issue. "Clearly established Federal law" for the purposes of the habeas statute is the law at the time of the last state-court adjudication on the merits of the petitioner's claim. See Greene v. Fisher, 132 S.Ct. 38, 43-45 (2011). Here, the last state-court adjudication of the merits the chain-of-custody issue actually raised by McNally occurred on direct appeal to the Delaware Supreme Court. However, as explained above, the court must view the Delaware Supreme Court as having adjudicated McNally's instant Confrontation Clause claim on direct appeal. As a result, the court will treat the Delaware Supreme Court's decision on direct appeal as the last state-court adjudication of the instant Confrontation Clause argument.
Although determining if certain types of statements are "testimonial" and fall within the scope of the Confrontation Clause is an area of continuing jurisprudential development, the relevant Supreme Court authority governing "testimonial" statements at the time the Delaware Supreme Court considered McNally's argument regarding Foster's expert testimony regarding the GSR test results consisted of Crawford v. Washington and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
Crawford, 541 U.S. at 51-52.
Subsequently, in Melendez-Diaz, the United States Supreme Court held that the specific expert analyst's report and "certificates of analysis" in that case were "functionally identical" to a testimonial statement under Crawford, and were therefore not admissible when the expert who prepared the report did not appear at trial and the defendant did not have a prior opportunity for cross-examination. Melendez-Diaz, 557 U.S. at 310-11. However, the Melendez-Diaz Court did not hold that all forensic reports fall into the same category. Rather, the introduction of the particular "certificates of analysis," or sworn affidavits, in Melendez-Diaz violated the Confrontation Clause because they were sworn declarations of fact made for the purpose of proving a fact. Id. at 311. The Supreme Court viewed the sworn affidavits as "functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination," and held that the analysists who prepared the affidavits were witnesses subject to confrontation by the defendant. Id. at 311, 324.
After viewing Foster's expert testimony about the GSR evidence within the aforementioned framework, the court concludes that McNally's Confrontation Clause claim does not warrant habeas relief. In this case, the police sent gunshot residue samples taken from McNally's hands and from the SUV McNally had been driving to the R.J. Lee Group, a private Pennsylvania laboratory, for analysis. (D.I. 15, State's Ans. Br. in McNally v. State, No. 183, 2008 at 19) Michelle Barry, an employee of R.J. Lee, physically removed the eight vials of gunshot residue from a storage locker and placed them on the Scanning Electron Microscope (SEM) stage for overnight analysis, along with known control sample vials. The SEM process is automated once the "run" button on SEM apparatus is pressed, and any tampering with the SEM process can be detected. Id. at 19-21. At the end of the SEM process, the machine prints out micro-images of the particles found. See McNally, 980 A.2d at 371.
After the SEM printed out the test results, Elana Foster, the manager of the Forensic Science Department at the R.J. Lee Group, and another lab analyst, Dave Freehling, each analyzed the machine results separately to verify the existence of gunshot particles such as lead and barium. (D.I. 15, State's Ans. Br. in McNally v. State, No. 183, 2008 at 19-20) The lab typically has two analysts review the test results because they testify in court and are of ten in different states, and having two analysists familiar with each case means there are two people available to testify. (D.I. 15 App. to State's Ans. Br. in McNally v. State, No. 183, 2008, at B-54)
During the trial, Foster testified that, in her expert opinion, the gun shot residue on McNally's hands indicated that he either fired a gun, was near a gun when it was fired, or came into contact with a person or object that had gunshot residue on it. See McNally, 980 A2d at 366-67. Foster's opinion was based on her independent review of the GSR SEM test results. Barry did not testify, and Foster explained that Barry's part in the testing consisted of placing the GSR vials on the SEM and turning the machine on. Foster also explained that she had trained Barry, and that there was no reason to believe the standard operating procedure was not followed. See id. at 371.
As explained by the Supreme Court in Melendez-Diaz, "we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." See Melendez-Diaz, 557 U.S. at 311 n.1; see also United States v. Ortega, 750 F.3d 1020, 1025 (8
In turn, even if Barry's absent testimony did not constitute chain of custody evidence, the court still concludes that the admission of Foster's expert opinion about the GSR test results did not violate McNally'S rights under the Confrontation Clause. Barry's work, which included starting the SEM apparatus to collect test results, was ministerial in nature, and the SEM GSR test results were "raw data," or "pure instrument read outs" that did not amount to a testimonial statement by Barry. See United States v. Summers, 666 F.3d 192, 202 (4
Accordingly, the Delaware Supreme Court's decision affirming the trial court's admission of Foster's GSR expert testimony was neither contrary to, nor an unreasonable application of, Crawford and Melendez-Diaz.
In his final claim, McNally contends that his Sixth Amendment right to confrontation was violated when out-of-court statements made by two of the witnesses who were in the house at 82 Strawberry Drive at the time of the shooting (Dale Hall and Shelley Stanley) were admitted even though they did not testify at his trial. The Delaware Supreme Court denied this argument as meritless after determining that the record did not support his contention that the trial court admitted prior out-of-court statements made by Hall and Stanley. See McNally, 2012 WL 3552923, at *2. Given this adjudication, McNally will only be entitled to relief if the Delaware Supreme Court's decision was either contrary to, or an unreasonable application of, clearly established Federal law.
The clearly established federal law governing the instant argument is Crawford and its progeny. To reiterate, in Crawford, the Supreme Court held that prior out-of-court testimonial statements by a witness are inadmissible unless the witness is available for cross-examination. See Crawford, 541 U.S. 36.
The Delaware Supreme Court's denial of claim four was not contrary to Crawford, because that court cited to Delaware precedent which, in turn, relied on Crawford. The Delaware Supreme Court's decision also did not involve an unreasonable application of Crawford. Given McNally'S failure to provide clear and convincing evidence to the contrary, the court accepts as correct the Delaware Supreme Court's factual determination that no prior out-of-court statements of the two non-testifying victims were admitted into evidence. In turn, because Hall and Stanley's out-of-court statements were not entered into evidence, McNally's Sixth Amendment right to confront Hall and Stanley was not triggered. Therefore, the Delaware Supreme Court's denial of the instant argument does not warrant relief under § 2254(d).
When a district court issues a final order denying a § 2254 petition, the court must also decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). A certificate of appealability is appropriate when a petitioner makes a "substantial showing of the denial of a constitutional right" by demonstrating "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court has concluded that McNally's petition fails to warrant federal habeas relief. The court is persuaded that reasonable jurists would not find this conclusion to be debatable. Therefore, the court will not issue a certificate of appealability.
For the reasons stated, McNally's petition for habeas relief pursuant to 28 U.S.C. § 2254 is denied without an evidentiary hearing or the issuance of a certificate of appealability. An appropriate order shall issue.
Thereafter, in his Rule 61 motion, McNally argued, inter alia, that the trial court erred when it admitted the GSR evidence because there was a chain of custody failure, and that appellate counsel was ineffective for failing to argue that the GSR evidence should not have been admitted during the trial because of the same chain of custody issue. See "McNally, 2011 WL 7144815, at *3-5. The Superior Court denied as procedurally barred McNally's "chain of custody/erroneous admission of the GSR" argument because the issue had been denied on direct appeal. Id. The Superior Court also denied as meritless McNally's argument that appellate counsel was ineffective for failing to raise on direct appeal the "chain of custody/erroneous admission of the GSR" issue because appellate counsel actually did raise that issue on appeal. Id. When McNally appealed the Superior Court's decision, he cited Melendez-Diaz v. "Massachusetts, 557 U.S. 305 (2009) and argued that the Delaware Supreme Court should review his GSR evidence/chain of custody argument under Rule 61(i)(5)'s miscarriage of justice exception to the procedural bar rule because his Sixth Amendment rights had been violated due to his inability to cross-examine Michelle Barry. (D.I. 15, Opening Brief Case Number 631, 2011 Filing ID 41671441, at 15) The Delaware Supreme Court rejected this argument and affirmed the Superior Court's decision, explicitly holding that "the Superior Court did not err when barring McNally's evidentiary claims as formerly adjudicated." McNally, 2012 WL 3552923, at *2. Also on post-conviction appeal, McNally asserted that appellate counsel provided ineffective assistance by failing to argue on direct appeal that McNally's Sixth Amendment rights were violated because trial counsel did not cross-examine Barry. (D.1. 15, Opening Brief, Case Number 631, 2011, at 15) The Delaware Supreme Court rejected this argument because McNally did not "demonstrate that he was prejudiced as a result of any alleged ineffective assistance of his trial and/or appellate counsel." See "McNally, 2012 WL 3552923, at *2.
