ROBINSON, District Judge
Petitioner Wayne Olin Revel Jr. ("petitioner) has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I.3) Petitioner is an inmate in custody at the James T. Vaughn Correctional Center in Wilmington, Delaware. For the reasons that follow, the court will dismiss his application.
As summarized by the Delaware Supreme Court in petitioner's direct appeal:
Revel v. State, 956 A.2d 23, 25-27 (Del. 2008).
In January 2008, a Delaware Superior Court jury convicted petitioner of two counts of second degree robbery and one count of attempted second degree robbery. See Revel v. State, 9 A.3d 476 (Table), 2010 WL 4812796, at *1 (Del. Nov. 24, 2010). The Superior Court sentenced petitioner in February 2008 as an habitual offender to a total of fifteen years of incarceration, suspended to probation after serving twelve years. Id. The Delaware Supreme Court affirmed petitioner's convictions on direct appeal. See Revel v. State, 956 A.2d at 30.
In September 2008, petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") alleging, inter alia, the ineffective assistance of trial and appellate
Petitioner timely filed a § 2254 application in this court. (D.I.3) The State filed an answer, arguing that the court should deny the application for failing to satisfy § 2254(d). (D.I.23)
If a state's highest court 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). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or the state court's decision was an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001).
A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather than on a procedural or some other ground. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009). The deferential standard of § 2254(d) applies even "when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied"; as recently explained by the Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011).
Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1). 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); Miller-El v. Cockrell, 537 U.S. 322, 341, 123 S.Ct. 1029, 154 L.Ed.2d 931 (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).
Petitioner's application asserts the following two grounds for relief: (1) the trial court erred by failing to declare a mistrial when a police detective commented at trial on petitioner's Fifth Amendment right to remain silent; and (2) defense counsel provided ineffective assistance by failing to call a key alibi witness to testify at trial and also by failing to properly cross-examine key witnesses for the prosecution. The Delaware Supreme Court denied both claims as meritless (claim one was denied on direct appeal and claim two was denied on post-conviction appeal). Therefore, habeas relief will only be available if the Delaware Supreme Court's decisions were contrary to, or involved an unreasonable application of, clearly established federal law. The court will discuss the claims in seriatim.
Near the end of defense counsel's cross-examination of Detective Papili, counsel
Id. at 27.
In claim one, petitioner asserts that Detective Papili's reference to petitioner's refusal to provide a police statement and his related request for an attorney constituted an impermissible comment on petitioner's Fifth Amendment right to silence. As a result, petitioner contends that the trial court's failure to declare a mistrial after Detective Papili's comment violated his right to a fair trial. The court construes petitioner's argument to be that the trial court's failure to declare a mistrial violated his right to due process.
Pursuant to Supreme Court precedent, trial judges have broad discretion in deciding whether to grant a mistrial, and "may declare a mistrial whenever, in their opinion, taking all the circumstances into consideration, there is a `manifest necessity' for doing so, [ ] but the power ought to be with the greatest caution, under urgent circumstances, and for very plain and obvious causes." Renico v. Lett, 559 U.S. 766, 773-74, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). There are no hard and fast rules regarding what conditions constitute a "manifest necessity" requiring a mistrial; rather, the determination must be based on the particular facts and circumstances of the case. Russo v. Superior Ct. of New Jersey, 483 F.2d 7, 13 (3d Cir.1973); Crawford v. Fenton, 646 F.2d 810, 817 (3d Cir.1981).
In Delaware, "a mistrial is warranted only when there is a manifest necessity or the ends of justice would be otherwise defeated, and there are no meaningful and practical alternatives to that remedy." See Dawson v. State, 637 A.2d 57, 62 (Del.1994)(citing cases). Here, the Delaware Supreme Court applied Delaware's abuse of discretion standard when it reviewed the trial court's denial of petitioner's motion for a mistrial. See Revel, 956 A.2d at 28-30. However, because this standard mirrors the standard articulated in Renico, the court concludes that the Delaware Supreme Court's decision was not contrary to clearly established federal law. See Williams, 529 U.S. at 406, 120 S.Ct. 1495 ("[A] run-of-the-mill state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner's case [does] not fit comfortably within § 2254(d)(1)'s `contrary to' clause").
As for the court's inquiry under the "unreasonable application" prong of § 2254(d)(1), on habeas review
Renico, 559 U.S. at 772-72, 130 S.Ct. 1855. An improper witness statement only rises to the level of a due process violation if, when viewed in the context of the entire trial, the statement is of sufficient significance so as to deny the petitioner of a fair trial because it prevented the jury from arriving at a fair and impartial verdict. See Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)(applied in the context of prosecutorial misconduct); Arizona v. Washington, 434 U.S. 497, 511-12, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The Third Circuit has identified three factors for a reviewing court to consider when determining if a trial court abused its discretion in denying a mistrial: (1) whether the witness' remarks were pronounced and persistent, creating a likelihood of misleading and prejudicing the jury; (2) the strength of the other evidence; and (3) the curative action taken by the court. United States v. Xavier, 2 F.3d 1281, 1285 (3d Cir.1993). Delaware trial courts consider similar factors when determining whether a witness' statement has prejudiced the defendant such that a mistrial is warranted: (1) the nature, persistency, and frequency of the emotional display; (2) whether the out-burst created a likelihood that the jury would be misled or prejudiced; (3) the closeness of the case; and (4) the curative or mitigating action taken by the trial judge. See Pena v. State, 856 A.2d 548, 550-51 (Del.2004); Taylor v. State, 690 A.2d 933, 935 (Del.1997).
After reviewing Detective Papili's reference to petitioner's exercising his right to remain silent within the aforementioned framework, the court concludes that the Delaware Supreme Court's decision does not warrant habeas relief. As an initial matter, given petitioner's failure to provide clear and convincing evidence to the contrary, the court accepts as correct the Delaware Supreme Court's factual finding that Detective Papili's brief one-sentence reference to petitioner's exercising his right to remain silent was inadvertent in nature and made as part of an explanation for the police officers' failure to ask petitioner to provide a writing sample. See Revel, 956 A.2d at 28-29. In turn, Detective Papili's extremely brief and inadvertent statement about petitioner's exercise of his right to remain silent was unlikely to mislead the jury or result in substantial prejudice. The case also was not close and the evidence against petitioner was strong. For instance, the jury was presented with three bank surveillance photographs of the robber and the jurors were able to compare those photos of the robber's face with petitioner's physical appearance as he was seated before them in the courtroom. The jury had the surveillance film of the robberies to compare against petitioner's physical appearance. During the trial, the State demonstrated that the distinctive clothing worn by the bank robber during the incidents matched the apparel the police recovered from petitioner's motor vehicle and, even though petitioner was unemployed, he had over $1100 cash in his pockets when arrested shortly after the last bank robbery attempt. See Revel, 956 A.2d at 30. Finally, the trial court's prompt, clear and forceful curative instruction adequately addressed defense counsel's concern about Detective Papili's reference without putting undue emphasis upon the subject. Notably, the Delaware Supreme Court's determination that the trial judge's curative instruction was sufficient to cure any potential for prejudice resulting from Detective Papili's fleeting comment is consistent with Supreme Court precedent that juries are presumed to follow the instructions given by the trial court. See Richardson v. Marsh, 481 U.S. 200,
In short, after reviewing petitioner's allegation in context with all of the aforementioned circumstances, the court concludes that the Delaware Supreme Court reasonably applied clearly established federal law in holding that the trial court did not abuse its discretion in denying petitioner's motion for a mistrial. Accordingly, the court will deny claim one for failing to satisfy § 2254(d).
Next, petitioner contends that counsel provided ineffective assistance by failing to investigate his explanation about the cash found on his person, by failing to call an alibi witness to testify at trial, and by failing to effectively cross-examine key witnesses for the prosecution. The clearly established law governing the instant ineffective assistance of counsel claim is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 688, 104 S.Ct. 2052.
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, 259-260 (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, 104 S.Ct. 2052.
In this case, the Delaware Supreme Court applied the Strickland standard when it affirmed the Superior Court's denial of claim two. Thus, the Delaware Supreme Court's decision was not contrary to clearly established federal law. See Williams, 529 U.S. at 406, 120 S.Ct. 1495.
The court's inquiry under § 2254(d)(1) is not over, because it must also determine if the Delaware Supreme Court's denial of claim two as meritless involved a reasonable application of Strickland. When performing this inquiry, the court must review the Delaware Supreme Court's decision with respect to petitioner's ineffective assistance of counsel claims through a "doubly deferential" lens. Harrington, 131 S.Ct. at 788. In other words, "the question is not whether counsel's actions were reasonable, [but rather], whether there is any reasonable argument that counsel satisfied Strick/and's deferential standard." Id.
Petitioner contends that counsel erred by failing to call alibi witness Angie Hindt
When the Superior Court denied claim two, it opined that "counsel did a superb job of investigating the case against [petitioner] and preparing for and presenting evidence during trial. I find counsel represented [petitioner] effectively and that [petitioner] has not demonstrated any prejudice as a result of said representation." State v. Revel, ID No. 0610006478, Comm'r Rep. & Rec., at 15 (Del.Super. Ct. June 14, 2010). After noting that it "was not a close case" and that the evidence against petitioner was strong, the Delaware Supreme Court affirmed the Superior Court's decision, opining that, even if counsel's actions constituted error, petitioner was not prejudiced. See Revel, 2010 WL 4812796, at *2.
The court has independently reviewed the record and finds the following information particularly relevant for its § 2254(d) inquiry. The exhibits for defense counsel's Rule 61 affidavit include emails between counsel and the investigator who helped investigate the facts of petitioner's case. These emails reveal that: (1) defense counsel investigated, but could not find, the company named Freedom Builders petitioner stated was his employer and source of the $1100; (2) petitioner was unable to provide any paystubs from his job; and (3) petitioner subsequently admitted that he did not start working for Freedom Builders until after the robberies. (D.I. 25, State's Motion to Affirm in Revel v. State, No.517, 2010, at Exh. 20-Exh. 37)
Further, in his Rule 61 affidavit, defense counsel explains that Ms. Hindt refused to testify at petitioner's trial, and that petitioner knew about her refusal well in advance of his trial. The email exhibits demonstrate that Ms. Hindt initially stated her willingness to testify in January 2007, and then failed to return the investigator's phone calls throughout the spring of 2007 until she finally stated in May 2007 that she would rather not be involved in the matter. (D.I. 25, State's Motion to Affirm in Revel v. State, No.517, 2010, at Exh. 20-Exh. 25) Then, in September 2007, Ms. Hindt indicated she would review a videotape to determine if petitioner was the person depicted on it. (D.I. 25, State's Motion to Affirm in Revel v. State, No.517, 2010, at Exh. 29) The emails also indicates that Ms. Hindt was served a subpoena. Id. However, according to counsel's October 16, 2007 "Memo to File," he met with Ms. Hindt for over three hours in October 2007 to determine if she should be called to testify. (D.I. 25, State's Motion to Affirm in Revel v. State, No.517, 2010, at Exh. 30) The Memo explains how, once defense counsel showed Ms. Hindt the surveillance photos and photos of the hat that was seized from petitioner's car, Ms. Hindt realized she could not testify "since if she admits the hat seized from [petitioner's motor vehicle] appears to be the same as the hat in the photos and DVDs, that testimony would help convict [petitioner.]" (D.I. 25, State's Motion to Affirm in Revel v. State, No.517, 2010, at Exh. 30) The Memo also explains how the dates she and petitioner stayed in the hotel in Dover were not the same dates of the robberies charged in petitioner's re-indictment, and that Ms. Hindt indicated she would not lie for petitioner. Id.
Petitioner also contends that counsel erred by not cross-examining his probation officer, Kerry Bittenbender, who, after seeing surveillance footage of the crime on television, thought the perpetrator looked like petitioner and contacted the police. According to petitioner, counsel should have cross-examined Bittenbender to point out that the bank tellers identified somebody else after looking at the photographs and that Bittenbender was the only person who positively identified petitioner as the person depicted in the photos. (D.I. 12 at 21) Petitioner also asserts that counsel should have cross-examined Bittenbender about petitioner's employment situation to demonstrate that the money found on his person was payment for working. Id.
An attorney's decision regarding the cross-examination of witnesses is strategic in nature and will not constitute the basis for ineffective assistance if such decisions are reasonably made. See Diggs, 833 F.2d at 444-45. In his Rule 61 affidavit, defense counsel explains that the State did not mention petitioner was on probation or that Bittenbender was his probation officer, and counsel believed cross-examining Bittenbender could have opened the door to petitioner's extensive criminal record on re-direct examination. Moreover, in this proceeding, petitioner does not describe definitive beneficial testimony that could have been obtained by cross-examining Bittenbender and, given petitioner's own concession to defense counsel that he was not employed by Freedom Builders on the relevant dates and his failure to provide the name of another possible employer for those dates, the court questions if Bittenbender could have provided any helpful information regarding petitioner's employment status. (D.I. 25, State's Motion to Affirm in Revel v. State, No.517, 2010, at Exh. 37-1) Weighing the apparent absence of beneficial testimony Bittenbender could have provided for the defense against the very real possibility that cross-examining Bittenbender would have revealed damaging information about petitioner's criminal past, the court concludes that petitioner has not overcome the strong presumption that counsel's decision was "sound trial strategy." See Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Finally, petitioner asserts that counsel's cross-examination of Detective Potts prejudiced his case because it elicited testimony about the information contained in the police report that matched petitioner's description to the description provided by another witness. (D.I. 12 at 23) The Superior Court rejected these assertions as meritless because "much beneficial
Accordingly, the court will deny claim two in its entirety for failing to satisfy § 2254(d).
Finally, the court must decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). The court may issue a certificate of appealability only when a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the denial of a constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
For the reasons stated above, the court concludes that petitioner's habeas application must be denied. Reasonable jurists would not find this conclusion debatable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued.
For the foregoing reasons, the court will deny petitioner's application for habeas relief filed pursuant to 28 U.S.C. § 2254. An appropriate order will be entered.
For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that:
1. Petitioner Wayne Olin Revel's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
2. The court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
