RICHARD G. ANDREWS, District Judge.
Presently pending before the Court is Petitioner Daemont Wheeler's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 3) The State filed an Answer in opposition, contending that the Petition should be dismissed in its entirety. (D.L 17) For the reasons discussed, the Court will dismiss the Petition.
Wheeler v. State, 36 A.3d 310, 312-13 (Del. 2012)
Petitioner was indicted for attempted first degree murder, possession of a firearm during the commission of a felony ("PFDCF"), possession of a firearm by a person prohibited ("PFBPP"), and possession of ammunition by a person prohibited ("P ABPP"). (D.I. 17 at 1) In April 2011, a Delaware Superior Court jury convicted Petitioner of all charges. See Wheeler, 36 A.3d at 313. The Superior Court sentenced him as an habitual offender to life in prison on the attempted first degree murder charge, and to a total of thirty-eight years of incarceration on the remaining charges. Petitioner appealed, and the Delaware Supreme Court affirmed his convictions and sentences on February 7, 2012. See Wheeler, 36 A.3d at 312.
In December 2012, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61, alleging ineffective assistance of counsel. The Superior Court denied the motion on October 3, 2013. See Wheeler, 36 A.3d at 312. On appeal, the Delaware Supreme Court vacated the Superior Court's judgment without addressing its merits, and remanded the case back to the Superior Court so that it could appoint counsel to represent Petitioner. See Wheeler v. State, 83 A.3d 738 (Table), 2014 WL 44715, at *1 (Del. Jan. 2, 2104). In January 2015, appointed counsel notified the Superior Court that counsel had thoroughly reviewed the record and were unable to assert any meritorious post-conviction claims. Counsel filed a motion to withdraw and a supporting memorandum of law pursuant to Delaware Superior Court Criminal Rule 61(e)(2). (D.I. 20-4 at 131-143) Petitioner filed a response. On February 27, 2015, the Superior Court granted post-conviction counsel's motion to withdraw and denied the Rule 61 motion. (D.I. 20-4 at 188) Post-conviction counsel and Petitioner filed notices of appeal, and post-conviction counsel filed a motion for the appointment of substitute counsel. See Wheeler v. State, 127 A.3d 1163 (Table), 2015 WL 6150936, at *2 (Del. 2015). The Delaware Supreme Court permitted post-conviction counsel to withdraw and appointed substitute post-conviction counsel ("appellate post-conviction counsel"). Thereafter, appellate post-conviction counsel filed a brief and motion to withdraw. Id. On October 19, 2015, the Delaware Supreme Court affirmed the Superior Court's decision and denied appellate post-conviction counsel's motion to withdraw as moot. Id. at *5.
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). The 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; see 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. See 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. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted, such claims are nonetheless procedurally defaulted. See 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. See 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. See 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. See 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).
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 (2000); Appel v. Hom, 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. See Thomas v. Hom, 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." Harrington v. Richter, 562 U.S. 86, 98 (2011). 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." Id. at 99.
Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. See 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. See 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 (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 timely filed § 2254 Petition asserts the following six grounds for relief: (1) the Superior Court's admission of certain testimony violated Petitioner's Sixth Amendment right to confront witnesses; (2) the State violated Petitioner's due process right to a fair trial by failing to turn over a witness' taped statement as required by Delaware Superior Court Criminal Rule 26.2 and Jencks v United States, 353 U.S. 657 (1957); (3) the State engaged in prosecutorial misconduct; (4) defense counsel provided ineffective assistance; (5) appellate counsel provided ineffective assistance; and (6) Petitioner was denied his right to a speedy trial. The Court will address the Claims seriatim.
In Claim One, Petitioner contends that his Sixth Amendment right to confront witnesses was violated in two ways. First, he contends that the trial court misapplied Federal Rule of Evidence 803(1) and (2)
Wheeler, 36 A.3d at 313-14.
On direct appeal, the Delaware Supreme Court held that the Superior Court properly admitted Davis' recitation of Shani's statement under Delaware Rule of Evidence 803(1) and (2) as both a present sense impression and as an excited utterance. See Wheeler, 36 A.3d at 314. The Delaware Supreme Court did not analyze the issue of Davis' testimony as a Confrontation Clause violation, because Petitioner only presented the argument as an error of Delaware evidentiary law. Petitioner also did not present the instant Confrontation Clause argument to the Delaware Supreme Court on post-conviction appeal. Therefore, the Court concludes that Petitioner's Confrontation Clause argument regarding Davis' testimony is unexhausted.
The Court further concludes that the instant Confrontation Clause argument is procedurally defaulted, because any attempt by Petitioner to present this argument in a new Rule 61 motion would be time-barred. See Del. Super. Ct. Crim. R. 61(i)(1). Petitioner does not allege, and the Court does not discern, any cause for Petitioner's default of this Claim. In the absence of cause, the Court will not address the issue of prejudice, and Petitioner's failure to provide new reliable evidence of his actual innocence precludes the applicability of the miscarriage of justice exception to his default. For these reasons, the Court will deny as procedurally barred Petitioner's contention that his confrontation rights were violated by Davis' recitation of Shani Scott's excited utterance identifying Petitioner as the shooter.
Wheeler, 36 A.3d at 315.
During its direct examination of Detective Ryde, the State did not ask Ryde whether each of the three witnesses (Shani Scott, Amber Scott, Mary Zachery) said they believed Petitioner shot Davis. See Wheeler, 36 A.3d at 317. Rather, the State asked Ryde if the three witnesses identified anyone other than Petitioner as the shooter, to which Ryde responded negatively. Id. On direct appeal, the Delaware Supreme Court concluded that Detective Ryde's testimony violated Delaware Rule of Evidence 802 because it constituted improper indirect hearsay testimony. See Wheeler, 36 A.3d at 317. The Delaware Supreme Court also held that the admission of Detective Ryde's testimony violated the Confrontation Clause of the Sixth Amendment, but that the admission was harmless beyond a reasonable doubt. Id. at 317-21. Since the Delaware Supreme Court adjudicated the merits of Confrontation Clause issue presented in the second contention of Claim One, the Court must review the Delaware Supreme Court's decision under § 2254(d) to determine if it was either contrary to, or an unreasonable application of, clearly established federal law.
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. In Crawford v. Washington, 541 U.S. 36 (2004) and its progeny, the United States Supreme Court held that the Confrontation Clause bars the admission of testimonial statements of witnesses absent from trial that are admitted to establish the truth of the matter asserted in the statement, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. See Crawford, 541 U.S. at 59, 60 n. 9; see also Davis v. Washington, 547 U.S. 813, 823-24 (2006). A testimonial statement is a statement that is made during non-emergency circumstances and which the declarant would objectively foresee might be used in the investigation or prosecution of a crime. See United States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005); Davis, 547 U.S. at 822.
A violation of a defendant's rights under the Confrontation Clause does not necessarily require reversal. Rather, a Confrontation Clause violation is subject to a harmless error analysis. See Ali v. Adm'r New Jersey State Prison, ___ F. App'x ___, 2017 WL 89016, at *2 (3d Cir. Jan. 10, 2017). "The test for whether a federal constitutional error [such as a Confrontation Clause violation] was harmless depends on the procedural posture of the case." Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015). For instance, on direct appeal, a court assessing the prejudicial impact of a constitutional error in criminal trial must apply the harmless error standard articulated in Chapman v. California, 386 U.S. 18, 24 (1967). See Davis, 135 S.Ct. at 2197. In contrast, on habeas review, a court assessing the prejudicial impact of a constitutional error in a state criminal trial must apply the harmless error standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). See Davis, 135 S.Ct. at 2197; Fry v. Pliler, 551 U.S. 112, 117-122 (2007) (explaining that the Brecht harmless error standard of review subsumes the standards announced in AEDPA); Bond v. Beard, 539 F.3d 256, 275-76 (3d Cir. 2008) (explaining that Fry instructs federal courts to conduct an independent harmless error analysis). Pursuant to Brecht, a court must determine if the trial error at issue "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637; see also Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007). The "crucial inquiry is the impact of the error on the minds of the jurors in the total setting." Hassine v. Zimmerman, 160 F.3d 941, 955 (3d Cir. 1998).
Whether a Confrontation Clause violation is harmless beyond a reasonable doubt under Brecht depends on several factors, including "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see Ali, 2017 WL 89016, at *2. Under the Brecht standard, a state court's harmlessness determination still has significance. See Davis, 135 S.Ct. at 2198. Consequently, if a state appellate court has concluded, consistent with the Chapman standard, that a federal constitutional error is harmless beyond a reasonable doubt, AEDPA's § 2254(d) and the "actual prejudice" requirement articulated in Brecht dictate that deference be given to the state court's decision. Id. at 2199. However, "[i]f, after reviewing the trial record, [the court] is in `grave doubt' as to whether the error had a substantial and injurious effect or influence in determining the jury's verdict, such error is not harmless irrespective of whether the State could theoretically sustain a conviction without the erroneously admitted evidence." O'Neal v. McAninch, 513 U.S. 432, 436 (1995); see also Yohn v. Love, 76 F.3d 508, 523 (3d Cir. 1996) ("The correct inquiry is whether the error had a substantial influence on the verdict despite sufficient evidence to support the result apart from the error.").
In this case, because neither party challenges the Delaware Supreme Court's determination that the admission of Detective Ryde's testimony violated Petitioner's rights under the Confrontation Clause, the Court will limit its analysis to determining if the Delaware Supreme Court reasonably applied clearly established federal law in holding that the Confrontation Clause violation was harmless. After applying the Van Arsdall factors to Detective Ryde's testimony, the Court concludes that any Confrontation Clause error arising from the admission of Ryde's testimony was harmless. Davis' testimony was more compelling than Ryde's testimony, considering that Davis was the victim and knew Petitioner well. Ample testimonial and ballistics evidence
In Claim Two, Petitioner argues that he was deprived of a fair trial because the State failed to turn Davis' taped police statement over to the defense, which prevented defense counsel from effectively cross-examining Davis. In Claim Three, Petitioner asserts that the State engaged in prosecutorial misconduct during its closing argument by making improper remarks and vouching for the credibility of state witnesses. Specifically, he contends that: (1) the State "suggested [throughout the course of the trial] that Herbie Davis `witnessed' [Petitioner] go out the back door, which contradicts Herbie Davis' earlier testimony [that Petitioner] went out the back door, came back in, then went downstairs, that's when Davis put on his sneakers and went outside on the front porch to smoke a cigarette" (D.I. 4 at 18); (2) the State used the phrase "we know" four times during closing argument (D.I. 4 at 19); and (3) the State said in closing, "[Petitioner] shot him," and implied to the jury that they could infer intent from the fact that Petitioner pulled the trigger (D.I. 4 at 20).
The record reveals that Petitioner did not present Claims Two and Three as free-standing prosecutorial misconduct/constitutional violations to the Delaware Supreme Court. Rather, in his Rule 61 proceeding, Petitioner argued that appellate counsel was ineffective for failing to raise Claim Two and the second allegation of Claim Three on direct appeal, and he did not present the first and third allegations of Claim Three to the Delaware Supreme Court. Presenting a constitutional violation in the context of an ineffective assistance of counsel argument does not exhaust state remedies for the underlying constitutional claim. See Willis v. Vaughn, 48 F. App'x 402, 406 (3d Cir. 2002). Since, at this juncture, a Rule 61 motion raising Claims Two and Three would be time-barred by Delaware Superior Court Criminal Rule 61(i)(1), the Court must treat the Claims as technically exhausted but procedurally defaulted.
Petitioner attempts to establish cause by blaming appellate counsel for failing to raise Claims Two and Three on direct appeal. An attorney's error can constitute cause for a procedural default, but only if the petitioner first presented that ineffective assistance of counsel claim to the state courts as an independent claim and the attorney's error amounted to constitutionally ineffective assistance. See Murray, 477 U.S. at 488-89. In turn, an ineffective assistance of counsel claim that is itself procedurally defaulted cannot constitute cause to excuse a petitioner's default of the underlying substantive claim. See Edwards v. Carpenter, 529 U.S. 446, 453-54 (2000). As discussed later in this Opinion, Petitioner procedurally defaulted his argument regarding appellate counsel's failure to present Claim Three (1) and (3) to the Delaware Supreme Court, and appellate counsel's failure to present Claims Two and Three (2) on direct appeal did not amount to constitutionally ineffective assistance. See infra at 23-25. Therefore, Petitioner has failed to establish appellate counsel's performance as cause for his default of Claims Two and Three.
Given Petitioner's failure to establish cause, the Court will not address the issue of prejudice.
Next, Petitioner asserts that defense counsel provided ineffective assistance by: (1) failing to consult a medical expert or otherwise investigate or challenge Davis' ability to turn around and identify Petitioner as the shooter after being shot in the spine; (2) failing to object to the State's use of the phrase "we know" during closing argument; (3) failing to move to sever the PFBPP and PABPP charges; and (4) failing to obtain or review the ballistics expert's report before cross-examining that expert. The Delaware Supreme Court denied as meritless all of the allegations in Claim Four. Therefore, Claim Four will only warrant relief if the Delaware Supreme Court's decision was either contrary to, or 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. See 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 unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id.
Finally, 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. See Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254(d)(1) inquiry, the Court notes that the Delaware Supreme Court correctly identified the Strickland standard applicable to Petitioner's ineffective assistance of counsel allegations. Consequently, the Delaware Supreme Court's decision was not contrary to clearly established federal law. See Williams, 529 U.S. at 406 ("[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").
The Court's inquiry is not over, however, because it must also determine if the Delaware Supreme Court reasonably applied the Strickland standard to the facts of Petitioner's case. When performing this inquiry, the Court must review the Supreme Court's decision with respect to Petitioner's ineffective assistance of counsel claim through a "doubly deferential" lens.
According to Petitioner, if defense counsel had consulted with an expert before cross-examining Davis, counsel could have impeached Davis' testimony by questioning Davis' ability to turn around and identify Petitioner after he had been shot in the spine and became paralyzed. This argument does not warrant relief. First, Davis was able to recognize Petitioner's voice because he and Petitioner were well-acquainted. See Wheeler v. State, 2011 WL 6431452, at *5-6, 8 (State's Ans. Br., Dec. 8, 2011). Second, Petitioner's contention about the type of information a medical expert would have provided to defense counsel is pure speculation because he does not identify any specific medical expert who would have substantiated his assertion that Davis could not have turned around to identify him after the shooting. Given these circumstances, the Court concludes that the Delaware Supreme Court reasonably applied Strickland when holding that Petitioner's unsupported contention "does not overcome the strong presumption that trial counsel's representation was reasonable or show a reasonable probability of a different outcome at trial." Wheeler, 2015 WL 6150936, at *3.
In his second assertion of Claim Four, Petitioner contends that defense counsel should have objected to the State's use of the phrase "we know" during closing argument as constituting improper vouching. Here is the relevant excerpt from the State's closing argument:
Wheeler, 2015 WL 6150936, at *4.
In Petitioner's Rule 61 proceeding, the Superior Court denied Petitioner's instant argument for failing to establish prejudice because, "[g]iven the abundance of eyewitness evidence in this case any prejudice suffered is harmless as noted by the [Delaware] Supreme Court on direct appeal." (D.I. 20-4 at 141) The Delaware Supreme Court affirmed that decision on post-conviction appeal, opining that,
Wheeler, 2015 WL 6150936, at *4.
As explained by the Third Circuit,
Lam v. Kelchner, 304 F.3d 256, 271 (3d Cir. 2002) (internal citations omitted). When viewed in context with this definition, the State'-s "we know" statements did not amount to improper vouching.
Nevertheless, even if the "we know" statements were improper, Petitioner has failed to demonstrate a reasonable probability that the outcome of his trial would have been different but for defense counsel's failure to object to those statements. Davis, who knew Petitioner well, provided eyewitness testimony describing how Petitioner shot him. Corporal Lamon testified that Davis told him that Petitioner shot him (D.I. 6-1 at 58), and Detective Ryde corroborated that Davis indicated Petitioner was the shooter
Petitioner contends that he was prejudiced by defense counsel's failure to sever the PFBPP and PABPP charges because proceeding with both charges allowed the jury to learn that he was a person prohibited from possessing a firearm. The Delaware Supreme Court rejected this argument on post-conviction appeal, primarily because the "parties stipulated at trial that Petitioner was prohibited from possessing a firearm after having been convicted of a felony or a crime of violence involving physical injury." Wheeler, 2015 WL 6150936, at *3. The Delaware Supreme Court also held that, "[e]ven if stipulating to [Petitioner's] person prohibited status rather than filing a motion to sever was professionally unreasonable," Petitioner could not establish prejudice because Davis knew Petitioner well and his identification of Petitioner was compelling. Id.
After considering the record, and viewing the Delaware Supreme Court's decision through the doubly deferential lens applicable on habeas review, the Court concludes that the Delaware Supreme Court reasonably applied Strickland in concluding that Petitioner failed to demonstrate sufficient prejudice. Accordingly, the Court will deny this allegation of Claim Four for failing to satisfy§ 2254(d).
In his fourth allegation of Claim Four, Petitioner argues that defense counsel provided ineffective assistance because he cross-examined the State's ballistics expert without first obtaining and reviewing the expert's report. As noted by the Delaware Supreme Court on post-conviction appeal, the record reflects that the ballistics expert's report was admitted as a trial exhibit prior to defense counsel's cross-examination of the expert, but there is no indication that defense counsel received and reviewed the report prior to said cross-examination. See Wheeler, 2015 WL 6150936, at *3. However, the Delaware Supreme Court held that defense counsel did not perform deficiently because: (1) Petitioner did not identify which information in the report defense counsel should have cross-examined the expert on; (2) the State's case focused on eyewitness identification, not ballistics testimony; (3) on cross-examination, defense counsel elicited the expert's testimony that he did not know who shot Davis and that it is possible to leave a fingerprint on a shell casing; and (4) during closing argument, defense counsel highlighted that there was no evidence of Petitioner's fingerprints appearing on any of the shell casings. Id. at *3.
The Court concludes that the Delaware Supreme Court's decision involved a reasonable application of Strickland, because Petitioner cannot establish a reasonable probability that the outcome of his trial would have been different but for defense counsel's alleged failure to read the expert's report prior to cross-examining him. For instance, the State's ballistics expert testified that the six shell casings found at the scene were fired from the same semi-automatic weapon, but he did not connect Petitioner to the gun, shell casings or shooting. See Wheeler, 2015 WL 6150936, at *3. The case against Petitioner was based on substantial eyewitness testimony, and the ballistic expert's testimony merely corroborated that eyewitness testimony. For these reasons, the Court will deny the last allegation in Claim Four.
In Claim Five, Petitioner asserts two appellate counsel ineffective assistance allegations. First, he contends that appellate counsel failed to argue that the State engaged in prosecutorial misconduct by (1) misstating during its cross-examination of Davis what Davis said about witnessing Petitioner's exit through the back door; (2) using the phrase "we know" four times during closing argument; and (3) saying "[Petitioner] shot him [Davis]" during closing argument. Second, Petitioner asserts that appellate counsel failed raise the issue of the State's failure to turn over Davis' taped statement.
On post-conviction appeal, Petitioner only presented to the Delaware Supreme Court appellate counsel's failure to object to the second instance of prosecutorial misconduct involving the "we know" statements. (D.I. 21-3 at 1-16) Therefore, he did not exhaust state remedies for his allegations that appellate counsel was ineffective for not presenting the first and third aforementioned instances of prosecutorial misconduct. Since an attempt to raise these allegations in a new Rule 61 motion would be time-barred under Delaware Superior Court Criminal Rule 61(i)(1), the Court must treat these allegations as technically exhausted but procedurally defaulted.
Petitioner does not assert cause for this default and, therefore, the Court will not address the issue of prejudice. In addition, the miscarriage of justice exception does not apply because Petitioner has not provided new reliable evidence of his actual innocence. Hence, the Court will deny as procedurally barred Petitioner's contention that appellate counsel provided ineffective assistance by failing to raise on direct appeal his first and third allegations of prosecutorial misconduct.
However, Petitioner did present on post-conviction appeal his allegation that appellate counsel was ineffective for not challenging the State's four "we know" statements during closing argument, and for not raising the issue of the State's failure to turn over Davis' taped statement. The Delaware Supreme Court denied these arguments as meritless. Thus, Petitioner will only be entitled to habeas relief if the Delaware Supreme Court's decision was either contrary to, or an unreasonable application of, clearly established federal law.
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,
To begin, the Court concludes that the Delaware Supreme Court's decision was not contrary to clearly established federal law, because it cited and applied the proper Strickland standard when denying the two remaining ineffective assistance of appellate counsel claims. As set forth below, the Court also concludes that the Delaware Supreme Court's decision involved a reasonable application of Strickland.
The Court has already denied Petitioner's allegation that trial counsel provided ineffective assistance by failing to object that the State's "we know" statements constituted prosecutorial misconduct. See supra at 19-21. For the same reasons, the Court concludes that appellate counsel's failure to raise this issue of prosecutorial misconduct on appeal did not amount to ineffective assistance.
Petitioner asserts that appellate counsel should have argued on direct appeal that the State violated Jencks v. United States, 353 U.S. 657 (1957) and the Delaware rules of discovery because it did not turn Davis' taped statement over to the defense before Davis was cross-examined. The record reveals that there is no tape of Davis' statement. Therefore, the Delaware Supreme Court reasonably applied Strickland in holding that appellate counsel was not ineffective for failing to raise a factually baseless argument.
In his final Claim, Petitioner argues that he was denied his constitutional right to a speedy trial. Petitioner raised this argument in his Rule 61 proceeding. The Superior Court denied the argument as procedurally barred under Delaware Superior Court Rule 61(i)(3) due to Petitioner's failure to raise the issue at trial. Since Petitioner did not challenge the Superior Court's decision on post-conviction appeal, the instant speedy trial violation claim is unexhausted. At this juncture, a new Rule 61 motion raising the speedy trial argument would be time-barred under Rule 61(i)(1). Thus, the Court must treat the Claim as technically exhausted but procedurally defaulted.
Petitioner attempts to establish cause by blaming his post-conviction appellate counsel for not raising the instant speedy trial claim on post-conviction appeal. This argument is unavailing. When his appointed post-conviction counsel filed a motion to withdraw from representing Petitioner on post-conviction appeal, Petitioner was given an opportunity to present any claims he wanted. Although Petitioner did add several other claims, he did not add a speedy trial claim. Therefore, post-conviction appellate counsel's actions do no provide cause for the instant default, and Petitioner does not provide any other reason.
In the absence of cause, the Court will not address the issue of prejudice. The Court also will not excuse the default under the miscarriage of justice exception, because Petitioner has not provided new reliable evidence of his actual innocence. Hence, the Court will deny Claim Six as procedurally barred from habeas review.
Petitioner filed a Motion for the Appointment of Counsel during the pendency of this proceeding. (D.I. 27) Given the Court's decision to deny the Petition, the Court will dismiss the Motion for the Appointment of Counsel as moot.
A district court issuing a final order denying a § 2254 petition 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 Petitioner's habeas claims do not warrant relief. In the Court's view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the Court declines to issue a certificate of appealability.
For the reasons discussed, the Court concludes that the Petition must be denied. An appropriate Order will be entered.
Richter, 562 U.S. at 105 (internal citations omitted).
