IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, ) ) Plaintiff, ) ) v. ) ID No. 0612016202 ) WAYNE JACKSON, ) ) Defendant. )
MEMORANDUM OPINION (Corrected)
Defendant was convicted after a jury trial of three burglaries and
associated lesser offenses. Although he was found at the time of his arrest
with the proceeds of one of the burglaries, the primary, if not exclusive,
evidence linking him to the other two was his fingerprints found at the scene.
He now brings this Rule 61 motion arguing that both his trial counsel and his
appellate counsel were ineffective. Principally he contends that his trial
counsel was ineffective in the way he dealt with fingerprint evidence and his
appellate counsel’s poor performance deprived him of a reasonable likelihood
he would prevail on a severance and on a seizure issue. Despite the thorough
briefing of his current attorney, the court disagrees with his contentions. I. Procedural history
In February 2007, the State charged defendant with nine counts of
burglary in the second degree and 22 counts of associated crimes stemming
from five incidents occurring in Wilmington. Many of these charges were
dropped, and the prosecution eventually proceeded on three counts of
burglary-2 and three counts of theft. The three burglaries occurred at separate
locations on different days. At the time he was arrested Jackson was found
with the proceeds of one of the burglaries. His trial counsel, a Public Defender,
filed a motion to sever the two charges for that burglary from the remaining
charges. This court considered that motion on the papers and denied it. Trial
counsel also moved to suppress evidence seized at the time Jackson was
arrested. That motion was also denied. Jackson went to trial in October 2007,
and was convicted by a jury on all counts. Because he was an habitual
offender Jackson was sentenced to three minimum mandatory terms of eight
years for each of the three burglary-2 convictions. He received probation for
the associated theft convictions. Jackson appealed his conviction to the
Delaware Supreme Court, which affirmed.
Part of this matter focuses on Jackson’s direct appeal. As is customary,
the Office of the Public Defender assigned a different attorney from its appeals
unit to prosecute Jackson’s appeal. That attorney, whose conduct is not
challenged by Jackson, filed a brief in the Supreme Court in accordance with
Rule 26(c). The essence of that brief was that counsel could find no arguable
2 issues to assert on appeal. The Supreme Court thought there might indeed be
arguable issues to present, so it appointed new appellate counsel for Jackson.
This counsel will be referred to as “appointed appellate counsel” in this
opinion. Appointed appellate counsel filed an opening brief, and after the State
filed its answering brief the Supreme Court scheduled the appeal to be heard
on the briefs. The Court later affirmed Jackson’s conviction in a 20 page
opinion.
After his conviction was affirmed Jackson filed a pro se Rule 61 motion.
The court appointed his current counsel to represent him in the Rule 61
proceedings. During the pendency of the Rule 61 this proceeding was
reassigned to the undersigned judge because of the retirement of the trial
judge. Thereafter the court expanded the record to include, among other
things, affidavits from trial and appellate counsel. Jackson’s current counsel
and the State then filed briefs, followed by some additional briefing requested
by the court on the effect of Criminal Rule 61(i)(4) Jackson’s claim relating to
the prejudice prong of the test for ineffective assistance of counsel. This is the
court’s opinion on Jackson’s Rule 61 motion.
II. Facts
The facts are set forth in the Supreme Court’s opinion affirming
Jackson’s conviction. Rather than attempting to re-invent the wheel, the court
will simply repeat them here:
3 On September 25, 2006, Thomas Dykes discovered that his home at 2010 North Broom Street in Wilmington had been burglarized and cordless telephone, laptop computer, digital camera, DVD player, gold bracelet, leather bag, and jar of change were missing. Dykes called the police and Officer Gerald Nagowski of the Wilmington Police Department went to Dykes' home. The screen of a window in the back of the house had been cut near the latches, making that window the burglar's likely point of entry. Nagowski dusted the area for fingerprints and recovered two latent prints.
On October 10, 2006, Timothy Lewis discovered that his home at 2207 Van Buren Place in Wilmington had been burglarized. A cellular telephone, digital camera and one dollar were missing. Lewis called the police and Nagowski went to Lewis' home. Nagowski identified two adjacent windows in the back of the house where the screens had been cut as the likely point of entry. He dusted the area and recovered one latent fingerprint.
On December 20, 2006, Officer Joseph Sammons, supervisor of the Wilmington Police Department's Evidence Detection and Fingerprint Identification Unit, analyzed the latent prints recovered from the Broom Street and Van Buren Place homes. After comparing them to a known print in the department's records, Sammons determined that the latent prints from the Broom Street home matched Jackson's known prints, and that the latent print from the Van Buren Place home compared positively with Jackson's known print. On January 20, 2007, New Castle County Police Officer Alan Herring made a traffic stop on Polk Drive in Edgemoor around 8 p.m. The driver of the car fled on foot and Herring chased him, but could not catch him. Herring radioed for assistance and broadcast a description of the driver as an African–American male, approximately six feet tall, thin build, medium dark to dark complexion, with facial hair, and wearing a golden-brown “puffy” coat. A K–9 unit responded to the scene and the police dog tracked the suspect from the abandoned car, south through Edgemoor, and in the direction of Merchants Square Shopping Center on Governor Printz Boulevard, north of the city of 4 Wilmington. Several police officers set up a cordon in the area where the driver was likely to flee. Officer Daniel Guzevich stationed himself in the Merchants Square Shopping Center.
Around 8:30 p.m., Guzevich saw a man riding a bicycle enter the shopping center's nearly empty parking lot. The man on the bike resembled the suspect described by Herring. Guzevich described the bicyclist as a tall, thin, African–American man, with facial hair and a dark complexion. The bicyclist was not wearing a “puffy” coat, but Guzevich discounted this difference, because the suspect had fled half an hour earlier and had time to change his clothes. Guzevich decided to question the man and drove toward him.
When the man noticed the police car approaching, he fled immediately. Guzevich turned on the police car's emergency lights and followed him. The man crashed his bicycle into the curb, dropped the bag he was carrying and fled on foot. Guzevich got out of the police car and chased the man on foot, eventually catching up, and physically subduing him and arresting him. The man Guzevich arrested was later determined to be Wayne Jackson. The man who had abandoned his vehicle on Polk Drive was later determined to be Carron Moon. The abandoned vehicle was registered to Terrance Tonic.
During the search of Jackson incident to his arrest, Guzevich found in Jackson's pockets an iPod, a Palm Pilot, a photo of a young girl, a University of Delaware class ring, and twenty dollars. In the bag Jackson had dropped, Guzevich found a laptop computer, another iPod, various cords for the iPod and computer, and a shattered glass coin bank with loose change. When Guzevich turned on the computer, it displayed the names of various members of the Callaghan family. The name “Eugene F. Callaghan” was also inscribed on the inside of the University of Delaware class ring. The police determined that a Eugene F. Callaghan lived at 191 Brandywine Boulevard, about half a mile from where Jackson was arrested. The police went to the Callaghan residence.
5 The Callaghans were not home when the police arrived, but a neighbor called them and they returned home soon after. Eugene Callaghan identified the various items recovered from Jackson as the Callaghan family's computer, Eugene Callaghan's iPod, his daughter's iPod, the family's coin bank, and Eugene Callaghan's class ring. Callaghan also identified the bicycle Jackson was riding as belonging to Callaghan's son and the photo taken from Jackson's pocket as a picture of Callaghan's daughter.
The police later compared Jackson's fingerprints with the fingerprints found at several other homes that had been burglarized in September, October and December 2006. Jackson's prints matched those taken from four other homes that had been burglarized in North Wilmington.
Analysis
Any Rule 61 analysis must begin with consideration of procedural bars.
Unlike most such motions filed in this court, the instant Rule 61 motion is not
time barred. However, part of Jackson’s motion runs afoul of the prohibition
against reconsidering matters which have already been decided.
A. The procedural bars
Before reaching the merits of a Rule 61 motion the court is obligated to
determine if any or all of the claims are procedurally barred. 1 Rule 61(i)(1)2
bars consideration of a motion filed more than one year after the judgment of
conviction is final, which in this case means more than one year after
1 Younger v. State, 580 A.2d 552 (Del. 1990)(“This Court applies the rules governing procedural requirements before giving consideration to the merits of the underlying claim for postconviction relief.”) Deputy v. State, 1993 WL 332667 (Del.Super.)(“It is well settled the Court must first determine whether Deputy has met the procedural requirements of Superior Ct.Crim.Rule 61(i) before it may consider the merits of his postconviction relief claim.”). 2 This court amended the procedural bars in Rule 61 after Jackson filed his petition. The court will apply the bars in effect at the time he filed his motion. Neither side in this matter has argued the court should apply the new rule.
6 Jackson’s conviction was affirmed on appeal. Jackson’s conviction was
affirmed by the Supreme Court on July 13, 2009 3 and he filed a pro se Rule 61
motion less than one year later, on May 6, 2010. After Jackson filed his pro se
motion the court appointed counsel for him. Appointed counsel filed a new
brief which argued some of the points raised by Jackson in his pro se filing and
also asserted additional arguments. The court deems counsel’s brief to relate
back to the original pro se filing, and therefore finds that all the arguments
raised in that brief are timely. 4
Another procedural bar, however, is applicable to some of Jackson’s
arguments. Criminal Rule 61 (i)(4) bars consideration of previously decided
issues:
Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a post conviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
Jackson argues that Rule 61(i)(5) 5—which allows colorable constitutional
claims to be considered if doing so would avoid a miscarriage of justice—
3 Jackson v. State, 990 A.2d 1281 (Del. 2009). 4 Lest this be misunderstood, the court is not saying that subsequent Rule 61 motions relate back to the filing of the first motion. The court is also not saying that a defendant may file a “placeholder” motion within a year of his or her conviction and then expect that any later arguments will be deemed to be timely. The circumstances of this case are unusual in that the defendant made a genuine attempt to timely raise his post conviction claims and counsel was appointed for him within a year of his conviction becoming final. The fact that the court scheduled the filing of his brief to occur more than a year after the conviction became final is not attributable to Defendant. See Bey v. State 402 A.2d 362, 3 (Del., 1979)(“ Because defendant did all that was required of him in seeking review; and because his default has been occasioned by court related personnel; his petition for review will not be denied.”). 5 That part of Rule 61 provides:
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that
7 permits this court to hear his barred arguments. But Rule 61(i)(5), on its face
applies only to the procedural bars found in Rule 61(i)(1) through (3); the
procedural bar of Rule 61 (i)(4) was intentionally excluded from the miscarriage
of justice exception. Thus if Jackson is to find any relief from the procedural
bar it must be from the “interest of justice” exception imbedded within Rule
61(i)(4) itself.
Last year the Supreme Court summarized the case law defining “interest
of justice” as that term is used in Rule 61(i)(4). In Pringle v. State the Court
wrote:
We have stated that “[i]n order to invoke the ‘interest of justice’ provision ... a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish [the defendant].” In Weedon v. State, we stated that the 61(i)(4) bar does not apply when the previous ruling was “clearly in error” or when “there has been an important change in circumstances, in particular, the factual basis for the issue previously posed.” We will not reconsider an issue simply because a defendant has “refined or restated” a claim. 6
Jackson’s claims do not fit within this definition. 7 Jackson argues with
considerable fervor that Rule 61 (i)(4) is equivalent to the law of the case
doctrine and that in appropriate cases equitable considerations justify ignoring
undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. 6 2013 WL 1087633 *3 (Del. Supr.)(footnotes omitted). 7 Jackson argues there has been a subsequent factual development which warrants reconsideration. He asserts that his assigned appellate attorney was suspended from the practice of law after his direct appeal was affirmed. That suspension was the result of assigned appellate counsel’s conduct in other matters. But. the Sixth Amendment issue here is not the performance of assigned appellate counsel in other matters; the issue here is his performance in this matter. His suspension is therefore not relevant to the issues presented here, and the court does not consider it to be a pertinent new development.
8 that doctrine. The flaw in this argument is that although Rule 61(i)(4) may be
similar to, or even the equivalent of, the law of the case doctrine, it is not the
same thing. Rule 61 is a creature of the court’s rule making powers. Its
ancestor, Rule 35, was crafted by this court (and approved by the Supreme
Court) under the leadership of Judge Bernard Balick in an effort both to limit
the large number of meritless motions for post conviction relief and to preserve
Delaware Court’s autonomy of Delaware’s courts in criminal matters. 8 The
narrow exception in Rule 61(i)(4) was a deliberate choice, as was the decision to
exempt Rule 61(i)(4) from the miscarriage of justice exception in Rule 61(i)(5).
Reading an equity exception into Rule 61(i)(4) would make virtually any
previous ruling subject to subsequent review under the guise of “equity”—a
result wholly inconsistent with the purpose of Rule61(i)(4). Consequently,
although there are similarities between Rule 61(i)(4) and the law of the case
doctrine, the court declines to read an equity exception into the former.
The court will discuss the specific application of Rule 61(i)(4) in
conjunction with Jackson’s claim that his appointed appellate counsel was
ineffective.
B. The standard for showing ineffective assistance of counsel
Ever since the United States Supreme Court’s decision in Strickland v.
Washington 9 the standard for showing ineffective assistance of counsel has
8 State v. Wright, 2012 WL 14000932 (Del. Super.) rev’d on other grounds, 67 A.3d 319 (Del. 2013). 9 466 U.S. 668 (1984).
9 been a familiar one. First Jackson must show that his “counsel's
representation fell below an objective standard of reasonableness.” 10 This
“requires the use of an objective standard of reasonableness based on
prevailing professional norms when evaluating an attorney's conduct.
Importantly, [the] task is to ‘reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from the counsel's perspective
at the time.” 11 Second, Jackson must show that, but for the errors of his
counsel, there is a reasonable likelihood that the result would have been
different. According to the Delaware Supreme Court,
Even if the defendant successfully demonstrates that his counsel's conduct fell below an objective standard of reasonableness, the inquiry does not end. We will not set aside the judgment in a criminal proceeding if the error had no effect on the outcome. Counsel's error must have been “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” In order to show prejudice, the defendant must establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” A reasonable probability of a different result requires a “probability sufficient to undermine confidence in the outcome.” Although this standard is not mathematically precise and does not necessarily require a showing of “more likely than not,” Strickland requires more than a showing merely that the conduct “could have or might have or it is possible that [it would have]” led to a different result. The likelihood of a different result must be substantial, not just conceivable. 12
10 Id. at 687. 11 Neal v. State 80 A.3d 935, 942 (Del. 2013)(internal quotation marks omitted). 12 Id. (footnotes omitted).
10 In some instances Jackson is unable to show his counsel’s performance fell
below the accepted norm. In others he cannot show that there is a reasonable
likelihood that counsel’s performance affected the outcome of the case.
C. The performance of Jackson’s trial counsel
Jackson makes five arguments, three of which relate to fingerprint
analysis, in support of his contention that his trial counsel was ineffective.
They are discussed separately.
1. The failure to challenge fingerprint testimony
Jackson argues that his trial counsel was ineffective because he did not
seek to exclude expert finger print analysis. According to Jackson, the science
behind finger print analysis is so suspect that an expert offering such analysis
would not survive a Daubert 13 motion. But in Delaware, “fingerprint analysis
has been tested and proven to be a reliable science over decades for judicial
purposes,” 14 and “[t]he overwhelming consensus from federal jurisdictions is
that, even when considered in terms of specific Daubert factors, the reliability
of the technique has been tested in the adversarial system for over a century
and has been routinely subject to peer review, and that absent novel
challenges, [expert testimony regarding] fingerprint evidence is sufficiently
reliable to satisfy Rule 702 and Daubert.” 15 Defense counsel candidly admitted
at oral argument that she is unaware of any court which has precluded finger
13 Daubert v. Merrill Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993). 14 State v. Cole, 2002 WL 1397452 (Del.Super.). 15 State v. Favela , 323 P.3d 716 (Ariz. App. 2014)(internal quotation marks omitted)..
11 print evidence because the science behind it is uncertain. 16 Neither is the
court.
As a matter of law the court cannot find trial counsel was ineffective
because he failed to advance an argument that has never met with success in
an American court. “[T]he Constitution guarantees criminal defendants only a
fair trial and a competent attorney. It does not insure that defense counsel will
recognize and raise every conceivable constitutional claim.” 17 Consequently the
performance of counsel does not fall below the level expected of a reasonably
competent attorney merely because counsel does not raise an argument which
has never previously been accepted. 18
2. The failure to cross-examine about specific fingerprints
Jackson argues that his trial counsel was ineffective because he failed to
cross-examine the State’s expert about unidentified fingerprints found on a
change jar located in one of the burglarized homes. He also contends that trial
counsel should have cross examined the State’s expert about whether the age
of the Jackson fingerprint exemplar affects the validity of the comparison. The
court finds that the absence of such cross-examination does not amount to the
ineffective assistance of counsel. Trial counsel conducted extensive cross-
16 When asked at oral argument what Jackson might have achieved if the court had conducted a Daubert hearing, Jackson’s counsel responded that the court “might have given” a limiting instruction. This falls far short of showing the requisite prejudice. 17 Engle v. Isaac, 456 U.S. 107, 131–34 (1982). 18 United States v. Fusaro 708 F.2d 17, 26 (1st Cir. 1983)(“The attorney-client privilege violation was at best a novel claim and failure to spot it does not render counsel's assistance below the range of competence of attorneys.”).
12 examination on fingerprints, and it is well within the reasonable exercise of
professional judgment to forego a line of cross examination specific to the
unidentified prints on one item. Jackson cites no legal authority or learned
treatise to support the notion that the age of the Jackson fingerprint exemplar
might affect the validity of the comparison. Insofar as the court is aware, an
individual’s fingerprints do not change over time. Trial counsel was
reasonable, therefore, in omitting such cross examination.
Even if the court were to assume that trial counsel was ineffective by
pursuing these lines of questioning, Jackson has not shown the requisite
prejudice. With respect to the unknown prints on the change jar, Jackson’s
fingerprints were found on a window of the burglarized home. Thus, even if
trial counsel had developed evidence that the prints on the change jar belonged
to the victim or some third person, that evidence would have done little to show
that Jackson did not, at least at a minimum, participate in the burglary. And
as noted above, there is no reason to believe Jackson could have adduced
testimony that the age of the exemplar would call into question the validity of
the exemplar. The court is left then with little more than speculation that the
omitted cross-examination might have changed the result. This is not
enough. 19 Consequently, Jackson suffered no prejudice from the alleged
ineffectiveness of trial counsel in this regard.
19 Morelos v. United States, 709 F.3d 1246, 1250 (8th Cir. 2013)(rejecting prejudice claim where defendant’s “theory of cross-examination prejudice is merely speculative, generally averring if Finney had pursued additional lines of questioning with each of the government's witnesses, it was possible those witnesses would have responded in such a way as to lessen their credibility.”).
13 3. The failure to retain a competent fingerprint expert.
Jackson’s trial counsel used the services of a fingerprint analyst retained
by the Office of the Public Defender. The court need not consider whether the
analyst was competent and does not do so here. Even assuming that the
analyst was not competent, there is nothing to suggest that trial counsel knew
of the assumed incompetence and proceeded to use the expert anyway. The
Sixth Amendment assures a criminal defendant assistance of counsel—it says
nothing about assistance of experts and thus “there is no separately-cognizable
claim of ineffective assistance of expert witnesses....” 20 To be sure, the
guarantee assistance of counsel subsumes a right to access to expert testimony
in appropriate cases. 21 The Sixth Amendment does not require however, and
this court will not undertake, a Daubert-like inquiry to determine if an expert
consulted by defense counsel was “qualified.” The United States Supreme
Court disposed of the notion the Constitution requires such an inquiry earlier
this year:
We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made
20 Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.1992). 21 See Ake v. Oklahoma ,470 U.S. 68 (1985).
14 available to him—that caused counsel to employ an expert that he himself deemed inadequate. 22
Suffice it to say that Jackson must show at a minimum that his counsel
retained expert knowing the expert was not qualified, or trial counsel was
deliberately indifferent to the expert’s qualifications.
In the instant case trial counsel consulted with a fingerprint analyst who
has been retained by the Office of the Public Defender for the purpose of
providing expert assistance to lawyers in that office. That consulting expert
was a former Wilmington Police Officer who was trained and experienced in
fingerprint matters. He advised Jackson’s trial counsel that the State’s
analysis of the fingerprint evidence was correct. Notably Jackson has offered
no evidence to contradict this conclusion. The court therefore has no basis say
that the expert was unqualified, much less trial counsel knew that the expert
was unqualified (if indeed he was). Nor can the court say that trial counsel was
deliberately indifferent to his qualifications.
4. The failure to conduct a proper investigation.
Jackson argues that his counsel was ineffective because he did not
interview or investigate someone named “Boyce” who apparently was a possible
suspect in other burglaries taking place in or around Wilmington. The court
notes that under certain circumstances the failure to interview a witness can
amount to the ineffective assistance of counsel. By the same token, defense
22 Hinton v. Alabama, ___U.S. ___, 134 S.Ct. 1081 (2014).
15 counsel need not interview every possible witness brought to his or her
attention. “[T]rial counsel [i]s not bound by an inflexible constitutional
command to interview every possible witness. Instead, counsel [i]s simply
required to exercise reasonable professional judgment in deciding whether to
interview [a witness].” 23
Jackson has not advised the court of any circumstance which should
have prompted trial counsel to interview “Boyce.” At most he says the police
apparently suspected Boyce in some burglaries occurring in or around
Wilmington. Without more, Jackson’s trial counsel had no constitutional
obligation to track down and interview “Boyce.” In 2006 (the year when
Jackson’s crimes took place) there were 6420 reported burglaries in the State 24
and Jackson has not pointed to anything which would make this one stand
out. The court cannot therefore say that trial counsel’s failure to interview
“Boyce” amounts to a Sixth Amendment violation.
But even if trial counsel were obligated to interview “Boyce,” there is
nothing in the record to show that Jackson was prejudiced by counsel’s failure
to do so. Jackson has provided no information about what exculpatory
evidence “Boyce” would have given trial counsel. As a practical matter, of
course, it is questionable whether “Boyce” (assuming he could be found) would
even speak to trial counsel, and it is even less likely that he would admit
committing a crime to trial counsel. The court is therefore left with nothing but
speculation about the impact of the failure to interview “Boyce” and therefore
23 Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir.1990). 24 State of Delaware Document number 10-0208 100302.
16 the court cannot say that it is reasonably probable that the result of Jackson’s
trial would have been different if “Boyce” had been interviewed.
5. The failure to properly present the severance argument
Jackson contended at trial and on appeal that this court should have
severed charges relating to one of the burglaries. He is correct that Rule 14 of
this court permits the court to sever joined offense into separate trial if “it
appears that a defendant will be prejudiced by the joinder of offenses.” The
prejudice must be specific, either:
(1) the jury may cumulate the evidence of the various crimes charged and
find guilt when, if considered separately, it would not so find; or
(2) the jury may use the evidence of one of the crimes to infer a general
criminal disposition of the defendant in order to find guilt of the other
crime or crimes; or
(3) the defendant may be subject to embarrassment or confusion in
presenting different and separate defenses to different charges. 25
He is incorrect, however, in asserting his trial counsels’ performance did not
meet the constitutional minimal standards required of his counsel.
Jackson contends that his trial counsel was not present for oral
argument and, as a result, the matter was decided on the written argument.
Trial counsel explains (understandably) that the schedules of Public Defenders
require that they be more than one place at the same time. In order to
25 Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988).
17 accommodate the demands of the court, assistant public defenders often
“cover” for one another on routine matters such as this motion to sever. Trial
counsel reasonably relied on this practice and passed off the scheduled
argument to a colleague. Jackson also fails to make any showing that he was
prejudiced by the fact that this court considered his motion to sever on the
papers. The State correctly points out that Jackson never had a right to oral
argument in the first place, and this court decides many matters on the
papers.
Jackson also argues that his trial counsel did a poor job of articulating
the reasons why Jackson would be prejudiced by the joinder. The court finds
that trial counsel correctly identified the legal issues implicated in a motion to
sever and made plausible arguments on his client’s behalf. The Sixth
Amendment is not a vehicle for defendants to attack their convictions simply
because someone after the fact thought of a better argument:
It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful. Fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy. 26 26 Strickland, 66 U.S. at 689.
18 Thus, the fact that Jackson “could imagine a handful of arguments his counsel
might have made does not render his counsel's performance deficient.” 27
D. The performance of Jackson’s appellate counsel
Jackson argues that the performance of his appointed appellate counsel
on his direct appeal fell below the minimum standard expected of Delaware
lawyers. Judging from the appellate record, appointed appellate counsel put
forth little effort, and apparently exercised no professional judgment to speak of
when prosecuting Jackson’s appeal. Despite the sub-par performance of
appointed appellate counsel, this court concludes that Jackson has not shown
a reasonable probability that, but for appointed appellate counsel’s mistakes,
there would have been a different result on appeal. Thus, notwithstanding the
apparent lack of effort by his appellate counsel, Jackson is not entitled to relief.
1. Jackson’s representation on appeal
As just stated, the court finds that Jackson has not shown prejudice
resulting from his appointed appellate counsel’s performance. Ordinarily the
court could then dispose of the Sixth Amendment claim without considering
whether counsel’s performance was up to constitutional standards. In this
case, however, Jackson asserts that his appointed appellate counsel’s
performance was so deficient that it amounted to a complete denial of counsel.
This being the case, according to Jackson, he need not show prejudice in order
27 United States v. Burkley, 370 Fed.App’x. 899 (10th Cir. 2010).
19 to make out a Sixth Amendment violation. The court agrees that prejudice is
presumed when a defendant has no counsel or the functional equivalent of no
counsel. Accordingly, it must therefore examine appellate counsel’s
performance in order to determine if it is the equivalent of a complete absence
of representation.
Jackson was represented at his trial by the Office of the Public Defender.
After Jackson was convicted, his Public Defender perfected an appeal to the
Supreme Court. Thereafter, the Office of the Public Defender filed a brief
pursuant to Supreme Court Rule 26(c) in that court. The author of that brief
represented to the Supreme Court that he could find no meritorious issues to
argue on appeal. In many instances such as this the Supreme Court resolves
an appeal on the basis of the so-called Rule 26(c) brief and any pro se
supplementation by the defendant. In the case of Jackson’s appeal, however,
the Supreme Court took the unusual step of appointing new appellate counsel
for Jackson, thus suggesting the possibility the Supreme Court was concerned
that Jackson may have meritorious issues to raise on appeal.
It is difficult to discern what, if any, effort or independent thought
appointed appellate counsel put into his representation of Jackson. The
Statement of Facts in the opening brief filed by appointed appellate counsel
was nothing more than a verbatim copy of the Statement of Facts in the Rule
26(c) brief prepared by previous appellate counsel. The two arguments
contained in the brief were little better. Both got off to a bad start when
appointed appellate counsel cited to the wrong standard of review. As would be
20 expected in a competent brief, neither argument contained an examination of
the trial court’s ruling and an explanation why it was wrong. Both arguments
are remarkable in that they were perfunctory, at best. The first (in which
appointed appellate counsel argued that charges should have been severed)
was--save for a handful of immaterial changes--a verbatim copy of the
unsuccessful argument filed in this court by Jackson’s trial counsel. The
second argument (that evidence should have been suppressed) was cryptic and
contained no meaningful argument. The only citations were to opinions
standing for widely accepted general principles which are a given in search and
seizure matters. The argument contained no citations to opinions which could
be considered even remotely specific to the issue raised in the brief. The brief
is also remarkable in that it did not contain any real analysis of this court’s
rulings or any attempt to explain why they were wrong.
Appointed appellate counsel’s poor performance was not limited to the
brief he filed. The record strongly suggests the possibility that he misled
Jackson about what was happening in the Supreme Court. While Jackson’s
appeal was pending on May 18, 2009 the Clerk of the Supreme Court sent a
routine form letter to counsel in Jackson’s appeal which in its entirety:
Pursuant to Supreme Court Rule 16(a), you are advised that the Court has now instructed that the above appeal be considered to be under submission for decision as of Wednesday, June 17, 2009.
The notice says nothing about a reply brief. An appellate attorney, even those
with little experience in the Delaware Supreme Court, would know that that
Court routinely sets argument/submission dates before the filing of the Reply 21 Brief. 28 There is simply nothing in the notice which would lead a competent
attorney to believe the Court was prohibiting the filing of a reply brief.
Nonetheless, appointed appellate counsel wrote to Jackson advising him that
the Supreme Court had notified him that no reply brief would be allowed on
Jackson’s behalf. Appointed appellate counsel told a different story in an
affidavit filed in these Rule 61 proceedings. Here, he told this court that he
chose not to file a reply brief because there was “nothing new” in the State’s
answering brief. No mention is made in counsel’s affidavit of being misled by
the Supreme Court’s May 18 notice.
Appointed appellate counsels’ ostensible belief that there was nothing in
the State’s answering brief which required a reply brief is another example of
sub-standard representation. Contrary to what appointed appellate counsel
had to say, the State’s answering brief called for some sort of reply. In that
brief, the State correctly noted:
In order to determine whether the stop was proper, the Court must first determine at which point a seizure occurred. * * * In this case, the answer hinges on whether the issue is examined under the Fourth Amendment to the United States Constitution or Article I, sec. 6 of the Delaware Constitution. Neither in his motion to suppress nor now on appeal does the defendant specify on which constitution his challenge is based. 29
The court recognizes there was likely little that appointed appellate counsel
could say in reply. The Supreme Court disdains sandbagging in reply briefs
28 Supreme Court Standard Operating Procedure V(1)(i). 29 State’s Br. In No. 133, 2008 (emphasis added; internal citation omitted).
22 and therefore it would have been difficult to address the issue for the first time
in a reply brief. Moreover, appointed appellate counsel’s hands were likely tied,
because the state constitutional argument had never been presented below,
and it is unlikely that the Supreme Court would have considered it in the first
instance on appeal. Nonetheless, some effort could have been made to explain
to the Supreme Court Jackson’s position. At a minimum it was disingenuous
for appointed appellate counsel to tell this court he did not file a reply brief
solely because there was “nothing new” in the State’s answering brief.
2. Jackson must show prejudice
There is little question that appointed appellate counsel’s performance
was poor, if not substandard. The second prong of Strickland ordinarily
requires Jackson to show prejudice. Jackson contends however, he is not
required to do so because of the United States Supreme Court’s decision in
Cronic v. United States. 30
In Cronic the Supreme Court noted that where there is a complete failure
of representation prejudice may be presumed under Strickland. For the most
part courts have generally declined to apply Cronic to claims of ineffective
appellate counsel even when appellate counsel has made a serious mistake.
Rather, Cronic has been applied in the appellate court context only when
counsel’s failure has served to deprive the defendant of an appeal. 31 Poor
presentation or selection of arguments on appeal is not the sort of shortcoming
30 466 U.S. 884 (1988). 31 Flick v. Warren, 2009 WL 3698547*24 (E.D.Mich.) (“[M]any courts have declined to apply Cronic to appellate counsel errors which, although serious, do not deprive a defendant of his right to appeal.”).
23 which the Supreme Court envisions would fall within Cronic. In Penson v.
Ohio, 32 an appellate lawyer in a state criminal proceeding was allowed to
withdraw before the state appellate court determined whether there was any
merit to the appeal. After counsel withdrew the appellate court determined
there were potentially meritorious arguments to be made. Rather than re-
appoint counsel or appoint new counsel for the defendant, the appellate court
simply decided the arguable issues against defendant. The United States
Supreme Court held that this amounted to a complete denial of counsel and
therefore, the defendant need not show prejudice in order to make out a Sixth
Amendment claim. Of importance here is the manner in which the Supreme
Court distinguished the case before it from cases such as this where counsel
made a poor argument:
Finally, it is important to emphasize that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process. This is quite different from a case in which it is claimed that counsel's performance was ineffective. As we stated in Strickland, the “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Our decision in United States v. Cronic, likewise, makes clear that “[t]he presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Similarly, Chapman recognizes that the right to counsel is “so basic to a fair trial that [its] infraction can never be treated as harmless error.” And more recently, in Satterwhite v. Texas, we stated that a pervasive denial of counsel casts such doubt on the fairness of the trial process, that it can never be considered harmless error. Because the fundamental importance of the assistance 32 488 U.S. 75 (1988).
24 of counsel does not cease as the prosecutorial process moves from the trial to the appellate stage, the presumption of prejudice must extend as well to the denial of counsel on appeal.
Jackson’s contention that his appointed appellate counsel’s performance
amounts to a complete failure of representation is contradicted by Jackson’s
allegations of specific departures from the accepted norm. In Bell v. Cone 33 the
United States Supreme Court drew the distinction between a complete failure
of representation under Cronic and something less than a complete failure of
representation for purposes of the second prong of the Strickland test:
When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete. We said “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” Here, respondent's argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind. 34
The court holds, therefore, that Cronic is inapplicable here and that Jackson
must show prejudice resulting from his appointed appellate counsel’s failures.
3. Jackson has not shown prejudice
In order to show prejudice Jackson must show that there is a reasonable
likelihood that, had he been represented by competent counsel, the Supreme
33 535 U.S. 685 (2002). 34 Id. at 687.
25 Court would have reached a different result. Implicit in this, of course, is that
Jackson must show a likelihood the Supreme Court was wrong. Jackson’s
arguments to this effect are procedurally barred and also substantively flawed.
a. Jackson’s prejudice argument is procedurally barred.
In Jackson’s direct appeal, the Supreme Court rejected his argument
that he was prejudiced by the joinder of the charges against him. The Court
ruled:
We next consider whether joinder would have created sufficient prejudice that the Superior Court should have severed the charges. Although Jackson recites the factors for determining prejudice under Weist v. State, he has not articulated any specific reasons why joinder of the offenses caused him prejudice. The record does not reflect any specific prejudice to Jackson either. 35
Jackson argues that if his appellate counsel had been competent he could have
articulated specific prejudice. According to Jackson, he was specifically
prejudiced by the joinder because the jury could have accumulated evidence
from one burglary, where he was essentially caught red-handed, with the “very
little” evidence of the other two burglaries.
As noted in connection with the court’s assessment of trial counsel’s
performance, the failure of appointed counsel to make a better argument, does
not amount to ineffective assistance of counsel. Moreover, the substantive
argument that Jackson was prejudiced by the joinder is foreclosed by the
35 Jackson v. State, 990 A.2d 1281, 1287 (Del. 2009).
26 Supreme Court’s opinion that “the record does not reflect any specific prejudice
to Jackson either.”
The Supreme Court’s independent determination that the “record does
not reflect any specific prejudice to Jackson” forecloses Jackson’s argument
that there was, in fact, specific prejudice. As discussed earlier in this opinion,
Rule 61(i)(4) bars reargument of issues already decided. Jackson does not, and
cannot, show any new legal or factual developments. At best he presents a
refinement of his earlier argument to this court and the Supreme Court. This
does not give rise to an exception to Rule 61 (i)(4):
We have stated that “[i]n order to invoke the ‘interest of justice’ provision ... a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish [the defendant].” In Weedon v. State, we stated that the 61(i)(4) bar does not apply when the previous ruling was “clearly in error” or when “there has been an important change in circumstances, in particular, the factual basis for the issue previously posed.” We will not reconsider an issue simply because a defendant has “refined or restated” a claim. 36
Consequently Jackson’s efforts to show prejudice are foreclosed by Rule
61(i)(4).
b. Jackson’s seizure claim
This court is also foreclosed by Rule 61(i)(4) from considering whether
Jackson was prejudiced by the appointed appellate counsel’s failure to argue
state constitutional grounds for the seizure claim. Reviewing the police seizure
36 Pringle v. State, 2013 WL 1087633 *3 (Del. Supr.)
27 of evidence. As noted previously, Jackson contends that, under the Delaware
constitution, Jackson was seized the moment the police made a show of
authority over him. Presumably this means when the officer turned on his
overhead blinkers and siren. According to Jackson, the Delaware constitution
is more strict than the Fourth Amendment as to when a seizure occurs. He
theorizes that the police did not have authority under the state constitution to
stop him when the officer turned on his lights and siren. Consequently,
according to Jackson, all of the items later seized from his person should have
been suppressed.
The Supreme Court rejected Jackson’s argument under the Fourth
Amendment, writing:
Having considered the totality of the circumstances, we conclude that the record reflects that the police had probable cause to lawfully arrest Jackson. Accordingly, the Superior Court properly denied the motion for suppression of the items the police discovered on Jackson’s person during their search incident to his lawful arrest.
Although, as Jackson states, the Delaware constitution imposes a stricter
standard than the Fourth Amendment as to when a stop occurs, his claim is
still barred because it is a refinement of his earlier search and seizure claim. It
is undoubtedly true that the state constitutional claim, with its different
standards, was never presented. Still, in the scheme of things, it is a
refinement of his search and seizure claim and is, therefore, procedurally
barred. The Supreme Court’s holding in State v. Wright 37 serves to illustrate
37 67 A.3d 319 (Del. 2013).
28 this point. Wright involved a Rule 61 proceeding two decades after Wright was
convicted of capital murder. During the investigation, Wright made a
confession to police. The admissibility of that confession was contested at
several junctures. In 2012, this court held that the Miranda warnings given to
Wright were materially deficient and, therefore, that confession should be
suppressed. On appeal the Supreme Court held that Wright’s Miranda
argument was procedurally barred, even though it had never before been
considered. The Supreme Court reasoned that other arguments about the
admissibility of Wright’s confession had been previously considered and
rejected and therefore the argument about the wording of the warnings actually
given to Wright were a refinement of the earlier arguments and were therefore
procedurally barred. By the same token, even though Jackson’s state
constitution argument has never been expressly presented, it is a refinement of
his earlier search and seizure argument which was rejected. Consequently, it
is barred.
Conclusion
For the foregoing reasons Jackson’s motion for post conviction relief is
DENIED.
_______________________________ September 3, 2014 John A. Parkins, Jr.
oc: Prothonotary
cc: Andrew J. Vella, Esquire, Wilmington, Delaware - Attorney for the State Natalie S. Woloshin, Esquire, Wilmington, Delaware – Attorney for the Defendant 29