State of Delaware v. Starling.

• Court: Superior Court of Delaware
• Decided: August 28, 2014
• Docket: 0104015882
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE ) ) v. ) Cr. ID No. 0104015882 ) CHAUNCEY STARLING, ) ) Defendant. ) )

Upon Defendant’s Motion for Postconviction Relief – DENIED Submitted: May 30, 2014 Decided: August 28, 2014

James J. Haley, Jr., Esquire, Wilmington, Delaware; Stephen H. Brose, Esquire, David M. Fragale, Esquire, Jeremy D. Engle, Esquire, Emily B. Nestler, Esquire, Sarah R. Lamoree, Esquire, of Steptoe & Johnson LLP, Washington, District of Columbia. Attorneys for Defendant. Elizabeth R. McFarlan, Esquire, Maria T. Knoll, Esquire, and Karen V. Sullivan, Esquire, of Delaware Department of Justice, Wilmington, Delaware. Attorneys for the State of Delaware.

Rocanelli, J. On March 9, 2001, at 8:30pm, Darnell Evans, an adult, and Damon Gist Jr.,

(“DJ”) a five-year old child, were killed by gunshots at the Made 4 Men

Barbershop (“Barbershop”) on Fourth Street between Market and Shipley Streets

in Wilmington, Delaware. There were numerous other people in the Barbershop.

Several witnesses heard gunshots and saw the shooter. None of the witnesses

identified the shooter by name. Although ballistics testing identified the weapon

used, no gun was ever recovered. No DNA or fingerprint evidence was

recovered.1

According to witnesses, the shooter opened the door of the Barbershop and

shot at Evans. Evans ran to the back of the Barbershop. The shooter followed

him, stood over him, and shot him twice in his head. As a result of five gunshot

wounds to the head, chest, abdomen, and groin, Evans died. Sometime during the

shooting, DJ had been shot in the head and died as a result of this gunshot wound.2

At trial, the State relied heavily upon the testimony of Alfred Gaines who

testified that he, Starling, and Richard Frink were driving around on the day of the

shootings. According to Gaines, when they drove past the Barbershop, Frink saw

Evans. Gaines relayed the following facts: Frink and Starling discussed whether

Evans was “the guy,” but they did not explain what this meant. Frink asked if

1 Senten. Dec. at 5, State v. Starling, No. 0104015882. 2 Id. at 4-5. 1 Starling was going to do anything and Starling testified that he would “put in some

work.” Gaines testified that this meant shooting or fighting someone. Frink

parked the car in the block between Market Street and Shipley Street outside of the

Barbershop. Starling got out and tucked a gun into his pants. Starling was wearing

all dark clothes, including a black hooded sweatshirt. Starling then walked in the

direction of Market Street while Frink and Gaines stayed in the car. Fifteen to

twenty minutes later, Starling returned to the car and said to Frink, “I got him. I

got him. I think I got a little boy, too.”3

At the time of the shooting, Shaylynn Flonnory, Evans’s girlfriend, was

outside the Barbershop and saw someone dressed all in black, holding a gun.

According to Flonnory’s statements before trial, the shooter’s face was covered,

with openings for his eyes. When she testified at trial, Flonnory stated that the

eyes of Defendant, Chauncey Starling, matched those of the gunman she saw

outside the Barbershop. Flonnory also testified that the gunman was wearing a

black hooded sweatshirt.

Gaines also testified to the following facts: Later on the evening of the

shooting, Starling called Gaines at 10:04pm, saying Starling wanted to talk.

Gaines took a taxicab to meet Starling at the home of Vicki Miller, who was

Starling’s girlfriend. Gaines testified that when he met with Starling, Starling 3 Id. at 6-7. 2 looked upset and mentioned shooting the young boy. Then, Starling’s brother,

Michael, entered the room and Starling told Michael that Starling was drunk,

stupid, and sorry for what he had done. Michael later relayed this statement to the

police during an interview.4

In November of 2001, a grand jury indicted Starling and his co-defendant,

Frink. Starling was charged with two counts of murder in the first degree, two

counts of possession of a firearm during the commission of a felony, and one count

of conspiracy in the first degree. The trials were severed.

John S. Malik, Esquire (“Trial Counsel”) represented Starling at trial. On

October 24, 2003, a jury convicted Starling on each count of the indictment. The

jury unanimously agreed on the existence of three statutory aggravating

circumstances 5 and unanimously recommended the death penalty on November 4,

2003. Starling was sentenced to death on June 10, 2004, for the murders of

Darnell Evans and DJ Gist (two death sentences).

In Starling’s direct appeal, the Delaware Supreme Court affirmed Starling’s

convictions, but vacated his death sentences and remanded the case to the Superior

4 Id. at 7-8. 5 11 Del. C. § 4209(e)(1)(i), (k), (s). The aggravating circumstances were: (1) the defendant was previously convicted of another felony involving the use or threat of violence; (2) the defendant killed two or more people and the deaths were a probable consequence of such behavior; (3) the victim was under the age 14 and the defendant is at least four years older than the defendant. Id. 3 Court for resentencing. 6 In the Superior Court on October 2, 2005, Starling was

resentenced to two death sentences. The death sentences were affirmed in a

second appeal to the Delaware Supreme Court. 7

In April 2007, Starling filed three motions for postconviction relief pursuant

to Delaware Superior Court Criminal Rule 61 as a self-represented litigant. Court-

appointed (“Rule 61 Counsel”) filed an Amended Petition for Postconviction

Relief on April 1, 2008. Since the 2008 filing, the parties have submitted

numerous amended petitions and responses and the Court has held numerous

hearings. Most recently, the Court held oral argument on March 28, 2014 to

address the claims of prosecutorial misconduct by Rule 61 Counsel. Supplemental

briefing was completed on May 30, 2014.

Motions for postconviction relief are governed by Superior Court Criminal

Rule 61. As the moving party on a postconviction motion, the defendant bears the

burden of proof. 8 Rule 61 does not establish which burden of proof must govern,

nor has Delaware case law articulated the specific burden. It is clear, however, that

6 Starling v. State, 882 A.2d 747, 760 (Del 2005). 7 Starling v. State, 903 A.2d 758, 767 (Del. 2006). 8 Younger v. State, 580 A.2d 552, 555 (Del. 1990).

4 a petitioner must establish that he has been deprived of a “substantial constitutional

right before he is entitled to any [postconviction] relief.” 9

9 Id. 5 I. STARLING’S CLAIMS OF BRADY VIOLATIONS ARE PROCEDURALLY BARRED The Brady rule demands that the prosecution disclose exculpatory evidence

to the defense. 10 Starling claims that the State failed to disclose exculpatory

evidence when the State withheld information that Trial Counsel could have used

to impeach Gaines; information that implicated another person committed the

crimes; and for failing to disclose witness Vicki Miller’s statement. However, a

claim of a Brady violation cannot be made for the first time in a postconviction

proceeding. The Court finds these claims are procedurally barred under Rule

61(i)(3).

Starling’s claims that the State withheld information necessary to impeach Gaines is procedurally barred under 61(a)(3). With respect to information to impeach Gaines, the Court finds this claim is

procedurally barred under Rule 61(i)(3). The record reflects that Starling’s claim

of a Brady violation regarding information to impeach Gaines was never presented

at trial or on Starling’s direct appeal. Despite the procedural bar, the Court

addresses this claim on the merits below.

Starling’s claim that the State withheld information regarding other suspects is procedurally barred under 61(i)(3). Starling argues that the State did not provide evidence that would tend to

establish that another person committed the crimes. For instance, before the police

10 Brady v. Maryland, 373 U.S. 83, 87 (1963). 6 investigated Starling, the police attempted to question Bruce Stewart for the

shootings and at the scene of the crime; 11 two witnesses told police that Stewart

was the shooter. The State claims it had no evidence that Stewart committed the

murders. Instead, police questioned Stewart’s whereabouts at the scene of the

crime because victim Evans and Stewart had recently been indicted for an

unrelated crime. Police initially theorized that Evans might have been murdered to

prevent him from testifying against Stewart.

The Court finds this claim procedurally barred under Rule 61(i)(3). The

record reflects that Starling’s claim of a Brady violation regarding information that

other people were suspected of the crimes was never presented at trial or on

Starling’s direct appeal.

Starling’s claim that the State withheld information from Vicki Miller is procedurally barred under Rule 61(i)(3). Gaines told the police that following the shootings, Gaines, Starling,

Michael Starling, and Vicki Miller all met at Miller’s home. Gaines also stated

that in the presence of those people, Starling admitted to shooting DJ. When the

police attempted to corroborate Starling’s statement with Miller in an interview,

Miller stated that Starling had never made such a comment and the only thing

Starling said was in reference to a news report about the shooting.

11 The Wilmington police even worked with the television show America’s Most Wanted to attempt to capture Stewart. 7 Starling argues that he was prejudiced without this information because Trial

Counsel was unable to call Miller as a witness to refute Gaines’ story that Starling

said he was sorry in front of Gaines, Michael, and Miller about shooting the little

boy. Starling asserts that this was particularly prejudicial because the jury also

repeatedly heard the police say that Miller corroborated Starling’s story when the

State played Michael Starling’s interview with the police.

Starling notes that Trial Counsel’s motion for a new trial based on this

allegedly withheld information was denied and Starling appealed the issue to the

Delaware Supreme Court.12 Starling argues, however, that this claim is not barred

because the portion of the statement being raised here is distinct from the issue

previously addressed. Starling contends that the Court only ruled on Miller’s

statement that she could not recall whether Starling was at her home on the night of

the shootings and did not consider Miller’s statement about Starling merely saying

that the person should be caught.

The State counters that Trial Counsel knew of the entirety of Miller’s

statement and thus there was no Brady violation. Miller was not an unknown

witness to Starling, but instead she was Starling’s girlfriend and was available as a

12 Starling, 882 A.2d at 756. 8 witness.13 Trial Counsel admitted to the Court that he had an opportunity to

interview Miller before trial and thus the State asserts that there is no Brady

violation when the Defense had equal access to Miller. 14 Moreover, the State

argues that even if this issue was not addressed by the trial court, it is procedurally

barred because Starling did not raise it on direct appeal.

With respect to Miller’s statement, the Court finds this claim procedurally

barred under Rule 61(i)(3). The Court is satisfied that Miller’s statement in

contention here is distinct from Miller’s statement previously litigated such that

Starling’s claim is not barred under Rule 61(i)(4). 15 However, this claim is

procedurally barred under Rule 61(i)(3) because the record reflects that it was

never presented at trial or on Starling’s direct appeal. Moreover, Starling’s

argument that Trial Counsel could not call Miller as a witness is without merit.

Miller, Starling’s girlfriend, was an available witness and Trial Counsel had the

opportunity to interview her before trial. Accordingly, Starling has failed to meet

his burden of establishing prejudice, the third requirement of a valid Brady

violation claim.

13 State v. Starling, I.D. No. 0104015882, Mem. Op. at 22, Herlihy, J. (Del. Super. Apr. 26, 2004). 14 Id. 15 Super. Ct. Crim. R. 61(i)(4) provides a procedural bar for any claim that was previously adjudicated at trial, on appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding. 9 II. THE STATE DID NOT VIOLATE BRADY WITH RESPECT TO GAINES AS A TRIAL WITNESS The Delaware Supreme Court has held that a defendant must satisfy three

elements to establish a Brady violation: (1) the evidence in contention must be

favorable to the defense, “either because it is exculpatory, or because it is

impeaching;” (2) the State must have suppressed such evidence either

inadvertently or willfully; and (3) prejudice must have resulted from the

suppression of the evidence.16 Under the third prong, the State’s duty to disclose is

only applicable where the evidence is relevant to the defendant’s guilt or

punishment. 17

For Brady purposes, evidence is relevant if it tends to prove someone else

committed the crime or someone else had equal motive to commit the crime. 18 In

order to reverse a conviction based on a Brady violation, the petitioner must “show

that the favorable evidence could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the verdict.” 19 Therefore, a Brady

violation cannot serve as the basis to overturn a conviction where “the untainted

16 Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001). 17 State v. Comer, 2007 WL 313574, at *4 (Del. Super. Feb. 2, 2007). 18 Id. 19 Jackson v. State, 770 A.2d 506, 516 (Del. 2001) (quoting Kyles v. Whitley, 514 U.S. 415, 455 (1995)). 10 evidence of guilt [is] overwhelming.” 20 Moreover, as noted above, these claims are

procedurally barred unless Starling can demonstrate: (1) “cause for relief from the

procedural default” and (2) “prejudice from violation of the movant's rights.”21 In

the absence of any such evidence, the Court concludes that this claim is without

merit. 22

Any evidence that may be used to impeach a prosecution witness must be

disclosed under the Brady rule.23 The Delaware Supreme Court has held that “the

dropping of a charge against a state’s witness is clearly relevant to the issue of

bias” and “falls within the Brady rule.” 24 The Delaware Supreme Court has also

noted: “Whenever the State reduces any pending charges (related or not) or makes

any arrangement with any State witness, disclosure is mandatory.” 25

Starling asserts that the State failed to provide various pieces of information in

violation of the Brady rule.

First, Starling alleges the State did not reveal to Trial Counsel the role the

Delaware Department of Justice (“DDOJ”) played in the discharge of Gaines’

20 Michael v. State, 529 A.2d 752, 757 (Del. 1987); Jackson, 770 A.2d at 512 (holding that there was untainted evidence of guilt where there was a shoe print analysis, handwriting and fingerprint analysis, and the defendant’s letter admitting guilt). 21 Super. Ct. Crim. R. 61(i)(3)(A)-(B). 22 Compare Hainey, 945 A.2d at 1167 (Del. 2008) (holding that where defendant failed to raise a prosecutorial misconduct claim at trial or on direct appeal it was procedurally barred). 23 Jackson, 770 A.2d at 515; Michael, 529 A.2d at 756 (citing Giglio v. United States, 405 U.S. 150 (1972)). 24 Michael, 529 A.2d 752, 756 (Del. 1987) (citing Van Arsdall v. State, 524 A.2d 3 (Del. 1987)). 25 Id. 11 Delaware probation. The Barbershop shootings occurred on March 9, 2001. On

April 7, 2001, Starling shot Gaines in Chester, Pennsylvania. Starling asserted

self-defense in connection with this shooting. Gaines was found with a bag of

crack cocaine in his possession and was on probation at the time in Delaware for a

prior misdemeanor assault charge. Following the discovery of cocaine, Gaines’

probation officer recommended that probation be revoked and Gaines be

sanctioned.

On October 17, 2001 Gaines’ violation of probation was dismissed and his

capias was withdrawn. According to the State, there was no deal between the State

and Gaines. The Court accepts the representations of the prosecutors who

emphatically disclaimed that there was any deal with Gaines and stated firmly that

no promises had been made to Gaines in exchange for his testimony. Gaines was

never extradited back to Delaware, but instead was released from the custody of

Pennsylvania. Gaines was not required to come to Delaware because of safety

concerns related to Starling’s shooting of Gaines.

Starling argues that Gaines was a biased witness and that Trial Counsel did

not have the opportunity to fully disclose Gaines’ bias to the jury. According to

Starling, Gaines received a benefit for testifying against Starling. Had the State

provided this information, Starling asserts, Trial Counsel would have been able to

impeach Gaines, who was the State’s key witness.

12 Nevertheless, disclosure was not mandated because Trial Counsel knew that

Gaines had been on probation at the time that Starling shot Gaines and also knew

that Gaines’ probation had been discharged. Trial Counsel had conducted his own

research into Gaines’ criminal and probation history. Also, the timing of Gaines’

discharge from probation strongly suggests there was no relationship between that

and Gaines’ testimony. Specifically, the probation was discharged in October

2001 and the trial occurred two years later, in October 2003. Furthermore, the

probation was for a misdemeanor assault conviction and it would have been highly

unusual for such a probation term to be extended for several years during the

pendency of an unrelated trial.

Most importantly, it would have been highly prejudicial to allow the jury to

consider the events related to the circumstances of the alleged probation violation.

The cocaine found by police was discovered in Gaines’ possession after Gaines

was shot by Starling. Indeed, any disclosure at Starling’s trial for two other

gunshot murders would have harmed Starling’s capital case. There was no

prejudice to Starling by failing to reveal this information to the jury. To the

contrary, Trial Counsel properly avoided making this presentation to the jury

which would have implicated Starling in another shooting. Indeed, Trial Counsel

and the State agreed not to mention the Chester shooting, which led to Gaines’

violation of probation because if the Chester shooting was mentioned at trial, then

13 Starling’s involvement in the Chester shootings would also have been mentioned.

Therefore, Trial Counsel not only was aware of the discharge of the violation of

probation, but specifically chose as a part of Trial Counsel’s strategy not to

question Gaines about the violation or the Chester shooting. This was sound trial

strategy.

Further, even if this Brady claim was not procedurally barred, Starling has

failed to demonstrate prejudice that would put the “whole case in such a different

light as to undermine confidence in the verdict.” 26 Impeaching Gaines on bias

grounds may not have been helpful or important for Starling’s case to demonstrate

that Gaines was acting in self-interest when he chose to testify. Moreover, Trial

Counsel’s cross-examination of Gaines required a delicate balancing. Finally,

Gaines was released from probation two years before trial occurred, which was for

Gaines’ safety, not in exchange for his testimony at trial, which was two years

later.

Given the very serious nature of the allegations by Rule 61 Counsel and the

statements made in briefing related to allegations of prosecutorial misconduct

related to Gaines’ testimony, the Court scheduled an additional hearing and

granted the opportunity for supplemental briefing so that Rule 61 Counsel might

provide record support for the contention that the DDOJ played a role in the 26 Jackson, 770 A.2d at 516. 14 probation discharge for Gaines, and also failed to disclose their role to Trial

Counsel. Despite these opportunities to supplement the record for the Court’s

consideration, Rule 61 Counsel has not provided any record support for these very

serious allegations of prosecutorial misconduct. The Court concludes that the

DDOJ did not play any role in the discharge of Gaines’ probation. Moreover, the

Court concludes that the prejudicial effect of revealing this information to the jury

substantially outweighed any benefit Starling might have received by impeaching

Gaines. Finally, it would have been entirely inconsistent with Trial Counsel’s

sound trial strategy to discuss the shooting of Gaines by Starling in Chester,

Pennsylvania. Therefore, even assuming arguendo that the claims are not

procedurally barred, there was no violation of Brady.

III. STARLING’S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL Ineffective assistance of counsel may arise during the trial phase and/or

during the sentencing phase. There is a two-pronged test to establish ineffective

assistance of counsel. 27 First, the movant must show, by a preponderance of the

evidence, that counsel’s representation fell below an objective standard of

reasonableness.28 When evaluating the conduct of counsel, there is “a strong

27 Strickland v. Washington, 466 U.S. 668, 687 (1984); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 28 Strickland, 466 U.S. at 687-88; Wright, 671 A.2d at 1356. 15 presumption that [counsel’s conduct] was professionally reasonable.” 29 Mere

allegations will not suffice to prove ineffective assistance of counsel. Instead, a

defendant must make concrete allegations of ineffective assistance of counsel and

substantiate them. 30 Second, the movant must establish that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.31 A reasonable probability is a probability sufficient to undermine

confidence in the outcome. 32 When a death sentence is challenged, the question is

“whether there is a reasonable probability that, absent the errors, the sentence

[including an appellate court, to the extent it independently reweighs the evidence]

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” 33

A. Trial Counsel’s Pretrial Representation Was Effective

Starling claims ineffective assistance related to Trial Counsel’s

representation during the discovery phase. Specifically, Starling argues that Trial

Counsel was ineffective with respect to Trial Counsel’s failure to seek pre-trial

discovery of taxicab records and phone records from the night of the shooting. The

29 Gattis v. State, 697 A.2d 1174, 1178 (Del. 1997); Flamer v. State, 585 A.2d 736, 753 (Del. 1990); Delaware v. Miller, 2013 WL 4135019, at *2 (Del. Super. July 25, 2013). 30 See Younger, 580 A.2d at 556. 31 Strickland, 466 U.S. at 694; Wright, 671 A.2d at 1356. 32 Strickland, 466 U.S. at 694. 33 State v. Sykes, 2014 WL 619503, at *13 (Del. Super. Jan 21, 2014) (citing Strickland, 466 U.S. at 695). 16 State contends that Trial Counsel’s actions were objectively reasonable and that

Starling was not prejudiced by Trial Counsel’s failure to obtain this evidence.

When counsel fails to investigate facts, the determination of prejudice will depend

on whether the expected evidence would have changed the outcome of the trial.34

After the shooting, Gaines testified that he took a taxi from his mother’s

home to Miller’s home to speak with Starling. Gaines testified that Starling said,

“God was going to forgive [Starling] for killing the little boy.” 35 There was no

corroborating evidence that Gaines took a taxicab to Miller’s home as Gaines had

asserted. Starling argues that Trial Counsel was ineffective for failing to issue a

subpoena to the taxi company for its records and failing to interview any taxi

drivers to challenge Gaines’ testimony. The State argues that Starling cannot

demonstrate prejudice from Trial Counsel’s failure to subpoena taxi records.

Particularly, the State notes that a detective called the taxi company and was told

that cash customer logs are routinely destroyed after seven to ten days.

Accordingly, Starling could not have been prejudiced because the information was

not available.

Starling has not demonstrated ineffective assistance of counsel with respect

to the discovery of the taxicab records. Starling has not established that Trial

34 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 35 Def. Amend. Mot. for Postconviction Relief at 29. 17 Counsel’s failure to subpoena taxicab records fell below an objective standard of

reasonableness.36 Because the records did not physically exist, it was not

unreasonable to refrain from requesting records where such. Moreover, the

availability of this information would not have changed the outcome of the trial.

Next, Starling argues that Trial Counsel was ineffective during the pretrial

phase because certain phone records would have yielded exculpatory evidence.

Trial Counsel originally filed a motion to compel Frink’s phone records, but the

motion was withdrawn by Trial Counsel. The only phone records that the State

produced prior to trial were Starling’s cell phone records for March 2001. 37 Rule

61 Counsel eventually received the cell phone records of Frink after the Court’s

ruling on Starling’s motion for postconviction discovery. 38 Starling argues that

this new information can establish that Starling answered Frink’s phone calls

during the time of the shootings, which would be inconsistent with someone

actively engaged in committing murder.

The State argues that it provided Starling with relevant telephone records

pre-trial and that the newly produced records do not establish that Starling

answered his phone during the time of the shootings. Moreover, the State asserts 36 Strickland, 466 U.S. at 687-88. 37 When Trial Counsel requested all phone records in the State’s possession or control, the State asserted it was only obligated to produce evidence it intended to use at trial. The Defense argues that in refusing to produce discoverable materials, the State also violated the Rules of Criminal Procedure. See Super. Ct. Crim. R. 16 (a)(1)(C). 38 See State v. Starling, 2010 WL 2861824 (Del. Super. July 20, 2010). 18 that, even if the Defense could show that Starling answered his phone, it does not

show that Starling did not commit the shootings.

With respect to the phone records, Starling has not established that Trial

Counsel’s withdrawal of the motion to compel discovery fell below an objective

standard of reasonableness.39 Evidence that Starling answered his cell phone very

shortly after the time of the shootings does not establish that Starling did not also

commit the shootings and are therefore not dispositive of whether Starling

committed the crimes. The availability of additional phone records would not have

changed the outcome of the trial.

B. Trial Counsel’s Trial Strategy Was Effective

Counsel’s strategic choices are presumed reasonable and “a court must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.”40 Effective assistance of counsel may be

provided in various ways and counsel’s obligation is to “make the adversarial

testing process work in the particular case.” 41 To overcome the presumption that

counsel’s actions were sound trial strategy, the petitioner must establish that: (1)

39 Strickland, 466 U.S. at 687-88. 40 Strickland, 466 U.S. at 689. 41 Id. at 690. 19 the strategy, even if sound, did not in fact motivate counsel; or (2) the strategy

could never be considered sound.42

A Change of Venue for Starling’s Trial Was Not Required

Starling asserts that Trial Counsel was ineffective when he did not request a

change of venue. Starling argues that Starling’s jury could not be impartial as a

result of the pre-trial publicity surrounding the case. Starling contends that the pre-

trial publicity created a reasonable likelihood of prejudice requiring a change in

venue. The State argues that trial counsel’s choice not to seek a change of venue

was reasonable because the media attention had dwindled by the time of the trial,

which was more than two years after the shootings. Also, the State emphasizes

that a large pool of jurors were interviewed and screened. The State contends that

Starling was not prejudiced by the publicity.

Criminal defendants are guaranteed a trial by an impartial jury by the Sixth

Amendment of the United States Constitution and Article I, Section 7 of the

Delaware Constitution. 43 A change of venue may be provided when a criminal

defendant shows there is a reasonable likelihood of prejudice against the

defendant.44 In Delaware, a motion for change of venue will generally not be

42 Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005). 43 U.S. Const. amend. VI; Del. Const. art. I, § 7. 44 Super. Ct. Crim. R. 21(a). 20 granted unless the evidence of prejudice against the defendant is so substantial

“that the defendant cannot obtain a fair and impartial trial” in the county where he

has been charged.45 Routine publicity does not warrant a change in venue46 and

defendant must show publicity that is “highly inflammatory or sensational” or that

actually caused prejudice. 47

With respect to the challenge to venue, Starling has not established

ineffective assistance of counsel. Starling has not shown that Trial Counsel’s

failure to request a change of venue fell below an objective standard of

reasonableness or that Starling was prejudiced because of this alleged failure. Two

hundred jurors were summoned and interviewed, and many were eliminated due to

personal or media contacts with the case. Starling’s jury was properly polled and

Starling’s voir dire process screened the jury pool for pre-existing prejudice.

Trial Counsel was effective in not objecting to Flonnory’s in-court identification of Starling when Trial Counsel had the opportunity to cross-examine Flonnory on that issue Starling argues that Flonnory’s in-court identification of Starling as the

shooter was impermissibly suggestive because there was no doubt that Flonnory

understood that Starling was the defendant. Starling asserts that when Trial

Counsel failed to suppress or object to the identification at trial, Trial Counsel was

45 Id.; see also State v. Cook, 910 A.2d 279, 283 (Del. Super. 2006). 46 Cook, 910 A.2d at 283. 47 Id. 21 ineffective because there was ample opportunity for Trial Counsel to object prior

to when Flonnory made the identification and there was no reasonable trial strategy

for Trial Counsel’s failure to object. Flonnory had not mentioned the shooter’s

eyes prior to trial and Trial Counsel expressed that he did not object out of surprise

of the testimony and he simply did not think to do so. 48

The State argues that although Trial Counsel was surprised by Flonnory’s

identification, Trial Counsel had the opportunity to cross-examine Flonnory in

order to mitigate any damage and elicit other weaknesses in the identification.49

The State asserts that it was sound trial strategy for Trial Counsel address the

identification with Flonnory during cross-examination. According to Starling,

cross-examination of Flonnory was not a substitute for the identification that had

already been made, especially where Flonnory was the only witness

identification.50

48 Malik 1/9/13 Tr. At 109:5-8 (testifying that it was a “legitimate point” but “I didn’t think of it at the time. And I suppose I could have renewed that application, but I didn’t think of it at the time.”). 49 For instance, Flonnory admitted: she had not mentioned the shooter’s eyes to the police after the shootings, she could not articulate any unique distinctions in the shooter’s eyes that prompted her identification, she only saw the shooter for seconds, and she never identified Starling in other lineups. 50 See United States v. Emanuele, 51 F.3d 1123, 1132 (1995) (concluding that the defendant was prejudiced by an unreliable in-court identification where identity was the critical issue and no physical evidence linked the defendant to the crime). 22 Starling has not demonstrated ineffective assistance in Trial Counsel’s

response at trial to Flonnory’s in-court identification of Starling as the shooter.

Even though Trial Counsel concedes that he did not object to the identification

merely out of surprise rather than strategy, Starling has not established that Trial

Counsel’s representation fell below an objective standard of reasonableness.51

Trial Counsel cross-examined Flonnory regarding her identification and elicited

information which could have placed doubt onto the credibility of Flonnory’s

identification. Furthermore, Starling has not demonstrated prejudice sufficient to

undermine the outcome of his trial.52 If Trial Counsel objected to the identification

or moved to suppress it, there remains a reasonable likelihood that the Trial Court

would have admitted the identification and that Starling still would have been

found guilty considering other evidence of Starling’s guilt.

Counsel’s trial strategy with respect to witnesses Clifford Henry and Lawrence Moore was effective. Starling contends that Trial Counsel failed to hire an investigator to

interview two witnesses, Clifford Henry and Lawrence Moore, and that Trial

Counsel failed to utilize information received from the State regarding these

witnesses. First, Trial Counsel did not call Clifford Henry, the barber who cut

Evan’s hair on the night of the shootings, to testify at trial. Starling argues that

51 Strickland, 466 U.S. at 687-88. 52 Id. at 694. 23 Henry would have testified that police claimed Bruce Stewart was the shooter

when they arrived at the scene of the crimes, that everyone present in the

Barbershop looked toward the sound of the first gunshot to contradict Flonnory’s

testimony that she looked into the shooter’s eyes when he entered the Barbershop,

and that the shooter was a man of large stature and was over five feet and eleven

inches tall, significantly taller than Starling.

Second, Starling argues that Trial Counsel failed to elicit excuplatory

evidence from Lawrence Moore, the Barbershop owner who testified that he

watched the entire crime and chased after the shooter after the shooter fled the

Barbershop. Although Trial Counsel cross-examined Moore, Starling alleges that

Trial Counsel did not elicit all relevant information because Moore would have

testified that the police suspected Bruce Stewart of the crime and that the shooter

was significantly taller than Starling. Starling also alleges that Moore would have

testified that he saw pictures of suspects to the shootings in the newspaper and

none of them resembled the shooter he saw on the evening of the crimes.

In response, the State contends that Starling has failed to clearly establish

any prejudice which may have resulted from Trial Counsel’s alleged errors. The

State notes that there were a number of witnesses at trial who testified to varying

24 heights of the shooter and more testimony on the issue would not have changed the

outcome of the trial.53

Counsel was not ineffective in his refusal to call Henry at trial and in his

cross-examination of Moore at trial. Starling has not demonstrated that Trial

Counsel’s failure to call Henry as a witness or elicit more detailed testimony from

Moore establishes that Trial Counsel’s representation fell below a level of

objective reasonableness. There is no requirement that Trial Counsel elicit all

possible evidence at trial.

Furthermore, Starling has not demonstrated actual prejudice. Starling has

failed to establish how Henry and Moore’s testimony would have altered the

outcome of Starling’s trial. There has been no showing that Henry’s testimony

would have convinced the jury that Flonnory’s testimony was falsified.

Additionally, the jury heard various pieces of testimony on the height and stature

of the shooter. Accordingly, Starling has failed to establish how Henry and

Moore’s testimony would have altered the jury’s perception of the shooter’s body

type in a way that would have produced a different trial outcome.

53 For instance, one witness, a barber, testified that the shooter was 5’8’’ or 5’9’’. The owner of the Barbershop testified that the shooter was 5’11”. On cross-examination, Moore testified that he told an investigator that the suspect was approximately 6’1” or 6’2”. Gist Sr. testified that the shooter was 5’11” or 6”. Flonnery testified that the shooter was 5’7” to 5’9” tall. St. Ans. Amend. Mot. for Postconviction Relief. 25 Trial Counsel’s introduction of the recorded Michael Starling statement did not rise to the level of ineffective assistance of counsel. One month after the shootings, the Wilmington police interviewed Michael

Starling, Starling’s half brother. One detective admitted that the interviewing

detectives threatened Michael with imprisonment and falsely told Michael that

Starling had confessed to the shootings. 54 Two hours into the interrogation,

Michael stated that Starling said that Starling “was sorry about the little boy.”

Trial Counsel introduced the recorded interrogation at trial. The recording

included Michael’s statement identifying Starling as the shooter and the detectives’

statements.

Starling asserts that Trial Counsel failed to seek exclusion of the taped

interview of Michael where it was overly prejudicial and unreliable because a

licensed audio engineer testified at trial that there were “continuity problems” with

the tape because there were seven “stop/start” events during the course of the

recording. Starling also asserts that Michael’s statement was involuntary, coerced,

and Trial Counsel should have objected to its introduction.55

54 Detective Mullins admitted this at the November 2012 evidentiary hearing. 55 Starling notes the following: Michael was surprised by a “hallway full of police” at his work who then forced him to go with them to the police station; Michael was never given his Miranda rights; he was interrogated for two hours after he stated that he was not at Miller’s house on the night of the shootings; the police told Michael what to say, and when he did not say it, they threatened to charge him with double murder; during the interrogation, the police yelled and banged on the table and Michael cried and begged to speak to his mother.

26 The State responds that Trial Counsel’s failure to object to the introduction

of the interview was objectively reasonable and Starling has failed to establish that

the outcome of the trial would have been different had Trial Counsel objected. The

State also argues that this claim is meritless considering Trial Counsel admitted the

tape into evidence himself to demonstrate that Michael’s statement was coerced

and that the tape was unreliable.

Starling has failed to establish ineffective assistance of counsel in Trial

Counsel’s use of the Michael Starling interview tape. Starling cannot argue that

Trial Counsel was ineffective for failing to object to the introduction of the tape

when Trial Counsel introduced the tape himself. Trial Counsel’s representation

was not objectively unreasonable because Michael’s taped interview permitted the

jury to consider the credibility of Michael’s confession, thus providing potentially

exculpatory evidence for Starling.

C. Starling’s Ineffective Assistance of Counsel Claims at Sentencing Phase

Trial Counsel’s presentation of mitigating evidence was effective.

Starling claims that Trial Counsel was ineffective for failing to obtain and

present mitigating evidence at sentencing. In investigating the availability of

mitigating evidence to be presented at sentencing, defense counsel is required to

27 “conduct a thorough investigation of the defendant’s background.” 56 However,

“there is no duty for defense counsel to pursue all lines of investigation about

potentially mitigating evidence.”57 Instead, counsel has the liberty to choose which

mitigating factors will persuade the jury to not impose death.58 Competency does

not require an attorney to present every witness who can present mitigating

evidence.59

Starling argues that Trial Counsel was ineffective for failing to interview and

obtain testimony from Starling’s biological father because meeting his biological

father had a profound impact on Starling’s life and was a contributor to Starling’s

delinquency. Starling also claims that Trial Counsel was ineffective for failing to

have Starling psychologically tested and failing to obtain testimony from those

who treated or evaluated him, which could have explained evidence of Starling’s

possible antisocial personality disorder. Moreover, Starling argues that Trial

Counsel should have obtained Starling’s school records, which would have

established Starling’s history of mental deficiencies. In response, the State asserts

that Trial Counsel was not required to present all mitigating factors and Trial

Counsel provided sufficient mitigating evidence. Particularly, the State notes that

Trial Counsel provided evidence that Starling’s biological father was absent for 56 Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting ABA Guidelines). 57 Flamer v. State, 585 A.2d 736, 757 (Del. 1990). 58 Id. 59 Id. 28 most of his life and that Starling suffered from mental limitations due to fetal

alcohol spectrum disorder and mixed learning disorders.

The Court finds that Trial Counsel’s representation did not fall below an

objective level of reasonableness. Trial Counsel provided mitigating factors which

included Starling’s background, family, and mental/cognitive deficits. Objectively

reasonable representation did not require Trial Counsel to call every possible

witness to establish mitigating evidence. Moreover, even if additional witnesses

were called to testify, there remains a significant likelihood that the jury would

have recommended death, especially where the jury had already heard very similar

mitigating evidence. The State also notes the following: (1) Trial Counsel

presented mitigating evidence on Starling’s behalf and urged the jury to consider it

in sentencing; (2) the State mentioned Starling’s mitigating factors in its closing

argument when it requested the jury sentence Starling to death despite the those

mitigating factors; and (3) Starling presented an allocution to the jury.

Trial Counsel acted properly in refraining to object to mitigation, burden of proof, and reasonable doubt jury instructions during sentencing Starling asserts that the Court erred in providing clear and correct jury

instructions at sentencing and Trial Counsel was ineffective for failing to object to

the instructions. In response, the State contends that the jury instructions were

consistent with state and federal law and, therefore, it was not ineffective when

29 trial counsel did not object. If a trial judge’s jury instructions are “reasonably

informative and not misleading by common standards of verbal communication”

they are not a basis for reversal. 60

Starling argues that the Court erred in its instructions in describing the

definition, weight, and standard of proof of the mitigating factors. In its

instruction, the Court stated that, “[a] ‘mitigating circumstance’ is any factor

relating to the crime or to the offender which tends to make the defendant’s

conduct less serious or the imposition of a penalty of death inappropriate.”61

Starling claims that this definition of mitigation was improper because its effect

was to undermine any factor that does not make it “inappropriate” to impose death.

Starling argues that mitigation should encompass all evidence relating to the

defendant’s character or background that might tend to provide a basis for a

sentence other than death. Furthermore, Starling contends that the phrase “relating

to the crime or to the offender” implies that the mitigation must only be related to

the offense; however, other aspects of a defendant’s background can be considered.

In the mitigation instruction, the Court also stated that,

In weighing the aggravating and mitigating circumstances, it is not a question of mere numbers of each, but rather, the relative weight of each as compared

60 Mills v. State, 732 A.2d 845, 849 (Del. 1999). 61 Senten. Hrg. Transc. 1-2 (Nov. 4, 2003). 30 to the others . . . [Y]ou do not have to unanimously agree that a particular mitigating [factor] has been established in order for you to individually consider such a mitigating circumstance. 62

Starling argues that this instruction was improper because the assessment should

not have been “the relative weight of each” mitigating circumstance as compared

to the aggravating circumstances. Instead, Starling asserts that there should be a

balancing of the totality of all the mitigating circumstances against the totality of

all the aggravating circumstances and Trial Counsel’s failure to object to these

instructions was ineffective.

The State responds that the mitigation instructions were consistent with state

law, and therefore Starling was not prejudiced by them nor was Trial Counsel

ineffective for failing to object. The Court finds Starling’s claims of ineffective

assistance of counsel with respect to the jury instruction about mitigating evidence

to be without merit. Starling has failed to establish ineffective assistance of

counsel where the instructions properly reflected Delaware law and were otherwise

informative and not misleading.

Next, Starling argues that the Court erred in its instruction to the jury on the

standard of proof when considering its sentencing decision. Although the jury was

instructed to determine whether the aggravating circumstances outweighed the 62 Senten. Hrg. Transc. 110 (Nov. 4, 2003). 31 mitigating by a preponderance of the evidence in accordance with Delaware law, 63

Starling arues that the Delaware Code violates Starling’s Sixth, Eighth, and

Fourteenth Amendment rights. Starling contends that because the sentencing

process is inherently fact-finding, it should be subject to a beyond a reasonable

doubt standard and Trial Counsel was ineffective for failing to object to this

standard.

Starling’s claim regarding the standard of proof jury instruction is

procedurally barred and without merit. First, this claim is barred because Starling

challenged it on direct appeal and the Delaware Supreme Court has ruled on this

claim, finding that Delaware’s dual step capital sentencing procedure is proper

under the Sixth Amendment. 64 Second, this claim is without merit. The jury

instructions were in accord with Delaware law and, therefore, proper.

Finally, Starling argues that the Court’s definition of “reasonable doubt” as

defined in the jury instruction was in violation of Starling’s due process rights and

that Trial Counsel was ineffective when he failed to object to such instructions.

Particularly, Starling contends that the instructions failed to inform the jury that

reasonable doubt can arise from both evidence presented and any absence of

evidence. The State asserts that the Court was not required to give instructions in a

63 11 Del. C. § 4209(c)(3)(2). 64 See Super. Ct. Crim. R. 61(i)(4); see also Starling, 882 A.2d at 756-57. 32 particular format and, therefore, there was no error. The State also argues that

Starling has not argued, nor demonstrated that he was prejudiced by the

instruction.

It is well-established Delaware law that the burden of proof instructions need

not be in a particular format as long as the instructions convey the accurate burden.

The Delaware Supreme Court has held that the “United States Constitution does

not require that any particular form of words be used in advising the jury of the

government’s burden of proof so long as the court instructs the jury on the

necessity that the defendant’s guilt be proved beyond a reasonable doubt.”65 As

long as the jury instructions convey the concept of reasonable doubt, they are not

flawed. 66 Accordingly, it was not objectively unreasonable for Trial Counsel to

concede to such instructions during Starling’s trial.

IV. STARLING’S CONSTITUTIONAL CLAIMS

Starling’s claims of denial of his right to attend his own sentencing hearing is procedurally barred under Rule 61(i)(3). Starling argues that his United States and Delaware constitutional rights

were violated when Starling was allegedly denied an opportunity to attend his

sentencing hearing. Starling requested a continuance because the hearing was

scheduled during Ramadan, and Starling did not attend. Starling is a practicing 65 Mills v. State, 732 A.2d at 850. 66 Holland v. United States, 348 U.S. 121, 140 (1954). 33 Muslim and was observing Ramadan during sentencing and Starling claims that

attending the hearing would have breached his religious obligations. Instead of

attending the hearing, he viewed it via video from a lock-up area so that he could

pray at designated times.

The United States Supreme Court has held that a criminal defendant’s right

to be present at all “critical stages of the trial” is fundamental. 67 Delaware also

recognizes a defendant’s right to be present at trial and sentencing; however, this

right can be waived in two instances. 68 First, the right to presence is waived when

the defendant is voluntarily absent after the trial has commenced. 69 Second, the

right to be present is waived when, after being warned of his disruptive conduct

that he will be removed, the defendant’s disruptive conduct persists.70

Starling argues that the two instances of waiver permitted under Delaware

Superior Court Criminal Rule 43 are not applicable to Starling. First, Starling

contends that he was not voluntarily absent, but rather he was compelled to be

absent because of his religious obligations. Second, Starling was not removed due

67 Rushen v. Spain, 464 U.S. 114, 117 (1983). 68 Super. Ct. Crim. R. 43. 69 Super. Ct. Crim. R. 43(b)(1). It does not appear that there is case law which addresses whether a religious conflict constitutes voluntary absence. See, e.g., Walls v. State, 850 A.2d 287 (Del. 2004) (defendant was voluntarily absent when he disappeared mid-trial without explanation); see also Thomas v. State, 2004 WL 300444 (Del. Super. Ct. Feb. 9, 2004) (defendant was voluntarily absent when he refused to be present unless the judge overruled his order limiting the number of witnesses). 70 Super. Ct. Crim. R. 43 (b)(2). 34 to disruptive behavior. Moreover, Starling claims that Starling was severely

prejudiced because of his absence and notes that the Court explained to Starling

that “there is a risk that [his] absence from most of this proceeding may be

harmful.” 71 Therefore, Starling claims that Trial Counsel was ineffective because

he did not move for a continuance of the hearing date.

The State argues that procedurally defaulted bars this claim unless Starling

can demonstrate cause for his default and actual prejudice because Starling failed

to raise this claim on direct appeal.72 The State notes that Trial Counsel was not

ineffective in proceeding with the scheduled sentencing hearing because Starling

himself failed to raise this concern to Trial Counsel until two days before Ramadan

began. The Court gave Starling the option of attending the penalty hearing,

absenting from the hearing completely, or staying in the holding area next to the

courtroom with audio and video feed and contact with his counsel before cross-

examination of all State witnesses. The Court informed Starling of the potential

negative impact in not attending his own hearing, but he chose to only attend the

State’s closing argument and his allocution. Moreover, the State notes that the

Court explained that Starling had a constitutional right not to attend and during

Starling’s allocution, Starling explained that he was not in attendance due to

religious obligations. 71 Def. Amend. Mot. for Postconviction Relief at 84. 72 See Super. Ct. Crim. R. 61(i)(3), (5). 35 Starling’s claim that he was improperly denied an opportunity to attend his

sentencing hearing is procedurally barred under Rule 61(i)(3). Starling failed to

present this claim on his direct appeal and thus it is barred unless Starling can

demonstrate: (1) “cause for relief from the procedural default” and (2) “prejudice

from violation of the movant's rights.” 73 Starling has failed to demonstrate both

cause and prejudice. Starling was able to mitigate any alleged prejudice by

viewing the hearing from another room, consulting with Trial Counsel about State

witnesses, and explaining that he was not present because of religious reasons

during his allocution.

Starling’s claims of prosecutorial misconduct are procedurally barred under Rule 61(i)(3). Starling argues that the prosecution engaged in various instances of

misconduct which prejudiced the trial and violated Starling’s right to due process,

a fair trial, and a reliable sentencing hearing. Because of seriousness of sentencing

in a capital case, the prosecutor has a heightened duty. In capital cases, a

prosecutor has a “duty to refrain from conduct designed to inflame the sentencing

jury’s passions and prejudices.”74

First, Starling asserts that the prosecution engaged in misconduct when it

produced Flonnory’s in-court identification on the day of trial where no notice was

73 Super. Ct. Crim. R. 61(i)(3)(A)-(B). 74 Lesko v. Lehman, 925 F.2d 1527, 1541 (3d Cir. 1991). 36 given to Trial Counsel. Second, according to Starling, the State allegedly refused

to provide discovery, which Starling alleges should have included the cell phone

and taxicab records. Third, Starling contends that the State improperly relied on

evidence not in evidence throughout its closing. Fourth, Starling argues that the

State asserts that it elicited Gaines’ testimony because Gaines was upset about the

death of the child; however, Starling argues that the State knew Gaines was lying

and was actually motivated by an unrelated event in which Starling shot Gaines in

self-defense. Fifth, Starling contends that the understanding was that Gaines was

only to testify that Starling, Frink, and he were in the car together on the night of

the crimes; therefore, the State either failed to disclose additional facts to the

Defense or the State elicited Gaines’ story for the first time at trial.

The State argues that the Starling’s claims of prosecutorial misconduct are

procedurally barred because they were not raised at trial or on direct appeal.75

Moreover, the State contends that the claims of prosecutorial misconduct lack

merit. The State, in response to the Defense’s argument that the State failed to

provide discovery, urges that there was no misconduct considering that Trial

Counsel did not request the telephone records in his motion to compel.

Additionally, the State asserts that the Defense had an opportunity to cross-

75 See Super. Ct. Crim. R. 61(i)(1); see also Super. Ct. Crim. R. 61(i)(3). 37 examine Gaines and did so thoroughly so as to elicit any deficiencies in his

testimony.

Starling’s claims of prosecutorial misconduct are procedurally barred under

Rule 61(i)(3) because the claims were never presented at trial or on direct appeal.

Therefore, these claims are procedurally defaulted unless Starling can demonstrate:

(1) “cause for relief from the procedural default” and (2) “prejudice from violation

of the movant's rights.” 76 In the absence of any such evidence, the Court concludes

that Starling’s prosecutorial misconduct claims are without merit. 77 Starling has

not demonstrated cause or prejudice resulting from the alleged prosecutorial

violations.

V. STARLING’S CHALLENGE TO THE DEATH SENTENCE UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS Starling claims that that his death sentences violate his constitutional rights

under the Eighth and Fourteenth Amendments because Delaware’s statutory

aggravating factors fail to narrow the class of persons eligible for the death

penalty. Starling also argues that Delaware’s death penalty statute enumerates too

many aggravating factors that the statue does not narrow the pool of offenders

eligible for the death penalty. 78 This argument is without merit. The Delaware

76 Super. Ct. Crim. R. 61(i)(3)(A)-(B). 77 See e.g. Hainey v. State, 945 A.2d 1167 (Del. 2008) (holding that where defendant failed to raise a prosecutorial misconduct claim at trial or on direct appeal it was procedurally barred). 78 11 Del. C. § 4209(e)(a)-(v). 38 Supreme Court has previously reviewed similar claims and has held Title 11,

Section 4209 of the Delaware Code constitutional. 79

VI. STARLING’S CLAIMS REGARDING CUMULATIVE EFFECT OF ERRORS Where one error, standing alone, does not merit basis for reversing a

conviction, cumulative error may. 80 However, harmless errors, even when

cumulative, remain harmless when there is no actual prejudice. 81 Finally, Starling

argues that even if one individual claim does not merit relief, the cumulative effect

of the errors merit relief under Rule 61. The State responds by arguing that

Starling has failed to allege harmless error or actual prejudice, and thus reversal is

unwarranted.

With respect to Starling’s claim of cumulative error, the Court finds this

claim without merit. The Court is not convinced that Starling has been denied any

of his constitutional rights so as to warrant reversal of his convictions or his

sentences.

79 State v. Cohen, 604 A.2d 846, 850 (Del. 1992); 80 See Wright v. State, 405 A.2d 685, 690 (Del. 1979). 81 Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008); Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007). 39 NOW, THEREFORE, this 28th day of August, 2014, the Defendant’s

Motion for Postconviction Relief is hereby DENIED.

IT IS SO ORDERED.

Andrea L. Rocanelli _____ ________________ The Honorable Andrea L. Rocanelli