State v. Galindez

Opinion

THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ID No. 1712008053 ) IVAN GALINDEZ, ) ) Defendant. )

Submitted: August 5, 2022 Decided: November 18, 2022

MEMORANDUM OPINION AND ORDER On this 18th day of November 2022, upon consideration of Defendant, Ivan

Galindez’s (“Defendant”) Motion for Postconviction Relief (“Motion”), 1 trial

counsel’s affidavit in response to claims of ineffective assistance of counsel,2 the

State’s response to the Motion,3 the parties’ supplemental briefing,4 and the record

in this case, it appears that:

I. Factual and Procedural History

1. On December 12, 2017, a police officer of the Wilmington Police

Department was dispatched in response to a 911 call reporting a robbery. Upon

arrival, the officer observed Jorge Luis Franco Martinez (the “victim”) in obvious

1 D.Is. 31, 42. 2 D.I. 44. 3 D.I. 45. 4 D.Is. 48, 51. distress, bleeding from the face and head areas. Also present at the scene was

Richard Canongo, who stated he had called 911 when he heard the victim yelling for

help.

2. The victim reported to the police that, at approximately 9:00 p.m. on

December 12, 2017, he drove to Rodriguez Food Market, near W. 4th and Connell

Streets in Wilmington, to buy groceries. When the victim was returning to his

parked vehicle, he was approached by a man who demanded money. When the

victim refused, the man struck him in the face and head with a metal object (possibly

brass knuckles) repeatedly, eventually knocking him to the ground. Amidst the

struggle, the victim managed to enter his vehicle, but was unable to drive away

before the man broke the driver’ side window and held a pointed object to his neck.

The victim then turned over his money and the man fled.

3. On December 13, 2017, the day after the incident, the victim spotted the

man who robbed him in the same area and the man was dressed the same as the night

before. The victim took a picture of the man on his cellphone and later provided the

photo to the police. Based on the photo, the police obtained a warrant and arrested

Defendant on December 14, 2017. When Defendant was processed, a photograph

was taken of him and included in a six-pack photo line-up. When presented with the

photo line-up, the victim immediately identified Defendant as the man who robbed

him. The photo array was later introduced at trial. 2 4. At trial, the victim testified to the foregoing, explained that he saw

Defendant’s face clearly on the night of the attack, and identified Defendant in court

as his assailant. The person who called 911 after the incident, Richard Canongo,

also testified at trial. He gave his account of the incident, which was substantially

consistent with the victim’s. Canongo also testified that the man pictured in the

photograph taken by the victim was the man who assaulted and robbed the victim.

5. On August 16, 2018, after a two-day jury trial, Defendant was found guilty

and convicted of one count of Robbery First Degree, one count of Assault First

Degree, two counts of Possession of a Deadly Weapon During the Commission of a

Felony, and one count of Criminal Mischief under $1,000 Damage to Property.5 On

January 18, 2019, Defendant was sentenced to fifty-four years of Level V

imprisonment, followed by concurrent probation for two years and six months. 6

Defendant filed a timely Notice of Appeal to the Delaware Supreme Court.7 On

October 30, 2019, the Delaware Supreme Court affirmed Defendant’s convictions.8

6. On January 17, 2020, Defendant filed a pro se Motion for Postconviction

Relief and Motion for Appointment of Counsel, under Superior Court Criminal Rule

5 D.I. 15. 6 D.I. 23. 7 D.I. 27. 8 D.I. 30. 3 61.9 On July 9, 2020, the Court granted Defendant’s Motion for Appointment of

Counsel.10 On September 24, 2021, an Amended Motion for Postconviction Relief

(the “Amended Motion”) was filed by Defendant’s postconviction counsel on his

behalf.11 On January 5, 2022, Defendant’s trial counsel filed an affidavit in response

to Defendant’s claims of ineffective assistance of counsel.12 On March 9, 2022, the

State filed a response to Defendant’s Amended Motion for Postconviction Relief.13

On June 1, 2022, Defendant filed a supplement14 to the Amended Motion, to which

the State filed a supplemental response15 on August 5, 2022. This matter is now ripe

for the Court’s consideration and decision.16

II. Standard of Review

7. Superior Court Criminal Rule 61 is the exclusive remedy for persons “in

custody under a sentence of this court seeking to set aside the judgment of conviction

9 D.Is. 31, 32. 10 D.I. 35. 11 D.I. 42. 12 D.I. 44. 13 D.I. 45. 14 D.I. 51. 15 D.I. 48. 16 The sole argument raised in Defendant’s Amended Motion is based upon purported newly discovered evidence, including trial counsel’s alleged ineffectiveness in failing to identify the evidence before trial. Defendant also raised several other ineffective assistance of counsel claims in his original pro se Motion. The Court will first address the argument regarding the newly discovered evidence and then address the pro se arguments. 4 . . . .”17 In considering a motion for postconviction relief, the Court “must first

consider the procedural requirements of Rule 61 before addressing any substantive

issues.” 18 The procedural bars of Rule 61 include: timeliness, repetitiveness,

procedural default, and former adjudication. 19 This is Defendant’s first Rule 61

Motion and it was filed within one year after the judgment of conviction became

final. The Motion is therefore timely and not repetitive. The Court will then address

whether the Motion satisfies other procedural requirements under Rule 61(i), and if

yes, will consider the Motion on its merits.

III. Analysis

A. Newly Discovered Evidence

8. Defendant contends that there is new exculpatory evidence not presented

at trial that warrants postconviction relief. The State argues that this claim is

procedurally barred under Rule 61(i)(3) because it was not asserted in the

proceedings leading to the judgment of conviction and does not fall within the

exceptions provided under Rule 61(i)(5).

17 Super. Ct. Crim. R. 61(a)(1). 18 Bradley v. State, 135 A.3d 748, 756-57 (Del. 2016) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990)). See also Super. Ct. Crim. R. 61(i) (setting forth Rule 61’s procedural bars). 19 Super. Ct. Crim. R. 61(i)(1)-(4). 5 9. Rule 61(i)(3) provides that “[a]ny ground for relief that was not asserted in

the proceedings leading to the judgment of conviction, as required by the rules of

this court, is thereafter barred, unless the movant shows (A) [c]ause for relief from

the procedural default and (B) [p]rejudice from violation of the movant’s rights.”20

Here, Defendant contends that he has become aware of a new eyewitness named

Robert Perry Figgs, who is willing to testify that Defendant “acted in self-defense”

in the incident for which he was convicted.21 Specifically, the new eyewitness will

testify that the victim “initiated an argument with [Defendant] and “threw the first

punch.” The claim of self-defense, supported by testimony of a proposed eyewitness,

could have been, but was not, raised at trial or upon direct appeal. 22 Defendant also

fails to show “cause for relief” from the procedural default. Defendant contends that

the failure to present the self-defense claim at trial was due to his trial counsel’s

deficient performance in failing to discover and identify the eyewitness. As will be

discussed in detail below, the Court finds that the trial counsel’s alleged failure to

20 Super. Ct. Crim. R. 61(i)(3). 21 The Court notes that Defendant’s Amended Motion states that Defendant’s postconviction counsel “has discovered the names and contact information of two previously unknown witnesses” who “will contradict evidence used to convict [Defendant] at his trial,” without supplying more information regarding those additional witnesses. It is not until Defendant submitted his supplement to the Amended Motion that he provided the information regarding the new eyewitness, including his name, date of birth, physical address, and proposed testimony. This is the only new evidence presented in the Motion. 22 See e.g., State v. Prince, 2022 WL 211704, at *4 (Del. Super. Jan. 24, 2022) (finding prosecutorial misconduct claims that could have been but were not raised on direct appeal barred as procedurally defaulted). 6 identify this eyewitness or pursue a self-defense claim falls short of ineffective

assistance of counsel, which is required to constitute cause for relief from the

procedural default.23 Therefore, the petition for relief based on purported newly

discovered evidence that supports a self-defense claim is barred under Rule 61(i)(3).

10. Defendant’s newly discovered evidence claim could otherwise proceed if

it satisfies one of the exceptions provided under Rule 61(i)(5). Rule 61(i)(5)

provides that the bars to relief in paragraphs (1)-(4) of Rule 61(i) do not apply to a

claim that “pleads with particularity that new evidence exists that creates a strong

inference that the movant is actually innocent in fact of the acts underlying the

charges of which he was convicted.” 24 “Actual innocence” requires “more than

innocence of intent; it requires new evidence that a person other than the petitioner

committed the crime.”25

11. In State v. Taylor, the defendant asserted in his second postconviction

motion that there was new evidence that negated the requisite intent for his

23 See Shelton v. State, 744 A.2d 465, 475 (Del. 2000) (“Attorney error which falls short of ineffective assistance of counsel does not constitute cause for relief from a procedural default.”) (internal citation omitted). 24 Super. Ct. Crim. R. 61(i)(5); 61(d)(2). The procedural bars are also inapplicable to a claim that the Court lacked jurisdiction or a claim that pleads with particularity that a new, retroactive rule of constitutional law applies to the movant’s case and renders the conviction invalid. Id. It is clear from the Motion and related filings that the only exception implicated in this case is the “actual innocence” exception. 25 Purnell v. State, 254 A.3d 1053, 1095 (Del. 2021) (internal citation omitted). 7 conviction of First Degree Murder, the particular offense at issue in that case, and

thus proved that he was actually innocent of that crime.26 This Court rejected that

argument, finding that the defendant offered no evidence that shows he did not kill

the victim.27 The Taylor court relied upon a 10th Circuit case, Long v. Peterson,

where the federal court found that “actual innocence means factual innocence, not

legal innocence”, and that the defendant was not factually innocent, because he

“admits his actions caused his father’s death”, although he claimed “he only intended

to hurt his adoptive father, not kill him.”28 The Taylor court held that the proffered

evidence that purported to show the defendant’s lack of intent fails to meet Rule 61’s

actual innocence standard.29

12. In the instant case, the proffered newly discovered evidence likewise fails

to show that Defendant is factually innocent of the underlying crimes of which he

was convicted. Defendant does not contend that he did not rob or assault the victim

or cause his injuries; nor does he allege that someone else committed those crimes.

The alleged new evidence simply purports to show that Defendant conducted all

26 State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 28, 2018). 27 Id. at *8. 28 Id. at *7 (discussing Long v. Peterson, 291 Fed. Appx. 209 (10th Cir. 2008)). The Taylor court also quoted languages from a United States Supreme Court case that explained the meaning of actual innocence. See Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 340-41 (1992)) (“A prototypical example of “actual innocence” in a colloquial sense is the case where the State has convicted the wrong person of the crime.”). 29 Id. at *8. The Taylor decision was later affirmed by the Delaware Supreme Court upon appeal. Taylor v. State, 206 A.3d 825 (TABLE), 2019 WL 990718 (Del. Feb. 27, 2019). 8 those acts out of self-defense. This concerns the legal sufficiency of Defendant’s

conviction at best and does not create an inference that Defendant was “actually

innocent in fact.” Accordingly, Defendant’s claim regarding the newly discovered

evidence fails to overcome Rule 61’s procedural bar.

B. Ineffective Assistance of Counsel

13. Defendant in his pro se Motion raised several claims based on ineffective

assistance of counsel.30 It is well-established under Delaware law that a claim of

ineffective assistance of counsel is not barred under Rule 61(i)(3) because it could

not have been raised in the proceedings leading to his conviction.31 The ineffective

assistance of counsel claims are first raised in this Motion and were not formerly

adjudicated. Therefore, these claims are not procedurally barred, and the Court will

consider them on the merits.

14. To prevail on an ineffective assistance of counsel claim, a defendant must

demonstrate that: (1) his defense counsel’s representation “fell below an objective

standard of reasonableness;” and (2) “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

30 These claims were raised both in the original pro se Motion and the Amended Motion filed by Defendant’s postconviction counsel. The Court will first address the one claim raised in the Amended Motion and then address the pro se claims. 31 See, e.g., Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (internal citations omitted). 9 different.”32 As to the first prong, there is a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”33 And a

fair assessment of counsel’s performance should avoid the “distorting effects of

hindsight” and should “evaluate the [challenged] conduct from counsel’s perspective

at the time.”34 As to the second prong, a defendant must “make, and substantiate,

specific allegations of actual prejudice.”35

(1) Counsel’s Alleged Failure to Identify Witnesses

15. In the Amended Motion, Defendant contends that his trial counsel was

ineffective by failing to discover and identify the eyewitness who is willing to

provide testimony to support a self-defense claim.36 The Court disagrees. The Court

finds that the alleged failure to identify the newly discovered eyewitness does not

satisfy either prong of the ineffective assistance of counsel analysis.

16. First, Defendant fails to assert that reasonable legal assistance would

require the trial counsel to discover such a witness or to pursue a self-defense

32 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); see also Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 33 Strickland, at 689 (“Judicial scrutiny of counsel’s performance must be highly deferential.”). 34 Id. 35 Gattis v. State, 697 A.2d 1174, 1178-79 (Del. 1997) (internal citations omitted). 36 Specifically, Defendant’s Amended Motion states that “[t]he cumulative errors in this case include the deficient performance by Defendant’s Trial Counsel in failing to discover and identify the aforementioned witness to buttress Defendant’s claim of innocence.” 10 claim.37 Defendant also fails to explain why the trial counsel should have been able

to identify the witness or how a reasonable investigation would have revealed the

existence and/or identity of the witness. To the contrary, Defendant’s trial counsel,

in a sworn affidavit, states that he “utilized the investigator of the Public Defender’s

office to identify and secure potential sources of video from Downtown Visions’

cameras located at 3rd and Connell Streets, and 4th and Broom Streets” for the date

of the incident. Defendant also did not provide his trial counsel with the names of

any witnesses that could assist in his defense. Therefore, Defendant fails to

demonstrate that the trial counsel’s defense of the case fell below any objective

standard of reasonableness by failing to identify this single self-defense witness.

17. Moreover, even if the proffered witness was identified before and

presented the testimony regarding self-defense at trial, Defendant has failed to show

that there is a reasonable probability that the ultimate result would not have been the

same. There was ample evidence presented at trial that supports Defendant’s

conviction. On the day after the incident, the victim took a picture of Defendant,

who was dressed in the same clothes as the night before, and located in the same

area where the incident occurred. An eyewitness testified at trial that the man in the

picture taken by the victim was the victim’s assailant. The victim identified

37 There is no indication in the record that Defendant ever spoke with his trial counsel about self- defense as a potential trial strategy. 11 Defendant in a photo line-up as well as in open court. Both the victim and the

eyewitness testified at trial how the incident occurred and unfolded, which testimony

was substantially consistent with each other. It is not probable that a reasonable jury

would disregard the above evidence and instead adopt the “self-defense” version of

the incident from Defendant’s newly proposed witness.

18. Furthermore, the limited information given regarding the proffered

testimony appears insufficient to support a valid self-defense claim. Defendant

simply states that the new witness will testify that Defendant “acted in self-defense”

and the victim “initiated an argument with [Defendant] and “threw the first punch.”38

There is no evidence offered to support a finding that the subsequent use of force,

including usage of a metal object (possibly brass knuckles), upon the victim’s face

and head was “immediately necessary” to protect Defendant “on the present

occasion.”39 That the victim “initiated an argument” and “threw the first punch,”

even if believed to be true, is certainly insufficient to justify Defendant’s subsequent

breaking into the victim’s car and concomitant robbery of Defendant. Therefore, it

is not reasonably probable that the self-defense theory would have prevailed and

changed the result of the trial.

38 It is noted that the Motion fails to provide an affidavit from the new witness that illustrates in detail what the proffered testimony includes; nor does the Motion explain why one was not provided. 39 See 11 Del. C. § 464(a). 12 (2) Counsel’s Failure to Object to Eyewitness Identification Jury Instruction

19. Defendant raised several pro se arguments regarding ineffective

assistance of counsel. One of the arguments is that his trial counsel failed to object

to the jury instruction regarding eyewitness identification given by the trial court and

failed to provide the court with an alternative jury instruction that purportedly lists

a number of factors the jury should consider in examining the accuracy of the

eyewitness identification.

20. As an initial matter, the propriety of the eyewitness identification jury

instruction given by the trial court in this case has already been argued before and

adjudicated by the Delaware Supreme Court upon direct appeal. To the extent that

Defendant casts it as an ineffective assistance of counsel claim, the Court finds it to

be without merit. Contrary to what Defendant claims here, Defendant’s trial counsel

did propose a more expansive eyewitness identification jury instruction based on

model instructions used in Massachusetts and New Jersey. The trial Court denied

defense counsel’s proposed jury instructions and proceeded with the standard

Delaware Superior Court instruction on eyewitness identification. There is also no

conceivable prejudice to Defendant, because the trial court’s decision to not give the

instruction proposed by Defendant was affirmed on appeal.

13 (3) Counsel’s Alleged Failure to Provide Defendant with the Evidence Against Him Before Trial

21. In his pro se Motion, Defendant also claims that his trial counsel failed to

provide him pretrial discovery materials, rendering him unable to make an informed

decision about his case. Defendant’s trial counsel, in his sworn affidavit, states that

he reviewed the evidence Defendant would confront at trial with him both at the first

case review on April 23, 2018 and the final case review on July 23, 2018. The Court

finds it unnecessary to further inquire into whether and how Defendant’s trial

counsel discussed the evidence against Defendant with him, as Defendant fails to

make or substantiate any specific allegations of the prejudice suffered by him.40 In

particular, Defendant, now being aware of all the evidence that has been presented

against him at trial, fails to specify how his case would have come out differently if

he was informed of the incriminating evidence earlier (assuming his trial counsel did

not do so before trial). For that reason, Defendant’s ineffective assistance of counsel

claim must fail.41

40 See Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”); Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two-pronged test, and there is no need to examine whether an attorney performed deficiently if the deficiency did not prejudice the defendant.”). 41 In his pro se Motion, Defendant also states, without any supporting detail, that the State suppressed a video depicting the suspect and victim during the robbery. However, Defendant failed to raise this issue at trial or in his direct appeal and is now barred from pursuing it in his 14 IV. Conclusion

22. For the reasons stated above, the Court finds that the proffered newly

discovered evidence does not warrant relief in the postconviction proceeding

because the evidence does not create a strong inference that Defendant was factually

innocent of the underlying crime. The Court also finds no evidence that Defendant’s

counsel’s representation was substandard or that Defendant suffered any prejudice

therefrom, which are both required to establish a valid ineffective assistance of

counsel claim. Accordingly, Defendant’s Motion for Postconviction Relief is hereby

DENIED.

IT IS SO ORDERED.

Sheldon K. Rennie, Judge

Original to Prothonotary Cc: Monil D. Amin, DAG Raj Srivatsan, Esq. Kevin J. O’Connell, Esq.

request for postconviction relief. Moreover, Defendant has not established, or even attempted to articulate, cause for relief from the procedural default. Super. Ct. Crim. R. 61(i)(3) (“[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant’s rights). 15