State v. Hunt

• Court: Superior Court of Delaware
• Decided: September 19, 2023
• Docket: 1908019522
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D. No. 1908019552 ) MYRON L. HUNT, ) ) Defendant. )

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

Submitted: July 31, 2023 Decided: September 19, 2023

Upon Consideration of Motion for Postconviction Relief, DENIED.

Upon Consideration of Counsel’s Motion to Withdraw GRANTED.

David Hume, IV, Esquire, Deputy Attorney General, Department of Justice, Georgetown, Delaware, Attorney for the State of Delaware.

Edward F. Eaton, Esquire, Wilmington, Delaware, Attorney for Myron Hunt (Pending Motion to Withdraw)

Myron Hunt, 109 Greene Ave., Laurel, DE 19956, Pro Se.

CONNER, J. Introduction This is the Court’s decision on a pro se Motion for Postconviction Relief

pursuant to Superior Court Criminal Rule 61 (“Rule 61”) filed by Myron Hunt

(“Defendant”). Defendants seeks relief for multiple ineffective assistance of counsel

claims. Additionally, Defendant’s post-conviction appointed counsel has filed a

Motion to Withdraw pursuant to Rule 61(e)(7).

Factual and Procedural Background

On August 29, 2019, Detective Sean Callaway of the Delaware State Police

was executing a search warrant at 28183 Seaford Road, Laurel, Sussex County,

Delaware. The search warrant was for the residence of Ricky Hawkins. Mr. Hawkins

was present at the time of the warrant execution and was subsequently arrested for

drug dealing. Mr. Hawkins agreed to assist the police officers with their

investigation. Mr. Hawkins allowed the officers access to his cell phone. Detective

Callaway, with the assistance of Mr. Hawkins, used the cell phone to contact who

they believed to be Defendant via text message. During this conversation, an order

of cocaine was placed to be delivered to Mr. Hawkins’ residence. The order

requested 14 grams of cocaine with no price being discussed. At some point after

this text interaction, Defendant arrived at Mr. Hawkins’ residence. Defendant was

driving a green Crown Victoria and parked in the driveway. After Defendant parked

his vehicle two officers pulled behind him and arrested Defendant. As a search

1 incident to the arrest, cocaine was recovered on Defendant’s person. Cocaine was

also recovered in the gas cap of the vehicle.1

On February 12, 2020, Defendant was found guilty by a jury of Drug Dealing

in a Tier 2 Quantity Plus an Aggravating Factor of Commission of the Offense in an

Automobile and Possession of Drug Paraphernalia. On April 23, 2020, Defendant

was sentenced on the drug dealing offense to 25 years of imprisonment, suspended

after serving 3 years followed by 18 months of Level III probation and on the

Possession of Drug Paraphernalia offense to six months of imprisonment, suspended

for 1 year of Level III probation.

Defendant directly appealed his conviction to the Delaware Supreme Court

who affirmed the judgment on October 26, 2020. On October 21, 2021, Defendant

filed the instant timely Motion for Postconviction Relief and Appointment of

Counsel (“the Motion”) pursuant to Superior Court Criminal Rule 61.2 James

Murray, Defendant’s trial counsel, filed an Affidavit in Response on November 10,

2021. On January 25, 2022, the State filed a response to the Motion. Defendant

failed to file a reply brief after being released from prison. Upon realization that

Defendant was entitled to Counsel the Court contacted Office of Conflicts Counsel.

1 Tr. of Proceedings, Volume B at 36. The parties stipulated to the facts that Defendant was the person who drove up in the car that day and saw Detective Callaway. The parties also stipulated that Defendant was the same person who was sitting at the defense table during trial. 2 Del. Super. Ct. Crim. R. 61(i)(1). “A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final . . .” 2 Defendant was appointed post-conviction counsel on January 18, 2023, who then

filed a Motion to Withdraw on July 3, 2023. On June 30, 2023, appointed counsel

notified the Court he informed the Defendant of his Motion to Withdraw and that

Defendant had 30 days to respond. Defendant has yet to reply to either the State’s

Response or to appointed counsel’s Motion to Withdraw. The deadline for

Defendant to respond has passed. As such, the Court will render decisions based

upon the current record, first discussing post-conviction appointed counsel’s Motion

to Withdraw and then discussing Defendant’s Rule 61 Motion.

Motion to Withdraw as Counsel

Pursuant to Superior Court Criminal Rule 61(e)(6), appointed post-conviction

counsel has a duty to assist Defendant in presenting any substantial ground for

relief.3 If Defendant’s counsel identifies any colorable claims for relief, an amended

Rule 61 Motion can be filed.4 However, if after reviewing Defendant’s claims,

counsel believes the claims “to be so lacking in merit that counsel cannot ethically

advocate it, and counsel is not aware of any substantial ground for relief . . . counsel

may move to withdraw.”5 If counsel decides to file a motion to withdraw, counsel

must explain the factual and legal basis behind their opinion and provide notice to

3 Super. Ct. Crim. R. 61(e)(6). 4 Super. Ct. Crim. R. 61(b)(6). 5 Super Ct. Crim. R. 61(e)(7). 3 Defendant.6 Defendant then has 30 days to respond to counsel’s Motion to

Withdraw.7

Here, Defendant’s post-conviction counsel engaged in a thorough review of

the record, including seeking out any other potential grounds for relief.8 Counsel

concluded Defendant’s claims in his Rule 61 Motion have no merit nor does

Defendant have any alternative claims for relief.9

As of the date of this Order, Defendant has not responded to counsel’s Motion

to Withdraw and his 30-day deadline to do so has passed. Due to Defendant’s failure

to respond, the Court is limited to reviewing the pro se claims Defendant made in

his Rule 61 Motion.10

Motion for Post Conviction Relief11

Defendant raises multiple grounds for relief in his Motion. Specifically,

Defendant is alleging ineffective assistance of counsel because Mr. Murray: (1) did

not file a pretrial “Motion for Suppression of Evidence as preemptive strike against

the legality of the state’s ability to gather the movant’s name, phone number, and

6 Id. 7 Id. 8 Mem. in Support of Mot. to Withdraw as Counsel for Petitioner Myron Hunt at 1. 9 Id. 10 State v. Shover, 2023 WL 3496209, at *3 (Del. Super. May 15, 2023). 11 The Court can address the merits of Defendant’s Motion because none of the procedural bars of Rule 61(i) are applicable. 4 whereabouts”;12 (2) did not set forth the defense of entrapment pursuant to 11 Del.

C. § 432(a); (3) “never challenged the lack of digital search warrant that led to the

discovery of the movant’s private information;”13 and (4) did not “contest the

utilization of his illegally seized text messages by and thru [sic] a Motion for

Suppression of Evidence, per Superior Court Criminal Rule 12.” 14 Defendant’s last

ground for relief is based on judicial impropriety.

I. Ineffective Assistance of Counsel Claims

To be successful on an ineffective assistance of counsel claim, a defendant

must prove that his (1) counsel’s performance fell below an objective standard of

reasonableness and that his (2) counsel’s deficient performance resulted in

prejudice.15 In regard to the first prong, the defendant bears a heavy burden when

attempting to show trial counsel’s representation did not meet an objective standard

of reasonableness.16 A strong presumption that trial counsel’s representation was

professionally reasonable exists.17 A defendant must show that “counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant

12 Def. Mot. for Postconviction Relief ¶ 10. 13 Id. ¶ 20. 14 Id. ¶ 25. 15 Strickland v. Washington, 466 U.S. 668, 694 (1984); Hoskins v. State, 102 A.3d 724, 730 (Del. 2014). 16 Gattis v. State, 697 A.2d 1174, 1178 (Del. 1997). 17 Id. at 1178. (quoting Strickland, 466 U.S. at 689); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 5 by the Sixth Amendment.”18 The second prong requires a defendant to prove that the

trial counsel’s error resulted in prejudice. Prejudice is “a reasonable probability that,

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

different.”19 A defendant must put forth specific allegations of actual prejudice and

substantiate them, mere allegations will not suffice.20 A defendant’s failure to state

particulars of the prejudice suffered is fatal to a claim of ineffective assistance of

counsel.21

Defendant’s Motion and accompanying Memorandum of Law lay out

multiple arguments, with some being difficult to decipher. Overall, it appears that

Defendant is arguing his trial counsel, Mr. Murray, was ineffective throughout the

entirety of the case by failing to file motions to suppress, failing to raise certain

defenses, and failing to draw attention to alleged judicial impropriety. The Court will

address each of these issues with the requisite Strickland standard in mind.

A. Trial Counsel’s Decision Not to File a Motion for Suppression Regarding Information Contained on Ricky Hawkins’ Cell Phone Did Not Constitute Ineffective Assistance of Counsel

Defendant’s first ground for relief is that Mr. Murray failed to file a motion to

suppress the evidence pertaining to Defendant obtained from Ricky Hawkins cell

18 Strickland, 466 U.S. at 687. 19 Id. at 694. 20 Wright, 671 A.2d at 1356. 21 Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996). 6 phone. Defendant alleges Mr. Murray’s lack of filing the motion regarding the state’s

ability to gather Defendant’s name, phone number and whereabouts rendered him

ineffective. This assertion must fail on the grounds of standing under the Fourth

Amendment of the United States Constitution. To challenge a search and seizure

violation under the Fourth Amendment a person must have standing to raise the

issue. To have standing, one must have a “legitimate expectation of privacy in the

invaded place.”22 A legitimate expectation of privacy is “one that society is prepared

to recognize as ‘reasonable.’”23

Defendant does not have a reasonable expectation of privacy in someone

else’s cell phone. Defendant’s argument that “message by telephone and other means

of communicating constitute an extension of his person and/ or property with the

meaning of Article I Section 6 of the Del. Const. and the Fourth Amendment to the

U.S. Const”24 is unsupported by Delaware law. Defendant does not have standing to

challenge the information obtained from the cell phone. This claim of ineffective

assistance of counsel is without merit.

22 Righter v. State, 704 A.2d 262, 265 (Del. 1997)(quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). 23 Rakas, 439 U.S. at 143 n.12 (quoting Katz v. United States, 389 U.S. 347, 361 (1967)). 24 Def. Mot. for Postconviction Relief ¶ 24. 7 B. Trial Counsel’s Decision Not to Raise the Defense of Entrapment Did Not Constitute Ineffective Assistance of Counsel

Defendant’s next claim is that Mr. Murray was ineffective because he did not

raise the defense of entrapment pursuant to 11 Del. C. § 432. Section 432 states in

relevant part:

(a) In any prosecution for an offense, it is an affirmative defense that the accused engaged in the proscribed conduct because the accused was induced by a law-enforcement official or the law-enforcement official’s agent who is acting in the knowing cooperation with such an official to engage in the proscribed conduct constituting such conduct which is a crime when such person is not otherwise disposed to do so. The defense of entrapment as defined by this Criminal Code concedes the commission of the act charged but claims that it should not be punished because of the wrongdoing of the officer originates the idea of the crime and then induces the other person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so.25

Defendant argues that “he would not have otherwise acted if the police had not

induced him to do so by sparking, engaging, and facilitating a felonious based

conversation.”26 Defendant appears to be arguing that he would not have engaged in

the criminal conduct had he known he was going to be caught. That rationale is not

the basis for an entrapment defense.

25 11 Del. C. § 432(a). 26 Def. Mot. for Postconviction Relief ¶ 14. 8 Defendant also alleges Mr. Murray should’ve raised the defense of entrapment

because the information obtained came from Ricky Hawkins, who was never a “past-

proven reliable informant for the arresting police agency.”27 Mr. Hawkins does not

need to be established as a reliable informant to voluntarily assist the police in their

investigation.

Additionally, the key language in 11 Del. C. § 432(a) is “when such person is

not otherwise disposed to do so.” Here, Defendant does not fit within that language.

Defendant has past criminal convictions involving possession and distribution of

drugs including Possession with Intent to Deliver Schedule I Non-Narcotic

Controlled Substance, Deliver Schedule I Non-Narcotic Controlled Substance, and

Possession of Drug Paraphernalia.28 Also, at the time of this case, Defendant had

pending charges in this Court for 3 counts of Manufacture/Deliver or Possess with

Intent to Manufacture/Deliver a Controlled Substance.29 Defendant was not

entrapped by the police in this situation, but rather carrying out what he thought was

yet another drug transaction. The defense of entrapment would not have been

applicable to Defendant’s situation. Therefore, it was not unreasonable for Mr.

27 Id. ¶ 15. 28 Pretrial Bond Report at 1. 29 Id. 9 Murray to decide not to raise the defense. This claim of ineffective assistance of

counsel is also without merit.

C. Trial Counsel’s Decision Not to Challenge a Lack of Digital Search Warrant Did Not Constitute Ineffective Assistance of Counsel

Defendant’s next claim is that Mr. Murray was ineffective because he did not

challenge the fact that the “raiding policemen at ‘Rickey’s’ house had to apply for

and produce a digital search warrant for the search of the cell phone.”30 As discussed

above, Defendant does not have standing to argue the legality of the search of Mr.

Hawkins’ cell phone. Defendant was not the owner of the cell phone, nor did he have

a reasonable expectation of privacy in the contents of the cell phone. Additionally,

Mr. Hawkins gave the police permission to access his cell phone, so no search

warrant was needed. It was not unreasonable for Mr. Murray to decide against raising

a lack of search warrant issue here. This claim for ineffective assistance of counsel

fails.

D. Trial Counsel’s Decision to Not Raise a Violation of Privacy Argument Did Not Constitute Ineffective Assistance of Counsel

Defendant next argues that Mr. Murray was ineffective because he did not

argue that the police violated Defendant’s privacy pursuant to 11 Del. C. § 1335.

Section 1335 reads in relevant part: “(a) A person is guilty of violation of privacy

30 Def. Mot. for Postconviction Relief ¶ 18. 10 when, except as authorized by law, the person: (4) Intercepts without the consent of

all parties thereto a message by telephone, telegraph, letter or other means of

communicating privately, including private conversation . . .”31

The text messages between Defendant and Ricky Hawkins were not

intercepted by the police. After the search warrant was executed at Mr. Hawkins’

residence and he was Mirandized, he agreed to assist the police with their

investigation.32 In doing so, he provided the officers with access to his cell phone.33

This access included reading and responding to text messages.34

Since the investigating officers obtained permission to access the contents of

Ricky Hawkins phone there was no interception of the communications, and

therefore no violation of privacy. However, even if the police obtaining access to the

cell phone contents did constitute an interception of communications, it was lawful

pursuant to 11 Del. C. § 2402(c)(3).35 The police were conducting an investigation

31 11 Del. C. § 1335(a)(4). 32 Tr. of Proceedings, Volume B at 23. 33 Id. at 23-26. 34 Id. 35 11 Del. C. § 2402(c)(3) states in full, “For an investigative or law-enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law-enforcement officer in such investigation pursuant to a court order issued by the Superior Court pursuant to § 2407 of this title to intercept a wire, oral or electronic communication in order to provide evidence of the commission of the offenses including racketeering, murder, kidnapping, human trafficking, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, controlled substances or counterfeit controlled substances, prison escape, jury tampering, stalking, any felony involving risk of physical injury to a victim or any 11 that pertained to drugs. The contents of Ricky Hawkins’ cell phone were intercepted,

viewed, and/or relied upon as part of the criminal investigation in a legal manner.

Again, there was no violation of privacy. Since this argument of violation of privacy

was without merit, it was not unreasonable for Mr. Murray to decide against raising

the argument at trial. Therefore, this ineffective assistance of counsel claim must

fail.

E. Trial Counsel’s Failure to Raise the Issue of Judicial Impropriety Did Not Constitute Ineffective Assistance of Counsel

Although not exactly framed as an ineffective assistance of counsel claim,

Defendant’s last allegation will be addressed to the best of the Court’s ability.

Defendant alleges the trial judge had an inappropriate relationship with the

prosecutor which created a conflict of interest and “destroyed the sanctity of the

movant’s opportunity for a fair trial.”36

Defendant does not offer any facts beyond him claiming “[t]he allegations

presented herein are not merely conclusory and cursory, but rather based upon the

public record” to support his frivolous allegation. Absolutely no facts exist that

suggest the trial judge was engaged in an inappropriate relationship with the

conspiracy or solicitation to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator of any of the foregoing offenses.” 36 Def. Mot. for Postconviction Relief ¶ 33.

12 prosecutor. It was clearly reasonable and appropriate for Mr. Murray to decide

against raising this issue as it lacked any factual basis. This last claim of ineffective

assistance of counsel fails.

Conclusion

After a thorough review of Defendant’s Motion for Post Conviction Relief,

counsel’s Memorandum in Support of Motion to Withdraw as Counsel, and the

remaining record it is clear to the Court that Defendant is not entitled to any relief.

Defendant has failed to show his trial counsel’s performance fell below an objective

standard of reasonableness nor has Defendant shown he suffered any prejudice due

to his trial counsel’s decisions. Furthermore, Defendant’s post-conviction appointed

counsel engaged in an in-depth analysis of Defendant’s claims and reached the

conclusion that Defendant’s claims are without merit. Accordingly, counsel’s

Motion to Withdraw is GRANTED and Defendant’s pro se Motion for Post

Conviction Relief is DENIED.

IT IS SO ORDERED.

/s/ Mark H. Conner Mark H. Conner, Judge

cc: Prothonotary