SUPERIOR COURT
OF THE
STATE OF DELAWARE
CRAIG A. KARSNITZ, SUSSEX COUNTY COURTHOUSE RESIDENT JUDGE 1 THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947
TELEPHONE (302) 856-5263
July 1, 2022
Alex D. Justice SBI# 00211927 Sussex Correctional Institution P.O. Box 500 Georgetown, DE 19947
Re: State of Delaware v. Alex D. Justice, Cr. No. 1203006758 Motion for Postconviction Relief (R-2)
Dear Mr. Justice:
On June 21, 2022, I received your second, pro se Motion for Postconviction Relief under Delaware Superior Court Rule Criminal Rule 61, dated June 15, 2022 (the “Motion”), together with a “Request of Leave to file Memorandum and Appendice [sic] … [also] … Requested Stay of Preliminary Review until Memorandum is Filed” (the “Requested Stay”) with respect to the above-referenced matter. The sole ground that you state for relief in your Motion is ineffective assistance of counsel. Some of the facts you present for this claim are new, and some of the facts were previously presented to this Court in your first pro se Motion
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for Postconviction Relief dated June 23, 2014, and your first Amended Motion for Postconviction Relief (after postconviction counsel was appointed for you) dated May 1, 2015, which was denied on September 22, 2015. You cite as authority for your claim evidence of your actual innocence in fact under Purnell v. State,1 a Delaware Supreme Court decision.
First, I deny the Requested Stay. The Motion “shall specify all the grounds for relief which are available to the movant and of which movant has or, by the exercise of reasonable diligence, should have knowledge, and shall set forth in summary form the facts supporting each of the grounds thus specified.”2 Your Motion does precisely that. I do not think the filing of a memorandum would add to the calculus here. I will consider your Motion on the papers presented.
Second, with respect to the Motion itself, as you yourself indicate in your Motion, it is barred under the four procedural bars of Rule 61.3 If a procedural bar exists, as a general rule I will not address the merits of the postconviction claim.4 A
1 254 A.3d 1053 (Del. 2021). 2 Super. Ct. Crim. R. 61(b)(2). 3 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990). 4 Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super. April 28, 2009).
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Rule 61 Motion can be barred for time limitations, successive motions, failure to raise claims below, or former adjudication.5 First, a motion for postconviction relief exceeds time limitations if it is filed more than one year after the conviction becomes final.6 In this case, your conviction became final far more than a year ago. Therefore, consideration of the Motion would normally be barred by the one-year limitation.
Second, second or subsequent motions for postconviction relief are not permitted unless certain conditions are satisfied.7 Since this is your second motion for postconviction relief, consideration of the Motion would normally be barred.
Third, grounds for relief “not asserted in the proceedings leading to the judgment of conviction” are barred unless certain conditions are satisfied.8 You assert some new claims which were not raised at trial. Therefore, consideration of the Motion would normally be barred for “matters not asserted” below.
Fourth, grounds for relief formerly adjudicated in the case, including “proceedings leading to the judgment of conviction, in an appeal, in a post-conviction proceeding, or in a federal habeas corpus hearing” are barred.9 Your claim that you are being unlawfully held in a “miscarriage of justice” was formerly adjudicated in
5 Super. Ct. Crim. R. 61(i). 6 Super. Ct. Crim. R. 61(i)(1). 7 Super. Ct. Crim. R. 61(i)(2). 8 Super. Ct. Crim. R. 61(i)(3). 9 Super. Ct. Crim. R. 61(i)(4).
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your prior Rule 61 Motion. Therefore, consideration of the Motion would normally be barred for “matters formerly adjudicated.”
Under Rule 61, however, none of these four procedural bars applies 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.” [Emphasis supplied.]10 Similarly, Rule 61 provides in pertinent part:
“A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion … 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.” [Emphasis supplied.]11
Generally, the law favors the finality of criminal judgments after the exhaustion of applicable post-trial motions, appeals and collateral proceedings. In this case, you have exhausted your remedies of a direct appeal to the Delaware Supreme Court, a first motion for postconviction relief in this Court, and petition for a writ of habeas corpus in the United States District Court for the District of Delaware. There is an exception, however, on public policy grounds where there is particular new evidence that creates a strong inference that you are actually innocent in fact of the acts underlying the charges of which you were convicted. You should not be denied the
10 Super. Ct. Crim. R. 61(i)(5).
11 Super. Ct. Crim. R. 61(d)(2)(i).
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right to prove your actual innocence based on new facts. That being said, the bar for creating a strong inference in my mind that you are actually innocent of the offenses of which you were convicted by a jury is quite high. A mere assertion of actual innocence will not suffice. Innocence of the “acts underlying the charges” requires “more than innocence of intent; it requires new evidence that a person other than the petitioner committed the crime.”12 ACTUAL INNOCENCE IN FACT
You cite as authority for my granting your Motion Purnell v. State,13 which addresses actual innocence in fact. In Purnell, the Supreme Court found that certain critical evidence was not obtained or presented by trial counsel at trial. The Supreme Court found that this evidence was “new” under the language of Rule 61 and included: ballistic evidence that favored the defendant; a recantation of a statement by a fellow inmate of the defendant that the defendant had confessed to the offense while they were both in jail; evidence inculpating two witnesses who testified against the defendant at trial (including a former client of trial counsel and the defendant’s fellow inmate who recanted); impeachment evidence from the parents of the co- defendant who testified against the defendant at trial; and, impeachment evidence
12 State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 28, 2018), aff'd, 206 A.3d 825 (Del. 2019) (Table). 13 254 A.3d 1053 (Del. 2021).
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that was not raised on cross-examination of a key government witness due to trial counsel’s conflict of interest. The Court stated:
We observe that legitimate claims of actual innocence are exceedingly rare. Indeed, this is the first case where a defendant has satisfied the actual innocence exception to the procedural bars in Rule 61. Because they are so rare, the actual innocence exception, in our view, poses no threat to our State's interest in finality. We believe the result in this case strikes the appropriate balance between our justice system's interests in “finality, comity and conservation of judicial resources, and the overriding individual interest in doing justice in the ‘extraordinary case.’”14
The United States Supreme Court has also stated that findings of actual innocence in federal habeas corpus cases are reserved for the “rare” or “extraordinary” case.15 The Applicable Persuasive Burden In Purnell, the Delaware Supreme Court analyzed the applicable persuasive burden for a claim of actual innocence in fact and concluded that the defendant must satisfy a two-pronged test: he must establish that his evidence is both (1) new and (2) sufficiently persuasive.
Federal Habeas Corpus
Federal courts employ an analogous doctrine for “actual innocence” in analyzing habeas corpus claims. In those cases, Schlup v. Delo16 and its progeny,
14 2021 WL 2470511, at *55. [Footnotes and Citations Omitted]
15 Schlup v. Delo, 513 U.S. 298, 321 (1995).
16 Id.
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“actual innocence” constitutes an equitable exception to procedural barriers to a habeas petition set forth in federal statute that are analogous to Rule 61's procedural bars.17 Schlup was concerned with cases where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.”18 Envisioning a test in which a petitioner is “required to make a stronger showing than that needed to establish prejudice,” the Schlup Court established this formulation: “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”19 Federal habeas petitions are “gateway innocence claims” because satisfying Schlup permits a federal court to review the petitioner's grounds for relief despite an unexcused procedural default, even though the Supreme Court has “strongly suggested” that proof of actual innocence is not itself a ground for relief.20 As the Schlup Court explained:
[I]f a petitioner … presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.21
17 McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013). 18 Schlup, 513 U.S. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
19 Id. 20 Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (citing Herrera v. Collins, 506 U.S. 390, 400 (1993); see also House v. Bell, 547 U.S. 518, 555 (2006). 21 Schlup, 513 U.S. at 316.
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Delaware Rule 61
After the 2014 amendments to Rule 61, the Superior Court in Sykes v. State22 noted a dearth of Delaware authorities on what constitutes “new” evidence for purposes of the Delaware postconviction remedy, and so it relied on federal cases analyzing Schlup's actual innocence test for the “newness” prong.23 In subsequent cases, the Superior Court has relied on Schlup's formulation for the “persuasiveness” prong as well,24 or for both prongs of the actual innocence inquiry.25 In Purnell, both the State and the defendant argued for a three-prong test to govern both the newness and persuasiveness prongs of the actual innocence exception, requiring a showing: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial and could not have been discovered before by the exercise of due diligence; and (3) that it is not merely cumulative or impeaching. This three-part test is the standard for a
22 2017 WL 6205776 (Del. Super. Dec. 7, 2017), aff'd, 195 A.3d 780 (Del. 2018) (Table). 23 2017 WL 6205776, at *5 (“Nonetheless, the federal standard is helpful under these circumstances, as the Court has found little guidance for interpreting the precise meaning of new evidence in relation to a claim of actual innocence pursuant to Rule 61(d)(2)(i).”), aff'd, 195 A.3d 780 (Del. 2018) (Table). 24 State v. Abbatiello, 2020 WL 1847477, at *3 (Del. Super. Apr. 8, 2020), aff'd, 244 A.3d 682 (Del. 2020) (Table); State v. Windsor, 2018 WL 3492764, at *2 (Del. Super. Jul. 19, 2018), aff'd, 202 A.3d 1126 (Del. 2019) (Table), cert. denied, ____U.S. ____, 140 S. Ct. 201, 205 L.Ed.2d 103 (2019). 25 State v. White, 2018 WL 6131897, at *4 (Del. Super. Nov. 21, 2018), aff'd, 208 A.3d 731 (Del.
2019) (Table); State v. Flowers, 2018 WL 1169644, at *1 (Del. Super. Mar. 6, 2018), aff'd, 191 A.3d 291 (Del.) (Table); White v. State, 208 A.3d 731, 2019 WL 1529654, at *1 (Del. Apr. 8, 2019) (Table); Phlipot v. State, 169 A.3d 351, 2017 WL 3014434, at *1 (Del. July 14, 2017) (Table).
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new trial based on newly discovered evidence under Superior Court Criminal Rule 33 established by the Delaware Supreme Court in Lloyd v. State.26 Another Delaware Supreme Court case, Downes v. State,27 held that the Lloyd standard for obtaining a new trial on the basis of new evidence showing actual innocence was an available form of postconviction relief under Rule 61.28 Purnell adopts the Lloyd line of cases to analyze actual innocence claims based on new evidence under Rule 61, but telescopes the three Lloyd standards down to two. It states that, of the three elements of a Lloyd claim, the second relates to newness, while the first and third relate to persuasiveness. On both newness and persuasiveness, Purnell states that the Lloyd line of cases in Delaware substantially aligns with Schlup and its progeny at the federal level.
Newness
Regarding the newness prong, Lloyd holds that evidence is new where it was “discovered since trial, and the circumstances must be such as to indicate that it could not have been discovered before trial with due diligence.”29 Such evidence is “new” in federal courts applying Schlup as well.30
26 534 A.2d 1262, 1267 (Del. 1987) (citing State v. Lynch, 128 A. 565, 568 (Del. Oyer & Term. 1925)). 27 771 A.2d 289 (Del 2001). 28 771 A.2d at 292. 29 Lloyd, 534 A.2d at 1267. 30 Carter v. Pierce, 196 F.Supp.3d 447, 454–55 (D. Del. 2016); Houck v. Stickman, 625 F.3d 88, 93–94 (3d Cir. 2010); Reeves v. Fayette SCI, 897 F.3d 154, 164 (3d Cir. 2018), cert. denied, ___U.S. ____, 139 S. Ct. 2713, 204 L.Ed.2d 1123 (2019).
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Persuasiveness
Regarding the persuasiveness prong, Lloyd and Schlup articulate the same standard although they use somewhat different language. As the Schlup Court explained, the persuasiveness of an innocence claim requires the Court to make “a probabilistic determination about what reasonable, properly instructed jurors would do.”31 It stressed that the Schlup inquiry is about what a reasonable trier of fact is likely to do, not merely what it was empowered to do.32 Schlup requires a petitioner to show that the lack of the new evidence caused more than mere prejudice, meaning more than simply “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”33 Lloyd's burden of persuasiveness is that the new evidence “would have probably changed the result if presented to the jury,”34 and in Downes and subsequent cases the burden of persuasiveness is that the new evidence “will probably change the result if a new trial is granted.”35 The Lloyd line of cases consistently requires a movant to show that the evidence will probably change the result -- meaning that the necessary showing is substantially more than the mere
31 513 U.S. at 329. 32 Id. at 330. 33 Schlup, 513 U.S. at 332–33 (O'Connor, J., concurring).
34 534 A.2d at 1267 (emphasis added).
35 771 A.2d at 291 (emphasis added); Gattis v. State, 955 A.2d 1276, 1291 (Del. 2008).
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“reasonable probability” necessary to show prejudice. Thus, the Schlup and Lloyd standards are substantively the same.
The third element of the Lloyd test, specifying that actual innocence cannot be satisfied by evidence which is “merely cumulative or impeaching,” is also similar to Schlup's test.36 This element embodies the principle that a body of new evidence that goes only to the weight or credibility of that which was presented to the jury is almost never adequate to meet the demanding bar for being granted a new trial.37 Generally, to be more than “merely” impeaching or cumulative, new evidence attacking the weight or credibility of a witness's trial evidence attacks the credibility of the witness in the case at bar specifically, rather than impeaching the witness's credibility in general.38 Where impeachment evidence is submitted along with other material evidence, both can operate together to justify relief.39 Federal courts applying Schlup consider the issue similarly: “Mere impeachment evidence is generally not sufficient to satisfy the actual innocence gateway standard.”40
36 534 A.2d at 1267. 37 Mason v. State, 2020 WL 7392348, at *1 n.2, 244 A.3d 681 (Del. Dec. 16, 2020); Taylor v.
State, 180 A.3d 41, 2018 WL 655627, at *1 (Del. Jan. 31, 2018) (Table); State v. Brathwaite, 2017 WL 5054263, at *2 (Del. Super. Oct. 23, 2017), aff'd, 186 A.3d 1240 (Del. 2018). 38 State v. Young, 1982 Del. Super. LEXIS 1062 (Del. Super. Oct. 4, 1982); Hicks v. State, 913 A.2d 1149, 1195 (Del. 2008); Blankenship v. State, 447 A.2d 428, 433 (Del. 1982). 39 Fowler v. State, 194 A.3d 16, 17, 26–27 (Del. 2018). 40 Reeves, 897 F.3d at 161 (alterations omitted) (quoting Munchinski v. Wilson, 694 F.3d 308, 338 (3d Cir. 2012)).
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Because the Delaware Supreme Court found the language of the Schlup standard confusing, in Purnell it chose to rely on its own standard as set forth in Lloyd and Downes. Nevertheless, the Supreme Court continues to find the reasoning of the federal cases applying Schlup useful and persuasive guidance in examining Rule 61 actual innocence claims.
Satisfying the actual innocence test is, by design, a heavy burden, and such meritorious claims are exceedingly rare. Under both Lloyd and Schlup, a defendant must present additional evidence that was not available at trial and would not have been despite the defendant's exercise of due diligence, thus making it “new.”41 That new evidence must speak with such persuasive force as to convince the reviewing court that, when considered in the context of all the relevant evidence by a properly instructed jury, it is such as will probably change the result if a new trial were granted.
Although findings of actual innocence are reserved for the “rare” or “extraordinary” case, the Delaware Supreme Court, for the first and only time, found Purnell to be such a case. However, in my view, your case is not such a rare or extraordinary case. The Motion presents no credible “new” evidence under the
41 See Schlup, 513 U.S. at 324 (“To be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.”).
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“newness” prong of Purnell. Nor does it satisfy the “persuasiveness” prong of Purnell.42 The gravamen of your Motion is that your lawyer was ineffective. The supporting facts you present are not “new” evidence. Even if your evidence were “new,” you have not shown a reasonable probability that the jury would have had a reasonable doubt respecting your guilt. The other evidence of your guilt is significant.
As discussed above, you have not demonstrated with particularity that new evidence exists that creates a strong inference that you are actually innocent in fact of the acts underlying the charges of which you were convicted. Thus, the four procedural bars to relief under Rule 61 apply, and you have failed to overcome those procedural bars. Therefore, your Rule 61 Motion is summarily DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/ Craig A. Karsnitz
cc: Prothonotary’s Office Department of Justice
42 See Evans v. State, __ A.3d __, 2022 WL 2234980 (Del. June 15, 2022).