State v. Miller

• Court: Superior Court of Delaware
• Decided: April 10, 2023
• Docket: 92S05488DI
• Status: Published

Opinion

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

April 10, 2023

Thomas R. Miller SBI# 144108 James T. Vaughn Correctional Center 1181 Paddock Road Smyrna, DE 19977

Re: State of Delaware v. Thomas R. Miller, No. 92-12-0044 – 0045 Sixth Motion for Postconviction Relief (R-6) Motion for a Miscarriage of Justice Motion to New Discovered Evidence (with Appendix and Memorandum of Law)

Dear Mr. Miller:

Your case goes back more than twenty years and involves two trials. Thomas

Barnett and Karl Haller were your trial counsel at the first trial. On June 14, 1993,

you entered a guilty plea to two felony charges: Second Degree Unlawful Sexual

Intercourse and First Degree Burglary.1 However, before sentencing you moved to

withdraw your guilty plea. Your motion was denied. On July 16, 1993, you were

1 Another charge of Unlawful Sexual Intercourse was dismissed, and charges of Unlawful Sexual Penetration and Criminal Trespass resulted in nolle prosequi. sentenced as follows: with respect to Unlawful Sexual Intercourse, twenty years at

Level V, suspended after seventeen years for one year at Level IV work release,

followed by two years at Level II; with respect to First Degree Burglary, ten years

at Level V (to run concurrently), suspended after five years for five years at Level

III probation.

On August 12, 1993, you filed a pro se Rule 61 Petition. This Court appointed

Rosemary Beauregard as postconviction counsel for you. This Court heard the Rule

61 Motion on March 11, 1994, granted it, and allowed you to withdraw your guilty

plea.

Your second jury trial on charges of Second Degree Unlawful Sexual

Intercourse and First Degree Burglary began on May 24, 1994. On May 25, 1994,

the jury convicted you of both charges, and on May 26, 1994, this Court sentenced

you to eight years at Level V for Burglary and life at Level V for Unlawful Sexual

Intercourse. You filed a direct appeal with the Delaware Supreme Court, which

affirmed your conviction on June 1, 1995. Rosemary Beauregard served as your trial

counsel (“Trial Counsel”) in the second trial, and as appellate counsel for your direct

appeal to the Delaware Supreme Court,

Between 1995 and 2017, you filed five pro se Rule 61 Petitions, all of which

were denied, and all the denials were affirmed by the Delaware Supreme Court. On

2 November 4, 2022, you filed your Sixth pro se Rule 61 Petition (the “Petition”),

together with a “Motion to New Discovered Evidence” and a “Motion for a

Miscarriage of Justice,” with an Appendix and Memorandum of Law. You state two

grounds: (1) discovery of new evidence in the rape kit that the State suppressed in

violation of Brady,2 and (2) ineffective assistance of Trial Counsel in failing to

conduct an adequate investigation of the facts and raise these possible defenses. With

respect to the Brady violation, you cite my decision in State v. Jones.3

A threshold issue is whether the Petition is barred under one or more of the

four procedural bars of Rule 61.4 If a procedural bar exists, as a general rule I will

not address the merits of the Petition.5 The Petition can be barred for time

limitations, successive motions, failure to raise claims below, or former

adjudication.6

First, a Petition exceeds time limitations if it is filed more than one year after

the conviction becomes final.7 In this case, your conviction became final far more

2 Brady v. Maryland, 373 U.S. 83 (1963). 3 2019 WL 6726837 (Del. Super. Dec. 11, 2019). 4 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990). 5 Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super. April 28, 2009). 6 Super. Ct. Crim. R. 61(i). 7 Super. Ct. Crim. R. 61(i)(1). 3 than a year ago. Therefore, consideration of the Petition would normally be barred

by the one-year limitation.

Second, second or subsequent petitions are not permitted unless certain

conditions are satisfied.8 Since this is your sixth Petition, consideration of the Petition

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.9 You assert

some new claims which were not raised at trial.10 Therefore, consideration of the

Petition 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.11 Your claim of

ineffective assistance of counsel was formerly adjudicated in your prior Rule 61

motions. Therefore, consideration of the Petition 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

8 Super. Ct. Crim. R. 61(i)(2). 9 Super. Ct. Crim. R. 61(i)(3). 10 For example, you argue for the first time that the trial judge should have sua sponte issued a judgment of acquittal for insufficient evidence to sustain your conviction. 11 Super. Ct. Crim. R. 61(i)(4). 4 inference that the movant is actually innocent in fact of the acts underlying the

charges of which he was convicted.” [Emphasis supplied.]12

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.]13

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 and

five previous motions for postconviction relief in this Court. 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 right to

prove your actual innocence based on new facts. That being said, the bar for creating

a strong inference 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

12 Super. Ct. Crim. R. 61(i)(5). 13 Super. Ct. Crim. R. 61(d)(2)(i). 5 innocence of intent; it requires new evidence that a person other than the petitioner

committed the crime.”14

You cite as authority for my granting your Petition my 2019 decision in State

v. Jones. In that case, I found that the State had an understanding with another

defendant that it would approve his effort to reduce his sentence in exchange for his

testimony against Jones, and that this was not disclosed to the defendant. Under the

most basic requirements of Brady, I found that this arrangement had to be disclosed

to Jones' defense team. Because it was not disclosed, I found Jones' trial to be

fundamentally unfair, and I granted his Rule 61 petition. By contrast, in your case I

find no evidence whatsoever that the State failed to share any information with Trial

Counsel. Certain evidence may not have been contained in the rape kit itself, but it

was adduced elsewhere in your trial. Thus, there was no Brady violation as in Jones.

The Delaware Supreme Court addressed the issue of actual innocence in fact

in the Rule 61 context in Purnell v. State.15 The 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

14 State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 28, 2018), aff'd, 206 A.3d 825 (Del. 2019) (Table). 15 254 A.3d 1053 (Del. 2021). 6 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

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.’”16

In Purnell, the Court also 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.

After the 2014 amendments to Rule 61, the Superior Court in Sykes v. State17

noted a dearth of Delaware authorities on what constitutes “new” evidence for

purposes of the Delaware postconviction remedy, and so it relied on the United

16 2021 WL 2470511, at *55. [Footnotes and Citations Omitted] 17 2017 WL 6205776 (Del. Super. Dec. 7, 2017), aff'd, 195 A.3d 780 (Del. 2018) (Table). 7 States Supreme Court case Schlup v. Delo18 and its federal progeny in analyzing the

“newness” prong.19 In subsequent cases, the Superior Court has relied on Schlup's

formulation for the “persuasiveness” prong as well,20 or for both prongs of the actual

innocence inquiry.21

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

new trial based on newly discovered evidence under Superior Court Criminal Rule

33 established by the Delaware Supreme Court in Lloyd v. State.22 Another

18 513 U.S. at 327 (1986). 19 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). 20 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). 21 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). 22 534 A.2d 1262, 1267 (Del. 1987) (citing State v. Lynch, 128 A. 565, 568 (Del. Oyer & Term. 1925)). 8 Delaware Supreme Court case, Downes v. State,23 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 61.24

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.”25 Such evidence is

“new” in federal courts applying Schlup as well.26

Persuasiveness

Regarding the persuasiveness prong, Lloyd and Schlup articulate the same

standard although they use somewhat different language. As the Schlup Court

23 771 A.2d 289 (Del 2001). 24 771 A.2d at 292. 25 Lloyd, 534 A.2d at 1267. 26 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). 9 explained, the persuasiveness of an innocence claim requires the Court to make “a

probabilistic determination about what reasonable, properly instructed jurors would

do.”27 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.28 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.”29

Lloyd's burden of persuasiveness is that the new evidence “would have

probably changed the result if presented to the jury,”30 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.”31 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

“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

27 513 U.S. at 329. 28 Id. at 330. 29 Schlup, 513 U.S. at 332–33 (O'Connor, J., concurring). 30 534 A.2d at 1267 (emphasis added). 31 771 A.2d at 291 (emphasis added); Gattis v. State, 955 A.2d 1276, 1291 (Del. 2008). 10 to Schlup's test.32 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.33

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.34 Where impeachment evidence is submitted along with other

material evidence, both can operate together to justify relief.35 Federal courts

applying Schlup consider the issue similarly: “Mere impeachment evidence is

generally not sufficient to satisfy the actual innocence gateway standard.”36

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.

32 534 A.2d at 1267. 33 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). 34 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). 35 Fowler v. State, 194 A.3d 16, 17, 26–27 (Del. 2018). 36 Reeves, 897 F.3d at 161 (alterations omitted) (quoting Munchinski v. Wilson, 694 F.3d 308, 338 (3d Cir. 2012)). 11 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.”37 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.

Findings of actual innocence are reserved for the “rare” or “extraordinary”

case, and 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. Your Petition presents no credible “new” evidence under the “newness” prong

of Purnell. Nor does it satisfy the “persuasiveness” prong of Purnell.38

Applying these principles to your case, what you characterize as “new”

evidence with respect to the rape kit is, in my view, simply your self-serving view

of what should or should not have been contained in the rape kit. The information

which you claim was “suppressed” from the rape kit is in fact information that would

37 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.”). 38 See Evans v. State, __ A.3d __, 2022 WL 2234980 (Del. June 15, 2022). 12 have been inappropriate to place in the rape kit. Therefore, what you characterize as

“new” evidence is not new. Facts that go only to the weight or credibility of evidence

do not constitute “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 overwhelming. The “new” evidence does not

speak with such persuasive force as to convince me that, when considered in the

context of all the relevant evidence by a properly instructed jury, it is such as would

probably change the result if a new trial were granted. Your mere assertion of actual

innocence does not suffice. Innocence in fact requires new evidence that a person

other than you committed the crime. I find none of that here.

The gravamen of the second count of your Motion is that your lawyer was

ineffective for failing to raise these matters earlier in the proceedings. Thus, a

fortiori, if the arguments you make in your first count fail, so too does your second

count.

Your Petition for Postconviction Relief is DENIED.

Because the other two motions which you submitted with your Petition, the

“Motion to New Discovered Evidence” and the “Motion for a Miscarriage of

Justice,” together with an Appendix and a Memorandum of Law, are inextricably

related to your Petition, those Motions are also DENIED.

13 IT IS SO ORDERED.

Very truly yours,

/s/ Craig A. Karsnitz

cc: Prothonotary’s Office Department of Justice