State v. Peters

• Court: Superior Court of Delaware
• Decided: September 30, 2022
• Docket: 1801006136A & B
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID No. 1801006136A & B ) Cr. A. Nos. IN18-01-0862, 03-1259-60 DONMIER S. PETERS, ) Defendant. )

Submitted: June 22, 2022 Decided: September 30, 2022

OPINION AND ORDER

Upon Defendant Donmier Peters’ Motion for Postconviction Relief, DENIED.

Allison J. Abessinio, Esquire, Erik C. Towne, Esquire, Deputy Attorneys General, DEPARTMENT OF JUSTICE, Wilmington, Delaware, for the State of Delaware.

Patrick J. Collins, Esquire, COLLINS & PRICE, Wilmington, Delaware, for Mr. Peters.

WALLACE, J. Donmier Peters has filed a motion under Superior Court Criminal Rule 61

seeking postconviction relief. Mr. Peters’ chief complaint is that trial counsel

allegedly rendered ineffective assistance, in numerous ways, by: (a) failing to file a

motion to suppress Mr. Peters’ statements to the police; (b) failing to conduct an

effective cross-examination of a witness; (c) failing to seek reinstatement of a

previously rejected plea offer; and (d) failing to oppose a habitual sentencing

motion.1 For the reasons below, Mr. Peters’ motion for postconviction relief is

DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. THE JANUARY 2018 STABBING AND INITIAL INVESTIGATION

At about 11:00 a.m. on January 13, 2018, Corporal Robert Steele, along with

other officers of the Wilmington Police Department (“WPD”) were sent to the

700 block of Warner Street in response to a reported stabbing. 2 When Cpl. Steele

got there, he saw Derrick Edwards “sitting on the step holding his hands up near his

throat and a massive amount of blood coming from his throat down his sweatshirt.”3

1 Def.’s Mot. for Postconviction Relief at 19, 43, 50, 58, State v. Donmier Peters, ID No. 1801006136A (Del. Super. Ct. Feb. 24, 2020) (D.I. 68). Mr. Peters’ Possession of a Deadly Weapon by a Person Prohibited charge was bifurcated from his other charges resulting in two case identification numbers. ID Nos. 1801006136A & B. The Court will cite to the docket for ID No. 1801006136A unless otherwise stated. 2 Appendix to Def.’s Mot. for Postconviction Relief (“Def.’s App.”) at A248-A249, Feb. 24, 2020 (D.I.s 69 & 70). 3 Id. at A251. While on the street, Cpl. Steele could only see two wounds. The forensic nurse at Christiana Hospital later informed him that Mr. Edwards actually had three: “two to the upper -1- Mr. Edwards told Cpl. Steele and other officers that he had been stabbed around the

corner, and mentioned a “funeral home.”4

After ensuring Mr. Edwards received immediate medical attention, the police

began to search for Mr. Edwards’ assailant and for evidence of where the event took

place.5 On the north side of a nearby funeral home there is an alleyway that also

functions as a driveway; it parallels the walkway behind the 1200 block of Sycamore

Street.6 WPD Master Corporal Joshua Wilkers saw “a couple drops of blood” at the

beginning of that walkway and looked for more drops of blood in the alleyway.7 As

M/Cpl. Wilkers continued down the alleyway he found more blood on the ground,

specifically in the rear of 1210 Sycamore Street.8 Along the walkway,

M/Cpl. Wilkers found more drops of blood and bags of heroin.9 The officer also

saw a hat in the alleyway that he believed looked as if it had been recently dropped

there.10

As he travelled on, M/Cpl. Wilkers saw that in the rear yard of 1210 Sycamore

chest/neck area, and one to the left side of the neck.” Id. at A254, A263. In total, Mr. Edwards suffered “seven incised wounds with five of them being to his neck and throat.” Id. at A323. 4 Id. at A254, A329. 5 See id. at A328-A332. 6 Id. at A331. 7 Id. at A332. 8 Id. at A333. 9 Id. 10 Id. at A336.

-2- Street there was flipped-over furniture, a chair with a spot of wet blood, and a “pole

with a knife on the end of it.”11

While M/Cpl. Wilkers was searching the area, a man—later identified as Ted

Chapman—who was in the 1210 Sycamore Street residence, opened his door near

the alleyway and rear yard to ask the officer what was happening.12 M/Cpl. Wilkers

placed Mr. Chapman in custody because M/Cpl. Wilkers saw blood in the kitchen

behind Mr. Chapman, blood on the door handle, and what looked like blood on

Mr. Chapman’s hands.13 The officer then “entered . . . and cleared the residence to

see if there w[ere] any more possible victims in the house or anybody injured.”14

The house was secured while the police obtained a warrant to search it.15

After receiving the warrant, the police searched 1210 Sycamore Street.16

When doing so they saw blood on the bathroom door and doorknob.17 In the kitchen,

the police found a bloodied dish rag hanging from the sink.18 Moving further into

the house, the police found a blue and white plaid shirt that appeared to have dried

11 Id. at A338. 12 Id. at A341-A342. 13 Id. at A342. 14 Id. at A343. 15 Id. at A343, A392. 16 Id. at A392. 17 Id. at A393-A394. 18 Id. at A396.

-3- blood on it.19 The police then moved on to the bedroom and found a “folding buck

knife with a 4-inch blade”—the weapon they deduced had been used to injure

Mr. Edwards.20

When police interviewed Mr. Chapman, the owner of the 1210 Sycamore

Street residence, he gave the police a description of the suspect as “a black male with

a short beard” wearing “a blue hoodie, black pants, and [what Mr. Chapman believed

were] Air Force One white Nike sneakers.”21 Mr. Chapman said he knew the suspect

as “Lucky.”22 When the detectives showed him a photo lineup, Mr. Chapman

identified Donmier Peters as Mr. Edwards’ assailant.23 Mr. Chapman told police

that “Lucky” (Mr. Peters) was calling him multiple times during the course of his

January 13th police interview.24

B. MR. PETERS’ ARREST AND QUESTIONING

Further investigation took the police to the 800 block of Wilmington’s North

Harrison Street the next day.25 Upon reaching the residences there, the police

19 Id. at A397-A398. 20 Id. at A400-A402. 21 Id. at A514-A515. 22 Id. 23 Id. at A209-A210, A518. 24 Id. at A209, A519. 25 Id. at A441.

-4- identified and arrested Mr. Peters.26 During his arrest the police noticed Mr. Peters’

hand was bandaged and in need of medical attention.27 When later searching his

room at the North Harrison residence,28 the police found white Nike sneakers and

black sweatpants that matched Mr. Chapman’s description of what Mr. Peters was

wearing during the altercation with Mr. Edwards.29

After his arrest, the police brought Mr. Peters to the WPD’s Criminal

Investigation Division and interviewed him there.30 Detectives read Mr. Peters his

Miranda rights and when asked whether Mr. Peters understood his rights and wished

to speak with the detectives, Mr. Peters, without hesitation, told them: “I was

defending myself.”31 The detectives asked again whether Mr. Peters wanted to speak

with them and he replied: “Yes.”32 According to Mr. Peters, both he and

Mr. Edwards had knives and he stabbed Mr. Edwards in self-defense.33 At one point

during the interview, Mr. Peters asked to speak with a lawyer and detectives asked

26 Id. at A442. 27 Id. at A469-A470. 28 This search of Mr. Peters’ room was done with his consent. Id. at A448-A449, A469. 29 See id. at A449-A450. 30 See id. at A25-A26. 31 Id. at A26. 32 Id. 33 Id. at A30, A33. Mr. Peters stated in the interrogation he was willing to take a lie detector test to prove his self-defense claim. Id. at A36.

-5- if they could obtain a few more answers before calling a lawyer.34 Mr. Peters

agreed.35 Thereafter, Mr. Peters said that he had purchased the knife he used from

Mr. Chapman.36 He again requested to speak to a lawyer, but continued to answer

the detectives’ questions.37 Mr. Peters insisted that he “did not intend for it to go

that way.”38 Specifically, while Mr. Peters maintained that he was acting in self-

defense, Mr. Peters said that he had brandished his knife to intimidate

Mr. Edwards:39

Mr. Peters: But I did not intend for it to go that way. You see, man? Detective: I understand. I get it. Mr. Peters: I just wanted to intimidate him. Detective: You know how many times you’ve said that? Mr. Peters: You see what I’m saying? I just wanted to intimidate. Detective: You know how many times you said you didn’t think it was gonna go this way? Mr. Peters: I didn’t think that he was gonna actually grab for my—my situation.

34 Id. at A40. 35 Id. at A40. 36 Id. at A45. While initially stating that he had bought the knife from Mr. Chapman a week before the altercation, Mr. Peters later testified at trial that the knife was Mr. Chapman’s and that he had lied to protect Mr. Chapman from being a potential accessory. Id. at A774. 37 Id. at A48-A49. According to Mr. Peters, some of this recording, including his requests for counsel, were redacted from what was played to the jury. Mot. for Postconviction Relief at 38 n.174. The parties have now relied on the full transcript of the January 14, 2018 custodial interview, including Mr. Peters’ requests for counsel. See Def.’s App. at A1172-A1202. 38 Def.’s App. at A52. 39 Id.

-6- Detective: It makes sense.

Mr. Peters: And then all of this come into play. I just brought it out there. It was long enough for it to stick out of my pocket to intimidate. And.

Mr. Peters also told the police that he threw away his sweatshirt in a nearby

dumpster; the police couldn’t locate that sweatshirt.40 After the interview, detectives

drove Mr. Peters to the hospital to have his hand examined.41

While on their way to the hospital, Mr. Peters said, without prompting: “[H]e

didn’t have a knife.”42 The police believed Mr. Peters to be referring to

Mr. Edwards.43 Later, at the hospital, the police recorded Mr. Peters saying: “[H]e

had it, I seen it.”44 The police took this, too, to be Mr. Peters speaking of

Mr. Edwards.45

C. MR. PETERS’ TRIAL FOR ATTEMPTED MURDER RESULTS IN A VERDICT OF FIRST-DEGREE ASSAULT.

A grand jury returned an indictment against Mr. Peters, charging him with

Attempted Murder in the First Degree, Possession of a Deadly Weapon During the

40 Id. at A41, A451, A766. 41 Id. at A61. 42 Id. at A477. 43 Id. Det. Mosley turned in his supplemental police report on October 15, 2018, containing that statement. Id. at A74 (“[redacted] did not have a knife . . . .”); Det. Ball also included this statement in his supplemental police report. Id. at A68. 44 Id. at A594. The existence of this police recording wasn’t included in either Detective Mosley’s or Ball’s supplemental police reports. Id. at A595. 45 Id. at A594.

-7- Commission of a Felony (“PDWDCF”), Possession of a Deadly Weapon by a Person

Prohibited (“PDWBPP”), and Tampering with Physical Evidence.46

Mr. Peters’ jury trial was originally slated for November 2018, but was

rescheduled due to medical reasons concerning Mr. Peters.47 The trial then

commenced on January 14, 2019.48 John F. Kirk IV, Esquire represented

Mr. Peters at trial and sentencing.49

The State’s witnesses included Mr. Chapman, Cpl. Steele, M/Cpl. Daniel

Vignola, M/Cpl. Wilkers, and Detectives Brandon Mosley, William Ball, and Jose

Santana—all of whom serve on the WPD—and Forensic Nurse Examiner Nicole

Possenti with the Christiana Care Health System.50 The defense witnesses included

Office of Defense Services criminal investigator Raymond Scott, and Mr. Peters.51

The State’s first witness was Mr. Chapman, who testified that on January 13,

2018, Messrs. Peters and Edwards knocked on his door.52 Mr. Peters entered

Mr. Chapman’s house and asked him for a knife, which Mr. Chapman provided, so

46 Indictment, Mar. 26, 2018 (D.I. 3); Def.’s App. at A22-A24. 47 D.I. 31. 48 D.I. 40. 49 See D.I. 5. 50 Def.’s App. at A123, A274, A368, A508. 51 Id. at A654. 52 Id. at A181, A189-A191.

-8- that Mr. Peters could “cut something.”53 Mr. Chapman then heard “screams from

[his] backyard,” and when he looked over, he saw Messrs. Peters and Edwards

fighting.54 Mr. Chapman saw that Mr. Peters had a knife in his hand and

Mr. Edwards was “trying to block defensively.”55 Mr. Chapman yelled at them and

Mr. Edwards tried to run away but Mr. Peters “stabbed him again in the chest.”56

Mr. Peters then came into Mr. Chapman’s house, “dropped the knife in the sink . . .

and went into the bathroom because . . . he cut his hand.”57 Mr. Chapman rinsed off

the dropped knife and put it next to his bed.58 The police later found this knife in

Mr. Chapman’s bedroom.59 After the altercation, Mr. Peters told Mr. Chapman that

Mr. Edwards was “going to die . . . [since he] got him good in the throat.”60

Mr. Peters also told Mr. Chapman that Mr. Edwards was “f**king with [his]

money.”61

The State called Dets. Ball, Santana, and Mosley to testify. Det. Ball told the

53 Id. at A192-A193. 54 Id. at A194-A195. 55 Id. at A195. 56 Id. at A196. 57 Id. at A201. 58 Id. 59 Id. at A400-A402. 60 Id. at A202. 61 Id.

-9- jury that when the police arrested Mr. Peters, he had an injury on his hand.62

Det. Santana described the police search of Mr. Peters’ room, where they found “a

pair of white sneakers and black sweatpants with a white drawstring, and these were

consistent with what the suspect in this case was supposed to be wearing.”63

Det. Mosley detailed Mr. Peters’ statements during the interrogation.64 And

Det. Ball recounted Mr. Peters’ statements on the drive to Wilmington Hospital,

including Mr. Peters’ statement that Mr. Edwards “didn’t have a knife.”65

After the State rested, the Defense presented its case that included calling

Mr. Scott and Mr. Peters as witnesses.66

Mr. Scott testified that he had interviewed Mr. Chapman about a month after

the January 13, 2018 altercation.67 Mr. Scott said Mr. Chapman denied giving

Mr. Peters a knife and never mentioned anything about owing Mr. Peters money.68

Additionally, Mr. Scott recalled Mr. Chapman saying that when Mr. Peters was at

his Sycamore Street home on January 13th, Mr. Peters asked only if he could use

62 Id. at A469-A470. 63 Id. at A449. 64 Id. at A612. 65 Id. at A477. 66 Id. at A654. 67 Id. at A657. 68 Id. at A659.

-10- Mr. Chapman’s bathroom.69 According to Mr. Scott, Mr. Chapman never described

hearing any yelling outside his residence that day.70

Mr. Scott said he interviewed Mr. Chapman again on March 15, 2018, and

Mr. Chapman’s statements were consistent with his earlier interview.71 Mr. Scott

attempted to interview Mr. Chapman for a third time in August 2018, but couldn’t

locate him.72

Mr. Peters also testified in his own defense.73 Before Mr. Peters testified, the

Court informed him of his constitutional right to testify or not to testify in his own

defense. Mr. Peters understood and took the stand.74

Mr. Peters told the jury that he owed the victim, Mr. Edwards, about $450,

and that Mr. Edwards wanted to collect that debt.75 According to Mr. Peters, after

he told Mr. Edwards he had no money to give, Mr. Edwards grabbed him and made

“outbursts.”76 Then, said Mr. Peters, Mr. Edwards “pulled this weapon out,” a “mini

ice pick”-type weapon, and threatened him by stating “8th and Harrison,” the block

69 Id. at A659-A660. 70 Id. at A660. 71 Id. at A660-A661. 72 Id. at A661. 73 Id. at A702. 74 Id. at A702-A704. 75 Id. at A709-A710. 76 Id. at A711.

-11- Mr. Peters and his mother lived on.77 Mr. Peters said he then told Mr. Edwards that

Mr. Chapman owed him money and they should go to Mr. Chapman’s residence to

get that money for Mr. Edwards.78 During the walk to Mr. Chapman’s residence,

Mr. Peters supposedly got the ice pick-type weapon from Mr. Edwards, and tossed

it on the ground.79 When Mr. Edwards asked for that first weapon back, Mr. Peters

said he didn’t have it, and Mr. Edwards told Mr. Peters he had another weapon (a

screwdriver-type weapon) on him.80

Mr. Peters said he arrived at Mr. Chapman’s house and entered without

Mr. Edwards.81 At Mr. Chapman’s place Mr. Peters could not find money, but didn’t

want to run because Mr. Edwards knew where he lived.82 So he asked Mr. Chapman

for a knife, which Mr. Chapman gave him, and which Mr. Peters put in his pocket.83

Mr. Peters said that when he returned Mr. Edwards was calm at first but then

“lunged” at him with the “small screwdriver looking thing.”84 Mr. Peters claims he

disarmed Mr. Edwards, but then Mr. Edwards grabbed Mr. Peters and the knife in

77 Id. at A714-A715. 78 Id. at A716. 79 Id. at A720-A722. 80 Id. at A723, A746-A747. 81 Id. at A724-A725. 82 Id. at A728-A730. 83 Id. at A735-A738. Mr. Peters said he asked for a knife because Mr. Edwards “was a physical threat.” Id. at A736. 84 Id. at A741-A744, A746-A747.

-12- his right pocket.85 In the ensuing fight, Mr. Edwards bit Mr. Peters’ hand and “bum-

rushed” him into the steps.86 Mr. Peters then stabbed Mr. Edwards with the knife

multiple times, and “headbutt[ed]” Mr. Edwards.87

Mr. Edwards eventually ran away.88 Mr. Peters returned to

Mr. Chapman’s residence and asked him for rubbing alcohol.89 Mr. Peters stated

that both his knife and Mr. Edwards’s ice pick were dropped in the alleyway and

that he returned there later that night to put the weapons and his blood-soaked

sweatshirt in a dumpster.90

The jury found Mr. Peters guilty of Assault First Degree (as a lesser included

offense of the attempted murder), Possession of a Deadly Weapon During the

Commission of a Felony, and Tampering with Physical Evidence.91 Later that same

day, the jury also found Mr. Peters guilty of a single charge of Possession of a Deadly

Weapon by a Person Prohibited—that count had been severed from the others pre-

trial.92

85 Id. at A747-A748. 86 Id. at A750. 87 Id. at A752-A753. 88 Id. at A757. 89 See id. at A761. 90 Id. at A762, A765-A766. This contradicted Mr. Chapman’s testimony. Id. at A201. 91 Id. at A1154, A1156-A1157. 92 Id. at A1167.

-13- D. MR. PETERS’ HABITUAL CRIMINAL SENTENCING AND APPEAL

After the jury verdict, the State moved to have Mr. Peters declared a habitual

criminal offender under 11 Del. C. § 4214(c).93 The Court granted that motion94 and

subsequently imposed a 50-year sentence of imprisonment comprised of two

separate minimum-mandatory terms.95

Mr. Peters appealed his convictions to the Delaware Supreme Court, but later

voluntarily dismissed that appeal.96 He then brought this motion under Rule 61 via

his appointed postconviction counsel.97

II. THE POSTCONVICTION MOTION

A. MR. PETERS’ MOTION CAN BE CONSIDERED ON ITS MERITS.

Delaware courts must consider Criminal Rule 61’s procedural requirements

before addressing any substantive issues.98 The Rule 61 procedural bars are

“timeliness, repetitiveness, procedural default, and former adjudication.”99

Less than a year after his judgment of conviction became final, Mr. Peters

93 Id. at A1215; D.I. 46. 94 Def.’s App. at A1217; D.I. 48. 95 Def.’s App. at A1227. 96 Id. at A1237; D.I. 67. 97 D.I. 68. 98 Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Ct. Sept. 10, 2002). 99 State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (citations omitted).

-14- timely filed his Rule 61 motion.100 This is his first postconviction motion, so it is

not repetitive.101 As all Mr. Peters’ claims for relief allege ineffective assistance of

counsel, which generally cannot be raised on direct appeal, he is neither procedurally

barred from raising them in this collateral proceeding, nor have they been formerly

adjudicated.102

Accordingly, the Court will address the merits of Mr. Peters’ postconviction

claims.

B. MR. PETERS’ POSTCONVICTION CLAIMS

Mr. Peters says his trial counsel provided ineffective assistance by:

(1) [F]ailing to file a motion to suppress Mr. Peters’ statements to police, as Mr. Peters invoked his rights to remain silent and to counsel several times during the interrogation.103 (2) [F]ailing to conduct an effective cross-examination of Theodore Chapman regarding his prior inconsistent statements.104 (3) [F]ail[ing] to seek reinstatement of a previously rejected plea offer after the State provided very late supplemental discovery of a statement allegedly made by Mr. Peters, causing prejudice.105

100 Mr. Peters’ Motion for Postconviction Relief was filed on February 24, 2020. D.I. 68. His sentence was signed and filed on June 26, 2019. D.I. 49. See Super Ct. Crim. R. 61(m)(1). 101 See D.I. 68. 102 Stanford, 2017 WL 2484588, at *3. 103 Mot. for Postconviction Relief at 19; see also Def.’s Suppl. Mot. at 2-5, May 14, 2021 (D.I. 84). 104 Mot. for Postconviction Relief at 43. 105 Id. at 50. Mr. Peters has withdrawn this claim. See Def.’s Suppl. Mot., 6-7 (“the claim that trial counsel should have filed a motion to force the State to reoffer the reject plea is withdrawn.”). The State has no objection to the claim’s withdrawal and did not address the merits in its supplemental response. See State’s Suppl. Resp., Jun. 17, 2021 (D.I. 85).

-15- (4) [F]ailing to oppose the State’s habitual sentencing motion, as Mr. Peters was continuously incarcerated between convictions that formed the basis for the petition, with no opportunity for rehabilitation . . . .106

And he includes a fifth claim that the “cumulative nature of the prejudice in this case

requires postconviction relief . . . .”107

III. APPLICABLE LEGAL STANDARDS

A movant who claims ineffective assistance of counsel must demonstrate that:

(a) his defense counsel’s representation fell below an objective standard of

reasonableness, and (b) there is a reasonable probability that but for counsel’s errors,

the result of the proceeding would have been different.108

There is a strong presumption that counsel’s representation was reasonable,109

and “[i]t is not this Court’s function to second-guess reasonable trial tactics” engaged

by trial counsel.110 Too, one claiming ineffective assistance “must make specific

allegations of how defense counsel’s conduct actually prejudiced the proceedings,

rather than mere allegations of ineffectiveness.”111 A movant must satisfy both

106 Mot. for Postconviction Relief at 58. 107 Id. at 72. 108 Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL 5297709, at *2-3 (Del. Sept. 4, 2015). 109 See Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 110 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002). 111 Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996)).

-16- prongs—deficient attorney performance and resulting prejudice—to succeed in

making an ineffective assistance of counsel claim.112 Failure to do so on either prong

will doom the claim, and the Court need not address the other.

IV. DISCUSSION

A. CLAIM I – THE ABSENCE OF A MOTION TO SUPPRESS

Mr. Peters claims WPD detectives violated his Miranda113 rights and that trial

counsel should have moved to suppress his interrogation as there is a reasonable

likelihood such a motion would have been granted by the Court.114 More

specifically, in his supplemental filings, Mr. Peters maintains that trial counsel was

ineffective by failing to suppress the following three statements: (1) “I was

defending myself;” (2) “I wasn’t honest about everything” . . . “[the victim] didn’t

have a knife;” and, (3) his description of the victim’s weapon as an ice pick or awl.115

By not doing so, says Mr. Peters, trial counsel’s representation was constitutionally

defective.116

112 Strickland, 466 U.S. at 694; 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.” (citation omitted)); State v. Hamby, 2005 WL 914462, at *2 (Del. Super. Ct. Mar. 14, 2005). 113 Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (requiring the police to inform a suspect in custody of certain rights that protect him or her from self-incrimination). 114 Mot. for Postconviction Relief at 36. 115 Def.’s Suppl. Mot. at 2-5. 116 Id.

-17- In order to succeed on his claim, Mr. Peters must show that: (a) his defense

counsel’s representation fell below an objective standard of reasonableness, and (b)

there is a reasonable probability that but for counsel’s errors, the result of his trial

proceeding would have been different.117 Mr. Peters has a “heavy burden” in

proving the first Strickland prong (counsel deficiency) as there is a “strong

presumption that trial counsel’s representation was professionally reasonable.”118

When an attorney makes a strategic choice based on a “thorough investigation of

law and facts” his decisions are “virtually unchallengeable.”119 Moreover, given

Mr. Peters’ self-defense claim and the well-settled principles of Miranda, each of

his now-challenged statements would have been nonetheless admissible. So, trial

counsel could not have been ineffective for failing to try to suppress them.

1. MR. PETERS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS.

After his arrest, the police brought Mr. Peters to the police station for an

interview.120 Detectives read Mr. Peters his Miranda rights and when asked whether

Mr. Peters understood those rights and wished to speak with the detectives,

Mr. Peters without hesitation told them: “I was defending myself.”121 The detectives

117 Strickland, 466 U.S. at 694; see also Alston, 2015 WL 5297709, at *2-3. 118 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (citations omitted). 119 Id. (quotation marks and citations omitted). 120 Def.’s App. at A25-A26. 121 Id. at A26.

-18- asked again whether Mr. Peters wanted to speak with them and he replied: “Yes.”122

Mr. Peters posits this exchange was not a waiver of his Miranda rights.123

And he insists “I was defending myself” should have been suppressed because the

totality of the circumstances surrounding its utterance indicates he “was not fully

aware of the nature of the rights being abandoned and the consequences” thereof

when he said those words.124 Mr. Peters tries to distinguish his statement from that

given in Hubbard v. State, where our Supreme Court found the contested post-

Miranda statements were made knowingly, intelligently, and voluntarily.125

The defendant in Hubbard argued that given the totality of the

circumstances,126 his Miranda waiver was invalid because: (1) the questioning

detective “rapidly” read him his rights; (2) the detective failed to “more affirmatively

ascertain” whether Hubbard was willing to give a statement; and, (3) the questioning

detective failed to properly determine Hubbard’s competency to waive his rights due

122 Id. 123 Def.’s Suppl. Mot. at 2-3. 124 Id. at 3. 125 Id. (citing Hubbard v. State, 16 A.3d 912 (Del. 2011)). 126 The “totality of the circumstances” test was established in Moran v. Burbine, 475 U.S. 412, 421 (1986). To determine whether one has effectively waived his or her Miranda rights, the two- part test requires the waiver to be (1) voluntary, and (2) made with a “full awareness” of the nature of the rights being abandoned as well as the attendant consequences. Id. “Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id. Delaware has adopted this test. See Marine v. State, 607 A.2d 1185, 1195-96 (Del. 1992).

-19- to Hubbard’s alleged intoxication from the previous evening.127 Particularly at issue

there—and the distinction raised by Mr. Peters here—was Hubbard’s response to the

detective’s question as to whether he wanted to talk. When asked, Hubbard blurted:

“Yeah. I was with I was with a girl. Yeah.”128 After considering both his verbal

responses and physical actions, our Supreme Court found Hubbard’s answer a

voluntary Miranda waiver given his responses to “several hundred questions”

thereafter, his express acknowledgement that he understood his rights, his age of

twenty-seven years, and his “significant experience with the criminal justice

system.”129

Here, Mr. Peters advances the same unsuccessful Miranda-waiver arguments

addressed in Hubbard. And here, those arguments are equally unpersuasive. Given

the totality of the circumstances in this case, Mr. Peters’ post-Miranda affirmative

responses to continue with police questioning show a valid waiver of his rights, and

his statement “I was defending myself” followed by an unequivocal “yes” is no

different than the Hubbard scenario.

First, and unlike Hubbard, Mr. Peters doesn’t allege to have been under the

influence of any alcohol or drugs when the statement was made. Second, Mr. Peters

127 Hubbard, 16 A.3d at 914. 128 Id. at 916. 129 Id. at 918-19.

-20- was emphatic in his affirmative responses to speak with the detectives after his

Miranda warnings were given: he instantaneously responded “yes,” and “yes, sir,”

and was immediately forthcoming that he was defending himself.130 Third, though

Mr. Peters was only twenty-one years old, he had significant experience with the

criminal justice system—both as a juvenile and as an adult.131 Prior to the instant

case, Mr. Peters had been arrested no less than thirteen times.132 No doubt many of

those arrests included the receiving of Miranda warnings and the potential for post-

arrest interviews. And, there’s no evidence of any police coercion prompting

Mr. Peters’ responses. Indeed, the detectives clarified with Mr. Peters several times

to insure they were respecting his Miranda rights:

Detective: Having these rights in mind, do you wish to speak with me now? * * * Detective: Hang on before you get started. You just got to tell him yes or no.

* * * Detective: So you wish to talk to me?133

The totality of the circumstances here weighs in favor of a knowing and voluntary

Miranda waiver.

130 Def.’s App. at A26-A27. 131 Id. at A1205-A1211. 132 Id. 133 Id. at A26. Too, there was no Miranda violation when Mr. Peters, spontaneously stated, during his police transport to the hospital, that he “wasn’t honest” about everything and the victim “didn’t have a knife.” Id. at A476-A477, A592.

-21- What’s more, Mr. Peters’ words and actions demonstrate he undoubtedly

understood his Miranda rights—not long after his statement claiming self-defense,

he then asked to speak with a lawyer.134 Though the questioning did not immediately

cease upon his request for counsel—and this lends some weight to a suppression

argument aimed at those additional statements—it is difficult to discern any harm

therefrom as they too are just further protestations of self-defense.135

Mr. Peters’ eventual invocation of his right to counsel and the totality of the

circumstances show that Mr. Peters was aware of the nature of his rights being

abandoned. He knowingly, voluntarily, and intelligently waived his Miranda rights

and his statement “I was defending myself” was properly admissible.

2. MR. PETERS’ STATEMENTS “I WASN’T HONEST ABOUT EVERYTHING,” “HE DIDN’T HAVE A KNIFE,” AND THE WEAPON WAS MORE LIKE “AN ICE PICK” WOULD NOT HAVE BEEN EXCLUDED.

Mr. Peters alleges that had his entire custodial interview been suppressed, his

later, spontaneous statements also would have been excluded.136 According to

134 Id. at A40. When Mr. Peters continued to ask the detectives questions thereafter, the police interrupted him three times to honor his request for counsel. Id. Detective: So you need to speak with a lawyer? * * * Detective: Do you want to do that before we keep talking? * * * Detective: So you don’t want the lawyer until we finish with this? 135 Id. 136 Def.’s Suppl. Mot. at 4.

-22- Mr. Peters, the later statements would have been excluded not because of any

constitutional or statutory violation but because reference to the presence of or

honesty about a knife would have no relevance to the State’s case-in-chief, and so

unfair prejudice would result from these admissions.137 In Mr. Peters’ view, the

admission of these standalone, later statements would only confuse and mislead the

jury.138

At the outset, and as Mr. Peters concedes, even if his entire custodial interview

was suppressed, his later statements aren’t subject to any constitutional challenge.139

“When there is no police interrogation and the Defendant proffers statements

spontaneously, there is deemed to be no custodial interrogation and the statements

are then admissible.”140 At the conclusion of his initial custodial interview, the

interrogating detectives transported Mr. Peters to the hospital for treatment of his

hand injury. Enroute, Mr. Peters spontaneously offered that he wasn’t honest about

everything, and that the victim didn’t have a knife.141 These statements were not the

result of police coercion or questioning but instead were made of his own volition.

Indeed, his statements would have been admissible because they were unprompted,

137 Id. 138 Id. 139 Id. (“Mr. Peters’ alleged utterance in the police car would be admissible if it were not the product of additional police questioning and was truly spontaneous.”). 140 State v. DeAngelo, 2000 WL 305332, at *11 (Del. Super. Ct. Mar. 21, 2000) (citation omitted). 141 Def.’s App. at A592.

-23- spontaneous utterances that were the product of free and deliberate choice.

Accordingly, there is no Miranda violation, nor any constitutional or statutory bar

to use of his statements at trial.

But, suggests Mr. Peters, if the entire police station statement was suppressed,

his later, spontaneous statements would have been irrelevant.142

Relevant evidence is defined as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. To be considered relevant, the purpose for which the evidence is offered must be material and probative.143

Certainly, Mr. Peters can’t be saying that his own admission that the victim was

unarmed when stabbed wouldn’t make a consequential fact in his attempted murder

trial more or less probable. No, it appears Mr. Peters instead is suggesting that this

otherwise relevant admission by him could be excluded on some other basis.

Our rules of evidence permit the Court to exclude otherwise relevant evidence

“if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues or misleading the jury, or by considerations of undue delay,

waste of time or needless presentation of cumulative evidence.”144

To be sure, Mr. Peters’ spontaneous statements are relevant all on their own.

142 Def.’s Suppl. Mot. at 4. 143 Hansley v. State, 104 A.3d 833, 837 (Del. 2014) (quotation marks and citations omitted); see also D.R.E. 401. 144 Hansley, 104 A.3d at 837-38 (quoting D.R.E. 403).

-24- They demonstrate he knew of and was involved in the confrontation with

Mr. Edwards, and they suggest he used self-defense in the physical encounter.145

Mr. Peters’ postconviction counsel believes that he could have kept every self-

incriminatory word uttered by Mr. Peters from the jury and then successfully

pursued an identity/reasonable doubt defense. Fully informed and prepared trial

counsel didn’t think so. And given the strength of the evidence of Mr. Peters

stabbing Mr. Edwards, trial counsel reasonably believed self-defense—which

Mr. Peters had been proclaiming since day one—was the best option.

Trial counsel was not ineffective for failing to suppress the words Mr. Peters

said enroute to the hospital because they were material and probative of his self-

defense claim. He was charged with attempted homicide, and the State surely would

have been able to introduce these statements that evidenced Mr. Peters’ knowledge

of and involvement in that crime. In the face thereof, a claim of self-defense and

Mr. Peters’ statements about the deadly instrument he was protecting himself from

were helpful to the defense. So counsel can hardly be faulted for weighing the

benefit of inclusion versus exclusion and opting to include these statements so as to

forward Mr. Peters’ self-defense claim.

And as Mr. Peters must admit, the trial judge properly found that his statement

145 Def.’s App. at A593-A595.

-25- describing the victim’s weapon as an ice pick or awl rather than a knife was

admissible and relevant.146 Trial counsel was not ineffective for failing to seek

suppression of these statements considering their cumulative, helpful effect on both

Mr. Peters’ defense and the jury’s understanding of the issues.

3. TRIAL COUNSEL MADE A STRATEGIC DECISION NOT TO MOVE TO SUPPRESS THE INTERROGATION AND THIS DECISION WAS PROFESSIONALLY REASONABLE UNDER THE STRICKLAND STANDARD.

Trial counsel did not move to suppress the police station interrogation because

he did not believe any such application had sufficient merit.147 But more

importantly, he recognized the information gleaned from the interrogation was both

harmful and helpful to Mr. Peters.148 Trial counsel saw a potential Miranda issue,149

weighed the positives and negatives of seeking suppression of the interrogation and

decided to not seek suppression.150 It is the type of decision—one reached after a

146 Id. at A569 (“I’m just not satisfied that this ought to be precluded under 801(d)(2). It’s some kind of utterance by the defendant and clearly is at least relevant under 401 and 402.”). 147 Affidavit of John Kirk, Esq. (“Kirk Aff.”) ¶ 1, July 31, 2020 (D.I. 74). See McAllister v. State, 2010 WL 3398949, at *2 (Del. Aug. 30, 2010) (“Because the substantive claim made by [Defendant] is meritless, his attorney cannot be faulted for not having asserted it during the suppression proceedings.”); see also, United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an attorney’s failure to raise a meritless argument.” (citations omitted)). 148 Kirk Aff. ¶ 1. 149 After Detectives read Mr. Peters his Miranda rights and he initially and unequivocally consented to being questioned, Mr. Peters did later ask for a lawyer. When that occurred, the detectives asked if they could ask a few more questions and Mr. Peters consented. Def.’s App. at A26, A40. 150 See Kirk Aff. ¶ 1.

-26- “thorough investigation of law and facts”—that is always strongly presumed

reasonable.151

“[A] lawyer’s performance is constitutionally deficient only if no competent

attorney would have chosen the challenged course of action.”152 It is not the role of

the Court to determine “what the best lawyers would have done . . . [or] even what

most good lawyers would have done.”153 Instead, the Court must determine whether

trial “counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed [to] the defendant by the Sixth Amendment.”154 As this Court

has observed before, not moving to suppress an interrogation in light of a potential

Miranda violation can be a shrewd strategic decision155—particularly where the

defendant can make use of his statement in his own defense.

In State v. Benson, this Court considered a similar postconviction motion.156

Deeming such a decision to forgo a suppression attempt sound strategy, the Court

observed:

First, Petitioner’s statement could have been used at trial as a defense to some of Petitioner’s charges, so seeking suppression of the statement would have been unwise. Second, the ‘he said, she said’ nature of the 151 Hoskins, 102 A.3d at 730 (quotation marks and citations omitted). 152 Green v. State, 238 A.3d 160, 178 (Del. 2020) (citing Premo v. Moore, 562 U.S. 115, 124 (2011)). 153 Id. (alteration in original) (quoting White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992)). 154 Hoskins, 102 A.3d at 730 (quoting Strickland, 466 U.S. at 687). 155 State v. Benson, 2009 WL 406795, at *6 (Del. Super. Ct. Jan. 29, 2009). 156 Id.

-27- case made it very likely that Petitioner would be required to testify in his own defense, and any testimony inconsistent with his statement to the police would have made that statement admissible for impeachment regardless of any Miranda violation.157

Mr. Peters’ trial counsel was aware of a possible Miranda claim.158 But trial

counsel choose against pursuing suppression because Mr. Peters’ statements made

immediately upon arrest supported his trial defense.159 Indeed, admission of those

statements, in counsel’s view, would allow him to obtain a justification jury

instruction without requiring Mr. Peters to testify.160

Mr. Peters—via new counsel—now posits that not moving to suppress the

interrogation gave him “no real choice but to testify.” Not so. The introduction of

the interrogation gave him a real choice to not testify—the self-defense evidence had

already been planted in the State’s case.161

Determining whether trial counsel was wise to or misguided in selecting this

strategy is not the Court’s role. Strickland doesn’t deem trial counsel ineffective for

not pursuing the best or most successful strategy; instead, it requires trial’s counsel

157 Id. (citations omitted). 158 Kirk Aff. ¶ 1. 159 Id. (Trial counsel “did not believe [the Miranda claim] had merit.”). 160 State’s Response to Defendant’s Motion for Post-Conviction Relief (“State’s Resp.”) at 23 n.110, Oct. 30, 2020 (D.I. 75) (“The State concedes that the defendant would have received a justification jury instruction based on the post-arrest interview, even if he did not testify at trial.”). 161 Mot. for Postconviction Relief at 41; see also State’s Resp. at 23 n.110.

-28- be informed by a thorough investigation of law and facts.162 After such an

investigation, Mr. Peters’ trial counsel calculated that because Mr. Peters wanted to

assert a justification claim—indeed, he had plainly claimed self-defense in his very

first words to the police—it made little sense to try to suppress those words.163

Mr. Peters is not able to overcome the strong presumption of reasonableness

afforded to trial counsel’s actions, so he fails under the first Strickland prong.164

But even if Mr. Peters could demonstrate deficient attorney performance on

his Miranda claim, he falls woefully short in demonstrating resultant prejudice. To

succeed there, Mr. Peters must “demonstrate more than a mere ‘conceivable’ chance

of a different result.”165 The “objective inquiry is not mathematically precise” but

there can only be a finding of the required prejudice “when there is a substantial

likelihood—i.e., a meaningful chance—that a different outcome would have

occurred but for counsel’s deficient performance.”166

Mr. Peters alleges that had the interrogation been suppressed, he would not

have had to have argued self-defense and thus he would not have testified.167 Since

162 See Burns v. State, 76 A.3d 780, 788 (Del. 2013); Hoskins, 102 A.3d at 730 (citations omitted). 163 Kirk Aff. ¶ 1; see Benson, 2009 WL 406795, at *6. 164 See Wright, 671 A.2d at 1356; Strickland, 466 U.S. at 694. 165 Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019) (citing Harrington v. Richter, 562 U.S. 86, 112 (2011)). 166 Id. 167 Mot. for Postconviction Relief at 40-41 (“Mr. Peters’ only viable defense was to argue self- defense. Given that strategy, Mr. Peters [had] no real choice but to testify.”).

-29- his trial testimony allowed the State to introduce his past convictions, Mr. Peters

presently believes his decision to testify in his own defense harmed his case.168

Mr. Peters’ post-trial calculation that changing this decision would have led to his

acquittal of all charges—recall, he was convicted only of the lesser felony assault—

is, at best, speculative. His suggestion that such a decision would have undoubtedly

led to acquittal ignores that choosing one course of trial action often precludes other

possibilities.

In Mr. Peters’ hypothetical scenario, without any of his self-incriminatory pre-

trial words, he could choose a different defense in lieu of self-defense.169 Maybe so,

but even taking those other paths could lead to the interrogation’s introduction

should, for instance, Mr. Peters offer inconsistent trial testimony.170 And the State’s

case certainly didn’t rest on Mr. Peters’ interrogation and testimony alone.171 In its

case-in-chief, the State presented: an eyewitness, witnesses to testify to Mr. Peters’

hand injury when he was arrested, clothes found in Mr. Peters’ room matching those

168 Id. 169 See Status Conf. Tr. at 8-9, June 22, 2022 (D.I. 91) (status conference held April 16, 2021). 170 Harris v. New York, 401 U.S. 222, 226 (1971) (“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”); see Michigan v. Harvey, 494 U.S. 344, 353-54 (1990) (extending Harris to custodial statements after defendant asserts Sixth Amendment right to counsel); see also Kansas v. Ventris, 556 U.S. 586, 594 (2009) (holding prior inconsistent statement made in violation of Sixth Amendment right to counsel was admissible to challenge defendant’s inconsistent testimony at trial). 171 See Def.’s App. at A210.

-30- worn during the attack, the knife found at Mr. Chapman’s residence, the crime scene

evidence, and Mr. Peters’ statements to the police outside of the interrogation.172

Assuming the interrogation could have been successfully suppressed,

Mr. Peters would have likely needed to testify in order to obtain a justification jury

instruction; if he did not, and the interrogation was never heard, the jury likely would

not have been given a self-defense instruction.173 Against the weight of eyewitness

testimony and the other evidence, there is a far better chance that the trial outcome

would have been far worse for Mr. Peters.174 Put simply, Mr. Peters has not shown

there is a “meaningful chance” his suppression and trial strategy would have changed

the outcome of his trial.175 And, as Mr. Peters can satisfy neither the first Strickland

prong (counsel deficiency) nor the second Strickland prong (prejudice), this claim

fails.

B. CLAIM II – THE CROSS-EXAMINATION OF THEODORE CHAPMAN

Mr. Peters alleges that his trial counsel failed to effectively cross-examine

Mr. Chapman in light of his inconsistent statements between his interview and trial

172 Id. at A192-A193, A338, A400-A402, A449, A469-A470, A477. 173 See Gutierrez v. State, 842 A.2d 650, 652 (Del. 2004) (“We hold that the evidence presented by a defendant seeking a self-defense instruction is ‘credible’ for purposes of Title 11, Section 303(a) if the defendant’s rendition of events, if taken as true, would entitle him to the instruction.” (emphasis in original)). For Mr. Peters to provide some coherent rendition of the events, absent the interrogation, he needed to testify. See Def.’s App. at A940, A1080. 174 Mr. Peters was charged with attempted murder first degree. See D.I. 3 (Indictment). The jury convicted him of the lesser offense of first-degree assault. Def.’s App. at A1156. 175 Baynum, 211 A.3d at 1084.

-31- testimony.176

While trial counsel may not have conducted his cross-examination with the

same adroitness his postconviction counsel proclaims he could have, trial counsel

nonetheless brought to light a number of inconsistencies in Mr. Chapman’s

testimony.177 Due to difficulties in re-calling Mr. Chapman as a witness, trial

counsel made the decision to present his investigator, Mr. Scott, who had

interviewed Mr. Chapman.178 With Mr. Chapman unavailable to respond, trial

counsel then presented the “numerous inconsistencies” in Mr. Chapman’s

testimony.179 For instance, trial counsel was able to elicit from his own

investigator—and without Mr. Chapman’s contest or contradiction—testimony that

Mr. Chapman had previously reported: that he (Mr. Chapman) did not owe money

to Mr. Peters; that he (Mr. Chapman) did not give a knife to Mr. Peters; and that he

(Mr. Chapman) did not hear yelling at the time of the stabbing.180

Remember, under the settled standards for such claims, Mr. Peters must

establish not only that his trial attorney’s representation fell below an objective

standard of reasonableness, but that actual deficiencies in the attorney’s

176 Mot. for Postconviction Relief at 43-45. 177 Kirk Aff. ¶¶ 4-5. 178 See id. ¶¶ 3-5. 179 Id. ¶¶ 4-5. 180 Def.’s App. at A659-A660.

-32- representation caused him substantial prejudice.181 The prejudice required is defined

as a reasonable probability that but for counsel’s errors, the result of his trial would

have been different.182 And “[t]he likelihood of [that] different result must be

substantial, not just conceivable.”183

Concerning the first necessary showing (deficient performance), review of

Mr. Chapman’s cross-examination evidences trial counsel’s numerous attempts to

impeach him.184 But Mr. Peters’ characterization of his trial attorney’s advocacy as

some abject “failure to impeach [Mr.] Chapman,” is belied by the record.185 Trial

counsel’s alleged failure to ask every question that postconviction counsel now says

he would have asked does nothing to diminish trial counsel’s objectively reasonable

181 Ploof, 75 A.3d at 820-21. 182 Id.; Strickland, 466 U.S. at 693-94. 183 Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Harrington, 562 U.S. at 112); see Strickland, 466 U.S. at 693 (“It is not enough for the [postconviction movant] to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” (citation omitted)). 184 Def.’s App. at A227 (Cross-Examination of Mr. Chapman): Trial Counsel: Okay. You also testified just now that when you went outside you saw on the second stab -- the second, I guess, instance of stabbing, you saw Mr. Peters stab Mr. Edwards in the chest; is that right? Mr. Chapman: Yes. Trial Counsel: Okay. Would it surprise you to know that Mr. Edwards never sustained any wound to his chest? Mr. Chapman: Like I said, he poked him. 185 Mot. for Postconviction Relief at 48-49.

-33- and effective performance.

Mr. Peters’ claim that if only trial counsel had asked the right questions—and

presumably gotten the right answers with no real resistance or explanation—

wholesale acquittal would have occurred also falls far short.186 According to

Mr. Peters, trial counsel’s cross-examination of Mr. Chapman, or purported lack

thereof, caused prejudice as the “case hinged on Chapman’s credibility.”187 But

other than a bald characterization of the State’s case as weak, Mr. Peters has done

little to provide specific evidence of how the trial result—a lesser-offense verdict—

would have changed given some more extensive cross-examination.188

Like most criminal trials, his did not hinge on any one particular piece of

evidence.189 Thus, Mr. Peters’ mere postulation that the outcome of his trial would

have been different with his imagined perfect cross-examination of Mr. Chapman

fails to meet the “meaningful chance” requirement necessary under Strickland.190

186 Id. at 47-48. 187 Id. at 49. 188 See Hamby, 2005 WL 914462, at *3 (“Without specific evidence that the additional cross- examination would have changed the outcome of the trial, [defendant] is unable to meet his burden under Strickland.” (citations omitted)). 189 Def.’s App. at A192-A193, A338, A400-A402, A449, A469-A470, A477. 190 Baynum, 211 A.3d at 1084.

-34- C. CLAIM III – THE HABITUAL CRIMINAL SENTENCING MOTION

Mr. Peters complains that his counsel should have challenged the State’s

habitual criminal sentencing motion and predicts had he done so, that motion would

have failed.

1. MR. PETERS’ PRIORS AND THE STATE’S PETITION

Before Mr. Peters attacked Derrick Edwards and was convicted of the instant

crimes—first-degree assault, PDWDCF, PDWPP, and evidence tampering—he had

already been convicted of three prior felonies. One of those priors, assault in a

detention facility, was classified as a violent felony.191 And so, before his sentencing

in this matter, the State moved to have Mr. Peters declared a habitual criminal under

11 Del. C. § 4214(c) and sentenced consistent therewith.192 The State’s habitual

criminal petition set forth Mr. Peters’ three prior convictions:

• Burglary in the Third Degree. Offense Date: July 25, 2014. Conviction and Sentencing Date: September 9, 2014.

• Escape After Conviction. Offense Date: November 22, 2014. Conviction and Sentencing Date: January 6, 2015.

• Assault in a Detention Facility. Offense Date: February 5, 2015. Conviction and Sentencing Date: March 10, 2016.193 191 Def.’s App. at A1214. See DEL. CODE ANN. tit. 11, § 4201(c) (2017) (classifying assault in a detention facility as a violent felony). 192 Def.’s App. at A1212-A1215 (State’s Habitual Offender Motion). 193 Id.

-35- Under 11 Del. C. § 4214(c), a person who has been convicted of a fourth or

subsequent felony may be declared a habitual criminal.194 When interpreting

§ 4214, our Supreme Court has been unequivocal that, when a procedurally adequate

petition demonstrating the existence of the requisite number of prior felony

convictions is filed—this Court’s declaration of habitual criminal status is not

discretionary.195 Indeed, “where the State initiates the habitual offender process, the

court is limited to granting only the result sought by the State.”196

Mr. Peters’ trial counsel received notice of the State’s petition and determined

he had no good faith basis to challenge it in court.197 And having found that

Mr. Peters had been convicted of three separate, successive, felonies (one of which

was a violent felony), the Court was constrained to declare Mr. Peters a habitual

criminal upon the State’s application and apply § 4214(c) as petitioned.198 So the

Court imposed the required 50-year sentence of imprisonment comprised of two

194 DEL. CODE ANN. tit. 11, § 4214(c) (2017). 195 See Reeder v. State, 2001 WL 355732, at *3 (Del. Mar. 26, 2001) (“We disagree that habitual offender status is discretionary under § 4214.”); Brown v. State, 2020 WL 609646, at *2 (Del. Feb. 7, 2020). 196 Reeder, 2001 WL 355732, at *3 (quoting Kirby v. State, 1998 WL 184492, at *2 (Del. Apr. 13, 1998)); id. (“Simply put, the General Assembly, in enacting § 4214, limited the Superior Court’s sentencing discretion once the State properly initiates the habitual offender status process.”). 197 Def.’s App. at A1221; Kirk Aff. ¶ 8. 198 Reeder, 2001 WL 355732, at *3; Kirby, 1998 WL 184492, at *2.

-36- separate minimum-mandatory terms.199

2. MR. PETERS’ CURRENT CHALLENGE TO HIS § 4214 SENTENCE.

Mr. Peters does not dispute: (1) that he was convicted of three prior felonies;

(2) that there was some gap in time between the sentencing and commission of each

of those three felonies; (3) that one of those prior felonies was statutorily classified

as a violent felony; or, (4) that it had been some three years since sentencing for the

last of those priors and the present assault and weapons convictions.200 Nor has

Mr. Peters ever suggested that there was any procedural or technical defect in the

State’s motion or in his habitual criminal status hearing. His argument now is that

sentencing counsel was constitutionally ineffective for failing to argue that

Mr. Peters might not qualify for sentencing as a habitual criminal because he had not

had “some chance for rehabilitation” between his prior convictions.201

Again, under the well-worn Strickland standard, Mr. Peters carries the burden

of establishing (a) that his sentencing attorney’s representation fell below an

objective standard of reasonableness, and (b) that actual deficiencies in the

attorney’s representation caused him substantial prejudice.202 The necessary

199 Def.’s App. at A1227, A1229-A1235. 200 Mot. for Postconviction Relief at 58, 61-64. 201 Id. at 61-64. 202 See Green, 238 A.3d at 174 (citing Strickland, 466 U.S. at 687-88); see also Harden v. State, 180 A.3d 1037, 1045 (Del. 2018) (applying the Strickland standard to an ineffectiveness-at- sentencing claim).

-37- prejudice must be a reasonable probability that but for counsel’s errors, the result of

his habitual criminal status and sentencing proceeding would have been different.203

And the likelihood of that different result must be substantial not just conceivable.204

3. DELAWARE’S HABITUAL CRIMINAL ACT AND “SOME CHANCE FOR REHABILITATION.”

To get to the nub of Mr. Peters’ specific challenge, one must delve a bit into

our courts’ history of interpreting the Habitual Criminal Act. More particularly, one

must understand from where the phrase “some chance for rehabilitation” came and

what it has come to mean.

Four decades ago, in Hall v. State, the Delaware Supreme Court sought to

provide a definitive interpretation of the Delaware habitual criminal statute’s

predicate-felony requirement.205 The Court noted that § 4214 “does not address

itself to the question [posed there] of whether a single proceeding involving

convictions of two felonies results in a ‘2 times convicted’ status for the offender.”206

To resolve this ambiguity, the Court adopted this reading: to be counted in the three-

strikes habitual criminal equation, a subsequent conviction must have been “on

203 Harden, 180 A.3d at 1045. See also United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (finding prejudice prong satisfied “when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing . . . which would not have occurred but for counsel’s error.” (quoting United States v. Franks, 230 F.3d 811, 815 (5th Cir. 2000)). 204 Green, 238 A.3d at 174 (citation omitted). 205 473 A.2d 352, 356 (Del. 1984). 206 Id.

-38- account of an offense which occurred after sentencing had been imposed for the

[prior] offense.”207

Within months, the Supreme Court addressed the same issue with Delaware’s

four-strike habitual status provision in Buckingham v. State.208 And there the Court

required three separate prior felony convictions “each successive to the other, with

some chance for rehabilitation after each sentencing” before the person could be

declared a habitual criminal under that provision.209

In short, Hall and Buckingham made clear that there must be crime-

conviction-sentence, crime-conviction-sentence sequencing, with no overlap, for

each given felony that is included in the habitual criminal status calculation. And

the Court described that necessary temporal gap as “some chance for rehabilitation

after each sentencing.”210

Since then, much has been said of that rather simple phrase.211 And attempts

207 Id. at 356-57. 208 482 A.2d 327 (Del. 1984). 209 Id. at 330-31. 210 Id. (emphasis added); Hall, 473 A.2d at 357 (suggesting there should be “chances to reform following prior convictions”). 211 On occasion, it is worded an “opportunity to reform” or “opportunity for rehabilitation” which still “simply requires a ‘specified number of separate encounters with the criminal justice system and a corresponding number of chances to reform.’” Payne v. State, 1994 WL 91244, *1 (Del. Mar. 9, 1994) (quoting Buckingham, 482 A.2d at 330). See also Ross v. State, 990 A.2d 424, 430 (Del. 2010) (a non-§ 4214 case that describes the Court’s concern in Hall and Buckingham that if it did not require its therein-adopted sequencing of priors one could be subject to a life sentence as a habitual criminal offender “without having distinct opportunities to reform”).

-39- have been made—always in vain—to expand its meaning. Yet, our courts have,

without fail, understood “some chance for rehabilitation” to mean just one thing—

only that “some period of time must have elapsed between sentencing on the earlier

conviction and the commission of the offense resulting in the later felony

conviction.”212 Indeed, each attempt to engraft any requirement greater than the

mere passing of a moment from the recess of one felony sentencing to an offender’s

decision to commit his next felony has been rejected.213 In doing so, the § 4214

cases have explicated what “some chance for rehabilitation” is not: (i) incarceration

for prior convictions;214 (ii) release from prison between convictions;215 (iii)

participation in a treatment program as a result of or between prior convictions;216

or (iv) that the habitual criminal candidate committed the predicate offenses only

212 Johnson v. Butler, 1995 WL 48368, at *1 (Del. Jan. 30, 1995) (citation omitted); Eaddy v. State, 1996 WL 313499, at *2 (Del. May 30, 1996) (citation omitted); Mayo v. State, 2016 WL 2585885, *2 (Del. Apr. 21, 2016) (citation omitted); State v. Hicks, 2010 WL 3398470, at *4 (Del. Super. Ct. Aug. 17, 2010) (collecting cases) (“There is no set time frame between the preceding conviction and the arrest; some period of time is all that is required.”) (emphasis in original), aff’d 2011 WL 240236 (Del. Jan. 19, 2011). Cf. State v. Yarborough, 2019 WL 4954959, at *2 (Del. Super. Ct. Oct. 2, 2019) (Commissioner’s report and recommendation for postconviction relief denial recounting the sentencing judge’s suggestion that the Court might have had discretion to consider timing and nature of predicate felonies when determining whether “under the present circumstances, Defendant had an adequate opportunity for rehabilitation.”). 213 E.g., Eaddy, 1996 WL 313499, at *1-2 (affirming habitual criminal offender status where the defendant “[w]ithin a matter of hours after his [last felony] sentencing, . . . was arrested on the charges that led to his present convictions and life sentence”). 214 Wehde v. State, 983 A.2d 82, 85-86 (Del. 2009). 215 Payne, 1994 WL 91244, *1. 216 Eaddy, 1996 WL 313499, at *2; Walker v. State, 2011 WL 3904991, at *2 (Del. Sept. 6, 2011).

-40- after he or she reached the age of majority.217

In the face of all this, Mr. Peters seizes on one short passage from one

unsuccessful habitual criminal status challenge where the Supreme Court observed

“our cases do not articulate a bright line, one size fits all, standard for determining

whether any particular defendant had sufficient time to rehabilitate” and went on to

“assume, without deciding, that our case law establishes that there must be some

time span for rehabilitation before a conviction can constitute a predicate offense”

and then suggested the movant’s intervening one-year term of probation would

“satisfy any rational minimum standard.”218 Mr. Peters insists that his predicate

convictions do not satisfy any conceivable rational minimum standard.

4. SOME CLARITY ON JUST WHAT THE SOME “CHANCE” OR “OPPORTUNITY” FOR REHABILITATION OR REFORM REALLY MEANS.

Recall, at its core, this matter is one of statutory interpretation. And as

Mr. Peters concedes, the “some chance for rehabilitation” language is wholly absent

from the habitual criminal statute—it’s really a judicially-created add-on.219 That is

why each attempt to require anything more than just the tick of the clock between

the recess of one’s felony sentencing and his next felonious act has failed.220

217 Vickers v. State, 117 A.3d 516, 520 (Del. 2015). 218 Mot. for Postconviction Relief at 59 (citing Wehde, 983 A.2d at 86) (emphasis added). 219 Postconviction Hr’g Tr. at 9-10, May 25, 2022 (D.I. 92) (hearing held Oct. 14, 2021). 220 See Section IV.C.3 supra.

-41- To be sure there have been some penned and verbal forays by courts speaking

on the Buckingham phrase that could be read to intimate there may be something

more.221 To be sure, one might rightly suggest these have introduced some degree

of uncertainty as to what is actually meant by a habitual criminal candidate’s prior

“chance” or “opportunity” after each earlier conviction.222 And, too, when such lack

of clarity is noticed, a court might be called on to course-correct.223 So, as it appears

this Court is the most recent contributor to this murkiness, it is only fitting that this

Court should state the rule plainly: “Some chance for rehabilitation after each

sentencing” means only that there must be crime-conviction-sentence, crime-

conviction-sentence sequencing, with no overlap, for each given felony that is

included in the habitual criminal status calculation. And there need be no more than

the passing of a moment between the fall of the gavel recessing a prior’s sentencing

hearing and the person’s commission of his next felony to insure there is no overlap.

Why this exacting rule?

221 E.g., Wehde, 983 A.2d at 86; Sammons v. State, 68 A.3d 192, 196 (Del. 2013); Yarborough, 2019 WL 4954959, at *2. 222 Def.’s Second Suppl. Mem. at 3, Oct. 26, 2021 (D.I. 88). 223 See, e.g., Lecates v. State, 987 A.2d 413, 418-19 (Del. 2009) (“[r]ecognizing that our pertinent case law is not entirely clear” on the proper test for constructive possession of a firearm in certain contexts, and “clarify[ing] several points” and “existing inconsistencies” in relevant Delaware law); Reed v. State, 258 A.3d 807, 828-29 (Del. 2021) (“We acknowledge that our decisional law on this point has not been consistent. In order to remedy this problem, we now hold that a criminal defendant’s control of the objectives of the representation prior to sentencing requires that counsel either obey an instruction to file a motion to withdraw a guilty plea, or seek leave to withdraw so that the defendant can file the motion with other counsel or pro se.”).

-42- Well, “this Court’s role is to interpret the statutory language that the General

Assembly actually adopt[ed], even if unclear and explain what [the Court]

ascertain[s] to be the legislative intent without rewriting the statute to fit a particular

policy position.”224 When a questioned statute read as a whole is unambiguous, the

Court must hew as closely to that language as possible by applying the plain, literal

meaning of its words—without embellishment.225 What’s more, the Buckingham

addition is always expressed as requiring just a “chance” or “opportunity.” From

the moment one has the last word of an imposed felony sentence pronounced to her

by her sentencing judge, she has the chance or opportunity to pursue rehabilitation.

Whether she squanders that chance or opportunity by committing a subsequent

felony a few moments or a few years after that proceeding is of no moment for

habitual criminal sentencing.

To say otherwise would encourage Mr. Peters’ pell-mell approach to habitual

criminal sentencings. Under his rule, the sentencing court would evaluate the

224 Taylor v. Diamond State Port Corp., 14 A.3d 536, 542 (Del. 2011) (citation omitted); Pub. Serv. Comm’n of State of Del. v. Wilm. Suburban Water Corp., 467 A.2d 446, 451 (Del. 1983) (“Judges must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override the properly stated legislative will.”); State v. Murray, 158 A.3d 476, 481-82 (Del. Super. Ct. 2017) (citation omitted). 225 Arnold v. State, 49 A.3d 1180, 1183 (Del. 2012) (citing Dennis v. State, 41 A.3d 391, 393 (Del. 2012)); Friends of H. Fletcher Brown Mansion v. City of Wilm., 34 A.3d 1055, 1059 (Del. 2011) (“[T]he meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms.” (alteration in original) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))); Ross, 990 A.2d at 428 (citation omitted).

-43- surrounding circumstances of each predicate conviction and determine whether and

which of the prior conviction(s) should “go away” based on some ill-defined idea of

what one’s rehabilitative chance or opportunity should entail.226

Such a reading presents rather perverse incentives to one considering his next

felony—Do it immediately! Do it when young! Do it in prison! Such clustering of

one’s felony conduct and convictions so that they might not count when determining

habitual criminality is undoubtedly at odds with both legislative intent and what our

courts mean by some chance or opportunity for rehabilitation. That, of course,

would counter the Court’s mandate to eschew statutory interpretations that foster

mischievous or absurd results that could not have been intended.227 At bottom,

adopting Mr. Peters’ approach would require the Court to travel that much further

226 The Court: So do all three of them count as one? Do I count the first and third because there is some reasonable period of time in between. The Court has to have some rule or some set of guidelines for this. And you’re saying, well, it’s basically whatever the particular judge thinks as far as the time and other factors. PCR Counsel: You know, I am kind of saying that, Your Honor. . . . But if Your Honor is asking me specifically which conviction goes away, I would suggest escape after conviction. That’s clearly a person who’s not rehabilitated, but yet continues to commit another felony. And then he’s still not rehabilitated because he’s still in there hitting people in the detention facility. Postconviction Hr’g Tr. at 11-12. 227 See One-Pie Invs., LLC v. Jackson, 43 A.3d 911, 914 (Del. 2012) (“When construing a statute, literal or perceived interpretations which yield mischievous or absurd results are to be avoided.”) (cleaned up); Spielberg v. State, 558 A.2d 291, 293 (Del. 1989) (citation omitted).

-44- from the plain words of Delaware’s habitual criminal statute. And this the Court

will not do.

5. MR. PETERS’ COUNSEL WAS NOT INEFFECTIVE WHEN HE CHOSE A DIFFERENT COURSE THAN THE NOW-PROPOSED NOVEL (BUT ULTIMATELY FUTILE) ATTACK ON HIS CLIENT’S § 4214 ELIGIBILITY.

Mr. Peters alleges here that his sentencing counsel was ineffective for failing

to challenge the State’s motion by saying that his collective prior convictions

couldn’t be used because there was an inadequate “chance” or “opportunity” for

rehabilitation between each conviction.228 Mr. Peters admits that he cannot identify

one Delaware case in which this Court denied a habitual criminal petition because

of a supposed inadequate separation between a prior sentencing and the commission

of a subsequent crime.229 Nonetheless, in his view, “[g]iven the factual

circumstances of the closeness in time of the three predicate offenses, his age at the

time, and the extensive time at Level 4 and Level 5 between the offenses, Mr. Peters

228 Mot. for Postconviction Relief at 61-64. 229 Says Mr. Peters postconviction counsel, “I’m not aware of any, nor is it likely such a ruling would be found in case law.” Def.’s Second Suppl. Mem. at 1. He goes on to posit that this is because “[t]he motion would be denied on the record and then not appealed by the State.” Id. Not likely, given the history of this issue, the volume of case law on it, and the fact that the State is hardly shy about appealing what it believes to be illegal sentences—habitual or other. See, e.g., Reeder, 2001 WL 355732, at *3 (describing State’s successful motion to correct sentence after Court’s misapplication of habitual criminal statute); State v. Petty, 2012 WL 3114759, at *1 (Del. July 31, 2012) (State’s successful appeal of this Court’s failure to apply defendant’s habitual criminal status to his first-degree robbery conviction); State v. Lennon, 2003 WL 1342983, at *1 (Del. Mar. 11, 2003) (State’s successful appeal of this Court’s failure to apply minimum- mandatory sentence). The far more plausible reason is that this Court never has denied a habitual motion for lack of an adequate “chance” or “opportunity” for rehabilitation because of that criterion’s straightforward limited meaning.

-45- did not have the requisite ‘some chance for rehabilitation’ or ‘distinct opportunities

for reform’ that is required before an adult can be declared a habitual offender.”230

In other words, he says, if there never was one before, this is the case where this

Court should have found three separate and properly-sequenced prior felony

convictions wasn’t enough.231

Again, Mr. Peters must prove that (1) his sentencing counsel’s performance

was objectively unreasonable and (2) he was prejudiced as a result.232

As to the first element, “the defendant must show ‘that counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed [to] the

defendant by the Sixth Amendment.’”233 And when examining counsel’s

performance, “a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.”234

More to the point here, Mr. Peters’ counsel cannot be deemed ineffective for

failing to raise novel or explicitly unanswered questions with no real precedential

230 Mot. for Postconviction Relief, at 67. 231 E.g., Postconviction Hr’g Tr. at 10 (Mr. Peters’ own description of the peculiarity of his situation and argument: “I don’t think . . . that this narrowest of windows to defeat an habitual motion exists very frequently. It’s probably rare as the proverbial hen’s teeth.”); id. at 11-12 (speaking to the rarity of this situation and argument); id. at 17. 232 Strickland, 466 U.S. at 687-88, 691-92; Harden, 180 A.3d at 1045. 233 Hoskins v. State, 102 A.3d at 730 (quoting Strickland, 466 U.S. at 687). 234 Strickland, 466 U.S. at 690.

-46- guidance.235 Indeed, “it is well-established that counsel has no duty to anticipate

changes in the law. Nor does counsel have a duty to foresee new developments in

the law which lie in the future.”236 Further, counsel cannot be “ineffective for failing

to make futile arguments.”237

Mr. Peters’ trial counsel could reasonably determine any courtroom challenge,

as now-proposed, would be unsuccessful, if not futile, when similar arguments have

been raised over the last four decades and not one court has subscribed to the

argument that a defendant was not accorded “some chance for rehabilitation” when

his predicate convictions did not overlap.

That said, Mr. Peters’ trial counsel explained that he was hardly complacent

in his pre-hearing efforts to spare his client from habitual criminal sentencing. After

the filing of the State’s motion, trial counsel contacted the Department of Justice’s

State Prosecutor to request reconsideration. It wasn’t granted.238 Indisputably, trial

counsel was aware of the effect of the habitual motion, the potential defenses thereto,

and sought alternatives he thought could be more successful.239

In evaluating an attorney’s performance, a reviewing court should “‘eliminate

235 Lewis v. State, 2022 WL 175771, at *4 (Del. Jan. 20, 2022). 236 Id. 237 State v. Prince, 2022 WL 211704, at *7 (Del. Super. Ct. Jan. 24, 2022) (citing cases). 238 Kirk Aff. ¶ 9. 239 See id. ¶¶ 8-9.

-47- the distorting effects of hindsight,’ ‘reconstruct the circumstances of counsel’s

challenged conduct,’ and ‘evaluate the conduct from counsel’s perspective at the

time.’”240 “If an attorney makes a strategic choice ‘after thorough investigation of

law and facts relevant to plausible options,’ that decision is ‘virtually

unchallengeable.’”241 Just so here.

Trial counsel’s decision not to oppose the motion was not objectively

unreasonable. There was nothing factually for defense counsel to oppose. And the

adverse caselaw was overwhelming. “There can be no Sixth Amendment deprivation

of effective counsel based on an attorney’s failure to raise a meritless argument.”242

In turn, Mr. Peters fails to prove his trial counsel’s performance in the habitual

criminal litigation and sentencing proceeding was objectively unreasonable. He,

therefore, cannot satisfy the first prong of Strickland. And failure to make one or

the other showing under the Strickland test “will render the claim unsuccessful.”243

Even still, Mr. Peters’ sentencing claim also fails to meet the burden under the

second Strickland prong. The necessary prejudice here must be a reasonable

probability that but for counsel’s errors, the result of his habitual criminal status and

240 State v. Flowers, 150 A.3d 276, 282 (Del. 2016) (quoting Strickland, 466 U.S. at 689). 241 Hoskins, 102 A.3d at 730 (quoting Ploof, 75 A.3d at 852). 242 Sanders, 165 F.3d at 253. 243 Hamby, 2005 WL 914462, at *2 (citation omitted).

-48- sentencing proceeding would have been different.244 To carry his prejudice burden

in these circumstances Mr. Peters must prove counsel’s Strickland-level deficient

performance resulted in the application of a specific, demonstrable sentencing

enhancement that would not have occurred but for counsel’s error.245 For all the

reasons explained above Mr. Peters cannot and has not done so here. And this

separate failure also dooms his sentencing claim.246

Put simply, on his sentencing claim Mr. Peters establishes neither that trial

counsel’s performance was deficient because it fell below an objective standard of

reasonableness, nor that he was prejudiced by trial counsel’s performance.

Accordingly, his insistence that his sentence must be vacated because he is not

eligible to be declared a habitual criminal and that he is due resentencing without §

4214(c) enhancement is without merit.

D. CLAIM IV – THE CUMULATIVE PREJUDICE CLAIM.

Lastly, Mr. Peters contends that “[t]he cumulative nature of the prejudice in

this case requires postconviction relief.”247 He posits that the cumulative effect of

his counsel’s supposed errors denied him a fair trial. But, this cumulative prejudice

244 Harden, 180 A.3d at 1045. 245 See Otero, 502 F.3d at 337. 246 Ploof, 75 A.3d at 825 (“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.” (citing Strickland, 466 U.S. at 697)). 247 Mot. for Postconviction Relief at 72.

-49- argument gains no more traction than the others did severally. More directly,

because Mr. Peters has failed on each count to prove that his trial counsel was

deficient and that, but for trial counsel’s performance, the outcome of his trial or

sentencing would have been different, he fails in the aggregate.

The Delaware Supreme Court addressed a similar cumulative effect argument

in Hoskins v. State.248 The Supreme Court utilized a plain error standard of review

and looked for “material defects which are apparent on the face of the record; which

are basic, serious and fundamental in their character, and which clearly deprive an

accused of a substantial right, or which clearly show manifest injustice.”249 Under

this analysis, the Court noted that “none of [the postconviction movant’s] individual

claims of ineffective assistance have merit because of a failure to show prejudice,”

and, consequently, found the movant’s “claim of cumulative error [to be] without

merit.”250 Same here.

Mr. Peters fails to establish prejudice under each of his individual trial and

sentencing performance claims. Therefore, he has not established any due process

violation based on purported cumulative error that would warrant a grant of

postconviction relief.

248 102 A.3d 724, 735 (Del. 2014). 249 Id. (citation omitted). 250 Id.

-50- V. CONCLUSION

Mr. Peters has proved neither the deficient performance by counsel nor the

prejudice required for relief under Strickland. In turn, his three remaining claims—

those challenging the lack of a suppression motion, alleged deficient cross-

examination, and failure to contest the habitual criminal motion at sentencing—gain

him no postconviction relief here. And as each of those individual substantive

claims have failed, the cumulative claim fails also.

Mr. Peters’ Motion for Postconviction Relief is DENIED.

IT IS SO ORDERED.

Paul R. Wallace, Judge Original to Prothonotary

-51-