Caldwell v. Phelps et al
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 3/15/13. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FRED T. CALDWELL,
PERRY PHELPS, Warden,
and JOSEPH R. BIDEN, III,
Attorney General of the State
) Civ. No.1 0-202-SLR
Mark S. Greenberg. Counsel for petitioner.
Danielle J. Brennan. Deputy Attorney General, Department of Justice, Wilmington,
Delaware. Counsel for respondents.
Petitioner Fred T. Caldwell ("petitioner") is a Delaware inmate in custody at the
James T. Vaughn Correctional Center in Wilmington, Delaware. Presently before the
court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(0.1. 1) For the reasons that follow, the court will dismiss his application.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 25, 2003, petitioner and his cousin, Warner Henry, were
visiting the home of Colleen Thompson in the Rodney Village subdivision south of
Dover, Delaware. See Caldwell v. State, 865 A.2d 521 (Table), 2004 WL 2937673, at
*1 (Del. Dec. 17,2004). At approximately 10:00 p.m., a man petitioner did not
recognize knocked on the front door. When no one answered the front door, the man
began breaking through the back door. Petitioner told Henry to retrieve a handgun that
was located in the house. Petitioner escaped by jumping out a front window and
running across the street. He ran to a nearby house where he called the Delaware
State Police to report the break-in. The intruder entered the house and started beating
Henry, who eventually was able to escape by climbing out the bathroom window. Id. at
The police were notified about the break-in at approximately 10: 15 p.m. Id.
Detective William Porter and Corporal Robert Wallace were assigned to the case. As
Detective Wallace drove through the Rodney Village subdivision looking for the intruder,
he encountered a man running toward him who matched the intruder's description. As
the man approached the police car, Detective Wallace jumped out and grabbed him.
Detective Wallace found a plastic baggie containing what appeared to be crack cocaine
in the man's right front pocket and a scale in the man's left front pocket. The man, who
was later identified as Warner Henry, had a bleeding head wound. Id.
Petitioner telephoned Thompson, who reported that Henry had been hurt and
that the police had found drugs in Henry's pocket. Id. Petitioner agreed to be
interviewed by the police and Thompson drove him to the Delaware State Police Troop
3. Thompson and petitioner arrived at the troop between 12:00 midnight and 12:30 a.m.
At the troop, Detective Porter interviewed petitioner about the incident. During the
interview, which was not videotaped,1 petitioner told Detective Porter that he and Henry
had been out delivering drugs in the Capitol Park areas of Dover earlier the same day.
Petitioner also told Detective Porter that, at the time of the break-in, he had between
$2,000 and $3,000 in cash in his pocket. Caldwell, 2004 WL 2937673, at *1-2.
After hearing about petitioner's drug dealing, Detective Porter contacted two of
the Drug Unit detectives at Troop 3, Donald Boulerice and David Ellingsworth. Id.
Detective Ellingsworth interviewed petitioner during the early morning of June 26, 2002,
with Detective Boulerice videotaping it from another room. During the interview,
petitioner admitted to Detective Ellingsworth that he had given a half ounce of cocaine
to Henry the day before the break-in; that he owned the handgun he told Henry to
retrieve; and that he had $3,000 and four ounces of crack cocaine in his possession at
the time of the break-in. Petitioner also stated that he "moved" one to two kilograms of
cocaine per week.
1The Delaware Supreme Court's decision regarding petitioner's direct appeal asserts
that Detective Porter's interview of petitioner was videotaped; however, Detective
Porter testified that the interview was not videotaped. (D.I. 22, App. to State's Ans. Br.
in Caldwell v. State, No.12,2004 at B-12)
Detective Boulerice interviewed petitioner's cousin, Warner Henry. Id. Henry
told Detective Boulerice that he had some crack cocaine in his possession at the time of
the break-in which he had obtained from petitioner and for which he owed petitioner
$950. Henry also told Detective Boulerice that petitioner sold approximately three
kilograms of cocaine per week. At trial, Henry claimed that what he told Detective
Boulerice during the interview was false. Henry also testified that he pled guilty to
conspiring with petitioner to traffic in cocaine. Id.
Petitioner testified in his own behalf at trial. Id. He acknowledged that he
previously had been convicted of drug trafficking and possession with intent to deliver
illegal drugs, but denied that he was currently a drug dealer. Petitioner claimed that he
had only pretended to be a big time drug dealer in the interview because Detective
Ellingsworth said Henry had sustained potentially fatal injuries and petitioner was
concerned about being charged with Henry's homicide if he did not tell Detective
Ellingsworth what he wanted to hear. See Caldwell, 2004 WL 2937673, at *1-2.
In September 2003, a Delaware Superior Court jury convicted petitioner of
trafficking cocaine, possession with intent to deliver cocaine, and second degree
conspiracy. Id. He was sentenced as an habitual offender to two terms of life
imprisonment, and to an additional two years imprisonment on the conspiracy charge.
Acting pro se, petitioner appealed, and the Delaware Supreme Court affirmed his
convictions on December 17, 2004. Id.
Thereafter, petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which was denied. The
Delaware Supreme Court affirmed thatjuQgment. Caldwell v. State, 991 A.2d 17
(Table), 2010 WL 376902 (Del. Jan. 29, 2010), rearg't den. Mar. 3, 2010.
Petitioner timely filed a § 2254 application in this court. (0.1. 1) The State filed
an answer (0.1. 20), arguing that some of the claims should be dismissed as meritless
and others as procedurally barred from habeas review.
III. GOVERNING LEGAL PRINCIPLES
A. Exhaustion and Procedural Default
A federal court may consider a habeas petition filed by a state prisoner only "on
the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). One prerequisite to federal habeas review is that
a petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. §
2254(b )(1). The exhaustion requirement is grounded on principles of comity to ensure
that state courts have the initial opportunity to review federal constitutional challenges to
state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner
satisfies the exhaustion requirement by "fairly presenting" the substance of the federal
habeas claim to the state's highest court, either on direct appeal or in a post-conviction
proceeding, and in a procedural manner permitting the state courts to consider it on the
merits. See Duncan v. Henry, 513 U.S. 364,365 (1995); Castille v. Peoples, 489 U.S.
346,351 (1989); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
A petitioner's failure to exhaust state remedies will be excused if state procedural
rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d
153,160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although
treated as technically exhausted, such claims are nonetheless procedurally defaulted.
Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly,
if a petitioner presents a habeas claim to the state's highest court, but that court "clearly
and expressly" refuses to review the merits of the claim due to an independent and
adequate state procedural rule, the claim is exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64 (1989).
A federal court cannot review the merits of procedurally defaulted claims unless
the petitioner demonstrates either cause for the procedural default and actual prejudice
resulting therefrom, or that a fundamental miscarriage of justice will result if the court
does not review the claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999);
Coleman v, 501 U.S. at 750-51. To demonstrate cause for a procedural default, a
petitioner must show that "some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S.
478,488 (1986). To demonstrate actual prejudice, a petitioner must show that the
errors during his trial created more than a possibility of prejudice; he must show that the
errors worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions." Id. at 494.
Alternatively, if a petitioner demonstrates that a "constitutional violation has
probably resulted in the conviction of one who is actually innocent," Murray, 477 U.S. at
496, then a federal court can excuse the procedural default and review the claim in
order to prevent a fundamental miscarriage of justice. Edwards
Carpenter, 529 U.S.
446,451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage
of justice exception applies only in extraordinary cases, and actual innocence means
factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623
(1998); Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting
"new reliable evidence - -whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence - - that was not presented at trial,"
showing that no reasonable juror would have voted to find the petitioner guilty beyond a
reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).
B. Standard of Review
If a state's highest court adjudicated a federal habeas claim on the merits, the
federal court must review the claim under the deferential standard contained in 28
U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be
granted if the state court's decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States," or the state court's decision was an unreasonable determination of
the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see
also Williams v. Taylor, 529 U.S. 362,412 (2000); Appel v. Hom, 250 F.3d 203, 210 (3d
Cir. 2001). A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C.
§ 2254(d) if the state court decision finally resolves the claim on the basis of its
substance, rather than on a procedural or some other ground. Thomas v. Hom, 570
F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even "when
a state court's order is unaccompanied by an opinion explaining the reasons relief has
been denied"; as recently explained by the Supreme Court, "it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary." Harrington v. Richter, _ U.S. _, 131
S.Ct. 770, 784-85 (2011).
When reviewing a habeas claim, a federal court must presume that the state
court's determinations offactual issues are correct. 28 U.S.C. § 2254(e)(1). This
presumption of correctness applies to both explicit and implicit findings of fact, and is
only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1);
v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-EI v. Cockrell, 537 U.S.
322,341 (2003)(stating that the clear and convincing standard in § 2254(e)(1) applies to
factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies
to factual decisions).
Petitioner's application presents the following five grounds for relief: (1) the
Superior Court denied petitioner a fair trial by failing to suppress his videotaped
statement to Detective Ellingsworth and by failing to give a missing evidence instruction
regarding that videotape to the jury; (2) petitioner's unrecorded statement to Detective
Porter was taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (3) the
prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by not providing the defense
with petitioner's police statement to Detective Porter; (4) defense counsel provided
ineffective assistance by introducing unredacted preliminary hearing transcripts at trial;
(5) defense counsel provided ineffective assistance by failing to call Demetrius Caldwell
as a defense witness during trial; (6) defense counsel provided ineffective assistance by
failing to object after the trial court did not answer a jury note; and (7) he was denied his
Sixth Amendment right to counsel on direct appeal.
A. Claim One: Failure To Suppress Videotaped Statement
During the trial, defense counsel filed a motion to suppress the introduction of the
videotape of petitioner's police statement to Detective Ellingsworth because it did not
include the exculpatory statements petitioner made during interview breaks. The trial
court denied the motion, and also did not give a missing evidence instruction. Now, in
claim one, petitioner contends that the Superior Court violated his due process right to a
fair trial by failing to suppress the videotaped interview or, alternatively, by failing to give
a misSing evidence instruction. More specifically, petitioner asserts that the State
violated its duty to disclose eXCUlpatory evidence under Brady by failing to preserve the
entire recorded interrogation. Petitioner presented this claim on direct appeal, and the
Delaware Supreme Court denied it as meritless. Therefore, habeas relief will only be
available if that decision was contrary to, or an unreasonable application of, clearly
established federal law.
The relevant background facts are as follows. Detective Ellingsworth interviewed
petitioner on June 26,2002, with Detective Boulerice videotaping the interview from a
separate room. During four "breaks" in the interview, Detective Ellingsworth left the
interview room. Detective Boulerice stopped recording during these breaks, because
nothing was occurring in the interview room and he wanted to save tape and condense
the actual tape length of the interview. The two un-redacted tapes of petitioner's
interview were three and one-half hours long and contained four gaps where the
videotape was stopped and then restarted.
Defense counsel filed a pre-trial motion in limine to exclude the videotaped police
interview pursuant to Lolly v. State, 611 A.2d 956, 959-61 (Del. 1992), contending that
the four gaps on the two videotapes constituted missing evidence that the State was
obligated to preserve. The Superior Court conducted an evidentiary hearing on the
motion in limine. Petitioner testified that, during the four unrecorded gaps in the
interview, he told Detective Ellingsworth that he did not deal drugs; that he did not give
Warner Henry the crack cocaine the State Police recovered from Henry the previous
evening; and that he was simply "pulling [Detective Ellingsworth's] chain" when he said
elsewhere in the interview that he was a contraband drug dealer who had supplied the
crack cocaine to Henry. During the same pre-trial hearing, petitioner testified that his
videotaped incriminatory admissions about being a drug dealer and supplying cocaine
to Henry were fabrications. Petitioner acknowledged his prior convictions for drug
trafficking and first degree burglary, and knew he was facing a potential mandatory life
sentence as an habitual criminal if he had a new felony drug conviction in this case.
Three police witnesses also testified during the evidentiary hearing. Detective
Porter testified about his initial interview of petitioner, which focused on the home
invasion. During this initial unrecorded police interview, petitioner admitted that he and
Warner had delivered drugs the preceding day, and that petitioner had $2000 to $3000
in his pocket when someone broke into Thompson's home and attacked Henry.
Petitioner conjectured that the person who committed the home invasion was looking for
him because of his drug activities.
Detective Ellingsworth testified about his interview of petitioner, which focused on
petitioner's involvement in the drug activities that were mentioned in his first interview
with Detective Porter. According to Detective Ellingsworth, during the interview gaps,
petitioner did not recant his recorded admissions to contraband drug dealing and to
supplying Henry with cocaine. He also testified that petitioner volunteered the
information that the purpose of the home invasion was to find drugs and petitioner.
Finally, Detective Boulerice testified about his method of videotaping, explaining
that he stopped recording the four times that Detective Ellingsworh left the interview
room because nothing was going on.
The Superior Court denied the motion in limine at the conclusion of the
evidentiary hearing, stating, in relevant part,
[t]here has been no evidence to suggest that substantive conversations were
conducted during those gap periods. The Court has to examine the alleged
missing evidence under the Deberry and Hammond analysis. In going through
the analysis, one would look at the type of evidence that is alleged to be missing.
In this case, it is gaps in testimony that is being transcribed, and as the
prosecutor has pointed out, this Court has previously ruled that there is no
requirement that interviews be taped. However, the gaps in the tape are not
tangible, are not tangible evidence as was the case in State versus Lolly. They
are recorded conversations. If no conversations took place and we have all the
players who were present during those conversations present, and the best I can
say from the missing gaps would be information that perhaps [petitioner] denied
the allegations for which he is being charged with. And that is alleged to have
been missing from the tape.
The conduct of the police appears to the Court, although not a - as referred to by
one officer as SOP procedure, but it does seem to be a normal procedure that
the state police follows in taping particularly long conversations where it might be
appropriate to save tape, although I might add that given the length of the
conversation and the gap savings on tape it probably would have been more
bene'ficial to allow the tape run for the amount of tape that was saved. It is
probably insignificant. However, it appears that the interview was not forced or
conducted in a threatening manner, and it was voluntarily participated in by
In order to require a missing evidence instruction, it is clear when you examine
the recent Supreme Court case of White versus State that the evidence must be
indeed missing and that such evidence which is missing must be material to the
party's guilt or innocence. I cannot find that the evidence missing is material to
the party's guilt or innocence given the circumstances of this case.
The significance of the evidence in the context of the total quantum of evidence
available at trial, when one looks at that, we look at the following fact: The
detective has testified that no information was disclosed or discussed other than
nonrelevant information by the interviewing officer. The information may have
been beneficial given the relatively short gaps to simply allow the tape to run, as I
pointed out. But given the short gaps in questioning and the vagueness of the
alleged exculpatory information, I do not find that the - no recorded portions of
the tape would be material to [petitioner's] guilt or innocence, and consequently,
even if a portion was considered to be missing evidence, it does not appear
there does not appear to be any prejudice to [petitioner]. The evidence therefore
will not be excluded on the basis of the motion, nor do I see a requirement at the
present time that the Lolly instruction needs to be given.
(0.1. 22, State's Ans. Br. in Caldwell v. State, No.12, 2004, at 15-16) On direct appeal,
the Delaware Supreme Court affirmed the Superior Court's ruling after concluding that
competent evidence supported the Superior Court's determination that petitioner's claim
of missing evidence was not credible. Caldwell, 2004 WL 2937673, at *2.
The court now turns to the § 2254(d) inquiry required in this proceeding.
Although petitioner cites to Brady as support for claim one, the clearly established
federal law governing petitioner's missing evidence argument is the standard articulated
v. Youngblood, 488 U.S. 51 (1988). In Youngblood, the United States
Supreme Court held that the failure by police to preserve potentially useful evidence is
not a denial of due process of law unless bad faith can be shown. Id. at 57-58.
Potentially useful evidence is "evidentiary material of which no more can be said than
that it could have been subjected to tests, the results of which might have exonerated
the defendant." Id. at 57.
In petitioner's case, the Delaware Supreme Court reviewed and denied the
instant claim under Lolly rather than under Youngblood. Lolly imposes a duty upon the
State to both preserve and gather evidence that may be material to a defendant's guilt
or innocence, whereas Youngblood only imposes a duty to preserve such evidence. Id.
at 960. As a result, in Delaware, a missing evidence instruction may be required when
the State fails to gather evidence, not just when it fails to preserve evidence. 2
Considering that the Delaware Supreme Court applied a stricter standard than the one
articulated in Youngblood, the Delaware Supreme Court's decision was not contrary to
clearly established federal law.
The court also concludes that the Delaware Supreme Court's decision did not
involve an unreasonable application of Youngblood. To begin, given petitioner's failure
to provide clear and convincing evidence to the contrary, the court accepts as correct
the Delaware state courts' determination that petitioner's claim of missing evidence was
not credible. If there was no missing evidence, petitioner's argument that the Superior
Court violated his right to a fair trial by not suppressing the videotape on "missing
evidence" grounds necessarily fails. Moreover, even if the unrecorded four gaps in the
interview could be interpreted as "missing evidence," petitioner has failed to present a
viable due process claim under Youngblood because he has not established that the
police acted in bad faith by failing to tape the four interview breaks. Finally, given the
Superior Court's factual conclusion that petitioner's pre-trial testimony was not credible
and that no exculpatory evidence was missing from the videotaped police evidence, the
Superior Court reasonably concluded that there was no factual or legal basis for a
missing evidence jury instruction. 2 See Deberry, 457 A.2d at 751-52.
21n Delaware, a missing evidence instruction is commonly referred to as a Lolly or
Deberry instruction. See Deberry v. State, 457 A.2d 744 (Del. 1983). A missing
evidence instruction requires "the jury to infer that, had the evidence been preserved [or
gathered], it would have been exculpatory to the defendant." Lunnon v. State, 710 A.2d
197,199 (Del. 1998).
21n Deberry, the Delaware Supreme Court established a bifurcated analysis for
determining the appropriate response to the State's failure to preserve and/or collect the
For all of these reasons, the court will deny claim one in its entirety.
B. Claim Two: Miranda Violation With Respect To First Police Statement
In claim two, petitioner contends that the unrecorded statement he gave to
Detective Porter was taken in violation of his Miranda rights. Petitioner further contends
that both police statements should have been suppressed as a result of the Miranda
violation that occurred during his first statement.
1. Suppression of first statement due to Miranda violation
On post-conviction appeal, the Delaware Supreme Court denied as meritless
petitioner's contention that his unrecorded statement should have been suppressed
because it was taken in violation of his Miranda rights. As a result, the instant argument
will only warrant habeas relief if the Delaware Supreme Court's decision was either
contrary to, or an unreasonable application of, clearly established federal law.
missing evidence in a particular case. The first part of the Deberry analysis involves
asking the following three questions:
(1) if the requested material was in the possession of the State at the time of the
defense request, would it have been subject to disclosure under Criminal Rule 16
or Brady v. Mary/and;
(2) if so, did the State have a duty to preserve the material; and
(3) if there was a duty to preserve the material, was the duty breached, and what
consequences should flow from a breach.
If it is determined that the State breached its duty to collect and preserve evidence, then
the court should proceed to the second part of the analysis to determine the proper
remedy. This portion requires considering:
(1) the degree of negligence or bad faith involved;
(2) the importance of the missing evidence considering the probative value and
reliability of secondary or substitute evidence that remains available; and
(3) the sufficiency of the other evidence produced at trial to sustain the
Deberry, 457 A.2d at 750-52. If, under this analysis, the State failed to preserve or
collect evidence that is material to the defense, the defendant is entitled to a missing
evidence instruction. See McCrey v.State, 941 A.2d 1019 (Table), 2008 WL 187947, at
*2 (Del. Jan. 3, 2008).
The clearly established federal law governing statements given to the police is
the standard articulated in Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the
Supreme Court held that "the prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination." Id. at 444. Pursuant to Miranda, law enforcement officers must warn
a person in custody prior to questioning that he has a right to remain silent, that
anything he says may be used against him as evidence, and that he has a right to
However, the Miranda safeguards "are required not where a suspect is simply
taken into custody, but rather where a suspect in custody is subjected to interrogation."
Rhode Island v. Innis, 446 U.S. 291, 300 (1980). The term "interrogation" includes
express questioning and any words or actions on the part of the police "that the police
should know are reasonably likely to elicit an incriminating response." Id. at 301.
Consequently, an officer cannot be held responsible for an unforeseeable statement by
the suspect. Id. at 301-02.
Here, the Delaware Supreme Court denied the instant claim after determining
that Miranda was not implicated because petitioner was "not being interrogated at the
time he made the incriminating statements to Detective Porter." Caldwell, 2010 WL
376902, at *2. After reviewing the Delaware Supreme Court's decision within the
'framework established by Miranda and its progeny, the court concludes that the
decision involved a reasonable application of clearly established federal law and was
based on a reasonable determination of the facts. For instance, during both the pre-trial
evidentiary hearing and the trial, Detective Porter testified that he interviewed petitioner
as a witness to the home invasion, not as a suspect to a crime. Petitioner knew
Detective Porter was a police officer, yet he volunteered the information about his drug
selling activities as the possible motivation for the home invasion. Petitioner did not
become a suspect until he volunteered the information about his drug selling activity.
Once Detective Porter finished interviewing petitioner about the circumstances
surrounding the home invasion, both he and petitioner took a break; petitioner actually
left the interview room and went to the lobby of the police station. When petitioner
returned to the interview room, Detective Porter was not present; rather, Detective
Ellingsworth was in the room. Detective Ellingsworth then Mirandized petitioner and
questioned petitioner about his drug activity.
Petitioner's opening brief on direct appeal corroborates Detective Porter's
testimony. In his opening briefs statement of facts, petitioner asserts that "he was still a
victim and not considered a suspect in police custody" during his interview with
Detective Porter. (0.1. 22, Appellant's Op. Br. in Caldwell v. State, No. 12,2004, at 6)
He asserts that "[o]nce the drug unit [became] involved [petitioner's] interview with
Detective Porter was over." Id. "Sometime after tl1at, [petitioner] was turned over to
speak with the drug unit. [Petitioner] was then interrogated  [and] once the
interrogation started, the state police made the choice to consider [petitioner] a suspect
instead of a victim." Id. at 6-7. Petitioner also explains that "the drug unit then made
the decision to record that interrogation [with Detective Ellingsworth] on videotape, and
read [petitioner] his Miranda rights so that the recording of that interrogation could be
used against [petitioner] in a court of law." Id.
This record clearly demonstrates that petitioner was Mirandized once his status
as a witness changed to that of a suspect, and that any "interrogation" for the purposes
of Miranda occurred after Detective Ellingsworth informed him of his Miranda rights.
Given these circumstances, the court concludes that the Delaware Supreme Court
reasonably held that there was no Miranda violation with respect to Detective Porter's
interview of petitioner. In turn, if petitioner's Miranda rights were not violated with
respect to Detective Porter's interview, petitioner's argument for suppressing his
statement to Detective Porter necessarily fails. Accordingly, the court will deny this
portion of claim two as meritless.
2. Petitioner's second statement should have been suppressed
because of the Miranda violation that occurred during petitioner's
Relatedly, petitioner contends that the videotaped statement he gave to
Detective Ellingsworth should have been suppressed because of the Miranda violation
associated with his first statement. Having already determined that there was no
Miranda violation with respect to petitioner's first statement, petitioner's argument for
suppressing his second statement fails. Additionally, the court concurs with the State's
contention that petitioner procedurally defaulted this argument by failing to present it to
the Delaware Supreme Court on direct appeal or on post-conviction appeal. The court
also concurs with the State's conclusion that there are no grounds for excusing this
default because petitioner has not demonstrated cause and prejudice, or that a
miscarriage of justice will occur absent review. Accordingly, the court will deny this
portion of claim two as meritless and, alternatively, as procedurally barred.
For all of these reasons, the court will deny claim two in its entirety.
C. Claim Three: Brady Violation
In claim three, petitioner contends the State violated its obligations under Brady
v. Maryland, 373 U.S. 83, 87 (1963), by failing to timely disclose prior to trial the specific
non-recorded inculpatory statement he made to Detective Porter regarding his drug
activity. Pursuant to Brady, "the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
Id. at 87. Exculpatory evidence is material if the "evidence could reasonably be taken to
put the case in such a different light as to undermine confidence in the verdict." Kyles v.
Whitley, 514 U.S. 419, 435 (1995). Here, petitioner's Brady argument is unavailing
because he concedes that the unrecorded statement he gave to Detective Porter in his
first statement was inculpatory, not exculpatory. Accordingly, the court will deny claim
three as meritless.
D. Claims Four and Five: Ineffective Assistance of Counsel
Petitioner presented claims four and five, both of which allege ineffective
assistance of counsel, to the Delaware Supreme Court on post-conviction appeal, and
the Delaware Supreme Court denied the claims as meritless. Therefore, habeas relief
will only be available if the Delaware Supreme Court's decision was contrary to, or an
unreasonable application of, clearly established federal law.
The clearly established Supreme Court precedent governing ineffective
assistance of counsel claims is the two-pronged standard enunciated by Strickland v.
Washington, 466 U.S. 668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510
(2003). Under the first Strickland prong, a petitioner must demonstrate that "counsel's
representation fell below an objective standard of reasonableness," with
reasonableness being judged under professional norms prevailing at the time counsel
rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong,
a petitioner must demonstrate "there is a reasonable probability that, but for counsel's
error the result would have been different." Id. at 687-96. A reasonable probability is a
"probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must
make concrete allegations of actual prejudice and substantiate them or risk summary
dismissal. See Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991); Dooley v.
Petsock, 816 F.2d 885,891-92 (3d Cir. 1987). Although not insurmountable, the
Strickland standard is highly demanding and leads to a "strong presumption that the
representation was professionally reasonable." Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254(d)(1) inquiry, the court notes that the
Delaware Supreme Court correctly identified Strickland as the standard applicable to
claims four and five. Thus, the Delaware Supreme Court's decision was not contrary to
clearly established federal law. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill state
court decision applying the correct legal rule from [Supreme Court] cases to the facts of
a prisoner's case [does] not fit comfortably within § 2254(d)(1)'s 'contrary to' clause").
The court must also determine if the Delaware Supreme Court unreasonably
applied the Strickland standard in denying the instant claims. In claim four, petitioner
asserts that a portion of the preliminary hearing transcript introduced as an exhibit
during trial included improper statements asserting that petitioner's arrest constituted a
violation of petitioner's probation, as well as statements by the preliminary hearing judge
that there was sufficient evidence for the case to proceed to a grand jury. (0.1. 1 at 26)
Petitioner contends that counsel's failure to redact these statements amounted to
constitutionally ineffective assistance of counsel, because the transcript "tipped the
scales" against him. (0.1. 25 at 4) Petitioner's conclusory and unsupported assertion of
prejudice, however, fails to satisfy Stricklands second prong. Therefore, the court
concludes that claim four does not warrant relief.
In claim five, petitioner contends that Demetrius Caldwell would have testified
that the statements Warner Henry made to the police implicating petitioner were false,
thereby supporting Henry's recantation at trial while destroying the credibility of Henry's
statement to the police. Consequently, he asserts that counsel's failure to call
Demetrius Caldwell as a witness amounted to ineffective assistance. Petitioner,
however, has not supported his description of Demetrius' potential testimony with any
documentation or affidavits from Demetrius himself. Thus, because petitioner's
unsupported allegation about the potential content of Demetrius' testimony fails to
satisfy the prejudice prong of Strickland, the court will also deny claim five as meritless.
Accordingly, the court will deny claims four and five for failing to satisfy
E. Claim Six: Procedurally Barred
In claim six, petitioner contends that defense counsel provided ineffective
assistance by failing to object when the trial judge did not answer a jury note asking if
the effect the three-strikes law affected petitioner's case. Petitioner did not exhaust
state remedies for this claim, however, because he did not present it to the Delaware
Supreme Court on post-conviction appeal. At this juncture, any attempt to return to
state court and present the claim in a new Rule 61 motion would be time-barred under
Delaware Superior Court Criminal Rule 61(i)(1), and barred as repetitive under Rule
61 (i)(2). Therefore, the court must treat claim six as procedurally defaulted, meaning
that it cannot review the merits of the claim absent a showing of cause and prejudice.
Petitioner has not alleged, and the court cannot discern, any cause for his
procedural default. Rather, petitioner contends that he raised this issue in argument
eight in his post-conviction filing "in the context of his claim that trial counsel was
ineffective in not asking for a limiting instruction as to how the jury was to consider
petitioner's trial testimony concerning his past criminal history." (0.1. 25 at 16) The
court rejects this argument. Although courts must liberally construe pro se filings,3
expecting the Delaware Supreme Court to interpret petitioner's explicit reference to
counsel's failure to request a limiting instruction as somehow including a claim that
counsel was ineffective for failing to answer a jury note extends well beyond the
parameters of "liberal construction."
In the absence of cause, the court will not address the issue of prejudice.
Additionally, the court concludes that petitioner's default should not be excused under
the miscarriage of justice exception to the procedural default doctrine, because
petitioner has not provided new reliable evidence of his actual innocence.
Accordingly, the court will deny claim six as procedurally barred.
F. Claim Seven: Petitioner Was Denied His Sixth Amendment Right To
Counsel On Direct Appeal
In his final claim, petitioner contends that he was denied his Sixth Amendment
right to counsel on direct appeal because his waiver of the right to be represented by
Estelle v. Gamble, 429 U.S. 97,106 (1976).
counsel was involuntary. Petitioner appears to argue that he only decided to represent
himself on direct appeal because the Delaware state courts refused to provide a new
public defender to represent him on direct appeal. Petitioner presented this claim to the
Delaware Supreme Court on post-conviction appeal, and the Delaware Supreme Court
denied it as meritless after determining that petitioner knowingly and voluntarily waived
his right to counsel. Accordingly, petitioner will only be entitled to relief if that decision
was either contrary to, or an unreasonable application of, clearly established federal
The Sixth Amendment provides that "in all criminal prosecutions, the accused
shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. Const.
amend. VI. 'The plain wording of this [Sixth Amendment] guarantee thus encompasses
counsel's assistance whenever necessary to assure a meaningful defense." United
States v. Wade, 388 U.S. 218, 225 (1967). The right to counsel attaches at all critical
stages in the criminal justice process, including trial and sentencing. See Maine v.
Moulton,474 U.S. 159, 170 (1985); Gardnerv. Florida, 430 U.S. 349, 358 (1997). The
right to counsel is fundamental and does not depend on a request by the defendant.
Gideon v. Wainwright, 372 U.S. 335 (1963); Carnley v. Cochran, 369 U.S. 506, 513
(1962)("where the assistance of counsel is a constitutional requisite, the right to be
furnished one does not depend on a request"). Nevertheless, the right to counsel is not
absolute, and a defendant may lose the right through waiver or forfeiture. Gideon, 372
U.S. 335 (right to counsel may be affirmatively and voluntarily waived); Johnson v.
Zerbst, 304 U.S. 458 (1938)(a defendant's waiver of the right to counsel must be
affirmative and on the record).
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a
criminal defendant has a Sixth Amendment right to represent himself and, therefore,
may affirmatively waive his right to counsel. A criminal defendant's waiver of counsel is
only valid if the defendant is "made aware of the dangers and disadvantages of self
representation, so that the record will establish that he knows what he is doing and his
choice is made with eyes open." Faretta, 422 U.S. at 835. A trial court must ensure
that a defendant's waiver of counsel is knowing, voluntary, and intelligent before
permitting a defendant to proceed pro se. Iowa v. Tovar, 541 U.S. 77, 88 (2004). A
waiver is voluntary if the defendant is "not forced to make a choice between
incompetent counselor appearing pro se." United States v. Tay/or, 113 F.3d 1136,
1140 (10th C ir. 1997).
U[T]he essential aim of the [Sixth] Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer he prefers." Wheat v. United States, 486 U.S.
153,159 (1988). Consequently, the Sixth Amendment right to counsel does not
guarantee a meaningful relationship between a defendant and counsel. Morris v.
Siappy, 461 U.S. 1, 13-14 (1983). Additionally, although a defendant's right to counsel
includes the right to counsel of one's choice, the "right to counsel of choice does not
extend to defendants who require counsel to be appointed for them." United States v.
Gonzalez-Lopez, 548 U.S. 140, 151 (2006). Thus, an indigent defendant requesting
new counsel must show good cause to warrant such substitution. Determining if good
cause exists for substitution of counsel is a factual inquiry, and the defendant must be
given an opportunity to provide the court with the reason for his dissatisfaction. United
States v. Welty, 674 F .2d 185, 190 (3d Cir. 1982).
Good cause for sUbstitution of counsel is defined as a "conflict of interest, a
complete breakdown of communication, or an irreconcilable conflict with the attorney."
United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). A disagreement between
the defendant and defense counsel over legal strategy does not constitute good cause
requiring substitution of counsel, nor does a defendant's unilateral decision not to
cooperate with court appointed counsel. Jd. at 1098-99; United States v. Gibbs, 190
F.3d 188,207 n.1 0 (3d Cir. 1999). A defendant's mere dissatisfaction with counsel also
does not warrant substitution of counsel. See United States v. Moses, 58 Fed. Appx.
549, 555 (3d Cir. Feb. 3, 2003). Finally, if, after performing a proper inquiry, the trial
court determines that good cause for substitution of counsel does not exist, then the
court must "inform the defendant that he can either proceed with current counselor
represent himself." Goldberg, 67 F.3d at 1098.
Here, although the Delaware Supreme Court did not specifically apply United
States Supreme Court precedent and its progeny in holding that the Superior Court had
no basis upon which to deny petitioner his constitutional right to represent himself, the
Delaware cases cited by the Delaware Supreme Court refer to the applicable precedent
and properly articulate the parameters of a defendant's right to self-representation.
Therefore, the court concludes that the Delaware Supreme Court's decision was not
contrary to clearly established federal law. See Fahy v. Hom, 516 F.3d 169, 196 (3d
Cir. 2008)(Supreme Court of Pennsylvania's decision was not "contrary to" clearly
established Federal law because appropriately relied on its own state court cases,
which articulated the proper standard derived from Supreme Court precedent).
The court's inquiry is not over, however, because it must also determine whether
the Delaware Supreme Court's decision involved an unreasonable application of
Supreme Court precedent to petitioner's case. The following facts are relevant to this
inquiry. Defense counsel filed a notice of appeal on January 13, 2004. (D.I. 22)
Petitioner then filed in the Delaware Supreme Court a motion for the
withdrawal/appointment of substitute counsel. (D.I. 22, Defendant's App. to Op. Br. on
Post-Conviction Appeal, Caldwell v. State, NO.53,2009) The Delaware Supreme Court
remanded the matter to the Superior Court for a determination concerning petitioner's
intention to proceed pro se and his competence to make such a request. Id. at A-45 to
A-49. The Superior Court held an evidentiary hearing on the matter on June 3,2004.
During that hearing, the Superior Court determined that petitioner understood he must
either accept representation on appeal by his present court-appointed counselor
proceed pro se. Id. at A-51 to A-55. The Superior Court discussed with petitioner the
reasons for his dissatisfaction with his court-appointed counsel. The Superior Court
noted that. "although [petitioner] understands that an attorney may be able to pursue his
appeal more effectively, he emphatically does not want his present attorney to represent
him. He concludes that since he cannot receive substitute counsel, he has no other
choice but to represent himself." Id. at A-53. After explaining to petitioner the
responsibilities, dangers, and disadvantages of proceeding pro se, the Superior Court
concluded that petitioner made a knowing and voluntary decision to represent himself.
Id. at A-54. More specifically, the Superior Court explained that petitioner "has
evaluated the pros and cons in this decision and  truly believes that he can do a better
job than his court-appointed counsel and will follow the rules of the Supreme Court." Id.
After the Superior Court filed its report with the Delaware Supreme Court,
petitioner filed a motion for the appointment of substitute counsel with the Delaware
'd. at A-57. Because the Superior Court had already informed
petitioner during the hearing that his options were either to represent himself or proceed
on appeal with his current counsel, the clerk of the Delaware Supreme Court wrote
petitioner and directed him to inform the Delaware Supreme COllrt if he wished to
continue on appeal with representation provided by his current court-appointed counsel
or whether he wished to proceed pro se. 'd. The clerk informed petitioner that if he
failed to respond, the Delaware Supreme Court would adopt the Superior Court's report
following remand recommending that petitioner's request to represent himself be
Petitioner responded to this letter by reiterating his request for substitute counsel,
and by unequivocally stating that he did not wish to proceed with his present counsel.
'd. After determining that there was "no just cause for the appointment of substitute
counsel," the Delaware Supreme Court denied petitioner's motion for substitution of
counsel. 'd. Then, adopting the Superior Court's report following remand, the Delaware
Supreme Court granted petitioner's motion to proceed pro se. In granting this motion,
the Delaware Supreme Court noted petitioner's "clear expression of his desire not to be
represented by his current counsel," the fact that petitioner was "fully informed of the
hazards of self-representation," and that petitioner "voluntarily waived his right to the
assistance of counsel." Id. at A-57, A-58.
Turning back to petitioner's contentions in this proceeding, to the extent he is
arguing that the trial court violated his Sixth Amendment right to counsel by denying his
motion for substitute counsel, the argument is unavailing. There is nothing in the state
court record, or in petitioner's filings in this court, indicating that his counsel had either
an actual or apparent conflict. Instead, it appears that petitioner's request for substitute
counsel was wholly motivated by mere dissatisfaction with counsel's performance.
Presented with what appears to be nothing more than petitioner's dissatisfaction with
defense counsel's performance during his trial, the court cannot conclude that the
Delaware Supreme Court unreasonably applied clearly established federal law in
refusing to provide new counsel.
See United States v. Moses, 58 F. App'x. 549, 555
56 (3d Cir. 2003).
The court further concludes that the Delaware Supreme Court reasonably
applied Faretta in holding that petitioner's Sixth Amendment right to representation by
counsel was not violated by requiring him to proceed pro se on direct appeal. When
petitioner reiterated with the Delaware Supreme Court his desire for substitute counsel
on direct appeal, he also unequivocally stated that he did not wish to proceed with his
current court-appointed counsel. Viewing this unequivocal assertion in the Delaware
Supreme Court in context with the Superior Court's proper Faretta inquiry and the
Superior Court's determination that petitioner voluntarily and knowingly waived his right
to the assistance of counsel, the court concludes that the Delaware Supreme Court
reasonably applied clearly established federal law in denying denied petitioner's claim
that his Sixth Amendment right to representation by counsel had been violated.
Accordingly, the court will deny claim seven.
V. CERTIFICATE OF APPEALABILITY
Finally, the court must decide whether to issue a certificate of appealabilty. See
3d Cir. L.A.R. 22.2 (2011). The court may issue a certificate of appealability only when
a petitioner makes a "substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that
reasonable jurists would find the district court's assessment of the denial of a
constitutional claims debatable or wrong." Slack
McDaniel, 529 U.S. 473, 484 (2000).
Further, when a federal court denies a habeas application on procedural grounds
without reaching the underlying constitutional claim, the prisoner must demonstrate that
jurists of reason would find it debatable: (1) whether the application states a valid claim
of the denial of a constitutional right; and (2) whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484.
For the reasons stated above, the court concludes that petitioner's habeas
application must be denied. Reasonable jurists would not find this conclusion
debatable. Consequently, petitioner has failed to make a substantial showing of the
denial of a constitutional right, and a certificate of appealability will not be issued.
For foregoing reasons, the court will deny petitioner's application for habeas relief
filed pursuant to 28 U.S.C. § 2254. An appropriate order will be entered.
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