Wright v. Phelps et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/24/14. (cla, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. Act. No. 10-702-LPS
DAVID PIERCE, Warden, and JOSEPH
R. BIDEN, III, Attorney General
of the State ofDelaware,
Joseph M. Bernstein, Esquire. Attorney for Petitioner.
Gregory Smith, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
STARK, U.S. District Judge:
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.S.C. § 2254 ("Petition") filed by Petitioner Jerrin Wright ("Petitioner"). (D.I. 2) For the
reasons discussed, the Court will dismiss the Petition and deny the relief requested.
As set forth by the Delaware Supreme Court, the facts of Petitioner's case are as follows:
Shortly before the closing time at the Nu-Phaze Bar and Grill,
[Roland] Harris went outside to the parking lot, and was talking
with two men when he noticed [Petitioner] looking at him. Harris
and [Petitioner] had known each other for approximately 13 years,
since high school. Because it was closing time, several other
persons were also in the parking lot. Harris asked [Petitioner] why
was he looking at him, and a verbal argument resulted.
[Petitioner] displayed a handgun that was tucked in his waistband.
After Harris told [Petitioner] that he was not "scared of a gun,"
[Petitioner] pulled the gun out and pointed it at Harris. Continuing
to reaffirm his lack of fear, Harris moved towards [Petitioner], who
then fired two shots in Harris' direction. The shots whizzed by
either side ofHarris, who continued "going after" [Petitioner]
through the parking lot. [Petitioner] backed away, but continued to
shoot in Harris' direction. According to Harris, [Petitioner] shot
the gun "four, five times." At that point, Harris' uncle told Harris
to "chill," because [Petitioner] had shot someone. While Harris
was being restrained by his uncle, [Petitioner] continued shooting
and then retreated to his car. [Petitioner] fired one more shot at
Harris, and drove away, threatening to kill Harris. At trial, Harris
testified that [Petitioner] had fired "[m]aybe nine or ten" times all
together. The police recovered five 9 mm casings, all fired from
the same gun. At trial, it was established that one of[Petitioner's]
shots had struck [Scott] Lubitz in the head, killing him.
Wright v. State, 953 A.2d 144 (Del. 2008).
On November 14, 2005, Petitioner was indicted for the offenses of first degree murder,
(recklessly causing the death of Lubitz while committing the felony of reckless endangering
Harris); first degree reckless endangering of Harris; and two related weapons charges. A
Delaware Superior Court jury convicted Petitioner ofthe lesser-included offense of second
degree (felony) murder of Lubitz, first degree reckless endangering of Harris, and both weapons
charges. The Delaware Supreme Court affirmed Petitioner's convictions on direct appeal. !d.
In January 2009, represented by counsel, Petitioner filed a motion for
postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion").
The Superior Court initially denied the Rule 61 motion as conclusory, but permitted Petitioner to
file an amended motion. See In re Wright, 2009 WL 3069574, at *2 n.1 (Del. Super. Ct. 2009).
Thereafter, on March 30, 2009, Petitioner filed an amended Rule 61 motion. The Superior Court
denied the motion in September 2009, and the Delaware Supreme Court affirmed that decision.
See Wright v. State, 994 A.2d 745 (Table), 2010 WL 2163851 (Del. May 27, 2010).
Petitioner timely filed the instant Petition. The State filed an Answer, asserting that the Petition
should be denied in its entirety as meritless.
GOVERNING LEGAL PRINCIPLES
The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003)
(internal citations and quotation marks omitted). Pursuant to AEDP A, 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).
AEDP A imposes procedural requirements and standards for analyzing the merits of a habeas
petition in order to "prevent federal habeas 'retrials' and to ensure that state-court convictions
are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002); see
also Woodford, 538 U.S. at 206.
When a state's highest court has 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). A claim has been "adjudicated on the merits" for the purposes of28 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. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009).
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. Horn, 250 F.3d 203, 210 (3d Cir. 2001). This 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
Finally, when reviewing a habeas claim under § 2254(d), a federal court must presume
that the state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1); Appel,
250 F .3d at 210. This presumption of correctness applies both to explicit and implicit findings
of fact, and is only rebutted by clear and convincing evidence to the contrary. See 28 U.S.C. §
2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537
U.S. 322, 341 (2003) (stating that clear and convincing standard in§ 2254(e)(l) applies to
factual issues, whereas unreasonable application standard of§ 2254(d)(2) applies to factual
The Petition asserts two grounds for relief: ( 1) appellate counsel, who also represented
Petitioner during his criminal trial, provided ineffective assistance by failing to pursue on direct
appeal the double jeopardy/multiplicity argument counsel raised in the motion for acquittal; and
(2) trial counsel was ineffective for failing to oppose Petitioner's sentencing as an habitual
offender. Petitioner presented these arguments to the Delaware Supreme Court in his postconviction appeal, and the Delaware Supreme Court denied the claims as meritless. Therefore,
habeas relief will only be warranted if the Delaware Supreme Court's decision was either
contrary to, or involved an unreasonable application of, clearly established federal law.
The clearly established federal law for ineffective assistance of counsel claims is the twopronged standard articulated by the United States Supreme Court in 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." !d. at 687-96. A reasonable
probability is a "probability sufficient to undermine confidence in the outcome." !d. 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.
Claims of ineffective assistance of appellate counsel are evaluated under the same
Strickland standard applicable to trial counsel. See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir.
2004). Consequently, an attorney's decision about which issues to raise on appeal are generally
considered to be strategic, 1 and an attorney is not required to raise every possible non-frivolous
issue on appeal. See Jones v. Barnes, 463 U.S. 745 (1983); Smith v. Robbins, 528 U.S. 259, 272
(2000). "Indeed, an appellate lawyer's exercise of professional judgment in omitting weaker
claims is obviously of benefit to the client: the more claims an appellate brief contains, the more
difficult for an appellate judge to avoid suspecting that there is no merit to any of them." United
States v. Turner, 677 F.3d 570, 577 (3d Cir. 2012) (internal citation omitted).
In Petitioner's case, the Delaware Supreme Court analyzed Petitioner's claims within the
Strickland framework. Therefore, the Delaware Supreme Court's denial of his two ineffective
assistance of counsel claims 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)(l)'s 'contrary to' clause").
The Court's inquiry is not over, however, because it must also determine if the Delaware
Supreme Court reasonably applied the Strickland standard to the facts of Petitioner's case.
When performing this inquiry, the Court must review the Delaware Supreme Court's decision
See Albrecht v. Horn, 485 F.3d 103, 138 (3d Cir. 2007); Buehl v. Vaughn, 166 F.3d 163, 174 (3d
Cir. 1999) (counsel is afforded reasonable selectivity in deciding which claims to raise without
facing specter ofbeing labeled ineffective).
with respect to Petitioner's ineffective assistance of counsel allegations through a "doubly
deferential" lens. 2 Richter, 131 S.Ct. at 788. Notably, when§ 2254(d) applies, "the question is
not whether counsel's actions were reasonable, [but rather] whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard." I d. When assessing prejudice
under Strickland, the question is "whether it is reasonably likely the result would have been
different" but for counsel's performance, and the "likelihood of a different result must be
substantial, not just conceivable." ld. Finally, when viewing a state court's determination that a
Strickland claim lacks merit through the lens of§ 2254(d), federal habeas relief is precluded "so
long as fairmindedjurists could disagree on the correctness ofthe state court's decision." Id. at
Claim One: Ineffective Assistance of Appellate Counsel
Following Petitioner's convictions, trial counsel filed a motion for acquittal for the
second degree felony murder conviction. Trial counsel argued that Petitioner's conviction for
second degree felony murder violated his rights under the Double Jeopardy Clause and state law
because the predicate felony of reckless endangering was an included offense to the offense of
second degree murder, and both Harris and Lubitz were within the same "zone of danger" and
endangered by the same conduct. After applying the "same elements" test articulated in
Blockburger v. United States, 284 U.S. 299, 304 (1932), the trial court concluded that second
As explained by the Richter Court,
The standards created by Strickland and § 2254(d) are both "highly deferential," and
when the two apply in tandem, review is doubly so. The Strickland standard is a general
one, so the range of reasonable applications is substantial. Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland with
unreasonableness under§ 2254(d).
131 S.Ct. at 788 (internal citations omitted).
degree felony murder and first degree reckless endangering were different offenses and,
therefore, denied the motion for acquittal. (D.I. 11, App. to Appellant's Op. Br. in Wright v.
State, No.584,2009, at A-17 to A-18) Trial/appellate counsel did not pursue the double jeopardy
argument on direct appeal.
In his Rule 61 motion, Petitioner alleged that counsel's failure to pursue the double
jeopardy/multiplicity argument on direct appeal amounted to ineffective assistance. Petitioner
asserted that a person who fires shots into a crowd engages in one act of reckless endangering,
regardless of the number of victims. Relying on this premise, Petitioner contended that Harris
and Lubitz were both victims of one criminal act (reckless endangering), and hence the State
improperly indicted him on multiple charges. Petitioner then concluded the argument by
alleging that his felony murder conviction must be vacated because the reckless endangering
charge merged with the murder charge, leaving no predicate felony for the felony murder
Petitioner acknowledged that no Delaware cases discussed the appropriate "unit of
prosecution" for the offense of reckless endangering, but asserted that the offense of first degree
arson considered by the Delaware Supreme Court in Handy v. State, 803 A.2d 937 (Del. 2002),
was analogous to the offense of reckless endangering involved in his case. In Handy, the
Delaware Supreme Court held that charging multiple counts of arson for multiple intended
victims when only one act of arson was involved violated the multiplicity doctrine of the Double
Jeopardy Clause. See id. Because the arson statute in Handy contained the same "another
person" phrase contained in the reckless endangerment statute at issue in Petitioner's case,
Petitioner contended that the State improperly divided a single count of reckless endangering
into two separate charges based solely on the identity of the victims. According to Petitioner,
appellate counsel "should have been aware that the decision in Handy provided strong
ammunition to support [Petitioner's] double jeopardy claim." (D.I. 11, App. to Appellant's Op.
Br. in Wright v. State, No.584,2009, at A-30) As such, Petitioner concluded that appellate
counsel should have argued that the reasoning in Handy applied to the reckless endangering
statute, prohibited charging multiple counts of reckless endangering for multiple victims, and
necessitated vacating Petitioner's conviction for second degree murder/felony murder which was
based on the predicate felony of reckless endangering. 3 (!d. at A-34)
In his Rule 61 affidavit, trial/appellate counsel responded to Petitioner's Rule 61
argument in the following manner:
In the process of preparing [the motion to dismiss], I gave
further consideration to the position that I had articulated. I
reconsidered and decided that, in fact, it was within the purview of
the General Assembly to define Murder in the First Degree, and if
it chose, to make a homicide first degree murder by committing a
coincident felony while recklessly killing another person, it had the
authority to do so. If offenses such as Burglary, Arson, and
Robbery could legally represent the "trigger event" under 11 Del.
C. § 635(a)(2), then obviously, Reckless Endangering which has,
at least, the same propensity for causing injury or death as the
others could act as a "triggering event" under that subsection.
How could I argue meaningfully that (a)(2) applied if coincident
The underlying double jeopardy argument Petitioner asserted in his Rule 61 proceeding differed
from the double jeopardy argument asserted in trial counsel's motion for acquittal. For instance,
the motion for acquittal contended that Petitioner could not be convicted of both felony murder
and the underlying felony of reckless endangering when the murder victim and the different
"endangered" victim occupied the same zone of danger as a result of one act. In Petitioner's
Rule 61 motion, post-conviction counsel asserted that the Handy Court's analysis of the arson
statute's language and use of the phrase "another person" demonstrated that the two separate
charges of reckless endangering in Petitioner's case violated the multiplicity prong of the Double
Jeopardy Clause. Post-conviction counsel contended that the General Assembly did not intend
that Petitioner could be charged with more than one count of reckless endangering merely on the
ground that his conduct created a substantial risk of death to more than one person. Despite
these slightly different double jeopardy arguments, the Court must still apply the deferential
standard of§ 2254(d) to the Claim One because Petitioner's instant ineffective assistance of
appellate counsel claim is based on the same underlying double jeopardy argument raised, and
denied, in his Rule 61 proceeding.
offense is a Burglary, a property crime, but not Reckless
Endangering First Degree, a person crime.
Notwithstanding [my earlier] position that Handy v. State,
803 A.2d 937 (Del. 2002) is a "game saver" (my characterization),
by its own terms it is not applicable. . . . Unlike Arson, which is a
property crime, Reckless Endangering is a "person" crime thereby
preventing the extrapolation of the Handy principle.
(!d. at A-38, A-39)
The Superior Court considered both parties' submissions and, after describing the
difference between crimes against people and crimes against property, concluded that Handy did
not support Petitioner's double jeopardy argument because the arson that occurred in Handy
constituted a crime against property, whereas the reckless endangering that occurred in
Petitioner's case constituted a crime against a person. See Wright, 2009 WL 3069574, at *2. As
a result, the Superior Court opined that "each person that was 'down range' from [Petitioner's]
multiple firings was a potential victim of his reckless conduct," such that Petitioner committed
another offense every time he pulled the trigger. !d. Thus, the Superior Court held that appellate
counsel "committed no error in choosing not to appeal this issue because he was correct in
concluding there was no merit in pursuing the double jeopardy claim in the [Delaware] Supreme
Court." Id. The Delaware Supreme Court affirmed the Superior Court's judgment on postconviction appeal, because Handy was inapplicable and the underlying double jeopardy claim
was without merit. See Wright, 2010 WL 2163851, at *2.
Now, in Claim One, using the same reasoning from his Rule 61 motion, Petitioner
contends that appellate counsel was ineffective for not pursuing on direct appeal the argument
that Petitioner's convictions violated the multiplicity doctrine of the Double Jeopardy Clause.
This argument is unavailing.
Turning first to the prejudice prong of the Strickland test, Petitioner has failed to
demonstrate a reasonable probability that the result of his direct appeal would have been
different but for appellate counsel's failure to pursue the instant double jeopardy argument. The
Double Jeopardy Clause protects a defendant against: (1) successive prosecutions; (2) multiple
charges under separate statutes requiring proof of the same factual events; and (3) multiple
charges under the same statute. (U.S. const. amend. V) The multiplicity doctrine involves the
third of these protections. See Sanabria v. United States, 437 U.S. 54, 65 n.19 (1978). When a
defendant is convicted of violating one statute multiple times, "the question is whether the facts
underlying each count were intended by [the legislature] to constitute separate 'units' of
prosecution."4 Bell v. United States, 349 U.S. 81, 83-84 (1955). In other words, when
determining whether the imposition of multiple punishments and/or convictions in a single
prosecution violates the double jeopardy clause, the "clearly established" Supreme Court
precedent requires a court to ascertain whether the multiple punishments and/or convictions
comply with the legislative intent of the applicable statutes.
Determining legislative intent "must begin with the language employed by [the
legislature] and the assumption that the ordinary meaning of that language accurately expresses
the legislative purpose." Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2350 (2009). If
the statutory language is clear and unambiguous, the plain meaning of the statutory language
controls, and the reviewing court's inquiry is at an end. See Jimenez v. Quaterman, 129 S.Ct.
681, 685 (2009); Chase Alexa v. Kent County Levy Court, 991 A.2d 1148 (Del. 2010). If the
statutory language does not express the legislative intent unequivocally, "a court traditionally
Conversely, when two different statutory provisions are involved, a court determines if a double
jeopardy violation has occurred by using the "same elements" test articulated in Blockburger,
which involves examining the elements of the crimes to assess whether each offense "requires
proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304.
turns to the legislative history and the atmosphere in which the statute was enacted in an attempt
to determine the congressional purpose."5 United States v. Gregg, 226 F.3d 253, 257 (3d Cir.
As explained by the Delaware Supreme Court in Handy, when "determining whether a
legislature contemplated the charging of multiple offenses based on multiple victims, Delaware
courts have considered whether the offense is one against people or against property." Handy,
803 A.2d at 943. After referring to this principle for discerning legislative intent, the Delaware
Supreme Court in Petitioner's case independently analyzed the General Assembly's intent with
respect to the reckless endangering statute, and concluded that reckless endangering is a crime
against people, not property. See Wright, 2010 WL 2163851, at *2. Consequently, the Delaware
Supreme Court held that the State could have charged Petitioner with multiple counts of reckless
endangering, "given the fact that he shot into a crowd at least five times." !d.
On habeas review, the Court must defer to the Delaware state courts' determination of
state law. Here, the Delaware Supreme Court reviewed the General Assembly's intent to
distinguish between crimes against property and crimes against people, and analyzed how the
reckless endangerment statute fits within that general legislative framework. As such, the Court
must defer to the Delaware Supreme Court's holding that (1) the General Assembly intended to
permit the charging of multiple crimes for multiple victims where the crime is one against
people, (2) reckless endangerment constitutes a crime against people, (3) the reasoning in Handy
is inapplicable to Petitioner's case, and (4) there can be multiple counts of reckless endangering
Determining whether statutory language is ambiguous or plain requires an examination of the
statutory language itself, the context in which the language is used, and the broader context of
the statute as a whole. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). "Once the plain
meaning of the statute is determined, it is conclusive except in rare cases in which the literal
application of a statute will produce a result demonstrably at odds with the intentions of its
drafters." United States v. Gregg, 226 F.3d 253, 257 (3d Cir. 2000).
when there are multiple victims. Moreover, the Court notes that the plain language of the
reckless endangerment statute, 6 as well as the nature of reckless endangerment as a crime against
the person, demonstrates that the Delaware Supreme Court reasonably applied Sanabria and its
progeny in holding that the unit of prosecution for the crime of reckless endangerment is each
person endangered, rather than each endangering act.
Based on the foregoing, the Court concludes Delaware Supreme Court reasonably
applied clearly established Federal law in holding that the Double Jeopardy Clause was not
implicated in Petitioner's conviction for second degree felony murder. In turn, the Court further
concludes that the Delaware Supreme Court reasonably applied Strickland in holding that
Petitioner was not prejudiced by appellate counsel's failure to raise the meritless double jeopardy
argument on direct appeal.
Accordingly, the Court will deny Claim One for failing to satisfy§ 2254(d). 7
A person is guilty of first degree reckless endangering when "the person recklessly engages in
conduct which creates a substantial risk of death to another person." 11 Del. Code Ann. § 604
Although the Court's finding under the prejudice prong of the Strickland test provides a
sufficient basis for concluding that appellate counsel was not ineffective, the Court also
concludes that Petitioner has failed to satisfy the deficient performance prong of the Strickland
test. In Strickland, the Supreme Court opined that "counsel has a duty to make reasonable
investigations," and "strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690-91.
Here, having unsuccessfully raised a somewhat different double jeopardy argument in the
motion for acquittal, appellate counsel performed additional research and determined that any
further double jeopardy argument lacked merit. Given the Delaware state courts' identical
conclusion regarding the inapplicability of Handy, appellate counsel's rational and well-reasoned
decision not to pursue the double jeopardy claim any further did not fall below an objective
standard of reasonableness.
Claim Two: Ineffective Assistance of Trial/Appellate
Counsel Regarding Habitual Offender Status
In 1997, Petitioner was charged with possession with intent to deliver marijuana,
maintaining a vehicle for keeping drugs, possession of drug paraphernalia, speeding, and
operating a vehicle with tinted windows. As part of a plea bargain, Petitioner pled guilty to
second degree conspiracy and possession of drug paraphernalia. Petitioner's 1997 conviction for
second degree conspiracy served as one of the predicate offenses for his status as an habitual
offender when he was sentenced for the 2005 convictions being challenged here.
Now, in Claim Two, Petitioner asserts that the police report concerning the 1997 incident
shows the invalidity of his guilty plea to second degree conspiracy, because the report states that
Petitioner was driving alone when he was stopped by the police. As such, he contends that
trial/appellate counsel was ineffective for failing to argue at sentencing or on direct appeal that
his alleged invalid conspiracy conviction could not have served as the predicate felony for his
habitual offender status. This argument is unavailing.
The Delaware Supreme Court denied this same argument on post-conviction appeal for
two reasons. "First, when a guilty plea is entered, the factual basis for such a plea is most clearly
established by a defendant's specific admission in open court that he did what he is charged with
doing. [In this case, Petitioner] provided no evidence to suggest that he pled guilty without
admitting his guilt." Wright, 2010 WL 2163851, at *3. Second, "although the crime of
conspiracy requires at least two participants, the co-conspirators do not have to be together at the
time of the arrest." !d.
In this proceeding, the Court must accept as correct the Delaware Supreme Court's
implicit factual finding that Petitioner's guilty plea to the conspiracy charge was valid, because
Petitioner has not provided any clear and convincing evidence to the contrary. Additionally, the
Delaware Supreme Court's conclusion is further supported by (1) Petitioner's failure to allege
that his 1997 plea was involuntary; and (2) Petitioner's failure to contest the validity of the
conspiracy conviction during the nine-and-one-halfyear period between the conspiracy
conviction and the 2005 convictions being challenged here, even though he was found in
violation of probation on that conviction three times.
Given Petitioner's failure to provide any clear and convincing evidence to the contrary,
the Court concludes that the Delaware Supreme Court reasonably held that Petitioner's guilty
plea constitutes an admission that he committed the conspiracy offense. See United States v.
Broce, 488 U.S. 563, 570 (1989) ("By entering a plea of guilty, the accused is not simply stating
that he did the discrete acts described in the indictment; he is admitting guilt of the substantive
crime."). In turn, the Court further concludes that the Delaware Supreme Court reasonably
applied Strickland in rejecting Petitioner's argument that trial/appellate counsel was
constitutionally ineffective for failing to pursue Petitioner's meritless allegations about the
invalidity ofhis 1997 conviction. Thus, the Court will deny Claim Two for failing to satisfy
Accordingly, the Court will deny the Petition in its entirety.
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether
to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011 ). A certificate of
appealability is appropriate when a petitioner makes a "substantial showing of the denial of a
constitutional right" by demonstrating "that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2); see also
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that Petitioner's habeas claims do not warrant relief. In the
Court's view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court declines to issue a certificate of appealability.
For the reasons discussed, Petitioner's Application For A Writ Of Habeas Corpus
Pursuant To 28 U.S.C. § 2254 is DENIED. An appropriate Order will be entered.
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