Woods v. Phelps et al

Filing 57

MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 9/11/13. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BERNARD F. WOODS,

)
)
)

Petitioner,

)

) Civ. No. 10-952-SLR
)

v.

DAVID PIERCE, Warden,
and JOSEPH R. BIDEN, Ill,
Attorney General of the State
of Delaware,

)

)
)
)
)

Respondents. 1

)

Bernard F. Woods. Prose petitioner.
Karen V. Sullivan. Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

September I l , 2013
Wilmington, Delaware

1

Warden David Pierce assumed office in July 2013, replacing former Warden Perry
Phelps, an original party to this case. See Fed. R. Civ. P. 25.

R~.

istrict Judge

I. INTRODUCTION
Petitioner Bernard F. Woods ("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.
(D. I. 1) For the reasons that follow, the court will dismiss his application.

II. FACTUAL AND PROCEDURAL BACKGROUND
In July and September 2007, two separate controlled buys of crack cocaine
occurred between petitioner and two different confidential informants. (D. I. 14, State's
Ans. Br. in Woods v. State, No.567,2009 at 1-6) The first controlled buy involved
confidential informant one, petitioner, and Wayne Campbell, a person who sold drugs
with petitioner. The second controlled buy involved confidential informant two,
petitioner, and a woman named Tiffany, another person who sold drugs with petitioner.
In September 2007, following the second controlled buy, the New Castle County police
obtained search warrants for (1) Wayne Campbell's residence at 111 Schafer Blvd., and
(2) petitioner's residence at 201 Werden Drive. /d.
New Castle County Police officers simultaneously executed the warrants on
September 12, 2007. /d. At 201 Werden Drive, the police found Campbell inside his
residence with a pit bull. The pit bull attacked the officers and they subdued the dog
with a taser. During their search of the residence, the officers located a digital scale,
colored baggies used for packaging drugs, and documents indicating that Campbell
lived at the residence. /d.

When officers executed the search warrant at 111 Schafer Blvd., petitioner was
outside the residence on the front yard speaking with a female parked in a car. Officers
Grant and Grajewski attempted to detain petitioner, but he would not comply and
became combative. The officers tased petitioner several times to no effect. Petitioner
punched both of the officers during the struggle and was only subdued after a police K-9
unit was deployed. Once Officer McDermott placed petitioner in his patrol car,
McDermott observed petitioner discard a baggie containing a large rock of crack
cocaine from his person onto the floorboard of the patrol car. This baggie was
recovered and later tested positive for crack cocaine with a weight of 15.3 grams. /d.
The officers then searched inside 111 Schafer Blvd, where petitioner resided with
two of his relatives. /d. They found a small quantity of marijuana, two digital scales,
plastic baggies, a pipe, 1.9 grams of crack cocaine, .380 ammunition, thirty-nine rounds
of 9 mm ammunition, two ballistic vests, and a .38 revolver. /d. at 7. In the upstairs
bedroom, which belonged to petitioner's parents, officers located nine handguns and
five rifles. /d.
During a post-Miranda videotaped interview, petitioner admitted that he had been
selling crack for two months and that the rock of crack he had discarded in the police
car was given to him for an unpaid debt. /d. Petitioner also stated that the guns in his
parents' room used to belong to him, but that he gave them to his father after
petitioner's first felony conviction. Petitioner admitted that he was aware the guns were
in the residence, and also stated that he had placed two handguns in the ceiling of the
basement, a 9 mm and a .38 caliber. /d.

2

Although the officers had discovered the .38 caliber during the search of 111
Schafer Blvd., they had not discovered the 9 mm. Therefore, another search warrant
was obtained based on this information and executed on September 13, 2007. The 9
mm in question was located during the search of the basement ceiling and logged into
evidence.

/d.

In February 2008, petitioner pled guilty to one count each of delivery of cocaine,
possession of a deadly weapon by a person prohibited, second degree conspiracy, and
possession of a firearm during the commission of a felony. See Woods v. State, 994
A.2d 745 (Table), 2010 WL 1664008 (Del. Apr. 26, 2010). The Superior Court
immediately sentenced him to a total of twenty-nine years of incarceration, suspended
after the mandatory minimum fifteen years for a period of probation. Petitioner did not
file a direct appeal. /d.
In June 2008, petitioner filed a prose motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61, and then filed three amendments thereto.

/d. In July 2009, a Superior Court Commissioner recommended that petitioner's Rule
61 motion be denied. A Superior Court judge adopted that recommendation in
September 2009, and denied the motion. The Delaware Supreme Court affirmed that
judgment. /d.
Petitioner timely filed a§ 2254 application in this court. (D.I. 1) The State filed
an answer (0.1. 12), arguing that the all of the claims asserted therein fail to warrant
relief under§ 2254(d).

3

Ill. 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. Werls 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); Lamberl 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

4

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." /d. 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 v. 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,"

5

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. Horn, 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. Horn, 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 ). The Supreme Court recently expanded the purview of the

Richter presumption in Johnson v. Williams,_ U.S._, 2013 WL 610199 (Feb. 20,
2013). Pursuant to Johnson, if a petitioner has presented the claims raised in a federal

6

habeas application to a state court, and the state court opinion addresses some but not
all of those claims, the federal habeas court must presume (subject to rebuttal) that the
state court adjudicated the unaddressed federal claims on the merits. /d. at *7. The
consequence of this presumption is that the federal habeas court will then be required
to review the previously unaddressed claims under§ 2254(d) whereas, in the past,
federal habeas courts often assumed "that the state court simply overlooked the federal
claim[s] and proceed[ed] to adjudicate the claim[s] de novo." /d. at *3.
Finally, when reviewing a habeas claim, a federal court must presume that the
state court's determinations of factual 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 );
Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Mil/er-E/ 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).

IV. DISCUSSION
After reviewing petitioner's application, memorandum in support, and traverse,
the court interprets petitioner's application as presenting the following five grounds for
reliet:2 (1) defense counsel provided ineffective assistance by coercing him to plead
guilty; (2) the prosecutor engaged in misconduct by (a) maliciously using duress to
coerce petitioner to plead guilty and to procure fraudulent weapons convictions, (b)
2

The court has combined two of petitioner's repetitive claims (regarding the state court
error during his collateral proceeding) into one sole claim, hereinafter referred to as
claim four, without changing the substance of the two claims.
7

knowingly presenting false information to the grand jury, and (c) knowingly presenting
false information during the plea process; (3) defense counsel's failure to investigate the
fraudulent weapons charges, as well as the prosecutor's knowing presentation of such
fraudulent weapons charges, rendered petitioner's plea unknowing and involuntary; (4)
the Delaware courts should have reviewed petitioner's claim of prosecutorial
misconduct asserted in his Rule 61 motion in the interest of justice, and the failure to
consider the claim resulted in a miscarriage of justice; and (5) petitioner is actually
innocent of the weapons conviction because the weapons that would have been
entered as evidence at trial were illegally seized and fruit of the poisonous tree.

A. Claim One: Ineffective Assistance of Counsel
In claim one, petitioner contends that defense counsel provided ineffective
assistance by: (1) failing to investigate and demonstrate that the weapons evidence was
fraudulent and a pretext, and by deliberately misrepresenting the evidence that would
be presented at trial in an effort to coerce petitioner to plead guilty; (2) misinforming
petitioner that the sentences could later be reduced, and by failing to challenge the
sentencing enhancement for being premised on fraudulent weapons evidence; and (3)
failing to inform the trial judge that the police officers who investigated petitioner's case
lied in order to obtain the indictment against him.
Petitioner presented substantially the same allegations to the Delaware State
Courts in his Rule 61 proceeding, and the state courts denied the allegations as
meritless. Therefore, habeas relief will only be warranted if the Delaware Supreme
Court's denial of claim one was either contrary to, or an unreasonable application of,

8

clearly established federal law, or was based on an unreasonable determination of the
facts.
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." /d. at 687-96. A reasonable probability is a
"probability sufficient to undermine confidence in the outcome." /d. at 688. In the
context of a guilty plea, a petitioner satisfies Stricklands prejudice prong by
demonstrating that, but for counsel's error, there is a reasonable probability that he
would have insisted on proceeding to trial instead of pleading guilty. See Hill v.

Lockhart, 474 U.S. 52, 58 (1985).
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.

9

Turning to the first prong of the§ 2254(d)(1) inquiry, the court notes that the
Delaware Supreme Court correctly identified the Strickland/Hill standard applicable to
petitioner's ineffective assistance of counsel claim. Thus, the Delaware Supreme
Court's decision was not contrary to Strickland or Hill. 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's inquiry is not over, however, because it must also determine if the
Delaware Supreme Court reasonably applied the Strickland/Hill standard to the facts of
petitioner's case. When performing this inquiry, the court must review the Delaware
Supreme Court's decision with respect to petitioner's ineffective assistance of counsel
claims through a "doubly deferential" lens. 3 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 Stricklands
deferential standard." /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." /d. And finally, when viewing a state court's determination that a
Strickland claim lacks merit through the lens of§ 2254(d), federal habeas relief is
3

As explained by the Richter Court,
[t]he 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).
Richter, 131 S.Ct. at 788 (internal citations omitted).
10

precluded "so long as fairminded jurists could disagree on the correctness of the state
court's decision." /d. at 786.
Here, the Delaware Supreme Court denied petitioner's ineffective assistance
allegations as either factually incorrect or contradicted by the record, explaining that,
[d]uring the course of the plea colloquy, [petitioner] expressed satisfaction with
the representation provided by his counsel. He also acknowledged that he was
pleading guilty because he, in fact, was guilty. He acknowledged his
understanding that he was waiving certain rights by pleading guilty, including his
right to pursue the pretrial suppression motion. The Superior Court specifically
found that [petitioner] was competent to enter a plea and that his plea was
entered knowingly, intelligently, and voluntarily. The trial court reviewed the
sentence with [petitioner], and [petitioner] acknowledged it was the sentence he
agreed to in his plea form. [Petitioner] also stated under oath that no one had
coerced him into entering a plea.
Woods, 2010 WL 1664008, at *2. The Delaware Supreme Court then held that
petitioner was bound by these sworn plea colloquy assertions because he failed to rebut
the verity of the statements with clear and convincing evidence to the contrary. Woods,
2010 WL 1664008, at *2. Relying on this conclusion, the Delaware Supreme denied
claim one for failing to satisfy either prong of the Strickland/Hill test.
It is well-settled that "[s]olemn declarations in open court carry a strong
presumption of verity" that create a "formidable barrier in any subsequent collateral
proceedings." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Notably, in this
proceeding, petitioner's unsupported allegations fail to provide compelling evidence as
to why the statements he made during the plea colloquy should not be presumptively
accepted as true. As a result, the court concludes that the Delaware State Courts
reasonably applied Blackledge in holding that petitioner was bound by the
representations he made during the plea colloquy. Given this conclusion, the court
11

determines that counsel did not perform deficiently, because the statements petitioner
made during his plea colloquy belie his present allegations that he was coerced into
pleading guilty, that he was dissatisfied with counsel's representation, or that counsel
provided ineffective assistance by failing to inform the trial court that the weapons
evidence was fraudulent.
In addition, counsel's Rule 61 affidavit statements describing the communications
and advice he provided petitioner during the plea process support the court's conclusion
that counsel did not perform deficiently during the plea process. For instance, counsel
describes how he met with petitioner and petitioner's family, and explains that they
discussed the "overwhelming" evidence of petitioner's guilt that the State intended to
produce at trial. (D. I. 14, Appellant's App. in Op. Br. in Woods v. State, No. 567,2009,
at A9) This evidence consisted of the police officers' testimony, as well as petitioner's
"inculpatory statement [to the police] that was captured on video." /d. After discussing
the importance of petitioner's videotaped police interview, counsel told petitioner and his
family that the State intended to prosecute petitioner as an habitual offender if he
decided to proceed to trial, and described how being sentenced as an habitual offender
was likely to result in a life sentence. /d. Counsel then explained that the State was
willing to recommend a sentence of no more than the mandatory minimum fifteen years
of incarceration and refrain from seeking habitual offender sentencing if petitioner
agreed to plead guilty to one count each of trafficking, delivery of cocaine, possession of
a deadly weapon during the commission of a felony, possession of a deadly weapon by
a person prohibited, and second degree conspiracy. Counsel further explained that the
State would dismiss the remaining charges if petitioner agreed to the terms of the guilty
12

plea. (D.I. 14, State's Ans. Br. in Woods v. State, No. 567,2009, at 10) Given all of this
information and counsel's assessment of the likelihood of success at trial, petitioner
agreed to take the plea. /d.
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case,
a particular decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel's judgments."
Strickland, 466 U.S. at 691. In his Rule 61 affidavit, defense counsel states that he saw

no basis on which to challenge petitioner's post-Miranda videotaped inculpatory police
statement, and that the videotaped statement was more than enough to support the
police officers' testimony regarding the weapons evidence. Notably, petitioner does not
challenge the voluntariness of his police statement, and he has not provided any
support for his conclusory and self-serving allegation that the police officers and/or
prosecutor lied about the weapons evidence. In addition, defense counsel filed a
suppression motion challenging the searches and seizure of evidence, along with a
motion to identify the confidential informant. Given these actions on counsel's part, as
well as the strength of petitioner's videotaped police interview and the police officers'
testimony, the court concludes that the Delaware Supreme Court reasonably applied
Strickland and Hill in finding that defense counsel did not perform deficiently.

In turn, given the clear benefit petitioner derived by pleading guilty, the court
concludes that the Delaware Supreme Court reasonably applied the Strickland/Hill
standard in holding that petitioner failed to demonstrate the prejudice necessary to
establish a successful ineffective assistance of counsel claim. Significantly, petitioner

13

does not explicitly or implicitly assert that he would have proceeded to trial and have
accepted the risk of life imprisonment rather than enter a plea agreement that
recommended the minimum mandatory fifteen year sentence.
And finally, given the absence of any evidence suggesting that the police and/or
the State fabricated the weapons evidence, the court cannot conclude that the
Delaware Supreme Court's decision constituted an unreasonable determination of the
facts.
Thus, viewing the Delaware Supreme Court's decision through the doubly
deferential lens applicable on habeas review, while simultaneously keeping in mind
petitioner's plea colloquy statements, the overwhelming evidence against petitioner,
petitioner's unsupported allegations, and the substantial benefit petitioner derived by
pleading guilty, the court concludes that the Delaware Supreme Court reasonably
applied the Strickland/Hill standard in denying the arguments in claim one. Accordingly,
the court will deny claim one for failing to satisfy§ 2254(d).

8. Claims Two and Three: Prosecutorial Misconduct/Involuntary Plea
Petitioner's second and third claims stem from his contention that the police
officers lied about the weapons evidence in both the affidavits of probable cause used
to secure search warrants of his home and while testifying before the grand jury that
ultimately chose to indict him. Petitioner contends that the prosecutor maliciously
prosecuted him on the basis of this fraudulent weapon evidence, and argues that this
alleged prosecutorial misconduct rendered his plea involuntary.
Petitioner presented these arguments to the Superior Court in a motion for postconviction relief under Delaware Superior Court Criminal Rule 61, and the Superior

14

Court denied them as barred under Rule 61 because petitioner had already presented
the arguments in an earlier motion for reduction of sentence. See State v. Woods, ID
00708031045, Rep. & Rec. at 6 (Del. Super. Ct. July 31, 2009). The Delaware
Supreme Court affirmed that decision, specifically holding that the claims were formerly
adjudicated under Rule 61 (i)(4). Woods, 2010 WL 1664008, at *1.
By explicitly denying claim one as barred by Rule 61 (i)(4), the Delaware
Supreme Court articulated a plain statement under Harris v. Reed that its decision
rested on state law grounds. This court has consistently held that Rule 61 is an
independent and adequate state procedural ground precluding federal habeas review.
Thus, the court can only review claims two and three if petitioner demonstrates cause
and prejudice, or that a miscarriage of justice will occur absent such review.
Petitioner does not explicitly assert cause for his procedural default of claims two and
three. Moreover, even if the court were to construe petitioner's convoluted statements
in his numerous filings as an attempt to establish cause by blaming defense counsel for
failing to present claims two and three on direct appeal, the argument is unavailing. In
his Rule 61 proceeding, petitioner explicitly alleged that counsel provided ineffective
assistance during the plea process by failing to investigate the alleged fraudulent
weapons evidence and by coercing petitioner to enter a guilty plea by mentioning the
likelihood of a longer sentence if convicted by a jury. However, petitioner's Rule 61
motion and post-conviction appeal did not allege that counsel was ineffective for failing
to raise the issue of the fraudulent weapons evidence and/or prosecutorial misconduct
on direct appeal. As a result, the issue of counsel's failure to raise the involuntary

15

plea/prosecutorial misconduct argument on appeal is itself procedurally defaulted,

4

and

cannot excuse petitioner's procedural default of the substantive involuntary
plea/prosecutorial misconduct claims. See Edwards, 529 U.S. at 453-54.
However, even if the court did not treat this particular ineffective assistance of
counsel claim as being procedurally defaulted, 5 counsel's performance could only
constitute cause for petitioner's procedural default of claims two and three if counsel's
failure to raise the two claims on direct appeal amounted to constitutionally ineffective
assistance of counsel. Such is not the case here. During his plea colloquy, petitioner
admitted that he was giving up the right to appeal his case on any matter other than a
sentence exceeding the maximum penalties allowed under the law. See Woods, ID
0708031045, Rep. & Rec. at 7 (Del. Super. Ct. July 31, 2009). Claims two and three do
not assert that petitioner's sentence exceeded the maximum penalties under the law.
Consequently, counsel did not perform ineffectively by failing to raise issues on direct
appeal that were precluded by the terms of petitioner's voluntary and knowing plea
agreement.

4

See Del. Super. Ct. Grim. Rule 61(i)(2).
5
The court notes that petitioner did not raise the issue of counsel's alleged failure
to raise claims two and three on direct appeal as an independent ground for relief in the
instant federal habeas application. Thus, it would appear that the limited exception to
the procedural default doctrine articulated in Martinez v. Ryan, 132 S.Ct. 1309 (2012)
mentioned later in this opinion cannot excuse petitioner's procedural default of this
ineffective assistance of counsel claim that is not raised as an independent ground for
relief but, rather, as a potential excuse for the procedural default of two other grounds
for relief. However, given the unique "layered" procedural default situation presented
here, and the uncertainty surrounding the extent of the Martinez rule, the court will
exercise prudence and alternatively review the merits of the ineffective assistance of
counsel claim.
16

In the absence of cause, the court need not address the issue of prejudice.
Nevertheless, petitioner cannot demonstrate that he was prejudiced by the procedural
default of claims two and three. As previously discussed, the court has concluded that
petitioner's plea was knowing, intelligent, and voluntary. By accepting the plea,
petitioner waived his rights to assert the issues of prosecutorial misconduct, fraudulent
evidence, and fraudulent testimony. See Washington v. Sobina, 475 F.3d 162 (3d Cir.
2007)(a defendant's unconditional, knowing, and voluntary guilty plea acts as a waiver
of non-jurisdictional defects, including the waiver of pre-trial claims that police illegally
seized evidence). Given petitioner's waiver of these issues, the court cannot find that
he was prejudiced by the failure to argue the merits of these claims on direct appeal.
And finally, the court is not persuaded that petitioner's allegation of actual
innocence warrants review of these claims in order to avoid the miscarriage of justice.
Gateway claims of actual innocence will permit a habeas court to review the merits of
procedurally barred claims only if the petitioner proves his claim of actual innocence
with new reliable evidence that was not presented at trial. House v. Bell, 547 U.S. 518,
537 (2006); Hubbard, 378 F.3d at 340. Here, because petitioner provides the same
affidavits of probable cause that were available during the plea process to "support" his
allegations of "pretextual" charges, perjured police testimony, and fraud on part of the
State, he has failed to provide any new reliable evidence to suggest that he is actually
innocent of the crimes he voluntarily admitted committing or that he was, in any way,
coerced into pleading guilty. Significantly, for the reasons discussed earlier in this
opinion, petitioner is bound by the statements he made during his plea colloquy

17

admitting his guilt and waiving his rights. Accordingly, the court will deny claims two
and three as procedurally barred.

C. Claim Four: State Court Error in Collateral Proceeding
In claim four, petitioner contends that the Superior Court erred and committed a
miscarriage of justice by denying his prosecutorial misconduct claim as procedurally
barred and for refusing to review it under Rule 61's "interest of justice" exception to the
procedural default doctrine. Although not entirely clear, petitioner appears to assert that
the state courts erred in not conducting an evidentiary hearing which would have given
him an opportunity to present evidence of the fraudulent information concerning the
weapons charges, namely, the allegedly perjured affidavits of probable cause used to
obtain the two search warrants. (D. I. 17 at 13) This claim, however, is not cognizable
on federal habeas review, because it is premised on errors that occurred during
petitioner's state collateral proceeding rather than the proceeding leading to his
judgment of conviction. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir.
1998)(holding that the "federal role in reviewing an application for habeas corpus is
limited to evaluating what occurred in the state or federal proceedings that actually led
to the petitioner's conviction; what occurred in the petitioner's collateral proceeding
does not enter into the habeas proceeding")( emphasis in original); see also Lambert v.

Blackwell, 387 F.3d 210, 247 (3d Cir. 2004)("alleged errors in [state] collateral
proceedings ... are not a proper basis for habeas relief"). Accordingly, the court will
deny claim four for failing to assert a proper basis for federal relief. 6

6

Moreover, even if the court were to construe claim four as asserting an argument that
petitioner's plea was rendered involuntary because the prosecutor engaged in
18

D. Claim Five: Actual Innocence
In his fifth claim, petitioner contends that he is "actually innocent" of the weapons
offenses to which he pled guilty. (D. I. 52) This claim is unavailing. The United States
Supreme Court has not yet resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence. See McQuiggin v. Perkins, 133
S.Ct. 1924, 1931 (2013). Rather, a claim of actual innocence, if proven by new reliable
evidence, permits a court to review the merits of an otherwise defaulted claim; in other
words, an actual innocence claim is a gateway for excusing procedurally defaulted
claims. See House, 547 U.S. at 537. Thus, to the extent petitioner is asserting his
actual innocence argument in its own right, and not as a gateway claim to excuse a
procedural default (as previously discussed in section IV(B) of this opinion), the court
denies it for failing to assert an issue cognizable on federal habeas review.

E. Motions
During the pendency of this proceeding, petitioner filed the following motions: (1)
three motions seeking representation by counsel (D.I. 33; D.l. 51; D.l. 55); (2) a
motion for an evidentiary hearing (D.I. 34); (3) a motion to set aside state court finding
of facts (D.I. 36); (4) a motion to amend habeas application (D.I. 41); (5) a motion to
dismiss for lack of jurisdiction (D.I. 48); and (6) a motion to dismiss on grounds of actual
innocence (D.I. 52).

misconduct by relying on the police officers' perjured affidavits of probable cause for the
search warrant, the argument is substantially similar, if not identical to, the arguments
asserted in claims two and three. Thus, to the extent claim four raises a slightly varied
involuntary plea/prosecutorial misconduct argument, the court would deny it as
procedurally barred from habeas review for the same reasons set forth in section IV (B)
of this opinion.
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1.

Motion to amend

Petitioner's motion to amend merely supplements and amplifies the claims
asserted in his application (0.1. 41). Therefore, the court will grant the motion to the
extent it supplements the instant application, and notes that it considered the
supplemental information during its review of the instant application.

2.

Motions for representation by counsel

Petitioner filed three motions requesting representation by counsel in this
proceeding. (0.1. 33; 0.1. 51; 0.1. 55) It is well-settled that a petitioner does not have an
automatic constitutional or statutory right to representation in a federal habeas
proceeding. See Coleman, 501 U.S. at 752; United States v. Roberson, 194 F.3d 408,
415 n.5 (3d Cir. 1999). Rather, a court may seek representation by counsel for a
petitioner who demonstrates "special circumstances indicating the likelihood of
substantial prejudice to [petitioner] resulting ... from [petitioner's] probable inability
without such assistance to present the facts and legal issues to the court in a complex
but arguably meritorious case." See Tabron v. Grace, 6 F.3d 147, 154 (3d Cir. 1993);
18 U.S.C. § 3006A (a)(2)(B)(representation by counsel may be provided when a court
determines that the "interests of justice so require"). Factors to be considered by a
court in deciding whether to request a lawyer to represent an indigent petitioner include:
(1) the merits of the petitioner's claim; (2) the petitioner's ability to present his or her
case considering his or her education, literacy, experience, and the restraints placed
upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree
to which factual investigation is required and the petitioner's ability to pursue such
investigation; (5) the petitioner's capacity to retain counsel on his or her own behalf; and
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(6) the degree to which the case turns on credibility determinations or expert testimony.
Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56.
For the most part, petitioner's motions request representation by counsel
because he is unskilled in the law and because he believes the complexity of the factual
and legal issues presented in this case are beyond his ability to pursue an effective
investigation. Petitioner also asserts that counsel will be able to make better use of
available discovery methods and will be better able to prove that the illegal weapons
convictions and sentences were the "result of [a] deliberately fraud[ulent] false
statement." (D. I. 55 at 2)
However, petitioner also states that the Superior Court should have provided
representation during his Rule 61 proceeding and that the lack of representation during
his collateral proceeding prevented him from presenting a claim of ineffective assistance
of counsel. Petitioner then appears to contend that the lack of representation in his
state collateral proceeding warrants representation in this proceeding so that he can
better assert his grounds for relief. /d. at 1.
Recognizing its duty to liberally construe pro se filings, the court construes
petitioner's last argument to be that he is entitled to representation by counsel in this
proceeding under Martinez

v. Ryan, 132 S.Ct. 1309 (2012). This liberal construction,

however, does not lead to the relief requested. Significantly, Martinez did not recognize
or create an automatic constitutional right to counsel in collateral proceedings. See
Martinez, 132 S.Ct. at 1319. Rather, Martinez held for the first time that the ineffective
assistance of counsel during initial collateral review proceedings, or the failure to
appoint counsel during initial collateral review proceedings, may establish cause in a
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federal habeas proceeding sufficient to excuse a petitioner's procedural default of a
substantial claim of ineffective assistance of trial counsel when, under state law, claims
of ineffective assistance of trial counsel must be raised in an initial review collateral
proceeding rather than on direct appeal. /d. at 1321 (emphasis added). Thus, even
after Martinez, a federal habeas court presented with a motion requesting
representation by counsel must still determine if the petitioner has demonstrated special
circumstances such that the interests of justice require representation.
Here, after viewing petitioner's reasons in conjunction with petitioner's other
filings in this case, the court concludes that the interests of justice do not require
representation by counsel. Petitioner's filings demonstrate his ability to articulate his
claims and represent himself. The case is fairly straightforward and capable of
resolution on the record, and expert testimony is not necessary. Thus, the court will
deny petitioner's motions for representation.

3.

Remaining motions

As for the remaining motions, the court has already concluded that the claims
raised in petitioner's application fail to warrant habeas relief. Accordingly, the motions
will be denied as moot. (0.1. 34; 0.1. 36; 0.1. 41; 0.1. 48; 0.1. 52)

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

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reasonable jurists would find the district court's assessment of the denial of a
constitutional claims debatable or wrong." Slack v. 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.

VI. CONCLUSION
For the 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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