Taylor v. Danberg et al

Filing 91

MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 3/31/2022. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MILTON TAYLOR,
Petitioner,

V.

Civil Action No. 11-1251-CFC

ROBERT MAY, Warden, et. al.,
Respondents.

MEMORANDUM OPINION
Tiffani D. Hurst, Esquire, Philadelphia, Pennsylvania. Counsel for Petitioner.

Kathryn Joy Garrison, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Respondents.

March 31, 2022
Wilmington, Delaware

Presently pending before the Court is an Amended Petition for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 filed by Petitioner Milton Taylor. (D.I. 67) The
State filed an Answer in opposition, to which Petitioner filed a Reply. (D.I. 72; D.I. 85)
As ordered by the Court, the Parties filed supplemental briefing on whether the post2014 versions of Delaware Superior Court Criminal Rule 61(d)(2) and (i)(2) constitute
independent and adequate state procedural rules for procedural default purposes. (D. I.
86; D.I. 89; D.I. 90) For the reasons discussed , the Court will deny the Petition.

BACKGROUND
On the morning of March 23, 2000, Steven Butler ("Butler"), a
maintenance worker at the Compton Townhouse complex in
Wilmington, was awaiting the arrival of some contractors
when he discovered two unattended children playing in the
courtyard. He recognized the children, ages two and four, as
those belonging to [Theresa] Williams. Before he left to
supervise the contractors, Butler instructed the children to
stay away from the street until their mother came outside to
join them.
Williams and her sister, Tawana Ricks ("Ricks"), previously
planned to do some shopping together that morning, but
Williams never arrived at the predetermined location. When
Ricks could not reach her sister by telephone she decided to
visit Williams' home. Ricks arrived at the Compton
Townhouse complex and discovered her sister's two youngest
children , unsupervised and playing in the vicinity of her sister's
home. As Ricks was knocking on the locked door to Williams'
home, Nathaniel Henry ("Henry"), Williams' uncle, arrived to
deliver some furniture. Ricks and Henry grew increasingly
concerned as their attempts to locate Williams failed.
Butler then joined Ricks and Henry. Upon Ricks' urging , Butler
agreed to open Williams' door. Once inside, Butler and Henry
discovered Williams' badly beaten and bloody body concealed
beneath a blanket with a bicycle on top. Williams was bleeding
from her nose and had a cord wrapped around her neck.
Williams was not breathing and Butler called 911. Williams

was pronounced dead at the scene. An autopsy later
revealed that Williams was strangled, beaten and cut. The
autopsy also revealed that Williams was pregnant, and that
the baby died as a result of Williams' death.
[Petitioner] was identified as a suspect in the murder when
police learned that he had a relationship with Williams and that
he had been seen in the vicinity of her home on the morning
of March 23, 2000. On March 25, 2000 the police received a
tip that [Petitioner] was standing at a pay phone on the corner
of 9th and Madison Streets. The police responded to the tip
and placed [Petitioner] under arrest. Although the arresting
officers were aware that [Petitioner] was wanted for
questioning in regard to Williams' murder, the purpose for the
arrest was an outstanding bench warrant.
At the police station, [Petitioner] was taken to an interview
room where Officer Ronald Muniz ("Muniz") began routine
inventory procedures. Muniz removed a folded piece of paper
from the front pocket of [Petitioner's] hooded sweatshirt and
placed it on the table. Shortly thereafter, Detective James
Diana ("Diana") entered the room, picked up the piece of
paper, opened it and began to read it. He quickly realized that
the paper contained a handwritten confession (the
"Confession Letter") and therefore removed the letter from the
other inventoried items so that it could be included as
evidence.

***
The confession read in pertinent part: My name is [Petitioner],
I was born on 11-15-68, my Social Security number is XXXXX-XXXX. I am wanted by the Wilmington police for the
murder of Theresa Irene Williams a.k.a. Treety. I confess that
I did kill Treaty and left Terrel and her daughter outside
because I couldn't hurt either one of them. After I strangled
her I stuck a long kitchen knife in her mouth and cut something
in her throat.

***
[The parties stipulated that [Petitioner] wrote the Confession
Letter.] The Confession Letter provided the basis for a search
warrant for the Victim's car which was found parked on a
street in New Castle. Inside the car the police found a

2

thirteen-inch knife wrapped in a bloodstained tee shirt. The
blood on the shirt matched the Victim's blood type. During the
investigation it became clear that the apparent motive for the
murder was that [Petitioner's] current girlfriend had given him
an ultimatum: end all contact with Williams or lose the current
girlfriend. Taylor had apparently gone to see Williams to end
contact with her and killed her in the process.

Taylorv. State, 822 A.2d 1052, 1054-55 (Del. 2003).
On April 24, 2000, a New Castle County grand jury indicted Petitioner for first
degree murder. (D.I. 72 at 1) Petitioner filed a motion to suppress Petitioner's
statement that he made in the "turnkey" area of the police department prior to his
videotaped police statement and his handwritten confession letter that the police
discovered during an inventory search of his belongings once in custody at the
department. (D.I. 41-46 at 1-2) The Superior Court denied the suppression motion
after a conducting an evidentiary hearing and reviewing briefing submitted by both
parties. (D.I. 41-4) Following a three-day trial, a Superior Court jury found Petitioner
guilty of first degree murder. The Superior Court held a two-day penalty hearing and
sentenced him to death. (Id. at 1-2) Petitioner appealed, and the Delaware Supreme
Court affirmed his conviction and sentence. See Taylor, 822 A.2d at 1058.
In December 2003, the Superior Court appointed two conflict counsel ("first Rule
61 counsel") to represent Petitioner during his post-conviction proceedings. (D.I. 72 at
2) In March 2006, Petitioner filed an motion for postconviction relief pursuant to
Delaware Superior Court Criminal Rule 61. (D.I. 73-1 at 22, Entry No. 144) The State
answered the amended Rule 61 motion in June 2005. (D.I. 73-1 at 23, Entry No. 161)
In December 2006 and January 2007, the Superior Court held 11 days of evidentiary
hearings, and then held an additional 2 days of evidentiary hearings in March 2007.

3

(D.I. 73-1 at 25-26, Entry Nos. 181 and 187) Petitioner filed a Memorandum in Support
of his Rule 61 motion ("first Rule 61 motion") in September 2009. (D.I. 73-3) The State
filed an answer to the first Rule 61 motion in January 2010 (D.I. 73-5), and Petitioner
filed a reply in March 2010 (D.1. 73-6). The Superior Court denied Petitioner's first Rule
61 motion on August 6, 2010. See State v. Taylor, 2010 WL 3511272 (Del. Super. Ct.
Aug. 6, 2010). The Delaware Supreme Court affirmed that decision on October 25,
2011. See Taylor v. State, 32 A.3d 374, 391 (Del. 2011 ).
In 2012, now represented by the federal public defender's office, Petitioner filed
in this Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 11)
He filed an amended petition in June 2013, to which the State filed an answer in August
2013. (D.I. 34; D.I. 39) In April 2014, the case was stayed pending Petitioner's
exhaustion of claims to be presented to the Delaware state courts in a second Rule 61
proceeding. (D.I. 46)
On September 9, 2016, the Delaware Superior Court stayed Petitioner's second
Rule 61 proceeding pending the Delaware Supreme Court's decision in Powell v. State,
153 A.3d 69 (Del. 2016) regarding the retroactivity of its ruling in Rauf v. State, 145 A.3d
430 (Del. 2016) that Delaware's capital sentencing procedure was unconstitutional.
(D.I. 73-1 at 41-42, Entry No. 271) On April 28, 2017, following the rulings in Powell
and Rauf, the Superior Court vacated Petitioner's death sentence and resentenced him
to life imprisonment without the benefit of parole. (D.I. 73-1 at 44, Entry No. 282)
Petitioner did not appeal his resentencing.
In July 2017, Petitioner filed in the Superior Court a motion to reduce his
sentence pursuant to Delaware Superior Court Criminal Rule 35, arguing that he should

4

have been resentenced pursuant to the class A felony statute, 11 Del. Code § 4205
(2003). (D.I. 73-1 at 45, Entry No. 288) The Superior Court denied the Rule 35 motion
in August 2017 (D.I. 73-1 at 46, Entry No. 293), and the Delaware Supreme Court
affirmed that decision. See Taylor v. State, 2018 WL 121021 (Del. Mar. 7, 2018).
On August 25, 2017, Petitioner filed an amended second Rule 61 motion
("second Rule 61 motion"). (D.I. 73-1 at 46, Entry No. 294) The Superior Court denied
the second Rule 61 motion as procedurally barred, and the Delaware Supreme Court
affirmed that decision on February 27, 2019. See State v. Taylor, 2018 WL 3199537
(Del. Super. Ct. June 28, 2018); Taylor v. State, 206 A.3d 825 (Table), 2019 WL 990718
(Del. Feb. 27, 2019).
In March 2019, Petitioner filed a motion to lift the stay on the instant proceedings,
along with a proposed stipulated briefing schedule. (D.I. 56; D.I. 57) In June 2019,
Petitioner filed a second amended habeas petition, to which the State filed an objection.
(D.I. 62; D.I. 63) The Court lifted the stay, accepted the State's objections, and ordered
Petitioner to file an amended petition that included caselaw to support the arguments
asserted therein. (D.I. 66) In December 2019, Petitioner filed a second amended
petition ("Petition"). (D.I. 67) The State filed an Answer, to which Petitioner filed a
Reply. (D.I. 72; D.I. 85) In September 2021, the Court ordered the Parties to file
supplemental briefing concerning the effect, if any, the Delaware Supreme Court's
recent decision in Purnell v. State, 254 A.3d 1053 (Del. 2012) has on the determination
as to whether the post-2014 version of Delaware Superior Court Criminal Rules 61(d)
and 61(i)(2) constituted independent and adequate state procedural rules under the
federal habeas procedural default doctrine. (D.I. 86) The State filed its Supplemental
5

Answer on December 22, 2021 (D.I. 89) and Petitioner field his Supplemental Reply on
December 27, 2021 (D.I. 90).
GOVERNING LEGAL PRINCIPLES

I.

The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA") "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). Pursuant to AEDPA, 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).
Additionally, AEDPA 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).

II.

Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief

unless the petitioner has exhausted all means of available relief under state law. See
28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v.
Connor, 404 U.S. 270, 275 (1971 ). AEDPA states in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the
courts of the State; or

6

(B)(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1). This exhaustion requirement, based on principles of comity,
gives "state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process." O'Sullivan,
526 U.S. at 844-45; see Werls v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
A petitioner satisfies the exhaustion requirement by demonstrating that the
habeas claims were "fairly presented" to the state's highest court, either on direct
appeal or in a post-conviction proceeding, in a procedural manner permitting the court
to consider the claims on their merits. See Bell v. Cone, 543 U.S. 447,451 n.3 (2005);
Castille v. Peoples, 489 U.S. 346, 351 (1989). If the petitioner raised the issue on direct
appeal in the correct procedural manner, the claim is exhausted and the petitioner does
not need to raise the same issue again in a state post-conviction proceeding. See
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
If a petitioner presents unexhausted habeas claims to a federal court, and further
state court review of those claims is barred due to state procedural rules, the federal
court will excuse the failure to exhaust and treat the claims as exhausted. See

•

Coleman v. Thompson, 501 U.S. 722, 732, 750-51 (1991) (such claims "meet the
technical requirements for exhaustion" because state remedies are no longer available);
see also Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Such claims, however, are
procedurally defaulted. See Coleman, 501 U.S. at 749; Lines v. Larkins, 208 F.3d 153,
160 (3d Cir. 2000). Similarly, if a petitioner presents a habeas claim to the state's

7

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).
Federal courts may not consider 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. See McCandless v. Vaughn, 172 F.3d 255,260
(3d Cir. 1999); Coleman, 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, "1 then a federal court
can excuse the procedural default and review the claim in order to prevent a
fundamental miscarriage of justice. See 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. See Bousley v. United States, 523 U.S. 614, 623

1Murray,

477 U.S. at 496.

8

(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. See Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

Ill.

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 § 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 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§ 2254(d) if the state
court decision finally resolved the claim on the basis of its substance, rather than on a
procedural or some other ground. See 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."

Harrington v. Richter, 562 U.S. 86, 98 (2011). As 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." Id. at 99.
Finally, when reviewing a habeas claim, a federal court must presume that the
9

state court's determinations of factual issues are correct. See§ 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. See§ 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 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).

DISCUSSION
Petitioner asserts four Claims2 in his timely-filed Petition: (1) trial counsel
provided ineffective assistance by failing to (a) present a defense of extreme emotional
distress ("EEO"); (b) retain a forensic pathologist; (c) object to evidence of the victim's
pregnancy; (d) adequately litigate the motion to suppress Petitioner's confession note;
(e) object that the death qualification process utilized in his case created a jury that was
biased and violated his right to a fair and impartial jury, along with an independent claim
that the jury was biased; and (f) object when the State engaged in prosecutorial
misconduct, along with an independent claim that the State engaged in prosecutorial
misconduct; (2) appellate and post-conviction counsel provided ineffective assistance;
(3) the cumulative effect of each alleged error deprived Petitioner of a fair trial; and (4)
the Delaware Supreme Court violated several constitutional rights of Petitioner by failing
to resentence him pursuant to 11 Del. Code § 4205 instead of§ 4209, and his sentence
2Petitioner

actually presented his biased jury and prosecutorial misconduct claims as
independent claims and as part of his overall ineffective assistance of counsel claim.
For ease of analysis, the Court has included its discussion of the substantive
independent claims in its discussion of the related ineffective assistance of counsel
argument.
10

to life without parole under § 4209 violates the Eighth and Fourteenth Amendments.
I.

Claims Adjudicated on the Merits by Delaware State Courts

Petitioner presented Claim One (A) (ineffective assistance of trial counsel with
respect to EEO defense) to the Delaware Supreme Court on appeal of the Superior
Court's denial of his first Rule 61 motion. Petitioner presented Claim Four (challenging
his resentencing under § 4209) to the Delaware Supreme Court on appeal of the denial
of his Rule 35 motion for reduction of sentence. The Delaware Supreme Court denied
both arguments as meritless. Therefore, these two Claims will warrant relief only if the
Delaware Supreme Court's decisions were either contrary to, or an unreasonable
application of, clearly established federal law.
A. Claim One (A): Ineffective Assistance of Counsel for Not
Presenting EED Defense

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 that "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. A court many deny an ineffective assistance of counsel claim by only deciding one
11

of the Strickland prongs. See Strickland, 466 U.S. at 697.
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, 259-60 (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.
In Claim One (A), Petitioner asserts that trial counsel provided ineffective
assistance by failing to investigate and present the defense of extreme emotional
distress at trial. (D.I. 67 at 28-44) According to Petitioner, trial counsel failed to "consult
with an expert regarding the possibility of an extreme emotional distress defense," and
"reasonably competent counsel would have made this determination and retained an
expert to explore the viability of an EED defense months before trial." (D.I. 67 at 28-29)
More specifically, he asserts:
Had counsel conducted an adequate investigation, they would
have learned of evidence supporting an EED defense which
could have been presented to the jury. Dr. Jonathan H. Mack,
a neuropsychologist, and Dr. Edward J. Dougherty, a forensic
psychologist, both evaluated [Petitioner] during his initial Rule
61 proceedings and concluded that [Petitioner] was acting
under extreme emotional distress at the time of Ms. Williams's
death. [Petitioner's] jury, however, never heard this evidence.
Nor did it hear the roots of that distress - that at the time of
her death, [Petitioner] believed that Ms. Williams had been
with another man and that she was leaving him. In fact,
Joseph (Jay) Williams, Jr., the father of one of Ms. Williams's
children, stated that Ms. Williams had told him she planned to
end her relationship with [Petitioner] on the morning of March
23, 2000, and instead planned to be with him. This outright
rejection and abandonment triggered overwhelming feelings
of fear and controllable anger in [Petitioner] that were
12

connected to the physical and psychological abuse he
endured as a child, and that [Petitioner's] compromised brain
was powerless to control.

(D.I. 67 at 29-30)
To support his contention that trial counsel would have discovered information
supporting an EEO defense if they had conducted a more thorough investigation,
Petitioner has provided declarations from several individuals in his life describing the
physical and emotional abuse and parental abandonment they believe he suffered. 3
(D.I. 67 at 31-53) He asserts that, given his lack of proper treatment,
the chronic, severe, psychological and physical abuse [he]
endured as a child and adolescent created an adult
hypersensitive and hyperreactive to any perceived threat of
abandonment or rejection. Those "explosive" feelings of
abandonment and rejection erupted in [Petitioner] the morning
of Ms. Williams's death, when [Petitioner] believed that Ms.
Williams had been with another man and was about to end
3The

Court notes that the information gleaned from the numerous declarations which
Petitioner presents in this proceeding was not presented to the Delaware state courts in
Petitioner's first Rule 61 proceeding in 2006-2011, but was presented to the Delaware
state courts in his second Rule 61 proceeding in 2017. One of the Claims discussed
later in this Opinion alleges that first post-conviction counsel was ineffective for not
investigating further and obtaining this additional background information to be
presented in the first Rule 61 proceeding. Other evidence presented in Petitioner's
second Rule 61 proceeding but not in his first Rule 61 proceeding also includes a report
by Dr. Victoria Reynolds, a forensic psychologist, that describes the effects of
Petitioner's traumatic childhood on his ability to "self-modulate" his behavior, and an
affidavit by Dr. Charles Welti, a medical examiner and forensic pathologist, that was
presented in order to rebut the trial testimony of the State's medical examiner. See
Taylor, 2018 WL 3199537, at *7. While Petitioner does not explicitly mention Dr.
Victoria Reynold's report in this proceeding, he cites to her report (D.I. 59-5) when
summarizing the information provided in the numerous affidavits to present Petitioner's
history. (D.I. 67 at 32, 36, 51,53) The Superior Court summarily dismissed Petitioner's
second Rule 61 motion as second or subsequent under Rule 61 (d)(2) after concluding
that Petitioner's new evidence did not satisfy the "actual innocence" exception to Rule
61 (d)(2)'s bar because "actual innocence" means factual innocence, not legal
innocence. Id. at *7-8.
13

their relationship. As both Dr. Dougherty and Dr. Mack
concluded, [Petitioner] was acting under extreme emotional
distress at the time of Ms. Williams's death.
Had trial counsel presented the above evidence [i.e., the
information provided in the numerous declarations] through
the testimony of qualified experts, the jury would have learned
that [Petitioner] was acting under extreme emotional distress
at the time of Ms. Williams's death and that the distress was
reasonably explained by [Petitioner's] belief that Ms. Williams
was abandoning him as well as by his history of neglect and
abuse and resulting psychiatric difficulties. There was no
reasonable strategic reason for trial counsel's failure to
investigate and present such evidence at trial when trial
counsel admittedly knew that pursuing an EED defense was
in Petitioner's best interest. Trial counsel's failure to do so
was prejudicial, and there was a reasonable probability that,
had counsel done so, the jury would have rejected the charge
of first degree murder.

(D.I. 67 at 53-54)
In Petitioner's first Rule 61 proceeding, the Superior Court denied Claim One (A)
after finding that "no reasonable juror would have accepted the extreme emotional
distress claim presented at the postconviction hearing." Taylor, 2010 WL 3511272, at
*24-25. More specifically, and after noting that Petitioner's original defense team
retained "two doctors, a pastoral counselor, and two psycho-forensic investigators"4 to
assist in Petitioner's defense, the Superior Court opined:
Essentially, this argument again boils down to trial counsel's
alleged failure to investigate. As presented in detail above,
however, most of [Petitioner's] allegations are flatly untrue.
Again, trial counsel immediately employed an experienced,
masters-level, licensed, social worker to coordinate
[Petitioner's] psycho-forensic evaluation. They retained three
mental health experts in different disciplines. An experienced
psychologist did an initial evaluation shortly after [Petitioner's]
arrest. A less-experienced, but qualified, psychological
4 Taylor,

2010 WL 3511272, at *24.
14

assessor performed formal testing not long after the initial
evaluation. Finally, close to trial, a psychiatrist reviewed the
test results and further examined [Petitioner]. All the experts
spoke with [Petitioner] about the murder and they all had
extreme emotional distress, as well as other defenses and
mitigators, in mind.
Trial counsel examined (Petitioner's] Ferris School and
Division of Family Services records. Based on the information
they gathered, after serious consideration and repeated
attempts to establish it, trial counsel made the reasonable
decision not to pursue an extreme emotional distress defense
that was unsupported by their client and the hard evidence.
Furthermore, the extreme emotional distress defense now
envisioned by [Petitioner's] new counsel and his new experts
is another argument that sits on the defense's fault line. The
hypothetical extreme emotional distress defense turns on
[Petitioner's] personal background, including its family
dynamics. [Petitioner] still appears to be opposed to that
evidence's use. So, while it is true that counsel could,
technically, attempt to present that defense over [Petitioner's]
objection, the idea is impractical, at best. In any event, as
explained above, the whole theory is far-fetched.
Having presided over the trial and postconviction relief
hearing, the court rejects the argument that competent
counsel should have raised extreme emotional distress on
behalf of a client who told them what [Petitioner] said about
the murder, including his spotty memory of it, not being
jealous and his being highly intoxicated by his voluntary use
of drugs and alcohol. That is so, even if counsel found experts
like Ors. Dougherty and Mack to make the claim.
As presented above, [Petitioner] repeatedly told trial counsel
that before he went to Williams's home, he had been drinking
and using drugs, and he knew Williams was pregnant by
another man, but he was not jealous about that. Moreover,
there was no claim of a jealous flare-up during the final
meeting. [Petitioner] barely remembered the actual murder.
By the same token, there is no evidence, whatsoever, that
Williams said or did anything that provoked [Petitioner], much
less was there evidence of a causal relationship between any
provocation and the murder.

15

The fanciful nature of [Petitioner's] extreme emotional distress
argument is, perhaps, best reflected by the fact that
[Petitioner], himself, still does not claim extreme emotional
distress. No one, including the postconviction relief experts,
has explained how counsel could make a convincing extreme
emotional distress case without [Petitioner's] cooperation. In
reaching that conclusion, the court is aware that [Petitioner's]
new experts see [Petitioner's] inability to recall and testify
about how he murdered Williams as proof that he was
provoked and under extreme emotional distress. But, again,
even if there were an explanation, trial counsel cannot be
faulted now for not raising the defense, and there was no
prejudice to [Petitioner] because trial counsel considered but
did not try that tack. No reasonable juror would have accepted
the extreme emotional distress claim presented at the
postconviction relief hearing.

Taylor, 2010 WL 3511272, at *25. Additionally, the Superior Court stated that,
while it may be argued that Ors. Turner, Walsh, and Tavani
could possibly have performed more or different tests, or that
trial counsel could have retained different doctors, the mere
fact that [Petitioner's] counsel did not shop around for a
psychiatrist willing to testify to the presence of more elaborate
or grave psychological disorders simply does not constitute
ineffective assistance. Trial counsel's hires were objectively
reasonable, and trial counsel were not required to find "the
best" psychologists and psychiatrists available. Even if
counsel had retained "the best" experts, there is no guarantee
that the experts would have developed favorable opinions of
[Petitioner].

Taylor, 2010 WL 3511272, at *20.
The Delaware Supreme Court affirmed the Superior Court's decision, explaining:
[Petitioner] insists that his trial counsel should have, but did
not, consider other avenues of inquiry. The postconviction
hearing testimony of his trial defense counsel sharply
controverts that claim. Although [Petitioner] instructed his trial
counsel to pursue an "all or nothing actual innocence" defense
and present no mitigating evidence, counsel nonetheless
retained two experts who questioned [Petitioner's]

16

truthfulness about possible mitigating factors. Trial counsel
also strived to "tease" out an EED defense for [Petitioner], and
explored potential defenses based on mental illness and drug
addiction. But, the original defense experts did not detect any
brain damage to which [Petitioner] now points as "missed"
evidence in mitigation. The trial court also found that the head
trauma claims on which [Petitioner's] new experts based their
diagnosis were "largely uncorroborated."
[Petitioner's] new postconviction defense experts, Drs.
Dougherty and Mack, based their opinions on uncorroborated
statements [Petitioner] made to them. Expert opinions based
on uncorroborated statements do not automatically render
trial counsel's performance deficient. As the Superior Court
properly held, trial counsel's mental health investigation and
their mitigation investigation are not rendered inadequate
merely because the defendant has now secured the testimony
of a more favorable mental health expert.

Taylor, 32 A.3d at 384 (cleaned up).

With respect to the first prong of this Court's inquiry under§ 2254(d)(1 ), a "state
court decision is contrary to clearly established federal law if it applies a rule that
contradicts the governing law set forth in Supreme Court precedent, or if it confronts a
set of facts that are materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from that reached by the Supreme Court.

11

Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Here, the Delaware courts correctly

identified the Strickland standard applicable to the ineffective assistance of counsel
claims in this case, and their decisions were not contrary to Strickland. 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 state courts reasonably applied
17

the Strickland standard to the facts of Petitioner's case. See Harrington, 562 U.S. at
105-06. When performing the "reasonable application" inquiry, the Court must review
the Delaware state court's denial of Petitioner's ineffective assistance of counsel
allegations through a "doubly deferential" lens. Id. "[T]he question is not whether
counsel's actions were reasonable, [but rather], whether there is any reasonable
argument that counsel satisfied Strick/ands deferential standard." Id. 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." Id. 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 precluded "so long as fairminded jurists could disagree
on the correctness of the state court's decision." Id. at 101.
It is well-settled that "strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable." Strickland, 466
U.S. at 690. However, defense counsel's strategic choices may still amount to deficient
performance where there has been a failure to conduct a reasonable investigation
before deciding on a particular strategy. See id. at 690-91. The Third Circuit has
elaborated on counsel's duty to make investigations, explaining that "[c]ounsel can
make a strategic decision to halt an avenue of investigation to reach that decision, but
decisions not to investigate certain types of evidence cannot be called 'strategic' when
counsel fails to seek rudimentary background information." Salaam v. Secy of

Pennsylvania Dep't Corrs., 895 F.3d 254,268 (3d Cir. 2018). The Court's "principal
concern in deciding whether [counsel] exercised reasonable professional judgment is ...

18

whether the investigation supporting counsel's decision not to introduce mitigating
evidence [here, of Petitioner's EED] was itself reasonable." Wiggins, 539 U.S. at 52223.
In this case, the Superior Court denied Claim One (A) after concluding that
Petitioner failed to satisfy both prongs of Strickland: deficient performance and
prejudice. The Delaware Supreme Court affirmed the Superior Court's decision after
determining that Petitioner failed to satisfy Strick/ands performance prong and,
therefore, stated that it "need not reach or address the prejudice prong issue under
Strickland." Taylor, 32 A.3d at 385.
The Delaware Supreme Court did not unreasonably apply clearly established
federal law by only addressing the performance prong of Strickland without considering
the issue of prejudice. See Strickland, 466 U.S. at 697. The Court must also determine
if the Delaware Supreme Court's affirmance of the Superior Court's denial of Claim One
(A) involved an unreasonable application of Strickland.
The record considered by the Delaware state courts in Petitioner's first Rule 61
proceeding reveals the following relevant information. Trial counsel retained three
experts when formulating a defense theory: Dr. Alvin Turner, Ph.D., an experienced
psychologist; Dr. James Walsh, Ph.D., a qualified psychological assessor; and Dr.
Carole Tavani, M.D., a psychiatrist. See Taylor, 2010 WL 3511272, at *25. All three of
these experts agreed that Petitioner's behavior was consistent with a diagnosis of
antisocial personality disorder. See Taylor, 2010 WL 3511272, at *3-9. In addition, Dr.
Tavani stated that Petitioner had a bad temper when he drank, a history of abusing and
killing animals, setting a girl's hair on fire, and committing burglaries. Id. at *7-8.
19

Petitioner told Dr. Tavani that he had "coke, weed, beer, and alcohol" the night before
killed Williams, and that he had "six or seven" girlfriends at the time of the murder. Id. at
*8. Dr. Tavani advised trial counsel that, as a result of her evaluation, she could not
offer a psychiatric defense or anything helpful to mitigation. Id. at *9.
Dr. Turner testified that Petitioner had described his family, running away from
home, alleged physical abuse by his step-father, education, placement at the Ferris
school, and subsequent imprisonment as an adult. Id. at *4. After meeting with
Petitioner on four different occasions, Dr. Turner completed a written evaluation (which
he provided to trial counsel) stating that he did not see basis for a mental illness
defense, "including extreme emotional distress." Id. After noting that Petitioner denied
the use of alcohol before the murder, Dr. Turner could only opine that Petitioner had an
antisocial personality disorder. Id.
Dr. Walsh diagnosed Petitioner with antisocial personality disorder, cannabis
dependence, cocaine abuse, and parent-child relational problems. Id. Although
Petitioner informed Dr. Walsh that he had stopped drinking, he still regularly used
marijuana, occasionally used cocaine, and used heroin and PCP once or twice. Id. at
*5. Dr. Walsh provided details about Petitioner's background since birth, including how
he started selling drugs when he was ten years old because his mother would not buy
him expensive sneakers and his stepfather beat him with "belts, electrical wire,
drumsticks, and shoes." Id. at *4. Dr. Walsh testified that he believed Petitioner's
juvenile delinquent behavior came first, followed by school problems, then followed by
his parent's discipline. Id. Dr. Walsh also stated that Petitioner was often vague and
suspicious making it difficult to determine if he was reliably reporting information. Id. at

20

*6.
The Superior Court also heard the testimony of two new mitigation experts during
Petitioner's first Rule 61 evidentiary hearings - Dr. Edward Dougherty, a psychologist
and Dr. Johnathan Mack, a neuropsychologist. Id. at *12-14. Dr. Dougherty testified
that Petitioner suffers from the antisocial personality disorder, attention
deficit/hyperactivity disorder, and borderline personality disorder, and concluded that
Petitioner was under extreme emotional distress at the time in question. Id. at *12. Dr.
Mack opined that his testing of Petitioner supported Dr. Dougherty's diagnosis of
attention deficit hyperactivity disorder, and also explained that he found evidence of mild
brain damage. Id. at *14. Dr. Mack also concluded that Petitioner was under extreme
emotional distress at the time of the murder due to his belief that Williams was cheating
on him. Id. at *15.
The record also reveals that trial counsel "examined school and Division of
Family Services records, and met with [Petitioner[, his mother, his stepfather, and
others." Taylor, 2010 WL 3511272, at *17. During Petitioner's first Rule 61 proceeding,
trial counsel testified that, although they seriously considered pursuing an EEO defense,
they could not "tease" one out of Petitioner. Id. at *19.
It is well-settled that "strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable." Strickland, 466
U.S. at 690. Nevertheless, defense counsel's strategic choices may still amount to
deficient performance where there has been a failure to conduct a reasonable
investigation before deciding on a particular strategy. See id. at 690-91. The Third
Circuit has elaborated on counsel's duty to make investigations, explaining that
21

"[c]ounsel can make a strategic decision to halt an avenue of investigation to reach that
decision, but decisions not to investigate certain types of evidence cannot be called
'strategic' when counsel fails to seek rudimentary background information." Salaam.,
895 F.3d at 268. A reviewing court's "principal concern in deciding whether [counsel]
exercised reasonable professional judgment is ... whether the investigation supporting
counsel's decision not to introduce mitigating evidence [here, of Petitioner's EEO] was
itself reasonable." Wiggins, 539 U.S. at 522-23.
As an initial matter, the aforementioned record demonstrates that trial counsel
diligently investigated potential mitigating factors and considered potential defenses
based on mental illness and drug addiction. Trial counsel's decision not to investigate
further was reasonable when viewed in context with the opinions provided by the
retained mental health experts, and the information gleaned from records, Petitioner's
friends, his family, and Petitioner himself.
In turn, given the results of trial counsel's more than adequate investigation, trial
counsel's strategic decision not to pursue an EEO defense did not fall below objective
standards of reasonableness. Pursuant to 11 Delaware Code § 641,
[t]he fact that the accused intentionally caused the death of
another person under the influence of extreme emotional
distress is a mitigating circumstance, reducing the crime of
murder in the first degree as defined by§ 636 of this title to
the crime of manslaughter as defined by § 632 of this title.
The fact that the accused acted under the influence of
extreme emotional distress must be proved by a
preponderance of the evidence. The accused must further
prove by a preponderance of the evidence that there is a
reasonable explanation or excuse for the existence of the
extreme emotional distress. The reasonableness of the
explanation or excuse shall be determined from the viewpoint
of a reasonable person in the accused's situation under the

22

circumstances as the accused believed them to be. Extreme
emotional distress is not reasonably explained or excused
when it is caused or occasioned by the accused's own mental
disturbance for which the accused was culpably responsible,
or by any provocation, event or situation for which the accused
was culpably responsible, or when there is no causal
relationship between the provocation, event or situation which
caused the extreme emotional distress and the victim of the
murder. Evidence of voluntary intoxication shall not be
admissible for the purpose of showing that the accused was
acting under the influence of extreme emotional distress.

11 Del. Code § 641. Section 641 places the burden on the defendant to prove that he
acted "under the influence of extreme emotional distress" and "that there is a
reasonable excuse or explanation for the existence of the extreme emotional distress."

Capano v. State, 781 A.2d 556, 631 (Del. 2001). As the Superior Court found in
denying Claim One (A),
[Petitioner] repeatedly told trial counsel that before he went to
Williams's home, he had been drinking and using drugs, and
he knew Williams was pregnant by another man, but he was
not jealous about that. Moreover, there was no claim of a
jealous flare-up during the final meeting. [Petitioner] barely
remembered the actual murder. By the same token, there is
no evidence, whatsoever, that Williams said or did anything
that provoked [Petitioner], much less was there evidence of a
causal relationship between any provocation and the murder.

Taylor, 2010 WL 3511272, at *25. When considered in conjunction with the various
diagnoses from the mental health experts trial counsel did retain, Petitioner's criminal
history, and his confession, having Petitioner testify "would have been disastrous,"
because the "State could have easily challenged [Petitioner's] credibility and, in the
process, further emphasized [Petitioner's] felonious background and lack of contrition."

Taylor, 2010 WL 3511272, at *7. Thus, the Court concludes that trial counsel's
23

investigation into Petitioner's life history and their decision not to pursue an EED
defense did not constitute deficient performance under the first prong of the Strickland
standard.
Having determined that trial counsel did not perform deficiently, the Court does
not need to address the issue of prejudice. Nevertheless, the Court concludes that
Petitioner cannot demonstrate Strickland prejudice. In its 2011 decision on postconviction appeal, the Delaware Supreme Court stated that "Drs. Dougherty and Mack

D

based their opinions on uncorroborated statements [Petitioner] made to them." Taylor,
32 A.3d at 384. Here, Petitioner contends that "the factual premise upon which the
Delaware Supreme Court relied in denying [Claim One (A)] was incorrect," because the
"numerous declarations present counsel obtained" after his first Rule 61 appeal
provides corroboration for those expert opinions. (D.I. 67 at 54) The Court construes
this argument as Petitioner's attempt to demonstrate that trial counsel's failure to
adequately investigate and discover the information contained in the numerous
declarations presented by current counsel prejudiced him, presumably because the
Delaware Supreme Court would not have discounted the expert opinions as being
uncorroborated but for trial counsel's deficient performance. 5 The Court is not

5To

the extent the Court should view Petitioner's argument regarding the Delaware
Supreme Court's "uncorroborated statements" statement as an allegation that the
Delaware Supreme Court made an unreasonable determination of fact under §
2254(d)(2), the argument is summarily rejected. Pursuant to§ 2254(d)(2), the Court
must measure the reasonableness of the state court's factual findings against the record
evidence at the time of the state court's adjudication. See Rountree v. Balicki, 640 F.3d
530, 538 (3d Cir. 2011 ). Here, the Delaware Supreme Court rendered its "factual
determination" that the expert opinions issued by Drs. Mack and Dougherty were
uncorroborated in 2011. Present counsel, however, did not obtain the instant
declarations until 2013. In short, the Court cannot consider the declarations in
24

persuaded. Petitioner's detailed summary of his life history as presented in the
numerous declarations - including physical and emotional abuse and parental
abandonment - does not demonstrate a reasonable probability that he would have been
able to establish a viable EEO defense under Delaware law, or that he would have
found an expert willing to put forth an EED defense based on that information. In other
words, even if trial counsel had broadened their investigation, discovered the additional
detailed background information provided in the declarations, and found an expert to
opine that Petitioner suffered from EED at the time he murdered Williams, Petitioner has
failed to demonstrate a "substantial likelihood of a different result." Strickland, 466 U.S.
at 693.
Accordingly, the Court will deny Claim One (A) for failing to satisfy§ 2254(d).

B. Claim Four: Petitioner's Sentence to Life Without Parole
In its 2016 decision Rauf v. State, 145 A.3d 430 (Del. 2016), the Delaware
Supreme Court held that "Delaware's current death penalty statute violates the Sixth
Amendment role of the jury" in light of the United States Supreme Court's decision in
Hurst v. Florida, 136 S.Ct. 616 (2016). The Rauf court also addressed the following

question:
If any procedure in 11 Del. C. § 4209's capital sentencing
scheme does not comport with federal constitutional
standards, can the provision for such be severed from the
remainder of 11 Del. C. § 4209, and the Court proceed with
instructions to the jury that comport with federal constitutional
standards?

Id. at 434. The Rauf court answered the question:

assessing the reasonableness of the Delaware Supreme Court's 2011 factual finding
because the declarations were not part of the record at that point in time.
25

No. Because the respective roles of the judge and jury are so
complicated under § 4209, we are unable to discern a method
by which to parse the statute so as to preserve it. Because
we see no way to sever § 4209, the decision whether to
reinstate the death penalty-if our ruling ultimately becomes
final-and under what procedures, should be left to the
General Assembly.
Id.
In the years following its decision in Rauf, the Delaware Supreme Court clarified
that: ( 1) Rauf applies retroactively to a death sentence that was already final when Rauf
was decided. See Powell v. State, 153 A.3d 69, 71 (Del. 2016); and (2) Raufs
severability question was ""only ... whether it was possible to sever the constitutionallyinfirm parts of the capital punishment scheme from the constitutionally-sound ones in a
way that would preserve the death penalty." Zebroski v. State, 179 A.3d 855, 861 (Del.
2018). In Zebroski, the Delaware Supreme Court explicitly held that "Rauf did not

•

invalidate the entirety of section 4209, and, as we said in Powe//, the statute's lifewithout-parole alternative is the correct sentence to impose on a defendant whose
death sentence is vacated. And we find no constitutional fault in imposing that sentence
on him." Id. at 857.
In 2017, pursuant to Rauf, the Superior Court vacated Petitioner's death
sentence and resentenced him under§ 4209(a) to life imprisonment without the benefit
of probation or parole. Petitioner filed a motion to correct or reduce that sentence on
three grounds: (1) he should have been resentenced under§ 4205 to an indeterminate
life sentence with a mandatory minimum of fifteen years because the plain language in
Rauf rendered § 4209 void and unenforceable; (2) a mandatory life sentence without

26

parole constitutes cruel and unusual punishment under the Eight Amendment; and (3) a
mandatory life sentence without parole violates his Fourteenth Amended due process
rights. (0.1. 73-9 at 14-22) The Superior Court denied the motion to correct sentence,
and the Delaware Supreme Court affirmed that decision.
Now, in Claim Four, Petitioner contends that: (1) given the absence of clear
legislative intent in the wake of Rauf finding§ 4209 unconstitutional in its entirety, the
Superior Court lacked authority to presume that the Delaware legislature would have
enacted a mandatory sentence of life without parole and therefore erred by
resentencing him under 11 Del. Code§ 4209 instead of§ 4205 (0.1. 67 at 89, 91); (2)
his mandatory sentence of life without parole constitutes cruel and unusual punishment
under the Eighth Amendment (D.I. 67 at 95); and (3) the Superior Court violated his
right to due process under the Fourteenth Amendment by imposing a mandatory
sentence of life without parole (D.I. 67 at 89, 95). Generally, a state court's sentencing
decision and claims arising out of that decision are not cognizable in a federal habeas
proceeding, unless the sentencing constitutes cruel and unusual punishment under the
Eighth Amendment, exceeds the statutory limits, or is arbitrary or otherwise in violation
of due process. See Chapman v. United States, 500 U.S. 453, 465 (1991 ); Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)
("State courts are the ultimate expositors of state law.").

1. Absence of clear legislative intent
Petitioner contends that, given the absence of clear legislative intent, the
Superior Court erred by resentencing him under § 4205 because Rauf declared § 4209
unconstitutional in its entirety. Whether viewed as an argument that the Delaware state
27

courts misinterpreted and misapplied a Delaware sentencing statute, or an argument
that the Delaware Supreme Court violated the separation of powers between a state
court and a state legislature by resentencing him under§ 4209, Petitioner has asserted
a state law claim that is not cognizable on federal habeas review. See Lewis v.
Jeffers, 497 U.S. 764, 780 (1990) (holding that, "Federal habeas corpus relief does not
lie for errors of state law."); Whalen v. United States, 445 U.S. 684,689 n. 4 (1980) ("the
doctrine of separation of powers embodied in the Federal Constitution is not mandatory
on the States"); Mullaney, 421 U.S. at 691 ("Federal courts entertaining petitions for
writs of habeas corpus are bound by the construction placed on a State's criminal
statutes by the courts of that State"); Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.
2000) (finding that petitioner's claim asserting his state sentence violated the
"separation of powers between the judicial branch and the executive branch in the state
of Michigan" was not cognizable on federal habeas review); Johnson v.
Rosemeyer, 117 F. 3d 104, 109 (3d Cir. 1997) ("[A] state court's misapplication of its
own law does not [ ] raise a constitutional claim"). Therefore, the Court will deny the
instant sub-argument of Claim Four for failing to assert a proper basis for federal
habeas relief.

2. Eighth Amendment
Next, Petitioner contends that his mandatory life sentence without parole violates
the Eighth Amendment because Delaware is the only non-death penalty state to punish
an act defined as broadly as "intentional killing" with such a sentence. (D.I. 67 at 94-95)
He asserts, "[r]are usage indicates societal rejection of mandatorily imposing this
extreme penalty, rendering it cruel and unusual under the Eighth Amendment." (D.I. 67

28

at 95)
Petitioner presented a substantially similar claim to the Delaware Supreme Court
on appeal of the Superior Court's denial of his Rule 35 motion. Citing United States
Supreme Court and its own precedent, the Delaware Supreme Court rejected the
argument, stating that "[t]he Eighth Amendment is not violated every time a State
reaches a conclusion different from a majority of its sisters over how to best administer
its criminal laws. Instead, we defer to the General Assembly's determination." Taylor,
2018 WL 121201, at *1 (citing Rummel v. Estelle, 445 U.S. 263,274 (1980)). Given
these circumstances, Petitioner's Eighth Amendment 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.
"[T]he Eighth Amendment contains a narrow proportionality principle that does
not require strict proportionality between crime and sentence, but rather forbids only
extreme sentences that are grossly disproportionate to the crime." Graham v.
Florida, 560 U.S. 48, 59-60 (201 O); see also Ewing v. California, 538 U.S.11, 30 (2003);
Lockyer v. Andrade, 538 U.S. 63, 72 (2003). Although the Supreme Court has not
identified clear factors for determining "gross disproportionality,"6 it has identified four
principles to be considered when conducting a proportionality review: "the primacy of
the legislature, the variety of legitimate penalogical schemes, the nature of our federal
system, and the requirement that proportionality review be guided by objective
factors." Ewing v. California, 538 U.S. at 23. "In conducting this analysis, a court grants

6Lockyer,

538 U.S. at 72 (noting that "[o]ur cases exhibit a lack of clarity regarding
what factors may indicate gross proportionality").
29

substantial deference to legislative decisions regarding punishments for crimes." United
States v. Burnett, 773 F.3d 122, 136 (3d Cir. 2014). As noted by the Supreme Court,
'"'one could argue without fear of contradiction by any decision of this Court that for
crimes concededly classified and classifiable as felonies, that is, as punishable by
significant terms of imprisonment in a state penitentiary, the length of the sentence
actual imposed is purely a matter of legislative prerogative." Rummel, 465 U.S. at 274.
Notably, "[o]utside the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare." So/em v. Helm, 463
U.S. 277, 289-90 (1983) (emphasis in original); see also Lockyer, 538 U.S. at 77 ("The
gross disproportionality principle reserves a constitutional violation for only the
extraordinary case.").
Reviewing the decision of the Delaware Supreme Court in light of the applicable
legal principles, the Court concludes that the Delaware Supreme Court's rejection of
Petitioner's instant Eighth Amendment argument was not contrary to or an
unreasonable application of clearly established federal law. The Supreme Court has
held that a life sentence, even for a non-violent property crime, is constitutional. See
Harrnelin v. Michigan, 501 U.S. 957, 961, 994-96 (1995) (upholding a sentence of life
without parole for a defendant convicted of possession more than 650 grams of
cocaine, even though it was the defendant's first offense); Rummel, 445 U.S. at, 265-66
(1980). Moreover, the Delaware Supreme Court's reliance on Rummel was consistent
with the Supreme Court's pronouncements in both Lockyer and Ewing. See Lockyer,
538 U.S. at 74 (stating that "Harrnelin allows a state court to reasonably rely on Rummel
in determining whether a sentence is grossly disproportionate."); see Ewing, 538 U.S. at
30

22, (reiterating that "Rummel stands for the proposition that federal courts should be
reluctant to review legislatively mandated terms of imprisonment, and that successful
challenges to the proportionality of particular sentences should be exceedingly rare.").

3. Due Process
Finally, Petitioner argues that imposition of a life sentence without the possibility
of parole violates the Fourteenth Amendment Due Process Clause because, at the time
of trial, he was not on "notice that a sentence of life without parole would be the only indeed, the mandatory- sentence upon conviction of first degree murder." (D.I. 67 at
95) He asserts his "trial strategy sure would have been different" if he had been on
notice, because there "would have been no penalty phase proceeding at which to
present evidence to mitigate the crime." (Id.) Notably, Petitioner does not provide any
details about his original strategy and how he would have altered that strategy.
Petitioner presented this same argument to the Delaware Supreme Court upon
appeal of the denial of his motion to correct sentence. The Delaware Supreme Court
denied the argument because Petitioner "did not state how the strategy or advice would
have differed, nor how it would have affected the outcome of the case." Taylor, 2018
WL 1212021, at *2. Petitioner's argument in this proceeding suffers from the same
deficiency, and speculation as to how trial counsel might have altered their advice or
trial strategy is insufficient to establish a due process violation. Given these
circumstances, the Court concludes that the Delaware Supreme Court's denial of
Petitioner's due process argument was neither contrary to, nor an unreasonable
application of, clearly established Supreme Court precedent.
Accordingly, the Court will deny Claim Four in its entirety.

31

II.

Claims Dismissed By Delaware State Courts as Procedurally Barred

The remaining Claims in the instant Petition - Claims One (B)-(F), Two and
Three - were presented to the Delaware state courts in Petitioner's second amended
Rule 61 motion in 2017 ("second Rule 61 motion").7 The Superior Court reviewed
Petitioner's second Rule 61 motion under the version of Rule 61 that was amended in
2014. After determining that Petitioner did not satisfy the actual innocence exception to
the procedural bars in the 2014 version of Rule 61, the Superior Court dismissed the
motion as second or subsequent under Rule 61(d)(2). See Taylor, 2018 WL 3199537,
at *8. The Delaware Supreme Court affirmed that decision.8 Taylor, 2019 WL 990718,
at *1.
Pursuant to the procedural default doctrine, a federal habeas court cannot review
a claim dismissed by a state court "if the decision of [the state] court rests on a state law
ground that is independent of the federal question and adequate to support the
judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). The State contends that
the post-2014 version of Rule 61(d)(2) is an independent and adequate state procedural

7The

Court recognizes that Petitioner actually filed his original second Rule 61 motion in
November 2014, and then filed his amended second Rule 61 motion in August 2017.
See Taylor, 2018 WL 3199537, at *1-2. Since both second Rule 61 motions were filed
after the June 4, 2014 amendments to Rule 61, and since the Superior Court only
considered the claims presented in the second amended Rule 61 motion that was filed
in 2017, the Court's reference to the August 2017 Rule 61 motion does not affect its
analysis of the procedural issues in this case.
8Because

the Delaware Supreme Court affirmed the Superior Court's judgment "on the
basis of and for the reasons stated in its June 2, 2018 opinion, the Court will "look
through" that decision to the Superior Court's opinion denying Petitioner's second Rule
61 motion as procedurally barred under Rule 61 (d)(2). See Wilson v. Sellers, 138 S.Ct.
1188, 1192 (2018).
32

ground and, therefore, Claims One (B)-(F), Two, and Three are barred from habeas
review. Petitioner argues that his Claims are not barred because the post-2014 version
of Rule 61 that was applied to his case does not constitute an "adequate" state
procedural rule under the procedural default doctrine. Petitioner, however, does not
contest the independence of the post-2014 version of Rule 6 (d)(2). Therefore, the
Court will address only the "adequacy" of the 2014 version of Rule 61 for purposes of
the procedural default doctrine. 9
A. Relevant Sections of Rule 61
Delaware Superior Court Criminal Rule 61 has been amended at various times,
but the inquiry here focuses on the 2006 and 2014 versions of the rule's bar against
successive motions. In 2006, Rule 61 (i)(2) and (5) provided:
(2) Repetitive motion - Any ground for relief that was not
asserted in a prior-post conviction proceeding, as required by
subdivision (b)(2) of this rule, is thereafter barred, unless
consideration of the claim is warranted in the interest of
justice.
*
*
*
(5) Bars inapplicable - The bars to relief in paragraphs (1 ),
(2), and (3) of this subdivision shall not apply to a claim that
the court lacked jurisdiction or to a colorable claim that there
was a miscarriage of justice because of a constitutional
violation that undermined the fundamental legality, reliability,
integrity, or fairness of the proceedings leading to the
judgment of conviction.
Del. Super. Crim. R. 61 (i)(2), (i)(5) (2005).
Rule 61 was amended in June 2014. The 2014 version of Rule 61 (i)(2) provides:

9The

requirements of independence and adequacy are distinct. Leyva v. Williams, 504
F.3d 357, 365 (3d Cir. 2007). A state procedural rule is "independent" when resolution
of the state law question does not depend on a federal constitutional ruling. See Ake v.
Oklahoma, 470 U.S. 68, 75 (1985).

33

(i) Bars to Relief.
(2) Successive motions.
(i) No second or subsequent motion is permitted under
this Rule unless that second or subsequent motion
satisfies the pleading requirements of subparagraphs
(2)(i) or (2)(ii) of subdivision (d) of this rule.
(ii) Under paragraph (2) of subdivision (b) of this Rule,
any first motion for relief under this rule and that first
motion's amendments shall be deemed to have set
forth all grounds for relief available to the movant. That
a court of any other sovereign has stayed proceedings
in that court for purpose of allowing a movant the
opportunity to file a second or subsequent motion
under this rule shall not provide a basis to avoid
summary dismissal under this rule unless that second
or subsequent motion satisfies the pleading
requirements of subparagraphs (2)(i) or (2)(ii) of
subdivision (d) of this rule.

Del. Super. Crim. R. 61 (d)(2), (i)(2) (2014). The 2014 version of Rule 61 (d)(2) provides:
(d) Preliminary Consideration.
(2) Second or subsequent postconviction motions. A
second or subsequent motion under this rule shall be
summarily dismissed, unless the movant was
convicted after a trial and the motion either:
(i) pleads with particularity that new evidence
exists that creates a strong inference that the
movant is actually innocent in fact of the acts
underlying the charges of which he was
convicted; or
(ii) pleads with particularity a claim that a new
rule of constitutional law, made retroactive to
cases on collateral review by the United States
Supreme Court or the Delaware Supreme
Court, applies to the movant's case and renders
the conviction or death sentence invalid.

34

Del. Super. Crim. R. 61(d)(2), (i)(2) (2014).

8. Adequacy of the 2014 Version of Rule 61
A state procedural rule is "adequate" to bar federal habeas review if "it was 'firmly
established and regularly followed" at the time of the alleged default. Ford v. Georgia,
498 U.S. 423-24 (1991); Williams v. Beard, 637 F.3d 195,221 (3d Cir. 2011). The
adequacy requirement "is intended both to ensure that state courts do not insulate
disfavored claims from federal review, and to ensure that federal habeas review is not
barred unless petitioners have fair notice of the steps they must take to avoid default."

Campbell v. Burris, 515 F.3d 172, 179 (3d Cir. 2008). "[A] state procedural bar may
count as an adequate and independent ground for denying a federal habeas petition
even if the state court had discretion to reach the merits despite the default." Walker v.

Martin, 562 U.S. 307, 311 (2011). Additionally, "[a] discretionary rule ought not be
disregarded automatically upon a showing of seeming inconsistencies" in its
application. Id. at 320. In Johnson v. Lee, the Supreme Court held that California's

Dixon bar10 was both firmly established and regularly followed, explaining that the Dixon
bar is "firmly established" because the California Supreme Court warned defendants for
decades that, "absent 'special circumstances,' habeas 'will not lie where the claimed
errors could have been, but were not, raised upon a timely appeal from a judgment of
conviction."' Johnson v. Lee, 578 U.S. 605, 608 (2016). The Supreme Court also
explained that "there is little difference between discretion exercised through an
otherwise adequate procedural bar's exceptions and discretion that is a part of the bar
10"Under the

so-called 'Dixon bar,' a defendant procedurally defaults a claim raised for
the first time on state collateral review if he could have raised it earlier on direct appeal."
Johnson , 578 U.S. at 606.
35

itself." Id. at 610-11.
As summarized by the Third Circuit:
[i]n applying these principles, this Court seeks to determine
whether the state rule itself provides guidance regarding how
the rule should be applied or whether such standards have
developed in practice. However, neither an occasional act of
grace by a state court ... nor a willingness in a few cases to
overlook the rule and address the claim on the merits renders
a rule inadequate. A rule can be adequate if the state
supreme court faithfully applies it in "the vast majority" of
cases.

Campbell v. Burris, 515 F.3d 172, 179 (3d Cir. 2008). The adequacy of a state

procedural bar is a question of federal law. See Lee v. Kemna, 534 U.S. 362, 375
(2002).
Petitioner contends that the prohibition against second or subsequent Rule 61
motions contained in the 2014 version of Rule 61 - as applied to his case - does not
constitute an "adequate state procedural bar'' for procedural default purposes, because
he did not have "fair notice" of the summary dismissal provisions added to the 2014
version of the rule when he filed his first Rule 61 motion in 2006. The State contends
that the prohibition against second or subsequent Rule 61 motions contained in the
2014 version of Rule 61 constitutes an adequate procedural for two reasons. First,
when Petitioner filed both his first and second motions for postconviction relief, Rule
61 (i)(2) prohibited defendants from filing claims that were not raised in a prior motion for
postconviction relief. As a result, in 2006, Petitioner had notice that claims presented in
a successive Rule 61 motion would be procedurally barred. In other words, the bar
against successive motions contained in the 2014 version of Rule 61 was not novel.

36

Second, the 2014 version of Rule 61 was firmly established and regularly followed when
Petitioner filed his second amended Rule 61 motion in August 2017 (the date the State
contends is the relevant date for default purposes). (D.I. 89 at 10-15)
The Third Circuit has articulated a three-step test for determining the adequacy
of a state procedural rule. See Bronshtein v. Hom, 404 F.3d 700, 708 (2005). First, the
Court must identify the relevant rule upon the which the Superior Court based its
decision. Here, the relevant rule is the 2014 version of Rule 61.
Second, the Court must identify the relevant point in time that Petitioner violated
the rule, i.e., committed the default. See Fahy v. Hom, 516 F.3d 169, 188 (3d Cir. 2008)
(explaining that determining whether a procedural rule was "firmly established and
regularly followed is determined as of the date the default occurred, not the date the
state court relied on it, because a petitioner is entitled to notice of how to present a
claim in state court."). Petitioner contends that his default of the rule against successive
Rule 61 motions occurred in 2006 when he filed his first Rule 61 motion without
including all of his claims. The State contends that Petitioner's default occurred in 2017,
when he filed his second Rule 61 motion containing new claims. In Bronshtein, the
procedural rule at issue was the one-year statute of limitations applied to Pennsylvania
post-conviction motions. The Third Circuit found that Bronshtein's default occurred
when he had failed to file a post-conviction motion by the end of the one-year period,
not when he filed the motion that was later determined to be time-barred. Id. at 708.
This reasoning would indicate that the relevant time period in this case is 2006, when
Petitioner failed to include all of his claims in his first Rule 61 motion. The Court has
found very limited caselaw directly addressing this issue, but that caselaw provides

37

support for Petitioners contention that his default occurred in 2006. See, e.g.,
Petrocel/li v. Angelone, 248 F.3d 877, 886 (9th Cir. 2001) (finding that the time of default

of bar on successive state post-conviction petitions occurred when Petrocelli filed his
first state post-conviction petition.); Anderson v. Carlin, 2014 WL 1317610, *8 (D. Idaho
Mar. 31, 2014) ("'Adequacy' for federal habeas corpus procedural bar purposes is
measured at the time of the purported default - here, the date the successive petition
was filed, not the date the court considered it."); Blake v. Baker, 2016 WL 5508822, at
*4 (D. Nev. Sept. 28, 2016) ("Because the analysis focuses on the time the purported
default occurred and not when a state court actually applies the bar, respondents must
show that Nev. Rev .Stat.§ 34.810 had become clear, consistently applied, and wellestablished by the time Blake filed his counseled supplemental petition in his first state
post-conviction proceeding (May 2007)."). Therefore, the Court will use 2006 as the
relevant date in step three.
In the third step of the adequacy inquiry, the Court must determine if the 2014
version of Rule 61 was "firmly established and regularly followed" on the date of its
application - June 28, 2018.
Although the 2014 version of Rule 61 is fairly recent, Delaware courts have
consistently applied the rule to bar successive motions since its enactment. Indeed,
since the actual "bar" on successive motions has not changed, Delaware courts have
consistently applied the rule to bar successive motions for decades.
Petitioner's challenge to the adequacy of the 2014 version of Rule 61's bar on
successive motions does not focus on what the two different versions of Rule 61
actually "bar" but, rather, on the difference in the exceptions to the successive bar
38

contained in the 2006 and 2014 versions. Specifically, he frames the question in terms
of whether he had notice in 2006 of the available exceptions to the bar that would apply
to any future attempt to avoid the procedural bar for successive motions:
At the time of [Petitioner's] default [in 2006], he had no notice
that, in 2014, the interest of justice and miscarriage of justice
exceptions would be abolished, and that he would be
subjected to a new rule whereby any new and formerly
adjudicated claims would be summarily dismissed unless he
was actually innocent, or plead with particularity that a new
rule of constitutional law applies to his case rendering his
conviction or sentence invalid. Therefore, the 2014 default
bars applied to [Petitioner] in 2018 were inadequate to satisfy
the fair notice requirement.

(D.I. 67 at 19) Elaborating on the difference between the exceptions to the bars in the
2006 and 2014 versions of Rule 61, he asserts:
At the time of [Petitioner's] 2006 default (where he failed to
add the majority of the claims before the court), [Petitioner]
was on notice that should his counsel fail to file a colorable
claim that he was deprived of a substantial constitutional right,
this claim would still be considered by the Delaware state
courts as long as the evidence supported that his claim was
more than mere speculation but less than a colorable
showing. He was also on notice that the law of the case and
former adjudication doctrines would not be enforced if it was
in the interest of justice not to do so. If a claim had not been
raised in a prior post-conviction proceeding, Rule 61 explicitly
allowed the court to consider the claim "in the interest of
justice." Rule 61(i)(2) (2005). Similarly, if a defendant raised
"a colorable claim that there was a miscarriage of justice,"
Rule 61 again explicitly allowed the court to consider the
claim, even if it was untimely or had not been raised in a prior
proceeding. Id. In 2006, the Delaware courts recognized that
the principles of equity mandated a fail-safe.

(D.I. 67 at 17)

39

In practice, however, both the Rule 61(i)(2) and (5) exceptions in the 2006
version of Rule 61 were rarely applied. As explained by the Delaware Supreme Court in
1990, "[t]he fundamental fairness exception ... is a narrow one and has been applied
only in limited circumstances, such as when the right relied upon has been recognized
for the first time after the direct appeal." Younger v. State, 580 A.2d 552, 555 (Del.
1990). Notably, "[c]ases in which [the Delaware Supreme Court] has previously found
that the interests of justice require an exception to the procedural bars of Rule 61(i)(2)
or (i)(4) have involved specific allegations compelling subsequent factual or legal
developments that suggest, for example, that a conviction was procured by false
testimony or that the court lacked the authority to punish the defendant." Deputy v.

State, 2014 WL 3511720, at *2 n.10 (Del. 2014). Petitioner's claims in his second Rule
61 motion meets none of these standards and, contrary to his assertion, the exceptions
in the 2006 version of Rule 61 motion were not a "fail safe."
There is no question that the exception to the successive bar in the 2014 version
of Rule 61 is more restrictive than the 2006 version. Under the 2014 version, "findings
of actual innocence [to satisfy the exception to the bar] are reserved for the 'rare' or
'extraordinary' case." See State v. Adkins, 2021 WL 3783636, at *5 (Del. Super. Ct.
Aug. 25, 2021). To date, the Delaware Supreme Court has only held one case to
satisfy the exception in the 2014 version of Rule 61: Purnell v. State, 254 A.3d 1053
(Del. 2021). The Purnell Court explicitly addressed the difference between the
exceptions in the pre-and-post 2014 versions of Rule 61:
Prior to the 2014 amendments, Rule 61 provided an exception
to the application of the procedural bars involving colorable
claims of a miscarriage of justice. As we said in Swan, "Rule
40

61 (i)(5) [provides] an exception to the bars of Rule 61 (i)(1 ),
(2), and (3) for a colorable claim that there was a miscarriage
of justice because of a constitutional violation that undermined
the fundamental legality, reliability, integrity, or fairness of the
proceedings that lead to the conviction." Under the old rule,
we have no doubt Purnell would obtain relief on this
successive motion, without the need to provide compelling
new evidence of his actual innocence.

Purnell, 254 A.3d at 1094, n. 185 (cleaned up).
For more than two decades, this Court has consistently found the pre-2014
version of Rule 61(i)(2) to be an adequate (and independent) state procedural bar. 11 In
2016, this Court explicitly held that the Delaware state courts have applied Rule 61 in a
consistent and ascertainable manner since 1990. See Zebroski v. Pierce, 2016 WL
697614, at *8 (D. Del. Feb. 22, 2016). Although this Court in Zebroski recognized that a

11

See Binaird v. Pierce, 981 F. Supp. 2d 281,288 (D. Del. 2013); Anderson v. Phelps,
930 F. Supp. 2d 552, 564 (D. Del. 2013); Caldwell v. Phelps, 945 F. Supp. 2d 520, 535
(D. Del. 2013); Price v. Phelps, 894 F. Supp. 2d 504, 524 (D. Del. 2012); Garvey v.
Phelps, 840 F. Supp. 2d 782, 786-87 (D. Del. 2012); Johnson v. Phelps, 810 F. Supp.
2d 712, 718 (D. Del. 2011); Johnson v. Phelps, 723 F. Supp. 2d 735, 740 (D. Del.
2010); Buchanan v. Johnson, 723 F. Supp. 2d 727, 733 n.4 (D. Del. 2010); Grosvenor
v. Deloy, 2010 WL 717550, at *4 (D. Del. Mar. 1, 2010); Harris v. Phelps, 662 F. Supp.
2d 364, 371-72 n.4 (D. Del. 2009); Bodnari v. Phelps, 2009 WL 1916920, at *5 (D. Del.
July 6, 2009); Cochran v. Phelps, 623 F. Supp. 2d 544, 552 (D. Del. 2009); Dixon v.
Phelps, 607 F. Supp. 2d 683,688 (D. Del. 2009); Fogg v. Phelps, 579 F. Supp. 2d at
612; Drummond v. Ryan, 572 F. Supp. 2d 528, 534 (D. Del. 2008); Yost v. Williams,
572 F. Supp. 2d 491, 496 n.3 (D.Del. 2008); VanLier v. Carro//, 535 F. Supp. 2d 467,
474 (D. Del. 2008); Mills v. Carroll, 515 F. Supp. 2d 463,468 (D.Del. 2007); Zuppo v.
Carro//, 458 F. Supp. 2d 216,235 (D. Del. 2006); Hamilton v. Kearney, 2006 WL
2130716, at *3 (D. Del. July 28, 2006); Summers v. Carro//, 2006 WL 1338770, at *4 (D.
Del. May 16, 2006); Elliott v. Kearney, 2004 WL 724958, at *4 (D. Del. Mar. 31, 2004);
Webb v. Carro//, 2003 WL 22299036, at *9 (D. Del. Oct. 6, 2003); McLaughlin v. Carroll,
270 F. Supp. 2d 490, 510 (D. Del. 2003); Kirk v. Carro//, 243 F. Supp. 2d 125, 143 (D.
Del. 2003); Vickers v. Delaware, 2002 WL 31107362, at *8 (D. Del. Sept. 23, 2002);
Maxion v. Snyder, 2001 WL 848601, at *10 (D. Del. July 27, 2001); Lawrie v. Snyder, 9
F. Supp. 2d 428,453 (D. Del. 1998); Carterv. Neal, 910 F. Supp. 143, 150-51 (D. Del.
1995).
41

petitioner could argue that the courts applied Rule 61(i)(2) in his or her case in an
inconsistent manner, that is not Petitioner's contention in this case. Instead, Petitioner
contends that the 2014 version of Rule 61 is inadequate as applied to him because he
did not have notice in 2006 that a successive Rule 61 motion would be subject to
summary dismissal.
While it is true that Petitioner did not have notice in 2006 that the known
exceptions to Rule 61 's successive bar would be amended eight years later, the Court
is not persuaded that the subsequent amendment to the exceptions in a firmly
established and regularly followed procedural bar on successive motions renders the
2014 version of the successive bar inadequate. As the Third Circuit explained when
considering the adequacy of Delaware Supreme Court Rule 8, the relevant legal issue
is "whether, at the relevant point in time, the judicial discretion contemplated by the .
state rule is being exercised in a manner that lets people know when they are at risk of
default and treats similarly-situated people in the same manner." Campbell v. Burris,
515 F.3d 172, 181 (3d Cir. 2008). When Petitioner filed his first Rule 61 motion in 2006,
he had notice under Rule 61 (i)(2) that obtaining review for successive claims not
included in an initial Rule 61 motion would require the exercise of a defined amount of
judicial discretion to determine if he fit within one of the statutory exceptions to the bar.
When Petitioner filed his second Rule 61 motion in 2017, he had notice under Rule
61 (i)(2) that obtaining review for successive claims not included in an initial Rule 61
motion would require the exercise of a defined amount of judicial discretion to determine
if he could satisfy the statutory exceptions to the bar. Although the defined amount of
judicial discretion to be exercised when determining if the exceptions are satisfied

42

changed from 2006 to 2014, at all times Petitioner knew-i.e., had fair notice- that the
failure to include all claims in his first Rule 61 motion would result in a default. Viewed
in this manner, it is evident that Petitioner had fair notice in 2006 that he should include
all claims in his first Rule 61 motion or risk having subsequent motions be barred as
successive. See Cabrero v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999) ("a petitioner
should be on notice of how to present his claims in the state courts if his failure to
present them is to bar him from advancing them in a federal court."). Thus, the Court
concludes that the 2014 version of Rule 61, as applied to Petitioner's case, constitutes
an adequate state procedural bar.
C. Did Petitioner's Presentation of Claims in his Second Rule 61 Appeal
Exhaust State Remedies
Petitioner presented the remaining Claims in the instant Petition - Claims One
(B)-(F), Two and Three - to the Superior Court in his second Rule 61 motion. When
Petitioner appealed the denial of the motion to the Delaware Supreme Court, he did not
brief these claims. Instead, he attached a copy of his second Rule 61 motion to his
appellate brief. (D.I. 73-16; D.I. 73-17) In its Rule 61 appellate reply, the State asserted
11

in a footnote that Petitioner's failure to brief the claims he raised below constitutes a
waiver and abandonment of those claims on appeal." (D.I. 73-25 at 16 n.21) Petitioner
responded that he did not waive or abandon the claims, and provided two arguments as
to why the Delaware Supreme Court should reject the State's assertion. (D.I. 73-26 at
6)

The Delaware Supreme Court did not mention any waiver or abandonment of
clairr,s when it affirmed the Superior Court's judgment. Instead, it stated, "after careful

43

consideration of the parties' briefs and the record on appeal, we find it evident that the
final judgment of the Superior Court should be affirmed on the basis of and for the
reasons stated in its June 28, 2018 opinion." Taylor, 2019 WL 990718, at *1.
In this proceeding, the State argues that Petitioner did not exhaust state
remedies for Claims One (8)-(F), Two and Three because he did not "fairly present" the
Claims to the Delaware Supreme Court on post-conviction appeal. The Court is not
persuaded. The Delaware Supreme Court did not raise the issue of waiver or
abandonment in its Order. Rather, it clearly stated it was affirming the Superior Court
for the same reasons provided by the Superior Court when it denied Petitioner's second
Rule 61 motion. Given the Delaware Supreme Court's summary affirmance and silence
on the issue of abandonment or waiver, the Court "looks through" the Delaware
Supreme Court's decision to the Superior Court's decision. See Y1 st V. Nunnemaker,
501 U.S. 797, 804 (1991). The Superior Court thoroughly analyzed the issue of
Petitioner's procedural default. Therefore, the Court concludes that Petitioner
exhausted state remedies for his remaining Claims, and that the Delaware Supreme
denied them as procedurally barred for the same reasons set forth by the Superior
Court.

D. Martinez Does Not Aid Petitioner In Establishing Cause For His Default
To reiterate, the State contends that the Court cannot review the merits of Claims
One (8)-(F), Two, and Three unless Petitioner demonstrates cause and prejudice, or
that a miscarriage of justice will occur without a merits review. Citing Martinez v. Ryan,
566 U.S. 1, 9 (2012), Petitioner contends that post-conviction counsel's failure to raise
the instant Claims in his first Rule 61 proceeding constitutes cause for his default.

44

In Martinez, the Supreme Court held that inadequate assistance of counsel
during an initial-review state collateral proceeding may establish cause for a petitioner's
procedural default of a claim of ineffective assistance of trial counsel. Id. at 12, 16-17.
In order to obtain relief under Martinez, a petitioner must demonstrate that: (1) the
defaulted ineffective assistance of trial counsel claim is "substantial"; (2) counsel in the
initial state collateral review proceeding was ineffective or absent under the standard
articulated in Strickland; and (3) that he was prejudiced. Id. at 14-17. In Worl<man v.
Sup't Albion SCI, 915 F .3d 928, 938 (3d Cir. 2019), the Third Circuit recognized that, in

order to show that post-conviction counsel's errors "caused prejudice under Strickland,"
a petitioner would have to essentially show that the defaulted claim is itself meritorious.
Id. at 938-39. "In other words, Martinez appears to require a state prisoner to prevail on

the merits of his underlying claim merely to excuse the procedural default and obtain
consideration on the merits." Owens v. Stirling, 967 F.3d 396,423 (4th Cir. 2020). To
avoid this conundrum, the Third Circuit held that a petitioner satisfies Martinez by
showing: (1) that initial postconviction counsel performed deficiently under Strick/ands
first prong by not exhausting the underlying ineffective assistance of trial counsel claim
(but petitioner does not have to show that post-conviction counsel's deficient
performance was prejudicial under Strick/ands second prong); and (2) that the
underlying ineffective assistance of trial counsel claim is substantial. See Worl<man,
915 F.3d at 940. A "substantial claim" is one that has "some merit", and a petitioner
demonstrates "some merit" by showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
45

further." Id. at 938. "If (a petitioner] shows that his underlying ineffective assistance of
trial counsel ('IATC') claim has some merit and that his state post-conviction counsel's
performance fell below an objective standard of reasonableness, he has shown
sufficient prejudice from counsel's ineffective assistance that his procedural default
11

must be excused under Martinez . Id. at 941.
In an effort to demonstrate that first post-conviction counsel performed deficiently
under Strick/ands first prong and avoid default under Martinez, Petitioner contends that
first post-conviction counsel provided ineffective assistance by failing to investigate and
pursue grounds for relief beyond claims of ineffective assistance of trial counsel. (D.I.
67 at 23) Citing the American Bar Association Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines"), 12
Petitioner asserts that post-conviction counsel "cannot rely on the previously compiled
record but must conduct a thorough, independent investigation, and should litigate a//
issues, whether or not previously presented, that are arguably meritorious under the
standards applicable to high quality capital defense representation." (D.I. 67 at 23)
(emphasis in original) In Petitioner's words:
Initial post-conviction counsel's failure to investigate, develop
and present the claims listed below [Claims One (B)-(F), TwoThree] was ineffective because it was not strategic. It is
axiomatic that a reasonable investigation must take place
before counsel can make a strategic choice regarding which
issues to include in a habeas petition.

12Ironically,

post-conviction counsel in Petitioner's first Rule 61 proceeding also relied on
the ABA Guidelines when arguing that trial counsel provided ineffective assistance by
failing to conduct a thorough investigation of the defendant's history. See Taylor, 2010
WL 3511272, at *16.
46

(D.1. 67 at 24)
Petitioner's summary and conclusory assertion that post-conviction counsel erred
by not presenting these allegations in his first Rule 61 proceeding does not satisfy his
burden to demonstrate that post-conviction counsel's representation was objectively
unreasonable. Significantly, Petitioner completely ignores that the Superior Court
appointed two attorneys to represent him in his Rule 61 proceeding and post-conviction
appeal. Instead, he focuses solely on the professional and personal struggles suffered
by one of his two post-conviction attorneys ("attorney A") and describes attorney A's
history of: (1) professional disciplinary issues in 1987, 1991, and 2002; (2) entry of a
guilty plea in 2013 to two criminal charges of sexual harassment and soliciting sexual
favors in exchange for legal services; and (3) a diagnosis of post-traumatic stress
disorder ("PTSD"), and memory limitations as a result of a concussion and use of
prescription drugs. (D.I. 67 at 9) While attorney A's troubled past is unfortunate and
may have had an impact on his (attorney A's) performance, attorney A's personal and
professional history does not necessarily support Petitioner's conclusory statement that
attorney A "did not effectively present or litigate all reasonable grounds for relief' in his
first Rule 61 proceeding. (D.I. 67 at 9) Petitioner does not identify any particular
instance where attorney A's "issues" may have affected his Rule 61 proceeding or
allege that any particular trial event or decision was affected. To the extent Petitioner is
suggesting that the Court should per se declare attorney A ineffective based on his
professional and personal travails, the Court has not found any case indicating that the
Supreme Court or federal circuit court has adopted a per se rule of ineffective

47

assistance based on an attorney's suspension from practicing law that occurred at time
other than counsel's time of representation, PTSTD, or undiagnosed memory issues.
Inexplicably, Petitioner does not address the performance of the other attorney
("attorney B") who represented him during the first Rule 61 proceeding, despite the fact
that she actively participated in the preparation for and litigation of his first Rule 61
proceeding. 13 There is nothing in the record to indicate that attorneys A and B were not
equally responsible for making decisions on investigation and arguments to be pursued
during Petitioner's first Rule 61 proceeding. Consequently, the Court views Petitioner's
failure to even cursorily address how attorney B may have provided deficient
performance as a sufficient reason to conclude that Petitioner has failed to establish
that the performance of his first post-conviction counsel fell below an objective standard
of reasonableness.
Moreover, the fact that Petitioner's current counsel has obtained declarations
from numerous friends and family describing Petitioner's traumatic life history does not
ipso facto demonstrate that first post-conviction counsel failed to conduct a reasonable

investigation into what issues to pursue. As articulated by the Supreme Court, "[w]hen
counsel focuses on some issues to the exclusion of others, there is a strong
presumption that he did so for tactical reasons rather than through sheer neglect."

13Petitioner

does not even include attorney B's name in his list of counsel who
represented him during his state court proceedings. {D.I. 67 at 26) While no longer
practicing law, attorney B {Jennifer-Kate M. Aaronson) was an experienced death
penalty attorney at the time of Petitioner's Rule 61 proceeding and was subsequently
appointed chief disciplinary counsel for the Delaware Office of Disciplinary Counsel.
Attorney B's experience provides additional support for presuming that the failure to
pursue the claims at issue was due to a strategic decision made after a reasonable
investigation rather than deficient performance.

48

Yarborough v. Gentry, 540 U.S. 1, 8 (2003). "Even if some of the arguments would
unquestionably have supported the defense, it does not follow that counsel was
incompetent for failing to include them. Focusing on a small number of key points may
be more persuasive .... " Id. at 7. Here, Petitioner's assertions fail to overcome
Strick/ands "strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689.
The Court also notes that the record does not support and indeed contradicts
Petitioner's unsubstantiated allegation that post-conviction counsel (either together or
individually) provided ineffective assistance during his first Rule 61 proceeding.
Contrary to Petitioner's assertion, this is not a case in which post-conviction counsel
only raised ineffective assistance of counsel claims (IATC). Rather, counsel made nine
claims, four of which were for IATC, in the first Rule 61 motion: (1) IATC for failing to
investigate defenses and mitigators; (2) IATC for failing to object to non-statutory
aggravators; (3) Petitioner's waiver of presenting mitigating evidence was not knowing,
voluntary, and intelligent; (4) IATC for failing to prepare mental health defenses; (5)
IATC for failing to object to the trial court's consideration of evidence not presented to
the jury; (6) prosecutorial misconduct during closing argument; (7) IATC for failing to
object to the trial court's anti-sympathy jury instruction; (8) Delaware's method of
execution constitutes cruel and unusual punishment; and (9) Delaware's death penalty
statute is unconstitutional. (D.I. 73-18 at 88-110) The Superior Court conducted
fourteen days of evidentiary hearings, during which post-conviction counsel called the
following witnesses to testify: trial counsel; Jesse Hambright, a Department of
Correction guard who had regular contact with Taylor from 2000 to 2001; Judith Mellen,
49

former executive director of the ACLU, who investigated overcrowding and harsh
punishments at Ferris School in 1989 (Petitioner was in Ferris until 1986); Robert
Golebiewski, a presentence officer who testified at Petitioner's penalty hearing; John
Scholato, Jr., Petitioner's teacher at Ferris School and Gander Hill Prison; David
Ruhnke, Esquire, who had tried fourteen capital cases in Maryland and had reviewed
Petitioner's file and written a report regarding his opinions; Regina Devlin, mentioned in
the confession and introduced above; Brother David; and Ors. Edward Dougherty and
Jonathan H. Mack, postconviction psychologists. See Taylor, 2010 WL 3511272, at 11.
Post-conviction counsel also attempted to call Petitioner's mother as a witness.
"Although [Petitioner's] mother testified at the penalty hearing, she resisted process,
adamantly refusing to cooperate or testify on her son's behalf at the postconviction
hearing. The court denied [Petitioner's] request for an arrest warrant." Id. at *12.
Additional testimony was taken by deposition post-hearing. Id. at *11.
In sum, after viewing Petitioner's general allegations regarding attorney A's
professional and personal history, and the lack of any allegations regarding attorney B's
performance, in conjunction with this brief summary of the record, the Court concludes
that Petitioner has failed to plead facts sufficient to establish that post-conviction
counsel's investigation and presentation of claims during his first Rule 61 proceeding
and appeal fell below an objective standard of reasonableness. Thus, Petitioner has
failed to establish cause for his default of the IATC arguments in Claims One (B)-(F).
Additionally, to the extent Claim One (E) asserts an independent claim that the death
qualification process created a biased jury, Claim One (F) asserts an independent claim
alleging prosecutorial misconduct, and Claims Two and Three assert arguments other

50

than IATC, Martinez does not provide an avenue to establish cause for his default of
these Claims because they are not IATC claims.

E. Petitioner Cannot Demonstrate Actual Prejudice Caused By Default Or
That A Miscarriage Of Justice Will Occur Without Review
In the absence of cause, the Court does not need to address the issue of
prejudice. Nevertheless, Petitioner cannot establish that he has suffered prejudice as a
result of his procedural default of Claims One (B)-(F), Two, and Three. The Court will
address the absence of prejudice and the unavailability of the miscarriage of justice
exception with respect to Petitioner's remaining Claims in seriatim.

1. Claim One (B): Failure to retain a forensic pathologist
In Claim One (B), Petitioner contends that trial counsel failed to consult with a
forensic pathologist to prepare for trial and, therefore, was not prepared to rebut the
"false and inaccurate" testimony concerning the details of Williams' death provided by
the State medical examiner, Dr. Adrienne Sekula-Perlman. (D.I. 67 at 55) Petitioner
asserts that that the medical examiner's testimony provided the only evidence of intent,
and she inaccurately testified that: (1) it took Williams four minutes to die by
strangulation; and (2) the blunt and sharp force injuries to Williams' body contributed to
her death. (D.I. 67 at 55-56) According to Petitioner, "it is likely that [he] would have
been convicted of a lesser offense" if trial counsel had presented a qualified expert.
(D. I. 67 at 55) Petitioner is incorrect.
At trial, the medical examiner testified that a person who is strangled by ligature
will first lose consciousness and then die "after approximately four minutes or so." (D.I.
41-48 at 5) Petitioner argues that the report of his postconviction expert, Dr. Charles

51

Wetli, proves that the medical examiner's statement is wrong. In his report, Dr. Wetli
asserts, "[o]ne cannot dogmatically state how long it takes to die in a homicidal
strangulation[] but certainly in less than the four minutes Dr. Sekula-Perlman testified it
would have taken." (D.I. 73-24 at 63) Dr. Wetli's report also states, "because of the
deceased's morbid obesity, which led to an already compromised chest cavity and
airway, loss of consciousness and death likely ensued even more rapidly," and that
"neither sharp force nor blunt force injuries contributed to[] Williams' death. (Id. at 6163)
Dr. Wetli's determinations do not aid Petitioner in demonstrating ineffective
assistance, because the facts of this case do not hinge on how long it took Williams to
die once strangled. In his confession note, Petitioner admitted that he strangled, beat,
and "stuck a long kitchen knife down [Williams'] mouth and cut something in her throat."

Taylor, 822 A.2d at 1054 n.5. Even with the opinion of a different pathologist, the facts
of this case prove intentional murder. Therefore, Petitioner cannot demonstrate that
trial counsel's failure to retain a forensic pathologist actually prejudiced him.
The Court also concludes that the miscarriage of justice exception does not apply
to excuse Petitioner's default of the instant Claim, because he has not provided new
reliable evidence of his actual innocence. Therefore, the Court will deny Claim One (8)
as procedurally barred.

2. Claim One (C): Failure to object to evidence of Williams'
pregnancy
Petitioner argues that trial counsel was ineffective for failing to object to the
"prejudicial and irrelevant" evidence that Williams was pregnant when he murdered her.

52

His argument is meritless. The fact of Williams' pregnancy would have been before the
jury with or without objection from trial counsel. Petitioner's handwritten confession note
stated: "There should be no sympathy for me because I killed a pregnant woman who
was carrying my child." (D.1. 41-47 at 126) In addition, the autopsy protocol confirmed
that Petitioner was pregnant when Petitioner murdered her, and that the fetus died as a
result. (D.1. 41-48 at 6) The State could properly present evidence of Williams'
pregnancy to prove Petitioner's state of mind,

i.e., that he committed intentional murder.

Petitioner has failed to demonstrate prejudice resulting from trial counsel's failure to
object to evidence of Williams' pregnancy.
The Court also concludes that the miscarriage of justice exception does not apply
to excuse Petitioner's default of the instant Claim, because he has not provided new
reliable evidence of his actual innocence. Therefore, the Court will deny Claim One (C)
as procedurally barred.
3. Claim One (D): Failure to adequately litigate the motion to
suppress his confession note
In Claim One (D), Petitioner contends that trial and appellate counsel were
ineffective for failing to succeed in suppressing his handwritten confession. Trial
counsel filed a motion to suppress Petitioner's confession note on the basis that the
police violated his Fourth Amendment rights by seizing and reading the note without a
warrant during an inventory search of his belongings in the turnkey area of police
headquarters. The Superior Court denied the motion. See State v. Taylor, 2001 WL
282813, at *3 (Del. Super. Ct. Mar. 20, 2001). Petitioner raised the issue on direct
appeal, and the Delaware Supreme Court affirmed the Superior Court's decision. See

53

Taylor, 822 A.2d at 1055-56. Specifically, the Delaware Supreme Court held that this
type of routine inventory search was a well-defined exception to the warrant
requirement and, therefore, did not violate the United States Constitution. See id. at
1055.
In this proceeding, Petitioner contends that trial and appellate counsel should
have moved to suppress the confession note on the ground that the note was searched
and seized without a warrant in order to gather evidence against Petitioner for Williams'
death. In essence, Petitioner is arguing that the officer's inventory search was an
excuse to search Petitioner's person without a warrant.
To the extent the instant argument constitutes an independent claim that the
police violated his Fourth Amendment rights in searching and seizing his confession
note, the Court concludes that it fails to assert a proper basis for federal habeas relief
under the doctrine established in Stone v. Powell, 428 U.S. 465, 494 (1976). In Stone,
the Supreme Court held that federal courts cannot provide habeas review of Fourth
Amendment claims if the petitioner had a full and fair opportunity to litigate Fourth
Amendment claims in the state courts. Id.; see Wright v. West, 505 U.S. 277,293
(1992) ("We have also held ... that claims under Mapp [alleging evidence obtained in
violation of the Fourth Amendment] are not cognizable on habeas as long as the courts
have provided a full and fair opportunity to litigate them at trial or on direct review."). A
petitioner has had a full and fair opportunity to litigate such claims if the state has an
available mechanism for suppressing evidence seized in or tainted by an illegal search
or seizure, irrespective of whether the petitioner actually availed himself of that
mechanism. See Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980); U.S. ex rel. Hickey v.
54

Jeffes, 571 F .2d 762, 766 (3d Cir. 1978); Petillo v. New Jersey, 562 F.2d 903, 906-07
(3d Cir. 1977). Conversely, a petitioner has not had a full and fair opportunity to litigate
a Fourth Amendment claim, and therefore, avoids the Stone bar, if the state system
contains a structural defect that prevented the state from fully and fairly hearing his
Fourth Amendment claims. See Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002).
Here, Petitioner had a full and fair opportunity to litigate his Fourth Amendment
claim. As just discussed, he filed a pre-trial motion to suppress the confession note.
The Superior Court conducted a hearing, and denied the motion. Petitioner challenged
the denial of the suppression motion on direct appeal, and the Delaware Supreme Court
affirmed the Superior Court's decision. Even if Petitioner disagrees with trial counsel's
choice of argument, Petitioner still had a "full and fair" opportunity to litigate his Fourth
Amendment claim. See, e.g., Marshall, 307 F.3d at 82 (holding that "[a]n erroneous or
summary resolution by a state court of a Fourth Amendment claim does not overcome
the [Stone] bar."); Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986).
Petitioner also cannot demonstrate that he was actually prejudiced by trial
counsel's failure to base the suppression motion on the argument asserted here, or that
he was prejudiced by appellate counsel's failure to raise this argument on appeal,
because his instant argument is primarily a distinction without a difference. On direct
appeal, trial counsel argued that "by unfolding the Confessional Letter and reading it the
police exceeded the scope of the inventory search." Taylor, 822 A.2d at 1055. The
Delaware Supreme Court found that, during a routine inventory search, it was not
"unreasonable" for police to search any container or article in his possession, "in
accordance with established inventory procedures." Id. By finding that the police did
55

not exceed the scope of the inventory search, the Delaware Supreme Court subsumed
Petitioner's present argument. In short, the motion to suppress failed because it lacked
merit. Thus, Petitioner cannot demonstrate that he was actually prejudiced by trial and
appellate counsel's failure to present another version of a meritless argument.
The Court also concludes that the miscarriage of justice exception does not apply
to excuse Petitioner's default of the instant Claim, because he has not provided new
reliable evidence of his actual innocence. Therefore, the Court will deny Claim One (D)
as procedurally barred.

4. Claim One (E): Failure to Object to Biased Jury
a. Death-qualification of The Jurors
Petitioner contends that trial counsel provided ineffective assistance by failing to
object to the Superior Court's decision to strike a number of jurors for cause, based
upon their opposition to the death penalty, thereby resulting in a jury that was "biased
towards conviction." (D.I. 67 at 69-71) Petitioner also presents an independent claim
that the "death qualification process of [his] jury created a jury that was biased in favor
of conviction and violated his right to a fair and impartial jury." (D.I 67 at 83)
In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court held that "the
proper standard for determining when a prospective juror may be excluded for cause
because of his or her views on capital punishment.. .is whether the juror's views would
'prevent or substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath.'" Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45
(1980)). The Witt Court explained that:

56

this standard ... does not require that a juror's bias be proved
with "unmistakable clarity" ... because determinations of juror
bias cannot be reduced to question-and-answer sessions
which obtain results in the manner of a catechism. What
common sense should have realized experience has proved:
many veniremen simply cannot be asked enough questions
to reach the point where their bias has been made
"unmistakably clear"; these veniremen may not know how
they will react when faced with imposing the death sentence,
or may be unable to articulate, or may wish to hide their true
feelings. Despite this lack of clarity in the printed record,
however, there will be situations where the trial judge is left
with the definite impression that a prospective juror would be
unable to faithfully and impartially apply the law.

Id. at 424-26 (cleaned up). Pursuant to Witt, a federal habeas court must defer "to the

trial judge who sees and hears the jurors." Id. at 428. The Third Circuit has reiterated
that the "trial court is in the best position to observe the demeanor of the prospective
jurors." Deputy v. Taylor, 19 F.3d 1485, 1499 (3d Cir. 1994).
Petitioner asserts that four jurors should not have been "sua sponte" excused by
the Superior Court after indicating they were opposed to the death penalty. (D.I. 67 at
69-72) He also asserts that the Superior Court improperly excused five additional jurors
for cause on the basis that they would not recommend or vote for imposition of the
death penalty. (D.I. 67 at 72)
The record rebuts Petitioner's underlying contention that qualified jurors were
improperly excused based upon their death penalty views because, upon direct
questioning, all nine jurors stated they would be unable to impose the death penalty.
Prospective juror PB said she was opposed to the death penalty but "guess[ed]" she
"might be able" to recommend the death penalty. Further questioning revealed that PB
did not understand the balancing of aggravators and mitigators. (D.I. 41-39 at 13-14)
57

After asking and receiving no objection from Petitioner and the State, the Superior Court
excused PB. Regardless of personal feelings, any juror's ability to follow the law is
predicated upon a basic understanding of the law and the process. Pursuant to Witt,
Petitioner cannot demonstrate actual prejudice.
Prospective juror LK had many issues with being called as a juror - she had
trouble sitting in confined spaces, her family needed her, she had heard about the case
in the news, and she further stated that she did not "approve" of the death penalty. (D.I.
41-38 at 47) Thus, Petitioner cannot demonstrate prejudice resulting from LK's excusal,
because the Superior Court had ample reasons to excuse the juror aside from her
opposition to the death penalty.
Prospective juror RC stated he had trouble with the death penalty and would
have "a lot of trouble living with [his] conscience if' he condemned someone to death.
RC also stated that he could "find someone guilty or not guilty of a particular crime, but I
don't think, in this day and age, we should be killing people." (D.I. 41-37 at 2) The
Superior Court found that RC's clear opposition to the imposition of the death penalty
precluded him from sitting on the jury. Petitioner agreed that the juror was not qualified.
(/d.) Petitioner has failed to demonstrate actual prejudice.
Prospective juror BD unequivocally stated that he could "never'' recommend the
death penalty, regardless of the facts. (D.I. 41-39 at 26-27) The Superior Court
excused BD without objection as he did not qualify for a juror under the criteria set forth

58

in Witherspoon v. Illinois, 391 U.S. 51 O (1968). 14 Petitioner cannot demonstrate
prejudice resulting from BD being struck for cause.
Petitioner contends that the Superior Court should not have struck for cause five
jurors who stated that they could perform the statutory duty of determining whether the
aggravating circumstances outweighed the mitigating circumstances, but regardless,
would not recommend death. 15 Petitioner argues that "recommending death was not
part of the law." (D.I. 67 at 72) Petitioner is incorrect. At the time of Petitioner's trial,
Delaware law required each potential juror to weigh the aggravators against the
mitigators and individually vote on his or her recommendation. See 11 Del. Code §
4209(c)(3)b. The Superior Court was required to consider the jury's final votes on the
aggravators and mitigators when deciding what sentence to impose. Petitioner has

14 1n

Witherspoon, the Supreme Court held that "a sentence of death cannot be carried
out if the jury that imposed or recommended it was chosen by excluding veniremen for
cause simply because they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction. No defendant can
constitutionally be put to death at the hands of a tribunal so selected." 391 U.S. at 52223. Consequently, veniremen can be excluded based on their views on capital
punishment only if they would be biased and lack impartiality in hearing the case.
15

Prospective juror JZ said that he opposed the death penalty, was not going to be able
to recommend it, and that both his priest and son had told him that, as a good Catholic,
he could not suggest the death penalty. (D.I. 41-41 at 16-17) The State challenged
prospective juror AD for cause because he stated he was opposed to the death penalty
and he could not put his personal feelings aside and follow the law as it required. (D.I.
41-37 at 49) The State moved to strike prospective juror MT for cause after she stated
that she had "a real concern about sitting on a case where [she] knew the death penalty
[was] an option," and that she just "ha[s] this thing about taking another human life."
(D.I. 41-38 at 11) Prospective juror JS stated that he did not believe in the death
penalty and would vote "no" if asked. (D.I. 41-38 at 17) Prospective juror BF stated he
had childcare issues, that anyone "charged" with murder should be locked away for life,
and he was religiously opposed to the death penalty. (D.I. 41-39 at 2-3)
59

failed to demonstrate how he was prejudiced by the Superior Court's accurate
statement of the role and duties of each potential juror.

b. Juror Taint
Petitioner contends that his right to an impartial jury was compromised because
several prospective jurors told the Superior Court that they had discussed the case with
other members of the jury pool. Petitioner argues that trial counsel provided ineffective
assistance by failing to properly object to the discussion between the potential jurors
and by failing to "ensure that members of the jury were adequately questioned." (D.I. 67
at 75-76)
In Mu'Min v. Virginia, 500 U.S. 415 (1991), the Supreme Court acknowledged
that "our own cases have stressed the wide discretion granted to the trial court in
conducting voir dire in the area of pretrial publicity and in other areas of inquiry that
might tend to show juror bias." Id. at 427. If a trial court becomes aware of possible
juror bias, it must investigate the source of the alleged bias, "determine its impact on the
juror, and decide whether it was prejudicial." Remmer v. United States, 347 U.S. 227,
230 (1954); see Anderson v. Phelps, 930 F. Supp. 2d 552,565 (D. Del. 2013). If the
allegation of juror bias arises before the verdict, the trial court has "wide discretion" to
determine the appropriate procedure to assess it. See Reed v. Carroll, 2005 WL
2086745, at *7 (D. Del. Aug. 26, 2005). It is well-settled that "voir dire provides a means
of discovering actual or implied bias,"16 and the juror's responses are not inherently
suspect. See Smith v. Phillips, 455 U.S. 209,217 n.7 (1982). If the jury bias claim
"does not involve contact with a juror during a trial about a matter pending before the

16J.E.B.

v. Alabama ex rel. T.B., 511 U.S. 127, 143 (1994).
60

jury ... , a new trial will only be warranted if the defendant proves that he was actually
prejudiced by the improper contact." Reed, 2005 WL 2086745, at *6. Thus, in such
cases, the defendant "has the burden of proving actual juror bias." Anderson, 930 F.
Supp. 2d at 565.
Petitioner's instant contention regarding the tainted jury pool is not supported by
the record and, in fact, is pure speculation. The discussions between potential jurors
occurred during voir dire and none of the potential jurors identified by Petitioner were
seated. The Superior Court cautioned the selected jurors in the "strongest terms" not to
discuss the case with anyone. (0.1. 41-39 at 43) When the Superior Court realized a
possible taint issue, it addressed the final panel of 16 jurors prior to the start of the trial
as follows:
SUPERIOR COURT: Now, the first question I want to
ask you today is have you spoken with anyone about
this case, including with other members of the jury
since you were last in court?
(Jurors shake their heads.)
SUPERIOR COURT: Have you seen, read, or heard
anything in the media about this case at any point?
JURY: No.
SUPERIOR COURT: And, finally, I discussed this, I
think, with some of you during jury selection, but I want
to be clear about this. Apparently during jury selection,
at one or more times, one or two jurors who thought
they had some personal knowledge concerning this
case were so indiscreet as to say what was on their
minds out loud. And I gather that at least a small
number of other jurors in the panel heard some of what
those jurors had to say.

61

So I want to ask you specifically, while you were in the
process of being selected, either when we were in
Courtroom 301, the first big courtroom you were in, or
during the questioning that each one of you went
through in connection with the jury selection, did you
hear any other jurors talking about this case?

JURY: No.

(D.1. 41-47 at 11-12)
Based on the question the Superior Court posed and the collective answer of the
jury, the trial record reflects that the empanelled jury was not tainted. Because
Petitioner's claim of juror taint is unsupported by the record, he cannot show that trial
counsel provided ineffective assistance by failing to ask the Superior Court to question
the jury further. Accordingly, Petitioner has failed to demonstrate prejudice resulting
from his default of these arguments.
The Court also concludes that the miscarriage of justice exception does not apply
to excuse Petitioner's default of the instant Claim, because he has not provided new
reliable evidence of his actual innocence. Therefore, the Court will deny Claim One (E)
as procedurally barred.

5. Claim One (F): Prosecutorial misconduct
Petitioner asserts that trial and appellate counsel provided ineffective assistance
by failing to argue that the State committed the following three instances of
prosecutorial misconduct: (1) presenting the testimony of Tawana Ricks, Williams'
sister who found Williams' children alone outside on the morning of the murder; (2)
improperly appealing to the emotions of the jury in opening statements; and (3)
disparaging trial counsel and vouching for the State in rebuttal closing argument. For
62

the reasons set forth below, the Court concludes that the State did not engage in
prosecutorial misconduct. Relatedly, trial and appellate counsel did not provide
ineffective assistance by failing to raise meritless objections.
In order for a prosecutorial misconduct claim to warrant federal habeas relief, the
prosecutor's actions must have "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974); Darden v. Wainwright, 477 U.S. 168, 180 (1986). A prosecutorial
misconduct claim must be examined in "light of the record as a whole" in order to
determine whether the conduct "had a substantial and injurious effect or influence" on
the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). When evaluating
the impact of a prosecutor's misconduct, if any, a court must consider: (1) the extent to
which the claimed misconduct tended to mislead the jury or prejudice the petitioner; (2)
whether it was isolated or extensive: and (3) whether the claimed misconduct was
deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12 (1985). A
court must also consider: (1) the strength of the overall proof establishing guilt; (2)
whether defense counsel objected to the alleged misconduct; and (3) whether the trial
court gave a curative instruction. See id. at 12-13; Darden, 477 U.S. at 181-82.

a. Testimony of Williams' sister, Tawana Ricks
Petitioner asserts that the State only called Ricks to testify in order garner the
jury's sympathy. This contention is unsupported by the record.
Prior to Ricks' testimony, the Superior Court held a sidebar for a "quick proffer."
(D.I. 41-47 at 59) The judge expressed his concern about Ricks' emotional state and
stated that, if Ricks was going to get emotional, the prosecution should quickly elicit the
63

needed testimony to limit the injection of any unnecessary emotion into the trial. (Id. at
60-61) The State advised the judge that the important fact it wanted to elicit was that
Petitioner and Williams were involved in a romantic relationship. (Id. at 60-61) Once on
the stand, Ricks testified that her sister had been in a relationship with Petitioner. After
asking four questions, the State asked Ricks to identify Petitioner. (Id. at 61) Ricks
became upset and said that she could not look at Petitioner. (Id. at 61) The prosecution
immediately stated, "Your Honor, I have nothing further for this witness." (Id. at 62)
The judge asked trial counsel if they had any questions. While trial counsel were
conferring, Ricks sua sponte decided to answer the prosecution's question and
identified Petitioner. (D.I. 41-47 at 62) Trial counsel did not cross-examine Ricks, and
did not object either prior or during the direct examination. Immediately after Ricks
testified, the Superior Court provided the following curative instruction:
Ladies and gentlemen of the jury, as you can
understand, there is an emotional aspect to any case
where someone has died. And family members, in
particular, human nature being what it is, are going to
feel the loss particularly strongly. As jurors, you have
to view the evidence like objective people who do not
have a personal interest in the case, and so you must
take any feelings of emotion that are exhibited in the
courtroom and put them aside for purposes of your
deliberations.

(D.I. 41-47 at 62-63)

Viewing this record within the applicable legal framework demonstrates that the
State did not commit misconduct. Ricks provided relevant testimony and the prosecutor
strictly limited the witness's testimony to reduce the jury's exposure to additional
potentially emotional testimony. Rick's emotional testimony was an isolated
64

occurrence, and was clearly not deliberate on the part of the prosecution. In fact, once
the prosecutor conducting Ricks' direct examination saw that she was becoming too
emotional, he ended his questioning. The State's case was strong given the physical
evidence and, more importantly, Petitioner's confession. Additionally, trial counsel did
not object to Ricks' testimony and the trial judge gave an immediate curative instruction.
Given these circumstances, Petitioner cannot demonstrate that Ricks' testimony
resulted in an unfair trial.

b. Opening statements
Petitioner contends that the State's "narrative of Ms. Williams' morning was
calculated to prey on the jury's emotions and inflame their passions by bringing to life in
the courtroom the deceased and those she left behind." (D.I. 67 at 79) He further
alleges that the statements "effectively placed each juror in the shoes of the victim."
(Id.) Petitioner is incorrect.

A prosecutor does not commit misconduct during opening statement by referring
to evidence the prosecutor intends to introduce and which, in good faith, he or she
believes is admissible. See, e.g., Lawrie v. Snyder, 9 F. Supp. 2d 428, 442-43 (D. Del.
1998); United States

v.

Bugg, 483 F. App'x 166, 171 (6th Cir. 2012); United States

v.

Chirinos, 112 F.3d 1089, 1098 (11 th Cir. 1997). Evidence regarding what the victim was

doing just prior to the murder and how the family members came to discover her body
was relevant and admissible at trial. The prosecutor may offer a complete picture of the
facts surrounding a crime in order to show context and motive. Here, the opening
statement was not emotional and did not include inflammatory language. Trial counsel
did not object and the Superior Court did not react. When viewed in light of the whole

65

record as a whole, the prosecutor's statements did not render Petitioner's trial
fundamentally unfair.

c. Rebuttal closing argument
Petitioner argues that the prosecutor, during closing rebuttal argument,
disparaged trial counsel and improperly vouched for the State. Specifically, Petitioner
contends that the prosecutor "likened the defense to salesmen." (D.I. 67 at 80) What
Petitioner fails to mention is that, in his opening statement, trial counsel likened the
prosecutor's opening statement to a sales pitch:
Classically, in law school we are told that it's an opportunity
for the lawyers to tell the jury what they expect the evidence
to be. And, indeed, the prosecution has done that. It is an
expectation, just like a sales pitch. However, what you will be
judging is not the sales pitch but the product. And the defense
asks you as you [sic] judge that product, use your common
sense and use your everyday experiences. Analyze, test,
evaluate that product. Because at the end of the case you're
going to have to determine whether or not that product is
something that you can rely upon, whether or not that product
meets that very heavy burden placed upon the State in this
case.
(D.I. 41-47 at 28).
The defense counsel again argued in closing argument:
The State in its opening statement got up, and I believe the
analogy that [the prosecutor] used when he was talking to you
was basically advertising a product and, at the end of the day,
the end of today literally, it's up to you to take that product and
test it and utilize it and decide if it's all that it was sold to you
as, if it's all that it's cracked up to be.
(D.I. 41-49 at 6)
The excerpts from the trial transcript speak for themselves. It was trial counsel,
not the prosecutor, who made the first "salesmen" reference. The prosecutor's
66

statement during rebuttal argument was an attempt to clarify that the State was not
trying to "sell" a product but, rather, presenting evidence for the jury to consider. There
simply was no prosecutorial misconduct.
Petitioner also asserts that the prosecutor in rebuttal closing argument improperly
vouched for the State by informing the jury what they already knew - that he was a
prosecutor, not a salesman.
But I am an attorney. I'm a prosecutor for the State of
Delaware. I am charged with the duty of submitting facts to
you for you to evaluate. And that's what we've done in this
case. We have the chance to get up here and argue to you all
reasonable inference from the facts that have been
presented. We have presented those facts. Those facts are
before you in this case. To suggest that this murder may have
been an accident is outrageous, we submit to you. We've got
an autopsy report, cause of death, strangulation. Manner of
death: Homicide - not accident, homicide.

(D.I. 41-49 at 31)
Again, the excerpt speaks for itself. The prosecutor did not improperly vouch for
the State by referencing the truth or asserting he had special knowledge. The
prosecutor's argument was proper.
Having determined that the State did not engage in prosecutorial misconduct in
the manner alleged by Petitioner, his related ineffective assistance of trial and appellate
counsel claims necessarily fail. Therefore, he cannot demonstrate that he will suffer
actual prejudice as a result of the default of these arguments.
The Court also concludes that the miscarriage of justice exception does not apply
to excuse Petitioner's default of the instant Claim, because he has not provided new
reliable evidence of his actual innocence. Therefore, the Court will deny Claim One (F)

67

as procedurally barred.

6. Claim Two: Ineffective Assistance of Appellate and PostConviction Counsel
In Claim Two, 17 Petitioner asserts that appellate counsel provided ineffective
assistance by failing to raise the following Claims on direct appeal: (1) the evidence of
Williams' pregnancy was improperly admitted as evidence (related to Claim One (C));
(2) the confession note was improperly admitted at trial (related to Claim One (D)); (3)
Petitioner was denied a fair and impartial jury (related to Claim One (E)); and (4) the
State engaged in prosecutorial misconduct (related to Claim One (F)). (D.I. 67 at 85-86)
Petitioner also asserts that, to "the extent initial post-conviction counsel failed to argue
appellate counsel's ineffectiveness, they too were ineffective." (D.I. 67 at 86)
Petitioner presented his ineffective assistance of appellate counsel argument to
the Delaware state courts in his second Rule 61 motion. As previously discussed, his
second Rule 61 motion was denied as procedurally barred. To the extent he blames
first post-conviction counsel for not presenting the issue of appellate counsel's
ineffective assistance in his first Rule 61 motion in an attempt to establish cause, it is
unavailing. The narrow exception articulated in Martinez applies only to allegations
concerning trial counsel's ineffectiveness, not claims alleging the ineffectiveness of
appellate counsel. See Davila, 137 S.Ct. 2058, 2065 (2017) (declining "to extend
Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim
of ineffective assistance of appellate counsel").
In the absence of cause, the Court need not address the issue of prejudice. The

17The

Petition identifies this Claim as Claim Four. (D.I. 67 at 85)

68

Court also concludes that the miscarriage of justice exception does not apply to excuse
Petitioner's default of the instant Claim, because he has not provided new reliable
evidence of his actual innocence. Therefore, the Court will deny Claim Two as
procedurally barred.

7. Claim Three: Cumulative Error
Next, Petitioner contends that the cumulative effect of each alleged error is
sufficiently prejudicial to require relief. (D.I. 67 at 86-88) He argues that, even if none
of his individual errors merit relief, the cumulative impact of the errors deprived him of a
fair trial.
It appears that the United States Supreme Court has not recognized the concept
of cumulative error. See Bush v. Carpenter, 926 F.3d 644, 686 n.16 (10 th Cir. 2019).
Since there is no clearly established federal law with respect to a cumulative error
argument, arguably the Court's§ 2254(d) analysis is over and Petitioner is not entitled
to habeas relief for Claim Three.
Nevertheless, the Third Circuit has recognized the cumulative error doctrine on
habeas review, holding that "a cumulative error argument constitutes a stand-alone
constitutional claim subject to exhaustion and procedural default." Collins v. Sec'y of Pa.
Dep't of Corr., 742 F.3d 528, 542 (3d Cir. 2014). Pursuant to the cumulative error

doctrine,
[i]ndividual errors that do not entitle a petitioner to relief may
do so when combined, if cumulatively the prejudice resulting
from them undermined the fundamental fairness of his trial
and denied him his constitutional right to due process.
Cumulative errors are not harmless if they had a substantial
and injurious effect or influence in determining the jury's
verdict, which means that a habeas petitioner is not entitled to
69

relief based on cumulative errors unless he can establish
actual prejudice.

Fahy v. Hom, 516 F.3d 169, 205 (3d Cir. 2008).

Petitioner presented this argument to the Delaware state courts in his second
Rule 61 motion, and they denied it as procedurally barred. To the extent Petitioner
attempts to establish cause by alleging the ineffectiveness of first post-conviction
counsel for not presenting the cumulative error argument in his first Rule 61 motion, it is
unavailing. Again, the narrow exception articulated in Martinez applies only to
allegations concerning trial counsel's ineffectiveness.
In the absence of cause, the Court will not address the issue of prejudice.
Additionally, Petitioner has not demonstrated that the miscarriage of justice exception to
the procedural default doctrine applies, because he has not provided new reliable
evidence of his actual innocence. Accordingly, the Court will deny Claim Three as
procedurally barred.
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 ); 28 U.S.C.

§ 2253(c)(2). 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).
Further, when a federal court denies a habeas petition on procedural grounds
70

without reaching the underlying constitutional claim, the petitioner must demonstrate
that jurists of reason would find debatable: (1) whether the petition states a valid claim
of the denial of a constitutional right; and (2) whether the court was correct in its
procedural ruling. See Slack, 529 U.S. at 484. "Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further." Id.
For the reasons stated above, the Court concludes that Claims One (A) and Four
do not warrant habeas relief under§ 2254(d), and the Court is convinced that
reasonable jurists would not find these conclusions unreasonable. The Court also
concludes that Claims One (8)-(F), Two, and Three are procedurally barred from
habeas review, and is convinced that reasonable jurists would not find these
conclusions unreasonable. Consequently, Petitioner has failed to make a substantial
showing of the denial of a constitutional right, and the Court will not issue a certificate of
appealability.

CONCLUSION

For the reasons discussed, the Court concludes that the instant Petition must be
denied. An appropriate Order will be entered.

71