Taylor v. Danberg et al

Filing 94

MEMORANDUM OPINION Signed by Judge Colm F. Connolly on 3/29/2023. (nmf)

Case 1:11-cv-01251-CFC Document 94 Filed 03/29/23 Page 1 of 23 PageID #: 10220

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MILTON TAYLOR,
Petitioner,
Civil Action No. 11-1251-CFC

V.

ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
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 29, 2023
Wilmington, Delaware

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Pending before the Court is Petitioner Milton Taylor's ("Petitioner") Motion to Alter
or Amend Judgment Pursuant to Fed. R. Civ. P. 59 ("Rule 59 Motion"), asking the
Court to reconsider its denial of his federal habeas Petition and alter or amend its
judgment. (D.I. 93) For the reasons discussed, the Court will deny the Rule 59 Motion.

I.

BACKGROUND
The Court set forth the factual and procedural history of this case in its

Memorandum Opinion (D.I. 91 at 2-6) and will not repeat it here in full. Nevertheless,
the Court will provide a summary where relevant to the instant Rule 59(e) Motion.
The underlying Petition asserted the following four Claims: (1) trial counsel
provided ineffective assistance ("IATC") 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; and (f)
object when the State engaged in prosecutorial misconduct; (2) appellate and postconviction 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 to life without parole under
§ 4209 violates the Eighth and Fourteenth Amendments.

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After determining that the Delaware Supreme Court adjudicated Claim One (A)
and Claim Four on the merits, the Court denied the Claims for failing to satisfy the
deferential standard articulated in§ 2254(d). The Court denied the remaining Claims in
the Petition - Claims One (B)-(F), Two, and Three - as procedurally barred after
determining that "the 2014 version of [Delaware Superior Court Criminal] Rule 61, as
applied to Petitioner's case, constitutes an adequate state procedural rule." (D.I. 91
at44)

II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 59(e) is "a device[] used to allege legal error,"1

and may only be used to correct manifest errors of law or fact or to present newly
discovered evidence. See Howard Hess Dental Labs, Inc. v. Dentsply Int'/ Inc., 602
F.3d 237,251 (3d Cir. 2010). The scope of a Rule 59(e) motion is extremely limited.
See Blystone v. Hom, 664 F.3d 397,415 (3d Cir. Dec. 22, 2011); see also
Brambles USA Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990). The moving

party must show one of the following in order to prevail on a Rule 59(e) motion: (1) an
intervening change in the controlling law; (2) the availability of new evidence that was
not available when the court issued its order; or (3) the need to correct a clear error of
law or fact or to prevent a manifest injustice. See Max's Seafood Cafe v. Quinteros,
176 F .3d 669, 677 (3d Cir. 1999). Although the Third Circuit has "never adopted strict
or precise definitions for 'clear error of law or fact' and 'manifest injustice' in the context
of a motion for reconsideration," at a minimum, a manifest error or injustice is a "direct,

1 United

States v. Fiorelli, 337 F .3d 282, 288 (3d Cir. 2003).
2

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obvious, or observable error[ ... ] that is of at least some importance to the larger
proceedings." In re Energy Future Holdings Corp., 904 F.3d 298, 312 (3d Cir 2018).
More specifically, when determining whether a decision resulted in a manifest injustice,
a court must focus "on the gravity and overtness of the error." Id. at 312. Finally, a
"motion for reconsideration is not to be used as a means to reargue a case or to ask a
court to rethink a decision it has made." United States v. Kennedy, 2008 WL 4415654,
at *1 (W.D. Pa. Sept. 26, 2008).

Ill.

DISCUSSION
In his timely filed Rule 59(e) Motion, Petitioner asserts that the Court committed

the following errors when denying his Petition: (1) the Court erred in concluding that
Rule 61 (2014) was adequate as applied to him (D.I. 93 at 2-5) and, therefore, erred in
denying defaulted Claims One (8)-(F), Two, and Three as procedurally barred; (2) the
"Court incorrectly relied upon the "miscarriage of justice" standard as part of its Martinez
analysis" when determining if Petitioner demonstrated cause for his default of Claims
One (8)-(F), Two, and Three (D.I. 93 at 6); (3) the "Court [i)ncorrectly found that
[Petitioner] presented Claim One (A) (IATC with respect to EED defense)[ ... ] to the
Delaware Supreme Court on appeal of the Superior Court's denial of his first Rule 61
motion and, as a result, incorrectly applied§ 2254(d) rather than Martinez" (D.I. 93 at 6);
and (4) the "Court incorrectly failed to grant an evidentiary hearing prior to considering
prejudice and failed to find Initial Post-Conviction Counsel ineffective" (D.I. 93 at 7).
Petitioner also asserts that the Court should grant a certificate of appealability for each

3

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Claim, because "each of the[] claims are debatable, even if the Court finds that every
jurist would agree that the claims should be denied." (D.I. 93 at 10)

A. Court's Holding That Rule 61 (2014) Was Adequate As Applied to
Petitioner
Petitioner contends that the Court should reconsider its decision that the post2014 version of Rule 61 constituted an adequate state procedural rule as to Petitioner's
Claims One (8) - (F), Two, and Three because it "misinterpreted Campbell v. Burris,
515 F.3d 172 (3d Cir. 2008), and misapplied Cabrero
Cir. 1999) while ignoring Bronshtein

v.

v.

Barbo, 175 F.3d 307, 313 (3d

Hom, 404 F.3d 700 (3d Cir. 2005)." (D.I. 93 at 3)

This argument is unavailing. First, the Court did not ignore Bronshtein; in fact, the Court
applied Bronshtein's three-step test for determining the adequacy of a state procedural
rule. (See D.I. 91 at 38-48) Second, the issue of adequacy in this case presents the
following question of first impression: whether a firmly established state procedural rule
barring second or successive Rule 61 motions no longer qualifies as an adequate and
independent state procedural bar due to a legislature's change in the standard of proof
necessary to trigger an exception to the bar, without changing the substance of the bar
itself. The fact that the Court relied on general principles of law articulated in Campbell
and Cabrero for guidance on how to approach this novel issue of adequacy, and
reached a conclusion opposite to the one desired by Petitioner, does not constitute a
misinterpretation or misapplication of those decisions.
As the Court explained in its Memorandum Opinion:
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

4

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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 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.
(D.I. 91 at 43-44) Importantly, this is not a case where "discretion has been exercised
to impose novel and unforeseeable requirements [in a state procedural bar] without fair
or substantial support in prior state law." Walkerv. Martin, 562 U.S. 307, 320 (2011)
(emphasis added). Instead, at the time of his original default, Petitioner had fair notice
of Rule 61 's well-established and foreseeable requirement that a petitioner must include
all grounds in an initial Rule 61 motion or risk losing the opportunity to pursue those
grounds.
Accordingly, Petitioner's instant argument concerning Campbell, Cabrero, and
Bronshtein fails to warrant reconsideration of the Court's ruling that Rule 61 (2014) was

adequate as applied to him.
B. Court's Application Of Martinez's Second Requirement

Next, Petitioner argues that the "Court applied the wrong standard in addressing
the second part of Martinez" because it considered whether Petitioner had
demonstrated a miscarriage of justice instead of considering whether the underlying
5

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IATC claim had "some merit." (D.I. 93 at 6) Petitioner has misconstrued the Court's
reference to the "miscarriage of justice exception" as being part of its inquiry into
whether Petitioner demonstrated cause under Martinez. Instead, the Court's reference
to the "miscarriage of justice exception" was a reference to the next step in its
procedural default analysis. 2
Accordingly, Petitioner's mistaken understanding of the Court's reference does
not warrant reconsideration of its denial of the procedurally defaulted IATC Claims.

C. Court's Conclusion That Claim One (A) Should Be Reviewed Under§
2254(d)'s Deferential Standard
In his initial Rule 61 proceeding, Petitioner argued that trial counsel provided
ineffective assistance during the guilt and penalty phases of his trial "by failing to
investigate, prepare and present evidence supporting" an "extreme emotional distress"
defense. State v. Taylor, 2010 WL 3511272, at *34 (Del. Super. Ct. Aug. 6, 2010).
The Superior Court and the Delaware Supreme Court denied the ineffective assistance
of trial counsel argument as meritless.
In Claim One (A) of his federal habeas Petition, Petitioner argued that "prior
counsel rendered constitutionally ineffective assistance by failing to investigate and
present available evidence establishing that [Petitioner] was under extreme emotional
distress (EEO) at the time of Ms. Williams's death." (D.I. 67 at 28) Petitioner described
new evidence revealed in declarations from individuals who knew Petitioner as a child

2When

a claim is procedurally defaulted, federal habeas review is barred unless the
petitioner demonstrates "cause and prejudice" or a miscarriage of justice.
6

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(evidence which trial counsel had failed to discover and present during Petitioner's trial
as support for an EEO defense) (D.I. 67 at 30-53)- and argued:
Although this claim was raised in part during [Petitioner's]
initial post-conviction proceedings, the factual premise upon
which the Delaware Supreme Court relied in denying this
claim was incorrect. The Delaware Supreme Court found that
Dr. Dougherty and Dr. Mack had "based their opinions on
uncorroborated statements [Petitioner] made to them. [ ... ]
The denial of the part of this claim presented to the Supreme
Court of Delaware was contrary to and an unreasonable
application of clearly established federal law.
11

To the extent that prior counsel failed to raise the entirety of
this claim, this ineffectiveness prejudiced [Petitioner], and but
for this ineffectiveness, the results of the proceedings would
have been different. In the alternative, the error was
prejudicial and had a substantial and injurious effect on the
verdict. Initial post-conviction counsel was ineffective to the
extent they failed to raise parts of this claim. Any procedural
default resulting from this failure can be overcome under
Martinez.
(D.I. 67 at 54- 55)
Petitioner's Traverse articulated the reason for his procedural default reference
in more depth:
The Martinez opinion applies to cases, like [Petitioner's],
where initial post-conviction counsel raised some ineffective
assistance of counsel claims that were adjudicated on the
merits in state court, but failed to raise other claims, Dickens
v. Ryan, 740 F.3d 1302, 1319 (9 th Cir. 2014) (en bane), and
where subsequent counsel "substantially improved" upon a
version of the claim presented to the state court.
This Court must consider the entirety of Claim One (A) under
Martinez v. Ryan because [Petitioner] substantially improved
it in a way [that] renders it new under Dickens, and
procedurally excused under Martinez.
*

*

*
7

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[Petitioner's] current Extreme Emotional Distress claim bears
little resemblance to the claim that was before the state court
during initial post-conviction proceedings. See Dickens.
Respondents argue that this is [Petitioner's] fault because he
would not let trial counsel and initial post-conviction counsel
present this evidence. However, in capital cases, prior
counsel is required to conduct an adequate investigation
regardless of what client wants.

*

*

*

Prior counsel also has a duty to present expert testimony to
explain the client's history of psychiatric illness, organic brain
dysfunction, child abuse, and psycho-social life disorders that
are essential to developing an accurate profile of defendant's
mental health. While prior counsel did this here, they failed to
present adequate expert testimony because they did not
provide their experts with the overwhelming majority of
[Petitioner's] tumultuous history.

*

*

*

Prior counsel's investigation fell below objective standards of
reasonableness. [ ... ] The evidence presented in Claim One
(A) of [Petitioner's] petition supports that [Petitioner] was
prejudiced by prior counsel's deficient performance.
[Petitioner] presents this Court with multiple exhibits which
corroborate [Petitioner's] traumatic childhood. [ ... ] Thus, the
jury did not hear the cause for [Petitioner's] extreme emotional
distress - the physical and emotional abuse and
abandonment that [Petitioner] suffered in his childhood, which
exponentially compounded his perception of the impact of his
paramour's abandonment.
Had prior counsel presented this evidence through the
testimony of qualified experts, the jury would have learned
that his traumatic childhood shaped his brain and his
subsequent capacity for regulating his emotions and
behaviors.

(D.I. 85 at 8 -13)

8

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In essence, Petitioner asserted that his IATC argument in Claim One (A) had
been adjudicated on an inadequate record during his initial Rule 61 proceeding as a
result of post-conviction counsel's ineffective assistance. Relying on the premise that
Claim One (A)'s "substantially improved" IATC argument was not fully exhausted and
not adjudicated on the merits by the Delaware courts, Petitioner contended that he
should "be given the opportunity to demonstrate whether he can demonstrate cause
under Martinez to overcome the procedural bar." (D.I. 85 at 8) While not entirely clear,
Petitioner appears to believe that the resulting Martinez inquiry would have permitted
the Court to consider the new evidence. Petitioner relied on the Ninth Circuit's decision
in Dickens3 to support this argument.
The Court denied Claim One {A) for failing to satisfy the standards articulated in
§ 2254{d) without explicitly addressing Petitioner's Dickens argument that the Claim

3In

Dickens, post-conviction counsel presented an ineffective assistance of sentencing

counsel claim to the state courts that did not assert specific facts or provide evidentiary
support. See Dickens, 740 F.3d at 1317-19. The state courts denied the claim, and
Dickens filed a federal habeas petition which amended the claim to include extensive
new factual allegations and mitigation evidence. See id. at 1317. The district court
determined that the claim was procedurally defaulted because Dickens' new allegations
and evidence fundamentally altered his previously exhausted ineffective assistance of
sentencing counsel claim. Id. Citing Vasquez v. Hillery, 474 U.S. 254,260 (1986), the
Ninth Circuit agreed that the new ineffective assistance of sentencing counsel claim was
unexhausted, explaining that "[a] claim has not been fairly presented in state court if
new factual allegations either fundamentally alter the legal claim already considered by
the state courts, or place the case in a significantly different and stronger evidentiary
posture than it was when the state courts considered it." Dickens, 740 F.3d at 1318.
The Ninth Circuit concluded that Dickens' newly enhanced Strickland claim was
procedurally barred, and remanded the case to the district court for consideration of
whether Dickens' ineffective assistance of post-conviction counsel claim was sufficient
to overcome the procedural default of the newly enhanced ineffective assistance of
sentencing counsel claim under Martinez. Id. at 1319.
9

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was so "fundamentally altered" from his original ineffective assistance of counsel claim
in his first Rule 61 proceeding that the Court should treat it as unexhausted and
procedurally defaulted. 4 Petitioner's Rule 59 Motion re-asserts his Dickens/
"fundamental alteration" argument, and contends that the Court erred by not treating
Claim One (A) as procedurally defaulted.
While Petitioner's instant Dickens argument does not persuade the Court that its
denial of Claim One (A) was based on any error that warrants Rule 59 (e) relief, the
Court finds it beneficial to clarify its reasoning for implicitly rejecting Petitioner's Dickens
argument. See Banisterv. Davis, 140 S.Ct. 1698, 1708 (2020) ("Even when [Rule 59(e)
motions] do not [change judicial outcomes], they give habeas courts the chance to
clarify their reasoning or address arguments (often made in less-than-limpid pro se
petitions) passed over or misunderstood before."). Unlike in Dickens, the new evidence

(i.e., the declarations) Petitioner provided in this proceeding does not place Claim One
(A) in a "significantly different and substantially improved evidentiary posture" than the
IATC argument presented in his initial Rule 61 proceeding. The following background
information provides context for both Petitioner's argument and the Court's conclusion.
In his first Rule 61 proceeding, Petitioner argued that "trial defense counsel
should have interviewed other members of his family and associates, obtained
additional medical records, and reviewed certain court records in order to present both

4While

the Court did not explicitly address Petitioner's Dickens argument when denying
Claim One (A), the Court implicitly rejected the argument by denying the Claim under
under§ 2254(d).
10

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an EEO defense and an adequate mitigation case." Taylor v. State, 32 A.3d 374, 382
(Del. 2011); see Taylor, 2010 WL 3511272, at *16. To support this argument, initial
post-conviction counsel called the following witnesses to testify during the fourteen days
of Rule 61 evidentiary hearings: trial counsel; Jesse Hambright, a Department of
Correction guard who had regular contact with Taylor from 2000 to 2001; Judith Mellen,
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, paramour;;
Brother David; and Ors. Edward Dougherty and Jonathan H. Mack, postconviction
psychologists. See Taylor, 2010 WL 3511272, at *11. The testimony provided by the
two expert witnesses - Ors. Dougherty and Mack- are most relevant to the instant
issue.
Dr. Dougherty testified that Petitioner was abused by his parents, and that he
was under extreme emotional distress at the time of Ms. Williams' death. See id. at *12.
Dr. Mack testified that Petitioner suffered from brain damage that was "most likely"
caused by "serial concussions." (D.I. 59-17 at 123) Dr. Mack described how Petitioner
told him that he (Petitioner) was beaten repeatedly by his stepfather during his
childhood, that he was hit in the head during numerous fights while growing up, and that

11

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he was hit in the head while playing football. (Id.) Dr. Mack then explained that brain
damage could be a contributing factor to extreme emotional distress. (Id. at 127-130)
When denying Petitioner's original IATC argument in his initial Rule 61
proceeding, the Superior Court opined:
With their competent experts' help and through consultation
with their client, trial counsel considered and explored
different potential avenues of action, including extreme
emotional distress and guilty but mentally ill. [Petitioner's]
claims that those things were not considered is simply not
true. [ ... ]
Unfortunately for them and for [Petitioner], trial counsel were
stymied at every turn. [Petitioner's] arguments to the contrary
notwithstanding, the record shows that the original mental
health professionals considered a wide range of possible
diagnoses that potentially would have helped at trial and in
mitigation. With the exception of testing for organic brain
damage, discussed above, none of the original experts was
seriously concerned about the missing background
information that [Petitioner] now insists was vital.
As presented above, the primary diagnosis offered by the only
psychiatrist who testified at the postconviction evidentiary
hearing was "severe" antisocial personality disorder. She also
noted substance abuse. All of the mental health professionals
agree about that.
[Petitioner] told everyone that he was seriously abused as a
child, but the psychiatrist testified that as to people with
antisocial personality disorder, "[t]here is a marked tendency
not to be truthful." The pastoral counselor similarly opined that
"it was difficult to determine if [Petitioner] was reporting
information reliably." Against that background, there is reason
to believe that one of the new defense team's core claimsunexplored
childhood
abuse-is
also
dramatically
exaggerated.
No one, including [Petitioner], has ever testified firsthand that
[Petitioner] was abused. To the contrary, [Petitioner's]
parents, who are clergy, deny it. Furthermore, [Petitioner] told

12

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the doctors that he did not see what he accused his stepfather
of as "abuse[.] ... [H]e said that his father was trying to teach
him right from wrong. He was trying to set him straight." The
social worker who actually investigated the worst claim of
abuse did not substantiate it, much less the pattern of abuse
on which [Petitioner] now relies. Besides, [Petitioner] insisted
that trial counsel not present mitigators based on abuse.
Similarly, as presented above, [Petitioner's] claims of serious
head trauma are largely uncorroborated by medical records.
There are two incidents, neither of which is shown to have
even caused loss of consciousness. Thus, it is far from clear
that trial counsel could have carried off the one-sided
presentation [Petitioner] made at the postconviction relief
hearing.
As also presented at the outset above, the psychiatrist further
learned that [Petitioner] enjoyed torturing and killing small
animals with a bat or with fire. He set a schoolgirl's hair on fire.
Had the psychiatrist been called at trial, on cross-examination
she would have agreed that, based on her diagnosis, it could
be said that [Petitioner] "was born to be hanged." As set out
above, [Petitioner's] viciousness was shocking, even to an
experienced psychiatrist. In any event, the psychiatrist told
trial counsel not to call her as a witness, and the court was not
aware of those terrible things when it sentenced [Petitioner].
The court is satisfied that trial counsel's retaining Dr. Tavani
helps establish trial counsel's effectiveness, and trial counsel
cannot be blamed because the psychiatrist concluded that
[Petitioner] is a vicious criminal. Nor can trial counsel be held
responsible because the other experts did not do better for
[Petitioner].
Although they could not gin up an extreme emotional distress
defense for [Petitioner] like his new experts did, trial counsel
seriously considered it and they testified emphatically that
they tried hard to "tease" one out of [Petitioner]. They also
considered "guilty but mentally ill," addiction, and other
potential avenues.
As another avenue, trial counsel turned to [Petitioner's] family,
but that, too, was largely a dead end. Then came [Petitioner],
himself, and his unreasonable demands that the defense

13

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pursue a phony actual innocence defense, and no mitigation
case. Even if trial counsel performed more investigation than
they did, the evidence would not have fit within the confines
provided by [Petitioner] for presentable mitigation evidence.
The court acknowledges the argument that if trial counsel had
ferreted out more information, they might have changed
[Petitioner's] mind and he would have agreed to a broader
mitigation case. [Petitioner], however, even now, has not
claimed that if he knew then what his new defense team has
come up with, he would have changed his attitude toward the
mitigation case presented at the penalty hearing. The claim
that trial counsel could have changed [Petitioner's] mind is
entirely theoretical.
Taylor, 2010 WL 3511272, at *18-19. Importantly, the Superior Court concluded:

Petitioner's second round of experts offer only a little more
than the originals. Mostly, if Drs. Dougherty and Mack were
allowed by [Petitioner] to testify to a jury, they would better
explain how [Petitioner] became so dangerous. They would
not, however, blunt the terrible truth that after a life of crime,
[Petitioner] got high and strangled a defenseless, pregnant
woman in her home while her children, including one by
[Petitioner], played outside.
Id. at *21. The Superior Court rejected Petitioner's argument that trial counsel had

been ineffective by failing to investigate and present an EEO defense, stating that the
"hypothetical extreme emotional distress defense" presented by Petitioner's new
experts (Ors. Mack and Dougherty) was "far-fetched." Taylor, 2010 WL 3511272, at
*25. When affirming the Superior Court's denial of Petitioner's original IATC claim, the
Delaware Supreme Court stated that Petitioner's "new postconviction defense experts,
Drs. Dougherty and Mack, based their opinions on uncorroborated statements
[Petitioner] made to them." Taylor, 32 A.3d at 384.

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In Claim One (A), Petitioner focused on the Delaware Supreme Court's
statement concerning "uncorroborated statements" and argued that the evidence
revealed by the declarations presented in this proceeding would have corroborated
Petitioner's "history of abuse and neglect, which laid the foundation for Dr. Dougherty
and Dr. Mack's conclusions." (D.I. 67 at 54) While the Court agrees that the
declarations provide additional evidentiary support for Petitioner's allegations of abuse
and reveal the abuse as a potential cause for his brain damage which, in turn, may have
been a contributing factor of his EED, this "new evidence" does not change - or
fundamentally alter-the legal basis of Petitioner's original IATC argument that the
Delaware courts considered and rejected when denying his first Rule 61 motion. As
explained below, Petitioner has not demonstrated the existence of a connection
between the alleged physical abuse and Petitioner's alleged EED, nor has he
demonstrated that presenting the new evidence of abuse evidence would have altered
the state court's consideration of the experts' testimony.
For instance, during the evidentiary hearings, Dr. Mack testified that Petitioner
suffered from mild brain damage, which he opined was one of the factors contributing to
Petitioner's emotional distress. (D.I. 59-17 at 130-153) Dr. Mack was extensively
questioned by the State, post-conviction counsel, and the Superior Court about the
potential causes of that brain damage - damage that existed from birth, damage caused
by drug and alcohol use, or damage caused by physical injuries - and he opined that
the brain damage was most likely due to a combination of all these factors. (/d.) When
initial post-conviction counsel asked Dr. Mack if he could have reached his conclusions

15

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concerning Petitioner's brain damage in 2000-2001 "without ever referring to a history of
child abuse," Dr. Mack responded "yes." (D.I. 59-17 at 130)
Notably, when considering the import of Dr. Mack's testimony, the Superior
Court opined:
The court has no reason to question the opinion of Dr. Mack
that was solidly based on objective testing. Basically, that
means the court accepts Dr. Mack's opinion that [Petitioner]
has mild brain damage, perhaps from birth. The open
question concerns the implications of Dr. Mack's
objective findings.
Much of Dr. Mack's specific testimony about the mild brain
damage described problems with memory, language, manual
dexterity and concept formation. It is unclear, however, the
extent to which the mild brain damage accounts for
[Petitioner's] antisocial personality. And, it is even less clear
the extent, if any, that the brain damage helps account for
[Petitioner] murdering Williams, or anything relating to
this case.

Taylor, 2010 WL 3511272, at *14 (emphasis added). Although the Superior Court also
noted that "Dr. Mack's opinions that are based on things that [Petitioner] said are
unreliable [such as his self-reported head injuries]," id., Petitioner has failed to explain
how the addition of the declarations describing physical abuse that may have been at
least one cause of Petitioner's brain damage would have provided the Superior Court's
"missing piece" linking the brain damage and Petitioner's extreme emotional distress.
Perhaps even more detrimental to Petitioner's instant argument is the fact that
the state courts actually did consider the expert testimony concerning Petitioner's past
abuse and potential EED. For instance, when denying Petitioner's original IATC
argument in his initial Rule 61 proceeding, the Superior Court observed that all of the

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defense experts took Petitioner's statements of physical abuse over the word of his
parents, who denied any history of physically abusing him. See Taylor, 2010 WL
3511272, at *6-7. And, when affirming the Superior Court's decision, the Delaware
Supreme Court indicated it would have reached the same conclusion even if the
opinions of Ors. Dougherty and Mack had been fully considered. See Taylor, 32 A.3d at
384 n. 42 ("Even if we reconstructed the record to include the additional expert opinions
[of Ors. Dougherty and Mack], [Petitioner] has not met his burden of showing a
reasonable probability of a different sentence.").
In sum, although Petitioner's instant request for reconsideration reveals the
benefit of providing further clarification for the Court's implicit rejection of Petitioner's

"Dickens/fundamental alteration" argument, it does not alter the Court's determination
that Petitioner exhausted state remedies for Claim One (A), nor does it alter the Court's
conclusion that Claim One (A) does not warrant relief under§ 2254(d). Given
Petitioner's failure to demonstrate that the dismissal of Claim One (A) was premised on
a mistake of law or fact or that it will result in a manifest injustice, the Court will not
reconsider its denial of Claim One (A).

D. Court's Refusal To Grant Evidentiary Hearing Prior To Considering
Prejudice Prong
Still relying on Dickens, Petitioner contends that the Court erred by concluding
that Petitioner failed to demonstrate actual prejudice with respect to (presumably)
Petitioner's defaulted IATC Claims (Claims One (8)- (F)) without first holding an

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evidentiary hearing to determine if Petitioner demonstrated cause and prejudice. 5 (D.I.
93 at 7-8) According to Petitioner, "[i]t is likely that the Third Circuit will[ ... ] concur with
the Ninth Circuit (i.e., Dickens) regarding the inapplicability of[§ 2254] (e)(2) to Martinez
hearing requests." (Id. at 7) As explained below, Petitioner's argument is foreclosed by
Shinn v. Ramirez, 142 S. Ct. 1718, 1734-35 (2022).

Section§ 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows
that(A) the claim relies on-(i) a new rule of constitutional law, made
retroactive to cases on collateral review
by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(8) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.

"Under the opening clause of§ 2254(e)(2), a failure to develop the factual basis of a
claim is not established unless there is lack of diligence, or some greater fault,

5 In

Dickens, the Ninth Circuit held that § 2254(e)(2) did not bar a district court from
holding an evidentiary hearing on a defaulted IATC claim, because a petitioner seeking
to show cause based on the ineffective assistance of post-conviction counsel was "not
asserting a 'claim' for relief as that term is used in§ 2254(e)(2)." Dickens, 740 F.3d at
1321.
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attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420,
432 (2000); see also Shinn, 142 S. Ct. at 1734-35.
Prior to Shinn, courts in the Third Circuit did not view§ 2254(e)(2) as precluding
them from holding evidentiary hearings to evaluate if a petitioner's procedural default of
an IATC claim could be excused. See Williams
722 (3d Cir. 2022); Cristin

v. Sup't Mahanoy SCI,

45 F.4th 713,

v. Brennan, 281 F.3d 404, 416-17 (3d Cir. 2002). Instead, a

district court had discretion to hold an evidentiary hearing to determine if a petitioner
could overcome the default of an IATC claim.
That practice changed with Shinn. In Shinn, the Supreme Court addressed
"whether the equitable rule announced in Martinez permits a federal court to dispense
with § 2254(e)(2)'s narrow limits because a prisoner's state postconviction counsel
negligently failed to develop the state-court record." Shinn, 142 S.Ct. at 1734. The

Shinn Court clarified that "postconviction counsel's ineffective assistance in developing
the state-court record is attributed to the prisoner." Id. at 1734. Consequently, when, as
here, a petitioner blames state post-conviction counsel for failing to develop evidence to
support a defaulted IATC claim, the federal habeas court cannot hold an evidentiary
hearing or otherwise expand the state court record to introduce evidence to support that
claim unless the petitioner satisfies one of§ 2254(e)(2)'s two narrow exceptions to
AEDPA's general bar on evidentiary hearings. See id. at 1735; see also Williams, 45
F.4th at 724 (AEDPA's prohibition is not limited to formal evidentiary hearings and
applies whenever the petitioner wants to expand the record beyond that developed in
state court). The Shinn Court also held that, because a Martinez hearing on cause and

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prejudice would serve no purpose if the evidence developed there could not be
considered on the merits, a federal court may not hold an evidentiary hearing or
otherwise consider new evidence to assess cause and prejudice under Martinez. See

Shinn, 142 S.Ct. at 1738-39.
Given Shinn's ruling, Petitioner's continued reliance on Dickens is misplaced.
Notably, Petitioner does not attempt to meet the standards of§ 2254(e)(2), and the
Claims for which he seeks an evidentiary hearing do not rely on a new, retroactive rule
of constitutional law, nor do they rely on a factual predicate that could not have been
discovered previously through due diligence. Therefore, the Court concludes that
Petitioner's instant argument does not warrant reconsideration of its refusal to hold an
evidentiary hearing on Petitioner's defaulted IATC Claims.

E. Court's Conclusion That Initial Post-Conviction Counsel Did Not Provide
Ineffective Assistance
The Delaware state courts dismissed Claims One (B) - (F) (IATC), Two, and
Three as barred under Delaware Superior Court Criminal Rule 61. In an attempt to
establish cause for his default of these Claims, Petitioner relied on Martinez and argued
that post-conviction counsel rendered ineffective assistance during his first Rule 61
proceeding by failing to investigate and pursue grounds for relief beyond claims of
ineffective assistance of trial counsel. The Court rejected Petitioner's attempt to
establish cause by blaming initial post-conviction counsel for his failure to present the
IATC arguments in Claim One (A) - (F) in his initial Rule 61 proceeding because: (1)
although two attorneys represented Petitioner during his initial Rule 61 proceeding,
Petitioner focused on the personal travails of only one of his attorneys when attempting

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to satisfy the performance prong of the Strickland standard; (2) Petitioner failed to
overcome Strick/ands strong presumption that counsel's failure to pursue certain issues
was the result of a tactical reason; and (3) initial post-conviction counsel presented nine
claims, four of which were IATC claims, and also called numerous witnesses to testify
during the fourteen days of evidentiary hearing. (DI. 91 at 47-52) The Court rejected
Petitioner's attempt to establish cause for his default of Claims Two and Three by
blaming initial post-conviction counsel because these Claims were not IATC claims.
In his Rule 59 (e) motion, Petitioner appears to assert that the Court erred in
denying his ineffective assistance of initial post-conviction counsel argument, stating
that he "acknowledges the Court's observation that he had two attorneys represent him
during initial post-conviction proceedings," but his "evidence of counsel's deficiency for
failing to conduct an adequate investigation applies to both counsel." (D.I. 93 at 8)
Petitioner's "clarification" does not address the Court's other two reasons for rejecting
Petitioner's argument that post-conviction counsel were ineffective. Therefore,
Petitioner's instant contention does not warrant reconsideration of the Court's
conclusion that post-conviction counsel did not provide ineffective assistance during
Petitioner's initial Rule 61 proceeding in the manner he asserted, nor does it warrant
reconsideration of the Court's conclusion that Claims One (8)-(F) are procedurally
barred from habeas review. 6

6The

Court does not address Petitioner's argument concerning Claims Two and Three
because they are not IATC claims, which means Martinez does not provide an available
mechanism for establishing cause for Petitioner's default.

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F. Court's Refusal To Grant Certificate Of Appealability
Petitioner asks the Court to reconsider its decision not to issue a certificate of
appealability for Claims One (A) - (F), Two, and Three because they are debatable on
the merits. (D.I. 93 at 8-10). This argument does not identify manifest errors of law or
fact underlying the Court's decision. Therefore, the Court declines to reconsider its
denial of a certificate of appealability.

IV.

CONCLUSION
For the aforementioned reasons, the Court will deny the instant Rule 59(e)

Motion. (D.I. 97) The Court also declines to issue a certificate of appealability, because
Petitioner has failed to make a usubstantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); see United States v. Eyer, 113 F.3d 470 (3d Cir. 1997);
3d Cir. LAR 22.2 (2011).

22