Hardwick v. Phelps et al

Filing 22

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 12/10/15. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

)
)
)

JAMES HARDWICK,
Petitioner,

)
) Civ. No. 12-1254-SLR

v.

)

DAVID PIERCE, Warden,
and ATTORNEY GENERAL OF
THE STATE OF DELAWARE,

)
)
)

)
Respondents.

1

)

James Hardwick. Pro se petitioner.
Gregory E. Smith. Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

December ID , 2015
Wilmington, Delaware

1

Warden David Pierce replaced former Warden Perry Phelps, an original party to the
case. See Fed. R. Civ. P. 25(d).

JsiJo~Judge
I. INTRODUCTION

Petitioner James Hardwick ("petitioner") is a Delaware inmate in custody at the
James T. Vaughn Correctional Center in Wilmington, Delaware. Presently before the
court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(D.I. 3; D.I. 11) For the reasons that follow, the court will dismiss his application.

II. FACTUAL AND PROCEDURAL BACKGROUND
As set forth by the Delaware Supreme Court in Hardwick v. State, 971 A.2d 130,
132 (Del. 2009), and by the Superior Court in State v. Hardwick, 2011 WL 2535559
(Del. Super. June 7, 2011 ), the facts leading to petitioner's arrest and conviction as a
consequence of having sexual relations with his underage stepdaughter, Alice Smith,
and her friend, Peggy Lane (both pseudonyms), are as follows:
In 2004, petitioner married Alice's mother and moved into her home.
Petitioner's adult nephew, Matthew, also stayed at the house occasionally.
Peggy testified that in July 2005, when she was thirteen years old, she
spent the night at Alice's house. Late in the evening, she, Alice, Matthew,
and petitioner were in the living room. Matthew was sleeping on the sofa
while petitioner played on the computer. Peggy and Alice saw that
petitioner was watching pornography. Noticing that the girls were looking
at the computer screen, petitioner asked whether they liked what they
saw. He then offered to teach Peggy how to do the acts portrayed in the
pornography and invited the girls into the basement to look at Playboy
magazines. According to Peggy, the girls agreed. Peggy alleged that, in
the basement, petitioner and the two girls engaged in a variety of sexual
acts. Peggy also testified about another sexual incident that took place
shortly thereafter at a townhouse in Delaware City involving her, petitioner,
and Matthew, as well as numerous occurrences of group sex involving
petitioner, Matthew, and the two girls. According to Peggy, she had sex
with petitioner at least twenty times on various occasions and she
consented to all of those sexual encounters with petitioner.
Alice, who was twelve in the summer of 2005, also testified at trial. She
corroborated Peggy's testimony about the incident in her basement when

Peggy and her stepfather first had sex, although she testified that only
Peggy was interested in the pornography and she tried to talk Peggy out
of engaging in sexual conduct with petitioner. Alice also testified that she
only overheard Peggy and petitioner engaging in sexual conduct once at
the Delaware City townhouse. Alice did not support Peggy's allegations of
multiple encounters of group sex. She denied engaging in any sexual
activity with either Peggy or petitioner on any of the occasions Peggy
mentioned; however, she testified that petitioner had forced her to perform
oral sex on him at least once a month since she was ten years old.
In 2007, Peggy told her then-boyfriend about her sexual encounters with
petitioner. At some point, Alice told Matthew about the sexual encounters
with petitioner, but she made Matthew promise not to tell anyone.
According to Alice, Matthew seemed surprised. Someone notified the
police and the police arrested petitioner. The police interviewed both girls.
Hardwick, 971 A.2d at 132-33.

After some discussion with Peggy and her parents about Peggy making a
pretext phone call to [petitioner], Peggy called (petitioner]. They spoke to
each other three times over two days on August 28 and 29, 2007. All
were recorded with her parents' consent. The police gave her "talking
points." She described her boyfriend's unsatisfactory (alleged) attempts at
oral sex to which he asked if she wanted a "refresher" course. The idea,
he said, was to get her as "hot" as she could be.
[Petitioner] asked Peggy when she wanted to do it. She asked if she
could bring a friend (there was no "friend" who was going to be there). He
asked Peggy if she remembered Delaware City. He said she needed to
be really aroused and have energy to do anal intercourse. He spoke to
her of past acts of oral sex on him and how she had been rewarded.
(Petitioner] said the girlfriend Peggy was bringing had to be trusted.
Peggy said she was fifteen and [petitioner] said that was okay.
They set up a meeting in front of a store at People's Plaza in Glasgow at
10:00 a.m. on September 5, 2007. [Petitioner] showed up as arranged.
He was arrested. When searched, the police found a condom in his pants
pocket. They recovered a cell phone with the same number Peggy had
called in late August.
Hardwick, 2011 WL 2535559, at *2.

During the police investigation, Detective Rubin of the Newark Police
Department interrogated Matthew, the only other individual with

2

information regarding the allegations. During that interrogation, Matthew
claimed that petitioner and he did not commit the alleged sexual acts. The
State taped that interview and sent it to defense counsel. The defense
hired a defense investigator to interview Matthew.
Hardwick, 971 A.2d at 132-33.

Petitioner was arrested on September 5, 2007. (D.I. 16 at 3) On November 26,
2007 he was indicted on thirty-six counts of first degree rape, two counts of attempted
second degree rape, and two counts of continuous sexual abuse of a child. He was reindicted on March 3, 2008. Id.
On May 27, 2008, a five day jury trial commenced in the Superior Court. (D.I. 16
at 4) The tapes of the phone calls between petitioner and Peggy were admitted into
evidence during the trial. See Hardwick v. State, 47 A.3d 523 (Table), 2012 WL
1067150, at *1 (Del. Mar. 27, 2012). Both Alice and Peggy testified during the trial, but
Matthew did not. 2 Id. At the close of the evidence, and before jury instructions, the

As explained by the Delaware Supreme Court,

2

[d]efense counsel attempted to secure Matthew's appearance at trial and gave
him a subpoena; however, defense counsel did not subpoena Matthew pursuant
to 11 Del. Code § 3523, which would have required Matthew to appear under
penalty of law. The State has yet to decide if it will charge Matthew. Although
the State did not charge Matthew based on Peggy's allegations, the trial judge
appointed counsel to represent him. Matthew did not appear at trial. Defense
counsel twice asked the trial judge for permission to make a missing witness
argument to the jury. During the first discussion, the trial judge noted his
concerns about jury speculation, the 403 balancing test, and Matthew's Fifth
Amendment right. When defense counsel reintroduced his argument for a
missing witness instruction, the trial judge ruled that, under the circumstances,
Matthew's nonappearance could not be used against the State and any missing
witness argument was inappropriate.
Hardwick, 971 A.2d at 132-33.

3

Superior Court dismissed seven counts of first degree rape, and the counts of
continuous sexual abuse of a child. The jury convicted petitioner on all remaining
charges. Id. The Superior Court sentenced petitioner to thirty-one consecutive life
sentences. Id. Represented by new counsel, petitioner appealed. The Delaware
Supreme Court affirmed his convictions and sentences on April 22, 2009. See
Hardwick, 971 A.3d at 133.

In June 2009, petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") asserting, inter alia,
ineffective assistance of counsel. The Superior Court appointed counsel to represent
petitioner, but petitioner discharged counsel and proceeded pro se. On March 10,
2011, the Superior Court denied the Rule 61 motion, and then re-issued its opinion on
June 7, 2011. See Hardwick, 2011 WL 2535559. The Delaware Supreme Court
affirmed that judgment on March 27, 2012. See Hardwick, 2012 WL 1067150.
Petitioner timely filed a§ 2254 application in this court. (D.I. 1) The State filed
an answer, arguing that the court should deny the application because the claims are
either procedurally barred or do not warrant relief under§ 2254(d). (D. I. 16)
Ill. GOVERNING LEGAL PRINCIPLES
A. Exhaustion and Procedural Default

A federal court may consider a habeas petition filed by a state prisoner only "on
the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). One prerequisite to federal habeas review is that
a petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. §

4

2254(b)(1 ). The exhaustion requirement is grounded on principles of comity to ensure
that state courts have the initial opportunity to review federal constitutional challenges to
state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner
satisfies the exhaustion requirement by "fairly presenting" the substance of the federal
habeas claim to the state's highest court, either on direct appeal or in a post-conviction
proceeding, and in a procedural manner permitting the state courts to consider it on the
merits. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Castille v. Peoples, 489 U.S.
346, 351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural
rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d
153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although
treated as technically exhausted, such claims are nonetheless procedurally defaulted.
Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly,

if a petitioner presents a habeas claim to the state's highest court, but that court "clearly
and expressly" refuses to review the merits of the claim due to an independent and
adequate state procedural rule, the claim is exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64 (1989).

A federal court cannot review the merits of procedurally defaulted claims unless
the petitioner demonstrates either cause for the procedural default and actual prejudice
resulting therefrom, or that a fundamental miscarriage of justice will result if the court
does not review the claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999);
Coleman v, 501 U.S. at 750-51. To demonstrate cause for a procedural default, a

petitioner must show that "some objective factor external to the defense impeded

5

counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S.
478, 488 (1986). To demonstrate actual prejudice, a petitioner must show that the
errors during his trial created more than a possibility of prejudice; he must show that the
errors worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions." Id. at 494.
Alternatively, if a petitioner demonstrates that a "constitutional violation has
probably resulted in the conviction of one who is actually innocent," Murray, 477 U.S. at
496, then a federal court can excuse the procedural default and review the claim in
order to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S.
446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage
of justice exception applies only in extraordinary cases, and actual innocence means
factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623
(1998); Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting
"new reliable evidence - -whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence - - that was not presented at trial,"
showing that no reasonable juror would have voted to find the petitioner guilty beyond a
reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).
B. Standard of Review
If a state's highest court adjudicated a federal habeas claim on the merits, the
federal court must review the claim under the deferential standard contained in 28
U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be
granted if the state court's decision was "contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of

6

the United States," or the state court's decision was an unreasonable determination of
the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see
also Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d

Cir. 2001 ).
A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. §
2254(d) if the state court decision finally resolves the claim on the basis of its
substance, rather than on a procedural or some other ground. Thomas v. Horn, 570
F.3d 105, 115 (3d Cir. 2009). The deferential standard of§ 2254(d) applies even "when
a state court's order is unaccompanied by an opinion explaining the reasons relief has
been denied"; as recently explained by the Supreme Court, "it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 98100 (2011 ). The Supreme Court recently expanded the purview of the Richter
presumption in Johnson v. Williams, 133 S.Ct. 1088 (2013). Pursuant to Johnson, if a
petitioner has presented the claims raised in a federal habeas application to a state
court, and the state court opinion addresses some but not all of those claims, the
federal habeas court must presume (subject to rebuttal) that the state court adjudicated
the unaddressed federal claims on the merits. Id. at 1095-96. The consequence of this
presumption is that the federal habeas court will then be required to review the
previously unaddressed claims under§ 2254(d) whereas, in the past, federal habeas
courts often assumed "that the state court simply overlooked the federal claim[s] and
proceed[ed] to adjudicate the claim[s] de nova." Id. at 1091-92.

7

Finally, when reviewing a habeas claim, a federal court must presume that the
state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1 ). This
presumption of correctness applies to both explicit and implicit findings of fact, and is
only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1 );

Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); 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).

IV. DISCUSSION
Petitioner's application presents the following seven grounds for relief: (1) the
trial court improperly instructed the jury to disregard reasonable doubt standards and
harmonize any conflicts; (2) the trial court's jury instruction for first degree rape
constructively amended the indictment and deprived petitioner of a fair trial; (3) the
police recorded the telephone conversations between petitioner and Peggy without a
warrant, thereby rendering the admission of those recorded conversations illegal; (4) the
police illegally searched petitioner's car without a warrant and illegally seized items from
petitioner's home that were not authorized in the warrant; (5) trial and appellate counsel
provided ineffective assistance in numerous ways; (6) trial counsel's failure to call
witnesses that could have provided "favorable exculpatory testimony" deprived
petitioner of his right to compulsory process; and (7) the State engaged in prosecutorial
misconduct by manipulating the testimony provided by petitioner's wife and by
suborning perjury of the two victim witnesses.

8

A. Claim One: Improper Jury Instructions Regarding Witness Credibility
In claim one, petitioner contends that the trial court improperly instructed the jury
on witness credibility. Petitioner presented this argument to the Delaware Supreme
Court on post-conviction appeal, which denied the claim as procedurally defaulted
under Rule 61 (i)(3) because petitioner did not present the argument during the trial or
on direct appeal. By applying the procedural bar of Rule 61 (i)(3), the Delaware
Supreme Court articulated a "plain statement" under Harris v. Reed, 489 U.S. 255, 2634 (1984), that its decision rested on state law grounds. This court has consistently held
that Rule 61 is an independent and adequate state procedural rule precluding federal
habeas review. See McCleaf v. Carroll, 416 F. Supp. 2d 283, 296 (D. Del. 2006);
Mayfield v. Carroll, 2005 WL 2654283 (D. Del. Oct. 11, 2005). Thus, the court cannot
review the merits of claim one absent a showing of cause for the default, and prejudice
resulting therefrom, or upon a showing that a miscarriage of justice will occur if the claim
is not reviewed.
Petitioner attempts to establish cause for his default by blaming defense counsel
for failing to raise the issue during his trial or direct appeal. An attorney's ineffective
assistance may constitute cause for a procedural default, but only if the attorney's
ineffectiveness amounts to a Sixth Amendment violation. See Murray, 477 U.S. at 488.
As explained later in the opinion, defense counsel's failure to object to the credibility
instruction during the trial or on direct appeal did not amount to constitutionally
ineffective assistance. See infra at 18-19. Therefore, petitioner has failed to
demonstrate cause.

9

In the absence of cause, the court need not discuss the issue of prejudice.
Nevertheless, petitioner cannot establish that he was prejudiced by the trial court's jury
instruction on witness credibility. The Delaware Supreme Court held on post-conviction
appeal that the jury instruction at issue "was an accurate statement of the law and of the
jurors' role as the trier of fact. In no way did the trial court's instruction suggest that the
evidence against [petitioner] was uncontradicted or that the jurors should believe or
disbelieve any particular testimony." Hardwick, 2012 WL 1067150, at *2. The court
must defer to the Delaware Supreme Court's interpretation and application of Delaware
law. Therefore, there was no basis for defense counsel to object to the instruction.
Additionally, the court concludes that the miscarriage of justice exception to the
procedural default doctrine does not excuse petitioner's default, because he has failed
to provide new reliable evidence of his actual innocence that was not available at trial.
For all of these reasons, the court will deny claim one as procedurally barred from
federal habeas review.

B. Claim Two: Jury Instruction Constructively Amended Indictment for
First Degree Rape Charges
The Superior Court instructed the jury that the victims, Peggy and Alice, could
not, as a matter of law, consent to the sexual acts because of the age difference
between them and petitioner. In claim two, petitioner contends that this instruction
constructively amended the indictment because it impermissibly removed "force" and
"lack of consent" as required elements for the rape charges. He also contends that trial
counsel provided ineffective assistance by failing to object to the constructive
amendment.
10

On post-conviction appeal, the Delaware Supreme Court concluded that
petitioner's failure to brief the argument constituted a waiver of claim two. See
Hardwick, 2012 WL 1067150, at *1 n. 5. Whether petitioner's omission is treated as a

failure to "fairly present" claim two to the Delaware Supreme, or is treated as a waiver of
the claim under Delaware precedent, 3 petitioner's failure to include the argument in his
post-conviction appellate brief demonstrates that he did not exhaust state remedies for
claim two. At this juncture, Delaware Rule 61 (i)(1) would bar petitioner from raising this
claim in a new Rule 61 motion. See Del. Super. Ct. Crim. R. 61(i)(1) (imposing a oneyear filing deadline for Rule 61 motions). Consequently, the court must treat claim three
as exhausted but procedurally defaulted, which means that it cannot review its merits
absent a showing of cause and prejudice, or a miscarriage of justice.
Petitioner cannot demonstrate that he was prejudiced by failing to raise the
constructive amendment issue. He was charged with rape under former 11 Del. Code §
773(a)(6), which provided that a defendant is guilty of first degree rape when the
defendant intentionally engages in sexual intercourse with another person and the
victim "has not yet reached his or her sixteenth birthday and the defendant stands in a
position of trust, authority or supervision over the child." 11 Del. Code§ 773(a)(6)
(1998). Notably, former§ 773(a)(6) did not include "force" as an element. Moreover,
the State presented evidence that petitioner was forty-five years old and the victims
were twelve and thirteen years old when the rapes began. The girls' ages, and

3The

Delaware Supreme Court relied upon an independent and adequate Delaware
procedural rule in viewing claim two as waived. See Cannon v. Phelps, 2013 WL
3199837, at *12 (D. Del. June 21, 2013).
11

petitioner's position as Alice's step-father, are indisputable facts. Therefore, petitioner's
argument that the jury instruction removed the necessary element of "force" and/or "lack
of consent" is completely meritless.
To the extent petitioner asserts ineffective assistance as cause for his default, his
argument is unavailing because an attorney is not ineffective for failing to raise a
meritless argument.

Finally, the miscarriage of justice exception does not excuse

petitioner's default, because petitioner has not provided new reliable evidence of his
actual innocence. For all of these reasons, the court will deny claim two as procedurally
barred from habeas review.

C. Claim Three: Improper Admission of Recorded Phone Conversations
Next, petitioner contends that he was denied a fair trial when the trial court
admitted as evidence the recorded phone calls that occurred between himself and
Peggy, vaguely alluding that the warrantless recording of his conversations amounted to
coercion and entrapment and violated his right against self-incrimination. On postconviction appeal, the Delaware Supreme Court denied the claim as meritless because
the "Fifth Amendment does not offer protection to a defendant who voluntarily
incriminates himself, as [petitioner] did in this case." Hardwick, 2012 WL 1067150 at *4.
Given the Delaware Supreme Court's adjudication of this claim, habeas relief will only
be available if the Delaware Supreme Court's decision was either contrary to, or an
unreasonable application of, clearly established federal law.
The Fifth Amendment provides, in relevant part, that "[n]o person ... shall be
compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.
In United States v. Patane, 542 U.S. 630 (2004), the Supreme Court opined "that the
12

core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a
criminal defendant to testify against himself at trial. The Clause cannot be violated by
the introduction of nontestimonial evidence obtained as the result of voluntary
statements." Patane, 542 U.S. at 637. In addition, "surreptitious electronic recording of
conversations among private persons, and introduction of the recording during a
criminal trial, do not violate the Fifth Amendment's ban against compulsory selfincrimination because the conversations are not the product of any official compulsion."

Bergerv. New York, 388 U.S. 41, 107 (1967)(White, J., dissenting); see Olmstead v.
United States, 277 U.S. 438 (1966)(finding no violation where defendants were not
induced by compulsion to continually and voluntarily conduct business on telephones,
without knowledge of interceptions), overruled on other grounds by Katz v. United

States, 389 U.S. 347 (1967). Finally, the "Fifth Amendment has been held not to be
implicated by the use of undercover Government agents before charges are filed
because of the absence of the potential for compulsion." United States v. Henry, 447
U.S. 264, 272 (1980).
The record reveals that petitioner was not in custody when he spoke by phone
with Peggy, the police did not compel petitioner to speak with Peggy, and, even though
Peggy made the phone call to petitioner at the prompting of the police, nothing in the
record indicates that petitioner's "will was overborne in such a way as to render his
confession the product of coercion." Arizona v. Fulminante, 499 U.S. 279, 288 (1991).
Since nothing in petitioner's conversation with Peggy amounted to interrogation within
the meaning of the Fifth Amendment, the fact that the conversation was recorded does
not amount to a constitutional violation. Therefore, the court concludes that the
13

Delaware Supreme Court reasonably applied clearly established law in determining that
petitioner's statements to Peggy were voluntary and that the admission of the recorded
conversations did not violate petitioner's Fifth Amendment rights.

D. Claim Four: Warrantless Search and Seizure
In claim four, petitioner contends that the police violated his Fourth Amendment
rights by seizing items from his home and computer following his arrest that were not
specifically listed in the search warrant authorizing the search. Pursuant to Stone v.
Powell, 428 U.S. 465, 494 (1976), a federal court cannot provide habeas review of a
Fourth Amendment claim if the petitioner had a full and fair opportunity to litigate the
claim in the state courts. See also Wright v. West, 505 U.S. 277, 293 (1992). The "full
and fair opportunity to litigate" requirement is satisfied if the state has an available
mechanism for suppressing evidence seized in or tainted by an illegal search or seizure,
regardless of whether the petitioner actually availed himself of that mechanism. See
United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978); United States
ex rel. 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. Marshall
v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002).
In this case, the court concludes that petitioner had a full and fair opportunity to
litigate his Fourth Amendment claim. Petitioner does not allege, and there is no reason
to believe, that Delaware's system contains a structural defect that prevented petitioner
from litigating the issue raised in claim four. Significantly, petitioner could have filed a
14

motion to suppress the evidence pursuant to Rule 41 of the Delaware Superior Court
Rules of Criminal Procedure, but he chose not to do so. Moreover, although the police
recovered items not specifically listed in the search warrant, none of those items were
admitted into evidence. (D.I. 18, Affid. of Defense Counsel in Response to Rule 61
Motion for Postconviction Relief) Accordingly, the court will deny claim four as barred
by Stone.

E. Claim Five: Miscellaneous Ineffective Assistance of Counsel
Allegations
In claim five, petitioner asserts the following ineffective assistance allegations on
the part of trial counsel and/or appellate counsel: 4 (1) counsel did not provide any
adversarial testing of the State's case; (2) counsel failed to subpoena potential alibi
witnesses; (3) counsel failed to challenge the jury instruction regarding witness
credibility; (4) counsel did not challenge the State's failure to produce the unknown
victim alleged in the attempted second degree rape charge; (5) counsel failed to file a
motion to suppress the recorded telephone conversations between petitioner and
Peggy; (6) counsel did not challenge the credibility of the victims and/or investigate their
backgrounds; (7) counsel did not challenge the inconsistent statements provided by the
two victims; (8) counsel did not raise the issue of a speedy trial violation; (9) counsel
failed to present mitigating evidence during the sentencing hearing; (10) counsel did not
request medical and/or psychological testing of the victims; (11) counsel informed the

4The

State identifies thirteen allegations of ineffective assistance, but the claims the
State identifies as claim one and claim two assert the same "lack of adversarial testing"
argument. The court has combined what the State identifies as claims one and two into
one single allegation ("allegation one"). Therefore, the court lists, and reviews, twelve
ineffective assistance allegations.

15

jury that he did not know what the evidence was in petitioner's case; and (12) the
accumulation of these errors deserve relief.
Petitioner presented allegations one through twelve in his Rule 61 motion, and
the Superior Court denied them as meritless. However, because petitioner did not
reassert six of the claims on post-conviction appeal, the Delaware Supreme Court
determined that those six claims were waived, and refused to consider those claims on
the merits. In short, petitioner's waiver of the six ineffective assistance of counsel
claims effectuated a procedural default of those claims.
Assuming that Martinez v. Ryan, 132 S.Ct, 1309, 1315 (2012) provides a method
for avoiding a determination that the claims are procedurally defaulted, the State
contends that the court should deny all thirteen ineffective assistance allegations as
meritless. Given the confusing manner in which petitioner has presented the claims in
this proceeding, and the State's apparent waiver of petitioner's procedural default, the
court will exercise prudence and review the claims under§ 2254(d)(1).
The clearly established Supreme Court precedent governing ineffective
assistance of counsel claims is the two-pronged standard enunciated by Strickland v.
Washington, 466 U.S. 668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510
(2003). Under the first Strickland prong, a petitioner must demonstrate that "counsel's
representation fell below an objective standard of reasonableness," with
reasonableness being judged under professional norms prevailing at the time counsel
rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong,
a petitioner must demonstrate "there is a reasonable probability that, but for counsel's

16

error the result would have been different." Id. at 687-96. A reasonable probability is a
"probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must
make concrete allegations of actual prejudice and substantiate them or risk summary
dismissal. See Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991); Dooley v.
Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). Although not insurmountable, the
Strickland standard is highly demanding and leads to a "strong presumption that the

representation was professionally reasonable." Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254(d)(1) inquiry, the court notes that the
Delaware State Courts correctly identified the Strickland standard applicable to
petitioner's ineffective assistance of counsel allegations. Thus, the Delaware State
Courts' denial of the instant allegations of ineffective assistance was not contrary to
clearly established federal law. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill statecourt 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' denial of the
ineffective assistance allegations involved a reasonable application of Strickland. When
performing this inquiry, the court must review the Delaware state court decisions with
respect to petitioner's ineffective assistance of counsel claim through "doubly
deferential" lens. See Harrington, 562 U.S. at 105-06. In other words, "the question is
not whether counsel's actions were reasonable, [but rather], whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The court will review petitioner's thirteen claims in seriatim.
17

1.

Counsel did not provide adversarial testing to the State's case

According to petitioner, trial counsel refused to aid in preparing and presenting
any defense to the jury, and was essentially a "friend" to the prosecution's case. The
record belies this contention. Trial counsel made an opening statement, crossexamined each of the five prosecution witnesses, and made a closing argument. Trial
counsel also presented the Division of Family Services ("DFS") employee who
interviewed Alice a short time after the sexual activities occurred to show that Alice
could have, but did not, report those activities. See Hardwick, 2011 WL 855854, at *8.
Therefore, the court concludes that Delaware State Court's reasonably applied
Strickland in denying this allegation as baseless.

2. Counsel failed to subpoena potential alibi witnesses
Petitioner contends that counsel should have subpoenaed Matthew and other
alibi witnesses to testify during his trial. The court addresses this allegation later in the
in the opinion in its review of claim six. See infra at 28-30.

3. Counsel failed to challenge the jury instruction regarding witness
credibility
Next, petitioner contends that trial counsel should have objected to the trial
court's witness credibility jury instruction for being an impermissible comment on the
evidence as "uncontradicted" and because it effectively mandated that the jury reach a
guilty verdict. As previously discussed in this opinion, the Delaware Supreme Court
opined on post-conviction appeal that the jury instruction at issue "was an accurate
statement of the law and of the jurors' role as the trier of fact. In no way did the trial
court's instruction suggest that the evidence against [petitioner] was uncontradicted or
18

that the jurors should believe or disbelieve any particular testimony." Hardwick, 2012
WL 1067150, at *2. Given the Delaware Supreme Court's holding that the jury
instruction was an accurate statement of the law, petitioner cannot demonstrate that a
reasonable probability that the outcome of his proceeding would have been different if
counsel had raised the meritless objection. Accordingly, the court will deny the instant
argument.

4. Counsel failed to challenge State's failure to present unknown
attempted rape victim
Count thirty-one of the indictment charged petitioner with attempted second
degree rape of an unknown female victim. During petitioner's trial, the recorded
telephone conversations between Peggy and petitioner were admitted as evidence; in
those conversations, Peggy asked if she could bring a fifteen year-old friend to
petitioner's "refresher course", and petitioner said yes, as long as the friend could be
trusted.
Here, petitioner contends that counsel should have challenged count thirty-one
on the basis that there was no actual "victim" because the fifteen-year old friend Peggy
was supposed to bring to the "refresher course" with petitioner was fictitious. The
Delaware Supreme Court denied the claim as meritless, explaining that
[petitioner] was charged with attempted rape based on the evidence
contained in his recorded phone calls with Peggy during which he made
arrangements to meet Peggy and, he believed, her fifteen-year-old friend
for sex. Petitioner was forty-nine years old at the time. It is irrelevant
that the fifteen-year-old friend was fictitious. Under the circumstances as
he believed them to be, [petitioner] showed up at the prearranged meeting
place at the agreed-to time with a condom in his pocket. He thus took a
substantial step toward completing the crime of second degree rape. The
charge of attempted second degree rape was proven beyond a
reasonable doubt.

19

Hardwick, 2012 WL 1067150, at *4.
Pursuant to 11 Del. Code§ 531, a "person is guilty of an attempt to commit a
crime if the person (1) intentionally engages in conduct which would constitute the crime
if the attendant circumstances were as the person believes them to be; or (2)
intentionally does or omits to do anything which, under the circumstances as the person
believes them to be, is a substantial step in a course of conduct planned to culminate in
the commission of the crime by the person." In turn, a "substantial step under§ 531 [] is
an act or omission which leaves no reasonable doubt as to the defendant's intention to
commit the crime which the defendant is charged with attempting." 11 Del. Code§ 531.
Because neither Delaware statute requires the accused to have actually accomplished
his purpose, the fact that the victim is fictitious is immaterial to the crime of attempt.
Indeed, federal courts have often affirmed convictions under similar circumstances
where the victim is either completely fictitious or an undercover agent posing as an
underage individual. See, e.g., United States v. Pawlowski, 682 F.3d 205 (3d Cir.
2012); United States v. O'Andrea, 440 F. App'x 273 (51h Cir. 2011); United States v.

Young, 613 F.3d 735 (8 1h Cir. 2010). For instance, in United States v. Lundy, 676 F.3d
444 (51h Cir. 2012), the defendant was convicted of the federal crime of attempting to
engage in illegal sexual activity that would have constituted statutory rape under
Mississippi law, because he texted and engaged in phone conversations with a girl he
thought was fifteen years old, but who was actually an undercover police officer, and the
two had agreed to meet to have sex. The defendant was arrested when he arrived at
the agreed upon meeting location. On direct appeal, the Fifth Circuit affirmed the
20

defendant's conviction, explaining that it "has repeatedly held that factual impossibility to
complete a criminal act does not preclude a conviction for attempting to break the law,"
and the "argument that he could not have committed statutory rape [under Mississippi
law] with a 'faux child' does not stop him from being charged with attempting to break
the statutory law, if the facts had been as he thought they were." Id. at 448-49.
Significantly, petitioner was not charged with second degree rape of the unknown
victim but, rather, of attempted second degree rape of the unknown victim. As found by
the Delaware Supreme Court, the evidence introduced at trial was sufficient to establish
petitioner's requisite intent and other elements of that crime. Consequently, petitioner
cannot demonstrate a reasonable probability that the outcome of his proceeding would
have been different but for counsel's failure to contend that petitioner could not be
charged with attempted second degree rape of an unknown victim. Therefore, the court
will deny the instant argument for failing to satisfy§ 2254(d).

5. Failure to file a motion to suppress the recorded telephone
conversations
Petitioner asserts that counsel should have moved to suppress his recorded
telephone conversations with Peggy. The Delaware Supreme Court denied the
argument as meritless, holding that "counsel had no basis to file a motion to suppress
because, in accordance with 11 Del. Code§ 2402(c) (4), Peggy's parents had given
their prior consent to the police recording their daughter's phone calls with [petitioner]."
Hardwick, 2012 WL 1067150 at*4. The Delaware Supreme Court also noted that
defense counsel had no basis to file a motion to suppress on Fifth Amendment grounds
because petitioner voluntarily incriminated himself. Id.
21

In his Rule 61 affidavit, defense counsel explains that he "looked closely at this
issue" prior to trial and determined that there was no good faith basis for moving to
suppress the phone calls because there was no "illegal interception" under 11 Del.
Code§ 2402(4) and§ 2402(5)(d). (D.I. 18, Affid. of Defense Counsel in Response to
Rule 61 Motion for Postconviction Relief, State v. Hardwick, l.D. No. 0709006233) Both
the Superior Court and the Delaware Supreme Court concurred with defense counsel's
conclusion and held that the consent given by Peggy's parents precluded any argument
for suppression of the recorded telephone conversations pursuant to 11 Del. Code
§ 2402(c)(4).
On habeas review, the court must defer to the Delaware Supreme Court's
interpretation and application of Delaware state law. See Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). In turn, it is well-settled that an attorney does not provide ineffective
assistance by failing to present meritless arguments. See United States v. Sanders,
165 F.3d 248, 253 (3d Cir. 1999). Given the Delaware Supreme Court's holding that
there was no basis for suppressing the recorded telephone conversations, and looking
at the Delaware Supreme Court's denial of the instant ineffective assistance of counsel
claim through the doubly deferential lens applicable on habeas review, the court
concludes that the Delaware Supreme Court reasonably applied Strickland in holding
that defense counsel did not provide ineffective assistance by failing to file a meritless
suppression motion. Accordingly, the court will deny claim three.

22

6. Failure to investigate background of victims to determine if they
were credible

Petitioner contends that counsel failed to investigate the backgrounds of Peggy
and Alice in order to challenge their credibility. The Superior Court denied this claim as
meritless, stating, "What reputations? They were twelve and thirteen when [petitioner]
raped them. This claim is not worth anything." Hardwick, 2011 WL 2535559, at *10.
In the recorded phone conversations, petitioner reminisces about prior sexual
encounters with Peggy, plans a future sexual encounter, and expresses an awareness
that his behavior is against the law. (D.I. 18, App. to State's Ans. Br. in Hardwick v.
State, Nos. 262 &291, 2011, at 8-1 to 8-20) Petitioner's statements corroborate the

testimony provided by the two girls. Therefore, after considering the content of
petitioner's recorded conversation with Peggy along with the other evidence, and
viewing the Superior Court's decision through the doubly deferential lens applicable on
habeas review, the court concludes that the Delaware state courts reasonably applied
Strickland in denying this allegation.

7. Failure to challenge the victims' inconsistent statements

Next, petitioner asserts that counsel did not challenge the inconsistent stories
provided by the victims when they testified. After referencing the trial transcript, the
Superior Court denied this argument as baseless. The court has independently
reviewed the transcript, and concludes that the Superior Court's decision was a
reasonable determination of the facts. Notably, during his closing argument, defense
counsel stated,
[a]nd the evidence in this case has been very contradictory - very
contradictory[]. [T]here were two witnesses who almost sounded like they
23

were testifying in two different trials. If you looked at their testimony
individually, you might think there were two different people on trial here
because they were so contradictory in nature.
(D. I. 18, Transcript of Trial Proceedings, June 3, 2008, at 42-3) Defense counsel then
proceeded to thoroughly describe the "problems" he had with the victims' testimony.
Having concluded that the Superior Court reasonably determined that the record
belies petitioner's instant assertion, the court further concludes that the Delaware state
courts' denial of this assertion involved a reasonable application of Strickland.
Therefore, the court will deny petitioner's contention that counsel failed to challenge the
victims' inconsistent statements for failing to satisfy§ 2254(d).
8. Failure to raise a speedy trial objection
Petitioner contends that counsel should have moved to dismiss the charges
against him on the ground that his speedy trial rights were violated. The Superior Court
denied this argument because petitioner did not assert the issue on direct appeal and
also because petitioner "went to trial 192 days after his indictment." Hardwick, 2011 WL
253559, at *9.
Pursuant to Barker v. Wingo, 407 U.S. 514, 530 (1972), there are four factors
which should be addressed when determining if a particular defendant has been
deprived of his right to a speedy trial: length of delay, reason for the delay, the
defendant's assertion of his right, and prejudice to the defendant. "The length of the
delay is to some extent a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that go
in to the balance." Id. As the Delaware Supreme Court noted in Dabney v. State, 953
A.2d 159, 165 (Del. 2008), "the Superior Court speedy trial guidelines set the standard
24

that 90% of criminal trials should be held, or the cases otherwise disposed of, within 120
days of indictment, 98% within 180 days, and all cases within one year." Considering
that petitioner went to trial twelve days past the standard for 98% of Delaware cases,
and well within a year, the court cannot conclude that the Superior Court's rejection of
petitioner's underlying speedy trial claim was unreasonable. This conclusion is further
supported by the fact that the record is devoid of any indication that petitioner asserted
his right to a speedy trial, and because he has failed to demonstrate how he was
prejudiced by the alleged delay.
Having determined that the Superior Court reasonably found that petitioner's
alleged speedy trial violation was baseless, the court further concludes that the
Delaware state courts reasonably applied Strickland in concluding that defense counsel
did not provide ineffective assistance by not raising the meritless speedy trial argument.

9. Failure to present mitigating evidence
Next, petitioner asserts that counsel failed to present mitigation evidence at his
sentencing hearing. The Superior Court denied this claim for the following reason:
[Petitioner] overlooks the statutory fact that his prior conviction for raping
another step-daughter5 mandated a life sentence for each of the twentynine counts of rape first degree. The same statute mandated a sentence
of twenty-five years to life for the two counts of attempted rape second.
The Court believed and believes a life sentence for those two charges was
appropriate. [Petitioner], more than anyone, would be in possession of
whatever mitigating information he claims counsel should have found. But
he has failed to supply any --- even now. This claim rings hollow.

Hardwick, 2011 WL 2535559, at *10.

5 Petitioner

served a twenty year prison sentence in Pennsylvania for raping a different
step-daughter. (D.I. 18, State's Ans. Br. in Hardwick v. State, Nos. 262 & 291, 2011, at
6)
25

In this proceeding, petitioner has not described any mitigation evidence he
believes counsel should have either discovered or presented. He also fails to
demonstrate how the presentation of mitigation evidence would have affected his
mandatory life sentences. Therefore, viewing the Delaware state courts' denial of this
claim through the applicable doubly deferential lens, the court concludes that the
Delaware state courts reasonably applied Strickland in denying this conclusory claim.
10. Failure to have victims medically and psychologically tested
Petitioner contends that counsel should have subjected Alice and Peggy to
medical and psychological testing. The Superior Court denied this claim for lack of
specificity, explaining that,
Detective Rubin testified that, after two years, any DNA testing or rape kit
testing would have served no purpose. [Petitioner] does not say what
such testing would have done or what kind of testing he believes should
have been done. This claim lacks merit.
Hardwick, 2011 WL 2535559, at *8. Petitioner's presentation of the argument in this

proceeding fares no better. For instance, the "bulk" of the sexual acts for which
petitioner was convicted occurred sometime around September 2005, but Alice and
Peggy did not report what had happened until two years later. See Hardwick, 2011 WL
2535559, at *6-*7. Defense counsel used the victims' delay in reporting the crimes to
the greatest extent he could during the trial by calling DFS workers to testify about an
earlier unsubstantiated investigation of petitioner; by challenging the police decision not
to test a pubic hair found on a jar of vasoline; and by vigorously questioning the victims'
credibility. Petitioner's instant succinct and conclusory statement regarding counsel's
"failure" to obtain medical and psychological testing of the victims two years after the

26

offenses occurred does not demonstrate a reasonable probability that the outcome of
his proceeding would have been different but for counsel's failure to obtain this testing
two years after the crime. Therefore, the court concludes that the Delaware state court
reasonably applied Strickland in denying this allegation.

11. Failure to know the evidence against petitioner
Next, petitioner contends that defense counsel was ineffective for stating in his
opening statement to the jury that, as petitioner's "attorney, I'm not going stand up here
and tell you what the evidence is or is not going to be in this case. And the reason I'm
not going to do that is because I don't know what he evidence is." (0.1. 18, Trial
Transcript, May 28, 2008, at 39-40) This argument lacks merit. After speaking the
aforementioned sentence, counsel went on to say,
As the judge told you, nothing the lawyers say at this point in time is
evidence you should consider when you go back to deliberate in the jury
room. The prosecutor's job is to convict [petitioner] of these crimes. The
prosecutor has had him charged with these crimes, and it's his job to
convict him. So, he wants to get up here, he's got the first crack at you,
and tell you what the evidence is going to be. But the fact is, the evidence
is going to be what the witnesses say from the witness stand. That's
going to be the evidence you have to consider when you go back to
deliberate. So, as jurors, while you're listening to the evidence in this
case, there's a couple point's I'd like you to consider while you're sitting
here.

Id. When viewed in its proper context, counsel's statement was designed to convince
the jurors not to accept the prosecutor's preview of the evidence, and inform them that
they would have to sift through the evidence and weigh it on their own at the close of
the case. The statement was not an indication that defense counsel truly did not know
the evidence against petitioner. Accordingly, the court will deny the instant ineffective
assistance allegation as meritless.

27

12. Cumulative errors amounted to ineffective assistance

Finally, petitioner asserts that he suffered prejudice from the accumulation of the
aforementioned attorney errors. Having already determined that none of petitioner's
complaints about counsel warrant relief, the court will deny this final argument as
meritless.
F. Claim Six: Ineffective Assistance of Counsel Re: Failure to Subpoena
Witnesses

Petitioner's next claim is that defense counsel's failure to subpoena his nephew
Matthew to be a witness, or to present any other favorable witnesses, deprived him of a
fair trial. The Delaware Supreme Court denied this claim as meritless on postconviction appeal. Therefore, petitioner will only be entitled to habeas relief if the
Delaware Supreme Court's decision was either contrary to, or an unreasonable
application of, clearly established federal law.
The Delaware Supreme Court's decision was not contrary to clearly established
federal law because the Delaware Supreme Court correctly identified the two-pronged
Strickland standard applicable to claim six. The court also concludes that the Delaware
Supreme Court reasonably applied the Strickland standard to the facts of petitioner's
case. In rejecting the instant claim, the Delaware Supreme Court explained that:
The record reflects that [Peggy] told police that Matthew had participated
in some of the sexual assaults together with petitioner. [Alice] disputed
Matthew's involvement. When interviewed by police, Matthew denied
participating in or knowing about [petitioner's] assaults. Matthew informed
defense counsel that he would appear voluntarily and testify on
[petitioner's] behalf at trial. Given his concerns over Matthew's possible
self-incrimination, defense counsel requested that the trial court appoint
counsel to represent Matthew. Defense counsel arranged transportation
for Matthew to get to the courthouse. When the time came, however,
defense counsel was informed by [petitioner's] own mother that Matthew

28

had left his house in Pennsylvania and that his family did not know his
whereabouts. Defense counsel requested a missing witness instruction,
which the Superior Court refused to give. [The Delaware Supreme] Court
affirmed that ruling on direct appeal.
*
*
*
In this case, we agree with the Superior's Court conclusion that [petitioner]
can establish neither unreasonable attorney error nor prejudice. The
record reflects that defense counsel was concerned enough about
Matthew's potential criminal involvement and how he would testify at
[petitioner's] trial that he arranged in advance to have separate counsel
appointed to represent Matthew. Even assuming that Matthew would
have agreed to testify rather than invoking his rights under the Fifth
Amendment, [petitioner] has failed to substantiate his claim that Matthew
would have provided exculpatory testimony. Even if Matthew had been
able to provide some testimony contradicting [Peggy's] testimony, we
agree with the Superior Court that such testimony, given Matthews's selfinterest and the other evidence against [petitioner], would not have
changed the outcome of the trial. Similarly, to the extent that [petitioner]
suggests that trial counsel erred in failing to call other "favorable"
witnesses for the defense, [petitioner] has failed to substantiate what
favorable testimony these witnesses could have provided and how it
would have changed the outcome of his trial. Accordingly, we reject this
claim on appeal.

Hardwick, 2012 WL 1067150, at *3. Notably, in his Rule 61 affidavit, trial counsel
explains that petitioner only identified one other potential alibi witness in addition to
Matthew. (D.I. 18, Affid. of Defense Counsel in Response to Rule 61 Motion for
Postconviction Relief) An investigator with the Public Defender's Office interviewed the
other potential witness, who told the investigator that she could not recall any specific
dates necessary to establish an alibi. Id. In addition, the potential witness' comments
about petitioner's behavior were not favorable. Thus, based on the investigator's
interview, trial counsel chose not to call the other person identified by petitioner as an
alibi witness. Id.

29

It is well-settled that an otherwise reasonable decision by counsel not to call
certain witnesses is not ineffective simply because it differed from the defendant's
wishes. See, e.g., Diggs v. Owens, 833 F.2d 439, 445-46 (3d Cir. 1987). Moreover, to
succeed on an ineffective assistance claim based on counsel's failure to call certain
witnesses, a petitioner must show how their testimony would have been favorable and
material. See United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).
Based on the foregoing record, and viewing the Delaware Supreme Court's
decision through a doubly deferential lens, the court concludes that the Delaware
Supreme Court reasonably applied Strickland in rejecting petitioner's argument that
defense counsel rendered ineffective assistance by not subpoenaing Matthew and by
not calling the other potential alibi witness to testify. First, petitioner has failed to
establish prejudice resulting from trial counsel's failure to subpoena Matthew because
he has not demonstrated a reasonable probability that Matthew's potential testimony
would have affected the outcome of his case. Second, petitioner cannot demonstrate
prejudice resulting from trial counsel's failure to call the other potential witness to testify,
because that witness would not have been able to provide an alibi for petitioner.
Accordingly, the court will deny claim four for failing to satisfy§ 2254(d).
G. Claim Seven: "Official Oppression"/Prosecutorial Misconduct
In his final claim petitioner asserts that the State engaged prosecutorial
misconduct by threatening petitioner's wife with prosecution if she failed to cooperate on
the witness stand and by suborning perjury of the two victim witnesses. Relatedly,
petitioner contends that defense counsel was complicit in this misconduct.

30

The record reveals, and petitioner concedes, that he did not present this claim to
the Delaware Supreme Court on direct appeal or on post-conviction appeal. At this
juncture, any attempt to present this claim in a new Rule 61 motion in the Delaware
state courts would be barred as untimely and procedurally defaulted. See Del. Super.
Ct. Crim. R. 61 (i)(1 ), (3). Given these circumstances, the court must excuse petitioner's
failure to exhaust state remedies but treat the claim as procedurally defaulted.
Consequently, the court can only review claim seven on the merits if petitioner
demonstrates cause and prejudice, or a miscarriage of justice.
Petitioner attempts to establish cause for his default on the State's alleged delay
in providing his trial transcripts. He also asserts that, once he obtained and reread the
transcripts, he did not how to articulate the instant claim with specificity. These
explanations fail to establish cause for procedural default purposes. The fact that
petitioner attached portions of his transcript to his Rule 61 appellate brief demonstrates
that he had the necessary information to craft the instant argument, and petitioner's
inability to "articulate" the argument is irrelevant.
To the extent petitioner's contention that defense counsel was complicit in the
prosecutorial misconduct is a further attempt to establish cause, it is unavailing.
Petitioner never presented an ineffective assistance of counsel claim based on
counsel's failure to raise prosecutorial misconduct claim in his state collateral
proceeding or in his subsequent post-conviction appeal. Consequently, this ineffective
assistance of counsel allegation is itself procedurally defaulted, see Del. Super. Ct.
Crim. Rule 61 (i)(2), and cannot excuse petitioner's procedural default of the substantive

31

prosecutorial misconduct claim. See Edwards v. Carpenter, 529 U.S. 446, 453-54
(2000).
In the absence of cause, the court need not address the issue of prejudice.
Moreover, the miscarriage of justice exception to the procedural default doctrine does
not apply because petitioner has failed to present new reliable evidence of his actual
innocence that was not available at the time of his trial. Accordingly, the court will deny
claim seven as procedurally barred from federal habeas review.

V. CERTIFICATE OF APPEALABILITY
Finally, the court must decide whether to issue a certificate of appealabilty. See
3d Cir. L.A.R. 22.2 (2011 ). The court may issue a certificate of appealability only when
a petitioner makes a "substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that
reasonable jurists would find the district court's assessment of the denial of a
constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Further, when a federal court denies a habeas application on procedural grounds
without reaching the underlying constitutional claim, the prisoner must demonstrate that
jurists of reason would find it debatable: (1) whether the application states a valid claim
of the denial of a constitutional right; and (2) whether the court was correct in its
procedural ruling. Slack, 529 U.S. at 484.
For the reasons stated above, the court concludes that petitioner's habeas
application must be denied. Reasonable jurists would not find this conclusion
debatable. Consequently, petitioner has failed to make a substantial showing of the
denial of a constitutional right, and a certificate of appealability will not be issued.
32

VI. CONCLUSION
For the foregoing reasons, the court will deny petitioner's application for habeas
relief filed pursuant to 28 U.S.C. § 2254. An appropriate order will be entered.

33