Hester v. Phelps et al

Filing 130

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/28/2016. (cna)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

COR1\ELL HESTER,
Petitioner,
Civ. Act. No. 13-812-LPS

v.

DAVID PIERCE, Warden, and ATTORNEY
GENEfuA..L OF THE STATE OF DELAWARE,
Respondents.

Cornell rIester. Pro

Je

Petitioner.

Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department ofJustice, Wilmington,
Delaware. Attorney for Respondents.

MEMORANDUM OPINION

September 28, 2016
Wilmington, Delaware

Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.s.c. Section 2254 ("Petition") filed by Petitioner Cornell Hester ("Petitioner"). (D.L 1; D.L 17)
For the reasons discussed, the Court will dismiss the Petition and deny the relief requested.
I. BACKGROUND
As set forth by the Delaware Supreme Court in Petitioner's direct appeal, the facts leading to
Petitioner's arrest and conviction are as follows:
On December 16, 2009, Valerie Wilkins was home alone. At about
8:00 p.m., she heard a knock at the door and found [Petitioner], her
ex-boyfriend, on her doorstep. [petitioner] asked her to open the
door. Wilkins told [petitioner] that if he did not leave, she would call
the police. Wilkins then called her mother and told her that
[Petitioner] was at the door. As she retreated upstairs, [petitioner]
kicked in the front door and chased her. Wilkins attempted to hide
in her daughter's room. [petitioner] broke through the bedroom
door and grabbed Wilkins by the shirt, demanding her mobile phone,
which she had dropped as she was fleeing upstairs. [Petitioner] took
Wilkins room to room with him in search of the mobile phone,
which was ringing. After finding the phone on the stairs, Wilkins
pleaded with [petitioner] to leave because her children would be
returning home from church soon. [petitioner] eventually allowed
Wilkins to answer her mobile phone and speak with her daughter.
\V'ilkins' mother and step-father arrived at her house a short while
later along with Wilkins' three children. [petitioner] fled.

Hester v. State, 27 A.3d 551 (Table), 2011 WL 3717051, at *1 (Del. 2011).
On February 1, 2010, Petitioner was indicted on one count of first degree burglary, one
count of aggravated menacing, one count of offensive touching, one count of harassment, two
counts of criminal mischief, one count of second degree unlawful imprisonment, and one count of
malicious interference with emergency communications. (D.I. 54, App. to Appellant's Br. Under
Rule 26(c) in Hester t). State, No. 587,2010, at A7-A9) On May 11,2010, Petitioner filed a motion
seeking to dismiss his court-appointed counsel and asking for new counsel to be appointed; he

1

'-Vithdrew that motion at his final case review on May 24,2010. See Hester, 2011 WL 3717051, at *2.
The case proceeded to trial on June 2, 2010. Id. During a trial recess, Petitioner informed the trial
court that he had filed a federal lawsuit against his defense counsel and the public defender's office,
and he moved to dismiss defense counsel. The trial judge denied the motion. !d.
In June 2010, a Superior Court jury acguitted Petitioner on the charge of aggravated
menacing, but convicted him of second degree burglary (lesser included offense of first degree
burglary), second degree unlawful imprisonment, harassment, two counts of criminal mischief, and
malicious interference '-Vith emergency communications. See State

1).

Hester, 2012 WL 5364690, at *1

(Del. Super. Ct. Oct. 9,2012). The Superior Court sentenced him on September 10, 2010 as a
habitual offender to a total period of fourteen years and nine months at Level V incarceration, to be
suspended after twelve years for probation. !d.
Petitioner represented himself on direct appeal, arguing that the trial judge was biased against
him, there was insufficient evidence to support his convictions, and defense counsel provided
ineffective assistance. See Hester, 2011 WL 3717051, at *1 n.l. The Delaware Supreme Court
affirmed Petitioner's convictions after holding that his first two claims were metitless and that it
could not review the third claim because ineffective assistance of counsel claims cannot be
considered on direct appeal in Delaware. !d. at *3.
On October 12,2010 and October 29,2010, Petitioner filed motions to reduce/modify his
sentence, asserting, inter alia, that the trial judge was biased against him, there was insufficient
evidence to support his convictions, the trial court violated his right

to

be protected against double

jeopardy, and defense counsel provided ineffective assistance. (D.l. 54, Commr's Rep. & Rec. in

State 1'. Hester, Cr. ID No. 0912010604, at 3 (Del. Super. Ct. Oct. 9,2012» The Superior Court
denied the two motions to reduce/modify sentence on November 22,2010. Id. Petitioner appealed,

2

and the Delaware Supreme Court affirmed the Superior Court's judgment. See Hester v. State, 16
A.3d 937 (fable), 2011 WL 1167064, at "'2 (DeL Mar. 29,2011).
Petitioner filed three more motions to correct sentence between April 23, 2012 and August
15,2012. (D.L 54, Commr's Rep. & Rec. in State v.

Hestel~

Cr. ID No. 0912010604, at 4 (Del. Super.

Ct. Oct. 9,2012); D.L 75 at 98-99) The Superior Court denied all three motions. (D.L 54, Commr's
Rep. & Rec. in State v.Hester, Cr. ID No. 0912010604, at 4 (Del. Super. Ct. Oct. 9,2012); D.L 75 at
98-99) Petitioner did not appeal any of those decisions.
On September 19, 2011, Petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Court Rule 61 ("Rule 61 motion"). (D.L 75 at 95) The Delaware
Superior Court denied the Rule 61 motion on November 21,2012. (D.L 75 at 100) Petitioner
appealed. On March 12,2013, the Delaware Supreme Court dismissed the appeal as untimely. See

Hester v. State, 62 A.3d 1223 (fable), 2013 WL 994062 (Del. Mar. 12,2013).
Petitioner timely filed the instant habeas Petition and subsequent amended Petition
(hereinafter referred to as "Petition"). (D.L 1; D.L 17) The State filed an Answer asserting that the
Court should deny the Petition because the claims asserted therein are either meritless, procedurally
barred, or not cognizable on federal habeas review. (D.L 52)

II.

LEGAL STANDARDS
A.

The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
"to reduce delavs in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." lT7 oo4ford v. Garceau, 538

.S. 202, 206 (2003) (internal

citations and quotation marks omitted). Pursuant to AEDPA, a federal court may consider a habeas
petition filed by a state prisoner only "on the ground that he is in custody in violation of the
3

Constitution or laws or treaties of the United States." 28 U.S.c. § 2254(a). AEDPA imposes
procedural requirements and standards for analyzing the merits of a habeas petition in order to
"prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the
extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002); see also W'oo4ford. 538 U.S. at 206.

B.

Exhaustion and Procedural Default

Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available relief under state law. See 28 U.S.c. § 2254(b);
O>Sullivan

tJ•

Boerckel, 526 U.S. 838, 842-44 (1999). AEDPA states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts
of the State; or

(B)

(i) there is an absence of available State corrective process; or
(li) circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.c. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to give
"state courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State's established appellate review process." O>Sullit'an, 526 U.S. at 844-45; see also
W'erts

t'.

Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A. petitioner satisfies the exhaustion requirement

by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either
on direct appeal or in a post-conviction proceeding. See Lambert v. Blackwell, 134 F.3d 506,
Cir. 1997); ({J1)erdale

t'.

3 (3d

S'!}der, 2000 WL 1897290, at '1'2 (D. DeL Dec. 22, 2000). "Fair presentation of

a claim means that the petitioner must present a federal claim's factual and legal substance to the

4

state courts in a manner that puts them on notice that a federal claim is being asserted." Hollowqy

p.

Hom, 355 F.3d 707, 714 (3d Cit. 2004).
petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines 1'. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000); Teague

t'.

Lane, 489 U.S. 288, 297-98 (1989). Although technically exhausted, such claims

are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160; Coleman v. Thompson, 501 C.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; Hams fl. Reed, 489 U.S.

260-64 (1989).

Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates cause for the procedural default and actual prejudice resulting therefrom.

See McCandleJJ t'. Vatlghn, 172 F.3d

260 (3d Cit. 1999); Coleman, 501 U.S. at 750-51. To

demonstrate cause for a procedural default, a petitioner must show that "some objective factor
external to the defense impeded counsel's efforts to comply Vilith the State's procedural rule."

A1t1rrqy t'. Carner, 477 L.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show
"that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates
. that failure

to

Carpenter, 529

review the claim will result in a fundamental miscarriage of justice. See Edwards 1'.
446,451 (2000); Wengert}. Frank, 266 F.3d 218, 224 (3d Cit. 2(01). A petitioner

demonstrates a miscarriage of justice by shmving a "constitutional violation has probably resulted in
the conviction of one who is actually innocent." A1t1rrqy, 477
5

at 496. Actual innocence means

factual innocence, not legal insufficiency, see Bouslry tJ• United States,

U.S. 614, 623 (1998), and is

established if no reasonable juror would have voted to find the petitioner guilty beyond a reasonable
doubt, see Sweger tJ•

Chesn~y,

294 F.3d 506, 522-24 (3d Cit. 2002). 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 found the petitioner guilty beyond a reasonable doubt.

See Hubbard i'. Pinchak, 378 F.3d 333, 339-40 (3d Cit. 2004).
C.

Standard of Review

When a state's highest court has adjudicated a federal habeas claim on the merits, the federal
court must review the claim under the deferential standard contained in 28 U.s.c.

§ 2254(d). A Clainl 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. See Thomas v. Hom, 570 F.3d 105, 115 (3d Cit. 2009).
Pursuant to 28 CS.c. § 2254(d), federal habeas relief may only be granted if the state court's
decision was "contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States," or the state court's decision was an
unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.s.c.

§ 2254(d)(1) & (2); see also Williams x'. T'qyior, 529 U.S. 362,412 (2000); Appel fJ. Hom, 250 F.3d 203,
210 (3d Cit. 2001). This deferential standard of § 2254(d) applies even "when a state court's order is
unaccompanied by an opinion explaining the reasons relief has been denied;" as recendyexplained
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. 86,98-99 (2011).
6

Finally, when reviewing a habeas claim under § 2254(d), a federal court must presume that
the state court's determinations of factual issues are correct. See 28 V.S.c. § 2254(e)(1 ); Appel, 250
F.3d at 210. This presumption of correctness applies to both explicit and implicit findings of fact,
and is only rebutted by clear and convincing evidence to the contrary. See 28 U.S.c. § 2254(e)(1);

Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). The Supreme Court has "not defined the
precise relationship between § 2254(d)(2) and § 2254(e)(1)." Burl 1). Titlou', 134 S.Ct. 10, 15 (2013);

but see il/liller-EI,). 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)

factual decisions).

applies

to

III.

DISCUSSION
Petitioner appears to assert the following eight grounds for relief in his Petition: (1) he was

denied his constitutional right to self-representation; (2) there was insufficient evidence

to

support

his convictions; (3) his sentence constitutes cruel and unusual punishment; (4) the trial judge was
biased against Petitioner, which resulted in a denial of his right to due process; (5) his right to be
protected against double jeopardy was violated; (6) the State engaged in prosecutorial misconduct;

(7) the Indictment was defective; and (8) defense counsel provided ineffective assistance. The Court
will discuss each Claim below. l

I. Claim One: Self-Representation
Petitioner contends that the trial court violated his constitutional right to self-representation
by denying his request to dismiss defense counsel after his trial had started. The Delaware Supreme

lSubsequent to the State's filing of its Answer, Petitioner has filed numerous documents either re­
asserting or amplifying the claims asserted in his Petition. (D.L 69; D.I 84; D.l. 85; D.l. 105; D.l. 115;
D.l. 118; D.l. 123; D.l. 126; D.I. 127; D.I. 128; D.L 129) The Court has reviewed and considered
these documents (as well all the documents filed by Petitioner not specifically mentioned here) to the
extent they supplement his habeas Claims.
7

Court denied the argument as meridess, explicidy holding that it found no error in the Superior
Court's denial of Petitioner's "untimely and ambiguous attempt to exercise his right to selfrepresentation." Hester, 2011 WL 3717051, at *2. Therefore, Petitioner will only be entided to relief
on Claim One if the Delaware Supreme Court's decision was either contrary to, or involved an
unreasonable application of, clearly established Federal law.
The clearly established Supreme Court precedent applicable to claims involving the Sixth
Amendment right to self-representation is Faretta 1). Calgornia,422 U.S. 806 (1975), and its progeny.
In Faretta, the Supreme Court held that a criminal defendant has a Sixth Amendment right to
represent himself and, therefore, may affinnatively waive his right to counsel. A criminal
defendant's waiver of counsel is only valid if the defendant is "made aware of the dangers and
disadvantages of self-representation, so that the record will establish that he knows what he is doing
and his choice is made with eyes open." Id. at 835. Pursuant to Faretta, a trial court must ensure that
a defendant's waiver of counsel is knowing, voluntary, and intelligent before permitting him to
proceed pro se. See Iowa

1'.

T01Jar, 541 C .S. 77, 88 (2004).

Nevertheless, a defendant's right to self-representation is not unqualified. As noted by the
Supreme Court, "even at the trial,

0, the government's interest in ensuring the integrity and

efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer."

Mm1inez v. C0U11 of.,1ppeal f!fCaitfornia, Fourlb Appellate Dist., 528 C.S. 152, 162 (2000). For instance,
an assertion of the right to proceed pro se must be made in a timely fashion, and
after trial has commenced i.e., at least after the jury has been
empaneled
the right of self-representation is curtailed. In that
context, district courts have discretion to deny an untimely request to
proceed pro se after weighing the prejudice to the legitimate interests
of the defendant against the potential disruption of proceedings
already in progress.

United StateJ il. Bankriff, 613 F.3d 358, 373 (3d Cit. 2010).
8

Turning to the first prong of the § 2254(d) (1) inquiry, the Court notes that the Delaware
Supreme Court did not specifically apply the Faretta standard in afflrming the trial court's decision.
Nevertheless, the Court concludes that the Delaware Supreme Court's decision was not contrary

to

Faretta, because the Delaware cases cited by the Delaware Supreme Courr refer to the applicable
precedent. See Faiy v. Horn, 516 F.3d 169, 196 (3d Cit. 2008) (Supreme Court of Pennsylvania's
decision was not "contrary to" clearly established Federal law because it appropriately relied on its
own state court cases, which articulated the proper standard derived from Supreme Court
precedent); Williams, 529 U.S. at 406 ("[A] run-of-the-mill state-court decision applying the correct
legal rule from [Supreme Court] cases to the facts of a prisoner's case [does] not fit comfortably
within § 2254(d)(1),s 'contrary to' clause.").
Additionally, the Court concludes that the Delaware Supreme Court reasonably applied

Faretta in denying Claim One. Prior to trial, Petitioner sought to have defense counsel dismissed
from representing him, but changed his mind during the final case review and opted to continue
with defense counsel. Petitioner made his second request to dismiss defense counsel as his attorney
after his trial had already started, the jury had been selected, and several witnesses had testified. The
trial court denied Petitioner's second request after concluding that such a belated request would be
too prejudicial and disruptive to the trial already in progress. The Delaware Supreme Court
affirmed that decision, explaining:
Once a trial has begun, the trial court may curtail a defendant's right
to self-representation. The trial judge considering the motion must
weigh the legitimate interests of the defendant against the prejudice
that may result from the potential disruption of the proceedings
already in progress. Sometimes the defendant's right to represent

The Delaware Supreme Court cited to Stigars v. State, 674 A.2d 477, 479 (Del. 1996), Christopher lJ.
State, 930 A.2d 894, 896 (Del. 2007), and ZIIPPO v. State, 807 A.2d 545, 548 (Del. 2002). See Hester,
2011 WL 3717051, at *2 notes 9-11.
2

9

himself may be outweighed by the State's interest in ensuring the
integrity and the efficiency of the triaL

Hester, 2011 WL 3717051, at *2.
Given the timing and manner of Petitioner's second request to proceed pro Sf, and his
previous change of heart, the Court concludes that the Delaware Supreme Court's decision
constituted a reasonable application of Faretta and its progeny. Accordingly, the Court will deny
Claim One.

II. Claim Two: Insufficient Evidence
Next, Petitioner contends there was insufficient evidence to support his conviction for
second degree burglary because: (1) there was no physical evidence linking him to the crime;
(2) Wilkins (his ex-girlfriend) lied about what happened; and (3) he had a right to be in the
apartment they shared. (D.L 17 at 1-3) In an attempt to support his argument, Petitioner contends
that there was insufficient evidence to convict him of second degree burglary because the fact that
the jury acquitted him of aggravated menacing demonstrates that he lacked the requisite felonious
intent. (D.l. 17 at 12) The Delaware Supreme Court denied Petitioner's insufficient evidence
argument as meritless. Therefore, Petitioner will only be entitled to relief on Claim Two if the
Delaware Supreme Court's decision was either contrary to, or an unreasonable application of, clearly
established Federal law.
The United States Supreme Court precedent governing Petitioner's insufficient ev'idence
claim is Jackson v. Virginia,443 U.S. 307 (1979). Pursuant to Jadeson, "the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt." ld. at 319.
This standard "must be applied with explicit reference to the substantive elements of the criminal
offense as defined by state law." Jd. at 324 n.16. Additionally, "a federal habeas court faced with a

10

record of historical facts that supports conflicting inferences must presume

even if it does not

affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution." Id. at 326. However, it is not necessary that the
evidence exclude every reasonable hypothesis except that of guilt. !d.
The Delaware Supreme Court's decision was not "contrary to" clearly established Federal
law, because the state court cited and applied the Jackson standard when it denied the instant Claim.
For the following reasons, the Court concludes that the Delaware Supreme Court's rejection of the
instant Claim also involved a reasonable application of Jackson.
In order to obtain a conviction for second degree burglary, the State was required to
establish beyond a reasonable doubt that Petitioner kno~ringly and unlawfully entered Wilkins'
dwelling with the intent to commit a crime therein which, in this case, was either aggravated
menacing, offensive touching, or harassment. See DeL Code Ann. tit. 11, § 825 (D.I. 54, Trial
Transcript June 3, 2010 at 26-28 in Petitioner's Post-Conviction Appeal Letter dated Dec. 18,2012)
However, in Delaware, it is also well-settled that an individual may be convicted solely on
circumstantial evidence. See Seward 1). State, 723 A.3d 365, 369 (Del. 1999). Delaware courts treat
circumstantial evidence the same as direct evidence, and draw inferences from that evidence. !d.
Moreover, under well-settled Delaware law and Supreme Court precedent, it is for the jury,
as the trier of fact, to determine the credibility of the witnesses and resolve any conflicts in the
testimony. See 1)re l!. State, 412 A2d 326, 330 (Del. 1980); Anderson!!. Liberty Lob~f' Inc., 477 U.S.
242,

(1986).
During the trial, Wilkins testified that she kicked Petitioner out of her home approximately

two months before the incident in question and that, on December 16, 2009, Petitioner forced his
way into her apartment, chased her down, and grabbed her. As he did in his direct appeal, Petitioner
11

contends that Wilkins and other witnesses lied while testifying about these facts. However, since he
has not provided any evidence to support this perjury allegation, the Court accepts as correct the
Delaware Supreme Court's factual determination that there was no indication that such perjury
occurred. Moreover, the fact that the jury acquitted Petitioner of aggravated menacing does not
demonstrate that he lacked the requisite intent. The jury convicted him of harassment and offensive
touching, and either of those convictions satisfied the intent element of second degree burglary.3
Thus, after viewing all of the evidence in a light most favorable to the prosecution, the Court
concludes that the Delaware Supreme Court reasonably applied Iackson in holding that Wilkins'
testimony provided more than sufficient evidence to support Petitioner's convictions. Accordingly,
the Court will deny Claim Two.

III.

Claim Three: Sentence Constitutes Cruel and Unusual Punishment

In order to obtain a conviction for aggravated menacing, the State had to establish that Petitioner
displayed what appeared to be a deadly weapon to his ex-girlfriend, and that he intentionally placed her
in fear of imminent physical injury. (D.1. 54, Trial Transcript June 3, 2010 at 29 in Petitioner's Post­
Conviction Appeal Letter dated Dec. 18,2012) In order to obtain a conviction for harassment, the
State had to prove that Petitioner had engaged in any course of alarming or distressing conduct, which
served no legitimate purpose and was in a manner in which he knew was likely to cause a reasonable
person to suffer emotional distress. (D.I. 54, State's Ans. Br. in Hester v. State, No. 587,2010, at 17)
Finally, in order to obtain a conviction for offensive touching, the State had to prove that Petitioner
did intentionally touch Wilkins either with a member of his body or with any instrument, knowing that
he was likely to cause offense or alarm to her. (D.1. 54, App. to Appellant's Br. in Hester 1). State, No.
587,2010, at A-8) During the trial, Wilkins testified that Petitioner had his hand in his pocket and
indicated that he had something in there, while saying "I've got this, I've got this, don't make me use
it." (D.1. 54, Trial Transcript June 2, 2010 at 39-40 in Petitioner's Post-Conviction Appeal Letter
dated Dec. 18,2012) While cross-examining the police officer who interviewed Wilkins, defense
counsel elicited the police officer's response that Wilkins never said she saw a weapon. (D.L 54, Trial
Transcript June 3, 2010 at 103 in Petitioner's Post- Conviction Appeal Letter dated Dec. 18,2012)
The fact that the jury acquitted Petitioner of aggravated menacing but convicted him of harassment
and offensive touching demonstrates that the jury performed its duty of weighing any inconsistencies
in the evidence and determining credibility. However, Wilkins' testimony that Petitioner kicked her
door down and chased her, and grabbed her was more than sufficient to establish Petitioner's guilt for
harassment and offensive touching and, therefore, second degree burglary.
3

Petitioner appears to contend that the sentence imposed as a result of his habitual offender
status constitutes cruel and unusual punishment, because the triggering convictions for that status
were ten to twenty years old at the time of his sentencing in this case. Petitioner presented this same
argument in several motions to reduce/correct his sentence, all of which the Superior Court denied.
The Delaware Supreme Court affirmed the Superior Court's rejection of the argument after
determining that it lacked merit. See Hester, 2011 WL 1167064, at "'1.
The Eighth Amendment forbids cruel and unusual punishment, and it applies to the States
via the Fourteenth Amendment. See Robinson

XI.

California, 370 U.S. 660, 667 (1962). Two decisions

of the United States Supreme Court summarize the applicable Eighth Amendment principles for
non-capital sentencing: Lockyer tl. Andrade, 538 U.S. 63 (2003), and Ewing v. California, 538 U.S. 11
(2003). In Lock:yer, the Supreme Court extensively reviewed its prior cases dealing with Eighth
Amendment challenges to criminal sentences and concluded they had "not established a clear and
consistent path for courts to follow" in determining whether a particular sentence for a term of
years can violate the Eighth Amendment. Lockyer, 538 U.S. at 72. The Lockyer Court explained that,
for the purposes of analyzing an Eighth Amendment claim under § 2254(d)(1), the only clearly
established governing legal principle is that "the gross disproportionality principle, the precise
contours of which are unclear, [is] applicable only in the 'exceedingly rare' and 'extreme' case."

Lock:yer, 539 V.S. at 72. Consequently, the Lock:JerCourt held that a recidivist's minimum sentence
of

years was not grossly disproportionate to the two counts of petty theft offenses that

triggered the application of the recidivist statute. Id. at 67, 77.

In Ewing, the Supreme Court rejected the defendant's claim that a sentence of twenty-five years
to life for stealing three golf clubs was "grossly disproportionate" to the crime.

See Ewin/!" 538 U.S.

at 20, 28. The Ewing Court reiterated that the Eighth Amendment "contains a 'narrow
13

proportionality principle' that 'applies to noncapital sentences,'" which "does not require strict
proportionality between the crime and the sentence. Rather, it forbids only extreme sentences that
are 'grossly disproportionate' to the crime." Id. at 20, 23. Ewing explained that a court engaging in
the proportionality analysis must compare the harshness of the penalty imposed upon the
defendant with the gravity of his triggering offenses and criminal history. Id. at 28-29. "In weighing
the gravity of [the defendant's] offense, [the court] must place on the scales not only his current
felony, but also his long history of felony recidivism." !d. at 29.
After reviewing Claim Three within the foregoing framework, the Court concludes that the
Delaware Supreme Court's rejection of Petitioner's Eighth Amendment claim and affirmance of his
sentence was neither contrary to, nor an unreasonable application of, the gross disproportionality
standard as articulated in Lockyer and Ewing. Petitioner was sentenced as a habitual offender to a
total of fourteen years and nine months at Level V, to be suspended after serving twelve years for
probation. Eight of those years were the minimum mandatory, and the possible maximum sentence
was life imprisonment. (D.I. 54, State's Motion to Affirm in Hester v. State, No. 775,201 at 4); see

also DeL Code Ann. tit. 11, § 4214(a)) In denying Petitioner's cruel and unusual punishment
argument, the Delaware Supreme Court concluded that the sentence did not exceed the statutory
maximum and was not imposed on the basis of false information. Petitioner's prior convictions
included stalking, violating a restraining order, terroristic threats, and theft by unlawful taking. (D.I.
54, Response to Letter in Hester v. State, ID 48821994, filed Jan. 9,2013, at Exh. D) As noted by the
State during sentencing, Petitioner's criminal history also included carjacking and kidnapping, and
the victims of his prior repetitive criminal conduct were a wife and a former girlfriend. (D.I. 54,
Sentencing Transcript dated Sept. 9, 2010, at 5) Notably, Petitioner does not challenge the veracity
of the information regarding his conviction history, but rather, he challenges the use of those
14

convictions because they are so "old." Given these circumstances, the Court cannot conclude that
the fourteen year sentence was grossly disproportionate to his offenses. Accordingly, the Court will
deny Petitioner's Eighth Amendment Claim as meritless.

IV.

Claim Four: Judicial Bias/Due Process Violation
~ext,

Petitioner contends that the sentencing judge was prejudiced against him because

Petitioner is a black male and Wilkins is a white female. (D.I. 17 at 6) Petitioner also appears to
allege that the sentencing judge's bias caused her to improperly rely on false information from the
State regarding petitioner's prior criminal history, thereby violating his due process rights. (D.I. 17
at 10) When it affinned the Superior Court's denial of Petitioner's motions to reduce

,,'-J.J.C'"'u....

,~,

the

Delaware Supreme Court denied this argument as meritless, after determining that Petitioner's
"conclusory allegations concerning the Superior Court's motivations for sentencing him as it did
[are not] adequate to support a claim that his sentences were imposed on the basis of false
infonnation." Hester, 2011 WL 1167064, at *1.
In this proceeding, Petitioner has alleged no facts to support his speculative assertion that
his sentence was motivated by racial bias. Nothing in the sentencing hearing transcript or the rest
of the record even remotely

10'Crp"'t,,

that the sentencing judge suffered from any discriminatory

feelings toward Petitioner. In turn, although it is well-settled that sentences based on materially
false assumptions violate due process,4 Petitioner's conclusory allegations do not demonstrate that
his sentence, which was well within the statutory limits, was based on any false assumptions.
Therefore, the Court will deny Claim Four as meritless.

V. Claims Five and Six: Double Jeopardy and Prosecutorial Misconduct
In Claim Five, Petitioner contends that his conviction for second degree burglary as a lesser

4

See Townsend v. Burke, 334 U.S. 736, 740-41 (1948); United States t). Tucker, 404 V.S. 443, 446 (1972).

15

included offense of first degree burglary violated his right to be protected against double jeopardy.
Although not entirely clear, Petitioner appears to view the State's act of amending the Indictment
from charging first to second degree burglary as somehow being akin to an acquittal on the first
degree burglary charge. (O.!. 59 at 12-14) In Claim Six, Petitioner contends that the State engaged

in prosecutorial misconduct during closing argument by stating that Petitioner "dragged" Wilkins
from room to room.
The record reveals that Petitioner failed to exhaust state remedies for these two claims.
First, Petitioner did not present these arguments in his direct appeal to the Delaware Supreme
Court. Second, although Petitioner presented these claims (or variations of these claims) to the
Superior Court in his Rule 61 motion and possibly to the Delaware Supreme Court in his post­
conviction appellate brief, the Delaware Supreme Court denied the Rule 61 appeal for being
untimely. As such, Petitioner's atrempt to appeal the denial of his Rule 61 motion did not exhaust
state remedies for Claims Five and Six, because he did not "fairly present" these claims to the
Delaware Supreme Court in a manner permitting that state court to address the claims on their
merits.
In addition, by denying Petitioner's post-conviction appeal as untimely under Delaware
Supreme Court Rule 6(a)(iii), the Delaware Supreme Court articulated a "plain statement" under

Harris f). Reed, 489 U.S. 255, 263-64 (1984), that its decision rested on state law grounds. At this
juncture, any attempt by Petitioner to obtain further state court review via a new Rule 61 motion
would be time-barred under Rule 61 (i) (1), as well as procedurally defaulted under Rule 61 (i) (3).
Consequently, Claims Five and Six are procedurally defaulted, meaning that the Court cannot review
the merits of the Claims absent a showing of cause and prejudice, or a showing that a miscarriage of
justice will result absent such review.

16

Petitioner attempts to establish cause for his procedural default under Martine::;:. v.

~yal1,

132

S.Ct. 1309 (2012), by asserting that he was unconstitutionally denied representation by counsel
during his Rule 61 proceeding. (D.l. 59 at 5) This attempt is unavailing. In Martine:v the Supreme
Court held for the first time that the absence of counsel or the inadequate assistance of counsel
during an initial-review state collateral proceeding may establish cause for a petitioner=s procedural
default of a claim of ineffective assistance of trial counsel. !d. at 1320. Since Claims Five and Si.x do
not allege ineffective assistance of counsel, the narrow exception to the procedural default doctrine
under 1vfartinez does not apply. Petitioner does not assert any other reason for his default of these
claims. Therefore, Petitioner has failed to demonstrate cause for his procedural default of Claims
Five and Six.
In the absence of cause, the Court does not need to address the issue of prejudice.
Moreover, Petitioner has not provided new reliable evidence of his actual innocence warranting the
application of the miscarriage of justice exception to the procedural default doctrine. Accordingly,
the Court will deny Claims Five and Six as procedurally barred from Federal habeas review.

VI.

Claim Seven: Improper Indictment
In Claim Seven, Petitioner contends that the Indictment was improper for two reasons.

First, he argues that the Superior Court erred

permitting the State to amend the original

Indictment to change the charge from first to second degree burglary, because that substantive
change was not considered by the grand jury. (D.l. 8 at 16, 37, 44; D.l.

at 3) However, it is well-

settled that "the legality of an amendment to an indictment is primarily a matter of state law,"s
because the Fifth Amendment right to a grand jury indictment does not apply to State criminal
prosecutions. See Apprendi v.

5

NewIer.r~)',

530 U.S. 266,

(1994); Hurtado

United Statesex. rei Wo/tycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975).

17

t'.

California, 110 C.S. 516

(1884). In Delaware, an indictment can be amended at any time before a verdict to charge a
defendant with a lesser-included offense. See Del. Super. Ct. Crim. Rule 7(e); Shockley v. State, 854
A.2d 1159 (fable), 2004 WL 1790198, at *2 (Del. Aug. 2, 2004). In tum, claims based on errors of
state law are not cognizable on federal habeas review, and federal courts cannot re-examine state
court determinations on state law issues. See Estelle 1). McGuire, 502 U.S. 62, 67-68 (1991);

Hams, 465 C.S. 37,41 (1984);

Ril~y t!.

Tqylor,

Pltii~y

v.

F.3d 261, 310 n.8 (3d Cir. 2001). Havmg reviewed

the amendment of the Indictment 'within the foregoing legal framework, the Court concludes that
this first sub-argument of Claim Seven does not assert an issue cognizable on Federal habeas review.
Second, Petitioner contends that his initial Indictment was defective because it was not
signed. Petitioner never presented this argument to the Delaware Supreme Court, either on direct
appeal or post-conviction appeal. Any attempt to assert this argument in a new Rule 61 motion
would be time-barred under Rule 61 (i) (1 ). Therefore, the Court must treat this sub-argument as
exhausted but procedurally defaulted.
Petitioner does not assert any cause for his default of his second sub-argument, and his
default of the sub-argument is not excused under the narrow ],,1.artinez exception to the procedural
default doctrine because it does not sound in ineffective assistance. In the absence of cause, the
Court does not need to address the issue of prejudice. Nevertheless, Petitioner cannot demonstrate
that he was prejudiced by the absence of a foreman's signature on the original Indictment, because
the Indictment specifically identifies his charges, cites the applicable sections of the Delaware Code,
recites the elements of the crimes, and identifies the victim, date, and other circumstances of his
charged offenses. (D.L 54, App. to Appellant's Brief in Hester v. State, No. 587,2010, at
Simply stated, Petitioner was not prejudiced

to A-9)

he had sufficient notice of the charges against him,

and the Indictment provided sufficient information to enable him to plead an acquittal or conviction

18

in the event any other proceedings are taken against him for a similar offense. See RJiJ:reil v. United

StateJ, 369 U.S. 749, 763-64 (1962) (sufficiency of indictment is measured by two criteria: (1)
"whether the indictment contains the elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be prepared to meet;" and (2) "whether the
record shows with accuracy to what extent he may plead a fonner acquittal or conviction"). Finally,
Petitioner's default of the second sub-argument of Claim Seven cannot be excused under the
miscarriage of justice exception, because

has not provided any new reliable evidence of his actual

mnocence.
For all of these reasons, the Court will deny the first sub-argument in Claim Seven because it
does not assert an issue cognizable on Federal habeas review and the second sub-argument as
procedurally barred from Federal habeas review.

E. Claim Eight: Ineffective Assistance of Counsel
The clearly established Supreme Court precedent governing ineffective assistance of counsel
claims is the two-pronged standard enunciated by Strickland v. rJ7ashington, 466 U.S. 668 (1984), and
its progeny. See

W~in.f

v. Smith, 539

510 (2003). Under the first Strickland prong, a petitioner

must demonstrate that "counsel's representation fell below an objective standard of reasonableness,"
\Vlth reasonableness being judged under professional nonns prevailing at the time counsel rendered
assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a petitioner must
demonstrate "there is a reasonable probability that, but for counsel's error the result would have
been different." 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 W"ells v.

19

Petsock, 941 F.2d

259-260 (3d Cir. 1991). 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.
Throughout his extensive filings, Petitioner asserts numerous statements concerning defense
counsel's alleged ineffective assistance, which can be divided into the following categories: (1)
ineffective assistance during the pre-trial stage; (2) ineffective assistance during the trial; and (3)
ineffective assistance during the post-conviction stage. Petitioner presented all but one of the
arguments to the Superior Court in his Rule 61 motion, and the Superior Court denied them as
meritless. As previously discussed, although Petitioner filed a post-conviction appeal, the Delaware
Supreme Court dismissed that appeal as untimely. Consequently, all of the sub-arguments in Claim
Eight are procedurally defaulted, which means that the Court cannot review the merits of the three
sub-arguments absent a shmving of cause and prejudice.
Even though the arguments in Claim Eight are premised on the ineffective assistance of trial
counsel, and Petitioner was not represented by counsel during his Rule 61 proceeding, the narrow

lvlariinez exception to the procedural default doctrine does not provide Petitioner with a method of
establishing cause for his procedural default. As previously explained, Martinez provides that the
absence of counsel or the inadequate assistance of counsel during an in itial-re vze w state

collate ral p TO C e e ding may establish cause for a petitioner's procedural default of a claim of

v

ineffective assistance of trial counsel. See A1artine 132 S.Ct. at 1320; see also Trevino v. Thaler, 133
S.Ct. 1911, 1918, 1921 (2013); Norris v. Brooks, 794 F.3d 401, 405 (3d Cir. 2015) ("iVlartinezmade very
clear that its exception to the general rule of Coleman applies only to attorney error causing
procedural default during initial-review collateral proceedings, not collateral appeals.").

Claim

Eight was presented in Petitioner's initial collateral review proceeding, and was only waived on
20

collateral appeal. Therefore, A1artinez is inapplicable, and the fact that Petitioner was not represented
by counsel during his Rule 61 proceeding does not establish cause for his default.
In order to satisfy the prejudice portion of the "cause and prejudice" standard of the
procedural default doctrine, a petitioner must demonstrate prejudice under Coleman, 501 U.S. at 750.
'VV'hen the underlying claim is for ineffective assistance of counsel, the standard for demonstrating
prejudice sufficient to overcome a procedural default is whether there is a reasonable probability
that, but counsel's errors, the result of the proceedings would have been different. See Welts, 228
F.3d at 193; see also Strickland, 466 U.S. at 694. The Court liberally construes Petitioner's reference to
defense counsel's conflict of interest as an attempt to establish that the prejudice portion of the
cause and prejudice test should be presumed. (D.L 17 at 76; D.L S9 at 26, 28) Thus, even though
Petitioner's failure to establish cause eliminates the Court's need to determine prejudice, the Court
will briefly address the issue.
In Ct!Jler v. SullitJall, 446 U.S. 335 (1980), the Supreme Court explained that the prejudice
required by Stricklatld can be presumed if the defendant demonstrates that counsel "actively
represented conflicting interests" and that "an actual conflict of interest adversely affected his
!a\v:er's performance." Id. at 348, 350. Ct!ylerand subsequent Supreme Court jurisprudence
regarding actual conflicts of interest arose in the context of an attorney's representation of multiple
clients, where "the conflict exists between the interests of one defendant and the interests of other
defendants served by the same attorney." GOlJernmentrifVirgin Island.> v. Zepp, 748 F.2d 125, 135 (3d
Cir. 1984). However, in 1983, the Third Circuit expressly extended C1!yler to conflict of interest
cases other than those arising in the multiple representation context, such as when counsel's
personal interests are "'inconsistent, diverse, or otherwise discordant' with those of his client and
[those interests] affected the exercise of his professional judgment on behalf of his client." Zepp,748

21

F.2d at 135. As explained by the Third Circuit, an "actual conflict" arising from defense counsel's
active representation of conflicting interests is established by showing (1) some plausible alternative
defense strategy might have been pursued, and (2) the alternative defense was inherently in conflict
with or not undertaken due to the attorney's other loyalties or interests. See United State.r iJ• A1ore//i,
169 F.3d 798, 810 (3d Cir. 1999). Although the Supreme Court questioned the applicability of Cl!y/er
to conflicts arising outside the context of multiple representation in its 2002 decision Micken.r

tJ•

Tcry/or, opining that it remains an open question whether Cuyler should be extended to other kinds of
conflict of interest cases,c' the Third Circuit has not addressed the effect of Micken.r on its holding in

Zepp. Therefore, the Court assumes that Zepp's extension of Cl!y/ers doctrine regarding actual
conflicts of interest applies in Petitioner's case.
In any case, Petitioner's Cuyler argument for presuming prejudice is unavailing. First, the
fact that Petitioner flied a civil suit against defense counsel during his state criminal proceeding does
not, on its own, demonstrate that an acmal conflict of interest existed or adversely affected defense
counsel's performance. The record indicates that defense counsel was not even aware of the civil
suit until Petitioner mentioned it more than halfway through the presentation of the State's case at
trial. (D.I. 2 at 149) In rum, after discussing the issue and the fact that Petitioner had flied a motion
to dismiss counsel during the pre-trial phase but \vithdrew the motion at the case review, the trial
judge stated:
First of all, the fact that you claimed ineffective assistance of counsel does
not create a per .re conflict of interest. There have been plenty of times where the
Court has denied a motion to fire an attorney because a defendant who is in trial has
claimed he is ineffective. Procedurally, we are underway. We have selected a jury.
We have had the witnesses. We have more witnesses. And it would be a great
disruption of the criminal case management and of this trial and of the jurors' lives
and many other people's lives to allow you to now discharge [defense counsel]. And
the only option would be for you to proceed pro se, which I don't think you're
6

jV1ickem v. Tcry/or,

U.S. 162, 175-76 (2002).

22

ready to do. And I'm not going to grant a mistrial and start this over.
You had an obligation. You knew as of May 19 th that you have this problem.
You had an obligation to bring it up before we picked the jury. You did not. And I am
not going to allow you to discharge [defense counsel] now. We are underway. It would
be too disruptive. So your objection is noted. I understand your concerns but we're
moving forward.

* **
I am denying your oral motion to dismiss current counseL I'm ordering
(defense counsel] to continue to represent you.

(D.L 2 at 150) Petitioner then asked, "So you feel as though now even though this is out in the
open and for the record that I'm going to be represented correcdy and held bias over what
transpired between us two?" (D.L 2 at 151) The judge responded, "[Defense counsel] is obligated
under the rules of professional responsibility to zealously defend you, and I trust he will do that as
an officer of this Court." (D.I. 2 at 151)
This record demonstrates that the trial judge found as a matter of fact that there was no
actual conflict of interest. Additionally, the Court notes that the civil suit that Petitioner ftled was
dismissed as frivolous on September 13, 2010. See Hester v. ONeill, Mem. & Order (D. Del. Sept. 23,
2010). Petitioner has not provided anything in this proceeding to rebut the Superior Court judge's
factual finding that Petitioner's act of ftling a civil suit against defense counsel did not create a
conflict of interest. Therefore, the Court concludes that defense counsel was not operating under a
conflict of interest as a result of Petitioner's ftling of a federal civil suit. See e.g. IT/tnfield v. Roper, 460
F.3d 1026, 1040 (8 th Cir. 2006) (holding that defendant's civil lawsuit against defense counsel does
not per se create actual conflict).
Moreover, even if the Court were to presume there was a conflict of interest, Petitioner has
failed to demonstrate that the conflict adversely affected defense counsel's perfonnance. Petitioner
has not provided some plausible alternative defense strategy that defense counsel could have

23

pursued but did not because it was inherendy in conflict with defense counsel's other interests.
Thus, the Court concludes the CtfYler exception is inapplicable, and prejudice cannot be presumed.
Since Petitioner has not demonstrated cause and prejudice, the only way in which Claim
Eight can be reviewed on the merits by this Court is if Petitioner were to demonstrate that a failure
to do so will result in a miscarriage of justice. The miscarriage of justice exception to the procedural
default doctrine is unavailable here, because Petitioner has not provided new reliable e'vidence of his
actual innocence. Accordingly, the Court will deny Claim Eight as procedurally barred from Federal
habeas review.

IV.

PENDING MOTIONS
Petitioner flIed the following Motions during the pendency of this case: (1) Motion to

Dismiss Conviction and Indictment (D.l. 110); (2) Motion to Appoint Counsel (D.l. 111);
(3) Motion to Compel Evidentiary Hearing or Bail (D.L 112); (4) Motion to Set Appeal Bail (D.l.
117); (5) Motion for Court to Render Decision (D.I. 119); and (6) Motion to Expedite (D.L 120).
Having determined that the instant Petition does not warrant relief, the Court will deny all of these
Motions as moot.

V.

CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether to

issue a certificate of appealability. See 3d Cu. L.A.R. 22.2 (2011). A certificate of appealability is
appropriate when a petitioner makes a "substantial showing of the denial of a constitutional right"
by demonstrating "that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong." 28 U.S.c. § 2253(c)(2); Slack

I}.

McDaniel, 529 U.S. 473,

484 (2000).
The Court has concluded that Petitioner's habeas claims do not warrant relief. In the
24

Court's view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court declines to issue a certificate of appealability.

CONCLUSION
For the reasons discussed, the Court "vill deny Petitioner's Application For j\ Writ Of
Habeas Corpus Pursuant To 28

eSc. § 2254 without an evidentiary hearing.

. .;""ill be entered.

25

An appropriate Order