Neal v. Pierce et al

Filing 46

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 2/24/2017. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MICHAEL NEAL,
Petitioner,
v.

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

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Civil Action No. 14-141-GMS

Edson A. Bostic. Federal Public Defender's Office, Wilmington, Delaware. Counsel for
petitioner.
Maria T. Knoll, Delaware Department of Justice, Wilmington, Delaware. Counsel for
respondents.

MEMORANDUM OPINION

fJ,

N

1.01
Wilmington, Delaware

1

, 2011

titian and an amended petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 ("petition") filed by petitioner Michael Neal ("Neal"). (D.I. 1;
D.I. 42) The State filed an answer in opposition. (D.I. 9; D.I. 43) For the reasons discussed,
the court will deny the petition.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A. The New Year's Eve Robberies
On December 31, 2008, a group of armed men wearing gloves and disguises robbed three
businesses in Wilmington. The first business was Cutrona Liquors. The co-owners,
Ashok and Navin Patel, testified at trial that three men rushed into the store brandishing a
gun. The men pointed the gun at Ashok and ordered him and his wife into a comer of the
store. While one member of the gang guarded the door, another emptied cash and
receipts from a box, and the third removed vodka from a display. The robbers fled the
scene in a white car. Ashok followed the car and obtained the license plate number,
which he later turned over to the police.
The robbers next visited Dun-Rite Dry Cleaners. Soo Kim, a co-owner, testified that three
men casually entered the store while she attended to a customer. After the customer left,
the three men rushed toward her with a gun. Kim fled to the back of the store and called
the police. Her husband and another employee opened the cash register for the robbers.
The group then descended upon Creative Images Barber Shop. Larry Parks, the owner,
testified at trial that three men entered the store brandishing guns and demanding money,
wallets, and cell phones. The robbers held Parks at gunpoint and pistol whipped two
customers with a gun.
Wilmington Police located and arrested four men in a white Chevrolet Lumina later that
day. Inside the car, officers discovered the spoils of their felonious escapade: a handgun,
masks, liquor bottles, cash, and other items plundered from the stores. Officers eventually
identified the men in the car as Kevin Berry, Robert Brown, Michael Neal, and Kadeem
Reams.
A grand jury indicted Neal on 36 counts related to the New Year's Eve robberies: nine
counts each of First Degree Robbery, Possession of a Firearm During the Commission of
a Felony, and Second Degree Conspiracy.

B. Neal's Trial
Neal's trial began on August 11, 2009. Prior to trial, the State offered each of the four
co-defendants a plea bargain in exchange for his testimony at any of the other codefendants' trials. Berry, Brown, and Reams accepted their plea offers. Neal did not
accept his plea offer and proceeded to trial.
At trial, the State presented 85 exhibits and the testimony of 24 witnesses. The State also
planned to present the testimony of Neal's three co-defendants pursuant to the terms of
their plea bargains. The State presented Brown's testimony, which implicated Neal as
having played a role in the inception, planning, and execution of the robberies. On crossexamination, however, Brown admitted to initially telling the police that Neal had not
participated in the robberies. Neal's trial counsel did not request a Bland instruction 1 and
the trial judge did not sua sponte give a Bland instruction regarding Brown's testimony.
The State declined to call Berry and Reams when it learned that the two co-defendants
had made out-of-court statements tending to exculpate Neal. Berry made the exculpatory
statement to his attorney, while Reams spoke directly to the Attorney General and
detectives. The State related this information to Neal's trial counsel.
Neal's trial counsel then attempted to call Berry and Reams to testify on [Neal's] behalf.
Each of them, however, invoked his Fifth Amendment right against self-incrimination
and refused to testify. Berry and Reams feared that if they testified in Neal's defense,
they would breach their plea bargains with the State. Without their testimony, Neal's trial
counsel sought to admit Berry's and Reams' out-of-court statements under 11 Del. C. §
3 507. After brief argument on the issue, the trial judge concluded that the statements
were not admissible under Section 3507. The trial judge reasoned that Berry and Reams
would not be "subject to cross examination" under the statute if they invoked their Fifth
Amendment privileges. Neal's lawyer asserted no other basis to admit the statements.
Neal called no other witnesses and presented no evidence in his defense. A jury convicted
Neal on all 36 counts and the trial judge sentenced him to 54 years incarceration.

Neal v. State, 80 A.3d 935, 939-40 (Del. 2013). Neal appealed, and the Delaware Supreme
Court affirmed his convictions. See Neal v. State, 3 A.3d 222 (Del. 2010).
In June 2011, Neal filed a motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court denied the motion,
and the Delaware Supreme Court affirmed that decision. See State v. Neal, 2013 WL 1871755,
1

A jury instruction regarding the credibility of accomplice testimony as described in Bland v.
State, 263 A.2d 286 (Del. 1970).
2

at* 12 (Del. Super. Ct. May 1, 2013); Neal, 80 A.3d at 952. Neal moved for a rehearing en
bane, which the Delaware Supreme Court denied. (D.I. 9 at 5)

While represented by a privately retained attorney, Neal timely filed his original habeas
petition in February 2014. (D.I. 1) The State filed an answer. (D.I. 9) Thereafter, Neal's
attorney passed away, and the Federal Public Defender was appointed in his place. Now
represented by the Federal Public Defender, Neal filed a reply brief, (D.I. 27), to which the State
filed a sur reply (D.I. 35). After obtaining the court's permission, Neal filed an amended
petition. (D.I. 42) The State filed a response, (D.I. 43), and Neal filed a reply (D.I. 45).
II.

GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDP A, 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). 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).

n:

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);

3

O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971). AEDPA states, in pertinent part>
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that -

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
28 U.S.C. § 2254(b)(l).
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." 0 'Sullivan, 526 U.S. at
844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the
state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural
manner permitting the court to consider the claims on their merits. See Bell, 543 U.S. at 451 n.
3; 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. See Lines v. Larkins, 208 F.3d 153, 160
(3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160;

Colemanv. Thompson,501U.S.722, 750-51 (1991). Similarly,ifapetitionerpresentsahabeas
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

4

exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S.
255, 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at
750-51. To demonstrate cause for a procedural default, a petitioner must show that "some
objective factor external to the defense impeded counsel's efforts to comply with the State's
procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual
prejudice, a petitioner must show "that [the errors 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 review the claim will result in a fundamental miscarriage of justice.

See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d
Cir. 2001). A petitioner demonstrates a miscarriage of justice by showing a "constitutional
violation has probably resulted in the conviction of one who is actually innocent." Murray, 477
U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. Bousley v.

United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner
must present new reliable evidence - not presented at trial - that demonstrates "it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."

House v. Bell, 547 U.S. 518, 537-38 (2005); see Sweger v. Chesney, 294 F.3d 506, 522-24 (3d
Cir. 2002).

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C. Standard of Review

W4en 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). 2 Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted ifthe
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)(l) & (2); see Williams v. Taylor, 529 U.S. 362, 412 (2000);

Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 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." Harrington v. Richter, 562 U.S. 86, 98-100 (2011). As explained by the
Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in
the absence of any indication or state-law procedural principles to the contrary." Id.
Finally, when reviewing a claim under§ 2254(d), a federal court must presume that the
state court's determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(l); 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)(l); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). The Supreme Court has
"not defined the precise relationship between§ 2254(d)(2) and§ 2254(e)(l)." Burt v. Titlow,
134 S.Ct. 10, 15 (2013); but see Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)(stating that the

2

A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) ifthe
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. Horn, 570 F.3d 105, 115 (3d Cir. 2009).
6

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).

III.

DISCUSSION
Neal's timely filed petition and amended petition assert the following five ineffective

assistance of counsel claims: (1) defense counsel failed to argue that the exculpatory, out-ofcourt statements of Berry and Reams were admissible under Delaware Rule of Evidence
804(b)(3); (2) appellate counsel failed to present on direct appeal the argument regarding the
admissibility of Berry and Reams' statements; (3) defense counsel failed to request a Bland
instruction regarding the credibility of Brown's accomplice testimony; (4) appellate counsel
failed to raise the Bland claim on direct appeal; and (5) defense counsel failed to argue that
Reams' out-of-court statement was an admissible statement against penal interest under D.R.E.
804(b)(3) and 11 Del. Code Ann. § 1245(3)(c). Neal presented claims one, two, three, and four
in his Rule 61 motion, and the Superior Court denied them as meritless. See Neal, 2013 WL
1871755, at *12. The Delaware Supreme Court affirmed that decision. See Neal, 80 A2d at 952.
Therefore, Neal will only be entitled to relief for claims one through four under§ 2254(d)(l) if
the Delaware Supreme Court's decision was either contrary to, or an unreasonable application of,
clearly established federal law.
In claim five, Neal supplements the argument contained in claim one by asserting that
defense counsel should have argued Reams' statement fell within the scope of the "statement
/

against interest" exception of D.R.E. 804(b)(3) because Reams subjected himself to criminal
liability under 11 Del. Code Ann. § 1245(3)(c) by lying to the authorities. To the extent this
argument should be viewed as essentially the same argument that was raised in claim one, the
State contends that the same reasons for denying that claim as meritless also apply to claim five.

7

To the extent the instant argument should be viewed as asserting a new and different ineffective
assistance of counsel claim, the State asserts that it is procedurally defaulted because Neal did
not present claim five in his Rule 61 proceeding, and any attempt to present it to the Delaware
state courts in a new Rule 61 motion would be time-barred under Rule 61(i)(l). In this scenario,
the court can only review the merits of claim five if Neal demonstrates cause and prejudice, or a
miscarriage of justice.
The court will review Neal's claims in seriatim.

A. Claims One, Two, Three, and Four
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 ofreasonableness," with reasonableness being judged under professional
norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the
second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that,
but for counsel's error the result would have been different." 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, 941F.2d253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92
(3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding and
leads to a "strong presumption. that the representation was professionally reasonable."

Strickland, 466 U.S. at 689.

8

When denying claims one through four, the Delaware Supreme Court correctly identified

Strickland as the applicable precedent. See Neal, 80 A.3d at 941. As such, the Delaware
Supreme Court's decision was not contrary to clearly established federal law.
The court must also determine ifthe Delaware Supreme Court reasonably applied

Strickland to the facts ofNeal's case. See Harrington, 562 U.S. at 105-06. When performing
this inquiry, the court must review the Delaware Supreme Court's denial of Neal's ineffective
assistance of counsel allegations through a "doubly deferential" lens. Id. "[T]he question is not
whether counsel's actions were reasonable, [but rather], whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard." Id.

1. Claims one and two: defense and appellate counsels' failure to present the
D.R.E. 804(b )(3) argument
After they accepted their plea agreements, Berry, Reams, and Brown "professed that Neal
helped them rob the businesses." Neal, 80 A.3d at 949. However, during Neal's trial, Berry and
Reams changed their stories and claimed that Neal did not participate in the robberies. Id. Neal
attempted to have Berry and Reams testify at trial to contradict the State's theory, but both of
them invoked their Fifth Amendment right not to testify. Id. When Barry and Reams refused to
testify, Neal only had their out-of-court statements to counter the State's story. Id. Since the
statements constituted hearsay, defense counsel asked the trial court to admit the statements
under 11 Del. Code Ann. § 3507, while also asserting that no other law or rule would allow the
trial court to admit the statements. The trial court denied the request because the State could not
cross-examine Berry and Reams. Id.
In claim one, Neal contends that defense counsel was ineffective for not arguing that the
out-of-court statements of Berry and Reams were admissible under D.R.E. 804(b)(3) because, as

9

in Demby v. State, 695 A.2d 1152 (Del. 1995), there were corroborating circumstances indicating
the trustworthiness of the statements. Neal presented this argument in his Rule 61 proceeding,
and both the Superior Court and the Delaware Supreme Court held that it was objectively
reasonable for defense counsel to refrain from arguing that D.R.E. 804(b)(3) provided a basis for
the admission of the out-of-court statements, because Demby was inapplicable and the facts
indicated that the statements were not trustworthy. In claim two, Neal contends that his appellate
counsel should have argued that the out-of-court statements of Berry and Reams were admissible
under Rule 804(b)(3) because, once again, as in Demby, there were corroborating circumstances
indicating the trustworthiness of the statements. The Delaware Supreme Court denied this claim
after determining that appellate counsel was not ineffective for failing to raise the issue of the
admissibility of these statements on direct appeal.
D .R.E. 804(b)(3) permits the admission of certain hearsay statements that were against
the declarant's interests at the time they were made:
A statement which was, at the time of its making, so far contrary to the declarant's
pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a
reasonable person in the declarant' s position would not have made the statement unless
the declarant believed it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicated the trustworthiness of the statement.
D.R.E. 804(b)(3). In Demby, the Delaware Supreme Court explained that the
corroboration requirement ofD.R.E. 804(b)(3) is a preliminary question as to the
admissibility of evidence. The trial judge must find only that sufficient corroborating
circumstances exist and then permit the jury to make the ultimate determination of the
weight to be giv~n to such evidence. The corroboration requirement should not be used
as a means of usurping jury's function.
Demby, 695 A.2d at 1159.

10

In his Rule 61 affidavit, defense counsel explained that he concluded the evidence could
not be

admitt~d

under Rule 804(b)(3) because the statements of Reams and Berry were not

trustworthy -- both defense counsel and the State believed the statements were only made as a
last minute effort to save their friend. (D.I. 11, App. to Appellant's Op. Br. in Neal v. State, No.
282,2013, at A44) On post-conviction appeal, the Delaware Supreme Court held that it was
objectively reasonable for defense counsel to not argue that the statements were admissible under
Rule 804(b)(3), explaining its conclusion as follows:
Under Smith [v. State, 647 A.2d 1083, 1088 (Del. 1994)], we first must bifurcate the
Statements into their self-inculpatory and non-self-inculpatory components: (1) each
declarant reiterated his own involvement in the robberies (self-inculpatory); and (2) each
declarant stated that Neal was not involved in the robberies (non-self-inculpatory).
Introducing the self-inculpatory components of the Statements was of little value to
Neal's trail counsel, because substantial evidence already supported the conclusion that
Berry and Reams had participated in the robberies. Thus, the main advantage to Neal
would be for the non-self-inculpatory components of the Statements that tended to
exculpate Neal to be admitted. Neal's trial counsel's conclusion that the Statements were
not "trustworthy," as the Rule requires, is consistent with our view in Smith that "[n]onself-incriminatory components of a declaration purportedly falling within D.R.E.
804(b)(3) are presumptively inadmissible hearsay because they cannot claim any special
guarantees of reliability and trustworthiness.

Neal, 80 A.3d at 950 (emphasis in original). The Delaware Supreme Court also held that "Neal's
reliance on Demby is misguided[, because t]he facts here are easily distinguished." Id. at 951.
Specifically, the Delaware Supreme Court explained when, as here, "there are multiple
participants in a crime, an admission by one participant does not automatically negate another's
involvement or culpability. The Statements at issue here only maintain an exculpatory effect
because of the language that is collateral to the actual self-inculpatory portions." Id. at 952.
After reviewing claims one and two in context with the record, the court concludes that
the Delaware Supreme Court's decision constituted a reasonable application of Strickland. First,

11

on habeas review, the court defers to the Delaware Supreme Court's interpretation and
application of clearly established Delaware precedent as set forth in Smith and Demby. See
Estelle v. McGuire, 502 U.S. 62, 68 (1991). Second, given Neal's failure to provide clear and
convincing evidence to the contrary, the court also accepts as correct the Delaware Supreme
Court's factual determination regarding the inculpatory/exculpatory effect of the statements, and
its determination that Demby simply did not apply to Neal's case. Third, in his Rule 61
proceeding, the State and defense counsel determined that neither Berry's nor Reams' statements
were credible for the following reasons: (1) neither statement comported with the other witness'
accounts that there were three actors in the crime who fled in Brown's car after the robbery at the
liquor store; (2) neither statement explained why, when the car was stopped by police, Neal was
dressed in all black clothing with black gloves and a loaded revolver, with $400 in currency in
his possession; (3) neither statement explained why, when stopped by police, Neal was wearing a
disguise to hide his face; and (4) the statements do not explain why, in his plea agreement,
Reams pled guilty to conspiring with Neal to commit the robberies. (D.I. 11, Affidavit of Trial
Counsel at 5; DJ. 11, State's Response to Defendant's Motion for Post-Conviction Relief at 1516) Since the record does not contain any corroborating evidence demonstrating that Reams and
Berry's statements were trustworthy, the court concludes that it was objectively reasonable for
defense and appellate counsel to conclude that there were no corroborating circumstances
indicating the trustworthiness of the statements.
In addition, given all of the testimonial and circumstantial evidence presented, Neal
cannot show a reasonable probability that the outcome of his trial or appeal would have been
different but for defense and appellate counsels' failure to make a Rule 804(b)(3) argument

12

regarding the out-of-court statements. Accordingly, the court will deny claims one and two for
failing to satisfy § 2254(d).

2. Claims three and four: defense and appellate counsel failed to request a
Bland instruction regarding the credibility of Brown's accomplice
testimony
During the trial, Brown testified that Neal participated in the robberies and carried a
black .357 revolver while the codefendants were robbing the businesses. In claims three and
four, Neal contends that defense and appellate counsel were ineffective for respectively failing to
request a Bland instruction telling the jury to view accomplice testimony with caution and for
failing to raise the Bland issue on appeal. On post-conviction appeal, the Delaware Supreme
Court held that defense and appellate counsel performed deficiently by failing to request a Bland
instruction and by failing to raise the Bland issue on direct appeal, but that their failure did not
prejudice Neal. The Delaware Supreme Court based this decision on the "overwhelming record
evidence that supports the accomplice's testimony," noting that, "even without Brown's
testimony, the [overwhelming] evidence[] showed that Neal helped Berry, Reams, and Brown
rob the businesses." Neal, 80 A.3d at 946.
The "overwhelming evidence" referenced by the Delaware Supreme Court included the
testimony of twenty-three witnesses for the State and eighty-five trial exhibits which
corroborated Brown's trial testimony. See Neal, 2013 WL 1871755, at *6. In addition,
[t]he State presented money and valuables that the robbers stole and a disguise that a
robber wore, all of which the police found near where Neal sat in the Lumina. For
example, Detective Ernest Tolbert identified two brown wallets, assorted cell phones, a
Bluetooth headset, cigars, and a bottle of Grey Goose vodka, all stolen. Further, the State
also displayed a revolver, a Black Arminius .357 Magnum, which the police found near
the Lumina's passenger-side, front door. According to witnesses, Neal had this revolver
when the police stopped the Lumina, and a robber had a revolver during the crimes.

13

Neal, 2013 WL 1871755, at *6. The State also presented testimony that Neal tried to run away
from the police after they stopped the car, he pointed a revolver at a police officer, and then he
fought with the officer. Id. Neal's statement in this proceeding that Brown's "11th hour change
of plea and dramatic trial testimony, which recanted his initial statement to the police that Neal
was not involved in the robberies, made him the centerpiece of the State's case," (D.I 3 at 23),
does not constitute clear and convincing evidence rebutting the Delaware Supreme Court's
factual determination that there was overwhelming evidence supporting Brown's testimony that
Neal helped Berry, Reams and Brown rob the businesses. Thus, the court accepts the Delaware
Supreme Court's factual determination as correct.
Given the overwhelming evidence of Neal's guilt that was independent of Brown's
testimony, and after viewing the Delaware Supreme Court's decision through a doubly
deferential lens, the court concludes that the Delaware Supreme Court reasonably applied

Strickland in holding that Neal failed to demonstrate a reasonable probability that the outcome of
his trial would have been different but for counsels' failure to request (or raise on appeal the
issue of failing to request) a Bland instruction. Thus, the court will deny claims three and four
for failing to satisfy the § 2254(d) standard.
B. · Claim Five
In claim five, Neal contends that defense counsel provided ineffective assistance by
failing to argue "that an out-of-court statement, by government witness Kadeem Reams, was an
admissible 'statement against penal interest' under D.R.E. 804(b)(3) and 11 Del. Code Ann.
§ 1245(3)(c)." (D.I. 37-l)(emphasis added) Section 1245 provides, in relevant part, that a

person is guilty of falsely reporting an incident when he conveys a false report to a lawenforcement officer, and the false report "relat[es] to an actual offense or incident or to the
14

alleged implication of some person therein[.]" 11 Del. Code Ann. § 1245(3)(c). In this case,
after originally informing the police that Neal had participated in the robberies, and after he pled
guilty, Reams changed his story and told police detectives that Neal had not participated in the
robberies. Now, in claim five, Neal asserts that defense counsel was ineffective for failing to
argue that Reams' out-of-court statement to police detectives was a statement against penal
interest because it exposed Reams to criminal liability under 11 Code Ann. § 1245(3)(c).
The State explains that claim five can be viewed either as asserting essentially the same,
but expanded, D.R.E. 804(b)(3) argument as the one contained in claim one and, therefore, is
reviewable under § 2254(d), or claim five can be viewed as a new claim which is procedurally
defaulted claim and reviewable only if Neal demonstrates cause and prejudice, or a miscarriage
of justice. Given the State's position, the court will analyze claim five under both standards.
1. Claim five as a supplement to claim one

To the extent Neal's§ 1245(3)(c) "statement against interest" argument in claim five
merely expands the D.R.E. 804(b)(3) argument in claim one, the court concludes that it must be
dismissed for failing to satisfy§ 2254(d). Pursuant to D.R.E. 804(b)(3), a statement tending to
expose the declarant to criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Consequently, even if Reams' second statement exposed him to criminal liability under
§ 1245(3)(c), that statement would only have been admissible if corroborating circumstances
clearly indicated the trustworthiness of the statement. As the court previously explained when
discussing claim one and Demby, it was objectively reasonable for defense counsel to conclude
that there were no corroborating circumstances indicating the trustworthiness of Reams'
statement, because Neal has not provided, and the record does not contain, any corroborating
15

evidence demonstrating that Reams' out-of-court statement was trustworthy. See supra at 9-10.
In addition, given all of the testimonial and circumstantial evidence presented during the trial,
Neal cannot show a reasonable probability that the outcome of his trial would have been
different but for defense counsel's failure to make a Rule 804(b)(3)/§ 1245(3)(c) argument
regarding Reams' out-of-court statement. Accordingly, to the extent claim five extends or
supplements claim one, the court will deny it for failing to satisfy § 2254(d).

2. Claim five as a new claim
To the extent claim five should be treated as an entirely new claim, it is procedurally
defaulted because Neal never presented it to the Delaware Supreme Court on post-conviction
appeal. Neal attempts to establish cause under Martinez v. Ryan, 566 U.S. 1 (2012), by blaming
post-conviction counsel for failing to raise this extension of his original Rule 804 ineffective
assistance of counsel argument in his Rule 61 proceeding. In Martinez, the Supreme Court held
for the first time that inadequate assistance of counsel during an initial-review state collateral
proceeding may establish cause for a petitioner's procedural default of a claim of ineffective
assistance of trial counsel. Id. at 16-17. In order to obtain relief under Martinez, a petitioner
must demonstrate that the state post-conviction attorney in his first state collateral proceeding
was ineffective under the standards established in Strickland, that the underlying ineffective
assistance of trial counsel claim is substantial, and that petitioner was prejudiced. Id. at 9-10, 1617. A "substantial" ineffective assistance of trial counsel claim is one that has "some merit"
which, given the Martinez Court's citation to Miller-El v. Cockrell, 537 U.S. 322 (2003), appears
to be governed by the standards applicable to certificates of appealability. Id. at 12-16.
Here, the court concludes that Martinez does not provide a method for establishing cause
for Neal's default of claim five, because the court's conclusion that defense counsel's failure to
16

raise the Rule 804(b)(3)/§ 1245(3)(c) argument regarding Reams' out-of-court statement does
not satisfy either prong of the Strickland test precludes Neal from demonstrating that the
underlying ineffective assistance of counsel claim is substantial. The court's determination that
defense counsel's failure to raise the Rule 804(b)(3)/§ 1245 argument at trial does not satisfy
either prong of Strickland also precludes Neal from demonstrating that he will suffer prejudice as
a result of his default of claim five. Finally, the miscarriage of justice exception to the
procedural default doctrine does not excuse Neal's default, because he has not presented new
reliable evidence of his actual innocence. For all of these reasons, the court will alternatively
deny claim five as procedurally barred from habeas review.

C. Stand-Alone Cumulative Error Claim
Finally, Neal contends that habeas relief is warranted because he was prejudiced by the
cumulative effect of defense counsel's failure to present the Rule 804(b)(3) argument, the
accomplice instruction argument, and the§ 1245 false reports argument. (D.I. 27 at 9-10; D.I. 45
at 9-11) A "cumulative error argument constitutes a stand-alone constitutional claim subject to
exhaustion and procedural default." See Collins v. Secy of Pennsylvania Dep 't of Corr., 742
F.3d 528, 541 (3d Cir. 2014). In this case, Neal defaulted his cumulative error claim because he
did not present this argument as a stand-alone claim in his Rule 61 proceeding, and the time to
present this claim in the Delaware state courts has passed. Neal's attempt to establish cause
under Martinez fails for the same reasons previously discussed See supra at 16-17. In turn,
given the court's conclusion that defense counsel's failure to raise each of these arguments
separately does not satisfy the Strickland standard, there are no errors to aggregate, meaning that
Neal cannot demonstrate prejudice. Thus, the court will deny Neal's cumulative error claim as
procedurally barred from habeas review.
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IV.

CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a§ 2254 petition, the court must also

decide whether to issue a certificate of appealability. See 3d Cir. 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 v. McDaniel, 529 U.S. 473, 484 (2000).
The court has concluded that Neal's petition fails to warrant federal habeas relief. The
court is persuaded that reasonable jurists would not find this conclusion to be debatable.
Therefore, the court will not issue a certificate of appealability.

V.

CONCLUSION
For the reasons stated, Neal's petition for habeas relief pursuant to 28 U.S.C. § 2254 is

denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.

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