Norman v. Pierce et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/29/2017. (etg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ALLISON LAMONT NORMAN,
DAVID PIERCE, Warden, and ATTORNEY
GENERAL OF THE STATE OF DELAWARE,
Civ. Act. No. 14-187-LPS
Allison Lamont Norman. Pro se Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
September 29, 2017
STARK, U.S. District Judge:
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.S.C. § 2254 (“Petition”) filed by Petitioner Allison Lamont Norman (“Petitioner”). (D.I. 3) For
the reasons discussed, the Court will dismiss the Petition and deny the relief requested.
The facts leading to Petitioner’s convictions are set forth below, as recounted by the
Delaware Supreme Court in Petitioner’s direct appeal:
In a tragic shooting spree that unfolded across fifteen miles and two
states on April 7, 2001, [Petitioner] shot at numerous people while
delirious, killing two and wounding several others, including one
woman who became paralyzed. [Petitioner] fatally wounded Jamell
Weston and wounded Marcus Cannon near a school bus stop at the
entrance to the Carvel Gardens apartment complex in Laurel,
Delaware. Afterward, [Petitioner] stole a parked car from the
apartment complex and drove to Salisbury, Maryland. Along the way,
Anthony White attempted to ask [Petitioner] for a ride home, but as
White approached the vehicle, [Petitioner] shot and wounded him.
When [Petitioner] reached Delmar, Maryland, he shot at a garbage
truck and crew, but none of the workers sustained injuries. While
continuing to drive to Salisbury, [Petitioner] shot at several people and
vehicles, wounding Marsha Hankerson. When he arrived at his friend
Tobias Cannon’s home in Salisbury, [Petitioner] took one of his dogs
and shot two others. He then shot and killed Davondale Peters after
Peters gave him a ride. [Petitioner] also shot Carla Green, who was
driving with her daughter, leaving Green paralyzed. After shooting
Peters and Green, [Petitioner] chased after witnesses and went from
house to house in Salisbury, eventually breaking into the home of Mary
and Watson Dutton, an elderly couple. He left their home without
harming them and was arrested a short time later by Wicomico County
The defense presented evidence that [Petitioner] was acting in the
throes of a psychotic episode driven by bizarre delusions that were the
culmination of a lifetime of exposure to abuse, violence, and criminal
conduct. As related by psychiatrists at trial, [Petitioner] experienced a
concurrence of factors which contributed to this mental state. On
April 17, 2003, his older brother, Shane DeShields, and a friend killed
a man in a botched attempt to steal the drugs the man was selling.
[Petitioner], who deeply admired DeShields, was crushed by his
brother’s imprisonment. He attended DeShields’ capital murder trial
and witnessed his conviction. At his brother’s penalty hearing,
evidence was presented that DeShields and [Petitioner], when young
children, were sexually assaulted by a babysitter, Ben Green.
[Petitioner], as a child, had begged his mother not to leave them with
Green. He was furious at her for having kept the abuse quiet and for
denying him the support of family and friends. His anger toward his
mother was renewed by the cavalier attitude he felt she displayed about
the assaults at the hearing. On October 8, 2004, DeShields was
sentenced to life in prison.
On October 16, 2004, [Petitioner] was parked at a convenience store
in Delmar, Maryland when two men approached his vehicle and
opened fire. [Petitioner] returned fire, but was shot in the abdomen
and leg. His wounds required surgery to his colon and he was
hospitalized for several weeks. [Petitioner] was charged with a
weapons offense in connection with the shooting and faced a potential
ten year prison sentence in Maryland upon his release from the
After his discharge from the hospital, [Petitioner] moved in with his
mother in Seaford. Although still in pain from the surgery, he stopped
taking his prescribed medications; instead, he consumed marijuana and
ecstasy. For the next few months, [Petitioner] took two to four ecstasy
tablets per day and regularly smoked marijuana. He was terrified that
his life was in danger because he did not know the identity of at least
one of the men who shot him, and he suspected that his own friends
In January 2005, [Petitioner] moved to Carvel Gardens in Laurel to live
with his girlfriend, Kisha DeShields, and her five children. He was the
father of one of Kisha’s children, five-year-old Donesha. On January
10, Ronshelle Harmon gave birth to [Petitioner’s] son, Ny’Kael.
[Petitioner] did not sign the birth certificate, but he visited Harmon in
hospital and occasionally visited Ny’Kael in early Spring 2005,
sometimes bringing Donesha along.
On April 6, knowing he faced up to ten years in jail on the weapons
charge, [Petitioner] failed to appear for his scheduled Maryland court
appearance. A warrant was issued for his arrest. [Petitioner] spent a
few hours with his friend Devon Cannon, during which time they
smoked marijuana. He also took ecstasy. He then discussed
potentially killing his mother, even scouting a gravesite in the wooded
area to which he and Devon had traveled. [Petitioner] then began to
fear that Devon might kill him, and told him so, but later apologized.
Later that night, [Petitioner] started to believe he had special powers
of vision. He thought he could see things in the dark and that things
turned white for him in the darkness. He believed he was blessed with
this special gift. When Kisha seemed to ignore or neglect him,
[Petitioner] became angry, pointed a gun at her, and told her not to
“disrespect” him. He then danced around the apartment, announcing
that he was the Messiah who ruled the world.
After [Petitioner] calmed down, he watched an episode of the
television show, The X-Files. He formed the belief that aliens or
demons were trying to get into the children’s bedrooms to kidnap and
rape them. [Petitioner] went into their rooms and, thinking his
enhanced vision allowed him to see the creatures outside in the
darkness, he yelled at them and chased them. Thinking that this was a
test to see if he could protect his family, [Petitioner] “guarded” the
children that night by pinching and pulling the little girls’ hair in the
belief that their screams would cause the aliens or demons to retreat.
By the next morning, [Petitioner] appeared to Kisha to be better,
though he still expressed concern for the childrens’ safety. [Petitioner]
later explained that, based on recent experiences, he also had formed
the belief that black people had been taken over by the demonic forces
he was fighting. According to [Petitioner], even though some of the
people he shot at were white, he believed them to be black, and
therefore evil, when he shot at them.
[Petitioner’s] delusions continued. After helping Kisha get the children
ready for school, [Petitioner] donned a bulletproof vest and, armed
with a gun, took Donesha to the bus stop at about 8 a.m. On their
way, they encountered Jamell Weston and Marcus Cannon, who were
returning from dropping off Weston’s nephew and Cannon’s
girlfriend’s children. Believing that Weston and Cannon were alien or
demon creatures who were about to kidnap and molest Donesha,
[Petitioner] drew his gun and shot Weston at point blank range, once
in the face and once in the chest. Weston fell to the sidewalk and died.
Cannon fled and [Petitioner] fired after him, hitting him in the arm.
[Petitioner] then walked back to the apartment, with Donesha running
ahead to tell her mother what had occurred.
Apparently misunderstanding Donesha’s account, Kisha thought
[Petitioner] had only fired his gun into the air. She told him to leave
because the police would probably be called. [Petitioner] left, taking
his keys, cell phone, holster, $1,681 in cash, the 9mm pistol he had
used to kill Weston and shoot Cannon, and three magazines of
ammunition. He was still wearing a bulletproof vest. Continuing to
believe that his battle against the “bad people” was ongoing,
[Petitioner] proceeded south on Route 13 to Salisbury, Maryland,
shooting at several people and vehicles along the way. In his shooting
spree he narrowly missed numerous innocent bystanders, but did
seriously injure Anthony White and Marsha Hankerson.
After [Petitioner] arrived in Salisbury, he went to the home of Tobias
Cannon. He took a pit bull that belonged to Cannon, but shot his two
other dogs, believing that they were demons. When the dog ran into
the street, a SUV stopped to avoid hitting it. [Petitioner] took this as
a sign that the driver of the SUV had come to aid him in his war against
the demons. He asked the driver, Davondale Peters, for a ride and got
in the vehicle with the dog. When Peters failed to follow all of
[Petitioner’s] rambling directions and started to drive slowly,
[Petitioner] became suspicious. Thinking Peters also was associated
with the demons he believed he was fighting, [Petitioner] jumped out
of the SUV and ran around to the driver’s side. He said: “No, you
hold up motherfucker”; and then fired his gun several times into the
SUV. Peters was mortally wounded, but was able to drive away. He
drove over a curb, a mailbox, and through a fence, with the vehicle
coming to rest against a house. Peters died at the scene.
After shooting Peters, [Petitioner] approached a white van that had
stopped at the same intersection. Carla Green was driving the van with
her daughter in the car seat behind her. [Petitioner] threw open the
door and said: “This is a carjacking, bitch.” Fearing for her daughter,
Green slammed the door shut and stomped on the accelerator. As she
drove away, [Petitioner] shot at her several times, barely missing the
child safety seat, but hitting Green three times and rendering her a
paraplegic. [Petitioner] then turned on Natalie Reddick, who had
witnessed both of the prior shootings. [Petitioner] chased after her,
but had run out of ammunition. Reddick retreated to her mother’s
house and refused to let [Petitioner] in. [Petitioner] then proceeded
from house to house, banging on doors. As he did so, he spotted
Sabrina Gilmore and her grandniece, who were also able to reach the
safety of Gilmore’s parents’ house before [Petitioner] could descend
[Petitioner] then broke into the home of an elderly couple, Mary and
Watson Dutton. He told them that someone was after him, and he
needed a car to escape. Mr. Dutton refused to give [Petitioner] a car.
[Petitioner] then demanded money from Mrs. Dutton, who was crying.
[Petitioner] pushed her to the floor with both hands. He then threw
some glass items from the table and shelves, but after Mr. Dutton hit
him with a broom, [Petitioner] left.
Deputies from the Wicomico Coutny Sheriff’s Office arrived on the
scene. [Petitioner] saw the officers and hid behind parked cars.
Reddick came out of her mother’s house, shouted to the officers, and
pointed at [Petitioner]. When the deputies shouted: “Police! Stop!,”
[Petitioner] fled. [Petitioner] was captured after a short chase. When
he was taken into custody, the officers noted that [Petitioner] was
wearing body armor and had in his possession a 9 mm handgun, a
holster, three magazines, $1,681 in cash, a cell phone, and keys.
Norman v. State, 976 A.2d 843, 848-53 (Del. 2009).
In June 2007, a Delaware Superior Court jury convicted Petitioner of one count of first
degree murder, two counts of attempted first degree murder, three counts of wearing body armor
during the commission of a felony, three counts of possession of a firearm during the commission
of a felony, and one count of felony theft. (D.I. 19 at 1) After a four-day penalty hearing, the jury
recommended a sentence of death. See State v. Norman, 2007 WL 3105759, at *2 (Del. Super. Ct.
Sept. 28, 2007), rev’d in part, 976 A.2d 843 (Del. 2009). The Superior Court sentenced Petitioner to
death and 145 years in prison. Id. at *16. Petitioner appealed, and the Delaware Supreme Court
affirmed his convictions but reversed his death penalty and remanded for a new penalty hearing. See
Norman, 976 A.2d at 872. The State declined to pursue a second penalty hearing, and the Superior
Court sentenced Petitioner to life and 135 years in prison in July 2009. (D.I. 19 at 2) Petitioner filed
a petition for a writ of certiorari in the United States Supreme Court, which was denied. See Norman
v. Delaware, 558 U.S. 1015 (2009).
In June 2010, Petitioner filed a pro se motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 (“Rule 61 motion”). (D.I. 19 at 2) The Superior Court granted
Petitioner’s motion for the appointment of counsel, and the appointed counsel was provided an
opportunity to file a new Rule 61 motion. After several months of discord between Petitioner and
counsel, the Superior Court held two hearings. The Superior Court declined to appoint new
counsel, but informed Petitioner that he could supplement counsel’s amended Rule 61 motion with
issues he wished the court to consider. Id.
In November 2011, both Petitioner and counsel filed amended Rule 61 motions. (D.I. 19 at
2) After considering the motions, the State’s reply, trial counsel’s Rule 61 affidavit, and Petitioner’s
additional filings, the Superior Court denied the Rule 61 motions on March 6, 2013. See State v.
Norman, 2013 WL 1090944 (Del. Super. Ct. Mar. 6, 2013). Petitioner and his counsel filed notices of
appeal, and Petitioner moved for the appointment of new counsel on appeal or, in the alternative, to
proceed pro se on appeal. (D.I. 19 at 3) The Delaware Supreme Court determined there were
insufficient reasons to appoint new counsel, but granted Petitioner’s request to proceed pro se. Id.
On December 17, 2013, the Delaware Supreme Court affirmed the Superior Court’s denial of the
Rule 61 motions. See Norman v. State, 2013 WL 6710794 (Del. Dec. 17, 2013).
The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
“to reduce delays in the execution of state and federal criminal sentences . . . and to further the
principles of comity, finality, and federalism.” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (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
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 Woodford, 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 v. 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
(ii) 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’Sullivan, 526 U.S. at 844-45; 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. See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.
1997); Coverdale v. Snyder, 2000 WL 1897290, at *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 state
courts in a manner that puts them on notice that a federal claim is being asserted.” Holloway v. Horn,
355 F.3d 707, 714 (3d Cir. 2004).
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 technically exhausted, such claims
are nonetheless procedurally defaulted. See 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).
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, 1 and is established if no reasonable juror would have voted
to find the petitioner guilty beyond a reasonable doubt. See Sweger v. Chesney, 294 F.3d 506, 522-24
(3d Cir. 2002). A petitioner demonstrates actual innocence by asserting “new reliable evidence –
See Bousley v. United States, 523 U.S. 614, 623 (1998).
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 v. Pinchak, 378 F.3d 333, 339-40 (3d Cir.
Petitioner’s timely-filed habeas Petition asserts the following five grounds for relief: 2
(1) defense counsel provided ineffective assistance; (2) appellate counsel provided ineffective
assistance; (3) the lower courts committed plain error and denied Petitioner his rights to a fair trial
under the Sixth and Fourteenth Amendments; (4) 11 Del. Code Ann. § 401(c) is unconstitutionally
vague and violates the due process clause of the Fourteenth Amendment; and (5) the cumulative
impact of errors committed by the State denied Petitioner his rights under the Sixth and Fourteenth
Amendments (prosecutorial misconduct).
A. Claim One: Ineffective Assistance of Defense Counsel
In Claim One, Petitioner asserts five specific instances of defense counsel’s purported
ineffectiveness. The Delaware Supreme Court denied Claim One in its entirety for being meritless.
Therefore, Petitioner will only be entitled to habeas relief for the instant Claim if the Delaware
Supreme Court’s decision was either contrary to, or an unreasonable application of, clearly
established federal law.
The Court has renumbered three claims: original claim five is now Claim Two (ineffective assistance
of appellate counsel), original claim two is now Claim Three (trial court committed plain error and
violated Petitioner’s right to a fair trial), and original claim three is now Claim Five (prosecutorial
misconduct). In addition, although Petitioner’s title for Claim One is that the Delaware Courts
denied him due process by denying his Rule 61 motion, all of the sub-arguments in that claim allege
ineffective assistance of defense counsel. Therefore, the Court has re-characterized Claim One as
alleging ineffective assistance of defense counsel.
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 error the result would have been
different. See id. at 694. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. See id.
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). 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.
Notably, a state court’s decision regarding an ineffective assistance of counsel claim is owed
“double deference” when reviewed under § 2254(d)(1), because
[t]he standards created by Strickland and § 2254(d) are both “highly
deferential,” and when the two apply in tandem, review is doubly so.
The Strickland standard is a general one, so the range of reasonable
applications is substantial. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel's actions were reasonable. The
question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
Harrington v. Richter, 562 U.S. 86, 104-05 (2011) (emphasis added). When assessing the
reasonableness of counsel’s performance under Strickland, there “is a strong presumption that
counsel’s attention to certain issues to the exclusion of others reflects trial tactics rather than sheer
neglect,” and “Strickland  calls for an inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind.” Richter, 562 U.S. at 109-10. In turn, “[w]hen
assessing prejudice under Strickland, the question is “whether it is reasonably likely the result would
have been different” but for counsel’s performance, and the “likelihood of a different result must be
substantial, not just conceivable.” Id. at 111-12. Finally, when viewing a state court’s determination
that a Strickland claim lacks merit through the lens of § 2254(d), federal habeas relief is precluded “so
long as fairminded jurists could disagree on the correctness of the state court’s decision.” Id. at 101.
In other words,
[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.
Id. at 103.
Turning to the § 2254(d) inquiry in this case, the Court notes that the Delaware Supreme
Court analyzed Claim One pursuant to the Strickland standard. Therefore, the Delaware Supreme
Court’s decision is not contrary to clearly established law. See Williams v. Taylor, 529 U.S. 362, 406
(2000) (“[A] run-of-the mill state-court decision applying the correct legal rule from [Supreme Court]
cases to the facts of a prisoner’s case [does] not fit comfortably within § 2254(d)(1)’s ‘contrary to’
clause.”). The Court’s inquiry does not end there, however, because it must also consider if the
Delaware Supreme Court reasonably applied Strickland in denying Claim One.
1. Defense counsel erred in allowing the State to submit prejudicial
evidence, unsubstantiated evidence, or false testimony to the jury
In his first allegation of Claim One, Petitioner complains that defense counsel failed to
object to the admission of drugs, guns, and ammunition, and also failed to object to the State’s
references to an outstanding warrant in Maryland and drug dealing and use. He appears to contend
that defense counsel should have objected to the aforementioned evidence because it did not relate
to any of the charged offenses.
The record reveals that defense counsel did object to the admission of the cocaine and
marijuana that was found in Petitioner’s car, but the trial court ruled that the evidence was relevant
and admissible. Petitioner’s conclusory assertion in this proceeding does not demonstrate a
reasonable probability that a more forceful objection by defense counsel would have altered the
result of Petitioner’s criminal trial. Thus, the Court concludes that Petitioner’s contention regarding
the admission of drug evidence does not satisfy the § 2254(d) standard.
The Court also concludes that Petitioner’s complaint about defense counsels’ failure to
object to the references to an outstanding warrant in Maryland and Petitioner’s history of drug
dealing and use does not warrant relief. As explained by defense counsel in their Rule 61 affidavit,
and accepted by the Superior Court in Petitioner’s Rule 61 proceeding, the defense strategy of
presenting a “not guilty by reason of insanity” (“NGRI”) defense required defense counsel to
present a complete picture of Petitioner, including negative aspects of his lifestyle and prior
behaviors. Expert testimony about Petitioner’s mental state at the time of the crime relied, in some
part, on information about Petitioner’s lifestyle as a drug user and dealer. Consequently, evidence of
Petitioner’s significant drug use was properly put in front of the jury because Petitioner put his state
of mind at issue and defense experts referred to Petitioner’s drug use when opining about his state
In addition, the trial testimony relating to the outstanding warrant for Petitioner in Maryland
put into context why the people who witnessed Petitioner’s “manic” episode prevented him from
surrendering to the police. For instance, in their Rule 61 affidavit, defense counsel explained why
they did not object to the evidence about the warrant:
Evidence of the warrant was part of the descriptions by multiple
witnesses, including Dr. Alizai-Cowan, Teresa DeShields and Kisha
DeShields, in their descriptions of [Petitioner’s] manic episode the
night before the murder. The testimony described Petitioner’s seeing
aliens and his acts to protect the children of Ms. Deshields from the
aliens. During this episode [Petitioner] tried to surrender to the police,
but Teresa Deshields’ boyfriend, Brock Hill, stopped him from doing
so. The outstanding warrant explained why the people who witnessed
[Petitioner] in the throes of a manic episode prevented him from
surrendering to the police. Thus, by stopping [Petitioner] from turning
himself in, they allowed [Petitioner’s] manic episode to continue
through the early hours and into the next morning. As a consequence,
defense counsel, with the full consent of [Petitioner], did not object to
evidence of the warrant, which put the events leading to the homicide
in their proper context.
(D.I. 22 at 754) Defense counsel further explained:
First, the defense trial strategy was to pursue  a verdict of not guilty
by reason of insanity. [Petitioner], at all times both pre-trial and during
trial, and his trial counsel, agreed on that strategy. [Petitioner] and
counsel also agreed that there was little, if anything, to be gained by
contesting the evidence of [Petitioner’s] conduct leading to his arrest.
Second, trial counsel sought and obtained several voir dire questions of
potential jurors regarding evidence of drug usage by the defendant and
whether that would affect their ability to be fair and impartial jurors.
(D.I. 22 at 753)
On post-conviction appeal, the Delaware Supreme Court affirmed the Superior Court’s
conclusion that defense counsel’s strategy to not challenge the aforementioned evidence was
reasonable, due to the fact that Petitioner used the evidence to support his NGRI defense. See
Norman, 2013 WL 671070794, at *3. After considering the record, and viewing the Delaware
Supreme Court’s decision through doubly deferential lens, the Court concludes that the Delaware
Supreme Court’s decision involved a reasonable application of Strickland.
Finally, the Court rejects Petitioner’s complaint about the Superior Court’s failure to hold an
evidentiary hearing during his Rule 61 proceeding. The “federal role in reviewing an application for
habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually
led to the petitioner’s conviction; what occurred in the petitioner’s collateral proceedings does not
enter into the habeas calculation.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998).
Therefore, the failure to conduct an evidentiary hearing during a state collateral proceeding does not
present an issue cognizable in this proceeding. See Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir.
2005) (explaining that “main event” for habeas purposes is original trial).
2. Stipulation regarding admission of toxicology reports
Next, Petitioner contends that defense counsel should not have stipulated to the admission
of a toxicology report, because the report revealed that he had drugs in his system at the time of his
arrest. Petitioner asserts that the toxicology report damaged his NGRI defense because it provided
evidence of his voluntary intoxication. According to Petitioner, defense counsel knew the
toxicologist was unavailable to testify, which meant that the evidence could have been kept out of
The Superior Court held that defense counsels’ decision to stipulate was reasonable and
appropriate, given the defense strategy of pursuing the NGRI defense, because “defense counsel
knew they had to expose and address [Petitioner’s] criminal lifestyle, including [his admitted] drug
usage.” Norman, 2013 WL 1090944, at *13. The Delaware Supreme Court affirmed the Superior
Court’s decision, explaining that this aspect of Petitioner’s ineffective assistance of counsel claim is
After reviewing the record, the Court concludes that the Delaware Supreme Court
reasonably applied Strickland in denying the instant argument. During Petitioner’s trial, the State’s
psychiatrist, Dr. Mechanick, testified that any mental illness exhibited by Petitioner was a delirium
caused by his long-term consumption of drugs. See Norman, 2013 WL 1090944, at *12. In contrast,
two defense experts testified that Petitioner was legally insane on the day of the shootings and that
his psychosis was not drug-induced. Id. at *14. Significantly, the stipulated toxicology report
showed the presence of drugs, not that Petitioner was intoxicated, and defense counsel used the
report during cross-examination of Dr. Mechanick to show that Petitioner was not acutely
intoxicated at the time of the shooting. (D.I. 22 at 679) When viewed in context with this record,
the Court concludes that the Delaware Supreme Court reasonably applied Strickland in holding that
defense counsels’ stipulation was a reasonable strategic decision to minimize the damage that could
have been rendered by Petitioner’s history of drug use.
3. Failure to timely obtain medical records and evidence showing family
history of mental illness
Petitioner argues that defense counsel were ineffective for failing to adequately investigate
and obtain evidence of a family history of mental illness to support his insanity defense. Specifically,
he asserts that it took defense counsel too long to obtain evidence that his maternal cousin and his
paternal aunt had a “life long history of mental illness,” and that his paternal aunt was in the
Delaware Psychiatric Center. (D.I. 3 at 6) Since defense counsel did not provide the relevant
records of Petitioner’s family history to the State until after the trial began, the trial court did not
allow this evidence to be introduced.
In their Rule 61 affidavit, defense counsel asserted that they were diligent in searching for
evidence of Petitioner’s family’s history of mental illness, as demonstrated by the fact that they
interviewed over 30 of Petitioner’s friends and family, but they did not learn that Petitioner’s aunt
was a patient at the Delaware Psychiatric Center until shortly before trial. (D.I. 19 at 18; D.I. 22 at
749-50, 758-59) The Superior Court held that defense counsel did not act deficiently in not timely
obtaining this evidence, explaining that:
Having seen first-hand their zealous representation, I do not find they
failed to learn of [Petitioner’s] aunt in a timely fashion. When they
heard of her, they attempted to obtain her records.
Norman, 2013 WL 1090944, at * 11. The Superior Court also held that Petitioner did not establish
prejudice, stating: “There is nothing concrete in the present motion other than speculation and
unsubstantiated conclusions that Ms. Smack’s records, whatever they may be, would have helped
[Petitioner] or changed the outcome of the trial.” Id. at *12. The Delaware Supreme Court agreed
with the Superior Court’s analysis and affirmed its decision.
The Court concludes that the Delaware Supreme Court reasonably applied Strickland in
denying the instant argument. Petitioner has not demonstrated that defense counsel could have
obtained the family medical records at issue any sooner. He also has not established a reasonable
probability that those records would have changed the outcome of his trial. Accordingly, the Court
will deny this portion of Claim One as meritless.
4. Failure to request additional voir dire of various jurors
Petitioner asserts that defense counsel were ineffective during the voir dire process because
they: (1) failed to request additional voir dire of Juror #2 after learning that the juror might have been
charged with an offense in addition to the known driving under the influence offense; (2) did not
notice that the trial court failed to ask Juror #8 Question Number 22(c) during voir dire; and (3) failed
to ask that the entire jury panel be questioned about their feelings regarding crimes against animals.
None of these allegations warrants relief.
During the initial voir dire, it was learned that Juror #2 had been arrested for driving under
the influence. Nobody challenged, and the juror became Juror #2. Thereafter, the State learned
that Juror #2 was potentially charged with an additional offense. Neither the State nor the defense
chose to voir dire Juror #2 again. Now, Petitioner asserts that defense counsel should have requested
additional voir dire of Juror #2.
In their Rule 61 affidavit, defense counsel explained they “viewed Juror #2 as a favorable
juror. Simply put, based on their observations of Juror #2 during the trial, the defense team liked
him as a juror and wanted to keep him on the jury. As a result, trial counsel did not want the judge
to question the juror and develop a reason to excuse him for cause.” (D.I. 22 at 759-60) The
Superior Court reviewed the Rule 61 affidavit and held that the decision to not request additional
voir dire “was a strategic decision on the part of the defense team. They considered the information
and made their decision. They cannot be faulted as to this decision. There is nothing in the present
allegation to establish that their decision was wrong or to establish prejudice.” Norman, 2013 WL
1090944, at *16.
In this proceeding, Petitioner’s conclusory allegations fail to establish a reasonable
probability that his trial would have been different had defense counsel requested additional voir dire
regarding Juror #2’s criminal history. Therefore, the Court concludes that the Delaware Supreme
Court’s affirmance of the Superior Court’s decision constituted a reasonable application of
Petitioner’s contention regarding defense counsel’s failure to notice that the trial court
inadvertently skipped over Question 22(c) of the individual voir dire questionnaire for Juror #8 is
similarly unavailing. Question 22(c) asked about the potential juror’s ability to remain impartial if a
crime had been committed in the presence of children.
The voir dire questionnaire contained 39 questions, some with subparts. See Norman, 2013
WL 1090944, at *16. In their Rule 61 affidavit, defense counsel explained that, even without
Question 22(c), the questions posed by the trial judge were sufficient to determine if Juror #8 was
suitable for jury service. (D.I. 22 at 760) The Superior Court agreed, explaining that “[m]uch
information was covered with the prospective jurors and the omission of this question does not
mean error was injected into the jury selection process.” Norman, 2013 WL 1090944, at *16. The
Superior Court also concluded that Petitioner was not prejudiced by the omission of Question 22(c).
After reviewing the record, the Court concludes that the Delaware Supreme Court reasonably
applied Strickland in affirming the Superior Court’s denial of the instant allegation.
Finally, Petitioner argues that defense counsel were ineffective for failing to request voir dire
of all potential jurors about crimes against animals, because Petitioner’s crimes included shooting
two pit bulls in Maryland. Specifically, during voir dire, a potential juror informed the court that she
heard the case involved pit bulls. In response to the trial court’s question, the juror stated she
owned a pit bull, which would affect her ability to be fair about an allegation that Petitioner had shot
and killed a pit bull. The trial court excused her. Consequently, Petitioner contends that the entire
jury pool should have been questioned about the killing of animals. (D.I. 22 at 683)
After explaining that one potential juror’s response did not trigger an obligation for defense
counsel to ask every juror the same question, the Superior Court opined that, since
[t]he jury voir dire process is fluid and depending on answers, sua sponte
remarks, or concerns of jurors, the Court may go down an unexpected
path to address a particular issue. To now argue that the Court has to
revisit with the entire panel the sua sponte remarks of each individual
juror is unreasonable. Counsel were not ineffective and no prejudice
has been shown.
See Norman, 2013 WL 1090944, at *17. The Delaware Supreme Court affirmed that decision.
In Aldridge v. United States, 283 U.S. 308, 310 (1931), the Supreme Court held that the trial
judge has broad discretion over the extent of voir dire examination. See id. Fifty-years later, the
Supreme Court explained that, aside from “constitutional requirements with respect to questioning
prospective jurors about racial or ethnic bias,” the trial judge has broad discretion in determining
how and what extent to conduct voir dire. See Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981).
In Petitioner’s case, there were no issues of racial or ethnic bias. Moreover, Petitioner has
not rebutted with clear and convincing evidence the Superior Court’s factual determination that the
overall voir dire of the potential jury panel was sufficient for the trial judge to determine that each
prospective juror was qualified. See Norman, 2013 WL 1090944 at *16-17. Therefore, the Delaware
state court decisions that Petitioner did not establish prejudice resulting from defense counsels’
failure to have the entire jury pool questioned about crimes against animals involved a reasonable
application of Strickland.
5. Failure to request jury instructions on lesser-included offenses of second
degree murder and manslaughter based on extreme emotional distress
Finally, Petitioner contends that defense counsel were ineffective for failing to request a jury
instruction on the lesser-included offenses of second-degree murder and manslaughter based on the
defense of extreme emotional distress stemming from his childhood sexual abuse. See Norman, 2013
WL 1090944, at *17. Defense counsels’ Rule 61 affidavit explains their belief that none of the
defense expert opinions supported a verdict based upon reckless conduct, or provided Petitioner
with a basis to argue that he acted under the influence of extreme emotional distress. The Superior
Court concurred, explicitly holding that:
Defense counsel made the strategic decision not to pursue the lesser
because the evidence did not support a claim for lesser. The defense
was mental illness per their doctors, not that [Petitioner] shot all of the
victims recklessly. [Petitioner] has not shown that his attorneys’
decisions were wrong. He has not presented any evidence that
shooting people was related to his sexual abuse when he was a child.
This is a conclusory claim.
Norman, 2013 WL 1090944, at *17. The Delaware Supreme Court affirmed that decision.
In Delaware, the defense of extreme emotional distress has two elements: (1) the defendant
acted under the influence of extreme emotional distress; and (2) there was a reasonable explanation
or excuse for the extreme emotional distress. See 11 Del. Code Ann. § 641. In order for the defense
to be available, there has to be a “causal relationship between the provocation, event or situation
which caused the extreme emotional distress and the victim of the murder.” Id. Here, Petitioner
has not shown how his being the victim of sexual abuse as a child suddenly triggered his shooting of
two innocent, random victims years after the alleged abuse. Thus, the Delaware state courts’
conclusion that defense counsel made a reasonable strategic decision not to pursue the emotional
distress defense constituted a reasonable application of Strickland.
B. Claim Two: Ineffective Assistance of Appellate Counsel
In Claim Two, Petitioner contends that appellate counsel provided ineffective assistance on
direct appeal by only raising one claim related to the guilt phase of his criminal proceeding, and by
failing to raise the claims contained in the instant Petition which were also presented in his pro se
Rule 61 proceeding. The Superior Court denied this claim after determining that the allegations
regarding appellate counsels’ performance lacked merit, and the Delaware Supreme Court affirmed
Claims of ineffective assistance of appellate counsel are evaluated under the same Strickland
standard applicable to trial counsel. See Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). An
attorney’s decision about which issues to raise on appeal are strategic, 1 and an attorney is not
See Albrecht v. Horn, 485 F.3d 103, 138 (3d Cir. 2007); Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.
1999) (counsel is afforded reasonable selectivity in deciding which claims to raise without specter of
being labeled ineffective).
required to raise every possible non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745
(1983); Smith v. Robbins, 528 U.S. 259, 272 (2000).
After reviewing the record, the Court concludes that the Delaware Supreme Court
reasonably applied Strickland in affirming the Superior Court’s denial of Claim Two. Petitioner’s
conclusory allegations in this proceeding regarding appellate counsels’ performance do not establish
either prong of the Strickland standard. To the extent appellate counsels’ alleged errors identified by
Petitioner mirror defense counsels’ errors as set forth in Claim One, the Court’s conclusion that the
ineffective assistance of defense counsel allegations in Claim One lack merit preclude Petitioner
from demonstrating that appellate counsels’ failure to present the issues underlying Claim One on
direct appeal satisfies the prejudice prong of Strickland. Finally, appellate counsel successfully
challenged Petitioner’s death sentence. The fact that appellate counsel did not succeed in having
Petitioner’s convictions reversed does not demonstrate that appellate counsel performed deficiently,
or that Petitioner was prejudiced by appellate counsels’ decisions regarding which claims to assert on
appeal. Accordingly, the Court will deny Claim Two for failing to satisfy § 2254(d).
C. Claim Three: Trial Court Committed Plain Error and Violated Petitioner’s Rights
Under 6th and 14th Amendments on Several Occasions
1. Jury instructions improperly shifted burden of proof
During his trial, Petitioner presented the affirmative offense of insanity. The State sought to
negate the insanity defense by presenting testimony that Petitioner’s mental state on the day of the
crimes was proximately caused by voluntary intoxication. See Norman, 2013 WL 6710794, at *1. In
the first argument of Claim Three, Petitioner contends that the trial court should have instructed the
jury that the State had the burden of rebutting Petitioner’s insanity defense by proving he was
voluntarily intoxicated beyond a reasonable doubt.
The Superior Court denied this claim as meritless in Petitioner’s Rule 61 proceeding, ruling:
What the proposed instruction suggests is that if the defense attempts
to establish the affirmative defense of insanity by a preponderance of
the evidence, then the State’s rebuttal evidence must be beyond a
reasonable doubt. The Court is satisfied this is not a proper statement
of Delaware law. The burden of proving all elements of the crimes
charged remains on the State throughout the trial, regardless of an
insanity defense. The instructions make this clear.
But if the State pushes back with evidence contrary to the defendant’s
affirmative defense evidence, the evidentiary standard applied by the
jury remains “by a preponderance of the evidence.” The jury does not
receive dueling standards of proof on this defense.
The burden of proving insanity by a preponderance of the evidence is
upon the defendant. The Court properly instructed the jury that, in
considering all of the evidence supporting or negating the existence of
the insanity defense, if the jury found that the evidence as a whole
makes it more likely than not that the affirmative defense was
established, it must return a verdict of not guilty by reason of insanity.
Norman, 2013 WL 1090944, at *7-8. The Delaware Supreme Court “agree[d] with the Superior
Court’s analysis and conclude[d] that [Petitioners] claim [was] without merit.” Norman, 2013 WL
6710794, at*4. Given this adjudication, Claim Three will only warrant habeas relief if the Delaware
Supreme Court’s decision was either contrary to, or an unreasonable application of, clearly
established federal law.
The clearly established Supreme Court precedent governing the burden placed on
defendants raising the defense of insanity is set forth in Leland v. Oregon, 343 U.S. 790 (1952), and its
progeny. In Leland, the Supreme Court sustained an Oregon statute which required a defendant
asserting an insanity defense to prove the defense beyond a reasonable doubt. Id. The Leland Court
explained that, “[i]n all English-speaking courts, the accused is obliged to introduce proof if he
would overcome the presumption of sanity.” Id. at 800. The fact that Oregon required a heavier
burden of proof (beyond a reasonable doubt) than 20 other states (preponderance of the evidence)
was not “significant in determining the constitutional question .” Id. at 798. “In each instance, in
order to establish insanity as a complete defense to the charges preferred, the accused must prove
that insanity. The fact that a practice is followed by a large number of states is not conclusive in a
decision as to whether that practice accords with due process.” Id. In Clark v. Arizona, 548 U.S. 735
(2006), the Supreme Court explained its reasoning in Leland more thoroughly, opining that:
The force of [the presumption of sanity], like the presumption of
innocence, is measured by the quantum of evidence necessary to
overcome it; unlike the presumption of innocence, however, the force
of the presumption of sanity varies across the many state and federal
jurisdictions, and prior law has recognized considerable leeway on the
part of the legislative branch in defining the presumption’s strength
through the kind of evidence and degree of persuasiveness necessary
to overcome it.
The burden that must be carried by a defendant who raises the insanity
issue, again, defines the strength of the sanity presumption. A State
may provide, for example, that whenever the defendant raises a claim
of insanity by some quantum of credible evidence, the presumption
disappears and the government must prove sanity to a specified degree
of certainty (whether beyond reasonable doubt or something less). Or
a jurisdiction may place the burden of persuasion on a defendant to
prove insanity as the applicable law defines it, whether by a
preponderance of the evidence or to some more convincing degree.
In any case, the defendant’s burden defines the presumption of sanity,
whether that burden be to burst a bubble or to show something more.
Clark, 548 U.S. at 769 (internal citations omitted)
Whether or not sanity is an element of the crime charged depends on state law. See Wood v.
Marshall, 790 F.2d 548, 551 n.2 (6th Cir. 1986); see also Robinson v. Tucker, 2012 WL 934388, at *11
(N.D. Fla. Feb. 14, 2012) (collecting cases). In Delaware, sanity is not an element of the crime to be
proven; rather, the defendant has the burden of proving the affirmative defense of insanity by a
preponderance of the evidence. See 11 Del. Code Ann. § 304 (a) (imposing preponderance of
evidence standard for affirmative defense); 11 Del. Code Ann. 401(a) (permitting insanity as
affirmative defense); Daniels v. State, 538 A.2d 1104, 1106 n.3 (Del. 1988). Significantly, the United
States Supreme Court has declined “to adopt as a constitutional imperative, operative countrywide,
that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused.” Patterson v. New York, 432 U.S. 197, 206, 210
Turning to the § 2254(d) inquiry in this case, the Court notes that the Delaware state courts
did not cite Supreme Court precedent. Nevertheless, their decisions are not contrary to, nor an
unreasonable application of, clearly established law. First, by citing and applying Delaware law
regarding affirmative defenses, the Delaware courts complied with the requirements set forth in the
applicable Supreme Court precedent. Second, the trial court’s jury instruction set forth below was
consistent with the relevant Supreme Court precedent:
The defendant has asserted the affirmative defense of mental illness.
The defendant has the burden of proving this affirmative defense to
your satisfaction by a preponderance of the evidence. The State has
no burden to present any evidence in this matter.
After considering all of the evidence tending to support or negate the
existence of the defense, you should determine whether the evidence
as a whole makes it more likely than not that each element of the
affirmative defense, as I have defined it for you, existed. If you find
that this affirmative defense is established by a preponderance of the
evidence, you must return verdicts of “not guilty by reason of
insanity.” Even if the defendant has not met his burden of proving
this particular affirmative defense, you must acquit him if you find that
the State has not met its burden of proving its case beyond a reasonable
Norman, 2013 WL 1090944, at *5.
In short, since Petitioner had the burden of proving insanity by a preponderance of the
evidence under Delaware law, the State was not obligated to present any evidence on the issue.
Rather, the evidence of Petitioner’s voluntary use of illegal substances was offered for the jury to
consider those facts in deciding if Petitioner met his burden of persuasion on his insanity defense
pursuant to 11 Del. Code Ann. § 304(c). When viewed in this context, the Court concludes that the
Delaware Supreme Court reasonably applied clearly established federal law in denying Petitioner’s
contention that the trial court should have instructed the jury that the State had the burden of
rebutting his insanity defense by proving voluntary intoxication beyond a reasonable doubt.
2. Trial court violated Petitioner’s confrontation rights
Petitioner contends that the trial court violated his confrontation rights by allowing the
State’s witness to testify about a 2004 toxicology report. This Claim is unavailing because the parties
stipulated to the admission of the report. Additionally, to the extent Petitioner relies on Bullcoming v.
Mexico, 545 U.S. 647 (2011), 3 to demonstrate that he is entitled to relief because of an intervening
change in the law, the case is inapplicable because the Supreme Court has not made Bullcoming
retroactive to cases on collateral review. Accordingly, the Court will deny this portion of Claim
Three as meritless.
3. Trial court erred in admitting a witness’ out-of-court statement under 11
Del. Code Ann. § 3507 without a proper foundation
Under 11 Del. Code Ann. § 3507, a witness’ out-of-court statement may not be admitted as
evidence unless the statement is voluntary. In this portion of Claim Three, Petitioner contends that
trial court erred in ruling that Kisha DeShields’ prior out-of-court statement was voluntary, given
her indication that she gave the statement because the police coerced her by threatening
imprisonment. (D.I. 22 at 696) Petitioner did not raise this issue on direct appeal or in his initial
Rule 61 motion. Consequently, when he raised the issue on post-conviction appeal, the Delaware
In Bullcoming, the Supreme Court addressed the following question: “Does the Confrontation Clause
permit the prosecution to introduce a forensic laboratory report containing a testimonial
certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an
analyst who did not sign the certification or personally perform or observe the performance of the
test reported in the certification.” Bullcoming, 564 U.S. at 657. The Bullcoming Court ruled that this
type of out-of-court statement is testimonial in nature and, therefore, cannot be introduced against
the accused at trial unless the witness who made the statement is unavailable and the accused has
had a prior opportunity to confront that witness. Id.
Supreme Court reviewed it for plain error under Delaware Supreme Court Rule 8. See Norman, 2013
WL 6710794, at *4.
By applying the procedural bar of Rule 8, the Delaware Supreme Court articulated a “plain
statement” under Harris v. Reed, 489 U.S. 255, 263-64 (1984), that its decision rested on state law
grounds. Delaware Supreme Court Rule 8 is an independent and adequate state procedural rule
precluding federal habeas review. See Campbell v. Burris, 515 F.3d 172, 182 (3d Cir. 2008). Hence, the
Court cannot review the merits of this portion of Claim Three 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 by blaming appellate counsel for not raising the issue
on direct appeal. An attorney’s error can constitute cause for a procedural default, but only if the
petitioner first presented that ineffective assistance of counsel claim to the state courts as an
independent claim and it was determined that the attorney’s error amounted to constitutionally
ineffective assistance. See Murray, 477 U.S. at 488-89. In his Rule 61 proceeding, Petitioner
contended that appellate counsel was ineffective for not challenging the trial court’s ruling that
Kisha DeShields’ out-of-court statement was voluntary. See Norman, 2013 WL 1090944, at *18.
The Superior Court held that the trial court’s ruling was correct and denied Petitioner’s ineffective
assistance of appellate counsel claim as meritless. Id. The Delaware Supreme Court affirmed that
decision. See Norman, 2013 WL 6710794, at *4.
After reviewing the record, the Court concludes that the Delaware Supreme Court
reasonably applied Strickland in holding that appellate counsel was not ineffective for failing to
challenge on direct appeal the propriety of the trial court’s admission of Kisha DeShields’ statement.
To begin, in their Rule 61 affidavit, appellate counsel explain that they did not believe the issue of
voluntariness had any merit for appeal, because the issue “was largely fact-driven where the trial
court has considerable discretion in fact-finding and the found facts did appear to have some
support in and not contrary to the record.” (D.I. 22 at 766) Appellate counsel also believed that any
prejudice suffered by Petitioner was conjectural. (D.I. 22 at 766) As counsel assert, “Ms. DeShields
identified a number of statements in her first out of court statement as ‘lies,” so the jury had ample
opportunity to disregard any allegedly prejudicial statements in her out-of-court statement based on
its perception of her in-court credibility.” (D.I. 22 at 766-67)
Next, the Superior Court reviewed the transcripts and noted:
Although the defendant’s girlfriend testified she was threatened with
arrest if she did not talk with the police, the State disputed that
allegation. The [Trial] Court considered the testimony of all the
witnesses and the [Trial] Court heard the tape recording of her
statement. The [Trial] Court heard both sides of the coin on this
factual issue. It was apparent that Ms. DeShields would fall into the
turncoat witness category. Voluntariness was the primary obstacle
raised by the defense. I remain of the opinion that the voluntariness
ruling by the [Trial] Court was correct, even with the guidance of Taylor
[v. State, 23 A.3d 851 (Del. 2010)].
Norman, 2013 WL 1090944, at *19. After explaining that DeShields testified that what she told the
police was untrue, the Superior Court held that Petitioner failed to demonstrate how the failure to
raise the § 3507/voluntariness issue on appeal prejudiced him. Id. The Superior Court also opined
that the trial court’s ruling on voluntariness would have been affirmed had appellate counsel raised
the issue on appeal. Id. When the Delaware Supreme Court affirmed the Superior Court’s denial of
this ineffective assistance of appellate counsel claim, it also held that the Superior Court’s
voluntariness ruling was correct, even when analyzed under the recent Delaware decision in Taylor. 4
See Norman, 2013 WL 6710794, at *4.
“Generally, , Delaware courts take a totality of the circumstances approach in determining
whether the witness’ will was overborne such that the proffered Section 3507 statement was not the
On habeas review, the Court defers to the Delaware Supreme Court’s interpretation and
application of Taylor. Given Petitioner’s failure to provide clear and convincing evidence to the
contrary, the Court also accepts as correct the Delaware Supreme Court’s factual determination that
the trial court correctly concluded that DeShields’ out-of-court statement was voluntary. Given this
record, the Court concludes that the Delaware state courts reasonably applied Strickland in holding
appellate counsel’s failure to challenge the admission of DeShields’ statement on voluntariness
grounds did not amount to constitutionally ineffective assistance. Therefore, appellate counsels’
performance does not provide cause for Petitioner’s default of this portion of Claim Three.
In the absence of cause, the Court will not address the issue of prejudice. The miscarriage of
justice exception to the procedural default doctrine is also unavailable here, because Petitioner has
not provided new reliable evidence of his actual innocence. Accordingly, the Court will deny this
portion of Claim Three as procedurally barred from habeas review.
4. Trial court did not excuse alternate juror #1
In his fourth argument of Claim Three, Petitioner contends that trial court committed plain
error by either not excusing Alternate Juror #1 or failing to further investigate a report by Alternate
Juror #1 that he had been contacted by a woman named Rachel from the The News Journal, who left
him a voicemail message. The trial court investigated and determined that a woman named Rachel
who worked for The News Journal made the call. The juror attempted to retrieve the voicemail from
his home, but discovered that he had lost it. The juror provided the trial court with the notes from
product of a rational intellect and a free will.” Wyche v. State, 113 A.3d 162, 165-66 (Del. 2015). In
turn, the Delaware Supreme Court “generally defers to the trial court’s factual determination as to
voluntariness.” Taylor, 23 A.3d at 854. Within this framework, the Taylor Court held that, “[w]here
the procedural safeguards of Miranda are not followed for a witness who is falsely told , but actually
believes, he is under arrest, constitutional consistency requires that any Section 3507 statement that
incriminates a third party be inadmissible as well.” Id. at 855-56 (emphasis in original).
his voicemail. When asked, Alternate Juror #1 told the trial court that the experience would not
interfere with his ability to be fair and impartial. (D.I. 19 at 29)
After noting that Petitioner did not raise this issue “at trial, on appeal, or in the
postconviction motion,” the Delaware Supreme Court applied Delaware Supreme Court Rule 8 on
post-conviction appeal and refused to review the claim. See Norman, 2013 WL 6710794, at *4.
Therefore, the fourth issue in Claim Three is procedurally defaulted.
Petitioner does not allege cause or prejudice to excuse the default of this issue. In addition,
review of the argument is not available under the miscarriage of justice exception, because Petitioner
has not provided new reliable evidence of his actual innocence. Accordingly, the Court will deny
this argument as procedurally barred from habeas review.
5. Trial court erred in instructing jury about voluntary intoxication
Petitioner asserts that the trial court should not have instructed the jury about voluntary
intoxication because there was no evidence that he was intoxicated at the time of offenses.
Petitioner presented this argument on post-conviction appeal, but did not raise it on direct appeal or
in his Rule 61 motion. The Delaware Supreme Court denied it under Delaware Supreme Court Rule
8. To the extent Petitioner attempts to establish cause by asserting ineffective assistance of counsel,
it is unavailing. There was ample evidence of Petitioner’s use of illegal drugs, and the crux of this
case was whether his insanity was the result of his longterm ingestion of illegal drugs. Consequently,
defense counsels’ failure to object to the voluntary intoxication instruction did not amount to
constitutionally ineffective assistance, which means that defense counsels’ performance does not
provide cause for the instant default.
Petitioner has not demonstrated prejudice, and the miscarriage of justice exception is not
available. Therefore, the Court will deny this argument as procedurally barred from habeas review.
6. Trial court erred in instructing jury about the intent element
Next, Petitioner contends that the trial court erred by not instructing the jury that it must
consider the evidence of his mental illness when determining if the State proved intent beyond a
reasonable doubt. (D.I. 4 at 27) To the extent this argument merely restates argument one of Claim
Three, the Court has already concluded that it lacks merit (see above). To the extent this argument
should be viewed as a separate ground for relief, it is factually baseless. The trial court instructed the
jury about all the elements of each charged offense, and then explained the insanity defense and the
guilty but mentally ill option available to the jury. Accordingly, this portion of Claim Three does
not warrant relief.
7. Trial court erred in granting the State’s motion to preclude references to
the Maryland court’s finding that under Maryland law Petitioner was not
criminally responsible for his behavior
Petitioner argues that he should have been permitted to tell the jury that Maryland elected
not to prosecute him on the criminal charges in that state. According to Petitioner, since a Maryland
court-appointed psychiatrist found that he was not criminally responsible for his conduct in
Maryland, he could have used this fact to demonstrate the bias of Dr. Mechanick, who testified for
the State during his trial in Delaware.
Petitioner raised this argument on post-conviction appeal, but did not raise it on direct
appeal. Consequently, the Delaware Supreme Court denied the argument under Delaware Supreme
Court Rule 8, explaining that the “disposition of the Maryland charges had no bearing on whether
there was sufficient evidence for the jury to determine Petitioner’s guilt or innocence on the
Delaware charges.” Norman, 2013 WL 6710794, at *4.
Petitioner’s assertion regarding appellate counsels’ failure to raise the argument on direct
appeal does not establish cause for his default. As explained by the Superior Court in its Rule 61
Dr. Mechanick did not change his opinion as to his findings between
his opinion as to what occurred in Maryland and his opinion as to what
occurred in Delaware. He just applied the different states’ laws to the
same factual findings he made. The bottom line was he opined that
any delirium the defendant suffered was due to his marijuana and
Norman, 2013 WL 1090944, at *19. Simply stated, Dr. Mechanick came to the same conclusion as
the Maryland psychiatrist, namely, that Petitioner was not criminally responsible under Maryland
law. In turn, the jury learned this fact during the penalty phase of the trial.
Given Petitioner’s failure to establish cause, the Court will not address the issue of prejudice.
The Court also will not review the merits of the claim under the miscarriage of justice exception,
because there is no new reliable evidence of Petitioner’s innocence. Accordingly, the Court will
deny this portion of Claim Three as procedurally barred.
8. The trial court erred by aiding the State’s prosecution of Petitioner
Petitioner contends that the trial court erred by admitting into evidence the cocaine and
marijuana found in the cars outside his home. He argues that the admission prejudiced him because
it supported the State’s theory of the case that Petitioner’s mental health problems were caused by
the voluntary ingestion of drugs.
It is well-settled that an error of state law does is not an issue cognizable on federal habeas
review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). By challenging the trial court’s admission of
evidence under Delaware Rule of Evidence 403, Petitioner is asserting an error of state law.
Therefore, the Court will deny the eighth allegation in Claim Three for failing to assert a proper
basis for habeas review.
Alternatively, to the extent Petitioner is asserting a claim of judicial bias, it is procedurally
defaulted because the Delaware Supreme Court invoked Delaware Supreme Court Rule 8 with
respect to this claim on post-conviction appeal. Given the absence of cause and prejudice, or new
reliable evidence of Petitioner’s actual innocence, the Court will deny this argument as procedurally
9. Trial court erred in admitting a book into evidence
Petitioner contends that the trial court improperly admitted the book, Above the Law, into
evidence during his trial. This allegation is belied by the record. The trial court excluded the book
as trial evidence, but made it a court’s exhibit to preserve the proffered evidence for consideration
on appeal if a claim regarding the ruling was raised post-trial. (D.I. 22 at 784, 802) Thus, the Court
will deny this argument as factually baseless.
D. Claim Four: 11 Del. Code Ann. § 401(c) is Unconstitutionally Vague
In Claim Four, Petitioner contends that the 11 Del. Code Ann. § 401(c) is unconstitutionally
vague. He asserts that the trial court improperly interpreted § 401(c) as creating a mandatory burden
on the defendant to disprove prior drug usage as a proximate cause of his mental illness. (D.I. 4 at
35) Section 401(c) is set forth below:
(c) It shall not be a defense under this section if the alleged insanity or
mental illness was proximately caused by the voluntary ingestion,
inhalation or injection of intoxicating liquor, any drug or other
mentally debilitating substance, or any combination thereof, unless
such substance was prescribed for the defendant by a licensed healthcare practitioner and was used in accordance with the directions of
such prescription. As used in this chapter, the terms “insanity” or
“mental illness” do not include an abnormality manifested only by
repeated criminal or other antisocial conduct.
11 Del. Code Ann. § 401(c).
A criminal statute is void for vagueness if it “fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by the statute,” or “it encourages arbitrary
and erratic arrests and convictions.” Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) (overturning
vagrancy ordinance). “Vagueness challenges that do not involve First Amendment freedoms must
be analyzed as applied to the specific facts of the case at hand.” Maynard v. Cartwright, 486 U.S. 356,
Section 401(c) does not criminalize any activities; it simply precludes the use of the
affirmative defense if the alleged insanity or mental illness was proximately caused by voluntary
intoxication. In other words, any alleged vagueness in the language of the affirmative defense did
not deprive Petitioner of due process. Thus, since § 401(c) does not implicate the doctrine of
unconstitutional vagueness, the Court will deny Claim Four as meritless.
To the extent Claim Four contends that the trial court erroneously construed allegedly
ambiguous language contained in § 401(c) as it pertains to the burden of proof for an affirmative
defense and the State’s rebuttal of that defense, it merely re-assets the first argument in Claim Three.
The Court has fully discussed above why argument one in Claim Three does not warrant relief.
Thus, the Court will deny Claim Four’s instant re-characterization of Claim Three for those same
E. Claim Five: Prosecutorial Misconduct Deprived Petitioner of a Fair Trial
In this proceeding, Petitioner presents six instances of prosecutorial misconduct that
occurred during closing argument: (a) misstatement of the law regarding the NGRI standard;
(b) misstatement of the evidence as to when Petitioner’s mental illness began; (c) reference to
Petitioner’s mental state at the time of trial rather than at the time of the crime; (d) implying that
Petitioner was paranoid, not mentally ill; (e) improper vouching of Dr. Mechanick; and (f) implying
that mental illness defense was a ploy to avoid punishment. (D.I. 4 at 32-35) The only allegation
presented and reviewed on its merits during Petitioner’s Rule 61 proceeding was his contention that
the State misstated the law during closing argument by remarking that Petitioner knew right from
wrong. See Norman, 2013 WL 6710794, at *5. The Superior Court held that the State’s remark was
another way of arguing the legal principle that Petitioner did not lack “substantial capacity to
appreciate the wrongfulness of [his] conduct” and that it was not a misstatement of the legal
standard. See Norman, 2013 WL 2013 WL 1090944, at *20. The Delaware Supreme Court affirmed
that decision. See Norman, 2013 WL 6710794, at *5.
In order for a prosecutorial misconduct claim to warrant federal habeas relief, the
prosecutor’s comments must have “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 180 (1986). A prosecutorial
misconduct claim must be examined in “light of the record as a whole” in order to determine
whether the conduct “had a substantial and injurious effect or influence” on the jury’s verdict. Brecht
v. Abramson, 507 U.S. 619, 638 (1993). Pursuant to Third Circuit precedent, this inquiry involves
examining “the prosecutor’s offensive actions in context and in light of the entire trial, assessing the
severity of the conduct, the effect of the curative instructions, and the quantum of evidence against
the defendant.” Moore v. Morton, 255 F.3d 95 (3d Cir. 2001). Simply alleging misconduct fails to
establish a violation of due process because the focus of the Darden inquiry is the unfairness of the
trial, not the conduct of the prosecutor. See Smith v. Phillips, 455 U.S. 209, 219 (1982).
The Delaware Supreme court did not cite Darden during its analysis of the instant
prosecutorial misconduct claim. Nevertheless, the Court concludes that the Delaware Supreme
Court’s decision was neither contrary to, nor an unreasonable application of, Darden and its progeny.
The NGRI defense “requires the mental impairment to be so severe as to render the defendant
unable to distinguish right from wrong.” Collingwood v. State, 594 A.2d 502, 505 n.4 (Del. 1991).
When reviewed “in light of the record as a whole,” it was reasonable for the Delaware state courts to
hold that the State’s comment that Petitioner “knew right from wrong” merely constituted another
way of arguing this point. Therefore, the Court concludes that this allegation of prosecutorial
misconduct is meritless.
As for the remaining five assertions of prosecutorial misconduct in Claim Five, the Delaware
Supreme Court refused to review the allegations on post-conviction appeal due to Petitioner’s failure
to present them on direct appeal. See Norman, 2013 WL 6710794, at *5. Petitioner has not alleged
cause or prejudice, and no miscarriage of justice will occur in the absence of this Court’s review.
Accordingly, the Court will deny the remaining five prosecutorial misconduct allegations as
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether to
issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). A certificate of appealability is
appropriate when a petitioner makes a “substantial showing of the denial of a constitutional right”
by demonstrating “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S.
473, 484 (2000).
The Court has concluded that Petitioner’s habeas claims do not warrant relief. In the
Court’s view, reasonable jurists would not find this conclusion to be debatable. Accordingly, the
Court declines to issue a certificate of appealability.
For the reasons discussed, Petitioner’s Application For A Writ Of Habeas Corpus Pursuant
To 28 U.S.C. § 2254 is DENIED. An appropriate Order will be entered.
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