Hoskins v. Pierce et al
Filing
31
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 11/16/2016. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TREMEIN HOSKINS,
Petitioner,
v.
DAVID PIERCE, Warden, and
ATIORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
)
)
)
)
) Civ. No. 14-1409-SLR
)
)
)
)
)
)
Daniel I. Siegel, Esq. Assistant Federal Public Defender, Office of the Federal Public
Defender for the District of Delaware. Counsel for petitioner.
Gregory Smith. Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.
MEMORANDUM OPINION
November Ill> 2016
Wilmington, Delaware
J
I. INTRODUCTION
Presently before the court is petitioner Tremein Hoskins' ("petitioner") pro se
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and his counseled
opening brief in support (hereinafter singularly referred to as "application"). (0.1. 1; 0.1.
27) The State filed an answer in opposition to the pro se application and a
memorandum in opposition to the counseled brief. (0.1. 14; 0.1. 29) For the reasons
that follow, the court will dismiss the application.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts leading to petitioner's arrest and convictions are presented below, as
set forth by the Delaware Supreme Court in petitioner's direct appeal:
Late one September evening, fifteen to twenty people were socializing outside of
a community known as Capital Green in Dover. The group was "just standing out
there talking, having fun." Music could be heard playing from one of their cars.
The group included Brandon Beard, Leia Tolson, Jermaine Brown, Lentia Brown,
Ashley Walton, and Lisa Moaney.
Meanwhile, less than two miles away in a residential area known as Capitol Park,
another group of individuals was preparing to make the short trip to Capital
Green. That group included [petitioner], Brett Hoskins, Darryl Copperhead, and
Alonzo West. Those four men got into West's burgundy Buick. West drove the
car, [petitioner] sat next to him in the front passenger seat, and Brett Hoskins and
Copperhead sat in the back of the car. The group stopped at a nearby Royal
Farms to get gas and continued on to Capital Green.
Shortly thereafter, Leia Tolson observed at least two vehicles approach the
crowd at Capital Green. First, a Jeep Cherokee drew near, and then a burgundy
Buick "slowed down in front of [the crowd]" and "the person in the back seat
rolled their window down." At that time, Tolson knew "something wasn't right,"
and that "some shots or something was going to get fired because of the way the
cars [ ] came in at that time of night; you don't usually see cars come in like that."
The cars parked one behind the other, not far from the crowd. Then, Tolson "just
heard gunshots" coming from "where the cars had parked at." Although it is
unclear how many shots were fired that night, Tolson heard "at least fifteen
gunshots." Tolson and the others then started to run to Lisa Moaney's nearby
house.
Tolson looked back "to make sure that [they] didn't leave anybody outside." She
saw Brandon Beard "on his knees; and he was holding his chest with one of his
arms out." Tolson and a friend then carried Beard into Moaney's house and laid
him on a couch. Beard "patted his chest" and informed his friends that he had
been hit. Then, Tolson observed "the blood just [ ] coming through his sweats."
Tolson called 911 from her cell phone. Beard stated, "I can't breathe." Beard then
told his friends: "[c]all my mom" and "[d]on't leave me." Beard repeatedly stated:
"I am going to die" and "[t]ake care of my kid." Shortly thereafter, paramedics
arrived and transported Beard to nearby Kent General Hospital. Dr. Samuel
Wilson, who was on call that night, received a page and reported to the hospital.
Doctors began operating on Beard at approximately 2:00 a.m., but they were
unable to save him. Beard was pronounced dead at 5:36 a.m. Doctor Judith
Tobin identified the cause of death as "irreversible shock due to massive
hemorrhage due to a gunshot wound to the left lung and the left subclavian vein."
Tobin opined that Beard "had his back to where the bullet came from."
Later that day, Detective Robert Roswell interviewed [petitioner]. First, [petitioner]
told Roswell that he was not at Capital Green when Beard was shot. Later in that
interview, he recanted and admitted that he was at Capital Green, but stated that
he did not see the shooting. During that interview with [petitioner], Roswell
learned that [petitioner] and Brett Hoskins were in a burgundy Buick on the night
of Beard's death and that a man named "Lonny" supposedly drove the car.
Two days later, Roswell and another detective drove to Capitol Park, where they
believed "Lonny" resided. As they approached the entrance to the development,
Roswell saw a burgundy Buick pulling out of the Capitol Park entrance. Roswell
stopped the vehicle and its driver, Alonzo West. Roswell searched the vehicle,
with West's consent, but found nothing related to the homicide. West arrived at a
nearby police station approximately thirty minutes later and voluntarily discussed
the events of the night in question. West stated that he was playing pool with
friends earlier during the night of the shooting and that he had drank one beer.
He also stated that he went to various liquor stores in Dover and then returned to
Capitol Park. When asked who got into West's car later that night to go to Capital
Green, West replied: "Well, Copperhead, as we call him, and me and [petitioner].
And that is it." West then admitted that he owned a Ruger 9mm, but that neither
he nor Copperhead exited the vehicle or fired a gun that night. But, West stated
that [petitioner] used his gun:
2
Detective: So, who did you let use your gun? Was it somebody in your
car?
West: Hm, yeah.
Detective: Which one?
West: Ah, [petitioner].
Detective: Ok, now afterwards, does he give it back to you?
West: Well, yeah.
Detective: All right. Does he get out and shoot, or does he shoot out the
window, or what?
West: Hm, got out.
Detective: How many times you figure he shot?
West: Who?
Detective: [petitioner].
West: Could only shoot five rounds.
At the end of the interview, Roswell obtained West's consent to retrieve the
Ruger 9mm from West's girlfriend's trailer. Roswell found a blue gym bag, which
contained a gun case. That gun case contained a Ruger 9mm handgun. The
Ruger 9mm contained a magazine, but no bullets. Roswell also found a receipt
for the Ruger 9mm that identified West as its purchaser. The gym bag also
contained, among other things, "a Wal-Mart bag with a box of .22-caliber bullets,
a 50-count box, and all the bullets were in the box."
Roswell then interviewed [petitioner] again. In that interview, [petitioner] finally
admitted that he fired West's gun on the night of Beard's death, but [petitioner]
did not describe the type of gun he fired. In his previous interview, [petitioner] had
denied even observing the shooting. [Petitioner] explained his recantation as
follows: "I didn't know what was going on yet. I didn't know what was what. I am
not-that's something that I don't do all the time, so I wasn't involved in anything
like that on any other occasion."
Back at the scene of the crime, police recovered twelve spent shell casings. Carl
Rone of the Delaware State Police Forensic Firearms Service Unit determined
3
that seven were fired from one gun and five were fired from another. When police
recovered those spent shell casings, the group of five and the group of seven
were approximately twelve to fifteen feet apart. Rone determined that all were
fired from 9mm handguns. No .22-caliber casings were found. Rone analyzed
test rounds fired from the Ruger 9mm that Roswell recovered from West's
residence and determined that the bullet that killed Beard had been fired from
that Ruger 9mm. Rone also determined that of the twelve shell casings that were
recovered from the crime scene, five matched West's Ruger 9mm.
There was additional forensic evidence, but it proved inconclusive. Corporal Marc
Gray found one fingerprint on the magazine of West's Ruger 9mm. The
fingerprint was on the middle of the magazine, so it likely resulted from that
person either loading the magazine with bullets or loading the gun with the
magazine. Police determined that the fingerprint did not match [petitioner's]
fingerprint.
Approximately one year after his first statement to police, West gave a second
interview in connection with a plea. He stated: "[Petitioner] asked me yo can you
go get you um get you um get your gun. I got you this and that. He asked me
about 3 or 4 times so." West confirmed that he drove the burgundy Buick that
night and stated that "[petitioner], Brett, and um Copperhead was in the car," but
when they stopped at Royal Farms, "Brett got out the car and jumped [] in the
Jeep." West stated that he followed a Jeep into Capital Green and the following
occurred:
[The Jeep] was like little bit behind me I mean I was like here may been on
the other side like little back in back or whatever and then me [ ]
[petitioner] and Copperhead were sittin in the car then um next thing we
was talking next thing we heard uh was bop bop bop then [petitioner]
jumped out the car he grabbed the gun, jumped out the car me and
Copperhead stayed in the car and then when uh when I heard shots
(unintelligible) you know what I mean (unintelligible).
West stated that the group then returned to Capitol Park, discussing what had
just occurred. West recalled:
Yeah and um um Brett and um (unintelligible) about something and
(unintelligible) said um about mentioned about um yeah I shot up in the air
whatever something like that. ~idn't nobody shoot up in the air. Then um
Brett said um pointed to what 2 or 3 people you all see what I done right.
You see what I done. You see what I done.
Hoskins v. State, 14 A.3d 554, 556-59 (Del. 2011).
4
Dover police arrested petitioner in September 2008, and he was indicted on the
following charges in November 2008: first degree murder, attempted first degree
murder, two counts of first degree reckless endangering, first degree conspiracy, and
four counts of possession of a firearm during the commission of a felony ("PFDCF").
(D.1. 14 at 6) In October 2009, a Delaware Superior Court jury found petitioner guilty of
all four counts of PFDCF, two counts of reckless endangering, and a third count of
reckless endangering as a lesser included offense of attempted murder. Id. The jury
was unable to reach a verdict for the murder and conspiracy charges. On November
30, 2009, the State dismissed the conspiracy charge, and announced that it would only
re-try petitioner on the lesser-included-offense of second degree murder. Id. In
December 2009, a Superior Court jury found petitioner guilty of second degree murder.
He was sentenced in January 2010 to a total non-suspended period of forty-three years
and nine months of imprisonment. Id. The Delaware Supreme Court affirmed
petitioner's convictions and sentence on direct appeal. See Hoskins, 14 A. 3d at 556.
In January 2012, petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.1. 14 at 7) The
Superior Court denied the motion, and the Delaware Supreme Court affirmed that
judgment on post-conviction appeal. See Hoskins v. State, 102 A.3d 724 (De/. 2014).
Petitioner timely filed a pro se § 2254 application in this court asserting four
claims: (1) the trial court failed to give an accomplice credibility jury instruction; (2) the
trial court failed to give a single theory unanimity jury instruction; (3) the trial court
improperly admitted West's out-of-court statements pursuant to 11 De/. C. § 3507
5
without requiring the State to ask necessary foundational questions; and (4) defense
counsel provided ineffective assistance by failing to request an accomplice credibility
jury instruction and a single theory unanimity jury instruction, and by failing to object to
the admission of West's out-of-court statements. The State filed a response in
opposition. (0.1. 14) Thereafter, the court granted petitioner' motion for representation
by counsel and appointed the federal public defender's office to represent him. (0.1. 22)
Petitioner then filed an opening brief in support of his original pro se application. (0.1.
27) The State filed a memorandum in opposition (0.1. 29), and petitioner filed a reply
brief (0.1. 30).
III. STANDARD OF REVIEW
If a state's highest court adjudicated a federal habeas claim on the merits, the
federal court must review the claim under the deferential standard contained in 28
U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be
granted if the state court's decision was "contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of
the United States," or the state court's decision was an unreasonable determination of
the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see
also Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Hom, 250 F.3d 203, 210 (3d
Cir. 2001).
A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C.
§ 2254(d) if the state court decision finally resolves the claim on the basis of its
substance, rather than on a procedural or some other ground. Thomas v. Hom, 570
6
F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even "when
a state court's order is unaccompanied by an opinion explaining the reasons relief has
been denied"; as explained by the Supreme Court, "it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 98-100
(2011 ).
Finally, when reviewing a habeas claim, a federal court must presume that the
state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1). This
presumption of correctness applies to both explicit and implicit findings of fact, and is
only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1);
Campbell v. Vaughn, 209 F.3d 280,286 (3d Cir. 2000); Miller-EI v. Cockrell, 537 U.S.
322,341 (2003)(stating that the clear and convincing standard in § 2254(e)(1) applies to
factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies
to factual deciSions).
IV. DISCUSSION
In its answer to petitioner's original pro se habeas application, the State contends
that claims one, two, and three should be denied as procedurally barred and that claim
I
four. an ineffective assistance of counsel claim with three sub-arguments, should be
denied for failing to satisfy § 2254(d). (0.1. 14) After the State filed its answer, the
court appointed the federal public defender's office to represent petitioner in this
proceeding. The assistant federal public defender filed a brief in support of petitioner's
pro se application. (0.1. 27) The brief in support does not mention the three
procedurally barred claims. Rather, it states that, "[i]n his federal post-conviction
7
[application], [petitioner] again raised the three [ineffective assistance of counsel] claims
that were raised in his state post-conviction petition." (0.1. 27 at 10) Petitioner's brief in
support also states that U[t]his brief will discuss claim one [which is really sub-argument
one in claim four of petitioner's original application], which argues that [petitioner] was
prejudiced by trial counsel's deficient performance in failing to request an accomplice
instruction. On claims two and three [which are really sub-arguments two and three in
claim four of petitioner's original application], counsel will rely on petitioner's pro se
filing." (0.1. 27 at 10) Given these circumstances, the court concludes that petitioner
has: (1) withdrawn claims one, two, and three that were asserted in his original
application; (2) decided to proceed with the remaining ineffective assistance of counsel
claim (original claim four) which contains three sub-arguments; (3) supplemented the
first ineffective assistance of counsel sub-argument regarding counsel's failure to
request an accomplice instruction; and (4) decided to rely on petitioner's original
presentation of the remaining two ineffective assistance of counsel sub-arguments.
Therefore, the court views petitioner's application as presenting the following three
claims: (1) defense counsel provided ineffective assistance by failing to request an
accomplice credibility jury instruction; (2) defense counsel provided ineffective
assistance by failing to request a single theory unanimity jury instruction; and (3)
defense counsel provided ineffective assistance by failing to object to the admission of
West's out-of-court statements. The Delaware Supreme Court denied these ineffective
assistance of counsel claims on post-conviction appeal after determining that the
arguments lacked merit. Hence, habeas relief will only be available if the Delaware
8
Supreme Court's decision was either contrary to, or an unreasonable application of,
clearly established federal law.
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." Id. at 687-96. A reasonable probability is a
"probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must
make concrete allegations of actual prejudice and substantiate them or risk summary
dismissal. See Wells v. Petsock, 941 F.2d 253, 259-60 (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.
Turning to the first prong of the § 2254(d)(1) inquiry, the court notes that the
Delaware Supreme Court correctly identified the Strickland standard applicable to the
instant claims. Thus, the Delaware Supreme Court's decision was not contrary to
Strickland. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill state-court decision
9
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 is not over, however, because it must also determine if the
Delaware Supreme Court reasonably applied the Strickland standard to the facts of
petitioner's case. When performing this inquiry, the court must review the Delaware
Supreme Court's decision with respect to petitioner's ineffective assistance of counsel
claims through a "doubly deferential" lens. 1 Richter, 562 U.S. at 105. Notably, when
§ 2254(d) applies, "the question is not whether counsel's actions were reasonable, [but
rather], whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard." Id. When 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. 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.
1 As
explained by the Richter Court,
[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).
Richter, 562 U.S. at 105 (internal citations omitted).
10
A. Claim One: Counsel Failed To Request An Accomplice Credibility
Instruction
In Bland v. State, the Delaware Supreme Court held that a jury must be
instructed to use great caution when weighing uncorroborated accomplice testimony.
See Bland v. State, 263 A2d 286, 288-90 (Del. 1970). In his Rule 61 proceeding,
petitioner argued that defense counsel was ineffective for failing to request a Blandjury
instruction regarding the credibility of West's accomplice testimony. The Superior Court
denied this argument as meritless. (0.1. 16, State v. Hoskins, No. 080901884, Order
(Del. Super. Jan. 28, 2014) On post-conviction appeal, the Delaware Supreme Court
concluded that defense counsel provided deficient performance by failing to request a
Bland accomplice credibility jury instruction, but held that petitioner was not prejudiced
by defense counsel's deficient performance. Specifically, the Delaware Supreme Court
opined:
Even though [defense] counsel's failure in this case to request a Bland instruction
was deficient, [petitioner] has not shown prejudice under the second prong of
Strickland. The record shows that there was not a reasonable likelihood that the
result at trial would have been different if trial counsel had requested a Bland
instruction, and the trial judge had given one.
There was substantial evidence other than West's testimony that was presented
at trial to convict [petitioner]. [Petitioner] himself admitted to being in West's
Buick and getting out of the vehicle at the scene of the crime. [Petitioner]
confessed to shooting a gun given to him by West. Further, ballistic evidence
showed that the bullet that killed Brandon Beard was fired from West's Ruger
9rnm. Also significant was the absence of the .22 caliber gun that [petitioner]
claims he fired on the night of the homicide. Only 9mm shell casings were found
at the scene of the crime and no .22 caliber revolver was ever recovered. No
one, including [petitioner], testified that anyone else in West's Buick fired a gun.
Because West's testimony was independently corroborated, [petitioner] has not
shown prejudice, and his first ineffective assistance claim fails under Stdckland.
Hoskins, 102 A3d at 732-33.
11
In this proceeding, petitioner contends that the Delaware Supreme Court's
decision regarding prejudice was based on an unreasonable application of Strickland,
because the Delaware Supreme Court did not consider the following evidence when
holding that counsel's failure to request an accomplice instruction did not prejudice
petitioner: (1) petitioner's testimony that he shot the gun into the air; (2) the testifying
eyewitnesses did not identify petitioner as the shooter; (3) a detective's testimony that
two eyewitnesses who were shown petitioner's picture in photographic lineups identified
someone else as the shooter; (4) West's arguable interest in securing a reduced
sentence; and (5) the existence of a fingerprint on the magazine of the 9mm pistol that
did not match petitioner's fingerprint. (0.1. 27 at 6) Given his belief that § 2254(d)(1)
has been violated, petitioner asserts that the court must review claim one de novo, and
cites Branch v. Sweeney, 758 F.3d 226, 233 (3d Cir. 2014),2 to support this contention.
In contrast, the State contends that the Delaware Supreme Court's decision
regarding prejudice must be reviewed under § 2254(d)(1)'s deferential standard,
because de novo review in habeas cases is "only available when the prisoner presented
his claim to the state's courts, but those courts refused to adjudicate the claim at all or
did so under the wrong standard. The State cites CuI/en v. Pinholster, 563 U.S. 170,
202 (2011) to support this contention. (0.129 at 2)
The court is not persuaded by petitioner's argument. As the State contends,
according to clearly established Supreme Court precedent (rather than Third Circuit
21n Branch, the Third Circuit held that federal courts must apply a de novo standard of
review when a state court decision was "contrary to" or an "unreasonable application"
of a controlling Supreme Court precedent.
12
precedent), de novo review is appropriate when the state court decision does not reach
a question that was presented to it. See Rompilla v. Beard, 545 U.S. 374, 390 (2005);
Porter v. McCollum, 558 U.S. 30, 39 (2009). Here, since the Delaware Supreme Court
reached the issue of prejudice with respect to claim one, it would appear that de novo
review is inappropriate.
Additionally, even Branch does not support petitioner's position. The Branch
Court's conclusion that it had to review an ineffective assistance of counsel claim under
a de novo standard was based on the Branch Court's review of the record before it
and its determination that the record did not support the state court's decision that
defense counsel's performance was not deficient. See Branch, 758 F.3d at 234
(emphasis added). Since the record did not support the state court's decision, the
Branch Court concluded that the state court had unreasonably applied Strickland.
Indeed, as explained in Strickland, when assessing prejudice, "a court hearing an
ineffectiveness claim must consider the totality of the evidence before the judge or jury."
Strickland, 466 U.S. at 695.
Here, after reviewing the record that was before the state court in petitioner's
case, the court is not persuaded by petitioner's unsupported contention that the
Delaware Supreme Court did not consider the totality of the evidence. The fact that the
Delaware Supreme Court's post-conviction appeal decision only lists the evidence it
viewed as being "substantia/" and supportive of petitioner's conviction does not
necessarily mean that the identified evidence was the only evidence the Delaware
Supreme Court considered when conducting its prejudice analysis. Notably, nothing in
Strickland or Branch requires an explicit listing of all the evidence considered; rather,
13
these two cases focus on the content of the record considered by the state courts when
reaching its decision. The record here shows that the evidence petitioner identifies in
numbers one, two, three, and five set forth above was presented to the jury during the
trial, and also to the three-judge-panels presiding over petitioner's direct appeal and
post-conviction appeal. For instance, the appendix on direct appeal contains a trial
transcript of defense counsel's opening statement, in which defense counsel asserts
that "witnesses interviewed by the police implicate other suspects. You're going to hear
from a couple of witnesses who were eye witnesses who were there at the scene who
ID'd from a photo lineup someone else as the killer of Brandon Beard." (0.1. 16,
Appellant's App. in Hoskins v. State, No. 98,2009, at A-13) Second, the appendix to
petitioner's opening brief on post-conviction appeal reveals that the Delaware Supreme
Court was explicitly presented with the evidence contained in numbers one, two, and
five set forth above. (0.1. 16, App. to Appellant's Op. Br. in Hoskins v. State, No. 71,
2014, at A2, A60) Third, as for "West's arguable interest in securing a reduced
sentence" because West had already pled guilty to second degree murder but had not
yet been sentenced when he testified (item number four), the trial transcript also
contains West's direct testimony that he entered into a plea agreement "with the State a
couple weeks ago." (0.1. 16, Appellant's App. in Hoskins v. State, No. 98,2009, at A-14)
Finally, two of the three judges who presided over petitioner's direct appeal (Justice
Holland and Justice Ridgely) also presided over petitioner's post-conviction appeal. 3
Given this record, the court cannot conclude that the Delaware Supreme Court failed to
3Justice Jacobs was the third judge who presided over petitioner's direct appeal and
Justice Strine was the third judge who presided over petitioner's post-conviction appeal.
14
consider the five factors set forth by petitioner as part of the totality of the evidence
when it determined that petitioner was not prejudiced by defense counsel's failure to
request an accomplice instruction. Accordingly, the court will review the Delaware
Supreme Court's decision regarding prejudice under § 2254(d)(1)'s deferential
standard.
To reiterate, when considering the prejudice prong of Strickland, a court must
evaluate the effect of counsel's inadequate performance in light of the totality of
evidence at trial. Here, the totality of the evidence presented at trial includes the
following: (1) West was the only witness who testified that petitioner fired the 9mm gun
that killed Brandon Beard; (2) none of the other eyewitnesses who testified during the
trial could identify the shooter; (3) a police detective testified that two other
eyewitnesses who were shown pictures of petitioner identified someone else as the
shooter; (4) West pled guilty to second degree murder and first degree conspiracy
weeks before testifying at petitioner's first trial; (5) the fingerprint on the magazine of the
9mm gun that was used to shoot Beard did not match petitioner's fingerprint; (6)
petitioner testified that he had been in West's car on the night of the crime and exited
the vehicle at the scene of the crime; (7) petitioner provided a police statement and also
testified that he shot the gun that West handed him, but said it was a .22 caliber gun
and that he fired the gun into the air; (8) ballistics evidence showed that the bullet that
killed Beard was fired from West's Ruger 9rnm; (9) no .22 caliber gun was ever
recovered, and no .22 caliber casings were found at the crime scene; (10) West testified
that he did not own a .22 caliber gun; and (11) nobody, including petitioner, testified that
anyone else in West's car fired a gun.
15
In addition, the trial judge gave the following general instruction on the credibility
of witnesses: "You are the sole judge of the credibility of each witness including the
defendant and of the weight to be given to the testimony of each. You should take into
consideration each witness' means of knowledge; strength of memory and opportunity
for observation; the reasonableness or unreasonableness of his/her testimony; the
consistency or inconsistency of his/her testimony; the motives actuating him/her; the
fact, if it is a fact, that his/her testimony has been contradicted; his/her bias, prejudice,
or interest, if any; his/her manner or demeanor upon the witness stand; and all other
facts and circumstances shown by the evidence which affect the credibility of his/her
testimony." Hoskins, 14 A.3d at 560 n.18. The trial judge also gave the following
instruction on conflicts in testimony: "If you find the testimony to be conflicting by
reason of inconSistencies, it is your duty to reconcile it, if reasonably possible, so as to
make one harmonious story of it all. But, if you cannot do this, then it is your duty and
privilege to give credit to that portion of the testimony which, in your judgment, is
unworthy of credit. In so doing, you should take into consideration the demeanor of the
witnesses as they testified before you, their apparent fairness in giving their testimony,
their opportunities for learning and knowing the facts about which they testified, and any
bias or interest that they may have concerning the outcome of this case." (0.1. 16,
Appellant's Op. Br. in Hoskins v. State, No. 98,2009, Exh. 5 at 31)
The record also reveals that defense counsel cross-examined West about the
gun he owned, and about inconsistencies between West's first and second police
statements about who was in his car on the night of the crime and whether he let
someone use his gun. (0.1. 16, Appellant's App. in Hoskins v. State, No. 98,2009, at A
16
22 to A-24) For instance, defense counsel asked West about the following
inconsistency: "In September of 2008 your statement mentioned nothing about
[petitioner] asking you to get your gun from 46 Glenn Street. A year later, with a plea
offer on the table, all of sudden he's asked you that. Can you explain the
inconsistency?" (0.1. 16, Appellant's App. in Hoskins v. State, No. 98,2009, at A-53)
West replied, "I told him exactly what happened." Id. Finally, during his closing
argument, defense counsel explicitly focused on West's credibility by asking, "why
would Alonzo plead guilty to murder in the second degree, given what you heard from
his testimony?" (0.1. 16, Appellant's App. in Hoskins v. State, No. 98,2009, at A-117)
After considering the totality of the evidence at trial, the general jury instruction
on credibility, the general jury instruction on conflicts in testimony, and defense
counsel's ability to argue the issues of credibility and conflicts to the jury, the court
concludes that petitioner has failed to show a reasonable probability that the result of
the proceeding would have been different if the jury had been instructed to view West's
testimony with caution and suspicion. Because the jury had sufficient evidence to
assess West's credibility, the Delaware Supreme Court's ruling was not "so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility forfairminded disagreement." Richter, 562 U.S. at 103.
Accordingly, the court will deny claim one for failing to satisfy § 2254(d)(1).
17
B. Claim Two: Counsel Failed To Request A Single Theory Unanimity Jury
Instruction
In Probst v. State, 547 A.2d 114 (Del. 1988), the Delaware Supreme Court
opined:
A general unanimity instruction is required in every criminal case. However, this
Court does not hold that a specific unanimity instruction is required in every case
where a defendant may be convicted as a principal or as an accomplice. In fact,
this Court recognizes that even when principal and accomplice liability theories
are advanced, a general unanimity instruction is usually sufficient. In the absence
of a defense request for a specific instruction or in the absence of unusual
circumstances creating a potential for confusion e.g., alternative incidents which
subject the defendant to criminal liability.
*
*
*
The need for a specific unanimity instruction flows from the fact that the basis for
liability stems from two separate incidents and not from the applicability of
principal or accomplice liability with respect to one of the two incidents. The
necessity for a specific unanimity instruction under a single count of an
information or indictment depends upon whether each act or theory under the
count involves a separately cognizable incident, e.g., by reference to separate
allegations and/or to separate defenses.
Probst, 547 A2d at 121-22 (emphasis in original) (internal citations omitted). In sum, a
"more specific unanimity instruction is required if (1) a jury is instructed til at the
commission of anyone of several alternative actions would subject the defendant to
criminal liability, (2) the actions are conceptually different, and (3) the state has
presented evidence on each of the alternatives." Id. at 121.
In his direct appeal, petitioner argued that the trial court should have provided a
single unanimity instruction. The Delaware Supreme Court rejected this argument for
the following reason:
We conclude that the second Probst circumstance was not present because the
facts of this case do not present the kind of "conceptually different" or "distinct"
18
actions involved in Probst. [] Although the shooting here involved multiple guns,
police determined that one gun - West's Ruger 9mm - delivered the fatal shot.
Unlike the "unusual facts and circumstances" of Probst, this case turned on the
identity of the person who fired the Ruger 9mm, not the identity of the shooter
and the gun amid two separate incidents. Accordingly, there was no potential for
jury confusion.
Hoskins, 14 A.3d at 564-65. On post-conviction appeal, petitioner argued that defense
counsel's failure to request a single unanimity instruction amounted to ineffective
assistance. The Delaware Supreme Court denied this argument for the following
reason:
We explained in Probst v. State that a general unanimity instruction is typically
sufficient to insure that the jury is unanimous on the factual basis for conviction.
In [petitioner's] direct appeal, we held the single theory unanimity instruction was
not warranted by the circumstances because there was no potential for jury
confusion. Because there was no need to issue a single theory unanimity
instruction, trial counsel's failure to request one cannot be error under the law of
the case doctrine. Likewise, there can be no prejudice resulting therefrom.
Hoskins, 102 A.3d at 733.
Now, in claim two of this proceeding, petitioner contends that defense counsel
provided ineffective assistance by failing to request a single theory unanimity instruction
pursuant to Probst. The court is not persuaded. First, on habeas review, the court must
accept the Delaware Supreme Court's interpretation and application of Delaware state
law as set forth in Probst. Second, given petitioner's failure to provide clear and
convincing evidence to the contrary, the court must defer to the Delaware Supreme
Court's factual finding that the circumstances of petitioner's case did not warrant a
single theory unanimity jury instruction. Considering the Delaware Supreme Court's
determination that a single theory unanimity jury instruction was not warranted in
petitioner's case, the court concludes that defense counsel's failure to request such a
19
jury instruction did not constitute ineffective assistance. See United States v. Sanders,
165 F.3d 248, 253 (3d Cir. 1999). Therefore, the court will deny claim two.
C. Claim Three: Counsel Failed To Object To The Admission Of West's
Out-Of-Court Statements
In
~Iis
final claim, petitioner contends that defense counsel provided ineffective
assistance by failing to object to the State's failure to comply with the requirements of
11 Del. C. § 3507 when admitting West's two recorded out-of-court statements as
evidence. For instance, during petitioner's first trial, the State made the following
attempt to satisfy § 3507:
Q: Did you also agree at the time of your plea that the statements you gave to
the police were truthful?
A: Yes.
At petitioner's second trial, the State made the following attempt to satisfy
§ 3507:
Q: Did you also agree at the time of your plea that the statements you gave to
the police were truthful, those two prior statements that you had given?
A: Yes.
Hoskins, 14 A.3d at 555.
On direct appeal, the Delaware Supreme Court acknowledged that the
prosecutor's questions could have been phrased better by presenting it in the following
form: "is the content of the statement you gave true?" Hoskins, 14 A.3d at 566.
However, the Delaware Supreme Court also explained that it could not conclude that
"the prosecutor's question was so different from the preferred technically correct inquiry
20
as to be clearly prejudicial to [petitioner's] substantial rights so as to jeopardize the
fairness and integrity of the trial process," and held that petitioner failed to demonstrate
plain error under the circumstances of the case. Id.
On post-conviction appeal, the Delaware Supreme Court denied claim three after
determining that defense counsel's failure to object to the admission of West's
statements did not rise to the level of ineffective assistance, explaining that:
On direct appeal, we held that the trial court did not commit plain error in
admitting the out of court statements as evidence. But this does not mean that
counsel's representation was per se effective. The relevant question under the
first prong of Strickland is whether trial counsel's failure to object to its
admissibility was so erroneous as to overcome the "strong presumption" that trial
counsel's representation was professionally reasonable. As noted in the direct
appeal, the prosecutor could have worded his questions better.
Although trial counsel failed to object to the prosecutor's perhaps awkward
attempt to comply with his obligation under § 3507, trial counsel may well have
recognized that a technical objection was unlikely to help his client. [Petitioner]
argues that his trial counsel should have objected because the prosecutor's
questions were not precise enough, and did not focus on whether West's prior
testimony was truthful, not just when given, but whether it remained truthful. Had
his trial counsel objected to the prosecutor's awkward but harmless form of
questioning on this basis, as [petitioner] claims he should have done, West would
presumably have affirmed that his prior statements were still truthful, both
because he took an oath to tell the truth before he testified at trial, and because
his current testimony was consistent with his prior testimony. Thus, [petitioner]
has not shown that trial counsel's failure to object constituted a Strickland
violation at all, and, in any event, has not demonstrated prejudice. And absent
any prejudice to the defendant, we will not review as an abuse of discretion a trial
court's decision to admit evidence based upon the technical requirements of
§ 3507. In sum, there are insufficient grounds in the record to overcome the
presumption of trial counsel's reasonableness.
Hoskins, 102 A.3d at 734-35.
In this proceeding, petitioner has failed to establish how defense counsel's
objection to the admission of the statements could have changed the truthfulness of the
statements and how that change would have affected the outcome of his case,
21
especially since West agreed that the statements were truthful when given and he
testified under oath at trial consistent with those statements. Thus, after viewing the
Delaware Supreme Court's decision through the doubly deferential lens applicable on
federal habeas review, the court concludes that the Delaware Supreme Court's ruling
was not "so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement."
Richter, 562 U.S. at 103. Accordingly, the court wi" deny claim three for failing to satisfy
§ 2254(d)(1).
V. CERTIFICATE OF APPEALABILITY
The court must decide whether to issue a certificate of appealabilty. See 3d Cir.
L.A.R. 22.2 (2011). The court may issue a certificate of appealability only when a
petitioner makes a "substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that
reasonable jurists would find the district court's assessment of the denial of a
constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,484 (2000).
For the reasons stated above, the court concludes that petitioner's habeas
application must be denied. Reasonable jurists would not find this conclusion
debatable. Consequently, petitioner has failed to make a substantial showing of the
denial of a constitutional right, and a certificate of appealability will not be issued.
VI. CONCLUSION
For the foregoing reasons, the court will deny petitioner's application for habeas
relief filed pursuant to 28 U.S.C. § 2254. An appropriate order will be entered.
22
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