Ayers v. Pierce et al
Filing
24
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/25/19. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DASHAWN AYERS,
Petitioner,
Civ. Act. No. 15-1081-LPS
V.
KOLAWOLE AKINBAYO, Warden, and
ATTORNEY GENERAL OF THE STATE OF
DELAWARE,
Respondents. 1
Dashawn Ayers. Prose Petitioner.
Kathryn Joy Garrison, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
MEMORANDUM OPINION
March 25, 2019
Wilmington, Delaware
1
Petitioner was incarcerated at the James T. Vaughn Correctional Center in Smyrna, Delaware when
he originally filed the instant Petition. He has since been transferred to the H.R. Young
Correctional Institution in Wilmington, Delaware. Therefore, the Court has substituted Warden
Kolawole Akinbayo for former Warden David Pierce, an original party to this case. See Fed. R. Civ.
P. 25(d).
Pending before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 ("Petition") filed by Petitioner Dashawn Ayers ("Petitioner"). (D.I. 3) The State has
filed an Answer in opposition. (D.I. 1) For the reasons discussed, the Court will dismiss the
Petition and deny the relief requested.
I.
BACKGROUND
The facts leading to Petitioner's arrest and conviction are as follows:
In May and June 2012, the Delaware State Police led a multi-agency
law enforcement team that was investigating drug sales in Kent
County, Delaware. The team used wiretaps to monitor
communications by Galen Brooks, the target of the investigation. On
May 26, 2012, the police heard a phone conversation between Brooks
and Michael Demby, which led them to believe that a drug deal was
about to take place. Based on that call, the police established
surveillance at the McKee Crossing Shopping Center, and at Brooks's
father's home on Red Oak Drive in Dover. In the next call, the police
heard Brooks telling Demby to prepare a package of cocaine and to
bring it to the buyer, who would be driving a Dodge Caravan. Brooks
told Demby that the price was $2400. The police saw Demby leave
the Red Oak Drive home and place a package in the trunk of a Honda
parked at the house. Demby and Brooks's brother, James, then got
into the Honda and drove off.
At the McKee Crossing Shopping Center, the police saw [Petitioner]
seated in a Dodge Caravan in the parking lot. Demby and James
arrived in the Honda and parked next to the Caravan. Demby got out
of the Honda and got into the Caravan, while James went into a store
in the shopping center. After a few minutes, Demby got out of the
Caravan and went into the store James had entered. Shortly thereafter,
the two men left the store, returned to the Honda, and drove away.
[Petitioner], driving the Caravan, also left the parking lot.
One of the officers in the surveillance unit that was following
[Petitioner] instructed Delaware State Police Corporal Timothy Valeski
to conduct a traffic stop on the Caravan. [Petitioner] produced his
license, but when V aleski told him to exit the car, [Petitioner] put the
Caravan in gear and fled before the police could search it. Valeski was
instructed not to pursue [Petitioner] for public safety reasons.
After the meeting at the shopping center, the police contrived to
monitor Brooks' phone conversations. Demby called Brooks and told
him that everything had gone well and that he had the money. Brooks
told Demby to keep $100 for his participation and to give the
remaining $2300 to Valerie Brooks, his mother. Valerie called Brooks
a few minutes later to tell him that she received the money. Brooks
told his mother to keep $50 for herself.
[Petitioner] turned himself in to the Delaware State Police on June 1,
2012, stating that he knew he had outstanding warrants. The next day,
Brooks and Demby had a telephone conversation in which Brooks
agreed to give Demby one ounce of cocaine for the good work Demby
had done. Police later observed an exchange of money between the
two men. On June 14, 2012, the Delaware State Police arrested
Demby. A Kent County Grand Jury returned an indictment against
[Petitioner], Demby, Brooks, and eleven other individuals. [Petitioner]
was charged with one count of Drug Dealing, one count of Aggravated
Possession, and one count of Conspiracy Second Degree. Demby was
charged with two counts of Drug Dealing, two counts of Aggravated
Possession, two counts of Conspiracy Second Degree, one count of
Criminal Solicitation Second Degree, and one count of Possession of
Drug Paraphernalia.
Before tria~ [Petitioner] and Demby unsuccessfully moved to suppress
the wiretap evidence. [Petitioner] also filed a Motion to Sever, which
was denied. The jury convicted [Petitioner] on all counts. Demby was
convicted of one count of Drug Dealing, one count of Aggravated
Possession, one count of Conspiracy Second Degree, and one count
of Possession of Drug Paraphernalia. He was acquitted on the
remaining charges. [Petitioner] and Demby filed separate appeals,
which were consolidated for consideration and decision.
Ayers v. State, 97 A.3d 1037, 1038-39 (Del. 2014) (footnotes omitted). The Delaware Supreme Court
affirmed Petitioner's convictions on July 21, 2014, but held that the drug dealing and aggravated
possession charges merged for purposes of sentencing. See id. at 1042. As a result, the case was
remanded "for the sole purpose of merging the two charges and resentencing." Id. at 1041. On
November 5, 2014, the Superior Court resentenced Petitioner to a total of twenty-seven years at
Level V incarceration, suspended after eight years for decreasing levels of supervision. (D.I. 11 at 2)
On June 1, 2015, Petitioner filed a prose motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion). The Superior Court appointed
2
counsel, but subsequently granted counsel's motion to withdraw. See Ayers v. State, 166 A.3d 103
(Table), 2017 WL 2729563, at *1 (Del. June 23, 2017). The Superior Court denied the Rule 61
motion, and the Delaware Supreme Court affirmed that judgment. Id. at *3.
II.
LEGAL STANDARDS
A. Cognizability
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). Claims based on errors of state law are not cognizable on federal habeas review,
and federal courts cannot re-examine state court determinations of state law issues. See Mullanry v.
Wilbur, 421 U.S. 684,691 (1975) ("State courts are the ultimate expositors of state law."); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (holding that claims based on errors of state law are not
cognizable on habeas review).
B. Standard of Review
When a state's highest court has adjudicated a cognizable federal habeas claim on the merits,
the federal court must review the claim under the deferential standard contained in 28 U.S.C.
§ 2254(d). A 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. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). 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. See 28 U.S.C.
3
§ 2254(d)(1) & (2); see also Williams v. Tqylor, 529 U.S. 362,412 (2000);Appel v. Horn, 250 F.3d 203,
210 (3d Cir. 2001). This deferential standard of§ 2254(d) applies even "when a state court's order is
unaccompanied by an opinion explaining the reasons relief has been denied;" 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." Ham·ngton v. Richter,
562 U.S. 86, 98-100 (2011).
Finally, a federal court must presume that the state court's determinations of factual issues
are correct. See 28 U.S.C. § 2254(e)(1); see also Appel, 250 F.3d at 210. This presumption of
correctness applies both to explicit and implicit findings of fact, and is only rebutted by clear and
convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); see also Campbell v. Vaughn, 209 F.3d
280,286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341(2003) (stating that clear and
convincing standard in§ 2254(e)(1) applies to factual issues, whereas unreasonable application
standard of§ 2254(d)(2) applies to factual decisions).
III.
DISCUSSION
In November 2015, prior to the disposition of his Rule 61 motion, Petitioner filed in this
Court a habeas Petition asserting the following five grounds for relief: (1) the trial court violated his
Sixth Amendment right to confront witnesses against him by improperly admitting into evidence
wiretap recordings of conversations between Demby and Brooks, as well as conversations between
Brooks and Demby's mother Valerie, under the co-conspirator hearsay exception; (2) the State's
presentation of an expert witness to interpret the language in the wiretap recordings violated his
Sixth Amendment right to confront witnesses; (3) the trial court violated Petitioner's right to
confront witnesses because it did not adequately establish the existence of a conspiracy under
D.R.E. 801(d)(2)(e); (4) Dunn's testimony violated D.R.E. 702 and 705; and (5) the trial court's
4
admission of the wiretap recording violated the Delaware Constitution's requirement of face-to-face
confrontation in criminal cases.
A. Claims One and Two
In Claims One and Two, Petitioner contends that the Superior Court violated his right to
confront witnesses against him by improperly admitting into evidence wiretap recordings of
conversations between Demby and Brooks, as well as conversations between Brooks and his mother
Valerie Brooks, under Delaware Rule of Evidence 801 (d)(2)(e) without meeting the requirements of
the rule or making a separate determination for each phone call. He also contends that the State
violated his right to confront witnesses by using Agent Dunn to interpret the content of the phone
calls. Petitioner presented these arguments to the Delaware Supreme Court on direct appeal, which
denied them as meritless. Therefore, Petitioner will only be entitled to habeas relief if the Delaware
Supreme Court's decision was either contrary to, or an unreasonable application of, clearly
established federal law.
The Confrontation Clause of the Sixth Amendment provides, in relevant part, that "in all
criminal prosecutions, the accused shall enjoy the ... right to be confronted with the witnesses
against him." In Cranford v. Washington, 541 US. 36, 59, 60 n.9 (2004), and its progeny, the United
States Supreme Court held that the Confrontation Clause bars the admission of testimonial
statements of witnesses absent from trial that are admitted to establish the truth of the matter
asserted in the statement, unless the witness ii unavailable to testify and the defendant had a prior
opportunity for cross-examination. See also Davis v. Washington, 547 U.S. 813, 823-24 (2006). A
testimonial statement is a statement that is made during non-emergency circumstances and is a
statement which the declarant would objectively foresee might be used in the investigation or
5
prosecution of a crime. See United States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005); Davis, 547 U.S.
at 822.
The threshold question in every Confrontation Clause case is whether the challenged
statement is testimonial and, if so, whether it was introduced to establish the truth of the matter
asserted. See Hinton, 423 F.3d at 357. If the statement is not testimonial in nature, then the
Confrontation Clause has no application. Notably, statements made by co-conspirators during the
course of a conspiracy are non-testimonial. See United States v. Bobb, 471 F.3d 491,499 (3d Cir. 2006)
("[P]arty admissions and co-conspirator portions of disputed tape recordings are nontestimonial.").
Here, the Delaware Supreme Court's denial of Petitioner's Confrontation Clause claim was
not contrary to clearly established Federal law, because the Delaware Supreme Court cited and
applied Crawford in reaching its decision. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill statecourt decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner's
case [does] not fit comfortably within§ 2254(d)(1)'s 'contrary to' clause.").
The Court also concludes that the Delaware Supreme Court's decision involved a reasonable
application of Crawford and its progeny. When affirming Petitioner's conviction, the Delaware
Supreme Court explained that
[a] statement is testimonial and implicates the Confrontation Clause
where it is given in non-emergency circumstances and the declarant
would recognize that his statements could be used against him in
subsequent formal proceedings. By contrast, a casual remark to an
acquaintance is a nontestimonial statement. Similarly, ... statements
made in furtherance of a conspiracy are nontestimonial.
Ayers, 97 A.3d at 1040. The Delaware Supreme Court then held that the "wiretap recordings are not
testimonial under the Sixth Amendment because the declarants obviously did not expect their
statements to be used against them, and because the statements were made in furtherance of a
conspiracy." Id.
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To begin, given Petitioner's failure to provide clear and convincing evidence to the contrary,
the Court accepts as correct the Delaware Supreme Court's factual determination that Petitioner,
Demby, Brooks, and Valerie Brooks were co-conspirators engaged in a conspiracy to sell cocaine.
In tum, the record demonstrates that the statements in the wiretap recordings were made by coconspirators who did not believe their statements were being heard by the authorities and would be
available for use in a prosecution. Therefore, the Court concludes that that Delaware Supreme
Court's holding regarding the non-testimonial nature of the wiretap recordings constituted a
reasonable application of Cranford and its progeny. See United States v. Hendricks, 395 F.3d 173, 181
(3d Cir. 2005) (finding surreptitiously recorded conversations more similar to "a casual remark" than
to "formal statement.").
However, Petitioner contends that, even if the wiretap recordings could be considered nontestimonial, the admission of the statements in his case violated the Confrontation Clause because
expert testimony explaining what the coded language in the wiretaps meant rendered the wiretap
statements testimonial in nature. See Ayers, 97 A.3d at 1040. For instance, the State called Special
Agent Jeffrey Dunn of the Drug Enforcement Administration as an expert in drug investigations.
Dunn testified that, based on his training and experience and his review of the recordings, Brooks
and Demby were discussing a drug deal that involved the sale of cocaine. The pertinent portion of
Dunn's testimony on direct examination is set forth below.
Q.
Are you able to --- there's a discussion of "three." Are you able to tell
the jury what they're talking about when they talk about three? Three
what?
A.
Yes. They're referring to three grams of a cutting material, and you
could hear the one voice say GNC, which refers to the retail store,
General Nutrition Center. A cutting material is a substance such as a
dietary supplement that has a white powdery texture similar to cocaine
that is used to add to actual cocaine that increases a drug dealer's profit.
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Q.
When they talk about three germs, what does that mean?
A.
Three grams. They're going to use three grams of that cutting material
to add to the cocaine.
Q.
When the call says, "Take three germs and put it on the scizzy," do
you know what that means?
A.
Yeah. It's a --- scizzy is referring to a scale so that they get the proper
weight. Three grams is the proper weight.
(D.I. 14-3 at 30-31) Dunn also testified about the price and quantity of the cocaine.
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