Wheeler v. Pierce et al

Filing 30

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 5/16/2017. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DAEMONT WHEELER,
Petitioner,
v.

Civil Action No. 15-1133-RGA

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

MEMORANDUM OPINION

Daemont Wheeler. Pro se Petitioner.
Katherine Joy Garrison, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.

l~

,2017 May
Wilmington, Delaware

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Presently pending before the Court is Petitioner Daemont Wheeler's Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 3) The State filed an
Answer in opposition, contending that the Petition should be dismissed in its entirety. (D.L 17)
For the reasons discussed, the Court will dismiss the Petition.

I.

BACKGROUND
On November 13, 2009, Herbie Davis was shot in the back and leg several times
while he was in the kitchen of Tricia Scott's home near Dover. Davis lived in
Wilmington but stayed at Scott's home occasionally and considered her his
fiancee. Davis and Scott were planning on Davis moving into her home. Several
of Tricia Scott's children, including Shani and Amber, and grandchildren, also
lived with her.
[Petitioner] was Amber's boyfriend and frequently stayed in Amber's bedroom in
the basement of Scott's home. In 2009, Amber gave birth to a baby, fathered by
[Petitioner]. Davis testified that he and [Petitioner] did not get along after Davis
told [Petitioner] that he should get a job to help support Amber, the baby, and the
household.
Davis testified that shortly before the shooting on November 13, 2009,
[Petitioner] had been downstairs with Amber. Davis and Shani were in the kitchen
area. When [Petitioner] came upstairs, he had a disagreeable exchange with Davis
before [Petitioner] walked out the back door. Davis then went out the front door
to smoke a cigarette and returned several minutes later.
Davis testified that after he returned and was talking with Shani in the kitchen
area, [Petitioner] came up behind him and shot him several times after saying, "I
really don't like you." After shooting Davis, [Petitioner] fled. Davis fell to the
kitchen floor and told Shani that he could not feel his legs. Shani called 911 and
applied pressure to Davis' leg. When Amber rushed upstairs to the kitchen, after
hearing the gun shots, Shani told her: "Daemont just shot Herbie-Mr. Herbie."
At 8:55 p.m. on November 13, 2009, Delaware State Police Corporal Thomas
Lamon was dispatched to investigate a report that someone had been shot.
Corporal Lamon was the first police officer to arrive at Trisha Scott's home.
When Corporal Lamon entered the residence, he saw Davis on the kitchen floor
surrounded by blood. Shani was kneeling over Davis. Corporal Lamon testified
that Davis and Shani were the only people in the kitchen, and that Shani "was
clearly upset, shaken." Davis told Corporal Lamon, "Daemont shot me."

Delaware State Police Detective Mark Ryde was the chief investigating officer.
When he arrived at the Scott residence, Detective Ryde conducted separate
recorded interviews of Trisha Scott's two daughters, Shani and Amber. Those
interviews were conducted in Detective Ryde's police car.
After the on-scene investigation concluded, Detective Ryde attempted to locate
the suspect, [Petitioner]. After Detective Ryde was unable to locate [Petitioner] at
two addresses, he prepared an arrest warrant. That arrest warrant was placed in
the National Crime Index Center database.
On November 23, 2009, Detective Ryde received information that [Petitioner]
might be at a certain apartment in Harrington, Delaware. The apartment house
was owned by Mary Zachery. Detective Ryde obtained a search warrant. Inside
the unoccupied apartment, Detective Ryde found a document and prescription
medication with [PetitionerJ's name. Later, Detective Ryde conducted an
unrecorded interview of Mary Zachery at State Police Troop No. 3.
In January-2010, in an effort to locate [Petitioner], Detective Ryde contacted the
United States Marshal's Task Force. [Petitioner] was apprehended on January 27,
2010, in Wayne County, Michigan. After waiving an extradition hearing,
[Petitioner] was returned to Delaware on February 17, 2010.

Wheelerv. State, 36 A.3d 310, 312-13 (Del. 2012)
Petitioner was indicted for attempted first degree murder, possession of a firearm during
the commission of a felony ("PFDCF"), possession of a firearm by a person prohibited
("PFBPP"), and possession of ammunition by a person prohibited ("P ABPP"). (D.I. 17 at 1) In
April 2011, a Delaware Superior Court jury convicted Petitioner of all charges. See Wheeler, 36
A.3d at 313. The Superior Court sentenced him as an habitual offender to life in prison on the
attempted first degree murder charge, and to a total of thirty-eight years of incarceration on the
remaining charges. Petitioner appealed, and the Delaware Supreme Court affirmed his
convictions and sentences on February 7, 2012. See Wheeler, 36 A.3d at 312.

2

In December 2012, Petitioner filed a pro se motion for post-conviction relief pursuant to

. Delaware Superior Court Criminal Rule 61, alleging ineffective assistance of counsel. The
Superior Court denied the motion on October 3, 2013. See Wheeler, 36 A.3d at 312. On appeal,
the Delaware Supreme Court vacated the Superior Court's judgment without addressing its
merits, and remanded the case back to the Superior Court so that it could appoint counsel to
represent Petitioner. See Wheeler v. State, 83 A.3d 738 (Table), 2014 WL 44715, at *1 (Del.
Jan. 2, 2104). In January 2015, appointed counsel notified the Superior Court that counsel had
thoroughly reviewed the record and were unable to assert any meritorious post-conviction
claims. Counsel filed a motion to withdraw and a supporting memorandum oflaw pursuant to
Delaware Superior Court Criminal Rule 61(e)(2). (D.I. 20-4 at 131-143) Petitioner filed a
response. On February 27, 2015, the Superior Court granted post-conviction counsel's motion to
withdraw and denied the Rule 61 motion. (D.I. 20-4 at 188) Post-conviction counsel and
Petitioner filed notices of appeal, and post-conviction counsel filed a motion for the appointment
of substitute counsel. See Wheeler v. State, 127 A.3d 1163 (Table), 2015 WL 6150936, at *2
(Del. 2015). The Delaware Supreme Court permitted post-conviction counsel to withdraw and
appointed substitute post-conviction counsel ("appellate post-conviction counsel"). Thereafter,
appellate post-conviction counsel filed a brief and motion to withdraw. Id. On October 19,
2015, the Delaware Supreme Court affirmed the Superior Court's decision and denied appellate
post-conviction counsel's motion to withdraw as moot. Id. at *5.

3

II.

GOVERNING LEGAL PRINCIPLES
A. 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. 28 U .S.C. § 2254(b );

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

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
28 U.S.C. § 2254(b)(l).
The exhaustion requirement is based on principles of comity, requiring a petitioner to
give "state courts orie 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; see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the
state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural
manner permitting the court to consider the claims on their merits. See Bell v. Cone, 543 U.S.
447, 451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160
(3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically

4

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 ifthe 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. See Bousley v.

United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner

5

must present new reliable evidence - not presented at trial - that demonstrates "it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."

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

B. 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 ifthe state court's
decision was "contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States," or the state court's decision was
an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C.
§ 2254(d)(l) & (2); see 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 of28 U.S.C. § 2254(d) if
the state court decision finally resolves the claim on the basis of its substance, rather than on a
procedural or some other ground. See Thomas v. Hom, 570 F.3d 105, 115 (3d Cir. 2009). The
deferential standard of§ 2254(d) applies even "when a state court's order is -qnaccompanied by
an opinion explaining the reasons relief has been denied." Harrington v. Richter, 562 U.S. 86,
98 (2011). As recently explained by the Supreme Court, "it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary." Id. at 99.

6

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

Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341
(2003) (stating that the clear and convincing standard in§ 2254(e)(l) applies to factual issues,
whereas the unreasonable application standard of§ 2254( d)(2) applies to factual decisions).

III.

DISCUSSION
Petitioner's timely filed § 2254 Petition asserts the following six grounds for relief: (1)

the Superior Court's admission of certain testimony violated Petitioner's Sixth Amendment right
to confront witnesses; (2) the State violated Petitioner's due process right to a fair trial by failing
to tum over a witness' taped statement as required by Delaware Superior Court Criminal Rule
26.2 and Jencks v United States, 353 U.S. 657 (1957); (3) the State engaged in prosecutorial
misconduct; (4) defense counsel provided ineffective assistance; (5) appellate counsel provided
ineffective assistance; and (6) Petitioner was denied his right to a speedy trial. The Court will
address the Claims seriatim.

A. Claim One: Violation of Right to Confront Witnesses
In Claim One, Petitioner contends that his Sixth Amendment right to confront witnesses
was violated in two ways. First, he contends that the trial court misapplied Federal Rule of
Evidence 803(1) and (2) 1 by perinitting Davis' "recitation of' Shani's excited utterance
identifying Petitioner as the shooter, and that this misapplication resulted in the violation of his
1

Petitioner cites to the Federal Rules of Evidence in this proceeding, whereas he cited to the
Delaware Rules of Evidence in his state court cases.
7

confrontation rights. Second, he contends that his Sixth Amendment right to confront witnesses
was violated by the introduction of inadmissible hearsay through Detective Ryde's testimony.
Specifically, Petitioner contends that the state courts erroneously held that Detective Ryde's
testimony was properly admitted because that decision was based, in part, on its conclusion that
Davis' recitation of Shani's statement was properly admitted.
1. Davis' testimony regarding Shani's excited utterance
The first witness at [Petitioner's] trial was the shooting victim, Davis. During his
direct examination, Davis identified [Petitioner] for the jury as the man who came
from behind and shot him multiple times while Davis was standing in the kitchen
of Tricia Scott's home talking to Shani. Davis turned around after he was shot. He
testified: "I seen his face. I seen the gun," which was described as a silver semiautomatic. Davis also testified that he recognized [Petitioner's] voice and that
before the shooting, Davis heard [Petitioner] shout "I really don't like you." Davis
repeated his identification of [Petitioner] as the shooter at several other points
during his direct testimony. For example, Davis testified that he had immediately
identified [Petitioner] as the shooter to Trooper Lamon when the trooper arrived
at the scene and found Davis wounded on the kitchen floor. On crossexamination, Davis added: "I knew who shot me," and "I seen him shoot me .... "
Davis also testified that after he was shot, Amber Scott immediately came upstairs
to the kitchen from the basement. According to Davis, Shani Scott told Amber
that "[Petitioner] just shot Herbie-Mr. Herbie." Defense counsel raised a hearsay
objection to Davis relating what eyewitness Shani Scott told her sister, Amber.
Herbie Davis also testified without objection that Shani Scott told the troopers
who first arrived at the scene that [Petitioner] had shot Davis. Those statements
are not at issue in this appeal. The trial judge overruled the objection stating:
"Well, I think that would qualify as a present sense reaction to what the scene was
at the time." When the prosecutor added that Shani's statement to her sister
immediately after the shooting also qualified for admission as an excited
utterance, the trial judge agreed.

Wheeler, 36 A.3d at 313-14.
On direct appeal, the Delaware Supreme Court held that the Superior Court properly
admitted Davis' recitation of Shani's statement under Delaware Rule of Evidence 803(1) and (2)
as both a present sense impression and as an excited utterance. See Wheeler, 36 A.3d at 314.
8

The Delaware Supreme Court did not analyze the issue of Davis' testimony as a Confrontation
Clause violation, because Petitioner only presented the argument as an error of Delaware
evidentiary law. Petitioner also did not present the instant Confrontation Clause argument to the
Delaware Supreme Court on post-conviction appeal. Therefore, the Court concludes that
Petitioner's Confrontation Clause argument regarding Davis' testimony is unexhausted.
The Court further concludes that the instant Confrontation Clause argument is
procedurally defaulted, because any attempt by Petitioner to present this argument in a new Rule
61 motion would be time-barred. See Del. Super. Ct. Crim. R. 61(i)(l). Petitioner does not
allege, and the Court does not discern, any cause for Petitioner's default of this Claim. In the
absence of cause, the Court will not address the issue of prejudice, and Petitioner's failure to
provide new reliable evidence of his actual innocence precludes the applicability of the
miscarriage of justice exception to his default. For these reasons, the Court will deny as
procedurally barred Petitioner's contention that his confrontation rights were violated by Davis'
recitation of Shani Scott's excited utterance identifying Petitioner as the shooter.

2.

Detective Ryde's testimony

In support of its case against [Petitioner], the State introduced into evidence the
substance of out-of-court statements by three witnesses who were unavailable to
testify at trial: Shani Scott, Amber Scott, and Mary Zachery. Shani Scott was with
Davis when the shooting occurred and Amber Scott was downstairs in the
basement. Mary Zachery, [Petitioner's] landlord at a rooming house, was not
present at the crime scene.
Detective Ryde took statements from Shani and Amber approximately two hours
after the shooting, in a police vehicle outside of Tricia Scott's residence. Mary
Zachery's statement was taken at a later time. Over a defense objection, the
prosecutor asked Detective Ryde if, after interviewing Shani Scott for a recorded
statement, "did you have any reason to believe that a suspect other than the
defendant was involved?" Detective Ryde responded "no." The prosecutor then
asked, "[ w ]as she [Shani] able to provide you with the specific words that were
9

exchanged between Herbie and the defendant that she recalled hearing?"
Detective Ryde answered, "Yes."
Amber Scott was with [Petitioner] immediately before the shooting and rushed
upstairs to the kitchen after the shooting. The prosecutor asked Detective Ryde
whether Amber Scott provided him any information about what had occurred in
the Scott residence that night. After acknowledging that Amber had, Detective
Ryde was asked whether after speaking with Amber, he had any reason to believe
that any suspect other than [Petitioner] was involved with the shooting. Detective
Ryde responded that he did not.
Mary Zachery had been [Petitioner's] landlord. The prosecutor asked Detective
Ryde ifMary Zachery had any pertinent information to provide concerning the
shooting. Over a defense objection, Detective Ryde was permitted to answer that
she did, and that based on that information, he had no reason to believe that any
person other than Wheeler was involved in the shooting.
Shani Scott, Amber Scott, and Mary Zachery were asked questions by Detective
Ryde that were similar in format. Each question was the subject of a defense
objection at trial that was overruled. In each instance, the chief investigating
officer, Detective Ryde, was asked by the prosecutor if after speaking with a
particular named witness, he had any reason to believe that any suspect other than
[Petitioner] was involved in the 2009 shooting of Davis.

Wheeler, 36 A.3d at 315.
During its direct examination of Detective Ryde, the State did not ask Ryde whether each
of the three witnesses (Shani Scott, Amber Scott, Mary Zachery) said they believed Petitioner
shot Davis. See Wheeler, 36 A.3d at 317. Rather, the State asked Ryde if the three witnesses
identified anyone other than Petitioner as the shooter, to which Ryde responded negatively. Id.
On direct appeal, the Delaware Supreme Court concluded that Detective Ryde's testimony
violated Delaware Rule of Evidence 802 because it constituted improper indirect hearsay
testimony. See Wheeler, 36 A.3d at 317. The Delaware Supreme Court also held that the
admission of Detective Ryde's testimony violated the Confrontation Clause of the Sixth
Amendment, but that the admission was harmless beyond a reasonable doubt. Id. at 317-21.

10

Since the Delaware Supreme Court adjudicated the merits of Confrontation Clause issue
presented in the second contention of Claim One, the Court must review the Delaware Supreme
Court's decision under § 2254(d) to determine if it 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." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36 (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 is unavailable to testify and the defendant
had a prior opportunity for cross-examination. See Crawford, 541 U.S. at 59, 60 n. 9; 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 which the declarant would objectively foresee
might be used in the investigation or prosecution of a crime. See United States v. Hinton, 423
F.3d 355, 360 (3d Cir. 2005); Davis, 547 U.S. at 822.
A violation of a defendant's rights under the Confrontation Clause does not necessarily
require reversal. Rather, a Confrontation Clause violation is subject to a harmless error analysis.

See Ali v. Adm'r New Jersey State Prison,_ F. App'x _ , 2017 WL 89016, at *2 (3d Cir. Jan.
10, 2017). "The test for whether a federal constitutional error [such as a Confrontation Clause
violation] was harmless depends on the procedural posture of the case." Davis v. Ayala, 135
S.Ct. 2187, 2197 (2015). For instance, on direct appeal, a court assessing the prejudicial impact
of a constitutional error in criminal trial must apply the harmless error standard articulated in

11

Chapman v. California, 386 U.S. 18, 24 (1967). See Davis, 135 S.Ct. at 2197. In contrast, on
habeas review, a court assessing the prejudicial impact of a constitutional error in a state criminal
trial must apply the harmless error standard articulated in Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993). See Davis, 135 S.Ct. at 2197; Fry v. Pliler, 551 U.S. 112, 117-122 (2007)
(explaining that the Brecht harmless error standard of review subsumes the standards announced
in AEDPA); Bond v. Beard, 539 F.3d 256, 275-76 (3d Cir. 2008) (explaining that F1y instructs
federal courts to conduct an independent harmless error analysis). Pursuant to Brecht, a court
must determine if the trial error at issue "had substantial and injurious effect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 637; see also Ditch v. Grace, 479 F.3d 249,
256 (3d Cir. 2007). The "crucial inquiry is the impact of the error on the minds of the jurors in
the total setting." Hassine v. Zimmerman, 160 F.3d 941, 955 (3d Cir. 1998).
Whether a Confrontation Clause violation is harmless beyond a reasonable doubt under

Brecht depends on several factors, including "the importance of the witness' testimony in the
prosecution's case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's
case." Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see Ali, 2017 WL 89016, at *2.
Under the Brecht standard, a state court's harmlessness determination still has significance. See

Davis, 135 S.Ct. at 2198. Consequently, if a state appellate court has concluded, consistent with
the Chapman standard, that a federal constitutional error is harmless beyond a reasonable doubt,
AEDP A's § 2254(d) and the "actual prejudice" requirement articulated in Brecht dictate that
deference be given to the state court's decision. Id. at 2199. However, "[i]f, after reviewing the

12

trial record, [the court] is in 'grave doubt' as to whether the error had a substantial and injurious
effect or influence in determining the jury's verdict, such error is not harmless irrespective of
whether the State could theoretically sustain a conviction without the erroneously admitted
evidence." O'Neal v. McAninch, 513 U.S. 432, 436 (1995); see also Yohn v. Love, 76 F.3d 508,
523 (3d Cir. 1996) ("The correct inquiry is whether the error had a substantial influence on the
verdict despite sufficient evidence to support the result apart from the error.").

In this case, because neither party challenges the Delaware Supreme Court's
determination that the admission of Detective Ryde's testimony violated Petitioner's rights under
the Confrontation Clause, the Court will limit its analysis to determining if the Delaware
Supreme Court reasonably applied clearly established federal law in holding that the
Confrontation Clause violation was harmless. After applying the Van Arsdall factors to
Detective Ryde's testimony, the Court concludes that any Confrontation Clause error arising
from the admission ofRyde's testimony was harmless. Davis' testimony was more compelling
than Ryde's testimony, considering that Davis was the victim and knew Petitioner well. Ample
testimonial and ballistics evidence2 supported the State's case and corroborated the main points
ofRyde's testimony, especially Davis' particularly compelling eyewitness identification of
Petitioner. See Wheeler, 36 A.3d at 321. Additionally, there was no evidence contradicting the
State's case. There was no evidence supporting a conclusion that anyone else had any motive to
shoot Davis. Finally, the State did not refer to Detective Ryde's inadmissible negative responses
during its closing argument but, instead, chose to highlight the fact that "[n ]o information, no

2

At the shooting scene, the Delaware State Police found a total of six shell casings. A forensic
firearn:ls examiner testified that the six shell casings were all fired from the same weapon, a 9
mm semiautomatic. See Wheeler, 36 A.3d at 313 n.l.
13

other evidence collected pointed to anybody else but that man." (D.I. 6-4 at 44) After viewing
these factors together, the Court concludes that the Delaware Supreme Court reasonably held that
Detective Ryde's three inadmissible negative responses added little to the State's case. The
Court concludes that the Delaware Supreme Court reasonably held that Detective Ryde's
inadmissible responses were cumulative to Davis' detailed identification at trial of Petitioner as
the person who shot him and to the admissible shooter-identification statement Shani Scott made
to her sister Amber. 3 See Wheeler, 36 A.3d at 321; (D.I. 6 at 8, 66-99; D.I. 6-1at8-53, 58-60;
D.I. 6-3 at 63-67) Thus, the Court is not in "grave doubt" as to whether the tri~al court's
erroneous admission of Detective Ryde's testimony had a substantial and injurious effect or
influence in determining the jury's verdict. Accordingly, the Court will deny the Confrontation
Clause argument in Claim One.

B. Claims Two and Three: Procedurally Barred
In Cfaim Two, Petitioner argues that he was deprived of a fair trial because the State
failed to tum Davis' taped police statement over to the defense, which prevented defense counsel
from effectively cross-examining Davis. In Claim Three, Petitioner asserts that the State
engaged in prosecutorial misconduct during its closing argument by making improper remarks
and vouching for the credibility of state witnesses. Specifically, he contends that: (1) the State
"suggested [throughout the course of the trial] that Herbie Davis 'witnessed' [Petitioner] go out
the back door, which contradicts Herbie Davis' earlier testimony [that Petitioner] went out the
back door, came back in, then went downstairs, that's when Davis put on his sneakers and went

3

As previously explained, Shani's statement to Amber identifying Petitioner as the shooter was
admissible as a present sense impression under D.R.E. 803(1) and as an excited utterance under
D.R.E. 803(2). See Wheeler, 36 A.3d at 315.
14

outside on the front porch to smoke a cigarette" (D.I. 4 at 18); (2) the State used the phrase "we
know" four times during closing argument (D.I. 4 at 19); and (3) the State said in closing,
"[Petitioner] shot him," and implied to the jury that they could infer intent from the fact that
Petitioner pulled the trigger (D.I. 4 at 20).
The record reveals that Petitioner did not present Claims Two and Three as free-standing
prosecutorial misconduct/constitutional violations to the Delaware Supreme Court. Rather, in
his Rule 61 proceeding, Petitioner argued that appellate counsel was ineffective for failing to
raise Claim Two and the second allegation of Claim Three on direct appeal, and he did not
present the first and third allegations of Claim Three to the Delaware Supreme Court. Presenting
a constitutional violation in the context of an ineffective assistance of counsel argument does not
exhaust state remedies for the underlying constitutional claim. See Willis v. Vaughn, 48 F.
App'x 402, 406 (3d Cir. 2002). Since, at this juncture, a Rule 61 motion raising Claims Two and
Three would be time-barred by Delaware Superior Court Criminal Rule 61(i)(l), the Court must
treat the Claims as technically exhausted but procedurally defaulted.
Petitioner attempts to establish cause by blaming appellate counsel for failing to raise
Claims Two and Three 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 the attorney's error amounted to
constitutionally ineffective assistance. See Murray, 477 U.S. at 488-89. In tum, an ineffective
assistance of counsel claim that is itself procedurally defaulted cannot constitute cause to excuse
a petitioner's default of the underlying substantive claim. See Edwards v. Carpenter, 529 U.S.
446, 453-54 (2000). As discussed later in this Opinion, Petitioner procedurally defaulted his

15

argument regarding appellate counsel's failure to present Claim Three (1) and (3) to the
Delaware Supreme Court, and appellate counsel's failure to present Claims Two and Three (2)
on direct appeal did not amount to constitutionally ineffective assistance. See inji-a at 23-25.
Therefore, Petitioner has failed to establish appellate counsel's performance as cause for his
default of Claims Two and Three.
Given Petitioner's failure to establish cause, the Court will not address the issue of
prejudice. 4 Moreover, Petitioner's failure to provide new reliable evidence of his actual
innocence precludes the application of the miscarriage of justice exception to excuse his default.
Accordingly, the Court will deny Claims Two and Three as procedurally barred from federal
habeas review.
C. Claim Four: Ineffective Assistance of Defense Counsel
Next, Petitioner asserts that defense counsel provided ineffective assistance by: (1) failing
to consult a medical expert or otherwise investigate or challenge Davis' ability to turn around
and identify Petitioner as the shooter after being shot in the spine; (2) failing to object to the
State's use of the phrase "we know" during closing argument; (3) failing to move to sever the
PFBPP and PABPP charges; and (4) failing to obtain or review the ballistics expert's report
before cross-examining that expert. The Delaware Supreme Court denied as meritless all of the
allegations in Claim Four. Therefore, Claim Four will only warrant relief ifthe Delaware
Supreme Court's decision was either contrary to, or an unreasonable application of, clearly
established federal law.

4

Nevertheless, Petitioner cannot establish that he was prejudiced by the State's failure to tum
over Davis' taped police statement because the record indicates that no such tape exists. See
Wheeler, 2015 WL 6150936, at*4.
16

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. See 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 unprofessional errors, the result of the proceeding would have
been different." Id. at 694. A reasonable probability is a "probability sufficient to undermine
confidence in the outcome." Id.
Finally, in order to sustain an ineffective assistance of counsel claim, a petitioner must
make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
See Wells v. Petsock, 941F.2d253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885,
891-92 (3d Cir. 1987). Although not insurmountable, the Strickland standard is highly
demanding and leads to a strong presumption that the representation was professionally
reasonable. See Strickland, 466 U.S. at 689.
Turning to the first prong of the§ 2254(d)(l) inquiry, the Court notes that the Delaware
Supreme Court correctly identified the Strickland standard applicable to Petitioner's ineffective
assistance of counsel allegations. Consequently, the Delaware Supreme Court's decision was not
contrary to clearly established federal law. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill
state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a
prisoner's case [does] not fit comfortably within§ 2254(d)(l)'s 'contrary to' clause").

17

The Court's inquiry is not over, however, because it must also determine ifthe Delaware
Supreme Court reasonably applied the Strickland standard to the facts of Petitioner's case.
When performing this inquiry, the Court must review the Supreme Court's decision with respect
to Petitioner's ineffective assistance of counsel claim through a "doubly deferential" lens. 5
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. And 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. Failure to investigate effect of injury on Davis

According to Petitioner, if defense counsel had consulted with an expert before crossexamining Davis, counsel could have impeached Davis' testimony by questioning Davis' ability
to tum around and identify Petitioner after he had been shot in the spine and became paralyzed.
This argument does not warrant relief. First, Davis was able to recognize Petitioner's voice
because he and Petitioner were well-acquainted. See Wheeler v. State, 2011 WL 6431452, at *5-

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).

5

18

6, 8 (State's Ans. Br., Dec. 8, 2011). Second, Petitioner's contention about the type of
information a medical expert would have provided to defense counsel is pure speculation
because he does not identify any specific medical expert who would have substantiated his
assertion that Davis could not have turned around to identify him after the shooting. Given these
circumstances, the Court concludes that the Delaware Supreme Court reasonably applied
Strickland when holding that Petitioner's unsupported contention "does not overcome the strong
· presumption that trial counsel's representation was reasonable or show a reasonable probability
of a different outcome at trial." Wheeler, 2015 WL 6150936, at *3.
2. Failure to object to prosecutorial misconduct
In his second ·assertion of Claim Four, Petitioner contends that defense counsel should

have objected to the State's use of the phrase "we know" during closing argument as constituting
improper vouching. Here is the relevant excerpt from the State's closing argument:
What does he [Petitioner] do, then? He goes outside, the State would suggest, to
go get his gun, or he got it when he went down into the basement, and came back
up, but we know he did get a gun. And we know he pulled it out. And we know
he shot the gun six times at Herbie Davis, striking him four times. We also know
that all of those shots came from the same gun.
Wheeler, 2015 WL 6150936, at *4.
In Petitioner's Rule 61 proceeding, the Superior Court denied Petitioner's instant

argument for failing to establish prejudice because, "[g]iven the abundance of eyewitness
evidence in this case any prejudice suffered is harmless as noted by the [Delaware] Supreme
Court on direct appeal." (D.I. 20-4 at 141) The Delaware Supreme Court affirmed that decision
on post-conviction appeal, opining that,
[e]ven assuming the [State's] statements constituted impermissible vouching
rather than logical inferences from the evidence at trial and [Petitioner] could
19

satisfy the first prong of Strickland, [Petitioner] has not established a reasonable
probability that the outcome of the proceedings would have been different given
the record in this case, including Davis' "emphatic" and "compelling"
identification of [Petitioner] as the person who shot him.
Wheeler, 2015 WL 6150936, at *4.

As explained by the Third Circuit,
[v]ouching is a type of prosecutorial misconduct. It constitutes an assurance by
the prosecuting attorney of the credibility of a government witness through
personal knowledge or by other information outside of the testimony before the
jury. In order to find vouching, two criteria must be met: (1) the prosecution must
assure the jury that the testimony of a Government witness is credible, and (2) this
assurance must be based on either the prosecutor's personal knowledge or other
information that is not before the jury.
Lam v. Kelchner, 304 F.3d 256, 271 (3d Cir. 2002) (internal citations omitted). When viewed in

context with this definition, the State'-s "we know" statements did not amount to improper
vouching. 6 Instead, the statements appear to be a logical reiteration of the evidence presented at
trial, not an attempt to establish the credibility of the State's witnesses. See, e.g., United States v.
Bentley, 561 F.3d 803, 812 (8th Cir. 2009) ("Use of 'we know' and 'I submit' is not plain error if

it is used 'to refer the jury to the government's evidence and to summarize the government's case
against the defendants."'). The "we know" statements occurred well into the State's closing
argument and after the State had summarized the identification evidence. Their use was not in
the context of the identification argument, but in the context that the evidence, as previously
argued, established the elements of attempted first degree murder.

6

Which is not to say that the "we know" rhetoric is appropriate for a prosecutor. It is not. A
prosecutor's use of "we" includes the prosecutor. A prosecutor should not be telling a jury what
the prosecution knows. In this case, however, the use of "we know" did not allude to any extrarecord knowledge.
20

Nevertheless, even ifthe "we know" statements were improper, Petitioner has failed to
demonstrate a reasonable probability that the outcome of his trial would have been different but
for defense counsel's failure to object to those statements. Davis, who knew Petitioner well,
provided eyewitness testimony describing how Petitioner shot him. Corporal Lamon testified
that Davis told him that Petitioner shot him (D.I. 6-1 at 58), and Detective Ryde corroborated
that Davis indicated Petitioner was the shooter (D.I. 121-2 at 432-434, 449). The jury was
presented with a stipulation that Petitioner was prohibited from owning or possession a firearm
and/or ammunition after having been convicted of a felony or crime of violence involving
physical injury. (D.I. 21-2 at 372) An expert provided detailed ballistics evidence during the
trial. Given the nature of the offense, the eye-witness testimony, and the ballistics evidence,
Petitioner cannot demonstrate a reasonable probability that the outcome of his criminal trial
would have been different but for defense counsel's failure to object to the "we know"
statements. Therefore, the Court concludes that the Delaware Supreme Court reasonably applied

Strickland in denying the instant ineffective assistance of counsel contention.
3. Failure to move to sever the charges of PFBPP and PABPP

Petitioner contends that he was prejudiced by defense counsel's failure to sever the
PFBPP and P ABPP charges because proceeding with both charges allowed the jury to learn that
he was a person prohibited from possessing a firearm. The Delaware Supreme Court rejected
this argument on post-conviction appeal, primarily because the "parties stipulated at trial that
Petitioner was prohibited from possessing a firearm after having been convicted of a felony or a
crime of violence involving physical injury." Wheeler, 2015 WL 6150936, at *3. The Delaware
Supreme Court also held that, "[ e]ven if stipulating to [Petitioner's] person prohibited status

21

rather than filing a motion to sever was professionally unreasonable," Petitioner could not
establish prejudice because Davis knew Petitioner well and his identification of Petitioner was
compelling. Id.
After considering the record, and viewing the Delaware Supreme Court's decision
through the doubly deferential lens applicable on habeas review, the Court concludes that the
Delaware Supreme Court reasonably applied Strickland in concluding that Petitioner failed to
demonstrate sufficient prejudice. Accordingly, the Court will deny this allegation of Claim Four
for failing to satisfy§ 2254(d).
4. Failure to prepare for cross-examination of the State's ballistics expert
In his fourth allegation of Claim Four, Petitioner argues that defense counsel provided
ineffective assistance because he cross-examined the State's ballistics expert without first
obtaining and reviewing the expert's report. As noted by the Delaware Supreme Court on postconviction appeal, the record reflects that the ballistics expert's report was admitted as a trial
exhibit prior to defense counsel's cross-examination of the expert, but there is no indication that
defense counsel received and reviewed the report prior to said cross-examination. See Wheeler,
2015 WL 6150936, at *3. However, the Delaware Supreme Court held that defense counsel did
not perform deficiently because: (1) Petitioner did not identify which information in the report
defense counsel should have cross-examined the expert on; (2) the State's case focused on
eyewitness identification, not ballistics testimony; (3) on cross-examination, defense counsel
elicited the expert's testimony that he did not know who shot Davis and that it is possible to
leave a fingerprint on a shell casing; and (4) during closing argument, defense counsel

22

highlighted that there was no evidence of Petitioner's fingerprints appearing on any of the shell
casings. Id. at *3.
The Court concludes that the Delaware Supreme Court's decision involved a reasonable
application of Strickland, because Petitioner cannot establish a reasonable probability that the
outcome of his trial would have been different but for defense counsel's alleged failure to read
the expert's report prior to cross-e;irnmining him. For instance, the State's ballistics expert
testified that the six shell casings found at the scene were fired from the same semi-automatic
weapon, but he did not connect Petitioner to the gun, shell casings or shooting. See Wheeler,
2015 WL 6150936, at *3. The case against Petitioner was based on substantial eyewitness
testimony, and the ballistic expert's testimony merely corroborated that eyewitness testimony.
For these reasons, the Court will deny the last allegation in Claim Four.

D. Claim Five: Ineffective Assistance of Appellate Counsel
In Claim Five, Petitioner asserts two appellate counsel ineffective assistance allegations.
First, he contends that appellate counsel failed to argue that the State engaged in prosecutorial
misconduct by (1) misstating during its cross-examination of Davis what Davis said about
witnessing Petitioner's exit through the back door; (2) using the phrase "we know" four times
during closing argument; and (3) saying "[Petitioner] shot him [Davis]" during closing argument.
Second, Petitioner asserts that appellate counsel failed raise the issue of the State's failure to tum
over Davis' taped statement.
On post-conviction appeal, Petitioner only presented to the Delaware Supreme Court
appellate counsel's failure to object to the second instance of prosecutorial misconduct involving
the "we know" statements. (D.I. 21-3 at 1-16) Therefore, he did not exhaust state remedies for

23

his allegations that appellate counsel was ineffective for not presenting the first and third
aforementioned instances of prosecutorial misconduct. Since an attempt to raise these
allegations in a new Rule 61 motion would be time-barred under Delaware Superior Court
Criminal Rule 61(i)(l), the Court must treat these allegations as technically exhausted but
procedurally defaulted.
Petitioner does not assert cause for this default and, therefore, the Court will not address
the issue of prejudice. In addition, the miscarriage of justice exception does not apply because
Petitioner has not provided new reliable evidence of his actual innocence. Hence, the Court will
deny as procedurally barred Petitioner's contention that appellate counsel provided ineffective
· assistance by failing to raise on direct appeal his first and third allegations of prosecutorial
misconduct.
However, Petitioner did present on post-conviction appeal his allegation that appellate
counsel was ineffective for not challenging the State's four "we know" statements during closing
argument, and for not raising the issue of the State's failure to tum over Davis' taped statement.
The Delaware Supreme Court denied these arguments as meritless. Thus, 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.
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, 7 and an

7

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 the specter of being labeled ineffective).
24

attorney is not 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).
To begin, the Court concludes that the Delaware Supreme Court's decision was not
contrary to clearly established federal law, because it cited and applied the proper Strickland
standard when denying the two remaining"ineffective assistance of appellate counsel claims. As
set forth below, the Court also concludes that the Delaware Supreme Court's decision involved a
reasonable application of Strickland.
1. Failure to raise issue of State's improper "we know" statements

The Court has already denied Petitioner's allegation that trial counsel provided
.ineffective assistance by failing to object that the State's "we know" statements constituted
prosecutorial misconduct. See supra at 19-21. For the same reasons, the Court concludes that
appellate counsel's failure to raise this issue of prosecutorial misconduct on appeal did not
amount to ineffective assistance.

2. Failure to argue the State withheld exculpatory material
Petitioner asserts that appellate counsel should have argued on direct appeal that the State
violated Jencks v. United States, 353 U.S. 657 (1957) and the Delaware rules of discovery
because it did not turn Davis' taped statement over to the defense before Davis was crossexamined. The record reveals that there is no tape of Davis' statement. Therefore, the Delaware
Supreme Court reasonably applied Strickland in holding that appellate counsel was not
ineffective for failing to raise a factually baseless argument.

E. Claim Six: Denial of Speedy Trial Right
In his final Claim, Petitioner argues that he was denied his constitutional right to a speedy

25

trial. Petitioner raised this argument in his Rule 61 proceeding. The Superior Court denied the
argument as procedurally barred under Delaware Superior Court Rule 61(i)(3) due to Petitioner's
failure to raise the issue at trial. Since Petitioner did not challenge the Superior Court's decision
on post-conviction appeal, the instant speedy trial violation claim is unexhausted. At this
juncture, a new Rule 61 motion raising the speedy trial argument would be time-barred under
Rule 61(i)(l). Thus, the Court must treat the Claim as technically exhausted but procedurally
defaulted.
Petitioner attempts to establish cause by blaming his post-conviction appellate counsel
for not raising the instant speedy trial claim on post-conviction appeal. This argument is
unavailing. When his appointed post-conviction counsel filed a motion to withdraw from
representing Petitioner on post-conviction appeal, Petitioner was given an opportunity to present
any claims he wanted. Although Petitioner did add several other claims, he did not add a speedy
trial claim. Therefore, post-conviction appellate counsel's actions do no provide cause for the
instant default, and Petitioner does not provide any other reason.
In the absence of cause, the Court will not address the issue of prejudice. The Court also

will not excuse the default under the miscarriage of justice exception, because Petitioner has not
provided new reliable evidence of his actual innocence. Hence, the Court will deny Claim Six as
procedurally barred from habeas review.
IV.

PENDING MOTION
Petitioner filed a Motion for the Appointment of Counsel during the pendency of this

proceeding. (D.I. 27) Given the Court's decision to deny the Petition, the Court will dismiss the
Motion for the Appointment of Counsel as moot.

26

V.

CERTIFICATE OF APPEALABILITY

A district court issuing a final order denying a § 2254 petition must also decide whether
to issue a certificate of appealability. See 3d 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); Slackv.

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.
VI.

CONCLUSION

·For the reasons discussed, the Court concludes that the Petition must be denied. An
appropriate Order will be entered.

27