Brown v. Pierce et al
Filing
28
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/25/19. (sar)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANZARA BROWN,
Petitioner,
Civil Action No. 16-70-LPS
v.
DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
MEMORANDUM OPINION
Anzara Brown. Pro se Petitioner.
Kathryn J. Garrison, Deputy Attorney General of the Delaware Department of Justice, Wilmington,
Delaware. Attorney for Respondents.
March 25, 2019
Wilmington, Delaware
1
Warden Dana Metzger replaced former Warden David Pierce, an original party to the case.
R. Civ. P. 2S(d).
Sei:'
Fed.
conviction because that sentence should have merged with Petitioner's sentence for his drug dealing
conviction. (D.I. 14-14 at 1-7) The case was returned to the Delaware Supreme Court, which
affirmed the remainder of Petitioner's convictions and sentence on June 17, 2015. See Brown v. State,
117 A.3d 568, 581 (Del. 2015).
In September 2015, Petitioner filed a motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 11 at 3) The Superior Court denied the
Rule 61 motion on April 6, 2018. See Brown, 2018 WL 1702888, at *10. The Delaware Supreme
Court affirmed that judgment on post-conviction appeal in November 2018. See Brown v. State, 2018
WL 6181657, at *4 (Del. Nov. 26, 2018).
III.
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. See 28 U.S.C. § 2254(b);
O'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)(1).
2
The exhaustion requirement is based on principles of comity, requiring a petitioner to give
"state courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State's established appellate review process." O'Sullivan, 526 U.S. at 844-45; 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. Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); see also Castille v. Peoples,
489 U.S. 346, 351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted,
such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160; 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; Hams 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."
Murrqy v. Carrier, 477 U.S. 478,488 (1986). To demonstrate actual prejudice, a petitioner must show
3
"that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates
that failure to review the claim will result in a fundamental miscarriage of justice. See Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). A petitioner
demonstrates a miscarriage of justice by showing a "constitutional violation has probably resulted in
the conviction of one who is actually innocent." Murrqy, 477 U.S. at 496. Actual innocence means
factual innocence, not legal insufficiency. See Bouslry v. United States, 523 U.S. 614, 623 (1998). In
order to establish actual innocence, the petitioner must present new reliable evidence - not
presented at trial - that demonstrates "it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537-38 (2006); see
also Sweger v. Chesnry, 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 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. Tqylor, 529 U.S. 362,412 (2000);Appel v. Horn, 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. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009).
4
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." Harrington v. Richter, 562 U.S. 86, 98
(2011). As explained by the Supreme Court, "it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to the
contrary." Id. at 99.
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)(1). 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); 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(cl) (2) applies to factual decisions).
IV.
DISCUSSION
Petitioner timely filed the § 2254 Petition presently pending before the Court, which asserts
grounds for relief: (1) the police violated Petitioner's Fourth and Fourteenth Amendment rights
under the Delaware and United States Constitutions by admitting the evidence obtained during a
pretextual police stop and search of his vehicle; (2) (a) the State failed to establish a chain of custody
for the evidence obtained from the police stop under Delaware law; (b) the admission of that drug
evidence violated his Fourth Amendment/ due process rights and rendered his trial fundamentally
unfair; and (c) the State violated Bracfy v. Maryland, 373 U.S. 83 (1963) by failing to disclose the
misconduct by OCME employees; and (3) the Superior Court violated the Delaware Constitution
and the Fourth Amendment of the United States Constitution by granting the wiretap warrant
without probable cause.
5
A. Claims One and Three: Search and Seizure
In Claim One, Petitioner contends that the admission of the evidence obtained from the
vehicle stop violated the Delaware Constitution and the Fourth Amendment of the United States
Constitution. More specifically, he asserts that that the evidence obtained from his vehicle during a
traffic stop should have been suppressed on the basis that the police violated his Fourth
Amendment rights by performing the search without probable cause. In Claim Three, Petitioner
contends that the Superior Court violated the Delaware Constitution and the Fourth Amendment of
the United States Constitution by granting the wiretap warrant without probable cause. For the
following reasons, the Court concludes that Claims One and Three do not warrant relief.
First, portions of Claims One and Three assert that the trial court should have suppressed
the evidence obtained from the traffic stop and the wiretap because the police did not comply with
the Delaware Constitution and 11 Del. C. § 2407(c)(1). These arguments assert errors of Delaware
law that are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991 ). Therefore, the Court will deny the state law arguments in Claims One and Three for failing
to assert a proper basis for federal habeas review.
Claims One and Three also assert that the admission of the evidence obtained during the
traffic stop and the wiretap violated Petitioner's Fourth Amendment rights. Pursuant to Stone v.
Powel!, 428 U.S. 465,494 (1976), a federal habeas court cannot review a Fourth Amendment claim if
the petitioner had a full and fair opportunity to litigate the claim in the state courts. See also Wright v.
West, 505 U.S. 277,293 (1992). A petitioner is considered to have had a full and fair opportunity to
litigate such claims if the state has an available mechanism for suppressing evidence seized in or
tainted by an illegal search or seizure, irrespective of whether the petitioner actually availed himself
of that mechanism. See U.S. ex reL Hickry v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1980); Bqyd v. MintZ; 631
6
F.2d 247,250 (3d Cir. 1980). Conversely, a petitioner has not had a full and fair opportunity to
litigate a Fourth Amendment claim, and therefore avoids the Stone bar, if the state system contains a
structural defect that prevented the state court from fully and fairly hearing that Fourth Amendment
argument. See Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). However, "an erroneous or
summary resolution by a state court of a Fourth Amendment claim does not overcome the [Stone]
bar." Id.
In this case, Petitioner filed pre-trial motions to suppress the evidence obtained during the
traffic stop and from the wiretap pursuant to Rule 41 of the Delaware Superior Court Rules of
Criminal Procedure. The Superior Court denied the motions after conducting a hearing. Petitioner
then challenged these decisions in his direct appeal to the Delaware Supreme Court, presenting
similar, if not identical, arguments to those raised in the instant Petition. The Delaware Supreme
Court rejected Petitioner's arguments as meritless and affirmed the Superior Court's judgment.
This record clearly demonstrates that Petitioner was afforded a full and fair opportunity to
litigate his Fourth Amendment claims in the Delaware state courts. Notably, Petitioner does not
(and cannot) allege that a structural defect exists in Delaware's criminal process relating to
consideration of search and seizure issues. The fact that Petitioner disagrees with these decisions
and/ or their reasoning is insufficient to overcome the Stone bar. Therefore, the Court will deny
Petitioner's Fourth Amendment claims.
B. Claim Two: Drug Evidence Chain of Custody
Claim Two in the original Petition explicitly asserts the following two arguments: (1) the
drug evidence was improperly admitted because the State failed to establish a chain of custody under
Delaware law; and (2) the admission of the drug evidence violated Petitioner's Fourth Amendment
rights. As part of his second argument, Petitioner contends that the arrest of the receiver at the
7
OCME for theft of drugs and trafficking drugs precluded the State from establishing a chain of
custody. Although the original Petition itself does not explicitly assert a Brac!J claim, Petitioner
raised a Brac!J claim to the Delaware Supreme Court on direct appeal after remand. (D.I. 14-15 at
12) Additionally, the Petition indicates that Petitioner still had a Rule 61 motion pending before the
Delaware Superior Court, but did not indicate the grounds raised therein. (D.I. 3 at 12)
When the State filed its Answer, it addressed the two arguments explicitly asserted in Claim
Two, and mentioned the pending Rule 61 motion, but did not otherwise mention the grounds
asserted in the Rule 61 motion or that motion's potential effect on this proceeding. Petitioner's Rule
61 motion and post-conviction appeal were ultimately decided in November 2018, while the instant
proceeding was still pending before the Court. Upon receiving notice of the Delaware Supreme
Court's disposition (D.I. 16; D.I. 17), the Court issued an Order requesting the State to file the
records for Petitioner's Rule 61 proceeding (D.I. 18). The Order also provided the State with an
opportunity to amend its Answer to Claim Two to the extent its original Answer was affected by the
adjudication of Petitioner's Rule 61 motion. (D.I. 18) In its Amended Answer, the State asserts that
Petitioner also raises a "claim that the State courts erred in not granting his motion for new trial"
based on the systemic problems that existed at the OCME at the time of his trial, which "calls to
mind a Brac!J violation." (D.I. 25 at 4, 6) Given these circumstances, the Court construes Claim
Two as asserting a third argument, namely, that the State violated Brac!J by failing to provide
Petitioner with information about the systemic problems at the OCME. Based on the foregoing, the
Court will review all three sub-arguments contained in Claim Two.
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a. Chain of custody under Delaware law
Petitioner contends that the drug evidence was improperly admitted because the State failed
to establish a chain of custody under Delaware law. The Court will deny this sub-argument of Claim
Two for failing to assert an issue cognizable on federal habeas review.
b. Chain of custody/ due process
Petitioner also contends that the Superior Court's admission of the drug evidence violated
his Fourth Amendment rights, because the State failed to establish a chain of custody and prove his
guilt beyond a reasonable doubt, due to the discrepancy between the field test drug weight and the
OCME drug weight, and also because "the receiver at the OCME office was arrested for theft of
drugs and trafficking drugs." (D.I. 3 at 7) Although Petitioner generally cites to the Fourth
Amendment, he appears to be arguing that the failure to establish a chain of custody made the drug
evidence unreliable and, therefore, the admission of the drug evidence violated due process and
rendered his entire trial fundamentally unfair. It appears that Petitioner presented a version of this
argument in his Rule 61 motion, and the Superior Court denied it as procedurally barred by Rule
61 (i) (3) for failure to raise it in his criminal proceeding. See Brown, 2018 WL 1702888, at *7 (Del.
Super. Ct Apr. 6, 2018). However, since Petitioner did not present the argument to the Delaware
Supreme Court on post-conviction appeal, he did not exhaust state remedies for the instant due
process/ fundamental unfairness argument.
At this juncture, any attempt by Petitioner to present the due process/fundamental
unfairness argument to the Delaware state courts in a new Rule 61 motion would be denied as timebarred under Rule 61 (i) (1) and as a successive motion under Rule 61 (i) (2). Consequently, the instant
argument is technically exhausted but procedurally defaulted, meaning that the Court cannot review
9
the merits of the argument absent a showing of cause and prejudice, or that a miscarriage of justice
would occur if the Court did not review the claim.
Petitioner does not assert, and the Court cannot discern, any cause for his failure to present
this argument to the Delaware Supreme Court on direct or post-conviction appeal. In the absence
of cause, the Court does not need to address the issue of prejudice. Nevertheless, Petitioner cannot
demonstrate prejudice sufficient to excuse his default. As explained by the Delaware Supreme Court
in Petitioner's direct appeal,
[Petitioner] does not contest that the substance seized from him was
cocaine; indeed, he requested that a letter he wrote to his attorney be
placed on this Court's docket, in which he states, "I never contested
that it was not cocaine. I am contesting the fact that drugs has come
up missing." In that letter, [Petitioner] asserts that he was arrested with
over 29 grams of cocaine, more than any of the amounts suggested by
Sergeant Skinner, Sergeant Lloyd, Master Corporal Lavere, OCME, or
NMS. Even if that was true, all of the tests, and [Petitioner's] own
statements, demonstrate that [Petitioner] had more than 20 grams of
cocaine when he was arrested. Thus, by any count, [Petitioner]
committed a Tier 4 offense, the level for which [he] was charged and
convicted. The slight discrepancy among the measurements reported
by the police (21.2 grams), OCME (23.23 grams), and NMS (22.05
grams) would not have changed the result, and there was thus no
prejudice to [Petitioner].
The alleged lack of professionalism in evidence-handling by employees
of OCME, which has been the subject of investigations by the
Delaware State Police and Delaware Department of Justice, among
others, is deeply troubling, and we in no way want to suggest that this
Court does not take the problem seriously. But as we observed in State
v. Ira Brown, "there is no evidence that the OCME staff 'planted'
evidence to wrongly obtain convictions. Rather, the employees who
stole the evidence did so because it in fact consisted of illegal narcotics
that they could resell or take for personal use."
The revelation that OCME employees may have stolen drugs for their
own use or were sloppy in handling evidence in certain cases should
not result in the issuance of automatic get-out-of-jail-free cards to
defendants like [Petitioner]. Instead, we must focus on the specific
facts of each case, in light of the appropriate standard of review, to
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determine if a defendant was unjustly convicted. No unjust conviction
resulted here, because the Superior Court correctly held that there was
no rational probability that [Petitioner] was convicted on false
premises. The Superior Court properly found that the other evidence
of [Petitioner's] guilt-including his own admission that he possessed
and intended to sell over 20 grams of cocaine-was overwhelming.
Thus, the Superior Court was within its discretion to deny [Petitioner's]
motion for a new trial, and we affirm the Superior Court's judgment.
Brown, 117 A.3d at 581. This excerpt demonstrates that Petitioner cannot establish that the chain of
custody and the OCME issues "worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions." Notably, there is no evidence that the drugs
were tampered with, the record reveals that the discrepancies in the drug weights were argued to the
jury, and Petitioner himself admitted to police and in conversations captured on the wiretap that he
possessed and sold cocaine. The drugs were tested on two occasions in Petitioner's case (a police
field test and an OCME test), and re-tested in his former co-defendant's case (Galen Brooks). All
three sets of testing indicate that Petitioner had more than twenty grams of cocaine, either in the
form of crack or powder cocaine. (D.I. 14-22 at 15) Twenty or more grams of cocaine or a mixture
containing cocaine qualifies as a Tier 4 weight. In short, the overwhelming evidence against
Petitioner permitted a reasonable juror to find Petitioner guilty of drug dealing.
The miscarriage of justice exception also does not excuse Petitioner's procedural default,
because he has not provided any new reliable evidence of his actual innocence. Accordingly, the
Court will deny the due process/fundamental unfairness sub-argument in Claim Two as
procedurally barred.
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c.
Bradyviolation
Finally, Petitioner contends that the Delaware courts erred in not granting his motion for
new trial because the State violated Braqy by not disclosing the information about the systemic
problems at the OCME until after his trial.
The following history is relevant to the Court's analysis of the instant argument. In his
motion for new trial, Petitioner argued he should be granted a new trial because the State disclosed
to him after his trial that the courier of the drugs in his case had been suspended from the OCME
for irregularities in handling drug evidence and had also been arrested for trafficking in cocaine.
(D.I. 20-5 at 49) Before deciding the motion, the Superior Court judge in Petitioner's case waited
until after another Superior Court judge conducted a hearing in another case and made findings
about the extent of the problems at the OCME. See State v. Irwin, 2014 WL 6734821 (Del. 18, 2014).
Based on the findings in Irwin, the Superior Court in Petitioner's case concluded that drugs at the
OCME were being stolen for personal or other use, but they were not being planted to obtain false
convictions. (D.I. 20-5 at 51) In addition, the Superior Court held that the new evidence about the
OCME issues would have made no impact on the jury's verdict in Petitioner's case because of the
weight of the other evidence presented at trial. The "other evidence" included recordings of
Petitioner setting up the drug purchase, as well as Petitioner's Mirandized admission to police and his
admission in other recorded phone calls that he had cocaine and marijuana on him at the time of his
arrest and that he sold cocaine. (D.I. 20-5 at 51-53) The Superior Court denied Petitioner's motion
for new trial because the impeaching evidence of the OCME misconduct "was not of a nature that it
would have probably changed the result," as the evidence of Petitioner's guilt was "simply
overwhelming." (D.I. 14-12 at 4, 7)
12
The case returned to the Delaware Supreme Court on direct appeal. Before Petitioner filed
his supplemental opening brief, the State provided Petitioner with retesting results from NMS labs,
which confirmed that the substance found on Petitioner was over twenty grams of cocaine. See
Brown, 117 A.3d at 571-72, 575. Petitioner's appellate counsel filed a no-merit brief under Rule
26(c); one of Petitioner's hand-written arguments in that brief asserted that the State violated Braqy
by failing to disclose the misconduct by the OCME employees. (D.I. 14-15 at 12) The State moved
to strike the no-merit brief, and the Delaware Supreme Court granted that motion. (D.I. 14-18 at 4)
Petitioner's appellate counsel then filed a supplemental opening appellate brief, which did not assert
Petitioner's Braqy claim. (D.I. 14-20) The Delaware Supreme Court affirmed the Superior Court's
decision denying Petitioner's motion for new trial without mentioning Braqy, holding that the
Superior Court properly held the other evidence of Petitioner's guilt was overwhelming. See Brown,
117 A.3dat581.
Petitioner filed a Rule 61 motion, arguing that the State violated Braqy by failing to turn over
the information about the problems at the OCME. See Brown, 2018 WL 1702888, at *6. The
Superior Court denied the argument as procedurally barred under Delaware Superior Court Rule
61 (i)(4) because it was previously adjudicated in Petitioner's direct appeal. Id. The Delaware
Supreme Court affirmed that decision. See Brown v. State, 198 A.3d 176 (Table), 2018 WL 6181657,
at *4 (Del. Nov. 26, 2018).
Although a formerly adjudicated claim barred by Rule 61 (i) (4) is defaulted for Delaware state
court purposes, for the purposes of federal habeas review, the fact that the claim was formerly
adjudicated means that it was decided on the merits and should be reviewed under the deferential
AEDPA standard contained in§ 2244(d)(1). See Trice v. Pierce, 2016 WL 2771123, at*4 n.4 (D. Del.
May 13, 2016). Consequently, the Braqy sub-argument in Claim Two will only warrant habeas relief
13
if the Delaware state courts' 2 rejection of the argument was either contrary to, or an unreasonable
application of, clearly established federal law.
The Superior Court denied the instant Brac!J claim in Petitioner's Rule 61 motion as
procedurally barred under Rule 61(i)(4), but cited to and analyzed the substance of the argument
under Brac!J. See Brown, 2018 WL 1702888, at *8. Therefore, the Delaware Supreme Court's
affirmance of that decision was not contrary to clearly established federal law. Even if the Court
should use the Delaware Supreme Court's decision on direct appeal for the§ 2254(d)(1) inquiry,
rather than the Rule 61 decision, the Court still concludes that the Delaware Supreme Court's
appellate decision was not contrary to Brac!J. The Delaware Supreme Court's analysis of the
prejudice component of Petitioner's motion for new trial under Rule 33 was analogous to the
materiality analysis for a Brac!J violation. See Strickler v. Greene, 527 U.S. 263, 281 (1999) (noting
favorable evidence "is material if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different") (internal quotation
marks and citations omitted); Turner v. United States, 137 S.Ct. 1885, 1893 (2017) (noting petitioners
are entitled to new trial for Brac!J violation "only if they establish the prejudice necessary to satisfy
the 'materiality' inquiry") (internal quotation marks and citation omitted).
The Court also concludes that the Delaware state courts did not unreasonably apply Brac!J in
denying the instant argument. A violation of Brac!J occurs when the government fails to disclose
evidence materially favorable to the accused, including both impeachment evidence and exculpatory
2
The Delaware Supreme Court briefly adjudicated the merits of OCME evidence issue on direct
appeal but without referencing Brady. Both the Superior Court and Delaware Supreme Court
adjudicated the merits of the instant Brac!J Claim in Petitioner's Rule 61 proceeding, and their
reasoning provides further insight into the denial of the claim. Therefore, the Court refers to the
Delaware state courts as issuing the relevant decisions, rather than the Delaware Supreme Court
alone.
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evidence. See United States v. Baglry, 473 U.S. 667,676 (1985). Pursuant to Bracfy, "[p]rosecutors have
an affirmative duty 'to disclose [Bracfy] evidence ... even though there has been no request [for the
evidence] by the accused,' which may include evidence known only to police." Dennis v. Secy, Pa.
Dep't of Corrs., 834 F.3d 263,284 (3d Cir. 2016). "To comply with Bracfy, prosecutors must 'learn of
any favorable evidence known to the others acting on the government's behalf."' Id. In order to
prevail on a Bracfy claim, a petitioner must establish that: (1) the evidence at issue was favorable to
the accused, either because it was exculpatory or it had impeachment value; (2) the prosecution
suppressed the evidence, "either willfully or inadvertently"; and (3) the evidence was material. See
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Lambert v. Blackwell, 387 F.3d 210,252 (3d Cir. 2004).
A petitioner demonstrates materiality of the suppressed evidence by showing a "reasonable
probability of a different result." K;yles v. Whitlry, 514 U.S. 419,434 (1995). In tum, "a reasonable
probability of a different result is shown when the government's evidentiary suppression undermines
confidence in the outcome of the trial." Id
As previously explained, on direct appeal the Delaware Supreme Court rejected Petitioner's
argument that a new trial was warranted under Rule 33, for two reasons: (1) the newly discovered
evidence of the misconduct at the OCME was not of a nature that it would have probably changed
the result of the trial; and (2) the other evidence of Petitioner's guilt was overwhelming. See Brown,
117 A.3d at 580-81. Notably, the OCME misconduct did not involve planting evidence in order to
obtain wrongful convictions but, rather, involved employees stealing the evidence for resale or
personal use. See Brown, 117 A.3d at 581. In tum, the other evidence of Petitioner's guilt upon
which the Delaware Supreme Court based its decision included: (1) the re-testing of the substance
seized from Petitioner, confirming that the substance was cocaine; (2) the total weight of the drugs
was 22.08 grams, which was similar to the amount reported by the police officers after Petitioner's
15
arrest and was more than the 20 gram minimum required for a Tier 4 offense; (3) Petitioner's
Mirandized admission to possessing approximately 28 grams of cocaine with the intent to sell; (4) the
recorded phone calls between Brooks and Petitioner detailing their agreement that Petitioner would
purchase drugs at Brooks' residence; and (5) video surveillance that was consistent with the wiretap
discussion. See Brown, 117 A.3d at 575, 578, 581. After viewing the nature of the OCME
misconduct in context with the other overwhelming evidence of Petitioner's guilt, the Court
concludes that Petitioner has failed to demonstrate a reasonable probability that the result of his trial
would have been different if the State had disclosed OCME misconduct prior to his trial.
Accordingly, the Delaware Supreme Court's affurnance of the Superior Court's denial of Petitioner's
Rule 33 motion did not constitute an unreasonable application of Brac!J.
Nor did the Delaware state courts unreasonably apply Brac!J when denying Petitioner's Rule
61 motion. As explained by the Superior Court:
Unfortunately for [Petitioner], there is not a reasonable probability of
a different result if the State had complied with its Brac!J obligations
due to the overwhelming evidence presented at trial. At trial, the State
introduced the recorded phone calls between [Petitioner] and Brooks
which detailed an agreement between Brooks and [Petitioner] to
engage in a drug transaction at Brooks' residence. The video
surveillance admitted into evidence showed, consistent with the last
phone call between [Petitioner] and Brooks, [Petitioner] arriving at
Brooks' residence and interacting with Mr. Brooks. The surveillance
video also showed that approximately five minutes after arriving
[Petitioner] left Brooks' residence and then a minute later Brooks left
his residence.
Additionally, the State admitted into evidence [Petitioner's] own
statement to law enforcement.
In this statement, [Petitioner]
specifically admitted to possessing an ounce of cocaine and described
to law enforcement his intent to re-sell the drugs. Also during his
statement, [Petitioner] provided law enforcement his cell phone
number which matched the phone number used by the "then
unknown male" to arrange a drug transaction with Brooks.
16
Furthermore, the State introduced into evidence a recorded wiretap
phone call between [Petitioner] and Brooks that took place after
[Petitioner] was released from custody. During this call, [Petitioner]
could be heard describing his arrest and the seizure of the drugs. It is
also worth noting that the alleged cocaine recovered from Brown's
person was retested by NMS Labs and determined to be cocaine.
It is apparent that there was overwhelming evidence presented at trial.
As such it is highly unlikely that the State's disclosure of exculpatory
and impeachment information regarding the reliability of the OCME's
work product and employees would have changed the result. Thus,
this claim has no merit.
Brown, 2018 WL 1702888, at *9. This excerpt demonstrates that the Superior Court reasonably
applied Bracfy in concluding that the evidence of the OCME misconduct was insufficient to establish
the materiality necessary to find a Bracfy violation.
Accordingly, the Court will deny the Bracfy sub-argument in Claim Two for failing to satisfy
§ 2254(d).
V.
PENDING MOTION
In February 2019, Petitioner filed a Motion to Amend his Petition by adding a claim based
on Adams v. Governor of Delaware, 914 F.3d 827 (3d Cir. 2019), and Article IV,§ 3 of the Delaware
Constitution. 3 (D.I. 23) The new claim appears to assert an argument that his conviction is illegal
because all the judges in Delaware were appointed unconstitutionally and unconstitutionally engage
in policy making. (D.I. 23 at 2) Petitioner filed this Motion after the State had filed its Answer, and
the argument constitutes an entirely new claim that does not relate back to Petitioner's original
Petition. For these reasons, the Court will deny the Motion to Amend. See Fed. R. Civ. P. 15(a), (c);
United States v. Thomas, 221 F.3d 430, (3d Cir. 2000) ("Under Fed. R. Civ. P. 15(c), an amendment ...
Article IV, § 3 of the Delaware Constitution prohibits any political party to comprise more than a
"bare majority" of the seats in the Supreme Court or Superior Court, or in the Supreme Court,
Superior Court, and Court of Chancery combined.
17
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clariflying] or ampliflying] a claim or theory in the petition may, in the District Court's discretion,
relate back to the date of the petition if and only if the petition was timely filed and the proposed
amendment does not seek to add a new claim or to insert a new theory into the case.").
VI. 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); 28 U.S.C. § 2253(c)(2). A
certificate of appealability is appropriate when a petitioner makes a "substantial showing of the
denial of a constitutional right" by demonstrating "that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2); see also
Slack v. McDaniel, 529 U.S. 473,484 (2000).
The Court has concluded that the instant Petition does not warrant relief. Reasonable jurists
would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate of
appealability.
VII. CONCLUSION
For the reasons discussed, the Court concludes that the Petition must be denied. An
appropriate Order will be entered.
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