Collins v. Pierce et al

Filing 43

MEMORANDUM OPINION. Signed by Judge Gregory B. Williams on 3/28/2023. (etg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

SOLOMON COLLINS,
Petitioner,
Civil Action No. 16-751-GBW

V.

ROBERT MAY,Warden, and
ATTORNEY GENERAL OF THE

STATE OF DELAWARE,

Respondents.

Janet Bateman,First Assistant, Office ofthe Federal Public Defender for the District

ofDelaware. Attorney for Petitioner.

Maria T. Knoll, Deputy Attorney General ofthe Delaware Department of Justice,
Wilmington,Delaware. Attorney for Respondents.

MEMORANDUM OPINION^

March^l?,2023
Wilmington,Delaware

^This case was re-assigned to the undersigned’s docket on September 7,2022.

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,VI
Williams, District Judge:
Pending before the Court is Petitioner Solomon Collins’ (Petitioner) Motion
to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e)
(D.L 42), pertaining to the denial of his § 2254 Petition on February 7, 2022(See
D.L 40; D.L 41). The Rule 59(e) asks the Court to reconsider the dismissal of

Claims One(A), Two(A), and Three (A), as well as the decision to not issue a
certificate of appealability. (Id.) For the reasons that follow, the Court will grant
Petitioner’s Rule 59(e) Motion with respect to the prior denial of Claim One(A)

for failing to assert a prima facie due process violation, but deny Petitioner’s Rule
59(e) with respect to his other requests. Notably, Petitioner’s Petition (D.I. 18)
will again be denied.
I.

BACKGROUND

On October 8, 2009, Tommear Tinnin was shot to death

while sitting in the back seat of a parked car with his two
cousins and another young relative. The assailant fled the
scene and passed two bystanders, Violet Gibson and
Shakira Romeo. Gibson and Romeo met with Detective

Conner after the incident. They both identified [Petitioner'

as the shooter from a photo array. Detective Conner made
an audio recording of his interview with Gibson. He did
not record his interview with Romeo. Instead, he took

notes on his notepad and directly on the photo array he
presented to Romeo during the interview.
At trial, the testimony of Gibson and Romeo was
inconsistent with their prior statements to Detective
Conner. The State used 11 Del. C.§ 3507 to introduce their
out-of-court statements through Detective Conner during

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his testimony. The State also played the audio recording
of Gibson identifying [Petitioner] as the shooter, and
introduced into evidence the photo array Detective Conner
had written on reflecting Romeo's identification. During
his testimony, Detective Conner clarified that Gibson had
identified [Petitioner] as the shooter because the recording
identified the suspects by number rather than name.
Further, he testified that Romeo identified [Petitioner] as
the shooter and that he wrote notes regarding her
statements onto the photo array during the interview.

After an eight day trial, a jury found [Petitioner] guilty of
Murder First Degree, three counts of Reckless
Endangering First Degree, two counts of Possession of a
Firearm During the Commission of a Felony, and
Possession of a Deadly Weapon by a Person Prohibited.
On July 15, 2011, the Superior Court sentenced
Petitioner] to life imprisonment for the murder
conviction, and additional time for the remaining counts.

The Delaware Supreme Court] affirmed [Petitioner’s^
conviction on direct appeal in 2012. In 2013,[Petitioner
filed a motion for postconviction relief[“Rule 61 motion
alleging ineffective assistance of counsel. The Superior
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Court denied the motion and held that counsel was not

ineffective for failing to object, because admission of the
§ 3507 statements of both Romeo and Gibson had been
proper. [Petitioner] appealed the Superior Court's rulings
on the admission of each witness' § 3507 statement.
During the appeal, the State learned that there was a
discrepancy between the photo array that Romeo had used
to identify [Petitioner], which the State admitted at trial
(“State’s Exhibit 84”), and the copy that the State had sent
to [Petitioner’s] attorney during discovery. The word
“shooter” was written on State's Exhibit 84, but

Petitioner’s] copy did not have the word “shooter” on it.
At the parties'joint request,[the Delaware Supreme Courts
remanded the case to the Superior Court for a hearing to
explore the nature of the discrepancy between the photos
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and retained jurisdiction. [The Delaware Supreme Court^
declined to address [Petitioner’s] second argument at that
time, which pertains to Gibson's § 3507 statement, at the
time we issued the remand order.

On remand, the Superior Court held a hearing to address
the discrepancy. The State offered the testimony of
Detective Conner, the trial prosecutors, and the trial
defense attorney. The Superior Court found that (1)
Detective Conner added the word “shooter” to the original
photo array shown to Romeo after the discovery copy was
made for [Petitioner]; (2) the alteration made to the
original photo was not done in bad faith or in response to
the § 3507 issue that arose at trial; (3) Romeo identified
Petitioner] as the shooter during her interview with
Detective Conner; and(4)exclusive ofthe photo array, the
trial prosecutors and defense counsel were aware during
the pendency of the case that Romeo had identified
Petitioner] as the shooter and expected her to testify
consistent with that identification at trial.

Based on these findings, the Superior Court held that
Petitioner’s] ineffective assistance of counsel claim
failed. The court found that the issue of when Detective

Conner wrote the word “shooter” on the photo array was
immaterial because Romeo's statement still would have

been introduced as a § 3507 statement at trial. Therefore,
even iftrial counsel had noticed the discrepancy and raised
the issue, the outcome would have been the same. Further,
the Superior Court held that [Petitioner] could not show he
was prejudiced by the discrepancy because Romeo's
identification of [Petitioner] as the shooter was never
withheld from trial counsel. Therefore, trial counsel was
aware of Romeo's pretrial identification of[Petitioner] as
the shooter and could have expected testimony consistent
with that identification at trial.

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Collins V. State, 138 A.3d 475 (Table), 2016 WL 2585782, at *2-3 (Del. May 2,

2016). On appeal after remand, the Delaware Supreme Court affirmed the
Superior Court’s denial of Petitioner’s Rule 61 motion. Collins, 2016 WL
2585782, at *4-5.

Petitioner filed a habeas Petition in this Court, asserting the following six

Claims:(1)(A) the Delaware Supreme Court erred when, in its Rule 61 appellate
decision after remand, it held that the “newly discovered evidence” of the State

Exhibit 84 and Detective Conner’s related false testimony regarding the alteration

was not prejudicial and did not amount to a denial of Petitioner’s due process right
to a fair trial; and(B)the trial court erred by failing to exclude Detective Conner’s

testimony regarding Ms. Romeo’s statements as an inadmissible interpretive
narrative under 11 Del. C. § 3507;(2)the State engaged in prosecutorial

misconduct during Petitioner’s trial by:(a) admitting into evidence State Exhibit
84 and Detective Collins’ related false testimony;(b)arguing facts during the

opening statement that were not produced during the trial; and (c) providing
improper vouching during the closing argument;(3)ineffective assistance oftrial
counsel;(4)ineffective assistance of appellate counsel;(5)the trial court erred by
giving an erroneous Allen ]nry instruction; and(6)the cumulative effect of all of
these errors requires relief. (D.I. 18) The Honorable Leonard P. Stark denied the
Petition in its entirety and, relevant to the instant Rule 59(e) Motion, denied

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Claims One(A)and Two(A)as meritless and Claim Three(A)for failing to

satisfy § 2254(d). (D.L 40; D.I. 41) Judge Stark also declined to issue a
certificate of appealability for any Claims.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 59(e) is “a device [] used to allege legal
»2

error,

and may only be used to correct manifest errors of law or fact or to present

newly discovered evidence. See Howard Hess Dental Labs, Inc. v. Dentsply Int 7
Inc., 602 F.3d 237, 251 (3d Cir. 2010). The scope of a Rule 59(e) motion is
extremely limited. See Blystone v. Horn,664 F.3d 397,415(3d Cir. Dec. 22,
2011); see also Brambles USA Inc. v. Blocker, 735 F. Supp. 1239, 1240(D. Del.
1990). The moving party must show one of the following in order to prevail on a
Rule 59(e) motion:(1)an intervening change in the controlling law;(2)the
availability of new evidence that was not available when the court issued its order;
or(3)the need to correct a clear error of law or fact or to prevent a manifest
injustice. See Max's Seafood Cafe v. Quinteros, 176 F.3d 669,677(3d Cir. 1999).

Although the Third Circuit has “never adopted strict or precise definitions for
‘clear error of law or fact’ and ‘manifest injustice’ in the context of a motion for

reconsideration,” at a minimum, a manifest error or injustice is a “direct, obvious,

'^ UnitedStates v. Fiorelli, 337 F.3d 282, 288(3d Cir. 2003).
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or observable error [...] that is of at least some importance to the larger

proceedings.” In re Energy Future Holdings Corp., 904 F.3d 298,312(3d Cir

2018). More specifically, when determining whether a decision resulted in a
manifest injustice, a court must focus “on the gravity and overtness of the error.
M at 312. Finally, a “motion for reconsideration is not to be used as a means to

reargue a case or to ask a court to rethink a decision it has made.

United States v.

Kennedy, 2008 WL 4415654, at *1 (W.D.Pa. Sept. 26, 2008).
III.

DISCUSSION

In his timely filed Rule 59(e) Motion, Petitioner asserts that the Court

committed the following factual or legal errors when denying his Petition that
should result in the amendment ofthe judgment:(1)the Court erred in denying
Claim One(A)for failing to state a primafacie claim that the Delaware state

courts erred in finding that the admission of State Exhibit 84 and Detective
Conner’s false testimony did not violate Petitioner’s due process rights(Claim One
(A))(D.I. 42 at 2-6);(2)the Court erred in ruling that the State did not engage in

prosecutorial misconduct and violate his due process rights by presenting Detective
Conner’s perjured testimony and State Exhibit 84 as evidence during his trial
(Claim Two(A))(D.I. 42 at 6-13); and(3)the Court erred in ruling that trial
counsel did not provide ineffective assistance by failing to notice and challenge the
alteration on State Exhibit 84(Claim Three(A))(D.I. 42 at 13-16). Petitioner also
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contends that Judge Stark erred by declining to issue a certificate of appealability
for the Claims involved in the aforementioned arguments - Claims One(A), Two
(A), and Three(A)- and also for Claim Five. (D.I. 42 at 16-18)
A. Court’s Denial of Claim One(A)Due to Petitioner’s Failure to
Establish a Prima Facie Due Process Violation

As explained in the Opinion denying the Petition,
Claims One (A)and Two (A) present due process claims
based upon Detective Conner’s false testimony and
alteration of State Exhibit 84. Claim One(A)asserts that
the Delaware state courts committed error during and after
the Rule 61 remand by failing to find that the admission of
Detective Conner’s false testimony and State Exhibit 84
violated his due process rights. The prosecutorial
misconduct argument in Claim Two (A) asserts that the
State violated Petitioner’s due process rights because it
knew or should have known that Detective Conner falsely
testified about when he wrote the word “shooter” on State
Exhibit 84.

(D.I. 40 at 13) In order to establish a due process violation stemming from a trial
court’s evidentiary error - such as the error alleged in Claim One(A)- a petitioner
must show that the alleged evidentiary error was “of such magnitude as to
undermine the fundamental fairness ofthe entire trial.” Keller v. Larkins, 251 F.3d

408,413(3d Cir. 2001). In order to establish a due process violation stemming

from the State’s presentation of peijured testimony (prosecutorial
misconduct/perjured testimony)- such as the error alleged in Claim Two(A)- a
petitioner must demonstrate:(1)the existence of perjured testimony;(2)the State
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knew or should have known ofthe peijury;(3)the testimony went uncorrected;
and (4)there is a reasonable likelihood that the false testimony could have affected
the verdict. See Haskell v. Sup’t Greene SCI, 866 F.3d 139, 146(3d Cir. 2017).
Petitioner contends that Judge Stark erred by dismissing Claim One(A)for

failing to assert a primafacie due process violation because he set forth the
elements of a prosecutorial misconduct/false testimony claim - including the

knowledge element- in his Reply. (D.I. 42) The Court concurs that the dismissal
of Claim One(A)was due to a misapprehension of the background facts of the
Claim, but not the misapprehension presented by Petitioner. Specifically, the
Court erred in dismissing Claim One(A)under the standard for prosecutorial
misconduct/perjured testimony claims instead of the standard for due process

violations stemming from a trial court’s evidentiary error. Since Claim One(A)is
not a prosecutorial misconduct/perjured testimony claim and should therefore not
have been dismissed for failing to assert a primafacie due process violation, the

Court will grant Petitioner’s request for reconsideration and review Claim One(A)
under the proper standard.
In Claim One(A), Petitioner argued that

t]he Superior Court erred when it ruled that [Petitioner
was not prejudiced by Detective Conner’s false testimony
that he wrote the word “shooter” on the photo array
contemporaneous with his interview with the alleged
identification witness [Romeo]. Had the jury learned of
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this falsification, it would have discredited his remaining
testimony given that the jury was deadlocked after three
days of deliberation and convicted [Petitioner] after being
given the Allen charge.

(D.L 18 at 12) Petitioner also argued that he was prejudiced because, other than
Detective Conner’s testimony, there was “scant” evidence or identification of
Petitioner as a culprit (D.L 18 at 25)

Judge Stark considered, and rejected, these arguments when denying Claim

Two (A)^ after examining the relative probative and prejudicial value ofthe
evidence presented during Petitioner’s trial. See e.g. Lesko v. Owens, 881 F.2d 44,
51 (3d Cir. 1989)(a “reviewing court must examine the relative probative and
prejudicial value of evidence to determine whether its admission violated
defendant's right to a fair trial”). Specifically, Judge Stark found that Petitioner
failed to demonstrate a reasonable likelihood that Detective Conner’s testimony
could have affected the verdict- i.e.. Petitioner failed to satisfy the materiality

prong of the standard applicable to prosecutorial misconduct claims;
During the Rule 61 remand, the Superior Court heard
Detective Conner’s possible explanations for the
discrepancy and had an opportunity to observe Detective
Conner’s demeanor and assess his credibility. Notably,
even after finding that Detective Conner did not write the
word “shooter” on State Exhibit 84 contemporaneously

^The arguments were not considered with respect to Claim One(A)because of the
determination that Petitioner did not establish a primafacie due process violation
stemming from the evidentiary error alleged in Claim One (A).
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with his interview of Romeo, the Superior Court still
concluded that Romeo identified Petitioner as the shooter

during her interview with Detective Conner and viewed as
irrelevant the timing of Detective Conner’s alteration of
State Exhibit 84. If the timing of Detective Conner’s
alteration to State Exhibit 84 did not affect the substance

of Romeo’s § 3507 statement for admissibility purposes,
it logically follows that Detective Conner’s testimony
regarding the timing of his alteration did not affect the
substance of Romeo’s § 3507 statement. In addition,
another eyewitness, Violet Gibson, provided a recorded
statement to Detective Conner that implicated Petitioner in
the murders.

Given

Gibson’s

identification,

Petitioner

cannot

demonstrate a reasonable likelihood that the jury would
not have convicted him without Romeo’s identification.

Consequently, while the falsity of Detective Conner’s
testimony about when he wrote the word shooter on State
Exhibit 84 may have been used to impeach Detective
Conner’s credibility, the falsity of Detective Conner’s
testimony would not have “destroyed the credibility” of
Romeo’s identification of Petitioner or the credibility “of
the prosecution itself,” especially since there was another
identification of Petitioner.

(D.I. 40 at 34 to 37) For these same reasons,the Court concludes that the
admission ofthe Detective Conner’s testimony during Petitioner’s trial did not

undermine the flmdamental fairness ofthe entire trial."^ Accordingly, the Court will
deny Claim One (A).

‘^The Court acknowledges that Petitioner contends that the dismissal of Claim Two
(A)was based on an erroneous analysis of the materiality prong of the
prosecutorial misconduct standard. (D.I. 42 at 7-13) Given the Court’s rejection
of Petitioner’s challenge to the issue of materiality (see infra at Section III.A),the
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B. Court’s Denial of Claim Two(A)
Next, Petitioner contends that the Court should alter or amend Judge Stark’s

judgment that:(1)the § 3507 testimony would have been permitted even if
Detective Conner’s perjury and evidence tampering had been discovered, or if he

had never done it in the first instance; and(2)the exposure of the perjury and

evidence tampering would not have been materially damaging to Detective
Conner’s credibility. Petitioner essentially re-asserts the substance of his
arguments for Claim Two(A)that were already considered. Importantly,

Petitioner does not present any intervening change in law,the availability of
previously unavailable evidence, or a “clear error of law” of the sort that would
compel reconsideration ofthe Court’s denial Claim Two (A). Therefore, the Court
will deny Petitioner’s request to alter or amend the denial of Claim Two(A).
C, Court’s Denial of Claim Three(A)

In Claim Three (A), Petitioner argued that trial counsel provided ineffective
assistance by failing to examine State Exhibit 84 and failing to discover that
Detective Conner had falsified the phot array and committed perjury. (D.I. 42 at

13) In his Rule 59(e) Motion, Petitioner contends that the Court should reconsider
the denial of Claim Three(A)because it was based on the erroneous conclusion

Court finds it can appropriately rely on the reasoning behind Judge Stark’s
materiality determination.
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that the state courts reasonably applied Strickland and reasonably determined the
facts” (D.L42atl6)
None ofthe “errors” identified by Petitioner warrant reconsideration ofthe
denial of Claim Three (A). For the most part, Petitioner’s presentation of the
alleged “errors” essentially re-asserts the same arguments he presented in his
Petition. To the extent Petitioner identifies new “errors”, his arguments are

unavailing. For instance, Petitioner erroneously asserts that the Delaware Supreme
Court unreasonably identified and applied the prejudice prong of the Strickland
standard.(D.I. 42 at 15) According to Petitioner, the Delaware Supreme Court

viewed the appropriate question for determining prejudice as being whether
Petitioner “was prejudiced by the introduction of Romeo’s § 3507 statement.
(D.I. 42 at 15) Not so. The language Petitioner quotes was actually the Delaware
Supreme Court’s summary of the lATC argument Petitioner presented in his Rule
61 motion and not the standard that the Delaware Supreme Court applied when

reviewing that lATC argument,^ {See D.I. 18-11 at 33) Instead, the Delaware
Supreme Court applied the following correct standard for Strickland prejudice: “In

^The Delaware Supreme Court stated: “As a result, the Court can reasonably infer
Defendant’s ineffective assistance of counsel argument, specifically, to be that
Trial Counsel was deficient for failing to notice the discrepancy and that Defendant
was prejudiced by the introduction of Romeo’s § 3507 statement identifying
Defendant as the shooter.” (D.I. 18-11 at 33)
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order to show prejudice, the defendant must establish that, but for trial counsel’s

deficient performance, there is a reasonable probability that the result would have
been different.” (D.I. 18-11 at 32)
Petitioner also contends that the Court erred in giving deference to the “state

court’s findings that Gibson also identified [Petitioner] as the ‘shooter’,” because
Gibson’s identification was equivocal.” (D.I. 42 at 16) This conclusory assertion
is unpersuasive.

In sum. Petitioner does not present any intervening change in law, the

availability of previously unavailable evidence, or a “clear error of law” or fact of
the sort that would compel reconsideration of the Judge Stark’s denial of Claim
Three (A). Thus,the Court will deny Petitioner’s instant request for
reconsideration.

D. Court’s Refusal to Grant Certificate of Appealability
Petitioner asks the Court to reconsider the decision not to issue a certificate

of appealability for Claims One(A), Two (A), Three (A), and Five, asserting that
these claims are certainly debatable.” (D.I. 42 at 16-17) This argument does not
identify manifest errors oflaw or fact underlying the decision not to grant a

certificate of appealability. Therefore, the Court declines to reconsider the denial
of a certificate of appealability.

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IV.

CONCLUSION

For the reasons discussed, the Court will grant in part and deny in part
Petitioner’s Rule 59(e) Motion. Petitioner’s motion for reconsideration of the

basis for denying Claim One(A)will be granted. Petitioner’s motion for
reconsideration of the denials of Claims Two(A)and Three(A)and the prior

refusal to grant a certificate of appealability will be denied. Additionally, having
reconsidered Claim One(A)and concluding that it lacks merit. Petitioner’s habeas

Petition will again be denied. To the extent one may be necessary, the Court also
declines to issue a certificate of appealability with respect to its decision with

respect to the instant Rule 59(e) Motion because Petitioner has failed to make a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see United States v. Eyer, 113 F.3d 470(3d Cir. 1997); 3d Cir. LAR
22.2(2011). The Court will enter an order consistent with this Memorandum
Opinion.

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