Howell v. Coupe et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/30/19. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BRYAN EVANS,
Petitioner,
Civil Action No. 16-818-LPS

V.

CLAIRE D EMATTEIS, Commissioner,
Delaware Department of Corrections,1
DANA METZGER, Warden, 2 and
and ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

ERIC HOWELL,
Petitioner,
Civil Action No. 16-820-LPS

v.

CLAIRE D EMATTEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, 3 and
and ATTORNEY GENERAL OF THE
STATE OF D ELAWARE,
Respondents.

1

Commissioner Claire D eMatteis has replaced form.er Commissioner Robert M. Coupe, who was an
original party. See Fed. R. Civ. P. 11 (d).
2

Warden Dana Metzger has replaced form.er Warden David Pierce, who was an original party. See
Fed. R. Civ. P. 11 (d).

Warden Robert May has replaced form.er Warden G.R. Johnson, who was an original party to the
case. See Fed. R. Civ. P. 11 (d).

3

KARAM MOSLEY,
Petitioner,
Civil Action No. 16-823-LPS

V.

CLAIRE DEMATIEIS, Commissioner,
Delaware Department of Corrections,
ROBERT MAY, Warden, and
and ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

JAMES MOSES,
Petitioner,
Civil Action No. 16-841-LPS

v.

CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
DANA METZGER, Warden, and
and ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

ANTOINE J. JONES,
Petitioner,
Civil Action No. 16-849-LPS

V.

CLAIRE DEMATTEIS, Commissioner,
Delaware Department of Corrections,
DANA METZGER, Warden, and
and ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM OPINION
James B. O'Neill, Office of Defense Services for the State of Delaware, Wilmington, Delaware.
Attorney for Petitioners Bryan Evans, Eric Howell, Karam Mosley, James Moses, and
Antoine J. Jones.

Brian L. Arban, D eputy Attorney General, Delaware Department of Justice, Wilmington, Delaware.
Counsel for Respondents.

September 30, 2019
Wilmington, D elaware

Pending before the Court are five separate but nearly-identical Applications For A Writ Of
Habeas Corpus Pursuant To 28 U.S.C. § 2254 ("Petitions"). One Petition is filed by each of the
following Petitioners: Bryan Evans ("Evans") (C.A. No. 16-818 D.I. 2); Eric Howell ("Howell")
(C.A. No. 16-820); Karam Mosley ("Mosley") (C.A. No. 16-823); James Moses ("Moses") (C.A. No.
16-841); and Antoine J. Jones ("Jones") (C.A.

o. 16-849).

Each of the Petitions raises the same two claims for relief arising from issues relating to an
evidence scandal in the Office of the Chief Medical Examiner ("OCME").
The State has filed an Answer in opposition to each Petition, to which each Petitioner has
filed Replies.
Having considered all of the briefing and other materials submitted, and having considered
each Petition separately and individually, the Court will dismiss all of the Petitions and deny the
relief requested.
BACKGROUND
A.

Evans
On December 12, 2012, Evans pled guilty to delivery of cocaine. The Superior Court

immediately sentenced Evans to twenty-five years at Level V incarceration, suspended after three
years for six months at Level IV, followed by eighteen months of Level III probation. Evans did
not file a direct appeal.
On March 18, 2013, Evans filed a motion for modification of sentence, which the Superior
Court denied on April 9, 2013. Evans did not appeal that decision.
On May 8, 2014, Delaware's Office of Defense Services ("OPD") filed a motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") on
Evans' behalf. The Superior Court denied the motion on December 3, 2014. The Delaware
1

Supreme Court affirmed that decision on October 12, 2015. See Aricidiacono v. State, 125 A.3d 677
(Del. 2015).
On September 19, 2016, the OPD filed a § 2254 Petition on Evans' behalf, asserting that his
lack of knowledge of the OCME evidence scandal was material to his decision to plead guilty and,
therefore, his guilty plea was involuntary pursuant to Bracfy v. United States, 397 U.S. 742, 748 (1970) .
Evans also argues that the Delaware Supreme Court made unreasonable findings of fact during his
post-conviction appeal regarding OCME misconduct. The State filed an Answer asserting that
Evans' Petition should be dismissed as time-barred or, alternatively, because the Claims are
meritless. Evans filed a Reply, arguing that his Petition is timely filed pursuant to § 2244(d) (1)(D),
and that the Claims warrant habeas relief.

B.

Howell
On February 4, 2014, pursuant to a consolidated plea agreement, Howell pled guilty to

aggravated possession of heroin in a tier two quantity. That same day, the Superior Court sentenced
Howell as a habitual offender to twelve years of Level V incarceration. He did not file a direct
appeal.
On April 28, 2014, Howell filed a motion to modify his sentence, which the Superior Court
denied on May 5, 2014.
On May 7, 2014, OPD filed a Rule 61 motion on Howell's behalf. The Superior Court
denied the motion on December 3, 2014. See State v. A bsher et al, 2014 WL 7010788 (Del. Super. Ct.
Dec. 3, 2014). The Delaware Supreme Court affirmed that decision on October 12, 2015. See

Aricidiacono v. State, 125 A.3d 677 (Del. 2015).
On September 19, 2016, the OPD filed a § 2254 Petition on Howell's behalf, asserting the
same Claims as already described above with respect to Evans' Petition. The State Answered with
the same arguments it made in connection with Evans' Petition, to which Howell replied.

2

C.

Mosley
On January 6, 2014, Mosley pled guilty to drug dealing (heroin- tier 2) as a lesser included

offense. That same day, the Superior Court sentenced Mosley to ten years at Level V, suspended
after six months for eighteen months of Level III supervision. He did not file a direct appeal.
On May 14, 2014, OPD filed a Rule 61 motion on Mosley's behalf. The Superior Court
denied the motion on December 3, 2014. See State v. Absher et al, 2014 WL 7010788 (Del. Super. Ct.
Dec. 3, 2014). The Delaware Supreme Court affinned that decision on October 12, 2015. See

Aricidiacono v. State, 125 A.3d 677 (Del. 2015).
On September 19, 2016, the OPD filed a timely § 2254 Petition on Mosley's behalf, asserting
the same Claims as already described above with respect to Evans' Petition. The State Answered
with the same arguments it made in connection with Evans' Petition (although the State does not
argue that Mosley's Petition was untimely), to which Mosley replied.

D.

Moses
On October 8, 2013, Moses pled guilty to drug dealing. On December 12, 2013, the

Superior Court sentenced Moses as a habitual offender to five years at Level V incarceration,
followed by twelve months of Level III probation. He did not file a direct appeal.
On April 30, 2014, OPD filed a Rule 61 motion on Moses' behalf. The Superior Court
denied the motion on April 20, 2015, and denied his motion for reargument on June 17, 2015. See

State v. Anderson et al, 2015 WL 2067158 (Del. Super. Ct. Apr. 20, 2015); State v. Banks, 2015 WL
4400130 (Del. Super. Ct. June 17, 2015). The Delaware Supreme Court affinned that decision on
December 9, 2015. See Banks v. State, 129 A.3d 881 (fable), 2015 WL 8481972 (Del. Dec. 9, 2015).
On September 21, 2016, the OPD filed a § 2254 Petition on Moses' behalf, asserting the
same Claims as already described above with respect to Evans' Petition. The State Answered with
the same arguments it made in connection with Evans' Petition, to which Moses replied.

3

E.

Jones
On February 15, 2010, Jones pled guilty to delivery of cocame. The Superior Court

immediately sentenced Jones to fifteen years at Level V incarceration, suspended after eleven years
for six months at Level IV, followed by one year of Level III probation. He did not file a direct
appeal.
On May 10, 2010, Jones filed a motion for modification of sentence, which the Superior
Court denied on May 21, 2010. Petitioner filed a second motion for modification of sentence on
March 24, 2014, which the Superior Court granted in part, on April 8, 2014, limited to correcting a
typographic error in the sentencing order.
On June 20, 2014, OPD filed a Rule 61 motion on Jones' behalf. The Superior Court denied
the motion on April 20, 2015, and denied his motion for reargument on June 17, 2015. See State v.

A nderson et al, 2015 WL 2067158 (Del. Super. Ct. Apr. 20, 2015); State v. Banks, 2015 WL 4400130
(Del. Super. Ct. June 17, 2015). The Delaware Supreme Court affirmed that decision December 9,
2015. See Banks v. State, 129 A.3d 881 (Table), 2015 WL 8481972 (Del. Dec. 9, 2015).
On September 21, 2016, the OPD filed a § 2254 Petition on Jones' behalf, asserting the same
Claims as already described above with respect to Evans' Petition. The State Answ;ered with the
same arguments it made in connection with Evans' Petition, to which Jones replied.

F.

OCME Criminal Investigation
The relevant information regarding the OCME evidence mishandling is set forth below:
In February 2014, the Delaware State Police ("DSP") and the
Department o f Justice ("DO]") began an investigation into criminal
misconduct occurring in the Controlled Substances Unit of
the OCME.
The investigation revealed that some drug evidence sent to
the OCME for testing had been stolen by OCME employees in some
cases and was unaccounted for in o ther cases. Oversight of the lab
had been lacking, and security procedures had not been followed.
One employee was accused of "dry labbing" (or declaring a test result
4

without actually conducting a test of the evidence) in several cases.
Although the investigation remains ongoing, to date, three OCME
employees have been suspended (two of those employees have been
criminally indicted), and the Chief Medical E xaminer has been fired.
There is no evidence to suggest that OCME employees tampered
with drug evidence by adding known controlled substances to the
evidence they received for testing in order to achieve positive results
and secure convictions. That is, 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.

Brown v. State, 108 A.3d 1201, 1204-05 (Del. 2015).

STANDARD OF REVIEW
When a state's highest court has 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).
A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) if the state
court decision finally resolves the claim on the basis of its substance, rather than on a procedural or
some other ground. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). Pursuant to 28 U.S.C.
§ 2254(d), federal habeas relief may only be granted if the state court's decision was "contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States," or the state court's decision was an unreasonable
determination of the facts based on the evidence adduced in the trial. See 28 U.S.C. § 2254(d)(1) &
(2); see also Williams v. Tqylor, 529 U.S. 362,412 (2000);Appel v. Horn, 250 F.3d 203,210 (3d Cir.
2001). This deferential standard of § 2254(d) applies even "when a state court's order is
unaccompanied by an opinion explaining the reasons relief has been denied;" as 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." Harrington v.

FJchter, 562 U.S. 86, 98-100 (2011 ).

5

Finally, a federal court must presume that the state court's determinations of factual issues
are correct. See 28 U.S.C. § 2254(e)(1); see also A ppel, 250 F.3d at 210. 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)(1); see also Campbell v. Vaughn, 209 F.3d
280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that clear and
convincing standard in § 2254(e)(1) applies to factual issues, whereas unreasonable application
standard of § 2254(d)(2) applies to factual decisions).

TH E PETITIONS ARE N OT TIME-BARRED
The State contends that all of the Petitions other than Mosley's are time-barred. 4 The Court
disagrees.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prescribes a oneyear period of limitations for the filing of habeas petitions by state prisoners, which begins to run
from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;

(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

28 U.S.C. § 2244(d)(1). AEDPA's limitations period is subject to statutory and equitable tolling. See

4

Accordingly, in this section, the references to ''Petitions" and "Petitioners" relate solely to the
Petitions filed by Petitioners Evans, Howell, Moses, and Jones, and do not refer to Mosley.
6

Holland v. Florida, 560 U.S. 631, 645 (2010) (equitable tolling); 28 U.S.C. § 2244(d)(2) (statutory
tolling) .
All of the Petitions were filed in September 2016 and are subject to the one-year limitations
period contained in § 2244(d)(1). See Llndh v. Murphy, 521 U.S. 320,336 (1997). None of the
Petitioners alleges, and the Court cannot discern, any facts triggering the application of
§ 2244(d)(1)(B) or (C). Each Petitioner facing an untimeliness contention does, however, assert that
he is entitled to a later starting date for AEDPA's limitations period-April 15, 2014- under
§ 2244(d)(1)(D), because that is the date on which the State began to notify defendants in certain
active cases about the OCME evidence misconduct.
In order to determine if the April 15, 2014 revelation of the OCME misconduct constitutes
a newly discovered factual predicate warranting a later starting date for the limitations period under
§2244(d)(1)(D), the Court must first distill the OCME misconduct argument to its core. The
argument appears to be two-fold. First, Petitioners asserts a twist on the typical Bracjy v. Maryland,
373 U.S. 83 (1963), claim by alleging that the State's affirmative representation that it had fulfilled its

Bracjy v. Maryland obligation when, in fact, it did not disclose the at-that-time undiscovered OCME
misconduct, violated his constitutional rights and affected his ability to voluntarily enter a guilty plea.
Second, each of the Petitioners contends that the Delaware state courts should have deemed his
guilty plea involuntary under Bracjy v. United States, 397 U.S. 742, 748 (1970), due to the State's failure
to disclose the Bracjy v. Maryland evidence, i.e., the OCME misconduct. In short, each of the
Petitioners asserts that his lack of knowledge about the OCME misconduct is vital to his habeas
Claims because that lack of knowledge rendered his guilty plea involuntary and unknowing under

Bracjy v. United States.
Pursuant to Bracjy v. United States, a guilty plea is considered involuntary if it is "induced by
threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled

7

or unfillable promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor's business (e.g. bribes)." Brac!J, 397 U.S. at 755. A violation of

Brac!J v. Maryland occurs when the government fails to disclose evidence materially favorable to the
accused, including both impeachment evidence and exculpatory evidence. 5 See United States v. Bagley,
473 U.S. 667, 676 (1985). For purposes of the inquiry under § 2244(d)(1) (D), whether or not the
OCME misconduct affected, or could have affected, any Petitioner's decision to plead guilty
depends on whether the drugs in bis case were tested by the OCME and the results were provided
to him prior to entering a plea. Therefore, in order to trigger a later starting date under
§ 2244(d)(1)(D) for this involuntary plea/ Brac!J v. Maryland Claim, each Petitioner must show that
(1) the drug evidence in bis case was tested by the OCME and he received the results of the test
before entering a plea; and (2) exercising due diligence, he could not have learned that the evidence
in bis case may have been part of the compromised drug evidence involved in the OCME scandal
until April 15, 2014. For the following reasons, the Court concludes that each of the allegedly timebarred Petitioners has met this burden.
Evans - First, the OCME report concerning the drug evidence from one of the alleged drug

transactions in this case was completed by forensic chemist Farnam Daneshgar on or before May 22,
2012, and Evans pled guilty on December 17, 2012. Second, facts sufficient to provide a basis for a
good faith claim that state employees engaged in impermissible conduct were not available to
defense counsel until April 15, 2014 when, as part of its Brac!J v. Maryland obligation, the State
informed Evans and other defendants that all drug evidence housed at the lab was susceptible to

5

A petitioner establishes a Brac!J v. Maryland violation by showing 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).
8

compromise. 6

Howell - First, the OCME report concerning the drug evidence from one of the alleged
drug transactions in this case was completed by forensic chemist Patricia Phillips on December 19,
2013 and provided to Howell on January 7, 2014. Howell pled guilty on February 4, 2014. Second,
as already noted with respect to Petitioner Evans above, facts sufficient to provide a basis for a good
faith claim that state employees engaged in impermissible conduct were not available to defense
counsel until April 15, 2014.

Moses - First, the OCME report concerning the drug evidence from one of the alleged drug
transactions in this case was completed by forensic chemist Patricia Phillips on or before April 30,
2013 and provided to Moses on May 21, 2013. He pled guilty on October 8, 2013. Second, as
already noted with respect to Petitioner Evans above, facts sufficient to provide a basis for a good
faith claim that state employees engaged in impermissible conduct were not available to defense
counsel until April 15, 2014.

Jones - First, Jones received the OCME report concerning the drug evidence on December
29, 2009, and he pled guilty on February 15, 2010. Second, as already noted with respect to
Petitioner Evans above, facts sufficient to provide a basis for a good faith claim that state employees
engaged in impermissible conduct were not available to defense counsel until April 15, 2014.
Given the circumstances with respect to each of the four Petitioners just discussed, the
Court concludes that AEDPA's limitations period in these four cases began to run on April 15,

6

Although the Delaware State Police ("DSP") began its investigation into compromised drug
evidence on January 15, 2014, and the Deputy Attorney General's office informed defense counsel
on February 21, 2014 that an investigation into the evidentiary practices at the OCME had started
on February 20, 2014, the Court concurs with Petitioner's contention that sufficient facts to make
the instant argument were not available until the State provided the relevant information on April
15, 2015. See Biden: Investigation of State Medical Examiner's Drug Lab Reveals Systemic Failings, Urgent Need
for Reform, Dep't of Justice, Att'y Gen.'s Website Qune 19, 2014),
https: / /news.delaware.gov /2014 I 06 I 19 / biden-investigation-of-state-medical-examiners-drug-labreveals-systemic-failings-urgent-need-for-reform /.
9

2014. 7 Accordingly, to comply with the one-year limitations period, these four Petitioners had to file
their § 2254 petition by April 15, 2015. See Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005) (holding that
Federal Rule of Civil Procedure 6(a) and (e) applies to federal habeas petitions); Phlipot v. Johnson,
2015 WL 1906127, at *3 n.3 (D. Del. Apr. 27, 2015) (AEDPA's one-year limitations period is
calculated according to anniversary method, i.e., limitations period expires on anniversary of date it
began to run).
None of these four Petitioners filed his Petition by April 15, 2015. Evans and Howell filed
their Petitions on September 19, 2016, while Moses and Jones filed theirs on September 21 , 2016.
Therefore, the four Petitions are time-barred unless the limitations period can be statutorily or
equitably tolled. Here, the limitations period was statutorily tolled for each of the four Petitioners.
Pursuant to § 2244(d)(2), a properly filed application for state collateral review tolls
AEDPA's limitations period during the time the application is pending in the state courts, including
any post-conviction appeals, provided that the application is filed during AEDPA's one-year
limitations period. See Swartz v. Mryers, 204 F.3d 417, 424-25 (3d Cir. 2000). However, the
limitations period is not tolled during the ninety days a petitioner has to file a petition for a writ of
certiorari in the United States Supreme Court regarding a judgment denying a state post-conviction

7

The State relies on Harmon v. Johnson, 2016 WL 183899, at *3 (D . Del. Jan. 14, 2016), to support its
argument that § 2254(d) (l)(D) is inapplicable and, therefore, cannot trigger a later starting date in
Petitioner's case. The Court disagrees. Harmon argued that his conviction should be vacated
because the State violated Brady v. Maryland by failing to disclose its knowledge of the OCME drug
evidence scandal during his plea process and by waiting until long after his conviction in 2012 to
disclose the tampering. See Harmon, 2016 WL 183899, at *2-3. However, since the drug evidence in
Harmon was never sent to the OCME for testing, the court found that the revelation of the OCME
scandal in 2014 could not have constituted a new factual predicate for Harmon's substantive Brady v.
Maryland claim. Id. Here, by contrast, Petitioner argues that the alleged lack of knowledge of the
OCME misconduct was material to his decision to plead guilty, thereby rendering his guilty plea
involuntary under Brady v. United States. In addition, unlike in Harmon, the drug evidence in
Petitioner's case was sent to the OCME for further testing after the initial field test, and Petitioner
received a copy of the OCME report prior to pleading guilty. Given these circumstances, which are
quite different than those presented in Harmon, the Court concludes that the revelation of the
OCME scandal constitutes a new factual predicate.
10

motion. See Stokes v. Dist. Attornry of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).

Evans - When the OPD filed Evans' second Rule 61 motion on May 8, 2014, twenty-three
days of AEDPA's limitations period had already expired. The Rule 61 motion tolled the limitations
from May 8, 2014 through October 12, 2015, the date on which the Delaware Supreme Court
affirmed the Superior Court's denial of the motion. When the limitations clock started to run again
on October 13, 2015, there were 342 days remaining in AEDPA's limitations period, so the last day
of the limitations period was September 19, 2016. Since Evans filed his Petition on September 19,
2016, the Petition is timely. Therefore, the Court will proceed to review the Claims in Evans'
Petition.

Howell - When the OPD filed Howell's second Rule 61 motion on May 7, 2014, twenty-two
days of AED PA's limitations period had already expired. The Rule 61 motion tolled the limitations
from May 7, 2014 through October 12, 2015, the date on which the Delaware Supreme Court
affirmed the Superior Court's denial of the motion. When the limitations clock started to run again
on October 13, 2015, there were 343 days remaining in AEDPA's limitations period, so the last day
of the limitations period was September 20, 2016. Since Howell filed his Petition on September 19,
2016, the Petition is timely. Therefore, the Court will proceed to review the Claims in Howell's
Petition.

Moses - When the OPD filed Moses' Rule 61 motion on April 30, 2014, fifteen days of
AEDPA's limitations period had already expired. The Rule 61 motion tolled the limitations from
April 30, 2014 through D ecember 9, 2015, the date on which the Delaware Supreme Court affirmed
the Superior Court's denial of the motion. When the limitations clock started to run again on
December 10, 2015, there were 350 days remaining in AEDPA's limitations period, so the last day
of the limitations period was November 24, 2016. Since Moses filed his Petition on September 21,
2016, the Petition is timely. Therefore, the Court will proceed to review the Claims in Moses'
11

Petition.

Jones - When the OPD filed Jones' Rule 61 motion on June 20, 2014, sixty-six days of
AEDPA's limitations period had already expired. The Rule 61 motion tolled the limitations from
June 20, 2014 through December 9, 2015, the date on which the Delaware Supreme Court affirmed
the Superior Court's denial of the motion. When the limitations clock started to run again on
December 10, 2015, there were 299 days remaining in AEDPA's limitations period, so the last day
of the limitations period was October 4, 2016. Since Jones filed bis Petition on September 21 2016,
the Petition is timely. Therefore, the Court will proceed to review the Claims in Jones' Petition.

DISCUSSION
A. Claim One: Unreasonable Application of Brady v. United States.
In Claim One, all five Petitioners - Evans, Howell, Mosley, Moses, and Jones - argue that
the Delaware Supreme Court correctly identified Braqy v. United States as "the overarching federal law
governing the voluntariness of a guilty plea," but unreasonably applied that precedent by
"unreasonably focus[ing] on [each Petitioner's] admission of guilt rather than on the voluntariness of
that admission." Each Petitioner contends that the Delaware Supreme Court did not comply with

Bracfjs requirement that "all of the relevant circumstances surrounding" the plea must be considered
when assessing if a Petitioner's plea was voluntary. (See, e.g., C.A. No. 16-820 D.I. 9 at 20) 8
Petitioner asserts that the Delaware Supreme Court erred by focusing on Petitioner's
admission of guilt during the plea colloquy, contending that a "defendant's recitals on the record at

8

Because the briefing is nearly-identical in all material respects with respect to the arguments
presented on the merits of Claims One and Two, in the remainder of this Opinion the Court's
citations are to the docket for Petitioner Howell, C.A. o. 16-820, unless otherwise noted. The
Court has considered the briefs and other materials submitted in each of the five cases being
addressed by this Opinion. For simplicity, and to avoid needless repetition, the Court will
henceforth cite only to the Howell docket (again, unless otherwise noted) and may refer to
"Petitioner" (instead of ''Petitioners") to refer to all five Petitioners.

12

the time he entered his guilty plea do not foreclose proof at a later time that those themselves were
involuntary," and "the assessment of such proof does not involve any question of guilt or
innocence." (D.I. 9 at 20) Specifically, he alleges that,
[i]n addition to the OCME misconduct itself, the State's failure to
disclose that misconduct can render an otherwise voluntary plea
involuntary. Each individual prosecutor has a duty to learn of any
favorable evidence known to others acting on the government's
behalf in the case, including police. This duty extends beyond police
to any investigating agency. The state court previously found and the
State conceded that evidence of the misconduct at [the] OCME was
Bracfy v. Maryland material[9] in that it was relevant to impeachment.
Even though, through no fault of the prosecutor, this evidence was
not provided to [Petitioner], the State represented to him that it had
satisfied its Bracfy obligation. Accordingly, the deceitful nature of the
misconduct by a member of the prosecution team led to the
prosecutor's misrepresentation to [Petitioner]. He was entitled to
presume that prosecutors had discharged their official duties D
because they told him they had. Thus, assuming, arguendo, the State
does not generally have a constitutional obligation to provide Bracfy
material prior to the guilty plea, this Court must recognize, as does
the United States Supreme Court, that the State does have a
constitutional obligation not to mislead a defendant.
(D.I. 9 at 29-30)

Petitioner's instant argument that the State's assertion it had fulfilled its Bracfy v. Maryland obligation
constituted an affirmative misrepresentation for Bracfy v. United States purposes is a twist on the
typical Bracfy v. Maryland argument. In many of the initial Rule 61 proceedings involving the OCME
misconduct filed in the Delaware state courts, one of the primary arguments was that the State
violated the defendants' rights under Bracfy v. Maryland by failing to disclose the ongoing misconduct
at the OCME at the time their cases were pending. See State v. Miller, 2017 1969780, at *6 (Del.
Super. Ct. May 11, 2017). The Delaware courts rejected this argument pursuant to United States v.
Ruiz, 536 U.S. 622, 629 (2002), explaining that the State does not have a constitutional requirement
to disclose material impeachment evidence prior to a defendant entering a guilty plea. See Miller,
2017 WL 1969780, at *7. The Court presumes that Petitioner's acknowledgement in this proceeding
that the "State does not generally have a constitutional obligation to provide Bracfy material prior to
the guilty plea" is due to the Delaware state courts' rejection of his "typical" Bracfy v. Maryland
argument. However, Petitioner's argument that the State has a constitutional obligation not to
mislead a defendant appears to be premised on a combination of principles derived from Bracfy v.
Maryland and Ferrara (about to be discussed in the text).
9

13

Citing to the First Circuit's decision in Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006),10
Petitioner asserts that the OCME misconduct rendered his guilty plea involuntary because it was
egregious, antedated Petitioner's plea, is imputed to the State, and was material to Petitioner's choice
to plead guilty. After stating that "Bracfy v. United States . . . requires an assessment of factors that
speak to the fairness with which the plea agreement was secured," and noting that "no specific
framework for this assessment is required," Petitioner "urges [the] Court to follow that which was
applied in" Ferrara. (D.I. 13 at 11) In Ferrara, the First Circuit held that a defendant may
"collaterally attack his sentence on the ground that his guilty plea was not knowing or voluntary if
his claim is based on evidence not available to him at the time of the plea," without distinguishing
between evidence that is newly discovered and evidence that was withheld as a result of a Bracfy v.

Maryland violation. See 456 F.3d at 289. The Ferrara Court established a two-pronged test for
determining if a defendant has a right to rescind his guilty plea because of newly discovered
government misconduct: (1) egregious impermissible government misconduct antedated the entry of
the plea; and (2) the misconduct influenced the defendant's decision to plead guilty or, in other
words, the misconduct was material to that choice. See id. at 290.
Petitioner presented essentially the same argument to the Superior Court in his Rule 61
motion. The Superior Court denied the motion after finding that Petitioner had not established that
his guilty plea was involuntary because he admitted he was guilty of the drug charge when he entered
his plea. The Superior Court also found that the OCME issues did not warrant a finding of
presumptive involuntariness with respect to the plea. See Absher, 2014 WL 7010788, at *3.

0The United States District Court for the District of Massachusetts has applied Ferrara 's two-step
approach in numerous proceedings brought under 28 U.S.C. § 2255, in which the movants sought to
revoke their guilty pleas based on the misconduct of forensic scientist Annie Dookhan. In those
cases, the movants generally sought to vacate their sentences by arguing that their guilty pleas were
obtained in violation "of the Due Process Clause of the Fifth Amendment because of the
government's failure to disclose the full range of Dookhan's malfeasance." United States v. Wilkins,
943 F. Supp. 2d 248, 254 (D. Mass. 2013).
1

14

The Delaware Supreme Court affirmed the Superior Court's decision, opining that
Petitioner's lack of knowledge about the OCME's mishandling of evidence did not invalidate his
plea because he freely admitted his guilt when he entered the plea. See A ricidiacono, 125 A.3d at 67879. The Delaware Supreme Court rejected Petitioner's due process argument that his plea was
involuntary under Braqy v. United States, explaining:
[T]he defendants here submitted no evidence to suggest a natural
inference that any misconduct at the OCME (or lack of knowledge of
that conduct) coerced or otherwise induced the defendants to falsely
plead guilty.
Tellingly, the defendants do not in any way argue that the State knew
about the problems at the OCME when they pled guilty and failed to
disclose those problems; that the State engaged in any coercive or
.improper behavior to procure their pleas; or that any of the
defendants in fact gave a false admission . The last point bears
reiteration: not one of the defendants argues that she was not in fact
not in possession of illegal narcotics and that her plea was false.
Rather the suggestion is solely that the defendants would not have
pled or would have gotten better deals if they had known of the
problems at the OCME.

A ricidiacono, 125 A.3d at 679.
The Delaware Supreme Court also rejected the argument - which was premised on the First
Circuit's decision in Ferrara - that the defendants' pleas were rendered involuntary due to the
" egregious" OCME misconduct that antedated their pleas, because none of the defendants asserted
that they "were not in fact telling the truth when they freely admitted their factual guilt."

A ricidiacono, 125 A.3d at 680. Describing Ferrard s " egregious misconduct" rationale as a "gloss on
Braqy v. United States," the Delaware Supreme Court refused to "embrace" the defendants' "egregious
misconduct" argument. Nevertheless, the Delaware Supreme Court noted that " even if there was
conduct at the OCME that could be said to be egregious, we have determined, in accordance with
our prior reasoning in Ira Brown v. State and A nzara Brown v. State, that this conduct did not materially
affect any of the pleas." A ricidiacono, 125 A.3d at 680 n.24. The Delaware Supreme Court opined:

15

Put simply, the defendants were unable to identify any equitable
reason why they should not be held to their pleas. We have no doubt
that the defendants and their counsel wish they had known of the
problems at the OCME when the defendants voluntarily admitted
their guilt and used their acceptance of responsibility to get charges
dropped and secure sentences far below the statutory maximum. It
may be the case that knowing about the OCME problems would
have given the defendants more bargaining leverage. But that
possibility is not a basis for concluding that the defendants were
unfairly convicted after a voluntary plea. Each of these defendants
had every opportunity to claim that she was in fact not guilty, to
contend that she did not possess illegal drugs, and to go to trial. To
this day, not one advances the contention that she was in fact
innocent.

Aricidiacono, 125 A.3d at 681.
Since the Delaware Supreme Court denied Petitioner's Bracfy v. United States claim as
meritless, habeas relief will only be available if the Delaware Supreme Court's decision was either
contrary to, or an unreasonable application of, clearly established federal law. However, given
Petitioner's concession that the Delaware state courts correctly identified Bracfy v. United States as the
governing precedent, the Court will proceed directly to the "unreasonable application" prong of the

§ 2254(d) (1) inquiry.
As an initial matter, the Court is not persuaded by Petitioner's argument that the Delaware
Supreme Court unreasonably applied clearly established federal law by refusing to incorporate

Ferrara's approach of treating "egregious government misconduct" preceding the entry of the plea as
one of Bracfy v. United State! enumerated "relevant circumstances" - a government misrepresentation
- to be considered when assessing the voluntariness of a guilty plea. Nor is the Court persuaded to
incorporate Ferrards approach in its analysis in this case.
First, Ferrara does not constitute "clearly established federal law" because it is not a decision
issued by the United States Supreme Court. Second, the Court has not uncovered any Supreme
Court precedent adopting Ferrards rationale of equating "egregious undisclosed government

16

misconduct" with a misrepresentation capable of rendering a guilty plea involuntary. 11 Finally, while
Petitioner correctly states that the Third Circuit has cited Ferrara in a footnote, 12 the Court has not
found any Third Circuit case law mirroring Ferrards holding or explicitly adopting its reasoning.
Indeed, at least one federal district court has criticized Ferrara as an overly "expansive interpretation
of the relevant language from Braqy v. United State."13 Hasbajrami v. United States, 2014 WL 4954596,
at *3 (E.D.N.Y. Oct. 2, 2014).
Even if Petitioner's argument is not considered to be premised specifically on Ferrara, but
rather on general due process principles established in Braqy v. United States, he is not entitled to
habeas relief. In Braqy v. United States, the Supreme Court determined that a guilty plea is not
rendered invalid merely because it is entered to avoid a harsher sentence, explaining:
A plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments made
to him by the court, prosecutor, or his own counsel, must stand
unless induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper

11

In addition to the reasons set forth in the text of this Opinion, the following three circumstances
demonstrate why the Ferrara decision has limited applicability here. First, the defendant in Ferrara
asserted he was actually innocent of the charge to which he pled guilty; Petitioner has not asserted
his factual innocence. See Ferrara, 384 F. Supp. 2d 384, 388 (D. Mass. 2005). Second, the prosecutor
in Ferrara was actively involved in witness manipulation and suppression of affirmative evidence
directly related to the defendant's innocence; here, the State was not aware .of the OCME
misconduct when Petitioner entered his plea and did not actively suppress that information. See
Ferrara, 456 F.3d at 291 ("outrageous conduct" in Ferrara consisted of manipulating witness, and
then "represent[ing] to the court and the defense that the witness was going to confirm [a] story"
inculpating defendant in murder plot, when in fact witness had provided government with
affirmative evidence of defendant's innocence.). Finally, the evidence in Ferrara was exculpatory
because it directly implicated the defendant's innocence; as explained in the text of the Opinion, the
OCME misconduct constituted impeachment evidence. See Ferrara, 456 F.3d at 292.
12

See United States v. Piper, 525 F. App'x 205, 209 n.5 (3d Cir. 2013).

Interestingly, "[o]f the federal courts to have addressed post-conviction petitions under Braqy and
Ferrara in the wake of the Dookhan scandal, not one has vacated a guilty plea." Castro v. United
States, 272 F. Supp. 3d 268,274 (D. Mass. 201 7).
13

17

as having no proper relationship to the prosecutor's business (e.g.
bribes).

Brac!J, 397 U.S. at 755; see also Tollett v. Henderson, 411 U.S. 258, 267 (1973) (explaining a defendant
may challenge a conviction based on guilty plea on ground that plea was not "voluntary and
intelligent''); Hill v. Lockhart, 474 U.S. 52, 56 (1985) (noting that "longstanding test for determining
the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among
the alternative choices of action open to the defendant"). The Supreme Court has noted that a plea
is involuntary if it is induced by "actual or threatened physical harm or by mental coercion
overbearing the will of the defendant," or if the defendant is so "gripped" by fear or hope of
leniency that he cannot "rationally weigh the advantages of going to trial against the advantages of
pleading guilty." Brac!J, 397 U.S. at 750. However, a plea is not involuntary "whenever motivated by
the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a
wider range of possibilities extending from acquittal to conviction and a higher penalty authorized
by law for the crime charged." Id. at 751.
Significantly, "the voluntariness of [a defendant's] plea can be determined only by
considering all of the relevant circumstances surrounding it." Brac!J, 397 U.S. at 749. While the
Supreme Court has not articulated an exhaustive list of the "relevant circumstances" to be
considered when assessing the voluntariness of a plea, the Supreme Court has noted that a plea is
not unintelligent just because later events prove that going to trial may have been a wiser choice:
Often the decision to plead guilty is heavily influenced by the
defendant's appraisal of the prosecution's case against him and by the
apparent likelihood of securing leniency should a guilty plea be
offered and accepted. Considerations like these frequently present
imponderable questions for which there are no certain answers;
judgments may be made that in the light of later events seem
improvident, although they were perfectly sensible at the time. The
rule that a plea must be intelligently made to be valid does not require
that a plea be vulnerable to later attack if the defendant did not
correctly assess every relevant factor entering into his decision. A
defendant is not entitled to withdraw his plea merely because he

18

discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State's case or the likely penalties
attached to alternative courses of action. More particularly, absent
misrepresentation or other impermissible conduct by state agents, a
voluntary plea of guilty intelligently made in the light of the then
applicable law does not become vulnerable because later judicial
decisions indicate that the plea rested on a faulty premise.

Bracfy, 397 U.S. at 756-57.
The Supreme Court has reaffirmed this principle while underscoring the inherent risk of
entering a guilty plea, stating
the decision to plead guilty before the evidence is in frequently
involves the making of difficult judgments. All the pertinent facts
normally cannot be known unless witnesses are examined and crossexamined in court. Even then the truth will often be in dispute. In
the face of unavoidable uncertainty, the defendant and his counsel
must make their best judgment as to the weight of the State's case .. .
Waiving trial entails the inherent risk that the good-faith evaluations
of a reasonably competent attorney will tum out to be mistaken
either as to the facts or as to what a court's judgment might be on
given facts.

Mc
Mann v. Richardson, 397 U.S. 759, 769-70 (1970).
The Supreme Court has also advised that,
[t]he rule that a plea must be intelligently made to be valid does not
require that plea be vulnerable to later attack if the defendant did not
correctly assess every relevant factor entering into his decision. A
defendant is not entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State's case.

Bracfy, 397 U.S. at 757. In other words, " the Constitution, in respect to a defendant's awareness of
relevant circumstances, does not require complete knowledge of the relevant circumstances, but
permits a court to accept a guilty plea . .. despite various forms of misapprehension under which a
defendant might labor." United States v. Ruiz., 536 U.S. 622, 630 (2002) (emphasis added).
Finally, it is well-settled that a petitioner challenging the voluntary nature of his plea on
habeas review faces a heavy burden. See Zilich v. Reid, 36 F.3d 31 7, 320 (3d Cir. 1994). The

19

"representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any
findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong presumption of verity."

Blackledge v. Allison, 431 U.S. 63, 73- 74 (1977). Significantly, there is
no requirement in the Constitution that defendant must be permitted
to disown his solemn admissions in open court that he committed
the act with which he is charged simply because it later develops that
the state would have had a weaker case than the defendant had
thought or that he maximum penalty then assumed applicable has
been held inapplicable in subsequent judicial decisions.

Bracfy, 397 U.S. at 757.
After reviewing the Delaware Supreme Court's decision within the aforementioned legal
framework, the Court concludes that the Delaware Supreme Court did not unreasonably apply Bracfy

v. United States and its progeny by holding that Petitioner's lack of knowledge about the OCME
misconduct did not render his guilty plea involuntary.14 Instead, the Delaware Supreme Court
considered the "relevant circumstances" required by Bracfy v. United States when assessing the
voluntariness of Petitioner's plea.
For instance, the Delaware Supreme Court considered the substantial benefit Petitioners
derived from pleading guilty, as demonstrated by its statement that, " the State notes the substantial
benefits the defendants obtained by the plea process, with most defendants obtaining a plea to a
greatly reduced set of charges and to sentences far below that which they could have received had
they gone to trial." A ricidiacono, 125 A.3d at 680.

14

In this proceeding, Petitioner states that "his present claim does not contradict the statements he
made during his plea colloquy," and he also states that he is not contradicting "any assertion made
during the plea colloquy that the attorney did so advise him [of the rights he was waiving by entering
the plea]." (D.I. 7 at 21 & n .82) Given Petitioner's concession, the Court accepts as correct the
Delaware Supreme Court's determination that Petitioner freely admitted his guilt during the plea
colloquy, thereby rendering an independent analysis of Petitioner's plea colloquy under Blackledge
unnecessary.

20

Here, in particular, by pleading guilty, Petitioner Evans reduced his potential overall period
of incarceration by three years, and had additional serious charges dismissed. 15 Petitioner Howell
faced a potential life sentence but, by entering into a plea agreement, the State dropped the
remaining charges against him, and capped its sentence recommendation to twelve years. 16 The
benefits of pleading guilty may be less visible for other of the Petitioners, but this does not render
the Supreme Court's application of Brac!J unreasonable.
Additionally, the Delaware Supreme Court stated it was "adher[ing]" to its prior decision in
Brewer v. State in rejecting Petitioner's argument. 17 In Brewer, the Delaware Supreme Court opined:
In his guilty plea colloquy, Brewer affirmed that he was "guilty of
possession with intent to deliver cocaine." At no point has Brewer
argued that he was actually innocent. As we emphasized in affirming
the denial of Brewer's first motion for postconviction relief, Brewer's
guilty plea was knowing and voluntary. Brewer is therefore bound by
the statements he made to the Superior Court before his plea was
15

Evans was charged with delivery of cocaine and possession of a deadly weapon by a person
prohibited (''PDWBPP"), along with additional charges of receiving a stolen firearm two counts of
drug dealing tampering with evidence, and PDP. (D.I. 15-1 at 11; D.I. 15-7 at 2) Those charges also
caused Evans to be in violation of his probation, for which he was sentenced to eight years. Evans
entered a plea agreement whereby he would plead guilty to delivery of cocaine and PDWBPP, in
exchange for which the State would dismiss the additional charges. (D.I 15-1 at 11) Evans'
potential maximum sentence for his two new charges was an additional thirty-three years: for the
delivery of cocaine, there was a minimum of two years up to a maximum of twenty-five years, and
for the PDWBPP, there was a five year minimum with an eight year maximum. (D.I. 15-7 at 7-8)
In exchange for pleading guilty, the State recommended twenty-five years at Level V for delivery of
cocaine charge, to be suspended after three years, followed by home confinement. (D .I. 15-7 at 7-8)
The Superior Court sentenced him to twenty-five years, suspended after three years, with the
balance suspended for six months of home confinement (Level IV), followed by eighteen months at
Level III. (D.I. 15-7 at 22) For the PDWBPP charge, the State recommended five years, and the
Superior Court sentenced him to five years. (Id. at 8) In short, by pleading guilty, Evans avoided an
additional three years of imprisonment.
16

Petitioner Howell was charged with aggravated drug dealing heroin in a tier two quantity,
aggravated drug dealing heroin, aggravated possession of heroin, second degree conspiracy, and
possession of drug paraphernalia. (C.A. No. 16-820 D.I. 12 at 1) He pled guilty to drug dealing tier
two heroin, and faced a maximum sentence of life because he was a habitual offender. (C.A. No.
16-820 D.I. 16-14 at 2) In exchange for pleading guilty, the State recommended a sentence of
twelve years and no/leprossed the remaining charges. (C.A. No. 16-820 D.I. 16-14 at 2)
17

Aricidiacono, 125 A.3d at 680.

21

accepted and he is prevented from reopening his case to make claims
that do not address his guilt and involve impeachment evidence that
would only be relevant at trial.
Brewer's reliance on decisions based upon language in Bracfy v. United
States does not change this result. In Bracfy, the United States
Supreme Court held that "a voluntary plea of guilty intelligently made
in the light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea rested on a faulty
premise." The Court clarified that "[o]f course, the agents of the
State may not produce a plea by actual or threatened physical harm or
by mental coercion overbearing the will of the defendant." As long

as the defendant can ''with the help ofcounsel, rationally weigh
the advantages ofgoing to trial against the advantages of
pleading guilty," the Court determined there is no
constitutional cause for concem.
Brewer has failed to allege any improper coercion that
undermined his ability to rationally weigh the advantages or
disadvantages of trial Nothing in Brewer's opening brief
suggests that he was strong-armed by State agents. Instead,
Brewer claims that the positive OCME drug results were a
significant factor in his decision to plead guilty and that he
would not have pled guilty ifhe had known of the misconduct
at the OCME. Brewer fails, however, to tie any of the OCME
misconduct to the facts ofhis case. Brewer has not shown that
his guilty plea was the result ofimproper coercion and does not
claim to be actually innocent.
Brewer v. State, 119 A.3d 42 (Table), 2015 WL 4606541, at *2-*3 (Del. July 30, 2015) (emphasis
added).
The Brewer excerpt demonstrates that, as clearly mandated by Bracfy v. United States, the
Delaware Supreme Court considered if Petitioner entered the plea upon the advice of counsel.
The excerpt also demonstrates that the Delaware Supreme Court considered that the unrelated
general OCME misconduct did not amount to improper coercion, nor did it affect Petitioner's
awareness of the direct consequences of pleading guilty. The Delaware Supreme Court explained
that "the defendants here submitted no evidence to suggest a natural inference that any misconduct
at the OCME (or lack of knowledge of that conduct) coerced or otherwise induced the defendants
to falsely plead guilty." Aricidiacono, 125 A.3d at 679. As the Court explains in its discussion
22

regarding Claim Two, the Delaware Supreme Court reasonably determined the facts by concluding
that Petitioner failed to demonstrate that his case was tainted by the OCME misconduct.
Consequently, the Delaware Supreme Court's refusal to issue a per se determination that the general
existence of OCME misconduct was sufficient to render Petitioner's guilty plea involuntary, without
proof that there was any actual OCME misconduct with respect to the evidence in Petitioner's case,
did not violate Bracfy v. United States.
Similarly, the Delaware Supreme Court did not violate Bracfy v. United States by placing
significance on Petitioner's admission of guilt during the plea colloquy, because it considered this
fact in conjunction with Petitioner's failure to assert his factual innocence during or after the plea.
An admission of guilt "is entitled to significant (albeit not dispositive) weight when, as now, [a
defendant] seeks to vacate that plea through a collateral attack." Wilkins, 754 F.3d at 30. "Such an
admission is especially compelling because [he] neither attempts to explain it away nor makes any
assertion of factual innocence." Jd. 18
Given Petitioner's failure to demonstrate a link between the misconduct and his case,
Petitioner's unawareness of the unrelated general OCME misconduct only amounted to one of the
"various forms of misapprehension under which a defendant might labor." 19 Ruiz., 536 U.S. at 630.

18

Petitioner Mosely did not receive an OCME report before pleading guilty. The fact that he
entered a guilty plea without first viewing any test results provides additional support for weighing
his admission of guilt more heavily.
19

lndeed, Petitioner could have gone to trial, or sought permission to enter a plea of nolo contendere,
which would have permitted him to accept punishment for the charged offense without admitting
his guilt. See Del. Super. Ct. Crim. R. 11 (2)(6) ("A defendant may plead nolo contendere or guilty
without admitting the essential facts constituting the offense charged with the consent of the court.
Such a plea shall be accepted by the court only after due consideration of the views of the parties
and the interest of the public in the effective administration of justice."); see also North Carolina v.
A!f 400 U.S. 25, 37 (1970) (" [W]hile most pleas of guilty consist of both a waiver of trial and an
ord,
express admission of guilt, the latter element is not a constitutional requisite to the imposition of
criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime."). Petitioners did not do so, and the Delaware
23

As Petitioner concedes, and the body of Delaware caselaw concerning the OCME misconduct
demonstrates, the OCME investigation constitutes impeachment evidence that would only be useful
if Petitioner had decided to go to trial. See Ira Brown, 108 A.3d at 1206-07. In Ruiz, the United States

Supreme Court specifically held that the government is not constitutionally required to disclose
material impeachment evidence prior to entering into a plea agreement with a criminal defendant.

See Ruiz, 536 U.S. at 633. The Ruiz Court explained:
It is particularly difficult to characterize impeachment information as
critical information of which the defendant must always be aware
prior to pleading guilty given the random way in which such
information may, or may not, help a particular defendant. The
degree of help that impeachment information can provide will
depend upon the defendant's own independent knowledge of the
prosecution's potential case - a matter that the Constitution does not
require prosecutors to disclose.

Ruiz, 536 U.S. at 629. The Supreme Court also recently reaffirmed that "a guilty plea makes [caserelated constitutional defects that occurred prior to the entry of the guilty plea] irrelevant to the
constitutional validity of the conviction," " [b]ecause the defendant has admitted the charges against

him." Class v. United States, 138 S.Ct. 798, 805-06 (2018).
If unlpiown non-exculpatory conduct at the OCME was not material to a defendant's

decision to plead guilty, that same non-exculpatory misconduct cannot provide a basis for rendering
a defendant's counseled decision to enter a guilty plea involuntary, especially when that defendant
participated in a plea colloquy in open court, freely acknowledged his guilt, and has not asserted his
factual innocence. Although knowledge of the OCME misconduct would have provided Petitioner
with "more bargaining leverage," it cannot be said that the lack of that knowledge rendered his guilty
plea involuntary. Rather, Petitioner's argument amounts only to a miscalculation of the strength of
the State's case.

Superior Court was entitled to rely on their solemn admission that they committed the acts alleged
by the State in assessing the voluntariness of their guilty pleas.
24

In sum, the Court concludes that the Delaware Supreme Court did not unreasonably apply Bracfy
v. United States in holding that Petitioner's guilty plea was not rendered involuntary due to his lack of
knowledge about the OCME misconduct. Accordingly, the Court will deny Claim One for failing to
satisfy § 2254(d)(1). 20

B. Claim Two: Unreasonable Finding of Fact
In affirming the Superior Court's denial of Petitioner's Rule 61 motion, the Delaware
Supreme Court made the following observations about the misconduct at the OCME:

In 2014 an investigation by the Delaware State Police and the
Department of Justice revealed that some OCME employees had
stolen drug evidence stored at the OCME due in large part to flawed
oversight and security. To date, those problems, although including
substantial evidence of sloppiness and allegations of " drylabbing," do
not in any way involve evidence-planting. To the contrary, much of
the uncovered misconduct seemed to be inspired by the reality that
zo While all five Petitioners present the same substantive Bracfy argument, Moses and Jones assert an
additional argument for relief, namely, that the Delaware Supreme Court unreasonably applied
clearly established federal law by citing to A ricidiacono v. State, 125 A.3d 677 (Del. 2015), rather than
directly to Bracfy v. United States. The Court rejects this argument. The Delaware Supreme Court's
A ricidiacono decision properly cites and articulates Bracfy v. United State! standard for determining the
voluntariness of guilty pleas. See A ricidiacono, 125 A.3d at 679. By citing and applying A ricidiacono
when denying the instant Claim, the Delaware Supreme Court appropriately relied on Delaware
caselaw articulating the proper federal standard applicable to Petitioner's Claim. See Fahy v. Horn,
516 F.3d 169, 196 (3d Cir. 2008) (finding that Supreme Court of Pennsylvania's decision was not
"contrary to" clearly established federal law because it appropriately relied on its own state court
cases which articulated proper standard derived from Supreme Court precedent). Thus, the issue as
to whether the Delaware Supreme Court unreasonably applied Bracfy v. United States in holding that
Petitioner's plea was not rendered involuntary by his lack of knowledge about, and the State's late
disclosure of, the OCME misconduct is properly before the Court.

In addition, the Court rejects the State's argument that Jones' Petition should be denied as
procedurally barred due to the Delaware Supreme Court's alternative dismissal of his Bracfy argument
under Rule 61(i)(1). Banks v. State, 129 A.3d 881 (Table), 2015 WL 8481972, at *1 (Del. Dec. 9,
2015). Although an alternative decision on the merits does not prevent a federal habeas court from
relying on a state court's enforcement of a state procedural bar, given the significance of the issue
involved in this case, the Court will exercise prudence and review Jones' Claims under § 2254(d).
See, e.g., U;)n v. Pierce, 2016 WL 6462132, at *7 (D . Del. Oct. 27, 2016).
Given the Court's conclusion that each Petitioner's lack of knowledge about the OCME
misconduct did not "induce" him to plead guilty, the Court will refrain from addressing any other
issues raised in the briefing but (given the Court's conclusions) not necessary to the outcome.
25

the evidence seized from defendants in fact involved illegal narcotics,
and the temptation this provided to certain employees to steal some
of that evidence for their personal use and for resale. Those
problems have now been discussed in several judicial opinions, and in
publicly available investigative reports.

Aricidiacono, 125 A.3d at 677-78. The Delaware Supreme Court held that "the poor evidencehandling practices at the OCME, however regrettable," did not entitle defendants who had freely
admitted their guilt when pleading guilty to relief. Id. at 678-79. The Delaware Supreme Court then
stated that, even if it assumed that the conduct at the OCME amounted to egregious government
misconduct, "this conduct did not materially affect any of the pleas." Id. at 680 n.24.
In Claim Two, Petitioners contend that the Delaware Supreme Court rested "its decision on
an unreasonable determination of facts regarding" the OCME misconduct "in light of the evidence
presented to it." (C.A.

o. 16-818 D.I. 7 at 7) 21 Each Petitioner asserts that the "state court's

unreasonable findings minimized the OCME misconduct and belittled the unrealistic burden of
proof it placed on [Petitioner]," and also asserts that the Delaware Supreme Court ignored relevant
circumstances specific to his case. (D.I. 7 at 22-27) Petitioner's true complaint appears to be what
he terms "the state court's misguided fixation on [Petitioner's] admission of guilt rather than on the
voluntariness of that admission." (D.I. 13 at 12) Petitioner's statement that "[i]t is inconceivable
that the facts which the state court ignored, belittled or misconstrued are not relevant to a finding
that, but for the State's failure to disclose evidence of government misconduct, there is a reasonable
probability that [Petitioner] would not have pled guilty" (D.I. 13 at 13), also appears to challenge the
Delaware state courts' refusal to characterize the OCME misconduct as "egregious undisclosed

21

As with the discussion above with respect to Count One, here with respect to Count Two the
Court principally relies on the briefing :filed by and in connection with just one of the :five
Petitioners. This time it is the briefing :filed in the case of Petitioner Evans, C.A. No. 16-818.
Unless otherwise noted, all record citations in this section are to the docket in Evans' case. Again,
for simplicity, the Court will mostly reference "Petitioner" in the singular, but all such references
actually refer to all :five Petitioners.

26

government misconduct" in its Bracfy v. United States analysis. To the extent this portrayal is an
accurate summary of Petitioner's argument in Claim Two, the Court has already rejected the instant
argument in its discussion of Claim One. Moreover, as the State aptly asserts, this "claim fails for
the simple reason that the Delaware court's reasonable application of federal law rendered
unnecessary any need to delve further into OCME employee misconduct or the integrity of the drug
evidence in [Petitioner's] case." (D.I. 9 at 19)
Even if Petitioner's factual challenge is more than a rehashing of Claim One, it is unavailing.
Petitioner appears to be dissatisfied with the state courts' description of the specific instances of
OCME misconduct, as indicated in his chart depicting "State Court's Unreasonable Findings" versus
"Actual Facts." (D.l. 7 at 24-27) He asserts that the state courts' findings "either contradicted or
understated significant facts in the record." (D.I. 7 at 24) In short, Petitioner appears to contend
that the Delaware Supreme Court unreasonably determined there was an insufficient link between
the OCME misconduct and his case.
Since Claim Two challenges the factual basis of the Delaware Supreme Court's decision, the
relevant inquiry is whether that decision was "based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). In making
this determination, the Court must presume that the Delaware Supreme Court's factual findings are
correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
After reviewing Petitioners' arguments in context with the record, the Court concludes that
each Petitioner has failed to provide clear and convincing evidence rebutting the Delaware Supreme
Court's factual determination that each Petitioner failed to demonstrate a sufficient link between the
general OCME misconduct and his case.

Evans - Farnam Daneshgar was the chemist who tested the drugs in Evans' case. Evans
asserts that Daneshgar's credibility was compromised because there was speculation that Daneshgar

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may have engaged in drylabbing in the 1990s, and that witnesses alleged Daneshgar had engaged in
drylabbing more recently. (D.I. 7 at 10-11 , 33) However disturbing these allegations may be, these
assertions do not demonstrate that Daneshgar engaged in any misconduct with respect to the drugs
in Evans' case. 22
Moreover, Evans entered his plea after already seeing the State's evidence at his violation of
probation hearing. Even though Petitioner was originally charged with two counts of delivering
cocaine based on two separate transactions, he entered his plea in December 2012 without receiving
an OCME report on one of the two cocaine samples. The fact that Evans was willing to plead on
the basis of the test results for just one of two samples indicates his awareness of the substance of
the drugs and, more importantly, suggests how little importance he placed on the OCME test results
in deciding whether to plead guilty. Finally, Evans does not claim he is factually innocent of the
drug charges to which he pled guilty.

Howell - Patricia Phillips was the chemist who tested the evidence in Howell's case. Howell
asserts that Phillips' credibility was compromised because there were "three incidents of evidence
mishandling leading to her suspension and resignation occurred in 2015." State v. M iller, 201 7 WL
1969780, at *8 (Del. Super. Ct. May 11 , 201 7). However, since the evidence in Howell's case was
tested in 2013, Phillips' alleged misconduct in 2015 does not demonstrate that she engaged in
misconduct in his case. In addition, the drugs obtained by the police all field-tested positive for

22

In his Rule 61 motion, Evans alleged: "The record reveals that there were suspicions in 1990, and
possibly earlier, that Daneshgar falsely declared test results used by the State to obtain convictions.
He left his employment at OCME amidst those suspicions. However, despite knowledge of those
suspicions, the OCME rehired Daneshgar. Not surprisingly, there were suspicions that Daneshgar
falsely declared test results after he was rehired." (D.I. 16-1 at 31 -32) In his Petition in this
proceeding, Evans states that Daneshgar's "initial employment at the lab ended in 1990 after
allegations that he was 'drylabbing,' a process where a chemist declares the composition of a
substance 'without performing the analytical testing to produce that result. Nonetheless, the lab
rehired him several years later,'' supposedly in 2006. (D.I. 7 at 11) Evans also details generalized
misconduct by other lab employees and questionable lab practices. (D.I. 7 at 10-18) Nothing in the
Petition, however, describes any misconduct that occurred in Evans' own case.

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heroin, and the buyer of the heroin told the police in a post-Miranda statement that he bought the
heroin &om Petitioner for $160.00. (C.A. No. 16-820 D.I. 12 at 3)

Mosley - Patricia Phillips was the chemist who tested the evidence in Moses' case. The
discussion provided just above with respect to Howell's contentions regarding Phillips apply equally
here. As with the evidence in Howell's case, the evidence in Moses' case was tested in 2014, so
Phillips' alleged misconduct in 2015 does not demonstrate that she engaged in misconduct in his
case. In addition, the fact that the drugs obtained by the police field-tested positive for the presence
of heroin supports the reliability of Phillips' test result. (C.A. No. 16-841 D .I. 11 at 3) Further, that
Petitioner entered his plea before receiving the OCME report (C.A. No. D.I. 2 at 6) suggests how
little importance Petitioner placed on the OCME test results in deciding whether to plead guilty.

Moses - Patricia Phillips was the chemist who tested the evidence in Moses' case. The
discussion provided just above with respect to Howell's contentions regarding Phillips apply equally
here. As with the evidence in Howell's case, the evidence in Moses' case was tested in 2013, so
Phillips' alleged misconduct in 2015 does not demonstrate that she engaged in misconduct in his
case. In addition, the drugs obtained by the police in Moses' case all field-tested positive for heroin,
and the buyer of the heroin told the police in a post-M iranda statement that he bought the heroin
&om Moses. (C.A. No. 16-841 D.I. 12 at 3)

Jones - Farnam Daneshgar was the chemist who tested the drugs in Jones' case. The
discussion provided just above with respect to Evans' contentions regarding Daneshgar apply
equally here. In addition, the drugs field-tested positive for cocaine. (C.A. No. 16-849 D.I. 10 at 3)

EVIDENTIARY HEARING
All Petitioners except for Mosley request an evidentiary hearing. Having determined that the
Claims do not warrant relief under § 2254(d)(1) and (2), the Court will deny Petitioners' requests for
an evidentiary hearing and additional discovery. S ee S chriro v. Landrigan, 550 U.S. 465, 474 (2007)

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(''Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a
federal court must take into those standards in deciding whether an evidentiary hearing is
appropriate.").

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); Slack v. M cDaniel, 529 U.S. 473,
484 (2000).
The Court has concluded that Petitioners' 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.

CONCLUSION
For the reasons discussed, Petitioners' A pplications For A Writ Of Habeas Corpus Pursuant
To 28 U.S.C. § 2254 are DENIED. An appropriate Order will be entered.

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