Taylor v. State of Delaware et al

Filing 24

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 08/26/2021. (smg)

Case 1:17-cv-01664-LPS Document 24 Filed 08/26/21 Page 1 of 18 PageID #: 1460

IN THE UNITED STATES DISTRICT COURT
FOR TH E DISTRICT OF DELAWARE

MARC T. TAYLOR, JR.,
Petitioner,

Civ. Act. No. 17-1664-LPS

v.
ROBERT MAY, Warden, and
ATIORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1

MEMORANDUM OPINION

Marc T. Taylor, Jr. Pro so Petitioner.
Maria T. Knoll, D eputy Attorney General of the Delaware Department of Justice, Wilmington,
D elaware. Attorney for Respondents.

August 26, 2021
Wilmington, Delaware

1

Warden Robert May replaced former Warden Dana Metzger, an original party to the case. See Fed.
R. Civ. P. 2S(d).

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~0--

~i--v

STARK, U.S. District Judge:
I.

INTRODUCTION
Pending before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 and Amended Application (hereinafter collectively referred to as ''Petition") filed by
Petitioner Marc T . Taylor,Jr. ("Petitioner"). (D.I. 1) The State filed an Answer in Opposition, to
which Petitioner filed a Reply. (D.I. 17; D.I. 23) For the reasons discussed, the Court will dismiss
the Petition.

II.

BACKGROUND
As summarized by the Delaware Supreme Court in Petitioner's direct appeal, the facts

leading up to his arrest and convictions are as follows:
This [case] involves a number of crimes, including murders,
attempted murders, assaults, and weapons charges, stemming from a
dispute between two rival gangs in Wilmington, Delaware. One is a
group of men who grew up together and are members of a rap group
named the "TrapStars." Appellants [Petitioner] and Kevin Rasin are
TrapStar members, as are Kevin Fayson, Terrance Mills, Darnell
Flowers, Jeroy Ellis and Quincey Thomas. Robert Valentine and
Terry Smith are known associates of the TrapStars. Initially, the
TrapStars performed for street audiences and posted rap videos on
YouTube wearing black hooded sweatshirts depicting their TrapStars
logo. By 2008, the TrapStars had become a criminal street gang and
sold drugs to finance their music-related endeavors. The rival gang,
called "Pope's Group," also sold drugs and engaged in other illegal
activities in West Wilmington. Pope's Group is a subset of the Latin
Kings. The members of Pope's Group are Jose Charriez, T yaire
Brooks, Carlos Rodriguez, Carlos Rosa, David Hill, Carlos Callazo,
Marcus Crawford, and Alvan Butcher. Jason Ortiz and Marco Cruz
are Latin Kings.
In December 2009, the two gangs started fighting. Brooks and
Rodriguez burglarized Nakevis Walker's house, known as the "Trap
House," which was the place where the TrapStars stored firearms,
money, and drugs. Brooks and Rodriguez stole from the TrapStars
because Mills owed them drug money. A few weeks later, Mills, his
mother, and Ellis, confronted Brooks and Rodriguez on the street.
That fight ended when Hill fired a gun into the air. Three weeks

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later, Mills started another fight, this time with Rosa. Ellis, Brooks,
and Hill Opresent, and the fight ended when Hill took Mills' gun and
aimed it at Mills.
The fighting escalated in February 2010, when Fayson and a Latin
King gang member were involved in a drug deal that culminated in
the murder of Anthony Doyle. Hill was related to Doyle. A few days
after Doyle's murder, Hill shot at Fayson in front of a Metro PCS
store. On April 3, 2010, Brooks, Hill, Charriez and Rosa went to
Mills' house. Hill shot through Mills' front door, almost hitting Mills'
sister. The police arrested Charriez and Hill.
The next day, the TrapStars, including Rasin and [Petitioner], met at
Fayson's house to plot revenge. They agreed to post lookouts with
weapons in the area of Franklin and 3rd Street. On April 5, 2010,
Rodriguez and Brooks became suspicious when they noticed Mills
and Thomas in a car, circling the block. One of the two Pope's
Group members contacted Butcher, who joined them, and gave
Rodriguez a gun. During the gun battle that followed, Butcher was
killed. The next day, someone set Eilis's car on fire. After Butcher's
murder, the war between the two gangs intensified. Pope's Group
members were instructed to shoot TrapStars "on sight." On April
30, 2010, Fayson, accompanied by Rasin, and armed with a gun
allegedly procured through [Petitioner], repeatedly shot at Jazzmen
Smith and Kenneth Swanson, who were in a maroon colored car.
Rasin and Fayson then fled in Rasin's Pontiac. Fayson gave the gun
to Rasin.
On May 3, 2010, Crawford and Charriez were driving down Adams
Street. When they stopped at a red light, Rasin ran into the street
behind their car and started shooting at them. Charriez was shot in
the head and killed. At the time of the shooting, [Petitioner],
Valentine, and Fayson were with Rasin at the intersection where
Charriez was killed. Rasin gave [Petitioner] the murder weapon to
clean and reload.
On May 6, 2010, [Petitioner] was shot while walking in the 800 block
of North Adams Street. [Petitioner] survived the shooting and ran
into a nearby apartment. When the police arrived at the scene, they
traced [Petitioner's] steps, and found a handgun in the apartment.
That gun was later connected to previous homicides. On May 15,
2010, [Petitioner] thought Larry Whye, a person he did not know,
was following him. [Petitioner] shot Whye in the hand. Whye
apparently was unaffiliated with either the TrapStars or Pope's
Group.
2

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[Petitioner] was arrested on August 10, 2010, and indicted on 11
felony counts, including gang part1c1pation, second degree
conspiracy, possession of a firearm by a person prohibited, second
degree assault, possession with intent to deliver, and resisting arrest.
Rasin was arrested on September 17, 2010, and indicted on 14 felony
counts, including gang participation, two counts of first degree
murder, two counts of attempted murder, second degree conspiracy,
and possession of a firearm during the commission of a felony. Six
other TrapStars co-defendants pled guilty. Rasin and [Petitioner]
went to trial. Rasin was acquitted on one count of attempted murder
and one count of possession of a firearm during the commission of a
felony. He was convicted on all other charges. [Petitioner] was
acquitted on the charges of conspiracy, resisting arrest, and
possession with intent to deliver, but was found guilty on the lesser
included offense of simple possession. [Petitioner] was found guilty
on all remaining counts.

Tcrylor v. State, 76 A.3d 791, 795-97 (Del. 2013). On May 23, the Superior Court sentenced Petitioner
to a total of fifteen years and six months at Level V incarceration, followed by decreasing levels of
supervision. See Tcryior v. State, 149 A. 3d 241 (Table), 2016 WL 5899236 (Del. Oct. 10, 2016). The
Delaware Supreme Court affirmed Petitioner's convictions and sentences on September 25, 2013.

See Tcrylor, 76 A.3d at 797, 799.
On

ovember 13, 2013, Petitioner filed in the Superior Court a motion for postconviction

relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 17 at 2) The
Superior Court appointed counsel to represent Petitioner in the Rule 61 proceeding but, after
reviewing the case, post-conviction counsel filed a motion to withdraw from representing Petitioner.
(D.I 17 at 2) On December 17, 2015, the Superior Court granted post-conviction counsel's motion
to withdraw at the same time that it denied Petitioner's Rule 61 motion. See State v. Tcrylor, 2015 WL
9592457 (Del. Super. Ct. Dec. 17, 2015). The Delaware Supreme Court affirmed that decision on
October 10, 2016. See Tcryior, 2016 WL 5899236, at *3.

3

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On July 19, 2017, Petitioner filed a second Rule 61 motion. See S fate v. T qylor, 2017 WL
5054262 (Del. Super. Ct. Oct. 23, 2017). The Superior Court summarily dismissed the Rule 61
motion as conclusory and repetitive. Id. Petitioner did not appeal that decision.

III.

GOVERNIN G LE GAL PRINCIPLES
A. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the

petitioner has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b);

O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270,275 (1971). The
AEDPA states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that (A) the applicant has exhausted the remedies available in the courts
of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to give
"state courts one full opportunity to resolve any constitutional issues by invoking one complete
round of the State's established appellate review process." 0 'Sullivan, 526 U.S. at 844-45; see also

Werls v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement
by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either
on direct appeal or in a post-conviction proceeding, in a procedural manner permitting the court to

4

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consider the claims on their merits. See Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); Castille v. Peoples,
489 U.S. 346,351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted,
such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160; Coleman v. Thompson,
501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state's highest
court, but that court " clearly and expressly'' refuses to review the merits of the claim due to an
independent and adequate state procedural rule, the claim is exhausted but procedurally defaulted.

See Coleman, 501 U.S. at 750; Harris v. R.eed, 489 U.S. 255, 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. See MtCandless v. V aughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51. To
demonstrate cause for a procedural default, a petitioner must show that "some objective factor
external to the defense impeded counsel's efforts to comply with the State's procedural rule."

Murrqy v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show
" that [the errors at trial] worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates
that failure to review the claim will result in a fundamental miscarriage of justice. See Edwards v.

Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218,224 (3d Cir. 2001). A petitioner
demonstrates a miscarriage of justice by showing a " constitutional violation has probably resulted in

5

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the conviction of one who is actually innocent." Murrcry, 477 U.S. at 496. Actual innocence means
factual innocence, not legal insufficiency. See Bouslry v. United States, 523 U.S. 614, 623 (1998). In
order to establish actual innocence, the petitioner must present new reliable evidence - not
presented at trial - that demonstrates "it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537-38 (2006); see

also Sweger v. Chesnry, 294 F.3d 506, 522-24 (3d Cir. 2002).
B. Standard of Review
If a state's highest court adjudicated a federal habeas claim on the merits, the federal court
must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d). Pursuant to
28 U.S.C. § 2254(d), federal habeas relief may only be granted if the state court's decision was
"contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States," or the state court's decision was an
unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C.
§ 2254(d)(1) & (2); see also Williams v. Tcrylor, 529 U.S. 362,412 (2000);Appel v. Horn, 250 F.3d 203,
210 (3d Cir. 2001 ). A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C.
§ 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather
than on a procedural or some other ground. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009).
The deferential standard of § 2254(d) applies even "when a state court's order is unaccompanied by
an opinion explaining the reasons relief has been denied." Hanington v. Richter, 562 U.S. 86, 98
(2011). As explained by the Supreme Court, "it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to the
contrary." Id. at 99.

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Finally, when reviewing a habeas claim, a federal court must presume that the state court's
determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(1) . This presumption of
correctness applies both to explicit and implicit findings of fact, and is only rebutted by clear and
convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280,
286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) .
IV.

DISCU SSION
The State contends that the instant Petition is time-barred by AEDPA's one-year statute of

limitations. (D.I 17 at 6-10) Having reviewed the record, it is evident that the Petition will be timebarred if Petitioner's second Rule 61 motion does not trigger statutory tolling. The State argues that
the Superior Court's dismissal of the second Rule 61 motion as successive demonstrates that it was
not properly filed and, therefore, that it cannot statutorily toll the limitations period under §
2244(d)(2). (D.I. 17 at 8-9) Neither the Supreme Court nor the Third Circuit have addressed this
particular issue. See, e.g., Wessel v. Wamn, 201 7 WL 4861618, at *4 (D.N.J. Oct. 27, 2017) (noting
that Third Circuit has not ruled on this issue). Since the statute of limitations defense is not a
jurisdictional bar for habeas petitions,2 the Court will exercise prudence and consider the Petition as
though timely filed.
The Petition asserts the following four grounds for relief: (1) Petitioner is being held in
violation of the Fourth Amendment because there is a "piece of evidence that may prove [his]
evidence that's been withheld and never presented to [him] or [defense counsel]"; (2) his rights
under the Fourteenth Amendment have been violated because several witnesses testified falsely at
his trial in exchange for immunity; (3) defense counsel provided ineffective assistance by failing to:
(a) "strategize" with him when a juror conversed with other jurors about a personal situation that

2

See Holland v. Florida, 560 U.S. 631 , 645 (2010).
7

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could have caused a "chain-reaction of the verdict" and (b) obtain severance of his trial from that of
Kevin Raisin; and (4) post-conviction counsel provided ineffective assistance by failing to: (a)
acknowledge his conflict of interest and withdraw from Petitioner's case and (b) meet Petitioner's
demands and communicate with Petitioner. (D.I. 1 at 4-9)

A.

Claims One and Two: Procedurally Barred

In Claim One, Petitioner asserts that the Superior Court docket indicates a sealed document

was filed that was not presented at trial or provided to him or defense counsel. (D.l. 1 at 4; D.I. 23
at 2) As a result, Petitioner contends he is being held in violation of the Fourth Amendment
because the document may have proven his innocence. Although Petitioner raised Claim One in his
second Rule 61 motion, he did not appeal the Superior Court's denial of that motion and, therefore,
did not present Claim One to the Delaware Supreme Court. Given these circumstances, Petitioner
did not exhaust state remedies for Claim One.
In Claim Two, Petitioner argues that his rights under the Fourteenth Amendment were

violated because several witnesses testified falsely at his trial in exchange for immunity. Petitioner
presented Claim Two to the Superior Court in his first Rule 61 motion, which denied it as meritless.
Although Petitioner appealed the Superior Court's decision, he did not include Claim Two in his
appeal to the Delaware Supreme Court. Therefore, Petitioner did not exhaust state remedies for
Claim Two.
At this point, any attempt by Petitioner to raise Claims One and Two in a new Rule 61
motion would be barred as untimely under Delaware Superior Court Criminal Rule 61 (i)(1) and
barred as second or successive under Rule 61 (i)(2). Since there is no indication that Rule 61 (d)(2)

8

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and (i)(S)'s exceptions to the bars in Rule 61 (i)(1) and (2) apply in this case,3 any attempt to exhaust
state remedies would be futile. Given this futility, the Court must treat Claims Two and Three as
technically exhausted but procedurally defaulted, meaning that the Court cannot review the merits of
the Claims absent a showing of cause and prejudice or that a miscarriage of justice will result absent
such review.
Petitioner does not assert any cause for his default of Claims One and Two. Although
Petitioner implicitly presents in this Petition an argument that post-conviction counsel in his first
Rule 61 proceeding provided ineffective assistance, he does not assert post-conviction counsel's
failure to present Claims One and Two in his Rule 61 motion as one of the allegations of ineffective
assistance. Even if the Court were to liberally construe Petitioner's assertions regarding postconviction counsel's alleged ineffective assistance as an attempt to demonstrate cause under Martinez

v. Ry an, 566 U.S. 1, 12, 16-1 7 (2012), it would be unavailing. In MartineZ; the Supreme Court held
that inadequate assistance or the absence of counsel during an initial-review state collateral
proceeding may establish cause for a petitioner's procedural default of a claim of ineffective
assistance of trial counsel. In order to obtain relief under M artineZ; a petitioner must demonstrate
that the state did not appoint counsel in the initial-review collateral proceeding or there was
ineffective assistance of counsel during the initial collateral proceeding; that the underlying
ineffective assistance of trial counsel claim is substantial; and that he was prejudiced. Id. at 14-1 7. A
" substantial" ineffective assistance of trial counsel claim is one that has "some" merit" which, given

3

Delaware Superior Court Criminal Rule 61 (d)(2) and (i)(S) provide that the procedural bars to relief
in Rule 61 (i)(1), (2), (3), and (4) do not apply to a claim that the court lacked jurisdiction or if the
petitioner pleads with particularity either that (1) new evidence exists that creates a strong inference
that he is actually innocent or (2) a new rule of constitutional law, made retroactive on collateral
review, applies to his case and renders his conviction invalid. See Del. Super. Ct. Cr. R. 61 (d)(2) and
(i)(S). Petitioner does not allege a valid claim of actual innocence; nor does he allege a lack of
jurisdiction or that a new rule of constitutional law applies to his Claims.
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the Martinez Court's citation to Miller-El v. Cockrell, 537 U.S. 322 (2003), appears to be governed by
the standards applicable to certificates of appealability. See MartineZ; 566 U.S. at 13. Significantly,
the Martinez Court explicitly limited its rule, stating that the "holding in this case does not concern
errors in other kinds of proceedings, including appeals from initial-review collateral proceedings."

Id. at 16. The Supreme Court explained that, "[w]hile counsel's errors in these [other kinds of]
proceedings preclude any further review of the prisoner's claim, the claim will have been addressed
by one court, whether it be the trial court, the appellate court on direct review, or the trial court in
an initial-review collateral proceeding." Id. at 11.
Here, Martinez cannot excuse Petitioner's default of Claims One and Two because these
Claims do not allege ineffective assistance of trial counsel. In the absence of cause, the Court will
not address the issue of prejudice. Additionally, the miscarriage of justice exception cannot excuse
Petitioner's default, because he does not assert any new reliable evidence of his actual innocence.
For all of these reasons, the Court will deny Claims One and Two as procedurally barred.

B.

Claim Three: Ineffective Assistance of Defense Counsel

In Claim Three, Petitioner contends that defense counsel provided ineffective assistance by
failing to: (a) "strategize" with him when a juror conversed with other jurors about a personal
situation that could have caused a "chain-reaction of the verdict"; and (b) obtain severance of his

trial from that of Kevin Raisin. Although Petitioner did not include Claim Three (a) in his first Rule
61 motion, he did include Claim Three (b). The Superior Court denied Claim Three (b) as meritless.

See Taylor, 2015 WL 9592457, at *1-2. Petitioner presented both sub-arguments of Claim Three to
the Delaware Supreme Court in his post-conviction appeal. The Delaware Supreme Court affirmed
the Superior Court's denial of Claim Three (b). See Tqylor, 2016 WL 588236, at *2. Since Petitioner
presented Claim Three (a) for the first-time on post-conviction appeal, however, the Delaware
10

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Supreme Court only reviewed the argument for plain error under Delaware Supreme Court Rule 8.
Id. After explaining that Petitioner's contentions in Claim Three (a) "are entirely conclusory and

lacking any factual support or citation to the record," the Delaware Supreme Court stated it was
rejecting Claim Three (a) because it found no plain error. Id. at *2.
While the Delaware Supreme Court's application of Rule 8 would normally lead the Court to
engage in procedural default analysis, the State appears to have waived the procedural bar and,
instead, asserts that Claim Three (a) lacks merit. (D.I. 17 at 16-17) Given these circumstances, the
Court will review both sub-arguments of Claim Three under the deferential standard in § 2254(d)(1).
The Supreme Court precedent governing ineffective assistance of counsel claims is the twopronged standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. See

Wiggins v. Smith, 539 U.S. 510 (2003). Under the first Strickland prong, a petitioner must demonstrate
that "counsel's representation fell below an objective standard of reasonableness," with
reasonableness being judged under professional norms prevailing at the time counsel rendered
assistance. 466 U.S. at 688. Under the second Strickland prong, a petitioner must demonstrate
"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. A reasonable probability is a "probability
sufficient to undermine confidence in the outcome." Id. A court can choose to address the
prejudice prong before the deficient performance prong, and reject an ineffective assistance of
counsel claim solely on the ground that the defendant was not prejudiced. See id. 466 U.S. at 698.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v.

Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987).
Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong
11

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presumption that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689.
With respect to the first prong of the § 2254(d)(1) inquiry, a "state court decision is contrary
to clearly established federal law if it applies a rule that contradicts the governing law set forth in
Supreme Court precedent, or if it confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from that reached by
the Supreme Court." Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Here, the Delaware
Supreme Court decision was not contrary to Strickland; it correctly identified the Stn'ckland standard
applicable to Claim One. See Taylor, 2016 WL 5899236, at *2 n. 6 & 8; see also Williams, 529 U.S. at
406 (" [A] run-of-the-mill state-court decision applying the correct legal rule from [Supreme Court]
cases to the facts of a prisoner's case [does] not fit comfortably within § 2254(d)(1)'s 'contrary to'
clause.") .
The Court must also determine if the Delaware Supreme Court reasonably applied the

Strickland standard to the facts of Petitioner's case. When considering the second prong of the §
2254(d) inquiry, the Court must review the Superior Court's decision with respect to Petitioner's
ineffective assistance of counsel Claims through a "doubly deferential" lens. 4 See Richter, 562 U.S. at
105. The relevant question when analyzing counsel's performance under the "doubly deferential

4

As explained by the Richter Court,
[t]he standards created by Strickland and § 2254(d) are both "highly
deferential," and when the two apply in tandem, review is doubly so.
The Strickland standard is a general one, so the range of reasonable
applications is substantial. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d).

Richter, 562 U.S. at 105 (internal citations omitted).
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lens" "is not whether counsel's actions were reasonable, [but rather], whether there is any reasonable
argument that counsel satisfied Strick/ands deferential standard." Id. In tum, when assesslllg
prejudice under Stn·ckiand, the question is "whether it is reasonably likely the result would have been
different" but for counsel's performance, and the "likelihood of a different result must be
substantial, not just conceivable." Id. FU1ally, when viemg a state court's determlllation that a

Strickland claim lacks merit through the lens of § 2254(d), federal habeas relief is precluded " so long
as fairmlllded jurists could disagree on the correctness of the state court's decision." Id. at 101.

1. Claim Three (a)
In Claim Three (a), Petitioner contends that defense counsel provided llleffective assistance

by failing to " strategize with [him] durU1g trial when a jury member conversed with other jurors
about a family member belllg murdered and that could've caused a chw reaction of the verdict."
(D.I. 1 at 8) In his Reply to the State's Answer, Petitioner supplements Claim Three (a) by stating

that defense counsel should have moved to have an additional "voir dire [of the] entire juror panel
due to Juror #11 comlllg forward [after] fail[lllg] to address the court durU1g jury selection that her
brother was killed." (D.I. 23 at 3) Petitioner contends that Juror

o. 11 and other members of the

jury should have been excused if Juror No. 11 shared that U1formation, because such lllformation
would have biased the jury. See id.
A habeas petitioner "cannot meet his burden to show that counsel made errors so serious
that his representation fell below an objective standard of reasonableness based on vague and
conclusory allegations." Zettlemoyer v. Fu/comer, 923 F.2d 284, 298 (3d Cir.1991). In his Rule 61
motion, when asserting the juror misconduct issues as a matter of general trial error, Petitioner
stated, "Even though both [jury] issues [were] addressed ill the judge's chambers, everyone agreed
for them to remw on the panel." (D.I. 15-9 at 81) This statement U1dicates that defense counsel
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did address the issue of Juror No. 11 with the trial court. To the extent defense counsel raised the
issue about Juror No. 11 's sharing of information to the trial court and then agreed to retain that
juror, Petitioner's conclusory and vague allegation of bias fails to demonstrate that counsel's decision
was unreasonable. Similarly, to the extent defense counsel raised the issue of Juror No. 11 and the
trial court overruled counsel's objection, Petitioner's vague and conclusory allegation of bias fails to
demonstrate that defense counsel performed deficiently. Finally, Petitioner's vague and conclusory
allegation of bias fails to demonstrate a reasonable probability that the result of his trial would have
been different but for defense counsel's actions concerning Juror No. 11 .
Additionally, as noted by the State, Petitioner's co-defendant Rasin unsuccessfully raised
substantially the same ineffective assistance of counsel claim in his first Rule 61 motion. (D.I 17 at
17) ; see &sin v. State, 2018 WL 2355941, at *1 (Del. May 23, 2018). Rasin argued that counsel was
ineffective for not requesting a mistrial due to potential bias of a juror whose brother had been
murdered. See id. The Superior Court held that counsel had acted reasonably in responding to
potential juror bias and, even if counsel had not, Rasin failed to show he suffered prejudice. (D.I.
17-1 at 8) The Superior Court explained:
Defendant has failed to demonstrate that by failing to request a
mistrial or further inquiry into the Juror No. 11 issue trial counsel
was ineffective pursuant to the two-prong Strickland test.
Defendant's counsel and counsel for the co-defendant failed to
object to Juror o. 11 's explanation of her potential bias and that she
mentioned it to another member of the jury. The apparent incident
had occurred 27 years earlier. The Court observed that Juror No.
11 's demeanor was "excellent." As any prejudice to the jury would
have affected both defendants, the fact that neither counsel objected
is evidence that their actions did not fall below an objective standard
of reasonableness.
Also, Defendant has failed to show that counsel's actions were
dispositive to Defendant's conviction, that is, that there was a
"reasonable probability that, but for counsel's unprofessional errors,
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the result of the proceeding would have been different." Defendant
merely proffers that "it was impossible to determine whether
Defendant had an impartial jury." Without more, mere conjecture of
juror bias is insufficient to warrant additional inquiry by the court.
Defendant's ineffective assistance of counsel claim as to the Juror
No. 11 issue is thus unavailing.
(D.I. 17-1 at 8) The Court views the Superior Court's decision in Rasin as additional support for its
conclusion that Petitioner has failed to satisfy the Strickland standard for Claim Three (a) in this
proceeding. Therefore, the Court will deny Claim Three (a) as meritless.

2. Claim Three (b)
In Claim Three (b), Petitioner contends that defense counsel provided ineffective assistance
by failing to file a motion to sever his trial from Rasin's. The Superior Court rejected Claim Three

(b) after applying the four-factor test established in Floudiotis v. State, 726 A.2d 1196, 1210 (Del.
1999), and concluding that it would not have severed the trials even if Petitioner had asked. See

Tqylor, 2015 WL 9592457, at *2. On post-conviction appeal, the Delaware Supreme Court agreed
that a motion to sever would have been denied because three of the four Floudiotis factors did not
favor severance. See Tqylor, 2016 WL 5899236 at *2. Consequently, the Delaware Supreme Court
held that defense counsel did not provide ineffective assistance under Strickland because the failure
to file a meritless motion to sever did not prejudice Petitioner. Id.

An attorney does not provide ineffective assistance by failing to raise meritless objections or
file meritless motions. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir.1999). In turn, on
habeas review, the Court must accept as correct the Delaware Supreme Court's interpretation and
application of Delaware law.5 See Bradshaw v. Richey, 546 U.S . 74 (2005). For these reasons, the

In fact, as noted by Petitioner's post-conviction counsel in his motion to withdraw, the trial court
actually denied a motion for relief from prejudicial joinder that was filed by one of Petitioner's other
co-defendants,Jeroy Ellis. (D.I. 15-9 at 66 n.32)
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Court concludes that the Delaware Supreme Court reasonably applied Strickland in denying
Petitioner's allegation regarding counsel's failure to file a severance motion.
C.

Claim Four: Ineffective Assistance of Postconviction Counsel

The "federal role in reviewing an application for habeas corpus is limited to evaluating what
occurred in the state or federal proceedings that actually led to the petitioner's conviction; what
occurred in the petitioner's collateral proceeding does not enter into the habeas calculation." Hassine

v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998). In addition, a claim asserting the ineffective
assistance of post-conviction counsel does not assert an issue cognizable on federal habeas review,
because a petitioner does not have Sixth Amendment right to counsel in collateral proceedings. See

Martinez v. Ryan, 566 U.S. 1, 9 (2012) (refraining from recognizing or creating automatic
constitutional right to counsel in collateral proceedings). In Claim Four, Petitioner contends that
postconviction counsel provided ineffective assistance by failing to: (1) acknowledge his conflict of
interest and withdraw from the case; and (2) meet Petitioner's demands and communicate with
Petitioner during their short time together. The Court will deny Claim Four because it does not
assert an issue cognizable on federal habeas review.

V.

CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether to

issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2). A
certificate of appealability is appropriate when a petitioner makes a "substantial showing of the
denial of a constitutional right" by demonstrating that "reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2); See also

Slack v. McDaniel, 529 U.S. 473,484 (2000).

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The Court has concluded that the instant Petition does not warrant relief. Reasonable jurists
would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate of
appealability.

VI.

CONCLUSION
For the reasons discussed, the Court will deny the Petition without holding an evidentiary

hearing. An appropriate Order will be entered.

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