Whitehurst v. Phelps et al
Filing
19
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/11/2021. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IZZY WHITEHURST,
Petitioner,
v.
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
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Civil Action No. 18-107-RGA
MEMORANDUM OPINION
Izzy Whitehurst. Pro se Petitioner.
Martin B. O’Connor, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.
March 11, 2021
Wilmington, Delaware
1
Warden Robert May has replaced former Warden Dana Metzger, an original party to the case.
See Fed. R. Civ. P. 25(d).
/s/ Richard G. Andrews
ANDREWS, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Petitioner Izzy Whitehurst’s Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (“Petition”). (D.I. 1) The State filed an Answer in
opposition, contending that the Petition should be dismissed in its entirety. (D.I. 9) For the
reasons discussed, the Court will dismiss the Petition.
I.
BACKGROUND
A. Factual Background
As summarized by the Delaware Supreme Court in Petitioner’s direct appeal, the facts
leading up to Petitioner’s conviction are as follows:
On the night of October 19, 2011, Erogers Bey (“Bey”) pulled into
the parking lot of the Budget Inn, located in New Castle County,
Delaware. People noticed that he was intoxicated, waving around a
lot of cash, and generally attracting attention. When the residents of
the Budget Inn saw Bey, they saw him as an easy mark. Jessica
“Bella” Harvey, (“Harvey”), who lived in room 109 and worked as
a prostitute, noticed Bey, and, along with Tasha “China” Mahaley
(“Mahaley”), spoke to him at his car. Both wanted to “date” Bey.
[Petitioner] and Mahaley, his girlfriend and mother of his child,
approached [Petitioner’s] friend of thirty years, Tyrone “Uncle
Butters” Brown (“Brown”), and asked him if he had a gun because
[Petitioner] was “going to knock off the joker around the corner.”
Brown told [Petitioner] he did not have a gun and went back to his
room. [Petitioner] also approached Chris White (“White”) and told
him that they should “get” or rob Bey. White refused.
Budget Inn's video surveillance, which the police watched with a
Budget Inn clerk, showed that Mahaley left room 211, which she
shared with [Petitioner] and their child, and went downstairs into
room 109. An unknown black male then left room 109 and walked
towards Memorial Drive and met another person. The unknown
Black male who had been in room 109 left the area, but Mahaley
and the other individual, a Black male with dreadlocks, walked back
towards room 109.
2
Mahaley then went back to her room, room 211, while the Black
male stood outside of room 109. A moment later, [Petitioner],
wearing a Black hooded sweatshirt, exited room 211, walked down
the steps and met up with the Black male outside of room 109. They
lined up in a tactical formation along the wall with [Petitioner]
behind the other man, who was holding a gun.
Bey was inside room 109 with Harvey. After Harvey's dealer had
delivered drugs to her, they heard [Petitioner] knock on the door.
Harvey opened the door, and [Petitioner] pushed his way into the
room. A gun barrel prevented Harvey from closing the door.
Another resident, Deborah Pyle heard a gunshot from within room
109 a minute or so before seeing [Petitioner] and the other man run
out of the room.
As soon as Harvey saw the man with a gun, she barricaded herself
in the bathroom. She heard a commotion, including Bey “asking for
whatever was happening to stop.” She also heard Bey say, “Izzy,
why are you doing this?” When the noise stopped for a moment,
Harvey opened the door a crack and peeked out. She saw
[Petitioner] on top of Bey and the man with the gun was beating
Bey's head with the gun butt. [Petitioner] was “running Bey's
pockets.” Harvey closed the door again. Later, Harvey came out of
the bathroom and saw Bey, covered in blood, rolling around the
floor mumbling incoherently. She left to tell Mahaley what had
happened. Mahaley grabbed her cell phone and left the Budget Inn.
Bey, missing his cellphone and keys, went to the Budget Inn office
to call friends to get him. Bey then saw Harvey running in the
parking lot and ran after her. Harvey made her way to the Budget
Inn office, and another resident of the Budget Inn prevented Bey
from entering the office after Harvey.
The Budget Inn clerk called 911. When the police arrived, they
questioned Harvey, who said she did not know who had been
chasing her, and that person was gone. Officers looked at the
security tape and it showed Harvey in the lobby and White blocking
Bey from entering after her. There were no reports of any shots
fired, or injuries to anyone.
Officer Michael Rief (“Officer Rief”), a patrol officer assigned to
the area of the Budget Inn, returned on routine patrol about an hour
after being sent in response to the 911 call. He noticed White in the
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parking lot and stopped to talk to him about the earlier incident.
While the two were talking, Bey came around the corner and said,
“I've been robbed.” Officer Rief asked Bey, who was unknown to
the officer, to wait until he finished his conversation with White.
Bey said it did not matter. As he walked away, White mentioned
that Bey was the man he was trying to keep out of the lobby.
Bey was eventually brought to the Christiana Hospital emergency
room by two women around 1 a.m. Linda Ramsey (“Ramsey”), a
forensic nurse, was on duty. Through her training, Ramsey was able
to identify that Bey's head had both a gunshot entry wound and an
exit wound. Bey also had other wounds to his hand and elbow.
Officer Brian Crisman (“Officer Crisman”) was with Bey when he
regained consciousness around 5 a.m. Bey mumbled that he had
driven to a motel across from the Travel Lodge and been jumped by
two black men who took $600 in cash, a phone and the keys to his
vehicle. He also told Officer Crisman that one of the men who
jumped him was [Petitioner].
Detective Anthony Tenebruso was the first officer to arrive at the
Budget Inn in response to the Christiana Hospital's report. Other
officers arrived within the next hour. Detective Lano photographed
the crime scene in room 109 and collected a black coat found in a
trash can outside of room 109. Detective Lano also collected
samples from bloodstains on the carpet and on the tile floor outside
the bathroom in room 109. The police were not able to recover any
drugs, guns, bullets or shell casings from room 109. Numerous
people had been through the room before the police were called and
learned it was a crime scene.
After the police obtained search warrants, Detective Lano returned
to the Budget Inn and took photographs of rooms 211 and 216. He
also collected a black sweatshirt from room 211, which contained
bloodstains that belonged to Bey. Skin cells collected from the
interior of the cuffs of the same sweatshirt contained [Petitioner’s]
DNA, and he admitted that it was his. Bey's blood was determined
to be on the carpet in room 109.
Whitehurst v. State, 83 A.3d 362, 363–65 (Del. 2013).
B. Procedural Background
4
Petitioner was arrested on October 20, 2011 in connection with the robbery of Bey. (D.I.
13 at 9) He was indicted on December 19, 2011 and charged with one count of first degree
robbery, one count of attempted first degree murder, one count of first degree burglary, one
count of second degree conspiracy, three counts of possession of a firearm during the
commission of a felony (“PFDCF”), and one count of possession of a firearm by a person
prohibited (“PFBPP”). (D.I. 12-4 at 2, Entry No. 8; D.I. 13-12 at 30-34) He was re-indicted on
August 13, 2012 to add two counts of tampering with a witness. (D.I. 12-4 at 9, Entry No. 42;
D.I. 13-12 at 31-39)
Petitioner filed several pre-trial motions, including an August 17, 2012 motion to
suppress his recorded prison phone calls. (D.I. 13-1 at 9 at Entry No. 25; D.I. 13-1 at 12, Entry
Nos. 44, 45) On September 24, 2012, Petitioner was re-indicted on charges of attempted first
degree murder, three counts of PFDCF, first degree robbery, first degree burglary, two counts of
second degree conspiracy, PFBPP, and three counts of tampering with a witness. On October 3,
2012, Petitioner filed a memorandum in support of the motion to suppress, to which the State
filed a reply. (D.I. 9 at 2; D.I. 12-4 at 12, Entry No. 68) On October 12, 2012, after a hearing,
the Superior Court denied Petitioner’s motion to suppress the prison phone calls. (D.I. 12-4 at
14, Entry No. 87; D.I. 13-1 at 21-40)
On October 16, 2012, the State entered a nolle prosequi on the charge of PFBPP, and
Petitioner’s trial began. (D.I. 13-1 at 18, Entry No. 103) On October 26, 2012, a Superior Court
jury found Petitioner guilty of first degree assault (lesser-included offense of attempted first
degree murder), first degree robbery, first degree burglary, second degree conspiracy, three
counts of PFDCF, and three counts of tampering with a witness. (D.I. 9 at 2; D.I. 13-1 at 18,
5
Entry No. 103) The Superior Court sentenced Petitioner on March 15, 2013 to a total of fortytwo years at Level V incarceration, suspended after thirty-three years and six months for
decreasing levels of supervision. (D.I. 12 at 36-41; D.I. 13-1 at 19, Entry No. 112) Petitioner
appealed, and the Delaware Supreme Court affirmed Petitioner’s conviction on December 20,
2013. See Whitehurst v. State, 83 A.3d 362 (Del. 2013).
Petitioner filed a motion for postconviction relief pursuant to Delaware Superior Court
Criminal Rule 61 (“Rule 61 motion”) on April 14, 2014. (D.I. 12-4 at 19, Entry No. 134; D.I.
13-11 at 7) Although the Superior Court appointed counsel to represent Petitioner, counsel filed
a motion to withdraw from representation along with a detailed memorandum in support of that
motion. (D.I. 13-11) The Superior Court denied the Rule 61 motion on March 31, 2016 while
simultaneously granting counsel’s motion to withdraw. See State v. Whitehurst, 2016 WL
1424502, at *12 (Del. Super. Mar. 31, 2016). The Delaware Supreme Court affirmed that
decision on November 16, 2016. See Whitehurst v. State, 151 A.3d 897 (Table), 2016 WL
6803774 (Del. Nov. 16, 2016).
Petitioner filed a habeas petition in this Court on May 9, 2017. (See Whitehurst v.
Phelps, Civ. Act. No. 17-558-RGA at D.I. 1) After being notified that the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) applied to his petition, and that AEDPA
imposed procedural limitations on a prisoner’s ability to file subsequent habeas corpus petitions,
Petitioner withdrew his application so that he could file one, all-inclusive application. (See id. at
D.I. 4) On October 18, 2017, this Court dismissed Petitioner’s petition without prejudice. (See
id. at D.I. 7)
6
On January 14, 2018, Petitioner filed the instant Petition, and it was assigned a new civil
action number.
II.
GOVERNING LEGAL PRINCIPLES
A. Exhaustion and Procedural Default
A federal court may consider a habeas petition filed by a state prisoner only “on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Absent exceptional circumstances, a federal court cannot grant
habeas relief for a claim challenging the validity of the petitioner’s state custody 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.” O’Sullivan, 526 U.S. at
844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
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exhaustion requirement by demonstrating that the habeas claims were “fairly presented” to the
state’s highest court, either on direct appeal or in a post-conviction proceeding, in a procedural
manner permitting the court to consider the claims on their merits. Bell v. Cone, 543 U.S. 447,
451 n.3 (2005); 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. Reed, 489 U.S.
255, 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at
750-51. To demonstrate cause for a procedural default, a petitioner must show that “some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual
prejudice, a petitioner must show “that [the errors at trial] worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494.
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Alternatively, a federal court may excuse a procedural default if the petitioner
demonstrates that failure to review the claim will result in a fundamental miscarriage of justice.
See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d
Cir. 2001). A petitioner demonstrates a miscarriage of justice by showing a “constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477
U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. See Bousley v.
United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner
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 Sweger v. Chesney, 294 F.3d 506, 522-24 (3d
Cir. 2002).
B. Standard of Review
If a state’s highest court adjudicated a federal habeas claim on the merits, the federal
court must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d).
Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted 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. Taylor, 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
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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.” Harrington v. Richter, 562 U.S. 86,
98 (2011). As explained in Harrington, “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. The Supreme Court expanded the purview of the Richter presumption in
Johnson v. Williams, 568 U.S. 289 (2013). Pursuant to Johnson, if a petitioner has presented the
claims raised in a federal habeas application to a state court, and the state court opinion addresses
some but not all of those claims, the federal habeas court must presume (subject to rebuttal) that
the state court adjudicated the unaddressed federal claims on the merits. Id. at 298-301. The
consequence of this presumption is that the federal habeas court will then be required to review
the previously unaddressed claims under § 2254(d) whereas, in the past, federal habeas courts
often assumed “that the state court simply overlooked the federal claim[s] and proceed[ed] to
adjudicate the claim[s] de novo.” Id. at 292-93.
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 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);
Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341
(2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues,
whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions).
III.
DISCUSSION
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Petitioner’s timely filed § 2254 Petition asserts four grounds for relief: (1) the State
lacked a legal and factual basis to subpoena his recorded prison phone calls; (2) the Superior
Court erred by denying Petitioner’s motion to suppress the recorded prison phone calls, and the
admission of those phone calls tainted his trial; (3) the Superior Court erred by refusing to give a
missing evidence instruction; and (4) the Superior Court erred by denying Petitioner’s motion to
suppress as hearsay Detective Rizzo’s testimony concerning a key witness’ identification of
Petitioner. (D.I. 1)
A. Claim One: The State Lacked a “Legal Factual” Basis to Subpoena Petitioner’s
Prison Phone Calls
During the trial preparation in this case, victim Erogers Bey (“Bey”) informed Delaware
State Police Detective Steven Rizzo that he had received a phone call from Petitioner’s
girlfriend, Mahaley, asking him if he was going to go to court and “trying to persuade him not to
go.” Whitehurst, 83 A.3d at 366. As a result, law enforcement was concerned Petitioner was
tampering with the State’s witnesses. Id. One day after the witness prep meeting with Bey, the
State subpoenaed Petitioner’s prison phone calls. Id.
Petitioner filed a motion to suppress the recorded phone calls, arguing that the State had
illegally obtained his recorded prison phone calls because there were insufficient facts to justify
the issuance of a subpoena. (D.I. 13 at 5-6, 12-13) After conducting a hearing, the Superior
Court denied the motion to suppress. (D.I. 13-1 at 21-40) The recorded phone calls were
admitted during Petitioner’s trial.
On direct appeal, Petitioner challenged the Superior Court’s denial of his suppression
motion, specifically alleging that there was an insufficient factual basis for the issuance of the
subpoena. (D.I. 13) The State construed Petitioner’s argument as alleging that the Superior
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Court erred in denying his suppression motion because the subpoena for his phone calls violated
his rights under the First and Fourth Amendments. (D.I. 13-3 at 14-15) The State viewed
Petitioner’s argument to be that the subpoena had been improperly issued under the standard
articulated in Procunier v. Martinez, 2 which the Delaware Supreme Court had adopted as the
standard for assessing the reasonableness of a subpoena for an inmate’s outgoing prison
communications in its 2009 decision in Shannon Johnson v. State, 983 A.2d 904 (Del. 2009). 3
2
The Supreme Court case, Procunier v. Martinez, established that prison officials cannot censor
outgoing inmate mail merely because it contains: exaggerated complaints; magnified grievances;
expressions of inflammatory political, racial or religious views; unwelcome criticism of policies,
rules or officials; or disrespectful comments. See Procunier v. Martinez, 416 U.S. 396, 415–16
(1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).
In Shannon Johnson v. State, the Delaware Supreme Court opined that the State’s subpoena of
an inmate’s prison calls implicates both First and Fourth Amendment considerations. See
Shannon Johnson v. State, 983 A.2d 904 (Del. 2009) (analyzing subpoena of out-going mail
under First and Fourth Amendment) (Johnson I); Tywann Johnson v. State, 53 A.3d 302 (Table),
2012 WL 3893524 (Del. Sept. 7, 2012) (applying First Amendment test adopted in Johnson I to
recorded prison phone calls) (Johnson II); State v. Tywann Johnson, 2011 WL 4908637 (Del.
Super. Ct. Oct. 5, 2011) (applying First Amendment and Fourth Amendment tests analyzed in
Johnson I to recorded prison phone calls.). After thoroughly reviewing “the varied approaches
taken by the Circuit courts in light of somewhat unclear United States Supreme Court
precedents,” the Delaware Supreme Court held:
3
[W]e adopt the approach taken by the Third Circuit—recognizing
that the distinctions between incoming and outgoing mail are
significant. Accordingly, we will apply the [Procunier v. Martinez]
standard to any action taken regarding an inmate's unprivileged
outgoing mail as the proper analysis. To survive this scrutiny, we
must determine that: (1) the contested actions furthered an important
or substantial government interest unrelated to the suppression of
expression; and (2) the contested actions were no greater than
necessary for the protection of that interest.
Johnson I, 983 A.2d at 917.
12
(D.I. 13-3 at 16-26) Petitioner did not contradict the State’s construction of his appellate
argument. (D.I. 13-4)
In its appellate decision for Petitioner’s case, the Delaware Supreme Court viewed
Petitioner’s argument as alleging that the Superior Court improperly denied the suppression
motion because the subpoena for Petitioner’s prison phone calls failed to satisfy the Procunier v.
Martinez standard as articulated in Johnson I. See Whitehurst, 83 A.3d at 363, 367-68. The
Delaware Supreme Court explained that, under Delaware precedent, since “there is a legitimate
or substantial governmental interest if the defendant is engaged in witness tampering,” “[t]his
governmental interest falls within the category of security concerns that the inmate is engaged in
‘ongoing criminal conduct.’” Id. at 367. The Delaware Supreme Court concluded that the State
had satisfied the Procunier v. Martinez standard, because “[a]n on-going investigation in one
crime and the investigation of a potential subsequent crime, witness tampering, fall within the
important government interest of investigating and preventing criminal activity.” Id. The
Delaware Supreme Court also concluded, “there is no indication that the State’s recording
activities were greater than necessary to further its investigatory efforts.” Id. at 368. Based on
this analysis, the Delaware Supreme Court held that: (1) the State’s efforts to record and collect
Petitioner’s prison phone calls did not violate his First Amendment rights; and (2) the subpoena
of Petitioner’s prison phone records did not violate his Fourth Amendment rights. Id. at 367368.
In Claim One of this proceeding, Petitioner contends that the State illegally obtained his
recorded prison phone calls because there were insufficient facts to justify the issuance of a
subpoena for the recordings. Petitioner uses the same language that his attorney used when
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challenging the Superior Court’s denial of his suppression motion on direct appeal. Given the
State’s and Delaware Supreme Court’s treatment of the argument, the Court liberally construes
Petitioner’s argument in Claim One as contending that the Superior Court erred in refusing to
suppress the phone call recordings because it improperly determined that the issuance of the
subpoena to obtain them did not violate his First and Fourth Amendment rights.
The Fourth Amendment to the United States Constitution protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures. .. and no Warrants shall issue, but upon probable cause....” U.S. Const. amend. IV.
“The basic purpose of this Amendment, as recognized in countless decisions of [the Supreme]
Court, is to safeguard the privacy and security of individuals against arbitrary invasions by
government officials.” Camara v. Mun. Court of San Francisco, 387 U.S. 523, 528 (1967).
“Though there has been general agreement as to the fundamental purpose of the Fourth
Amendment, translation of the abstract prohibition against ‘unreasonable searches and seizures'
into workable guidelines for the decision of particular cases is a difficult task which has for many
years divided the members of [the Supreme] Court.” Id. at 528–29. Notably, the Supreme
Court has held, “Prisoners have no legitimate expectation of privacy and ... the Fourth
Amendment's prohibition on unreasonable searches does not apply in prison cells.” Hudson v.
Palmer, 468 U.S. 517, 530 (1984); Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001) (“The
Supreme Court has concluded that the Fourth Amendment right to privacy, to be free from
unreasonable searches, is fundamentally inconsistent with incarceration.”).
The First Amendment guarantees freedom of speech and protects “against unjustified
governmental interference with the intended communication.” Procunier v. Martinez, 416 U. S.
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at 408-09. However, “inspection of [an inmate’s] personal mail for contraband serve[s] a
legitimate purpose and [does] not violate his first amendment rights.” Martin v. Tyson, 845 F.2d
1451, 1457 (7th Cir. 1988). Relatedly, the Third Circuit has held, “Prisoners have no right to
unlimited telephone use, and reasonable restrictions on telephone privileges do not violate their
First Amendment rights.” Almahdi v. Ashcroft, 310 F. App’x 519, 522 (3d Cir. 2009); see also
Fennell v. Horvath, 2019 WL 1981403, at *5 (E.D. Pa. May 3, 2019) (noting that “courts in our
Circuit recognize prison inmates do not have a First Amendment right of freedom from
monitoring and recording their phone calls, excepting calls with inmates' attorneys.”).
Although Claim One asserts that the issuance of the subpoena violated Petitioner’s First
and Fourth Amendment rights, the Claim’s essential argument is that the Superior Court erred by
denying Petitioner’s motion to suppress his recorded phone calls. Notably, First Amendment
concerns relating to warrants and the seizure of instruments of crime or contraband become part
of the Fourth Amendment analysis because, under the Fourth Amendment, the court must
“examine what is ‘unreasonable’ in the light of the values of freedom of expression.” Roaden v.
Kentucky, 413 U.S. 496, 504 (1973). When viewed in context, Petitioner’s sub-arguments
concerning the Delaware state courts’ alleged improper factual and constitutional analyses
appear to constitute his expression of dissatisfaction for the reasoning behind the Superior
Court’s denial of the suppression motion.
With this legal framework in mind, the Court views the Supreme Court decision, Stroud
v. United States, as providing the most relevant precedent for determining the true nature of the
instant issue. See Stroud v. United States, 251 U.S. 15, 21 (1919). In Stroud, the Supreme Court
held that an inmate's outgoing letters – containing inculpatory information and read by jailers
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pursuant to jail practice – could be introduced against the inmate at trial without violating his
Fourth Amendment rights. Id. at 21-22. Given these circumstances, the fact that Petitioner’s
motion to suppress invoked the First Amendment in aid of a Fourth Amendment illegal seizure
of evidence claim does not transform the nature of Claim One to something other than the typical
Fourth Amendment claim challenging a state court’s failure to exclude allegedly improperly
obtained evidence. See, e.g., United States v. Mohamud, 843 F.3d 420, 431 (9th Cir. 2016)
(noting that “the district court correctly rejected Mohamud’s First Amendment challenge, as
motions to suppress based on First Amendment violations are analyzed under the Fourth
Amendment.”).
Pursuant to Stone v. Powell, Fourth Amendment claims are not cognizable on federal
habeas review if the petitioner had a full and fair opportunity to litigate the claim in the state
court. See Stone v. Powell, 428 U.S. 465, 494 (1976); see also Wright v. West, 505 U.S. 277, 293
(1992). A petitioner is considered to have had a full and fair opportunity to litigate such claims
if the state has an available mechanism for suppressing evidence seized in or tainted by an illegal
search or seizure, irrespective of whether the petitioner actually availed himself of that
mechanism. See U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978); Boyd v. Mintz,
631 F.2d 247, 250 (3d Cir. 1980). Conversely, a petitioner has not had a full and fair opportunity
to litigate a Fourth Amendment claim, and therefore avoids the Stone bar, if the state system
contains a structural defect that prevented the state court from fully and fairly hearing the
petitioner's Fourth Amendment argument. See Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir.
2002). Notably, “an erroneous or summary resolution by a state court of a Fourth Amendment
claim does not overcome the [Stone] bar.” Id.
16
In this case, Petitioner filed a pre-trial motion to suppress the recordings of his phone
calls pursuant to Rule 41 of the Delaware Superior Court Rules of Criminal Procedure. The
Superior Court denied the suppression motion after conducting a hearing. Petitioner then
challenged that decision in his direct appeal to the Delaware Supreme Court, presenting the same
arguments raised in the instant Petition. The Delaware Supreme Court affirmed the Superior
Court’s judgment after rejecting Claims One and Two as meritless. See Whitehurst, 83 A.3d at
366-68.
This record clearly demonstrates that Petitioner was afforded a full and fair opportunity
in the Delaware state courts to litigate his argument that his recorded phone calls were illegally
provided to the State. The fact that Petitioner disagrees with the state court decisions and the
reasoning utilized by the state courts is insufficient to overcome the Stone bar. Therefore, the
Court will deny Claim One as barred by Stone.
Despite the foregoing, the Court cannot ignore the somewhat unique casting of
Petitioner’s instant argument as a First Amendment challenge to the State’s subpoena power and
its effect on the suppression or, as in this case, the non-suppression, of evidence obtained via a
subpoena. Consequently, the Court will exercise prudence and also independently consider
whether the Delaware Supreme Court reasonably applied clearly established Federal law when
holding that the Superior Court’s denial of the suppression motion did not violate Petitioner’s
First Amendment rights.
“‘[C]learly established Federal law’ . . . includes only the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions.” Woods v. Donald, 575 U.S. 312, 317 (2015). The
Court notes that the Supreme Court precedent relied upon by the Delaware Supreme Court when
17
rejecting Claim One during Petitioner’s appeal – Procunier v. Martinez – involves mail sent
from inmates to persons outside of prison, not the monitoring and transmission of inmates’
telephone calls. In fact, there is no Supreme Court precedent directly addressing the
constitutional implications concerning the transmission of an inmate’s recorded telephone calls
to the prosecution, nor any Supreme Court decision involving facts “materially
indistinguishable” from those presented here. Consequently, the Delaware Supreme Court’s
denial of Claim One was not contrary to clearly established federal law. See Woods, 575 U.S. at
317 (“Because none of our cases confront ‘the specific question presented by this case,’ the state
court’s decision could not be ‘contrary to’ any holding from this Court.”).
In the absence of a Supreme Court case directly on point, the Court’s next inquiry is
whether the Delaware Supreme Court unreasonably applied clearly established general principles
regarding the First Amendment rights of prisoners to the circumstances of Petitioner’s case.
While there is no Supreme Court precedent specifically addressing an inmate’s constitutional
rights with respect to phone calls, there is precedent addressing an inmate’s constitutional rights
with respect to other forms of communication. For instance, the Supreme Court has held that “a
prison inmate retains those First Amendment rights [of freedom of speech and association] that
are not inconsistent with his status as a prisoner or with the legitimate penological objectives of
the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974) (evaluating
constitutionality of limiting one channel of communication with those outside of prison through
review of adequacy of alternative channels of communication); see also Thornburgh v. Abbott,
490 U.S. 401 (1989) (evaluating regulations governing receipt of subscription publications by
federal prison inmates). Nevertheless, restrictions on inmates’ speech are constitutional if they
18
are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89
(1987). Restrictions placed on an inmate’s outgoing mail will not violate the First Amendment
if: (1) the contested actions furthered an important or substantial government interest unrelated to
the suppression of expression; and (2) the contested actions were no greater than necessary for
the protection of that interest. See Procunier v. Martinez, 416 U.S. at 413.
In 2009, the Delaware Supreme Court explicitly adopted the Procunier v. Martinez test to
address whether the State’s seizure of outgoing prisoner mail was proper. See Johnson I, 983
A.2d at 922. Then, in 2012, the Delaware Supreme Court expressly applied the Johnson I test
(and therefore the Procunier v. Martinez test) when determining the propriety of seizing
outgoing prisoner telephone calls. See Johnson II, 2012 WL 3893524, at *1-2 (Del. Sept. 7,
2012). To the extent the Court should view Claim One as alleging a First Amendment violation
independent of the previously discussed Fourth Amendment violation, the Court concludes that
the Delaware Supreme Court reasonably extended Procunier’s two-part test for out-going mail to
determine the reasonableness of the subpoena issued to collect Petitioner’s phone calls.
The Court further concludes the Delaware Supreme Court reasonably applied clearly
established Federal law when it determined that the State’s criminal investigation of Petitioner
and Mahaley’s possible witness tampering constituted a substantial government interest
unrelated to the suppression of Petitioner’s expression. See, e.g., Perez v. Fed. Bureau of
Prisons, 229 F. App'x 55, 57 (3d Cir. 2007) (holding a “prisoner’s right to telephone access is
subject to rational limitations in the face of legitimate security interests of the penal institution.”).
It is well-established that the government has a legitimate substantial interest in protecting the
integrity of an ongoing criminal investigation, such as that achieved by preventing witness
19
tampering. See United States v. Warrant, 2017 WL 3669564, at *5 (D.N.J. Aug. 15, 2017)
(“Courts have recognized the Government’s compelling interest in protecting the integrity of
criminal investigations […] in multiple contexts.”); Oliver v. Elliot, 2015 WL 2354565, at *2 (D.
Mont. May 15, 2015) (noting the “government has a legitimate interest in preventing witness
tampering.”); United States v. Hunter, 2013 WL 593768, at *4 (D. Minn. Jan. 16, 2013) (finding
that administrative segregation did not violate pretrial detainee’s due process rights because it
was rationally related to the legitimate government interest of preventing witness tampering).
Simply stated, the First Amendment does not shield an inmate’s expression of threats to
government witnesses. See United States v. Parker, 871 F.3d 590, 605 (8th Cir. 2017); see also
Butti v. Unger, 2005 WL 1676739, at *3 (S.D.N.Y. July 15, 2005) (holding that the admission of
evidence obtained through a prison mail watch did not violate Butti’s First Amendment rights,
because the “temporary surveillance of Butti's mail was based on a reasonable suspicion of his
continuing criminal activity, and was reasonably related to legitimate penological interests.”)
The record supports the Delaware state courts’ determination that there were sufficient
facts for issuing the subpoena. During the suppression hearing, Petitioner argued that the State’s
subpoena was overly broad because it did not limit the requested recordings with particularity to
the conversations between Petitioner and Mahaley, and also that the subpoena was unreasonable
because there was an insufficient foundation of evidence that Petitioner was involved in any
potentially illegal or unlawful acts performed by Mahaley. (D.I. 13-2 at 4) The State identified
the pertinent issue as follows: “as the case law is clear [] the question’s ultimately going to be
before the Court, did the State go on a fishing expedition or did they have a valid reason to
subpoena the prison phone calls.” (D.I. 13-1 at 29) The Superior Court asked the State why,
20
given the absence of an allegation that someone in addition to Mahaley contacted Bey to
encourage him not to show up for trial, the subpoena was not narrowed to focus on the phone
calls from Petitioner to Mahalaey. Id. The State responded, “Your Honor – one of the problems
that we’re noticing with the prison phone calls is that there’s no way to prevent three-way calls
from being made. And they’re made in lots of phone calls. So even if the defendant called his
mom, his mom could still three-way in Natasha Mahaley under those phone calls. So limiting
them to the number that is listed as Natasha Mahaley doesn’t mean that those are the only phone
calls that he actually talks to Natasha Mahaley.” (D.I. 13-1 at 39) The Superior Court denied the
motion to suppress the recording of the phone calls for the following reason:
The question is did the action further an important government
interest unrelated to the suppression of expression, and was the
action no greater than needed to protect the interest. As noted
correctly by the State, the standard was initially adopted with respect
to outgoing prison mail, but the Delaware Supreme Court recently
adopted this same test for inmate prison calls.
In this case, the action of subpoenaing [Petitioner’s] prison calls
furthers what I view -- and share the State's view of -- is this was an
important government interest unrelated to the suppression of
expression. The State had a legitimate, valid concern that agents or
[Petitioner] and or agents, were tampering with at least one witness,
a key witness, the alleged victim, was advised he received a phone
call from the defendant's girlfriend. That's established that
relationship, that it's a girlfriend/boyfriend with Natasha Mahaley,
regarding the pending prosecution.
The defense makes much of the fact that there were no overt threats
or menace in the phone call, but I don't think that that level of
coercion or menacing or malice is required under the case law. I
think it's enough that there was an attempt to contact a key witness
in this trial, and after [Petitioner] had been indicted on the attempted
murder-related offenses.
I think it's also important to note in this case that the State had what
I deemed to be legitimate and valid concerns about the unknown
21
conspirator, the alleged unknown conspirator. The video
surveillance and the alleged victim's statement established that there
was a second participant in this crime, and that that second suspect
entered and exited the motel room at the same time as [Petitioner].
It's important and critical to note this co-conspirator has never been
arrested, or even identified, and that the State has ample reason to
believe that [Petitioner] knows the co-conspirator's identity.
So, I find that the State has a legitimate and reasonable interest in
trying to locate the co-conspirator, recover the firearm, and put an
end to any suspected witness-tampering so that there could be a fair
trial of this -- of these charges. So, I find that the State had legitimate
reasons, reasonable reasons to subpoena [Petitioner’s] phone calls.
So, the State's motion -- or it was a defense motion, right, to
suppress the prison phone calls is denied, and [defense counsel], all
your arguments are preserved.
(D.I. 13-2 at 4-5)
As set forth above, the transcript of the suppression hearing supports the Superior Court’s
conclusion that the scope and purpose of the subpoena were reasonable, and that the issuance of
the subpoena furthered an important government interest unrelated to the suppression of
Petitioner’s expression. Given the facts of the case, the Delaware Supreme Court reasonably
applied the underlying principles of Procunier and other clearly established Federal law in
holding that Petitioner’s challenge to the issuance of the subpoena failed to state a First
Amendment claim.
For all of these reasons, the Court will deny Claim One in its entirety.
B. Claim Two: The Improper Admission of Petitioner’s Recorded Phone Calls
Deprived him of a Fair Trial
In Claim Two, Petitioner contends that the admission of the illegally obtained prison
phone calls violated his right to due process. Petitioner presented this argument to the Delaware
Supreme Court on direct appeal. The Delaware Supreme Court concluded that it did not need to
22
address the argument given its determination that Petitioner’s argument regarding the improper
admission of the recorded prison phone calls lacked merit. Similarly, the Court in this
proceeding has just concluded that the Superior Court did not violate Petitioner’s federal
constitutional rights by denying his motion to suppress the recorded prison calls. Therefore,
Claim Two lacks merit for this reason alone.
Nevertheless, even if the Superior Court erred in denying the suppression motion – which
it did not – such error was harmless and did not violate Petitioner’s due process rights. As a
general rule, state court evidentiary rulings are not cognizable on federal habeas review unless
the petitioner shows the admission of evidence caused a fundamental unfairness at trial in
violation of his due process rights. See Estelle v. McGuire, 502 U.S. 62, 68 (1991). In other
words, the unconstitutional admission of evidence in a state proceeding will not warrant federal
habeas relief unless the evidentiary ruling is so prejudicial that it “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623
(1993); see Hassine v. Zimmerman, 160 F.3d 941, 953 (3d Cir. 1998) (holding that the harmless
error standard of Brecht applies on habeas review); Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir.
1994). “Under Brecht and its progeny, a constitutional trial error is not harmless if the court is in
‘grave doubt’ as to whether the error had a substantial and injurious effect or influence in
determining the jury's verdict.” Hassine, 160 F.3d at 955.
The premise of Petitioner’s instant due process challenge is that the denial of suppression
motion expanded the scope of admissible evidence for the witness tampering charges and the
underlying robbery and burglary charges. Petitioner, however, is incorrect. The evidence of
Petitioner’s guilt regarding witness tampering would have been admissible regardless of whether
23
the recorded prison phone calls were admitted. See Whitehurst, 83 A.3d at 365. For instance,
Jessica Harvey and a member of her family, Gloria Harvey, were witnesses, and both still would
have been able to testify that Mahaley threatened to harm them if Jessica Harvey appeared in
court. Bey still would have been able to testify that Mahaley had called him and attempted to
persuade him to not appear in court. Kiyona Turner still would have been able to testify that
Petitioner told her to go to court and say that he [Petitioner] had been in the room with the baby
when the incident occurred. Finally, Petitioner himself testified at trial that he had engaged in
witness tampering. Id. In sum, although the recorded telephone calls provided additional
evidence of Petitioner’s guilt, the admission of the recordings did not expand the scope of
admissible evidence regarding the witness tampering.
Additionally, the admission of the recorded telephone calls would not have prevented the
admission of the following overwhelming evidence showing that Petitioner committed the
underlying robbery and other offenses:
•
Before the robbery, Petitioner asked “Uncle Butter” Tyrone
Brown if he had a gun because Petitioner was “going to
knock off the joker around the corner.” (D.I. 12-1 at 50-52)
•
Petitioner also approached Chris White (“White”) and
suggested that that they “get” or rob Bey. (D.I. 13-2 at 2530)
•
The video of the events at the Budget Inn revealed that
Mahaley spoke to the unidentified co-conspirator, walked
back to room 109 with him, returned to her room, and a
moment later [Petitioner] exited the room and went to room
109, where he and the unidentified co-conspirator lined up
in tactical formation before entering room 109. (D.I. 13-2 at
11-13, 21-26, 54-56)
•
Petitioner admitted being present when Bey was robbed.
Although he claimed to be a mere bystander to the robbery,
24
Petitioner never explained how Bey’s blood ended up on his
sweatshirt when he was “backed up against the wall.” (D.I.
13-2 at 66-74)
•
Both Bey and Harvey testified that the unidentified coconspirator was holding the gun and Bey was the person on
top of Bey “running his pockets.” (D.I. 12-1 at 64-65, 7779A)
Based on the foregoing, the Court concludes that Petitioner has not shown that the
admission of his recorded phone calls had a substantial and injurious effect or influence in
determining the jury's verdict. Accordingly, the Court will deny Claim Two.
C. Claim Three: The Superior Court Erred By Not Providing a Missing Evidence
Instruction
In Claim Three, Petitioner contends that the Superior Court erred by failing to provide a
missing evidence instruction to the jury regarding the Budget Inn surveillance video. He argues
that “law enforcement failed to preserve the digital material and negligently entrusted their
obligation to obtain evidence in the case to the staff of the Budget Inn.” (D.I. 1 at 11) He also
contends that the video would have been “subject to production pursuant to Superior Court Rule
of Criminal Procedure 16 and Brady v. Maryland.” (D.I. 1 at 11)
Petitioner presented his argument regarding the missing evidence instruction to the
Superior Court in his Rule 61 motion as the basis for an ineffective assistance of appellate
counsel claim. See Whitehurst, 2016 WL 1424502, at *7. The Superior Court held that appellate
counsel did not render ineffective assistance by failing to raise the issue of the missing evidence
instruction, because the facts of the case demonstrated Petitioner was not entitled to such an
instruction. Id. at *11. On post-conviction appeal, Petitioner did not re-assert his ineffective
assistance of counsel claim. Instead, he argued for the first time that the State had a duty under
25
Brady v. Maryland, 373 U.S. 83 (1963) to obtain and disclose the surveillance video. 4 (D.I. 122 at 21-27) Without addressing the subtle difference in Petitioner’s complaint about the
surveillance video, the Delaware Supreme Court affirmed the Superior Court’s decision “on the
basis of and for the reasons assigned by the Superior Court in its well-reasoned Opinion and
Order dated March 31, 2016.” Whitehurst, 2016 WL 6803774, at *1. In these circumstances, the
Court must review Claim Three de novo. 5 See Breakiron v. Horn, 642 F.3d 126, 131 (3d Cir.
2011) (explaining that a habeas claim must be reviewed de novo if the state’s highest court did
not adjudicate the merits of an exhausted claim that is otherwise properly before the court).
The following facts are relevant to the instant issue.
The Budget Inn had a video surveillance system that captured
activity outside of the room where the shooting occurred. Detective
Brown testified that he responded to the Budget Inn following the
shooting and, along with other officers, reviewed the video footage.
Detective Brown personally attempted to download the surveillance
video to a Universal Serial Bus (“USB”) drive. Detective Brown
stated that “after a substantial amount of time” the download
appeared to be complete. Detective Brown then testified that he
called the video surveillance installer to determine how long the
A violation of Brady occurs when the government fails to disclose evidence materially favorable
to the accused, including both impeachment evidence and exculpatory evidence. See United
States v. Bagley, 473 U.S. 667, 676 (1985). In order to prevail on a Brady claim, a petitioner
must establish that: (1) the evidence at issue was favorable to the accused, either because it was
exculpatory or it had impeachment value; (2) the prosecution suppressed the evidence, “either
willfully or inadvertently”; and (3) the evidence was material. See Strickler v. Greene, 527 U.S.
263, 281-82 (1999); Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir. 2004). A petitioner
demonstrates materiality of the suppressed evidence by showing a “reasonable probability of a
different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). In turn, “a reasonable probability
of a different result is accordingly shown when the government's evidentiary suppression
undermines confidence in the outcome of the trial.” Id.
4
De novo review means that the Court “must exercise its independent judgment when deciding
both questions of constitutional law and mixed constitutional questions.” Williams v. Taylor,
529 U.S. 362, 400 (2000) (Justice O’Connor concurring).
5
26
surveillance camera footage would be stored on the Budget Inn's
system before deletion. The installer informed Detective Brown that
it would be deleted after thirty days from the date of the incident.
When Detective Brown returned to Troop 2 and attempted to play
the downloaded files, he received an error message and was unable
to play any of the files. Detective Brown, nine days after the
incident, on October 28, 2011, returned to the Budget Inn in order
to again try to download the video files. Even though Detective
Brown returned before the expiration of thirty days, the video files
had been erased. This video was, therefore, not available for trial.
*
*
*
At trial, the State presented the testimony of several Delaware State
Police to describe the contents of the surveillance video.
Specifically, three officers, Detective Christian Brown, Detective
Tenebruso, and Detective Steve Rizzo (“Detective Rizzo”), viewed
the video on October 20, 2011, immediately following the shooting.
Each detective saw a male exit room 211 and meet with an unknown
male outside of Harvey's room. Detective Tenebruso identified the
male emerging from room 211 as [Petitioner]. Detective Tenebruso
had patrolled the Budget Inn area for nine years and recognized
[Petitioner] by his build and gait. The detectives all testified that the
unknown male seen with [Petitioner] carried what appeared to be a
rifle or a “long gun.” At trial, the detectives described the two men
entering Harvey's room. Both Detective Brown and Detective Rizzo
stated that they lined up against the wall in tactical SWAT
formation. Detective Tenebruso stated that [Petitioner] and the
unknown male “stormed into the room at a quick pace.” The
detectives then stated that both men exited the room shortly
thereafter. Detectives Brown and Tenebruso testified to seeing
Harvey exit the room, followed by Bey.
Whitehurst, 2016 WL 1424502, at *4–6. The record reveals that trial counsel filed a motion for a
missing evidence instruction prior to trial, which the Superior Court denied because the “State
was never in possession of the video, there was no evidence of negligence or bad faith with
respect to the police officers' efforts to retrieve or secure the video, and the police officers'
reliance on the representations made by the Budget Inn's employee and the DVR installer was
not unreasonable.” Whitehurst, 2016 WL 1424502, at *9; (D.I. 12-5 at 112). Petitioner renewed
27
the motion at the close of the defense’s case, and the Superior Court denied the motion, stating it
had “reviewed the case law and [was] satisfied under the facts and circumstances that [the
instruction] should not be given.” (D.I. 13-1 at 119)
In Petitioner’s Rule 61 proceeding, within the context of an ineffective assistance of
appellate counsel claim, the Superior Court reviewed Petitioner’s argument concerning the
surveillance video under well-established Delaware precedent – Deberry v. State, 457 A.2d 744
(Del. 1983) – and again determined that a missing evidence instruction was not warranted and
that the State did not breach a duty to preserve the surveillance video. In Deberry, the Delaware
Supreme Court held that the State, including its police agencies, is obligated under the Delaware
constitution's due process standards to preserve evidence material to a defendant's guilt or
innocence. See Lolly v. State, 611 A.2d 956, 959–60 (Del.1992). The Delaware Supreme Court
later extended the “more exacting standard based on Delaware constitutional norms” of Deberry
to claims that the police had failed to gather the possibly exculpatory evidence in the first place.
Id. at 957, 960. Basically, once the state court establishes that the “State must bear the
responsibility for the loss of [or failure to gather] material evidence, an appropriate jury
instruction is required as a matter of due process under the Delaware constitution.” Id. at 961. A
missing evidence instruction requires “the jury to infer that, had the evidence been preserved [or
procured], it would have been exculpatory to the defendant.” Lunnon v. State, 710 A.2d 197,
199 (Del. 1998).
A state court’s failure to give a particular jury instruction will only warrant habeas relief
if the error was not harmless, that is, if the error “had substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht, 507 U.S. at 637; see Lewis v. Pinchak, 348 F.3d 355,
28
359 (3d Cir. 2003) (holding that the harmless error analysis applies to a court’s refusal to give a
jury instruction). A federal court may not grant habeas relief on the basis that the jury instruction
was allegedly incorrect under state law, 6 and “[a]n omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155
(1977).
Since the basis for Petitioner’s argument is state law, habeas relief is not warranted. But
even if that was not a roadblock to relief, Petitioner’s argument would fail.
After reviewing the record in this case, the Court concludes that the absence of a missing
evidence did not deprive Petitioner of due process or a fair trial. The record demonstrates that
the Superior Court reasonably concluded: (1) the State’s failure to obtain possession of the
surveillance video was not due to bad faith or negligence; (2) the State did not have a duty to
preserve the surveillance video because it never had possession of the video; and (3) given
Petitioner’s testimony and the testimony of other witnesses, 7 the surveillance tape “appear[ed] to
contain no exculpatory evidence.” Whitehurst, 2016 WL 1424502, at *10. Since the
surveillance tape did not contain exculpatory evidence, the State’s duty to disclose such evidence
under Brady v. Maryland was never triggered. In addition, the evidence adduced at trial
“overwhelmingly supported a conviction.” Whitehurst, 2016 WL 1424502, at *10. Given all of
6
See Estelle, 502 U.S. at 71-72.
The State presented Detective Brown’s testimony as to how and why the video surveillance was
not preserved. Detective Brown testified that, due to the length of the motel surveillance video,
he downloaded a copy to a USB. He also asked the motel staff how long the video would be
preserved, and was told 30 days. However, when Detective Brown returned to the station he was
unable to play any of the files downloaded onto the USB. Brown also testified that he returned
to the motel 8 days later to download the video again, but the surveillance video had been
deleted. See Whitehurst, 2016 WL 1424502, at *4.
7
29
these circumstances, Petitioner has failed to demonstrate that the absence of a missing evidence
instruction had a substantial and injurious effect on the fairness of his trial. Accordingly, the
Court will deny Claim Three as meritless.
D. Claim Four: Improper Admission of Identification and Hearsay Testimony
In Claim Four, Petitioner contends that the Superior Court erred in denying his motion to
suppress identification testimony and in admitting witness hearsay testimony that contributed to
Petitioner’s in-court identification. (D.I. 1 at 13) Petitioner asserts that, during the suppression
hearing on September 14, 2012, the “trial court allowed Detective Steven Rizzo to testify about
what a key witness for the State assumed and thought of the identification of [Petitioner].” (D.I.
1 at 13) 8 The record reveals, and Petitioner concedes, that he did not exhaust state remedies for
this claim because he did not present the issue to the Delaware Supreme Court on direct or postconviction appeal. At this juncture, any attempt by Petitioner to raise Claim Four in a new Rule
61 motion would be barred as untimely under Delaware Superior Court Criminal Rule 61(i)(1).
See DeAngelo v. Johnson, 2014 WL 4079357, at *12 (D. Del. Aug. 15, 2014). Although Rule
61(i)(1) provides for an exception to the one-year time limitation if the untimely Rule 61 motion
“asserts a retroactively applicable right that is newly recognized after the judgment of conviction
is final,” no such right is implicated in the instant Claim. Similarly, the exceptions to Rule
8
As the State points out, Petitioner does not specify exactly what evidence he is talking about in
this allegation, and since it was not previously raised, the prior proceedings do not identify it
either. It appears to be the case, nevertheless, that Petitioner is discussing the suppression
hearing (D.I. 12-1 at 21-40) during which Detective Rizzo was expected to testify about what
Bey told him. (See id. at 23) (“Officer Rizzo is going to [make] hearsay statements in relation to
what Mr. Bey has to say without he benefit of cross-examination.”). Such testimony followed.
(Id. at 25). Defense counsel generally objected to the testimony on the basis of the Confrontation
Clause, but did not object to any specific questions.
30
61(i)(1)’s time-bar contained in Rule 61(i)(5) and (d)(2) do not apply to Petitioner’s case,
because he does not allege actual innocence, lack of jurisdiction, or that a new rule of
constitutional law applies to this Claim.
Since Petitioner is precluded from exhausting Claim Four at this point, the Court must
treat the Claim as technically exhausted but procedurally defaulted. Consequently, the Court
cannot review the merits of Claim Four absent a showing of cause for the default, and prejudice
resulting therefrom, or upon a showing that a miscarriage of justice will occur if the Claims are
not reviewed.
Petitioner does not explain why he did not present Claim Four in his initial pro se Rule
61 motion or in his pro se Rule 61 appeal. To the extent Petitioner cites Martinez v. Ryan, 566
U.S. 1 (2012), in an attempt to establish as cause appellate counsel’s failure to raise the issue on
direct appeal and, relatedly, post-conviction counsel’s related failure to raise the ineffective
assistance of appellate counsel claim in his Rule 61 motion, it is unavailing. In Martinez, the
Supreme Court held for the first time that inadequate assistance of counsel during an initialreview state collateral proceeding may establish cause for a petitioner=s procedural default of a
claim of ineffective assistance of trial counsel. Id. at 16-17. In order to obtain relief under
Martinez, a petitioner must demonstrate that the state post-conviction attorney in his first state
collateral proceeding was ineffective under the standards established in Strickland, that the
underlying ineffective assistance of trial counsel claim is substantial, and that petitioner was
prejudiced. Id. at 9-10, 16-17. A “substantial@ ineffective assistance of trial counsel claim is one
that has “some merit@ which, given the Martinez Court’s citation to Miller-El v. Cockrell, 537
31
U.S. 322 (2003), appears to be governed by the standards applicable to certificates of
appealability. Id. at 14-15.
Here, the Martinez rule is inapplicable because it only provides a method of establishing
cause for a failure to raise an ineffective assistance of trial counsel claim, and Claim Four does
not allege ineffective assistance of counsel. In the absence of cause, the Court need not address
the issue of prejudice. Petitioner also has not satisfied the miscarriage of justice exception to the
procedural default doctrine, because he has not provided new reliable evidence of his actual
innocence. Accordingly, the Court will deny Claim Four as procedurally barred from federal
habeas review.
IV.
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.
McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that the instant Petition does 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.
V.
CONCLUSION
For the reasons discussed, the Court concludes that the Petition must be denied. An
appropriate Order will be entered.
32
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