Brown v. Metzger, et al

Filing 24

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 9/20/2021. (nms)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

THOMAS BROWN,
Petitioner,
Civil Action No. 18-911-RGA

V.

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

MEMORANDUM OPINION

Christopher S. Koyste, Wilmington, Delaware. Attorney for Petitioner.
Brian L. Arban, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for Respondents.

2tJ ,

2021
September
Wilmington, Delaware

1

Warden Robert May replaced former Warden Dana Metzger, an original party to the case. See
Fed. R. Civ. P. 25(d).

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r

TED STATES DISTRICT nJDGE:

Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28
U.S.C. § 2254 ("Petition") and Memorandum in Support filed by Petitioner Thomas Brown.
(D.I. 3; D.I. 18) The State filed an Answer in opposition, to which Petitioner filed a Reply. (D.I.
21; D .I. 23) For the reasons discussed, the Court will dismiss the Petition and deny the relief
requested.
I.

BACKGROUND
A. The Crime2

In November 2011, Lunnon, an individual who had agreed to assist police in order to
avoid a possible life sentence, called Petitioner while Delaware State Police monitored the call,
and asked to purchase nine ounces of cocaine, in a combination of powder and crack form.
Petitioner explained that he could only get eight ounces. Lunnon and Petitioner agreed to meet
that evening for the exchange. Police set up surveillance at the exchange site as well as the
location from which they believed Petitioner would obtain the cocaine.
Before the exchange could occur, police stopped Petitioner's vehicle. Police ordered
Petitioner and his passenger, John Dupree, out of the vehicle. During a search of the vehicle,
police found 216.57 grams of crack cocaine;3 a loaded, stolen .38 caliber revolver behind the
driver' s seat; a loaded, stolen 9mm semi-automatic handgun under the front passenger seat; and
less than a gram of crack cocaine on Dupree. Petitioner and Dupree were arrested and charged
with two counts of drug dealing, four firearms offenses, and other, related offenses.

2

The facts are taken from the Superior Court's unpublished decision denying Petitioner' s Rule
61 motion. (See D.I. 16 at 211-212)
3
ln his police report, Delaware State Police Detective Christopher Sutton described finding "a
black plastic bag that contained several plastic bags of white powder substance that appeared
similar to cocaine." (D.I. 19-10 at 33)

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The drug evidence was placed into three Delaware State Police evidence envelopes, one
for the suspected powder cocaine, one for the suspected crack cocaine, and one for the bag of
suspected cocaine found on Dupree' s person. The bags were deposited into the temporary
evidence locker at the Delaware State Police troop. The evidence was ultimately sent to the
Office of the Chief Medical Examiner ("OCME") for testing.
Once at the OCME, forensic chemist Irshad Bajwa conducted an analysis of the
suspected drugs. The pure weights of the three bags of suspected cocaine were 91.04 grams,
125.53 grams, and 0.85 grams. Bajwa concluded, using the gas chromatograph/mass
spectrometer technique, that what was contained in all of the bags of evidence sent to the OCME
by Delaware State Police for this case was cocaine. All samples of the drugs tested were crack,
rather than powder, cocaine.

B. Petitioner's State Criminal Proceedings
On January 14, 2013 , a Delaware Superior Court jury found Petitioner guilty of drug
dealing-aggravated possession of cocaine, aggravated possession of cocaine with intent to
deliver, receiving a stolen firearm, second degree conspiracy, carrying a concealed deadly
weapon and two counts of possession of a firearm during the commission of a felony, but
acquitted him of two counts of possession of a firearm during the commission of a felony, one
count of receiving a stolen firearm, and one count of carrying a concealed deadly weapon. (D.I.
18 at 7; D.I. 21 at 1); see Brown v. State , 89 A.3d 476 (Table), 20 14 WL 1258298, at *1 (Del.
Mar. 25 , 2014 ). Fallowing a bench trial, Petitioner was also found guilty of possession of a
firearm or ammunition by a person prohibited. See Brown, 2014 WL 1258298, at* 1. The
Superior Court sentenced Petitioner to an aggregate seventeen years at Level V, followed by
decreasing levels of probation. (D.I. 16 at 210) Petitioner appealed, and on March 25, 2014, the

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Delaware Supreme Court affirmed in part and reversed in part; the Delaware Supreme Court
vacated one count of possession of a firearm during the commission of a felony after determining
that Petitioner' s convictions for the two drug offenses merged. See Brown, 2014 WL 1258298,
at *1, *4-5. On May 30, 2014, the Superior Court resentenced Petitioner to twelve years at Level
V incarceration followed by decreasing levels of probation. (D.I. 19-12 at 32-33)
On September 30, 2014, Petitioner filed a timely pro se motion for post-conviction relief
pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). (D.I. 19-1 at 9,
Entry No. 67) On April 28, 2015, the Superior Court appointed counsel to represent Petitioner,
who filed an amended Rule 61 motion on February 29, 2016. (D.I. 19-1 at 9, 11 , Entry Nos. 71
& 80; D.I. 15 at 210-270) The Superior Court denied the amended Rule 61 motion on June 29,
2017. (D.I. 16 at 209-224) The Delaware Supreme Court affirmed that decision on February 15,
2018. See Brown v. State , 180 A.3d 1055 (Table), 2018 WL 921985 (Del. Feb 15, 2018).
On June 19, 2018, Petitioner timely filed the instant § 2254 Petition, followed by a
Memorandum in Support, asserting that defense counsel provided ineffective assistance (Claim
One) and the State violated Brady v. Maryland, 373 U.S. 83 (1963) by not disclosing to
Petitioner information regarding misconduct at the OCME (Claim Two). (D.I. 3; D.I. 18) The
State filed an Answer asserting that Claim One should be dismissed as meritless and Claim Two
should be dismissed as procedurally barred. (D.I. 21) Petitioner filed a Reply arguing that the
Petition warrants habeas relief. (D.I. 23)

C. Background Re: OCME Criminal Investigation
The relevant information regarding the OCME evidence mishandling is set forth below:
In February 2014, the Delaware State Police ("DSP") and the
Department of Justice ("DOJ'') began an investigation into criminal
misconduct occurring in the Controlled Substances Unit of
the OCME.

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The investigation revealed that some drug evidence sent to
the OCME for testing had been stolen by OCME employees in
some cases and was unaccounted for in other cases. Oversight of the
lab had been lacking, and security procedures had not been
followed. One employee was accused of "dry labbing" (or declaring
a test result without actually conducting a test of the evidence) in
several cases. Although the investigation remains ongoing, to date,
three OCME employees have been suspended (two of those
employees have been criminally indicted), and the Chief Medical
Examiner has been fired.
There is no evidence to suggest that OCME employees tampered
with drug evidence by adding known controlled substances to the
evidence they received for testing in order to achieve positive results
and secure convictions. That is, there is no evidence that the OCME
staff "planted" evidence to wrongly obtain convictions. Rather, the
employees who stole the evidence did so because it in fact consisted
of illegal narcotics that they could resell or take for personal use.
Brown v. State, 108 A.3d 1201 , 1204-05 (Del. 2015).
II.

GOVERNING LEGAL PRINCIPLES
A. Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism. " Woodford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDPA, 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). AEDPA imposes procedural requirements and standards
for analyzing the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent possible under law." Bell v.
Cone, 535 U.S. 685 , 693 (2002).
B. Exhaustion and Procedural Default

Absent exceptional circumstances, a federal court cannot grant habeas relief unless the

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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 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 also Werts v. Vaughn , 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by fairly presenting all claims 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. See Bell v. Cone, 543 U.S. 447,451 n.3 (2005); Castille v.
Peoples, 489 U.S. 346, 351 (1989).
A petitioner may be excused from exhausting state remedies when there is either an
absence of an available State corrective process or the existence of circumstances, such as futility
or inordinate delay, that render such processes ineffective. See 28 U.S.C. § 2254(b)(l)(B);
Duckworth v. Serrano , 454 U.S. 1 (1981). Situations falling within the "ineffective corrective
process" exception to the exhaustion requirement include those instances when "(1) the state
corrective process is so deficient as to render any effort to obtain relief futile

O; (2) acts of state

officials have, in effect, made state remedies unavailable to the petitioner []; or (3) ' inordinate
delay' in state proceedings has rendered state remedies ineffective." Kozak v. Pennsylvania,
2012 WL 4895519, at *4 (M.D. Pa. Oct 15, 2012). When a failure to exhaust is excused due to
an ineffective corrective process, the court may review a claim on its merits without engaging in
the procedural default analysis. See, e.g. , Lee v. Strickman, 357 F.3d 338, 344 (3d Cir. 2004);
Story v. Kindt, 26 F.3d 402, 405-06 (3d Cir. 1994); Woodruffv. Williams, 2016 WL 6124270, at
*1 (E.D. Pa. Oct. 19, 2016).

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However, if a petitioner' s failure to exhaust does not fall within the aforementioned
"ineffective corrective process" exception, and state procedural rules bar the petitioner from
seeking further relief in state courts, the claims, while technically exhausted, are procedurally
defaulted. See Lines v. Larkins, 208 F.3d 153, 160 (3 d Cir. 2000). 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 technically exhausted but procedurally defaulted. See Coleman v. Thompson , 501 U.S.
722, 750 (1991 ); Harris v. Reed, 489 U. S. 255 , 260-64 (1989). A federal court cannot consider
the merits of procedurally defaulted claims unless the petitioner establishes cause and prejudice
to excuse the default, or that a fundamental miscarriage of justice will result absent review of the
claims. See Lines, 208 F.3d at 160.

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

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state court' s order is unaccompanied by an opinion explaining the reasons relief has been
denied"; as recently explained by the Supreme Court, "it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary." Harrington v. Richter, 562 U.S. 86, 98-100 (2011).
Finally, a federal court must presume that the state court's determinations of factual
issues are correct. See 28 U.S.C. § 2254(e)(l); see also Appel, 250 F.3d at 210. This
presumption of correctness applies to both explicit and implicit findings of fact, and is only
rebutted by clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(l); see also
Campbell v. Vaughn, 209 F.3d 280,286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341
(2003) (stating that the clear and convincing standard in§ 2254(e)(l) applies to factual issues,
whereas the unreasonable application standard of§ 2254(d)(2) applies to factual decisions).

III.

DISCUSSION
A. Claim One: Ineffective Assistance of Counsel
In Claim One, Petitioner contends that defense counsel provided ineffective assistance by

failing to object to the admission of the cocaine evidence at trial on the basis that there was a
faulty chain of custody. He asserts that the "substances admitted at trial were not the same as the
substances recovered from [Petitioner' s] vehicle," as demonstrated by the discrepancies in the
weight and physical characteristics of both samples. (D.I. 3 at 15-17; D.I. 18 at 27; D.I. 23 at 6)
According to Petitioner, defense counsel "would have been successful in excluding the alleged
cocaine had she objected to its admission." (D.I. 23 at 5)
Petitioner presented the same ground for relief in his Rule 61 proceeding, which the
Superior Court denied as meritless. (D.I. 16 at 220-224; D.I. 17 at 18-28; D.I. 19-11 at 289-300)
The Delaware Supreme Court affirmed that decision "on the basis of and for the reasons

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assigned in [the Superior Court's] opinion dated June 29, 2017." Brown, 2018 WL 921985, at
*l. Given the Delaware Supreme Court' s reliance on the Superior Court' s decision, Claim One

will only warrant habeas relief if the Superior Court' s decision was either contrary to, or an
unreasonable application of, clearly established federal law. See Wilson v. Sellers, 138 S. Ct.
1188, 1193-94 (2018) (reiterating that when a higher court affirms a lower court' s judgment
without an opinion or other explanation, federal habeas law employs a "look through"
presumption and assumes that the later unexplained order upholding a lower court's reasoned
judgment rests upon the same grounds as the lower court judgment); Ylst v. Nunnemaker, 501
U.S . 797, 804 (1991) (under the "look through" doctrine, "where there has been one reasoned
state judgment rejecting a federal claim, later unexplained orders upholding that judgment or
rejecting the same claim rest upon the same ground.").
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by 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. See Strickland, 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.
Finally, 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.

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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 presumption that the representation was professionally
reasonable. See Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254( d)( 1) inquiry, the Court notes that the Superior
Court correctly identified the Strickland standard applicable to Petitioner's ineffective assistance
of counsel allegation. Consequently, the Superior Court's decision was not contrary to clearly
established federal law. See 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)(l) ' s ' contrary to' clause").
The Court must also determine if the Superior Court reasonably applied the Strickland
standard to the facts of Petitioner' s case. See Harrington, 562 U.S. at 105-06. When performing
this inquiry, the Court must review the Delaware state courts' denial of Petitioner' s ineffective
assistance of counsel allegation through a "doubly deferential" lens. Id. "[T]he question is not
whether counsel's actions were reasonable, [but rather] , whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard." Id. When assessing prejudice
under Strickland, 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. And finally, when viewing a state court' s determination
that a Strickland claim lacks merit through the lens of§ 2254( d), federal habeas relief is
precluded "so long as fairmindedjurists could disagree on the correctness of the state court's
decision." Id. at 101.
When denying Claim One in Petitioner' s Rule 61 proceeding, the Superior Court opined:

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At trial, the Court exercised its discretion, taking into consideration
the standard enumerated in Tricoche [v. State, 525 A.2d 151 , 153
(Del. 1987)] and D.R.E. 90l(a), and allowed the drug evidence to
be admitted. [Petitioner' s] central argument is that there were too
many discrepancies between [] Detective Sutton's report and
testimony, and Bajwa' s report and testimony, including regarding
the alleged type of cocaine (powder vs. crack), and the weight of the
cocaine, to support a "reasonable probability" that there had been no
tampering or misidentification of the evidence. This argument is
without merit.
Bajwa's explanation of the differences between the amounts
reported and the type of cocaine observed in each bag satisfies a
reasonable probability that the evidence had not been misidentified.
The weights measured by Detective Sutton were while the drugs
were within their packaging, whereas when weighed by Bajwa, only
the drugs were weighed. This case is much like State v. Anzara
Brown, [117 A.3d 568, 579 (Del. 2015)] where the amount of drugs
seized from Defendant after his arrest and the amount of drugs
logged into evidence by OCME roughly matched, and both amounts
of the larger bags were more than 20 grams of cocaine, the minimum
requirement for a Tier 4 offense. Here, the discrepancies in weight
can be attributed to the different manner [in which] the cocaine was
weighed.
The Delaware State Police knew that [Petitioner] was going to
deliver cocaine to Lunnon, .. ., purportedly in a mixture of crack
and powder form. The mere fact that what was seized was identified
as crack cocaine does not destroy the reasonable probability that
there was no tampering or misidentification of the evidence.
Moreover, the State presented the witnesses necessary to establish
the chain of custody, including the seizing officer, Officer Sutton,
and the forensic chemist, Bajwa. Any breaks in the chain of custody
go only to the weight, not the admissibility, of the evidence.
Because there was a reasonable probability at the time of
[Petitioner's] trial that the evidence had not been misidentified or
adulterated, the Court finds [Petitioner' s] claim that counsel was
ineffective for failing to object to the admission of the drug evidence
to be meritless.
(D.I. 16 at 222-224) (footnotes omitted)
As an initial matter, Petitioner contends that the Superior Court unreasonably determined
the facts in light of the evidence presented at trial, because:

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[T]he suspected cocaine analyzed by Mr. Bajwa at the OCME
shared very few similarities with the substances recovered from
[Petitioner's] vehicle. Mr. Bajwa's report and testimony detailed the
analysis of four bags of chunky white substance weighting 91.04
grams, and three bags of a chunky white substance, weighing 125.53
grams. Mr. Bajwa also concluded that all of the substances he tested
were crack cocaine. Photographs of the crack cocaine analyzed by
Mr. Bajwa, and later admitted into evidence at [Petitioner' s] trial,
depict chunky discolored substances bearing no similarities to what
Detective Sutton described as being recovered nor what was
photographed at the crime scene .. . . Thus, it is clear on the record,
contrary to the State Court findings, that the alleged crack cocaine
analyzed by Mr. Bajwa and admitted into evidence was not the same
substances recovered from [Petitioner' s] vehicle.
(D.I. 18 at 26-27) Contrary to Petitioner' s argument, however, the record supports the Superior
Court's factual determination that there was a reasonable probability that the evidence had not
been tampered with or misidentified. 4 The forensic analysis in Petitioner's case revealed that all
of the drugs recovered by the police was crack cocaine. The Superior Court thoroughly reviewed
the evidence concerning the manner in which the drugs had been seized, weighed, recorded,

4

For instance, in his police report, Detective Sutton described finding "a black plastic bag that
contained several plastic bags of white powder substance that appeared similar to cocaine,"
which the police officers had seen in plain view inside the vehicle that Petitioner was driving.
(D.I. 19-10 at 33) Detective Sutton's police report also described his retrieving the black plastic
bag and inventorying its contents, which included three bags of suspected powder cocaine
weighing a total of 128.2 grams, and four bags of suspected crack cocaine weighing a total of
100.8 grams. (Id. at 34) According to his report, Detective Sutton field-tested the substances,
which tested positive for cocaine. (Id.) During the trial, Detective Sutton testified that he had
retrieved the cocaine from inside the car, had placed the drugs into evidence envelopes, and had
deposited the envelopes into the police evidence locker. (See D.I. 19-11 at 6) Detective Sutton
also confirmed that the police had used the envelopes admitted at trial to collect the drugs from
the car. (See id. at 6-7) Bajwa, the OCME' s forensic chemist who had analyzed the substances,
testified at trial, and his May 2012 lab report was admitted into evidence. (Id. at 1, 38-39) In the
lab report, Bajwa described the evidence as three plastic bags containing a white chunky
substance with a total net weight of 125.53 grams, and four plastic bags containing a white
chunky substance with a total net weight of 91.04 grams. (Id. at 1, 38-40) During crossexamination, Detective Sutton explained that some of the cocaine differed in weight from the lab
report because he had weighed the substance while packaged. (Id. at 15) In comparison, Bajwa
said that he had weighed the substances without their packaging (Id. at 39), and the net weights
in the lab report corroborated his testimony (Id. at 1).

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stored, and tested, and concluded that any discrepancy in the drug weights was due to different
methods of weighing the drugs. The Superior Court also determined that any description of the
physical appearance of the drugs (i.e. , powder or chunky substance) was not relevant to the
conclusion that the drugs recovered tested positive for cocaine. Given this record, the Court
concludes that the Superior Court reasonably determined the facts by finding that the drug
evidence had not been misidentified or adulterated.
The Court also concludes that the Superior Court reasonably applied Strickland in
denying Claim One. As discussed, the Superior Court considered Petitioner' s instant evidence
tampering/misidentification argument and determined that any discrepancy in the drug weights
was due to the fact that Detective Sutton and Bajwa had weighed the drugs differently, and not
due to evidence tampering. Under Delaware law, such discrepancies and any breaks in the chain
of custody go to the weight of the evidence, not to its admissibility. See McNally v. State , 980
A.3d 364, 371 (Del. 2009). Consequently, a motion to exclude the evidence premised on an
inadequate chain of custody/misidentification of the seized drugs had no reasonable probability
of success.
Based on the foregoing, the Court concludes that defense counsel did not perform
deficiently by failing to raise a non-meritorious objection to the admission of the drug evidence.
In turn, since there is no indication that the drugs were tampered with, and the discrepancies in
the drug appearances were argued to the jury (D.I. 19-12 at 14), the Court concludes that
Petitioner cannot demonstrate a reasonable probability that the outcome of his trial would have
been different but for defense counsel' s failure to object to the drug evidence on the
misidentification/chain of custody issue.

Accordingly, the Court will deny Claim One.

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B. Claim Two: Brady/Due Process Violation

In Claim Two, Petitioner alleges that the State violated Brady v. Maryland by failing to
timely provide him with exculpatory and impeachment information regarding the OCME
misconduct. (D.I. 18 at 33) Petitioner also asserts that, "prior to trial, the State failed to disclose
to [him] the existence of and details surrounding the systemic operation failings of the OCME"
and the misconduct of Bajwa and other OCME employees. (Id. at 35)

In Petitioner's Rule 61 proceeding, the Superior Court denied Claim Two as procedurally
barred under Delaware Superior Court Criminal Rule 61(i)(3). (D.I. 16 at 217) By applying the
procedural bar of Rule 61(i)(3), the Delaware Supreme Court articulated a "plain statement"
under Harris v. Reed, 489 U.S . 255, 263-4 (1984) that its decision rested on state law grounds.
In turn, Delaware Superior Court Criminal Rule 61(i)(3) is an independent and adequate state
procedural rule precluding federal habeas review of a claim's merits absent a showing of cause
and prejudice, or a miscarriage of justice. See McCleafv. Carroll, 416 F. Supp. 2d 283 ,296 (D.
Del. 2006); Mayfieldv. Carroll, 2005 WL 2654283 (D. Del. Oct. 11 , 2005). Thus, the Court
cannot review the merits of Claim Two 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 Claim is not
reviewed.

In Brady v. Maryland, the Supreme Court held "that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." Brady, 373 U.S. at 87. This "duty to disclose such evidence is applicable even
though there has been no request by the accused," and includes "impeachment evidence as well
as exculpatory evidence." Strickler v. Greene , 527 U.S. 263, 280 (1999). "Such evidence is

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material if there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. " Id. "In order to comply with Brady,
therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the
others acting on the government's behalf in this case, including the police." Id. at 281 (cleaned
up). "There are three components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued." Id. at 281-82.
In the context of procedural default, "cause and prejudice parallel two of the three

components of the alleged Brady violation itself." Strickler, 527 U.S. at 282. The suppression
by the prosecution of evidence favorable to the accused provides cause to excuse the petitioner' s
procedural default, but unless the evidence is "material" under Brady, the petitioner is unable to
demonstrate "sufficient prejudice to overcome the procedural default." Id. Therefore, if
Petitioner establishes the elements of his Brady claim, then he will also establish cause and
prejudice to excuse his procedural default of the claim.
1. Suppression of OCME misconduct evidence/cause for default

The Delaware Supreme Court has held that, "because the wrongdoing at the OCME was
not known until 2014, incidents not falling within the relevant time period fail to qualify as
Brady violations." Cannon v. State, 127 A.3d 1164, 1169 (Del. 2015). Since Petitioner' s trial

took place in 2013, the State contends that Petitioner cannot establish cause for his default
because he cannot show that the State suppressed evidence of the OCME misconduct. (D.I. 21 at
18-21) In response, Petitioner argues that, even though the State did not have actual knowledge

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of the OCME misconduct until 2014, the OCME' s knowledge of its own misconduct going back
as far as 2007 should be imputed to the State. (D.I. 18 at 37-42)
As noted above, Petitioner' s failure to establish all three elements of a Brady claim will
preclude him from demonstrating cause and prejudice. Since Claim Two can be resolved more
expeditiously by addressing Brady's materiality element, the Court will refrain from addressing
Petitioner's "suppression-by-imputation-of-knowledge" argument. (D.I. 18 at 40-44)

2.

Materiality of OCME misconduct evidence/prejudice from default

Petitioner contends that the State violated Brady by failing to disclose the following
information prior to his trial in 2013:
1. [T]he existence of and the details surrounding the
systemic operation failings to the OCME which resulted in
the termination/resignation and prosecution of Chief
Medical Examiner Richard Callery, Forensic Evidence
Specialist James Woodson, and Forensic Chemist Farnam
Daneshgar as well as the questioning of Forensic Evidence
Specialist/Secretary Aretha Bailey.
2. [T]he misconduct of Forensic Chemist Irshad Bajwa, who
was the chemist in this case, Forensic Chemist Bipin Mody,
and Forensic Chemist Patricia Phillips which resulted in
their termination/resignation from the OCME.
3. [T]hat most, if not all, employees of the OCME had
credibility issues to the extent that the State was not willing
to use any employee as a potential witness in the criminal
prosecution of Farnam Daneshgar.
(D.I. 18 at 35-36) Petitioner asserts that the "materiality of this undisclosed Brady information is
made apparent through the [February and March 2016] reports and opinions rendered by Joseph
Bono, [Petitioner' s] independent Forensic Science Consultant." (Id at 36) In those reports, Mr.
Bono opined that: (1) the "OCME practices violated forensic quality standards which in turn
diminished the integrity of the chain of custody of evidence stored at the OCME and the testing

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of evidence by the OCME"; and (2) the OCME' s failures "to comply with accreditation and
testing standards[ .. .] could have resulted in the OCME' s accreditation being suspended or being
placed on probation." (Id. )
The Court is not persuaded that the OCME misconduct evidence identified by Petitioner
was material. As an initial matter, the Court notes that Petitioner has not established that any
actual evidence tampering occurred in his own case. The evidence of OCME misconduct
identified by Petitioner constituted impeachment evidence, not exculpatory evidence. 5 The
OCME misconduct evidence Petitioner has provided in this proceeding does not rebut the
Superior Court' s factual determination in his Rule 61 proceeding that Petitioner failed to
demonstrate that the general drug testing process lacked integrity or that his case was actually
affected by any potential irregularities in the testing process. Moreover, the evidence of OCME
misconduct identified by Petitioner (including the evidence Petitioner provided to support his
imputation/suppression argument6) is mostly irrelevant to his case and would have been
inadmissible at trial. Petitioner describes the problems at the OCME in general and somewhat
speculative terms, and does not connect those problems to the drug testing that occurred in his
case. Notably, the incidents involving Bajwa, Bipin Mody, and Patricia Phillips occurred after
Petitioner' s trial. 7 Given the generic quality and tenuous connection between the evidence of

See Scarborough v. Metzger, 2018 WL 4344984, at *7 (D. Del. Sept. 10, 2018).

5

Petitioner references email chains from 2007 and 2010 between the OCME and the New Castle
County Police Department and an interview he conducted of two former employees of the
OCME-former Forensic Chemist Farnam Daneshgar and an unidentified former OCME
employee ("CS 1"). (D.I. 18 at 36-43) The majority of this evidence, however, is unrelated to
Petitioner' s case, and does not demonstrate that OCME employees were planting drugs to falsify
test results, or that law enforcement was aware of systemic and potentially criminal problems at
the OCME before 2014.
6

7

Bajwa was placed on administrative leave in October 2015 for reasons unrelated to Petitioner' s
case. (D.I. 19-1 at 13-14; D.I. 19-11 at 214) Mr. Mody was placed on administrative leave in

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OCME misconduct at issue here and Petitioner's case, the Court cannot conclude that there is a
reasonable probability that the outcome of Petitioner's trial would have been different had
Petitioner's evidence of OCME misconduct been disclosed to him prior to his trial.
The substantial evidence of Petitioner' s guilt creates an additional roadblock to
establishing the materiality of the OCME misconduct evidence. Here, Petitioner agreed to sell
eight ounces of cocaine to a confidential informant working with the police. Both the police
officer and the confidential information testified about their first-hand knowledge of the
transaction. Prior to the transaction taking place, Petitioner was stopped and police found nearly
eight ounces of cocaine and firearms in the car that he had been driving. The drugs recovered
from the car field-tested positive for cocaine. In short, the jury had ample evidence upon which
to convict Petitioner, and his inability to impeach a witness from the OCME absent any evidence
that employee misconduct at the OCME affected the testing in his case precludes Petitioner from
satisfying Brady' s materiality element. Given these circumstances, Petitioner has failed to
demonstrate a reasonable probability that the outcome of his trial would have been different had
evidence of the OCME misconduct been disclosed to him prior to his trial which, in turn,
prevents him from demonstrating prejudice sufficient to overcome his default.
Finally, Petitioner 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 Two as procedurally barred.

January 2016 and, after reviewing his personnel file, the Superior Court noted in another case
that the problems occurred mostly in 2015 . ( D.I. 19-11 at 369-71) The events leading to Ms.
Phillips' suspension and resignation began in October 2014. See Anzara Brown, 117 A.3d at
575 .

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C. Request for Evidentiary Hearing
The Superior Court denied Petitioner' s request for an evidentiary hearing in his Rule 61
proceeding after concluding that further expansion of the factual record was unnecessary.
Petitioner contends that the Superior Court' s refusal to conduct an evidentiary hearing violated
his right to due process. He also asks the Court to hold an evidentiary hearing in this proceeding
in order "to allow [him] to present witnesses and evidence concerning his postconviction
claims." (D.I. 18 at 45)
1. Due process argument

It is not the province of a federal habeas court to determine whether state courts have
properly applied their own evidentiary rules. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Rather, the only question for a habeas court is "whether the [challenged evidentiary decision or
instruction] by itself so infected the entire trial that the resulting conviction violates Due
Process." Id. at 72.
Here, Petitioner has not shown that the absence of an evidentiary hearing for the instant
two Claims denied him rights guaranteed by the due process clause. Delaware Superior Court
Criminal Rule 61(h) grants the Superior Court discretion in deciding whether to conduct an
evidentiary hearing in connection with a Rule 61 post-conviction relief motion. See Del. Super.
Ct. R. 61(h)(l),(3). The Superior Court does not abuse its discretion in denying an evidentiary
hearing request if the record is sufficient to establish that the petitioner' s claims lack merit. See

Johnson v. State , 129 A.3d 882 (Table), 2015 WL 8528889, at *4 (Del. Dec. 10, 2015).
In denying Petitioner's request for an evidentiary hearing, the Superior Court concluded
that: (1) "the State made a threshold showing of the admissibility of the drug evidence which was
seized in relation to [Petitioner' s] trial"; and (2) it would "not displace the decision of the jurors

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who were able to view the evidence and hear testimony, and resolve any possible discrepancies
that may have existed." (D.I. 16 at 219-20) The Superior Court noted, "Although defense
counsel did not object to the admission of the drug evidence, she did vigorously cross-examine
both Detective Sutton and Bajwa about the alleged discrepancies in the nature and amount of
drugs seized." (Id. at 220). Relying upon the Delaware Supreme Court' s decision in Cannon v.
State, 127 A.3d 1164, 1168-69 (Del. 2015), the Superior Court concluded that an evidentiary

hearing was not necessary "to determine what, if any, knowledge the State possessed, at the time
of [Petitioner's] trial, of the misconduct at the OCME." (D.I. 16 at 220)
The Superior Court' s reasons for denying Petitioner' s request for a hearing demonstrate
that it had sufficient information within the record and pleadings to assess the validity of
Petitioner' s claims. Therefore, the Court concludes that the Superior Court did not violate
Petitioner's due process rights by denying his request for an evidentiary hearing.
2. Request for an evidentiary hearing in this proceeding

A habeas petitioner is not entitled to an evidentiary hearing in most cases. The Supreme
Court has explained, "Although state prisoners may sometimes submit new evidence in federal
court, AEDPA' s statutory scheme is designed to strongly discourage them from doing so."
Cullen v. Pinholster, 563 U.S. 170, 186 (2011). Typically, requests for an evidentiary hearing in

a federal habeas proceeding are evaluated under 28 U.S.C. § 2254(e)(2), which provides:
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that
(A) the claim relies on (i) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable; or

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(ii) a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2254(e)(2).
"In cases where an applicant for federal habeas relief is not barred from obtaining an
evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the
discretion of the district court." Schriro v. Landrigan, 550 U.S. 465 , 468 (2007); see also Rule 8
of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. §
2254. In addition, the Third Circuit has held that§ 2254(e)(2) does not bar an evidentiary
hearing to determine if a petitioner can establish cause and prejudice to avoid a procedural
default. See Cristin v. Brennan, 281 F .3d 404, 416-17 (3 d Cir. 2002) ("[T]he plain meaning of §
2254(e)(2)'s introductory language does not preclude federal hearings on excuses for procedural
default at the state level."). Consequently, it is within the Court's discretion to hold an
evidentiary hearing to permit Petitioner to present witnesses and evidence to support Claim One
and to establish cause and prejudice for Claim Two.
When deciding whether to grant a hearing, the "court must consider whether such a
hearing could enable an applicant to prove the petition's factual allegations," taking into
consideration the "deferential standards prescribed by 28 U.S.C. § 2254." Schriro, 550 U.S. at
474. An evidentiary hearing is not necessary if the issues can be resolved by reference to the
record developed in the state courts. Id. The Court has determined that Claim One is meritless
under § 2254(d) and Claim Two is procedurally barred. Petitioner's assertions do not

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demonstrate how a hearing would advance his arguments. Therefore, the Court will deny
Petitioner's request for an evidentiary hearing.
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). If a federal court denies a habeas petition on procedural

grounds without reaching the underlying constitutional claims, the court is not required to issue a
certificate of appealability unless the petitioner demonstrates that jurists of reason would find it
debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and
(2) whether the court was correct in its procedural ruling. Id
The Court has concluded that Petitioner' s habeas claims do not warrant relief. In the
Court' s view, reasonable jurists would not find it debatable that defense counsel did not provide
ineffective assistance, that Petitioner' s Brady v. Mary land claim is procedurally barred, and that
the Delaware state courts' refusal to conduct an evidentiary hearing did not violate Petitioner' s
due process rights. Accordingly, the Court declines to issue a certificate of appealability.
V.

CONCLUSION
For the reasons discussed, Petitioner' s Application For A Writ Of Habeas Corpus

Pursuant To 28 U.S.C. § 2254 is DENIED without an evidentiary hearing.
An appropriate Order will be entered.