Grimes v. State Of Delaware

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RUSSELL M. GRIMES, )

)

Petitioner, )

)

v. ) C.A. No. 21-69 (MN)

)

ROBERT MAY, Warden, and )

ATTORNEY GENERAL OF THE STATE )

OF DELAWARE, )

)

Defendant. )

MEMORANDUM OPINION

Russell M. Grimes – Pro se Petitioner.

Matthew C. Bloom, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE

– Attorney for Respondents.

March 28, 2024

Wilmington, Delaware

Neneh

REIKA, U.S. DISTRICT JUDGE

Petitioner Russell M. Grimes (“Petitioner”) has filed a Petition and an Amended Petition

fora Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Petition”). (D.I. 1; D.I. 7). The State

filed an Answer in opposition, to which Petitioner filed a Reply. (D.I. 10; D.I. 13). Petitioner also

filed a Motion for Summary Judgment. (D.I. 19). For the reasons discussed, the Court will deny

the Petition and will deny the Motion for Summary Judgment as moot.

I. BACKGROUND

On August 26, 2011, a masked man entered the First National Bank

of Wyoming in Felton, Delaware (the “Bank”), displayed what

appeared to be firearm, ordered the Bank manager to exit her office,

and told the tellers to empty the cash drawers. During the robbery,

the man jumped over a counter in the Bank and blood was later

discovered on the ceiling above that counter. The man placed the

money from the cash drawers into a satchel and exited the Bank.

These events were recorded on the Bank’s security cameras. The

money taken from the Bank contained dye packs, a security device

designed to stain money taken from the Bank, and “bait bills,” bills

for which the bank had recorded and maintained serial numbers in

case of theft. Over $54,000 was taken from the Bank.

When the suspect exited the Bank, he entered a black SUV. An

employee of the Bank who ran outside during the robbery testified

that she saw the SUV driving away from the Bank and that the SUV

was emitting “pink, red smoke” which indicated to her that the dye

pack had gone off. Officer Keith Shyers of the Harrington Police

Department (“Officer Shyers”) also observed the SUV, and testified

that he saw a black male “hanging out [of] the window” of the SUV

and a “red poof” that “looked like some kind of paint.”

Because the vehicle was traveling at a high rate of speed and he

thought something was suspicious, Officer Shyers turned around

and began following the SUV. Officer Shyers then heard a call that

went out over the radio dispatch for a robbery that had just occurred

at the Bank. Officer Shyers was the first officer to begin pursuing

the car and was the lead vehicle for much of the pursuit. A few

minutes into the pursuit, the SUV stopped at an intersection and the

passenger got out of the vehicle and began firing shots at the

pursuing officers. Officer Shyers testified that he was approximately

20 to 30 feet from the passenger and that the passenger was a black

male wearing a grey hooded sweatshirt.

The passenger then got back in the SUV and a high-speed pursuit

ensued involving officers from the Delaware State Police,

Harrington Police Department, and Felton Police Department. At

various points during the pursuit, the passenger popped up through

the sunroof and fired shots at the officers. The left rear tire of Officer

Shyer’s vehicle was shot and he abandoned his vehicle and jumped

into another officer’s car to continue the pursuit.

Corporal Scott Torgerson, an assistant shift supervisor for the

Delaware State Police (“Corporal Torgerson”), who was driving a

fully-marked Crown Victoria, took over as the lead vehicle in the

pursuit. The passenger continued to fire shots at the officers from

the sunroof. The SUV drove around spike strips that had been set in

its path and Corporal Torgerson continued to pursue it. Shortly

thereafter, the driver lost control of the SUV and it came to rest in a

ditch with its back tires stuck. The driver and the passenger both

exited the SUV and began fleeing and Corporal Torgerson fired

shots at them. The driver of the SUV was shot in the leg by Corporal

Torgerson and was later identified as [Russell] Grimes. The

passenger of the vehicle escaped on foot.

State v. Grimes, 2019 WL 3337897, at *2 (Del. Super. Ct. July 23, 2019) (cleaned up). The police

later identified Petitioner’s accomplice as William S. Sells III. See id. at *1-3.

Following his arrest, Petitioner filed a pre-indictment motion to proceed pro se. (D.I. 11-

1 at Entry No. 3). The Delaware Superior Court conducted a self-representation hearing and

granted the motion. (D.I. 11-1 at Entry No. 8; D.I. 11-30).

On November 7, 2011, Petitioner was indicted on one count each of first-degree robbery,

first-degree conspiracy, second-degree conspiracy, possession of a firearm during the commission

of a felony (“PFDCF”), possession of a firearm or ammunition for a firearm by a person prohibited

(“PFBPP PABPP”); six counts of aggravated menacing; and five counts of attempted first-degree

murder. (D.I. 11-28). Petitioner and Sells were tried together in May 2013. See Grimes v. State,

113 A.3d 1080 (Table), 2015 WL 2231801, at *1 (Del. May 12, 2015). During the trial, the State

moved to amend the indictment to change the robbery victim’s name. See Grimes v. State, 237

A.3d 68 (Table), 2020 WL 4200132, at *2 (Del. July 21, 2020). The indictment originally named

Rose Marie Hase, a bank teller, as the robbery victim and other employees – including Vicki

Ebaugh, the bank manager – as victims of the six counts of aggravated menacing. See id.; Grimes,

2019 WL 3337897, at *1. At trial, Ebaugh testified that she assisted the armed robber with

emptying the drawers and Hase testified that she was merely present. See Grimes, 2020 WL

4200132, at *2. The Superior Court allowed the amendment under Delaware Superior Court

Criminal Rule 7(e). (See id.; (D.I. 11-20 at 3-17)). The jury found Petitioner guilty of first-degree

robbery, second-degree conspiracy, PFDCF, PFBPP PABPP, and five counts of second-degree

reckless endangering (as lesser included offenses of attempted first-degree murder). See Grimes,

2020 WL 4200132, at *1. The jury acquitted Petitioner of first-degree conspiracy and all six counts

of aggravated menacing. See id. The Superior Court imposed an aggregate sentence of Level V

incarceration for 64 years, followed by probation. (D.I. 11-29). Sells was also convicted and

sentenced. See Sells v. State, 109 A.3d 568, 570 (Del. 2015).

Petitioner and Sells appealed separately. See Grimes, 2015 WL 2231801, at *1; Sells, 109

A.3d at 570. In January 2015, the Delaware Supreme Court overturned Sells’ convictions because

the Superior Court erroneously denied him the right to exercise a peremptory strike under Batson

v. Kentucky, 476 U.S. 79 (1986). See Sells, 109 A.3d at 582. The Delaware Supreme Court then

ordered supplemental briefing in Petitioner’s appeal because his use of peremptory challenges had

been similarly restricted. See Grimes, 2015 WL 2231801, at *1. The Delaware Supreme Court

vacated Petitioner’s convictions and remanded the case for a new trial. See id.

On remand, Sells resolved his charges by entering a negotiated guilty plea. See State v.

Sells, 2017 WL 8788856, at *1 (Del. Super. Ct. Oct. 11, 2017). Petitioner was retried in November

2016. (D.I. 11-1 at Entry No. 247). The State re-used the amended indictment from Petitioner’s

first trial. See Grimes, 2019 WL 3337897, at *1; (D.I. 11-9 at 53). Petitioner did not object to

using the amended indictment from his first trial. See Grimes, 2020 WL 4200132, at *2. The jury

convicted Petitioner of first-degree robbery, second-degree robbery, PFDCF, PFBPP PABPP, and

five counts of second-degree reckless endangering. See Grimes v. State, 258 A.3d 147 (Table),

2021 WL 3441348, at *1 (Del. Aug. 5, 2021). The Superior Court imposed an aggregate sentence

of 53 years at Level V, followed by probation. See id. Petitioner appealed, and the Delaware

Supreme Court affirmed the Superior Court’s judgment on June 12, 2018. See Grimes v. State,

188 A.3d 824 (Del. 2018).

On August 3, 2018, Petitioner field a pro se motion for postconviction relief pursuant to

Delaware Superior Court Criminal Rule 61 (“Rule 61 motion”). (D.I. 11-1 at Entry No. 274;

D.I. 13-1 at 38-59). On July 23, 2019, a Superior Court Commissioner issued a Report and

Recommendation that Petitioner’s Rule 61 motion be denied as procedurally barred. (D.I. 12-15

at 51-73); see Grimes, 2019 WL 3337897, at *6. On October 16, 2019, the Superior Court adopted

the Commissioner’s Report and Recommendation and denied Petitioner’s Rule 61 motion. (D.I. 1-

1 at 21-23); see Grimes, 2019 WL 3337897, at *4. The Delaware Supreme Court affirmed that

decision on July 21, 2020. See Grimes, 2020 WL 4200132, at *4.

In October 2023, Petitioner filed a motion for correction of illegal sentence, which the

Superior Court denied. See Grimes v. State, 2024 WL 1069967, at *2 (Del. Mar. 11, 2024).

Petitioner filed another motion for correction of illegal sentence in November 2023, which the

Superior Court denied after construing it to be a motion for reargument from its denial of

Petitioner’s October 2023 motion for correction of illegal sentence. See id. Petitioner appealed

that decision. On March 11, 2024, the Delaware Supreme Court affirmed the Superior Court’s

November 2023 decision. See id.

II. GOVERNING LEGAL PRINCIPLES

A. The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

“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

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).

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; Werts

v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by

demonstrating that the habeas claims were “fairly presented” to the state’s highest court, either on

direct appeal or in a post-conviction proceeding, in a procedural manner permitting the court to

consider the claims on their merits. See Bell v. Cone, 543 U.S. 447, 451 n.3 (2005); Castille v.

Peoples, 489 U.S. 346, 351 (1989).

A petitioner’s failure to exhaust state remedies will be excused, and the claims treated as

“technically exhausted”, if state procedural rules preclude him from seeking further relief in state

courts. See Coleman v. Thompson, 501 U.S. 722, 732, 750-51 (1991) (such claims “meet[] the

technical requirements for exhaustion” because state remedies are no longer available); see also

Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Although treated as technically exhausted, such

claims are procedurally defaulted for federal habeas purposes. See Coleman, 501 U.S. at 749

(1991); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). 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 during his trial

created more than a possibility of prejudice; he must show that the errors worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at

494.

Alternatively, if a petitioner demonstrates that a “constitutional violation has probably

resulted in the conviction of one who is actually innocent,” Murray, 477 U.S. at 496, then a federal

court can excuse the procedural default and review the claim in order to prevent 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). The miscarriage of justice exception applies only in

extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. See

Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner

establishes actual innocence by asserting “new reliable evidence – whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not

presented at trial,” showing that no reasonable juror would have voted to find the petitioner guilty

beyond a reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004); see also

Reeves v. Fayette SCI, 897 F.3d 154, 157 (3d Cir. 2018).

C. Standard of Review

When a state’s highest court has adjudicated a federal habeas claim on the merits,1 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

1 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 based on its substance, rather than on a

procedural or some other ground. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009).

was an unreasonable determination of the facts based on the evidence adduced in the state court

proceeding. 28 U.S.C. § 2254(d)(1) & (2); see Williams v. Taylor, 529 U.S. 362, 412 (2000);

Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). 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. See Harrington v. Richter, 562 U.S. 86, 98-101 (2011). As explained by the Supreme

Court, “it may be presumed that the state court adjudicated the claim on the merits in the absence

of any indication or state-law procedural principles to the contrary.” Id. at 99.

A state court decision is “contrary to” clearly established federal law “if the state court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if

the state court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams, 529 U.S. at 413. The mere failure to cite Supreme Court

precedent does not require a finding that the decision is contrary to clearly established federal law.

See Early v. Packer, 537 U.S. 3, 8 (2002). For instance, a decision may comport with clearly

established federal law even if the decision does not demonstrate an awareness of relevant Supreme

Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Id. In turn, an “unreasonable application” of clearly established federal law occurs when

a state court “identifies the correct governing legal principle from the Supreme Court’s decisions

but unreasonably applies that principle to the facts of a prisoner’s case.” Williams, 529 U.S. at

413; see also White v. Woodall, 572 U.S. 415, 426 (2014).

When performing an inquiry under § 2254(d), a federal court must presume that the state

court’s determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(1); 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)(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). State

court factual determinations are not unreasonable “merely because the federal habeas court would

have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

Conversely, if the state’s highest court did not adjudicate the merits of a properly presented

claim, the claim is reviewed de novo instead of under § 2254(d)’s deferential standard. See

Breakiron v. Horn, 642 F.3d 126, 131 (3d Cir. 2011); Lewis v. Horn, 581 F.3d 92, 100 (3d Cir.

2009). De novo review means that the Court “must exercise its independent judgment when

deciding both questions of constitutional law and mixed constitutional questions.” Williams, 529

U.S. at 400 (Justice O’Connor concurring). “Regardless of whether a state court reaches the merits

of a claim, a federal habeas court must afford a state court’s factual findings a presumption of

correctness and . . . the presumption applies to factual determinations of state trial and appellate

courts.” Lewis, 581 F.3d at 100 (cleaned up).

III. DISCUSSION

Petitioner’s timely filed Petition asserts the following three grounds for relief: (1) the

amendment of his indictment and his retrial on the charge of first-degree robbery violated his right

to be protected against double jeopardy (D.I. 7 at 4-5); (2) he was denied his due process right to

a fair trial because: (a) the indictment was not presented to the grand jury in its amended form,

which means he was convicted and sentenced for a charge unsupported by probable cause; and

(b) his conviction of a greater offense and acquittal of a lesser offense violated the requirement

that his guilt must be found beyond a reasonable doubt (D.I. 7 at 6-7); and (3) the amendment of

the indictment divested the Delaware Superior Court of subject matter jurisdiction, thereby

depriving Petitioner of his due process right to notice of all charges made against him (D.I. 7 at 8).

A. Claim One: Double Jeopardy

In Claim One, Petitioner asserts that amending the indictment to align the victim of the

first-degree robbery offense (Vicki Ebaugh) with the victim of the aggravated menacing offense

(Vicki Ebaugh), and his retrial on the first-degree robbery charge after his acquittal on the

aggravated menacing charge, violated his right to be protected against Double Jeopardy for four

reasons: (a) the retrial constituted a successive prosecution after acquittal (D.I. 7 at 15); (b) the

amendment of the indictment subjected him to multiple prosecutions for the same offense after

jeopardy had attached (D.I. 7 at 5, 15); (c) the State violated the doctrine of issue preclusion2 by

retrying him for first-degree robbery after his acquittal on the aggravated menacing charge (D.I. 7

at 16; D.I. 13 at 7); and (d) the amendment of the indictment was multiplicitous and placed

Petitioner at risk of receiving multiple sentences for the same offense in violation of the Double

Jeopardy Clause (D.I. 7 at 5, 14). See generally (D.I. 13 at 7).

The record reveals that Petitioner exhausted state remedies for Claim One by presenting

variations of the sub-arguments on direct appeal and post-conviction appeal. On direct appeal,

Petitioner argued that the Double Jeopardy Clause barred his retrial on the charge of robbing Vicki

Ebaugh when he was already acquitted of the lesser offense-included offense of menacing her.

(D.I. 11-8 at 11). Citing the Fifth Amendment, Petitioner contended that, “[t]his is a classic case

of Double Jeopardy jurisprudence in which there has been a second prosecution for the offense

2 In his Petition, Petitioner uses the term “collateral estoppel” rather than “issue preclusion.”

The Supreme Court cases cited in this Opinion interchangeably use the terms “collateral

estoppel” and “issue preclusion.” Nevertheless, in Yeager v. United States, the Supreme

Court indicated a preference for using the term “issue preclusion” in the instant context.

See Yeager v. United States, 557 U.S. 110, 119 at n.4 (2009) (“Currently, the more

descriptive term “issue preclusion” is often used in lieu of “collateral estoppel.”). Given

this, when quoting the Supreme Court decisions, the Court uses the term used by the

Supreme Court in the particular decision but, when conducting its own analysis and

discussion of Petitioner’s arguments, the Court uses the term “issue preclusion”.

after an acquittal.” (D.I. 11-8 at 9). Petitioner also argued that the State was collaterally estopped

from prosecuting him for first degree robbery after he was acquitted of aggravated menacing.

(D.I. 11-12 at 5).

The Delaware Supreme Court rejected both of Petitioner’s arguments on direct appeal. The

Delaware Supreme Court denied Petitioner’s “classic” double jeopardy argument after

determining that Petitioner’s situation involved “a single – as distinguished from a successive –

prosecution.” Grimes, 188 A.3d at 827. The Delaware Supreme Court explained that Petitioner

“was indicted for first-degree robbery and aggravated menacing at the same time, and his retrial

for first-degree robbery was still – under the Ball [v. United States, 163 U.S. 662, 672 (1896)] rule

– part of the same, continuous prosecution.” Id. at 828. The Delaware Supreme Court also rejected

Petitioner’s collateral estoppel argument, holding that Petitioner’s acquittal on the aggravated

menacing charge did not have an issue-preclusive effect on the State’s ability to retry him for first-

degree robbery. See id. at 828-29.

On post-conviction appeal, Petitioner argued that the amendment to the indictment

“changed the complexion of the indictment” and placed him “in jeopardy twice” because he “now

was charged twice for the same offense under separate statutes.” (D.I. 11-19 at 19). He asserted

that the amendment “unconstitutionally created a dynamic wherein [his] acquittal for aggravating

menacing of . . . Ebaugh carried no preclusive effect.” (D.I. 11-19 at 20). The Delaware Supreme

Court denied the argument as procedurally barred under Rule 61(i)(4) for being formerly

adjudicated on direct appeal. See Grimes, 2020 WL 4200132, at *2.

This record demonstrates that the Delaware Supreme Court adjudicated the merits of all

four sub-arguments in Claim One. See, e.g., Jackson v. Metzger, 2020 WL 2839214, at *5 (D.

Del. June 1, 2020) (stating that, although Rule 61(i)(4) effectuates a procedural default under

Delaware law, the application of Rule 61(i)(4) “does not result in procedural default for federal

habeas purposes. Rather, the fact that the claim was formerly adjudicated means that it was

decided on the merits.”). Thus, Petitioner will only be entitled to relief if the Delaware Supreme

Court’s decision to deny Claim One was contrary to, or an unreasonable application of, clearly

established federal law under § 2254(d)(1).

1. Successive Prosecution and Multiple Prosecutions for Same Offense

The Double Jeopardy Clause protects a defendant against: (i) a second prosecution for the

same offense after acquittal; (ii) a second prosecution for the same offense after conviction; and

(iii) multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717

(1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).

Of particular relevance to Claim One is the fact that the Double Jeopardy Clause prohibits

the successive prosecution of a defendant for a greater or lesser included offense when he has

already been tried and acquitted on the other. See Brown v. Ohio, 432 U.S. 161, 169 (1977);

Lockhart v Nelson, 488 U.S. 33, 39 (1988) (explaining that the Double Jeopardy Clause “affords

the defendant who obtains a judgment of acquittal [. . .] absolute immunity from further

prosecution for the same offense.”); United States v. Scott, 437 U.S. 82, 91 (1978) (the “law

attaches particular significance to an acquittal.”); Arizona v. Washington, 434 U.S. 497, 503 (1978)

(“The public interest in the finality of criminal judgments is so strong that an acquitted defendant

may not be retried even though the acquittal was based upon an egregiously erroneous

foundation.”). The Double Jeopardy Clause, however, does not prohibit the State from joining

greater and lesser-included offenses within a single indictment and prosecuting them both in the

same trial.3 See Ohio v. Johnson, 467 U.S. 493, 500 (1977). Additionally, pursuant to the concept

3 Nevertheless, “in the event of a guilty verdict on the more serious offenses,” the trial court

presumably will “have to confront the question of cumulative punishments as a matter of

of “continuing jeopardy” formulated in Ball, 163 U.S. at 672, the Double Jeopardy Clause does

not bar retrial for the same offense when a defendant successfully appeals and obtains a reversal

of his conviction. See Price v. Georgia, 398 U.S. 323, 326 (1970) (explaining that the Ball Court

“effectively formulated a concept of continuing jeopardy that has application where criminal

proceedings against an accused have not run their full course.”). Although an acquittal terminates

initial jeopardy, a conviction still subject to direct appeal is not final. See Justices of Bos. Mun.

Ct. v. Lydon, 466 U.S. 294, 308 (1984). Situations where a retrial is viewed as a continuation of

the initial prosecution include: (1) retrial after a mistrial was granted on the defendant’s motion

(unless the government intended to provoke the mistrial request), Oregon v. Kennedy, 456 U.S.

667, 678-79 (1982); (2) retrial after a mistrial was justified by “manifest necessity,” such as trial

error that cannot be corrected or the jury’s inability to reach a verdict, Illinois v. Somerville, 410

U.S 458, 464 (1973); and (3) retrial after the defendant’s conviction was reversed because of trial

error, Ball, 163 U.S. at 671-72, because his guilty pleas was involuntary, United States v. Tateo,

377 U.S. 463, 464 (1964), or because the conviction was against the weight of the evidence, Tibbs

v. Florida, 457 U.S. 31, 47 (1982).4 As the United States Supreme Court explained in Bravo-

Fernandez v. United States, 580 U.S. 5 (2016):

This “continuing jeopardy” rule neither gives effect to the vacated

judgment nor offends double jeopardy principles. Rather, it reflects

state law.” Johnson, 467 U.S. at 500 (“While the Double Jeopardy Clause may protect a

defendant against cumulative punishments for convictions on the same offense, the Clause

does not prohibit the State from prosecuting respondent for such multiple offenses in a

single prosecution.”).

4 The narrow exception to the Ball “continuing jeopardy” rule is when the reviewing court

has found the evidence legally insufficient. See Burks v. United States, 437 U.S. 1, 18

(1978). The Burks exception is premised on the idea that reversal based on insufficiency

of the evidence, rather than legal error, has the same effect as a judgment of acquittal. See

Tibbs, 457 U.S. at 40.

the reality that the criminal proceedings against an accused have not

run their full course.

Id. at 18–19.

In Claim One (a) and (b), Petitioner asserts that the amendment of his original indictment

“plac[ed him] in jeopardy twice for the same offense” because it “aligned” a lesser offense of

aggravated menacing and a greater offense of first-degree robbery.5 (D.I. 7 at 4-5). He also argues

that “the adjudication of the second direct appeal was in fact and in law, a second form of Double

Jeopardy,” namely, “a successive prosecution for 1st degree robbery following an acquittal for

aggravated menacing.” (D.I. 7 at 17-18).

To the extent Petitioner generally asserts that amending an indictment to include both

greater and lesser included offenses per se violates the Double Jeopardy Clause, the argument is

unavailing. The Double Jeopardy Clause does not prohibit a state from charging a defendant with

greater and lesser included offenses in one indictment and prosecuting those offenses in a single

trial.6 See Johnson, 467 U.S. at 500.

To the extent Petitioner argues that his acquittal for the aggravated menacing of Ebaugh

barred his retrial on the greater offense of robbing her, because the aggravated menacing and first-

5 Petitioner states:

After the trial court allowed the amendment to place petitioner in a

double jeopardy calculus, meaning, after the amendment, instead of

Robbery 1st of Rose Marie Hase and aggravated menacing of Vicky

Ebaugh which was the sufficient way the grand jury presented its

true bill. After the change Petitioner Grimes faced the

unconstitutional dynamic of fighting a robbery 1st of Vicky Ebaugh

and aggravated menacing of Vicky Ebaugh.

(D.I. 7 at 5, 16)

6 The Court addresses Petitioner’s argument that the amendment created a multiplicitous

indictment later in the Opinion. See infra at Section III.A.3. The Court also addresses

Petitioner’s related argument that the Superior Court improperly permitted the amendment

of the indictment later in the Opinion. See infra at Section III.B.

degree robbery charges “are the same offense for double jeopardy purposes, per Delaware law,”

the argument is similarly unavailing. (D.I. 7 at 15). When addressing this argument in Petitioner’s

direct appeal, the Delaware Supreme Court acknowledged that the prohibition against double

jeopardy bars a second successive prosecution for a greater offense after the defendant has been

acquitted on a lesser-included offense. See Grimes, 188 A.3d at 827. Nevertheless, citing the

relevant Supreme Court decisions, the Delaware Supreme Court concluded that double jeopardy

considerations did not bar Petitioner’s retrial on the first-degree robbery charge here because:

(1) the State was authorized to charge first-degree robbery and aggravated menacing together in

the amended indictment, see Johnson, 467 U.S. at 500-01; (2) Petitioner was subject to continuing

jeopardy from his first trial through his second trial because first-degree robbery and aggravated

menacing were both charged in the amended indictment, and the reversal of his first-degree

robbery conviction was not “final” for double jeopardy purposes, see Lydon, 466 U.S. at 308, 326;

Ball, 163 U.S. at 672; Brown, 432 U.S. at 168; and (3) Petitioner’s retrial after his convictions

were overturned on direct appeal due to an error during jury selection did not constitute a

successive prosecution, see Price, 398 U.S. at 329. See Grimes, 188 A.3d at 826-828. The

Delaware Supreme Court correctly concluded:

[W]hile [Petitioner] believes that acquittals should have the same

double-jeopardy effect on retrials that they have on successive

prosecutions, Johnson and Price show that “there is a difference

between separate, successive trials of greater and lesser offenses,

and the different situation[s] in which both are tried together.” For

double-jeopardy purposes, “it makes all the difference.”

Grimes, 188 A.3d at 828 (cleaned up).

Based on the foregoing, the Court concludes that the Delaware Supreme Court’s denial of

Claim One (a) and (b) was neither contrary to, nor based on unreasonable application of, clearly

established federal law.

2. Issue Preclusion

The Double Jeopardy Clause also incorporates the doctrine of issue preclusion and protects

defendants from being forced to relitigate issues of ultimate fact that jury decided at a previous

trial. See Bravo-Fernandez, 580 U.S. at 12; Ashe v. Swenson, 397 U.S. 436, 443–46 (1970).

“[P]rinciples of collateral estoppel [. . .] are predicated on the assumption that the jury acted

rationally and found certain facts in reaching its verdict.” United States v. Powell, 469 U.S. 57,

68 (1984). A defendant who raises issue preclusion under the Double Jeopardy Clause bears the

heavy burden of showing that “the issue whose relitigation he seeks to foreclose was actually

decided by a prior jury’s verdict of acquittal.” Bravo-Fernandez, 580 U.S. at 12. When the same

jury reaches irreconcilably inconsistent verdicts on the question that the defendant seeks to prevent

a second jury from considering, and the conviction is later vacated for legal error unrelated to the

inconsistency, the “principles of collateral estoppel [. . .] are no longer useful.” Powell, 469 U.S.

at 68; see Bravo-Fernandez, 580 U.S. at 17–18. In such cases, retrial is permitted because it cannot

be determined why the jury returned an acquittal and, relatedly, the defendant cannot meet the

burden of demonstrating that the jury necessarily decided the point at issue in his favor. See Bravo-

Fernandez, 580 U.S. at 18-24; Powell, 469 U.S. at 68-69.

On direct appeal, Petitioner argued that the “principles of double jeopardy are subsumed

by the broader doctrine of collateral estoppel which means that, when an issue of ultimate fact has

once been determined by a valid and final judgment, that issue cannot be litigated between the

same parties in any future lawsuit.” (D.I. 11-12 at 5). In Claim One (c) of his Petition, Petitioner

contends that his aggravated-menacing acquittal had an issue-preclusive effect on the State’s

ability to retry him for first-degree robbery. According to Petitioner: (1) under Delaware law, the

two offenses of aggravated menacing and first-degree robbery merged into the same offense

because the offenses happened during the same occurrence (Id. at 7); (2) the fact that his

convictions from his first trial were vacated “meant that all of the convictions were wiped out,”

leaving his acquittal in place (D.I. 11-14 at 6-7); and (3) by retrying him for first-degree robbery,

the State was re-prosecuting him “for a charge whose exact same elements ha[d] previously been

adjudicated in an acquittal.” (D.I. 11-14 at 7). In sum, Petitioner appears to argue that the Double

Jeopardy Clause barred the second prosecution for first-degree robbery because he believes that

his acquittal on the lesser-included offense of aggravated menacing constitutes an acquittal on the

greater offense. (D.I. 11-2 at 5).

The Delaware Supreme Court was not persuaded by Petitioner’s argument that his acquittal

should be “credited” over the conviction and treated as the “jury’s true verdict.” Grimes, 188 A.3d

at 829. After explaining that “issue preclusion is predicated on the assumption that the jury acted

rationally,” the Delaware Supreme Court held that the principle of issue preclusion did not apply

in Petitioner’s case because the jury’s irreconcilable verdict made it “impossible to discern which

verdict the jurors arrived at rationally.” Grimes, 188 A.3d at 829. This conclusion was premised

on a straight-forward application of the rationale set forth in Powell and Bravo-Fernandez.

Therefore, the Court concludes that the Delaware Supreme Court’s denial of Claim One (c) was

not contrary to, and also did not involve, an unreasonable application of clearly established federal

law.

3. Multiplicity

Multiplicity is the charging of a single offense in separate counts of an indictment. See

United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978). “A multiplicitous indictment risks

subjecting a defendant to multiple sentences for the same offense, an obvious violation of the

Double Jeopardy Clause’s protection against cumulative punishment.” United States v. Kennedy,

682 F.3d 244, 255 (3d Cir. 2012). Notably, multiplicitous charges alone do not violate a

defendant’s right to be protected against double jeopardy; it is the resulting multiple convictions

or punishments that potentially violate the Double Jeopardy Clause. See Johnson, 467 U.S. at 500

(“While the Double Jeopardy Clause may protect a defendant against cumulative punishments for

convictions on the same offense, the Clause does not prohibit the State from prosecuting

respondent for such multiple offenses in a single prosecution.”). The traditional test for

determining if the cumulative punishment imposed for multiple offenses violates double jeopardy

is the same-elements test set forth in Blockburger v. United States, 284 U.S. 299 (1932). See

Brown, 432 U.S. at 166 (noting that the “established test for determining whether two offenses are

sufficiently distinguishable to permit the imposition of cumulative punishment was stated in

Blockburger.”). Pursuant to Blockburger, a court must analyze “whether each offense contains an

element not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars

additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696

(1993). The rule articulated in Blockburger is a “rule of statutory construction to help determine

legislative intent;” the rule is “not controlling when the legislative intent is clear from the face of

the statute or the legislative history.” Garrett v. United States, 471 U.S. 773, 778-79 (1985). In

the typical multiplicity case, two different statutes define the “same offense” because one is a

lesser-included offense of the other. See Rutledge v. United States, 517 U.S. 292, 297 & n.6

(1996).

In Claim One (d), Petitioner contends that the State created a multiplicitous indictment

when it changed the name of the victim for the first-degree robbery charge to “align” with the

name of the victim for one of the aggravated menacing charges. On post-conviction appeal, the

Delaware Supreme Court denied this argument as formerly adjudicated under Rule 61(i)(4),

asserting that it had already ruled on the underlying double jeopardy argument when it affirmed

Petitioner’s conviction for first-degree robbery in his second direct appeal. Given the Delaware

Supreme Court’s reliance on Rule 61(i)(4), the Court must treat Claim One (d) as though it was

adjudicated on the merits.

The Court does not need to engage in the Blockburger analysis to determine if the amended

indictment was multiplicitous because, pursuant to well-settled Delaware law, aggravated

menacing is a lesser-included offense of first-degree robbery. See Poteat v. State, 840 A.2d 599,

606 (Del. 2003) (concluding that “the General Assembly intended for Aggravated Menacing to be

a lesser-included offense of Robbery in the First Degree.”). Nevertheless, since Petitioner was not

convicted of (nor sentenced for) two separate offenses involving the same conduct, any

multiplicity issues surrounding the amended indictment did not result in violating Petitioner’s right

to be free from double jeopardy. During his original trial in 2013, Petitioner was convicted of only

one count of first-degree robbery, and he was acquitted of all six counts of aggravated menacing.

At his 2016 retrial, Petitioner was no longer facing any of the aggravated menacing charges

because of the 2013 acquittals and, again, he was convicted of only one count of first-degree

robbery. Given these circumstances, the Court concludes that Claim One (d) lacks merit and does

not warrant relief under § 2254(d).

B. Claim Two (a): Not Cognizable and Procedurally Barred

In Claim Two (a), Petitioner argues that he “was convicted and sentenced for a charge in

which there was no probable cause determination” because the indictment was not presented to

the grand jury in its amended form. (D.I. 7 at 6). The Fifth Amendment right to a grand jury

indictment does not apply to State criminal prosecutions,4 therefore, “the legality of an amendment

to an indictment is primarily a matter of state law.” United States ex. rel Wojtycha v. Hopkins, 517

F.2d 420, 425 (3d Cir. 1975). Claims based on errors of state law are not cognizable on federal

4 See Apprendi v. New Jersey, 530 U.S. 466, 499 (1994); Rose v. Mitchell, 443 U.S. 545, 557

n.7 (1979); Hurtado v. California, 110 U.S. 516 (1884).

habeas review, and federal courts cannot re-examine state court determinations on state law issues.

See Estelle v. McGuire, 502 U.S. 62, 67-8 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Riley

v. Taylor, 277 F.3d 261, 310 n.8 (3d Cir. 2001). Thus, as a threshold matter, the Court concludes

that Claim Two (a) does not present an issue cognizable on federal habeas review.

Claim Two (a) is also procedurally barred. On post-conviction appeal, Petitioner argued

that he was not provided notice of the amendment to the indictment which, in turn, misled him

about the charges for which he needed to prepare a defense. (D.I. 11-19 at 14-19). The Delaware

Supreme Court characterized Petitioner’s argument as asserting that the amended indictment

violated his right to a fair trial, and denied the argument as procedurally defaulted under Rule

61(i)(3) due to Petitioner’s failure to present the argument during his first trial, first direct appeal,

second trial, and second direct appeal. See Grimes, 2020 WL 4200132, at *1.

By applying the procedural bar of Rule 61(i)(3) to Claim Two (a), 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. This Court has consistently held that Rule 61(i)(3) is an

independent and adequate state procedural rule effectuating a procedural default. See Lawrie v.

Snyder, 9 F. Supp. 2d 428, 451 (D. Del. 1998). Thus, the Court finds that Claim Two (a) is

procedurally defaulted.

Having determined that Claim Two (a) is procedurally defaulted, the Court cannot review

the Claim’s merits 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. Petitioner

does not assert any reason for his default of Claim Two (a). Petitioner’s failure to establish cause

eliminates the Court’s need to consider prejudice. Additionally, the miscarriage of justice

exception to the procedural default doctrine does not excuse Petitioner’s default, because Petitioner

has not provided new reliable evidence of his actual innocence.

Based on the foregoing, the Court will deny Claim Two (a) for failing to present an issue

cognizable on federal habeas relief and, alternatively, as procedurally barred from habeas review.

C. Claim Two (b): Failure to Establish Proof of Guilt Beyond Reasonable for

First-Degree Robbery

In Claim Two (b), Petitioner argues that his acquittal on the aggravating menacing charge

necessarily prevents establishing the elements for first-degree robbery, thereby demonstrating that

the State did not establish his guilt for first-degree robbery beyond a reasonable doubt. (D.I. 7 at

6). The record reveals that Petitioner presented this argument to the Delaware Supreme Court on

post-conviction appeal in terms of double jeopardy/issue preclusion, due process, and inconsistent

verdicts. (D.I. 11-19 at 21). The Delaware Supreme Court viewed the argument as essentially

reasserting the double jeopardy claim that it had denied in Petitioner’s second direct appeal, and

dismissed the argument as barred under Rule 61(i)(4) for being formerly adjudicated.

Consequently, to the extent Claim Two (b)’s “absence of proof beyond a reasonable doubt”

argument asserts a double jeopardy violation, the Court denies it for the same reasons set forth in

Section III.A. of this Opinion.

Nevertheless, in his Reply, Petitioner states that he presented Claim Two (b) to the

Delaware Supreme Court as an insufficient evidence argument. Given the Delaware Supreme

Court’s failure to consider it as such, Petitioner argues that the Court should review his insufficient

evidence allegation on its merits. The Court is not persuaded. A review of the record reveals that

Petitioner did not “fairly present” his insufficient evidence argument to the Delaware Supreme

Court. The clearly established federal law governing insufficient evidence claims is the standard

set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). See Eley v. Erickson,

712 F.3d 837, 847 (3d Cir. 2013) (“The clearly established federal law governing Eley’s

[insufficient evidence] claim was determined in Jackson.”). Pursuant to Jackson, the relevant

question is “whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson, 443 U.S. at 319. Although Petitioner cited to Jackson and used the phrase “no

person may be convicted of an offense unless each element of the offense is proved beyond a

reasonable doubt” when he presented Claim Two (b) to the Delaware Supreme Court on post-

conviction appeal, he actually argued that the inconsistency between the two verdicts (acquittal for

aggravated menacing and conviction for first-degree robbery) meant all elements of first-degree

robbery were not found beyond a reasonable doubt. (D.I. 11-19 at 21). Importantly, in Powell,

the Supreme Court cautioned that sufficiency of the evidence review “should not be confused with

the problems caused by inconsistent verdicts.” Powell, 469 U.S. at 67. As the Powell Court

explained:

Sufficiency-of-the evidence review involves assessment by the

courts of whether the evidence adduced at trial could support any

rational determination of guilt beyond a reasonable doubt. This

review should be independent of the jury’s determination that

evidence on another count was insufficient.

Id.

Here, Petitioner did not argue on post-conviction appeal that the evidence was legally

insufficient or that the trial court incorrectly instructed the jury on the burden of proof. In other

words, Petitioner did not fairly present a “true” insufficient evidence argument to the Delaware

Supreme Court. Given these circumstances, the Court concludes that Petitioner did not exhaust

state remedies for the “true” insufficient evidence argument he asserts in Claim Two (b).

At this juncture, any attempt by Petitioner to raise Claim Two (b)’s insufficient evidence

argument in a new Rule 61 motion would be barred as untimely under Delaware Superior Court

Criminal Rule 61(i)(1) and denied as procedurally defaulted under Rule 61(i)(3). See DeAngelo

v. Johnson, 2014 WL 4079357, at *12 (D. Del. Aug. 15, 2014). Thus, the Court must excuse as

futile Petitioner’s failure to exhaust state remedies, but still treat the insufficient evidence argument

in Claim Two (b) as procedurally defaulted.

Petitioner has not provided any cause for his failure to fairly present the insufficient

evidence argument to the Delaware Supreme Court on post-conviction appeal.7 In the absence of

cause, the Court will not address the issue of prejudice. Additionally, the miscarriage of justice

exception to the procedural default doctrine does not excuse Petitioner’s default, because Petitioner

has not provided new reliable evidence of his actual innocence. Accordingly, the Court will deny

the insufficient evidence argument in Claim Two (b) as procedurally barred from habeas review.

D. Claim Three: Subject Matter Jurisdiction

In Claim Three, Petitioner contends that the amendment of the indictment divested the

Superior Court of subject-matter jurisdiction over his case which, in turn, also violated due process.

(D.I. 7 at 8). As previously discussed with respect to Claim Two (a), the legality of an indictment

is an issue of state law. See supra at Section III.B. The issue of the Superior Court’s subject matter

jurisdiction is also a matter of state law, because a Delaware state court’s jurisdiction is determined

by the Delaware Constitution and the Delaware Code. See Del. Const. art. IV, 7; 10 Del. C. § 541;

United States v. Kerley, 416 F.3d 176, 182 (2d Cir. 2005) (“[S]ubject matter jurisdiction . . . is

7 In his Reply, Petitioner attempts to present a vague argument that there was insufficient

evidence to support his conviction by alleging that the trial transcripts have been altered.

(D.I. 13 at 6). Since Petitioner did not present this same allegation to the Delaware

Supreme Court on post-conviction appeal, his current assertion does not cure his failure to

satisfy the “fair presentation” requirement of the exhaustion doctrine.

wholly an issue of state statutory law. The application – or misapplication of state subject matter

jurisdiction rules raise no constitutional issues, due process or otherwise.”). Therefore, the Court

will deny Claim Three for failing to assert an issue cognizable on federal habeas review.

Nevertheless, even if Claim Three could be construed as presenting an issue cognizable on

federal habeas review, it is procedurally barred. The record reveals that Petitioner exhausted state

remedies for Claim Three by presenting it to the Delaware Supreme Court on post-conviction

appeal, both as a free-standing claim and as a way to trigger Rule 61(i)(5)’s exception to the

procedural default bar of Rule 61(i)(3). See Grimes, 2020 WL 4200132, at *2; (D.I. 11-19 at 7).

The Delaware Supreme Court denied Claim Three’s lack-of-subject-matter-jurisdiction argument

as procedurally defaulted under Rule 61(i)(3) because Petitioner did not raise the argument during

his first trial, second trial and second appeal, and Petitioner did not demonstrate that his failure to

raise the absence of subject matter argument triggered Rule 61 (i)(5)’s miscarriage of justice

exception for the default. See Grimes, 2020 WL 4200132, at *1.

Rule 61(i)(5) provides:

The bars to relief in paragraphs (1), (2), (3), and (4) of this

subdivision shall not apply either to a claim that the court lacked

jurisdiction or to a claim that satisfies the pleading requirements of

subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.

Given the language in Rule 61(i)(5), one could argue that the Delaware Supreme Court adjudicated

the merits of Petitioner’s lack-of-subject-matter-jurisdiction argument when determining that he

did not trigger Rule 61(i)(5)’s exception to Rule 61(i)(3)’s bar. To the extent the Court should

view the Delaware Supreme Court’s determination regarding Petitioner’s failure to meet Rule

61(i)(5)’s exception as constituting an adjudication of Claim Three’s merits, the Court finds that

the Delaware Supreme Court’s analysis in rejecting the argument actually supports the Court’s

threshold determination that Claim Three asserts an issue of state law that is not cognizable in this

proceeding. For instance, after explicitly identifying and then applying Delaware law, the

Delaware Supreme Court determined that amending the indictment by changing the names of the

victims did not constitute a substantive change, did not prejudice Petitioner, and did not divest the

Superior Court of jurisdiction over his case. See Grimes, 2020 WL 4200132, at *3.

Conversely, to the extent the Delaware Supreme Court’s consideration as to whether

Petitioner’s lack-of-subject-matter-jurisdiction argument could satisfy Rule 61(i)(5)’s exception

to Rule 61(i)(3)’s bar did not constitute an adjudication of Claim Three on the merits for the

purposes of § 2254(d)(1), the Court defers to the Delaware Supreme Court’s final holding that

Claim Three was procedurally defaulted under Rule 61(i)(3) and further concludes that Claim

Three is procedurally barred.8

Based on the foregoing, the Court will deny Claim Three for failing to assert an issue

cognizable on federal habeas review and, alternatively, as procedurally barred.

IV. PENDING MOTION

During the pendency of this proceeding, Petitioner filed a Motion for Summary Judgment.

(D.I. 19). The Motion re-asserts in summary form the arguments Petitioner presented in his

Petition. Having already determined that none of the Claims in the Petition warrant relief, the

Court will dismiss as moot the Motion for Summary Judgment.

V. CERTIFICATE OF APPEALABILITY

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

issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2). A

8 The Court concludes that Claim Three is procedurally barred because: (1) Petitioner does

not assert any reason for his failure to present Claim Three during his first and second trials

or during his appeals after his first and second trials; (2) in the absence of cause, the Court

does not need to address the issue of prejudice; and (3) the miscarriage of justice exception

to AEDPA’s procedural default rule does not excuse Petitioner’s procedural default,

because he has not provided any new reliable evidence of his actual innocence.

certificate of appealability is appropriate when a petitioner makes a “substantial showing of the

denial of a constitutional right” by demonstrating “that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” 28 U.S.C. § 2253(c)(2); see

also Slack v. McDaniel, 529 U.S. 473, 484 (2000). In addition, when a district 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. See Slack

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

The Court has concluded that the instant Petition does not warrant relief. Reasonable jurists

would not find this conclusion to be debatable. Accordingly, the Court will not issue a certificate

of appealability in this case.

VI. CONCLUSION

For the reasons discussed, the Court will deny the instant Petition and deny as moot the

pending Motion for Summary Judgment. The Court also declines to issue a certificate of

appealability. The Court will enter an Order consistent with this Memorandum Opinion.