Petition for Writ of Certiorari — James E. Cooke, Petitioner v. Delaware

Supreme Court briefMay 22, 2018

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Text

Term

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES EDWARD COOKE,

Petitioner,

STATE OF DELAWARE

Respondent.

On Petition for a Writ of Certiorari

to the Delaware Supreme Court

PETITION FOR WRIT OF CERTIORARI

Lh fl

Christopher S. Koyste, E4q.

Supreme Court Bar # 305492

Law Office of Christopher S. Koyste, LLC

709 Brandywine Boulevard

Wilmington, DE 19809

(302) 762-5195

Attorney for James Edward Cooke, Petitioner

Dated: May 22, 2018

QUESTIONS PRESENTED

Did the Delaware courts’ creation from the bench of a mandatory life without

parole sentence violate Mr. Cooke’s due process and Eighth Amendment rights?

Does the creation of a mandatory life without parole sentence, thereby depriving

Mr. Cooke of appellate review of his sentence as required by state law, violate the

Eighth and Fourteenth Amendments?

PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

QUESTION PRESENTED. ...........0.0c ccc ec eee eee c ee ne teen e eee e een ence een eee e teen e ne ee enna eee ee naes i

PARTIES TO THE PROCEEDING. ............ 00... c cece eee cence renee nee ee nee e ee ee eee e en ee ene eeeneenens il

TABLE OF CONTENTS. ........... 0: ccecceee eee ence cence eee tenance e ences eee nen enna ene e ee ee te gats iti

TABLE OF AUTHORITIES. .............. cece ccc c cence cece tence een n nee en ee nen e eee eee e renee neta eens Vv

PETITION FOR A WRIT OF CERTIORARL........ 0.2... ccc cece eee e ence een ne nee ee nena ence renee nn enees 1

OPINIONS BELOW............:::ccececenc cnc eeeee eee e ene ensea senses eee enseeteneeeeeeeenereeeeneenreeeegs 2

JURISDICTION. ....... 0... cc ccc cece neers eee eee see eee ee cee ene eee ences enseneeeesenseeteaeeeeeseseneeneeerecs 3

CONSTITUTIONAL PROVISIONS INVOLVED. ........ 0.0... cece eee eee ee teen eet e cent nents eee 4

STATEMENT OF THE CASE.......... 0.20. ccc ese ec cece cence eee eee ence ence nee eeeeeneeneeeeeeneeneeeegs 5

REASONS FOR GRANTING THE PETITION........ 0.0... cece cc cceee eee e een e nent eee eee neces enees 7

A. The Delaware Courts have Created a Mandatory Life Without Parole Sentence,

Exceeding its own Constitutional Role and Violating Mr. Cooke’s Due Process Rights...7

1. Where state law creates a specific legal process, denial of that process violates

GUE PLOCESS.... 0... eee eee e cece cece ne rete nee e ene EEE EE ee ee renee nee REDE EEE EEE Teen eer 7

2. By creating a mandatory life without parole sentence simply to avoid the

complications caused by Rauf, the Delaware Courts overstepped their

constitutional role and imposed an illegal sentence in violation of Mr. Cooke’s

due process rights..............csc cece cee ce cece eee eee eee nee eee een ene c eran eee een eae aaaees 9

B. A Sentence of Life Without Parole that Cannot Undergo Meaningful Review Violates the

Eighth Amendment’s Prohibition Against the Imposition of Cruel and Unusual

Punishment and the Fourteenth Amendment’s Due Process Guarantee..................655 12

1.Life without parole is a grave penalty akin to death.............. ccc cece eee ee cere cece eee 12

2. The Delaware courts have created a mandatory life without parole sentence that

avoids meaningful appellate review, in violation of the Eighth Amendments.....13

3. The Delaware courts’ creation of a mandatory life sentence denied Mr. Cooke of

appellate review of his sentence as provided by state law, in violation of his due

PFOCESS TIghtS....... 2. cece cece cence ener e een EEE Eee EEE Een EEE EEE ES Eee ee eS 15

FO) i BL OES3 CO) x Re 16

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APPENDIX

Cooke v. State, No. 309, 2017 (Del. Feb. 21, 2018)...... 0... cece nce e eee e eee ee ences Al

May 16, 2017 Letter Order of the Delaware Superior Court..................eceeeeeeeeees AS

May 31, 2017 Letter from Delaware Superior Court. ........... 0... ccc cc cc cece ene ee eee eees A6

Petitioner’s April 4, 2017 Motion to Vacate Death Sentence and for a New Sentencing

ProceediNg...... 20... cece cee cece cence ence eee eee een eee eee ene eee EEE EE ERE EEE Ene eee EEE EERE EEE ES A7

Petitioner’s April 12, 2017 Amended Motion to Vacate Death Sentence and for a New

Sentencing Proceeding............ 0. ccs cece eee e cece eee cece eee e eee e nee eens ee Een ene cent ee es Al6

State of Delaware’s April 12, 2017 Response to Defendant’s Motion to Vacate Death

Sentence and for a New Sentencing Proceeding...................ceeeeec seen cence seen ee ee es A23

Petitioner’s April 24, 2017 Reply to State’s Response to Motion to Vacate Death

Sentence and for New Sentencing Proceeding............. 0... ccc scence nce e eee nent ee een enes A45

Petitioner’s May 12, 2017 Letter to the Delaware Superior Court.....................0065 A48

Petitioner’s May 30, 2017 Motion to Waive Appearance at Resentencing Hearing.....A49

State of Delaware’s May 31, 2017 Letter responding to Motion to Waive Appearance at

Resentencing Hearing............... ccc cee eeeceee eee ee eee ee eee eeeeneeeeneeneeeeeeensseseeeneeees A57

January 26, 2015 Appointment Order, Delaware Superior Coutt....................6. 000 A6l

TABLE OF AUTHORITIES

Cases

Bartley v. Davis, 519 A.2d 662 (Del. 1986)............. ccc ccc e nee e eee e ee eee een ee ene reese ene ee nena 10

Campbell v. Ohio, 138 S. Ct. 1059 (2018)... ... cece eee ec eee e cece nee cere en ee eee e cease een ees 13, 14

Cooke v. State, 97 A.3d 513 (Del. 2014)... 2.0 e cece cece eee e eee eee e ene e nen renee nee renee 5

Cooke v. State, 977 A.2d 803 (Del. 2009).......... 0.2 cc cece cece eee c eee ence renee eee ence een eens ee en en nees 5

Cooke v. State, No. 309, 2017, 2018 WL 1020106 (Del. Feb. 21, 2018)................. eee 2, 6, 11

Evans v. State, 872 A.2d 539 (Del. 2005)........ 0. ccc cce ccc ce cece eee e tent een cence eee tees eee eeeees 8, 12

Evitts v. Lucey, 469 U.S. 387 (1985)... 0... cc ccc eee ce eee ne eee e een e eens enone ence enes 7,9, 12,15

Ford v. Wainwright, 477 U.S. 399 (1986)....... 0... cce cece eee eee e een e nee ence eee eee nentnen cena ee ees 8

Graham v. Florida, 560 U.S. 48 (2010).............ccceeceece cece eee eee n cece en ee eee e ene eeeeneeeen ene enes 12

Gregg v. Georgia, 428 U.S. 153 (1976)...... 0... cece cece cee eee eee ee ee eee eee nenenene eee eeneeen ens 13

Hicks v. Oklahoma, 447 U.S. 343 (1980)...... 2... ccece cence cece cence cence cence teen e nen ee eaten ee ee eee 8

Hurst v. Florida, 136 S. Ct. 616 (2016).......... 02.2 cece cece eee e cece cence ee ence ene e tenet eee eae geas 5

Knight v. Florida, 528 U.S. 990 (1999). ...... 2. ccc cece ccc ce cence cece nen e ence cece ene ee eee ne en eneneee ees 13

Lackey v. Texas, 514 U.S. 1045 (1995)... 0. occ e cece cece cece eee een eee renee eee eee eee ees 13

Mayes v. State, 604 A.2d 839 (Del. 1992)....... 0. ccc cece cece cence nee eee ee eee ea tees ne eentee eee 14, 15

Mayor v. Educational Equality League, 415 U.S. 605............cceeeeee cece eee ee eee en eee eee tee neees 8

Miller v. Alabama, 567 U.S. 400 (2012)...... 00... cece ccc ce cece cence ene ee erences eenenneseneneeeeenneeee 12

Norcross v. State, 177 A.3d 1226 (Del. 2018)........ 2... c cece cece cence ence eee nee ne eee eee nena ene ne gees 11

Powell v. State, 153 A.3d 69 (Del. 2016)..... 0.00... ccc cece cece ete nce n cece nce e eee eee ee ene ne enn eneeeenaes 6

Rauf v. State, 145 A.3d 430 (Del. 2016)... 0... c ccc cece eee e eee e eee eneen eee enenees 6, 9, 10, 11

Rice v. Foster, 4 Del. 479 (1847)... 0.2. cece cece cence eee eee e ee ene ence eee eee ene e teeta eeneeeetree eens 8, 12

State v. Swan, 178 A.3d 455 (Del. Super. Ct. 2017)... 00... cece ccc e eee ee ec ee eee e nee ee tener eeen een ees 11

Thompson v. McNeil, 556 U.S. 1114 (2009)... 0 oon nce n eee eee e een nene een ene ens 13, 15

Whalen v. United States, 445 U.S. 684 (1980)....... 0. cece cece cece cece cence ences eee eneeeea ee eesenees 8

Constitutional Provisions

DE Const. Art. I, § Loo... cece cece cece cece cence cece nee ee been eee ee ee ee teens ene eet en enenseeeneesegens 8, 12

DE Const. Art. IV, § Lo...... cece ceee ec ec eee e eee e ce een cee eet nen e cence sees sees ees nena tte e ene ent e genes 8, 12

U.S. CONST. amend. VU... 20.2.0... cece ccc ce eee n eee cence een e eee eee cece eee n een eee ee eee e nent ene e ee egs 4

U.S. CONST. amend. XIV.......... 0c cece sees cece tence ene eee e beeen tence ene e neers ea eeeentenenereneraenees 4

Statutes

10 i 97-7 Far OR Sc) (0) | @ 0 Rn 11

| 97 fan Oh. 92s Snare 11

11 Del. C. § 4209.0... ccc cece ee cence cece eee nen n een ee een e nee ne eens eee e ae ee sa sessenesseesseesees 6, 10

92:3 Oe ORE On] (:) Re eee nee 3

Ohio Rev. Code Ann. § 2953.08

vil

Term

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES EDWARD COOKE,

Petitioner,

STATE OF DELAWARE

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF DELAWARE

Petitioner James E. Cooke respectfully petitions for a writ of certiorari to review the

judgement of the Delaware Supreme Court in this case.

OPINIONS BELOW

The opinion of the Delaware Supreme Court was filed on February 21, 2018 and is

reported as Cooke v. State No. 309, 2017, 2018 WL 1020106, at *1 (Del. Feb. 21, 2018). The

opinion appears at A1-4.

JURISDICTION

The opinion and judgment of the Delaware Supreme Court was filed on February 21,

2018. This petition is filed within 90 days of the Delaware Supreme Court’s decision in

compliance with United States Supreme Court Rule 13. Thus, this Court has jurisdiction

pursuant to 28 U.S.C. § 1257(a).

1s)

CONSTITUTIONAL PROVISIONS INVOLVED

This case concerns the Eighth Amendment to the United States Constitution, which

provides in relevant part:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted

U.S. CONST. amend. VIII.

and Section 1 of the Fourteenth Amendment to the United States Constitution, which

provides in relevant part:

nor shall any State deprive any person of life, liberty, or property, without due process of

law... .

U.S. CONST. amend. XIV.

STATEMENT OF THE CASE

Mr. Cooke is serving a mandatory life sentence without the possibility of parole. That

mandatory sentence was not drafted and passed into law by the legislature. Instead, the

Delaware Supreme Court created this mandatory sentence from the bench via summary opinions.

Mr. Cooke, though, was originally subjected to a capital trial. As a consequence of the

heightened procedures attached to a capital case, Mr. Cooke was tried by an unrepresentative,

inherently prosecution-favoring jury, and ultimately waived his right to counsel.

Mr. Cooke was in fact tried twice. On the first occasion, in March, 2007, his attorneys —

against his wishes — conceded his guilt and pursued a guilty but mentally ill defense. Cooke v.

State, 977 A.2d 803, 812 (Del. 2009). Following his conviction, the Delaware Supreme Court

found that counsel’s concession of their client’s guilt without his consent constituted ineffective

assistance of counsel, reversed the conviction and remanded the case for a new trial. /d. at 850.

Mr. Cooke was re-indicted on April 25, 2011, and re-arraigned on July 29, 2011. He

was tried again beginning on February 20 through May of 2012. However, because the court

held that the evidentiary rulings from the first, vacated, trial were “the law of the case” for the

second trial, that second trial merely re-presented the same evidence from the State and the same

(lack of) evidence from the defense. Compare Cooke, 977 A.2d at 810-12 (describing the facts

of the case) with Cooke v. State, 97 A.3d 513, 518-22 (Del. 2014) (same). Unsurprisingly, the

jury again found Petitioner guilty of Murder in the First Degree. /d. at 523. On September 17,

2012, the Superior Court of Delaware sentenced Petitioner to death once again. Id.

After Petitioner exhausted the appeal of his second death sentence, he timely filed a state

post-conviction motion pursuant to Del. Super. Ct. Crim. R. 61 (hereinafter “Rule 61”). While

that Rule 61 motion was pending, this Court issued its opinion in Hurst v. Florida, 136 S. Ct.

616 (2016). Because Delaware’s death penalty statute — 11 Del. C. § 4209 — mirrored the Florida

statute struck down by Hurst, the Delaware Supreme Court held that Delaware’s capital

sentencing scheme was similarly unconstitutional. Rauf v. State, 145 A.3d 430, 432 (Del. 2016)

(“Delaware’s current death penalty statute violates the Sixth Amendment role of the jury as set

forth in Hurst.”). Critically, the court concluded that, because the jury’s role as explained in §

4209 was so complicated, and so intertwined with the other aspects of the statute, that the

unconstitutional language was “not severable” from the rest of the statute. Rauf, 145 A.3d at

434. The same year, the court held that Rauf had retroactive effect. Powell v. State, 153 A.3d

69, 76 (Del. 2016).

In light of Hurst, Rauf; and Powell, while his Rule 61 post-conviction petition was

pending, Petitioner filed a separate Motion to Vacate his death sentence. A7-22. That Motion

was granted on May 16, 2017. A5. However, over Petitioner’s objection, having vacated the

death sentence the Superior Court simply imposed a sentence of life without parole. A5-6. The

court held that in Powell and all subsequent cases applying Rauf, the Delaware Supreme Court

did indeed sever the unconstitutional language from the statute, leaving behind fragments of a

statute that by default imposed a mandatory life without parole sentence. A5-6, A24-28, A45-47.

On appeal, the Delaware Supreme Court summarily affirmed the new sentence, stating “[w]e

rejected this argument in Norcross v. State. Thus, the argument is without merit.” Cooke v.

State, No. 309, 2017, 2018 WL 1020106, at *1 (Del. Feb. 21, 2018); Al-4.

Crucially, in neither Mr. Cooke’s appeal, nor any of the cases upon which the Superior

Court relied, did the Delaware Supreme Court explain the reasoning why its prior holding, that

the offending part of § 4209 was not severable, was no longer good law. Instead, the court

simply affirmed the lower court’s sentence. As a consequence, Mr. Cooke is now serving a life

without parole sentence that was created and mandated by the Delaware Supreme Court. And,

the court’s mandate was announced not in a long, reasoned, opinion carefully addressing the

nature and effect of Rauf on the legislature’s sentencing statutes, but in a passing remark in an

otherwise summary opinion.

But, because Mr. Cooke was originally tried capitally, he was designated high security by

the Department of Corrections, depriving him of effective communication with counsel, and was

tried before a jury that had been “death qualified”. The lack of effective communication with

counsel ultimately resulted in Mr. Cooke’s decision to proceed pro se, while the death qualifying

process resulted in a jury that was biased in favor of the prosecution.

REASONS FOR GRANTING THE PETITION

A. The Delaware Courts have Created a Mandatory Life Without Parole Sentence,

Exceeding its own Constitutional Role and Violating Mr. Cooke’s Due Process

Rights.

1. Where state law creates a specific legal process, denial of that process

violates due process.

Outside the prescriptions contained within the Bill of Rights, made applicable to the

states by the Fourteenth Amendment, the Constitution does not demand the states employ any

particular procedures in enacting and implementing criminal law. For example, the Constitution

does not require states to afford criminal defendants a right to appeal, does not require

defendants to be sentenced by juries, and does not demand that a prisoner be committed to a

mental health facility in the event he does not possess the mental capacity to understand his

sentence. Nevertheless, this Court has made clear in all such cases that, where state law does

create such process the affected persons possess a property interest in that process, and

deprivation of that interest violates due process. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (when

a state creates a right to direct appeal, denial of the tools to pursue that right violates due

process); Hicks v. Oklahoma, 447 U.S. 343, 345 (1980) (where state law requires jurysentencing, denial of that right violates due process); Ford v. Wainwright, 477 U.S. 399, 428

(1986) (where state law mandates mental health treatment for a prisoner incapable of

comprehending his sentence, failure to provide such treatment violates due process).

Similarly, the Constitution does not require the states to have a tripartite system of

government wherein the legislature creates the law, the executive implements the law and the

judiciary decides the law. Whalen v. United States, 445 U.S. 684, 689 n. 4 (1980); Mayor v.

Educational Equality League, 415 U.S. 605, 615 n. 13 (1974). However, the precepts of due

process surely dictates that, once state law creates such an organization of government it cannot

disregard those separations on a whim. To do so would, generally, violate its citizens’ interest in

a state governed by the rule of law and, more specifically, violate any citizens’ particular

interests subsequently impacted by such breakdown of the law.

Here, for example, Delaware’s constitution clearly separates governmental powers

between its three branches of government. The Delaware Courts possess “The judicial power of

this State...” DE Const. Art. IV, § 1. That power is the power to “interpret the law and apply its

remedies and penalties in particular cases.” Evans v. State, 872 A.2d 539, 548 (Del. 2005). It

does not include the power to create criminal sentences, as that power is reserved solely to the

legislature. DE Const. Art II, § 1; Rice v. Foster, 4 Del. 479, 479 (1847) (explaining that the

General Assembly is prohibited from delegating law-making powers to any body.) With this

separation of powers defining the roles of the respective branches of government, Delaware

citizens know that any law criminalizing their behavior has been passed by a majority of the

legislature, which itself consists of individual representatives duly elected by their constituents.

They know that neither the executive nor the courts can create criminal law without those

procedures in place. Delaware citizens, such as Mr. Cooke, therefore possess a property interest

in the separation of powers created by Delaware law. Evitts, 469 U.S. at 393.

Mr. Cooke was deprived of that property interest when the Delaware Superior Court

manufactured, and the Delaware Supreme Court affirmed, a mandatory life sentence, improperly

extending the courts’ role into that reserved to the Delaware General Assembly. By bypassing

the legislature and manufacturing a mandatory sentence from the bench, the Delaware courts

have deprived Mr. Cooke of his federal due process rights.

2. By creating a mandatory life without parole sentence simply to avoid

the complications caused by Rauf, the Delaware Courts overstepped

their constitutional role and imposed an illegal sentence in violation of

Mr. Cooke’s due process rights.

In Rauf the Delaware Supreme Court correctly held that, “[b]ecause the respective roles

of the judge and jury are so complicated under § 4209, we are unable to discern a method by

which to parse the statute so as to preserve it.” Rauf, 145 A.3d at 434. Concurring and writing

for himself and two colleagues, the Chief Justice explained, “[t]he multiple infirmities in the

Delaware death penalty statute, as a result of the United States Supreme Court's decision in

Hurst, must be addressed by the General Assembly. Jd at 487 (Strine, C.J., concurring).

Tellingly, even the dissent — which disagreed that Hurst invalidated § 4209 — agreed that “11

Del. C. § 4209 is not severable.” Jd. at 507 (Vaughn, J., dissenting).

The reason for the Court’s unanimous conclusion is clear from review of the statute.

Comprising over 3,500 words § 4209 explains in great detail the processes by which the jury

would choose between life and death, how its recommendation would be made to and received

by the judge, and how the judge would decide whether to override or accept that

recommendation. Crucially, the statute clearly mandates that, following conviction for first

degree murder, the Superior Court “shall” conduct a hearing to determine punishment, and that

hearing “shall” be before the same jury that convicted him. 11 Del. C. § 4209(b)(1), (2)'. This

mandatory language permeated the entire statute, directing that the court “shall” permit evidence

of aggravating and mitigating factors, § 4209(c)(1), “shall” permit argument by both sides, §

4209(c)(2), and the court “shall” instruct the jury on the process for determining and considering

aggravating and mitigating factors, § 4209(c)(3).

While “shall,” on some occasions, may impart a less-than mandatory standard, e.g.

Bartley v. Davis, 519 A.2d 662, 667 (Del. 1986), because the Rauf court found the

unconstitutional portions of § 4209 to be unseverable, the court could only have concluded that

“shall” as contained throughout § 4209 imparted mandatory directions upon the courts. That is,

that following a first degree murder conviction, the court must hold a hearing before the

convicting jury, must allow evidence and argument from the parties, must direct the jury to

determine the existence of aggravators and mitigators, the jury must provide a recommendation

to the judge, and the judge must decide whether or not to follow that recommendation. By

finding that the jury’s role was unconstitutional pursuant to Hurst, the court necessarily removed

an integral part of that mandatory process, without which the entire statute would make no sense.

Thus, that integral process could not be severed from that entire mandatory process, and so the

statute must fall as a whole. Rauf, 145 A.3d at 434

The Superior Courts tasked with applying that holding, however, ran into a problem. The

courts were ready to grant motions to vacate death sentences pursuant to Rauf, but faced the

problem of what to do next. Other Delaware statutes made clear that a conviction of first degree

! § 4209(c)(2) applies where the defendant waived his jury right at trial, and requires sentencing

before a jury unless the parties to agree to waive jury sentencing.

murder, unlike every other offense in the Delaware code, necessitated sentencing under § 4209.

11 Del. C. § 636(b)(1). But, the Delaware Supreme Court had found § 4209 to be

unconstitutional. Rauf, ibid.) The courts were therefore caught between two illegal sentence

possibilities. Instead of recognizing that this dilemma required the intervention of the

legislature, the Superior Court instead concluded that the inseverable language of § 4209 was

actually severable, and created and imposed a mandatory life sentence. State v. Swan, 178 A.3d

455, 458 (Del. Super. Ct. 2017).

The Delaware Supreme Court has since affirmed the Superior court’s venture into

legislation without discussion. Norcross v. State, 177 A.3d 1226 (Del. 2018), as corrected (Jan.

11, 2018), as corrected (Jan. 18, 2018) (“The judgment of the Superior Court should be affirmed

on the basis of and for the reasons assigned by the Superior Court in its Memorandum Opinion

dated February 10, 2017 rejecting the same contentions made by the appellant's co-defendant,

Ralph Swan.”)

The Supreme Court did not explain why its reasoning in Rauf was no longer accurate, and

has not explained as much in any of the other cases raising this issue. Consequently, when Mr.

Cooke’s case reached the Superior Court, that court simply imposed its self-created mandatory

life sentence, citing its prior practice as support. A5-6. The Delaware Supreme Court simply

affirmed, again without discussion. Cooke, No. 309, 2017, 2018 WL 1020106, at *1 (“Cooke

first argues that this Court declared 11 Dei. C. § 4209 unconstitutional in its entirety, and thus the

court should have sentenced him under 11 Del. C. § 4205. We rejected this argument in

Norcross v. State. Thus, the argument is without merit.”). Consequently, Mr. Cooke is now

serving a life without parole sentence that was created and made mandatory not by the Delaware

? All other offenses are sentenced under 11 Del. C § 4205.

General Assembly, but by the Delaware courts in an effort to avoid dealing with the practical

consequences of Hurst and Rauf.

Delaware law mandates that the legislature shall have sole law-making powers, and the

courts’ powers shall be only to interpret those laws. DE Const. Art. II, § 1; DE Const. Art. IV, §

1; Evans, 872 A.2d at 548; Rice, 4 Del. At 479 (explaining that the General Assembly is

prohibited from delegating law-making powers to any body). Criminal defendants, such as Mr.

Cooke, have a property interest in that procedure, whereby the laws used to prosecute and

sentence them are created only by the legislature and not ad hoc by the courts. Evitts, 469 U.S.

at 393. By creating a mandatory life sentence for first degree murder, the Delaware courts have

deprived Mr. Cooke of that interest, thereby violating his Fourteenth Amendment due process

rights. Jd.

B. A Sentence of Life Without Parole that Cannot Undergo Meaningful Review

Violates the Eighth Amendment’s Prohibition Against the Imposition of Cruel

and Unusual Punishment and the Fourteenth Amendment’s Due Process

Guarantee.

1. Life without parole is a grave penalty akin to death.

This Court has already spoken to the gravity of a sentence of life in prison without the

possibility of parole, recognizing that, “life without parole sentences share some characteristics

with death sentences that are shared by no other sentences.” Graham v. Florida, 560 U.S. 48, 69

(2010). After all, “imprisoning an offender until he dies alters the remainder of his life.” Miller

v. Alabama, 567 U.S. 400, 474-75 (2012). A sentence of life without parole “means denial of

hope; it means that good behavior and character improvement are immaterial; it means that

whatever the future might hold in store for the mind and spirit of the convict, he will remain in

prison for the rest of his days.” Graham, 560 U.S. at 60.

Members of this Court have opined that the penological goals for death are effectively

met in cases of adults who spend decades awaiting execution on death row, and that life without

parole is akin to death. For example, in Lackey v. Texas, where the defendant had spent 17 years

on death row, in his memorandum respecting the denial of certiorari Justice Stevens posited that

“after such an extended time, the acceptable state interest in retribution has arguably been

satisfied by the severe punishment already inflicted.” Lackey v. Texas, 514 U.S. 1045, 1045

(1995). Consequently, “the additional deterrent effect from an actual execution now, on the one

hand, compared to 17 years on death row followed by the prisoner’s continued incarceration for

life, on the other, seems minimal.” /d. at 1046.

Justice Breyer expressed a similar sentiment in a dissent from denial of certiorari in

Knight v. Florida, stating that “the longer the delay, the weaker the justification for imposing the

death penalty in terms of punishment’s basic retributive or deterrent purposes.” Knight v.

Florida, 528 U.S. 990, 995 (1999) (Breyer, J., dissenting) (citing Lackey, 514 U.S. at 1046).

Most recently, in her Statement respecting denial of certiorari, Justice Sotomayor noted a

correspondence’ between capital punishment and life sentences” that may require applying the

same procedural safeguards to life without parole sentences as are applied to death sentences.

Campbell v. Ohio, 138 S. Ct. 1059, 1060 (2018).

In short, while “death is different,” it is increasingly recognized that life without parole is

the equivalent of death, and deserves the same level of procedural safeguards.

2. The Delaware courts have created a mandatory life without parole

sentence that avoids meaningful appellate review, in violation of the

Eighth Amendments.

“We are duty, [sic] bound to insure that every safeguard is observed when a defendant’s

life is at stake.” Thompson v. McNeil, 556 U.S. 1114, 1116 (2009) (statement of Stevens, J.)

(quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976)). The most basic of such safeguard is

appellate review. But, by creating a mandatory life without parole sentence, the Delaware courts

have deprived the sentencing court of any discretion over sentence, meaning that the sentence

will never be subject to appellate review.

In Campbell, this Court denied the defendant’s petition for writ of certiorari that

challenged an Ohio statute that deprives life sentences of appellate review. Campbell, 138 S. Ct.

1059. However, Justice Sotomayor, in a concurring opinion, presented her concerns about the

constitutionality of the Ohio court’s appellate procedure. /d. Under the relevant provision of the

Ohio Code, sentences imposed for murder and aggravated murder are “not subject to review.”

Ohio Rev. Code Ann. § 2953.08(D)(3). Such deprivation of appellate review, Justice Sotomayor

opined, potentially violates the Eighth Amendment. Campbell, 138 S. Ct. 1059. By accident,

the Delaware courts have similarly deprived Mr. Cooke of appellate review of his life without

parole sentence.

“Delaware law is well established that appellate review of sentences is extremely limited.

‘Appellate review of a sentence generally ends upon determination that the sentence is within the

statutory limits prescribed by the legislature.’” Mayes v. State, 604 A.2d 839, 842 (Del. 1992)

(citing Ward v. State, 567 A.2d 1296, 1297 (Del. 1989). “In Delaware, a sentencing court has

broad discretion to consider ‘information pertaining to a defendant's personal history and

behavior which is not confined exclusively to conduct for which that defendant was convicted.”

Id. (citation omitted). Thus, Delaware law limits appellate review of sentences to the question of

whether they are within the statutory range, and whether the sentencing court abused its

discretion in considering the broad evidence that can affect sentence. But, by creating a

mandatory life without parole sentence, the Delaware courts have deprived Mr. Cooke of that

appellate review. Thus, by accident the Delaware courts have created a situation whereby a

mandatory life sentence cannot receive meaningful appellate review.

When the Delaware Supreme Court affirmed Mr. Cooke’s life sentence, the Court

effectively created an unreviewable mandatory life without parole sentence that has no

opportunity for meaningful appellate review. Yet, due to the Delaware Court’s circumvention of

the legislative process, Mr. Cooke now faces a mandatory life sentence without any meaningful

appellate review. He will not have the opportunity to appeal the merits of his sentence because

the remnants of § 4209 created by the court mandates life without parole after conviction of firstdegree murder. In creating such a mandatory sentencing, the courts — without legislative

authority — has denied Mr. Cooke “every safeguard” necessary for a sentence akin to death, in

violation of the Eight Amendment. See Thompson, 556 U.S. at 1116.

3. The Delaware courts’ creation of a mandatory life sentence denied

Mr. Cooke of appellate review of his sentence as provided by state

law, in violation of his due process rights.

As detailed above, while there is no constitutional right to appeal, where a state creates

such a right it cannot then interfere with that appeal without violating the appellant’s due process

rights. Evitts, 469 U.S. at 393 (when a state creates a right to direct appeal, denial of the tools to

pursue that right violates due process). Delaware law creates a right to appellate review of a

sentence. Mayes, ibid. By creating a life without parole sentence that is mandatory, however,

the Delaware courts have effectively prevented any appellate review of Mr. Cooke’s sentence.

Thus, by creating a mandatory life sentence, the Delaware courts have denied Mr. Cooke the

meaningful appellate review that Delaware law provides for, violating his due process rights.

Evitts, 469 U.S. at 393.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari to the Delaware Supreme

Court should be granted.