Petition for Writ of Certiorari — Michael T. Washington, Petitioner v. Brian Emig, Warden, et al.

Supreme Court briefJun 7, 2024

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IN THE SUPREME COURT OF THE UNITED STATES

)

Michael T. Washington,

(Petitioner)

)

)

Case#

)

V

)

)

)

Attorney General of the State of

Delaware

(Respondents)

)

)

)

(ENCLOSED)

PETITIONER’S APPENDIX OF THE LOWER COURT DECISIONS

13

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APPENDIX-A

DECISION OF UNITED STATES COURT

OFAPPEALS FOR THE THIRD CIRCUIT

BLD-056

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 23-2756

MICHAEL T. WSAHINGTON,

Appellant

v.

ATTORNEY GENERAL OF DELAWARE; WARDEN JAMES T. VAUGHN

CORRECTIONAL CENTER

(D. Del. No. l:17-cv-00601)

Present: BIBAS, MATEY, and CHUNG, Circuit Judges

Submitted is Appellant’s request for the issuance of a certificate of appealability

under 28 U.S.C. § 2253(c)(1) in the above captioned case.

Respectfully,

Clerk

_______________________________ORDER________________________________

Michael T. Washington seeks to appeal the District Court’s order denying his

habeas petition under 28 U.S.C. § 2254. The District Court determined that Washington’s

claims were inexcusably procedurally defaulted, non-cognizable, or without merit.

Washington needs a certificate of appealability (COA) to proceed. To get one, he must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c).

Insofar as the District Court rejected a particular claim on the merits, Washington would

have to show that the District Court’s disposition is reasonably debatable, or that “the

issues presented are adequate to deserve encouragement to proceed further.” Buck v.

Davis, 580 U.S. 100, 115 (2017). And insofar as the District Court rejected a claim “on

procedural grounds without reaching the prisoner’s underlying constitutional claim, a

COA should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel. 529 U.S. 473, 484 (2000).

Reasonable jurists would not debate any of the District Court’s procedural rulings.

In particular, reasonable jurists would all agree with the District Court that claims of

postconviction-counsel ineffectiveness are not cognizable in federal habeas proceedings.

See 28 U.S.C. § 2254(i). Reasonable jurists also would agree with the District Court’s

4 *v

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-2756

MICHAEL T. WASHINGTON,

Appellant

v.

WARDEN JAMES T. VAUGHN CORRECTIONAL CENTER;

ATTORNEY GENERAL OF DELAWARE

(D. Del. No. l:17-cv-00601)

SUR PETITION FOR REHEARING

Present:

CHAGARES, Chief Judge, and JORDAN, HARDIMAN

SHWARTZ, KRAUSE, RESTREPO,

BIBAS, PORTER, MATEY, PHIPPS,

FREEMAN, and CHUNG, Circuit Judges

The petition for rehearing filed by Appellant in the above-captioned case having been

submitted to the judges who participated in the decision of this Court and to all the other

available circuit judges of the circuit in regular active service, and no judge who concurred

in the decision having asked for rehearing, and a majority of the judges of the circuit in

regular service not having voted for rehearing, the petition for rehearing by the panel and

the Court en banc is DENIED.

By the Court,

s/ Stephanos Bibas

Circuit Judge

Dated: April 25, 2024

JK/cc:Michael T. Washington

All Counsel of Record

v-^i-

t

23-2756

Michael T. Washington

#SBI #442610

James T. Vaughn Correctional Center

1181 Paddock Road

Smyrna, DE 19977

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APPENDIX-B

DECISIONS OF UNITED STATES

DISTRICT COURT FOR THE DISTRICT

OF DELAWARE

r,:*2

BLD-056

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 23-2756

MICHAEL T. WS AHINGTON,

Appellant

v.

ATTORNEY GENERAL OF DELAWARE; WARDEN JAMES T. VAUGHN

CORRECTIONAL CENTER

(D. Del. No. l:17-cv-00601)

Present: BIBAS, MATEY, and CHUNG, Circuit Judges

Submitted is Appellant’s request for the issuance of a certificate of appealability

under 28 U.S.C. § 2253(c)(1) in the above captioned case.

Respectfully,

Clerk

ORDER

Michael T. Washington seeks to appeal the District Court’s order denying his

habeas petition under 28 U.S.C. § 2254. The District Court determined that Washington’s

claims were inexcusably procedurally defaulted, non-cognizable, or without merit.

Washington needs a certificate of appealability (COA) to proceed. To get one, he must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c).

Insofar as the District Court rejected a particular claim on the merits, Washington would

have to show that the District Court’s disposition is reasonably debatable, or that “the

issues presented are adequate to deserve encouragement to proceed further.” Buck v.

Davis, 580 U.S. 100, 115 (2017). And insofar as the District Court rejected a claim “on

procedural grounds without reaching the prisoner’s underlying constitutional claim, a

COA should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel. 529 U.S. 473, 484 (2000).

Reasonable jurists would not debate any of the District Court’s procedural rulings.

In particular, reasonable jurists would all agree with the District Court that claims of

postconviction-counsel ineffectiveness are not cognizable in federal habeas proceedings.

See 28 U.S.C. § 2254(i). Reasonable jurists also would agree with the District Court’s

determinations regarding Washington’s inability to demonstrate prejudice to support his

ineffectiveness claims under Strickland v. Washington, 466 U.S. 688 (1984), for

substantially the reasons given in its September 30, 2022 memorandum opinion and

especially in light of the trial testimony of a percipient witness. Accordingly,

Washington’s COA request is denied. This decision is without prejudice to Washington’s

ability to file in the District Court his apparently desired motion under Federal Rule of

Civil Procedure 60(b). See DC ECF No. 98.

By the Court,

s/Stephanos Bibas

Circuit Judge

Dated: February 7, 2024

JK/cc: Michael T. Washington

All Counsel of Record

or* />

<_o .**•.*

A True Copy:^°

Patricia S. Dodszuweit, Clerk

Certified Order Issued in Lieu of Mandate

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1 of 27

MICHAEL T. WASHINGTON, Petitioner, v. ROBERT

MAY, Warden, and ATTORNEY GENERAL OF THE

STATE OF DELAWARE, Respondents.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF DELAWARE

2022 U.S. Dist. LEXIS 179548

Civil Action No. 17-601-CFC

September 30, 2022, Decided

September 30, 2022, Filed

Corpus Pursuant to 28 U.S.C. 2254 ("Petition"). (D.l.

1; D.l. 69) The State filed an Answer in opposition, to

which Petitioner filed a Reply. (D.l. 77; D.L 80) For

the reasons discussed, the Court will deny the

Petition.

4-

11

I. BACKGROUI^Dif||x

A. Fact^Hilfcry

Editorial Information: Subsequent History

Writ denied by, Request denied by In re Washington,

2023 U.S. App. LEXIS 20979. 2023 WL 5165278 (3d

Cir. Del., Aug. 11, 2023)Reconsideration denied by,

Motion dismissed by, As moot Washington v. May, 2023

U.S. Dist. LEXIS 148991 (D. Dei., Aug. 24, 2023)

Editorial Information: Prior History

Washington v. State, 31 A.3d 77, 2011 Del. LEXIS 556

(Del., Oct. 14, 2011)

It appears from the r%cdrap^|fFrancis and Guy were

found shot to de^^bn September 1, 2008

(hereinafter,4#8^sh^ing") in the front seat of a

bullet-riddegPblacl? Lexu^ (hereinafter "the vehicle")

in the 50d%|p^|^f%Woth Street. The first police

officej\to arlfye at the scene found the vehicle

stopploin themiddIe of traffic, still in gear and

4^ j|i%ged against another car.

if

4;4

D^tlptive'ilohn Ciritella of the Wilmington Police

Departm%pt (hereinafter "Ciritella") was assigned to

4k

investigate the shooting. As the investigation

Counsel

{2022 U.S. Dist. LEXIS 1}Michael T.

x%|pld^,{2022 U.S. Dist. LEXIS 2} Ciritella theorized

Washington,

Petitioner,

Pro

se.

thjftell shooting occurred from inside the vehicle as

For Respondents: Carolyn S. Hake, Deputy Attorney <4

General of the Delaware Department of Justice, Ik

it was leaving the 700 block of E. 10th Street and that

Wilmington, Delaware.

_ m. the vehicle continued moving until it came to a stop

4

in the 500 block.

Judges: Colm F. Connolly, Chief United States Dlttlp*V%;

Judge.

..

Opinion

Opinion by:

%

%

44

#

Colm F. ConrlbJJy #

°pinionV

MEMORANDUM OPINION1

30, 2022

m F. Connolly

CONNOLLY, CHIEF JUDGE:

Petitioner Michael T. Washington has filed a Petition

and an Amended Petition for a Writ of Habeas

Ciritella recovered a significant number of bullets,

bullet fragments and/or shell casings, from the

interior of the vehicle, the 700 block of E. 10th Street,

and the victims' bodies following the medical

examiner's autopsies. Ciritella did not, however,

recover a weapon that was used in the shooting.

At trial, Ciritella testified that initially and for several

months after the shooting, he could not develop a

lead on a suspect. Finally, however, in April 2009,

Ciritella was advised that an inmate in federal

custody, Christopher Waterman, was interested in

disclosing information about the shooting that he

had allegedly heard from another inmate. The other .

inmate turned out to be [Petitioner]. Similarly, in May

2009 and December 2009, Ciritella learned that

inmates William Coleman and Isaiah Fields also

wanted to disclose information that another inmate,

again [Petitioner], purportedly told each of them

about the shooting. Ciritella conducted individual

one-on-one interviews with Waterman,{2022 U.S.

Dist. LEXIS 3} Coleman and Fields. As a result of

those interviews, Ciritella learned that between the

fall of 2008 and the spring of 2009, [Petitioner]

allegedly individually told Waterman, Coleman and

Fields at different times that he was either in the

vehicle during the shooting or that he was the

Page 2 of 27

shooter, and that the weapon involved in the

shooting was a "Mac 10," which Ciritella knew was a

candidate weapon. Ciritella also learned from

Waterman, Coleman and Fields that the shooting

was possibly the result of a botched robbery or a

dispute over a drug deal, and that the gun had

discharged unexpectedly in the vehicle.

that she had "glass all in [her] hair" when she

reached her daughter's house. Gardner further

testified that [Petitioner] came to her home later that

evening "to apologize," but that she refused to

speak to him. On September 28, ||09, [Petitioner]

was charged with two counts of Murder in the First

Degree, two counts of Possessiollof a Firearm

During the Commission of a Fti'^if^^one count of

Ciritella learned additional information from

Coleman about [Petitioner's] possible involvement in

the shooting, namely that [Petitioner] was worried

that a resident of the 700 block of E. 10th Street,

April Gardner, had witnessed the shooting.

Moreover, Fields told Ciritella that he was with

[Petitioner] in June or July 2008 at 930 Spruce

Street, a drug hangout, when the "Mac 10"

[Petitioner] was holding suddenly went off and

sprayed gunfire.

Possession of a Firearm fef ^PersonProhibited.

[Petitioner] went to tr|fl ormbose charges on

octot>i^6jPiPr

X

At trial, the State's$^|i1Mics ef#ert, Delaware State

Police Firearms Exlmj^^lrl Rone (hereinafter

"Rone"), opigj^thjMe strafing of the vehicle's

interior v^eI w|| resB^of a semi-automatic or

automat^wea^^charging more than thirty

rounds insicregfre vehicle from the area of the right

rear f^fcgngtal^eat. Rone further opined that the

si#n §«lf

thirtV sPent

^ngs he

wlf£h w®r.e rec°verecJ{2022U'S‘ Dlst

.Ve n'C

! V ^ b°d'eS’ 3"d

gSOfpru^Street, all came from the same semi.automatic or automatic weapon,

As a result of his interview with Fields, Ciritella

obtained a search warrant for 930 Spruce Street and

in the ensuing search found a number{2022 U.S.

Dist. LEXIS 4} of bullet holes in the floor and walls

from which he recovered three bullets. From his

%

interview with Coleman, Ciritella was able to locate

Gardner at her 729 E. 10th Street home. Gardner told

v^pe|tfoner] testified at trial that he visited "Miss

Ciritella that she witnessed the events leading to the ^

Ajffil" later in the evening on September 1, 2008,

shooting on September 1, 2008 from the front step^

because he was sorry to hear that Leighton and

of her home.

Francis had been shot in front of her house, and that

^

xshe had witnessed the shooting. [Petitioner] also

At trial, Gardner testified that, prior to the shoo^^^^,

testified that, a few days prior to the shooting, he

had a conversation with Leighton and Guy, while in

she was outside sitting on her front steps ^tching ^

the vehicle, about a gun his cousin wanted to sell.

her grandson ride his bicycle when she <i|sefl|^%v

According to [Petitioner], the gun he was helping his

[Petitioner] and another male-later identifiec%|jl;uycousin sell "hold[s] 30 rounds" and was "the same

walking down 10th Street. Gardner told the ju^that

gun that went off in the house [on] 930 Spruce

she knew [Petitioner] because he<^|pl grown ^ in

Street"

[Petitioner] denied any involvement in the

the neighborhood and had gone to sH|ool w$fi her

shooting,

however, and he testified that at the time

children

v

of the shooting he was "cooking up some drugs" at

930 Spruce Street .Washington v. State, 31 A.3d 77

(Table), 2011 Del. LEXIS 556, 2011 WL 4908250, at *12 (Del. October 14, 2011).

sitting in the driver's^^gatOm^vehicle that was

parked directly in front of%M hol'se. According to

B. Procedural History

Gardner, after the tfer^gjnen^nversed briefly, Guy

got into the right frdMfl|fi^ger seat of the vehicle

and [PetitionprJ gotloj.% the right rear passenger

On September 28, 2009, a New Castle County grand

eat.

jury charged Petitioner by indictment with two

counts of first degree murder, two counts of attempt

first degree rohhery, two counts of possession of a

Gardnen^l^g^at 'moments after the two men

firearm during the commission of a felony

entered the^^jclI^Hie vehicle's windows "erupted."

("PFDCF"),

and one count of possession of a firearm

Shocked by%l|e explosion, Gardner said, she

by a person prohibited ("PFBPP").{2022 U.S. Dist.

immediately{2022 U.S. Dist. LEXIS 5} "grabbed [her]

LEXIS 7} (D.l. 76-1 at Entry No. 1;1 D.l. 47-3 at 1-4) On

grandson" and ran to her daughter's house around

November 11, 2010, a Delaware Superior Court jury

the corner on Bennett Street where she remained for

found Petitioner guilty of two counts of the lesserseveral hours before returning home. Gardner

included offense of manslaughter and two counts of

testified that as she ran from the scene, she could

PFDCF. (D.l. 76-1 at Entry No. 41) The jury found

feel shards of glass getting caught in her hair, and

Petitioner not guilty of the attempted robbery

Grs?oXa«

* *;

•j j-

Page B of 27

charges. (Id.) On February 11, 2011, the Superior

Court sentenced Petitioner to an aggregate of

eighty-six years of imprisonment at Level V,

suspended after sixty-six years for decreasing levels

of supervision. (DA. 76-1 at Entry No. 48) The

Delaware Supreme Court affirmed Petitioner's

conviction on direct appeal. See Washington, 31

A.3d 77, 2011 WL 4908250, at *4.

486, 2016 WL 5407852 (Del. Super. Ct. Sept. 27,

2016). The Superior Court adopted that Report and

Recommendation on October 19 2016, denied

Petitioner's Rule 61 motion, and granted post­

conviction counsel's motion to withdraw. See Safe v.

Washington, 2016 Del. Super. LEx|s 524, 2016 WL

6248462 (Del. Super. Ct. OctJJL 2||6), corrected

Oct. 21, 2016. The Delaware Slpflli^purt .affirmed

that decision on April 28, 28M. See wishington v.

State, 164 A.3d 56 (Table#017|Del. LEXIS 182, 2017

WL 1573119 (#eL Aj#fi§pf017).

In March 2012, Petitioner filed a pro se motion for

postconviction relief pursuant to Delaware Superior

Court Criminal Rule 61 motion (interchangeably

referred to as "Rule 61 motion" or "first Rule 61

Petitioner filed his W^SaiPefition for habeas relief

motion”). (D.l. 76-3) He filed an amended Rule 61

on May 24, 2017. (D.fly) JilNl^>urt ordered the State

motion on August 8, 2012 (also interchangeably

to answer the l|g|itiorm| November 7, 2017. (D.l. 16)

referred to as "Rule 61 motion" or "first Rule 61

On Novem||t'r 2|| 201m Petitioner moved to stay

these proc|§ding§^^|jlsting, without elaboration,

motion"). (D.l. 47-1 at Entry No. 77) Defense counsel

filed Rule 61 affidavits in response to Petitioner's

permission^yjlfrsue a claim of "actual innocence"

in |]?«^tateljourts in order to exhaust state

Rule 61 motion. (D.l. 47-1 at Entry Nos. 81, 82) The

State filed a response to the Rule 61 motion on

remedies, Ip^slmg to compel the State to release

evid§ite|yit ou^>f court Jencks Act statements. (D.l.

October 31, 2012. (D.l. 47-22) The Superior Court

'M8)xili|Nq|fernber 30, 2017, Petitioner moved

appointed post-conviction counsel to represent

to am^d^^upplement his motion to stay. (D.l. 21)

Petitioner during his Rule 61{2022 U.S. Dist. LEXIS

On Jal||ary 9, 2018-before the State's answer to

8} proceeding. (D.l. 76-1 at Entry Nos. 99-101,139,

140) Thereafter, the Superior Court sequentially

Petitioner's habeas{2022 U.S. Dist. LEXIS

J} Pefftion was due-Petitioner filed another motion

appointed three substitute postconviction counsel.

ti>%|tiend or supplement his Petition (D.l. 26), and

(D.l. 76-1 at Entry Nos. 110,112,115,120) On July 17,^

2015, Petitioner's last appointed post-conviction

the Court ordered Respondents to respond to

counsel concluded that there were no meritorious^

Petitioner's motion to stay the proceedings rather

issues he could advocate on Petitioner's behalf

than answer the habeas Petition. (D.l. 27) On

filed a motion to withdraw as counsel. (D.l. 7%lat'%^ Xv January 11, 2018, the State responded to Petitioner's

Entry No 125) Petitioner responded to the moti^^^^

motion to stay, and Petitioner filed a habeas corpus

withdraw, and the Superior Court ordered^spst^

"brief.” (Di. 28; D.l. 29)

conviction counsel to file an affidavit outK^^^work he had performed. (D.l. 76-1 at Entry fl|sj^27,

On January 29, 2018, the Court denied Petitioner's

129) Post-conviction counsel filed his letter «l|^avit

motions

to stay, to compel, to appoint counsel, and

on November 15, 2015. (D.l. 76-1 a^itry

No.Jll6)

a^ntry h

for an evidentiary hearing, and granted Petitioner's

motion to amend or supplement his Petition. (D.l. 31;

\ftension

stitioner requested, and was<|ranted, airllf

Petitioner requested

D.l. 32) On February 21, 2018, Petitioner

of time to file an amended prcrt^Rule

Rule 61

61 motion

motion

supplemented his habeas Petition. (D.l. 34) On

after consulting with a priyat

March 20, 2018, Petitioner filed a motion for

reconsideration of the Courts order denying the

amendments

his Rito ration in March 2016,

~..........to

.............................................................

motion to stay. (D.l. 36) On October 22, 2018, the

which consisted of thi^syrieW"claims (also

Court denied Petitioner's motion for reconsideration

interchangeably r^||ecl to a^'Rule 61 motion" or

and ordered the State to respond to Petitioner's

"first Rule 61 mot^^^^6-1 at Entry No. 139,

amended Petition. (D.l. 43) On November 13, 2018,

140) Although ^ Sta^^as provided an opportunity

before the State filed its answer to Petitioner's

to respond to'M^tiqnils amendments, (D.l. 47-1 at

habeas Petition, Petitioner filed a motion for an

Entry{2022 U.S.1yp^yE?llS 9} No. 141), it did not file

evidentiary hearing and/or to stay due to newly

a response.

discovered evidence. (D.l. 46) The State filed an

Answer on January 7, 2019. (D.l.{2022 U.S. Dist.

LEXIS

11} 47*50) Petitioner filed a Reply on January

On Septefnljer 27, 2016, a Superior Court

18, 2019. (D.l. 52)

Commissioner issued a report recommending that

Petitioner's Rule 61 motion-consisting of the original

March 2012 Rule 61 motion and Petitioner's March

On April 30, 2019, Petitioner again moved to stay

2016 amendments-be denied and that post­

these federal proceedings in order to "argue .'..

conviction counsel's motion to withdraw be granted.

newly discovered evidence [i.e., challenges to the

See State v. Washington, 2016 Del. Super. LEXIS

reliability and credibility of the State's expert

Nr',h3^«terr£ 76-1

\ 1*

. £

Page 4 of 27

ballistic witness, recantations by one of the State's

witnesses, and newly presented witness statements]

in the Superior Court in order to properly exhaust

his remedies and avoid any procedural]] issue[s]...

in this district court." ( D.l. 57) On July 8, 2019, the

Court ordered the State to respond to Petitioner's

motions for an evidentiary hearing and to stay. (D.l.

59) Although the State opposed Petitioner's Motions,

it "respectfully requested" that, if the Court did not

outright deny the motions, "the case [should] be

stayed for [Petitioner] to exhaust his 'newly

discovered' evidence claims in the state courts."

(D.l. 60 at 18) Subsequently, on August 21, 2019, the

Court denied Petitioner's motion for an evidentiary

hearing, but granted Petitioner's motion to stay the

matter for Petitioner to exhaust his "newly

discovered evidence" claims in the state courts. (D.l.

64)

to Superior Court Criminal Rule 57(d). (D.l. 76-12, 7613) On May 24, 2022, the Superior Court deemed

Petitioner's motion to set aside judgment as a third

Rule 61 motion, summarily dismissed the motion as

procedurally barred, and held t||at Petitioner's

motion to amend and supplemenflyas moot. See

State v. Washington, 2022 Dei. Suffer. LEXIS 221,

2022 WL 1656008, at *2-3 (D§?lS^%£t. May 24,

2022). The Delaware Supj^p. Court afhrmed the

Superior Court's decisioqlon September 6, 2022. See

Washington v. Del., 28l|A.3|IfWi$22 Del. LEXIS

270, 2022 WL 4088664,ll|§[(Del. Sept. 6, 2022).

Before he filed h%thj|^fefe 61 motion in the

Superior Cou^Ma'^22, Petitioner notified this

Court on A||fi1 lt| 202^that he had competed his

state pos#onv4|ttl#oceedings, and moved to

amend, expa^d^nd supplement his habeas petition

to inclu^p nt%«laims [that he]... exhausted] ... in

thjfstafej.gouftls] (Dl. 66); Petitioner filed an

On August 30, 2019, Petitioner filed his second {2022

ametMiiab^ls petition on April 28, 2022 (Dl. 69).

U.S. Dist. LEXIS 12}pro se Rule 61 motion and a

;^n nflv:;23|li022, the Court lifted the stay and

motion for appointment of counsel in the Superior

ord^^ythl^tate to respond to the amended habeas

Court. (D.l. 76-8 at 157-160,161-164) On September

P<f!%n. (D.l.{2022 U.S. Dist. LEXIS 14} 71)

9, 2019, the Superior Court directed the appointment

of counsel to represent Petitioner. (D.l. 76-8 at 165N

Subsequently, on June 7, 2022, Petitioner

&j3ple|tented his amended habeas Petition. (D.l. 72)

167) On April 28, 2020, Petitioner filed a counseled

B||ifune 29, 2022, the Court granted the State's

amended second Rule 61 motion, claiming that three 4.

%

pieces of "new evidence" establish Petitioner's

motion for an extension of time to respond until

"actual innocence," warranting a new trial: (1) State.*,,. %

Ik August 12, 2022. (D.l. 75) The State filed its Answer

witness Christopher Waterman recanted his

on August 12, 2022 (D.l. 77), and Petitioner filed his

testimony; (2) State witness Isaiah Fields waMjie %

Reply on August 30, 2022. (D.l. 80)

beneficiary of an undisclosed tacit sentence^%%||jk

reduction agreement, resulting in a Brady^y.

II. GOVERNING LEGAL PRINCIPLES

Maryland, 373 U.S. 83. 83 S. Ct. 1194, IoIb^

215 (1963) violation; and (3) the State's e%|ft

ballistics witness Carl Rone misled the jurf|jy

A. The Antiterrorism and Effective Death Penalty Act

misrepresenting his credentials, anikjsed unr|lable

of 1996

and subjective methods of identificatlbdD.lJ^6-9 at

6-67) The Superior Court denied Petitionw^claims,

Congress enacted the Antiterrorism and Effective

finding that his second Rilbg§1 motion was

Death Penalty Act of 1996 (AEDPA) "to reduce

procedurally barred under Rule 6^}(1) and (2) as

delays in the execution of state and federal criminal

untimely and successive;^^W^^pns regarding

sentences ... and to further the principles of comity,

Fields and Rone were.Mso%^|cedurally defaulted

finality, and federalism." Woodford v. Garceau, 538

iri%hafN|§itioner failed to

under Rule 61 (i)(3), arM|§

U.S. 202. 206,123 S. Ct. 1398,155 L. Ed. 2d

establish a strong

__ jnferencce%Tactual

actual innocence to

363

(2003).

Pursuant to AEDPA, a federal court may

overcome the bari^SdmStatev. Washington, 2021

consider

a

habeas petition filed by a state prisoner

Del. Super. LEXIS 65%2|Jfm 5232259, at *6-9 (Del.

only

"on

the

ground that he is in custody in violation

Super. Ct. No^L20£M'Petitioner appealed and, on

of the Constitution or laws or treaties of the United

April 7, 2022, tftjpbja\%e Supreme{2022 U.S. Dist.

States." 28 U.S.C. 2254(a). Additionally, AEDPA

LEXIS 13} Court a^irm^d the Superior Court's denial

imposes procedural requirements and standards for

of his

motion. See Washington v.

analyzing the merits of a habeas petition in order to

State, 275 Mfd 1258 (Table), 2022 Del. LEXIS 114,

"prevent federal habeas 'retrials' and to ensure that

2022 WL 1041267 (Del. Apr. 7, 2022). On May 20,

state-court convictions are given effect to the extent

2022, Petitioner fifed a motion to set aside judgment

possible under law." Bell v. Cone, 535 U.S. 685. 693,

under Delaware Superior Court Civil Rules 60(b)(1),

122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).

(3), and (6) and 55(c), asking the Superior Court to

set aside its "default" judgment denying him

B. Exhaustion and Procedural Default

postconviction relief and grant him a new trial, and a

motion to amend supplement to include a reference

Page 5 of 27

Absent exceptional circumstances, a federal court

cannot grant habeas relief unless the{2022 U.S. Dist.

LEXIS 15} 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

119 S. Ct: 1728, !44_L_Ed1_2d_1 (1999); Picard v

Connor, 404 U.S. 270. 275, 92 S. Ct. 509, 30 L. Ed. 2d

438 (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). This exhaustion

requirement, based on principles of comity, gives

"state courts one full opportunity to resolve any

constitutional issues by invoking one complete

round of the State s established appellate review

process. O'Sullivan, 526 U.S. at 844-45; see Werts v d%

Vaughn, 228 F.3d 178.192 (3d Cir. 2000).

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 ^exhausted but

procedurally defaulted. See Coleman, 501 U S at

750; Harris v. Reed, 489 U.S. 255. 260-64. 109 s! Ct

1038, 103 L. Ed. 2dx30#mS9L

Federal courts may #1 cojW|he merits of

procedurally defaulted

unless the petitioner

demonstrates either cause f|y:he procedural default

court does noUeviewM claims. See McCandless v.

Vaughn, 172#.3dJ255.1S0 (3d Cir. 1999); Coleman,

501 U'S4i 7®demonstrate cause for a

procedurdl^^ault, a petitioner must show that

"somej^jsptive^actor external to the defense{2022

U.S^ist^f^ST^} impeded counsel's efforts to

conWLpith th| State's procedural rule." Murray v

C%g«Zm4Z8, 488, 106 S. Ct. 2639, 91 L. Ed.

—; . |J1S - ^ To demonstrate actual prejudice, a

petition^nust show that the errors during his trial

^created ipore than a possibility of prejudice; he must

^mshciv that the errors worked to his actual and

su^tantial disadvantage, infecting his entire trial

with error of constitutional dimensions." Id. at 494.

reisers Lhr1£Afr ss

447, 451 n 3 125 S Ct 847 160 1

fh oh

1056,103 L. Ed. 2d 3807lM<» K.h:

the issue on direct appeal inVe correctScedural

manner, the claim is exhausiedSdthe pSneT

miscarriage of justice. See Edwards v. Carpenter,

SmUL™, 451, 120 S. Ct. 1587,146 L. Ed. 2d

^.(Si

^ *?'’*’ W ™

224 (3d

° r°01)miscarnage of Justice exception

MSeS'

aC'Ual

d0esareS„iSnf„a^»o,n,0r,a'SC,he

proceed, Sea

41

If a petitioner preset jliexl^usted.habeas claims

to a federal ce|M^an<Murther state court review of

those claims isl|ar^|d d||e to state procedural rules,

the federa|court^iiT%c'cuse the failure to exhaust

and treaf||gp^rg|Nas exhausted. See Coleman v.

T/iompsofiM01ofs. 722. 732, 750-51, 111 S Ct

2546,115 L. Ed^d 640 f1991) (such claims "meetn

the technical requirements for exhaustion" because

state remedies are no longer available); see also

Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S. Ct. 2378

165 L. Ed. 2d 368 (2006). Such claims, however, are

procedurally defaulted. See Coleman, 501 U.S. at

749; Lines v. Larkins, 208 F.3d 153.160 (3d Cir.

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).

C. Standard of Review

If a state's highest court adjudicated a federal{2022

U.S. Dist. LEXIS 18} habeas claim on the merits, the

federal court must review the claim under the

deferential standard contained in 28 U.S.C. 2254td).

Page 6 of 27

Pursuant to 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. 2254(d)(1) & (2);

see also Williams v. Taylor, 529 U.S. 362. 412, 120 S.

Ct. 1495,146 L. Ed. 2d 389 (2000); Appel v. Horn, 250

F.3d 203. 210 (3d Cir. 2001). A claim has been

"adjudicated on the merits" for the purposes of

2254(d) if the state court decision finally resolves the

claim on the basis of its substance, rather than on a

procedural or some other ground. See Thomas v.

Horn, 570 F.3d 105.115 (3d Cir. 2009). The

deferential standard of 2254(d) applies even "when a

state court's order is unaccompanied by an opinion

explaining the reasons relief has been denied."

Harrington v. Richter, 562 U.S. 86, 98,131 S. Ct. 770,

178 L. Ed. 2d 624 (2011). As the Court explained in

Harrington, "it may be presumed that the state court

adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to

the contrary." Id. at 99.

.-.J

defense counsel provided ineffective assistance by

not objecting to the misconduct (D.l. 1 at 12);{2022

U.S. Dist. LEXIS 20} (6) the State engaged in

prosecutorial misconduct relating to a ballistics

argument (D.l. 1 at 14; D.l. 29 at 1||; (7) (a) the trial

court abused its discretion by dismissing the State's

ballistics expert witness, Carl Rone, before

Petitioner had the opportunityT<f^l^|he vehicle

involved in the incident ap^^oss-exaltiine Rone;

and (b) defense council ppvided ineffective

assistance by failing tof||»k |p®^uestions while

cross-examining Ronll||||. at 16); (8) defense

counsel provided in^Jective^fistance by failing to

have DNA evidenc^esl^^^j. 1 at 18; D.l. 29 at 35);

(9) defense counsel fielded ineffective assistance

by failing to ^!%gt tfi^lleged misrepresentations

about Watf|^an||;fedet@l plea agreement (D.l. 1 at

20); (10) (l|^e|lnllt%Bunsel provided ineffective

assj|;|anci|||y failing to object to the State's

allegSdiy|false%atements of witness testimony

dsff^ngjlill|ig; (b) defense counsel provided

ineffective assistance by failing to object to the

^^pte’^^^uching" and assertion of personal

ben^opinion during closing; and (c) defense

^

counsefTailed to perform an adversarial test that

'%could plove Petitioner's innocence (D.l. 1 at 22; D.l.

Finally, when reviewing a habeas claim, a federal

«•20' 3,1M202?

“st LEXIS 21} (11)

court must presume that the state court's

^e,fe sf counsel provided ineffective assistance by

determinations of factual Issues are correct. J*.. % ,a""3 °'e^" th\S,ale s ballistics expert witness

"f*

See 2254(e)(1). This presumption{2022 U.S. Disllj'«!»S\ <«*

x

asked

after

the

jury

viewed

the

vehicle

involved

in

LEXIS 19} of correctness applies to both expli^and||

the shooting (D.l. 1 at 24); (12) defense counsel

implicit findings of fact, and is only rebutted by cri%;%J^

provided ineffective assistance by: (a) failing to

and convincing evidence to the contpm,„

^

perform

an adversarial test that could have proven

See 2254(e)(1); Campbell v. Vaughn. 209%3f%l^

Petitioner

innocent; (b) discredit a witness'

286 (3d Cir. 2000); Miller-El v. Cockrell, 537 dS#^22?'

testimony regarding a prior bad act; and (c) failing to

341,123 S. Ct. 1029,154 L. Ed. 2d 931 (2003) (Ijating

object to Detective Ciritella testifying as an expert

that the clear and convincing standard in 2254(d)(1)

(D.l. 1 at 26; D.l. 29 at 18, 20, 22); (13) defense

applies to factual issues, whereas th^mrea^pnable

counsel

provided ineffective assistance by failing to

application standard of 2254(d)(2) appliel|t|Ptactual

object

or

move to suppress evidence, which was

decisions)!^^

^

allegedly unsupported by facts and not testified to

by the State's expert witness (D.l. 1 at 28; D.l. 29 at

III. DISCUS

22, 28); (14) (a) defense counsel was ineffective for

failing to disclose to [Petitioner] an alleged conflict

of interest and that he had a fatal illness; and (b) the

Petitioner asserts the followl^twenty-three Claims

trial court failed to investigate the alleged conflict of

in his timely-filed ^^pl^m|1)^afefense counsel was

interest

(D.l. 1 at 30; al. 29 at 32); (15) postconviction

ineffective by failing^ n|%virtb suppress the out-ofcounsel

was ineffective for failing to raise

court stateme#|x>f t^?State witnesses (D.l. 1 at 5;

Petitioner's

claims,

failing to investigate beyond the

D.l. 29 at 1^H;H|the State engaged in

trial

record

and

"recover

imperative{2022 U.S. Dist.

prosecutorial mil^pnl^ict by manipulating facts and

LEXIS

22}

evidence

outside

of the trial transcripts"

misliftfeg^^yury as to the conditions of

in order to show Petitioner's innocence, failing to

ChristopherY^lermin's federal plea agreement (D.l.

provide Petitioner with an investigator to help prove

1 at 7); (3) flfl^State engaged in prosecutorial

his innocence, failing to properly advise Petitioner

misconduct by manipulating evidence and vouching

about the standard for postconviction relief and

for state witnesses (D.l. 1 at 8; D.l. 29 at 12,14, 31);

inform Petitioner that his prosecutorial misconduct

(4) the trial court committed plain error by permitting

claims were procedurally barred and should be

Detective Ciritella to testify as an expert (D.l. 1 at 10;

raised as ineffective assistance of trial counsel

D.l.29 at 24, 25); (5) (a) the State engaged in

claims instead, and moving to withdraw from the

prosecutorial misconduct during summation; and (b)

case rather than helping to prove that trial counsel

Page 7 of 27

was ineffective (D.l. 1 at 32; D.l. 29 at 10, 25; D.l. 34 at

2052, 80 L. Ed. 2d 674 (1984) and its progeny. See

2-9; D.l. 69 at 8,13-14,16); (16) defense counsel was

Wiggins v. Smith, 539 U.S. 510.123 S. Ct. 2527,156

ineffective by failing to adequately cross-examine

L. Ed. 2d 471 (2003). Under the first Strickland prong,

State witness Coleman (DA. 29 at 17); (17) defense

a petitioner must demonstrate that "counsel's

counsel was ineffective by failing to retain an expert

representation fell below an objective standard of

on behalf of the defense to perform trajectory testing

reasonableness," with reasonableness being judged

under professional norms preyaij&g at the time

of the shooting inside the vehicle (D.l. 29 at 35); (18)

defense counsel was ineffective by failing to

counsel rendered assistance:

466 U.S. at

688. Under the second Stri0&<%nd prong^a petitioner

investigate beyond the trial record and subpoena

must demonstrate "therein a reasonable probability

potential witnesses (DA. 34 at 7; D.l. 29 at 12, 17,19,

that, but for counsers4Wrjli¥tlllt would have

21, 30, 34, 36); (19) defense counsel was ineffective

been different." Id. al^^-96. A reasonable

for failing to seek a reduction in sentence (DA. 29 at

36); (20) appellate counsel was ineffective by

probability is a "probability sufficient to undermine

confidence in{Wp^^^ist. LEXIS 25} the

filing{2022 U.S. Dist. LEXIS 23} a motion to withdraw

outcome." Id. at 688.'%gjfurt may choose to address

from Petitioner's direct appeal (DA. 29 at 36); (21) (a)

the prejudice

be^e the deficient performance

the State committed a Brady violation because State

prong, an|Fmawrejectlan ineffectiveness claim

witness Isaiah Fields was the beneficiary of an

solely dMhq^^^Wthat the movant was not

undisclosed tacit sentence reduction agreement, the

prejudiced. S^^fr/c/f/anc/, 466 U.S. at 668. Although

nondisclosure of which Petitioner claims violated

not|f!lub^ounl|bIe, the Strickland standard is

his Sixth and Fourteenth Amendment rights (D.l. 69

J|higlp^ii||iahding and leads to a strong

at 13-16); (b) defense counsel was ineffective "for

.^resldfbtionjlhat counsel's representation was

failing to protect and/or raise" the alleged

'^^^^^ffnally reasonable. See id. at 689. .

Brady violation concerning Fields" on direct appeal

(D.l. 69 at 13-16; D.l. 72 at 2-5); and (c) post­

conviction counsel was ineffective for failing to raise

•^Turning, to the first prong of the 2254(d)(1) inquiry,

the Brady violation in Petitioner's first Rule 61

^%he C^iurt notes that the Delaware Supreme Court

motion (D.l. 69 at 13-16; D.l. 72 at 2-5); (22) (a) trial

^%|fffectly identified the Strickland standard as

counsel was ineffective "for failing to 'adequately'

governing

Petitioner's instant ineffective assistance

cross-examine State's ballistic expert witness 'Cc*rl \

of counsel contentions. As a result, the Delaware

Rone' as to his certifications" and findings about

_

_

„ . . .

.

,

x

bullets and casing; and (b) postconvlctlon counsel

Supreme Courts decision was not contrary to

was ineffective for falling to investigate and te^x\

clearly established federal law.

defense counsel's ineffectiveness with respect to^^

Carl Rone (D.l. 69 at 24, 27-28); and (23) ffc^ner

The Court must also determine if the Delaware

has "new evidence" of his actual innocen^b^^^*"

Supreme Court reasonably applied the

on Waterman's recantation, Fields' allegedly

Strickland standard to the facts of Petitioner's case.

undisclosed "tacit" sentence reduction agreement,

See Harrington, 562 U.S. at 105-06. When performing

and Rone's qualifications and me1ibdology{#§22

this inquiry, the Court must review the Delaware

U.S. Dist. LEXIS 24} (D.l. 69 at 2f^^'

Supreme Court's denial of Petitioner's ineffective

assistance of counsel allegation through a "doubly

deferential" lens. Id. "[T]he question is not whether

A. Exhausted Ineffective Assistlk„e of Counsel

counsel's actions were reasonable, [but rather],

I), Ten (a), and

Claims: Claims One, Five

whether there is any reasonable argument that

E||ver1k,

counsel satisfied Strickland's deferential standard."

Id. When assessing{2022 U.S. Dist. LEXIS

Petitioner presente^^JaimsFive (b), Seven (b),

26} prejudice under Strickland, the question is

Ten (a), and Ele>/^in||il§^ule 61 motion. The

"whether it is reasonably likely the result would have

Superior Courldeni^^e Claims as meritless, and

been different" but for counsel's performance, and

the Delaware S®Mm^ourt affirmed that decision.

the "likelihood of a different result must be

Therefore, Clairb|^^%ive (b), Seven (b), Ten (a),

substantial, not just conceivable." Id. And finally,

and Eleyjp^will oaty warrant relief if the Delaware

when viewing a state court’s determination that a

Supreme C©Mrr^||jision was either contrary to, or

Strickland claim lacks merit through the lens of

an unreasonable application of clearly established

2254(d), federal habeas relief is precluded "so long

^ federal law.

as fairminded jurists could disagree on the

correctness of the state court’s decision." Id.

at 101.

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. 668.104 S. Ct.

1. Claim One

Page 8 of 27

Petitioner contends that defense counsel provided

ineffective assistance by failing to move to suppress

the out-of-court statements of two State witnesses:

Isaiah Fields and William Coleman. (D.l. 1 at 5; D.l. 29

at 15, 28) Both Fields and Coleman provided

statements to Detective Ciritella concerning

Petitioner's role in the shooting of Francis and Guy,

and they also testified during Petitioner's trial. See

Washington, 2016 Del. Super. LEXIS 486, 2016 WL

5407852, at *1, *5. For the following reasons, the

Court concludes that the Delaware Supreme Court

reasonably applied Strickland in denying this

argument.

at trial that were part] of Fields’ or Waterman's

testimony." Id. (emphasis added). The Superior

Court adopted the Commissioner's Report, and

denied Claim One. See Washington, 2016 Del. Super.

LEXIS 524, 2016 WL 62484^2, at *3.

H

The Delaware Supreme Court«f|£li||d the Superior

Court's decision that def^pse courfl^J did not

perform deficiently, anr^f^fcield that Petitioner

failed to satisfy the pr^dic^^of Strickland.

See Washington, 164 A!%f#, 2017 Del. LEXIS 182,

2017 WL 1573119, at *3. Wil^espect to Petitioner's

failure to satisfy

p^ormance prong, the

Delaware Supreme d^e^fiWt that defense counsel

did not have a^sist&tibject or move to suppress

During Petitioner's trial, Isaiah Fields testified that,

Fields'

or Co|ilru||i's te||imony under the Delaware

while in the same prison as Petitioner, Petitioner told

Ru|es

of#vide|§g^l507, because: (1) Fields'

Fields that he unintentionally killed Francis and Guy

with a MAC-10 in a robbery{2022 U.S. Dist. LEXIS

testimony aKout seeing{2022 U.S. Dist. LEXIS

29} Petp3%er vl|ka MAC-10, a candidate weapon in

27} or drug deal that went wrong. (111. 47-3 at 85-88)

the sybtirfJ^Ficmcis and Guy, was highly relevant

Fields also testified that he saw Petitioner

accidentally fire a MAC-10 at 930 Spruce Street a few

prejudicial D.R.E. 403; (2) defense

%xot%^l j|td no basis to object to the prior

months before Francis and Guy were killed.

acci|;^itaf%looting evidence under D.R.E. 404(b);

(Id.) William Coleman testified at trial that, while he

(3) Nilas' testimony was offered for a proper

and Petitioner were in the same prison, Petitioner

%^purpos^-tb show that Petitioner had possessed the

told Coleman that he shot Francis and Guy from the

back seat of a car with a MAC-10 in a robbery that

'^ame type of weapon used in the shooting, rather

thllfjiis general criminal disposition; (4) Petitioner

went wrong, that he disposed of the MAC-10 used in

the shooting, and that April Gardner had witnessed

never identified any prior bad acts in the letters

the shooting. (D.l. 47-3 at 63-67) On cross^ ^ Coleman wrote to the police, which were admitted at

examination, defense counsel used letters that%^^ ^ trial; and (5) the State did not introduce Fields' and

Coleman wrote to the police with this informal?^to^

Coleman's out-of-court statements to the police at

expose inconsistencies between his version

trial pursuant to 3507. See Washington, 164 A.3d 56,

events in the letters and his trial testimorp^as well

2017 Del. LEXIS 182, 2017 WL 1573119, at *3.

as his strongly expressed desire for a

exchange for providing information about^|%

On habeas review, the Court must defer to the

shooting; the letters were admitted into evidence.

Delaware Supreme Court's interpretation and

(D.l. 47-3 at 67-72}^^

> '

application of Delaware's evidentiary rules. See

Scott v. Johnson, 2014 U.S. Dist. LEXIS 137820, 2014

In his first Rule 61 motion, PMjtioner argled that

WL 4955704, at *6 (D. Del. Sept. 30, 2014). Given the

defense counsel provided inene^pe assistance by

Delaware Supreme Court's determination that there

was no meritorious basis upon which to object or

move to suppress the testimony, the Court

under Delaware Rule offejdiW^ 404 and 11 Del. C.

concludes that the Delaware Supreme Court

3507. (D.l. 47-28 at 2, 4; Dl»3 IF7-9) The Superior

reasonably applied Strickland when holding that

Court Commissiot|&3|r;e,eomm^ded{2022 U.S. Dist.

defense counsel did not perform deficiently by

LEXIS 28} that Claii^)^^)i^ild be denied because

failing to file a meritless motion.

defense counsel "w|igmot deficient for failing to

object or mot||^ Suf|jress Fields' or Coleman's

In addition, Petitioner cannot demonstrate a

statement^^%m ^as no basis to do so."

reasonable

probability that the outcome of his{2022

Washingig^O^pmSuper. LEXIS 486, 2016 WL

U.S.

Dist.

LEXIS

30} proceeding would have been

5407852,1^^^^^1 initial matter, "neither Fields'

different

but

for

defense

counsel’s failure to either

nor Coleman^^&itements were introduced pursuant

object

to,

or

move

to

suppress, Fields' and

to 11 Del. C. 35^7. The only testimony the State

Coleman's testimony. As determined by the

offered thr[ough] Fields and Coleman was live, in­

Delaware Supreme Court, "[t]here was significant

court testimony." Washington, 2016 Del. Super.

additional evidence presented at trial about

LEXIS 486, 2016 WL 5407852, at *5 (emphasis

[Petitioner's] role in the shooting, including

added). The Superior Court Commissioner explained

Gardner's eyewitness testimony and Fields,

that defense counsel had "no meritorious basis

Coleman, and Christopher Waterman's trial

upon which to object to [particular statements made

► ..

Page 9 of 27

testimony that [Petitioner] admitted to killing Francis

and Guy." Washington, 164 A.3d 56, 2017 Del. LEXIS

182, 2017 WL 1573119, at *3. Given this record, the

Court concludes that the Delaware Supreme Court

reasonably applied Strickland in holding that

Petitioner did not satisfy the prejudice-prong of

Strickland. Accordingly, the Court will deny Claim

One.

2. Claims Five (b) and Ten (a)

been in the back seat of the car, that person would

have been shot. The evidence presented at trial did

reflect that the interior of the car was riddled with

bullet holes. Even assuming it was not inferable

from Rone's testimony that anotl^r person in the

back seat would have been shot,3^/ashington has

not pled an ineffective assistance ^counsel claim

or a colorable claim of a misctMfp^Justice. The

possible existence of ano|£it|person% the back

seat with the shooter waf^irre!|vant to the defense

presently!

In Claims Five (b) and Ten (a), Petitioner contends

At trial

that defense counsel provided ineffective assistance

by not objecting to the State's alleged misstatement

shooting. He also telped he gave a gun that had

of the evidence during closing arguments at trial

accidental!# aii|har<|gd at 930 Spruce Street to

that: (1) April Gardner testified Petitioner got into the

Gardner'|then||,of^fid,

who was interested in

back passenger side seat of the car moments before

buying

it,

th%#ning

of

the

shooting. During crossthe car windows erupted; and (2) the State's ballistic

exam P^n almclosing arguments, [Petitioner's]

expert, Rone, testified that, if more than one person

counsel s|gg|!sted Gardner's then-boyfriend shot

had been present in the back of the car, that person

F'%#*>y-<2022 U.S. Dist. LEXIS 33} The

would have been shot. The Superior{2022 U.S. Dist.

pG^ibiiityof |hother person with the shooter in the

LEXIS 31), Court denied these Claims after reviewing

^acHjrat of the car has no relevance to

the trial record and finding that the State's

[Petitiori^^] defense that he was not present during

assertions were reasonable extrapolations from the

the shgoting.Washington, 164 A.3d 56, 2017 Del.

evidence, including Gardner's eyewitness testimony

JFLEXIS 182, 2017 WL 1573119, at *5.

that she saw Petitioner enter the back seat of the car

immediately prior to the shooting and the ballistic %

™ SlL? evk!®"ce sh°wing that "anyone seated

In order for a prosecutor's comments to amount to

at side woo d ha

been struck by the bullettl^^k prosecutorial misconduct, the comments must have

Washington, 2016 Del Super. LEXIS 486, 2016 WL\

"so infected the trial with unfairness as to make the

\

5407852, at *7.

resulting conviction a denial of due process."

The Delaware Supreme Court affirmed th

Court's denial of Claims Five (b) and Te)%a|f

explaining:

Gardner testified that she saw a car^lgh ^Cian

sitting in the driver's seat, p^ked in froWof her

house. Gardner saw Washingu^vwho she knew

unLnaonlar„r,”*m^“ro,T,hhee car

while Washington sat o%he $%s of the house next

door to Gardner's house. Tl%unRk>wn man then got

out the car and firaketo W^hington. Gardner

testified that Washir&to'rtJplW||5got in the back seat of

the car and theyjnkrl|wil man got in the passenger

side. A proseW%r m\|: make logical implications

based upon tf^d^geite presented at trial. The

not err in accepting the

Commissid^^^^pclusion that it was reasonably

inferable frorh^22 U.S. Dist. LEXIS 32} Gardner's

testimony and vlw of the car that Washington got

into the back passenger side of the car.

As to Rone's testimony, he testified that the shooter

was seated in the back passenger side seat, but did

not testify that if anyone other than the shooter had

Darden v. Wainwright, 477 U.S. 168.180,106 S. Ct.

2464, 91 L. Ed. 2d 144 (1986). When determining

whether a prosecutor's comments are improper, the

comments must be viewed in the context in which

they were made. See United States v. Young, 470

U.S. 1, 11, 105 S. Ct. 1038. 84 L. Ed. 2d 1 M985L

Moreover, it is well-settled that, during closing

summation, a prosecutor may properly comment on

the evidence and all legitimate inferences which

logically flow therefrom. See Hughes v. State, 437

A.2d 559, 573 (Del.1981). For instance, a "prosecutor

is permitted-indeed expected-to comment on the

evidence that was presented at trial and connect the

dots for the jury by{2022 U.S. Dist. LEXIS

34} explaining what each piece of evidence means

and how it all fits together to prove his or her case."

United States v. Hoffecker, 530 F.3d 137.194 (3d

Cir.2008), superseded on other grounds by

regulation as stated in Rad v. AG United States, 983

F.3d 651. 668 n.13 (3d Cir. 2020).

The record reveals that the State's remarks

concerning Gardner's testimony were supported by

the evidence. As a result, defense counsel had no

reason to object to State's comments that were

based on reasonable inferences from the evidence.

Therefore, the Delaware Supreme Court reasonably

■ 4

Page 10 of 27

applied Strickland when denying Petitioner's

ineffective assistance allegation concerning

Gardner's testimony.

Although the Delaware Supreme Court implicitly

acknowledged that the State's comment about

Rone's testimony constituted a reasonable

extrapolation from the evidence given the number of

the bullet holes in the car's interior, the Delaware

Supreme Court alternatively held that defense

counsel's failure to object did not amount to

ineffective assistance because the presence of

another person in the back seat was irrelevant to

defense theory that Petitioner was not in the car at

the time of the shooting.4 Because the Delaware

Supreme Court's alternate holding provides a

sufficient basis for the Court to conduct its 2254(d)

inquiry, the Court will not address{2022 U.S. Dist.

LEXIS 35} whether the State's comment constituted

a reasonable extrapolation from the evidence.

The record clearly demonstrates that Petitioner's

theory of defense was that he was not in the car

when the shooting occurred. (See D.l. 79-4 at 117)

Given the defense theory that Petitioner was not

involved at all in the shooting, the Delaware

Supreme Court reasonably applied Strickland by ^

holding that Petitioner failed to demonstrate a v

^

reasonable probability that objecting to the

comments about Rone's testimony would have

changed the outcome of his case.

Accordingly, the Court will deny Claims FiV|? (b|||l(%>

Ten (a) for failing to satisfy 2254(d).

V1

¥

o'v¥;

3. Claims Seven (b) and

#

sxXV

"During trial, the jury was escorted down to the

courthouse sally port for a view orl&e actual vehicle

where the victims were fel^p^l^lS^aring the jury

view Washington was ^atee^^arby in a DOC van.

After the jury view, Was^gto^pmplained to the

Judge that he coidd not selMhe'vehicle from the

DOC van where he^^^eense'lted. The Judge then

instructed the .Statj|p^1rtRhe car brought back

over to the coi^hous^o Washington could view it;

which he did."lfmD<i|Super. LEXIS 486 2016 WL

\5%852, at *8.

¥

In Claims Se^Sp (b) and Eleven, Petitioner asserts

that defense c#bnsel was{2022 U.S. Dist. LEXIS

36} ineffective for not asking Rone additional

questions about his findings after Petitioner viewed

the car during trial. In his first Rule 61 motion,

Petitioner stated that

he wanted the following questions asked: (1) "[t]he

vehicle was clean[ed] out and the driver and

passenger seat[s] was move[ed] up and down and

back and forth prior to insertion of the trajectory

rods[,] will that effect the opinio^on where the

shooting may have took plac^," and (2)

"[considering all the impac^gunfe discovered

within the vehicle what is'T^^^^Q on the

possible people that couldpi^p been stated inside

during the shooting."2(||P§ Df|t Super. LEXIS 486,

2016 WL 5407852, at *S%te^!HWri the original).

The Superior Coui|^ippijss1^ner recommended

that Petitioner's ar||jrgjinf%l denied under both

prpip^oT%^ickland, stating:

[Petitionef^|cl||M^fi^because he has not shown

that TriaI CcISfisel's performance was deficient in

ar^^^.^or%^s [Petitioner] shown that the

out^me^tff^trial would have been different had

ttie^^^ecif^questions been asked-by anyone.

^^jjalWo^ftsel is vested with wide latitude in

cona%|injfcross examination and deciding what

question! to ask, or not ask. My review of the trial

transepts reveals that Rone was subjected to a

^^^rj!^hy{2022 U.S. Dist. LEXIS 37} and vigorous

crdls examination. [Petitioner's] first question is

based on the premise that the seats in the car were

moved prior to insertion of the trajectory rods, an

assertion I can find no support for anywhere in the

record. [Petitioner's] second question was actually

answered by Rone. Rone testified that the shooter

was seated in the rear passenger side seat based on

the trajectory of the buWets.Washington, 2016 Del.

Super. LEXIS 486, 2016 WL 5407852, at *9. The

Superior Court subsequently adopted the

Commissioner's Report. See Washington, 2016 Del.

Super. LEXIS 524, 2016 WL 6248462, at *2-3. On

post-conviction appeal, the Delaware Supreme Court

applied Strickland and found that trial counsel did

not perform deficiently and that Petitioner did not

show a reasonable probability of a different outcome

if counsel had asked the questions Petitioner now

raises, noting:

After [Petitioner] viewed the car [during the trial] and

the Superior Court asked him if there was anything

else he needed with respect to the car and his case,

he responded in the negative. [Petitioner's] counsel

had already subjected Rone to extensive cross

examination and did not have any further questions.

[D.l. 47-3 at 175-76]. Washington, 164 A.3d 56, 2017

Del. LEXIS 182, 2017 WL 1573119, at *6.

An attorney's decision regarding the crossexamination of witnesses is strategic in nature and

will not constitute the{2022 U.S. Dist. LEXIS

38} basis for ineffective assistance if the decision

te -

Page 11 of 27

was reasonably made. See Revel v. Pierce, 66 F.

Sudd. 3d 517. 527 (D. Del. 2014). Here, the record

reflects that defense counsel extensively and

vigorously cross-examined Rone and did not have

any further questions. See Washington, 164 A.3d 56,

2017 Del. LEXIS 182, 2017 WL 1573119, at *6. The

Delaware Supreme Court did not unreasonably apply

Strickland, when, as summarized above, it found no

deficient performance or prejudice to Petitioner. See

Strickland, 466 U.S. at 688; Glass v. Sec'y

Pennsylvania Dep't of Corn, 726 F. App'x 930, 933

(3d Cir. 2018) ("[Tjrial counsel cannot be deemed

ineffective for failing to pursue meritless

arguments."); see also Lockhart v. Fretwell, 506 U.S.

364. 382, 113 S. Ct. 838,122 L. Ed. 2d 180 (1993).

The Delaware Supreme Court also reasonably found

that Petitioner could not establish any prejudice

under Strickland. The evidence against Petitioner

was overwhelming,5 and Petitioner failed to show a

reasonable probability that the outcome of his trial

would have been different if the two questions had

been asked.

Based on the foregoing, the Court concludes the

Delaware Supreme Court reasonably applied the

Strickland standard to Claims Seven (b) and Eleven.

Accordingly, the Court will deny these Claims.

B. Procedurally Barred Ineffective Assistanc^pf

Counsel Claims

The record reveals that Petitioner did not imlu^jHrre

following ineffective assistance of counsel Cairns in

his Rule 61 motion or present then\to the Delaware

Supreme Court{2022 U.S. Dist. LeH^S9} onjpSstconviction appeal: Claims Eight, Nin<^^i^^, (c),

Twelve (b), (c), Thirteen, Fourteen (a),Htteen,

Seventeen, Eighteen, Nineteen,Twenty, Twenty-One

(b), and Twenty-Two (a). Bj^u||M|ioner failed to

fairly present these twelv^^^imswthe Delaware

state courts and any^tem^^ raise them now

would be time-barred or tilled ai^successive,6 the

Claims an

eduratify defaulted.

Additionally,4|yjoug|||Petitioner presented Claim

Twelve (a) to tn^p^iv^e Supreme Court on postconvictipn ap^al3^'Delaware Supreme Court

reviewediti^Slami for plain error under Delaware

Supreme C^rt'Rlfe 8 because Petitioner did not

present it to%|e Superior Court in his Rule 61

motion. By explicitly applying the plain error

doctrine to Claim Twelve (a), the Delaware Supreme

Court articulated a "plain statement" under Harris v.

Reed that its decision rested on state law grounds.

See Harris, 489 U.S. at 263-64. In turn, Delaware's

plain error doctrine constitutes an independent and

adequate state procedural rule for procedural default

purposes. See Campbell v. Burris, 515 F.3d 172. 17782 (3d Cir. 2008). Thus, Claim Twelve (a) is

procedurally defaulted.

4

Since Claims Eight, Nine, Ten (b) a^ (c), Twelve (a),

(b), and (c), Thirteen, Fou8i^gi^. Sixteen,

Seventeen, Eighteen, Nineteen, Twenty^'wenty-One

(b),{2022 U.S. Dist. LEXIS|#fl|d Twenty-Two (a) are

procedurally defaulted,jfie C^s^^nnot review the

merits of the Claims ab^^^showing of cause and

prejudice, or a miscarriagi|«f justice. Petitioner

attempts to estab§|f!%fuse for his default under

Martinez v. Ryan, 5%.U.^1?f32 S. Ct. 1309,182 L.

Ed. 2d 272i2012]jbv arguing that his post­

conviction <^fm>^.l prided ineffective assistance

by not rajfing tflesesiClkims in his initial Rule 61

proceeding^|Nwart/nez, the Supreme Court held

that i|f£deqiuN%,^issistance of counsel during an

initiay^viiws

ollateral proceeding may (under

JlWsuJ^:irc||mstances) establish cause for a

<^oeu^>ner^ procedural default of a claim of

inen^fiv^^^istance of trial counsel. See Martinez,

566 U.H^J 12,16-17. Specifically, a petitioner must

•^demons|rate that the post-conviction attorney in his

collateral proceeding was ineffective under the

^%^fckland standard (or that petitioner was not

provided with representation), the underlying

ineffective assistance of counsel claim is substantial

(i.e., has "some merit"), and the petitioner was

prejudiced. See Martinez, 566 U.S. at 14-17. The

Third Circuit has explained the application of

Martinez in habeas cases:

Martinez recognizes a narrow exception to the

doctrine of procedural default: Inadequate

assistance of counsel at initial-review collateral

proceedings may establish{2022 U.S. Dist. LEXIS

41} cause for a prisoner's procedural default of a

claim of ineffective assistance at trial. This

exception is available to a petitioner who can show

that: 1) his procedurally defaulted ineffective

assistance of trial counsel claim has "some merit,"

and that 2) his state-post conviction counsel was

ineffective under the standards of Strickland v.

Washington.Workman v. Sup't Albion SCI, 915 F.3d

928, 937 (3d Cir. 2019). In other words, pursuant to

Workman, a petitioner need only show that the

underlying ineffective assistance of counsel claim is

substantial (i.e., has "some merit") to demonstrate

the prejudice prong of Strickland. See id. at 938-39.

"To demonstrate that his claim has some merit, a

petitioner must 'show that reasonable jurists could

debate whether (or, for that matter, agree that) the

petition should have been resolved in a different

manner or that the issues presented were adequate

to deserve encouragement to proceed further." Id. at

938 (quoting Miller-El v. Cockrell, 537 U.S. 322. 336,

123 S. Ct. 1029,154 L. Ed. 2d 931 (2003)). To

l

■ 4

Page 12 of 27

demonstrate that post-conviction counsel's

ineffectiveness caused the procedural default, a

petitioner must show that post-conviction counsel's

performance was deficient under the first prong of

the Strickland standard, i.e., "that his state post­

conviction counsel's performance fell below an

objective standard of reasonableness." Workman,

915 F.3d at 941. Notably, the{2022 U.S. Dist. LEXIS

42} Martinez-exception for procedural default is

limited to underlying ineffective assistance of trial

counsel claims, and does not apply to underlying

ineffective assistance of appellate counsel claims.

See Davila v. Davis, 137 S. Ct. 2058. 2068,198 L. Ed.

2d 603 (2017) (noting that the equitable concerns of

Martinez do not apply to claims of ineffective

assistance of appellate counsel because state had

made a deliberate choice to move ineffective

assistance of trial counsel claims outside of the

direct appeal process where counsel is not

constitutionally guaranteed, but ineffective

assistance of appellate counsel claims could never

have been raised during the direct

1. Martinez, cause, and post-conviction counsel's

actions with respect to Claims Twelve (b), Thirteen,

Seventeen, Eighteen, and Twenty

%

%

Petitioner has failed to demonstrate that post­

conviction counsel's actions excuse his defau Jt

Claims Twelve (b), Thirteen, Seventeen, Eighteen^^

and Twenty under the limited exception recojfti!^

in Martinez. After post-conviction counsel moved to^lf^

withdraw from representing Petitioner diSl^fsl^

first Rule 61 proceeding, Petitioner rais^t^^"’

raise||to|P^

ineffective

Jfective assistance of trial counsel argurnlljfs

argum^fs set

forth in Claims Twelve (b), Thirteen, Sevent^|i,

Eighteen, and Twenty in the Rulell^notion J?022

U.S. Dist. LEXIS 43} but he subsequenuW^fmtarily

withdrew the Claims from tte^Superioi%!>urt's

consideration. (See D.I.47-2^12); see also

Washington,

2016 uei.

Del. S^ygjJ^86, 2016 WL

vasnmgwn, zuib

5407852,

at *4 (noting

tharfemio

‘*'

'-*■

lohWrequested that

court ignore certain i^ies^^^d in the original

Rule 61 motion). BecauM^Petmbner expressly

withdrew Claims

(b)3|hirteen, Seventeen,

Eighteen, and Tvv^ty |pi^he Superior Court's

consideration^ost^ifWtion counsel's failure to

raise these

c|nnot constitute cause for

Petitioner's defat^%«3@ kellum v. Pierce, 24 F. Supp.

%^%*<D-Del-2014)'

Thirteen, Seventeen, Eighteen, and Twenty. An

allegation of ineffective assistance of post­

conviction counsel can only establish cause for a

default when the underlying claim alleges the

ineffective assistance of trial counsel. See Davila,

137 S. Ct. at 2062%

%

In sum, Martinez does not excuse Petir%ier's default

of Claims Twelve (b), Thii|^en^eventeen, Eighteen,

and

2. Martinez, cause, auLthe "s(%tantiality"{2022 U.S.

Dist. LEXIS 44} of

Nine, Ten (b) & (c),

Twelve (a) & (c), Fof|^en (a), Sixteen, Nineteen,

TweJ#^e (b!||nd Twenty-Two (a)

PetitionetkjJJIb cannot establish cause under

Martine^i^hil%fault of Claims Eight, Nine, Ten (b)

and#:), l*ep) and (c), Fourteen (a), Sixteen,

Twenty-One (b), and Twenty-Two (a)

|fe£aire^fo|fthe reasons set forth below, he has

faile^^o^d^onstrate that the underlying ineffective

asl^fance of trial counsel arguments are

substantial.

%

#

a. Claim Eight

Petitioner's argument that defense counsel provided

N> ineffective assistance by not having the evidence

that was collected from the victims' vehicle tested

for DNA is "not substantial" for the purposes of the

Martinez exception. "Trial management is the

lawyer's province: Counsel provides his or her

assistance by making decisions such as what

arguments to pursue, what evidentiary objections to

raise, and what agreements to conclude regarding

the admission of evidence." McCoy v. Louisiana, 138

S. Ct. 1500.1508, 200 L. Ed. 2d 821 (2018). Witness

selection is one of the "non-fundamental decisions

that counsel is entitled to make at trial." Gov't of the

Virgin Islands v. Weatherwax, 77 F.3d 1425.1434, 33

V.l. 399 (3d Cir. 1996). Notably, effective assistance

does not demand that every possible motion be

filed, but only those having a solid foundation."

United States v. Swinehart, 617 F.2d 336. 341 (3d Cir.

1980). In his responsive{2022 U.S. Dist. LEXIS

45} Rule 61 affidavit to Petitioner's initial pro se Rule

61 motion filed on March 7, 2012,8 defense counsel

explained that

Additionallyfti^e Court notes that Claim Fifteenwhich independently and separately alleges that

post-conviction counsel was ineffective for not

helping to prove Petitioner's actual innocence and

for moving to withdraw from representing Petitioner

during his first Rule 61 proceeding-cannot provide

cause for Petitioner's default of Claims Twelve (b),

[a]n independent defense DNA expert would not

have been able to reasonably be of value to the

defense of the case in light of other evidence and

testimony presented by the State. The State's

pathologist indicated that DNA profiles matching the

decedents, [Petitioner], and unknown third parties

were recovered from the vehicle. Because of the

3 ,*

Page 13 of 27

inherent nature of a vehicle used for personal

purposes, it is not surprising that additional DNA

was recovered from the vehicle. Counsel made the

informed decision that presentation of an

independent DNA expert would merely cumulate the

DNA testimony presented by the State and confuse

the issues for the jury.(D.I. 47-20 at 25-26)

mischaracterization of the evidence regarding the

plea agreement." Washington, 2016 Del. Super.

LEXIS 486, 2016 WL 5407852, at *6. Given these

circumstances, Claim Nine's assertion of ineffective

assistance is not substantial and^annot provide

cause for Petitioner's deti|ult.

c. Claims Ten (b), (c^nd Twe^,(a)

Moreover, Petitioner fails to demonstrate how the

absence of DNA testing of the items collected from

the victims' vehicle resulted in prejudice. The jury

was advised that the parties stipulated that "items

were tested for possible DNA analysis" and "[njone

of the items tested produced a conclusive match to

any particular individual." (D.l. 47-3 at 33,173) The

lack of DNA and fingerprint evidence tying{2022 U.S.

Dist. LEXIS 46} Petitioner to the car supported his

defense that he was not in the car at the time of the

shooting. See Washington, 164 A.3d 56, 2017 Del.

LEXIS 182, 2017 WL 1573119, at *5; (D.l. 47-3 at 173,

296, 304) For these reasons, the Court concludes

that Martinez cannot be used to excuse Petitioner's

default of Claim Eight because the underlying

ineffective assistance counsel argument contained

therein is not substantial.

In Claims Ten (b), (c)^(d

Petitioner

asserts that defense

was ineffective for

failing to: (a) objecMoJhe pro%e cutor's "vouching"

and "personal opinfl^ psp^g^closing] on how many

people [were] seat^^flide the backseat [of the]

vehicle durijsf^fee stmoting," and (b) perform an

"adversarjlf tesMof thelevidence that could have

prove[n] [(|&titij|llPI|fhnocence" and discredited

Fields' testiminy regarding [Petitioner's] "alleged

prior bv|d a|t" oll^poting a weapon. (D.l. 1 at 22, 26;

D^0^#OJ. Dist. LEXIS 48} 29 at 13, 20, 31)

% vfD«^^o defense counsel's failure to object to

____

With

the Stafl^alleged vouching, the evidence presented

^at trial showed that the two victims sat in the front of

^^thjfl'ehicle while the shooter sat in the back

pH||ihger side seat. See Washington, 164 A.3d 56,

b. Claim Nine

«

2017 Dei. LEXIS 182, 2017 WL 1573119, at *5; see

also (D.l. 47-3 at 155). The evidence also showed that

During summation, the State highlighted the "fa<ik^§jk the car's interior was riddled with bullet holes. See

that that Waterman was not given any type^f, %

Washington, 164 A.3d 56, 2017 Del. LEXIS 182, 2017

specific promise or deal for his testimony," butlfit^Jk

WL 1573119, at *5; see also (D.l. 47-3 at 153-55)

acknowledged that Waterman "could ^pjjd a

^

During closing, the State asserted that Rone, the

substantial amount of jail time by cooper^{i(p|P£^.

State's ballistics expert, testified that there could not

that he was required to testify truthfull^^

have been any other individual in the back seat of

Washington, 2016 Del. Super. LEXIS 486, 20mWL

the vehicle when the murder occurred. (D.l. 79-4 at

5407852, at *6. In Claim Nine, Petit^mer contellds

100) Despite his instant complaint regarding defense

that defense counsel provided ineffeCTS^e ass|i»tance

counsel's representation, Petitioner has failed to

by failing to object to the alleged misrep%||jthtation

demonstrate that defense counsel had a factual

by the State concerning Waterman's federal plea

basis for objecting to this statement. During the

agreement.course of the expert's testimony, the State presented

over 22 photographs of bullet holes in the vehicle

k

and asked the ballistics expert to describe to the

The record supports^; Sf%te assertion that

jury

what each photograph depicted and to explain

Waterman's plea agreem|mdilPhot contain any

the

path of the bullets. (D.l. 47-3 at 153-155)

promise or deal fo|&jsJestim%y. (D.l. 47-25 at 2-3)

Additionally, the jury was permitted to view the

Additionally, durih|j cn||§^xamination, defense

vehicle in which the victims were shot and observe

counsel thomughi^^plored Waterman's plea

the bullet holes of that vehicle.{2022 U.S. Dist. LEXIS

agreement, ^^^era^mn, possible sentence, and

49} (D.l. 47-3 at 166) Rone based his opinion-which

motivation forWH||yitlg. (D.l. 47-3 at 50-56) And

was presented to the jury-on the aforementioned

finally^feejn addrelling{2022 U.S. Dist. LEXIS

evidence.

The testimony provided during the trial

17) Potitio^|^i^>^oponding Rule 61 claim that the

demonstrates

that the statement made during the

State engag^diin prosecutorial misconduct by

State's

closing

was

a legitimate argument based on

misrepresentinjfbr mischaracterizing the evidence

the

evidence.

Moreover,

Petitioner's defense at trial

regarding the plea agreement (Claim Two in this

was

that

he

was

not

present

at the shooting.

proceeding), the Superior Court Commissioner held

Therefore,

the

possible

existence

of another person

that Petitioner did not demonstrate prejudice to

in

the

back

seat

with

the

shooter

was irrelevant to

overcome the default of his prosecutorial default,

his

defense.

See

Washington,

164

A.3d 56, 2017 Del.

finding that "[njothing the prosecutor said during

LEXIS

182,

2017

WL

1573119,

at *5.

her summation was in any way a manipulation or

-4

Page 14 of 27

Based on the foregoing, the Court concludes that

Petitioner's instant contention concerning defense

counsel's failure to object to the State's comment

during closing about the number of individuals in

the back seat lacks is not "substantial" under

Martinez.

admitted to killing Francis and Guy. (D.l. 47-3 at 4850, 63-67, 73-76, 85-88) For all of these reasons, the

Court concludes that Claims Ten (b), (c) and Twelve

(a) are not substantial and, therefore, do not excuse

Petitioner's default,^

%

%

d. Claim Twe!$#^i}||

Petitioner's complaint about defense counsel's

.4^%

x

failure to perform an adversarial test of the evidence

ln Claim Twelve (c), Peti|jbneipsserts that defense

that could have proved his innocence and could

counsel was ineffe^^e^^M^bjecting to

have discredited Fields' testimony regarding

Detective Ciritella testifyif^^is an expert about the

Petitioner's alleged prior bad act of shooting a

bullets and bulleM|g||s he^ynd at 930 Spruce

weapon also fails to assert a substantial ineffective

street without pe%ni|^^;scientific trajectory

assistance of counsel claim. Petitioner argues that

test" to determine wlfsjj|| the{2022 U.S. Dist. LEXIS

defense counsel should have performed trajectory

52} shooting^S^)lac^(D.1.1 at 26; D.l 29 at 18, 20

testing to reconstruct the path of the projectiles at

22) Petitioner alsij> arguls that Detective Ciritella's

930 Spruce Street. The trajectory{2022 U.S. Dist.

testimonyis^>roPTf%buched for Fields’ credibility

LEXIS 50} of the shots was not at issue. In addition,

where the gun was shot.

Detective Ciritella testified that he found patched-up

^

bullet holes in 930 Spruce Street's living room wall,

Confl%yii^Pe®ioner's assertion, Detective Ciritella

as Fields indicated he would, and another officer

%diditht testify as a ballistics expert. Rather,

testified that two of the bullets, which were given to

D^fefive%!fitella testified about the evidence he

Rone to test, were found in that wall. (D.l. 47-3 at 95foumi|while executing a search warrant at 930

97,128) While cross-examining Fields, defense

%x Sprucess!reet. (D.l. 47-3 at 95-97) Fields stated that

counsel effectively exposed inconsistencies

with Petitioner a few months before the

between Fields prior version of events and his trial

h<§f^flides and had observed Petitioner with a Mactestimony regarding the accidental shooting at 930 %

16 handgun, which was the candidate murder

Spruce Street. (D.l. 47-3 at 89-91) Moreover, as the^

%

weapon. (D.l. 47-3 at 86-87) Fields told Detective

Superior Court Commissioner recognized, the

Ciritella that, while Petitioner was "playing with [the

that Petitioner had possessed a firearm or that it 4|.

v gun], it went off," and that the police might find

accidentally went off was not, by itself, a "ba<ra#^%

bullet holes in a wall at 930 Spruce Street, which

Washington, 2016 Del. Super. J-EXIS ^6,J||16 WL N4y

would be easily identified by patches. (Id.) Based

5407852, at *5.

upon this information, Detective Ciritella obtained a

search warrant and located patched-up bullet holes

Further, defense counsel was not ineffective

in a wal>in the house, and also in the house's floor

because Petitioner's own testimd%Jtied the^n

and basement wall. (D.l. 47-3 at 95-97) The State's

used at 930 Spruce Street to the gulfesed^ft the

ballistic expert, Rone, testified that three bullets

homicides. Specifically, Petitioner testffil#at trial

collected by Detective Ciritella at the house were

that while present at 930 Sprucl^street, he observed

fired from the same firearm as the murder{2022 U.S.

Fields with this firearm "(ooking%jL ... playing

Dist. LEXIS 53} weapon. (D.l. 47-3 at 151) Because

with it back and forth and fMPfMlrent off in the

Detective Ciritella did not provide expert testimony,

floor into the wall." (D%76-tM90) Petitioner also

defense counsel cannot be faulted by not objecting

testified, "next time I see^f»«^^n was the day of

on that basis,

the shooting{202MLS. DisLXfcEXIS 51} accident."

(D.l. 47-3 at 196) Pet&KS^teastified that on that dateFurther, as discussed above, Petitioner fails to

September 1st-he ga^e.4fie gun to Kareem Bay who

demonstrate that defense counsel was ineffective by

was interes^^bv^ng it. (D.l. 47-3 at 196-97)

not performing trajectory testing to reconstruct the

projectiles' path at 930 Spruce Street, or that the

Finally, th^t^^^^dditional evidence presented

absence of trajectory testing prejudiced him. Any

inconsistencies between Fields' prior version of

at trial Of

guilt forecloses Petitioner's

events and his trial testimony were exposed by

ability to demonstrate a reasonable probability that

defense counsel on cross-examination. (D.l. 47-3 at

the outcome of his trial would have been different

89-91)

but for defense counsel's failure to object and

perform trajectory testing. Gardner provided

eyewitness testimony that she saw Petitioner get

Finally, given the significant other evidence

into the back seat of the car and watched the

presented at trial of Petitioner's guilt-Gardner's

windows explode immediately thereafter. Fields,

eyewitness testimony and the testimony provided by

Coleman, and Waterman testified that Petitioner

Page 15 of 27

Fields, Waterman, and Coleman-Petitioner cannot

show a reasonable probability of a different

outcome. (D.l. 47-3 at 48-50, 63-67, 73-76, 85-88)

Thus, Claim Twelve (c) is not substantial under

Martinez.

e. Claim Fourteen (a)

In Claim Fourteen (a), Petitioner argues that defense

counsel provided ineffective assistance by failing to

investigate and disclose a conflict of interest prior to

trial and by failing to disclose his terminal illness.

(D.l. 1 at 30; D.l. 29 at 32) According to

Petitioner,{2022 U.S. Dist. LEXIS 54} defense

counsel was aware that he had a "deadly disease"

and only had months to live prior to his trial, and

such information was "imperative” for Petitioner a

determination whether defense counsel was

physically, mentally, and emotionally stable to

represent him and that medication could have

impaired defense counsel's judgment. (Id.) Petitioner

also contends that defense counsel was ineffective

for failing to disclose that he had a personal

relationship with the prosecutor and that the

prosecutor used to work for him prior to being an

attorney. (Id.)

These arguments are insubstantial and do

establish cause under Martinez. First, defense

counsel died in 2012,9 years after Petitioner'§|trjal,s%

and his death alone does not support an ineffeat^N^Jk

assistance of counsel claim. See United Mates v.

Lampton, 1995 U.S. Dist. LEXIS 1283. 19^W^^,

33676, at *3 (E.D. La. Jan. 27,1995) ("The fiMlat

defense counsel died some period of monthi||fter

sentencing does not in and of itsel^^ipport a claim

for ineffective assistance of counse&,; Hay0s v.

Bowersox, 2016 U.S. Dist. LEXIS 19531%#f6 WL

659081, at *14 (E.D. Mo. Feb.^%2016) ("A lack of

evidence as to counsel's healthH^rjal c annot give

rise to a claim for ine^M#S^^feta nee of

counsel."); United Stages 'v^tutson, 541 F. App'x

893 (10th Cir. 2013) (agre^ng%||h district court's

conclusion that petitioner ra|sd to show prejudice

from trial coun®'%NTa||ureTo inform him that

he{2022JJ.S. Dist. L%l|P|tuffered.from terminal

brain cancer);^/r/'ngMn v. United States. 2013 U.S.

Dist. LEXIS 70WM)mWL 2155501, at *3 (C.D. III.

May 17, 201 %(ce|?cluding that petitioner's

ineffectiv^M&t§|^«e of counsel claim was without

merit where^etmOTier argued that counsel had a

duty and oblipHion to advise him of his terminal

illness). Second, conclusory allegations of a

"conflict of interest" based upon defense counsel's

friendship with the prosecutor do not support a

claim for ineffective assistance of counsel. See

Boughner v. Johnson, 1996 U.S. Dist. LEXIS 13885.

1996 WL 534867, at *2 (D. Del. Sept. 11,1996); State

v. Wilkerson, 2016 Del. Super. LEXIS 108, 2016 WL

795978, at *8,13 (Del. Super. Ct. Feb. 26, 2016)

(rejecting defendant's claim that defense counsel's

alleged friendship with prosecutor was conflict of

interest). Nothing in the record sho|ys any incapacity

or impropriety of defense counsel. (|stitioner has not

shown how defense counsel's^ed%al condition or

personal relationship with tfiln^llh«tor caused

defense counsel to perfo|p®|ficientl]^or that his

condition or friends^ wi|h the prosecutor

prejudiced Petitioner.s^tee

16 U.S. Dist.

LEXIS 19531. 2016 WL 6£^||, at *14-15; McDougall

v. Rice, 685 F. SupawS.32. 53§M0 (W.D.N.C. 1988);

accord, Young v. Z%£v7lftls-2a 1489.1492-93 (11th

Cir. 1984) (Petition^^^bservation that counsel

ingested druggli^ingT!|al and counsel's admission

of his drug^irob^m in%nother proceeding do not

automati<f§ky

claim of ineffectiveness);

Hernandez vTYi^Jnwright, 634 F. Supp. 241. 245 (S.D.

Fla. 1^8^^petjti^|er's claims that counsel was an

alco^lic^^l|id alcohol on his breath during trial

^wetfe|tbt eJough to constitute a perse Sixth

Ar^^dm^^l>lation; instead,{2022 U.S. Dist. LEXIS

56} petrt|Qner had to show how the condition caused

^

counseFto render deficient legal representation

^^yhich^suited in prejudice). Therefore, Petitioner's

iima^ineffective assistance of counsel allegations

are%isubstantial and cannot excuse his default of

Claim Fourteen.

f. Claim Sixteen

In Claim Sixteen, Petitioner contends that defense

counsel failed to effectively cross-examine State

witness Coleman about Petitioner never personally

admitting to him that April Gardner had witnessed

the shooting. (D.l. 29 at 17) It is well-settled that an

otherwise reasonable decision by counsel not to call

certain witnesses is not ineffective simply because it

differed from the defendant's wishes. See, e.g., 1

Diggs v. Owens, 833 F.2d 439. 445^16 (3d Cir.1987).

Here, Petitioner fails to allege facts showing that trial

counsel's actions were deficient. The record shows

that Coleman testified at trial that Petitioner

personally told him that: (a) he shot the victims from

the back seat of a car with a MAC-10 during a

robbery; (b) he had disposed of the MAC-10 used in

the shooting; and (c) April Gardner had witnessed

the shooting. (See D.l. 47-3 at 63-67) Defense{2022

U.S. Dist. LEXIS 57} counsel conducted a thorough

and vigorouc crocc examination of Coleman and

used the letters Coleman wrote to the police to

expose inconsistencies between the version of

events in his letters and his trial testimony, as well

as eliciting Coleman's desire for a deal in exchange

for providing information about the shooting.

(See D.l. 47-3 at 67-73)

»

Page 16 of 27

Petitioner also cannot demonstrate a reasonable

probability that the outcome of his case would have

been different but for defense counsel's failure to

cross-examine Coleman in the manner Petitioner

wished he had. Once again, as previously

discussed, there was overwhelming evidence

presented at trial against Petitioner. (D.l. 47-3 at 4850,63-67,73-76,85-88)

Additionally, Petitioner alleges that Rone's

methodology as to the physical evidence in this

case was "erroneous," and "new evidence ...

proves Carl Rone's testing was insufficient,

unreliable, and he shouldn't [have]|£)een testifying as

an expert witness." (D.l. 69 at 20, if| Petitioner also

notes that Rone was charged^nd|^onvicted for

falsifying business records tn^Mlf^l. 69 at 27)

S\

For these reasons, the Court concludes that the

instant allegation of ineffective assistance is

insubstantial and cannot provide cause for

Petitioner's default.

motion. As the Delaware Sijf^^ior Court recognized,

Rone's testimony ctpmwfipg tile firearm used at 930

Spruce to the one^edpnttiS homicides was not

crucial in de^^nin^^guilt because Petitioner,

g. Claim Nineteen

whose ownj|fsfil||ony established the connection,

did i^co^^ballistics match. See

In Claim Nineteen, Petitioner argues that defense

Washingtmq^ Del. Super. LEXIS 653, 2021 WL

5232259, at'4^8. Furthermore, the verdicts of

counsel provided ineffective assistance by failing to

mar^flugJlferevlfal that the jury rejected the only

seek a reduction in his sentence. Petitioner,

opinl%y|jmor|l's that Petitioner contested-that the

however, proffers no valid legal basis upon which

#fjurii§feyg^on was a semi-automatic weapon

defense counsel should have moved to reduce his

i%%£jnn|1fjl separate trigger pull for each shot.

sentence. (See D.l. 29 at 36) Therefore, Petitioner has

SefU^te trigger pulls would have indicated

failed to{2022 U.S. Dist. LEXIS 58} demonstrate that

Claim Nineteen is substantial for the purposes of

intentional first degree{2022 U.S. Dist. LEXIS

4

fitting within Martinez's limited exception to the

09} murders, while an automatic weapon, requiring

V^t§ft>nly a single trigger pull, could manifest

procedural default doctrine.

%

4k

recklessness. Id. In addition, since Delaware cburts

previously found that Rone qualified as an expert in

h. Claim Twenty-One (b)

firearms and toolmark identification under D.R.E 702

in several earlier trials in Delaware, Petitioner cannot

In Claim Twenty-One (b), Petitioner contends

demonstrate a reasonable probability that a

defense counsel was ineffective for faiSjgg fo

v4'

challenge to Rone's credentials in his case would

"protect and/or raise" on direct appeal t^^n^^have been productive. See Phillips, 2015 Del. Super.

evidence that the State committed a Brady ^|piion

LEXIS 439, 2015 WL 5168253, at *3-4. To the extent

by not disclosing at the time of Petitioner's tr® that

Petitioner relies on Rone's subsequent convictions

Fields was the beneficiary of a t^git sentenBl

for falsifying records, defense counsel could not

reduction agreement. (D.l. 69 at 13) Tf^^a/t^z rule

have known about Rone's misconduct that he

only provides a method for avoiding the%^cedural

committed years after Petitioner's trial. See Dooley

default of an ineffective assistive of trial counsel

v. Petsock, 816 F.2d 885. 891 (3d Cir. 1987)

claim, not a claim alleging the ine^^tive assistance

("clairvoyance is not required of effective trial

of appellate counsel. The|l|if^l^M|oner has not

counsel.").

established cause for his <fi(mult of Claim Twenty-

4

Onlk^

i. CI air

tk

rity?Two (a)

In Claim Twei^Wp^}, Petitioner contends that

defense counlel4as ineffective for failing to

"adetfilps^jlgcjss-examine Rone as to his

"certificating" of%indings about the bullets and

casings." (DL%^at 24, 27) Petitioner asserts that

defense counsel conceded that Rone was an expert

and stipulated to his qualifications instead of crossexamining him as to his "lapsed credentials,"{2022

U.S. Dist. LEXIS 59} which he contends would have

prevented the jury from seeing or hearing about the

physical evidence he tested. (D.l. 69 at 24-27)

Moreover, Petitioner cannot demonstrate a

reasonable probability that he would not have been

convicted but for defense counsel's failure to crossexamine Rone in the manner wished by Petitioner.

Rone's testimony was not critical; this was not a

close case and there was overwhelming evidence,

independent of Rone's testimony, presented at trial

against Petitioner. (D.l. 47-3 at 48-50, 63-67, 73-76,

85-88) Thus, Petitioner's instant allegation of

defense counsel's ineffective assistance cannot

provide cause for his{2022 U.S. Dist. LEXIS

61} default because the allegation is insubstantial.

3. Absence of cause and prejudice

" *

) ••

Page 17 of 27

For the reasons set forth above, the Court concludes

that Petitioner has failed to demonstrate cause for

his default of Claims Eight, Nine, Ten (b) and (c),

Twelve (a), (b), and (c), Thirteen, Fourteen (a),

Sixteen, Seventeen, Eighteen, Nineteen, Twenty,

Twenty-One (b), and Twenty-Two (a). Given the

absence of cause, the Court will not address the

issue of prejudice.

4. Miscarriage of justice

Finally, Petitioner contends that his procedural

default of the instant thirteen ineffective assistance

of counsel Claims should be excused, and their

merits reviewed, in order to prevent a miscarriage of

justice. In support of this contention, Petitioner

asserts that he is "actually innocent," as

demonstrated by the following "new" evidence: (1)

State witness Christopher Waterman recanted his

testimony (2) State witness Isaiah Fields was the

beneficiary of an undisclosed tacit sentence

reduction agreement, resulting in a Brady violation,

(3) the State's expert ballistics witness, Carl Rone,

used unreliable methods and misled the jury by

misrepresenting his credentials; and (4) inmate

Jeree Richardson submitted an exculpatory{2022

U.S. Dist. LEXIS 62} affidavit. (See D.l. 29 at 6-7; D.l.

34 at 10; D.l. 46 at 11; D.l. 57 at 1; D.l. 69 at 9,17, 2021, 27; D.l. 70 at 2-3 of 3; D.l. 72 at 2)

In order to establish a miscarriage of justice,

Petitioner must provide new reliable evidej^^of his

actual innocence that was not presented

that proves that no reasonable juror woulq|h|ve

voted to find him guilty beyond a reasonablem>ubt.

See Schlup v. Delo, 513 U.S. 298. 32fL 115 S. Ct§851,

130 L. Ed. 2d 808 (1995); House v. Befej47 uJt 518,

536-37, 126 S. Ct. 2064, 165 L. Ed. 2d rfejftY For

the reasons set forth below, P^feoner cannot satisfy

this threshold showing of actull^mnocence.

a. Watermans."re#ntation"

kPetitioner ass ef||%M|!|iei^is a "reasonable

probability that he i^n^^^'' because Waterman

has recanted t^yest^^ny. (D j. 34 at 8) In support

of this argume^^^titimier offers an unsworn July

2017 affidavit¥rofe^Waterman asserting that

"everythi^^h^y^} testified to against [Petitioner]

at his trial w^sa total complete lie;" (2) Petitioner

"never admiH^d to shooting or killing anyone

personally to [him];" (3) he "honestly provided the

prosecution and law enforcement with rumors and

information that [he] heard from other inmates about

[Petitioner]... and [he] made [his] statements

appear as if [his] information directly came from

[Petitioner]{2022 U.S. Dist. LEXIS 63} admitting to a

double homicide and the things [he] testified to at

his trial;" and (4) he lied at [Petitioner's] trial in order

to get a reduction in his sentence for federal weapon

charges in exchange for his cooperation. (See D.l. 34

&

at 16-18)

1

.1 argued that

In his second Rule 61 motion,^&£&|her

Waterman’s recantation created a stntt|g inference

that he is "actually innoce|if^t||.l. 76-9 at 20-21). The

Superior Court reject# Petj^igs contention,

ex pl#Up:

Delaware courts gi§|e^1|i?i||w applications based

on a witness' reca|£jgfion with suspicion. The

Delaware |||iptemei|purt has held also that if

recantation#wer||''proodcts of prison atmosphere

[they a^^tojf^^fii'ved with great caution."

Mere,||?«|!|ioWer] asserts that Waterman's

o^is testimony would "likely" change

rec

th^out^^ie^ the judgment. Waterman signed an

affi^^vitM^ing his testimony was false and that

[Petiticmellsnever admitted committing the killings to

■%|Jhim. Fu^her, Waterman states that he made up this

^%stim^iy to get a sentence reduction for his prison

HHti. Waterman claims his false testimony was

based on rumors and the conversations of other

inmates.

Waterman’s recantation would not "probably change

the{2022 U.S. Dist. LEXIS 64} result if a new trial is

granted[.]" Waterman testified during trial that

[Petitioner] admitted guilt to him personally, but in

Waterman's affidavit he states that he heard from

other inmates that Washington committed the crime.

Waterman's recantation must be viewed with

suspicion. But even if the Court were to accept it at

face value, it does not provide new evidence that a

person other than [Petitioner] committed the crime,

nor does it establish that no reasonable jury would

have found [Petitioner] guilty beyond a reasonable

doubt. Far from establishing that someone other

than [Petitioner] committed the crimes, it shows that

[Petitioner] was rumored to be the killer. If

Waterman's affidavit is to be believed, it merely

eliminates him as a witness, but does not challenge

the factual accuracy of the rumors. Nor does it

challenge the other independent, significant

testimony from Fields and Coleman that [Petitioner]

incriminated himself to them. Most importantly, it

does not challenge Gardner's eyewitness testimony

that she saw [Petitioner] enter the vehicle in which

the Francis and Guy were killed moments before its

windows "erupted" and that he later attempted to

"apologize.” The recantation{2022 U.S. Dist. LEXIS

65} merely impeaches Waterman's trial testimony

and does not constitute new evidence that proves

actual innocence.Washington, 2021 Del. Super.

- r

Page 18 of 27

LEXIS 653, 2021 WL 5232259, at *6. The Delaware

Supreme Court affirmed that decision. See

Washington, 275 A.3d 1258, 2022 Del. LEXIS 114,

2022 WL 1041267.

counsel attacked Waterman's credibility and the trial

record clearly shows that Waterman was questioned

about motive, bias, and basis{2022 U.S. Dist. LEXIS

67} to lie. (D.l. 47-3 at 50-57)

"Courts have historically viewed recantation

testimony with great suspicion." Landano v.

Rafferty, 856 F.2d 569. 572 (3d Cir. 1988); see

Dobbert v. Wainwright, 468 U.S. 1231.1233-34,105

S. Ct. 34, 82 L. Ed. 2d 925 (1984) ("Recantation

testimony is properly viewed with great suspicion. It

... is very often unreliable and given for suspect

motives...."). "As a general matter, a recantation in

the absence of corroborating evidence or

circumstances will probably fall short of the

standard of reliability contemplated by Schlup."

Howell v. Sup't Albion SCI, 978 F.3d 54. 60 (3d Cir.

2020). A court considering whether a claim of actual

innocence premised on a recantation satisfies

Schlup should analyze the recantation "on an

individual and fact-specific basis." Howell, 978 F.3d

at 60.

Third, defense counsel introduced%aterman's plea

agreement into evidence a&&jssailjs-examined

Waterman about his hopesJtiat federa!f)rosecutors

would recommend a red^lm^ in his sentence for

federal weapon chargesJue t&jft^operation with

authorities in Petitionef^^^Se. (D.L 47-3 at 50-57)

The plea agreementjeflecteiflhat, if the government

determined in itsl^^iscrllbn Waterman had

fulfilled his obli^|ti^^%Lcooperation, the

government jwmild flf'a motion for a downward

departure frq^t^sent^cing guidelines under U.S.

# Se|||i^p| Guidelines

4

1

5K1.lJl^18 U.S.C. 3553(e). See Washington, 164

A.3d||, 2017 Did. Lexis 182, 2017 WL 1573119, at *4

^otf%;|fiat qffither 5K1.1 nor 3553(e) guaranteed

Wil^irm^rl^^tencing leniency in exchange for his

testir^%|^). Ultimately, the jury rejected Petitioner's

^

argument that Waterman's testimony was not

cre^i3le- (See D l- 47-3 at 50-57, 293> 299-300)

After reviewing Waterman's affidavit in conjunction

with the record and the foregoing legal framework,

the Court concludes that Waterman's affidavit does

not satisfy the Schlup standard for establishing

... .

t

. . . .

...

actual innocence. First Waterman's proffered J Jly

\

Ff"™ermore, Waterman s post-trial recanta ion

2017 affidavit is neither reliable nor credible. <#W\

am°pn,sto impeachment evidence and un ike

Petitioner produced Waterman's affidavit more that*^**4 a™";e,r per?°" con'ess,n3 3“"1 or,e.xculpa'°,T.

six years after trial. See McQuIggln V. Perkin#SS9 \

sc'en lflc evidence 10 rs insufficient to establish

US 383 399 133 S Ct 1924 185 L Ed 2d

actual innocence. As the United States Supreme

* ct hasrirogn,zedh'

brou,r

consider how the timing of the submissioitnlli**

Iikely{2022 U.S. Diet. LEXIS 66} credibilitylfia

petitioner's] affiants bear on the probable reli»lily

of... evidence [of actual innocenc%® S/str«l v

Impeaph a Prosecution witness

, nvmTir"eV8r' mak8 l

M

.LEXIS 68> c°nv,n=T3 8li°T? ‘

TS/kT

.

juror would have believed the heart of he] account

=toosibpd cirnlw|ec,i„g

~pp;|

q witness allened?v Xiwinn^nr?mk's'^t!,Tl

innocence in part beLusr^wSLsproduced a

decade late). Waterman'slttiiWre even more

implausible because %LrilWord reveals that

there were attempts to intlwatl%ifaterman in court

see CaMeron V. Thompson, 523 U.S. 538. 563,118 S.

.

Ct. 1489,140 L. Ed. 2d 728 (1998) ("This

impeachment evidence provides no basis for finding

a.miscarriage of justice. As in Sawyer the evidence

,sa s,ap r,e,T? a

,7

“ 7 m"'m9aK ?,e

r-"5arnagsias=s!!is ippsspK.r.rri

^

Waterman's

■ fi* t ^

W

H

3

"

Second,

statements, to the extent they

are a recaLlftionfdo not exonerate Petitioner or

provide new%^idence that a person other than

Petitioner committed the crime. Waterman testified

at trial and was subject to cross-examination

regarding whether his testimony at trial was based

on statements Petitioner made directly to him or

whether it was based on information he had heard

from other inmates. (D.l. 47-3 at 48-57) Defense

removed" from the criminal acts themselves. Cf.

Calderon, 523 U.S. at 563.

Finally, even If the affidavit or unsworn statement

constitutes new and reliable evidence-which the

Court does not find-Petitioner has failed to establish

that, without Waterman's testimony, no reasonable

juror would have voted to find him guilty beyond a

reasonable doubt. The question of Petitioner's guilt

was not a close one. Aside from Waterman's

testimony, there was significant additional evidence

at trial of Washington's guilt, including Gardner's

s ..

Page 19 of 27

eyewitness testimony (D.l. 47-3 at 73-76, 81), and

testimony, Fields was incarcerated and serving a

Fields' and Coleman's trial testimony that

five-year sentence for a first degree assault

Washington admitted to killing Francis and Guy (D.l.

conviction.

47-3 at 63-67, 85-89).11 Although Petitioner has

attacked the testimony of Waterman and Fields, he

4

Approximately two months after Pe&tioner's trial and

is still left with{2022 U.S. Dist. LEXIS 69} the

about a month before Petitioner wal-sentenced, the

damning eyewitness testimony of April Gardner. At

State filed a motion to redu^^ig||s/s sentence

trial, Gardner testified that, prior to the shooting, she

premised

on Fields's substantial assiitlpce with the

was outside sitting on her front steps watching her

State in Washington's cas|f|D^ 76-8 at 417-420) The

grandson ride his bicycle when she observed

State asserted that Fiel#s's d^&ggpce was worth

Petitioner and another male-later identified as Guy­

one year of credit on n^^e-year sentence for

walking down 10th Street. (D.l. 47-3 at 73-76)

assault.

(D.l. 76-8 at 419) of^anuary 18, 2011, the

Gardner told the jury that she knew Petitioner

sentence was

court

granted

the nfip^^md Ffelds’s

^'

because he had grown up in the neighborhood and

reduced

from

five

e

yearsflowur

years.

(D.l. 76-8 at

had gone to school with her children. (D.l. 47-3 at 73)

Gardner testified that she observed Petitioner and

his companion approach another man who was

sitting in the driver's seat of a vehicle that was

As he did^WusspsecoTici Rule 61 motion, Petitioner

parked directly in front of her house. (D.l. 47-3 at 74)

sltfithasut

now argues

tW the substantial assistance motion

According to Gardner, after the three men conversed

filed bfThiSitati^fter Petitioner's trial, along with

briefly, Guy got into the right front passenger seat of

Fi^fe

sentence> demonstrates that the

the vehicle and Petitioner got into the right rear

Sta^|f a"talit agreement^with FieldsTo^mClde

thPatSmompenfteaft

Y'3 at 74) Gardner testified

h1%vitl^b|fefit (reduced sentence) in exchange

thVTT T™° men 6ntered the vehic,e

fo>%t^timony.12 (D.l. 69 at 8-23) Petitioner

th|horhkPd h T

^ erupted." (D.l. 47-3 at 74)

^

contends that the State violated Brady by not

^%disclo|ing the agreement to him prior to trial, and

Gardner said- she

immediately grabbed [her] grandson" and ran to

^wjfiat the evidence of the tacit agreement

rpmafnpHhfter S hous® around the corner where she %

conllitutes{2022 U.S. Dist. LEXIS 72} new evidence

mT 47

n h°urs bef?/® burning home

\ of his actual innocence, because he could have used

LEXIS 701 thL '7 lh 3

7testdied{2022 U Sthe alle9ed deal between Fields and the State to

X”

fchlJlWW-

impeach Fields' testimony at trial.

that she had "glass all in [her] hair" when she

reached her daughter's house. (D.l. 47-3#^M)

Gardner further testified that Washington!^ mif#^

her home later that evening "to apologize," firthat

she refused to speak to him. (D.l. 47-3 at 75-7^81)

Gardner's testimony inculpates PeliNoner, aj|tfhe

cannot show that no reasonable juroP|fcouj|niave

voted to find him guilty beyon&a reasonBie doubt

based on Waterman's post-triaUfecantation. Thus

I6;

recantation does not c<%tita%jew reliable factual

evidence of Petitioner%ctul!>innocence as

reqtw,p'

tf

Fi^^'tacit agreement

As Previo^e Ai^d, Fields testified that, while

he and Petm^^%||;e in the same prison, Petitioner

told Fields thlme unintentionally killed Francis and

Guy with a MACMo in a robbery or drug deal that

went wrong and that [s]ome lady named April"

witnessed the shooting. (D.l. 47-3 at 85-89) Fields

also testified that he saw Petitioner accidentally fire

a MAC-10 at 930 Spruce Street a few{2022 U.S. Dist.

LEXIS 71} months before Francis and Guy were

killed. (D.l. 47-3 at 86-88) At the time of his

Petitioner's proffered evidence of a "tacit

agreement" between the State and Fields does not

constitute new reliable evidence of Petitioner's

factual innocence. First, the evidence is not "new"

because the instant argument was available to

Petitioner at the time of his direct appeal and his .

first Rule 61 motion, given that the substantial

assistance motion was filed prior to Petitioner's

direct appeal. Second, Petitioner does not provide,

and nothing in the record indicates, that there was a

substantial assistance agreement between Fields

and the State at the time of his testimony. When he

testified, Fields explained that he was incarcerated

and serving a five-year sentence, and he testified

that no agreement had been worked out in exchange

for his testimony. (D.l 47-3 at 85, 88) He also

responded "[y]es," when asked whether he

”want[ed] to be here today" to testify. (D.l. 47-3 at 88)

On cross-examination, Fields explained that he was

testifying to "help solve" the homicide and stated

that he "ain't getting nothing out of it" and that he

was{2022 U.S. Dist. LEXIS 73} not protecting anyone

else. (D.l. 47-3 at 90) He asserted that he came

forward to investigators because he "wanted to help

the situation." (D.l. 47-3 at 91) Defense counsel

attacked Fields's credibility on cross-examination

and in closing. (D.l. 47-3 at 88-91, 292-302)

- <r

Page 20 of 27

Third, prior to Fields' testimony, during discussions

with the Superior Court about the relevancy of the

defense's line of questioning for another witness,

the State made the statement:

Has Isaiah Field[s] asked for a break? No, he wasn't

smart enough to do that beforehand. He pled to a

five-year min/man, and there's not a whole lot I can

do about that and I told him that.

(D.l. 47-3 at 45) During closing arguments, the State

also asserted, "Isaiah Fields, he didn't ask for a deal.

He's serving 5 years for an Assault Second. Told

you, 'I didn't get a deal." (D.l. 47-3 at 305) In fact,

Fields' former counsel provided a statement that he

had "no recollection of any involvement in any

substantial assistance motion for [Fields] or any

request for same." (D.l. 76-8 at 428) In sum, viewing

the foregoing circumstances together demonstrates

that Petitioner has failed to demonstrate the

existence of a substantial assistance

agreement.{2022 U.S. Dist. LEXIS 74}

neither constitutes new evidence of Petitioner's

actual innocence because both issues were

available at the time of Petitioner's trial. Petitioner's

reliance on Rone's arrest and conviction for theft

and falsifying business record^ also fails to

establish a claim of newly discov^|ed evidence of

Petitioner's actual innocence At%ost, Rone's

misconduct and subsequent^fMIffe^onvictions,

which occurred years aft|^|etitioner^2010 trial,

amount to impeachpfent ^idence. Rone's

misconduct did not il|^ply|S^ff^shandling or

falsification of ballistics e^n^nce, and Petitioner has

not shown that R&ne misHi|dled or fabricated

case.

In sum, P^iif^ner'&omplaints about Rone

constitut<|inpeJ|ig§pt' evidence that, even when

viewed togltfetlf', are not persuasive in light of the

additiqpi&^igWIfGant evidence of Petitioner's guilt.

Petitij§fier||$$:^w5hown that, in light of his " new"

evidllteeiimcMnina Rone, it is more likely than not

tf%!no%fsoiflble juror would have convicted him

ab^lt^tmf^fror. Consequently, the miscarriage of

justl^exception to the{2022 U.S. Dist. LEXIS

%

76$ procedural default does not apply.

ss

Nevertheless, even if such an agreement existed at

trial, Petitioner cannot show that no reasonable juror

d. Richardson affidavit

would have voted to find him guilty beyond a

'"kk

reasonable doubt if the existence of such an ^ Ik

agreement had been disclosed. At most, Petition^y's%^^^ Finally, Petitioner has provided a February 2018

proffered evidence of an undisclosed tacit

^ affidavit from an inmate, Jeree Richardson, to show

%

agreement with the State would have constif3fl^%

that the shooting did not occur in front of Gardner's

impeachment evidence that does not creat^^a strongv'

house. (D.l. 46 at 11; D.l. 57 at 1) In his affidavit,

inference of Petitioner's actual innocf|iiil^p^

Richardson asserts that, on the day of the shooting,

he told City Councilwoman Stephanie Bolden and

two police officers that he had seen the car drive

Thus, after reviewing Petitioner's purporte|i

down Pine Street and turn on Tenth Street before it

evidence of a tacit agreement in 6%|text wit^he

crashed. (D.l. 34 at 6-7,12; D.l. 46 at 11)

entire record, the Court concludes tl?itoie^|teged

Richardson's affidavit does not address Petitioner's

tacit agreement does not constitute new^fliiable

role in the homicide at all. Therefore, Richardson's

factual evidence of Petitioner's^Mual innocence as

affidavit does not constitute the strong evidence of

required by Scfr/up^k

actual innocence needed to demonstrate a

miscarriage of justice would occur if the claim was

c. cIlllsRtil^sx

not heard.

Petitioner also atl^llllteaUie has established a

miscarriage of justi% J|%cause "new evidence ...

proves Cai|lRone1||esting was insufficient,

unreliable, and rmsl^>u1e|n't [have] been testifying as

an expe^yvitnJ&s.^^pD.I. 69 at 27; D.l. 81 at 1) In

addition,^|MBa;e^,ontends that Rone's arrest and

conviction fomheftand falsifying business records

that occurred yells after his 2010 trial demonstrates

his actual innocence. (D.l. 69 at 27)

Petitioner is mistaken. To the extent Petitioner{2022

U.S. Dist. LEXIS 75} relies on Rone's

misrepresentation of his credentials during the trial,

and the alleged deficiency of Rone's methodology,

To summarize, Petitioner has not demonstrated

cause for his default of Claims Eight, Nine, Ten (b)

and (c), Twelve (a), (b), and (c), Thirteen, Fourteen

(a), Sixteen, Seventeen, Eighteen, Nineteen, Twenty,

Twenty-One (b), and Twenty-Two (a). Additionally,

since Petitioner's attempts to demonstrate new

reliable evidence of his actual innocence are

unsuccessful, Petitioner's default of the instant

Claims cannot be excused{2022 U.S. Dist. LEXIS

77} under the miscarriage of justice exception to the

procedural default doctrine. Accordingly, the Court

will deny Claims Eight, Nine, Ten (b) and (c), Twelve

(a), (b), and (c), Thirteen, Fourteen (a), Sixteen,

>

**■

^ I*

Page 21 of 27

Seventeen, Eighteen, Nineteen, Twenty, Twenty-One

(b), and Twenty-Two (a) as procedurally barred.

LEXIS 79} upon a showing that a miscarriage of

justice will occur if the claim is not reviewed.

C. Procedurally Barred Prosecutorial Misconduct

Claims

Petitioner does not allege any cause for his default

of Claim Six. He does, however, J^sert ineffective

assistance of defense counsel al|pause for his

default of Claims Two, Threel(^i(||Land Five (a).

Ineffective assistance provided by al^al attorney

can constitute cause for|^re||edural default if the

particular ineffective ^tsist^n^legation was

presented to the stat<^l|5|!j§sas an independent

claim and it was determinea%}at the attorney's error

amounted to^Bflstitutiorfally ineffective

assistance. See imirr^^^‘ U.S. at 488-89. An

ineffective assjstanc^p trial counsel claim cannot

constitute <||lisl|f thelfejaim itself is procedurally

Petitioner presents four prosecutorial claims: Claims

Two, Three (a) and (b), Five (a), and Six. In Claim

Two, Petitioner contends that the State

"manipulat[ed] facts and misle[d] the jury as to the

conditions of [Waterman's] federal plea agreement.

(D.l. 1 at 7) Claim Three asserts that the State (a)

manipulated evidence and (b) improperly vouched

for the State's witnesses at trial. (D.l. 1 at 8-9; D.l. 29

at 11) In Claim Five (a), Petitioner contends that the

State improperly interjected information into the trial

during summation regarding as to where the shooter

was seated in the vehicle, which was not factually

supported by the testimony of the State's ballistics

expert, Rone. (D.l. 1 at 12) Finally, in Claim Six,

Petitioner asserts that the State falsely told the jury

during opening and closing statements that Rone

would testify,{2022 U.S. Dist. LEXIS 78} and did

testify, that bullets and bullet fragments recovered

from the car, the victims, 930 Spruce Street, and the

street in front of Gardner's house came from the

same gun. (D.l. 1 at 14; D.l. 29 at 11)

Petitioner presented Claims Two, Three (a), Five

and Six to the Superior Court in his first Rui^^fil

motion, and then to the Delaware Supreme Court%b^l^

appeal from the denial of that Rule 61 moJj^JD.I.

47-6 at 19-26, 34-44) The Delaware SupremB^^^^

denied Claims Two, Three (a), Five (a), an^i^as

barred under Rule 61 (i)(3).

Petitioner presented Claim Three (b) foi^he l|m time

to the Delaware Supreme Coupon post-cHiviction

appeal. As a result, the Delawll Supreme Court

only

reViD"^a'reSuTphr»m#eerrUnder

vx ■■"

By applying the proceduratmrs of Rule 8 and Rule

61(i)(3), the Delaw^^^orer^Court articulated a

"plain statemenfwiglr/flrr/'s v. Reed that its

decision restejfeon

law grounds.. See Harris,

489 U.S. at 263^||mhis||;ourt has consistently held

that RuleJJ andmif^.T(i)(3) are independent and

adequ^^ls|.(^r^)cedural rules effectuating a

proeedural%|fauWsee Harris, 489 U.S. at 263-64;

DeAngelo v. Jo%son, 2014 U.S. Dist. LEXIS 113252,

2014 WL 4079357, at ‘12 (D. Del. Aug. 15, 2014);

Lawrie v. Snyder, 9 F. Supp. 2d 428. 451 (D. Del.

1998). Therefore, the Court cannot review the merits

of Claims Two, Three (a) and (b), Five (a), and Six

absent a showing of cause for the default, and

prejudice resulting therefrom, or{2022 U.S. Dist.

defaulted. S^^^irds, 529 U.S. at 451-5.

Here, J|f!ilbnerl!i|. not fairly present his ineffective

^sis|P^>f counsel claims related to the

prqseclftifial misconduct alleged in Claims Two and

feja)^d|(b) to the Delaware Supreme Court on

posnl|&rmction appeal. Therefore, these instant

^ ineffective assistance of counsel allegations are

^^fjemse^es defaulted and cannot excuse Petitioner's

'^^ilfault of Claims Two and Three (a) and (b).

In Claim Five (a), Petitioner argues that the State

misstated the evidence{2022 U.S. Dist. LEXIS 80} by

telling the jury during summation: (1) that Gardner

testified that Petitioner got into the back seat of the

passenger side seat of the car moments before the

car windows erupted; and (2) that Rone testified

that, if more than one person had been present in

the back seat of the car, that person would have

been shot. (D.l. 1 at 12) Petitioner fairly presented

his allegation that defense counsel provided

ineffective assistance by failing to object to the

prosecutorial misconduct asserted in Claim Five (a)

to the Delaware Supreme Court on post-conviction

appeal, but the Delaware Supreme Court held that

defense counsel did not provide constitutionally

ineffective assistance by failing to object to the

State's assertion concerning the location of the

shooter in the car. As explained in its discussion of

Claim Fivejb), the Court concludes that the_

Delaware Supreme Court reasonably applied

Strickland in holding that defense counsel did not

provide constitutionally ineffective assistance by

failing to object the prosecutorial misconduct

alleged m Claim Five (a), see supra at sectidh iii.a.2.

Therefore, defense counsel's action do not

constitute cause for Petitioner's default of Claim

Five (a).

ln{2022 U.S. Dist. LEXIS 81} the absence of cause,

the Court will not address the issue of prejudice.

Moreover, Petitioner's default of the instant Claims

' <

Page 22 of 27

cannot be excused under AEDPA’s miscarriage of

justice exception because, as previously explained,

Petitioner has failed to provide new reliable evidence

of his actual innocence. See supra at Sections

III.A.1, III.13.2, III.13.4 and n.11. Accordingly, the

Court will deny Claims Two, Three (a), (b), Five (a)

and Six as procedurally barred.

D. Claim Twenty-One (a): Brady Violation

has consistently held that Rule 61 (i)(1 ){2022 U.S.

Dist. LEXIS 83} and (3) are independent and

adequate state procedural rules."); Taylor v. May,

2022 U.S. Dist. LEXIS 59827. 2022 WL 980859, at *1621 (D. Del. Mar. 31, 2022) (holding tjiat, as applied to

Taylor's case, the post-2014 versi^of Rule 61 (i)(2)

was an independent and adequate Sate procedural

rule). Therefore, the Court cahmOT%%^ the merits

of Claim Twenty-One (a) abpjM a shoWmg of cause

for the default, and prejudice resulting therefrom, or

upon a showing that afeis^lii^^f justice will

occur if the clairMlfenot reviewed.

In January 2011, two months after the conclusion of

Petitioner's trial but before his sentencing, the State

%

filed, and was granted, a motion to reduce Fields'

In Brady v. MarylanW^h^M^tfireme Court held "that

sentence based on Fields' substantial assistance in

the suppressl^i byl|% prosecution of evidence

prosecuting Petitioner. Petitioner asserts that the

favorable t<^|iWtt|qusetl|upon request violates due

State's act of filing the motion to reduce Fields'

process wlwe th^Kaide^ce is material either to guilt

sentence is evidence that an undisclosed tacit

or to punisn^Jnt, irrespective of the good faith or

agreement between Fields and the State existed at

bad faj|fS^ the%||3secution." Brady, 373 U.S. at 87.

the time of his trial. (D.l. 69 at 8-23) Thus, in Claim

Thi%jliut)^MiscK>se such evidence is applicable

Twenty-One (a), Petitioner contends that the State

e^ln^tbPugt^here has been no request by the

violated Brady by failing to disclose that Isaiah

a^|jseo^arT«pncludes "impeachment evidence as

Fields was the beneficiary of a tacit sentence

weTS^^exWffpatory evidence." Strickler v. Greene,

reduction agreement, and that. (D.l. 69 at 13-16) He

527 U.S,.263. 280. 119 S. Ct. 1936. 144 L. Ed. 2d

contends that he could have used{2022 U.S. Dist.

.>286 (19|3). "Such evidence is material if there is a

LEXIS 82} the alleged deal between Fields and the

N5%qasoplbIe probability that, had the evidence been

State to impeach Fields' testimony at trial. (D.l. 69 at

^tftisclosed to the defense, the result of the

\

19; D.l. 76-9 at 35-40)

proceeding would have been different." Id. "In order

%

Petitioner presented this argument to the Superi^^^^^ to comply with Brady, therefore, the individual

prosecutor has a duty to learn of any favorable

Court in his second Rule 61 motion. (D.l. 76-9<f$ 35-%^

^

evidence known to the others acting on the

40) The Superior Court denied Petitioner's

government's behalf in this case, including the

Brady claim as barred under Rule 61(i)(1)|^Jieing

police." Id. at 281 (cleaned up). "There are three

untimely, under Rule 61(i)(2) for being sucl^s^^i^

components of a true Brady violation: The

and under Rule 61(i)(3) for being procedu|af|y

evidence{2022 U.S. Dist. LEXIS 84} at issue must be

defaulted because Petitioner did not raise th^^sue

favorable to the accused, either because it is

during the trial. See Washington, £021 Del. Super.

exculpatory, or because it is impeaching; that

LEXIS 653, 2021 WL 5232259, at *5-6.^he Dejpwrare

evidence must have been suppressed by the State,

Supreme Court affirmed the SuperioR|||trt's

either willfully or inadvertently; and prejudice must

decision "on the basis of ar^Jforthe reasons

have ensued [i.e., the evidence was material]." Id. at

assigned in the Superior Court's Wlyember 9, 2012

281-82. Evidence is material "only if there is a

order denying [Petitionf^f^&^^femotion for

reasonable probability that, had the evidence been

postconviction relief.'^Se^^ish/ngfon, 275 A.3d

disclosed to the defense, the result of the

1258, 2022 Del. LEXIS 1^^02f^L 1041267, at *1.

proceeding would have been different." Bagley, 473

U.S.667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

"A 'reasonable probability' of a different result is

By applying the pr^gdtpi^frs of Rule 61(i)(1), (2),

accordingly shown when the government's

and (3), the Delawa|||itate courts articulated a

evidentiary suppression 'undermines confidence in

"plain stateilpijr ufter Harris v. Reed that its

the outcome of the trial." Kyles v. Whitley, 514 U.S.

decision restedsq^sqtalg law grounds. See Harris,

419. 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

489 U.S. ^|p|J-64||Thre Court has consistently held

that

(3) are independent and

adequate

procedural rules effectuating a

In the context of procedural default, "cause and

prejudice parallel two of the three components of the

procedural default, and recently confirmed that the

version of Rule 61(i)(2) applied to Petitioner's

alleged Brady violation itself." Strickler, 527 U.S. at

282. The suppression by the prosecution of

second Rule 61 motion also constitutes an

evidence favorable to the accused provides cause to

independent and adequate state procedural rule

excuse the petitioner's procedural default, but

effectuating a procedural default.13 See Stanford v.

unless the evidence is "material" under Brady, the

Akinbayo, 2021 U.S. Dist. LEXIS 178447, 2021 WL

petitioner is unable to demonstrate "sufficient

4263045, at *9 (D. Del. Sept. 20, 2021) ("[T]his Court

>

Sr.-

Page 23 of 27

prejudice to overcome the procedural default."

Id. Therefore, if Petitioner establishes that the State

suppressed evidence and that the evidence was

material, he will also establish cause and prejudice

to excuse his procedural{2022 U.S. Dist. LEXIS

85} default of Claim Twenty-One (a).

As the Court has previously discussed at length with

respect to Petitioner's actual innocence argument,

Petitioner has not established that the State

suppressed evidence of a tacit agreement with

Fields, primarily because there is no evidence that

such an agreement existed. See supra Section

111.6.4; see also Washington, 2021 Del. Super.

LEXIS 653, 2021 WL 5232259, at *7, aff'd, 275 A.3d

1258, 2022 Del. LEXIS 114, 2022 WL 1041267, at ‘1.

Furthermore, even if Petitioner's allegation that a

tacit agreement existed were true, he has failed to

demonstrate its materiality. As the Third Circuit has

noted:

To the extent Petitioner asserts that his failure to

raise Claim Twenty-One (a) earlier should be

excused because it was due to the ineffective

assistance of trial and/or appellate counsel, his

contention is unavailing. (See D.l.

at 8-23; D.l. 72)

Claims of ineffective assistance o^ounsel cannot

establish cause for a proceduraMelkult unless they

were first presented to thellalPil^irts as an

independent claim, and F^g!1%jner did rtbt present

this particular ineffectiv<efass||tance of trial and/or

appellate counsel dlum tsS^fPsTate courts.

Similarly,{2022 U.S. Disl%||xiS 87} to the extent

Petitioner may be ^ttempting^o, invoke Martinez to

establish cause fo^^^^^%?|t1by claiming that his

postconviction couns|il^as ineffective for failing to

raise this ClafliMie llmiment fails. (See D.l. 69 at

16, 20-23^thepmitea|exception articulated in

Martinez olllyxagpTiWPlfhere the underlying claim is

one of|njeffel||ye assistance of trial counsel. See

DavifVJnlE S. cHat 2062 Consequently, Petitioner

cai^tot injfMe^Vlartinez to establish cause for the

. prol^iliral|lefau11 of the instant freestanding

" any claim that appellate counsel was

BrW%ic I a

m*.

ineffective.

The materiality of Brady material depends almost

entirely on the value of the evidence relative to the

^^etiti|fiier does not allege any other cause for his

other evidence mustered by the state. Suppressed

prt||tdural default of Claim Twenty-One (a). In the

evidence that would be cumulative of other evidence ^

or would be used to impeach testimony of a witness

absence of cause, the Court need not address the

whose account is strongly corroborated is generafkv

issue of prejudice. Moreover, Petitioner's default of

not considered material for Brady purposes. ^kj^^]|kthe instant Claim cannot be excused under AEDPA's

Conversely, however, undisclosed evidence^ja^

^

miscarriage of justice exception because, as

would seriously undermine the testimony of a

previously explained, Petitioner has failed to provide

witness may be considered material wher^||elates ^

new reliable evidence of his actual innocence. See

to an essential issue or the testimony lacllisti^|jl||

supra at Section 111.6.4. Accordingly, the Court will

corroboration.Johnson v. Folino, 705 F.3d ~fl>7#l29

deny Claim Twenty-One (a) as procedurally

(3d Cir. 2013) (cleaned up).

barred.

V

Notably, there was additional significa^l^i^lfnce of

Petitioner's guilt, which in|Juded Gardler's

eyewitness testimony{2022 U.S^^t. LEXIS 86} and

Super. LEXIS 653, 2021%L 52§|£59, at *7, aff'd, 275

A.3d 1258, 2022 Del. LEXllIlp, H22 WL 1041267, at

*1; see also supra|MteetionilfLA.1, III.B.2,111.8.4,

and n.11. Thus, wei^it^igreement existed

between the <State^|l-Fields, Petitioner cannot

show a reasoj^1eor1||ability that the result of the

proceeding\d5^djfkve been different if the

existen^|§Hhe%arJlment had been disclose, or

that its disel^m^^uld probably change the result

rf^new trial was granted.

In sum, Petitioner has failed to establish cause for

his procedural default because he can show neither

that the State suppressed evidence, nor that the

evidence was material.

E. Procedurally Defaulted Claims Alleging Trial

Court Error

Petitioner asserts three Claims alleging that the

Superior Court erred and/or abused its

discretion{2022 U.S. Dist. LEXIS 88} during his trial:

Claims Four, Seven (a), and Fourteen (b). In Claim

Four, Petitioner contends that the Superior Court

committed plain error by permitting Detective

Ciritella to testify as an expert. Claim Seven (a)

asserts that the Superior Court abused its discretion

by dismissing Carl Rone, the State's ballistics

expert, before Petitioner had the opportunity to view

the vomcio involved in the incident and crossexamine Rone. In Claim Fourteen (b), Petitioner

asserts that the Superior Court erred by

not inquiring into the conflict of interest between

defense counsel and the prosecutor.

Petitioner presented Claims Four and Seven (a) to

the Delaware Supreme Court on appeal from the

. €

Page 24 of 27

denial of his first Rule 61 motion. The Delaware

Supreme Court denied the Claims as procedurally

barred under Rule 61(i)(3), and also denied a portion

of Claim Seven (a) under Delaware Supreme Court

Rule 8. Rule 8 and Rule 61 (i)<3) constitute and

independent and adequate state law grounds.

Therefore, the Court cannot review the merits of the

Claims absent a showing of cause and prejudice, or

a miscarriage of justice.

advise Petitioner about the standard for relief under

Rule 61; and (4) moving to withdraw. In Claim

Twenty-One (c), Petitioner contends that post­

conviction counsel provided ineffective assistance

by failing to raise the Brady Claid| in his Rule 61

motion. In Claim Twenty-Two (b), Petitioner

contends that post-convictionco&sel provided

ineffective assistance by failih^foTh^estigate and

raise the issue of defen^p^unsel'sHfeffective

assistance with raipecflo Carl Rone.

Petitioner did not present Claim Fourteen (b) to the

Delaware Supreme Court on post-conviction appeal.

At this juncture, Rule 61(i), (ii), and (iii) would

prevent Petitioner from{2022 U.S. Dist. LEXIS

89} presenting Claim Fourteen (b) in a new Rule 61

motion. Therefore, the Court must treat Claim

Fourteen (b) as procedurally defaulted, which means

that it cannot review its merits absent a showing of

cause and prejudice, or a miscarriage of justice.

Petitioner attempts to establish cause by blaming

defense counsel for not raising the instant Claims

during trial. As discussed in its discussion of Claim

Seven (b), the Court concludes that defense counsel

did not perform ineffectively by not objecting when

the Superior Court dismissed Carl Rone, the State's

ballistics expert, before Petitioner had the

%

opportunity to view the vehicle involved in the

incident and cross-examine Rone (Claim Seven (w

See supra at Section III.A.3. Therefore, defense

counsel's actions cannot excuse Petitioner's

of Claim Seven (a). As for Claims Four andNFourtee#%%

(b), defense counsel’s failure to raise thei|%l^;ms^

cannot excuse Petitioner's default because,

discussed above, the related claims of ineffepive

assistance (Claims Twelve (c) and f ourteen (l^are

themselves procedurally dltpjlted. 4^

In the absence of cause, the d^y-t will notaddress

the issue of prejudice. In addition's miscarriage of

justice{2022 U.S. Dist. L^»Sp^jpti on to the

procedural default dq^s n^y»xcuse Petitioner's

default because, as di£p||se^||>ove, he has not

presented new reliable ew|tence of his actual

innocence. Accord®ff|^e cbtart will deny Claims

Four, Seven (a), an l#qPrfeilh (b) as procedurally

Wired.

F. Ineffectfe^ssi^nW of Post-Conviction Counsel

Petitioner presets three Claims alleging that post­

conviction counsel provided ineffective assistance.

In Claim Fifteen, he asserts that post-conviction

counsel provided ineffective assistance by: (1)

failing to investigate beyond the trial record and

prove his innocence; (2) failing to provide an

investigator to prove his innocence; (3) failing to

■'v!'

There is no federal constitutional right to effective

assistance{202^M^%XIS 91} of post­

conviction counsel, wpe fidfmian, 501 U.S. at 752. In

fact, the AEJUyV spfefificaNy provides that "the

ineffectiveness o^incm^petence of counsel during

Pedeirfbr S^ftSi^ateral post-conviction

proceedirr{|s.4tiall not be a ground for relief in a

proceed un% section 2254." 28 U.S.C. 2254(iL

Thfttefo|q^|iei30urt will deny Claims Fifteen,

Twe1f|y.-(Sie (c§, and Twenty-Two (b) because they

despotHlerf^i issue cognizable on federal habeas

reviefe^ei/^lg., Jordan v. Superintendent Somerset

Sci, 20mU.S. App. LEXIS 27045. 2017 WL 5564555,

at *1 <3d Cir. Feb. 15, 2017) ("[Cjlaims alleging

'%neff||ttive assistance of PCRA counsel are noncbilflable in federal habeas, 28 U.S.C. 2254fiL"L

G. Claim Twenty-Three: Actual Innocence

In his final Claim, Petitioner appears to assert a

freestanding claim of actual innocence based on his

alleged "new" evidence of Waterman’s recantation,

Fields' allegedly undisclosed "tacit" sentence

reduction agreement, and Rone's qualifications and

methodology.

Whether or not a freestanding claim of actual

innocence is cognizable on federal habeas review

remains an open question in Supreme Court

jurisprudence. See McQuiggin, 569 U.S. at 392;

Reeves v. Fayette SCI, 897 F.3d 154, 160 n.4 (3d Cir.

2018). Assuming, arguendo, that a free-standing

claim of actual innocence is cognizable, a

petitioner's burden on any such claim "would

necessarily be extraordinarily high" and "more

demanding" than that applied to gateway actualinnocence{2022 U.S. Dist. LEXIS 92} claims. Herrera

v. Collins, 506 U.S. 390. 416, 113 S. Ct. 853, 122 L.

Ed. 2d 203 (1993); see also Reeves, 897 F.3d at

160 n.4 (describing hypothetical freestanding actualinnocence standard as "more demanding" than that

applied to gateway actual-innocence claims). To put

Petitioners' burden of establishing a free-standing

claim of actual innocence in perspective, a gateway

actual innocence claim that is asserted in an effort

to overcome a procedural bar for habeas cases will

only prevail if it is based on "new reliable evidence-

-> .

Page 25 of 27

whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical

evidence [ ] that was not presented at trial." Schlup,

513 U.S. at 324. The Court has already concluded

that Petitioner's new evidence of Waterman's

recantation, Fields' alleged tacit sentence reduction

agreement, and the issues surrounding Rone's

qualifications and methodology does not satisfy the

Schlup standard. See supra at Section 111.13.4.

Thus, on the facts presented, Petitioner's assertion

of actual innocence does not provide a basis for

relief under 2254.

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

4

(B) the facts underlying the claim w^ild be sufficient

to establish by clear and con^Aevidence that

but for constitutional error, no reason^Je factfinder

would have found the jifipllcant guilty of the

underlying offenses uj&^54(e),2).

"At a minimum, .s,.2254(e)(2)still restricts the

discretion of feder^^^a&.<x^tirts to consider new

H. Pending Motions

evidence when dikjdfng claims that were not

adjudicated

melt| in state court." Cullen, 563

U.S.

at

1

8#|

setla/so%c/jr/ro

v. Landrigan, 550

Petitioner has filed a Motion for an Evidentiary

U.S.465,

46^27^W933,

167

L. Ed. 2d 836 (2007)

Hearing (D.l. 67), a Motion for the Appointment of

("In

cases%h||re

an

applicant

for

federal habeas

Counsel (D.l. 68), and a Motion for both the

reliefis ^t bdfrgd from obtaining an evidentiary

Appointment of Counsel and an Evidentiary Hearing

heariA bvJP%S.C. 2254(e)(2). the decision to grant

(D.l. 70) In light of the Court's decision{2022 U.S.

sucj^^jprinjjji'ests in the discretion of the district

Dist. LEXIS 93} that the Petition should be denied,

co%^t

")f%J|sf'of the Rules Governing Section 2254

the Court will dismiss Petitioner’s requests for the

Cas&^t|*

tKMJnited States District Courts, 28 U.S.C.

appointment of counsel as moot.

foil. 225^(Vhen deciding whether to grant a hearing,

^ the "c^urt must consider whether such a hearing

Turning to Petitioner's request for an evidentiary

^ou^enable an applicant to prove the petition's

hearing, Petitioner appears to assert that an

4,

factual allegations," taking into consideration the

evidentiary hearing is warranted because he is pro li|

"deferential standards prescribed by 28 U.S.C.

se and had "no counsel on his direct appeal and fl|s|vv Ik

2254." Schriro, 550 U.S. at 474. An evidentiary

round of collateral proceedings." (D.l. 67 at 8) Tc^^%^

hearing is not necessary if the issues can be

support his request, Petitioner merely sets fq|th a

resolved by reference to the record developed in the

detailed history of his proceedings in the stafP^^.

state courts. Id.

“DX67)

4k'

A federal habeas petitioner is not entitled\#an

evidentiary hearing in most cases. The Supreme

Court has explained that "[ajlthougft^tate prisoners

may sometimes submit new evidence^f|jieral

court, AEDPA's statutory sct^me is denned to

strongly discourage them fromUyng so." Cullen v.

Pinholster, 563 U.S. 170, 1JM44llikct-1388>179

L. Ed. 2d 557 (2011). TylljffiWeste for an~

evidentiary hearing in cfederllyiabeas proceeding

are evaluated under 28tm,C?l254(eM2) which

(2) If the appli^^t hakfailed to develop the factual

basis of a clainr^^^te^ourt proceedings, the court

shall notkold at^vi^htiary hearing on the claim

'^^^l^appHcant shows that

(/lj%ie claim

relies on -

(i) a new rule of constitutional law, made retroactive

to cases on collateral review by the{2022 U.S. Dist.

LEXIS 94} Supreme Court, that was previously

unavailable; or

The Court has determined that Petitioner's

Claims{2022 U.S. Dist. LEXIS 95} are meritless,

procedurally barred, and/or not cognizable.

Petitioner's assertions do not demonstrate how a

hearing would advance his arguments. Therefore,

the Court will deny Petitioner’s request for an

evidentiary hearing

IV. CERTIFICATE OF APPEALABILITY

The Court must decide whether to issue a certificate

of appealabilty. 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): see also

Slack v. McDaniel, 529 U.S. 473. 484,120 S. Ct. 1595,

146 L. Ed. 2d 542 (2000). Additionally, 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

. <•

Page 26 of 27

find 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, 529 U.S. at 484.

This case was reassigned from the Honorable

Richard G. Andrews' docket to the undersigned's

docket on February 27, 2019.

2

4.

%

%

Murray, 477li.%sy|&

The Court has concluded that the instant Petition

fails to warrant federal habeas relief. Reasonable

jurists would not find this conclusion to{2022 U.S.

Dist. LEXIS 96} be debatable. Accordingly, the Court

will not issue a certificate of appealability.

#

i

The State made the foll<^ng.^^ipit about Rone's

testimony d®i||§ closing:

Now, you heard fr^cj^ne ... and he told you

V. CONCLUSION

that, in his expert opliflljn, that all the shots were

fired from wif#iW|he clt4 and he also -- and he also

For the reasons discussed above, the Court will

deny the instant Petition without an evidentiary

hearing.

car ^4wa^lated in the Passen9er " on the

drived sil^oa^nger seat, that they would have

The Court will issue an Order consistent with this

Memorandum Opinion.

3,1001

XV

ORDER

At Wilmington, this Thirtieth day of September in

2022, for the reasons set forth in the Memorandum

Opinion issued this date;

#

IT IS HEREBY ORDERED that:

3. The Court declines to||sue rfciftificate of

appealability because P^jjion^ias failed to satisfy

the standards set forth inmU.sIs. 2253(cH2L The

■

#/CoWF. Connolly

Chief Judge

Footnotes

1

^

After framing that Rone "did not testify that if

^fHmyon%pther than the shooter had been in the back

%^t gfthe car, that person would have been shot,"

the%&1aware Supreme Court concluded that, "[e]ven

assuming it was not inferable from Rone's testimony

&

that another person in the back seat would have

been shot, [Petitioner] has not pled an ineffective

assistance of counsel claim." Washington, T64 A.3d

56, 2017 Del. LEXIS 182, 2017 WL 1573119, at ‘5.

5

V

1. Petitioner Michael T. Washington's Petition for

Writ of Habeas Corpus Pursuant to 28fH^®Wv„

2254 (D.l. 1; D.l. 69) is DISMISSED, and th%ejlT^v

requested therein is DENIED.

%

2. Petitioner's Motions to Appoint Cb%asel (J|fi . 68;

D.l. 70) and Motions for an Evidentiary Hl^ng (D.l.

67; D.l. 70) are t%JIED.

v

4

See supra at Section III.A.1; see infra at Sections

III.B.2, III.B.4, and n.11.

6

Any attempt by Petitioner to raise these Claims in a

new Rule 61 motion would be barred as untimely

under Delaware Superior Court Criminal Rule 61 (i)(1)

and as successive under Rule 61(i)(2). See Parker v.

Dematteis, 2021 U.S. Dist. LEXIS 157710, 2021 WL

3709733, at ‘6 (D. Del. Aug. 20, 2021). Although Rule

61 provides for an exception to its procedural bars if

a Rule 61 motion "asserts a retroactively applicable

right that is newly recognized after the judgment of

conviction is final," no such right is implicated in the

instant Claims. Similarly, the exceptions to Rule 61

bars contained in Rule 61 (i)(5) and (d)(2) do not

apply to Petitioner's case, because he does not

allege actual innocence, lack of jurisdiction, or that a

new rule of constitutional law applies to Claims

Eight, Nine, Ten (b), Twelve (b) and (c), Thirteen,

Fourteen, Sixteen, Seventeen, Eighteen, Nineteen,

Twenty, Twenty-One (b) and Twenty-Two (a).

7

...

Page 27 of 27

Petitioner asserts that post-conviction counsel

provided ineffective assistance by moving to

withdraw from his Rule 61 proceeding and not

raising these Claims, and also by failing to inform

him that he should raise the prosecutorial

misconduct claims as ineffective assistance of

counsel claims to avoid Rule 61's procedural bars.

(D.l. 1 at 18-23, 26-31; D.l. 29 at 6-7; D.l. 34 at 2-3; D.l.

69 at 16, 20-23; D.l. 72)

8

Petitioner raised Claim Eight in his Memorandum

supporting the initial pro se Rule 61 motion he filed

on March 7, 2012. (D.l. 47-19 at 10) Defense counsel

filed an affidavit responding to the allegations in

Petitioner's March 7, 2012 Rule 61 motion, and

specifically responded to Claim Eight. (D.l. 47-20 at

25-26) Petitioner did not include Claim Eight in the

amended Rule 61 motion he filed after post­

conviction counsel filed a motion to withdraw. See

Washington, 2016 Del. Super. LEXIS 486, 2016 WL

5407852, at *4. Thus, the Court also concludes that

Martinez does not apply to excuse Petitioner's

default of Claim Eight because he knowingly and

intentionally failed to include the Claim for the

Superior Court's consideration. See supra at Section

III.B.1.

9

See

https://www.leqacv.com/us/obituaries/delawafMMin %>.

e/name/peter-letanq-obituarv?id=19008577

10

See Schlup, 513 U.S. at 324; Sawyer, 505 U.S.llt 34041.

>

%

11

#

At the risk of being repetitive, Hfe^wourt again notes

that, at trial, Fields testi||||||MJ||e they were

both at the same prison, P^MonM^d him that he

unintentionally killed Frl^isliMGuy with a MAC-10

in a robbery or drug dealraMv^it wrong and that

"[s]ome lady namM^Aoril" wi^essed the shooting.

(D.l. 47-3 at 85-89)^|e)a||ii;#|?>testified that he saw

Petitioner acciMnta1|^|re a MAC-10 at 930 Spruce

Street a few m||t||hs blfore Francis and Guy were

killed. (D.l. 47^%al||6-il}) Coleman testified that,

while the|§weire ikthe^ame prison, Petitioner told

him that

cis and Guy from the back seat

of a car with a%|AC-10 in a robbery that went wrong,

he disposed of tire MAC10 used in the shooting, and

April Gardner had witnessed the shooting. (D.l. 47-3

at 63-67)

12

Petitioner raises the issue of the alleged

Brady violation as an independent ground for relief

in Claim Twenty-One (a).

13

4

The version of Rule 61(i)(2) that th'^uperior Court

applied to Petitioner's case be^E^&ective in June

2014. Although Petitioner filed his mm^Mirst Rule 61

motion in 2012, he was st||f^H^ending th at Rule 61

motion up until Marchifi, 20|j»J^ee D.l. 47-1 at

Entry No. 140) Since Pl|fcitiofler nil) notice of the

precise parameters of the H^oessive bars under the

post-2014 version o|^Jie61(!)^) while his first Rule

61 motion was stillrbinJpIlM'e'fed and amended the

Court concludesxthaf|Mi' post-2014 version of Rule

61(i)(2) con|piui||d arljmdependent and adequate

--i^as applied to his case.

* 51 Case l:17-cv-00601-CFC Document 94 Filed 08/24/23 Page 1 of 1 PagelD #: 6825

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MICHAEL T. WASHINGTON,

Petitioner,

v.

Civil Action No. 17-601-CFC

ROBERT MAY, Warden, and

ATTORNEY GENERAL OF THE

STATE OF DELAWARE,

Respondents.

ORDER

At Wilmington, this Twenty-fourth day of August in 2023, for the reasons

set forth in the Memorandum issued this date;

IT IS HEREBY ORDERED that:

1. Petitioner Michael T. Washington’s Motion to Alter or Amend Judgment

Pursuant to Fed. R. Civ. P. 59 (D.l. 85) is DENIED.

2. Petitioner’s letter Motions to Appoint Counsel/Conduct an Evidentiary

Hearing (D.l. 84; D.L 91) are DISMISSED as moot.

3. The Court declines to issue a certificate of appealability because

Petitioner has failed to satisfy the standards set forth in 28 U.S.C. § 2253(c)(2). The

Clerk shall close the case.

Colm F. Connolly

Chief Judge

:'«i' £

Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 1 of 11 PagelD #: 6814

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MICHAEL T. WASHINGTON,

Petitioner,

v.

Civil Action No. 17-601-CFC

ROBERT MAY, Warden, and

ATTORNEY GENERAL OF THE

STATE OF DELAWARE,

Respondents.

MEMORANDUM OPINION

Michael T. Washington. Pro Se Petitioner.

August 24, 2023

Wilmington, Delaware

Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 2 of 11 PagelD #: 6815

a

connollt; chief j JdGE:

Pending before the Court is Petitioner Michael T. Washington’s Motion to Alter or

Amend Judgment Pursuant to Fed. R. Civ. P. 59(e) (“Rule 59(e) Motion”), asking the

Court to reconsider its denial of Claim Twenty-One and amend its judgment. (D.l. 85)

Petitioner has also filed two Motions to Appoint Counsel/Conduct an Evidentiary

Hearing. (D.l. 84; D.l. 91) For the reasons discussed, the Court will deny all three

Motions.

I.

BACKGROUND

The Court set forth the factual and procedural history of this case in its

Memorandum Opinion (D.l. 82 at 2-10) and will not repeat it here in full. Nevertheless,

the Court will provide a summary where relevant to the instant Rule 59(e) Motion.

The underlying Petition asserted twenty-three Claims. Since Petitioner’s Rule

59(e) Motion focuses on the Court’s disposition of Claim Twenty-One, the Court will limit

its discussion to that Claim.

Claim Twenty-One asserted the following three subparts: (a) the State committed

a Brady1 violation because State witness Isaiah Fields was the beneficiary of an

undisclosed tacit sentence reduction agreement, the nondisclosure of which Petitioner

claims violated his Sixth and Fourteenth Amendment rights (D.l. 69 at 13-16); (b)

defense counsel was ineffective “for failing to protect and/or raise" the alleged Brady

violation on direct appeal (D.l. 69 at 13-16; D.l. 72 at 2-5); and (e) post-conviction

counsel was ineffective for failing to raise the Brady violation in Petitioner’s first Rule 61

Brady v. Maryland, 373 U.S. 83 (1963).

* Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 3 of 11 PagelD #: 6816

motion (D.l. 69 at 13-16; D.l. 72 at 2-5). The Court denied Claim Twenty-One (a) and

(b) as procedurally barred, and Claim Twenty-One (c) for failing to present an issue

cognizable on federal habeas review. (D.l. 82 at 29-33, 44, 46-47, 53-56, 58,61-66, 68)

II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 59(e) is “a device 0 used to allege legal error,”2

and may only be used to correct manifest errors of law or fact or to present newly

discovered evidence. See Howard Hess Dental Labs, Inc. v. Dentsply Int'l Inc., 602

F.3d 237, 251 (3d Cir. 2010). The scope of a Rule 59(e) motion is extremely limited.

See Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. Dec. 22, 2011); see also

Brambles USA Inc. v. Blocker, 735 F. Supp. 1239,1240 (D. Del. 1990). The moving

party must show one of the following in order to prevail on a Rule 59(e) motion: (1) an

intervening change in the controlling law; (2) the availability of new evidence that was

not available when the court issued its order; or (3) the need to correct a clear error of

law or fact or to prevent a manifest injustice. See Max’s Seafood Cafe v. Quinteros,

176 F.3d 669, 677 (3d Cir. 1999). Although the Third Circuit has “never adopted strict

or precise definitions for 'clear error of law or fact’ and 'manifest injustice’ in the context

of a motion for reconsideration,” at a minimum, a manifest error or injustice is a ‘‘direct,

obvious, or observable error [...] that is of at least some importance to the larger

proceedings." In re Energy Future Holdings Corp., 904 F.3d 298, 312 (3d Cir 2018).

More specifically, when determining whether a decision resulted in a manifest injustice,

a court must focus “on the gravity and overtness of the error.” Id. at 312. Finally, a

2United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003).

2

i —'

r iKi -5

*, Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 4 of 11 PagelD #: 6817

\,

"motion for reconsideration is not to be used as a means to reargue a case or to ask a

court to rethink a decision it has made.” United States v. Kennedy, 2008 WL 4415654,

at *1 (W.D. Pa. Sept. 26, 2008).

III.

DISCUSSION

In its Memorandum Opinion, the Court summarized Petitioner’s assertions in

Claim Twenty-One (a) and (b) as follows: (a) the State committed a Brady violation

because State witness Isaiah Fields was the beneficiary of an undisclosed tacit

sentence reduction agreement, the nondisclosure of which Petitioner claims violated his

Sixth and Fourteenth Amendment rights (D.l. 69 at 13-16); and (b) defense counsel was

ineffective “for failing to protect and/or raise” the alleged Brady violation on direct appeal

(D.l. 69 at 13-16; D.l. 72 at 2-5). (D.l. 82 at 17) After determining that the ineffective

assistance of appellate counsel argument in Claim Twenty-One (b) was procedurally

defaulted due to post-conviction counsel’s failure to include the argument in Petitioner’s

Rule 61 motion, the Court concluded that Martinez v. Ryan’s3 limited exception to the

procedural default doctrine could not be utilized to excuse Petitioner’s default because

the underlying ineffectiveness argument concerned appellate counsel’s actions and not

trial counsel’s actions. (D.l. 82 at 29-33,44) The Court also concluded that Petitioner’s

Brady argument in Claim Twenty-One (a) was procedurally defaulted, and determined

that appellate counsel’s ineffectiveness—Claim Twenty-One (b)—could not constitute

3ln Martinez, the Supreme Court held that inadequate assistance of counsel during an

initial-review state collateral proceeding may (under certain circumstances) establish

cause for a petitioner’s procedural default of a claim of ineffective assistance of trial

counsel. See Martinez v. Ryan, 566 U.S. at 12, 16-17 (2012).

3

; Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 5 of 11 PagelD #: 6818

>

rA •

cause for the default because the ineffective assistance of appellate counsel argument

was itself procedurally defaulted. (D.l. 82 at 65)

Petitioner’s timely filed Rule 59(e) Motion contends that the Court incorrectly

characterized his argument in Claim Twenty-One (b) as asserting that appellate counsel

provided ineffective assistance by failing to present the Brady claim on direct appeal.

Instead, he contends that Claim Twenty-One (b) asserted that trial counsel provided

ineffective assistance by failing to raise or protect the Brady violation, stating:

Petitioner argued in fact [that] Trial Attorney and 1st Post

Conviction Counsel [provided] ineffective assistance of

counsel for failing to present the “Brady” violation on Direct

Review and/or 1st Post Conviction and under the “Martinez”

standard Petitioner should overcome the procedural bar and

this Court should review the (Brady violation Claim 21) to

avoid a miscarriage of justice. Moreso, Petitioner argued in

his (Claim 21) that Trial Counsel and 1st Post Conviction

Counsel both filed Rule 26(c) motions to withdraw and failed

to raise the Brady/Due Process violation on direct review

and/or 1st Post Conviction Motion, and under the “Martinez

Standard" Petitioner showed cause to overcome the

procedural default.

(D.l. 85 at 2-3)

Petitioner’s instant argument fails to demonstrate that the Court incorrectly

construed Claim Twenty-One (b) as alleging an ineffective assistance of appellate

counsel argument rather than an ineffective assistance of trial counsel argument. The

attorneys who represented Petitioner during his trial were the same attorneys who filed

a Rule 26(c) motion to withdraw on the ground that there were no meritorious issues to

raise on appeal. By complaining about trial counsel’s filing of a Rule 26(c) motion to

withdraw and trial counsel’s failure to raise the “Brady/Due Process violation on direct

4

A, Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 6 of 11 PagelD #: 6819

*

-C

review” Petitioner is arguing that the attorneys who represented him on direct appeal—

in other words, appellate counsel—provided ineffective assistance. Therefore, the

Court is not persuaded that Petitioner’s instant assertion warrants reconsideration of the

Court’s denial of Claim Twenty-One (b).

Nevertheless, even if the Court had viewed Claim Twenty-One (b) as asserting

that trial counsel provided ineffective assistance by failing to raise or protect a Brady

violation during Petitioner’s trial, the Court still would have concluded that the underlying

ineffective assistance of trial counsel argument (“IATC”) in Claim Twenty-One (b)

cannot constitute cause for Petitioner’s default of the Brady argument in Claim TwentyOne (a) because the IATC argument does not satisfy Martinez's substantiality standard.

Petitioner contends trial counsel was ineffective for failing to raise or protect the

argument that the State committed a Brady violation by not disclosing at trial that its

witness Isaiah Fields was the beneficiary of a tacit sentence reduction agreement. The

Court discussed Petitioner’s argument concerning the alleged Brady violation/tacit

agreement at length on two occasions in its Opinion: (1) when considering whether

Petitioner’s default of Claim Twenty-One (b) should be excused to prevent a

miscarriage of justice (D.l. 82 at 46-47, 53-56); and (2) when considering whether

Petitioner had presented cause and prejudice to excuse his default of the substantive

Brady argument in Claim Twenty-One (a) under the standard set forth in Strickler v.

Greene, 527 U.S. 263 (1999) (D.l. 82 at 61-66). The following excerpts concerning the

Court’s discussion of both issues demonstrate why Petitioner’s instant IATC claim is not

substantial under Martinez.

5

\ Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 7 of 11 PagelD #: 6820

^

«. v

When addressing whether Petitioner’s contention of a “tacit agreement” triggered

the miscarriage of justice exception to the procedural default doctrine, the Court opined:

Fields testified that, while he and Petitioner were in the same

prison, Petitioner told Fields that he unintentionally killed

Francis and Guy with a MAC-10 in a robbery or drug deal that

went wrong and that “[sjorne lady named April’’ witnessed the

shooting. (D.l. 47-3 at 85-89) Fields also testified that he saw

Petitioner accidentally fire a MAC-10 at 930 Spruce Street a

few months before Francis and Guy were killed. (D.l. 47-3 at

86-88) At the time of his testimony, Fields was incarcerated

and serving a five-year sentence for a first degree assault

conviction.

Approximately two months after Petitioner’s trial and about a

month before Petitioner was sentenced, the State filed a

motion to reduce Fields’s sentence premised on Fields’s

substantial assistance with the State in Washington’s case.

(D.l. 76-8 at 417-420) The State asserted that Fields’s

assistance was worth one year credit on his five year

sentence for Assault. (D.l. 76-8 at 419) On January 18,2011,

the court granted the motion and Fields’s sentence was

reduced from five years to four years. (D.l. 76-8 at 421-423)

As he did in his second Rule 61 motion, Petitioner now argues

that the substantial assistance motion filed by the State after

Petitioner’s trial, along with Fields' reduced sentence,

demonstrates that the State had a tacit agreement with Fields

to provide him with a benefit (reduced sentence) in exchange

for his testimony. (D.l. 69 at 8-23) Petitioner contends that

the State violated Brady by not disclosing the agreement to

him prior to trial, and that the evidence of the tacit agreement

constitutes new evidence of his actual innocence, because he

could have used the alleged deal between Fields and the

State to impeach Fields’ testimony at trial.

Petitioner’s proffered evidence of a "tacit agreement" between

the State and Fields does not constitute new reliable evidence

of Petitioner's factual innocence. First, the evidence is not

"new” because the instant argument was available to

Petitioner at the time of his direct appeal and his first Rule 61

motion, given that the substantial assistance motion was filed

prior to Petitioner's direct appeal. Second, Petitioner does not

6

fk

Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 8 of 11 PagelD #: 6821

provide, and nothing in the record indicates, that there was a

substantial assistance agreement between Fields and the

State at the time of his testimony. When he testified, Fields

explained that he was incarcerated and serving a five-year

sentence, and he testified that no agreement had been

worked out in exchange for his testimony. (D.l 47-3 at 85,

88) He also responded “[yjes," when asked whether he

“want[ed] to be here today" to testify. (D.l. 47-3 at 88) On

cross-examination, Fields explained that he was testifying to

“help solve” the homicide and stated that he "ain’t getting

nothing out of it" and that he was not protecting anyone else.

(D.l. 47-3 at 90) He asserted that he came forward to

investigators because he “wanted to help the situation.” (D.l.

47-3 at 91) Defense counsel attacked Fields’s credibility on

cross-examination and in closing. (D.l. 47-3 at 88-91, 292302)

Third, prior to Fields’ testimony, during discussions with the

Superior Court about the relevancy of the defense's line of

questioning for another witness, the State made the

statement:

Has Isaiah Field[s] asked for a break? No, he

wasn’t smart enough to do that beforehand. He

pled to a five-year min/man, and there’s not a

whole lot I can do about that and I told him that.

(D.l. 47-3 at 45) During closing arguments, the State also

asserted, “Isaiah Fields, he didn’t ask for a deal. He’s serving

5 years for an Assault Second. Told you, ‘I didn’t get a deal.’”

(D.l. 47-3 at 305) In fact, Fields’ former counsel provided a

statement that he had “no recollection of any involvement in

any substantial assistance motion for [Fields] or any request

for same." (D.l. 76-8 at 428) In sum, viewing the foregoing

circumstances together demonstrates that Petitioner has

failed to demonstrate the existence of a substantial assistance

agreement.

(D.l. 82 at 53-55)

7

/, Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 9 of 11 PagelD #: 6822

* ' <:

When addressing whether Petitioner established cause and prejudice under

Stickler to excuse his default of the Brady argument in Claim Twenty-One (a), the Court

opined:

In the context of procedural default, "cause and prejudice

parallel two of the three components of the alleged Brady

violation itself.” Stickler, 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 “materiar under Brady, the

petitioner is unable to demonstrate “sufficient prejudice to

overcome the procedural default.” Id. Therefore, if Petitioner

establishes that the State suppressed evidence and that the

evidence was material, he will also establish cause and

prejudice to excuse his procedural default of Claim TwentyOne (a).

As the Court has previously discussed at length with respect

to Petitioner’s actual innocence argument, Petitioner has not

established that the State suppressed evidence of a tacit

agreement with Fields, primarily because there is no evidence

that such an agreement existed. See supra Section III.B.4;

see also Washington, 2021 WL 5232259, at *7, affd, 2022 WL

1041267, at ‘1.

In sum, Petitioner has failed to establish cause for his

procedural default because he can show neither that the State

suppressed evidence, nor that the evidence was material.

(D.l. 82 at 64-65)

It is well settled that trial counsel does not provide ineffective assistance by

failing to raise meritless objections and/or arguments. See United States v. Sanders,

165 F.3d 248, 253 (3d Cir. 1999). As the Court determined in its Memorandum Opinion,

there is no evidence that a sentence reduction agreement existed between the State

and Fields, tacit or otherwise, at the time of trial. Consequently, there was no basis for

8

; . Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 10 of 11 PagelD #: 6823

trial counsel to protect or raise the issue of Brady violation premised on a nonexistent

sentence reduction agreement. Therefore, Petitioner's instant IATC argument does not

satisfy Martinez's substantiality standard.

In sum, even if Claim Twenty-One (b) alleges that trial counsel—and not

appellate counsel—provided ineffective assistance by failing to present or protect the

Brady argument in Claim Twenty-One (b), Martinez cannot be applied to excuse post­

conviction counsel's failure to present Claim Twenty-One (b) in Petitioner’s Rule 61

proceeding because the underlying IATC argument is not substantial. Given this

determination, Claim Twenty-One (b) is procedurally barred, which means that trial

counsel’s alleged failure to present or protect the Brady argument cannot excuse

Petitioner’s default of the Brady argument in Claim Twenty-One (a). Accordingly,

Petitioner’s Rule 59(e) motion does not warrant reconsideration the Court’s denial of

Claim Twenty-One (a) or (b).

IV.

PENDING MOTIONS

Petitioner has also filed two letter Motions to Appoint Counsel/Conduct an

Evidentiary Hearing. (D.l. 84; D.l. 91) Having concluded that the instant Rule 59(e)

Motion does not warrant reconsideration of the Court’s denial of Claim Twenty-One (a)

and (b), the Court will deny the instant Motions as moot.

V.

CONCLUSION

For the aforementioned reasons, the Court will deny the instant Rule 59(e)

Motion (D.l. 85) and dismiss as moot Petitioner’s Motions to Appoint Counsel/Conduct

an Evidentiary Hearing. (D.l. 84; D.l. 91) The Court also declines to issue a certificate

9

*/’* ^ Case l:17-cv-00601-CFC Document 93 Filed 08/24/23 Page 11 of 11 PagelD #: 6824

♦ * *.

t

of appealability, because Petitioner has failed to make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see United States v. Eyer, 113

F.3d 470 (3d Cir. 1997); 3d Cir. LAR 22.2 (2011).

The Court will issue an Order consistent with this Memorandum.

10

i*-

Case l:17-cv-00601-CFC Document 100 Filed 04/11/24 Page 1 of 3 PagelD #: 6990

%

'■/

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

MICHAEL T. WASHINGTON,

Petitioner,

v.

)

)

)

)

)

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Civil Action No. 17-601-CFC

DANA METZGER, Warden

and ATTORNEY GENERAL OF )

THE STATE OF DELAWARE,

)

Respondents.

)

)

ORDER

WHEREAS, on September 30,2022, the Court denied Petitioner's § 2254

Petition and declined to grant a certificate of appealability (D.l. 82; D.l. 83); and

WHEREAS, on August 24,2023, the Court denied Petitioner's R

Motion to Alter or Amend Judgment and declined to

ule 59(e)

grant a certificate of appealability

(D.l. 93; D.l. 94); and

WHEREAS, on September 22,2023, Petitioner filed a document

captioned for this Court that was titled “

Notice of Appeal” (D.l. 96 at 1) along with an

additional document captioned for this Court and titled “

Application for Issuance of a

Certificate of Appealability” (D.l, 96-2); and

WHEREAS, the Notice of Appeal and Application for Issuance of a

Certificate of Appealability were forwarded to the Court

Appeal (see D.l. 96); and

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of Appeals as a Notice of

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base l:17-cv-00601-CFC Document 100 Filed 04/11/24 Page 2 of 3 PagelD #: 6991

WHEREAS, on September 29, 2023, Petitioner filed a “Motion to Stay

Proceedings on Certificate of Appealability” (D.l. 98) asking the Court to refrain from

ruling on the aforementioned Application for Issuance of Certificate of Appealability (D.l.

96-2) because he intends to file a Rule 60(b) Motion "after the final judgment or order of

its Rule 59 Motion and/or 2254 Habeas Petition" (see D.l. 98 at

6); and

WHEREAS, on October 16, 2023, Petitioner filed in the Court of Appeals

for the Third Circuit an application for certificate of appealability captioned for the Third

Circuit. Aside from the caption, the application for certificate of appealability filed in the

Third Circuit was identical to the September 22, 2023 Application for Issuance of

Certificate of Appealability Petitioner filed in this Court (D.l. 96-2) (see D.l. 6-3 in

Washington v. Warden, C.A. No. 23-2756 (3d Cir. Oct. 16, 2023)); and

WHEREAS, on February 7, 2024, the Third Circuit denied Petitioner’s

application for certificate of appealability and terminated his appeal, noting that its

“decision is without prejudice to [Petitioner’s] ability to file in the District Court his

apparently desired motion under Federal Rule of Civil Procedure 60(b)" (D.l. 99).

NOW THEREFORE, at Wilmington this

day of April, 2024, IT IS

HEREBY ORDERED that:

1. To the extent Petitioner’s Application for Issuance of Certificate of

Appealability (D.l. 96-2) should be construed as asking the Court to reconsider its

original decision to decline granting a certificate appealability from the denial of

Petitioner s Petition (see D.l. 96-2 at 1-4), the request for reconsideration is DENIED for

2

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oase l:17-cv-00601-CFC Document 100 Filed 04/11/24 Page 3 of 3 PagelD #: 6§g2

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the same reasons provided in the Court’s Memorandum Opinion and Order dated

September 30, 2022 (see D.l. 82 at 72; D.l. 83).

2

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Petition for Writ of Certiorari — Michael T. Washington, Petitioner v. Brian Emig, Warden, et al. | Frix