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
'l
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
'
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.
)
)
)
)
)
)
)
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
\
of Appeals as a Notice of
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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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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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