IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
)
v. ) I.D. No. 1206001558
)
)
ONEILL ROSE, )
)
Defendant. )
Memorandum Opinion
Presently before the court is Defendant’s motion for post
conviction relief ostensibly filed on June 20, 2014. In that motion
Defendant did not assert any claims for relief. Instead he stated
that “Movant cannot discern substantial grounds for relief. Movant
speaks broken (Jamaica origin) English and does not read English
well.” According to Defendant, his grounds for relief were “to be
determined by postconviction counsel.” The court appointed
Patrick Collins, Esq., who enlisted the aid of his colleague Albert
Roop Esq., to represent Mr. Rose in connection with his motion.
Appointed counsel conducted a thorough review of the record for
which the court is grateful. Post-conviction counsel have now
moved to withdraw, and their motion is accompanied by an
1
extensive written submission in which they identified two potential
claims of ineffective assistance of counsel. They concluded,
however, that the potential claims “cannot be ethically advocated
because constitutional prejudice cannot be established.” Defendant
later submitted a pro se list of contentions which, he claims, entitle
him to relief.
A. Background
Defendant was charged with multiple crimes as a result of a
non-fatal shooting of one April Harris at the Karribean Delight
Restaurant on Route 13 in Wilmington. A jury convicted Defendant
of Attempted Assault first degree, Assault first degree, three counts
of Reckless Endangering first degree and several firearms violations.
This court sentenced him to 39 years at Level 5 but later modified
his sentence to 25 years at Level 5. On direct appeal the Delaware
Supreme Court reversed the conviction for Attempted Assault first
degree and the related weapons charge, but affirmed Defendant’s
other convictions.
2
The facts giving rise to Rose’s case were well summarized by
the Supreme Court in its opinion on his direct appeal:
Rose was involved in a shooting that took
place on June 2, 2012, in a restaurant in New
Castle, Delaware. Venus Cherry, who had once
been Rose's friend but was not at the time, saw
Rose at the restaurant. Rose lifted his shirt to
show the gun in his waistband. Later, Cherry
saw Rose in a “tussle” with a man named
Trini. After Cherry intervened, Rose started
walking toward Cherry with his loaded gun
pointed at him. Cherry told Rose that if he was
going to shoot, he should go ahead and do it.
Ferron Nelson, a man who was nearby,
separated Rose and Cherry, and told Rose to
put the gun in his car. Rose started to walk
away, but then turned and ran after Cherry,
who started running toward a car owned by
Natalee Chambers. The two men faced off at
the back of the car. Rose pointed his gun at
Cherry's face. Cherry hit Rose in the arm, and
the gun fired. Cherry then punched Rose in
the face, and Rose dropped the gun. While
Cherry and Rose were running toward
Chambers' car, April Harris was putting her
daughter into that car. Harris was in the car
when she heard a pop and felt a tingling in her
arm. She had been shot. 1
1 Rose v. State, 2014 WL 1258271, at *1 (Del.)(paragraph numbers omitted).
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B. Analysis
The court will first consider Defendant’s pro se submission
and then consider the submission by his court-appointed post-
conviction counsel
1. Rose’s pro se submission
Rose has submitted several sketchy claims to supplement the
submission by his appointed post-conviction counsel. All but one
of those claims is procedurally barred, and the remaining claim
lacks merit.
In his pro se Rule 61 submission Rose argues:
(1) Is the victim April Harry did victim what
the State use for is not Harry.
(2) My lawyer was ineffective he did not do
anything to help me.
(3) Owner of the Caribbean Delight the State
use him has Gairy Brown and his name is
Garay Kenneth.
(4) I did not own a gun.
(5) My girlfriend own the gun she told the
police I have paperwork to prove it.
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(6) I was wearing green and black polo shirt
and black dress pants with black dress shoes
black belt.
a. Most of Rose’s pro se claims are procedurally
barred.
The court is obliged to determine if a Rule 61 motion is
procedurally barred before it considers the motion’s merits.
Criminal Rule 61(i)(3) does not allow this court to consider
arguments that should have previously been raised. That portion
of the rule prohibits consideration of:
Any ground for relief that was not asserted in
the proceedings leading to the judgment of
conviction, as required by the rules of this
court, is thereafter barred, unless the movant
shows
(A) Cause for relief from the procedural default
and
(B) Prejudice from violation of the movant's
rights.
Rose’s argument 1, 3, 4, 5 and 6 could have been presented at trial
and therefore he is precluded from raising them now. His motion
does not specify any cause for his failure to raise them nor does it
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show any prejudice resulting from the failure to raise them. With
respect to the lack of prejudice, the court finds:
• The court does not understand Ground 1 listed above. It
has read Rose’s entire submittal, and the remainder of
that submittal sheds no light on what he means in
Ground 1.
• With respect to ground 3 (the State had the name of the
owner of the Karibbean Delight wrong) the court holds
that the owner’s name is immaterial to the charges
against Rose and therefore any mistake over his name is
not prejudicial.
• With respect to Grounds 4 and 5 (Rose did not own the
gun) ownership of the gun is not material. Rather
possession of the gun is the material issue. Consequently
any failure to raise questions about the ownership of the
gun would not be prejudicial.
• Turning to Ground 6 (the clothing Rose was wearing), the
court does not understand what significance Rose
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attaches to this. If he is contending that he was
misidentified at trial, he has not made a showing of
prejudice because the witnesses who saw the events
mostly knew Rose personally and did not identify him by
the clothing he was wearing.
In addition to the exceptions imbedded within Rule 61(i)(3),
the Rule provides an exception to the procedural bars when a
defendant “pleads with particularity that new evidence exists that
creates a strong inference that the movant is actually innocent in
fact of the acts underlying the charges of which he was convicted.”2
Nowhere does Rose point to any such evidence, and therefore this
exception does not save his claim. Accordingly Rose’s claims 1, 3,
4, 5 and 6 are procedurally barred.
2 Criminal Rule 61(d)(2)(i). This provision, which relates to second or successive petitions, is
incorporated in Rule 61(i).
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b. The remaining claim lacks merit because Rose has
not pled ineffective assistance of counsel or prejudice
with sufficient particularity.
Rose raises an ineffective assistance of counsel claim in part 2
listed above. Unlike his other claims, his ineffective assistance of
counsel claim could not have been raised at trial, and therefore it is
not barred by Rule 61(i)(3). The court will therefore reach the
merits.
It is settled that in order to make out an ineffective assistance
of counsel claim a defendant must show two things: (1) the
performance of his or her counsel fell below an objective standard of
reasonableness and (2) but for counsel’s substandard performance
there likely would have been a different result. The reasons why
the representation was substandard and the reasons why prejudice
emanates from that performance must be pled with particularity.
Conclusory allegations to the effect that “my counsel was
ineffective” do not suffice. According to the Supreme Court,
Claims premised upon ineffective
assistance of counsel face a familiar burden.
Under Strickland v. Washington, Brooks must
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satisfy [a] two pronged test. First, a convicted
defendant must show that counsel's
representation “fell below an objective
standard of reasonableness.” Second, a
convicted defendant must demonstrate
prejudice. To show prejudice, the defendant
must show that the proceeding's outcome
would have been different had counsel not
committed the challenged errors. When
making this showing, the defendant must
overcome “a strong presumption that the
representation was professionally reasonable.”
The defendant must also make a concrete
showing of actual prejudice.3
The operation of these principles is illustrated in the Supreme
Court’s opinion in Vickers v. State, 4 wherein the Court wrote:
Vickers claims that his defense counsel
was ineffective because she did not: (i) pursue
a claim of insufficient evidence; (ii) conduct a
sufficient investigation of the facts; (iii)
interview or cross-examine witnesses; (iv) call
available defense witnesses to testify; (v) object
to false statements by the prosecutor; and (vi)
request a continuance. To succeed on a claim
of ineffective assistance of counsel, Vickers
must demonstrate that (i) “counsel's
representation fell below an objective standard
of reasonableness[,]” and (ii) “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different.”
3 Brooks v. State, 40 A.3d 346, 354 (Del. 2012)(internal footnotes omitted).
4 2000 WL 140108 (Del.).
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We agree with the Superior Court that
Vickers' allegations of ineffective assistance of
counsel are conclusory and warranted
summary dismissal of his ineffective
assistance of counsel claim. Vickers'
conclusory allegations are contradicted and/or
denied by his counsel's sworn Rule 61(g)(2)
affidavit. Furthermore, Vickers has provided
no support for the claim that his counsel's
representation fell below an objective standard
of reasonableness and that the alleged errors
were prejudicial to Vickers' defense.
It is manifest on the face of Vickers'
opening brief that the appeal is without merit.
The issues raised are clearly controlled by
settled Delaware law, and to the extent the
issues on appeal implicate the exercise of
judicial discretion, there was no abuse of
discretion 5
In the instant case Rose’s allegations are even less precise
than those found to be inadequate in Vickers. Rose simply alleges
that “[m]y lawyer was ineffective he did not do anything to help me.”
This does not even remotely approach the threshold for pleading
with particularity substandard performance and prejudice. To the
extent that Rose’s remaining allegations might be construed as an
attempt to support his ineffective assistance of counsel claim, they
5 Id. at *2 (internal footnotes and paragraph numbers omitted).
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are insufficient because, as discussed in part B(1)(a) above, they do
not make out a claim of prejudice.
2. Appointed counsels’ submission
Appointed post-conviction counsel identified two “potential”
ineffective assistance of counsel claims. The first is that trial
counsel was ineffective because he did not move to sever the
possession of a firearm by a person prohibited charges. The second
is that trial counsel did not oppose the State’s motion in limine to
admit evidence of prior altercations between him and Venus Cherry.
Appointed post-conviction counsel advised the court that they could
not ethically present either of these arguments because they could
not in good faith argue that Rose suffered the prejudice necessary
to establish an ineffective assistance of counsel claim. The court
agrees with appointed post-conviction counsel.
(a) Trial counsel’s failure to move to sever certain charges
Appointed post-conviction counsel postulates that Rose could
argue that his trial counsel was ineffective because he ostensibly
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failed to move to sever person-prohibited charges against him. The
concern with person-prohibited charges is that if the jury becomes
aware of a previous felony committed by the defendant (which
makes the defendant a “person prohibited”), “the jury may convict
him of the other charges based solely on his previous criminal
history.” 6 Trial counsel did, in fact, address the person-prohibited
charges in advance of trial by stipulating that defendant was a
person prohibited. The court agrees, therefore, that there is no
reason to believe that the outcome would have been different if trial
counsel had chosen some other tack. The Delaware Supreme Court
recently reached a similar conclusion in Wheeler v. State, writing:
Even if stipulating to Wheeler's person
prohibited status rather than filing a motion to
sever was professionally unreasonable,
Wheeler has not shown that there is a
reasonable probability that, but for the
supposed error, the outcome of the trial would
have been different. 7
Appointed post-conviction counsel also theorized that trial counsel
could have opposed the State’s motion in limine to admit evidence of
6 Johnson v. State, 5 A.3d 617, 622 (Del. 2010).
7 Wheeler v. State, 2015 WL 6150936 (Del).
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prior altercations between Rose and Venus Cherry. Appointed
counsel points out, however, that the lack of opposition very likely
did not cause prejudice to Rose because the court would have still
admitted the statements over his objection. The evidence in
question related to an incident about one year prior to these events
in which Rose picked up a brick or bottle and then pulled a knife
during an altercation with Cherry stemming from a dispute over a
domino game. The second was a fight between Rose and Cherry
taking place not long before the crime in this case. Appointed post-
conviction counsel correctly notes that, applying Getz v. State, 8
evidence of these two incidents would likely have been admitted for
the purpose of showing motive, identity and intent.
Wherefore, Rose’s claims 1, 3, 4, 5 and 6 are DISMISSED
because they are procedurally barred. Claim 2 is DENIED. Defense
Counsel’s Motion to Withdraw is GRANTED.
8 538 A.2d 726 (Del. 1988).
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January 28, 2016 John A. Parkins, Jr.
Superior Court Judge
oc: Prothonotary
cc: Patrick J. Collins, Esquire, Albert J. Roop, V, Esquire, Collins & Roop,
Wilmington, Delaware
Periann Doko, Department of Justice, Wilmington, Delaware
Oneil Rose, SBI 00511629, JTVCC, Smyrna, Delaware
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