IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) No. 1604008485A
)
DWAYNE DUNNELL, )
)
Defendant )
Submitted: January 14, 2021
Decided: April 30, 2021
Upon Defendant’s Motion for Postconviction Relief – Denied
Upon Postconviction Counsel’s Motion to Withdraw – Granted
ORDER
The defendant was indicted for various drug and firearm charges after a
confidential informant tipped off the police and participated in two controlled
purchases of heroin. On both occasions, the informant arranged the sale with the
defendant and then obtained the heroin from the defendant’s cousin at their shared
residence. Search warrants executed on that residence and the defendant’s vehicle
revealed over three thousand bags of heroin, a firearm, ammunition, and five cell
phones. The defendant’s trial counsel filed several pre-trial motions concerning the
evidence, all of which were denied. After a four-day jury trial, the defendant was
convicted of drug dealing, drug possession, and conspiracy, but was acquitted of all
the firearm charges. The defendant then appealed his convictions, first by moving
for a judgment of acquittal, then by appealing directly to the Delaware Supreme
1
Court. After his convictions were affirmed on appeal, the defendant moved for
postconviction relief. The defendant asserts eighteen grounds for relief, all of which
relate to the allegedly ineffective assistance provided by his trial and appellate
counsel. The defendant’s claims primarily focus on arguments or motions he
believes counsel should have raised. Because the defendant’s claims fail to satisfy
the requirements of an ineffective assistance claim or are barred procedurally, the
defendant’s motion is denied.
FACTUAL & PROCEDURAL BACKGROUND
A. Initial Investigation & Defendant’s Arrest
1. In 2016, a confidential informant (“C.I.”) advised Detective Bruhn of
the New Castle County Drug Control Unit that a man going by the name “Buck”
was selling heroin. The C.I. provided two phone numbers for “Buck,” and Detective
Bruhn determined through further investigation that “Buck” was a nickname for
Defendant Dwayne Dunnell (“Defendant”). The C.I. also reviewed a photo of
Defendant and positively identified him as “Buck.”
2. In the week of April 4, 2016, the New Castle County Police Department
(“NCCPD”) had the same C.I. arrange a heroin purchase with “Buck.” The C.I.
called “Buck” in the presence of NCCPD to arrange the purchase, then went to a
residence located at 24 Gull Turn in Newark, Delaware to purchase heroin from a
person known as “Dreads.” NCCPD determined that Defendant’s cousin, Kyle
2
Dunnell, listed 24 Gull Turn as his address and showed the C.I. a picture of Kyle,1
whom the C.I. identified as “Dreads.” NCCPD used the C.I. to purchase heroin from
24 Gull Turn again during the week of April 11, 2016. As with the first purchase,
the C.I. called “Buck” to arrange the transaction and purchased the heroin from
“Dreads.”
3. On April 12, 2016, the investigating officers applied for and were
granted a search warrant for 24 Gull Turn. The next day, on April 13, 2016, police
executed the search warrant. Kyle Dunnell and Defendant were at the residence
when the warrant was executed. Although no contraband was found on Kyle or
Defendant, police found 3,488 bags of heroin, a loaded handgun, and a loaded
extended magazine in a safe in the laundry room. Police found the key for the safe
in the pocket of a pair of Kyle’s pants.
4. Officers also found a bag of pink glassine baggies in the kitchen of the
home, a pay stub with Defendant’s name on it in the laundry room, and shotgun
shells in the laundry room and hall closet. The police also found $371.00 in cash
and two cell phones in Defendant’s bedroom. Two more cell phones were found in
Kyle’s room, and another digital scale was located in a spare bedroom.
5. NCCPD obtained search warrants for a silver Lexus parked in the
driveway of 24 Gull Turn and a Jeep Grand Cherokee that was parked across the
1
The Court refers to Kyle Dunnell by his first name for clarity. No disrespect is intended.
3
street. Police found a fifth phone, an Alcatel flip phone, inside the silver Lexus.
Defendant told NCCPD Detective Eugene Giallombardo that everything in the car
was his, and Defendant later did not deny the Alcatel flip phone was his when the
Detective Giallombardo described the car’s contents during Defendant’s interview.
Police obtained search warrants for all the cell phones. One text message, sent from
the Alcatel flip phone at 2:54 am on March 12, 2016, read “King Kong.” Some of
the heroin found in the safe was stamped with “King Kong.”
6. A grand jury indicted Defendant for Drug Dealing in Heroin (Tier 4),
Aggravated Possession of Heroin (Tier 5), Conspiracy Second Degree, Possession
of a Firearm During the Commission of a Felony, Possession of a Firearm while in
Possession of a Controlled Substance, Possession of Drug Paraphernalia, Possession
of a Firearm by a Person Prohibited (PFBPP), and Possession of Ammunition by a
Person Prohibited (PABPP).2
B. Trial & Conviction
7. Defendant was represented at trial by John S. Malik, Esquire (“Trial
Counsel”). Trial Counsel filed several pre-trial motions. First, Trial Counsel filed
a motion to compel the production of Brady materials. In that motion, Trial Counsel
sought to obtain the C.I.’s identity, arguing it was exculpatory Brady material
2
The PFBPP and PABPP charges were severed into a “B” trial, which was presented
immediately after the jury concluded its deliberations in the “A” trial. The jury found Dunnell
not guilty of both charges in the B case.
4
because the information would confirm Defendant did not sell drugs to the C.I. and
was not present at the transaction. Trial Counsel also filed a motion to suppress
evidence seized from Defendant’s Lexus on the ground that the affidavit supporting
the warrant failed to establish probable cause because the C.I.’s tip was unreliable,
and the K-9 sniff contradicted the C.I.’s tip. Finally, Trial Counsel filed a motion in
limine to exclude the text message evidence found on the cell phones NCCPD
seized. Trial Counsel argued the text messages should be excluded because (i) they
were not properly authenticated; (ii) the text messages constituted inadmissible
hearsay evidence; and (iii) the probative value of the messages substantially was
outweighed by the danger of unfair prejudice. The Court denied all three pre-trial
motions.
8. At trial, Alia Harris, a forensic chemist, testified that forensic testing
performed on the substance found in the safe confirmed it was heroin with a total
weight of 17.27 grams. NCCPD Detective Darryl Santry testified regarding text
messages that were found on the four cell phones retrieved during the search of the
residence. Detective Vincent Jordan of the Wilmington Police Department offered
his expert opinion that the heroin found in the safe was not for personal use.
Detective Jordan offered several reasons for this conclusion. For example, he
testified it is not typical for drug users to possess such a large amount of heroin.
Furthermore, he testified drug dealers commonly will have a firearm located near
5
their drug supply. Detective Jordan also opined that drug users do not typically have
large sums of money, that drug dealers often do have such sums, and that drug
dealers frequently have one cell phone for personal use and additional cell phones
for business. Detective Jordan also compared the text messages found on Kyle’s
phone with those on the two phones found in Defendant’s bedroom and concluded
that Kyle and Defendant were working together to sell drugs. The Detective opined
Defendant possessed more than three thousand bags of heroin with the intent to
deliver it, and Defendant and Kyle were working together to sell drugs.
9. On March 3, 2017, after a four-day trial, the jury convicted Defendant
of Drug Dealing in Heroin (Tier 4), Aggravated Possession of Heroin (Tier 5), and
Conspiracy Second Degree. Those charges stemmed from the drugs that police
officers located in a safe found in the laundry room of the home where Defendant
lived with his cousin. The jury found Defendant not guilty of charges relating to the
firearm and drug paraphernalia also found in the safe and home during the search.
On September 8, 2017, this Court denied Defendant’s Motion for Judgment of
Acquittal. The Court then sentenced Defendant, effective April 13, 2016, to a total
of nine years at Level V, suspended after seven years for probation.
C. Direct Appeal
10. On appeal, Defendant was represented by Nicole M. Walker, Esquire
(“Appellate Counsel”). Appellate Counsel filed the appeal on May 22, 2018, raising
6
four arguments: (i) the State failed to prove constructive possession of the
contraband found within the safe; (ii) the Court erred in admitting the text message
evidence because it lacked proper authentication; (iii) the Court erred by failing to
provide a limiting instruction to the jury for its consideration of the text message
evidence; and (iv) the cumulative effect of these errors deprived Defendant of a fair
trial. On November 2, 2018, the Delaware Supreme Court affirmed Defendant’s
convictions.3
11. Defendant filed a pro se Motion for Postconviction Relief (the
“Motion”) on April 8, 2019 and subsequently filed several addenda to the Motion
adding new grounds for relief.4 On April 17, 2019, the Court appointed counsel to
represent Defendant for purposes of seeking postconviction relief (“Postconviction
Counsel”).5 On December 19, 2019, Postconviction Counsel moved to withdraw
under Rule 61(e)(7), stating he thoroughly had investigated Defendant’s case and
determined no claims for postconviction relief ethically could be advocated.6 The
parties fully briefed the matter, including the State’s response, affidavits from Trial
3
Dunnell v. State, 2018 WL 5782851 (Del. Nov. 2, 2018).
4
See generally Def.’s Mot.; Addendum to Def.’s Mot., D.I. 127; Addendum to Def.’s Mot., D.I.
132; Addendum to Def.’s Mot., D.I. 133; Addendum to Def.’s Mot., D.I. 143; Addendum to
Def.’s Mot., D.I. 161; Addendum to Def.’s Mot., D.I. 163.
5
Order Appointing Counsel, D.I. 128.
6
Postconviction Counsel’s Mot., D.I. 148. The addenda advancing grounds 17 and 18 were filed
after Postconviction Counsel’s motion to withdraw and therefore were not addressed in the
motion, but the merits of those claims are considered and rejected herein.
7
and Appellate Counsel, and Defendant’s responses to Postconviction Counsel’s
motion to withdraw.7
PARTIES’ CONTENTIONS
A. Defendant
12. Defendant’s motion and addenda assert eighteen grounds for relief that
primarily are focused on alleged ineffective assistance by his Trial and Appellate
Counsel.
i. Ground 1: Trial Counsel’s Failure to Object to an Abuse of
Discretion.
13. Defendant asserts Trial Counsel was ineffective for failing to object to
the Court’s admission of various text messages.8 According to Defendant, Trial
Counsel should have argued that the requirements for the applicable hearsay
exception were not met and should have sought a limiting instruction.9 Defendant
also argues admission of the text message evidence violated the Confrontation Clause
in the Sixth Amendment to the United States Constitution.
7
See generally Def.’s Mot.; State’s Resp.; Trial Counsel’s Aff.; Appellate Counsel’s Aff.;
Addendum to Def.’s Mot., D.I. 127; Addendum to Def.’s Mot., D.I. 132; Addendum to Def.’s
Mot., D.I. 133; Addendum to Def.’s Mot., D.I. 143; Addendum to Def.’s Mot., D.I. 161;
Addendum to Def.’s Mot., D.I. 163.
8
Def.’s Mot. at 1.
9
Id.
8
ii. Ground 2: Trial Counsel’s Acquiescence with the State
14. Defendant also alleges Trial Counsel “acquiesced” with the State. On
August 15, 2016, a hearing was held before a Superior Court Commissioner
concerning Defendant’s motion to compel the State to identify the C.I.10 The
Commissioner originally concluded a Flowers hearing was appropriate, but three
days later the Commissioner denied the motion to compel, concluding the C.I.’s
identity would not materially aid the defense.11 Defendant alleges Trial Counsel must
have had a conversation with the State that led the Commissioner to deny the motion
after originally concluding a Flowers hearing was warranted.12
iii. Ground 3: Trial Counsel’s Failure to Investigate
15. During discovery, the State gave Defendant a supplemental police
report containing the names of the declarants associated with the incoming text
messages from the phones.13 Defendant alleges he asked Trial Counsel to contact
these declarants, but Trial Counsel failed to do so. Defendant theorizes these
individuals could have testified on his behalf.14
10
Id. at 2.
11
Id.
12
Id.
13
Id.
14
Id.
9
iv. Ground 4: Trial Counsel’s Failure to Move to Suppress
16. Defendant argues Trial Counsel was ineffective for failing to move to
suppress the text message evidence obtained from the cell phones.15 Defendant
maintains the warrants for the phones were not supported by sufficient probable cause
because the affidavits did not establish a sufficient nexus between the alleged crimes
and the cell phones.16 Further, Defendant asserts the warrant was overly broad.17
Defendant also argues the warrants for the phones only were drafted to identify a
possible owner of the phones, and the text messages extracted from the phones
therefore were obtained illegally.18 Defendant further alleges the warrant for the
Alcatel phone was unconstitutional because it did not contain any temporal
limitation.19 Defendant maintains that, had Trial Counsel moved to suppress the text
message evidence, the State would not have been able to move forward with trial.20
v. Ground 5: Trial Counsel’s Failure to Object
17. Defendant argues Trial Counsel should have objected to the admission
of the seized drugs because the State did not establish the chain of custody. 21 The
drugs were not in the courthouse on the morning of trial.22 The State explained to the
15
Id. at 3.
16
Id.
17
Id.
18
Addendum to Def.’s Mot., D.I. 127 (Ground 4).
19
Id.
20
Id.
21
Def.’s Mot. at 3-4.
22
Id. at 3.
10
Court that the evidence was either at a forensic lab or at NCCPD.23 Defendant
maintains Trial Counsel should have raised a chain of custody objection to determine
the location of the misplaced evidence.24
vi. Ground 6: Trial Counsel’s Failure to Impeach a Witness
18. Defendant maintains Trial Counsel should have impeached the
testimony of forensic chemist Alia Harris because it contained several
inconsistencies.25 At trial, Ms. Harris provided the formula by which she calculated
the total weight of the drug evidence.26 Defendant alleges he later reviewed the
litigation packet, applied the formula himself, and reached a weight that was 4.26
grams less than Ms. Harris’s calculation.27 Defendant argues Ms. Harris’s work was
compromised such that the accuracy of the drug’s total weight was unknown.28
Defendant therefore maintains that, had Trial Counsel reviewed the litigation packet
and impeached Ms. Harris’s testimony, the outcome of trial or sentencing may have
been different.29
23
Id.
24
Id.
25
Id. at 4-5.
26
Id. at 4.
27
Id.
28
Id. at 5.
29
Id.
11
vii. Ground 7: Trial Counsel’s Failure to Raise a Defense
19. Defendant argues Trial Counsel also was ineffective for failing to call
as a witness a particular individual who authored one of the incoming text messages.30
Defendant alleges an author of one of the incoming text messages was listed as a trial
witness and appeared in the courthouse, but then refused to testify after Trial Counsel
advised the witness he would be taken into custody and charged if he testified.31
Defendant argues this witness’s testimony was important and would have
contradicted the State’s characterization of the text messages.32
viii. Ground 8: Appellate Counsel’s Failure to Appeal the Motion in
Limine
20. Defendant asserts Appellate Counsel should have appealed the Superior
Court’s denial of Defendant’s motion in limine.33
ix. Ground 9: Appellate Counsel’s Failure to Appeal the Motion to
Suppress
21. Defendant argues Appellate Counsel should have appealed the Superior
Court’s decision denying the motion to suppress the Alcatel flip phone found during
the police’s search of the Lexus.34 Defendant argues the suppression issue should
30
Id. at 5-6.
31
Id. at 6.
32
Id.
33
Id.
34
Id. at 6-7.
12
have been raised on direct appeal because the warrant for the Lexus was insufficient
since the C.I.’s information never was corroborated.35
x. Ground 10: Appellate Counsel’s Failure to Investigate
22. Defendant alleges Appellate Counsel failed to investigate adequately
the text messages’ hearsay issue and incorrectly challenged the admission of the text
messages under D.R.E. 404(b) rather than 803(3), which Defendant contends
applied.36 According to Defendant, Appellate Counsel challenged the text messages
under the incorrect rule because she did not obtain the transcript from Defendant’s
motion in limine hearing before she prepared her opening brief.37
xi. Ground 11: Trial Counsel’s Response to the Jury’s Note
23. During deliberations, the jury sent a note to the Court expressing
confusion about which drugs formed the basis for Count I.38 Dunnell contends Trial
Counsel allegedly conferred with the State, and the parties agreed the trial court could
not answer the jury’s question. 39 Defendant argues Trial Counsel was ineffective by
not requesting that the Court simply answer the jurors’ question.40
35
Id. at 6.
36
Id. at 7.
37
Id.
38
Addendum to Def.’s Mot., D.I. 132 (Ground 11).
39
Id.
40
Id.
13
xii. Ground 12: Trial Counsel’s Failure to Request a Limiting
Instruction
24. Defendant argues Trial Counsel was ineffective in failing to request a
limiting instruction relating to the purpose for which the text messages were
introduced.41
xiii. Ground 13: Appellate Counsel’s Failure to Appeal the
Lolly/Deberry Issue.
25. Defendant asserts Appellate Counsel should have appealed the Court’s
decision denying Trial Counsel’s request for a Lolly/Deberry instruction concerning
the State’s failure to preserve or test the purple plastic bag that contained the safe.42
xiv. Ground 14: Appellate Counsel’s Failure to Investigate
26. Defendant argues the transcript from the motion in limine hearing was
filed on November 30, 2018, after Appellate Counsel filed an opening brief. 43
Defendant contends Appellate Counsel’s decision to file the brief without the
transcript was unreasonable and caused Appellate Counsel to rely on the wrong
evidentiary rule as a basis for the appeal.
xv. Ground 15: Trial Counsel’s Failure to Request a Limiting
Instruction
27. Defendant argues the text message evidence was admitted under D.R.E.
803(3) as a hearsay exception and, accordingly, Trial Counsel should have sought a
41
Addendum to Def.’s Mot., D.I. 132 (Ground 12).
42
Addendum to Def.’s Mot., D.I. 132 (Ground 13).
43
Addendum to Def.’s Mot., D.I. 132 (Ground 14).
14
limiting instruction to narrow the jury’s consideration of the text message evidence
to its proper scope.44
xvi. Ground 16: Trial Counsel’s Failure to Move to Suppress
28. Defendant argues Trial Counsel was ineffective for failing to move to
suppress evidence obtained from the 24 Gull Turn residence.45 Defendant maintains
the affidavit supporting the search warrant for the residence did not establish probable
cause because the C.I. was not reliable, the C.I.’s information never was corroborated,
and the affidavit was based on stale information.46
xvii. Ground 17: Trial Counsel’s Failure to Effectively Question Kyle
Dunnell.
29. Defendant asserts Trial Counsel’s direct examination of Kyle Dunnell
was ineffective because it failed to raise statements Kyle provided in an interview
with Detective Giallombardo.47 Defendant alleges that, had Trial Counsel questioned
Kyle about the interview, Kyle’s answers may have exonerated Defendant.48
xviii. Ground 18: Prosecutorial Misconduct and Trial Counsel’s
Failure to Object
30. Defendant asserts Trial Counsel was ineffective for failing to object
when the State during closing argument likened the King Kong text to a fingerprint.49
44
Addendum to Def.’s Mot., D.I. 133 (Ground 15).
45
Addendum to Def.’s Mot., D.I. 143 (Ground 16).
46
Id.
47
Addendum to Def.’s Mot., D.I. 161 (Ground 17).
48
Id.
49
Addendum to Def.’s Mot., D.I. 163 (Ground 18).
15
Defendant maintains the State committed prosecutorial misconduct by making this
comment, as it may have misled the jury since there were no fingerprints or other
forensic evidence linking Defendant to the drug evidence.50
B. The State
31. The State first argues several of Defendant’s grounds for relief are
barred procedurally. First, the State contends Grounds 1 and 18 are barred because
they should have been raised in the proceedings that led to the final judgment.51
According to the State, Defendant should have raised two issues at trial or on appeal:
(i) that the Court’s admission of the text message evidence violated his rights under
the Sixth Amendment’s Confrontation Clause (Ground 1); and (ii) that the State acted
improperly when it stated in closing arguments that King Kong is the fingerprint in
this case (Ground 18).52 Second, the State argues several of Defendant’s claims are
barred as previously adjudicated. The State identifies three issues that could be (and
were) raised on appeal: (i) Trial Counsel’s failure to exclude the King Kong text
message from trial (Ground 1); (ii) Trial Counsel’s failure to request a Getz limiting
instruction for the jury’s review of the King Kong text (Ground 12); and (iii) Trial
Counsel’s failure to request a Getz limiting instruction for the jury’s review of other
50
Id.
51
State’s Resp. at 7.
52
Id. at 7-8.
16
text message evidence (Ground 15).53 Because these three issues were reviewed on
appeal before the Delaware Supreme Court, the State reasons that these grounds for
relief procedurally are barred.54 The State concedes, however, that Defendant’s
Motion is timely and not repetitive.55
i. Trial Counsel
32. With respect to the merits of Defendant’s ineffective assistance claims
against Trial Counsel, the State asserts all Defendant’s alleged grounds for relief are
meritless. The State argues Defendant fails to allege how Trial Counsel’s challenged
actions fell below an objective standard of reasonableness.56 The State maintains
Trial Counsel’s affidavit demonstrates that his failure to pursue certain issues, such
as a Getz limiting instruction and a Flowers hearing, all were strategic choices.57
Furthermore, the State asserts Trial Counsel’s limited direct examination of Kyle
Dunnell was sound trial strategy because Kyle’s prior statements contained several
inconsistencies that could permit the State to conduct a cross-examination damaging
to the defense.58
33. The State argues several of Defendant’s grounds for relief are
unsupported by Delaware law. The State contends Defendant’s chain of custody
53
Id. at 8-9.
54
Id. at 8.
55
Id. at 6-7.
56
Id. at 9.
57
Id. at 11-13.
58
Id. at 29-31.
17
argument is meritless because Delaware law does not require the State to establish a
perfect chain of custody.59 Similarly, the State asserts Trial Counsel could not, as
Defendant argued, ask that the Court answer the jury’s question because, under
Delaware law, it is inappropriate for a judge to comment on the evidence.60 The State
maintains it was appropriate to argue during closings that the King Kong text message
was the “fingerprint” of the case. According to the State, this comment merely was
metaphorical and was not calculated to misstate the evidence.61 The State maintains
Trial Counsel did not act ineffectively by failing to move to suppress the search
warrant for the 24 Gull Turn residence because Trial Counsel reasonably concluded
that sufficient probable cause existed to support the warrant.62
34. Finally, the State asserts several of Defendant’s arguments against Trial
Counsel fail because he cannot show prejudice from Trial Counsel’s conduct, even
assuming Trial Counsel acted unreasonably. The State contends Trial Counsel’s
decision not to impeach the forensic analyst’s testimony did not prejudice Defendant
because the weight of the drugs, even if miscalculated, still exceeded the “super
weight” threshold for sentencing purposes.63 The State similarly argues that, even if
Trial Counsel had requested a Getz limiting instruction, the request would have been
59
Id. at 16-17.
60
Id. at 23.
61
Id. at 31.
62
Id. at 28.
63
Id. at 17-18.
18
denied because the text message evidence did not qualify as evidence of prior bad
acts under D.R.E. 404(b).64 Additionally, the State asserts Defendant has not alleged
how the witness Trial Counsel chose not to call at trial would have altered the
outcome of Defendant’s case, beyond his conclusory statement that the witness
“would have shed light to the jury.”65 Similarly, the State argues Defendant cannot
show that a more detailed questioning of Kyle Dunnell would refute the State’s theory
that Defendant arranged the times and places of the drug purchases.66
ii. Appellate Counsel
35. With respect to Appellate Counsel’s performance, the State argues it
was within Appellate Counsel’s discretion to refrain from arguing the hearsay issues
on appeal.67 Similarly, the State asserts Appellate Counsel was not ineffective for
failing to appeal the denial of the motion to suppress and the motion for a
Lolly/Deberry instruction because Appellate Counsel maintains the discretion to
select which issues to raise on direct appeal.68 The State contends Appellate Counsel
acted reasonably in not challenging the absence of a Getz limiting instruction under
D.R.E. 803(3) because a Getz instruction contemplates the admission of evidence of
prior acts under D.R.E. 404.69 Further, the State argues Appellate Counsel’s decision
64
Id. at 26-27.
65
Id. at 19.
66
Id. at 30-31.
67
Id. at 20.
68
Id. at 21.
69
Id.
19
not to challenge the text messages under D.R.E. 803(3) was reasonable because the
Court already had ruled the text messages were not hearsay.70 Finally, the State
asserts Appellate Counsel did not ineffectively appeal the Court’s denial of the
motion in limine because, although Appellate Counsel did not have the trial
transcripts before filing an opening brief, Defendant offers no evidence that Appellate
Counsel failed to conduct a thorough review of the record.71
ANALYSIS
A. Procedural Bars
36. Before addressing the merits of any postconviction claim, this Court
first must determine whether the motion procedurally is barred under Rule 61.72 A
motion for postconviction relief may be barred for timeliness and repetition, among
other things. A Rule 61 motion is untimely if it is filed more than one year after a
final judgment of conviction.73 For a defendant who files a direct appeal, this period
accrues when the appeal process is complete.74 A defendant also is barred from filing
successive motions for relief under the rule.75 Rule 61 further prohibits motions
based on any ground for relief that was not asserted in the proceedings leading up to
70
Id.
71
Id. at 24-25.
72
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del.
1990).
73
Super. Ct. Crim. R. 61(i)(1).
74
Younger, 580 A.2d at 554.
75
Super. Ct. Crim. R. 61(i)(2); see Super. Ct. Crim. R. 61(d)(2)(i)-(ii) (regarding the pleading
requirements for successive motions).
20
the judgment of conviction, unless the movant demonstrates “[c]ause for relief from
the procedural default” and “[p]rejudice from violation of the movant’s rights.”76
Finally, the Rule bars consideration of any ground for relief that previously was
adjudicated in the case.77
37. Notwithstanding the procedural bars, this Court may consider a motion
that otherwise is barred if the motion is based upon claims that the Court lacked
jurisdiction or the motion satisfies Rule 61(d)(2)’s pleading requirements.78 Rule
61(d)(2) requires that the movant plead with particularity that (i) “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;” or (ii) “a new rule of
constitutional law, made retroactive to cases on collateral review by the United States
Supreme Court or the Delaware Supreme Court, applies to the movant’s case and
renders the conviction or death sentence invalid.”79
i. To the extent they assert ineffective assistance of counsel, Defendant’s
claims regarding the need for a limiting instruction are not
procedurally barred.
38. In various claims, Defendant argues Trial Counsel was ineffective in
failing to seek a limiting instruction relating to the purpose for which the text
messages were offered. The limiting instruction was argued on appeal but was
76
Super. Ct. Crim. R. 61(i)(3)(A)-(B).
77
Super. Ct. Crim. R. 61(i)(4).
78
Super. Ct. Crim. R. 61(i)(5).
79
Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
21
considered by the Delaware Supreme Court under “plain error” review because it was
not raised to this Court. Rule 61(i)(3) bars consideration of any ground for relief that
could have been, but was not, raised in the proceedings leading up to the judgment
of conviction, while Rule 61(i)(4) bars consideration during postconviction
proceedings of any matter previously adjudicated. As a general matter, claims of
ineffective assistance of counsel do not fall within Rule 61(i)(3) because such claims
cannot be raised on direct appeal.80 At times, as discussed below, when a substantive
appellate claim is raised and rejected on direct appeal, that decision might later bar
an ineffective assistance claim under Rule 61(i)(4).81 But an argument that trial or
appellate counsel was ineffective in failing to raise an issue does not fall within the
ambit of Rule 61(i)(3) on a first postconviction motion.
39. Here, neither subsection bars Defendant’s claims regarding Trial
Counsel’s failure to request a limiting instruction. The Delaware Supreme Court’s
review under a plain error standard cannot bar the ineffective assistance claim
Defendant raises.82 Any other conclusion relies on circular reasoning. To the extent,
however, that Defendant is arguing (i) the Trial Court erred in admitting the text
message evidence; (ii) the Trial Court erred in failing to give a limiting instruction
80
Green v. State, 238 A.3d 160, 175 (Del. 2020).
81
Id. at 176.
82
Id.
22
sua sponte; or (iii) the State committed misconduct during its closing argument, those
contentions are barred under Rule 61(i)(3) or (i)(4).
ii. Ground 1 is barred as formerly adjudicated on direct appeal.
40. Rule 61(i)(4) bars postconviction claims that formerly were adjudicated
on direct appeal.83 Formerly adjudicated claims may be reconsidered in the interest
of justice, but this exception is narrow and only applies in limited circumstances, such
as when the right relied upon has been recognized for the first time after direct
appeal.84 The mere fact that a postconviction claim might bear some resemblance to
a formerly adjudicated claim does not trigger the “formerly adjudicated” bar.85
Whether a claim formerly was adjudicated often turns on whether the issue received
substantive review on direct appeal.
41. In its recent decision Green v. State,86 the Delaware Supreme Court
held that a postconviction claim was not formerly adjudicated when on direct appeal
the Court only considered whether the trial court committed plain error.87 The Court
noted, however, that an ineffective assistance claim could be barred in cases where
the direct appeal involved a substantive review of the claim’s underlying merits.88
The Court provided the following example:
83
Super. Ct. Crim. R. 61(i)(4).
84
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-98 (1989)).
85
Green, 238 A.3d at 176.
86
238 A.3d 160 (Del. 2020).
87
Id. at 176.
88
Id.
23
[I]f on direct appeal we were to reject a claim that the trier of fact considered
inadmissible evidence, a claim in postconviction proceedings that trial
counsel was ineffective for not objecting to the evidence would be futile and
might rightly be considered formerly adjudicated.89
That scenario occurred in this case. Trial Counsel challenged the admissibility of
the text messages on several grounds, but this Court admitted the evidence. On
direct appeal, Appellate Counsel challenged the admissibility of the text messages,
and the Delaware Supreme Court affirmed this Court’s ruling that the messages were
admissible. Defendant cannot now assert Trial Counsel was ineffective for failing
to exclude the text messages from evidence when the Delaware Supreme Court
substantively reviewed the admissibility issue on direct appeal.90 And, Defendant
does not satisfy Rule 61(d)(2)’s pleading requirement to escape this bar.
Accordingly, this ground formerly was adjudicated and cannot be raised again under
the guise of an ineffective assistance claim.91
B. Ineffective Assistance of Counsel
42. To prevail on an ineffective assistance of counsel claim, a defendant
must establish both that counsel’s representation fell below an objective standard of
89
Id.
90
Throughout his motion, Defendant repeatedly refers to his belief that the text messages’
admissibility should have been considered under D.R.E. 803(3), which is an exception to the
hearsay rule. But this Court held the various text messages were not hearsay under Rule 801(d).
The Supreme Court affirmed that conclusion. Accordingly, neither Trial Counsel nor Appellate
Counsel could have been ineffective for failing to raise Rule 803 as a basis for excluding the text
messages because Rule 803 applies to hearsay statements and the challenged text messages were
not hearsay.
91
To the extent Defendant contends the admission of this evidence violated the Confrontation
Clause, that argument is barred by Rule 61(i)(3).
24
reasonableness and that there is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different.92 There is a strong
presumption that counsel’s representation was reasonable.93 Mere allegations or
conclusory statements will not suffice.94
i. Trial Counsel
a. Grounds 2, 6, 7, and 17 fail because Trial Counsel did not act
unreasonably by strategically examining only select witnesses.
43. In grounds 2, 6, 7, and 17, Dunnell challenges several decisions by Trial
Counsel during pretrial proceedings and trial. He argues Trial Counsel (1)
“acquiesced with” the State and seemingly abandoned discovering the C.I.’s identity
(Ground 2); (2) failed to impeach Ms. Harris effectively (Ground 6); (3) failed to call
a witness who agreed to testify about the text messages (Ground 7); and (4) did not
properly examine Kyle about his prior statements that potentially could have
exculpated Defendant (Ground 17). These arguments do not meet the first prong of
Strickland because Trial Counsel’s decisions regarding these matters were strategic
choices based on the defense’s theory of the case. “If an attorney makes a strategic
choice after thorough investigation of law and facts relevant to plausible options, that
decision is virtually unchallengeable.”95
92
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
93
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
94
Id.; Monroe v. State, 2015 WL 1407856, at *3 (Del. March 25, 2015).
95
Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
25
44. For example, Trial Counsel asserts he did not challenge Ms. Harris’s
testimony and lab report because doing so was not relevant to the defense’s theory of
the case that Defendant had no knowledge, control, or possession of the safe and its
contents.96 Trial Counsel similarly conducted a limited direct examination of Kyle
Dunnell to advance the overall defense theory of the case. According to his affidavit,
Trial Counsel was concerned that a detailed direct examination of Kyle regarding his
statements to police would “open the door” for the State to cross-examine Kyle on
the entirety of his statements, many of which were contradictory.97 Trial Counsel
avers his limited examinations of Ms. Harris and Kyle were strategic choices based
on his analysis of the facts and the defense’s overall theory of the case. Defendant
has not made any allegations indicating Trial Counsel did not adequately investigate
the facts or consider all plausible options before electing to conduct these limited
examinations. Trial Counsel’s explanation of the reasons for these strategic choices
defeats Defendant’s contention that the decisions objectively were unreasonable.
45. Trial Counsel’s decisions not to call as witnesses the C.I. and the
individual who appeared in the courthouse likewise were strategic. “For the purposes
of an ineffective assistance claim, the decision of a trial attorney to call or not to call
96
Trial Counsel’s Aff. at 18-19.
97
Id. at 23.
26
a potential witness is part of the attorney’s trial strategy.”98 Trial Counsel admits he
advised the witness who appeared at the courthouse that the witness could be
prosecuted for any incriminating testimony. Trial Counsel further explains in his
affidavit that he believed this witness would harm Defendant’s defense by opening
up cross-examination into the various text messages the witness sent to the seized
phones.99 This decision not to call the witness was reasonable and strategic in view
of the facts known to Trial Counsel.
46. As to the motion seeking the C.I.’s identity, Trial Counsel asserts he
never intended for the C.I. to testify at trial because, although the C.I. likely would
testify that he purchased heroin from Kyle, he also presumably would testify he
arranged the sales through Defendant.100 Trial Counsel explains that the motion was
strategic; he hoped that if the Court granted the motion, the State would seek to avoid
disclosing the C.I.’s identity by stipulating that Defendant was not present at either
controlled buy.101 When the Court denied the motion, however, Trial Counsel lost
any leverage to obtain a stipulation, and Trial Counsel did not believe calling the C.I.
would help Defendant’s case. In summary, Trial Counsel’s decisions not to call the
98
Sierra v. State, 242 A.3d 563, 573-74 (Del. 2020) (quoting Baynum v. State, 1990 WL
1098720, at *1 (Del. Super. June 8, 1990)).
99
Trial Counsel’s Aff. at 17. With respect to Ms. Harris’s testimony, Defendant has not shown
the alleged miscalculated weight would have changed his sentence. The State and Trial Counsel
both assert that, even at the lower weight Defendant alleges was the correct weight, the total
weight of the drugs was still sufficient for the Court to impose the heightened sentence.
100
Id. at 14.
101
Id. at 14-15.
27
courthouse witness and the C.I. were strategic choices based on what Trial Counsel
believed would be best for the defense. Accordingly, Trial Counsel’s choice not to
call these witnesses objectively was reasonable and does not meet Strickland’s first
prong.
b. Grounds 12 and 15 fail because Trial Counsel did not act
unreasonably by not seeking limiting instructions for the text
messages.
47. Defendant asserts Trial Counsel provided ineffective assistance when
he (1) failed to request a limiting instruction for the text messages (Ground 12); and
(2) failed to request a Getz limiting instruction for the King Kong text message
(Ground 15). Dunnell’s contention that a limiting instruction was warranted is based
on his incorrect contention that the text messages were admitted under Rules 404(b)
and 803(3). Again, the Court did not admit the evidence under either rule; the Court
concluded the text messages were not hearsay and were not unfairly prejudicial under
Rule 403.102 Since the text messages were not admitted for a limited purpose, Trial
Counsel’s choice not to seek a limiting instruction for the text messages was
objectively reasonable and fails Strickland’s first prong.
48. Defendant’s challenge to the absence of a Getz limiting instruction
similarly fails because Defendant misapprehends the rule under which the King Kong
text message was admitted. A Getz instruction is appropriate when evidence is
102
See Mot. in Lim. Tr. at 9-13 (Feb. 22, 2017).
28
admitted as a prior bad act under D.R.E. 404(b).103 But this Court did not admit the
King Kong text message as evidence of a prior bad act. Rather, the text message was
admitted to show Defendant had knowledge of the drugs in the safe, thereby
supporting the State’s constructive possession argument. In fact, Trial Counsel never
argued Rule 404(b) applied. Under the circumstances, a Getz limiting instruction was
not warranted, and it was not objectively unreasonable for Trial Counsel not to seek
a Getz instruction.104
c. Grounds 4, 5, 11, 16, and 18 fail because Trial Counsel did not act
unreasonably by failing to pursue arguments he reasonably
believed were meritless.
49. Dunnell also argues Trial Counsel was ineffective in failing to raise a
number of arguments. Trial Counsel avers he chose not to pursue several objections
and arguments because he did not believe they had merit. First, Trial Counsel states
he did not seek to suppress the evidence obtained from the cell phones found in 24
Gull Turn (Ground 14) because, in his professional opinion, the accompanying
affidavits contained sufficient probable cause to support the warrants.105 Similarly,
Trial Counsel did not believe a good faith basis existed to challenge the warrant for
103
Getz v. State, 538 A.2d 726, 734 (Del. 1988).
104
Moreover, Defendant arguably waived this ineffective assistance claim by instructing Trial
Counsel not to raise the absence of a limiting instruction in a motion for a new trial, despite Trial
Counsel’s belief and advice that the argument would provide a strong basis for a new trial. Trial
Counsel’s Aff. at 12-13.
105
Trial Counsel’s Aff. at 17.
29
the 24 Gull Turn residence (Ground 16).106 Trial Counsel asserts in his affidavit that
the controlled heroin purchases NCCPD arranged and observed created sufficient
probable cause that contraband or evidence of a crime would be found inside the
residence.107 Other than vague arguments that the warrants were not valid, Defendant
does not point to anything within the warrants’ four corners that supports his position.
The two controlled buys conducted at the residence “corroborated” the C.I.’s tip and
amounted to probable cause supporting the search. The cell phones were found in
the residence with substantial amounts of heroin, a firearm, cash, and paraphernalia
associated with drug dealing.
50. With respect to the chain of custody issue (Ground 5), Trial Counsel
states in his affidavit that the State eventually established that the drug evidence was
in NCCPD custody before being delivered to the courthouse.108 Further, as Trial
Counsel correctly points out, a perfect chain of custody is not required by Delaware
law.109 Accordingly, Trial Counsel did not make a chain of custody objection because
he knew the objection likely would be overruled.110
106
Id. at 20.
107
Id.
108
Id. at 17-18.
109
Id. at 18; Demby v. State, 695 A.2d 1127, 1131 (Del. 1997) (“We have never interpreted
[Delaware’s chain of custody law] as requiring the State to produce evidence as to every link in
the chain of custody. Rather the State must simply demonstrate an orderly process from which
the trier of fact can conclude that it is improbable that the original item has been tampered with
or exchanged.”)
110
Trial Counsel’s Aff. at 17.
30
51. Defendant asserts that Trial Counsel should have objected when the
State referred to the King Kong text message as the “fingerprint” of the case during
closings (Ground 18). In his affidavit, however, Trial Counsel contends the State’s
fingerprint metaphor was an appropriate closing argument.111 In closing arguments,
a prosecutor is not confined to merely restating the evidence and is entitled to explain
all legitimate inferences of the defendant’s guilt that flow from the evidence.112 A
prosecutor may not, however, misstate evidence or make remarks that could inflame
the jury’s passions or prejudices.113 The State’s fingerprint metaphor did not misstate
the evidence against Defendant; rather, the State sought to infer Defendant’s guilt
from the King Kong text message. The State’s fingerprint metaphor was a proper
closing remark and, accordingly, Trial Counsel’s decision not to object to the
metaphor was reasonable.
52. Finally, when considering the jury’s note (Ground 11), Trial Counsel
and the State correctly concluded it would be improper for a trial judge to comment
on the evidence.114 Trial Counsel could not, as Defendant argues, ask that the judge
simply answer the jury’s note. Trial Counsel’s choice not to pursue arguments he
111
Id. at 24.
112
Hooks v. State, 416 A.2d 189, 204 (Del. 1980) (citing State v. Mayberry, 245 A.2d 481
(1968), cert. denied 393 U.S. 1043 (1969)).
113
Brokenbrough v. State, 522 A.2d 851, 855 (Del. 1987).
114
Id. at 19; Del. Const. Art. IV, § 19; see also State Highway Dept. v. Buzzuto, 264 A.2d 347,
351 (Del. 1970) (“[T]he Delaware Constitution prohibits a trial judge from commenting on the
evidence. This prohibition applies equally to the judge's instructions to the jury and to comments
made by the judge in the course of the trial”).
31
believed were meritless was not objectively unreasonable. The Sixth Amendment
does not require counsel to pursue meritless arguments.115 On the contrary, Trial
Counsel had a duty not to raise frivolous claims.116 Accordingly, Trial Counsel’s
failure to raise these issues was not objectively unreasonable.
d. Ground 3 fails because Defendant has not sufficiently established
that he was prejudiced.
53. As to Defendant’s argument that Trial Counsel failed to investigate and
call as witnesses the other declarants in the text messages, Defendant has not
established any prejudice arising from this alleged failure. Defendant asserts Trial
Counsel did not contact the declarants of the incoming text messages, even though
Defendant asked him to do so. According to Defendant, these declarants would have
testified on his behalf at trial. Even assuming this failure fell below an objective
standard of reasonableness, Defendant has not alleged any facts regarding these
declarants’ identities or their anticipated testimony.
54. Conclusory allegations that additional witnesses would have influenced
the jurors’ decision are not sufficiently specific to demonstrate actual prejudice.117 In
Outten v. State,118 the defendant similarly brought an ineffective assistance of counsel
115
Shelton v. State, 744 A.2d 465, 503 n.186 (Del. 2000) (citing Flamer v. State, 585 A.2d 736,
758 (Del. 1990)).
116
State v. Ryle, 2019 WL 2714817, at *6 (Del. Super. June 27, 2019) (citing Fairthorne Maint.
Corp. v. Ramunno, 2007 WL 2214318 (Del. Ch. July 20, 2007)).
117
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996); Palmer v. State, 1994 WL 202281 at *1
(Del. May 5, 1994)
118
720 A.2d 547 (Del. 1998).
32
claim relating to his counsel’s failure to call additional witnesses. The defendant did
not identify the witnesses or the content of their potential testimony.119 Although the
Delaware Supreme Court recognized defense counsel’s general duty to investigate
potentially mitigating evidence, the Court held that the defendant’s allegations were
too conclusory to support a finding that he was prejudiced by defense counsel’s
actions.120 Similarly, in this case, Defendant’s failure to provide any details regarding
these potential witnesses leaves him unable to show with any reasonable degree of
probability that the declarants’ testimonies would have altered the outcome at trial.
ii. Appellate counsel
55. The United States Supreme Court has recognized that appellate counsel
“need not (and should not) raise every nonfrivolous claim.”121 Rather, appellate
counsel may select from among different claims in order to maximize the likelihood
of success on appeal.122 In cases where appellate counsel completely fails to file a
merits brief, a defendant need only show that “a reasonably competent attorney would
have found one non-frivolous issue on appeal.”123 On the other hand, in cases where
appellate counsel does file a merits brief on direct appeal, the defendant faces the
higher burden of showing that “a particular nonfrivolous issue was clearly stronger
119
Id. at 553.
120
Id.
121
Smith v. Robbins, 528 U.S. 259, 288 (2000).
122
Id.
123
Id.
33
than issues that counsel did present.”124 Defendant’s Motion challenges Appellate
Counsel’s failure to appeal the Trial Court’s denial of: (i) Defendant’s motion in
limine; (ii) Defendant’s motion to suppress, and (iii) a Lolly/Deberry instruction.
Because Appellate Counsel filed a merits brief on other issues in this case, Defendant
must demonstrate that these three issues were stronger than the issues Appellate
Counsel pursued.
a. Grounds 8, 9, and 10 fail because it was not unreasonable for
Appellate Counsel to only pursue select issues on direct appeal.
56. Contrary to Defendant’s arguments, Appellate Counsel did appeal the
denial of the motion in limine to the Delaware Supreme Court. Appellate Counsel
challenged the Court’s admission of the text messages on the grounds that they were
not properly authenticated and that, under D.R.E. 403, their probative value
substantially was outweighed by the danger of unfair prejudice. Defendant argues,
however, that Appellate Counsel also should have challenged the messages’
admission on the ground that they were inadmissible hearsay. In her affidavit,
Appellate Counsel explained that she believed there was no merit to the hearsay
argument. Appellate Counsel was concerned that the case Trial Counsel relied on for
his hearsay argument lacked legal analysis and did not support a viable argument.125
Instead, Appellate Counsel believed there was a strong argument that introduction of
124
Id.
125
Appellate Counsel’s Aff. at 5.
34
the text messages improperly allowed the jury to convict Defendant of dealing drugs
that were locked in the safe.
57. With respect to the suppression issue, Appellate Counsel avers that she
chose not to appeal the ruling on the motion to suppress because she believed it was
more prudent to challenge the Court’s denial of Defendant’s motion for judgment of
acquittal.126 According to Appellate Counsel, appealing the motion to suppress
would require a fact-intensive argument and would bring into the record damaging
facts linking Defendant to the drugs in 24 Gull Turn, thereby weakening Defendant’s
argument that this court erred in denying his motion for judgment of acquittal.127
Appellate Counsel did not believe the probability of success on the suppression issue
was strong enough to justify this risk.128
58. Appellate Counsel was entitled to exercise professional judgment and
only pursue certain issues on appeal. Defendant has not demonstrated why the issues
he raises in his Motion were stronger than the issues Appellate Counsel chose to
advance on appeal. Accordingly, Appellate Counsel’s decision not to pursue certain
issues on appeal did not fall below an objective standard of reasonableness.
59. Defendant’s argument supporting Ground 10 is muddled; he appears to
contend Appellate Counsel should have challenged the text messages’ admissibility
126
Id. at 8.
127
Id.
128
Id.
35
under D.R.E. 404(b) or under D.R.E. 803(3). Defendant has not shown Appellate
Counsel’s arguments were unreasonable. Neither rule Defendant cites applies to the
facts of the case. The text messages were not “prior bad act” evidence admitted to
show Defendant’s conduct in conformity therewith. Rather, the text messages were
offered to show Defendant and Kyle were working together to sell drugs, thereby
supporting the State’s constructive possession argument. As to hearsay, this Court
concluded the text messages were not hearsay under D.R.E. 801(d), thereby obviating
any need to consider whether the messages fell within 803(3) or any other hearsay
exception. Because Appellate Counsel’s decision to challenge the text messages for
authenticity and undue prejudice objectively was reasonable, this argument fails.129
b. Ground 14 fails because Appellate Counsel conducted diligent
research and used her professional judgment when deciding how
to challenge the text message evidence.
60. Defendant asserts Appellate Counsel was ineffective by failing to
investigate the bases for the motion in limine before filing the appeal. Defendant
argues Appellate Counsel did not have the transcripts from the motion in limine
hearing when she filed her opening appellate brief and, consequently, incorrectly
challenged the text messages’ admission under D.R.E. 404(b) rather than D.R.E.
803(3). Appellate Counsel admits she did not have a copy of the hearing transcripts
129
To the extent Defendant contends Appellate Counsel should have argued a limiting
instruction should have been given with respect to the text messages, Appellate Counsel
specifically raised that argument on appeal. See Appellant’s Opening Br., at 23-24.
36
when the opening brief was filed.130 Appellate Counsel denies, however, that she
challenged the evidence under D.R.E. 404(b).131 Appellate Counsel states she
challenged the text messages on the grounds they unfairly were prejudicial under
D.R.E. 403 and they could not be properly authenticated under D.R.E. 901.132
Appellate Counsel explains she did not challenge the text messages as hearsay
because, in the course of her research, she found case law that text messages offered
to show knowledge of a drug location are not offered for the truth of the matter
asserted.133 Under these circumstances, it cannot be said Appellate Counsel
unreasonably failed to sufficiently investigate the hearsay issue. Although Appellate
Counsel did not have the hearing transcripts (through no fault of her own), she
conducted research into the hearsay issue and concluded it was not a viable argument
based on existing case law. Accordingly, Appellate Counsel’s representation was not
objectively unreasonable.
c. Ground 13 fails because Defendant cannot show prejudice from
Appellate Counsel’s failure to raise these issues.
61. Finally, Defendant challenges Appellate Counsel’s decision not to
appeal the Court’s denial of the Lolly/Deberry instruction regarding the State’s failure
to preserve the plastic bag containing the safe where the contraband was found.
130
Appellate Counsel’s Aff. at 5.
131
Id.
132
Id.
133
Id.
37
Appellate Counsel cannot recall her thought process in choosing not to raise this issue
on appeal. But, as discussed above, counsel is not required to raise every issue on
appeal and is entitled to strategically select what arguments to advance.134 Even
assuming Appellate Counsel’s decision was unreasonable, however, Defendant has
not sufficiently alleged prejudice from this decision. Defendant has not shown the
Delaware Supreme Court likely would have reversed his conviction on appeal had
Appellate Counsel raised the Lolly/Deberry issue. As Appellate Counsel noted, the
State never sought to prove Defendant actually possessed the safe, only that he
constructively possessed the drugs inside it. Even if the Court had instructed the jury
to assume the purple bag did not contain Defendant’s fingerprints, this would not
have materially weakened the State’s constructive possession argument. Defendant
has not sufficiently alleged a reasonable probability that the outcome of the direct
appeal would have been different had Appellate Counsel appealed the lack of a
Lolly/Deberry instruction. Accordingly, Appellate Counsel did not provide
ineffective assistance.
C. Postconviction Counsel’s Motion to Withdraw
62. Rule 61(e)(7) provides that counsel appointed to represent a defendant
in postconviction proceedings may move to withdraw if “counsel considers the
movant’s claim to be so lacking in merit that counsel cannot ethically advocate it,
134
Id. at 9.
38
and counsel is not aware of any other substantial ground for relief available to the
movant[.]”135 A motion to withdraw must state the factual and legal bases for
counsel’s opinion. In considering the motion, the Court must “be satisfied that . . .
counsel made a conscientious examination of the record and the law for claims that
could arguabl[y] support [the defendant’s] Rule 61 motion.”136 The Court also must
review the record independently in order to determine whether the case is devoid of
any arguable claims for relief.137 Postconviction Counsel’s Motion to Withdraw
demonstrates he thoroughly reviewed the relevant law and the record in this case,
including Trial and Appellate Counsel’s performance. Postconviction Counsel had
the entire record available to him. As noted above, the Court independently has
reviewed the record and finds no merit to Defendant’s claims.
CONCLUSION
For the reasons stated above, Defendant’s Motion for Postconviction Relief
is DENIED and Postconviction Counsel’s Motion to Withdraw is GRANTED.
Counsel’s continuing obligations to Defendant are limited to those set forth in Rule
61(e)(7)(ii). IT IS SO ORDERED.
/s/ Abigail M. LeGrow
Abigail M. LeGrow, Judge
135
Super. Ct. Crim. R. 61(e)(7).
136
State v. West, 2013 WL 6606833, at *3 (Del. Super. Dec. 12, 2013), aff’d, 100 A.3d 1022
(Del. 2014).
137
Id.
39