State v. Jackson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID No. 1707014544
) Cr. A. Nos. 17-08-0024, etc.
GIGERE F. JACKSON, )
Defendant. )

Submitted: January 18, 2022
Decided: April 11, 2022

ORDER DENYING POSTCONVICTION RELIEF
AND GRANTING COUNSEL’S MOTION TO WITHDRAW

Upon consideration of Defendant Gigere F. Jackson’s Motion for

Postconviction Relief (D.I. 48), the State’s response thereto (D.I. 70), his

postconviction counsel’s Motion to Withdraw (D.I. 63), the affidavits of both trial

and appellate counsel (D.I. 68, 69), Mr. Jackson’s response to postconviction

counsel’s Motion to Withdraw (D.I. 66), and the record in this case, it appears to the

Court that:

I. FACTUAL AND PROCEDURAL BACKGROUND

(1) In early July 2017, members of the Wilmington Police Department’s

Drug, Organized Crime, and Vice Division (WPD) were contacted by two separate

confidential informants. They both relayed that crack cocaine was being sold from

a residence located at 434 S. Van Buren Street in the City of Wilmington.

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The informants identified the dealer as “G” and described him as a tall, black male

with short hair and glasses.1 The informants independently described the same

manner and location in the home where drug sales occurred, along with the cell

phone number used by “G” to facilitate these transactions.2

(2) Upon learning this information, WPD detectives arranged for one of the

confidential informants to attempt a controlled purchase of the drugs from “G” at

the Van Buren Street address.3 The confidential informant made two controlled buys

of an off white rock-like substance, that was subsequently field-tested and identified

as cocaine.4 At separate times during the investigation, detectives showed the two

informants a photograph of Mr. Jackson. They both positively identified him as

“G”—the man selling crack cocaine from the Van Buren Street address.5

(3) A few weeks after the controlled purchases, WPD detectives were again

approached by one of the confidential informants. The informant relayed that

Mr. Jackson possessed a silver handgun and kept it at the Van Buren Street address.6

1
Appendix to PCR Counsel’s Mem. in Supp. of Mot. to Withdraw (“PCR App.”) at A92, State
v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. July 30, 2021) (D.I. 64).
2
Id.
3
Id. at A93.
4
Id.
5
Id.
6
Id. at A94.

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Relying on all this, WPD detectives obtained a warrant to search for drugs at the 434

South Vanburen Street residence.7

(4) During the execution of the search warrant, Mr. Jackson was detained

and properly Mirandized. Once in custody, he remained silent other than to respond

to police officers’ questions with “you told me to wait for my lawyer.”8 The

detaining officers told Mr. Jackson that he was the subject of an active investigation

and he should say something “if there was anything illegal in the house” because his

wife, minor child, and mother-in-law were still inside.9 Mr. Jackson subsequently

admitted ownership of firearms and led detectives to their location in a cooler.10 It

appears he made no other statements or suggestions while in custody.11

(5) No drugs were found during that lawful search. But police did find and

seize a holster, some mail addressed to Mr. Jackson at 434 S. Van Buren Street, and

two loaded handguns found in a cooler.12

(6) Police obtained and executed a second search warrant to collect a DNA

7
Jackson v. State, 2019 WL 5067096, at *1 (Del. Oct. 8, 2019).
8
PCR App. at A14.
9
Id. at A14, A16-A17.
10
Id. at A14-A15.
11
Id. at A17.
12
Id.

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sample from Mr. Jackson.13 A comparison of his DNA and a DNA sample obtained

from one of the handguns found in the cooler indicated a “very high probability that

the DNA on the gun” was Mr. Jackson’s.14

(7) Mr. Jackson was represented at his preliminary hearing by Ralph D.

Wilkinson, IV, Esquire, who then represented him through his trial and sentencing

proceedings.15 At the preliminary hearing Mr. Wilkinson began to explore whether

the searching/arresting officers violated Mr. Jackson’s post-Miranda right to remain

silent and whether that might support suppression of the firearms discovered.16

Mr. Jackson was bound over to this Court for trial.17

(8) Shortly thereafter, a grand jury indicted Mr. Jackson on two counts of

Possession or Control of a Firearm by a Person Prohibited (“PFBPP”) and two

counts of Possession or Control of Ammunition by a Person Prohibited.18

13
Jackson, 2019 WL 5067096, at *1.
14
Id.
15
Tr. of Prelim. Hr’g, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. July 31,
2017) (D.I. 54); PCR App. at A10-A22.
16
See generally Tr. of Prelim. Hr’g.
17
PCR App. at A22.
18
Indictment, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Sept. 18, 2017)
(D.I. 2).

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 (9) Mr. Wilkinson did file a motion seeking exclusion of Mr. Jackson’s

post-arrest statements and conduct leading detectives to the firearms in the cooler

because their discovery occurred after Mr. Jackson had invoked his right to remain

silent.19 By trial though, it appears any suppression application of that evidence was

mooted by the State’s agreement not to introduce it.20

(10) The State extended a plea offer to one count of PFBPP with a

recommendation that Mr. Jackson serve the minimum 15-year term

required with application of his habitual criminal offender status.21 Mr. Jackson

rejected the State’s plea offer.22 And thereafter, he waived his right to a jury trial.23

(11) Following a two-day bench trial, Mr. Jackson was convicted of two

counts of Possession of a Firearm by a Person Prohibited (“PFBPP”) and two counts

of Possession of Ammunition by a Person Prohibited (“PABPP”).24

19
PCR App. at A34-A37, A42.
20
Trial Counsel Aff., State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Nov. 4,
2021) (D.I. 68).
21
Id. at A28.
22
Case Review Tr., State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Jan. 16,
2018) (D.I. 58); PCR App. at A43-A48.
23
PCR App. at A125-A126.
24
Verdict Sheet, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Aug. 8, 2018)
(D.I. 19).

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 (12) Mr. Jackson was sentenced to serve: (a) ten years at Level V for one

PFBPP count (IN17-08-0024); and (b) ten years at Level V followed by six months

of supervised probation for the second PFBPP count (IN17-08-0025) at Level III.25

The Court suspended the sentence on the PABPP charges. Mr. Jackson’s cumulative

20-year period of unsuspended imprisonment is comprised wholly of minimum

terms of incarceration that must be imposed and cannot be suspended.26

Mr. Jackson’s two terms of unsuspended incarceration were ordered to be served

consecutively.27

(13) Mr. Jackson docketed a direct appeal from his convictions and

sentence.28 While his appeal was pending, he timely filed a pro se motion under

Superior Court Criminal Rule 35(b) requesting a reduction of the Level V term of

25
Modified Sentencing Order, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct.
Feb. 18, 2019) (D.I. 30) (issued with no substantive changes after the Court vacated its original
sentencing order so Mr. Jackson could docket a timely direct appeal).
26
DEL. CODE ANN. tit. 11, § 1448(e)(1)(c) (2017) (“Notwithstanding any provision of this section
or Code to the contrary, any person who is a prohibited person as described in this section and who
knowingly possesses . . . or controls a firearm . . . while so prohibited shall receive a minimum
sentence of [t]en years at Level V, if the person has been convicted on 2 or more separate occasions
of any violent felony.”).
27
Mr. Jackson’s terms of incarceration for the two the PFBBPP counts—because he was
previously convicted of at least one Title 11 violent felony—could not be ordered to be served
concurrently either with each other or with any other sentence of confinement imposed. Id. at
§ 3901(d).
28
See Notice of Appeal, Gigere F. Jackson v. State of Delaware, No. 73, 2019 (Del. filed Feb.
20, 2019).

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his sentence.29 The Court stayed and deferred decision on Mr. Jackson’s Rule 35(b)

motion while his appeal was pending.30 In October 2019, the Supreme Court

affirmed Mr. Jackson’s convictions and sentence.31 Mr. Jackson’s pending Rule

35(b) motion was thereafter denied by this Court.32

II. MR. JACKSON’S MOTION FOR POSTCONVICTION RELIEF

(14) Mr. Jackson then timely filed, pro se, the present Motion for

Postconviction Relief33 enumerating sixteen counts of ineffective assistance of

counsel—all concerning Mr. Wilkinson and his trial management.34 Specifically,

Mr. Jackson alleges Mr. Wilkinson was ineffective as:

i. he refused to permit Mr. Jackson to testify and “tell his story”;

ii. he failed to cross-examine the State’s witnesses and chose not to call
any of Mr. Jackson’s witnesses who would testify they did not see
Mr. Jackson with a gun in the residence;

29
Def.’s Mot. for Reduction of Sentence, State v. Gigere F. Jackson, ID No. 1707014544 (Del.
Super. Ct. Mar. 6, 2019) (D.I. 34).
30
See Order, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Mar. 11, 2019)
(D.I. 35) (staying Jackson’s Rule 35(b) motion during pendency of appeal); Super. Ct. Crim. R.
35(b) (“The court may decide the motion or defer decision while an appeal is pending.”).
31
Jackson, 2019 WL 5067096.
32
Order Den. Def.’s Mot. for Reduction of Sentence, State v. Gigere F. Jackson, ID No.
1707014544 (Del. Super. Ct. May 5, 2020) (D.I. 47).
33
Def.’s Mot. for Postconviction Relief (“Def.’s PCR Mot.”), State v. Gigere F. Jackson, ID No.
1707014544 (Del. Super. Ct. July 27, 2020) (D.I. 48).
34
Def.’s Memo. in Supp. of Mot. for Postconviction Relief (“Def.’s PCR Memo.”), State v.
Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. July 27, 2020) (D.I. 49).
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 iii. he failed to get a suppression hearing based on an agreement with the
State that Mr. Jackson’s custodial statements wouldn’t be elicited at
trial;

iv. he failed to obtain suppression the firearms based on a purported
Miranda violation;

v. he failed to question the police officer whether either of the guns fit into
the holster collected from the home search;

vi. he failed to elicit any testimony about the lack of drug evidence
admitted at trial;

vii. he failed to challenge the credibility of the confidential informants
based on the lack of drugs found in the home;

viii. he failed to question whether the police had surveillance video;

ix. he failed to subpoena the confidential informants to testify;

x. he failed to cross-examine the person who accused Mr. Jackson of
having a gun in the home;

xi. he failed to argue the police were “just fishing” in obtaining their search
warrant;

xii. he failed to dispute the validity or credibility of the warrant based on
the fact that the police and K-9 units were in the home for hours and
never found any drugs;

xiii. he failed to question why the police didn’t find what they “knew” was
in the residence;

xiv. trial counsel failed to question whether the police personally observed
the informants conduct the controlled drug transactions;

xv. he failed to challenge the reliability of the DNA comparison analysis;
and

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 xvi. he failed to address whether the police should have obtained a second
warrant to seize the guns.35

(15) In addition to his Rule 61 motion, Mr. Jackson filed a Motion for

Appointment of Counsel.36 In accord with this Court’s Criminal Rule 61(e)(1), the

Court granted that motion and appointed Edward F. Eaton, Esquire, to represent

Mr. Jackson in his quest for postconviction relief.37

(16) Mr. Eaton has now, pursuant to Rule 61(e)(7), filed a Motion to

Withdraw as Counsel.38 Mr. Eaton declares that, after careful review of the entire

record in Mr. Jackson’s case, Mr. Jackson’s claims are so lacking in merit that he

cannot ethically advocate for them, nor is he aware of any other substantial grounds

for relief.39

(17) Mr. Wilkinson has submitted an affidavit responding to Mr. Jackson’s

postconviction claims aimed at him.40 Santino Ceccotti, Esquire, Mr. Jackson’s

35
See id.
36
Mot. for Appointment of Counsel, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super.
Ct. Aug. 25, 2020) (D.I. 51).
37
Order Granting Def.’s Mot. for Appointment of Counsel, State v. Gigere F. Jackson, ID No.
1707014544 (Del. Super. Ct. Sept. 9, 2020) (D.I. 52).
38
PCR Counsel’s Mot. to Withdraw, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super.
Ct. July 30, 2021) (D.I. 63).
39
Id. at 21.
40
Trial Counsel Aff., State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Nov. 4,
2021) (D.I. 68).

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counsel on direct appeal, also docketed a responding affidavit.41 And, the State has

answered Mr. Jackson’s postconviction claims.42

III. RULE 61’S PROCEDURAL REQUIREMENTS

(18) Postconviction counsel may petition the Court to withdraw as counsel

if he can meet the standards set forth in this Court’s Criminal Rule 61(e)(7):

If counsel considers the movant’s claim to be so lacking in
merit that counsel cannot ethically advocate it, and counsel
is not aware of any other substantial ground for relief
available to the movant, counsel may move to withdraw.
The motion shall explain the factual and legal basis for
counsel’s opinion and shall give notice that the movant
may file a response to the motion within 30 days of service
of the motion upon the movant.43
(19) Mr. Eaton has conducted a careful review of Mr. Jackson’s case and

has determined that Mr. Jackson’s claims are so lacking in merit that he cannot

ethically pursue them. Mr. Eaton further declares that he is unaware of any other

substantial ground for relief.44 Mr. Eaton provided Mr. Jackson with a copy of his

41
Appellate Counsel Aff., State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Nov.
10, 2020) (D.I. 69).
42
State’s Opp’n, State v. Gigere F. Jackson, ID No. 1707014544 (Del. Super. Ct. Dec. 1, 2021)
(D.I. 70).
43
Super. Ct. Crim. R. 61(e)(7).
44
PCR Counsel’s Mot. to Withdraw at 21.

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Motion to Withdraw as counsel and advised Mr. Jackson of his option under Rule

61(e)(7) to file a response thereto.45

(20) In his response to Mr. Eaton’s Motion to Withdraw, Mr. Jackson

(i) realleges his ineffective assistance of counsel claims against Mr. Wilkinson,

(ii) asks the Court to either appoint new postconviction counsel or compel Mr. Eaton

to continue pursuing his claims, and (iii) requests an evidentiary hearing.46

(21) To evaluate Mr. Jackson’s postconviction claims, and to determine

whether his latest counsel’s motion to withdraw should be granted, the Court should

be satisfied that Mr. Eaton conducted a truly conscientious examination of the record

and the law for claims that could arguably support Mr. Jackson’s Rule 61 motion.

Too, the Court should conduct its own review of the record to determine whether

Mr. Jackson’s Rule 61 motion is devoid of any, at least, arguable postconviction

claims.47

(22) Delaware courts must consider Criminal Rule 61’s procedural

requirements before addressing any substantive issues.48 The procedural bars of

45
Id.
46
Def.’s Resp. to PCR Counsel’s Mot. to Withdraw, State v. Gigere F. Jackson, ID No.
1707014544 (Del. Super. Ct. Aug. 25, 2021) (D.I. 66).
47
State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Ct. Dec. 7, 2017).
48
Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2
(Del. Super. Ct. Sept. 10, 2002).

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Rule 61 are “timeliness, repetitiveness, procedural default, and former

adjudication.”49 Here, Mr. Jackson’s motion was filed less than a year after his

judgment of conviction became final.50 So it’s timely. This is Mr. Jackson’s first

Rule 61 application. So it’s not repetitive.

(23) Rule 61(i)(3) states, too, that “[a]ny 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 . . . [c]ause for relief

from the procedural default and . . . [p]rejudice from violation of the movant’s

rights.”51 This bar is inapplicable to allegations of ineffective assistance of counsel

that, in all but the rarest of circumstances, couldn’t have been raised on direct

appeal.52 So Mr. Jackson’s ineffective assistance of counsel claims aren’t

procedurally barred here. And the Court will address them on their merits.

(24) Mr. Jackson levels all sixteen claims of ineffective assistance of counsel

at trial counsel only. For the sake of clarity, the Court will first address the merits

of claims one through five individually. As claims six through sixteen are either

49
State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017).
50
See Def.’s PCR Mot. (filed July 27, 2020) (D.I. 48); Supreme Court Mandate, State v. Gigere
F. Jackson, ID No. 1707014544 (Del. Super. Ct. Oct. 28, 2019) (D.I. 42).
51
Super. Ct. Crim. R. 61(i)(3).
52
State v. Coverdale, 2018 WL 259775, at *2 (Del. Super. Ct. Jan. 2, 2018).

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cumulative or repetitive of the first five claims or general attacks on Mr. Wilkinson’s

trial strategy and management—rather than the objectives of Mr. Jackson’s

defense—they will be discussed synchronously.53

IV. DISCUSSION

A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

(25) A claim of ineffective assistance of counsel is reviewed under the

familiar two-part Strickland test.54 A claimant asserting ineffective assistance of

counsel must demonstrate that: (i) his defense counsel’s representation fell below an

objective standard of reasonableness, and (ii) there is a reasonable probability that,

but for counsel’s errors, the result of his proceedings would have been different.55

(26) For the first prong, deficient performance, the burden is on the claimant

to show that counsel’s conduct fell below an objective standard of reasonableness,

“i.e., that no reasonable lawyer would have conducted the defense as his lawyer

53
Gonzalez v. United States, 553 U.S. 242, 248-49 (2008) (holding as a matter of practical
necessity, the lawyer controls the conduct of trial and client approval for every tactical decision
isn’t needed); Taylor v. State, 28 A.3d 399, 405-406 (Del. 2011) (“[T]he attorney’s duty to consult
with the defendant regarding ‘important decisions’—including questions of overarching defense
strategy—does not require counsel to obtain the defendant’s consent to “every tactical decision.’”).
54
Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Neal v. State, 80 A.3d 935, 946 (Del.
2013).
55
Strickland, 466 U.S. at 688-94; see also Alston v. State, 2015 WL 5297709, at *3 (Del. Sept.
4, 2015).

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did.”56 There is a strong presumption that counsel’s representation was reasonable,57

and “[i]t is not this Court’s function to second-guess reasonable [ ] tactics” engaged

by trial counsel.58 Indeed, an attorney’s strategic or tactical choices made after

thorough investigation of the relevant law and facts are virtually unchallengeable.59

(27) Too, one claiming ineffective assistance “must make specific

allegations of how defense counsel’s conduct actually prejudiced the proceedings,

rather than mere allegations of ineffectiveness.”60 This second prong requires the

claimant to “show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”61

(28) An inmate must prove both deficient attorney performance and

resulting prejudice to succeed in making an ineffective assistance of counsel claim.

56
Green v. State, 238 A.3d 160, 174 (Del. 2020) (citing Burger v. Kemp, 483 U.S. 776, 791
(1987)).
57
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
58
State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002).
59
Green, 238 A.3d at 174.
60
Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015
WL 1407856, at *3 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del.
1996)); Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003).
61
Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 694).

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Failure in the first instance to prove either will doom his claim and the Court need

not address the other.62

(29) There are a few situations that the United States Supreme Court has

recognized to be so egregious that an ineffectiveness claimant need not prove the

prejudice prong of the traditional Strickland test. In United States v. Cronic, the

Court set out three “circumstances that are so likely to prejudice the accused that the

cost of litigating their effect in a particular case is unjustified.”63 These are:

(i) where there was complete denial of counsel at a critical stage of the proceeding;64

(ii) where “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing”;65 and, (iii) “where counsel is called upon to render assistance

under circumstances where competent counsel very likely could not . . . .”66

(30) In his first five claims of ineffective assistance of counsel against

Mr. Wilkinson, Mr. Jackson seeks to invoke the Cronic standard, claiming that he

was denied counsel altogether and counsel entirely failed to subject the prosecution’s

62
Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a
two-pronged test, and there is no need to examine whether an attorney performed deficiently if the
deficiency did not prejudice the defendant.”); State v. Hamby, 2005 WL 914462, at *2 (Del. Super.
Ct. Mar. 14, 2005).
63
United States v. Cronic, 466 U.S. 648, 658 (1984).
64
Id. at 659.
65
Id.
66
Bell v. Cone, 535 U.S. 685, 696 (Del. 2002).

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case to meaningful adversarial testing.67 But before the Court will “presume

prejudice under Cronic, there must be a complete failure of counsel.”68 As set out

below, there was no “complete failure of counsel.” No, Mr. Jackson’s contentions

exhibit more of either his complete disagreement with or complete misunderstanding

of the professional decisions Mr. Wilkinson made, and the professional acts

Mr. Wilkinson took—acts taken with, at least, some favorable results—in

Mr. Jackson’s defense. Thus, Mr. Jackson’s claims will all be subject to the

traditional Strickland analysis.

1. “Refusal” to allow Mr. Jackson to testify.

(31) In his first contention of ineffective assistance of trial counsel,

Mr. Jackson complains that Mr. Wilkinson refused to let him take the stand at trial

to “tell his story.”69 But the trial record supports no such claim.

(32) Mr. Jackson has not shown that Mr. Wilkinson’s representation here

was deficient. The “ultimate authority to make certain fundamental decisions

regarding [his] case”—which include whether to plead guilty, waive trial by jury,

67
Def.’s PCR Memo. ¶¶ 1-5.
68
Jackson v. Carroll, 161 F. App’x. 190, 193 (3d Cir. 2005); State v. Jackson, 2008 WL 5048424,
at *18 n.134 (Del. Super. Ct. Nov. 25, 2008).
69
Def.’s PCR Memo. ¶ 1.

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testify, or appeal—lays with the criminal defendant.70 Indeed, a choice like whether

to testify or not “implicate[s] [an] inherently personal right[]” the consequence of

which falls on the defendant alone and is “too important to be made by anyone

else.”71

(33) That said, a criminal defense attorney no doubt has a duty to advise his

client regarding the waiver of such a core right.72 “Defense counsel bears the

primary responsibility for advising the defendant of his right to testify or not to

testify, the strategic implications of each choice, and that it is ultimately for the

defendant himself to decide.”73 Mr. Wilkinson clearly understood his role and

explained that it is always his practice to inform clients of their right to take the stand

and that such a decision belongs to the client rather than the lawyer who only

advises.74 The trial record demonstrates that is precisely what he did here.

(34) At bottom, when complaining of his lawyer’s conduct regarding a

70
Taylor v. State, 28 A.3d 399, 406 (Del. 2011) (quoting Jones v. Barnes, 463 U.S. 745, 751
(1983)).
71
Cooke v. State, 977 A.2d 803, 841-42 (Del. 2009).
72
United States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995) (“The duty of providing such advice
and of ensuring that any waiver [of the right to testify] is knowing and intelligent rests with defense
counsel.”).
73
United States v. Anderson, 1 F.4th 1244, 1254 (11th Cir. 2021) (quoting United States v.
Teague, 953 F.2d 1525, 1533 (11th Cir. 1992) (en banc)).
74
Trial Counsel Aff. ¶ 2.

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waiver of the right to testify, a defendant bears the burden of proving that his counsel

was unreasonable and that counsel’s deficiency affected defendant’s waiver of that

right.75 Thus, Mr. Jackson would—to carry his burden on such a claim—have to

demonstrate some deficiency in Mr. Wilkinson’s discussion with him about the

waiver of his right to testify and then demonstrate that deficiency somehow tainted

Mr. Jackson’s waiver to such a degree as to overcome the trial (and supplemented

postconviction) record and make the Court seriously question the waiver.76

(35) During the trial, Mr. Jackson’s right to testify and his choice of whether

to exercise that right were addressed squarely.77 To be sure, Mr. Jackson vacillated

on whether to testify or not.78 But after much back-and-forth, Mr. Jackson ultimately

told the Court he did not want to testify, and that was his individual and independent

decision.79 There is simply no support for Mr. Jackson’s suggestion that he was

75
See, e.g., State v. Taye, 2014 WL 785033, at *3 (Del. Super. Ct. Feb. 26, 2014), aff’d, 2014
WL 4657310 (Del. Sept. 18, 2014) (noting the defendant’s burden when raising a claim of
ineffective assistance regarding waiver of a jury trial).
76
Teague, 953 F.2d at 1534 (“Where the defendant claims a violation of his right to testify by
defense counsel, the essence of the claim is that the action or inaction of the attorney deprived the
defendant of the ability to choose whether or not to testify in his own behalf.”).
77
See PCR App. at A145-A146.
78
Id. at A146.
79
Id.

THE COURT: So, Mr. Jackson, you understand that your choice as to testify or not
testify is yours, and yours alone, right?

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prevented from testifying or that Mr. Wilkinson performed deficiently here in any

way.

2. Failure to cross-examine the State’s witnesses or to present defense
witnesses to refute that Mr. Jackson was seen with a firearm.

(36) In Mr. Jackson’s second contention of ineffective assistance of trial

counsel he says that Mr. Wilkinson did not cross-examine any of the State’s

witnesses. He also suggests that Mr. Wilkinson was ineffective for failing to call

any defense witnesses who could have testified that they never observed Mr. Jackson

“with a gun in or around the house.”80 Such testimony, says Mr. Jackson, could have

changed the outcome “because it wasn’t a drug case anymore.”81 To prevail on this

MR. JACKSON: Yes.

THE COURT: Mr. Wilkinson can give you his best advice, but at the end you can
set that advice aside, and it is your own individual decision. Do you
understand that?

MR. JACKSON: Yes.

* * *

THE COURT: Mr. Jackson, are you telling the Court that you have changed your
mind and you do not wish to take the stand?

MR. JACKSON: Yes.

THE COURT: That’s your own individual decision?

MR. JACKSON: Yes.
80
Def.’s PCR Memo. ¶ 2.
81
Id.

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claim, Mr. Jackson must prove, again, (i) deficient performance, and (ii) resulting

prejudice.82 And again, he doesn’t.

(37) A criminal defense attorney is given wide latitude when making

strategic trial decisions; this extends to the conduct of cross-examination.83

The questions to be asked and how a given cross-examination is conducted are

tactical decisions.84 “And when challenging those decisions, the movant has the

burden of supplying precisely what information would have been obtained had

counsel conducted the cross as the complaining inmate desired and just how this

information would have changed the result of his trial.”85

(38) The testimony presented at this bench trial was brief and comprised five

witnesses called by the State. Mr. Wilkinson cross-examined two of the State’s

witnesses—and both times, he consulted Mr. Jackson before concluding his

82
Strickland, 466 U.S. at 688-94.
83
State v. Powell, 2016 WL 3023740, at *25 (Del. Super. Ct. May 24, 2016).
84
Outten v. State, 720 A.2d 547, 557 (Del. 1998) (“Whether to call a witness, and how to
cross-examine those who are called are tactical decisions.”); see also Jean K. Gilles Phillips and
Joshua Allen, Who Decides: The Allocation of Powers Between the Lawyer and the Client in a
Criminal Case?, 71 J. KAN. BAR ASS’N 28, 29 (2002) (citing Wainwright v. Sykes, 433 U.S. 72,
93 n.1 (1977)) (“[T]he United States Supreme Court [has] held that the attorney possesses the right
to decide certain strategic and tactical decisions, including what witnesses to call, whether and
how to conduct cross-examination, what trial motions should be made, and what evidence should
be introduced.”).
85
State v. Caulk, 2021 WL 2662250, at *9 (Del. Super. Ct. June 29, 2021), aff’d, 2022
WL 320575 (Del. Feb. 2, 2022) (citing Outten, 720 A.2d at 557 (quoting United States v.
Rodriguez, 53 F.3d 1439, 1449 (7th Cir. 1995))).

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questioning.86 Nevertheless, to the extent Mr. Jackson now disagrees with the

manner cross-examination was conducted, Mr. Wilkinson has explained that he

avoided asking certain questions either because of their lack of strategic value or

because such a line of questioning would have prejudiced Mr. Jackson.87

(39) No doubt, Mr. Wilkinson subjected the prosecution’s case to

meaningful adversarial testing and did so with Mr. Jackson’s objectives in mind.

For instance, Mr. Jackson’s fifth enumeration of ineffective assistance of counsel

says Mr. Wilkinson failed to inquire whether either of the guns fit into the recovered

holster.88 Not so. Before concluding his cross-examination of one officer,

Mr. Wilkinson asked the Court “for a couple of moments”—ostensibly to confer

with Mr. Jackson. He resumed cross-examination by inquiring whether “there was

any attempt to see if either one of those guns fit in that holster.” 89 This is just one

example of the many where a complaint lodged by Mr. Jackson is undermined by

the factual record. A thorough examination of the record reveals that

86
See PCR App. at A130 (“Can I have a couple of moments?”); id. at A145 (“Can I just have a
couple moments?”).
87
Trial Counsel Aff. ¶¶ 4-6.
88
Def.’s PCR Memo. ¶ 5.
89
PCR App. at A130.

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Mr. Wilkinson’s conduct in challenging the State’s witnesses was informed and

reasonable.

(40) Neither was counsel ineffective for not calling some unidentified

defense witness that Mr. Jackson now suggests might have been helpful.

Recall, Mr. Jackson’s DNA had been found on at least one of the guns. So this ideal

witness would have to know enough about 434 S. Van Buren’s inhabitants and

contents to be helpful, but still clearly confirm Mr. Jackson purportedly had nothing

to do with the gun-laden cooler. Given the facts of this case, that’s a tall order.

Mr. Wilkinson had decided to take the safer route of stressing the weaknesses of the

State’s evidence in his closing arguments.90 Namely, that two guns were discovered

well-concealed in a messy room that Mr. Jackson had only been seen walking out of

and that there had been no eyewitness testimony placing the secreted guns in

Mr. Jackson’s hands.91 He used the State’s own witnesses to support his theory that

any damning DNA findings were the result of transfer, not handling.

(41) Mr. Wilkinson also was careful to avoid evidence of the precipitating

drug investigation. While the fact that the police obtained a warrant to search for

drugs but never found any has always been a fixation for Mr. Jackson, as a legal

90
Id. at A148.
91
Id.

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matter it is of no moment. And Mr. Wilkinson’s informed decision—that straying

into the minefield of the drug investigation that identified Mr. Jackson as the dealer

in that home was of far more harm than any possible good—was sound. Indeed, by

keeping the drug evidence out, Mr. Wilkinson focused the Court on the arguably

tenuous nexus between Mr. Jackson and the seized firearms.

(42) Mr. Jackson has failed to show that Mr. Wilkinson’s cross-examination

methods or decision not to call certain unidentified witnesses fell below an objective

standard of reasonableness. And with this failure alone, the Court need not address

Strickland’s prejudice inquiry.92

3. Failure to prosecute a motion to suppress challenging the admissibility
of the firearms seized on either Miranda grounds or a claim that the
warrant executed did not authorize the seizure of the guns found.

(43) Mr. Jackson’s third, fourth, and multiple of his later claims of

ineffective assistance of trial counsel focus on separate but related issues. He faults

Mr. Wilkinson for failing to pursue a suppression motion attacking a potential

Miranda violation. And, he says, because the firearms were discovered after he

invoked his right to remain silent, he faults Mr. Wilkinson for not challenging their

admission as evidence against him on that ground.93 Lastly, he says the police should

92
Hamby, 2005 WL 914462, at *2 (“[T]he failure to prove either the [deficient performance] or
the prejudice prong will render the [Strickland] claim unsuccessful. In such instances, the court
need not address the other prong.”).
93
Def.’s PCR Memo. ¶¶ 3, 4, 10, 16.

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have never seized the guns found because the search warrant executed was issued to

search for drugs.

(44) First, Mr. Jackson was not prejudiced by counsel’s failure to pursue a

Miranda-based suppression motion because the same objective was achieved by

other means. Trial counsel’s cross-examination at the preliminary hearing elicited

testimony that, upon post-Miranda police probing, Mr. Jackson claimed ownership

of the firearms found at 434 S. Van Buren. Presumably, then, a suppression motion

would operate to prevent the use of that admission at trial. But both trial counsel

and the State confirm they had a pretrial agreement that the State would not introduce

what Mr. Jackson told the officers about the guns.94 So, suppression motion or not,

the same result was still achieved at trial—Mr. Jackson’s statements acknowledging

ownership of the guns were never admitted. Mr. Jackson cannot identify what more

a suppression motion aimed at his statements at the scene would have gained.

Accordingly, this aspect of the claim fails.

(45) Mr. Jackson next insists that had a Miranda-based suppression motion

been filed, it would have been successful on the merits and the firearms would have

94
Trial Counsel Aff. ¶ 3; see also State’s Resp. at 1-2 (confirming the State and trial counsel had
an agreement that the State would not “mention the admission by Jackson that the guns were his
at trial”).

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been suppressed.95 That is, Mr. Jackson suggests that the police would not have

located the guns had he not spoken up.

(46) Further following his theme that some type of suppression motion was

in order, Mr. Jackson contends also that the officers exceeded the scope of the “four

corners” of the search warrant they executed because it authorized the seizure of

drugs rather than firearms.96 This was addressed by this Court at trial and again by

the Delaware Supreme Court on direct appeal. In short, Mr. Wilkinson wasn’t

unreasonable for failing to try to exclude the guns on these grounds nor can

Mr. Jackson show any resultant prejudice.

(47) Addressing the mild discord between Mr. Jackson and Mr. Wilkinson

during trial, the Court engaged Mr. Jackson directly, noting that he seemed

“concerned that Mr. Wilkinson is not raising some issue that [he wished] to have

raised.”97 After reviewing the warrant and hearing Mr. Jackson’s concerns, the

Court explained the applicable law.

THE COURT: So your concern is they had a search warrant to look for
cocaine in the house, but they found guns, correct?

MR. JACKSON: Yes. The provisions of the search warrant said that I had
a large amount of crack in the house. They didn’t find no
crack whatsoever in the house.
95
Def.’s PCR Memo. ¶¶ 6, 7, 12, 13, 14, 16.
96
Id.
97
PCR App. at A134.

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 THE COURT: Generally, once a search warrant is issued, the police then
have the authority to search any place within the confines
of the warrant, here being the residence and your person,
that may, in fact, have drug evidence.

The fact that they may not find it, but find other evidence,
or other contraband, or such things, generally that is
permitted by law, Mr. Jackson. So I’m not quite sure
what your complaint at this point would be.

* * *
THE COURT: So, Mr. Jackson, it appears that there was a search warrant
initially, because the police had developed probable cause
to believe there may be drug evidence in that home. . . .
They ended up finding guns while they were searching
for drugs, which is not – there is nothing impermissible
about that, as long as they were searching places for
which they had a warrant and places that could actually
hold that type of evidence.98

In affirming Mr. Jackson’s conviction on direct appeal—where he raised this same

issue—the Delaware Supreme Court also rejected his argument observing: “The

Superior Court correctly summarized the law and its application in this case.”99

(48) Each of Mr. Jackson’s suppression claims—no matter what the

flavor—fails because the police were acting within the lawful scope of the warrant

that authorized their search of 434 S. Van Buren Street when they seized the guns100

98
Id. at A134-A135.
99
Jackson, 2019 WL 5067096, at *2.
100
Id.

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and those guns would have been found in the normal course of that search no matter

what Mr. Jackson said or withheld.

(49) To be sure—even where there is actual evidence of police misdoing—

the “inevitable discovery” doctrine allows introduction of evidence seized if the

prosecution can prove such evidence “would have been discovered through

legitimate means in the absence of official misconduct.”101 A “legitimate” search

includes “the entire area in which the object of the search may be found and is not

limited by the possibility that separate acts of entry or opening may be required to

complete the search.”102 Here, the search of Mr. Jackson’s home was conducted

pursuant to a lawful search warrant.103 Because a cooler was a place that reasonably

could conceal drugs, the police officers would have searched it and the guns

inevitably would have been found there. So, the guns were lawfully discovered. No

suppression motion attacking any aspect of the guns’ discovery could have affected

the outcome of Mr. Jackson’s trial—the guns were legally seized and admissible.

101
Cook v. State, 374 A.2d 264, 267-68 (Del. 1977) (quoting Harold S. Novikoff, The Inevitable
Discovery Exception to the Constitutional Exclusionary Rules, 74 COLUM. L. REV. 88, 90 (1974)).
102
United States v. Ross, 456 U.S. 798, 820-21 (1982).
103
See PCR App. at A88-A96.

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Because Mr. Jackson demonstrates no resultant prejudice, his third and fourth claims

of ineffective assistance of trial counsel fail.104

4. Mr. Jackson’s remaining claims are cumulative or repetitive attacks
on Mr. Wilkinson’s trial strategy and trial management.

(50) To the extent the substance of his remaining claims has not already been

addressed, Mr. Jackson’s ineffective assistance of counsel counts six through sixteen

are by-and-large complaints on the tactical decisions pursued at trial. At bottom,

each claim is a recast criticism of trial counsel’s cross-examination of witnesses (or

lack thereof) and his failure to explore the absence of drugs found in the home. As

to each and collectively, Mr. Jackson has not demonstrated there is a reasonable

probability that a different approach would have affected the outcome of his case.

So, again, he cannot satisfy the Strickland standard.

(51) “The lawyer’s province is trial management, but some decisions are

reserved for the client.”105 The decisions reserved for the client embrace the

objectives of the defense, such as whether to plead guilty or assert claims of

innocence, waive the right to a jury trial, or take the stand and testify.106 Conversely,

104
Ploof, 75 A.3d at 821 (“To establish prejudice, ‘[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’”); Green v. State, 238 A.3d 160, 174-75 (Del. 2020) (“We may dispose
of an ineffective-assistance claim based on the absence of sufficient prejudice without addressing
the performance prong if, in fact prejudice is lacking.”).
105
McCoy v. Louisiana, 138 S. Ct. 1500, 1503 (2018).
106
Id.
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the decisions affecting the conduct of the trial, such as “the objections to make, the

witnesses to call, and the arguments to advance” are trial management decisions left

to the lawyer.107

(52) Here, trial counsel neither overstepped nor blurred the boundaries of

his trial management domain. As to the decisions reserved for the defendant, the

record is clear that Mr. Jackson’s plea offer rejection,108 jury trial waiver,109 and

decision not to testify were of his own volition.110 With respect to cross-

examination—a function well-within trial counsel’s province—the record evidences

trial counsel’s efforts to include Mr. Jackson’s input for each witness questioned.111

And once the State rested, Mr. Wilkinson asked for the Court’s indulgence several

times—including a request to recess—to confer with Mr. Jackson before delivering

107
Id. at 1509 (quoting Gonzalez v. United States, 553 U.S. 242, 249 (2008)); see also Taylor v.
State, 28 A.3d 399, 405-406 (Del. 2011). Mr. Jackson was reminded of this delicate dichotomy
between counsel and client time and again during his trial. E.g., PCR App. at A139 (“Mr. Jackson,
as I’ve indicated to you before, you have counsel. And it is your counsel’s job to do the day-to-
day job of presenting your case.”); see also id. at A130 (“Mr. Jackson, I’m going to stop you right
now. One, you are represented by counsel. That means if you have objections or things like that,
they have to come through him.”).
108
Id. at A43-A49.
109
Id. at A125-A126.
110
Id. at A145-A146.
111
Id. at A130, A145.

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closing arguments.112 Thus, Mr. Jackson has neither shown that Mr. Wilkinson’s

trial management and strategies fell below an objective standard of reasonableness,

nor has he shown how an alternate approach would have changed the outcome.

(53) To reiterate, trial counsel didn’t pursue lines of questioning suggested

by Mr. Jackson because he did not believe there was any strategic value to them.113

Nor did counsel elicit testimony about the drug investigation and lack of drugs found

in the home because those were both irrelevant to Mr. Jackson’s guilt on the gun

charges and could have proved far more prejudicial than beneficial to him.114 And

finally, counsel did not ultimately prosecute any challenge to the admissibility of the

guns because their inevitable discovery rendered such a challenge futile.115 These

were all sound tactical choices made by informed counsel. And with this failure

alone, the Court need not go further in its Strickland examination.116

112
Id. at A145, A146.
113
Trial Counsel Aff. ¶¶ 4-6.
114
Id. ¶ 5.
115
Id.
116
Ploof, 75 A.3d at 821 (“If an attorney makes a strategic choice after thorough investigation of
law and facts relevant to plausible options, that decision is virtually unchallengeable.”) (cleaned
up); State v. Davenport, 2018 WL 3584437, at *2 n.13 (Del. Super. Ct. July 24, 2018) (“The Court
will defer to reasonable strategic decisions of Trial Counsel.”), aff’d, 2019 WL 2513771 (Del. June
17, 2019).

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 V. CONCLUSION

Having reviewed the record carefully, the Court has concluded that

Mr. Jackson’s claims are without merit, and no other substantial grounds for relief

exist. Mr. Jackson hasn’t shouldered his heavy Strickland burden of demonstrating

that his attorney’s representation fell below an objective standard of reasonableness

or that, but for that attorney’s alleged errors, the outcome of his case would have

been any different. Accordingly, both Mr. Jackson’s Motion for Postconviction

Relief and his request for an evidentiary hearing are DENIED117 and Mr. Eaton’s

Motion to Withdraw is GRANTED.

IT IS SO ORDERED.

Paul R. Wallace, Judge
Original to Prothonotary
cc: John S. Taylor, Esquire
Edward F. Eaton, Esquire
Ralph D. Wilkinson, Esquire
Santino Ceccotti, Esquire
Mr. Gigere F. Jackson, pro se

117
Where it is apparent on the face of a postconviction motion, the responses thereto, the record
of prior proceedings, and any added materials that a movant is not entitled to relief, there is no
need for an evidentiary hearing. Johnson v. State, 2015 WL 8528889, at *4 (Del. Dec. 10, 2015)
(quoting Hawkins v. State, 2003 WL 22957025, at *1 (Del. Dec. 10, 2003)).

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