      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                         )
                                          )
      v.                                  )     I.D. # 0003016874
                                          )
MILTON TAYLOR,                            )
                                          )
                  Defendant.              )

                          Submitted: March 23, 2018
                           Decided: June 28, 2018

      Upon Taylor’s Second Motion for Postconviction Relief: DENIED
                                  OPINION


Herbert Mondros, Esquire, of MARGOLIS EDELSTEIN, Wilmington, Delaware,
Attorney for Milton Taylor.
Elizabeth R. McFarlan, Esquire, and Maria T. Knoll, Esquire, of the STATE OF
DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorneys
for the State.




LeGrow, J.
      In his amended second motion for postconviction relief (the “Motion”)

under Superior Court Criminal Rule 61, Defendant raises myriad claims that (1)

already were raised in his earlier proceedings before this Court and the Delaware

Supreme Court, and/or (2) could have been raised in earlier proceedings, but were

not. Defendant acknowledges most of those claims procedurally are barred under

the version of Rule 61 that was in effect at the time he first filed his second

postconviction motion, but he argues—against binding Delaware Supreme Court

authority—that that version of the rule does not apply in this case. Defendant

alternatively argues he overcomes the procedural bars in the amended rule by

presenting claims of actual innocence.

      Defendant’s motion procedurally is barred by Rule 61 and established

Delaware Supreme Court precedent. His Motion, however, requires this Court to

consider, in an apparent issue of first impression in this state, whether a claim of

actual innocence under Rule 61 may include a claim that new evidence negates the

state of mind required to convict a defendant of the crime at issue. I conclude

actual innocence does not include evidence negating a defendant’s intent to

commit a crime, and that Taylor’s “new evidence” therefore does not satisfy the

actual innocence exception to Rule 61’s procedural bars. Accordingly, Taylor’s

Motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
       On the morning of March 23, 2000, a maintenance worker at the Compton

Townhouse complex in Wilmington discovered Theresa Williams’ body bloody,

badly beaten, and concealed in a blanket with a cord wrapped around her neck.

The police identified Milton Taylor as a suspect upon learning Taylor previously

had a relationship with Williams and had been seen in the vicinity of Williams’

apartment on the morning Williams’ body was discovered.

       On March 25, 2000, the police arrested Taylor at a payphone in downtown

Wilmington. During the routine inventory procedure at the police station, Officer

Ronald Muniz discovered a folded piece of paper in Taylor’s clothes that later was

revealed to be Taylor’s written confession to murdering Williams (the “confession

letter”).   An investigation revealed Taylor previously had a relationship with

Williams, but had become involved with a new girlfriend. Taylor’s new girlfriend

threatened to leave him unless he ended contact with Williams. When Taylor

visited Williams to end contact with her, he strangled her to death.

       On March 31, 2001, the jury convicted Taylor of first degree murder. At the

penalty phase, the jury recommended the death penalty by a vote of 10 to 2, and

the judge sentenced Taylor to death.       In 2003, the Delaware Supreme Court

affirmed Taylor’s conviction, and the United States Supreme Court denied his

petition for writ of certiorari.


                                          2
         In March 2006, Taylor filed his first motion for postconviction relief. In

September 2009, Taylor filed his amended first motion for postconviction relief.

In August 2010, the Court denied his motion after multiple depositions and filings.

In November 2014, Taylor filed his second motion for postconviction relief, but

the trial judge refused the filing on the basis that Taylor’s habeas corpus petition,

which then was pending in federal district court, left this Court without jurisdiction

to consider postconviction relief. Taylor ultimately filed a writ of mandamus

petition with the Delaware Supreme Court, and that Court directed this Court to

vacate its order and accept a postconviction motion from Taylor. This Court then

vacated its order refusing to docket Taylor’s second postconviction motion.1

         On September 9, 2016, at Taylor’s request, the Court stayed Taylor’s motion

pending the Delaware Supreme Court’s decision in Powell v. State.2 The decision

in Powell, issued December 15, 2016, retroactively declared Delaware’s capital

sentencing structure unconstitutional. In April 2017, the Court vacated Taylor’s

death sentence and resentenced him to life-imprisonment without probation or

parole.      On August 25, 2017, Taylor filed his amended second motion for

postconviction relief (the “Motion”).

         In support of his Motion, Taylor argues the Court should apply the pre-2014

version of Rule 61 because Taylor’s first postconviction petition was filed before

1
    D.I. 260.
2
    153 A.3d 69 (Del. 2016).
                                          3
the June 4, 2014, amendments to Rule 61. Taylor then raises multiple claims for

relief from his conviction.       First, Taylor argues his trial counsel rendered

ineffective assistance by failing to: (i) retain a forensic pathologist to rebut the state

medical examiner’s trial testimony; (ii) present a defense of extreme emotional

distress; (iii) object to admission into evidence of the fact of Williams’ pregnancy

at the time of her death; (iv) correctly litigate the suppression of Taylor’s

confession letter; (v) object to the death qualification of the jury; and (vi) object to

prosecutorial misconduct during Taylor’s trial.

      Second, Taylor argues the death qualification process and alleged jury

tainting violated his right to a fair and impartial jury. Third, Taylor contends

prosecutorial misconduct rendered his trial fundamentally unfair because the

prosecution called Williams’ sister to testify. Fourth, Taylor argues the above

claims violated his due process rights. Fifth, Taylor argues appellate counsel

rendered ineffective assistance by failing to make the above arguments during

Taylor’s various appeals. Finally, Taylor argues he is entitled to a new trial based

on the prejudicial effects of the alleged cumulative errors mentioned above.

ANALYSIS

   A. Amended Rule 61 applies to Taylor’s Motion.
      The State argues Taylor’s Motion procedurally is barred under the version of

Rule 61 in effect at the time he filed his Motion (“amended Rule 61”). Taylor


                                            4
challenges on multiple grounds amended Rule 61’s applicability to his Motion.

First, Taylor argues the pre-2014 version of Rule 61 applies to his Motion because

his first motion for postconviction relief was filed on September 30, 2009, before

Rule 61’s 2014 amendments. Taylor argues applying amended Rule 61 would

violate the due process and fair notice requirements of the Delaware and United

States Constitutions that prohibit a state from applying a rule that was announced

after a petitioner’s “alleged default.”3 Second, Taylor argues applying amended

Rule 61 to his Motion would abridge his rights under the Delaware Supreme

Court’s decision in Guy v. State,4 which, according to Taylor, entitles petitioners to

raise an initial ineffective assistance of post-conviction counsel claim.

       Third, Taylor argues amended Rule 61 limits his habeas corpus right under

common law and the Suspension Clauses of the Delaware and United States

Constitutions. Fourth, Taylor argues review of his Motion is required in the

interest of justice and to prevent a miscarriage of justice under the pre-2014

version of Rule 61. Taylor contends review of his Motion is required to prevent a

miscarriage of justice because it contains “colorable claims” that undermine the

reliability of his conviction. Taylor also asserts a review of his Motion is required

3
  Mot. Postconviction Relief v. In an apparent bid to overcome the page limitations applicable to
his Motion, Taylor placed his procedural arguments in a separate, “introductory” section that was
numbered with Roman numerals. This is gamesmanship in its purest form and not condoned or
excused by this Court, particularly since this Court previously expressly denied Taylor’s request
for a higher page limit. Should counsel attempt something similar in this or any other case
before this Court, he will be sanctioned and/or referred to disciplinary counsel.
4
  82 A.3d 710 (Del. 2013).
                                               5
in the interest of justice because new evidence allegedly undermines his

conviction. In the alternative, Taylor argues his Motion overcomes the procedural

bars under amended Rule 61 because the Motion presents new evidence that

Taylor actually is innocent of the charges that led to his conviction.

       The order amending Rule 61 provides “This amendment shall be effective

on June 4, 2014 and shall apply to postconviction motions filed on or after that

date.”5 The Delaware Supreme Court has upheld application of amended Rule 61

to motions filed even shortly after the rule’s amendment.6 Taylor argues applying

amended Rule 61 would violate the notice requirements discussed in the Third

Circuit’s decision in Fahy v. Horn7 because amended Rule 61 was not in place at

the time of Taylor’s alleged default. In Fahy, the Third Circuit held:

              Procedural default occurs when a state court declined to
              address a prisoner’s federal claims because the prisoner
              had failed to meet a state procedural requirement. For a
              federal habeas claim to be barred by procedural default,
              however, the state rule must have been announced prior
              to its application in the petitioner’s case and must have
              been firmly established and regularly followed.8

The federal requirement is designed to (1) ensure that a habeas petitioner is on

notice of how to follow the state procedural rules when filing his petition; and (2)

5
  See Order Amending Super. Ct. Crim. R. 61.
6
  See, e.g., Cannon v. State, 127 A.3d 1164 (Del. 2015) (applying amended Rule 61 to a motion
filed merely six months after Rule 61 was amended).
7
   516 F.3d 169 (3d Cir. 2008) (holding Pennsylvania procedural rules could not bar federal
review of the state court’s decision because the rules were not firmly established at the time of
the prisoner’s default).
8
  Id. at 187.
                                               6
prevent discrimination by means of inconsistently-applied procedural rules through

whim or prejudice against a claimant. “[W]hether the rule was firmly established

and regularly followed is determined as of the date the default occurred, not the

date the state court relied on [the rule], because a petitioner is entitled to notice of

how to present a claim in state court.”9

       Here, a procedural default claim is unripe because Taylor is not asking a

federal court to review a state court’s decision that Taylor’s Motion was barred on

procedural grounds. Further, Taylor cannot be said to have defaulted until this

Court finds his Motion procedurally is barred. Because I find that Taylor’s Motion

is barred, however, I will address the procedural default claim for the sake of a

complete record and efficient judicial review.

       Taylor’s procedural default claim does not meet the federal requirements

under Fahy.        Amended Rule 61 was firmly established by the date Taylor

submitted his Motion in August 2017, which is the date a federal court would use

to determine whether a default occurred.10 Although Taylor filed his first amended

motion in September 2009, his current Motion was filed in August 2017, more than




9
  Id. at 188.
10
   Taylor appears to argue that the “default” occurred at the time of the alleged error, or at the
latest at the time his first motion for postconviction relief was filed. He cites no authority for this
proposition, and the argument does not withstand even the barest scrutiny. Taylor “defaulted” at
the time he filed the motion that failed to comply with the rule.
                                                  7
three years after Rule 61 was amended.11 Taylor therefore was on notice for more

than three years how to follow amended Rule 61’s procedural rules. Additionally,

Delaware courts consistently have applied amended Rule 61 in reviewing

postconviction motions filed over the past four years. Accordingly, Taylor’s notice

requirements under Fahy were satisfied.

       Second, Taylor argues amended Rule 61 cannot abridge his right to raise an

initial ineffective assistance of postconviction counsel claim under Guy. In Guy,

the Delaware Supreme Court held a defendant may pursue a claim of ineffective

assistance of postconviction counsel up to one year after the defendant’s initial

motion for postconviction relief is concluded.12 Guy, however, was decided before

Rule 61 was amended in 2014.                   Amended Rule 61 includes procedural

requirements that all motions for postconviction relief must meet notwithstanding

the decision in Guy. In Durham v. State,13 the Delaware Supreme Court noted

Rule 61’s limitation of the Guy decision in view of the 2014 amendments.

               In June 2014, Rule 61 was substantially amended with
               the adoption, among other things, of a new pleading
               standard for second or subsequent motions for

11
   Even if the Court applies the November 2014 date on which Taylor first attempted to file his
second motion for postconviction relief, that motion still was filed several months after the
amendments to Rule 61 took effect.
12
   Guy v. State, 82 A.3d 710, 715 (Del. 2013) (“[W]e conclude that fairness requires that the one-
year time limitation on a claim of ineffective assistance of postconviction counsel shall begin to
run when the defendant’s appeal to this Court from the Superior Court’s denial of his first motion
for postconviction relief is concluded or, if no appeal was taken, within 30 days following the
Superior Court’s denial of the defendant’s first motion for postconviction relief.”).
13
   173 A.3d 1061 (Table) (Del. 2017).
                                                8
                  postconviction relief. The new pleading standard—found
                  in Rule 61(d)(2) and incorporated in Rule 61(i)(2) and
                  (i)(5)—provides that any second or subsequent
                  postconviction motion will be summarily dismissed
                  unless the movant was convicted after a trial and the
                  motion either: (i) pleads with particularity that new
                  evidence exists to establish the movant’s actual
                  innocence in fact; or (ii) pleads with particularity that a
                  new, retroactively applicable constitutional rule applies
                  to the movant’s case and renders a conviction or death
                  sentence invalid. Rule 61(d)(2), and the other
                  amendments to Rule 61 in June 2014, were made
                  effective on June 4, 2014[,] and apply to motions for
                  postconviction relief filed on or after that date, including
                  Durham’s motion filed in February 2017.

                  Durham argues that, because the claims raised in his
                  second postconviction motion consisted entirely of
                  claims of ineffective assistance of postconviction
                  counsel, the claims should have been considered on their
                  merits under Guy v. State because Durham had no prior
                  opportunity to raise the claims, and he raised the claims
                  in a timely fashion. But Durham’s argument disregards
                  the pleading requirements now in effect under Rule
                  61(d)(2). The Superior Court was required to consider the
                  procedural requirements of Rule 61(d)(2) before
                  addressing any of the substantive issues raised in his
                  second postconviction motion.14

Under amended Rule 61, therefore, this Court cannot consider the substantive

issues raised in Taylor’s Motion if it fails to overcome amended Rule 61’s

procedural bars.

          Third, Taylor argues amended Rule 61 suspends Taylor’s habeas corpus

rights and thereby violates the Delaware Constitution. Taylor argues amended

14
     Id. (citations omitted).
                                               9
Rule 61 improperly limits the relief provided in the pre-2014 version of the rule,

namely a petitioner’s right to bring renewed applications for postconviction relief

if consideration of the claim is warranted in the interest of justice or to prevent a

miscarriage of justice.

         Taylor’s argument previously was rejected by the United States Supreme

Court. Title 28, Section 2244(b) of the United States Code contains a provision

similar to amended Rule 61. Section 2244(b) provides, in relevant part:

                 (2) A claim presented in a second or successive habeas
                 corpus application under section 2254 that was not
                 presented in a prior application shall be dismissed unless-
                 -

                 (A) the applicant shows that the claim relies on a new
                 rule of constitutional law, made retroactive to cases on
                 collateral review by the Supreme Court, that was
                 previously unavailable; or

                 (B)(i) the factual predicate for the claim could not have
                 been discovered previously through the exercise of due
                 diligence; and
                 (ii) the facts underlying the claim, if proven and viewed
                 in light of the evidence as a whole, would be sufficient to
                 establish by clear and convincing evidence that, but for
                 constitutional error, no reasonable factfinder would have
                 found the applicant guilty of the underlying offense.15




15
     28 U.S.C. § 2244(b) (2016).
                                             10
In Felker v. Turpin,16 the United States Supreme Court held Section 2244(b) does

not act as an unconstitutional suspension of the right to habeas corpus. Rather, the

Court found Section 2244 codified common law limits on successive petitions.

               The new restrictions on successive petitions constitute a
               modified res judicata rule, a restraint on what is called in
               habeas corpus practice “abuse of the writ.” In McCleskey
               v. Zant, we said that “the doctrine of abuse of the writ
               refers to a complex and evolving body of equitable
               principles informed and controlled by historical usage,
               statutory developments, and judicial decisions.” The
               added restrictions which the Act places on second habeas
               petitions are well within the compass of this evolutionary
               process, and we hold that they do not amount to a
               “suspension” of the writ contrary to Article I, § 9.17

The Supreme Court therefore concluded that the federal statute’s limitation on

renewed applications for postconviction relief does not violate the United States

Constitution’s Suspension Clause.

       The Delaware Supreme Court rejected a similar constitutional challenge to

amended Rule 61 in Turnage v. State.18                 In Turnage, the petitioner claimed

amended Rule 61 placed unconstitutional restrictions on her right to access the

courts, violated due process, and impermissively was retroactive. The Supreme

Court held:

               [] Turnage’s argument that the amended Rule 61 denies
               her due process of law and meaningful access to the
               courts is without merit. The United States Supreme
16
   518 U.S. 651 (1996).
17
   Id. at 664 (citations omitted).
18
   127 A.3d 396 (Table) (Del. 2015) (alteration in the original).
                                                11
                 Court has held that “[s]tates have no obligation to
                 provide [postconviction] relief.” Thus, Turnage is
                 arguing about the extent to which the State has afforded a
                 right to postconviction relief that it does not have to
                 afford at all. Therefore, the amended Rule 61 provides
                 more due process and access to the courts than is
                 constitutionally required. Moreover, the amended form
                 of Rule 61 still provides a broad right to file a first
                 petition within “one year after the judgment or conviction
                 is final,” and even allows successive petitions in the
                 compelling circumstance when a person “pleads with
                 particularity that new evidence exists that creates a strong
                 inference that the movant is actually innocent” or “that a
                 new rule of constitutional law, made retroactive to cases
                 on collateral review . . . , applies to the movant’s case.”
                 Turnage is not deprived of meaningful access to the
                 courts just because she cannot collaterally attack a
                 beneficial guilty plea more than a year after her
                 conviction became final.19
As in Turnage, amended Rule 61 affords Taylor more due process than the United

States Constitution requires and accordingly does not act as a suspension of

Taylor’s habeas corpus rights.

          In sum, the Delaware Supreme Court has held amended Rule 61 applies to

all motions filed after June 4, 2014. Applying amended Rule 61 does not violate

Taylor’s fair notice rights because the amended rule was well-established and

regularly used by the time Taylor filed his Motion. Further, as the Delaware

Supreme Court recognized in Durham, amended Rule 61 limits the ruling in Guy

by imposing additional procedural bars that apply to Taylor’s Motion. Finally, the


19
     Id. (quoting Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); Super. Ct. Crim. R. 61 (2014)).
                                                 12
amended rule does not abridge Taylor’s federal habeas rights as the rule affords

more habeas protection than is required by the United States Constitution.

Accordingly, amended Rule 61’s procedural bars apply to Taylor’s Motion.

     B. Taylor’s claims procedurally are barred.
       This Court now must consider whether amended Rule 61’s procedural bars

apply to some or all of Taylor’s postconviction claims. If the claims are barred

procedurally, this Court does not consider their merits.20 Because Taylor’s Motion

is his second request for postconviction relief, Taylor must overcome amended

Rule 61’s bar for second or subsequent motions. That rule provides:

              A second or subsequent motion under this rule shall be
              summarily dismissed, unless the movant was convicted
              after a trial and the motion . . . pleads with particularity
              that new evidence exists that creates a strong inference
              that the movant is actually innocent in fact of the acts
              underlying the charges of which he was convicted . . . .21

       Taylor argues his Motion overcomes Rule 61’s procedural bars because it

presents new evidence that proves Taylor actually is innocent of the “acts

underlying the charge of which he was convicted.”22                Taylor’s Motion raises

several arguments including ineffective assistance of trial counsel, deprivation of a

fair and impartial jury, prosecutorial misconduct during Taylor’s trial, violation of

due process, ineffective assistance of postconviction counsel, and a request for a

20
   See Kiser v. State, 925 A.2d 504 (Del. 2007); State v. Wingate, 2004 WL 772335 (Del. Super.
March 15, 2004).
21
   Super. Ct. Crim. R. 61.
22
   Mot. Postconviction Relief xii-xiii.
                                              13
new trial. The only new evidence presented in Taylor’s Motion, however, is a new

independent forensic pathologist report and a forensic psychologist report.

Accordingly, all other arguments procedurally are barred as they fail to present

new evidence that create a strong inference that Taylor actually is innocent of the

acts underlying the charges of which he was convicted.23

       Taylor argues his Motion presents two new pieces of evidence that

demonstrate he actually is innocent of the charges leading to his conviction. First,

Taylor presents an affidavit by Dr. Charles Wetli, a medical examiner and forensic

pathologist who, according to Taylor, rebuts the trial testimony of the State’s

medical examiner, Dr. Sekula-Perlman. Second, Taylor presents a report by Dr.

Victoria Reynolds, a forensic psychologist, who details the effects of Taylor’s

traumatic childhood on his ability to self-modulate his behavior. Taylor argues

both these reports present new evidence that Taylor lacked the requisite intent to be

convicted of First Degree Murder.             In other words, Taylor contends “actual

innocence” under Rule 61(d)(2) includes evidence that a defendant did not have

the necessary state of mind to be convicted of a particular offense.

       The Delaware Supreme Court has stated that the “actual innocence”

exception to Rule 61’s procedural bars requires new evidence creating a “strong

23
   Taylor acknowledges that, if amended Rule 61 applies, all his claims are barred except claims
IA (Trial counsel’s failure to retain a forensic pathologist to rebut the testimony of the state
medical examiner regarding time and cause of William’s death), IB (Trial counsel’s failure to
raise a defense of extreme emotional distress), and IV. See Def.’s Reply Br. at 6-7.
                                              14
inference that the defendant was actually innocent of the underlying charges.”24

Taylor’s argument, however, requires this Court to determine, apparently for the

first time, whether Rule 61’s actual innocence exception includes innocence of

intent.     Although Delaware courts have not considered this issue previously,

federal courts have addressed similar claims under Section 2244(b), the federal

analog to Rule 61, and those courts do not consider evidence negating intent as

meeting the actual innocence exception.

          The Tenth Circuit considered this issue in Long v. Peterson.25 In Long, an

Oklahoma state court convicted the petitioner of First Degree Malice Aforethought

Murder after the petitioner stabbed his adopted father to death.26 In a petition for

writ of habeas corpus in federal court, the petitioner argued he actually was

innocent of first degree murder “even though he did cause the death of another

person.”27 The petitioner claimed he only intended to hurt his adoptive father, not

kill him, and therefore he lacked the requisite intent to commit murder.28 In

support of his argument, the petitioner offered evidence from two psychologists

who testified the petitioner’s “stunted emotional development” and “inability to




24
   Winn v. State, 129 A.3d 882 (Table) (Del. 2015).
25
   291 Fed. Appx. 209 (10th Cir. 2008).
26
   Id. at 210.
27
   Id. at 211.
28
   Id.
                                               15
understand the consequences of his actions” affected the commission of the

offense.29

       The Tenth Circuit rejected petitioner’s argument, holding that “actual

innocence means factual innocence, not legal innocence.”30 “Because [petitioner]

admits his actions caused his father’s death, he is not factually innocent.” 31 The

Tenth Circuit therefore excluded innocence of intent from the actual innocence

exception to Section 2244. Proving actual innocence requires more than innocence

of intent; it requires new evidence that a person other than the petitioner committed

the crime. The United States Supreme Court explained the meaning of actual

innocence in Sawyer v. Whitley,32 where the Court noted:

               A prototypical example of “actual innocence” in a
               colloquial sense is the case where the State has convicted
               the wrong person of the crime. Such claims are of course
               regularly made on motions for new trial after conviction
               in both state and federal courts, and quite regularly
               denied because the evidence adduced in support of them
               fails to meet the rigorous standards for granting such
               motions. But in rare instances it may turn out later, for
               example, that another person has credibly confessed to
               the crime, and it is evident that the law has made a
               mistake.33




29
   Id. at 213.
30
   Id. (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).
31
   Id.
32
   505 U.S. 333 (1992).
33
   Id. at 340-41.
                                                16
Accordingly, a petitioner who argues only that he lacked the requisite intent to

commit a crime fails to establish a strong inference of actual innocence under

amended Rule 61.34

       Here, the two forensic reports in Taylor’s Motion allegedly discuss issues

surrounding Taylor’s intent to kill Williams. The Wetli report contends that some

of Williams’ wounds were suffered after Taylor strangled her. The Reynolds

report concluded Taylor demonstrated a failure to self-modulate his behavior due

to his traumatic childhood. From these conclusions, Taylor reaches to argue the

reports show new evidence that he actually is innocent of murder because he was

innocent of the intent to kill Williams. Taylor, however, offers no evidence that he

is factually innocent of Williams’ murder. Indeed, Taylor’s confession letter stated

“I confess I did kill Treety . . . . After I strangled her I stuck a long kitchen knife



34
   See also Warren v. Jackson, 2013 WL 1812202, *2 (E.D. Mich. April 30, 2013) (“Moreover,
even under Petitioner’s interpretation of the facts, Petitioner alleges at most that he was
convicted on the basis of legally insufficient evidence because he lacked the necessary intent to
be found guilty. He has not demonstrated that he is factually innocent, and, to establish ‘actual
innocence,’ one must show ‘factual innocence, not mere legal insufficiency.’”) (quoting Bousley
v. United States, 523 U.S. 614, 623 (1998)); Bell v. Miller, 2009 WL 920509, *8 (N.D. Okla.
April 2, 2009) (“In this case, Petitioner claims that he lacked the requisite intent to kill the
victim. To the extent he claims to be innocent based on his lack of intent, the claim is one of
legal innocence as opposed to actual or factual innocence and does not satisfy the fundamental
miscarriage of justice exception. Therefore, the Court finds the fundamental miscarriage of
justice exception is inapplicable in this case.”); Davis v. McNiel, 2008 WL 3540306, *12 (N.D.
Fla. Aug. 12, 2008) (“In considering whether Petitioner has made a colorable showing of actual
innocence, the undersigned notes Petitioner’s admission in his reply brief that he was involved in
a “scuffle” with the victim and his contention that he lacked criminal intent and was acting in
self defense[]. A claim of lack of criminal intent is a claim of legal insufficiency, not factual
innocence, and does not satisfy the “actual innocence” exception to the procedural bar.”).
                                               17
down her mouth and cut something in her throat.”35            As in Long, Taylor’s

argument of innocence of intent fails to meet Rule 61’s actual innocence standard.

Accordingly, the remainder of Taylor’s arguments procedurally are barred under

Rule 61(d)(2).

CONCLUSION
          For all the foregoing reasons, Taylor’s Motion for Postconviction Relief is

DENIED. IT IS SO ORDERED.




35
     Taylor v. State, 822 A.2d 1052, 1054 n.5 (Del. 2003).
                                                 18
