    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
              IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                    )
                                      )
      Plaintiff,                      )
                                      )
            v.                        )      ID No. 0612016202
                                      )
WAYNE JACKSON,                        )
                                      )
      Defendant.                      )



                         MEMORANDUM OPINION
                             (Corrected)

      Defendant was convicted after a jury trial of three burglaries and

associated lesser offenses.   Although he was found at the time of his arrest

with the proceeds of one of the burglaries, the primary, if not exclusive,

evidence linking him to the other two was his fingerprints found at the scene.

He now brings this Rule 61 motion arguing that both his trial counsel and his

appellate counsel were ineffective.       Principally he contends that his trial

counsel was ineffective in the way he dealt with fingerprint evidence and his

appellate counsel’s poor performance deprived him of a reasonable likelihood

he would prevail on a severance and on a seizure issue. Despite the thorough

briefing of his current attorney, the court disagrees with his contentions.
                             I. Procedural history


      In February 2007, the State charged defendant with nine counts of

burglary in the second degree and 22 counts of associated crimes stemming

from five incidents occurring in Wilmington. Many of these charges were

dropped, and the prosecution eventually proceeded on three counts of

burglary-2 and three counts of theft. The three burglaries occurred at separate

locations on different days. At the time he was arrested Jackson was found

with the proceeds of one of the burglaries. His trial counsel, a Public Defender,

filed a motion to sever the two charges for that burglary from the remaining

charges. This court considered that motion on the papers and denied it. Trial

counsel also moved to suppress evidence seized at the time Jackson was

arrested. That motion was also denied. Jackson went to trial in October 2007,

and was convicted by a jury on all counts.        Because he was an habitual

offender Jackson was sentenced to three minimum mandatory terms of eight

years for each of the three burglary-2 convictions. He received probation for

the associated theft convictions. Jackson appealed his conviction to the

Delaware Supreme Court, which affirmed.

      Part of this matter focuses on Jackson’s direct appeal. As is customary,

the Office of the Public Defender assigned a different attorney from its appeals

unit to prosecute Jackson’s appeal.        That attorney, whose conduct is not

challenged by Jackson, filed a brief in the Supreme Court in accordance with

Rule 26(c). The essence of that brief was that counsel could find no arguable


                                       2
issues to assert on appeal. The Supreme Court thought there might indeed be

arguable issues to present, so it appointed new appellate counsel for Jackson.

This counsel will be referred to as “appointed appellate counsel” in this

opinion. Appointed appellate counsel filed an opening brief, and after the State

filed its answering brief the Supreme Court scheduled the appeal to be heard

on the briefs.   The Court later affirmed Jackson’s conviction in a 20 page

opinion.

      After his conviction was affirmed Jackson filed a pro se Rule 61 motion.

The court appointed his current counsel to represent him in the Rule 61

proceedings.     During the pendency of the Rule 61 this proceeding was

reassigned to the undersigned judge because of the retirement of the trial

judge. Thereafter the court expanded the record to include, among other

things, affidavits from trial and appellate counsel. Jackson’s current counsel

and the State then filed briefs, followed by some additional briefing requested

by the court on the effect of Criminal Rule 61(i)(4) Jackson’s claim relating to

the prejudice prong of the test for ineffective assistance of counsel. This is the

court’s opinion on Jackson’s Rule 61 motion.


                                    II. Facts

      The facts are set forth in the Supreme Court’s opinion affirming

Jackson’s conviction. Rather than attempting to re-invent the wheel, the court

will simply repeat them here:




                                        3
On September 25, 2006, Thomas Dykes discovered
that his home at 2010 North Broom Street in
Wilmington had been burglarized and cordless
telephone, laptop computer, digital camera, DVD
player, gold bracelet, leather bag, and jar of change
were missing. Dykes called the police and Officer
Gerald Nagowski of the Wilmington Police Department
went to Dykes' home. The screen of a window in the
back of the house had been cut near the latches,
making that window the burglar's likely point of entry.
Nagowski dusted the area for fingerprints and
recovered two latent prints.

On October 10, 2006, Timothy Lewis discovered that
his home at 2207 Van Buren Place in Wilmington had
been burglarized. A cellular telephone, digital camera
and one dollar were missing. Lewis called the police
and Nagowski went to Lewis' home. Nagowski
identified two adjacent windows in the back of the
house where the screens had been cut as the likely
point of entry. He dusted the area and recovered one
latent fingerprint.

On December 20, 2006, Officer Joseph Sammons,
supervisor of the Wilmington Police Department's
Evidence Detection and Fingerprint Identification Unit,
analyzed the latent prints recovered from the Broom
Street and Van Buren Place homes. After comparing
them to a known print in the department's records,
Sammons determined that the latent prints from the
Broom Street home matched Jackson's known prints,
and that the latent print from the Van Buren Place
home compared positively with Jackson's known print.
On January 20, 2007, New Castle County Police
Officer Alan Herring made a traffic stop on Polk Drive
in Edgemoor around 8 p.m. The driver of the car fled
on foot and Herring chased him, but could not catch
him. Herring radioed for assistance and broadcast a
description of the driver as an African–American male,
approximately six feet tall, thin build, medium dark to
dark complexion, with facial hair, and wearing a
golden-brown “puffy” coat. A K–9 unit responded to the
scene and the police dog tracked the suspect from the
abandoned car, south through Edgemoor, and in the
direction of Merchants Square Shopping Center on
Governor Printz Boulevard, north of the city of
                          4
Wilmington. Several police officers set up a cordon in
the area where the driver was likely to flee. Officer
Daniel Guzevich stationed himself in the Merchants
Square Shopping Center.

Around 8:30 p.m., Guzevich saw a man riding a
bicycle enter the shopping center's nearly empty
parking lot. The man on the bike resembled the
suspect described by Herring. Guzevich described the
bicyclist as a tall, thin, African–American man, with
facial hair and a dark complexion. The bicyclist was
not wearing a “puffy” coat, but Guzevich discounted
this difference, because the suspect had fled half an
hour earlier and had time to change his clothes.
Guzevich decided to question the man and drove
toward him.

When the man noticed the police car approaching, he
fled immediately. Guzevich turned on the police car's
emergency lights and followed him. The man crashed
his bicycle into the curb, dropped the bag he was
carrying and fled on foot. Guzevich got out of the
police car and chased the man on foot, eventually
catching up, and physically subduing him and
arresting him. The man Guzevich arrested was later
determined to be Wayne Jackson. The man who had
abandoned his vehicle on Polk Drive was later
determined to be Carron Moon. The abandoned vehicle
was registered to Terrance Tonic.

During the search of Jackson incident to his arrest,
Guzevich found in Jackson's pockets an iPod, a Palm
Pilot, a photo of a young girl, a University of Delaware
class ring, and twenty dollars. In the bag Jackson had
dropped, Guzevich found a laptop computer, another
iPod, various cords for the iPod and computer, and a
shattered glass coin bank with loose change. When
Guzevich turned on the computer, it displayed the
names of various members of the Callaghan family.
The name “Eugene F. Callaghan” was also inscribed on
the inside of the University of Delaware class ring. The
police determined that a Eugene F. Callaghan lived at
191 Brandywine Boulevard, about half a mile from
where Jackson was arrested. The police went to the
Callaghan residence.


                           5
                  The Callaghans were not home when the police
                  arrived, but a neighbor called them and they returned
                  home soon after. Eugene Callaghan identified the
                  various items recovered from Jackson as the
                  Callaghan family's computer, Eugene Callaghan's iPod,
                  his daughter's iPod, the family's coin bank, and
                  Eugene Callaghan's class ring. Callaghan also
                  identified the bicycle Jackson was riding as belonging
                  to Callaghan's son and the photo taken from Jackson's
                  pocket as a picture of Callaghan's daughter.

                  The police later compared Jackson's fingerprints with
                  the fingerprints found at several other homes that had
                  been burglarized in September, October and December
                  2006. Jackson's prints matched those taken from four
                  other homes that had been burglarized in North
                  Wilmington.


                                                     Analysis

         Any Rule 61 analysis must begin with consideration of procedural bars.

Unlike most such motions filed in this court, the instant Rule 61 motion is not

time barred. However, part of Jackson’s motion runs afoul of the prohibition

against reconsidering matters which have already been decided.


                                         A. The procedural bars

         Before reaching the merits of a Rule 61 motion the court is obligated to

determine if any or all of the claims are procedurally barred. 1 Rule 61(i)(1)2

bars consideration of a motion filed more than one year after the judgment of

conviction is final, which in this case means more than one year after


1
  Younger v. State, 580 A.2d 552 (Del. 1990)(“This Court applies the rules governing procedural requirements
before giving consideration to the merits of the underlying claim for postconviction relief.”) Deputy v. State, 1993
WL 332667 (Del.Super.)(“It is well settled the Court must first determine whether Deputy has met the procedural
requirements of Superior Ct.Crim.Rule 61(i) before it may consider the merits of his postconviction relief claim.”).
2
   This court amended the procedural bars in Rule 61 after Jackson filed his petition. The court will apply the bars
in effect at the time he filed his motion. Neither side in this matter has argued the court should apply the new rule.

                                                           6
Jackson’s conviction was affirmed on appeal.                                    Jackson’s conviction was

affirmed by the Supreme Court on July 13, 2009 3 and he filed a pro se Rule 61

motion less than one year later, on May 6, 2010. After Jackson filed his pro se

motion the court appointed counsel for him.                              Appointed counsel filed a new

brief which argued some of the points raised by Jackson in his pro se filing and

also asserted additional arguments. The court deems counsel’s brief to relate

back to the original pro se filing, and therefore finds that all the arguments

raised in that brief are timely. 4

         Another procedural bar, however, is applicable to some of Jackson’s

arguments.          Criminal Rule 61 (i)(4) bars consideration of previously decided

issues:

                  Any ground for relief that was formerly adjudicated,
                  whether in the proceedings leading to the judgment of
                  conviction, in an appeal, in a post conviction
                  proceeding, or in a federal habeas corpus proceeding,
                  is thereafter barred, unless reconsideration of the
                  claim is warranted in the interest of justice.

Jackson argues that Rule 61(i)(5) 5—which allows colorable constitutional

claims to be considered if doing so would avoid a miscarriage of justice—


3
    Jackson v. State, 990 A.2d 1281 (Del. 2009).
4
   Lest this be misunderstood, the court is not saying that subsequent Rule 61 motions relate back to the filing of the
first motion. The court is also not saying that a defendant may file a “placeholder” motion within a year of his or
her conviction and then expect that any later arguments will be deemed to be timely. The circumstances of this case
are unusual in that the defendant made a genuine attempt to timely raise his post conviction claims and counsel was
appointed for him within a year of his conviction becoming final. The fact that the court scheduled the filing of his
brief to occur more than a year after the conviction became final is not attributable to Defendant. See Bey v. State
402 A.2d 362, 3 (Del., 1979)(“ Because defendant did all that was required of him in seeking review; and because
his default has been occasioned by court related personnel; his petition for review will not be denied.”).
5
   That part of Rule 61 provides:

                  The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not
                  apply to a claim that the court lacked jurisdiction or to a colorable claim that
                  there was a miscarriage of justice because of a constitutional violation that

                                                           7
permits this court to hear his barred arguments. But Rule 61(i)(5), on its face

applies only to the procedural bars found in Rule 61(i)(1) through (3);                                           the

procedural bar of Rule 61 (i)(4) was intentionally excluded from the miscarriage

of justice exception. Thus if Jackson is to find any relief from the procedural

bar it must be from the “interest of justice” exception imbedded within Rule

61(i)(4) itself.

         Last year the Supreme Court summarized the case law defining “interest

of justice” as that term is used in Rule 61(i)(4). In Pringle v. State the Court

wrote:

                  We have stated that “[i]n order to invoke the ‘interest of
                  justice’ provision ... a movant must show that
                  subsequent legal developments have revealed that the
                  trial court lacked the authority to convict or punish
                  [the defendant].” In Weedon v. State, we stated that the
                  61(i)(4) bar does not apply when the previous ruling
                  was “clearly in error” or when “there has been an
                  important change in circumstances, in particular, the
                  factual basis for the issue previously posed.” We will
                  not reconsider an issue simply because a defendant
                  has “refined or restated” a claim. 6


Jackson’s claims do not fit within this definition. 7 Jackson argues with

considerable fervor that Rule 61 (i)(4) is equivalent to the law of the case

doctrine and that in appropriate cases equitable considerations justify ignoring


                  undermined the fundamental legality, reliability, integrity or fairness of the
                  proceedings leading to the judgment of conviction.
6
   2013 WL 1087633 *3 (Del. Supr.)(footnotes omitted).
7
   Jackson argues there has been a subsequent factual development which warrants reconsideration. He asserts that
his assigned appellate attorney was suspended from the practice of law after his direct appeal was affirmed. That
suspension was the result of assigned appellate counsel’s conduct in other matters. But. the Sixth Amendment issue
here is not the performance of assigned appellate counsel in other matters; the issue here is his performance in this
matter. His suspension is therefore not relevant to the issues presented here, and the court does not consider it to be
a pertinent new development.

                                                           8
that doctrine. The flaw in this argument is that although Rule 61(i)(4) may be

similar to, or even the equivalent of, the law of the case doctrine, it is not the

same thing.          Rule 61 is a creature of the court’s rule making powers.                          Its

ancestor, Rule 35, was crafted by this court (and approved by the Supreme

Court) under the leadership of Judge Bernard Balick in an effort both to limit

the large number of meritless motions for post conviction relief and to preserve

Delaware Court’s autonomy of Delaware’s courts in criminal matters. 8                                  The

narrow exception in Rule 61(i)(4) was a deliberate choice, as was the decision to

exempt Rule 61(i)(4) from the miscarriage of justice exception in Rule 61(i)(5).

Reading an equity exception into Rule 61(i)(4) would make virtually any

previous ruling subject to subsequent review under the guise of “equity”—a

result wholly inconsistent with the purpose of Rule61(i)(4).                                Consequently,

although there are similarities between Rule 61(i)(4) and the law of the case

doctrine, the court declines to read an equity exception into the former.

         The court will discuss the specific application of Rule 61(i)(4) in

conjunction with Jackson’s claim that his appointed appellate counsel was

ineffective.



           B. The standard for showing ineffective assistance of counsel

         Ever since the United States Supreme Court’s decision in Strickland v.

Washington 9 the standard for showing ineffective assistance of counsel has


8
    State v. Wright, 2012 WL 14000932 (Del. Super.) rev’d on other grounds, 67 A.3d 319 (Del. 2013).
9
    466 U.S. 668 (1984).


                                                        9
been a familiar one.                     First Jackson must show that his “counsel's

representation fell below an objective standard of reasonableness.” 10                                This

“requires the use of an objective standard of reasonableness based on

prevailing        professional         norms       when       evaluating        an   attorney's   conduct.

Importantly, [the] task is to ‘reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from the counsel's perspective

at the time.” 11          Second, Jackson must show that, but for the errors of his

counsel, there is a reasonable likelihood that the result would have been

different. According to the Delaware Supreme Court,

                   Even if the defendant successfully demonstrates that
                   his counsel's conduct fell below an objective standard
                   of reasonableness, the inquiry does not end. We will
                   not set aside the judgment in a criminal proceeding if
                   the error had no effect on the outcome. Counsel's error
                   must have been “so serious as to deprive the
                   defendant of a fair trial, a trial whose result is
                   reliable.” In order to show prejudice, the defendant
                   must establish “that there is a reasonable probability
                   that, but for counsel's unprofessional errors, the result
                   of the proceeding would have been different.”          A
                   reasonable probability of a different result requires a
                   “probability sufficient to undermine confidence in the
                   outcome.”      Although     this   standard     is    not
                   mathematically precise and does not necessarily
                   require a showing of “more likely than not,” Strickland
                   requires more than a showing merely that the conduct
                   “could have or might have or it is possible that [it
                   would have]” led to a different result. The likelihood of
                   a different result must be substantial, not just
                   conceivable. 12




10
     Id. at 687.
11
     Neal v. State 80 A.3d 935, 942 (Del. 2013)(internal quotation marks omitted).
12
     Id. (footnotes omitted).

                                                         10
In some instances Jackson is unable to show his counsel’s performance fell

below the accepted norm. In others he cannot show that there is a reasonable

likelihood that counsel’s performance affected the outcome of the case.


                       C. The performance of Jackson’s trial counsel

          Jackson makes five arguments, three of which relate to fingerprint

analysis, in support of his contention that his trial counsel was ineffective.

They are discussed separately.


                     1. The failure to challenge fingerprint testimony

          Jackson argues that his trial counsel was ineffective because he did not

seek to exclude expert finger print analysis. According to Jackson, the science

behind finger print analysis is so suspect that an expert offering such analysis

would not survive a Daubert 13 motion. But in Delaware, “fingerprint analysis

has been tested and proven to be a reliable science over decades for judicial

purposes,” 14 and “[t]he overwhelming consensus from federal jurisdictions is

that, even when considered in terms of specific Daubert factors, the reliability

of the technique has been tested in the adversarial system for over a century

and has been routinely subject to peer review, and that absent novel

challenges, [expert testimony regarding] fingerprint evidence is sufficiently

reliable to satisfy Rule 702 and Daubert.” 15 Defense counsel candidly admitted

at oral argument that she is unaware of any court which has precluded finger


13
     Daubert v. Merrill Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993).
14
     State v. Cole, 2002 WL 1397452 (Del.Super.).
15
     State v. Favela , 323 P.3d 716 (Ariz. App. 2014)(internal quotation marks omitted)..

                                                         11
print evidence because the science behind it is uncertain. 16 Neither is the

court.

         As a matter of law the court cannot find trial counsel was ineffective

because he failed to advance an argument that has never met with success in

an American court.             “[T]he Constitution guarantees criminal defendants only a

fair trial and a competent attorney. It does not insure that defense counsel will

recognize and raise every conceivable constitutional claim.” 17 Consequently the

performance of counsel does not fall below the level expected of a reasonably

competent attorney merely because counsel does not raise an argument which

has never previously been accepted. 18


            2. The failure to cross-examine about specific fingerprints

         Jackson argues that his trial counsel was ineffective because he failed to

cross-examine the State’s expert about unidentified fingerprints found on a

change jar located in one of the burglarized homes. He also contends that trial

counsel should have cross examined the State’s expert about whether the age

of the Jackson fingerprint exemplar affects the validity of the comparison. The

court finds that the absence of such cross-examination does not amount to the

ineffective assistance of counsel.                    Trial counsel conducted extensive cross-

16
     When asked at oral argument what Jackson might have achieved if the court had conducted a Daubert hearing,
Jackson’s counsel responded that the court “might have given” a limiting instruction. This falls far short of showing
the requisite prejudice.
17
     Engle v. Isaac, 456 U.S. 107, 131–34 (1982).
18
    United States v. Fusaro 708 F.2d 17, 26 (1st Cir. 1983)(“The attorney-client privilege violation was at best a
novel claim and failure to spot it does not render counsel's assistance below the range of competence of attorneys.”).




                                                         12
examination on fingerprints, and it is well within the reasonable exercise of

professional judgment to forego a line of cross examination specific to the

unidentified prints on one item. Jackson cites no legal authority or learned

treatise to support the notion that the age of the Jackson fingerprint exemplar

might affect the validity of the comparison. Insofar as the court is aware, an

individual’s fingerprints do not change over time.                                    Trial counsel was

reasonable, therefore, in omitting such cross examination.

        Even if the court were to assume that trial counsel was ineffective by

pursuing these lines of questioning, Jackson has not shown the requisite

prejudice. With respect to the unknown prints on the change jar, Jackson’s

fingerprints were found on a window of the burglarized home. Thus, even if

trial counsel had developed evidence that the prints on the change jar belonged

to the victim or some third person, that evidence would have done little to show

that Jackson did not, at least at a minimum, participate in the burglary. And

as noted above, there is no reason to believe Jackson could have adduced

testimony that the age of the exemplar would call into question the validity of

the exemplar. The court is left then with little more than speculation that the

omitted cross-examination might have changed the result.                                         This is not

enough. 19        Consequently, Jackson suffered no prejudice from the alleged

ineffectiveness of trial counsel in this regard.



19
    Morelos v. United States, 709 F.3d 1246, 1250 (8th Cir. 2013)(rejecting prejudice claim where defendant’s
“theory of cross-examination prejudice is merely speculative, generally averring if Finney had pursued additional
lines of questioning with each of the government's witnesses, it was possible those witnesses would have responded
in such a way as to lessen their credibility.”).

                                                        13
               3. The failure to retain a competent fingerprint expert.

          Jackson’s trial counsel used the services of a fingerprint analyst retained

by the Office of the Public Defender. The court need not consider whether the

analyst was competent and does not do so here. Even assuming that the

analyst was not competent, there is nothing to suggest that trial counsel knew

of the assumed incompetence and proceeded to use the expert anyway. The

Sixth Amendment assures a criminal defendant assistance of counsel—it says

nothing about assistance of experts and thus “there is no separately-cognizable

claim of ineffective assistance of expert witnesses....” 20 To be sure, the

guarantee assistance of counsel subsumes a right to access to expert testimony

in appropriate cases. 21 The Sixth Amendment does not require however, and

this court will not undertake, a Daubert-like inquiry to determine if an expert

consulted by defense counsel was “qualified.”                The United States Supreme

Court disposed of the notion the Constitution requires such an inquiry earlier

this year:

                  We wish to be clear that the inadequate assistance of
                  counsel we find in this case does not consist of the
                  hiring of an expert who, though qualified, was not
                  qualified enough. The selection of an expert witness is
                  a paradigmatic example of the type of “strategic
                  choic[e]” that, when made “after thorough investigation
                  of [the] law and facts,” is “virtually unchallengeable.”
                  We do not today launch federal courts into
                  examination of the relative qualifications of experts
                  hired and experts that might have been hired. The only
                  inadequate assistance of counsel here was the
                  inexcusable mistake of law—the unreasonable failure
                  to understand the resources that state law made

20
     Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.1992).
21
     See Ake v. Oklahoma ,470 U.S. 68 (1985).

                                                        14
                   available to him—that caused counsel to employ an
                   expert that he himself deemed inadequate. 22


Suffice it to say that Jackson must show at a minimum that his counsel

retained expert knowing the expert was not qualified, or trial counsel was

deliberately indifferent to the expert’s qualifications.

          In the instant case trial counsel consulted with a fingerprint analyst who

has been retained by the Office of the Public Defender for the purpose of

providing expert assistance to lawyers in that office.         That consulting expert

was a former Wilmington Police Officer who was trained and experienced in

fingerprint matters.              He advised Jackson’s trial counsel that the State’s

analysis of the fingerprint evidence was correct. Notably Jackson has offered

no evidence to contradict this conclusion. The court therefore has no basis say

that the expert was unqualified, much less trial counsel knew that the expert

was unqualified (if indeed he was). Nor can the court say that trial counsel was

deliberately indifferent to his qualifications.


                     4. The failure to conduct a proper investigation.

          Jackson argues that his counsel was ineffective because he did not

interview or investigate someone named “Boyce” who apparently was a possible

suspect in other burglaries taking place in or around Wilmington. The court

notes that under certain circumstances the failure to interview a witness can

amount to the ineffective assistance of counsel. By the same token, defense


22
     Hinton v. Alabama, ___U.S. ___, 134 S.Ct. 1081 (2014).


                                                       15
counsel need not interview every possible witness brought to his or her

attention.         “[T]rial counsel [i]s not bound by an inflexible constitutional

command to interview every possible witness. Instead, counsel [i]s simply

required to exercise reasonable professional judgment in deciding whether to

interview [a witness].” 23

          Jackson has not advised the court of any circumstance which should

have prompted trial counsel to interview “Boyce.” At most he says the police

apparently suspected Boyce in some burglaries occurring in or around

Wilmington. Without more, Jackson’s trial counsel had no constitutional

obligation to track down and interview “Boyce.”                In 2006 (the year when

Jackson’s crimes took place) there were 6420 reported burglaries in the State 24

and Jackson has not pointed to anything which would make this one stand

out.      The court cannot therefore say that trial counsel’s failure to interview

“Boyce” amounts to a Sixth Amendment violation.

          But even if trial counsel were obligated to interview “Boyce,” there is

nothing in the record to show that Jackson was prejudiced by counsel’s failure

to do so. Jackson has provided no information about what exculpatory

evidence “Boyce” would have given trial counsel.               As a practical matter, of

course, it is questionable whether “Boyce” (assuming he could be found) would

even speak to trial counsel, and it is even less likely that he would admit

committing a crime to trial counsel. The court is therefore left with nothing but

speculation about the impact of the failure to interview “Boyce” and therefore

23
     Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir.1990).
24
     State of Delaware Document number 10-0208 100302.

                                                        16
the court cannot say that it is reasonably probable that the result of Jackson’s

trial would have been different if “Boyce” had been interviewed.


              5. The failure to properly present the severance argument

           Jackson contended at trial and on appeal that this court should have

severed charges relating to one of the burglaries. He is correct that Rule 14 of

this court permits the court to sever joined offense into separate trial if “it

appears that a defendant will be prejudiced by the joinder of offenses.” The

prejudice must be specific, either:

           (1) the jury may cumulate the evidence of the various crimes charged and

           find guilt when, if considered separately, it would not so find; or

           (2) the jury may use the evidence of one of the crimes to infer a general

           criminal disposition of the defendant in order to find guilt of the other

           crime or crimes; or

           (3) the defendant may be subject to embarrassment or confusion in

           presenting different and separate defenses to different charges. 25


He is incorrect, however, in asserting his trial counsels’ performance did not

meet the constitutional minimal standards required of his counsel.

           Jackson contends that his trial counsel was not present for oral

argument and, as a result, the matter was decided on the written argument.

Trial counsel explains (understandably) that the schedules of Public Defenders

require that they be more than one place at the same time.                 In order to

25
     Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988).


                                                        17
accommodate the demands of the court, assistant public defenders often

“cover” for one another on routine matters such as this motion to sever. Trial

counsel reasonably relied on this practice and passed off the scheduled

argument to a colleague. Jackson also fails to make any showing that he was

prejudiced by the fact that this court considered his motion to sever on the

papers. The State correctly points out that Jackson never had a right to oral

argument in the first place, and this court decides many matters on the

papers.

           Jackson also argues that his trial counsel did a poor job of articulating

the reasons why Jackson would be prejudiced by the joinder. The court finds

that trial counsel correctly identified the legal issues implicated in a motion to

sever and made plausible arguments on his client’s behalf.                     The Sixth

Amendment is not a vehicle for defendants to attack their convictions simply

because someone after the fact thought of a better argument:

                    It is all too tempting for a defendant to second-guess
                    counsel's assistance after conviction or adverse
                    sentence, and it is all too easy for a court, examining
                    counsel's defense after it has proved unsuccessful.
                    Fair assessment of attorney performance requires that
                    every effort be made to eliminate the distorting effects
                    of hindsight, to reconstruct the circumstances of
                    counsel's challenged conduct, and to evaluate the
                    conduct from counsel's perspective at the time.
                    Because of the difficulties inherent in making the
                    evaluation, a court must indulge a strong presumption
                    that counsel's conduct falls within the wide range of
                    reasonable professional assistance; that is, the
                    defendant must overcome the presumption that, under
                    the circumstances, the challenged action “might be
                    considered sound trial strategy. 26
26
     Strickland, 66 U.S. at 689.

                                              18
Thus, the fact that Jackson “could imagine a handful of arguments his counsel

might have made does not render his counsel's performance deficient.” 27


                    D. The performance of Jackson’s appellate counsel

           Jackson argues that the performance of his appointed appellate counsel

on his direct appeal fell below the minimum standard expected of Delaware

lawyers. Judging from the appellate record, appointed appellate counsel put

forth little effort, and apparently exercised no professional judgment to speak of

when prosecuting Jackson’s appeal.                             Despite the sub-par performance of

appointed appellate counsel, this court concludes that Jackson has not shown

a reasonable probability that, but for appointed appellate counsel’s mistakes,

there would have been a different result on appeal. Thus, notwithstanding the

apparent lack of effort by his appellate counsel, Jackson is not entitled to relief.


                                  1. Jackson’s representation on appeal

           As just stated, the court finds that Jackson has not shown prejudice

resulting from his appointed appellate counsel’s performance. Ordinarily the

court could then dispose of the Sixth Amendment claim without considering

whether counsel’s performance was up to constitutional standards.                         In this

case, however, Jackson asserts that his appointed appellate counsel’s

performance was so deficient that it amounted to a complete denial of counsel.

This being the case, according to Jackson, he need not show prejudice in order


27
     United States v. Burkley, 370 Fed.App’x. 899 (10th Cir. 2010).

                                                          19
to make out a Sixth Amendment violation. The court agrees that prejudice is

presumed when a defendant has no counsel or the functional equivalent of no

counsel.    Accordingly,    it   must   therefore   examine   appellate   counsel’s

performance in order to determine if it is the equivalent of a complete absence

of representation.

      Jackson was represented at his trial by the Office of the Public Defender.

After Jackson was convicted, his Public Defender perfected an appeal to the

Supreme Court.       Thereafter, the Office of the Public Defender filed a brief

pursuant to Supreme Court Rule 26(c) in that court. The author of that brief

represented to the Supreme Court that he could find no meritorious issues to

argue on appeal. In many instances such as this the Supreme Court resolves

an appeal on the basis of the so-called Rule 26(c) brief and any pro se

supplementation by the defendant. In the case of Jackson’s appeal, however,

the Supreme Court took the unusual step of appointing new appellate counsel

for Jackson, thus suggesting the possibility the Supreme Court was concerned

that Jackson may have meritorious issues to raise on appeal.

      It is difficult to discern what, if any, effort or independent thought

appointed appellate counsel put into his representation of Jackson. The

Statement of Facts in the opening brief filed by appointed appellate counsel

was nothing more than a verbatim copy of the Statement of Facts in the Rule

26(c) brief prepared by previous appellate counsel.           The two arguments

contained in the brief were little better.    Both got off to a bad start when

appointed appellate counsel cited to the wrong standard of review. As would be


                                        20
expected in a competent brief, neither argument contained an examination of

the trial court’s ruling and an explanation why it was wrong. Both arguments

are remarkable in that they were perfunctory, at best.       The first (in which

appointed appellate counsel argued that charges should have been severed)

was--save for a handful of immaterial changes--a verbatim copy of the

unsuccessful argument filed in this court by Jackson’s trial counsel.       The

second argument (that evidence should have been suppressed) was cryptic and

contained no meaningful argument. The only citations were to opinions

standing for widely accepted general principles which are a given in search and

seizure matters. The argument contained no citations to opinions which could

be considered even remotely specific to the issue raised in the brief. The brief

is also remarkable in that it did not contain any real analysis of this court’s

rulings or any attempt to explain why they were wrong.

      Appointed appellate counsel’s poor performance was not limited to the

brief he filed.   The record strongly suggests the possibility that he misled

Jackson about what was happening in the Supreme Court. While Jackson’s

appeal was pending on May 18, 2009 the Clerk of the Supreme Court sent a

routine form letter to counsel in Jackson’s appeal which in its entirety:

            Pursuant to Supreme Court Rule 16(a), you are
            advised that the Court has now instructed that the
            above appeal be considered to be under submission for
            decision as of Wednesday, June 17, 2009.

The notice says nothing about a reply brief. An appellate attorney, even those

with little experience in the Delaware Supreme Court, would know that that

Court routinely sets argument/submission dates before the filing of the Reply
                                       21
Brief. 28 There is simply nothing in the notice which would lead a competent

attorney to believe the Court was prohibiting the filing of a reply brief.

Nonetheless, appointed appellate counsel wrote to Jackson advising him that

the Supreme Court had notified him that no reply brief would be allowed on

Jackson’s behalf.              Appointed appellate counsel told a different story in an

affidavit filed in these Rule 61 proceedings. Here, he told this court that he

chose not to file a reply brief because there was “nothing new” in the State’s

answering brief. No mention is made in counsel’s affidavit of being misled by

the Supreme Court’s May 18 notice.

          Appointed appellate counsels’ ostensible belief that there was nothing in

the State’s answering brief which required a reply brief is another example of

sub-standard representation.                    Contrary to what appointed appellate counsel

had to say, the State’s answering brief called for some sort of reply. In that

brief, the State correctly noted:

                   In order to determine whether the stop was proper, the
                   Court must first determine at which point a seizure
                   occurred. * * * In this case, the answer hinges on
                   whether the issue is examined under the Fourth
                   Amendment to the United States Constitution or
                   Article I, sec. 6 of the Delaware Constitution. Neither
                   in his motion to suppress nor now on appeal does
                   the defendant specify on which constitution his
                   challenge is based. 29


The court recognizes there was likely little that appointed appellate counsel

could say in reply. The Supreme Court disdains sandbagging in reply briefs


28
     Supreme Court Standard Operating Procedure V(1)(i).
29
     State’s Br. In No. 133, 2008 (emphasis added; internal citation omitted).

                                                          22
and therefore it would have been difficult to address the issue for the first time

in a reply brief. Moreover, appointed appellate counsel’s hands were likely tied,

because the state constitutional argument had never been presented below,

and it is unlikely that the Supreme Court would have considered it in the first

instance on appeal. Nonetheless, some effort could have been made to explain

to the Supreme Court Jackson’s position. At a minimum it was disingenuous

for appointed appellate counsel to tell this court he did not file a reply brief

solely because there was “nothing new” in the State’s answering brief.


                              2. Jackson must show prejudice

        There is little question that appointed appellate counsel’s performance

was poor, if not substandard. The second prong of Strickland ordinarily

requires Jackson to show prejudice.                    Jackson contends however, he is not

required to do so because of the United States Supreme Court’s decision in

Cronic v. United States. 30

        In Cronic the Supreme Court noted that where there is a complete failure

of representation prejudice may be presumed under Strickland. For the most

part courts have generally declined to apply Cronic to claims of ineffective

appellate counsel even when appellate counsel has made a serious mistake.

Rather, Cronic has been applied in the appellate court context only when

counsel’s failure has served to deprive the defendant of an appeal. 31 Poor

presentation or selection of arguments on appeal is not the sort of shortcoming

30
   466 U.S. 884 (1988).
31
   Flick v. Warren, 2009 WL 3698547*24 (E.D.Mich.) (“[M]any courts have declined to apply Cronic to appellate
counsel errors which, although serious, do not deprive a defendant of his right to appeal.”).

                                                     23
which the Supreme Court envisions would fall within Cronic. In Penson v.

Ohio, 32 an appellate lawyer in a state criminal proceeding was allowed to

withdraw before the state appellate court determined whether there was any

merit to the appeal.          After counsel withdrew the appellate court determined

there were potentially meritorious arguments to be made.                Rather than re-

appoint counsel or appoint new counsel for the defendant, the appellate court

simply decided the arguable issues against defendant.                The United States

Supreme Court held that this amounted to a complete denial of counsel and

therefore, the defendant need not show prejudice in order to make out a Sixth

Amendment claim. Of importance here is the manner in which the Supreme

Court distinguished the case before it from cases such as this where counsel

made a poor argument:

                          Finally, it is important to emphasize that the
                   denial of counsel in this case left petitioner completely
                   without representation during the appellate court's
                   actual decisional process. This is quite different from a
                   case in which it is claimed that counsel's performance
                   was ineffective. As we stated in Strickland, the “[a]ctual
                   or constructive denial of the assistance of counsel
                   altogether is legally presumed to result in prejudice.”
                   Our decision in United States v. Cronic, likewise,
                   makes clear that “[t]he presumption that counsel's
                   assistance is essential requires us to conclude that a
                   trial is unfair if the accused is denied counsel at a
                   critical stage of his trial.” Similarly, Chapman
                   recognizes that the right to counsel is “so basic to a
                   fair trial that [its] infraction can never be treated as
                   harmless error.” And more recently, in Satterwhite v.
                   Texas, we stated that a pervasive denial of counsel
                   casts such doubt on the fairness of the trial process,
                   that it can never be considered harmless error.
                   Because the fundamental importance of the assistance
32
     488 U.S. 75 (1988).

                                              24
                  of counsel does not cease as the prosecutorial process
                  moves from the trial to the appellate stage, the
                  presumption of prejudice must extend as well to the
                  denial of counsel on appeal.


          Jackson’s contention that his appointed appellate counsel’s performance

amounts to a complete failure of representation is contradicted by Jackson’s

allegations of specific departures from the accepted norm. In Bell v. Cone 33 the

United States Supreme Court drew the distinction between a complete failure

of representation under Cronic and something less than a complete failure of

representation for purposes of the second prong of the Strickland test:

                  When we spoke in Cronic of the possibility of
                  presuming prejudice based on an attorney's failure to
                  test the prosecutor's case, we indicated that the
                  attorney's failure must be complete. We said “if
                  counsel entirely fails to subject the prosecution's case
                  to meaningful adversarial testing.” Here, respondent's
                  argument is not that his counsel failed to oppose the
                  prosecution throughout the sentencing proceeding as
                  a whole, but that his counsel failed to do so at specific
                  points. For purposes of distinguishing between the
                  rule of Strickland and that of Cronic, this difference is
                  not of degree but of kind. 34


The court holds, therefore, that Cronic is inapplicable here and that Jackson

must show prejudice resulting from his appointed appellate counsel’s failures.



                             3. Jackson has not shown prejudice

          In order to show prejudice Jackson must show that there is a reasonable

likelihood that, had he been represented by competent counsel, the Supreme

33
      535 U.S. 685 (2002).
34
     Id. at 687.

                                              25
Court would have reached a different result. Implicit in this, of course, is that

Jackson must show a likelihood the Supreme Court was wrong.                      Jackson’s

arguments to this effect are procedurally barred and also substantively flawed.


         a. Jackson’s prejudice argument is procedurally barred.

         In Jackson’s direct appeal, the Supreme Court rejected his argument

that he was prejudiced by the joinder of the charges against him. The Court

ruled:

                  We next consider whether joinder would have created
                  sufficient prejudice that the Superior Court should
                  have severed the charges. Although Jackson recites
                  the factors for determining prejudice under Weist v.
                  State, he has not articulated any specific reasons why
                  joinder of the offenses caused him prejudice. The
                  record does not reflect any specific prejudice to
                  Jackson either. 35


Jackson argues that if his appellate counsel had been competent he could have

articulated specific prejudice.                  According to Jackson, he was specifically

prejudiced by the joinder because the jury could have accumulated evidence

from one burglary, where he was essentially caught red-handed, with the “very

little” evidence of the other two burglaries.

         As noted in connection with the court’s assessment of trial counsel’s

performance, the failure of appointed counsel to make a better argument, does

not amount to ineffective assistance of counsel.                 Moreover, the substantive

argument that Jackson was prejudiced by the joinder is foreclosed by the


35
     Jackson v. State, 990 A.2d 1281, 1287 (Del. 2009).


                                                          26
Supreme Court’s opinion that “the record does not reflect any specific prejudice

to Jackson either.”

          The Supreme Court’s independent determination that the “record does

not reflect any specific prejudice to Jackson” forecloses Jackson’s argument

that there was, in fact, specific prejudice. As discussed earlier in this opinion,

Rule 61(i)(4) bars reargument of issues already decided. Jackson does not, and

cannot, show any new legal or factual developments. At best he presents a

refinement of his earlier argument to this court and the Supreme Court. This

does not give rise to an exception to Rule 61 (i)(4):

                   We have stated that “[i]n order to invoke the ‘interest of
                   justice’ provision ... a movant must show that
                   subsequent legal developments have revealed that the
                   trial court lacked the authority to convict or punish
                   [the defendant].” In Weedon v. State, we stated that
                   the 61(i)(4) bar does not apply when the previous
                   ruling was “clearly in error” or when “there has been
                   an important change in circumstances, in particular,
                   the factual basis for the issue previously posed.” We
                   will not reconsider an issue simply because a
                   defendant has “refined or restated” a claim. 36

Consequently Jackson’s efforts to show prejudice are foreclosed by Rule

61(i)(4).


                   b. Jackson’s seizure claim

          This court is also foreclosed by Rule 61(i)(4) from considering whether

Jackson was prejudiced by the appointed appellate counsel’s failure to argue

state constitutional grounds for the seizure claim. Reviewing the police seizure


36
     Pringle v. State, 2013 WL 1087633 *3 (Del. Supr.)


                                                         27
of evidence. As noted previously, Jackson contends that, under the Delaware

constitution, Jackson was seized the moment the police made a show of

authority over him.             Presumably this means when the officer turned on his

overhead blinkers and siren. According to Jackson, the Delaware constitution

is more strict than the Fourth Amendment as to when a seizure occurs. He

theorizes that the police did not have authority under the state constitution to

stop him when the officer turned on his lights and siren.               Consequently,

according to Jackson, all of the items later seized from his person should have

been suppressed.

           The Supreme Court rejected Jackson’s argument under the Fourth

Amendment, writing:

                   Having considered the totality of the circumstances,
                   we conclude that the record reflects that the police had
                   probable cause to lawfully arrest Jackson. Accordingly,
                   the Superior Court properly denied the motion for
                   suppression of the items the police discovered on
                   Jackson’s person during their search incident to his
                   lawful arrest.

Although, as Jackson states, the Delaware constitution imposes a stricter

standard than the Fourth Amendment as to when a stop occurs, his claim is

still barred because it is a refinement of his earlier search and seizure claim. It

is undoubtedly true that the state constitutional claim, with its different

standards, was never presented.               Still, in the scheme of things, it is a

refinement of his search and seizure claim and is, therefore, procedurally

barred. The Supreme Court’s holding in State v. Wright 37 serves to illustrate


37
     67 A.3d 319 (Del. 2013).

                                               28
this point. Wright involved a Rule 61 proceeding two decades after Wright was

convicted of capital murder.      During the investigation, Wright made a

confession to police.   The admissibility of that confession was contested at

several junctures. In 2012, this court held that the Miranda warnings given to

Wright were materially deficient and, therefore, that confession should be

suppressed.    On appeal the Supreme Court held that Wright’s Miranda

argument was procedurally barred, even though it had never before been

considered.   The Supreme Court reasoned that other arguments about the

admissibility of Wright’s confession had been previously considered and

rejected and therefore the argument about the wording of the warnings actually

given to Wright were a refinement of the earlier arguments and were therefore

procedurally barred.     By the same token, even though Jackson’s state

constitution argument has never been expressly presented, it is a refinement of

his earlier search and seizure argument which was rejected. Consequently, it

is barred.

                                 Conclusion

      For the foregoing reasons Jackson’s motion for post conviction relief is

DENIED.


                                           _______________________________
September 3, 2014                                John A. Parkins, Jr.


oc:   Prothonotary

cc:   Andrew J. Vella, Esquire, Wilmington, Delaware - Attorney for the State
      Natalie S. Woloshin, Esquire, Wilmington, Delaware – Attorney for the
      Defendant
                                      29
