IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
v. I.D. No. 1111012229
TYREEK EVANS-MAYES,
Defendant.
Submitted: July 25, 2016
Decided: August 25, 2016

Upon Defendant’s Motion for Postconviction Relief
DENIED

Upon Motion to Withdraw as Counsel for Petitioner Tyreek EVans-Mayes
GRANTED

Edward F. Eaton, Esquire, 716 North Tatnall Street, Suite 400, Wilmington, DE
19801

Ipek K. Medford, Esquire, Deputy Attorney General, Department of Justice, 820
N. French St., Wilmington Delaware, Attorney for the State.

Tyreek EVans-Mayes, Smyrna, DE

WHARTON, J.

ORDER

This 25th day of August, 2016, upon consideration of Defendant’s Motion
for Postconviction Relief, the Motion to WithdraW as Counsel for Petitioner
Tyreek EVans-Mayes of Edward F. Eaton, Esquire, and the record in this matter, it
appears to the Court that:

l. On January 30, 2012, Defendant Tyreek EVans-Mayes (“Evans-
Mayes”), and his co-defendant Bryan Bennett (“Bennett”) Were indicted on four
counts of Robbery First Degree, one count of Attempted Robbery First Degree,
one count of Possession of a Deadly Weapon During the Commission of a Felony
(“PDWDCF”), two counts of Wearing a Disguise During the Commission of a
Felony (“WDDCF”) and five counts of Conspiracy Second Degree.1 On March 19,
Michael C. Heyden, Esquire entered his appearance on behalf of EVans-Mayes.2
Mr. Heyden’s Motion to Withdraw as Counsel Was granted on October 2, 2012.3
After a hearing on December 13, 2012, Mr. Heyden Was reassigned as Evans-

4

Mayes’ attorney. On October 7, 2013, a jury found Evans-Mayes guilty of one

count of Robbery First Degree, one count of PDWDCF, one count of WDDCF,

one count of a lesser included offense of Robbery Second Degree and two counts

1D.I.4.

2D. I. 13.
3 D. I. 3().
4D.I. 59.

of Conspiracy Second Degree.5 He was found not guilty of two counts of Robbery
First Degree, one count of WDDCF and two counts of Conspiracy Second Degree.6
The State entered nolle prosequis on single counts of Attempted Robbery First
Degree and Conspiracy Second Degree.7 Evans-Mayes was sentenced to a total 38
years incarceration suspended after 16 years for decreasing levels of probation.8
His convictions and sentence were affirmed by the Delaware Supreme Court on
September ll, 2014.9

2. Evans-Mayes filed this Motion for Postconviction Relief (‘Motion”),
his first, on September 10, 2015 alleging ineffective assistance of counsel.10 Trial
counsel submitted an affidavit in response to the Motion.ll Evans-Mayes
submitted his own counter-affidavit in response.12 Pursuant to the Court’s Order,
the Office of Conf`lict Counsel assigned Edward F. Eaton, Esquire to represent
Evans-Mayes.13 On June 21, 2016, Mr. Eaton filed this Motion to Withdraw as
Counsel after carefully reviewing the case for potential grounds for relief and

4

finding none.1 In response, Evans-Mayes has asked for new counsel and a

5D. I. 122.

"Id.

7Ia’.

8D.I. 125.

9Mczyes v. State, 2014 WL 1111012229 (Del. 2014).
10D. I. 135.

11D. l. 139.

12 D. I. 138.

13 D. I. l4l.

14 D. I. 144.

reduction in his sentence.15 The Court treated that request as a sentence
modification motion under Superior Court Criminal Rule 35 and denied it.16

3. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred for time limitations, repetitive motions,
procedural defaults, and former adjudications A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it Was first
recognized17 A motion is considered repetitive and therefore barred if it asserts any
ground for relief “not asserted in a prior post-conviction proceeding.”18 Repetitive
motions are only considered if it is “Warranted in the interest of justice.”19 Grounds
for relief “not asserted in the proceedings leading to the judgment of conviction” are
barred as procedurally defaulted unless the movant can show “cause for relief” and
“prejudice from [the] violation.”zo Grounds for relief formerly adjudicated in the
case, including “proceedings leading to the judgment of conviction, in an appeal, in
a post-conviction proceeding, or in a federal habeas corpus hearing” are barred.21

Former adjudications are only reconsidered if “Warranted in the interest of justice.”22

15 D. 1. 146.

16 D. 1. 147.

17 super Ct. Crim. R. 61(1)(1).
18 super. Ct. crim. R. 61(1)(2).
19 Id.

20 Super. Ct. Crim. R. 61 (i)(3).
21 Super. Ct. Crim. R. 61 (i)(4).
22 Id

4. Before addressing the merits of Defendant’s Motion for Post-
conviction Relief, the Court must first apply the procedural bars of Superior Court
Criminal Rule 6l(i).23 If a procedural bar exists, then the Court Will not consider the
merits of the post-conviction claim.24

5. After reviewing the Motion and the bars of Rule 6l(i), it is apparent
that Defendant’s claim of ineffective assistance of counsel is not procedurally
barred. It is a timely first motion raising a claim of ineffective assistance of counsel,
a claim that he could not raise in the proceedings leading to the judgment of
conviction, and one that has not been previously adjudicated His other claims
captioned “Prosecutorial Misconduct” and “Due Process” are barred, however. In
his claim of prosecutorial misconduct, he alleges that: (l) the prosecutor improperly
referred to his co-defendant, Bryant (sic) Bennett as his “partner in crime” on more
than one occasion; (2) the prosecutor improperly stated that a defense Witness Was
guessing; (3) the prosecutor improperly stated “yes a few times” thereby answering
“before me and for me;” and (4) the prosecutor misrepresented something he said
When examining another Witness.25 Evans-Mayes’ claim of a due process violation
involves a claim that his original lawyer, Peter. N. Letang, Esquire later represented

Bennett after Evans-Mayes had provided Mr. Letang With unspecified information

:: Younger v. sze, 580 A.2d 552, 554 (Del. 1990).
Id.

that was subsequently used against him.26 Neither the “Prosecutorial Misconduct”
claim, nor the “Due Process” claim was asserted in the proceedings leading to the
judgment of conviction or on direct appeal. They are subject to procedural default
unless Evans-Mayes shows cause for relief from the procedural default and
prejudice from violation of his rights.27 The Motion does neither. Accordingly,
Evans-Mayes’ claims captioned “Prosecutorial Misconduct” and “Due Process” are
barred as procedurally defaulted unless the bar is made inapplicable by Rule
6l(i)(5). A procedural default bar to relief is inapplicable if the motion raises a
claim that the court lacks jurisdiction or a claim satisfies the pleading requirements
of Rule 6l(d)(2)(i) or (2)(ii).28 Again, the Motion does neither. It does not claim
that the court lacks jurisdiction, nor does it plead with particularity new evidence of
actual innocence,29 or a retroactive new rule of constitutional law.30 Therefore the
claims of “Prosecutorial Misconduct” and “Due Process” are barred.

6. ' The Court now turns to the merits of the claim of ineffective assistance
of counsel To successfully articulate a colorable ineffective assistance of counsel
claim, a claimant must demonstrate that: (l) his defense counsel’s representation fell

below an objective standard of reasonableness, and (2) there is a reasonable

25 D. I. 135.

26 Id

27 Super. Ct. Crim. R. 6l(i)(3).

28 Super. Ct. Crim. R. 6l(i)(5).

29 Super. Ct. Crim. R. 6l(d)(2)(i).
30 Super. Ct. Crim. R. 6l(d)(2)(ii).

probability that, but for counsel’s errors, the result of the proceeding Would have

been different31

An inmate must satisfy the proof requirements of both prongs to
succeed on an ineffective assistance of counsel claim. Failure to do so on either
prong Will doom the claim and the Court need not address the other.32 “Mere
allegations of ineffectiveness Will not suffice. A defendant must make specific
allegations of actual prejudice and substantiate them.”33 There is always a strong
presumption that counsel’s representation Was reasonable.34 So, the defendant may
not rely on conclusory statements of ineffectiveness; he must plead all allegations of
ineffectiveness With particularity.35

7. The claim of ineffective assistance of counsel is actually three
allegations: (l) that Mr. Heyden called Evans-Mayes and his alibi Witnesses liars
and told his alibi Witnesses the he (Evans-Mayes) Would be imprisoned for a long
time because he Wanted Evans-Mayes to accept a guilty plea offer; (2) that Mr.
Heyden did not subpoena an alibi Witness; and (3) that Mr. Heyden did not move for

a judgment of acquittal as Evans-Mayes requested. None of these allegations has

any merit.

31 Strickland v. Washington, 466 U.S. 668 (1984); see also Alston v. State, 2015 WL 5297709, at
*3 (Del. 2015).

32 Strickland, 446 U.S. at 697; Ploofv. State, 75 A.3d 811, 825 (Del. 2103) (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.”).
33 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
34 Id

8. Allegedly, the name calling and threats Were designed to induce Evans-
Mayes to accept a plea. Whether Mr. Heyden engaged in this behavior or not, the
fact is that Evans-Mayes did not plead guilty, but Went to trial. Therefore, there Was
no prejudice to Evans-Mayes because he Was not forced to plead guilty against his
Wishes, but rather, exercised his right to trial by jury according to his Wishes.

9. The claim that Mr. Heyden did not subpoena an alibi Witness is also
Without merit. In his affidavit, Mr. Heyden represented that all of the Witnesses
identified by Evan-Mayes Were interviewed With the result that not all of them Were
able to support his alibi.36 The one Witness Who Was not subpoenaed gave a
statement adverse to Evan-Mayes’ interests.37 In his Motion, Evans-Mayes neither
identifies the Witness, nor his testimony. This lack of particularity is fatal to his
claim, causing it to fail on both prongs.

10. The third subpart of Evans-Mayes’ ineffective assistance of counsel
claim is that Mr. Heyden did not move for a judgment of acquittal. This claim fails
on the prejudice prong. On appeal, the only issue raised by Evans-Mayes Was a
sufficiency of the evidence argument38 The Court rejected that argument and

applied the same standard the trial court Would have applied in deciding a motion

35 See Monroe v. State, 2015 WL 1407856, at *5 (Del. 2015) (citing Dawson v. State, 673 A.2d,
1186, 1196 (Del. 1996).

36 D. I. 139.

37 Id

38 Mayes, at *l.

for judgment of alcquittell.39 Since the motion Would have been unsuccessful, there is
no prejudice to EVans-Mayes from Mr. Heyden’s decision not to move for judgment

of acquittal.
Therefore, Defendant’s Motion for Post-conviction Relief is DENIED.

The Motion to Withdraw as Counsel for Petitioner Tyreek EVans-Mayes is

GRANTED.

IT IS SO ORDERED.

F rris W. on, J.

oc: Prothonotary
co: Investigative Services

39 Ia"

