         IN THE SUPREME COURT OF THE STATE OF DELAWARE

    ERIC HOLMES,                               §
                                               §
           Defendant Below-                    §   No. 22, 2017
           Appellant,                          §
                                               §
           v.                                  §   Court Below—Superior Court
                                               §   of the State of Delaware
    STATE OF DELAWARE,                         §
                                               §   Cr. ID 1210019908 (N)
           Plaintiff Below-                    §
           Appellee.                           §

                              Submitted: July 14, 2017
                               Decided: August 29, 2017

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                        ORDER

         This 29th day of August 2017, upon consideration of the parties’ briefs

and the record on appeal, it appears to the Court that:

         (1)    The appellant, Eric Holmes, filed this appeal from the Superior

Court’s memorandum opinion, dated December 15, 2016, denying his first

motion for postconviction relief.1 After careful consideration, we find no

merit to the appeal. Thus, we affirm the Superior Court’s judgment.

         (2)    The record reflects that a Superior Court jury convicted Holmes

in July 2013 of Possession of a Firearm by a Person Prohibited but acquitted



1
    State v. Holmes, 2016 WL 7324098 (Del. Super. Dec. 15, 2016).
him of Carrying a Concealed Deadly Weapon. In May 2014, the Superior

Court denied Holmes’ motions for new counsel and for judgment of acquittal

and granted the State’s motion to declare Holmes a habitual offender. The

Superior Court sentenced Holmes to sixteen years at Level V incarceration,

followed by one year at decreasing levels of supervision. We affirmed the

Superior Court’s judgment on direct appeal.2

         (3)    Holmes filed his first timely motion for postconviction relief

with the assistance of court-appointed counsel. Holmes’ motion raised eight

claims asserting that his trial counsel was ineffective and seven claims

asserting that his appellate counsel was ineffective on direct appeal. In a

twenty-two page opinion, the Superior Court rejected all of Holmes’ claims

and granted postconviction counsel’s motion to withdraw from further

representation. This appeal followed.

         (4)    Holmes raises four claims in his opening brief on appeal. First,

he contends that his trial counsel was ineffective for failing to file a pretrial

motion seeking disclosure of the identity of the State’s confidential informant.

Second, Holmes contends that his trial counsel was ineffective for failing to

obtain an expert opinion to support his intoxication defense. Third, Holmes

contends that his trial counsel was ineffective for failing to move to withdraw


2
    Holmes v. State, 2015 WL 428071 (Del. Jan. 29, 2015).


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as counsel due to a conflict. Fourth, Holmes argues that trial counsel was

ineffective for failing to file a motion to sever the charges against him. To the

extent that Holmes raised other issues in the motion he filed in the Superior

Court, he has waived any right to further review of those claims on appeal by

failing to argue them in his opening brief.3

       (5)    This Court applies the Strickland standard in reviewing claims of

ineffective assistance of counsel in a timely first postconviction proceeding.

Under Strickland, Holmes must demonstrate that: (a) his trial counsel’s

conduct fell below an objective standard of reasonableness; and (b) there is a

reasonable probability that, but for counsel’s unprofessional errors, the

outcome of the trial would have been different.4 A defendant is required to

set forth and substantiate concrete allegations of cause and actual prejudice.5

Moreover, there is a “strong presumption” that counsel’s representation was

professionally reasonable.6

       (6)    In this case, the Superior Court carefully considered each of

Holmes’ claims of ineffective assistance and found that all of the alleged

errors were, in fact, objectively reasonable strategic decisions made by




3
  Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
4
  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
5
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).
6
  Strickland v. Washington, 466 U.S. at 689.


                                           3
counsel. The Superior Court concluded that Holmes had established neither

cause nor prejudice under Strickland.7

         (7)    We agree. We have considered the parties’ briefs and the record

on appeal and conclude that the judgment below should be affirmed on the

basis of, and for the reasons assigned by, the Superior Court in its well-

reasoned opinion dated December 15, 2016.

         NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ Collins J. Seitz, Jr.
                                                    Justice




7
    State v. Holmes, 2016 WL 7324098, *5-7 (Del. Super. Dec. 15, 2016).


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