         IN THE SUPREME COURT OF THE STATE OF DELAWARE

THOMAS L. FLEETWOOD,                      §
                                          §
       Defendant Below,                   §   No. 9, 2018
       Appellant,                         §
                                          §   Court Below—Superior Court
       v.                                 §   of the State of Delaware
                                          §
STATE OF DELAWARE,                        §   Cr. ID No. 1503013906 (K)
                                          §
       Plaintiff Below,                   §
       Appellee.                          §

                          Submitted: August 24, 2018
                          Decided:   September 27, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                  ORDER

      This 27th day of September 2018, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

      (1)    The appellant, Thomas L. Fleetwood, appeals from a Superior Court

order denying his first motion for postconviction relief under Superior Court

Criminal Rule 61. We find no merit to Fleetwood’s claims and affirm the Superior

Court’s judgment.

      (2)    On November 18, 2015, after a one-day trial, a Superior Court jury

found Fleetwood guilty of Burglary in the Second Degree, Attempted Theft

(Misdemeanor) as a lesser included offense of Attempted Theft (Felony), and

Offensive Touching. The jury found Fleetwood not guilty of Criminal Mischief.
After granting the State’s petition to declare Fleetwood a habitual offender, the

Superior Court sentenced Fleetwood to ten years and thirty days of Level V

incarceration, suspended after eight years for one year of Level III probation.

         (3)    On direct appeal, this Court affirmed Fleetwood’s convictions, but

reversed and remanded for the Superior Court to vacate the sentence it mistakenly

imposed for the Criminal Mischief charge.1 The Court described the facts leading

to Fleetwood’s convictions as follows:

         Just after 1:00 a.m. on March 22, 2015, Kennard called his sister,
         Takeisha, and asked her to take him to a convenience store. They had
         just moved into a new apartment together, located above the Driftwood
         Spirits liquor store on South Bradford Street in Dover. When the two
         of them returned from the store, they noticed the outside door to the
         apartment was open.

         Kennard entered the apartment first with Takeisha close behind him.
         Although it was dark, Takeisha saw Fleetwood, a stranger to her, in the
         laundry room. He was holding her laptops and steaks from their freezer.
         Takeisha asked the man what he was doing in their home, and if the
         items he was holding were theirs. Fleetwood then dropped the items
         on the floor and said “They sent me. They sent me from Smyrna.” He
         told them he had both of their cell phones so they could not call 911.
         He then attacked Kennard.

         As Kennard and Fleetwood fought, Takeisha’s cell phone fell out of
         Fleetwood’s pocket. She immediately picked it up and dialed 911.
         When the police arrived, Kennard told them that he did not know
         Fleetwood, but recognized him from a nearby pub earlier in the
         evening. A Dover Police Department detective took photographs of the
         scene showing steaks and pieces of Takeisha’s broken laptops on the
         floor. One laptop was torn in half and the other device would not turn
         on. Police arrested Fleetwood and charged him with burglary second

1
    Fleetwood v. State, 2016 WL 5864585 (Del. Oct. 6, 2016).


                                                2
       degree, attempted theft, assault third degree, and criminal mischief.
       The assault third degree charge was reduced before trial to offensive
       touching.2

       (4)     On November 1, 2016, Fleetwood filed a timely motion for

postconviction relief and a motion for appointment of counsel under Superior Court

Criminal Rule 61. The Superior Court denied Fleetwood’s motion for appointment

of counsel and referred the postconviction motion to a Commissioner. As directed

by the Commissioner, Fleetwood’s former counsel filed an affidavit in response to

the postconviction motion. The State filed a response and Fleetwood filed a reply.

       (5)    In a report dated December 6, 2017, the Commissioner recommended

that the Superior Court deny Fleetwood’s motion for postconviction relief.3 The

Superior Court accepted the recommendation of the Superior Court Commissioner

and denied Fleetwood’s motion for postconviction relief.4 This appeal followed.

       (6)    We review the Superior Court’s denial of postconviction relief for

abuse of discretion, although we review questions of law de novo.5 Both the

Superior Court and this Court on appeal first must consider the procedural

requirements of Rule 61 before considering the merits of any underlying

postconviction claims.6 Fleetwood argues, as he did below, that (i) his counsel was


2
  Id. at *1.
3
  State v. Fleetwood, 2017 WL 6205777 (Del. Super. Ct. Dec. 6, 2017).
4
  State v. Fleetwood, 2018 WL 481642 (Del. Super. Ct. Jan. 17, 2018).
5
  Claudio v. State, 958 A.2d 846, 850 (Del. 2008).
6
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).


                                              3
ineffective for failing to conduct any meaningful pre-trial investigation, question

witnesses, or develop a line of defense; (ii) his counsel was ineffective for failing to

timely object or challenge to the testimony of State witnesses; and (iii) he is entitled

to relief for the prosecutor’s improper statements during his closing argument.

Fleetwood also argues that the Superior Court erred in denying his motion for

appointment of counsel.

         (7)    Applying the procedural requirements of Rule 61, the Superior Court

Commissioner correctly held that Fleetwood’s prosecutorial misconduct claim was

barred by Rule 61(i)(4). Rule 61(i)(4) bars any claim that was formerly adjudicated.

On appeal, this Court held that the prosecutor engaged in improper closing argument

by using the “golden rule argument,” but “the error that occurred here did not result

in fundamental unfairness given the strong and highly incriminatory evidence

against Fleetwood.”7 Fleetwood’s claim of prosecutorial misconduct was formerly

adjudicated and therefore procedurally barred under Rule 61(i)(4). Rule 61(i)(4)

does not apply to a claim that the Superior Court lacked jurisdiction or that satisfies

Rule 61(d)(i) (new evidence creates a strong inference of actual innocence) or

61(d)(ii) (new rule of constitutional law renders the conviction invalid), 8 but

Fleetwood did not plead any of these claims.



7
    Fleetwood, 2016 WL 5864585, at *2-3.
8
    Super. Ct. Crim. R. 61(i)(5).


                                           4
       (8)    The Superior Court also did not err in rejecting Fleetwood’s ineffective

assistance of counsel claims. As the Superior Court Commissioner recognized,

Fleetwood’s ineffective assistance of counsel claims in his first timely

postconviction motion were not subject to the Rule 61 procedural bars. To prevail

on an ineffective assistance of counsel claim, Fleetwood had to establish that: (i) his

counsel’s representation fell below an objective standard of reasonableness; and (ii)

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

outcome of the proceedings would have been different.9                 Although not

insurmountable, the Strickland standard is highly demanding and subject to a “strong

presumption that the representation was professionally reasonable.”10 The defendant

must also set forth and substantiate concrete allegations of actual prejudice.11

       (9)    Fleetwood’s ineffective assistance of counsel claims are conclusory and

contradicted by the record. He complains that his counsel failed to conduct a

meaningful pretrial investigation and did not make timely objections, but fails to

identify what his counsel should have investigated or objected to. According to the

affidavit of Fleetwood’s counsel, an investigator interviewed potential witnesses. In

addition, contrary to Fleetwood’s contentions, his counsel challenged the testimony

of State witnesses through cross-examination and developed a line of defense.


9
  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
10
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
11
   Younger v. State, 580 A.2d 552, 556 (Del.1990).


                                              5
Fleetwood did not establish that his counsel’s representation fell below an objective

standard of reasonableness or that there was a reasonable probability of a different

outcome but for counsel’s errors.

         (10) Finally, the Superior Court did not err in denying Fleetwood’s motion

for appointment of counsel. Because Fleetwood was not convicted of a class A, B,

or C felony, the Superior Court could only appoint counsel for him if it determined,

among other things, that he stated a substantial claim of ineffective assistance of trial

or appellate counsel.12 The Superior Court did not err in finding Fleetwood did not

do so.

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

Court is AFFIRMED.

                                         BY THE COURT:


                                         /s/ Karen L. Valihura
                                         Justice




12
     Super. Ct. Crim. R. 61(e).



                                           6
