         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                             : I.D. No. 1206011513
                                              : In and for Kent County
         v.                                   :
                                              : RK12-07-0025-01 DDEAL Tier 4 (F)
MICHAEL E. DEMBY,                             : RK12-07-0026-01 Consp 2nd (F)
                                              : RK12-07-0028-01 Poss Drug Parap (F)
               Defendant.                     :

                                          ORDER

                                Submitted: October 1, 2019
                                Decided: October 16, 2019

         On this 16th day of October 2019, upon consideration of Michael Demby’s (“Mr.
Demby’s”) Motion for Postconviction Relief, the Commissioner’s Report and
Recommendation, the State’s response, and the record in this case, it appears that:
         1. On October 9, 2013, a jury found Mr. Demby guilty of one count of Drug
Dealing Tier 4, 16 Del. C. § 4752; one count of Conspiracy in the Second Degree, 11
Del. C. § 512; and one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771.
         2. Thereafter, on October 11, 2013, Mr. Demby filed a motion for judgment of
acquittal. The Court denied the motion on November 25, 20131 and sentenced Mr.
Demby to twenty-seven years incarceration suspended after serving fifteen years to be
followed by decreasing levels of probation.
         3. Mr. Demby then filed a timely notice of appeal with the Delaware Supreme
Court. In the appeal, he raised the following claims: the admission of a wiretap
recording violated his right to cross-examine the declarants; the wiretap recordings
should not have been admitted; and the State’s prosecution violated the Double
Jeopardy Clause. The Delaware Supreme Court found no merit to those claims and
affirmed his convictions and sentences on July 21, 2014.2
1
    State v. Demby, Del. Super., ID No. 1206011513, Vaughn, P.J. (Nov. 25, 2013) ORDER.
2
    Demby v. State, 97 A.3d 1037 (Del. 2014).
       4. He next filed a motion for a new trial that focused on alleged errors
committed by the Office of the Medical Examiner. This Court denied the motion and
the State Supreme Court affirmed that denial.3
       5. On March 14, 2016, Mr. Demby then filed a motion for postconviction relief
pursuant to Superior Court Criminal Rule 61. Because his second appeal to the
Delaware Supreme Court was still pending, that motion was deemed premature.
Subsequently, on November 21, 2016, Mr. Demby filed an amended motion for
postconviction relief and an accompanying motion for appointment of counsel. In his
amended Rule 61 motion, he alleged ineffective assistance of trial counsel. On
December 17, 2017, the Court appointed counsel to represent him. After a review of
the record, his appointed counsel filed a motion to withdraw on May 2, 2018, together
with a memorandum in support of the motion. In the memorandum, appointed counsel
opined that the motion had no merit. The Court granted the motion to withdraw on
June 29, 2018.4
       6. In the interim, the Court appointed a Superior Court Commissioner to provide
a report and recommendation pursuant to Superior Court Criminal Rule 62. After
considering the record and the parties’ briefs, the Commissioner recommended denying
Mr. Demby’s motion. In her report, she recommended that the Court find that Mr.
Demby failed to allege facts sufficient to substantiate an ineffective assistance of
counsel claim.
       NOW, THEREFORE, after a de novo review of the record in this matter, and
for the reasons stated in the Commissioner’s Report and Recommendation dated
August 21, 2019;

3
  State v. Demby, Del. Super., ID No. 1206011513, Graves, R.J. (April 7, 2015) ORDER. Demby
v. State, 148 A.3d 1170 (Table) (Del. 2016).
4
  State v. Demby, Del. Super., ID No. 1206011513, Clark, J. (June 29, 2018) ORDER.

                                            2
      IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is hereby adopted by the Court in its
entirety. Accordingly, Mr. Demby’s Motion for Postconviction Relief pursuant to
Superior Court Criminal Rule 61 is DENIED.


                                                     /s/Jeffrey J Clark
                                                             Judge




                                      3
Exhibit A




    4
       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                     )    In and for Kent County
                                      )    ID No. 1206011513
      v.                              )
                                      ) RK12-07-0025-01 DDeal Tier 4 (F)
                                      ) RK12-07-0026-01 Consp 2nd (F)
MICHAEL E. DEMBY,                     ) RK12-07-0028-01 Poss Drug Parap (M)
                                      )
            Defendant.                )


           COMMISSIONER'S REPORT AND RECOMMENDATION

               Upon Defendant's Motion for Postconviction Relief
                 Pursuant to Superior Court Criminal Rule 61




Nicole S. Hartman, Esq., Deputy Attorney General, Department of Justice, for the State
of Delaware.

Michael E. Demby a/k/a Michael E. Brooks, pro se.


FREUD, Commissioner
August 21, 2019

      The defendant, Michael E. Demby (“Demby”) was found guilty following a jury
trial on October 9, 2013 of one count of Drug Dealing Tier 4, 16 Del. C. § 4752; one
count of Conspiracy in the Second Degree, 11 Del. C. § 512; and one count of
Possession of Drug Paraphernalia, 16 Del. C. § 4771. The jury found him not guilty on
separate counts of Drug Dealing Tier 4 and Conspiracy in the Second Degree and one

                                          5
count of Criminal Solicitation Second Degree and one count of Tier 5 Possession of
Drugs. The State entered nolle prosequis on one count of Racketeering and another
count of Tier 5 Possession. On October 11, 2013 Demby, through his counsel filed a
Motion for Judgment of Acquittal. The Court denied the motion on November 25, 20135
and sentenced Demby to twenty-seven years incarceration suspended after serving fifteen
years for varying levels of probation.
      A timely Notice of Appeal was filed with the Delaware Supreme Court by
Demby’s Trial Counsel. In the appeal the following claims were raised: whether the
admission of a wiretap recording violated Demby’s right to cross-examine the declarants;
that the wiretap recordings should not have been admitted; and the State violated the
Double Jeopardy clause. The Delaware Supreme Court found no merit in any of the
claims and affirmed Demby’s conviction and sentence on July 21, 2014.6 Subsequently
a Motion for a New Trial was filed alleging errors with the Office of Medical Examiner.
That motion was denied in both this Court and the State Supreme Court.7
      On March 14, 2016 Demby filed a Motion for Postconviction Relief pursuant to
Superior Court Criminal Rule 61. Since his second appeal to the Delaware Supreme
Court was still pending, that motion was deemed premature. Subsequently on November
21, 2016, Demby filed an Amended Motion for Postconviction Relief and an
accompanying Motion for Appointment of Counsel. He raises one ground for relief
alleging ineffective assistance of counsel. On December 17, 2017 the Court granted the
Motion for Appointment of Counsel and subsequently Kevin P. Tray, Esquire
(“Appointed Counsel”) was appointed to represent Demby. After a thorough and

 5
   State v. Demby, Del. Super., ID No. 1206011513, Vaughn, P.J. (Nov. 25, 2013) ORDER.
 6
   Demby v. State, 97 A.3d 1037 (Del. 2014).
 7
   State v. Demby, Del. Super., ID No. 1206011513, Graves, R.J. (April 7, 2015) ORDER. Demby
 v. State, 148 A.3d 1170 (Table) (Del. 2016).

                                             6
conscientious review of the facts, the record and the law in the case, Appointed Counsel
filed a motion to withdraw as counsel on May 2, 2018, along with a memorandum in
support of the motion, having concluded that the motion was wholly without merit and
that no meritorious grounds for relief existed. Demby was sent a copy of the motion to
withdraw and given thirty days to file a response. Appointed Counsel’s motion to
withdraw was granted by the Court on June 29, 2018.8 Next the motion moved to
briefing.
                                            FACTS
        Following are the facts as set forth by the Delaware Supreme Court:
               In May and June 2012, the Delaware State Police led a multi-
               agency law enforcement team that was investigating drug sales
               in Kent County, Delaware. The team used wiretaps to monitor
               communications by Galen Brooks, the target of the
               investigation. On May 26, 2012, the police heard a phone
               conversation between Brooks and Michael Demby, which led
               them to believe that a drug deal was about to take place.
               Based on that call, the police established surveillance at the
               McKee Crossing Shopping Center, and at Brooks’s father’s
               home on Red Oak Drive in Dover. In the next call, the police
               heard Brooks telling Demby to prepare a package of cocaine
               and to bring it to the buyer, who would be driving a Dodge
               Caravan. Brooks told Demby that the price was $2400. The
               police saw Demby leave the Red Oak Drive home and place
               a package in the trunk of a Honda parked at the house. Demby
               and Brooks’ brother, James, then got into the Honda and
               drove off.

               At the McKee Crossing Shopping Center, the police saw
               Dashawn Ayers seated in a Dodge Caravan in the parking lot.
               Demby and James arrived in the Honda and parked next to the
               Caravan. Demby got out of the Honda and got into the

 8
     State v. Demby, Del. Super., ID No. 1206011513, Clark, J. (June 29, 2018) ORDER.

                                                7
Caravan, while James went into a store in the shopping center.
After a few minutes, Demby got out of the Caravan and went
into the store James had entered. Shortly thereafter, the two
men left the store returned to the Honda, and drove away.
Ayers, driving the Caravan, also left the parking lot.

One of the officers in the surveillance unit that was following
Ayers instructed Delaware State Police Corporal Timothy
Valeski to conduct a traffic stop on the Caravan. Ayers
produced his license, but when Valeski told him to exit the
car, Ayers put the Caravan in gear and fled before the police
could search it. Valeski was instructed not to pursue Ayers
for public safety reasons.

After the meeting at the shopping center, the police contrived
to monitor Brooks’ phone conversations. Demby called
Brooks and told him that everything had gone well and that he
had the money. Brooks told Demby to keep $100 for his
participation and to give the remaining $2300 to Valerie
Brooks, his mother. Valerie called Brooks a few minutes later
to tell him that she received the money. Brooks told his
mother to keep $50 for herself.

Ayers turned himself in to the Delaware State Police on June
1, 2012, stating that he knew he had outstanding warrants.
The next day, Brooks and Demby had a telephone
conversation in which Brooks agreed to give Demby one
ounce of cocaine for the good work Demby had done. Police
later observed an exchange of money between the two men.
On June 14, 2012, the Delaware State Police arrested Demby.
A Kent County Grand Jury returned an indictment against
Ayers, Demby, Brooks, and 11 other individuals. Ayers was
charged with one count of Drug Dealing, one count of
Aggravated Possession, and one count of Conspiracy Second
Degree. Demby was charged with two counts of Drug
Dealing, two counts of Aggravated possession, two counts of
Conspiracy Second Degree, one count of Criminal Solicitation

                              8
             Second Degree, and one count of Possession of Drug
             Paraphernalia.

             Before trial, Ayers and Demby unsuccessfully moved to
             suppress the wiretap evidence. Ayers also filed a Motion to
             Sever, which was denied. The jury convicted Ayers on all
             counts. Demby was convicted of one count of Drug Dealing,
             one count of Aggravated Possession, one count of Conspiracy
             Second Degree, and one count of Possession of Drug
             Paraphernalia. He was acquitted of the remaining charges.
             Ayers and Demby filed separate appeal, which were
             consolidated for consideration and decision.9

                              DEMBY’S CONTENTIONS
       Demby filed pro se an Amended Motion for Postconviction Relief pursuant to
Superior Court Rule 61.10 In his motion, he raises the following ground for relief:
             Ground one:           Ineffective assistance of Counsel was
                                   unsuccessful in challenging expert witness
                                   in coded language of wiretapped
                                   conversations to prove the language
                                   meant something different, during cross
                                   examination and failed to present the
                                   court with declarants own interpreter to
                                   challenge what was being said on wiretap.


                                       DISCUSSION
      Under Delaware law, the Court must first determine whether Demby has met the
procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the

 9
   Demby v. State, 97 A.3d 1027 at 1038-39 (Del.) (Footnotes omitted.).
 10
    Defendant did not provide Appointed Counsel with any grounds to present upon receipt of the
 Motion to Withdraw. The motion for postconviction relief before the Court that was briefed by
 counsel is the motion docketed November 21, 2016. Appointed Counsel was permitted to withdraw
 June 29, 2018.

                                              9
merits of the postconviction relief claims.11 Under Rule 61, postconviction claims for
relief must be brought within one year of the conviction becoming final.12 Demby’s
motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the
motion. As this is Demby’s initial motion for postconviction relief, the bar of Rule
61(i)(2), which prevents consideration of any claim not previously asserted in a
postconviction motion, does not apply either.
         Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (1) cause for relief from
the procedural default; and (2) prejudice from a violation of the movant's rights.13 The
bars to relief are inapplicable to a jurisdictional challenge or to a claim that new evidence
exists that creates a strong inference that the defendant is actually innocent or that a new
rule of constitutional law is retroactive to defendant’s case.14
         Demby’s ground for relief is premised on an allegation of ineffective assistance of
counsel. Therefore, Demby has alleged sufficient cause for not having asserted this
ground for relief at trial and on direct appeal.
         Demby’s ineffective assistance of counsel claim is not subject to the procedural
default rule, in part because the Delaware Supreme Court will not generally hear such
claims for the first time on direct appeal. For this reason, many defendants, including
Demby, allege ineffective assistance of counsel in order to overcome the procedural
default. “However, this path creates confusion if the defendant does not understand that
the test for ineffective assistance of counsel and the test for cause and prejudice are
distinct, albeit similar, standards.”15 The United States Supreme Court has held that:
 11
      Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
 12
      Super. Ct. Crim. R. 61(i)(1).
 13
      Super. Ct. Crim. R. 61(i)(3).
 14
      Super. Ct. Crim. R. 61(i)(5) and 61(d)(2)(i) and (ii).
 15
      State v. Gattis, 1995 WL 790961 (Del. Super.).

                                                    10
             [i]f the procedural default is the result of ineffective assistance
             of counsel, the Sixth Amendment itself requires that the
             responsibility for the default be imputed to the State, which
             may not ‘conduc[t] trials at which persons who face
             incarceration must defend themselves without adequate legal
             assistance;’ [i]neffective assistance of counsel then is cause
             for a procedural default.16

A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the mark.
Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage
in the two part analysis enunciated in Strickland v. Washington17 and adopted by the
Delaware Supreme Court in Albury v. State.18
      The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness.19
Second, under Strickland the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings
would have been different, that is, actual prejudice.20 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.21
      Generally, a claim for ineffective assistance of counsel fails unless both prongs of
the test have been established.22 However, the showing of prejudice is so central to this
claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness
 16
    Murray v. Carrier, 477 U.S. 478, 488 (1986).
 17
    466 U.S. 668 (1984).
 18
    551 A.2d 53, 58 (Del. 1988).
 19
    Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
 20
    Id.
 21
    See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL
 466465 at *1 (Del. Supr.)).
 22
    Strickland, 466 U.S. at 687.

                                              11
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed."23 In other words, if the Court finds that there is no
possibility of prejudice even if a defendant's allegations regarding counsel's
representation were true, the Court may dispose of the claim on this basis alone.24
Furthermore, Demby            must rebut a "strong presumption" that Trial Counsel’s
representation fell within the "wide range of reasonable professional assistance," and this
Court must eliminate from its consideration the "distorting effects of hindsight when
viewing that representation."25
         Turning briefly to Demby’s specific claim he alleges his Trial Counsel did an
ineffective job of cross-examination and should have had an expert witness. Demby’s
Trial Counsel, in his affidavit, clearly contradicts Demby’s self-serving allegation and
states that he strategically chose to cross-examine the State’s witness based upon
common sense meaning of the words being used as opposed to procuring a linguistics
expert. I have reviewed the cross-examination and concluded counsel adequately cross-
examined the witness. Furthermore, Demby has notably provided no evidence of
prejudice as a result of the alleged deficiency of counsel. This failure is fatal to Demby’s
claim. Additionally given that counsel was successful in achieving acquittals on a
number of the charges against Demby his strategy was partially successful.
         Following a complete review of the record in this matter, it is abundantly clear that
Demby has failed to allege any facts sufficient to substantiate his claim that his attorney
was ineffective. I find Trial Counsel’s affidavit and Appointed Counsel’s motion to
withdraw, in conjunction with the record, more credible than Demby’s self-serving
claims that his Trial Counsel’s representation was ineffective. Demby’s Trial Counsel
 23
      Id. at 697.
 24
      State v. Gattis, 1995 WL 790961 (Del. Super.).
 25
      Strickland, 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

                                                 12
clearly denies the allegations. Furthermore, Appointed Counsel thoroughly reviewed the
record in this case and concluded that none of Demby’s claims were meritorious and that
no other meritorious claims could be found.
                                   CONCLUSION
      After reviewing the record in this case, it is clear that Demby has failed to avoid
the procedural bars of Superior Court Criminal Rule 61(i). A review of his Trial
Counsel’s affidavit, Appointed Counsel’s motion to withdraw and the record clearly
shows that counsel represented Demby in a competent fashion and was not ineffective.
Additionally, Demby has failed to demonstrate any concrete prejudice. Consequently, I
recommend that Demby’s motion be denied as procedurally barred by Rule 61(i)(3) for
failure to prove cause and prejudice.

                                        /s/ Andrea M. Freud
                                            Commissioner




                                           13
