          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE              )
                               )
                               )
           v.                  )       I.D. No. 1206001558
                               )
                               )
ONEILL ROSE,                   )
                               )
           Defendant.          )



                        Memorandum Opinion

     Presently before the court is Defendant’s motion for post

conviction relief ostensibly filed on June 20, 2014. In that motion

Defendant did not assert any claims for relief. Instead he stated

that “Movant cannot discern substantial grounds for relief. Movant

speaks broken (Jamaica origin) English and does not read English

well.”   According to Defendant, his grounds for relief were “to be

determined by postconviction counsel.”          The court appointed

Patrick Collins, Esq., who enlisted the aid of his colleague Albert

Roop Esq., to represent Mr. Rose in connection with his motion.

Appointed counsel conducted a thorough review of the record for

which the court is grateful.       Post-conviction counsel have now

moved to withdraw, and their motion is accompanied by an
                                   1
extensive written submission in which they identified two potential

claims of ineffective assistance of counsel.        They concluded,

however, that the potential claims “cannot be ethically advocated

because constitutional prejudice cannot be established.” Defendant

later submitted a pro se list of contentions which, he claims, entitle

him to relief.

                           A. Background

     Defendant was charged with multiple crimes as a result of a

non-fatal shooting of one April Harris at the Karribean Delight

Restaurant on Route 13 in Wilmington. A jury convicted Defendant

of Attempted Assault first degree, Assault first degree, three counts

of Reckless Endangering first degree and several firearms violations.

This court sentenced him to 39 years at Level 5 but later modified

his sentence to 25 years at Level 5. On direct appeal the Delaware

Supreme Court reversed the conviction for Attempted Assault first

degree and the related weapons charge, but affirmed Defendant’s

other convictions.




                                  2
        The facts giving rise to Rose’s case were well summarized by

the Supreme Court in its opinion on his direct appeal:

                     Rose was involved in a shooting that took
               place on June 2, 2012, in a restaurant in New
               Castle, Delaware. Venus Cherry, who had once
               been Rose's friend but was not at the time, saw
               Rose at the restaurant. Rose lifted his shirt to
               show the gun in his waistband. Later, Cherry
               saw Rose in a “tussle” with a man named
               Trini. After Cherry intervened, Rose started
               walking toward Cherry with his loaded gun
               pointed at him. Cherry told Rose that if he was
               going to shoot, he should go ahead and do it.
                     Ferron Nelson, a man who was nearby,
               separated Rose and Cherry, and told Rose to
               put the gun in his car. Rose started to walk
               away, but then turned and ran after Cherry,
               who started running toward a car owned by
               Natalee Chambers. The two men faced off at
               the back of the car. Rose pointed his gun at
               Cherry's face. Cherry hit Rose in the arm, and
               the gun fired. Cherry then punched Rose in
               the face, and Rose dropped the gun. While
               Cherry and Rose were running toward
               Chambers' car, April Harris was putting her
               daughter into that car. Harris was in the car
               when she heard a pop and felt a tingling in her
               arm. She had been shot. 1




1   Rose v. State, 2014 WL 1258271, at *1 (Del.)(paragraph numbers omitted).
                                              3
                            B. Analysis

     The court will first consider Defendant’s pro se submission

and then consider the submission by his court-appointed post-

conviction counsel

                     1. Rose’s pro se submission

     Rose has submitted several sketchy claims to supplement the

submission by his appointed post-conviction counsel. All but one

of those claims is procedurally barred, and the remaining claim

lacks merit.

     In his pro se Rule 61 submission Rose argues:

          (1) Is the victim April Harry did victim what
          the State use for is not Harry.

          (2) My lawyer was ineffective he did not do
          anything to help me.

          (3) Owner of the Caribbean Delight the State
          use him has Gairy Brown and his name is
          Garay Kenneth.

          (4) I did not own a gun.

          (5) My girlfriend own the gun she told the
          police I have paperwork to prove it.



                                 4
           (6) I was wearing green and black polo shirt
           and black dress pants with black dress shoes
           black belt.


                a. Most of Rose’s pro se claims are procedurally
                barred.

     The court is obliged to determine if a Rule 61 motion is

procedurally barred before it considers the motion’s merits.

Criminal Rule 61(i)(3) does not allow this court to consider

arguments that should have previously been raised.      That portion

of the rule prohibits consideration of:

           Any ground for relief that was not asserted in
           the proceedings leading to the judgment of
           conviction, as required by the rules of this
           court, is thereafter barred, unless the movant
           shows

           (A) Cause for relief from the procedural default
           and

           (B) Prejudice from violation of the movant's
           rights.

Rose’s argument 1, 3, 4, 5 and 6 could have been presented at trial

and therefore he is precluded from raising them now. His motion

does not specify any cause for his failure to raise them nor does it


                                   5
show any prejudice resulting from the failure to raise them. With

respect to the lack of prejudice, the court finds:

        • The court does not understand Ground 1 listed above. It

           has read Rose’s entire submittal, and the remainder of

           that submittal sheds no light on what he means in

           Ground 1.

        • With respect to ground 3 (the State had the name of the

           owner of the Karibbean Delight wrong) the court holds

           that the owner’s name is immaterial to the charges

           against Rose and therefore any mistake over his name is

           not prejudicial.

        • With respect to Grounds 4 and 5 (Rose did not own the

           gun) ownership of the gun is not material.        Rather

           possession of the gun is the material issue. Consequently

           any failure to raise questions about the ownership of the

           gun would not be prejudicial.

        • Turning to Ground 6 (the clothing Rose was wearing), the

           court does not understand what significance Rose

                                   6
               attaches to this.              If he is contending that he was

               misidentified at trial, he has not made a showing of

               prejudice because the witnesses who saw the events

               mostly knew Rose personally and did not identify him by

               the clothing he was wearing.

       In addition to the exceptions imbedded within Rule 61(i)(3),

the Rule provides an exception to the procedural bars when a

defendant “pleads with particularity that new evidence exists that

creates a strong inference that the movant is actually innocent in

fact of the acts underlying the charges of which he was convicted.”2

Nowhere does Rose point to any such evidence, and therefore this

exception does not save his claim. Accordingly Rose’s claims 1, 3,

4, 5 and 6 are procedurally barred.




2  Criminal Rule 61(d)(2)(i). This provision, which relates to second or successive petitions, is
incorporated in Rule 61(i).
                                                7
                b. The remaining claim lacks merit because Rose has
                not pled ineffective assistance of counsel or prejudice
                with sufficient particularity.

     Rose raises an ineffective assistance of counsel claim in part 2

listed above. Unlike his other claims, his ineffective assistance of

counsel claim could not have been raised at trial, and therefore it is

not barred by Rule 61(i)(3).    The court will therefore reach the

merits.

     It is settled that in order to make out an ineffective assistance

of counsel claim a defendant must show two things: (1) the

performance of his or her counsel fell below an objective standard of

reasonableness and (2) but for counsel’s substandard performance

there likely would have been a different result. The reasons why

the representation was substandard and the reasons why prejudice

emanates from that performance must be pled with particularity.

Conclusory allegations    to   the       effect   that “my counsel   was

ineffective” do not suffice. According to the Supreme Court,


                Claims    premised   upon     ineffective
          assistance of counsel face a familiar burden.
          Under Strickland v. Washington, Brooks must

                                     8
                satisfy [a] two pronged test. First, a convicted
                defendant     must    show     that    counsel's
                representation “fell below an objective
                standard of reasonableness.”         Second, a
                convicted     defendant   must      demonstrate
                prejudice. To show prejudice, the defendant
                must show that the proceeding's outcome
                would have been different had counsel not
                committed the challenged errors.          When
                making this showing, the defendant must
                overcome “a strong presumption that the
                representation was professionally reasonable.”
                The defendant must also make a concrete
                showing of actual prejudice.3

        The operation of these principles is illustrated in the Supreme

Court’s opinion in Vickers v. State, 4 wherein the Court wrote:

                      Vickers claims that his defense counsel
                was ineffective because she did not: (i) pursue
                a claim of insufficient evidence; (ii) conduct a
                sufficient investigation of the facts; (iii)
                interview or cross-examine witnesses; (iv) call
                available defense witnesses to testify; (v) object
                to false statements by the prosecutor; and (vi)
                request a continuance. To succeed on a claim
                of ineffective assistance of counsel, Vickers
                must     demonstrate     that   (i)    “counsel's
                representation fell below an objective standard
                of reasonableness[,]” and (ii) “there is a
                reasonable probability that, but for counsel's
                unprofessional errors, the result of the
                proceeding would have been different.”

3   Brooks v. State, 40 A.3d 346, 354 (Del. 2012)(internal footnotes omitted).
4   2000 WL 140108 (Del.).
                                                 9
                     We agree with the Superior Court that
               Vickers' allegations of ineffective assistance of
               counsel are conclusory and warranted
               summary       dismissal   of     his   ineffective
               assistance     of   counsel    claim.    Vickers'
               conclusory allegations are contradicted and/or
               denied by his counsel's sworn Rule 61(g)(2)
               affidavit. Furthermore, Vickers has provided
               no support for the claim that his counsel's
               representation fell below an objective standard
               of reasonableness and that the alleged errors
               were prejudicial to Vickers' defense.
                     It is manifest on the face of Vickers'
               opening brief that the appeal is without merit.
               The issues raised are clearly controlled by
               settled Delaware law, and to the extent the
               issues on appeal implicate the exercise of
               judicial discretion, there was no abuse of
               discretion 5


        In the instant case Rose’s allegations are even less precise

than those found to be inadequate in Vickers. Rose simply alleges

that “[m]y lawyer was ineffective he did not do anything to help me.”

This does not even remotely approach the threshold for pleading

with particularity substandard performance and prejudice. To the

extent that Rose’s remaining allegations might be construed as an

attempt to support his ineffective assistance of counsel claim, they


5   Id. at *2 (internal footnotes and paragraph numbers omitted).
                                               10
are insufficient because, as discussed in part B(1)(a) above, they do

not make out a claim of prejudice.



                   2. Appointed counsels’ submission

     Appointed post-conviction counsel identified two “potential”

ineffective assistance of counsel claims.     The first is that trial

counsel was ineffective because he did not move to sever the

possession of a firearm by a person prohibited charges. The second

is that trial counsel did not oppose the State’s motion in limine to

admit evidence of prior altercations between him and Venus Cherry.

Appointed post-conviction counsel advised the court that they could

not ethically present either of these arguments because they could

not in good faith argue that Rose suffered the prejudice necessary

to establish an ineffective assistance of counsel claim. The court

agrees with appointed post-conviction counsel.

     (a) Trial counsel’s failure to move to sever certain charges

     Appointed post-conviction counsel postulates that Rose could

argue that his trial counsel was ineffective because he ostensibly


                                 11
failed to move to sever person-prohibited charges against him. The

concern with person-prohibited charges is that if the jury becomes

aware of a previous felony committed by the defendant (which

makes the defendant a “person prohibited”), “the jury may convict

him of the other charges based solely on his previous criminal

history.” 6 Trial counsel did, in fact, address the person-prohibited

charges in advance of trial by stipulating that defendant was a

person prohibited.             The court agrees, therefore, that there is no

reason to believe that the outcome would have been different if trial

counsel had chosen some other tack. The Delaware Supreme Court

recently reached a similar conclusion in Wheeler v. State, writing:

                     Even if stipulating to Wheeler's person
               prohibited status rather than filing a motion to
               sever    was    professionally    unreasonable,
               Wheeler has not shown that there is a
               reasonable probability that, but for the
               supposed error, the outcome of the trial would
               have been different. 7

Appointed post-conviction counsel also theorized that trial counsel

could have opposed the State’s motion in limine to admit evidence of

6   Johnson v. State, 5 A.3d 617, 622 (Del. 2010).
7   Wheeler v. State, 2015 WL 6150936 (Del).

                                               12
prior altercations between Rose and Venus Cherry. Appointed

counsel points out, however, that the lack of opposition very likely

did not cause prejudice to Rose because the court would have still

admitted the statements over his objection.       The evidence in

question related to an incident about one year prior to these events

in which Rose picked up a brick or bottle and then pulled a knife

during an altercation with Cherry stemming from a dispute over a

domino game. The second was a fight between Rose and Cherry

taking place not long before the crime in this case. Appointed post-

conviction counsel correctly notes that, applying Getz v. State, 8

evidence of these two incidents would likely have been admitted for

the purpose of showing motive, identity and intent.

        Wherefore, Rose’s claims 1, 3, 4, 5 and 6 are DISMISSED

because they are procedurally barred. Claim 2 is DENIED. Defense

Counsel’s Motion to Withdraw is GRANTED.




8   538 A.2d 726 (Del. 1988).
                                 13
January 28, 2016                               John A. Parkins, Jr.
                                              Superior Court Judge




oc: Prothonotary

cc: Patrick J. Collins, Esquire, Albert J. Roop, V, Esquire, Collins & Roop,
    Wilmington, Delaware
    Periann Doko, Department of Justice, Wilmington, Delaware
    Oneil Rose, SBI 00511629, JTVCC, Smyrna, Delaware




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