           IN THE SUPREME COURT OF THE STATE OF DELAWARE

RAMON RUFFIN,                             §
                                          §   No. 367, 2018
      Defendant Below,                    §
      Appellant,                          §   Court Below: Superior Court of the
                                          §   State of Delaware
      v.                                  §
                                          §   Cr. ID No. 1312005545A (K)
STATE OF DELAWARE,                        §
                                          §
      Plaintiff Below,                    §
      Appellee.                           §

                          Submitted: November 21, 2018
                          Decided:   February 19, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                     ORDER

      This 19th day of February 2019, upon consideration of the brief under

Supreme Court Rule 26(c), appellate counsel’s motion to withdraw, and the State’s

response, it appears to the Court that:

      (1)    This is the appellant Ramon Ruffin’s appeal from the Superior Court’s

denial of his first motion for postconviction relief under Superior Court Criminal

Rule 61. The underlying charges stemmed from a 2013 attempted armed robbery,

during which the robber struck the victim in the head with a handgun before fleeing

in a white minivan. After a police chase, the driver of the van—Ruffin—and a

backseat passenger, Wilbur Doughty, were apprehended and taken into custody.

Doughty was released after questioning. Ruffin was indicted in 2014 and tried on
charges of attempted robbery, assault, aggravated menacing disregarding a police

officer’s signal, and weapon offenses. Neither Ruffin nor Doughty testified at

Ruffin’s trial.

         (2)    Ruffin’s defense at trial admitted that Ruffin was the driver of the white

minivan but denied that he committed the attempted robbery and assault and

suggested that it was Doughty who did. The jury found differently and convicted

Ruffin of the charged offenses. On direct appeal, we affirmed Ruffin’s convictions. 1

         (3)    Ruffin filed a timely pro se motion for postconviction relief based on

claims of ineffective assistance of counsel and prosecutorial misconduct.            The

Superior Court appointed postconviction counsel for Ruffin. Postconviction counsel

did not amend the postconviction motion.

         (4)    After obtaining an affidavit from Ruffin’s trial counsel addressing the

allegations of ineffective assistance of counsel, the State’s response to the

postconviction motion, and replies filed by Ruffin and his postconviction counsel, a

Superior Court Commissioner issued a report recommending that the postconviction

motion should be denied.2 By order dated June 14, 2018, upon a de novo review of

the record, the Superior Court adopted the Commissioner’s report and

recommendation and denied the postconviction motion. This appeal followed.



1
    Ruffin v. State, 131 A.3d 295 (Del. 2015).
2
    State v. Ruffin, 2018 WL 2202278 (Del. Super. Ct. Comm’r May 9, 2018).
                                               2
         (5)     On appeal, postconviction counsel has filed a no-merit brief and a

motion to withdraw under Supreme Court Rule 26(c). Postconviction counsel

asserts that, based upon a complete and careful examination of the record, there are

no arguably appealable issues.

         (6)     In a written response to postconviction counsel’s brief and motion,

Ruffin asks us to consider claims of ineffective assistance of counsel based on his

trial counsel’s failure to move for a mistrial in a timely fashion and to request an

evidentiary hearing on the issue of tainted in-court identifications. Also, in a claim

of ineffective assistance of counsel that was not raised in the postconviction motion,

Ruffin contends that his trial counsel was ineffective when he failed to request that

the gun seized from the minivan be submitted for DNA testing. Finally, Ruffin

claims that the prosecutor’s closing argument improperly vouched for statements

that Doughty made to the police before he was released.

         (7)     When reviewing the Superior Court’s denial of postconviction relief on

appeal, we consider the procedural requirements of Rule 61 before addressing any

substantive issues.3 Rule 61(i)(3) provides that any ground for relief that was not

asserted in the proceedings leading to the judgment of conviction is barred unless

the movant can establish cause for relief from the procedural default and prejudice




3
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                                 3
from a violation of the movant’s rights.4 To establish cause, the movant must

demonstrate that an external impediment prevented him from raising the claim

earlier.5 To establish prejudice, the movant must show actual prejudice resulting

from the alleged error. 6

       (8)    Ruffin failed to raise his prosecutorial misconduct claim on direct

appeal, and we can find neither cause for failure to raise the claim nor prejudice from

the alleged error. The prosecutor is entitled to argue all legitimate inferences of guilt

that flow from the evidence presented at trial. 7 “Improper vouching occurs when a

prosecutor implies that he or she has superior knowledge, beyond that logically

inferable from the evidence.”8 In this case, the prosecutor’s closing arguments

concerning Doughty’s lack of involvement in the planning and commission of the

attempted robbery, assault, and other offenses, were all permissible inferences from

the evidence presented at trial. Ruffin’s prosecutorial misconduct claim is barred

under Rule 61(i)(3).

       (9)    To prevail on a claim of ineffective assistance of counsel, a movant

must prove that his trial counsel’s performance was objectively unreasonable and




4
  Del. Super. Ct. Crim. R. 61(i)(3) .
5
  Younger, 580 A.2d at 556.
6
  Id.
7
  Hughes v. State, 437 A.2d 559, 567 (Del. 1981).
8
  Saunders v. State, 602 A.2d 623, 624 (Del. 1984).
                                               4
that his defense was prejudiced as a result. 9 A movant asserting a claim of ineffective

assistance must make concrete allegations of actual prejudice to substantiate the

claim.10 Although there is a strong presumption that counsel’s representation was

professionally reasonable,11 there is no need to analyze whether an attorney

performed deficiently if the alleged deficiency did not prejudice the movant.12

       (10) Ruffin cannot demonstrate that he was prejudiced by his trial counsel’s

failure to request that the gun recovered from the minivan be submitted for DNA

testing. Because Ruffin did not raise this claim in the postconviction motion, we

reviewed the claim for plain error. 13 Plain error is error that is “so clearly prejudicial

to substantial rights as to jeopardize the fairness and integrity of the trial.” 14

       (11) In this case, forgoing DNA testing of the gun seized from the minivan

protected Ruffin in the event the results were incriminating and, as illustrated in this

case, provided his defense with an argument of insufficient evidence based on the

State’s failure to produce the test results. 15 A decision made in pursuit of reasonable




9
  Strickland v. Washington, 466 U.S. 668, 687–88 (1984)
10
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
11
   Strickland, 466 U.S. at 689.
12
   Laster v. State, 2019 WL 507683 (Del. Feb. 8, 2019) (citing Ploof v. State, 75 A.3d 811, 825
(Del. 2013); Strickland, 466 U.S. at 697)).
13
   Del. Supr. Ct. R. 8. Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
14
   Wainwright, 504 A.2d at 1100.
15
   Hr’g Tr. at 56–58 (Oct. 28, 2014).
                                              5
trial strategy does not constitute ineffective assistance of counsel. 16 Under plain

error review, Ruffin’s ineffective assistance of counsel claim is without merit.

       (12) Finally, the Superior Court did not err when concluding that Ruffin’s

postconviction motion failed to show that his trial counsel was ineffective. Ruffin

raised the tainted in-court identifications and the denial of his motion for mistrial as

issues on direct appeal without success. Having failed to prevail on the merit of the

claims on direct appeal, Ruffin cannot succeed on the claims now by reframing them

as grounds for ineffective assistance of counsel.

       (13) After careful consideration of the parties’ positions on appeal, we

conclude that the judgment denying Ruffin’s postconviction motion should be

affirmed. We are satisfied that postconviction counsel made a conscientious effort

to examine the record and the law and properly determined that Ruffin could not

raise a meritorious claim in this appeal.17

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

Superior Court is AFFIRMED.

                                            BY THE COURT:

                                            /s/Gary F. Traynor
                                            Justice


16
   Allison v. State, 2010 WL 3733919 (Sep. 24, 2010) (citing Strickland v. Washington, 466 U.S.
668, 689 (1984)).
17
   Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
                                               6
