IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

V. § I.D. No. 1405()23636
HAROLD EDWARDS §

Defendant. §

Submitted: Septernber 20, 2018
Decided: October 12, 2018

Upon Defendant Harold Edwards ’ Motion for Postconviction Relief
DENIED.

Upon Benjamin S. Gi/j”ora', 1 V, Esquire ’s Motion to Withdraw as Counselfor
Petitioner Harola' Edwards
GRANTED.

ORDER

Danielle Brennan, Esquire, Deputy Attorney General, Christina Kontis, Esquire,
Deputy Attorney General, Department of Justice, Carvel State Off`lce Building, 820
N. French Street, Wilmington, DE 19801, Attorneys for State of Delaware.

Benjamin S. Gifford, IV, Esquire, 14 Ashley Place, Wilmington, DE 19804,
Attorney for Harold Edwards.

WHARTON, J.

This 12th day of October, 2018, upon consideration of Defendant Harold
Edwards’ Motion for Postconviction Relief,l the Motion to Withdraw as Counsel
for Petitioner Harold Edwards of Benj amin S. Gifford, IV, Esquire,2 and the record
in this matter, it appears to the Court that:

l. Defendant Harold Edwards (“Edwards”) Was found guilty by a jury of
robbery in the first degree (two counts), shoplifting under $1,500 (three counts) and
forgery in the second degree.3 The Court sentenced Edwards to 17 years of
unsuspended incarceration, followed by decreasing levels of supervision.4 EdWards’
convictions Were affirmed on direct appeal to the DelaWare Supreme Court on
February 27, 2017.5

2. Edwards pro se Motion for Postconviction Relief (“Motion”) pursuant
to Superior Court Criminal Rule 61 Was filed timely on April 5, 2017.6 The Motion
raises two issues of ineffective assistance of counsel and one issue claiming that both
the Superior Court and the Supreme Court failed to conduct the necessary three-
pronged test to determine Whether the State improperly struck a black prospective

juror.7

 

1D.I. 57.

2D.I. 71.

3D.I. 39.

4D.I. 43.

5Edwara's v. State, 2017 WL 772498 (Del., Feb. 27, 2017).
6D.I. 57.

7Ia'.

3. On April 20, 2017, at Edwards’ request, the Court ordered the Office of
Conflict Counsel to appoint counsel for him.8 On December 13, 2017, Benjamin S.
Gifford, IV, Esquire was appointed to represent Edwards.9

4. On August 15 2017, Mr. Gifford filed a Motion to Withdraw as Counsel
for Petitioner Harold Edwards (“Motion to Withdraw”), certifying that he could not
ethically advance the claims Edwards raised in_ his Motion, nor, after reviewing the
record, could he identify any meritorious claims.10 On August 21, the Court advised
Edwards that he had 30 days to respond to the Motion to Withdraw.ll Edwards did
not submit a response.

5. Edwards’ Motion raises three claims for relief. The first alleges that trial
counsel was ineffective in failing to raise a Batson challenge to the State’s exercise of
peremptory challenges to strike black jurors. The second alleges that trial counsel
was ineffective in failing to conduct pretrial discovery and investigation into evidence
the State had lost, presumably a video related to one of the robbery incidents and a
police officer’s interview notes. The third claim alleges that neither the Superior
Court, nor the Supreme Court conducted the necessary three-pronged test required
under Batson to determine whether the State had improperly used a peremptory

challenge to strike a black juror.12

 

8D.I. 60.
9D.I. 65.
10D.I. 71.
11 D.I. 73.
'ZD.I. 57 at 3.

6. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred for time limitations, repetitive motions,
procedural defaults, and former adjudications A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a newly
recognized, retroactively applied right more than one year after it Was first
recognized.13 A motion is considered repetitive and therefore barred if it asserts any
ground for relief “not asserted in a prior post-conviction proceeding.”14 Repetitive
motions are only considered if it is “warranted in the interest of justice.”15 Grounds
for relief “not asserted in the proceedings leading to the judgment of conviction” are
barred as procedurally defaulted unless the movant can show “cause for relief ’ and
“prejudice from [the] violation.”16 Grounds for relief formerly adjudicated in the case,
including “proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.17 Former
adjudications are only reconsidered if “warranted in the interest of justice.”18 Before

addressing the merits of Edwards’ postconviction motion, the Court must first apply

 

13 Super. Ct. Crim. R. 61(i)(1).
14 Super. Ct. Crim. R. 61 (i)(2).
15 Id.
16 Super. Ct. Crim. R. 6l(i)(3).
‘7 Super. Ct. Crim. R. 61(i)(4).
18 Id.

the procedural bars of Superior Court Criminal Rule 61 (i).19 If a procedural bar
exists, then the Court will not consider the merits of the postconviction claim.20

7. The Court finds that the Motion is a timely first motion for
postconviction relief alleging ineffective assistance of counsel, and is not otherwise
procedurally defaulted. Because the third claim is related to a claim of ineffective
assistance of counsel, the Court will consider all three claims on their merits.

8. To successfully bring an ineffective assistance of counsel claim, a claimant
must demonstrate: (1) that counsel’s performance was deficient; and (2) that the
deficiencies prejudiced the claimant by depriving him or her of a fair trial with
reliable results.21 To prove counsel’s deficiency, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness22
Moreover, a defendant must make concrete allegations of actual prejudice and
substantiate them or risk summary dismissal23 “[A] court must indulge in a Strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”24 A successful Sixth Amendment claim of ineffective

assistance of counsel requires a showing “that there is a reasonable probability that,

 

19 Younger v. State, 580 A.Zd 552, 554 (Del. 1990).

211 Id.

lea'.

Hld. at 667-668.

23 Wright v. State, 671 A.Zd 1353, 1356 (Del. 1996).
24rS'tricklana' v. Washington, 446 U.S. 668, 689 (1984).

5

but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”25

9. On appeal, trial counsel filed a no-merit brief and a motion to withdraw
under Supreme Court Rule 26(c).26 When the Supreme Court reviews a motion to
withdraw and the 26(c) brief, it must be satisfied that appellant’s counsel made a
conscientious examination of the record and law for arguable claims.27 Further, the
Supreme Court must conduct its own review of the record and determine whether “the
appeal is indeed so frivolous that it may be decided without any adversary
presentation.”28 In performing this task, and “having conducted ‘a full examination
of all the proceedings’ and found ‘no nonfrivilous issue for appeal,”’ the Supreme
Court was satisfied that “Edwards’ appellate counsel made a conscientious effort to
examine the record and the law and properly determined that Edwards could not raise
a meritorious claim on appeal.”29 Thus, the Supreme Court, having reviewed the
record, did not see any arguable substantive merit to Edwards’ claims about the
State’s exercise of its peremptory challenges or the lost evidence.

10. The foregoing has implications for Edwards’ ineffectiveness claims against
trial counsel. To the extent there is no merit to the underlying Batson or lost evidence

claims, it is difficult to see how trial counsel’s failure to raise them by way of

 

25Ial. at 694.

26Ea’wara's v. State at *l.

27Ia'.

28Ia'. quoting Penson v. Ohio, 488 U.S. 75, 82 (1988).
2"°Ia'. quoting Penson at 80.

objection or pretrial investigation constituted performance deficiency or resulted in
prejudice to Edwards. Nonetheless, Court will review the claims as presented here.

11. The Court first addresses Edwards’ claims related to the State’s exercise
of its peremptory challenges. In his Motion to Withdraw, postconviction counsel
observes that five of the first twelve potential jurors called to the jury box were
black.30 The State exercised only five of its six peremptory challenges - two to strike
black jurors and three to strike white jurors.31 lt appears that the State struck one of
the black jurors because of an undisclosed driving under the influence conviction.32
Accordingly, trial counsel was aware that the State had struck this juror for a race-
neutral reason. Consistent with routine practice, the State was not obliged to provide
an explanation why it struck the other black juror or the three white jurors. It further
appears that the defense used two of the five peremptory challenges it exercised to
strike black female jurors - Annette Howard-Graves and Monisha Lloyd.33

12. Batson v. Kentucky prohibits the exercise of peremptory challenges solely
on the basis of race.34 In Robertson v. State, Delaware recognized that Batson sets
out a three-part test for analyzing claims that the State improperly exercised a

peremptory challenge on the basis of race.35 Under that analysis, a defendant bears

 

30Mot. to Withdraw, D.I. 71 at 11.

3lla'. at 12.

32la'. n. 47.

33 Appx. to Mot. to Withdraw, D.I. 72 at A30, A47, A49.
34476 U.S. 79, 89 (1986).

35 630 A.2d 1084, 1089 (Del. 1993).

the initial burden of making a prima facie showing that the prosecutor exercised a
peremptory challenge on the basis of race.36 Only after that prima facie showing has
been made does the burden shift to the prosecutor to proffer a race neutral basis for
the strike.37 Finally, the Court then determines whether the defendant has met his
burden of establishing purposeful discrimination38 lt is obvious to the Court, based
on the record of jury selection, that had trial counsel attempted to make a prima facie
showing that the State exercised its one unexplained peremptory challenge of a black
juror on the basis of race, that effort would have failed for want of any factual support.
The failure to make a prima facie showing would have ended the Batson inquiry at
the first prong of the analysis. For that reason, Edwards can show neither performance
deficiency, nor prejudice, both of which he must establish under Stricklana' in order
to succeed on his ineffective assistance of counsel claim based on Batson. For the
same reason, there was no basis for either this Court or the Supreme Court to conduct
a full three-part Baison analysis sua sponte.

13. Edwards other claim of ineffective assistance of counsel argues that trial
counsel was ineffective in “failing to perform any pretrial discovery and investigation
of lost evidence related to movant’s defense at trial.”39 Presumably, this claim relates

to the State’s failure to preserve a Surveillance video of one of the incidents and its

 

36Ia1.
37Ia'.
38Ia’.
39D.I. 57 at 3.

failure to preserve a police officer’s interview notes. These claims were addressed in
a somewhat different context on appeal. The Supreme Court held that Edwards was
not prejudiced by the missing notes, since they were immaterial to Edwards’ guilt or
innocence and would have added little to his defense.40 With respect to the missing
surveillance video, the Supreme Court held that this Court instructed the jury
appropriately that the jury should assume that the missing video would have been
exculpatory.41 Since the missing evidence was solely within the State’s custody and
control, it is difficult to envision how trial counsel can be faulted for the State’s failure
to preserve evidence, or how “pretrial discovery or investigation” of the lost evidence
would have aided Edwards’ cause to a greater degree than the missing evidence
instruction the Court gave. Again, the Court finds that Edwards has met neither the
performance prong, nor the prejudice prong of Stricklana'.

THEREFORE, Defendant Harold Edwards’ Motion for Postconviction Relief

is DENIED. The Motion of Benjamin S. Gifford, IV, Esquire to Withdraw as

me

Fel'¢ sW. Whalton J.

Counsel for Petitioner Harold Edwards is GRANTED.

IT IS SO ORDERED.

 

40Ea’wara’s v. State at 6-8.
41Ia'.

