IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
ID No. 1310017689

Vs

QUENTIN CANNON,

a a a a a

Defendant.
Upon Defendant Quentin Cannon’s Motion for Postconviction Relief:
DENIED.
Andrew J. Vella, Esq., Deputy Attorney General, Attorney for the State of Delaware.

Natalie S. Woloshin, Esq., Woloshin, Lynch & Associates, P.A., Attorney for
Defendant.

Rennie, J.
OPINION
Before the Court is Defendant Quentin Cannon’s (“Defendant”) petition
seeking postconviction relief. Upon consideration of Defendant’s Motion for
Postconviction Relief (the “Motion”),! and appendix attached thereto,” the State’s
Response to the Motion,’ Defendant’s Reply,’ Superior Court Criminal Rule 61,
applicable decisional law, and the entire record in this case, the Motion is DENIED

for the reasons set forth below.

 

' Defendant’s Motion for Postconviction Relief (“Mot.”) (D.I. 60).

2 Appendix for Motion for Postconviction Relief (hereinafter cited as“A__—”) (DI. 61).
3 State’s Response to Motion for Postconviction Relief (D.I. 70).

4 Defendant’s Reply in Support of Postconviction Relief (D.I. 72).
I. GENERAL BACKGROUND>

On the evening of October 9, 2013, Defendant was at the house of his friend,
Carlton Castillo (“Castillo”).© Castillo’s two roommates were also home at the
time.’ Defendant was with Castillo in the basement but left the residence for a while.
Approximately ten to fifteen minutes after Defendant returned, two of Defendant’s
co-conspirators, one named Darrell Tyson (“Tyson”), entered the house. Tyson
headed directly into the basement, pointed a gun at Castillo, and told him to “give it
up.” After a tussle between Castillo and Tyson, Castillo successfully subdued
Tyson, with help from his two roommates. Tyson was thereafter taken into custody
by the New Castle County Police. Cannon fled the residence at some point during
the altercation. The victims of the home invasion reported that a large amount of
cash had been taken from their residence.

Later in the night, the police pulled over a blue 1998 Mercury Marquis in close
proximity to the house in question, which was identified by a subject in the house as

the vehicle that left the scene of the home invasion. Defendant was in the backseat

of that vehicle. The police found a cell phone and approximately $2,520 in cash on

 

> This section of the Opinion provides general background information surrounding the underlying
incident and proceedings leading up to Defendant’s conviction. Facts relevant to a specific claim
in the Motion will be articulated when that particular claim is discussed in the Opinion.

6 The facts surrounding the underlying crimes committed by Defendant are largely drawn from the
Delaware Supreme Court’s Order. See Cannon v. State, 126 A.3d 641 (Table), 2015 WL 6280776
(Del. Supr. Oct. 20, 2015). For a more detailed recitation of those facts, please refer directly to
that Order.

7 Also at home at the time in question were the children of one of Castillo’s roommates.

2
Defendant’s person. During a search of the car, the police also found Tyson’s cell
phone and $1,637 behind the backseat, for which no one in the car claimed
ownership.

The police, after securing a search warrant, conducted a forensic examination
of the cell phones recovered, and found an exchange of text messages between
Defendant and Tyson that discussed and planned the details of the home invasion.
Specifically, Defendant conveyed information about money at the residence.
Defendant also told Tyson the identity of the persons at the residence that night, and
where each person was located. Tyson asked Defendant whether there was any
firearms within the residence, and advised Defendant of his intention to use a gun.
Defendant further instructed Tyson to “make them face the floor” when he entered
the basement.

Defendant’s trial was originally scheduled to start on June 10, 2014.° It was
later continued to August 5, 2014, because one of the State’s key witnesses failed to
appear for court.’ After a 4-day jury trial, Defendant was convicted of Attempted
Robbery First Degree, Burglary First Degree, Assault Second Degree, Conspiracy
Second Degree, and two counts of Possession of a Firearm During the Commission

of a Felony.'® Defendant was sentenced to 19 years at Level V incarceration

 

8D. 4.
° D.Is. 25, 28.
10D I. 32.
followed by Level IV and Level III time.'! Defendant filed a Notice of Appeal.’
On November 12, 2015, the Delaware Supreme Court issued a mandate affirming
Defendant’s conviction."

On November 18, 2016, Defendant filed a pro se Motion for Postconviction
Relief.'4 Counsel was later appointed to represent Defendant in his Rule 61
proceeding, and an Amended Motion for Postconviction Relief (the “Motion”) was
filed on January 22, 2018.'5 In the Motion, Defendant argues ineffective assistance
of counsel and prosecutorial misconduct. The Court conducted an evidentiary
hearing on this matter on April 8, 2019.'® After consideration of the parties’ briefs,
and testimony and documentary evidence received at the hearing, the Court hereby
denies the Motion.

II. PROCEDURAL BARS

Before addressing the merits of any claim for postconviction relief, the Court

must first determine whether any of the procedural bars set forth in Superior Court

Criminal Rule 61(i) are applicable.’ A motion for postconviction relief could be

precluded based on time limitations, repetition, procedural defaults, and former

 

1! Sentencing Order (D.I. 34).

2D I. 35.

BDI 43.

4 DI. 47.

SDI. 60.

'6 DI. 79 (“Hearing Transcript”).

'7 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

4
adjudications.'* “To protect the procedural integrity of Delaware’s rules, the Court
will not consider the merits of a post-conviction claim that fails any of Rule 61’s
procedural requirements.”"

The State contends that Defendant’s Motion is time-barred.”° Rule 61(i)(1)
explicitly provides that a motion for postconviction relief may not be filed more than
one year after the judgment of conviction becomes final.”’ If a defendant files a
direct appeal, as Defendant did here, the judgment of conviction becomes final when
the Delaware Supreme Court issues a mandate or order finally determining the case
on direct review.”* The State contends that Defendant’s conviction became final for
Rule 61 purposes when the Delaware Supreme Court issued its mandate on
November 12, 2015, and that Defendant’s pro se Motion, which was filed on
November 18, 2016, was beyond the one-year time limitation. Defendant contends
that the Motion is not time-barred because the delay in filing was caused not by him,

but by court personnel. The Court agrees with Defendant and finds that the Motion

is not barred by the one-year time limitation.

 

'8 Super. Ct. Crim. R. 61(i)(1)-(4).

'9 State v. Page, 2009 WL 1141738, at *3 (Del. Super. Apr. 28, 2009) (emphasis added) (internal
citations omitted).

20 The State also contends that Defendant’s claims of prosecutorial misconduct are barred, under
Rule 61(i)(3), for procedural defaults. The Court will address this argument later in the Opinion,
when it discusses the claims of prosecutorial misconduct.

21 Super. Ct. Crim. R. 61(i)(1).

22 Super. Ct. Crim. R. 61(m)(2).
The Delaware Supreme Court has held that an untimely filing may be excused
when a defendant “did all that was required of him in seeking review,” and “his
default has been occasioned by court related personnel.””? In this case, the docket
reflects the filing of two mandates from the Delaware Supreme Court. The first
mandate, docketed on November 12, 2015, pertains to Defendant’s case.2* The
second mandate, docketed on November 25, 2015, pertains to an entirely different
case.2> Thus, if calculated from the date of the second mandate, Defendant’s Motion
would have been deemed timely. However, the docket fails to indicate that the
second mandate does not pertain to Defendant’s case. Therefore, in looking at the
docket, it was reasonable for Defendant to have believed that the second mandate
constituted the final determination of the Delaware Supreme Court and triggered the
one-year time period for filing his Rule 61 Motion. The docket is controlled by the
Court, and the docketing mistake was made by court personnel. Any apparent delay
in filing of Defendant’s Motion is due to an error on the part of court personnel, and

thus should not bar Defendant’s Motion.

 

3 Bey v. State, 402 A.2d 362, 363 (Del. 1979).
4 D1. 43.
5 DI. 45.
Ill. INEFFECTIVE ASSISTANCE OF COUNSEL

The Court now addresses Defendant’s claims of ineffective assistance of
counsel. Defendant raises four claims of ineffective assistance of counsel: (1) failure
to provide him with the State’s key evidence against him prior to his rejection of the
State’s plea offers; (2) failure to file a motion to suppress the search of his and his
co-defendant, Tyson’s, cell phone records; (3) failure to file a motion to compel; and
(4) failure to raise meritorious claims on appeal.

To prevail on a claim of ineffective assistance of counsel, a defendant must
first show “counsel’s representation fell below an objective standard of
reasonableness.”2° A defendant bears a very heavy burden when trying to establish
this deficiency, because, in order to eliminate “the distorting effects of hindsight,”
“there is a strong presumption that trial counsel’s representation was professionally
reasonable.”2” The defendant must show that the counsel was so deficient that he
was not functioning as the “counsel” guaranteed by the Sixth Amendment.”® In
addition to objective unreasonableness in counsel’s representation, the defendant
must demonstrate actual prejudice, defined as “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

 

26 Strickland v. Washington, 466 U.S. 668, 688 (1984).
27 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (internal citations omitted).
28 Td. (internal citation omitted).

7
different.”2? A defendant must “make specific allegations of actual prejudice and
substantiate them.’°° Notably, the Court need not determine whether the counsel’s
performance was deficient before it examines the prejudice suffered by the
defendant, if it is clear that the defendant makes an insufficient showing of the
latter?!
A. Failure to Advise of Incriminating Evidence Prior to Plea Negotiations
Defendant’s first ineffectiveness claim alleges that his trial counsel was
deficient in plea negotiations. On June 9, 2014, the day of the final case review, the
State extended its first plea offer, which Defendant rejected.** The second plea offer
was extended on June 10, 2014, and the final, and the best, offer was extended on
June 11, 2014. Defendant also rejected those offers.*? Defendant contends that his
attorney failed to review with him key incriminating evidence, and had trial counsel
advised him of the evidence against him, he would have accepted the State’s plea
offer. The evidence that Defendant contends is critical to his plea negotiations is the
exchange of text messages, between Defendant and Tyson, orchestrating the home

invasion.

 

? Strickland, 466 U.S. at 694.

30 Hoskins, 102 A.3d at 730 (internal citation omitted).

3! Strickland, at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which [{][] will often be so, that course should be followed.”).

32 4024-026.

33 A037, 083.
Defendant and his trial attorney have provided diametrically conflicting
testimony on the issue of whether the trial counsel reviewed those text messages
with Defendant prior to the plea negotiations. It is undisputed that the trial attorney
received the State’s discovery, including the incriminating text messages, on June 4,
2014. During the evidentiary hearing, Defendant testified that his attorney failed to
review the evidence with him, and that he did not know the contents of the evidence
until June 16, 2014, five days after the final plea offer expired, when his attorney
sent him a copy of the evidence.** The trial attorney, to the contrary, testified that
he reviewed the cell phone records with Defendant on June 8, 2014, the night before
the first plea offer was rendered. Trial counsel further testified that Defendant was
aware of the contents of those records and what the State’s case was going to be.*°

The Court finds it unnecessary to determine whether Defendant’s attorney did
actually review the cell phone records with Defendant on June 8, 2014, because even
if he did not, there was no actual prejudice suffered by Defendant. In fact, Defendant
became aware of the State’s intention to use the cell phone records and their contents
at least before the State extended its final plea offer, as shown by his own testimony.
On June 10, 2014, Defendant, through his attorney, filed a motion in limine to

exclude the cell phone records.*° Defendant testified that he was aware of the subject

 

34 Hearing Transcript at 106-07.
35 Id. at 44, 80-81.
36 AQ29-033.
of the motion, which was text messages between he, Tyson, and Castillo,?’ but denies
that he knew the contents of those messages at the time.*®? Defendant’s denial of
knowledge of the contents of the text messages is belied by the fact that Defendant
himself is the author of those messages. Throughout Defendant’s case, he never
challenged the authenticity of the text messages, nor has he alleged that they were
not sent by him. Thus, if Defendant knew that the State had text messages between
he and Tyson as evidence against him, he must have known the contents of those
messages, and the significance of the evidence, at that time.

The rest of the record also contradicts Defendant’s contention that he did not
know the contents of the cell phone records. On June 10, 2014, Defendant’s attorney
advised the Court that he had discussed the cell phone records with Defendant.”
Further, the attorney outlined on the record the nature of the incriminating text
messages between Defendant and Tyson. Specifically, the attorney stated that the
text messages suggest that Defendant “was there sort of scouting things out” by
“relaying information [to his co-defendant] about what was and what wasn’t in the

home that was invaded.’”° The trial attorney also acknowledged that the cell phone

 

37 Hearing Transcript at 106 (When asked what information he had in order to make a decision on
the final plea offer, extended on June 11, 2014, Defendant stated “[bJasically the motion in limine.”
He added that “[t]he only evidence I had was [] text messages against me or that my codefendant
text my phone.”).

38 Td. at 106-07.

39 A037.

4 A038.

10
records constitute the core evidence upon which the State’s case against Defendant
was predicated.*’ Notably, Defendant was in the courtroom when his attorney made
these statements. Therefore, Defendant should at least have become aware of the
nature of the cell phone records on June 10, 2014.”

Defendant, both in the Motion and at the evidentiary hearing, focused on the
statements made by his trial attorney to the Court that the State’s discovery was
provided at such a late time that there had been only “a limited opportunity” and “a
very brief period of time” the attorney had to go over the evidence with Defendant.
The Court finds that, although the entire cell phone extraction report is comprised of
more than 4,000 pages of documents, only 27 pages of the documents contain the
incriminating text messages. It is true that Defendant’s attorney received the 27
pages only a couple days prior to the plea negotiations started, but those text
messages are plain evidence and self-explanatory on their face, and it would not have
taken a tremendous amount of time for Defendant’s attorney to analyze them and
explain them to Defendant. Moreover, based on the above discussion, even if the
trial attorney failed to reveal the contents of the cell phone evidence to Defendant

before the plea negotiations started, it is clear from the record that Defendant became

 

41 Id

42 Defendant could make the argument that he, although having heard his attorney’s comments
regarding the cell phone records, did not understand those statements. However, even if that was
the case, he could have inquired about the evidence from his attorney afterwards. No evidence
shows that he did that either.

“3 Mot. at 6-7.

11
aware of the contents at least before the final plea offer was extended. Defendant
voluntarily chose to reject that offer. Thus, he did not and could not have suffered
actual prejudice from his attorney’s alleged failure to advise him of incriminating
evidence. Therefore, Defendant’s first ineffectiveness claim must fail.

B. Failure to Move to Suppress Search of Cell Phone Records

Defendant’s second ineffectiveness claim is that his trial counsel was deficient
by failing to move to suppress the search of his and Tyson’s cell phone records. It
is well-established that unreasonable searches and seizures are prohibited by law.
Under both the U.S. and Delaware Constitutions, a search warrant may only be
issued upon a showing of probable cause, and the warrant must describe with
particularity the places to be searched and the things or persons to be seized.“
Defendant contends that the warrant in this case authorizing search of the cell phones
is invalid because it lacks both probable cause and particularity.

An affidavit in support of a search warrant establishes probable cause to
search by showing that there is a logical nexus between the items sought and the
place to be searched.’* In other words, the affidavit must, within the four corners of
the document, contain adequate facts to allow an issuing magistrate to form a

reasonable belief that an offense has been committed and that the evidence of that

 

44 U.S. Const. Amend. IV; Del. Const. art. I, § 6.
45 svate y. Adams, 13 A.3d 1162, 1173 (Del. Super. 2008) (internal citation omitted).

12
offense will be found in that particular place.*° A determination of probable cause
requires an inquiry into the “totality of the circumstances” alleged in the affidavit.*”
Here, Defendant contends that the affidavit in support of the search warrant contains
insufficient information to establish probable cause that evidence of the home
invasion would be found in his cell phone. Specifically, Defendant asserts that the
affidavit only contains information that he owned and possessed a cell phone at the
time the car in which he was a passenger was pulled over by the police. Defendant
contends that mere ownership and possession, on its own, does not constitute
“adequate facts” to warrant an inference that evidence of the home invasion would
be found in the cell phone.

The factual predicate for Defendant’s argument is incomplete. The affidavit
described in detail the circumstances under which Defendant’s cell phone was seized
by the police. Defendant was in the victim’s house before the home invasion
occurred but fled the scene during the crime. Right after the incident, Defendant
was found in a car identified as the getaway vehicle in close proximity to the scene
of the home invasion. When found, Defendant was in possession of a large amount
of cash, which was alleged to have been taken during the home invasion. As to

Defendant’s cell phone, it was discovered during a search of the getaway vehicle,

 

46 Td. at 1172 (internal citation omitted).
47 Sisson v. State, 903 A.2d 288, 296 (Del. 2006).

13
where the police also found the cell phone of a co-defendant. Although he denied
using the cell phone to facilitate the crime, Defendant admitted that he used the cell
phone to contact the victim after he fled the scene. Defendant argues that the mere
ownership and possession of the cell phone does not constitute probable cause.
However, as discussed above, the supporting affidavit contains facts far more than
mere ownership or possession. Therefore, considering the totality of the
circumstances, the issuing magistrate reasonably believed that incriminating
evidence would be located on Defendant’s cell phone, and therefore properly found
that probable cause existed to search the cell phone.

Defendant next contends that, even if probable cause was established, the
search warrant was a general warrant that failed to describe the data to be searched
with constitutionally-required particularity. This argument also fails. Although the
particularity requirement is a long-standing concept rooted in the U.S. and Delaware
Constitutions, the Delaware Supreme Court had not directly addressed a challenge
to search warrants directed to digital items on the ground of lack of sufficient
particularity until 2016, in Wheeler v. State."* While confirming that the particularity
requirement is equally applicable to digital items as to physical objects, for the

manifest purpose of preventing wide-ranging exploratory searches, the Wheeler

 

48 135 A.3d 282 (Del. 2016). The Wheeler case noted that warrants directed to digital information
“present unique challenges in satisfying the particularity requirement, given the unprecedented
volume of private information” stored in digital devices. Id. at 299.

14
Court acknowledged the importance of balancing private interests and unrestrained
searches against the legitimate efforts in investigating criminal activities and the
propensity of criminals to hide or disguise files. Accordingly, the Wheeler Court
declined to specify restrictive search protocols, but rather provided the general
principle that, in order to satisfy the particularity requirement, a warrant must
describe the information to be searched with as much specificity as “the
circumstances reasonably allow.”*?

The search warrant in this case authorized the search of “[a] White Apple
Iphone, . . ., any and all voice messages, recorded oral communications contained
within the electronic storage devices listed above, specifically for call logs, SMS
(text) messages, MMS (media) messages as well as images and/or videos.”>!
Because the time frame relevant to the home invasion was available to the
investigating officers, and was not included in the search warrant, the warrant
arguably violated the particularity test set forth in Wheeler. However, an
unignorable fact is that Wheeler was decided two years after Defendant’s conviction.
Failure to move to suppress the search warrant under Wheeler could thus not be

deemed as ineffective representation by Defendant’s trial attorney. Defendant

argues that his attorney was deficient even in light of the case law that did exist at

 

49 Id. at 299-301.
59 Td. at 30405.
51 A300.

15
the time, citing Starkey v. State.*? This argument is misplaced. Starkey discussed a
search warrant directed to “any and all data stored [in a cell phone], to include but
not limited to registry entries, pictures, photographs, images, audio/visual
recordings, .. ., any other information/data pertinent to this investigation within said
scope.” The Starkey Court found that the warrant did not lack particularity because
the “pertinent to this investigation” language effectively limited the scope of the
search.”

Defendant argues that, because the search warrant in this case did not include
the similar “pertinent to” language, it fails to satisfy the particularity requirement.
Defendant’s interpretation of the Starkey holding is overboard. Although finding
that the warrant was valid with the “pertinent to” language, the Starkey Court has
not held that the language somehow constitutes the “magic words” that every valid
search warrant must include. In fact, the Starkey Court merely analyzed a specific
search warrant under the specific circumstances of that case. It did not reach a
universal conclusion that must be followed by the subsequent courts; nor did it in a
general sense address the permissible scope of warrants seeking digital information.

Hence, although Defendant’s trial counsel could have arguably relied upon Starkey

 

2274 A. 3d 655 (Table), 2013 WL 4858988 (Del. Supr. Sept. 10, 2013).
53 Id. at *4 (emphasis added).
54 Id.

16
to make the case for a motion to suppress, his failure to do so could hardly be seen
as falling below an objective standard of reasonableness.

Importantly, Defendant’s trial counsel did review the Affidavit of Probable
Cause in support of the search warrant and ultimately exercised his “good faith belief
that had a suppression motion been filed challenging the probable cause for the
search of Cannon’s cell phone, it would have been denied.”

While it is easy to serve as a Monday Morning Quarterback in considering
whether trial counsel should have nonetheless filed a motion to suppress the search
results for Defendant’s cell phone, the Court must employ considerable deference to
trial counsel’s considered decision not to do so. This Court is mindful of the United
States Supreme Court’s admonition in Strickland that:

“A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.”°°
Defendant in this case has failed to overcome that presumption.

In addition, even if trial counsel sought and was granted relief on a motion to

suppress the text messages between Defendant and his co-conspirators, there was

 

55 Revised Affidavit of Trial Counsel at 5.
56 Strickland, 466 U.S. at 690.

7
sufficient other evidence presented at trial for a jury to have found Defendant guilty.
Specifically, evidence was adduced at trial that Defendant remained in the same
room where his co-conspirator pistol-whipped the victim. Thereafter, Defendant
fled in a getaway car with another co-conspirator. The police eventually stopped the
getaway car and found Defendant in the backseat. A portion of the money stolen
from the home invasion was located in the car and the remainder on Defendant’s
person. Hence, Defendant has failed to establish the requisite prejudice, because
there was more than ample evidence by which a jury could have returned a
conviction against him without the introduction of the text messages. Therefore,
Defendant’s second ineffectiveness claim fails.
C. Failure to File a Motion to Compel

Defendant also contends that his trial attorney was ineffective by failing to
move to compel discovery. He asserts that, if his attorney filed a motion to compel,
he would have received the discovery, especially those incriminating text messages,
at an earlier time, and he would have made an informed decision on those plea offers.
This argument is misplaced. The Court has already found that, prior to the final, and
most favorable, plea offer was extended, Defendant had already become aware that
the State was going to use those text messages against him. Thus, even if Defendant

can demonstrate that his attorney was ineffective by failing to compel discovery,

18
there is no actual prejudice suffered by him as a result of such deficiency. The third
ineffectiveness claim also fails.
D. Failure to Raise Meritorious Claims on Appeal

Finally, Defendant contends that his appellate attorney*’ rendered ineffective
representation by omitting meritorious claims on appeal. Specifically, Defendant
asserts that the attorney should have raised claims of prosecutorial misconduct,
including the State’s delay in providing discovery and making improper and
irrelevant remarks during the trial about children that resided in the victim’s house
during the home invasion. This argument fails, because the alleged omitted issues,
even if raised on appeal, have no merit and would not have changed the result of the
appeal.*8

Defendant contends that the State’s late production of the cell phone records,
which occurred only eight days before the original trial date, amounted to
prosecutorial misconduct, and his appellate attorney’s failure to raise it on appeal
amounted to ineffective assistance of counsel. Defendant is mistaken. As this Court

has previously found several times in this Opinion, even if the State’s late production

 

>7 The Delaware Supreme Court has held that “[a] defendant’s right to effective assistance of
counsel extends to his appeal.” Ploof v. State, 75 A.3d 811, 831 (Del. 2013) (internal citations
omitted). The Strickland test, although originally developed to evaluate trial counsel’
performance, is also applicable to determine whether appellate counsel’s performance is effective.
Id. (internal citations omitted). In this case, Defendant was represented by the same attorney both
at trial and on appeal.

°8 Those omitted issues would be subject to a more stringent plain error review on appeal, because
they were not raised in the proceedings leading to Defendant’s conviction.

19
of evidence was prosecutorial misconduct, Defendant cannot identify any specific
prejudice that he suffered. By the time the final plea offer was extended, Defendant
had already become aware of the contents of the incriminating evidence and its
significance. Therefore, even if his appellate attorney raised this alleged late
production on appeal, the result of the appeal would not have been different.

When Defendant and his co-conspirators committed the home invasion, the
children of one of the victims were also present in the home. Defendant contends
that the mention by the State of children being present in the home during trial
amounted to prosecutorial misconduct, and his attorney was deficient by failing to
appeal this issue. This argument is unfounded. Whether or not the remarks about
the children are relevant evidence, and whether or not the State committed
prosecutorial misconduct by making them, there is no evidence showing that the
jury’s final verdict was affected by those remarks. The Delaware Supreme Court,
in its Order affirming Defendant’s conviction, found that there was ample evidence
in this case upon which a reasonable fact finder could have found Defendant guilty
of the charged crimes. Defendant, in his Motion, claims that those remarks about
the children were “highly prejudicial,” but he does not demonstrate, or even claim,
that the ultimate jury verdict was distorted by the “passions and emotions” inflamed
by those remarks, and was not based on the ample evidence that had been established

at trial. Therefore, there is not a reasonable probability that his conviction would

20
have been reversed even if his attorney raised the issue of alleged improper
prosecution statements on appeal. Defendant’s ineffectiveness claim regarding
appellate counsel’s failure to raise meritorious claims is thus without merit.
IV. PROSECUTORIAL MISCONDUCT

In addition to ineffective assistance of counsel claims, Defendant also
contends that he is entitled to postconviction relief, based on an independent analysis
of alleged prosecutorial misconduct. The prosecutorial misconduct Defendant
alleges here refers to the same set of facts that was discussed above in association
with the Court’s analysis of Defendant’s last ineffective assistance of counsel claim,
i.e., late production of discovery and improper remarks made at trial. The Court
finds it unnecessary to address the merits of the prosecutorial misconduct claim in
Defendant’s Motion, because it is procedurally barred under Rule 61(i)(3).

Rule 61(4)(3) explicitly precludes any ground for postconviction relief that
“was not asserted in the proceedings leading to the judgment of conviction,” unless
the movant shows (1) “[c]ause for relief from the procedural default,” and (2)
“[p]rejudice from violation of the movant’s rights.” It is undisputed that the issue
of prosecutorial misconduct was not raised in the proceedings leading to Defendant’s
conviction. Defendant, however, contends that he has cause for relief from the

procedural default, because his appellate attorney unreasonably failed to raise these

 

*? Super. Ct. Crim. R. 61(i)(3).
21
claims on appeal. He argues that this amounted to ineffective assistance of counsel,
and that he suffered prejudice from such deficient performance of his attorney.

Defendant’s argument is again misplaced. In order to cure the procedural
default under Rule 61(i)(3), merely alleging ineffective assistance of counsel for
failure to raise those claims is not enough. A defendant must actually demonstrate
that his counsel’s failure to pursue a specific claim is “so egregious as to constitute
ineffective assistance [of counsel] under the Sixth Amendment.”® Here, although
Defendant has raised the ineffective assistance of counsel claim in the Motion
regarding his attorney’s failure to appeal prosecutorial misconduct issues, the Court
has already concluded that Defendant fails to actually prove that claim. Therefore,
Defendant does not overcome this procedural bar, and his prosecutorial misconduct
claim must be summarily dismissed.

Vv. CONCLUSION

Based on the foregoing discussion, Defendant’s Motion for Postconviction
Relief is hereby DENIED.

IT IS SO ORDERED THIS 9" day of July 2919.

i

f

Sheldon-K- Rennie, Judge

 

 

6° Shelton v. State, 744 A.2d 465, 475 (Del. 2000) (internal citations omitted) (“Attorney error
which falls short of ineffective assistance of counsel does not constitute cause for relief from a
procedural default.”).

22
