IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 1503013906

STATE OF DELAWARE )
) In and for Kent County
)

v.
) RK15-04-0355-01 Burglary 2nd (F)
THOMAS L. FLEETWOOD, ) RK15-04-0356-01 ATT Thefc < 15 (M)
) RK15-04-0357-01 OFF Touching (M)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Jason C. Cohee, Esq., Deputy Attorney General, Department of Justice, for the State
of Delaware.

Thomas L. FleetWood, Pro se

FREUD, Commissioner
December 6, 2017

The defendant, Thomas L. Fleetwood (“Fleetwood”), Was found guilty on
November 18, 2015 by a jury of one count of Burglary in the Second Degree, l l Del.
C. § 825; one count of Attempted Theft as a lesser included offense of Felony
Attempted Theft, ll Del. C. § 531; and one count of Offensive Touching as a lesser
included offense of Assault in the Third Degree, ll Del. C. § 601. Fleetwood Was

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

found not guilty of Criminal Mischief. An Investigative Services Office report was
ordered. On January 21 2016 the State filed a motion to declare Fleetwood an
habitual offender pursuant to ll Del. C. § 4214(a). The Court granted the State’s
motion and declared Fleetwood an habitual offender. On February 9, 201 5 Fleetwood
was sentenced to a total often years and thirty days incarceration including eight year
s minimum mandatory as an habitual offender, suspended for probation after serving
the eight years minimum mandatory.

A timely Notice of Appeal to the Delaware Supreme Court was filed.
Fleetwood raised three issues on appeal summarized by the Supreme Court as
follows:

...(l) the Superior Court erred by failing to instruct the jury
on the lesser included offense of criminal trespass first
degree; (2) the prosecutor made improper statements
during closing argument amounting to plain error; and (3)
the Superior Court erred when it sentenced him for
criminal mischief.l
The Supreme Court remanded the sentencing claim due to the fact that there
had been a clear error in the Court’s jury verdict form which caused the Court to
improperly sentence Fleetwood on the Criminal Mischief charge which he was
found not guilty. The Court affirmed all of Fleetwood’s other claims.2 Next,

Fleetwood, pro se, filed a Motion for Postconviction Relief pursuant to Superior

 

1 Fleetwood v. State, 2016 WL 5864585, at *l (Del. Supr.).

2 Id. at *3.

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

Court Criminal Rule 61. His corresponding motion for Appointment of Counsel
was denied. In his Rule 61 motion, Fleetwood raises three grounds, in part, alleging
ineffective assistance of counsel.
FACTS
The following is a summary of the facts as noted by the Supreme Court in
its opinion on Fleetwood’s Direct Appeal:

(l) A Superior Court jury convicted Thomas L. Fleetwood
of burglary second degree, misdemeanor attempted theft,
and offensive touching after he was caught in Kennard and
Takeisha Smith’s apartment holding their belongings. The
jury acquitted Fleetwood of criminal mischief....

(2) Just after l:00 a.m. on March 22, 2015, Kennard called

his sister, Takeisha, and asked her to take him to a
convenience store. They had just moved into a new
apartment together, located above the Driftwood Spirits
liquor store on South Bradford Street in Dover. When the
two of them returned from the store, they noticed the
outside door to the apartment was open.

(3) Kennard entered the apartment first with Takeisha close
behind him. Although it was dark, Takeisha saw
Fleetwood, a stranger to her, in the laundry room. He was
holding her laptops and steaks from their freezer. Takeisha
asked the man what he was doing in their home, and if the
items he Was holding were theirs. Fleetwood then dropped
the items on the floor and said, ‘They sent me. They sent
me from Smyrna.’ He told them he had both of their cell
phones so they could not call 911. He then attacked
Kennard.

State v. Thomas L. Fleetwood
ID No. 1403008516

December 6, 2017

(4) As Kennard and Fleetwood fought, Takeisha’s
cell phone fell out of Fleetwood’s pocket. She
immediately picked it up and dialed 911. When the
police arrived, Kennard told them that he did not
know Fleetwood, but recognized him from a nearby
pub earlier in the evening. A Dover Police
Department detective took photographs of the scene
showing steaks and pieces of Takeisha’s broken
laptops on the floor. One laptop was torn in half and
the other device would not turn on. Police arrested
Fleetwood and charged him with burglary second
degree, attempted thefc, assault third degree, and
criminal mischief. The assault third degree charge
was reduced before trial to offensive touching,

(5) At the close of trial, Fleetwood requested an
instruction on criminal trespass first degree, a lesser
included offense of burglary. The Superior Court
denied the request, finding that the evidence at trial
did not support the instruction The jury convicted
Fleetwood of burglary second degree, misdemeanor
attempted theft, and offensive touching, but
acquitted him of criminal mischief.3

FLEETWOOD’S CONTENTIONS

In his motion Fleetwood raises three grounds for relief:

Ground one: Ineffective Assistance of Councel (sic).

Councel (sic) failed to conduct any

 

3 Fleetwood, 2016 wL 5864585, ar *1.

4

State v. Thomas L. Heetwood
ID No. 1403008516
December 6, 2017

Ground two:

Ground three:

These claims represent Fleetwood’s arguments in total as he did not file any

meaningful pre-trial investigations,
never question witnesses, nor explore -
develope any line of defense despite
suspect testimony.

Ineffective assistance of Councel (sic).
Councel (sic) rendered ineffectiveness
by failing to timely object or challenge
solicited testimony by state witness,
procedural error, which was highly
prejudicial.

The appelant (sic) court abused it
discretion: The appellant (sic) court
conceded to appelant’s (sic)
claims/assertion of the Prosecution
having made improper and prejudicial
remarks but failed to grant relief.

memorandum supporting his motion,

Under Delaware law, this Court must first determine whether Fleetwood has
met the procedural requirements of Superior Court Criminal Rule 61(1) before it may

consider the merits of his postconviction relief claim.4 Under Rule 61 , postconviction

 

DISCUSSION

4 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

5

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

claims for relief must be brought within one year of the conviction becoming final.5
Fleetwood’s motion was filed in a timely fashion, thus the bar of Rule 61(i)(l) does
not apply to the claims raised in his motion, As this is Fleetwood’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: (l) cause for the
procedural fault and (2) prejudice from a violation of the movant’s rights.6 The bars
to relief are inapplicable to a jurisdictional challenge or to a colorable claim or
miscarriage of justice stemming from a constitutional violation that “undermines the
fundamental legality, reliability, integrity or fairness of the proceeding leading to the
judgment of conviction.”7

Fleetwood’s third ground for relief is simply a restatement of the argument he
previously raised in his direct appeal. Superior Court Criminal Rule 61(i)(4) bars any
ground for relief that was formerly adjudicated unless reconsideration of the claim is
warranted in the interest of justice.8 Fleetwood raised this claim before and the

Supreme Court found no prejudice resulting from the Prosecutor’ s closing arguments.

 

5 super. Ct. Crim. R. 61(i)(1).

6 super. Ct. Crim. R. 61(i)(3).

`l

Super. Ct. Crim. R. 61(i)(5).

®

Super. Ct. Crim. R. 61(i)(4).

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

Fleetwood has made no attempt to argue why reconsideration of this claim is
warranted in the interest of justice. The interest of justice exception of Rule 61(i)(4)
has been narrowly defined to require that the movant show that “subsequent legal
developments have revealed that the trial court lacked the authority to convict or
punish” him.9 Fleetwood has made no attempt to demonstrate why this claim should
be revisited. This Court is not required to reconsider Fleetwood’s claim simply
because it is “refined or restated.”‘° For this reason, these grounds for relief should
be dismissed as previously adjudicated under Rule 61(i)(4).

Fleetwood’s remaining two claims, however, are premised to some degree, on
allegations of ineffective assistance of counsel. These types of claims are not
normally 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 Fleetwood, 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.11 The United States Supreme Court has held that:

[i]f the procedural default is the result of ineffective

 

9 Ma.xion v. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d
736, 746 (Del. 1990)).

10 Riley v. Stat€, 585 A.2d 719, 721 (Del. 1990).
11 State v. Gattis, 1995 WL 790961 (Del. Super.), at *3.

7

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

assistance of counsel, the Sixth Amendment itself requires
that responsibility for the default be imputed to the State,
which may not “[conduct] 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.12

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. Washington13 and
adopted by the Delaware Supreme Court in Albury v. State.14

The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness15
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.16 In setting forth a claim of

 

12 Murray v. Carrier, 477 U.S. 478, 488 (1986).

13 466 U.S. 668 (1984).

14 551 A.2d 53, 58 (Del. 1988).

15 466 U.S. at 687-88; S€€ Daws0n v. Slafe, 673 A.2d 1186, 1190 (Del. 1996).

16 466 U.S. at 694; see Dawson, 673 A.2d at 1190; Accord, e.g., Zebroski v. State, 822
A.2d 1038, 1043 (Del. 2003); Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Steckel v. State,
(continued. . .)

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.17

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.18 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 claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."19 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.20 Furthermore, the defendant 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

 

16(. . .continued)
795 A.2d 651, 652 (Del. 2002); Johnson v. State, 813 A.2d 161, 167 (Del. 2001); Bialach v.
State, 773 A.2d 383, 387 (Del. 2001); 0utten v. State, 720 A.2d 547, 552 (Del. 1998); Skinner
v. State, 607 A.2d 1170, 1172 (Del. 1992); Flamer v. State, 585 A.2d 736, 753-754 (Del. 1990).

17 See, e.g., Outten v. State, 720 A.2d 547, 552 (Del. 1998); Righter v. State, 704 A.2d
262, 263 (Del.1997); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Skinner v. State, 1994
Del. LEXIS 84; Brawley v. State, 1992 WL 353838 ; Younger v. State, 580 A.2d 552, 556 (Del.
1990); Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989). Accord Wells v. Petsock, 941 F.2d
253, 259-60 (3d Cir. 1991).

18 466 U.s. at 687.
19 ld. at 697.
20 stare v. Gam's, 1995 wL 790961 (Del. super.), at *4.

9

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

effects of hindsight when viewing that representation.”2l

In the case at bar, Fleetwood attempts to show cause for his procedural default
by making merely conclusory assertions of ineffectiveness of counsel. In regards to
prejudice, Fleetwood simply claims that the failure of counsel to raise certain issues
was prejudicial. Under the circumstances of the case, Fleetwood’s allegations are
meritless. The Supreme Court found no error in the trial. The record includes Trial
Counsel’ s affidavit in which she unequivocally denies any error in her representation
of Fleetwood. Trial Counsel also state that she did in fact adequately prepare for the
trial and called all appropriate witnesses at trial.22 Fleetwood has utterly failed to
demonstrate prejudice as a result of his counsel’s representation This failure is fatal

to Fleetwood’s motion, His motion is therefore procedurally barred.23

 

21 466 U.S. at 689; Dawson, 673 A.2d at 1190; Wright v. State, 671 A.2d 1353, 1356
(Del. 1996).

22 See Affidavit of Counsel for a complete overview of Counsel’s preparation for trial.

23 See, e.g. Wright, 671 A. 2d at 1356; Wright v. State, 1992 Del LEXIS 62; Brawley v.
State, 1992 WL 353838.

10

State v. Thomas L. Neetwood
ID No. 1403008516
December 6, 2017

CONCLUSION

Afcer reviewing the record in this case, it is clear that Fleetwood has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). Consequently, I
recommend that Fleetwood’ s postconviction motion be denied as procedurally barred
by Superior Court Criminal Rule 61 (i)(3) for failure to prove cause and prejudice and

Superior Court Criminal Rule 61(i)(4) as previously adjudicated on direct appeal.

/s/ Andrea M. Freud
Commissioner

 

AMF/dsc

11

