           IN THE SUPREME COURT OF THE STATE OF DELAWARE

EDWARD McLAUGHLIN,1                    §
                                       §      No. 401, 2014
      Defendant Below,                 §
      Appellant,                       §      Court Below–Superior Court of
                                       §      the State of Delaware, in and
      v.                               §      for New Castle County
                                       §
STATE OF DELAWARE,                     §      Cr. ID No. 1104021773
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: January 23, 2015
                          Decided:   March 23, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                     ORDER

      This 23rd day of March 2015, it appears to the Court that:

      (1)    The appellant, Edward McLaughlin, has appealed the Superior

Court’s denial of postconviction relief under Superior Court Criminal Rule 61

(“Rule 61”). After careful consideration of the parties’ briefs on appeal and the

Superior Court record, the Court has concluded that the Superior Court judgment

should be affirmed.

      (2)    The record reflects that McLaughlin was tried in 2011 and retried in

2012 on five counts of Rape in the Second Degree. The alleged victim was


1
  The Court notes that the appellant’s last name is spelled “McLaughlin” in some court
documents and “McLaughlan” in others.
McLaughlin’s ten-year old step-daughter. McLaughlin’s first trial ended in a

mistrial when the jury was unable to reach a unanimous verdict. At the second

trial, the jury found McLaughlin guilty on four of the five counts. On July 6, 2012,

the Superior Court sentenced McLaughlin to one hundred years of Level V

incarceration – twenty-five years for each count – followed by ten years of

probation. On direct appeal, this Court affirmed the judgment of the Superior

Court.2

         (3)     On July 23, 2013, McLaughlin moved for the appointment of counsel

to assist him in filing his first motion for postconviction relief under Rule 61.

McLaughlin’s motion identified one “substantial ground for relief,” namely that his

trial counsel was ineffective when cross-examining the alleged victim. According

to McLaughlin, trial counsel “failed to proffer any questions to the witness

concerning the allegations, and, in so doing, did not challenge the veracity and

integrity of the witness’ testimony.”

         (4)     By order dated July 25, 2013, the Superior Court appointed counsel

(hereinafter “Counsel”) to represent McLaughlin. Under the Rule, Counsel was

required to assist McLaughlin in presenting “any substantial ground for relief.”3 If

Counsel determined that McLaughlin’s claim was “lacking in merit” and if


2
    McLaughlan v. State, 2012 WL 6645727 (Del. Dec. 19, 2012).
3
    Del. Super. Ct. Crim. R. 61(e)(1), now renumbered (e)(5).
                                                 2
Counsel was “not aware of any other substantial ground for relief,” Counsel could

file a motion to withdraw explaining “the factual and legal basis for [C]ounsel’s

opinion.”4

         (5)     On March 14, 2014, Counsel filed a motion to withdraw averring that

he had carefully reviewed the record and determined that McLaughlin’s ineffective

assistance of counsel claim was without merit and that the record did not suggest

any other grounds for relief.               In an answer opposing Counsel’s motion,

McLaughlin argued the merit of his “sole complaint . . . that trial counsel failed to

effectively cross-examine the alleged victim.”               McLaughlin explained that his

“defense was that the events did not happen and that ulterior motive was the reason

the [alleged victim] was making the statements,” and that “[t]he key to the entire

defense” was effective cross-examination of the alleged victim.

         (6)     By memorandum opinion dated July 2, 2014, the Superior Court

granted Counsel’s motion to withdraw and denied postconviction relief on the

basis that McLaughlin’s ineffective assistance of counsel claim was without merit.5

In response to the memorandum opinion, McLaughlin filed a letter on July 29,

2014, advising the court that he had not yet filed a motion for postconviction relief,

and that the court’s denial of “the Rule 61 where none had been filed [was] an


4
    Del. Super. Ct. Crim. R. 61(e)(2), now renumbered (e)(6).
5
    State v. McLaughlin, 2014 WL 2964945 (Del. Super. July 2, 2014).
                                                 3
error.” The court considered McLaughlin’s letter as a motion for reargument and,

by order dated July 29, 2014, denied reargument. 6 This appeal followed.7

       (7)    On appeal, McLaughlin claims that the Superior Court “abrogated his

constitutional right to challenge the validity of his conviction by way of collateral

review.” The claim is without merit. McLaughlin sought postconviction relief on

the basis of one claim, that his trial counsel was ineffective when cross-examining

the alleged victim.       McLaughlin thoroughly addressed the ineffective counsel

claim in his motion for appointment of counsel and answer to Counsel’s motion to

withdraw (hereinafter “submission”).8

       (8)    McLaughlin asserts that he advised Counsel “of a plethora of

violations he wanted to pursue” in addition to the ineffective counsel claim. 9 The

record does not support that assertion. When answering Counsel’s averment that

6
  The Court notes that McLaughlin’s letter was not filed within five days of the filing of the
memorandum opinion. Consequently, the Superior Court was without authority to rule on the
letter as a motion for reargument. Del. Super. Ct. Crim. R. 57(d); Del. Super. Ct. Civ. R. 59(e).
Boyer v. State, 2007 WL 452300, at *1 (Del. Feb. 13, 2007) (citing Preform Bldg. Components,
Inc. v. Edwards, 280 A.2d 697, 698 (Del. 1971)).
7
  Although an untimely motion for reargument does not toll the time for filing an appeal, Samuel
v. State, 2010 WL 3245109 (Del. Aug. 17, 2010) (citing McDaniel v. DaimlerChrysler Corp.,
860 A.2d 321, 323 (Del. 2004)), the Court notes that the notice of appeal in this case was timely
filed on July 29, 2014 within thirty days of the docketing of the Superior Court’s July 2, 2014
memorandum opinion. Del. Supr. Ct. R. 6(a)(iii).
8
  All total, McLaughlin’s submission presented nine handwritten pages – the equivalent of
twelve double-spaced typed pages – of well-developed argument.
9
  McLaughlin lists the violations as follows: “e.g., state’s failure to prove indictment beyond a
reasonable doubt, double jeopardy, ineffective assistance of trial counsel, failure to call
witnesses, violation of confrontation clause, sufficiency of indictment, vindictive prosecution,
prosecutorial misconduct in grand jury proceedings, etc.”
                                               4
“there are no other potential meritorious issues to raise in a motion for post-

conviction relief,” McLaughlin made no mention of any claims other than his “sole

complaint . . . that trial counsel failed to effectively cross-examine the alleged

victim.”

          (9)    McLaughlin asserts, under Castro v. United States, that the Superior

Court erred when it failed to notify him that it intended to consider his submission

as a motion for postconviction relief.10 The claim is without merit. The United

States Supreme Court’s decision in Castro v. United States governs federal courts

and first federal habeas corpus petitions,11 and the rationale for the Castro decision

does not apply under the circumstances in this case.

          (10) In this case, McLaughlin sought postconviction relief making it clear,

not once but twice, that he had but one claim for relief.                    McLaughlin fully

addressed the claim in his submission. When responding to Counsel’s position that

the claim was without merit and that “there [were] no other potential meritorious

issues to raise in a motion for post-conviction relief,” McLaughlin did not present

additional claims for relief. Under these circumstances, the Court concludes that


10
     Castro v. United States, 540 U.S. 375 (2003).
11
    In Castro, the United States Supreme Court held that a federal court cannot convert a pro se
litigant’s motion into a first habeas corpus petition under 28 U.S.C. § 2255 unless the court first
informs the litigant of its intent to do so, warns the litigant that any subsequent petition under §
2255 will be subject to the restrictions on “second or successive” petitions, and provides the
litigant an opportunity to amend the motion so that it contains all the § 2255 claims the litigant
believes he has. Id. at 383.
                                                     5
the Superior Court did not err when it considered and decided McLaughlin’s claim

for postconviction relief as presented in McLaughlin’s submission. Furthermore,

the Court concludes that, under these circumstances, the Superior Court was not

required to notify McLaughlin of its intent to do so or to give him an opportunity

to present additional claims for relief.

       (11) Having carefully considered the parties’ briefs and the record, we

agree with the Superior Court’s analysis of McLaughlin’s ineffective counsel claim

and conclude that the claim is without merit for the reasons stated in the court’s

memorandum opinion. It appears to the Court that the Superior Court properly

analyzed McLaughlin’s ineffective assistance of counsel claim under Strickland v.

Washington.12 The Superior Court denied the claim after concluding that trial

counsel’s cross-examination of the alleged victim did not fall below an objective

standard of reasonableness as follows:

              Trial Counsel made a strategic decision in this case not to
              directly challenge the ten-year old alleged victim’s story
              on cross-examination. His professional experience with
              juries, as well as basic common sense, likely led him to
              conclude that aggressively questioning a child witness
              posed a serious risk of prejudicing the jury against
              McLaughlin.        Trial [C]ounsel instead relied on
              McLaughlin’s own testimony to refute the story given by
              the victim, providing an alternative to conviction if the


12
   See Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984) (holding that a defendant
claiming ineffective assistance of counsel must show that counsel’s representation fell below an
objective standard of reasonableness and was prejudicial).
                                               6
                 jury found McLaughlin to be a more credible witness
                 than the child victim. Furthermore, Trial Counsel had
                 reason to believe that such a strategy could be effective
                 because the first trial resulted in a hung jury: a result
                 that was achieved using a similar line of questioning
                 during cross-examination. Because this was a reasonable
                 strategic decision in line with professional norms, Trial
                 Counsel did not make an unprofessional error.13

The Superior Court also determined that McLaughlin was not prejudiced by trial

counsel’s conduct because it was “unlikely that aggressive cross-examination of

the child victim would have had the effect [desired by McLaughlin] on the

outcome of the trial”14 given “the extremely sympathetic nature of the child victim

and the impact that her testimony had on the jury.”15

         (12) Lastly, to the extent McLaughlin relies on an error in the

memorandum opinion to support a claim that the Superior Court did not review the

record, his claim is without merit.            Although McLaughlin is correct that the

memorandum opinion contains the misstatement “McLaughlin filed a Motion for



13
 State v. McLaughlin, 2014 WL 2964945, at *2 (Del. Super. July 2, 2014) (citing Strickland v.
Washington, 466 U.S. 668, 694 (1984)).
14
     State v. McLaughlin, 2014 WL 2964945, at *3 (Del. Super. July 2, 2014).
15
   Id., at *2. The Court notes that McLaughlin argued in his submission that trial counsel’s
cross-examination of the alleged victim was so inadequate that it constituted a complete failure
“to subject the prosecution’s case to meaningful adversarial testing.” See United States v.
Cronic, 466 U.S. 648, 659 (1984) (holding that prejudice is presumed “if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing”). McLaughlin has not raised
that argument in his opening brief, and on that basis the Court concludes that the argument is
waived. Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). Were we to consider the claim,
however, we would conclude it is without merit.
                                                 7
Postconviction Relief on March 14, 2013,”16 we conclude that the error is

harmless.

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

Superior Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Karen L. Valihura
                                                 Justice




16
  State v. McLaughlin, 2014 WL 2964945, at *1 (Del. Super. July 2, 2014). Neither the docket
nor the record reflects such a filing.
                                             8
