    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                             )
STATE OF DELAWARE                            )
                                             )
       v.                                    )      I.D. No. 0710007029
                                             )
MARVIN S. BURROUGHS,                         )
                                             )
                      Defendant.             )
                                             )


                            Submitted: January 20, 2016
                              Decided: April 4, 2016

            On Defendant’s Second Motion for Postconviction Relief.
                                 DENIED.

                                      ORDER
Elizabeth R. McFarlan, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware,
Attorney for Defendant.

COOCH, R.J.

     This 4th day of April, 2016, upon consideration of Defendant’s
Second Motion for Postconviction Relief, it appears to the Court that:

       1.      On October 1, 2007, shortly before 9:30 p.m., A.T. 1, a
               seventeen-year-old high school student, was walking to her
               home in Wilmington. 2 While A.T. was crossing the Market
               Street Bridge, she noticed three males walking in the same

1
 The Court refers to the victim as A.T. to protect her identity.
2
 Unless otherwise indicated, all facts set forth in this Order are taken from Defendant
Marvin Burroughs’ direct appeal to the Delaware Supreme Court. Burroughs v. State,
988 A.2d 445, 447-49 (Del. 2010).
              direction as her, but on the opposite side. After A.T. turned
              onto 18th Street, she realized that the men were no longer on
              the bridge, but two of them were behind her.

       2.     The two men forced A.T. into an alley at gunpoint and ordered
              to surrender her money, strip naked, and lie on the ground.
              After, Burroughs asked Jaron Smullen, whom A.T. later
              identified as a fellow student at her high school, “Should I do it,
              should I do her?” However, Smullen shook his head no.
              Burroughs then ordered A.T. to stand under a street light and
              threatened to kill her if she moved. Smullen and Burroughs
              then took A.T.’s cell phone and ran off; leaving A.T. in the
              alley.

       3.     A.T. was interviewed by the Wilmington Police the next day
              about the incident. She was given a copy of her high school
              yearbook which she used identify Smullen from his photograph
              with the basketball team. Smullen was arrested, confessed to
              his participation, and identified Burroughs, who is Smullen’s
              cousin, and co-defendant Martel Washington as co-
              conspirators. A jury eventually convicted Burroughs of
              Robbery First Degree, Possession of a Firearm During the
              Commission of a Felony, Possession of a Deadly Weapon by a
              Person Prohibited, and Conspiracy Second Degree.

       4.     On February 22, 2011, Burroughs filed his First Motion for
              Postconviction Relief. 3 In his First Motion, Burroughs asserted
              that he was entitled to relief because: (1) his trial attorney was
              ineffective because he failed to request the trial Court suppress
              an out-of-court identification—this claim was later amended
              and then waived; (2) trial counsel was ineffective for failure to
              object to impermissible rebuttal evidence; and (3) relief based
              on co-defendant Smullen’s recantation of his trial testimony
              implicating Burroughs in the robbery. 4 This Court found that
              Burroughs’ trial counsel was not ineffective under Strickland. 5
              This Court was also reasonably well satisfied that the Smullen’s
              trial testimony was not false; therefore, Burroughs’ First
              Motion was denied. Christopher D. Tease, Esquire, acting as
3
  State v. Burroughs, I.D. No. 0710007029, at* 1 (Del. Super. Oct. 17, 2013).
4
  Id. at 1–2.
5
  Id. at 5–6.
                                            2
              postconviction counsel, filed an untimely appeal of this Court’s
              denial of the First Motion.6 The Delaware Supreme Court
              dismissed the appeal for lack of jurisdiction and remanded the
              matter back to this Court to appoint new counsel to represent
              Burroughs in filing a second motion for postconviction relief.7

       5.     On October 29, 2014, the State and defense counsel submitted a
              Stipulated Order Regarding Procedure on Remand. 8 The
              Stipulated Order reads in its entirety:

                            WHEREAS, on May 16, 2008, Burroughs
                     was convicted of Robbery First Degree and related
                     offenses. DI 19.

                            WHEREAS, on May 15, 2009, the Court
                     sentenced Burroughs as a habitual offender pursuant
                     to 11 Del. C. § 4214(a). DI 35, 36.

                            WHEREAS, on February 3, 2010, the
                     Delaware Supreme Court affirmed the convictions
                     and sentence. Burroughs v. State, 988 A.2d 445
                     (Del. 2010).

                             WHEREAS, on February 22, 2011,
                     Burroughs, through privately retained counsel, filed
                     an untimely motion for postconviction relief
                     alleging, inter alia, the discovery of new evidence.
                     DI 47.

                           WHEREAS, the Court denied the motion on
                     October 17, 2013. DI 93.

                           WHEREAS, on February 11, 2014,
                     Burroughs filed an untimely notice of appeal.

                            WHEREAS, by letter to the Delaware
                     Supreme Court, postconviction counsel stated that
                     he “was ineffective in failing to file a Notice of
                     Appeal in this case, or at least ascertaining from
                     [Burroughs] whether he wished to file an appeal.”


6
  Burroughs v. State, 91 A.3d 561, 2014 WL 1515102, at* 1 (Del. Apr. 16, 2014)
(TABLE).
7
  Id.
8
  DI 107.
                                          3
Burroughs v. State, 2014 WL 1515102, at* 1 (Del.
Apr. 16, 2014).

       WHEREAS, on April 16, 2014, the
Delaware Supreme Court dismissed Burroughs’
appeal for lack of jurisdiction and remanded the
matter “for appointment of counsel to represent the
appellant in filing a second motion for
postconviction relief under Rule 61.” Id.

       WHEREAS, Superior Court Criminal Rule
61 (“Rule 61”) was amended effective June 4, 2014.

        WHEREAS, the parties agree that
Burroughs’ to-be-filed second motion for
postconviction relief should be considered under the
law as it existed at the time of the remand, including
Rule 61 in its pre-June 4, 2012 form and Guy v.
State, 82 A.[3]d 710 (Del. 2013).

        WHEREAS, the parties agree that the law in
effect at the time of the remand allows counsel for
Burroughs to conduct a full review [of] the record
and, on or before May 2, 2015, assert any and all
claims of ineffective assistance of postconviction
counsel that counsel believes are meritorious. Such
claims may include, but are not limited to, claims
that: postconviction counsel provided ineffective
assistance of counsel that requires the Court to
reissue its October 17, 2013 decision to allow a
timely appeal to be filed with the Delaware
Supreme Court; postconviction counsel provided
ineffective assistance of counsel by failing to
present the claims stated in the first postconviction
motion in an effective manner; and postconviction
counsel provided ineffective assistance of counsel
by failing to raise a claim in the first postconviction
motion.

        WHEREAS, the parties agree that counsel
for Burroughs may also assert in the second motion
any claim independent of ineffective assistance of
postconviction counsel, but any such claim shall be
governed by the procedural limitations of Rule 61(i)
in effect April 14, 2014.




                      4
                              NOW THEREFORE, based on the unique
                      procedural posture of this case, the parties stipulate,
                      subject to the approval of the Court, as follows:

                      1. Burroughs shall file his second motion for
                         postconviction relief on or before May 2, 2015.
                         The motion shall be considered pursuant to the
                         law governing second postconviction motions in
                         effect on April 14, 2014. This deadline cannot
                         be extended for any reason without rendering
                         the second motion untimely under the then[-
                         ]existing Rule 61 and Guy.

                      2. Within 10 days of filing and service of
                         Burroughs’ second motion for postconviction
                         relief, Burroughs and the State shall confer and
                         submit a proposed Order establishing
                         subsequent deadlines, including affidavits from
                         counsel (if needed), the State’s response to the
                         second motion for postconviction relief, and
                         Burroughs’ reply. 9

               The Court signed the Stipulated Order on October 31, 2014.

       6.      On May 2, 2015, Burroughs, through present counsel, filed his
               Second Motion for Postconviction Relief. In his Second
               Motion Burroughs asserts three claims for relief: (1) prior
               postconviction counsel was ineffective for withdrawing his
               claim that appellate counsel was ineffective for failing to appeal
               this Court’s denial of a Motion to Suppress a photographic
               lineup identification; (2) prior postconviction counsel was
               ineffective because he failed to assert that trial counsel’s
               litigation of a “last-minute” Motion to Suppress the lineup
               identification was ineffective; and (3) prior postconviction
               counsel was ineffective because he failed to contend that there
               was insufficient evidence to convict Burroughs. 10


9
  Stipulated Order Regarding Procedure on Remand, at* 1–3. Although prior appointed
postconviction counsel, Christopher D. Tease, was instructed two separate times by this
Court to file an affidavit, none was filed. As a result, the Court and the parties agreed
that this Second Motion could be decided without prior postconviction counsel’s
affidavit.
10
   Pet’r Marvin Burroughs’ Second Mot. for Postconviction Relief at 39, 44, 48.
                                            5
       7.     Defendant’s Amended Motion is controlled by Superior Court
              Criminal Rule 61. 11 Before addressing the merits of this
              Second Motion, the Court must address the procedural
              requirements. 12

       8.     A motion for postconviction relief can be procedurally barred
              for time limitations, successive motions, procedural defaults,
              and former adjudications. 13 If a procedural bar exists, the Court
              will not consider the merits of the postconviction claim unless
              the Defendant can show that, pursuant to Rule 61(d)(2), the
              procedural bars are inapplicable.

       9.     None of these procedural bars apply to Burroughs’ Second
              Motion. Burroughs’ grounds for relief in this Second Motion
              are based on the ineffective assistance of counsel he allegedly
              experienced with his prior counsel. Therefore, he could not
              have brought this claim earlier and the procedural bars of Rule
              61 are not applicable.

       10.    Burroughs’ claims of ineffective assistance of counsel are
              reviewed under the United States Supreme Court decision in
              Strickland v. Washington. 14 To determine whether a defendant
              was denied his Sixth Amendment right to effective assistance of
              counsel, Strickland established a two-prong test. 15 First, a
              defendant must show that counsel’s performance was deficient
              because the representation fell below an objective standard of
              reasonableness. 16 Second, the defendant must then show he
              was prejudiced by the deficient performance. 17 “This requires



11
   Super. Ct. Crim. R. 61. Since Burroughs’ prior postconviction counsel filed the First
Motion for Postconviction Relief on February 22, 2011, this Motion is governed by the
version of Rule 61 that became effective on July 1, 2005, and not the current version of
the Rule.
12
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
13
   Super. Ct. Crim. R. 61(i)(1)-(4).
14
   466 U.S. 668 (1984).
15
   Ploof, 75 A.3d at 820 (“While the Sixth Amendment is not directly applicable to the
State of Delaware, the United States Supreme Court has applied the Sixth Amendment to
the states through the Fourteenth Amendment.”).
16
   Strickland, 466 U.S. at 687–88.
17
   Id. at 687.
                                           6
              showing that counsel's errors were so serious as to deprive the
              defendant of a fair trial, a trial whose result is reliable.” 18

       11.    When evaluating whether counsel’s representation fell below an
              objective standard of reasonableness, a court must “eliminate
              the ‘distorting effects of hindsight’ and ‘indulge a strong
              presumption that counsel's conduct falls within the wide range
              of reasonable professional assistance.’” 19 Also, to establish
              prejudice a defendant must show “a reasonable probability
              that[] but for counsel’s unprofessional errors, the result of the
              proceeding would have been different.” 20 “A reasonable
              probability is a probability sufficient to undermine confidence
              in the outcome,” which is a lower standard than “more likely
              than not.”21 Finally, when reviewing trial counsel’s
              performance under Strickland, there is “a strong presumption
              that the representation was professionally reasonable.”22

       12.    Burroughs’ first claim is that his prior postconviction counsel
              was ineffective because he withdrew his claim that trial counsel
              was ineffective for failing to appeal this Court’s denial of a
              Motion to Suppress a photo lineup. Burroughs claims that
              “[t]he identification procedure employed by the detective was a
              paradigm of unnecessary suggestiveness; the methodology used
              directly violates virtually all the practices endorsed by courts,
              legislatures, agencies and the National Academy of Sciences in
              recent years.” 23 Therefore, Burroughs claims that his prior
              postconviction counsel’s decision to withdraw the claim was a
              violation of his Sixth Amendment right to counsel.

       13.    The improper procedure Burroughs is referring to stems from
              A.T.’s identification of him to the Wilmington Police. While
              being interviewed by a detective, A.T. was asked to view a two
              separate photo lineups of six potential suspects each. 24 A.T.
              was unable to recognize any of the potential suspects in the first

18
   Id.
19
   Ploof, 75 A.3d at 821 (quoting Strickland, 466 U.S. at 689).
20
   Strickland, 466 U.S. at 694.
21
   Id. at 693-94.
22
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
23
   Pet’r Marvin Burroughs’ Second Mot. for Postconviction Relief at 39–40.
24
   A82.
                                           7
              lineup, so the detective showed her the other set of
              photographs.25 After A.T. selected one of the photographs, the
              detective told her “take her time,” and A.T. picked another
              potential suspect.26 The detective then placed a coaster27
              overtop of the photographs.28 When A.T. said that she thought
              her second choice was the suspect, the detective instructed her
              to “try again.”29 With the two previously-selected photographs
              covered up, A.T. picked a third photograph, who was
              Burroughs.

       14.    While identification procedures used by the Wilmington Police
              may not have been a model of investigative procedure, they do
              pass constitutional muster. Prior postconviction counsel was
              not ineffective for failing to appeal this Court’s denial of the
              Motion to Suppress. Therefore, Burroughs fails to satisfy the
              first prong of Strickland for this claim.


       15.    Prior postconviction counsel did raise a claim of ineffective
              assistance of counsel for failure to appeal the denial and for
              failure to present expert testimony regarding the identification
              procedure in Burroughs’ First Motion. However, prior
              postconviction counsel withdrew that claim once he was unable
              to secure an identification witness. Although Burroughs
              devotes approximately 14 pages of his Second Motion to the
              emerging law and science of eyewitness identification, he does
              not identify an expert witness that is willing to challenge this
              Court’s finding in the suppression hearing.

       16.    Although Burroughs seems to advocate for a more progressive
              standard for photographic lineup identification procedures in
              his Second Motion, he acknowledges that the Court applied the
              two-prong test adopted by Delaware law.30 In its ruling, the
25
   A83.
26
   Id.
27
   Upon further questions it was revealed that A.T. could not remember whether the
detective placed a saltshaker or a coaster over the photographs. A84.
28
   A83.
29
   Id.
30
   Pet’r Marvin Burroughs’ Second Mot. for Postconviction Relief at 41; see also Harris
v. State, 350 A.2d 768, 770 (Del. 1975) (citing Neil v. Biggers, 409, U.S. 188, 198
(1972)).
                                           8
              Court stated that there is a two-step process in evaluating
              claims of suggestive identification procedures.31 The first
              prong is whether the out-of-court identification procedure is
              unnecessarily suggestive.32 The Court noted that the second
              prong is whether there was a substantial likelihood of
              misidentification.33 The Court further stated that “if the [C]ourt
              finds that the defendant has not carried his burden [to show] by
              a totality of the circumstances an impermissibly suggestive
              photo lineup procedure, then the Court need not reach the
              second prong.” 34

       17.    The Court noted that the testimony of the detective at the
              hearing contradicted the testimony of A.T. 35 A.T. contradicted
              her own testimony “both with respect to what she said earlier in
              the hearing and then a little later in the hearing, as opposed to
              what she told Prosecutors [the previous day] as they prepared
              her for trial.”36 The Court further determined that at some point
              during the photo lineup, A.T. took a coaster and placed it over
              each of the six photographs.37 Both police officers testified that
              they asked questions in a non-leading, non-influencing way. 38
              Although this testimony by the officers could be self-serving,
              the Court found “no reason to think that’s not what occurred.” 39
              The Court relied on testimony from one of the officers who
              stated that when A.T. selected the photo of Burroughs, she said,
              “I believe that’s the guy.” 40 The officer asked A.T. if she was
              positive, to which she responded, “Yes.” 41


31
   A104.
32
   Id. See also Harris, 350 A.2d at 770.
33
   A104; see also Younger v. State, 496 A.2d 546, 550 (Del. 1985) (citing Manson v.
Brathwaite, 432 U.S. 98 (1972)) (“That a confirmation is suggestive, without more,
however, cannot amount to a due process violation; the unnecessarily suggestive
identification procedure must also carry with it the increased danger of irreparable
misidentification.”).
34
   Id. See also
35
   A105.
36
   Id.
37
   Id.
38
   Id.
39
   A105.
40
   Id.
41
   Id.
                                            9
       18.     The Court then stated, “I don’t find that the Defendant
               Burroughs has carried his burden of proof, that under the
               totality of the circumstances, the methodology employed in the
               photo lineup was impermissibly suggestive.” 42

       19.     Given the strong presumption that counsel’s conduct falls
               within the wide range of reasonable professional assistance,
               prior postconviction counsel’s decision to withdraw his claim
               that appellate counsel was ineffective for failing to appeal the
               denial did not violate the Sixth Amendment. Although it was
               possible for prior postconviction counsel to assert the claim, it
               was within counsel’s professional judgment to decide what
               issues to pursue.43 Therefore, prior postconviction counsel was
               not ineffective for withdrawing of the claim.

       20.     Next, Burroughs asserts that prior postconviction counsel was
               ineffective for failing to contend that trial counsel was
               ineffective in his litigation of the Motion to Suppress.
               Specifically, Burroughs states that “[g]iven the centrality of the
               identification issue to the case, counsel was ineffective for not
               asking for a continuance so he could prepare properly.” 44
               Burroughs also contends that trial counsel was ineffective in his
               cross examination of the State’s witnesses and in his oral
               argument to the Court. Burroughs asserts that he was
               prejudiced because A.T.’s “pretrial identification was the
               lynchpin of the [State’s] case.” 45 Therefore, Burroughs argues
               that “there is a reasonable probability [that] the outcome of the
               motion would have been different had trial counsel not
               provided deficient performance.” 46



42
   A106.
43
   Smith v. Robbins, 528 U.S. 259, 288 (2000) (“[A]ppellate counsel who files a merits
brief need not (and should not) raise every nonfrivolous claim, but rather may select from
among them in order to maximize the likelihood of success on appeal. Notwithstanding
Barnes, it is still possible to bring a Strickland claim based on counsel’s failure to raise a
particular claim, but it is difficult to demonstrate that counsel was incompetent.”) (citing
Jones v. Barnes, 463 U.S. 745 (1983)).
44
   Pet’r Marvin Burroughs’ Second Mot. for Postconviction Relief at 44.
45
   Id. at 46.
46
   Id. 47.
                                             10
       21.    However, as the State points out, the Court’s decision of
              whether to deny the Motion to Suppress rested on its credibility
              determinations of the witnesses. Therefore, additional
              preparation or briefing the issue was unnecessary and would not
              likely have resulted in a different outcome. Since the Court
              based its decision on the credibility of the witnesses and not the
              legal arguments put forth by counsel, Burroughs cannot show
              that he was prejudiced by prior postconviction counsel’s failure
              to claim that trial counsel was ineffective in his litigation of the
              motion.

       22.    Finally, Burroughs asserts that prior postconviction counsel was
              ineffective for failing to assert that there was sufficient
              evidence to convict him. Burroughs asserts that since the
              Delaware Supreme Court reversed the conviction of Burroughs’
              co-defendant, Martel Washington,47 and remanded the case
              back to this Court, this argument should have been raised in
              Burroughs’ First Motion for Postconviction Relief.

       23.    The Supreme Court found that co-defendant Washington’s
              conviction had to be reversed because co-defendant Smullen’s
              testimony “was so inherently incredible” that a judgment of
              acquittal should have been granted. 48 Burroughs contends that
              since Smullen also testified at his trial, “prior postconviction
              counsel had no valid excuse for not asserting that [his]
              conviction should also be reversed.”49 Burroughs further
              asserts that he was prejudiced by prior postconviction counsel’s
              performance because “[e]ven if [A.T.’s] identification was not
              suppressed, stripped of the corroboration of the accomplice
              Smullen, there was scant evidence for a reasonable juror to vote
              to convict.” 50

       24.    Smullen later recanted his testimony that Burroughs was one of
              the suspects in the robbery. 51 In his First Motion, Burroughs
              argued that he was entitled to relief because, “in an interview
              [with] a private investigator, Smullen indicated that he initially
47
   Washington v. State, 4 A.3d 375 (Del. 2010).
48
   Washington, 4 A.3d at 380.
49
   Pet’r Marvin Burroughs’ Second Mot. for Postconviction Relief at 48.
50
   Id. at 49.
51
   State v. Burroughs, I.D. No. 0710007029, at*6 (Del. Super. Oct. 17, 2013).
                                           11
              sought to incriminate [Burroughs] because he resented
              [Burroughs] for previously exposing him to criminal activity.” 52
              During the interview, Smullen apparently indicated that the
              actual suspects were two men he knew as Aaron and O.G. 53

       25.    However, at the evidentiary hearing, “Smullen took the stand
              and recanted any previous recantation of his trial testimony.” 54
              Smullen testified that Aaron and O.G. ““were not real
              people.”’55 Smullen also testified that he could not remember
              what he told the private investigator. 56 “He said any statements
              he may have made recanting his prior testimony were made in
              fear of retaliation and, notably, that his testimony at trial was
              truthful.”57

       26.    The Court does not find Burroughs’ assertion persuasive. The
              evidence and testimony offered to convict Burroughs was
              different than the evidence and testimony that was offered to
              convict Washington. The Delaware Supreme Court held that
              “[b]ut for Smullen’s testimony, the State would have had no
              evidence against Washington.” 58 That was not the same
              situation with the evidence presented in Burroughs’ case.
              Smullen testified that he and Burroughs went into the alley and
              robbed A.T. A.T. corroborated this testimony by stating there
              were two men who robbed her in the alley and identified one of
              them as Burroughs. Burroughs’ conviction was the combined
              result of Smullen’s testimony, A.T.’s identification, and A.T.’s
              testimony. Any of the inconsistencies between Smullen’s and
              A.T.’s testimony were issues of fact for the jury to resolve.59

       27.    Furthermore, although Smullen recanted his trial testimony, he
              later retracted that recantation. Smullen testified at an

52
   Id.
53
   Id.
54
   Id.
55
   State v. Burroughs, I.D. No. 0710007029, at*6 (Del. Super. Oct. 17, 2013).
56
   Id.
57
   Id.
58
   Washington, 4 A.3d at 379.
59
   Jones v. State, 682 A.2d 626, 1996 WL 376937, at* 2 (Del. June 28, 1996) (TABLE)
(“Under Delaware law, the jury is the sole trier of facts, responsible for determining
witness credibility and resolving conflicts in the testimony.”).
                                           12
            evidentiary hearing in Burroughs’ First Motion and stated that
            he was truth at trial. Smullen also testified that he made those
            statements to the investigator because he feared he would suffer
            retaliation. Since Burroughs cannot show that prior
            postconviction counsel was ineffective under Strickland, he is
            not entitled to relief.




    Therefore, Defendant’s Second Motion for Postconviction Relief is
DENIED.

      IT IS SO ORDERED.

                                                ______________________
                                                  Richard R. Cooch, R.J.

oc:   Prothonotary
cc:   Investigative Services




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