IN THE SUPREME COURT OF TI-IE STATE OF DELAWARE

NATHANIEL ANDERSON, §
§ No. 207, 2017
Defendant Below, §
Appellant, § Court Below_Superior Court of the
§ State of Delaware
v. §
§ Cr. ID No. 30306671DI (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: November 20, 2017
Decided: February 8, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This 8"‘ day of February 2018, upon consideration of the appellant’s opening
brief, the appellee’s motion to affirm, and the Superior Court record, it appears to
the Court that:

(1) The appellant, Nathaniel Anderson, Was convicted and sentenced in
1994 on two counts of unlawful sexual intercourse first degree. The convictions
were affirmed on direct appeal.' This appeal is from the Superior Court’s denial of
Anderson’s fifth motion for postconviction relief under Superior Court Criminal

Rule 61.

 

'Anderson v. State, 1995 WL 330821 (Del. May 26, 1995).

(2) In his fifth motion for postconviction relief, Anderson challenged the
validity of an FBI analyst’s trial testimony concerning pubic hair evidence collected
from Anderson and the victim. Anderson alleged that there was “no valid research
for the State’s expert to have reached his conclusion, connecting defendant’s hair to
the victim.”2

(3) Anderson purported to support his allegation with a copy of` a letter
dated September 30, 2014, from the U.S. Department of' Justice to the Delaware
Attomey General. The letter concerned the Department of Justice’s nationwide
review of pre-1999 convictions where FBI analysts had provided faulty hair
comparison testimony. In its original form, the September 30, 2014 letter identified
a Delaware case where a defendant’s convictions were based on flawed hair analysis
evidence. In the copy of the letter submitted by Anderson, however, the defendant’s
name and criminal action number were redacted.

(4) Based upon Anderson’s apparent representation that the letter from the
U.S. Department of Justice applied to his case, the Superior Court granted
Anderson’s motion for appointment of` postconviction counsel. After the
appointment of postconviction counsel, the prosecutor in Anderson’s trial served and

filed a letter informing the Superior Court of recent inquiries he had made to the U.S.

 

2 Appendix to Motion to Withdraw as Counsel at A91, Stale v. Anderson, Cr. ID No. 3030667]Dl
(Del. Super. Ct. Dec. 28, 2016).

2

Department of Justice about the September 30, 2014 letter. Based upon the
Department’s response to his inquiries, the prosecutor advised the court and
postconviction counsel that Anderson’s case was not in the FBI database of cases
involving improper hair comparison analysis, and that the Department’s September
30, 2014 letter did not concern Anderson.

(5) In January 2017, Anderson’s postconviction counsel filed a motion to
withdraw and supporting memorandum under Rule 61(e).3 Postconviction counsel
stated that, after conducting a thorough analysis of` the record, he could find no
grounds to seek postconviction relief`. In the supporting memorandum,
postconviction counsel explained that Anderson’s challenge to the validity of the
hair comparison evidence was not supported in the record because the FBI analyst’s
trial testimony did not connect Anderson’s hair to the victim, as Anderson had
claimed. Instead, the FBI analyst testified that the hair evidence examined in
Anderson’s case revealed no transfer of hair between Anderson and the victim,

(6) On April 20, 2017, the Superior Court issued an order denying
Anderson’s motion for postconviction relief as procedurally barred under Rule

61(i).“ The court also granted postconviction counsel’s motion to withdraw On

 

3 See Del. Super. Ct. Crim. R. 61(e)(7) (providing for motion to withdraw if counsel considers the
movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is
not aware of any other substantial ground for relief available to the movant).

4 R. 6I(i) (governing bars to relielj.

3

appeal, we find it manifest that the Superior Court’s judgment should be affirmed
on the basis of the court’s well-reasoned decision dated April 20, 2017.5

(7) Considerable judicial, prosecutorial, and defense resources were
needed to ensure that Anderson’s claim of error was properly investigated and
evaluated. In the end, Anderson’s claim was found to be patently frivolous. We
advise Anderson to be mindful in the future that, under Rule 61(j), when an
unsuccessful postconviction movant has brought a claim “so completely lacking in
factual support or legal basis as to be insubstantial,” the Superior Court may, upon
motion, require the movant to reimburse the state for costs and expenses paid from
public funds.6

NOW, TI-[EREFORE, IT IS ORDERED that the motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRMED.

BY TI-[E COURT:

/s/ James T. Vaughn, Jr.
Justice

 

5 See Srate v. Anderson, Cr. ID No. 30306671DI (Del. Super. Ct. April 21 , 2017) (copy attached).
6 Del. Super. Ct. Crim. R. 61(i).

4

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l)el`endant l

Suhmilted: .lannar} .'Ih'. 20| 7
l)eeided; .»'\pril 20_ 20| 7

qg=g nw 13 ~Jtt

()n |)e|`endant`s l\-lotion l`or l’osteon\ietion Reliel. l)l':l\|ll'll).

Un Del`endant`s (`ounsel`s l\/lotion to Withdra\\ as (`ounsel. (iR.-\N'l`l".l).
ORDER

Roberl B. ()`Neil|` l:_squire. Deput_\-' /\ttorne_\ (ienet‘al. Department ol`Justiee.
Wilmington. |)ela\\are. .-'\ttorne) l`or the Stale.

l’alriel< .l. Collins. l'squire. (`ollins & .-\ssoeiates. \A"illnin\_.:ton. l)ela\\are. /\ttorne)
l`or l)el`endant.

(`()()(`l l. R..l.

This It}th da_\ o|`/\pril 20|7. upon consideration ol`l)el`endant`s |\lotion I`or
l’osteon\ ietion Relie| and l)el`endanl`s (`ounsel`s Motion to \\'ithdra\\ as (`ounse|.
it appears to the (`ourt that;

l. ()n .lul_\ 20. l‘)‘)-l. l)e|`endanl \\ as |`ound guilty on l\\o counts ol`
l'nla\\ t`ul Se\ual |ntereourse l'irst l)ei__'ree. ()n ()etoher 7. l‘)‘)-l.
l)e|`endant \\as sentenced to mo t\\ ent_\-li\e year | e\ el V sentences

l`he Court ordered that those sentences \\ould be ser\ed

consecutively. Def`endant`s conviction and sentence were affirmed by
the Delaware Supreme Court on appea!.l

id

Prior to filing this Motion for Postconviction Reliel`, Det`endant had
filed l`our previous motions for postconviction relief that were all
denied by this Court. Def`endant`s first motion for postconviction
relief, alleging that a rational trier of fact could not have found him
guilty on the |`acts presented at tria|, was denied by this Court on
September 29, 1998. Del`endant`s second motion l`or postconviction
relief, in which he made claims ol` ineffective assistance of counsel,
was denied on July 7, 1999 on grounds that it was procedurally
barred. 'l'his C`ourt`s denial of Def`endant’s second motion f`or
postconviction relief was affirmed by the [)elaware Supreme Court on
May 8, 2000. Def`endant’s third motion f`or postconviction relief was
summarily dismissed by this Court on June 13. 2002. an order that the
Delaware Supreme Court affirmed on August 28. 2002.2 Finalty,
Defendant`s fourth motion f'or postconviction relief was denied by this
Court on Novemher 5, 2012.

3. On October 5. 2015. Def`endant filed this. his fifth. l\/lotion for
Postconviction Relief. ln this motion. Del`endant argues that hair
analysis evidence presented at trial was improper. ln support ol' his
fifth motion for postconviction reliel`, [)efendant attached a letter from
Norman Wong, Special Counsel l`or the United States Department of
Justice, to then State Prosecutor Kathleen Jennings. That letter was
dated September 30, 2014. The subject line ol` the letter read “State v.
[det`endant]." but the del`endant`s name was completely redacted.
rendering it illegible. ln that letter, the United States Department of`
Justice advised that "a report or testimony regarding microscopic hair
comparison analysis containing erroneous statements was used in this
case."‘ 'l`he letter advised that the examiner’s testimony in whatever
case the letter was intended to address “exceeded the limits of` science
and wcre. there f`ore. invalici."'l

 

' .'htdt*rsrm 11 .‘»`ltne. 1995 Wl. 330821 (L)el. May 2(»_ 1995) (t`tnding no merit to Del`cndanl`s
argument that “t|te trial court committed prejudicial error in refusing to instruct the jury
concerning an unsolicited derogatory comment made by a prosecution witness.").

l .'im/t»r.t-mt t~. smit». 2002 wt. annot 11 (nct. Aug. 28. 2002).

3 l`)c|`.`s Mot. l`or Postconviction I{eliel`. l"x. A. at 1.

4 itt m 2.

l~.)

4. On October 30, 20t5, Def`endant filed a Motion for Appointment of`
Counsel. On January 5. 2016, the Court granted Def`endant’s motion
and appointed eounsel, advising the Prothonotary that

Attached to the |Motion for Posteonviction Reliel'| is a letter ol'
September 3(). 20|4 to S|ate Prosecutor Kathlecn .|ennings from
Norman Wong. Special (.`ottnse| to the l'nited States Department
ot` .lustice. concluding that ’°a report or testimony regarding
microscopic hair comparison analysis containing erroneous
statements was used in this ease.°`

l assume that the September 30. 2014 letter pertains to the
Nathaniel Anderson case but the name ol` the I)el`endant in Mr.
Wong`s letter is redactcd. so | cannot be sttre. l-lowever. under the
circumstances l will order that counsel be appointed l`or Dc|`endant
in connection with his Motion |'or l'osteonviction Rclie|` liled
()ctoher 5.

5. On November 22, 2016. the State wrote a letter to the Court advising
that the letter did not pertain to Anderson’s case. ln that letter, the
State informed the Court that

While \’ottr llonor decided to assign counsel you also noted that
the letter l`rom ivlr. Wong was redacted and could only assume that
the letter pertained to the defendant

()n Novembcr 14. 201(). l spoke with .lanice Millner. who is a
management analyst with the l~`l!l. '.~‘»he advised that she checked
the l"Bl l)ala Base and |Anderson's] case was not one that was
reviewed y the FBl. On Novcmber IS. 201()_ l spoke with Specia|
(`ounse| Norman Wong and lie eonlimtcd that he did not send a
letter to Kathieen .lennings in Nathanie| Anderson`s ease.

Mr. Wong did indicate that he sent a letter |dated September 30.
2014| in State v. Bcn_iamin Crump. State Deteetivc Clil`t`ord
l)empse_v determined that Nathanie|_/\ndcrson and Bertjamin
(`rump were housed in the same pt'ison."

The Statc enclosed Mr. Wong`s September 30. 2014 letter pertaining
to Benjamin Crump`s case with its letter. Having compared the
United States Department of`.lustice letters in Ben_iamin Crump‘s case
with the exhibit that Defendant submitted in support ol` his lit`th

 

§ App. to Motion ‘l`o Withdraw as Counscl at A122.
3

l\'lolion l`ot' l’ostcon\iction Relie|`. il appears that the t\t-o letters are
identical. Based on the State`s representation that hdc V\'ong did not
o rite a letter pertaining to l)el`endant bttt did \\ rite a letter pertaining
lo l%eltjalnitt t`t'ump on September `»U. 201-1. it is possible tbut
immaterial to this motion) to conclude that the redacted del`endant`s
name in [)el`endant`s submission is lienjamin L`t'tnnp."

()_ ()n l)ecember 28. 20|(). l)el`endant`s appointed counsel |iled a Nlt)tit)tt
to \l\-"ilhdra\\ as (`ounsel. ln that i\lotiotL l)el`endant`s appointed
counsel asserted that

all potential claims arc barred b_\ operation ol |{tt|e filtit. \.s to
the claims .\lr. .\nderson ral~cd. they cannot bc clh`tca|l_\ atl\anccd.
l actua|l_\. it ts clear |ront lhc record that the agent \\ho tcstilicd did
not opine about hair comparison ot att;tl_\sis. |n lact_ t|uttc thc

opposite is truc. lle lcsti|icd that he louttd tro hairs tot
comparison
7. |he (`otn't linds that [)el`endanl`s claims are barred b,\ bttpet'iot' L`otu't

Crimina| Ru|e ol(i). /\s this is not l)e|`endant`s first motion. this
motion can on|_\ be considered by the t`ourt il`l)e|`endnnt

tit pleads \\itlt parlicularit} that ne\\ e\it|ence exists that creates a
strong inference that the mo\anl ts actually innocent itt 1.tct ol thc
acts underl_\ ing the charges o| \\ltich he \\as cont teted; or

tii\ pleads \\itlt patticulatit\ a claim that a nc\\ rule o|`
constitutional lat\\. made retroacti\c to cases on collateral t'c\ict\
b) the l titled Statcs .\`ttpt'etne (ourt or the l)ela\\arc Hupretne
(`ourt. applies lo thc ruo\ant's case .tntl renders the cou\iction ot
death sentence itt\alid"`i

l)el`endanl has not set |`ot'th an_\ argument that ne\\ e\idence e\ists
that creates a strong inference ol` actual innocence. or that a ne\\ rule
ol` constitutional |a\\ made relroacti\e to cases on collateral re\ie\\
has been created. .\tltlilit)tt:tl|). l)el`endnnt`s reliance on hlr \Vong`s
letter in support ol` his argument that lltc hair ana|) sis e\iclence \\as
improper at trial is misplaced Mr. V\"ong`s letter did not address

" llcnjamin (`rtnnp`s ncarl_\ identical \lolion lor l'ostcon\iclion Re|ie|` based on '\lr. \\ong`s
letter is currentl) pending

l\lot. to \.\ ithtlra\\ ust ounsel at o
"‘ little trtttitt:)

 

Det`endant`s ease. but rather addressed a dil`|`erent de|`endant`s case.
Aect)t'dittg|). l)e|`endants lil`lh Motion |`or l’osteon\iction Relie|` is

l)ENll".l). l)e|`endant`s appointed counse|`s l"vlotion to Vl`ithdra\\ as
(`ounse| is therefore GRAN'I`I'I|).

l'[` IS 80 ()RI)IZRI':I).

l
\L\,(/. if ]MOOVL
Richard R. L`ooch. R..|.
ce: l’rothonotar_\
|n\ estigati\ e Ser\ ices
Nathanie| R. Anderson

+.t;=e at 12 'i:vutiz

