      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                            )
STATE OF DELAWARE                           )
                                            ) ID#9504002666
               v.                           )
                                            )
JEFFREY R. FOGG,                            )
                                            )
                     Defendant              )


                          Submitted: August 18, 2016
                          Decided: November 4, 2016

     On Defendant‟s “Amended Omnibus Motion for Postconviction Relief.”
                               DENIED.

                                  ORDER
John Williams, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Edward C. Gill, Esquire, Law Office of Edward C. Gill, P.A., Georgetown,
Delaware, Attorney for Defendant.

COOCH, R.J.

      This 4th day of November 2016, upon consideration of Defendant‟s
“Amended Omnibus Motion for Postconviction Relief,” it appears to the
Court that:

          1.   On April 15, 1996, a jury found Defendant and his Co-
               Defendant, Daryl Andrus, guilty of non-capital Murder First
               Degree and Conspiracy First Degree.1 This Court subsequently
               sentenced Defendant to Level V supervision for life on the
               Murder First Degree charge, with a consecutive sentence of five
               years at Level V supervision suspended after four years for one

1
    D.I. 52.
                                       1
               year at Level III supervision on the Conspiracy First Degree
               charge. Defendant‟s conviction was affirmed by the Delaware
               Supreme Court on appeal.2

       2.      Prior to filing this Motion for Postconviction Relief, Defendant
               filed one other pro se motion for postconviction relief. On
               September 10, 2002, this Court initially denied in part
               Defendant‟s first Motion for Postconviction Relief.3 One claim
               asserting a Brady violation was left unaddressed for several
               years because a witness necessary to deciding that claim was
               unavailable to testify on the issue.4 On July 6, 2012, after
               obtaining the presence of that witness and holding a hearing in
               which he testified to the claims made in the alleged Brady
               violation, this Court found the remaining claim in Defendant‟s
               first Motion for Postconviction Relief was procedurally barred



2
  Fogg v. State, 1998 WL 736331 (Del. Oct. 1, 1998). In his direct appeal, Defendant
made two claims for why his conviction should be reversed. First, Defendant contended
that “his [pre-trial] statements to the police were taken in violation of his Miranda rights
under the Fifth Amendment to the United States Constitution and Article I, Section 7 of
the Delaware Constitution. Second, Defendant contended the trial court erroneously
found that a statement he made to the police “was the product of a voluntary, knowing
and intelligent waiver of his Miranda warnings.” The Delaware Supreme Court sua
sponte raised a third issue as to whether an incriminating statement made by Defendant‟s
Co-Defendant “was admitted into evidence in violation of Bruton v. United States.” The
Supreme Court held that Defendant‟s contentions were without merit. The Court
remanded the Bruton issue to the trial court for further fact finding. The State conceded
that the admission of the Co-Defendant‟s incriminating statement against Defendant
violated Defendant‟s rights under Bruton, and the trial court determined that “redaction
(rather than severance) would have been the appropriate remedy given [Co-Defendant‟s]
out-of-court statements.” Fogg v. State, 2002 WL 31053868 (Del. Super. Sept. 10,
2002). The Supreme Court held that the Bruton violation amounted to harmless error and
affirmed Defendant‟s conviction on direct appeal.
3
  State v. Fogg, 2002 WL 31053868 (Del. Super. Sept. 10, 2002) (denying in part
Defendant‟s first Motion or Postconviction relief in which he contended that: (1) he “was
denied his right to confront and cross-examine [Co-Defendant] when [Co-Defendant]
failed to take the witness stand relative to his out-of-court statements introduced at trial;”
(2) “[the trial court] erred when it did not instruct the jury on accomplice liability; and (3)
Defendant‟s counsel was ineffective for failing to object to the out-of-court statements
made by Co-Defendant pertaining to Defendant‟s involvement in the victim‟s death),
aff’d, 2002 WL 31873705 (Del. 2002).
4
  State v. Fogg, 2010 WL 2891500 (Del. Super. July 22, 2010).
                                               2
               without merit and denied the balance of his motion.5 Defendant
               now brings this, his second, motion for postconviction relief.6

       3.      Before reaching the merits of a Motion for Postconviction
               Relief, this Court must ensure that Defendant‟s motion is not
               procedurally barred by Superior Court Criminal Rule 61(i)(2).7
               As this is Defendant‟s second motion for postconviction relief
               under Rule 61, and filed by retained private counsel, it is a
               successive motion and Defendant must show that either (1)
               “new evidence exists that creates a strong inference that the
               movant is actually innocent in fact of the acts underlying the
               charges of which he was convicted” or (2) “a new rule of
               constitutional law, made applicable to cases on collateral
               review by the United States Supreme Court or the Delaware
               Supreme Court, applies to the movant‟s case and renders the
               conviction . . . invalid.”8 If Defendant cannot satisfy the
               exceptions to the procedural bar set forth by Rule 61(d)(2), then
               his motion must be denied.9

       4.      Defendant contends that he has satisfied both exceptions to the
               procedural bar set forth in Rule 61(d)(2). First, Defendant
               contends that “new evidence of actual innocence” exists
               showing that the Co-Defendant at Defendant‟s trial was the
               only perpetrator of the offense.10 Second, Defendant contends

5
  State v. Fogg, 2012 WL 2356466 (June 6, 2012), aff’d, 2012 WL 6553921 (Del. Dec.
13, 2012) (affirming on the basis of the trial court‟s decision in State v. Andrus, 2010 WL
2878871, (Del. Super. July 22, 2010) (finding no Brady violation and, if there was such a
violation, no prejudice to Co-Defendant)).
6
   Initially, Defendant filed pro se a Motion for Postconviction Relief with various
contentions on why relief should be granted. Defendant subsequently retained private
counsel to represent him on this motion. Defendant‟s privately retained counsel
abandoned some claims and pursued the ones discussed below when he filed Defendant‟s
“Amended Omnibus Motion for Postconviction Relief.”
7
  Superior Court Criminal Rule 61(i)(2) provides:
             (2) Successive Motions. (i) No second or subsequent motion is
             permitted under this rule unless that second or subsequent motion
             satisfies the pleading requirements of subparagraphs (2)(i) or
             (2)(ii) of subdivision (d) of this rule.
8
  Super. Ct. Crim. R. 61(d)(2)(i-ii).
9
  Super. Ct. Crim. R. 61(d)(2).
10
    Defendant only asserted a separate claim of “new evidence of actual innocence” in
Defendant‟s Reply in Support of his Amended Omnibus Motion for Post-Conviction
                                                 3
              that his conviction is rendered invalid by Cooke v. State, which
              he suggests establishes a new retroactively applicable
              constitutional right to control the defense of one‟s criminal
              trial.11

       5.     The State contends that Defendant‟s “Amended Omnibus
              Motion for Postconviction Relief” is procedurally barred. The
              State first asserts that Defendant has discovered no new
              evidence that creates a strong inference of actual innocence, and
              rather that Defendant is attempting to reargue whether or not
              the evidence presented at trial was sufficient to convict him of
              the charges. Second, the State contends that Cooke did not
              create a new rule of constitutional law, and, even if it did, it is
              not one that can be applied retroactively because it does not fall
              into one of the two exceptions to the rule of non-retroactivity
              set for the by Teague v. Lane.12

       6.     Defendant first contends that “new evidence” exists that proves
              he is actually innocent of the crimes for which he was
              convicted. “New evidence” is evidence that was not available
              at the time of trial but has since been discovered.13 To satisfy
              the exception to the procedural bar set forth in Rule 61(d)(2)(i),
              such new evidence must create a “strong inference that the
              movant is actually innocent in fact of the acts underlying the
              charges of which he was convicted.”14


Relief. It does not appear that such a claim was made in the Amended Omnibus Motion
for Postconviction Relief. However, given that the State was given an opportunity to
respond to this claim in a Supplemental Answer to Amended Omnibus Second Motion
for Postconviction Relief, this Court will address the claim on its merits.
11
   Cooke v. State, 977 A.2d 803 (Del. 2009). In Defendant‟s Amended Omnibus Motion
for Postconviction Relief, Defendant also contended that Crawford v.Washington, 541
U.S. 36 (2004) created a retroactively applicable new constitutional right. However,
Defendant abandoned this claim in his Reply in Support of his Amended Omnibus
Motion for Post-Conviction Relief, conceding that the Delaware Supreme Court held that
Crawford was not retroactively applicable in McGriff v. State, 2007 WL 1454883 (Del.
2007).
12
   489 U.S. 288 (1989).
13
   See State v. Wright, 2006 WL 1685821, at *1 (Del. Super. Mar. 29, 2006) (defining
“new evidence” in the context of a Super. Ct. Crim. R. 33 motion for a new trial based on
newly discovered evidence).
14
   Super. Ct. Crim. R. 61(d).
                                             4
       7.     Defendant proffers no new evidence that would create a strong
              inference of “actual” innocence. Rather than present new
              evidence, Defendant argues that the evidence presented at trial
              was insufficient to convict him of Murder First Degree.
              Defendant contends that the blood splatter evidence does not
              support the method in which the State suggested the victim was
              killed. Defendant also contends that the only boot marks on the
              victim were the size of the boots worn by the Co-Defendant.
              Finally, Defendant contends that the bruises on the victim were
              inflicted by a person wearing a specific ring belonging to the
              Co-Defendant. Defendant has not asserted that any of this is
              “new evidence.” Rather, Defendant is making arguments based
              on the sufficiency of the evidence presented at trial.
              Additionally, Defendant‟s claim of actual innocence is
              diminished by the fact that Defendant has previously contended
              that he only should have been convicted of manslaughter.15
              Even in this proceeding, Defendant contended in his second pro
              se Amended Motion for Postconviction Relief that he should
              only have been convicted of one of the lesser included offenses
              of Murder First Degree, such as Murder Second Degree or
              Manslaughter.16 Accordingly, because Defendant has failed to
              present any new evidence that creates a strong inference of
              actual innocence, Defendant‟s first claim is without merit.

       8.     Next, Defendant contends that his trial counsel denied him the
              right to control his defense in that he was not permitted to
              testify, despite his desire to do so.17 Defendant asserts that the
              right to control the defense of one‟s criminal trial is a new
              constitutional right established in Cooke v. State, and that
              Cooke is retroactively applicable to Defendant‟s case and
              renders his conviction invalid. As the Delaware Supreme Court

15
   State v. Fogg, 2012 WL 2356466, at *5 (Del. Super. June 6, 2012).
16
   Def.‟s Am. Mot. for Postconviction Relief, at 3. Defendant made this contention in his
pro se Amended Motion for Postconviction Relief, filed November 13, 2015, which was
subsequently abandoned in his “Amended Omnibus Motion for Postconviction Relief.”
However, it is still noteworthy that Defendant would make such a contention in a pro se
filing.
17
    Defendant raises this claim for the first time on collateral review. Not only did this
Court conduct a thorough colloquy ensuring that Defendant was aware of his right to
testify and that he made a knowing and voluntary waiver of that right, but Defendant did
not raise this claim on direct appeal.
                                              5
             held in Flamer v. State, “a „new rule‟ [of constitutional law
             exists] when it breaks new ground or imposes a new obligation
             on the states or federal government or if the result was not
             dictated at the time a defendant‟s conviction became final.”18
             “In Flamer v. State, this Court adopted a general rule of non-
             retroactivity for cases on collateral review as employed by the
             United States Supreme Court in Teague v. Lane.”19 The rule of
             non-retroactivity for cases on collateral review is subject to two
             exceptions: (1) if the criminal conduct has since been held to be
             constitutionally protected activity; and (2) the new rule involves
             a “„watershed‟ criminal procedural development.”20               A
             “watershed” rule of criminal procedure is established when the
             rule “improves the accuracy of criminal prosecutions and alters
             the understanding of a bedrock procedural element essential to
             fairness.”21

      9.     In Cooke v. State, the Delaware Supreme Court held that the
             defendant‟s trial counsel violated his constitutional right to
             make the fundamental decisions in the defense of his case.22
             Over the defendant‟s objection, the defendant‟s trial counsel
             sought a verdict of guilty but mentally ill.23 The defendant
             opposed this strategy and asserted that he was of sound mind
             and factually innocent of the crime with which he was charged.
             However, the defendant‟s trial counsel proceeded on the theory
             of guilty but mentally ill.24 Relying on Superior Court Criminal
             Rule 11(a), which provides that it is a defendant‟s choice
             whether or not to plead guilty, the Delaware Supreme Court
             held that it is a defendant‟s right to decide whether or not to
             plead guilty, and that trial counsel‟s decision to pursue a verdict
             of guilty but mentally ill denied the defendant his right to make
             that decision.25 In reaching its decision, the Court held that
             when the defendant‟s trial counsel refused to permit the
18
   Flamer v. State, 585 A.2d 736, 749 (Del. 1990) (emphasis in original).
19
    State v. Desmond, 2013 WL 1090965, at *2 (Del. Super. Feb. 26, 2013); see also
Teague v. Lane, 489 U.S. 288 (1989).
20
   Desmond, 2013 WL 1090965, at *2.
21
   Id.
22
   Cooke v. State, 977 A.2d 803, 841-53 (Del. 2009).
23
   Id. at 842-43.
24
   Id.
25
   Id. (citing Super. Ct. Crim. R. 11(a)).
                                            6
               defendant to testify—despite his desire to do so in order to
               assert his innocence and lack of mental illness—the defendant‟s
               trial counsel violated his constitutional right to testify on his
               own behalf.26 In order to permit the defendant to exercise his
               constitutional right to testify on his own behalf, the Court
               allowed the defendant to testify.27

       10.     Defendant contends that Cooke established a new retroactively
               applicable constitutional right to “dictate what defense is to be
               presented at trial.”28 However, Defendant‟s reading of Cooke is
               inaccurate. The Cooke decision applied the rules of law that it is
               a defendant‟s right to decide whether to plead guilty29 or testify
               on his or her own behalf.30 When the Court permitted the
               defendant to take the stand and testify, it was permitting the
               defendant to exercise his right to testify and to plead not guilty
               to the crimes with which he was charged. As these were
               previously established rules of constitutional law, Defendant‟s
               second claim fails to cite any new rule of constitutional law that
               would satisfy the exception to the procedural bar set forth in
               Rule 61(d)(2)(ii).       Accordingly, Defendant‟s Amended
               Omnibus Motion for Postconviction Relief is procedurally
               barred by Rule 61(i).

Therefore, Defendant‟s “Amended Omnibus Motion for Postconviction
Relief” is DENIED.


                                                            /s/Richard R. Cooch
                                                             Richard R. Cooch, R.J.
oc:    Prothonotary
cc:    Investigative Services




26
   Cooke, 977 A.2d at 844.
27
   Id.
28
   Def.‟s Reply in Supp. of his Am. Omnibus M. for Post-Conviction Relief, at 3.
29
   Brookhart v. Janis, 384 U.S. 1, 7 (1966).
30
   See Rock v. Arkansas, 483 U.S. 44, 53 (1987) (stating that it is a criminal defendant‟s
right to testify).
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