       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                       IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                                )
                                                 )
               v.                                )          I.D. No. 1304013732
                                                 )
JESSIE THOMAS,                                   )
                                                 )
               Defendant.                        )

                                            ORDER

       Upon Defendant’s Pro Se Motion for Postconviction Relief: DENIED.

       1. On the night of April 15, 2013, the Wilmington Police Department

received a tip from a confidential informant (“C.I.”) that a black male known as

“Black Nose” had just pointed a firearm at another black male. 1 The C.I. reported

that Black Nose was driving a white Volvo in the area of Sixth and Jefferson

Streets in Wilmington and was dressed in a gray jacket and blue jeans. 2

       2. After receiving the tip, Officer Matthew Geiser and Corporal Justin

Cannon drove to Sixth and Jefferson Streets and observed a while Volvo station

wagon at that corner. 3 The officers could see a black male wearing a gray jacket

sitting in the driver’s seat of the Volvo.4 The officers followed the vehicle, and



1
  February 26, 2014 Trial Transcript (“Tr. Tran.”) at 30.
2
  Id.
3
  Id. at 5–6.
4
  Id. at 8–9.
after observing the Volvo pull to the side of the road without signaling, Officer

Geiser and Corporal Cannon initiated a motor vehicle stop for the traffic violation. 5

        3.    As Officer Geiser approached the driver’s side of the vehicle, he

observed the driver sitting with his hand out of the window. 6 Because of heavy

window tinting, Officer Geiser asked the driver to keep his hands in plain sight. 7

Officer Geiser testified that the driver abruptly moved his hands into his lap area

and in response, Officer Geiser pulled his service weapon. 8

        4. Officer Geiser directed Thomas to exit the vehicle and another officer

patted him down. 9 While this was happening, Officer Joseph Lucyk arrived as

back up and checked the Volvo for passengers.10 At trial, Officer Lucyk testified

that while shining his flashlight into the open driver’s side door he could see the

barrel of a gun protruding from underneath the driver’s seat. 11 Upon observing the

firearm, Officer Lucyk alerted the other officers that the driver should be taken into

custody. 12




5
  Id. at 10–11.
6
  Id. at 13–14.
7
  Id. at 13–16.
8
  Id. at 15–16.
9
  Id. at 16–17.
10
   Id. at 38.
11
   Id. at 38–40.
12
   Id. at 17, 39–40.
                                          2
        5. The driver, Defendant Jessie Thomas, was placed under arrest.13 Officer

Geiser drove Thomas to the police station in his patrol vehicle. 14 Corporal Cannon

drove the Volvo to the police station and secured it at the station. 15 After obtaining

a search warrant, Corporal Cannon searched the Volvo and seized a loaded

semiautomatic Taurus handgun from under the front seat, a loaded semiautomatic

Mauser handgun found to the left of the brake pedal, and personal papers and

photographs of Thomas. 16

        6. On May 28, 2013, Thomas was indicted on two counts of Possession of a

Firearm by a Person Prohibited (“PFBPP”), two counts of Carrying a Concealed

Deadly Weapon (“CCDW”), and one count of Possession of Ammunition by a

Person Prohibited (“PABPP”).

        7. A three-day jury trial was held in February 2014. At trial, the parties

stipulated that Thomas was a person prohibited from possessing a firearm and

ammunition. On February 27, 2014, the jury convicted Thomas of single counts of

PFBPP, CCDW, and PABPP. Thomas was acquitted on the remaining counts. On

August 28, 2014, Thomas was sentenced to a total of twenty-one years at Level V,

suspended after seven years, for decreasing levels of supervision.



13
   Id.
14
   Id. at 20, 21.
15
   Id.
16
   Id. at 52–61.
                                          3
       8. Thomas filed a direct appeal to the Delaware Supreme Court arguing

that: (1) Detective Barnes and Officer Geiser’s trial testimony was inadmissible

hearsay; (2) Officer Geiser and Corporal Cannon did not have a legitimate basis to

stop the vehicle; (3) even if the initial traffic stop was valid, Officer Geiser violated

Thomas’ Fourth Amendment right to be free from unreasonable search and seizure;

and (4) there was insufficient evidence to support his convictions. 17 On May 8,

2015, the Supreme Court affirmed the judgment of the Superior Court, finding that

Thomas’ appeal was “wholly without merit and devoid of any arguably appealable

issue.” 18

       9. On May 29, 2015, Thomas filed this pro se Motion for Postconviction

Relief (“Rule 61”).        Superior Court Criminal Rule 61 governs motions for

postconviction relief. 19       Before addressing the merits of any claim for

postconviction relief, the Court must first determine whether any of the procedural

bars under Rule 61 are applicable. 20 Rule 61(i)(1) provides that a motion for

postconviction relief must be filed within one year of a final judgment of

conviction.21      Under Rule 61(i)(2), any ground not asserted in a prior

postconviction proceeding is barred “unless consideration of the claim is warranted



17
   Thomas v. State, 2015 WL 2169288 (Del. 2015).
18
   Id. at *3.
19
   Super. Ct. Crim. R. 61.
20
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
21
   Super. Ct. Crim. R. 61(i)(1).
                                               4
in the interest of justice.” 22 Rule 61(i)(3) bars consideration of any claim not

asserted in the proceedings leading up to the judgment of conviction unless the

movant can show “cause for relief from the procedural default” and “prejudice

from violation of the movant’s rights.” 23 Rule 61(i)(4) provides that any ground

for relief that was formerly adjudicated is thereafter barred “unless reconsideration

of the claim is warranted in the interest of judgment.” 24

       10. Even if a procedural defect exists, the Court may consider the merits of

the claim if the defendant can show that an exception found in Rule 61(i)(5)

applies. 25 Rule 61(i)(5) provides that a defect under Rule 61(i)(1)–(3) will not bar

a “colorable claim that there was a miscarriage of justice because of a

constitutional violation that undermined the fundamental legality, reliability,

integrity or fairness of the proceedings leading to the judgment of conviction.” 26

       11. Thomas raises three grounds for relief in his Rule 61 Motion: (1)

ineffective assistance of counsel; (2) court abuse of discretion; and (3) prosecutor

misconduct.       Thomas argues his Trial Counsel was ineffective for failing to

investigate the basis of the traffic stop and for failing to file a motion to suppress

the weapons found after the traffic stop. Thomas also argues that the court abused

its discretion by allowing the Grand Jury to dismiss the traffic charges because he
22
   Super. Ct. Crim. R. 61(i)(2).
23
   Super. Ct. Crim. R. 61(i)(3).
24
   Super. Ct. Crim. R. 61(i)(4).
25
   Super. Ct. Crim. R. 61(i)(5).
26
   Id.
                                           5
was unable to challenge the validity of the traffic stop. Finally, Thomas argues

that it was prejudicial for the State to dismiss the traffic charges because the traffic

charges were the probable cause for stopping the vehicle.

       12. To prevail on a claim of ineffective assistance of counsel, the defendant

must satisfy the two-prong test of Strickland v. Washington,27 by showing that: (1)

trial counsel’s performance was deficient; and (2) the deficient performance

prejudiced the defense. 28 “Mere allegations of ineffectiveness will not suffice. A

defendant must make specific allegations of actual prejudice and substantiate

them.” 29 When the Court examines a claim of ineffective assistance of counsel, it

may address either prong first. 30 If the defendant makes an insufficient showing on

one prong, the Court may reject the defendant’s claim without analyzing the other

prong. 31

       13.   To establish prejudice, the defendant must show “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 32 After a thorough review of the record of

the case and Thomas’ arguments, Thomas has failed to satisfy the prejudice prong


27
   466 U.S. 668 (1984).
28
   Id. at 687–88, 694.
29
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (citing Younger, 580 A.2d at 555–56.
30
   Strickland, 466 U.S. at 697.
31
   Id. (“In particular, a court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.”).
32
   Albury v. State, 551 A.2d 53, 58 (1988) (quoting Strickland, 466 U.S. at 688, 694.
                                              6
of Strickland because the initial traffic stop was lawful and the officers did not

exceed the scope of the traffic stop in violation of the Fourth Amendment.

       14. Under the Fourth Amendment, “a traffic stop must be justified at its

inception by a reasonable suspicion of criminal activity, and the scope of the stop

must be reasonably related to the stop’s initial purpose.” 33 In order to justify a pat

down during a traffic stop, an officer must have reasonable suspicion that the

person is presently armed and dangerous. 34 Officer Geiser and Corporal Cannon

had probable cause to stop Thomas’ vehicle because they observed the Volvo pull

to the side of the road without signaling. 35 Once Thomas abruptly moved his

hands into his lap area, Officer Geiser had a reasonable suspicion that the

Defendant was armed and dangerous. Officer Geiser testified that Thomas was

fidgety and nervous and that he could not see what Thomas was doing inside the

vehicle because of the heavy window.36 Officer Lucyk then observed a gun in pain

view. Thomas was placed under arrest and a search warrant was obtained to search

the vehicle. Thomas has failed demonstrate that he suffered any prejudice by Trial


33
   State v. Chandler, 2015 WL 1731508, at *4 (Del. Super. 2015) (citing Caldwell v. State, 780
A.2d 1037, 1046–47 (Del. 2001).
34
   Holden v. State, 23 A.3d 843, 847 (Del. 2011).
35
   Id. (“A police officer who observes a traffic violation has probable cause to stop the vehicle
and its driver.”). On appeal, on plain error review, the Delaware Supreme Court held that
“Geiser and Cannon had probable cause to stop the Volvo for the traffic violation they
observed.” Thomas v. State, 2015 WL 2169288, at *3. The Supreme Court also held that
“Officer Geiser had a reasonable belief that Thomas was armed and dangerous when, as Geiser
approached the Volvo, Thomas suddenly concealed his hands.” Id.
36
   Tr. Tran. at 14–17.
                                               7
Counsel’s failure to file a motion to suppress and, therefore, he cannot prevail on a

claim of ineffective assistance of counsel.

          15.    Thomas’ remaining claims for “court abuse of discretion” and

“prosecutor misconduct” are procedurally barred by Rule 61(i)(3). Rule 61(i)(3)

bars consideration of any claim not asserted in the proceedings leading up to the

judgment of conviction unless the movant can show “cause for relief from the

procedural default” and “prejudice from violation of the movant’s rights.”37

Thomas is unable to overcome this procedural bar.

          16. Even if these claims are not procedurally barred, they are nevertheless

meritless. “[T]he State has broad discretion as to whom to prosecute. So long as

the prosecutor has probable cause to believe that the accused committed an offense

defined by statute, the decision of whether or not to prosecute, and what charge to

file or bring before a grand jury, generally rests entirely in his discretion.”38

Moreover, contrary to Thomas’ assertions, the fact that Thomas was never indicted

on the underlying traffic violation did not affect his right to challenge the

constitutionality of the traffic stop and subsequent discovery of the weapons.

          WHEREFORE, Defendant’s Pro Se Motion for Postconviction Relief is

DISMISSED.

          IT IS SO ORDERED.

37
     Super. Ct. Crim. R. 61(i)(3).
38
     Albury, 551 A.2d at 61 (internal quotations omitted).
                                                   8
    Jan R. Jurden, President Judge




9
