IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE §

v. § I.D. No. 84001366Dl
BENJAMIN CRUl\/IP, §
Defendant §

Submitted: September 18, 2017
Decided: December 14, 2017

On Defendant’S Second Motion for Postconviction Relief. DENIED.
On Defense Counsel’s Motion to Withdraw. GRANTED.

QR_M

Diana A. Dunn, Esquire, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.

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

COOCH, R.J.

This 14th day of December, 2017, upon consideration of Defendant’s Motion
for Postconviction Relief and Defense Counsel’S Motion to Withdraw, it appears to
the Court that:

l. On June 19, 1984, Benjamin Crurnp (“Defendant”) Was found
guilty after trial of Kidnapping, First Degree and Rape First
Degree.l Defendant appealed the conviction on Novernber 26,
1984.2 The Delaware Supreme Court affirmed the conviction on

 

l App. to Counsel for Def.’S Mot. To Withdraw at 2.
2 Id, at 4.

September 6, 1985. 3 Defendant filed his first Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule
614 on March 31, 1988.5 ln his motion, Defendant challenged his
trial counsel’s assistance on the following grounds:

1) failure to move for a mistrial based upon the best evidence rule
when a transcript of the victim's tape-recorded statement, with
handwritten notations, was admitted into evidence, rather than the
tape recording itself; 2) failure to locate and question an ll-year-
old girl who was assertedly with the victim at the time of the attack;
3) failure to properly challenge the victim's assertion that she had
been raped; 4) failure to introduce evidence that the FBI found a
blood type different from the defendant's in the semen on the
victim's clothing; 5) failure to consult an expert regarding the
unreliability of hair analysis tests; and, finally, 6) insufficient pre-
trial preparation.6

2. On October 18, 1988, this Court denied Defendant’s Motion for
Postconviction Relief.7 The Delaware Supreme Court affirmed
this Court’s denial of Defendant’s Motion for Postconviction
Relief on August 21, 1989.8

3. In 1996, the “lnnocence Project”9 began advising Defendant and
sought evidence from his trial.'O The Innocence Project sought a
stipulation to test evidence, which this Court granted. ll On
February 26, 2003, on behalf of the Innocence Project, Forensic
Science Associates tested a comb that was used for pubic
combings of the victim, from which DNA was extracted and

 

3Cmmp v. Sm¢e, 505 A.2d 452 (Del. 1985).

4 Del. Super. Ct. Crim. R. 61.

5 App. to Counsel for Def.’s Mot. To Withdraw at 93-106.

6 State v. Crump, 1988 WL 109381, at *1 (Del. Super. Ct. Oct. 18, 1988), q]Ta', 567 A.2d 420 (Del.
1989).

7 Id.

8 Cmmp, 567 A.2d 420.
9 Innocence Project, About, The Innocence Project_About Us, http:// www. innocenceproject.

org/about/ (“The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at
Cardozo School of Law, exonerates the wrongly convicted through DNA testing and reforms
the criminal justice system to prevent future injustice.”).

10 App. to Counsel for Def.’s Mot. To Withdraw at 157.

ll Id. at 159-163.

analyzed,12 and compiled a report.13 The analysis of the comb
revealed spermatozoa, epithelial cells, and dermal cells.14 On
April 18, 2003 Forensic Science Associates submitted its second
report in which DNA from an oral swab was compared to the
DNA from the spermatozoa on the comb.l5 The report stated,
“[t]hese findings fail to support [Defendant’s] claims of factual
innocence in the sexual assault of [victim].”

On May 15, 2015, the United States Department of Justice
(“USDOJ”) sent a letter to Defendant regarding errors in the
testimony of a Federal Bureau of Investigation Laboratory
examiner (“the FBI Expert”) who testified as an expert witness
in Defendant’s trial.16 The FBI Expert testified at trial that pubic
hair that was found on the victim’s jacket was “microscopically
matched” to Defendant’s pubic hair.17 The FBI Expert stated the
same conclusion regarding a head hair found on the victim’s
hat.18 On cross-examination, the FBI Expert admitted that hair
“comparisons do not constitute a basis for positive personal
identification.”19 USDOJ’s letter stated that the FBI Expert’s
testimony “exceeded the limits of science and [was], therefore,
invalid.”zo

Defendant filed this second pro se Motion for Postconviction
Relief on June 12, 2015.21 This Court appointed counsel for
Defendant on June 15, 2016.22 On January 3, 2017 counsel for
Defendant filed a Motion to Withdraw as Counsel, not having
filed an Amended Second Motion for Postconviction Relief or
otherwise endorsing the pro se motion.23

 

12 Id

13 Id. at 167-212.
14 Ia'. at 179.

15 [d.at 217-19.
‘61¢1. at 256.

17 Id. at 39.

18 Id. at 40.

19 Id. at 48.

20 Ia'. at 254.

21 I`a'. at ll.

22 Id. at 9.

23 Counsel for Def.’s Mot. To Withdraw.

6.

As to his Motion for Postconviction Relief, Defendant’s grounds
for relief are set forth in toto:

Scientifically unproven evidence permitted and ineffective
assistance of counsel. The examiner of hair samples implied that
the evidence could be associated with a specific individual
(defendant) to the exclusion of all others. The testimony
exceed[e]d the limit of the science. The examiner assigned to the
positive association a statistical weight or probability or provided
a likelihood that the questioned hair originated from a particular
source, or an opinion as to the likelihood or rareness of the positive
association that could lead the jury to believe that valid statistical
weight can be assigned to a microscopic hair association. This
testimony exceeded the limit of science. The hair examiner cites
the number of cases or hair analyses worked in the lab and the
number of samples from different individual[s] that could not be
distinguished from one another as a predictive value to bolster the
conclusion that a hair belonging to defendant This type of
testimony exceeds the limits of science. Trial counsel done nothing
to contest the testimony. The above ground not raised as []result
lacked expert to support my claim. See: Exhibits “A” and “B.”24

As to his Motion to Withdraw as Counsel, counsel for Defendant
argues that although the FBI Expert’s “testimony was a
misrepresentation of the evidence and that it played a large part
in [Defendant’s] conviction[,]” and “the testimony was likely so
important that it tainted the trial and undermine[d] the confidence
in the outcome[,] . . . any prejudice to [Defendant] is cured by
the identification of his DNA from spermatozoa found on the
pubic comb of the victim.”25 As such, counsel for Defendant
contends that he cannot ethically advance any postconviction
claims regarding the improper hair analysis evidence.”26

Rule 61 is the remedy for defendants “in custody under a
sentence of this court seeking to set aside the judgment of
conviction . . . .”27 This Court “must first consider the procedural
requirements of Rule 61 before addressing any substantive

 

24 App. to Counsel for Def.’s Mot. To Withdraw at 14.
25 Counsel for Def.’s Mot. To Withdraw at 9.

26 Id. at 10.

27 Del. Super. Ct. Crim. R. 61.

issues.” 28 The procedural “bars” of Rule 61 are:
timeliness,29 repetitiveness,30 procedural default,31 and former
adjudication.32 A motion is untimely if it is filed more than one
year after the conviction is finalized or defendant asserts a new
constitutional right that is retroactively applied more than one
year after it is first recognized.33 A motion is repetitive if it is a
“second or subsequent motion.”34 lf any of these bars apply, the
movant must show entitlement to relief under Rule
6l(i)(5). 35 The contentions in a Rule 61 motion must be
considered on a “claim-by-claim” basis.36

9. In order for the Court to consider repetitive37 postconviction
motions, the motion must either

(i) plead[] with particularity that 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 (ii) plead[] with particularity a claim
that a new rule of constitutional law, made retroactive . . .
applies to the movant's case and renders the conviction . . .
invalid.38

10. First, Defendant’s Motion for Postconviction Relief is
procedurally barred because it is untimely pursuant to Del.
Super. Ct. Crim. R. 6l(i)(l). Because more than one year has
passed between September 6, 1985, when Defendant’s
conviction was finalized, and June 12, 2015, when Defendant

 

28 State v. Slanford, 2017 WL 2484588, at *2 (Del. Super. Ct. June 7, 2017) (quoting
Bradley v. State, 135 A.3d 748, 756 (Del. 2016)).

29 Ia'. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(l)).

30 Ia’. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(2)).

31 Id. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(3)).

32 Ia’. at 2 (citing Del. Super. Ct. Crim. R. 61(i)(4)).

33 Del. super. Ct. Crim. R. 61(1)(1).

34 Del. super. ct. Crim. R. 61(i)(2).

35 Stanford, WL 2484588, at *2.

30 State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (holding that “Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).

37 Del. Super. Ct. Crim. R. 6l(i)(2).

38 Del. super. Ct. Crim. R. 61(d)(1)-(2).

brought his postconviction motion, his postconviction motion is
barred as untimely.

11. Second, as this motion is Defendant’s second motion for
postconviction relief, each of Defendant’s two grounds for relief
is procedurally barred as repetitive pursuant to Del. Super. Ct.
Crim. R. 61(i)(2). Moreover, neither exception to successive
motions applies here as Defendant fails to plead with
particularity that new evidence exists or that a new constitutional
rule applies retroactively. Although the USDOJ letter alleging
the FBI Expert’s erroneous testimony may be new evidence
under Del. Super. Ct. Crim. R. 61(d)(2)(i), the evidence does not
create a “strong inference that [Defendant] is actually innocent
in fact” because the spermatozoa that was recovered on the pubic
comb positively identifies Defendant as the contributor of the
DNA. Because this motion was filed more than a year after
Defendant’s judgment of conviction was final and because this
is Defendant’s second motion for postconviction relief, it is
procedurally barred as a matter of law. Therefore, Defendant’s
Motion for Postconviction relief is denied.

12. Moreover, as to counsel for Defendant’s Motion to Withdraw as
Counsel, this Court finds that counsel may withdraw as a matter
of law pursuant to Del. Super. Ct. Crim. R. 61(e)(7). “lf 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,
counsel may move to withdraw.”39 Counsel for the Defendant’s
argument that “any prejudice to [Defendant] is cured by the
identification of his DNA from spermatozoa found on the pubic
comb of the victim[]”40 provides an adequate “factual and legal
basis for counsel’s opinion”41 that counsel “cannot ethically
advance any postconviction claims regarding the improper hair
analysis evidence[]”42 of the FBI Expert.

 

39 Del. Super. Ct. Crim. R. 6l(e)(7).

40 Counsel for Def.’s Mot. To Withdraw at 9.
41 Del. super. cr. Crim. R. 61(@)(7).

42 Counsel for Def.’s Mot. To Withdraw at 10.

13. Defendant’s argument that “there would be ‘a different result
upon retrial[]”’43 concerning the FBI Expert’s testimony is not
compelling because a retrial would presumably lead to a positive
DNA identification by way of the spermatozoa found on the
pubic comb of the victim. Thus, the outcome of the retrial would
be no different The issues of the FBI Expert’s testimony and any
potential DNA contamination as argued by Defendant would not
lead to a different outcome if retried. Counsel for Defendant
adequately illustrates that he cannot ethically advance
Defendant’S case because he “is not aware of any substantial
ground for relief available to” Defendant.44 As such, counsel for
Defendant’s Motion to Withdraw as Counsel is granted.

Therefore, Defendant’s Motion for Postconviction Relief is DENIED.
Defense Counsel’s Motion to Withdraw is GRANTED.

IT IS SO ORDERED.

ll/iéwl `\U.z.-WL\

Richard R. Cooch, R.J.

cc: Prothonotary
lnvestigative Services

 

43 Def.’s Opp’n to Counsel for Def.’s Mot. To Withdraw at 2; Def.’s Reply to State’s Resp. at 2.
44 Del. Super. Ct. Crim. R. 6l(e)(7).

