IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
ID No. 1109011777

V.

ANTHONY GORDON,

New Nee ee” ee ee” Ne’ NL’

Defendant.

Date Submitted: July 19, 2019
Date Decided: September 12, 2019

ORDER

Upon consideration of Defendant’s pro se “Motion for Newly Discovered
Evidence;”' the facts and arguments in Defendant’s Motion; statutory and decisional
law; and the record in this case, IT APPEARS THAT:

1. On January 24, 2013, a jury found Defendant guilty of two counts of
Rape Second Degree and one count of Rape Fourth Degree for acts that occurred
when the victim was less than 16 years old.? At trial, the State introduced DNA
evidence. The State’s DNA expert testified that “DNA testing established a greater
than 99.9998 percent probability that Defendant was the father of the victim's
child.”* On April 12, 2013, Defendant was sentenced to an excess of 20 years of

unsuspended time at Level V.*

 

‘DI. 136.

* DI. 33.

3 State v. Gordon, 2016 WL 5853591, at *1 (Del. Super. Sept. 8, 2016),
“DLL 43.
ys In the instant Motion, Defendant requests a new trial pursuant to
Superior Court Criminal Rule 33 on the basis of newly discovered evidence.’ The
allegedly newly discovered evidence consists of a recent National Institute of
Standards and Technology study regarding DNA testing (“NIST Study”) and Mills
v. Barnard. a 2017 case from the United States Court of Appeals for the Sixth
Circuit.’

3. Under Rule 33, a motion for new trial based on newly discovered
evidence must be brought within 2 years of final judgment. The Delaware Supreme
Court affirmed the judgment of conviction in this case more than 5 years ago.®
Defendant’s request for a new trial pursuant to Rule 33 is, therefore, DENIED.

4, More than 2 years after the judgment of conviction is final, the
appropriate mechanism to seek a new trial based on newly discovered evidence is a
motion for postconviction relief filed under Superior Court Criminal Rule 61.2
Assuming arguendo Defendant sought relief under Rule 61, the Motion is

procedurally barred.

 

> DI. 136.

° 869 F.3d 473 (6th Cir. 2017).

DLL 136.

8 Gordon v. State, 2013 WL 6569705 (Del. Dec. 11, 2013).

” Super. Ct. Crim. R. 61(a) (“This rule governs the procedure on an application . . . to set aside the
judgment of conviction.”).
> Defendant previously filed a motion for postconviction relief pursuant
to Rule 61." The Court denied that motion.'' Pursuant to Rule 61(d)(2), a second
or subsequent motion “shall be summarily dismissed, unless the movant was
convicted after a trial and the motion” pleads with particularity either: (1) “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 (2) “that a
new rule of constitutional law, made retroactive 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.”!?

6. On the subject of new evidence of actual innocence, Defendant
principally relies upon allegations that the DNA report produced in his case
“mistakenly or intentionally mischara[c]terized the DNA evidence.”"? Defendant
has asserted his mistaken belief that the DNA evidence in his case is exculpatory
many times.'4

a The DNA evidence in Defendant’s case was introduced at trial, where

it showed a greater than “99.9998 percent probability that Defendant was the father

 

D1. 101.

DT. 123; see also Gordon, 2016 WL 5853591.
2 Super. Ct. Crim. R. 61(d)(2).

3D I. 136.

'4 See, e.g., D.I. 49, 71-75, 79-81, 101, 134.
of the victim’s child.”'® Moreover, the DNA expert was subject to cross-
examination, and defense counsel elicited testimony making clear the limitations of
the DNA evidence.’® Thus, the DNA evidence is not new and does not support an
inference that he is innocent in fact. Therefore, Defendant’s arguments related to
the DNA evidence produced at trial do not satisfy the stringent pleading
requirements of Rule 61(d)(2)(i).

8. In an effort to satisfy the pleading requirements of Rule 61(d)(2)(a),
Defendant points to the NIST Study as new evidence, not available at trial. The
NIST Study is an interlaboratory study involving DNA mixture interpretation.'” It
does not concern the Office of the Chief Medical Examiner (“OCME”) or the DNA
testing performed in this case.'® Defendant’s argument that the NIST Study calls
into question the DNA testing performed by the OCME in this case is belied by the
Andrews International Report (a review of the OCME) that Defendant submitted in

support of his Amended Motion for Postconviction Relief. !9 Therefore, for whatever

 

'S State v. Gordon, 2016 WL 5853591, at *1 (Del. Super. Sept. 8, 2016); see also Gordon v. State,
2013 WL 6569705, at *2 (Del. Dec. 11, 2013).

'® Gordon, 2016 WL 5853591, at *1,

'” James M. Butler, et al., NIST interlaboratory studies involving DNA mixtures (MIX05 and
MIX 13): Variation observed and lessons learned (2018).

18 Td. at 93 (explaining “that variation observed in DNA mixture interpretation cannot support any
broad claims about ‘poor performance’ across all laboratories involving all DNA mixtures
examined in the past.”).

DI. 101, Ex. H. In his Report and Recommendation which the Court affirmed, the
Commissioner noted that the Andrews Report gave “stellar reviews to the OCME unit which
performed Defendant’s DNA testing” and nothing in the Andrews Report called “into question the
findings produced by the OCME DNA Unit.” D.I. 112, at 34.

4
purpose the NIST Study may have been used at trial, it does not establish a strong
inference that Defendant is actually innocent and does not satisfy the stringent
pleading requirements of Rule 61(d)(2)(i).

9. Finally, in support of his conclusion that his request is not procedurally
barred, Defendant cites Mills v. Barnard2® Mills is a 42 U.S.C. § 1983 civil case
from the United States Court of Appeals for the Sixth Circuit arising from the
reversal of Mills’ criminal convictions. New DNA testing performed post-trial
excluded Mills as a contributor to the DNA samples tested and “called into question
the critical testimony of [the victim] at trial.”!

10. Although Defendant does not identify which subsection of Rule
61(d)(2) Mills purports to satisfy, a case from another jurisdiction, involving another
defendant, with different DNA testing does not constitute new evidence that
Defendant is “actually innocent in fact of the acts underlying the charges of which
he was convicted.”** Therefore, Defendant has not satisfied the stringent pleading
requirements of Rule 61(d)(2)(i).

11. Furthermore, Mills is not a case issued by the United State Supreme
\Court or the Delaware Supreme Court establishing “a new rule of constitutional

law, made retroactive to cases on collateral review... [that] applies to the movant’s

 

20 869 F.3d 473 (6th Cir. 2017).
*! Id. at 479 (citing Mills v. State, 2013 WL 6069276, at *26 (Tenn. Crim. App. Nov. 19, 2013)).
* Super. Ct. Crim. R. 61(d)(2)(i) (emphasis added).

5
case.””3 Therefore, Defendant has not satisfied the stringent pleading requirements
of Rule 61(d)(2)(ii).

11. For the foregoing reasons, to the extent that Defendant asserts a claim
under Rule 61 it is barred by Rule 61(d)(2) and is, therefore, SUMMARILY
DISMISSED.

IT ISSO ORDERED.

 

den, President Judge

 

Original to Prothonotary
ec: Anthony Gordon (SBI# 211789)
Abigail R. Layton, Esq., DAG

 

3 Id. 61(d)(2)(ii).
