             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



STATE OF DELAWARE                          )
                                           )
                                           )
                                           )
                     v.                    )
                                           )      ID No. 1011006903A
                                           )
JAMES HALL                                 )
                                           )
                     Defendant.            )
                                           )
                                           )
                                           )


                                  Submitted:October 2, 2015
                                   Decided:January 19, 2016



      Upon Defendant’s Motion for Postconviction Relief, SUMMARILY DISMISSED.
                Upon Conflict Counsel’s Motion to Withdraw, GRANTED.




Matthew Frawley, Esquire, Deputy Attorney General, Department of Justice, Carvel State
Building, 820 N. French Street, 7th Floor, Wilmington, DE 19801


James Hall, Wilmington, DE, pro se,SBI No. 531531, James T. Vaughn Correctional Center,
1181 Paddock Road, Smyrna, DE 199777
BRADY, J.
                            I. INTRODUCTION AND PROCEDURAL HISTORY

        Before the Court is a Motion for Postconviction Relief filed pursuant to Superior Court

Criminal Rule 61 (“Rule 61”) filed by James Hall (“Defendant”) on April 21, 2014. On August

2, 2011, a jury trial was conducted and Defendant was found guilty of Assault in the First Degree

and Possession of a Firearm During the Commission of a Felony. 1 Before trial, Defendant

waived his right to a jury trial on two counts of Possession of a Firearm by a Person Prohibited

(“PFBPP”) and at sentencing on March 16, 2012, the Court found Defendant guilty of these two

charges. 2

        On April 9, 2012, Defendant filed a direct appeal to the Delaware Supreme Court from

his conviction and sentence. 3 Defendant alleged that the Court erred by admitting evidence of

his nickname, “Nasty Nate” and by allowing Defendant to be described as “Nasty Nate” at his

jury trial. 4   Defendant argued that his nickname improperly suggested that he possessed a

criminal disposition. 5On March 12, 2013, the Delaware Supreme Court affirmed Defendant’s

convictions, finding that Defendant was not prejudiced by reference to his alleged nickname and

that it did not suggest to the jury that Defendant possessed a criminal propensity. 6

        On April 21, 2014, Defendant filed a Motion for Postconviction Relief alleging that his

trial counsel was ineffective for: (1) advising Defendant to waive his right to a jury trial on the

PFBPP charges; (2) for failing to interview or call witnesses at trial; (3) for failing to present

evidence that closed circuit cameras at the scene would show that the shooting never took place;

(4) for failing to prepare for trial; and (5) for not allowing Defendant to testify on his own behalf

1
   Jury Trial, State v. Hall, No. 1011006903A, Docket No. 40 (Aug. 4, 2011).
2
   Sentencing, State v. Hall, No. 1011006903A, Docket No. 53 (March 16, 2012).
3
  See Letter, State v. Hall, No. 1011006903A, Docket No. 55 (April 9, 2012).
4
  Hall v. State, 2013 WL 992550, at *1 (Del. March 12, 2013).
5
  Id.
6
  See Mandate, State v. Hall, No. 1011006903A, Docket No. 61 (April 2, 2013).

                                                       2
at trial. 7   Defendant’s last allegation is that there was prosecutorial misconduct at trial,

specifically, the prosecutor improperly vouched for the evidence. 8

          On June 30, 2014, this Court ordered the Office of Conflict Counsel to appoint counsel

to represent Defendant in his Motion for Postconviction Relief and John Barber, Esquire,

(“Conflict Counsel”) was appointed to represent Defendant. 9 On November 19, 2014, Conflict

Counsel filed a Motion to Withdraw as Counsel 10 and on December 12, 2014, Defendant

responded to Conflict Counsel’s motion. 11 On May 4, 2015, the State responded to Defendant’s

Motion for Postconviction Relief and Conflict Counsel’s Motion to Withdraw. 12 On August 28,

2015, this Court notified Defendant that he had until October 2, 2015, to file any additional

submissions. 13 On October 2, 2015, the Defendant submitted a reply to the State’s Response. 14

                                                   II. FACTS

         Defendant was charged in relation to two incidents that occurred two days apart. On

November 6, 2010, it was alleged that Defendant attempted to rob Alex Bush (“Bush”) at

gunpoint as Bush existed a residence he was visiting. Bust struggled with Defendant and

Defendant’s gun was discharged. Bush was unharmed and then fled the scene. On November 8,

2010, Bush was walking in the area of Pleasant Street in Wilmington, Delaware, when he saw

Defendant. After Defendant saw Bush, he drew a handgun and shot Bush in the ankle as Bush

tried to flee. Bush initially provided police with Defendant’s nickname, “Nasty Nate” and later

identified Defendant from a photographic lineup. At the time of both incidents, Defendant was a



7
  Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
8
  Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
9
  Order, State v. Hall, No. 1011006903A, Docket No. 66 (June 30, 2014).
10
   Mot. to Withdraw as Counsel, State v. Hall, No. 1011006903A, Docket No. 76 (Nov. 19, 2014).
11
   Def.’s Response, State v. Hall, No. 1011006903A, Docket No. 77 (Dec. 12, 2014).
12
   State’s Response, State v. Hall, No. 1011006903A, Docket No. 79 (May 4, 2015).
13
   Letter, State v. Hall, No. 1011006903A, Docket No. 80 (Aug. 28, 2015).
14
   Def.’s Response, State v. Hall, No. 1011006903A, Docket No. 81 (Oct. 2, 2015).

                                                        3
person prohibited from possessing a firearm due to a 2007 felony conviction for the charge of

Possession with Intent to Deliver Heroin.

                                                III. DISCUSSION

                                             A. Procedural Bars

         Before addressing the merits of Defendant’s claims, the Court must apply the procedural

bars set forth in Superior Court Criminal Rule 61(i) in effect at the time the motion was filed.15

Pursuant to Rule 61, this Court must reject a motion for postconviction relief if it is procedurally

barred. That Rule provides that a motion is procedurally barred if the motion is untimely,

repetitive, a procedural default exists, or the claim has been formerly adjudicated. 16Rule 61(i)(1)

provides that a motion for postconviction relief is time barred when it is filed more than one year

after the conviction has become final or one year after a retroactively applied right has been

newly recognized by the United States Supreme Court or by the Delaware Supreme Court. 17

Rule 61(i)(2) provides that a motion is repetitive if the defendant has already filed a Motion for

Postconviction Relief and that a claim is waived if the defendant has failed to raise it during a

prior postconviction proceeding, unless “consideration of the claim is warranted in the interest of

justice.” 18Rule 61(i)(3) bars consideration of any claim “not asserted in the proceedings leading

to the conviction” unless the petitioner can show “cause for relief from the procedural default”

and “prejudice form violation of the movant’s rights.” 19 Rule 61(i)(4) provides that any claim

that has been adjudicated “in the proceedings leading to the judgment of conviction, in an appeal,




15
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
16
   See Super. Ct. Crim. R. 61(i)(1)-(4).
17
    Super. Ct. Crim. R. 61(i)(1).
18
    Super. Ct. Crim. R. 61(i)(2).
19
    Super. Ct. Crim. R. 61(i)(3).

                                                      4
in a postconviction proceeding, or in a federal habeas corpus proceedings” is barred “unless

reconsideration of the claim is warranted in the interest of justice.” 20

         If a procedural bar exists, the Court will not consider the merits of Defendant’s

postconviction claim unless Defendant can show that the exception found in Rule 61(i)(5)

applies. 21 Rule 61(i)(5) provides that the procedural bars can be overcome if Defendant makes

out a “colorable claim that there was a miscarriage of justice because of a constitutional violation

that undermines the fundamental legality, reliability, integrity or fairness of the proceedings

leading to the judgment of conviction.” 22

         Defendant’s Motion for Postconviction relief is procedurally barred. Rule 61(i)(1)

provides that a motion is time barred if it is filed more than one year after the date the conviction

became final or the date a retroactively applicable right is newly recognized. 23 Defendant has

failed to identify a retroactively applicable right that has been newly recognized that would

render his conviction invalid, so that exception is inapplicable. Rule 61(m) provides that a

“judgment of conviction is final for the purposes of this rule . . . when the Supreme Court issues

a mandate or order finally determining the case on direct review.” 24The Delaware Supreme

Court affirmed the Defendant’s conviction on March 12, 2013. Defendant filed the instant

motion on April 21, 2014, more than one year after his conviction became final.

         Defendant’s claim of prosecutorial misconduct is also procedurally barred. Rule 61(i)(3)

states that “[a]ny ground for relief that was not asserted in the proceedings leading to the judge

of conviction, as required by the rules of this court, is thereafter barred.” 25 Defendant failed to



20
    Super. Ct. Crim. R. 61(i)(4).
21
   See Super. Ct. Crim. R. 61(i)(5).
22
   Id.
23
    Super. Ct. Crim. R. 61(i)(1).
24
    Super. Ct. Crim. R. 61(m)(2).
25
    Super. Ct. Crim. R. 61(i)(3).

                                                   5
raise claims of prosecutorial misconduct in his direct appeal to the Delaware Supreme Court and

therefore it is procedurally defaulted. 26 Defendant’s claim is also conclusory because he fails to

identify what comments were objectionable, why they would be improper, and how he was

prejudiced by them. 27

         Finally, Defendant has failed to provide any basis, and the record is devoid of any, that

would permit this Court to consider whether any exception to the procedural bars would apply.

Therefore, Defendant’s Motion for Postconviction Relief is SUMMARILY DISMISSED.

Having determined Defendant’s Motion for Postconviction Relief is procedurally barred,

Conflict Counsel’s Motion to Withdraw is GRANTED.

                                                B. Defendant’s Claims

         Although the Court need not address the merits of Defendant’s postconviction claims

because they are procedurally barred, the Court willbriefly discuss Defendant’s ineffective

assistance of counsel claims.

         Defendant’s first claim, that his attorney was ineffective for advising him to waive a trial

is without merit. To prevail on an ineffective assistance of counsel claim, a petitioner must show

that counsel’s performance was deficient and that the deficiency prejudiced the defendant. 28

         In the context of a waiver of the right to trial by jury, “the defendant bears the burden of

proving that his counsel was unreasonable and whether counsel’s deficiency prejudiced

defendant’s waiver of a trial by jury.” 29 If trial counsel is deficient in explaining to a defendant

their right to a jury trial and the consequences of waiving that right, trial counsel’s deficiency can



26
   Felton v. State, 2008 WL 308231, at *1 (Del. Feb. 1, 2008) (“[B]ecuase Felton’s claim of prosecutorial misconduct
was not raised in his direct appeal, it is procedurally defaulted.”) (citing Super. Ct. Crim. Rule 61(i)(3)).
27
    Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel. See Younger v.
State, 580 A.2d 552, 555 (Del. 1990).
28
   Strickland v. Washington, 446 U.S. 668, 687 (1984).
29
   State v. Taye, 2014 WL 785033, at *3 (Del. Super. Feb. 26, 2014).

                                                         6
be cured by the Court through a colloquy. 30 In order for a defendant to waive his right to a jury

trial, the waiver must be an intelligent and voluntary waiver in writing. 31 The waiver of the right

to a jury trial is considered intelligent and voluntary when defendant is aware of the nature of the

right and the implications of choosing to waive that right, which may be established when the

Court engages the defendant in a colloquy. 32

         The Court engaged Defendant in a thorough colloquy regarding his decision to sever the

charges and to waive a jury trial on the two counts of PFBPP. 33 The record reflects that

Defendant was aware of the nature of the right to have the issues heard at once and to have a jury

trial, the implications of choosing to waive those rights, and that these decisionswere solely

Defendant’s decision to make. 34 In addition, Defendant’s argument that, but for severing the

charges, Defendant would have been found guilty of one less charge of PFBPP is highly

speculative. It is quitepossible, had the jury heard Defendant’s prior criminal record, they would

have found him guilty on all charges. The Court finds that Defendant’s decision to sever the

charges and waive his right to a jury trial was knowingly and intelligently made. Even assuming,

arguendo, that trial counsel’s performance was deficient, the Court finds that this deficiency was

cured by the Court’s thorough colloquy.




30
   State v. Couch, 2007 WL 987403, at *4 (March 30, 2007).
31
   Davis v. State, 809 A.2d 565, 569 (Del. 2002).
32
   Id. at 569-72.
33
   The Court asked the Defendant, “[y]ou can choose to have those charges severed and go to trial on them
and set for trial at some other time, and I would do that, or you can choose to have the Court try those
offenses simultaneously with hearing the evidence of the other offenses in the case and waive your right to
jury trial as to those two offenses; do you understand that? . . . Now, your attorney has told me that you’re
willing to waive your right to jury trial on those two crimes and to have the Court decide whether the
evidence is sufficient to determine beyond a reasonable doubt that you committed those two offenses; is
that correct?” to which the Defendant responded “[y]es.” Trail Transcript Excerpt, State v. Hall, No.
1011006903A, Docket No. 58, at *16-17 (May 23, 2012).
34
   Trail Transcript Excerpt, State v. Hall, No. 1011006903A, Docket No. 58, at *16-17 (May 23, 2012).

                                                          7
         Defendant next argues that he had witnesses that could have attested to the fact that

defendant and Bush knew each other. 35                  Defendant further alleges that counsel failed to

interview or call witnesses at trial and that because of this, the outcome of the trial was

“altered.” 36The record is replete with trial counsel’s efforts to identify and locate defense

witnesses. 37 Clearly, trial counsel attempted to do so. The Court therefore finds that Defendant

has failed to establish that his trial counsel’s performance was deficient as to this claim, thereby

failing to meet the first prong of Strickland. 38Additionally, with the exception of establishing that

Bush and Defendant knew each other, Defendant does not elaborate what the witnesses would

have said. The claim is conclusory. 39

         Defendant further argues that the State and victim acknowledged that there were closed

circuit cameras at the scene and they captured nothing, and that, had his trial counsel “pursued

the fact that the shooting never took place as verified by cameras, the trial would have found

severe reasonable doubt . . .” 40 The record reflects that the jury was aware, in fact, that the

closed circuit camera did not show that the event occurred. 41 Defendant has failed to establish




35
   Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014). Of
course, it is obvious the victim knew the Defendant as he gave police Defendant’s identity by means of the
nickname by which he knew him.
36
   Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
37
   See Letter, Exhibit I toMot. to Withdraw as Counsel, State v. Hall, No. 1011006903A, Docket No. 76 (Nov. 19,
2014); see alsoLetter, Exhibit J toMot. to Withdraw as Counsel, State v. Hall, No. 1011006903A, Docket No. 76
(Nov. 19, 2014); Letter, Exhibit K toMot. to Withdraw as Counsel, State v. Hall, No. 1011006903A, Docket No. 76
(Nov. 19, 2014);Letter, Exhibit L to Mot. to Withdraw as Counsel, State v. Hall, No. 1011006903A, Docket No. 76
(Nov. 19, 2014).
38
   See Strickland, 446 U.S. at 687.
39
    Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel. See Younger, 580
A.2d at 555.
40
   Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
41
   See Trial Transcript, State v. Hall, No. 1011006903A, Docket No. 59, at 175 (May 24, 2012) (“Q: As part of your
investigation did you try to determine if any cameras or anything that existed near any of these shootings? A: Yes, I
did . . . None of the cameras captured any of the incidents at all.”).

                                                          8
that any prejudice could have resulted from this allegation. The Court finds that Defendant has

failed to meet the second prong of Strickland. 42

        Defendant next argues that the victim’s testimony contradicted what was related in the

police reports and that if trial counsel had contested the statements, the outcome of the trial

would have been different. 43 However, the record reflects that trial counsel vigorously cross-

examined the State’s witnesses and argued the deficiencies in the State’s case. 44 The Court finds

not merit in Defendant’s argument.

        Defendant further argues that trial counsel was ineffective for not reading all the jury

instructions. 45Both the State’s attorney and trial counsel at one point acknowledged that they had

not had time to review all the proposed jury instructions. 46 However, the record clearly reflects

that trial counsel had reviewed the instructions and successfully argued for changes in the

instructions prior to charging the jury. 47Further, Defendant has not claimed how this alleged

deficiency prejudiced him in any way.Defendant has failed to establish that trial counsel’s

performance was deficient and that Defendant was prejudiced, as required by Strickland. 48

        Defendant’s final argument is that that he “pleaded with counsel to testify on his own

behalf and expose victim’s lies about not knowing each other and exposing facts that victim and

victim’s cousin had a grudge against defendant.” 49 However, the record reflects that a thorough




42
   See Strickland, 446 U.S. at 687.
43
   Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
44
   See generally Trial Transcript, State v. Hall, No. 1011006903A, Docket No. 59 (May 24, 2012). Trial counsel in
closing argument focused his argument on the fact that the sole evidence against the Defendant was the testimony of
the victim and the officer’s testimony and that, given what counsel contended were significant deficiencies in the
creditability of the victim, the evidence was not sufficient to find the Defendant guilty beyond a reasonable doubt.
Trial Transcript, State v. Hall, No. 1011006903A, Docket No. 59, at *214-222 (May 24, 2012).
45
   Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
46
    Trial Transcript, State v. Hall, No. 1011006903A, Docket No. 59, at *146 (May 24, 2012).
47
    Trial Transcript, State v. Hall, No. 1011006903A, Docket No. 59, at *200-02 (May 24, 2012).
48
   See Strickland, 446 U.S. at 687.
49
   Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).

                                                         9
 colloquy was conducted by the Courtwith the Defendant regarding testifying at trial. The

 Defendant acknowledged that it was his decision alone not to testify. 50 This claim has no merit.

                                                     V. CONCLUSION

             For the reasons stated above, Defendant’s Motion for Postconviction Relief is

 SUMMARILY DISMISSED and Conflict Counsel’s Motion to Withdraw is GRANTED.

 Conflict Counsel has a continuing duty, which is limited to notifying the Defendant of the

 Court’s ruling and advising the Defendant of the right to appeal, the rules for filing a timely

 notice of appeal, and that it is the Defendant’s burden to file a notice of appeal if desired.

             IT IS SO ORDERED.


                                                      _________/s/_____________________
                                        M. Jane Brady
                                        Superior Court Judge


 50
      See Trial Transcript, State v. Hall, No. 1011006903A, Docket No. 59, at 202-03 (May 24, 2012).
             THE COURT: Mr. Hall you’ve had an opportunity to meet with [trial counsel] throughout this
             process and to prepare with her for this trial. You consulted with her, provided her information,
             and she has advised you, repeatedly, I have observed throughout the trial, and you have had
             conversation with her and written notes back and forth, and you have relied a agree deal upon her
             judgment and experience in how this case has progressed.
                      The decision whether or not to testify in a criminal trial, however, is a constitutionally
             protected right, and it’s yours and yours’ alone. And while you may rely upon her advice or her
             assessment of – an evaluation of circumstances and the facts in your case, it is solely your decision
             to make.
                      If you take the stand and testify, the prosecution will have an opportunity to cross
             examine you, and any prior criminal history that might be admissible to challenge your credibility
             would be able to be brought out. I don’t know if you have that or not, I don’t know your prior
             criminal history.
                      If you do not take the stand, the jury will be instructed they cannot hold that against you,
             and that it is the State’s burden to prove all of the elements of these offenses, and you have no
             obligation to present any evidence or testimony, whatsoever, as part of your defense.
                      I’m sure that you have discussed this with [trial counsel].
             THE DEFENDANT: Yes.
             THE COURT: And, as a result of that conversation and my giving you the information I just
             have, have you made a decision about whether you wish to testify in this case or not?
             THE DEFENDANT: Yes.
             THE COURT: And, what is your decision, sir?
             THE DEFENDANT: Not to.
             THE COURT: you decided not to testify?
             THE DEFENDANT: Yes.
Id.

                                                              10
