IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID. No. 1209013919
' ln and for Kent County
v.
MICAH O. CUFFEE, : RKl 2- l 0-0534-01
: RKlZ-lO-0536-01
Defendant. : RKl 2- l 0-0557-01
ORDER

Subrnitted: November 8, 2017
Decided: November 13, 2017

On this 13th day of November, 2017, upon consideration of the Defendant’s
Amended Motion for Postconviction Relief, the Comrnissioner’s Report and
Recommendation, and the record in this case, it appears that:

l. The defendant, Micah Cuffee (“Cuffee”) Was found guilty, following a jury trial
on August 7, 2013, of Attempted Theft of a Senior, l l Del. C. § 841; Conspiracy Second
Degree, ll Del. C. § 512; and Criminal Mischief < $1,000, ll Del. C. § 811. Prior to
sentencing, the State filed a motion to declare Mr. Cuffee an habitual offender pursuant
to ll Del. C. § 4214(a). On October 25, 2013, Mr. Cuffee Was sentenced to eight years
of Level V incarceration for the Attempted Theft charge, two years of Level V, suspended
for one year at Level Ill Probation, for the Conspiracy Second Degree charge, and fined
for the Criminal Mischief conviction.

2. Mr. Cuffee, through counsel, appealed his conviction to the Delaware Suprerne
Court. The Suprerne Court, afflrrned his conviction and sentence on October l4, 2014.

3. Therea&er, Mr. Cuffee filed a Motion for Post Conviction Relief and thereafter
an amended motion. The relevant procedural history is set forth in the Commissioner’s

Report and Recommendation of July 18, 2017, attached hereto as Exhibit “A”.

4. Mr. Cuffee filed a notice of appeal of the Commissioner’s Report and
Recommendation that the Court considers to be a motion for reconsideration of her
report. In response, the State argues that Mr. Cuffee sets forth no additional arguments
other than those already considered by the Commissioner, Which Were properly rej ected.
The Court agrees.

NOW, THEREFORE, after a de novo review of the record in this action, and
for the reasons stated in the Commissioner’s Report and Recommendation dated July
18“‘, 2017,

IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is hereby adopted by the Court in its entirety.
Accordingly, Movant’ s Amended Motion for Postconviction Relief pursuant to Superior

Court Criminal Rule 61 is hereby DENIED.

/s/ Jeffrey.l Clark
Judge

JJc/jb

EXhibit A

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 1209013919
In and for Kent County

STATE OF DELAWARE

V.

RK12-10-0536-01
RK12-10-0557-01

)

)

)

) RK12-10-0534-01
MICAH o. CUFFEE )
)
)

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Jason C. Cohee, Esq., Deputy Attorney General, Department of Justice, for the State
of Delaware.

Micah O. Cuffee, Pro se.

FREUD, Commissioner
August 7, 2017

The defendant, Micah O. Cuffee (“Cuffee”) was found guilty, following a jury
trial on August 7, 2013, as charged, of one count of Attempted Theft of a Senior, 11
Del. C. § 841; one count of Conspiracy in the Second Degree, 11 Del. C. § 512; and
one count of Criminal Mischief < $1,000, 11 Del. C. § 811. A presentence

investigation was ordered by the Court. The State filed a motion to declare Cuffee a

State v. Cu/?"ee
ID No. 1209013919
August 7, 2017

habitual offender pursuant to 11 Del. C. § 42l4(a).l The motion was granted on
October 15, 2013. Cuffee was “...sentenced to eight years of Level V incarceration for
Attempted Theft, two years of Level V incarceration, suspended for one year of Level
Ill probation, for Conspiracy in the Second Degree, and a fine of $250 for Criminal
Mischief.”2

Cuffee waived his right to counsel on appeal and was permitted to represent
himself in his appeal to the Delaware Supreme Court. The issues on appeal were noted
by the Court as follows:

Cuffee claims: (i) the Superior Court erred in allowing the State to amend
the indictment before trial and during trial; (ii) the Superior Court erred
in admitting a picture of Cuffee the night of his arrest; (iii) the prosecutor
made improper statements during his opening and closing arguments; (iv)
the State committed discovery and Brady violations by failing to produce
a recording of police radio communications; and (v) Cuffee was deprived
of his right to self-representation3

The Supreme Court, on October 14, 2014, affirmed Cuffee’s conviction and sentence

finding each of his claims meritless.4

On August 11, 2015 Cuffee filed a Motion for Postconviction Relief pursuant to Superior

Court Rule 61. He then filed a motion to amend the motion for postconviction relief. On October

 

It is noted that Cuffee hired new counsel for the sentencing and for filing a motion for new
trial.

2 Cu]j‘ee v. State, 2014 WL 5254614 (Del. Supr.), at *2.
3 Cu]j`"€e, 2014 WL 5253614, at *l

4 Id.

State v. Cuffee
ID No. 1209013919
August 7, 2017

20, 2015 Cuffee Was granted permission to file an Amended Motion to replace the original motion.

The Amended Motion for Postconviction Relief and Memorandum were filed on December 29, 2015
to replace the motion filed on August 11, 2015. The pending amended motion alleges several

grounds for relief including ineffective assistance of Trial Counsel.

FACTS
Following are the facts as set forth by the Delaware Supreme Court:

(2) On the night of September 19, 2012, a resident of a
development located near Walker Road in Dover heard a
vehicle, a screeching, metallic noise like something was
being dragged, and voices outside the back of her
townhouse. Office buildings, which were closed for the
day, were located behind the caller’s townhouse. The
resident called 911 to report the noises at approximately
10:30 p.m. Corporal Gregory Hopkins and other members
of the Dover police responded to the 911 call.

(3) Initially, Hopkins and the other police officers checked
businesses and communities along Walker Road for the
source of the reported noises. Hopkins checked 1155
Walker Road and did not see anything there. Hopkins then
went to the 911 caller’s townhouse and spoke to her about
what she had heard in order to pinpoint the location of the
noises. Based on that conversation, Hopkins drove back to
1155 Walker Road, which was located behind the
townhouse.

(4) Hopkins walked around the building located at 1155
Walker Road and saw four, disconnected air conditioning
units behind the building and near a shed. The air
conditioners had been cut from the building located at 1 155

State v. Cuffee
ID No. 1209013919
August 7, 2017

Walker Road. Hopkins reported his findings and it was
decided that he would stay in the area to conduct
surveillance in case someone returned to pick up the
disconnected air conditioners. Other officers set up a
perimeter near Walker Road.

() Shortly after Hopkins concealed himself under some trees
to monitor the area where the air conditioners were located,
he observed a maroon minivan, with no headlights on,
driving in from Walker Road. Afcer driving into the parking
lot that was closest to the disconnected air conditioners, the
minivan began backing up over a bed of rocks near the air
conditioners and became stuck.

(6) Hopkins watched the minivan occupants attempt to
remove the minivan from the rocks. They were unsuccesshal
and called somebody for assistance. Although Hopkiris
could see the occupants of the minivan walk around it, he
could not see them at all times. Hopkins observed a white
pick-up truck drive in from Walker Road and tow the
minivan off of the rocks. Cuffee’s cousin, Walter Cuffee,
testified that Cuffee called him the night of September 19,
2012 for assistance. Walter Cuffee drove his white pick-up
to Walker Road, where he testified that he picked up Cuffee
and Mark McDonald, and then helped Cuffee and
McDonald tow the minivan iiom the rocks. After Hopkins
watched the white pick-up truck and maroon minivan leave
the parking lot, he saw that the disconnected air conditioners
were no longer where he had previously seen them.
Hopkins radioed police units on Walker Road to report that
the air conditioners had been taken and that both the white
pick-up truck and maroon minivan should be stopped.
Hopkins then walked around the area and saw that the air

State v. Cu]j‘ee
ID No. 1209013919
August 7, 2017

conditioners had been moved to the other side of the shed.

(7) Police stopped the white pick-up truck and maroon
minivan. Cuffee was driving the minivan and McDonald
was the passenger. Both men were arrested. In a search of
the minivan, the police found a pair of bolt cutters,
Channellock pliers, a flashlight, and two pairs of work
gloves. All of the seats, except for the driver seat and front
passenger seat, had been removed nom the minivan.
Cuffee’s daughter testified that she owned the minivan and
that the equipment in the minivan belonged to her husband.5

CUFFEE’S CONTENTIONS

On April 6, 2016, Cuffee filed a “Motion to Amend Postconviction.” He requested “...that
this Honorable Court to allow him to amend a portion of his postconviction to correct the grounds
raised in the Postconviction to correlate with the attached Memorandum of Law and Supporting
Facts. ...the Defendant rushed to get the Amended Motion filed [on December 29, 2015] according
to the Court’s Order. ln doing so, the Defendant failed to include 3 grounds that Were in his
Memorandum of Law and Supporting Facts. ...The Defendant is not seeking to amend any of the
supporting facts in his Memorandum of Law and Supporting facts.” The Court granted the motion
to amend and on April 6, 2016 Cuffee filed a Second Amended Motion for Postconviction Relief

listing the grounds as follows:

Ground I: The Court erred When it allowed the State to amend the
Indictment.
Please see attached Memorandum of Law and supporting
facts.

Ground II: Prosecutorial Misconduct.

 

5 Cujj‘ee v. State, 2014 WL 5254614 (Del. Supr.), at *1-2.

5

State v. Cuffee
ID No. 1209013919
August 7, 2017

Ground Ill:

Ground IV:

Ground V:

Ground VI:

A. Prosecutor made false and misleading statements to jury.
B. Improper vouching by prosecutor.

C. Improper vouching for State case.

D. Improper rebuttal.

E. Prosecutor allowed police to testify falsely.

F. Prosecutor tampering With evidence.6

The Court failed to give an effective waiver Which deprived
Defendant of his right to represent hirnself.

Please see attached Memorandum of Law and supporting
facts.

The Trial Judge erred When he allowed the State to introduce
pictures of copper tubing into evidence that was not going to
be introduced as evidence and Was not part of the crime scene.
Please see attached Memorandum of Law and supporting
facts.

lneffective assistance of counsel.
Please see attached Memorandum of Law and supporting
facts.

Prosecutor violated Superior Court Rule 16 discovery and
Brady material

This ground was mistakenly listed as IV when it is ground VI.
A. Prosecutor Withheld evidence of a trali‘ic ticket.

B. Investigating officer notes not given to defense.

C. State withheld 911 records.

D. State withheld evidence regarding another truck.7

These are the grounds I Will address in the Report and Recommendation.

DISCUSSION

Under Delaware Law the Court must first determine whether Cuffee has met the

 

6 A - F is a list of my summary of Cuffee’s allegations of prosecutorial misconduct

7 A - D is a list of my summary of Cuffee’s allegations of prosecutorial misconduct.

6

State v. Cu]j”ee
ID No. 1209013919
August 7, 2017

procedural requirements of Superior Court Criminal Rule 61(i) before it may consider
the merits of the postconviction relief claims.8 Under Rule 61 , postconvic-tion claims
for relief must be brought within one year of the conviction becoming fmal.9 Cuffee’s
motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the
motion. As this is Cuffee’s initial motion for postconviction relief, the bar of Rule
61(i)(2), which prevents consideration of any claim not previously asserted in a
postconviction motion, does not apply either.

Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (1) cause for the
procedural fault and (2) prejudice from a violation of the movant’s rights.10 The bars
to relief are inapplicable to a jurisdictional challenge or to a colorable claim or
miscarriage of justice stemming from a constitutional violation that “undermines the
fundamental legality, reliability, integrity or fairness of the proceeding leading to the

judgment of conviction.”‘l

 

8 Bailey v. State, 588 A.Zd 1121, 1127 (Del. 1991).
9 Super. Ct. Crirn. R. 61(i)(1).
10 Super. Ct. Crirn. R. 61(i)(3).

“ Super. Ct. Crim. R. 61(i)(5).

State v. Cu]j"ee
ID No. 1209013919
August 7, 2017

Cuffee’s first, second,12 fourth, and sixth13 grounds for relief are simply
restatements of the arguments he previously raised in his direct appeal. Superior Court
Criminal Rule 61 (i)(4) bars any ground for relief that was formerly adjudicated unless
reconsideration of the claim is warranted in the interest of justice. 14 Cuffee raised these
claims pro se before the Supreme Court and the Supreme court found them meritless.
Cuffee has made no attempt to argue why reconsideration of these claims are warranted
in the interest of justice. The interest of justice exception of Rule 61(i)(4) has been
narrowly defined to require that the movant show that “subsequent legal developments
have revealed that the trial court lacked the authority to convict or punish” him.15
Cuffee has made no attempt to demonstrate why this claim should be revisited. This
Court is not required to reconsider Cuffee’s claims simply because they are “refmed
or restated.”16 For this reason, these grounds for relief should be dismissed as
previously adjudicated under Rule 61 (i)(4).

Cuffee’s second ground for relief, subparts D and F, alleges the State made

 

12 Subparts A, B, C and E were all previously adjudicated on appeal. Only subparts D and
F of Ground ll were not raised earlier.

13 Subparts C and D of Ground Vl were raised on appeal. Only subparts A and B Were not
raised earlier.

14 Super. Ct. Crim. R. 61(i)(4).

15 Maxion v. s¢aze, 686 A.2d 148, 150 (Dei. 1996) (quonng Flamer v_ s¢a¢e, 585 A.2d 736,
746 (Dei. 1990)).

16 Riley v. State, 585 A.2d 719, 721 (Del. 1990) rev’d on other grounds, Riley v. Taylor, 277
F.3Cl 261 (3€1 CiI'. 2001).

State v. Cujj‘ee
ID No. 1209013919
August 7, 2017

improper rebuttal argument and tampered with evidence. The record contradicts this
vague assertion. Furthermore Cuffee gives no cause for his failure to have raised this
claim earlier. lt is therefore procedurally barred.

Likewise Ground IV, alleging that the Trial Court erred in allowing a photo in
and Ground Vl subparts A and B alleging prosecutorial Brady violation were not raised
on appeal. Again Cuffee has failed to show cause for his failure to have raised these
issues on appeal and consequently they are procedurally barred by Superior Court
Criminal Rule 61 (i)(3).

Only Cuffee’s fifth ground for relief is premised to some degree, on allegations
of ineffective assistance of counsel, These types of claims are not normally subject to
the procedural default rule, in part because the Delaware Supreme Court will not
generally hear such claims for the first time on direct appeal. For this reason, many
defendants, including Cuffee, allege ineffective assistance of counsel in order to
overcome the procedural default.

However, this path creates confusion if the defendant does not understand that
the test for ineffective assistance of counsel and the test for cause and prejudice are
distinct, albeit similar, standards.17 The United States Supreme Court has held that:

[i]f the procedural default is the result of ineffective assistance of counsel,
the Sixth Amendment itself requires that responsibility for the default be
imputed to the State, which may not “[conduct] trials at which persons
who face incarceration must defend themselves without adequate legal
assistance”[;] [i]neffective assistance of counsel, then, is cause for a

 

17 State v. Gattis, 1995 Del. Super. LEXIS 399, at *13.

9

State v. Cujj‘ee
ID No. 1209013919
August 7, 2017

procedural default.18

A movant Who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the
mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant
must engage in the two part analysis enunciated in Strickland v. Washingt0n19 and
adopted by the Delaware Supreme Court in Albury v. State.20

The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness.21
Second, under Str‘ickland the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings

2

would have been different, that is, actual prejudice.2 In setting forth a claim of

ineffective assistance of counsel, a defendant must make and substantiate concrete

 

18 Murray v. Carrz'er, 477 U.S. 478, 488 (1986).

19 466 U.S. 668 (1984).

20 551 A.2d 53, 58(De1. 1988).

21 466 U.S. at 687-88; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

22 466 U.S. at 694; see Dawson, 673 A.2d at 1190;Accom', e.g., Zebroski v. State, 822 A.2d
1038, 1043 (Del. 2003); Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Steckel v. State, 795 A.2d
651, 652 (Del. 2002);J0hI/1S0n V. Sial‘e, 813 A.2d 161, 167 (D€l. 2001); Bl`alaC//l v. Stat€, 773 A.2d
383, 387 (D€l. 2001); Oul‘ten V. Stale, 720 A.2d 547, 552 (Del. 1998); Skl'nI/lel” v. State, 607 A.2d
1170, 1172 (Del. 1992); Flamer v. Siate, 585 A.2d 736, 753-754 (D€l. 1990).

10

State v. Cujfee
ID No. 1209013919
August 7, 2017

allegations of actual prejudice or risk summary dismissal.23

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.24 However, the showing of prejudice is so central to
this claim that the Strickland court stated "[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."25 In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel's representation Were true, the Court may dispose of the claim on this basis

alone.26

Furthermore, the defendant must rebut a “strong presumption” that trial
counsel’s representation fell within the “wide range of reasonable professional
assistance,” and this Court must eliminate nom its consideration the “distorting effects
of hindsight when viewing that representation.”27

In the case at bar, Cuffee attempts to show cause for his procedural default by

making merely conclusory assertions of ineffectiveness of counsel, In regards to

 

23 See, e.g., Outten v. State, 720 A.2d 547, 552 (Del. 1998); Righter v. State, 704 A.2d 262,
263 (Del.1997); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Skinner v. State, 1994 Del.
LEXIS 84; Brawley v. State, 1992 Del. LEXIS 417; Younger v. State, 580 A.2d 552, 556 (Del.
1990); Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).Acc0rcl1 Wells v. Petsock, 941 F.2d 253,
259-60 (3d Cir. 1991).

24 466 U.S. at 687.
25 Ia'. at 697.
26 State v. Gattis, 1995 Del. Super. LEXIS 399, at *13.

27 466 U.s. ar 689; Dawson, 673 A.2d at 1190; Wrighz v. sra¢e, 671 A.2d 1353, 1356 (Dei.
1996).

11

State v. Cuffee
ID No. 1209013919
August 7, 2017

prejudice, Cuffee makes little if any attempt to show counsel’s actions harmed him.
Under the circumstances of this case, Cuffee’s claims are meritless. The Supreme
Court found no error in the trial. The record indicates that Cuffee’s trial attorney did
in fact adequately prepare for the trial and that the trial was fair.28 Cuffee has utterly
failed to demonstrate prejudice as a result of his Trial Counsel’s alleged failure. This
failure is fatal to Cuffee’s motion. His motion is therefore procedurally barred.29
Furthermore, as persuasively noted by Cuffee’s Trial Counsel in his detailed and
comprehensive affidavit all the actions Cuffee complains about were made for strategic
and well founded reasons under the circumstances of the case. I find no error in Trial

Counsel’s actions nor any prejudice to Cuffee as a result.

 

28 See Affidavit of Counsel (D.I. 87) for a complete overview of Counsel’s preparation for
trial.

29 See, e.g. Wright, 671 A. 2d at 1356; Wright v. State, 1992 Del LEXIS 62; Brawley v.
Sl`al‘€, 1992 Del. LEXIS 417.

12

State v. Cujj‘"ee
ID No. 1209013919
August 7, 2017

CONCLUSION
After reviewing the record in this case, it is clear that Cuffee has failed to avoid
the procedural bars of Rule 61(i). Consequently, I recommend that Cuffee’ s
postconviction motion be denied as procedurally barred by Rule 61 (i)(3) for failure to

prove cause and prejudice and Rule 61 (i)(4) as previously adjudicated on direct appeal.

/Q/ Andren l\/[ Freiid
Commissioner

Al\/[F/dsc

13

