Date: 01-20-2016

Case Style: State of Delaware v. Hall

Case Number: 1011006903

Judge: M. Jane Brady

Court: IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Plaintiff's Attorney: Matthew Frawley, Esquire

Defendant's Attorney: James T. Vaughn

Description: 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
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,
15Younger v. State, 580 A.2d 552, 554 (Del. 1990). 16See 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).
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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). 21See Super. Ct. Crim. R. 61(i)(5). 22Id. 23 Super. Ct. Crim. R. 61(i)(1). 24 Super. Ct. Crim. R. 61(m)(2). 25 Super. Ct. Crim. R. 61(i)(3).
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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
26Felton 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). 28Strickland v. Washington, 446 U.S. 668, 687 (1984). 29State v. Taye, 2014 WL 785033, at *3 (Del. Super. Feb. 26, 2014).
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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.
30State v. Couch, 2007 WL 987403, at *4 (March 30, 2007). 31Davis v. State, 809 A.2d 565, 569 (Del. 2002). 32Id. at 569-72. 33The 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). 34Trail Transcript Excerpt, State v. Hall, No. 1011006903A, Docket No. 58, at *16-17 (May 23, 2012).
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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
35Def.’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. 36Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014). 37See 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). 38See 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. 40Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014). 41See 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.”).
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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 crossexamined 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
42See Strickland, 446 U.S. at 687. 43Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014). 44See 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). 45Def.’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). 48See Strickland, 446 U.S. at 687. 49Def.’s Mot. forPostconviction Relief, State v. Hall, No. 1011006903A, Docket No. 67 (April 21, 2014).
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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.

Outcome: 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.

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