IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

S TATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 93008966DI ) ) LUTHER DICKSON , ) ) Defendant. )

S ubmitted: November 3 , 202 3 Decided: February 29 , 202 4

CO MMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED

S usan Purcell , Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
L uther Dickson , James T. Vaughn Correctional Center, Smyrna, Delaware, pro se
.

S ALOMONE , Commissioner1 This 29 th day of February 202 4 , upon consideration of Defendant’s Motion for Postconviction Relief, it appears to the Court as follows : BACKGR OU ND AND PROCEDURAL HISTORY On March 29, 1993, Defendant Luther Dickson (“Di ckson ” or the

“ Defendant ”) was indicted on the ch arges of (i) Burglary First Degree, (ii) Unlawful Sexual Intercourse First Degree, (iii) Unlawful Sexual Penetration Third Degre e a nd (iv) Kidnapping First Degree. On August 30, 1993, he was reindicted
on th e se same charges and two additional charges of Robbery First Degree and Unlawful Sexual Contact in the Third Degree. The charges arose out of an
incident that occurred on the nig ht of March 6- 7, 1993 in which Dickson forced his way into an elderly woman’s home, sexually assaulted her, stole her money, and tore her telephone lines from the wall so she would be unable to call for help. Dickson was tried twice with respect to these c harges. The first jury trial in this case began on September 13, 1993. At the conclusion of the first trial, the jury found Dickson guilty of Unlawful Sexual Penetration Third Degree, Unlawful Imprisonment Second Degree (a lesser

- included offense of Kidna pping), and Robbery First Degree. The jury was unable to reach a verdict on the Unlawful2 Sexual Intercourse First Degree and Burglary First Degree charges and a mistrial
was declared as to those counts. 1 The second jury trial in this case was conducted on December 12

- 16, 1993. On December 16, 1993, a second jury found Dickson guilty of Unlawful Sexual Intercourse in the First Degree and the le sser - included offense of Burglary in the Second Degree. The r emaining charge of Unlawful Sexual Contact in the Thi rd Degree was nolle prossed

. 2 On February 4 , 1994, Dickson was sentenced to life imprisonment for the
Unlawful Sexual Intercourse F irst Degree conviction and an additional ten years of
incarcerat ion on the re maining convictions , followed by probation

. 3 On February 17, 1994, Dickson filed a direct appeal of his convicti o ns to the Delaware Supreme
Court. 4 The Supreme Court affir med the convictions on Novembe r 7, 1994

. 5
On A p ril 10, 2010, over fifteen years after the Supreme Court affirmed his convictions, D i ckson filed his first pro se Motion for Postconviction Relief. 6 In
this first M o tion , Dickson as serted four gr ounds for relief, which included , inter
alia , cl aims that (i) he was unlawfully d eprived of DNA testing wh ich could prove
his innocence and (ii) another person committed the crimes for which he was

1 State v. D ickson , Delaware Superior Court Criminal Docket, ID No. 93008966DI at 5 (hereinafter, “D

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.3 convicted. 7 Despite being procedurally barred from bringing his Motion for
Postconviction Relie f pursuant to Superior Court Criminal Rule 61( i)(1) and (3) , the Court considered his claims and found the m all to be without merit

. 8
On November 26, 2018, Dickson filed a second pro se M otion for
P ostconviction R elief (the “ Second Rule 61 Motion ” ) and M otion for A ppointment
of counsel

. 9 Th e S eco nd Rule 61 Motion was prompte d by a letter , dated December 18, 2 017 , from t h e United States Department of Justice , which advised
that the FBI ha d de termined that its expert analyst on microscopic hair comparison evidence (“ MHC evidence”) , Federal Age nt Michael Malone, may have overstated
the results of its examination by testifying to the conclusiveness of microscopic hair samples in making an identification. 10 Counsel was appointed to represent
Dickson i n his S econd Rule 61 M otion to determine whethe r the MHC evidence at
issue prejudiced Dickson’s case in light of the Department of Justice’s letter raising this new revelation

. 11
On June 28, 2019 , assigned c ounsel filed a Motion to Wit hdraw as Postconviction Counsel pursuant to Supe rior Court Criminal R ule 61(e)(7 ). 12 In
th e M otion to W ithdraw, Dickson’ s Rule 61 counsel represented that he had

7 Id.
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.4 thoroughly reviewed the transcripts of the proceedings and the record in th is case and that after und ertaking this thorough analysis, counsel determined that Dicks on did not have any meritorious basis to raise a claim for relief. 13
Rule 61 c ounsel explained that the new MHC revelations were not helpful to Dickson because MHC testimony and the report were only admitted at Dickson’s first trial. The jury was unable to reach a verdict as to the Unlawful Sexual Intercourse First Degre e and Burglary First Degree charges in that first trial . The
MHC evidence was not used and was not mentioned to the jury in any fashion during the second trial. The FBI agent, Agent Michael Ma lone, did not testify at
Dickson’s second trial nor was the MH C report admitted at the second trial. At the second trial, Dickson was convicted of Unlawful Sexual Intercourse First Degree , for which he is serving a life sentence , and was also convicted of Burglary in the Second Degree.
Rule 61 c ounsel concluded tha t t he new evidence that led to the filing of the
S econd Rule 61 M otion, that the FBI overstated the results of its examination of microscopic hair samples, played no part whatsoever in Dicks on’s conviction of Unlawful Sexual Intercourse First Degree

. Th ere fore , t he second trial was untainted by any alleged FBI misconduct. Accordingly, Rule 61 counsel

13 See , D.I. 54

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. Rule 61 counsel’s Motion to Withdraw along with the accompanying Me morandum in Support o f Motion t o Withdraw and appendix

.5 concluded that the MHC evidence claims were without merit under the facts and
cir cumstances of this case and sought to withdraw as Rule 61 c ounsel.
Pri or to f iling the Motion to Withdraw, and again at the time of the filing , Rule 61 counsel advised Dickson that he had the right to file a response the reto within 30 days, if Dickson objected to the M otion to Withdraw

. 14 Dickson chos e
not to file a response

. Foll owing a full, thorough and careful review of the S econd Rule 61 M otion,
Rule 61 counsel’s M otion to W ithdraw, and the record, a Superior Court
Commissioner recommended denial of the S econd Rule 61 M otion. 15 Dic kson did
not fi le any objections to the Co mmis sioner ’s Report and Recommenda t i on
. 16 On October 16, 2019, a fter a d e novo review of the record and the Commissioner’s Report and Recommendation , the Superior Co urt ente re d an Order adopting the Commissioner’s Report and Recommendation and den ying the S eco nd Rule 61
M otion. 17 Dickson did not appeal the denial of his S econd Rule 61 M otion to the Delaware Supreme Court. 18

14 See D.I. 54 ( letter , dated June 28, 2019 from Rule 61 cou nsel advising Dickson of the Mo tion to Withdraw and having 30 days to file a response thereto )

. 15 See, State v. Dickson, 2019 WL 473830 (Del .Super.). 16 Pursuant to 10 Del. C. § 512(b) and Rule 62, any objections to the Report needed to be filed within 10 days after the filing of the Rep ort. 17 D.I. 59. 18 Dickson was required to file an appeal within 30 days of the Superior Court’s October 16, 2019 Order as require d by Super ior Court Criminal Rule 61(k) and Delawa re Supreme Court Rule 6(a)(iv). He did not appeal within the requ ired time period or at any time thereafter.6 O n September 14, 2020, eleven months after the C ourt ’ s Order in hi s Second Rule 61 Motion, Dickson filed a th ird pro se M otion for P ost conv iction R elief (the

“ Third Rule 61 Motion ” )

. 19 In th e T hird Rule 61 M otion, Dickson objec t ed to his
counsel’s decision to move to withdraw in the S ec ond Rule 61 M otio n , and object ed to and challenge d the Court’s decision in the S econd Rule 61 M otion tha t
th e MHC evidence claims were without merit

. Dickson d id not raise anything new

or recent ly discovered in his Third Rule 61 Motion, but rather, belated ly object ed

to t his Court ’ s determination in his Second Rule 61 M otion

. A Superior Court Commissioner rec ommended t hat the Third Rule 61
M otion be summarily dismissed because it failed to meet the pleading requiremen ts for second or subsequent postconviction motio ns in that Dickson
f

ailed to establish that (i) new e vidence exists that c reates a strong inf eren ce that he defendant is actually innocent of the ch ar ges for wh ich he is convicted, or (ii) the
existence of a new rule of constitutional law made retroactive to cases on collateral
review rendered his convictions invalid. 20 Th e Commissioner also found the Third
Rule 61 Motion to be pro cedurally barred under Superior Court Criminal Rule
Rule 61(i)(4) since the claim s raised in the Third Rule 61 Motion were resolved in
the Se cond Rule 61 Motion

. 21 Dickson did not o bject to the Commissioner ’ s

19 D.I. 60

. 20 Super. Ct. Crim.R. 61 (d)(2) & (5); Rule 61(i).
21 D.I. 6 3

.7 findings wit h respect to his Third Rule 61 Motion and the Superior Co urt ente red an Order adopting the Commissioner’s Report and Recommendation and den ying
the Third Rule 61 M otion

. 22 Dickson did not appeal the denial of his Third Rule
61 M otion to the Delaware Suprem e Co urt.
DICKSON’ S FOURTH RULE 61 MOTION
O n Octo ber 26 , 202 3 , Dickson filed a fourth pro se M otion for
P ostconviction R elief (the “ Fourth Rule 61 Motion ”) pursuant to which he asserts (i) “n ewly d iscovered ev idence of ineff ective assistance of trial counse l , a ppellate and postco nviction counsel ” in his initial Rule 61 Motion and (ii) “ newly
discovered evidence o f police and prosecutori al misconduct based upon Brady
material vi olation [s] .” 23 He cl aims tha t both “ ground one and ground two [are]
based on actual in noc ence. ” 24
In hi s Memorand um of Law in Support of his Fo urth Rule 61 Motion,
Dic kson contends that trial counsel f ailed to conduct an adequate investigatio n in to
certain Brady material within the State ’ s possession which would have
d emonstrate d that Dickso n did not commit the crime s for which he was
convicted. 25 Dickson asserts that another ind i vidua l by the name of Kevin J.

22 D.I. 64.
23 D.I. 65-66.
24 Id.
25 D.I. 66 a t 5 -6.8 How ard ( “ Howard ” ) committed the crime s
. 26 He contends that a witness told the police that she gave a “ slip of paper ” containing her tel ephone numbers to t he man
who was rep airing her car

. 27 That paper was found wedged in the door of the rape
victim ’ s home. 28 Dickson asserts that he and Howard share similar facial features
and t hat the wi tness mistaken ly identif i ed Dickson as the ma n to wh om she gave the slip of p a per. 29 He further contends that Howard is an auto mechanic while he
is not

. 30 Dickson arg ues that all of this inf ormation was contained in the police reports and that trial counsel was in effective for failing to present evidence a t
Dickson ’ s trial of the p ossibility t hat another s uspect committed the cri mes alleged. 31 He claims this evidence, which was not presented to the jur y , may show
his act ual innocen ce. He likewise claims that postconviction counsel was deficient
for failin g to raise trial co unsel ’ s purported ineffectiveness in his Second Rule 61
Motion. 32 Therefore, according to Dickson, he is “ entitled to a new trial where he
can have the benefit of effective assistance of cou nsel and the newly discovered
evidence or identi fied evidence of another s usp ect that former t rial counsel should have presented at his original trial. ” 33

26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id. at 7.
32 Id. at 7

- 10.
33 Id. at 10.9 Dickson also asserts that he has identified “ new evidence of police and prosecutorial misconduc t based upon the intentional loss or willful destructio n of
DNA testing of the p hysic al evidence that would probably show w ith a reasonable degree of te chnical certainty that he is actionally [sic] innocent

. . . ” 34 Put more simply , Dickson seems to contend that if certain unspecified physical evidence
fro m th e crime scen e had been te sted for DNA it would have established his actual
innocence and proved that Howard committed the c rimes. In support of his assertion of police and prosecutorial misconduct , Dickson cites a letter, dated January 28, 2002, from the Wilmington Police Depar tment t o a representative of
the Innocen ce Project in which the police state that they no longer have any
evidence in their possession that is associated with Dickson ’ s case. He makes the leap from this letter that the loss of the evidence was willful and that t he State violated his due process rights because “ the undisc losed physical evid ence was favorable to him because it was exculpatory and impeaching ” and material to his
defense. 35
APPLICABLE LAW FOR POST CONVICTION RELIEF
Rule 6 1 and Procedural Bars to Relie f Superior Court C riminal Rule 61 (“Rule 61”) governs the procedures by which an incarcerated individual may seek to have his conviction set aside on the

34 Id.
35 Id. at 13.10 ground that the court lacked jurisdiction or any other ground that is a sufficient factual and legal b asis for a collateral at tack upon the conviction. 36 That is, it is a means by which the court may correct Constitutional infirmities in a conviction or

sentence. 37 “Rule 61 is intended to correct errors in the trial process, n ot allow
defendants unlimited opportunities to relitig ate their convictions.” 38
Given that inten t, b efore considering the merits of any claims for postconviction relief , the Court must first determine whether there are any procedural bars to the postconvict ion motion

. 39 Rule 61(i) estab lishes four proced ural bars to postconviction relief. 40 Rule 61(i)(1) prohibits a motion for postconviction relief from being filed “more than one year after the judgement o f
conviction is final or, if it asserts a retroactive ly applicable right that is ne wly recognized aft er the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.” 41 Rule 61(i)(2) bars successive motions for postconviction relief unl ess certain
condit ions are met. 42 Pursuant to Rule 61(i)(3) and (4), any ground for relief that was not previously raised is deemed waived, and any claims that were formerly

36 Super. Ct. Crim. R. 61( a)(1).
37 Harris v. State , 410 A.2d 500 (Del. 1970).
38 Ploof v. State , 75 A.3d 811,820 (Del. 2013 ). 39 Younger v. State , 580 A.2d 552, 554 (Del. 1990).
40 Super. Ct. Crim. R. 61(i)(1)

- (4).
41 Super. Ct. Crim. R. 61(i)(1).
42 Super. Ct. Crim. R. 61(i)( 2 ).11 adjudicated, whether in the proceedings leading to t he judgment of conviction, in an appeal, in a pos tconviction proceeding, or in a federal habeas corpus proceeding, are thereafter barred. 43 The foregoing bars to relief do not apply to a claim that the court lacked jurisdiction or to a claim that satisfie s the pleading requirements of Rule 61(d)(2)

. Ru le 61(d)(2) pr ovides as follows:
A second or subsequent motion under this rule shall be summarily dismissed , unless the mov ant was convicted after a tr i a l and the motion either: (i) plea ds w ith particula rity that new evidence exis ts that creates a stro ng inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or (ii) plea ds with particularity a claim that a new rule of constitutional law, made re troactive to cases on colla teral review by the United States Supreme C ourt or the D elaware S upreme Court , applies to the movant ’ s case and renders the con viction or sentence invalid. 44
The De laware Supreme Court recently ex amined the first prong of Rule 61(d)(2) , re ferred to as the “ actual innoc ence e xc eption , ” in Purnell v. State where
the Court explained what constitutes “ new ” evidence and a “ strong inference ” of
innocence

. To qualify for an exception to Rule 61 ’ s procedural bars against untimely, suc cessive motions, [ a defendant] must

43 Super. Ct. Crim. R. 61(i) (3) and ( 4 )

. 44 Super. Ct. Crim. R. 61(d)( 2).12 identify with particula rity new evidence that creates a strong inference that he is actually innocent in fact of the acts underlying the charges. Stated differently, [a defendant] m ust present additional evidence that w as not available at trial and would not have been despite his exercise of due diligence . [The defendant] must also convince us that the new evidence, when considered in the context of all the rele vant evidence by a properly instructed jury, is such as wil l probably change the result i f a new trial were granted. ” 45
The Court also f ound that “ satisfying the actual innocence test is, by design, a heavy burden, and such meritorious c laims are exce edingly rare. ” 46
This is Dickson ’s Fourth Rule 61 Motion and it is procedural ly barred

. Fi rst , the Fourth Rule 61 Motion was filed nearly 29 years after the j udgment of
conviction became final and should be barred by Rule 61(i) (1) for being untimely

. Second, the Fourth Rule 61 Motion should be bar red b y Rule 61(i)(3) because
Dickson failed to ass ert any of the instant grounds for relief at tr i a l, on direct appeal or in his initial Motion for Postconviction Relief

. Third , w hile Dickson makes yeoman efforts to try to couch his claims in terms that meet the pleading

req uirements of R ule 6 1 (d)(2) (i) , he has not presented an y new or additional
evidence of actual innocence that was not available to him at trial or otherwise

45 Purn ell v. State , 254 A. 3d 1053 (Del

. 2021), at 1060.
46 Id

. (noting that P urnell was the first defendant to be found eligible for the actual innocence exception to R ule 61 ’ s p rocedural bar)

. In P urnell , the Court found much of the evidence pres ented by the defendant to be “ new ” bec ause trial counsel ’ s disabling conflict of interest prevented him from investigating or pursuing several key areas of potentially exonerating evidence and defensive strategies on behalf of the defendant. No such conflict of interest exists in Dickson ’ s ca se.13 exonerates him of the crimes for which he was convicted

. 47 Dickson proffers no post

- trial recantation by a key wi tness or exculpato ry physical evidence that was not previously available to the defendant as was the case in Purnell

. Rather, what
Dickson ha s presented to the Court in his Fourth Rule 61 Motion is merely his theory and con jecture that another person comm itted the crimes f or which he was
convicted coupled with supposition that evidence th at no longer exist s would
exonerate him

. Such m ere assertion s of act ual innocence do not suffice under Rule 61(d)(2 )(i)

. 48 As such, his Fo urth Rule 6 1 M otion should also be barred under
Rul e 61(i)(2).
More o ve r, the Fourth Rule 61 Motion simp ly r e state s the same issues raised by Dickson in his initial Rule 61 M otion in which he assert ed, among other things,
that (i) he was deprived of his right to postconv iction DNA testing to e stablish h is
innocence and (ii) Howard committed the crimes fo r which he was convicted

. 49
Both of these claims were found to be without merit by the Court in 2010 after a thorough review of all the evidence in the case

. 50 T he Commiss ione r concluded in
his Report a nd Recommendation as follows:

47 Nor has he c it ed to any new rule of constitutional law made retroactive to cases on collateral review under Rule 61(d)( 2 ) (ii) or that the C o urt lacked jurisdiction

. 48 See State v. Mille r , 2023 WL 2854227, at *5. Having found no “ new ” evidence, the C o urt need not consid er the sec ond “persuasiveness ” prong of the Purnell test

. 49 D.I. 30.
50 The evidence against Dickson at trial was substantial and included, among other things, (i) a taped confession by Dickson admitting to being present at the scene of the crime, (ii) vict im test imo ny that she kne w Dickson because he had shoveled her snow on two occasions and she14 Two juries found Defendant guilty beyond a reasonable doubt. Defendant seeks eviden ce which no longer exists and asks for that evidence to be tested over 17 years after his con viction in a motion that is thirteen years too la te. Defendant has failed to persuade this Court that his theories about another rapist or possible DNA evidence warrants this Court to reopen his case and disrega rd the evidence or the jury ’ s verdict. 51 Given the foregoing , Dickson ’s current cl aims in his Fourth Rul e 61 Motion

are also procedur ally barred under Rule 61(i)( 4 ) as they have been previously adjudicated by this Court. Th ese claim s cannot now be refined, re stated or re raised in order to again seek judicial rev iew

. 52

got a “ very clear look ” at him during the r ape and (iii) two witnesses that testified that Dickson was near the scene of the c rime on the nigh t of the ra pe. D .I. 42 at 11-12.
51 Id. at 13. 52 See State v. Clay , 2022 WL 893744, at *2 ( Del

. Super. Mar. 25, 2022), aff’d Clay v. State , 2022 WL 4295417 (Del. Sept. 16, 2022) (finding that where an affidavit asserting the defendant’ s innoc ence was form erly adjudicated in a postconvi ction proceeding, it cannot constitute newly discovered evidence in a subsequent post conviction proceeding ) ; see also Johnson v. State, 1992 WL 183069, *1 (Del.); Duhadaway v. Sta te, 877 A.2d 52 (Del. 2005).15 CONCLUSION Dickson postco nviction claims are proced urally barred pursuant to Rule 61(i)(1 ) , (3) and (4) and he has failed to meet the stri ct pleading requirements for proceeding with his motion under Rule 61(d) (2)(i) as he has failed to provide any

n ewly discovered evidence of his actual innocence. For the foregoing reasons,
Dickson ’s Fourth Motion for Postconviction Relief should be SUMMARI LY
DISMISSED

.

IT IS SO RECOMMENDED.

/s/ Janine M. Salomone Commissioner Janine M . Salomo ne

c c: Prothonotary Susan Purcell , Esquire, Deputy Attorney General Luther Dickson , pro se . (SBI # 00173261)