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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

 v. ) ID No. 1503017603

) 

RAYSHAUN JOHNSON, )

Submitted: December 19, 2022

Decided: March 14, 2023

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

Upon consideration of the Defendant Rayshaun Johnson’s amended Motion

for Postconviction Relief (D.I. 107), his trial counsel’s affidavit (D.I. 112), the 

State’s response (D.I. 114), and the record in this matter, it appears to the Court that: 

I. FACTUAL AND PROCEDURAL BACKGROUND

(1) After a five-day jury trial, Rayshaun E. Johnson was found guilty of 

Murder in the First Degree, Possession of a Firearm During the Commission of a 

Felony (“PFDCF”), and Conspiracy in First Degree.1 He was later sentenced to 

serve, inter alia, a term of life imprisonment.

2

 

(2) Mr. Johnson filed a direct appeal to the Delaware Supreme Court. His 

convictions and sentence were affirmed.3

1 Verdict Form, State v. Johnson, ID No. 1503017603 (Del. Super. Ct. Feb. 16, 2017) (D.I. 65). 

2

 Sentencing Order, Oct. 5, 2018 (D.I. 79).

3

 Johnson v. State, 2019 WL 4180617, at *1 (Del. Sept. 3, 2019). 
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(3) Thereafter, Mr. Johnson docketed a motion for postconviction relief.4

The Court appointed Mr. Johnson postconviction relief counsel who then filed an 

amended motion.

5

 The State responded,6 Mr. Johnson replied,7and the motion is 

now ripe for decision.

II. THE POSTCONVICTION MOTION

A. MR. JOHNSON’S MOTION CAN BE CONSIDERED ON ITS MERITS.

(4) Before the Court can consider the substance of any postconviction 

claim, it must first address Criminal Rule 61’s procedural requirements.8 The 

procedural bars in Rule 61 are timeliness, repetitiveness, procedural default, and 

former adjudication.9

(5) Here, Mr. Johnson’s postconviction motion was filed less than a year 

after his judgment of conviction became final. So, it’s timely. This is also 

Mr. Johnson’s first motion for postconviction relief. So, it’s not repetitive. And as 

Mr. Johnson’s claim is alleging ineffective assistance of counsel—which generally 

4 Mot. for Postconviction Relief, July 7, 2020 (D.I. 91).

5 Order Granting Appointment of Counsel, July 27, 2020 (D.I. 93); Am. Mot. for Postconviction 

Relief, Mar. 30, 2022 (D.I. 107).

6 State’s Response, Nov. 3, 2022 (D.I. 114).

7 Reply Br., Dec. 19, 2022 (D.I. 115).

8

 Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2 

(Del. Super. Ct. Sept. 10, 2002). 

9

 State v. Taylor, 2017 WL 5054262, at *2 (Del. Super. Ct. Oct. 23, 2017). If any of these bars 

apply, then the inmate must show entitlement to relief under Rule 61(i)(5). Id.
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can’t be raised on direct appeal—he is neither procedurally barred from raising it in 

this collateral proceeding nor has it been formerly adjudicated. 

(6) Accordingly, the Court will address the merits of Mr. Johnson’s claim.

B. MR. JOHNSON’S SOLE POSTCONVICTION CLAIM

(7) Mr. Johnson suggests his trial counsel was ineffective for failing to seek 

exclusion of evidence or testimony regarding then-fourteen-year-old eyewitness, 

Umar Mohammed’s, pre-trial identification of Mr. Johnson as one of the shooters 

who gunned down Theodore Jackson.

10

 If trial counsel would have sought exclusion 

of such evidence, says Mr. Johnson, trial counsel would have been successful.11 And

in Mr. Johnson’s eyes, without that evidence “there [was] a reasonable probability 

that the jury would have acquitted him on the Murder First charge . . . .”12

III. APPLICABLE LEGAL STANDARDS

(8) A movant who claims ineffective assistance of counsel must 

demonstrate that: (a) his defense counsel’s representation fell below an objective 

standard of reasonableness, and (b) there is a reasonable probability that but for 

counsel’s errors, the result of the proceeding would have been different.13

10 Am. Mot. for Postconviction Relief at 37-40.

11 Id. at 37. 

12 Id. at 39-40. 

13 Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL 

5297709, at *2-3 (Del. Sept. 4, 2015).
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(9) There is a strong presumption that counsel’s representation was 

reasonable,14 and “[i]t is not this Court’s function to second-guess reasonable trial 

tactics” engaged by trial counsel.15 Too, one claiming ineffective assistance “must 

make specific allegations of how defense counsel’s conduct actually prejudiced the 

proceedings, rather than mere allegations of ineffectiveness.”16 A movant must 

prove both—deficient attorney performance and resulting prejudice—to succeed in 

making an ineffective assistance of counsel claim.17 Failure to do so on either will 

doom the claim, and the Court need not address the other.

IV. DISCUSSION

(10) Mr. Johnson challenges his first-degree murder conviction via an

assertion that if trial counsel had been effective, he would have successfully moved 

to exclude Mr. Mohammed’s out-of-court identification.18 And by not doing so, 

Mr. Mohammed’s in-court testimony was bolstered because of that previous faulty 

14 See Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

15 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002).

16 Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015 

WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 

1996)).

17 Strickland, 466 U.S. at 694; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a twopronged test, and there is no need to examine whether an attorney performed deficiently if the 

deficiency did not prejudice the defendant.” (citation omitted)); State v. Hamby, 2005 WL 914462,

at *2 (Del. Super. Ct. Mar. 14, 2005).

18 Am. Mot. for Postconviction Relief at 18-40.
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identification.19

(11) The State called Mr. Mohammed as an eyewitness to the shooting.20 

After laying the proper foundation the State played an interview conducted by the 

Children’s Advocacy Center (CAC) with Mr. Mohammed the night of the 

shooting.21 

(12) In that interview Mr. Mohammed recounted the shooting he had just 

witnessed and told the CAC interviewer that one of the two suspects he observed 

had dreadlocks and that both were “black, like dark-skinned.”22 When asked 

whether the suspects had any facial features or tattoos, Mr. Mohammed said that he 

“didn’t see their faces.”23 But that he did see a big tattoo on one of the suspect’s 

arms and a number of chest tattoos on one of the suspects.

24

 Mr. Mohammed 

reiterated that he “didn’t really see their face” instead he “just saw like their hair and 

the hat . . . .”25

(13) Mr. Mohammed was later interviewed by police detectives. During that 

19 See id. at 38-39.

20 Feb. 13, 2017 Trial Tr. at 160-67 (D.I. 75). 

21 Id. at 166-167. That interview was conducted by a CAC forensic interviewer at the request of 

the Wilmington Police Department. Appendix to Def.’s Am. Mot. for Postconviction Relief 

(“Def.’s App.”) at A168-A169 (D.I. 108).

22 Def.’s App. at A169. 

23 Id. at A170. 

24 Id. at A169-A171. 

25 Id. at A172; A176 (“I don’t know because like the distance that I was I didn’t really see their 

face.”).
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interview, he was shown a six-pack photo array.26 Detectives first asked whether 

the suspect was in the six-pack to which Mr. Mohammed said no, but then told 

detectives he thought it could be Number 3, until finally arriving at Number 4 and 

circling and signing his name to that choice.27

(14) At trial, on direct examination, the State showed Mr. Mohammed, 

without objection from trial counsel, the photo he circled and signed.28 On crossexamination trial counsel asked Mr. Mohammed: 

Q. In this video on several occasions, at least four, you say you 

didn’t see the face of the individual that was doing the shooting; 

isn’t that correct? 

A. Yes. 

Q. Yet several days later you picked somebody out. Did you pick 

somebody out from the shooting or is it somebody you may have 

seen earlier in the day?29

(15) Trial counsel explained this tactic in his Rule 61(g) affidavit.30 

Specifically, he purposely did not attempt to exclude the out-of-court identification 

because he sought “[t]o demonstrate Mohammed’s bias,” and to this end “his out of 

court identification as well as his inability to make prior identifications was essential 

26 Id. at A179. 

27 Id. at A179-A181.

28 Feb. 14, 2017 Trial Tr. at 4-5 (D.I. 74). 

29 Id. at 6.

30 Trial Counsel Affidavit at 2 (D.I. 112).
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to the defense.”

31 In short, counsel explained that his “decision to not challenge the 

identification . . . was part of the defense strategy.”32

(16) “[A] lawyer’s performance is constitutionally deficient only if no 

competent attorney would have chosen the challenged course of action.”33 It is not 

the role of the Court to determine “what the best lawyers would have done . . . [or] 

even what most good lawyers would have done.”34 “Instead, the Court must 

determine whether trial ‘counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed [to] the defendant by the Sixth 

Amendment.’”35 

(17) While Mr. Johnson wishes to frame it otherwise,

36

“Strickland doesn’t 

deem trial counsel ineffective for not pursuing the best or most successful strategy; 

instead, it requires trial[] counsel be informed by a thorough investigation of law and 

31 Id.

32 Id.

33 Green v. State, 238 A.3d 160, 178 (Del. 2020) (citing Premo v. Moore, 562 U.S. 115, 124 

(2011)). 

34 Id. (alteration in original) (quoting White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992)).

35 State v. Peters, 283 A.3d 668, 686 (Del. Super. Ct. 2022) (alteration in original) (citing Burns 

v. State, 76 A.3d 780, 788 (Del. 2013)).

36 Reply Br. at 2. Mr. Johnson’s assertion that trial counsel’s strategy was unreasonable is rooted 

in his belief that a better strategy was available. Id. (“Trial counsel never asserted in their affidavits 

that they, after reviewing the evidence against Mr. Johnson and the law, decided that only 

challenging Mohammed’s out-of-court identification at trial was the best strategic route to take.” 

(emphasis added)). Maybe so. But under Strickland, trial counsel is not deficient for failing to 

pursue what others might consider the best or a better strategy. Peters, 283 A.3d at 687 (citing 

Hoskins v. State, 102 A.3d 724, 730 (Del. 2014)); Burns, 76 A.3d at 788).
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facts.”37 And the reasonableness of trial counsel’s actions cannot be measured by 

whether the strategy was successful.38 

(18) Trial counsel made a strategic decision to not challenge the out-of-court 

identification so that he could use it to impeach Mr. Mohammed and, in turn, the 

entirety of the police investigation. That’s not counsel deficiency. And on that basis 

alone, Mr. Johnson’s sole claim of ineffective assistance fails.39

(19) Even if Mr. Johnson could show his trial counsel was deficient, 

Mr. Johnson cannot show resulting prejudice. The necessary prejudice here must be 

a reasonable probability that but for counsel’s errors, the State would not have had 

enough evidence to convict Mr. Johnson of first-degree murder.40 

(20) On the prejudice prong, Mr. Johnson asserts that “without the 

admission of Mohammed’s unreliable identification, there is a reasonable 

probability that the jury would have acquitted him on the Murder First charge . . . 

.”41 Mr. Johnson asserts that “Mohammed was the only eyewitness to identify [him], 

aside from Harris, who was an incredibly self-interested witness.”42 Whether the 

jury chose to credit the testimony given by Mr. Mohammed and Christopher Harris 

37 Peters, 283 A.3d at 687 (citing Hoskins, 102 A.3d at 730; Burns, 76 A.3d at 788).

38 State v. Wright, 653 A.2d 288, 297 (Del. 1994).

39 Am. Mot. for Postconviction Relief at 18-40

40 Harden v. State, 180 A.3d 1037, 1045 (Del. 2018).

41 Am. Mot. for Postconviction Relief at 39-40.

42 Id. at 38.
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is within their province.43 Mr. Mohammed testified at trial that he saw the shooters.44 

What was left was either the corroboration or impeachment of his in-court testimony. 

And to pursue those divergent ends, both the State and Mr. Johnson wanted to use 

his out-of-court identification and interviews. 

(21) The impact of the out-of-court identification went to the credibility of 

Mr. Mohammed—and in trial counsel’s view, the police investigation—the 

determination of which was in jury’s hands.

45

(22) Even without Mr. Mohammed’s testimony the evidence was 

substantial. The jury heard from 23 witnesses (including Mr. Mohammed) who 

testified that Jeffrey Clark received information that someone was “disrespecting” 

him and, along with Mr. Johnson and Mr. Harris, went to confront that individual.46 

The jury heard testimony that both Mr. Clark and Mr. Johnson were carrying guns.47 

The jury heard testimony that placed Mr. Johnson and Mr. Clark at the scene of the 

shooting when it occurred.48 The jury heard testimony that the victim was shot by 

43 Washington v. State, 4 A.3d 375, 378 (Del. 2010). 

44 Feb. 13, 2017 Trial Tr. at 162-63.

45 Washington, 4 A.3d at 378. 

46 Feb. 15, 2017 Trial Tr. at 59-61 (Christopher Harris) (D.I. 77); Feb. 13, 2017 Trial Tr. at 36-

37 (Marcel Swanson); Feb. 14, 2017 Trial Tr. at 58-59, 62-63 (Doris Reyes).

47 Feb. 13, 2017 Trial. Tr. at 66-67. 

48 Feb. 13, 2017 Trial Tr. at 29-30; Feb. 15, 2017 Trial Tr. at 62-69; Feb. 13, 2017 Trial Tr. at 

148-49. 
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bullets fired from two guns.49 And the jury heard testimony that Mr. Johnson told a 

friend “we got him” in reference to the killing.50

(23) When viewing the totality of the evidence and the reasonable inferences 

drawn therefrom in the light most favorable to the State, it is clear that a reasonable 

trier of fact could find Mr. Johnson committed first-degree murder. So Mr. Johnson 

fails to satisfy the second prong of Strickland.

VI. CONCLUSION

Mr. Johnson has proved neither the deficient performance by counsel nor the 

prejudice required for relief under Strickland. Accordingly, Mr. Johnson’s Motion 

for Postconviction Relief is DENIED.

 SO ORDERED this 14th day of March, 2023.

 

Paul R. Wallace, Judge

Original to Prothonotary

cc: Matthew Bloom, Deputy Attorney General 

Natalie Woloshin, Esquire

Anthony A. Figliola, Jr., Esquire

49 Feb. 14, 2017 Trial Tr. at 95-97.

50 Feb. 13, 2017 Trial Tr. at 36-37 (Marcel Swanson)

Q. What did he say when he called your phone? 

A. He says, “What’s up?” I said, “What’s up?” He said, “Remember the boy Kyle

I was telling you about?” I said, “Yes.” I think we got him.”