IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID No. 0809018844

 : RK 09-12-1214-02 MURDER 2nd

 : RK 08-09-1286-02 PFDCF (F)

 v. : RK 08-11-0556 02 PFDCF

 : RK 08-11-0558 02 PFDCF

 : RK 08-11-0560 02 PFDCF

 : RK 08-11-0555 02 RECK END 1st (F)

TREMEIN D. HOSKINS, : RK 08-11-0557 02 RECK END 1st(F)

 : RK 08-11-0559 02 RECK END 1st (F)

Defendant. :

Submitted: July 5, 2022

Decided: September 16, 2022

ORDER

Upon Consideration of a Commissioner’s Report and Recommended Denial of 

Defendant’s Second Postconviction Relief Motion – ADOPTED

On this 16

th day of September 2022, having considered Defendant Tremein 

Hoskins’ second motion for postconviction relief, the Commissioner’s Report and 

Recommendation (the “Report”) recommending that the Court deny his motion, Mr. 

Hoskins’ appeal of that Report, and the record, it appears that:

1. On October 9, 2009, a jury found Mr. Hoskins guilty of four counts of 

Possession of a Firearm During Commission of a Felony, 11 Del. C. § 1447A, and 

three counts of Reckless Endangering First Degree, 11 Del. C. § 604. The jury failed 

to reach a unanimous verdict on a Murder First Degree count. The Court then held a 

second trial on the murder charge and the second jury found Mr. Hoskins guilty of the 

lesser included offense of Murder Second Degree, 11 Del. C. § 635. 

2. After his convictions and a presentence investigation, the Court sentenced 
2

Mr. Hoskins to forty-three years at Level V, followed by descending levels of 

probation. Thirty-five years of that sentence constituted minimum mandatory time. 

Mr. Hoskins then filed a direct appeal. On March 11, 2011, the Delaware Supreme 

Court affirmed his convictions.1 

3. After Mr. Hoskins’ unsuccessful direct appeal, he filed a motion for 

postconviction relief. With the assistance of postconviction counsel, Mr. Hoskins 

unsuccessfully litigated his first postconviction motion nearly eight years ago.

2

 The 

Delaware Supreme Court then affirmed the Superior Court’s decision denying him 

relief.

3

 Mr. Hoskins then filed a pro se habeas corpus petition in the United States 

District Court for the District of Delaware. The District Court denied that petition as 

well.4 

4. Mr. Hoskins now files a second motion for postconviction relief. In it, 

he claims that there is newly discovered evidence that came into being after his direct 

appeal and first postconviction motion. Namely, he contends that the State’s ballistics

witness at trial, Carl Rone (the “Expert”), had significant credibility and qualification 

issues pertinent to his trial testimony because of the Expert’s subsequent misconduct. 

This evidence, Mr. Hoskins contends, overcomes Rule 61’s procedural bar against 

subsequent postconviction motions. Specifically, he highlights (1) the Expert’s lapse 

in certification that occurred years after his trial and (2) the Expert’s conviction for 

falsifying business records that postdated Mr. Hoskins’ two trials by approximately 

eight years. Because Mr. Hoskins contends that no procedural bar applies, the second 

part of his postconviction challenge addresses substance: that is, whether this “newly 

1 Hoskins v. State, 14 A.3d 554 (Del. 2011). 

2 Hoskins v. State, Del. Super., ID No. 0809018844 (January 28, 2014) (ORDER) (adopting Comm’r 

Report of June 28, 2013).

3 Hoskins v. State, 102 A.3d 724, 735 (Del. 2014).

4 Hoskins v. Pierce, 217 F. Supp. 3d 798, 813 (D. Del. 2016).
3

discovered” evidence, if known to the jury, would have changed the result of his trial.

5. After he filed his motion, the Court referred the matter to a Superior Court 

commissioner as permitted by 10 Del. C. § 512(b) and Superior Court Criminal Rule 

62. The Commissioner who received the referral considered the parties’ briefing and 

the record. She then issued her Report and recommended that the Court deny Mr. 

Hoskins’ motion as “untimely and successive.”

5

 She refused his request to conduct

an evidentiary hearing and explained why Rule 61(d)(2) requires the Court to dismiss 

his motion.6 

6. Presently, Mr. Hoskins appeals the Commissioner’s Report. He raises 

three objections. First, he contends that the Commissioner erred when she found that 

the Expert’s convictions and lapsed certification cannot be considered newly 

discovered evidence of actual innocence. Second, Mr. Hoskins contends that because 

there is no procedural bar to his motion, his trial counsel’s failure to object to a 

superfluous jury instruction was unreasonable. He contends that this unreasonable 

choice prejudiced him to the extent that it would have likely changed the result. Third, 

after assuming that his motion is not procedurally barred, he contends that the Expert’s 

testimony was so unreliable, yet so central to the State’s case, that he deserves a new 

trial. 

7. For the reasons discussed in the Report, the Court need not address his 

second and third arguments as to substance. It need not because his motion is 

procedurally barred. 

8. As to the Court’s scope of review for this appeal, a judge who reviews a 

commissioner’s recommendations and report must conduct a de novo review of the 

record to examine “those portions of the report or specified proposed findings or 

5 Hoskins v. State, ID No. 0809018844, Freud, Comm’r, at 15 [hereinafter Comm’r. Report] (June 

15, 2022) (review pending).

6

Id. at 16.
4

recommendations to which an objection is made.”7 During the judge’s review, he or 

she may request further evidence from the parties or recommit the matter to the 

commissioner for further action.8 At the conclusion of the review, the judge either 

accepts, rejects, or modifies the report in whole, or in part.9 

9. Since this is Mr. Hoskins’ second motion for postconviction relief, he has 

a heavy burden when seeking to overcome Rule 61(d)(2)’s pleading requirements.

10

 

Namely, the Rule requires him to plead with particularity that either: (1) new evidence 

exists that creates a strong inference that he is actually innocent; or (2) there is a new 

rule of constitutional law that renders his convictions invalid.

11

 Mr. Hoskins does not 

allege that a new rule of law applies. Rather, he relies upon the first exception. 

10. As explained in the Report, Mr. Hoskins’ appeal fails because what he 

alleges is “new” evidence does not create a strong inference of innocence. Namely, 

the unrelated fraudulent conduct that he pleads postdated both trials by eight years. 

Furthermore, the Expert’s subsequent fraudulent conduct is different in kind than (1) 

the Expert’s analysis, and (2) the Expert’s opinions based upon that analysis. 

Similarly, any lapse in the Expert’s certification, after the trials, bears no relationship 

to his testimony during the trials. When accepting Mr. Hoskins’ allegations as true, 

new information regarding the Expert’s fraudulent business record filings and lapsed 

certification has no nexus to his prior trial testimony. 

WHEREFORE, after considering Mr. Hoskins’ objections to the Report, and a 

de novo review of the record, the Court ADOPTS the Report attached as Exhibit A in 

its entirety. For the reasons explained above and for those explained in the Report, 

7 Super. Ct. Crim. R. 62(a)(5)(iv).

8 Super. Ct. Crim. R. 62(a)(5)(iv).

9

Id.

10 Super. Ct. Crim. R. 61(d)(2)(i) & (ii).

11 Id.
5

Mr. Hoskins’ second motion for postconviction relief must be DENIED. 

IT IS SO ORDERED.

 /s/Jeffrey J Clark 

 Resident Judge

JJC

oc: Prothonotary

cc: The Honorable Andrea M. Freud

Trial Counsel

Postconviction Counsel of Record
6

Exhibit

A
7

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

v.

TREMEIN D. HOSKINS,

DEFENDANT.

:

:

:

:

:

:

:

:

:

:

ID. No. 0809018844

 RK 09-12-1214- 02 MURDER 2nd

RK 08-09-1286-02 PFDCF (F)

RK 08-11-0556 02 

RK 08-11-0558 02

RK 08-11-0560 02

RK 08-11-0555-02 RECK END 1ST (F)

RK 08-11-0557-02 

RK 08-11-0559-02

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Second 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.

Herbert W. Mondros, Esq. for Defendant.

FREUD, Commissioner

June 15, 2022

The Defendant, Tremein D. Hoskins (“Hoskins”), was found guilty on October 

9, 2009, by a jury of four counts of Possession of a Firearm During Commission of a 

Felony, 11 Del. C. § 1447A and three counts of Reckless Endangering First Degree, 

11 Del. C. § 604. The jury was unable to reach a unanimous verdict on the one count 

of Murder in the First Degree. The Murder count proceeded to a second trial as a lesser 

included count of Murder in the Second Degree. On December 10, 2009, the second 
8

jury found Hoskins guilty of Murder in the Second Degree. Prior to the second trial 

the State entered a nolle prosequi on one count of Conspiracy Second Degree. On 

January 26, 2010, Hoskins was sentenced to forty-three years at Level V, followed by 

varying levels of probation. Thirty-five years were minimum mandatory time. 

A timely Notice of Appeal to the Delaware Supreme Court was filed. Hoskins’ 

counsel raised three issues on appeal which the Supreme Court classified as follows: 

Hoskins raises three arguments on appeal. First, Hoskins 

contends that the trial judge committed plain error in failing 

to instruct the jury specifically on how it should evaluate the 

credibility of the testimony of the alleged accomplice. 

Second, Hoskins contends that the trial judge committed 

plain error by failing to instruct the jury that it must agree 

unanimously upon the particular act or acts of criminality. 

Third, Hoskins contends that the trial judge committed plain 

error in admitting a witness’s prior out-of-court statements 

pursuant to title 11, section 3507 of the Delaware Code.12

The Supreme Court affirmed Hoskins’ conviction and sentence as to all of his 

claims.13 The mandate issued on March 11, 2011.

Next, Hoskins, through new counsel, filed a Motion for Postconviction Relief 

pursuant to Superior Court Criminal Rule 61. In his first Postconviction Motion, 

Hoskins raised multiple grounds for relief including ineffective assistance of counsel. 

This Court denied Hoskins’ Motion and that ruling was affirmed by the State Supreme 

Court on appeal.14 Next, Hoskins filed a Federal Habeas Corpus Motion which was 

likewise denied.15 Finally, Hoskins filed the pending second Motion for Postconviction 

12 Hoskins v. State, 14 A.3d 554, 556 (Del. 2011).

13 Id. at 566.

14 State v. Hoskins, Aff’d 102 A.3d 724 (Del. 2014)

15 Hoskins v Pierce, 217 F.Supp.3d 798 (D. Del. Nov. 16, 2016) See also Hoskins v. Vaughn, No.16-4331 (3d 

Cir. April 18, 2017) denying application Certificate of Appealability
9

Relief through counsel on January 28, 2021. The matter was set for briefing and there 

were several extensions to the briefing order. 

FACTS

The following is a summary of the facts as noted by the Supreme Court in its 

opinion:

Late one September evening, fifteen to twenty people were 

socializing outside of a community known as Capital Green 

in Dover. The group was ‘just standing out there talking, 

having fun.’ Music could be heard playing from one of their 

cars. The group included Brandon Beard, Leia Tolson, 

Jermaine Brown, Lentia Brown, Ashley Walton, and Lisa 

Moaney.

Meanwhile, less than two miles away in a residential area 

known as Capitol Park, another group of individuals was 

preparing to make the short trip to Capital Green. That group 

included Tremein Hoskins, Brett Hoskins, Darryl 

Copperhead, and Alonzo West. FN2 Those four men got into 

West’s burgundy Buick. West drove the car, Tremein 

Hoskins sat next to him in the front passenger seat, and Brett 

Hoskins and Copperhead sat in the back of the car. The group 

stopped at a nearby Royal Farms to get gas and continued on 

to Capital Green. FN3

FN2. Although never confirmed, the two groups allegedly 

were involved in an ongoing dispute. The State alleged that 

the Capitol Park group was targeting Jermaine Brown on the 

night of the crime. In a statement to police, West explained 

that members of the Capital Green group assaulted 

Copperhead and that the Capitol Park group may have been 

retaliating.

FN3. At Hoskins’ trial, West testified that, during the stop at 

Royal Farms, Brett Hoskins exited the burgundy Buick with 

a gun and got into a Jeep Cherokee that also was traveling to 

Capital Green.
10

Shortly thereafter, Leia Tolson observed at least two vehicles 

approach the crowd at Capital Green. First, a Jeep Cherokee 

drew near, and then a burgundy Buick ‘slowed down in front 

of [the crowd]’ and ‘the person in the back seat rolled their 

window down.’ At that time, Tolson knew ‘something 

wasn’t right,’ and that ‘some shots or something was going 

to get fired because of the way the cars [ ] came in at that 

time of night, you don’t usually see cars come in like that.’ 

The cars parked one behind the other, not far from the crowd. 

FN4 Then Tolson ‘just heard gunshots’ coming from ‘where 

the cars had parked at.’FN5 Although it is unclear how many 

shots were fired that night, Tolson heard ‘at least fifteen 

gunshots.’FN6 Tolson and the others then started to run to 

Lisa Moaney’s nearby house.

FN4. Tolson’s testimony was not consistent entirely. She 

also testified that ‘[t]here was at least four cars out there.’

FN5. Tolson testified: ‘That wasn’t just one gun. Yeah, it 

would have been more than one person shooting.

FN6. Lisa Moaney testified that she heard ‘six or seven’ 

shots. Officer Jeffrey S. Welch, who was patrolling nearby, 

testified that he heard ‘a string of five, then a pause, then a 

string of four’ shots.

Tolson looked back ‘to make sure that [they] didn’t leave 

anybody outside.’ She saw Brandon Beard ‘on his knees; 

and he was holding his chest with one of his arms out.’ 

Tolson and a friend then carried Beard into Moaney’s house 

and laid him on a couch. Beard ‘patted his chest’ and 

informed his friends that he had been hit. Then, Tolson 

observed ‘the blood just [ ] coming through his sweats.’ 

Tolson called 911 from her cell phone. Beard stated, ‘I can’t 

breathe.’ Beard then told his friends: ‘[c]all my mom’ and 

‘[d]on’t leave me.’ Beard repeatedly stated: ‘I am going to 

die’ and [t]ake care of my kid.’ Shortly thereafter, 

paramedics arrived and transported Beard to nearby Kent 
11

General Hospital. Dr. Samuel Wilson, who was on call that 

night received a page and reported to the hospital. Doctors 

began operating on Beard at approximately 2:00 a.m., but 

they were unable to save him. Beard was pronounced dead 

at 5:36 a.m. Doctor Judith Tobin identified the cause of 

death as ‘irreversible shock due to massive hemorrhage due 

to a gunshot wound to the left lung and the left subclavian 

vein.’ Tobin opined that Beard ‘had his back to where the 

bullet came from.’

Later that day, Detective Robert Roswell interviewed 

Tremein Hoskins. First, Hoskins told Roswell that he was 

not at Capital Green when Beard was shot. Later in that 

interview, he recanted and admitted that he was at Capital 

Green, but stated that he did not see the shooting. During 

that interview with Tremein Hoskins, Roswell learned that 

Tremein and Brett Hoskins were in a burgundy Buick on the 

night of Beard’s death and that a man named ‘Lonny’ 

supposedly drove the car.

Two days later, Roswell and another detective drove to 

Capitol Park, where they believed ‘Lonny’ resided. As they 

approached the entrance to the development, Roswell saw a 

burgundy Buick pulling out of the Capitol Park entrance. 

Roswell stopped the vehicle and its driver, Alonzo West. 

Roswell searched the vehicle, with West’s consent, but found 

nothing related to the homicide. West arrived at a nearby 

police station approximately thirty minutes later and 

voluntarily discussed the events of the night in question. 

West stated that he was playing pool with friends earlier 

during the night of the shooting and that he had drank one 

beer. He also stated that he went to various liquor stores in 

Dover and then returned to Capitol Park. When asked who 

got into West’s car later that night to go to Capital Green, 

West replied: ‘Well, Copperhead, as well call him, and me 

and Tre[mein]. And that is it.’FN7 West then admitted that he 

owned a Ruger 9mm,FN8 but that neither he nor Copperhead 

exited the vehicle or fired a gun that night. But West stated 

that Hoskins used his gun:
12

FN7 Later in the interview, the detective stated: ‘They said—

the guys, got out of the burgundy car, that were shooting. So, 

you need to be very clear on exactly who was with you.’ 

West replied: ‘It was Tre[mein], um, Copperhead.’

FN8. West also stated that another man, ‘Boojie,’ had a gun 

that night and that ‘[i]t may have been a nine too.’ 

Detective: So who did you let use your gun? Was it somebody in your 

car?

West: Hm, yeah.

Detective: Which one?

West: Ah, Tre[mein].

Detective: Ok, now afterwards, does he give it back to you?

West: Well, yeah.

Detective: All right. Does he get out and shoot, or does he shoot out the 

window, or what?

West: Hm, got out FN9

FN9. Earlier in the interview, in contrast, West stated: 

“Listen. Like I said, I don’t know if anybody got out, if 

Doobie got out. I don’t know.

* * *

Detective: How many times you figure he shot?

West: Who?

Detective: Tre[mein].
13

West: Could only shoot five rounds.

At the end of the interview, Roswell obtained West’s consent 

to retrieve the Ruger 9mm from West’s girlfriend’s trailer. 

Roswell found a blue gym bag, which contained a gun case. 

That gun case contained a Ruger 9 mm handgun. The Ruger 

9mm contained a magazine, but no bullets. Roswell also 

found a receipt for the Ruger 9mm that identified West as its 

purchaser. The gym bag also contained, among other things, 

‘a Wal-Mart bag with a box of .22 -caliber bullets, a 50—

count box, and all the bullets were in the box.’

Roswell then interviewed Tremein Hoskins again. In that 

interview, Hoskins finally admitted that he fired West’s gun 

on the night of Beard’s death, but Hoskins did not describe 

the type of gun he fired. In his previous interview, Hoskins 

had denied even observing the shooting. Hoskins explained 

his recantation as follows: “I didn’t know what was going on 

yet. I didn’t know what was what. I am not—that’s 

something that I don’t do all the time, so I wasn’t involved 

in anything like that on any other occasion.’

Back at the scene of the crime, police recovered twelve spent 

shell casings. Carl Rone of the Delaware State Police 

Forensic Firearms Service Unit determined that seven were 

fired from one gun and five were fired from another. When 

police recovered those spent shell casings, the group of five 

and the group of seven were approximately twelve to fifteen 

feet apart. Rone determined that all were fired from 9mm 

handguns. No. 22 caliber casings were found. Rone 

analyzed test rounds fired from the Ruger 9mm that Roswell 

recovered from West’s residence and determined that the 

bullet that killed Beard had been fired from that Ruger 9mm. 

Rone also determined that of the twelve shell casings that 

were recovered from the crime scene, five matched West’s 

Ruger 9mm.FN10

FN10. Police never recovered the other 9mm handgun that 

was fired on the night of the crime.
14

There was additional forensic evidence, but it proved 

inconclusive. Corporal Marc Gray found one fingerprint on 

the magazine of West’s Ruger 9mm. The fingerprint was on 

the middle of the magazine. So it likely resulted from that 

person either loading the magazine with bullets or loading 

the gun with the magazine. Police determined that the 

fingerprint did not match Tremein Hoskins’ fingerprint.

Approximately one year after his first statement to police, 

West gave a second interview in connection with a plea. He 

stated: ‘[Hoskins] asked me yo can you go get you um get 

you um get your gun. I got you this and that. He asked me 

about 3 or 4 times so.’ West confirmed that he drove the 

burgundy Buick that night and stated that ‘Tremein, Brett, 

and um Copperhead was in the car,’ but when they stopped 

at Royal Farms, ‘Brett got out the car and jumped [ ] in the 

Jeep.’ FN11 West stated that he followed a Jeep into Capital 

Green and the following occurred:

FN11. West stated that he could not recall if anyone spoke during 

the ride because he ‘was drinking a little bit’ that night.

[The Jeep] was like little bit behind me I mean I was like like

here may been on the other side like little back in back or 

whatever and then me [ ] Trem[e]in and Copperhead were 

sittin in the car then um next thing we was talking next thing 

we heard uh was bop bop bop then Tremein jumped out the 

car he grabbed the gun, jumped out the car me and 

Copperhead stayed in the car and then when uh when I heard 

shots (unintelligible) you know what I mean (unintelligible). 

West stated that the group then returned to Capitol Park, 

discussing what had just occurred. West recalled:

Yeah and um um Brett and um (unintelligible) about 

something and (unintelligible) said um about mentioned 

about um yeah I shot up in the air whatever something like 

that. Didn’t nobody shoot up in the air. The um Brett said 
15

um pointed to what 2 or 3 people you all see what I done 

right. You see what I done. You see what I done.FN12

FN12. West also stated that between the time of his first and second 

statements, he saw Tremein in prison: West recalled: ‘He said well 

I sh I shot up in the air and that’s all he said. You know he said 

maybe 2 3, times and well I shot up in the air. I ain’t shoot at 

nobody. I I just shot up in the air.’

- - -

After declaring a mistrial as to the murder first degree and 

conspiracy first degree counts, the Superior Court scheduled 

another jury trial. The State dropped the conspiracy count 

and proceeded on the lesser-included charge of murder 

second degree.

West testified at Hoskins’ second trial. When asked why 

Hoskins exited the burgundy Buick, West explained: ‘It was 

a couple of shots. But then he had jumped out of the car. 

Grabbed the gun, and jumped out of the car.’ West also 

testified that, upon Hoskins’ request, West brought his Ruger 

9mm with him that night and that Hoskins grabbed it from 

under the armrest when exiting the car. West recalled that 

he heard ‘a couple more shots,’ and then Hoskins got back 

into the car ‘maybe two, three seconds after that.’ West 

testified that ‘[b]etween four and five’ bullets were in the gun 

when Hoskins exited the car and that the gun was empty 

when Hoskins returned. As for the blue gym bag that police 

recovered from West’s home, West testified that everything 

in it belonged to him,FN14 except the .22 caliber rounds.FN15 

Despite pleading guilty to conspiracy first degree, West 

testified that he did not conspire with anyone on the night of 

Beard’s death. West was unable to explain inconsistencies 

that existed between his prior police statement and his 

testimony at trial.

FN14. The blue gym bag contained, among other 

things, the Ruger 9mm, a receipt for that gun with 

West’s name on it, prescription bottles with West’s 
16

name on it, bills addressed to West, and a cell phone 

charger.

FN15. When asked why the .22 caliber rounds were 

in his bag, West explained: ‘Like I told you, somebody 

had left them in my car—left them in my car when I 

went in my house. I checked my car and stuff, and I 

seen the bag in the back. I opened it up; I seen there 

was 22 shells in it. So [one or two months before 

Beard’s death], I took the shells inside the house 

instead of leaving them in the car. I put them in the 

bag. So if I ran into them, I would ask them: Yo, you 

left your things. I would have gave them back to him.’ 

When asked why he put someone else’s .22 caliber 

rounds in a bag that contained all of his own personal 

items, West explained: ‘The reason I put them in the 

bag was because there was a little child in the house. 

So, I put them in a bag where it would be safe at where 

he couldn’t get to them.’

Tremein Hoskins also testified at his second trial. He 

testified that he did not shoot Brandon Beard and that he shot 

a .22 caliber revolver, not a Ruger 9mm. Hoskins stated that 

West had a .22 revolver that night and that West handed that 

gun to him. Hoskins testified that the .22 caliber revolver 

was ‘black and silver—or chrome, black and chrome; either 

one of those’ and that West had owned it only for a few 

months. But, Hoskins recalled that he had used the .22 

caliber revolver to ‘shoot beer bottles and things like that.’ 

Hoskins testified that he shot the .22 caliber revolver into the 

air on the night that Beard was killed ‘[l]et them know I had 

a gun too, and just to scare somebody off.’ Lastly, Hoskins 

testified that West refers to the .22 caliber as a ‘walkie’ 

because ‘it’s unregistered, and he carries it with him.’FN16

FN16. Police never recovered the .22 caliber revolver that Hoskins 

described.
17

At the prayer conference, defense counsel did not request 

accomplice credibility or single theory unanimity jury 

instructions.FN17 But, the State requested a general accomplice 

liability instruction, which the trial judge gave.FN18 The jury found 

Hoskins guilty of murder second degree, and for that conviction, 

the trial judge sentenced him to forty years at Level V, with a 

mandatory prison term of fifteen years. This appeal followed.

FN17. Defense counsel also did not request those jury instructions 

at Hoskins’ first jury trial When asked why defense counsel did 

not request an accomplice credibility jury instruction, appellate 

counsel, who was also defense counsel, stated at oral argument: ‘It 

was not requested. . .It was a matter of oversight. . . Looking back 

on it, it should have been done, but it’s a matter of oversight.’

FN18. The trial judge also gave a general instruction on the 

credibility of witnesses as follows: ‘You are the sole judge of the 

credibility of each witness including the defendant and of the 

weight to be given to the testimony of each. You should take into 

consideration each witness’ means of knowledge; strength of 

memory and opportunity for observation; the reasonableness or 

unreasonableness of his/her testimony; the consistency or 

inconsistency of his/her testimony; the motives actuating him/her; 

the fact, if it is a fact, that his/her testimony has been contradicted; 

his/her bias, prejudice, or interest, if any; his/her manner or 

demeanor upon the witness stand; and all other facts and 

circumstances shown by the evidence which affect the credibility 

of his/her testimony.’16 

HOSKINS’ CONTENTIONS

In this corrected Second Motion for Postconviction Relief, Hoskins, through 

counsel raises the following three grounds for relief:

Ground One: The interests of justice, and Rule 61(d)(2)(i), 

require Petitioner be granted a new trial based

16 Hoskins v. State, 14 A.3d 554, at 556-559 (Del. 2011)
18

on monumental credibility issues surrounding 

the State’s expert witness, discovered after 

direct and Postconviction review, where 

Petitioner’s conviction hinged on the witness’s 

testimony 

Ground Two: Based on the first jury’s acquittal of the intent 

to kill element, trial counsel’s allowing this 

Court to instruct on intent to kill, constituted a 

miscarriage of justice, and separately warrants 

Rule 61 (d)(2)(i) relief.

Ground Three: Rone’s match testimony was critical in 

obtaining convictions in both trials – there is no 

longer any basis to assume its reliability.

DISCUSSION

Under Delaware law, this Court must first determine whether Hoskins has met 

the procedural requirements of Superior Court Criminal Rule 61 before it may consider 

the merits of his postconviction relief claim.17 The Court considers a Motion for 

Postconviction Relief under Rule 61 as a matter of discretion.18 Prior to addressing the 

merits of a Rule 61 motion, the Court must first consider and apply the procedural bars 

set forth in Rule 61.19 “To protect the procedural integrity of Delaware’s rules, the 

Court will not consider the merits of a postconviction claim that fails any of Rule 61’s 

procedural requirements.”20 “Rule 61 is intended to correct errors in the trial process, 

not to allow defendants unlimited opportunities to relitigate their convictions.”21

17 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

18 Durham v. State, 2017 WL 5450746, at *1 (Del. Nov 13, 2017)

19 Id.; Wright v. State, 91 A.33d 972,985 (Del.2014); Maxion v. State, 686 A.2d 148, 150 (Del. 196) (Citing 

Younger v. State, 580 A.2d 552 ,544 (Del.1990)).

20 State v. Page, 2009 WL 1141738, at *3 (Del. Super. Apr.28, 2009).

21 Ploof v. State, 75 A.3d 811, 820 (Del. 2013); Walls v. State, 2016 WL 4191922,at *1(Del. Aug.1, 216) 

(“[The Court] will not continue to invest scarce judicial resources to address untimely and repetitive claims.”); 
19

The version of Rule 61 in place at the time a defendant files his or her motion 

for postconviction relief controls.22 Here, Hoskins filed his corrected second Rule 61 

motion on January 28, 2021. Accordingly, Hoskins’ motion is governed by the version 

of Rule 61 existing after the substantial amendments effective June 4, 2014.23

Rule 61(i) establishes four procedural bars to postconviction relief.24 Rule 

61(i)(1) provides that a motion for postconviction relief must be filed within one year 

of a final judgment of conviction.25 Under Rule 61(i)(2), successive motions are 

barred, unless under Rule 61(d)(2)(i), the movant “pleads with particularity” that “new 

evidence exists that creates a strong inference that the movant is actually innocent in 

fact of the acts underlying the charges of which he was convicted;” or, under Rule 

61(d)(2)(ii), that a new rule of constitutional law, made retroactive to cases on 

collateral review by the United States Supreme Court or this Court, applies to his case 

and renders his conviction invalid.26 Rule 61(i)(3) bars consideration of any claim not 

asserted in the proceedings leading up to the judgment of conviction unless the movant 

can show “cause for relief from the procedural default” and “prejudice from violation 

of movant’s rights.” 27 Rule 61(i)(4) provides that any claim that has been formerly 

Flamer v. State, 585 A.2d 736, 745 (Del.1990) (“It is a matter of fundamental import that there be a definitive 

end to the litigable aspect of the criminal process.”) I also note that Hoskins has had multiple opportunities to 

litigate his claims both in this Court, before the State Supreme Court, the Federal District Court, and before 

the Third Circuit Court of Appeals.

22 See, e.g., Durham, 2017 WL 5450746, at *2 (applying version of Rule 61 in effect when defendant filed 

Rule 61 motion); Coles v State, 2017 WL 3259697, at *2 (Del. July 31, 2017) (same); Redden v. State, 150 

A.3d 768, 772 (Del. 2016) (same); Bradley v. State, 135 A.3d 748, 757 n.24 (Del. 2016) (same); Jones v State, 

2015 WL 6746873, at *1 & n.4 (del. Nov. 4, 2015) (same); Turnage v. State, 2015 WL 6746644, at *1 (Del. 

Nov. 4,2015) (same); Collins v. State, 2015 WL 4717524, at *1 (Del. Apr. 28, 2016) (“Superior Court 

erroneously applied the provisions of Superior Court Rule 61 that were in effect before the appellant filed his 

second Rule 61 Petition on September 1, 2015.”)

23 Rule 61 was substantially amended in June 2014 with the adoption, among other things, of new procedural 

bars for second and subsequent motions found in Rule 61 (d)(2) and referenced in Rule 61(i)(5). These new 

procedural requirements apply to any postconviction motion filed after June 4, 2014.

24 Super. Ct. Crim. R. 61(i)(1)-(4)

25 Super. Ct. Crim. R. 61(i)(1).

26 Super. Ct. Crim. R. 61(i)(2)

27 Super. Ct. Crim. R. 61(i)(3).
20

adjudicated is thereafter barred.28 Rule 61(i)(5) provides that any claim barred by Rule 

61(i)(1)-(4) may nonetheless be considered if the claim is jurisdictional or otherwise 

satisfies the pleading requirement of Rule 61(d)(2)(i) or (d)(2)(ii).29 

Hoskins’ Motion for Postconviction relief is clearly barred under Rule 61(i)(1) 

and (2). Hoskins’ convictions became final in February 2011, when the Delaware 

Supreme Court issued its mandate. Hoskins filed this corrected second Motion for 

Postconviction Relief in January 2021, nearly ten years after his conviction was final. 

Accordingly, Hoskins’ second Rule 61 motion is procedurally barred by Rule 

61(i)(1)and (2), as untimely and successive,30 and should be summarily dismissed 

under Rule 61 (d)(2)31 unless Hoskins can show his claims satisfy the exceptions to the 

procedural bars.

There are no “miscarriage of justice” or “interest of justice” exceptions to the 

procedural bars of Rule 61(i)(1) and (2) available to Hoskins as a result of the June 

2014 amendments of Rule 61. Hoskins can only overcome the procedural default and 

avoid summary dismissal of his untimely and successive postconviction motion, if he 

presents a claim that the Court lacked jurisdiction32 or pleads with particularity that: 

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

29 Super. Ct. Crim. R. 61(i)(5).

30 The extent Hoskins appears to be attempting to relitigate previously adjudicated claims, such claims are 

procedurally barred by Rule 61(i)(4), as previously adjudicated. Further, to the extent Hoskins could have 

raised his claims in his direct appeal, those claims are barred by Rule 61(i)(3) as a result of Hoskins’ failure to 

assert these grounds for relief in the proceedings leading up to conviction, because he has not established cause 

for failure to do so or prejudice from a violation of his rights. 

31 Merritt v. State, 2018 WL 5831275 (Del. Nov. 5, 2018) (affirming summary dismissal of second Rule 61 

motion under Rule 61(d)(2)); Sykes v. State, 2018 WL 49*32731, at *1-2 (Del. Oct.10, 2018); Young v. State, 

2018 WL 2356412, at *1 (Del. May 23, 2018) (same); Williams v. State, 2018 WL 2110967, at *1 (Del. May7, 

2018) (same); Holmes v. State, 2018 WL 637312, at *1 (Del. Jan. 30, 2018) (same); Durham, 2017 WL 

5450746, at *2 (same); State v. Jones, 2016 WL 7338591, at *7-8 (Del. Super. Dec.16, 2016), Aff’d, 2017 WL 

47535974 (Del. Oct. 10, 2017) (same); Coles, 2017 WL 3259697, at *1-2 (same); State v. Worley, 2018 WL 

3302806, at *2-3 (Del. Super. July 3, 2018) (Summarily dismissing defendant’s second Rule 61 motion as a 

successive motion under Rule 61(i)(2), because defendant could not meet pleading requirements of Rule 

61(d)(2)).

32 Super. Ct. Crim. R. 61(i)(5).
21

(1) “new evidence exists that creates a strong inference that [he] is actually innocent in 

fact of the act underlying the charges of which he was convicted,” or (2) a new rule of 

constitutional law made retroactive to cases on collateral review applied to his case and 

rendered his convictions invalid.33 Hoskins fails to satisfy these pleading requirements, 

and thus, his motion must be “summarily dismissed” under Rule 61(d)(2) without 

consideration of the merits.34 

Hoskins does not present a claim under Rule 61(i)(5) that the Court lacked 

jurisdiction over his convictions. Hoskins also does not plead the existence of a 

retroactively applicable rule of constitutional law to his case under Rule 61(d)(2)(ii). 

Instead, Hoskins claims to be in possession of “newly discover evidence” 

demonstrating his innocence, thereby satisfying the actual innocence exception to the 

procedural bars. Specifically, Hoskins asserts that State Forensic Firearms Examiner, 

Carl Rone’s recent arrest and subsequent guilty plea demonstrate that he is actually 

innocent of his charges. Rone was indicted in 2018 for criminal acts that occurred over 

a period of time in 2016-2017. He pled guilty to Theft by False Pretense and Falsifying 

Business Records in 2018. The allegations involved Rone falsifying payroll records 

and being paid for time when he was not working. The allegations did not involve 

mishandling evidence, falsifying documents related to his examinations of evidence, 

or the reports he produced and to which he later testified. 

Hoskins has not proffered any new evidence that calls into question Carl Rone’s 

testimony in the case. In postconviction, Hoskins retained forensic ballistics examiner 

Frederick Wentling to provide evidence in support of his motion. Hoskins includes a 

September 15, 2020 report from Wentling which, he contends, invalidates Carl Rone’s 

testimony. He is mistaken. This 2020 report is not Mr. Wentling’s first exposure to 

33 Super. Ct. Crim. R. 61(d)(2)

34 Id.
22

this case. Hoskins retained Wentling in 2009 to provide forensic ballistics analysis in 

support of his defense, at trial.35 Wentling and Hoskins’ trial counsel were given access 

to Carl Rone, his case file and his laboratory (standard practice) to review the ballistics 

evidence in this matter.36 On September 11, 2009, Hoskins revealed to the State the 

substance of Wentling’s opinion.37 Ultimately, Hoskins elected not to call Wentling in 

his defense at trial. Nothing contained in Wentling’s 2020 report is premised on 

evidence unavailable to him in 2009 (when he actually handled the ballistics evidence). 

Hoskins made a tactical decision by not calling Wentling as a witness. Hoskins’ 

allegations fail to make even a preliminary showing of his actual innocence of the 

charges he committed in 2008. The only thing that has changed is Rone’s conviction 

in 2018, for crimes committed after Hoskins’ trial. Which had no bearing on his firearm 

competence. 

In his reply to the State’s brief, Hoskins attempts to argue that the fact that his 

current/former expert, (who Hoskins now claims totally invalidates Rone’s testimony), 

was consulted by Hoskins’ trial attorney and reviewed the evidence fully prior to trial, 

is irrelevant to this Court’s determination concerning whether he has presented “new 

evidence of actual innocence.” Hoskins is incorrect. The ballistic evidence is the same, 

as it was when Wentling had the opportunity to review the evidence before the trial. 

Had Wentling concluded that it pointed to Hoskins’ innocence, it could have been 

presented at trial. Hoskins’ circular argument appears to be that because we now know 

that Rone falsified payroll records, (not forensic evidence), for his financial gain, that 

somehow that changes the actual facts of his case; it does not. Hoskins presents no 

evidence that would lead the Court to believe that Rone’s testimony in his trial was 

false. If he had issues with Rone’s “methods” etc., he had the opportunity at his trial to 

35 Letter from trial counsel referenced at Event number 14 in the Criminal Docket.

36 See Paragraph 7 of State’s Response to Defendant’s Motion in Limine. Daubert Hearing

37 Letter from trial counsel State’s Exhibit D
23

present that evidence with the very same expert he now wishes to use. That evidence 

is not new.

Hoskins also contends that Carl Rone’s testimony was the only evidence offered 

by the State to refute the defense ricochet theory. Hoskins is mistaken. Dr. Judith 

Tobin, the State’s forensic pathology expert, conducted the autopsy of Brandon Beard 

and testified at Hoskins’ trial.38 Dr. Tobin described the entry would as follows:

Now, this is the entry wound.

This is his back – here is the back of his head; and here is the entry 

wound. You can see it is quite round. It’s a typical entry wound 

really. It’s round.

There is slight beveling, which is – part of the wound is more 

shallow. In other words, if the bullet goes – say this is the 

person. If the bullet goes straight, then there would be no 

beveling; it would be round. 

If the bullet goes in from – I want to say the bottom, down here 

– if it goes in slightly at an angle, you get a flattening or more 

shallow beveled edge here. So, it doesn’t go straight down on 

that side, and then it goes at an angle. 

So, this beveling would imply that the bullet sort of came in at 

an angle like this.39

Dr. Tobin further explained the beveling as follows: “See how this part is 

shallower and this is deeper here, so that is probably came in at an angle like that or 

like that.”40 Dr. Tobin went on to explain that the bullet entered the body and proceeded 

through it at a 45-degree angle going from back to front and from “ inferior to superior, 

that’s from down to up.”41 She also explains that the fact that the bullet went through 

at a 45-degree angle did not necessarily mean that the bullet was fired at a 45-degree 

angle because Beard’s body may have been bent over at the time he was shot. 

38 Tobin Transcript.

39 Tobin Transcript, page 65 L 7-22

40 Tobin Transcript, page 66 L 3-5

41 Tobin Transcript, Page 68 L21-22
24

Especially if he was running trying to escape the gunfire.42 Finally she stated that the 

beveling on the wound was “slight, slight.”43 All of this testimony, corroborates Rone’s 

testimony that the bullet had not ricocheted prior to entering Beard’s back. 

Of course, Dr. Tobin’s evaluation of the entry wound was different than the 

evaluation offered by the defendant’s expert, Dr. Arden. The jury was able to evaluate 

both opinions and come to its decision. Additionally, as noted by the Supreme Court 

in its opinion on Hoskins’ direct appeal, Alonzo West stated that Hoskins did not fire 

the gun up in the air, in direct contradiction of Hoskins testimony, and was evidence 

that Hoskins was in fact firing the weapon into the crowd. Of note also, is the fact that 

Hoskins changed his story several times. Initially Hoskins said he wasn’t at the scene. 

Next, he admitted he was there but didn’t see any shooting. Subsequently, at a second 

interview he finally admitted to shooting “up in the air” but didn’t say what type of gun 

he used. Only after hearing that the bullet that killed Beard was a 9mm did Hoskins 

claim to have used a .22 caliber revolver.44 Only 12 - 9mm shell casings were found at 

the scene. All of this evidence further contradicted Hoskins self-serving story, which 

apparently the jury simply did not believe.

Additionally, of the 12 - 9mm shell casing that were found, 7 of them were 

located together and the other 5 were located in another grouping several feet away 

from the cluster of 7 casings. Importantly, West’s Ruger 9mm gun, which Hoskins was 

accused of using, had only a 5-shell capacity and it was one of those bullets that caused 

Beard’s death. West also testified that Hoskins had asked him to bring his gun when 

they left Capitol Park. Hoskins in his motion attempts to suggest that there were 

“multiple” guns used, i.e., several 9mm and possibly a .22 revolver and that the crowd 

42 Tobin Transcript, Pages 70-76 

43 Tobin Transcript, Page 76

44 The fact that he claimed to have shot a revolver is also interesting since revolvers typically do not 

have shell casings thus providing a “reason” for why no .22 casings were located at the scene
25

may have been shooting at Hoskins. However, the one trained police officer who heard 

the shots testified that he heard two bursts of gun fire. First a string of five shots, 

followed by a string of four shots. Unlike the civilian witness, Officer Welch, as a 

trained police officer, was more likely to have a better idea of the precise number of 

shots fired. His testimony is closer to the physical evidence found on the scene of one 

cluster of 5 shells and a separate cluster of 7 shells confirming the fact that only the 

two 9mm guns were used. Interestingly, the fact that the first cluster Officer Welch 

heard was a burst of five shots could indicate that it was West’s Ruger 9mm that killed 

Beard was the first gun to have been fired. Consequently, wasn’t shot out of selfdefense or fear as Hoskins claimed. In this case there was far more evidence 

supporting Hoskins’ guilt than merely Rone’s testimony. Hoskins had ample 

opportunity to contradict Rone’s testimony during his trial with the very witness he 

now alleges supports his actual innocence. 

On August 14, 2009, Hoskins filed a Motion in Limine, or in the alternative, for 

a Daubert Hearing seeking to preclude the State from introducing Rone’s ballistic 

testimony. As noted by the State in its response, it answered this Motion on August 28, 

2009. On July 1, 2009, the Defendant gave notice that Frederick M. Wentling was 

retained to provide “Forensic Ballistics Analysis” in the matter. The State made Carl 

Rone, his entire case file and his laboratory available to defense counsel and his expert 

(Frederick M. Wentling). As a result of that review, Wentling’s opinion was provided 

by defense counsel letter on September 11, 2009. Specifically, Hoskins informed the 

State:

I expect that Mr. Wentling will testify that, based on his 

knowledge, training and experience in the field of forensic 

ballistics and firearm toolmark analysis, the evidence is not 

inconsistent with the following: (1) the bullet that struck the 
26

victim was fired from a distance, (2) the bullet ricocheted or 

deflected off of a surface prior to striking the victim, and (3) 

the bullet struck the victim and traveled at a 45-degree angle. 

Mr. Wentling is also expected to testify about the range and 

trajectory characteristics associated with a Ruger caliber 

9mm Luger semi-automatic pistol, model P89-DC45

On September 23 and 28 of 2009, the Superior Court heard testimony and 

argument on Hoskins’ Motion. The testimony included lengthy direct, cross and Court 

questions regarding Rone’s methods. The Superior Court denied defendant’s Motion 

on September 28, 2009, and Carl Rone testified to his conclusions at trial.

In October 2018, this Court, in State v. Pierce, 

46 concluded that Rone’s expert 

testimony regarding ballistics was sufficiently dissimilar and attenuated from his 

falsification of his payroll records to not be an issue, finding:

The Court’s limited finding for purposes of this hearing 

regarding Mr. Rone’s falsification of business records 

creates a significant issue that the Court has carefully 

weighed. Mr. Pierce is correct in that payroll records, chain 

of custody records, and testing records are all “business 

records.” In the Court’s overall evaluation, however, the 

Court does not find the same motivation to be present when 

submitting records seeking extra pay that was not earned, 

compared to submitting allegedly false evidence logs and 

testing documentation when handling evidence. There is 

significant dissimilarity between these two types of business 

records. Likewise, the two types of duties at issue regarding 

Mr. Rone’s payroll submissions versus his expert testing and 

evidence processes have significant differences. As a final 

matter in the Court’s evaluation, Mr. Rone’s false 

45 State’s Exhibit D. I note that Dr. Tobin also states that the bullet traveled “through the body” at a 

45-degree angle, but the actual angle the bullet entered the body could have been quite different 

depending on what position Beard’s body was in at the time he was struck by the bullet.

46 2018 WL 4771787 (Del. Super. Oct. 1, 2018)
27

verification in his payroll records occurred in 2016 and 2017. 

In contrast, Mr. Rone’s relevant participation as a link in the 

chain of custody for the subject casing was in 2009.47

Since that time, there have been other similar rulings, in State v. George, the 

Superior Court stated that there was “nothing regarding the dismissal of Mr. Rone from 

DSP and his subsequent arrest leads me to question the reliability of the work he 

actually performed in connection with Defendant’s trial. Moreover, Defendant has 

presented no evidence tending to show that the trial testimony given by Mr. Rone was 

in any way false or misleading.”48

Hoskins argues that Fowler v. State stands for the proposition that a conviction 

should be set aside when the reliability of key evidence that defendant was the shooter 

was called into question.49 Hoskins case is distinguishable from Fowler. Fowler v. State

(Decided in August of 2018), where the Delaware Supreme Court reversed the Superior 

Court’s judgment denying Fowler postconviction relief, finding that the Jencks

violations were not harmless error when combined with the credibility issue of the 

State’s ballistic expert (Rone) witness.50 This was so because Fowler’s conviction was 

based solely on Rone’s expert testimony and the only eyewitness to both shootings, 

whose testimony was called into question by the Jencks statements.51 Here, we have a 

much different scenario as there were no Jencks violations in this case and Carl Rone’s 

expert certifications were not lapsed at the time of the trial. Additionally, Fowler dealt 

with the first postconviction relief motion for that defendant. This is Hoskins’ second 

postconviction relief motion which requests the exceptions contained in Rule 61(d)(2) 

47 Id. at *4

48 State. v. George, 2018 WL 4482504, at *3 (Del. Super. Ct. Sept. 17, 2018), dismissing reconsideration, 2019 

WL 338669 (Del. Super. Ct. Jan. 4, 2019).

49 Hoskins Corrected Second Rule 61 Motion at page 28.

50 See Fowler v State, 194 A.3d 16, 27 (Del.2018).

51 Id. at 21-22
28

be met before any relief can be given. As noted by the State Supreme Court in Dixon 

v State. 52 The fact that Rone’ testimony was alleged to be “false and misleading” was 

not based on “new evidence” but on evidence that had been available to the defense at 

the time of trial.53 The burden to show “new evidence” is very high.54

Hoskins has presented nothing that was not available to the defense at the time 

of trial to suggest that Rone’s trial testimony regarding ballistics was inaccurate or 

unreliable. Hoskins complains that Rone, in the 12 years since he testified in Hoskins’ 

case, has pled guilty to falsifying his time sheets. Moreover, that plea involved conduct 

that post-dated Hoskins’ crime by eight years. As this Court has stated, Rone’s criminal 

conduct did not impinge on his work as a toolmark examiner. Indeed, Hoskins has not 

suggested it has. Hoskins’ claim falls far short of “[pleading] with particularity that 

new evidence exists that creates a strong inference” that he is actually innocent, 55 as 

Rule 61 requires.

The Delaware Supreme Court has rejected ad hoc attacks on the credibility of 

witnesses when there is no evidence that the witness’ credibility directly impacted the 

case.56 Likewise, the Supreme Court has rejected the same type of argument requesting 

an evidentiary hearing in cases where the trial and witness’ testimony predated the 

52 2021 WL 3404223 (Del. Aug. 4, 2021)

53 Id. at 4

54 See, Pernell v State, 2021 WL 2470511 at 36-37 (Del. June 17, 2021)

55 Super. Ct. Crim. R. 61(d)(2)(i).

56 See Ira Brown v. State, 108 A.3d 1201, 1206 n.30 (del.2015) (holding that the evidence of employee 

misconduct at the OCME was “impeachment evidence that came to light after Brown pled guilty and was 

sentenced [and] did not go to his actual innocence or affect the voluntariness of his plea”). See also Anzara 

Brown v. State, 117 a.3d 568,581 (Del. 2015) (defendant not entitled to a new trial where he could no 

demonstrate that misconduct at the OCME affected his case); Bunting v. State, 2015 WL 2147188, at *3 (Del, 

May 5, 2015) (rejecting defendant’s argument that he was entitled to relief based on misconduct at OCME 

when he failed to allege or offer any proof that the misconduct compromised the integrity of his trial 

proceedings).
29

alleged misconduct.57 For the foregoing reason, I recommended that Hoskins’ first 

claim be denied.

Hoskins next claims that the trial counsel was ineffective for allowing the Court

to give an instruction on “intent to kill.” Pursuant to Superior Court Criminal Rule 

61(d)(2) this claim meets neither requirement for relief. This claim does not concern 

new evidence as contemplated in 61(d)(2)(i). It also does not claim any new rule of 

constitutional law, made retroactive to cases on collateral review by the United States 

Supreme Court or the Delaware Supreme Court pursuant to Rule 61(d)(2)(ii). This 

claim is also procedurally barred as it could have been raised either on direct appeal or 

in the defendant’s first postconviction relief motion that was filed in January 2012.58

Additionally, this claim fails on its merits because the trial court’s answer to the jury 

question was firmly grounded in the law. The Superior Court did nothing more than 

convey that which was codified in the Delaware Criminal Code describing the criminal 

states of mind.59 The Court’s answer did not require the jury to find an intentional act; 

rather, it simply elaborated on the statutory definition of “recklessness.” There was no 

constitutional violation here and I recommend this claim be denied.

Finally, Hoskins claims that Rone’s testimony was unreliable. This claim 

mirrors to Hoskins’ first claim and as detailed above is meritless. Additionally, this 

claim must also meet the requirements of Superior Court Criminal Rule 61(d)(2) to 

avoid summary dismissal. The defendant does not meet either burden in this claim.

Hoskins argues that Rone’s Testimony is flawed and the Wentling could prove 

that point if he were able to “for the first time” review the ballistics evidence in this 

case. However, Wentling was retained by trial counsel prior to both trials in 2009. As 

previously noted, Wentling offered an opinion in this case in 2009. Wentling and trial 

57 Cannon v. State, 127 A.3d 1164, 1168 (Del. 2015).

58 Mundy v. State, 788 A.2d 131 (Del. 2001)

59 11 Del.C. §253
30

counsel were given access to Carl Rone, his entire case file and Mr. Wentling was 

given use of Rone’s laboratory to conduct his own analysis. For chain of custody 

reason, the analysis had to be done at Rone’s laboratory.

After Wentling completed his analysis trial counsel provided the substance of 

his forensics ballistics opinion by letter to the State on September 11, 2009. There is 

nothing contained in the 2009 disclosed opinions that suggest unreliability with respect 

to Rone’s opinion. Hoskins chose not to call Wentling at trial.60

Now, after reviewing the trial testimony and evidence, Wentling offers another 

opinion regarding Rone’s testimony regarding the ricochet theory. A close review of 

Wentling’s 2020 report reveals that he never reviewed Dr. Tobin’s testimony, Carl 

Rone’s testimony during the Motion in Limine/Daubert Hearing, Carl Rone’s 

testimony during the State’s case in chief, nor did he review his 2009 analysis of the 

ballistics evidence. I recommend this claim be summarily dismissed.

Finally, Hoskins requests an evidentiary hearing. There is no constitutional right 

to an evidentiary hearing or to expand the record in a postconviction proceeding.61

Rather, Rule 61(d)(2) provides that the Court must summarily dismiss a second 

postconviction motion that has not been sufficiently pled under the Rule.62 Because 

Hoskins fails to plead actual innocence and makes no attempt to invoke a new rule of 

constitutional law, Hoskins is not entitled to an evidentiary hearing.

Furthermore, Hoskins’ requested to review the ballistic evidence for a second 

time. This request is moot. Wentling reviewed the firearms evidence in this case in 

2009 and offered his opinion prior to trial. This should be denied. This claim does not 

concern a new constitutional claim made retroactive by precedent. Defendant cites the 

60 See Dixon v. State, 2021 WL 3404223, (Del. Aug. 4, 2021), (where evidence available at the time 

of trial did not satisfy the requirement of Rule 61(d)(2)

61 Gattis, 697 A.2d at 1187-88.

62 Super. Ct. Crim. R. 61(d)(2).
31

2009 National Academy of Science report as calling into question Rone’s opinion. That 

report was issued prior to Hoskins’ trial. As such it was available to trial counsel and 

Wentling. In a similar case, the Delaware Supreme Court found:

Finally, we are not persuaded by Dixon’s argument that based 

largely on the authority of a 2009 National Academy of 

Science report, the nature of Rone’s ballistic analysis was so 

subjective as to render the new impeachment evidence 

decisive. Dixon had the opportunity to highlight the 

subjective nature of toolmark analysis at his trial, which 

occurred three years after the publication of the NAS report 

and chose not to do so. We decline to expand the field of our 

inquiry into areas that Dixon chose not to explore at trial 63

CONCLUSION

In reviewing the record in this case, it is clear that Hoskins has failed to avoid 

the procedural bars of Rule 61(i). Consequently, I recommend that Hoskins’ 

postconviction motion be denied as procedurally time barred by Rule 61(i)(1) and (2) 

as time barred and as a subsequent motion and as meritless.

 /s/Andrea Maybee Freud

 Commissioner Andrea Maybee Freud

AMF/jan

63 Dixon v. State, 2021 WL 3404223 at 4 (Del. Aug.4, 2021)