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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

) 

v. ) I.D. No. 1206001558

) 

)

ONEILL ROSE, )

)

Defendant. )

Memorandum Opinion

Presently before the court is Defendant’s motion for post 

conviction relief ostensibly filed on June 20, 2014. In that motion 

Defendant did not assert any claims for relief. Instead he stated 

that “Movant cannot discern substantial grounds for relief. Movant 

speaks broken (Jamaica origin) English and does not read English 

well.” According to Defendant, his grounds for relief were “to be 

determined by postconviction counsel.” The court appointed 

Patrick Collins, Esq., who enlisted the aid of his colleague Albert 

Roop Esq., to represent Mr. Rose in connection with his motion. 

Appointed counsel conducted a thorough review of the record for 

which the court is grateful. Post-conviction counsel have now 

moved to withdraw, and their motion is accompanied by an 
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extensive written submission in which they identified two potential 

claims of ineffective assistance of counsel. They concluded, 

however, that the potential claims “cannot be ethically advocated 

because constitutional prejudice cannot be established.” Defendant 

later submitted a pro se list of contentions which, he claims, entitle 

him to relief. 

A. Background

Defendant was charged with multiple crimes as a result of a 

non-fatal shooting of one April Harris at the Karribean Delight 

Restaurant on Route 13 in Wilmington. A jury convicted Defendant

of Attempted Assault first degree, Assault first degree, three counts 

of Reckless Endangering first degree and several firearms violations. 

This court sentenced him to 39 years at Level 5 but later modified 

his sentence to 25 years at Level 5. On direct appeal the Delaware 

Supreme Court reversed the conviction for Attempted Assault first 

degree and the related weapons charge, but affirmed Defendant’s 

other convictions.
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The facts giving rise to Rose’s case were well summarized by 

the Supreme Court in its opinion on his direct appeal:

Rose was involved in a shooting that took 

place on June 2, 2012, in a restaurant in New 

Castle, Delaware. Venus Cherry, who had once 

been Rose's friend but was not at the time, saw 

Rose at the restaurant. Rose lifted his shirt to 

show the gun in his waistband. Later, Cherry 

saw Rose in a “tussle” with a man named 

Trini. After Cherry intervened, Rose started 

walking toward Cherry with his loaded gun 

pointed at him. Cherry told Rose that if he was 

going to shoot, he should go ahead and do it.

Ferron Nelson, a man who was nearby, 

separated Rose and Cherry, and told Rose to 

put the gun in his car. Rose started to walk 

away, but then turned and ran after Cherry, 

who started running toward a car owned by 

Natalee Chambers. The two men faced off at 

the back of the car. Rose pointed his gun at 

Cherry's face. Cherry hit Rose in the arm, and 

the gun fired. Cherry then punched Rose in 

the face, and Rose dropped the gun. While 

Cherry and Rose were running toward 

Chambers' car, April Harris was putting her 

daughter into that car. Harris was in the car 

when she heard a pop and felt a tingling in her 

arm. She had been shot.1

 1 Rose v. State, 2014 WL 1258271, at *1 (Del.)(paragraph numbers omitted).
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B. Analysis

The court will first consider Defendant’s pro se submission 

and then consider the submission by his court-appointed postconviction counsel

1. Rose’s pro se submission

Rose has submitted several sketchy claims to supplement the 

submission by his appointed post-conviction counsel. All but one 

of those claims is procedurally barred, and the remaining claim 

lacks merit.

In his pro se Rule 61 submission Rose argues:

(1) Is the victim April Harry did victim what 

the State use for is not Harry.

(2) My lawyer was ineffective he did not do 

anything to help me.

(3) Owner of the Caribbean Delight the State 

use him has Gairy Brown and his name is 

Garay Kenneth.

(4) I did not own a gun.

(5) My girlfriend own the gun she told the 

police I have paperwork to prove it.
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(6) I was wearing green and black polo shirt 

and black dress pants with black dress shoes 

black belt.

a. Most of Rose’s pro se claims are procedurally 

barred.

The court is obliged to determine if a Rule 61 motion is 

procedurally barred before it considers the motion’s merits.

Criminal Rule 61(i)(3) does not allow this court to consider 

arguments that should have previously been raised. That portion 

of the rule prohibits consideration of:

Any ground for relief that was not asserted in 

the proceedings leading to the judgment of 

conviction, as required by the rules of this 

court, is thereafter barred, unless the movant 

shows

(A) Cause for relief from the procedural default 

and

(B) Prejudice from violation of the movant's 

rights.

Rose’s argument 1, 3, 4, 5 and 6 could have been presented at trial 

and therefore he is precluded from raising them now. His motion 

does not specify any cause for his failure to raise them nor does it 
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show any prejudice resulting from the failure to raise them. With 

respect to the lack of prejudice, the court finds:

• The court does not understand Ground 1 listed above. It 

has read Rose’s entire submittal, and the remainder of 

that submittal sheds no light on what he means in 

Ground 1.

• With respect to ground 3 (the State had the name of the 

owner of the Karibbean Delight wrong) the court holds 

that the owner’s name is immaterial to the charges 

against Rose and therefore any mistake over his name is 

not prejudicial.

• With respect to Grounds 4 and 5 (Rose did not own the 

gun) ownership of the gun is not material. Rather 

possession of the gun is the material issue. Consequently 

any failure to raise questions about the ownership of the 

gun would not be prejudicial.

• Turning to Ground 6 (the clothing Rose was wearing), the 

court does not understand what significance Rose 
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attaches to this. If he is contending that he was 

misidentified at trial, he has not made a showing of 

prejudice because the witnesses who saw the events 

mostly knew Rose personally and did not identify him by 

the clothing he was wearing.

In addition to the exceptions imbedded within Rule 61(i)(3), 

the Rule provides an exception to the procedural bars when a 

defendant “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.”2

Nowhere does Rose point to any such evidence, and therefore this 

exception does not save his claim. Accordingly Rose’s claims 1, 3, 

4, 5 and 6 are procedurally barred.

 2 Criminal Rule 61(d)(2)(i). This provision, which relates to second or successive petitions, is 

incorporated in Rule 61(i).
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b. The remaining claim lacks merit because Rose has 

not pled ineffective assistance of counsel or prejudice

with sufficient particularity.

Rose raises an ineffective assistance of counsel claim in part 2 

listed above. Unlike his other claims, his ineffective assistance of 

counsel claim could not have been raised at trial, and therefore it is 

not barred by Rule 61(i)(3). The court will therefore reach the 

merits. 

It is settled that in order to make out an ineffective assistance 

of counsel claim a defendant must show two things: (1) the 

performance of his or her counsel fell below an objective standard of 

reasonableness and (2) but for counsel’s substandard performance 

there likely would have been a different result. The reasons why 

the representation was substandard and the reasons why prejudice 

emanates from that performance must be pled with particularity. 

Conclusory allegations to the effect that “my counsel was 

ineffective” do not suffice. According to the Supreme Court,

Claims premised upon ineffective 

assistance of counsel face a familiar burden. 

Under Strickland v. Washington, Brooks must 
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satisfy [a] two pronged test. First, a convicted 

defendant must show that counsel's 

representation “fell below an objective 

standard of reasonableness.” Second, a 

convicted defendant must demonstrate 

prejudice. To show prejudice, the defendant 

must show that the proceeding's outcome 

would have been different had counsel not 

committed the challenged errors. When 

making this showing, the defendant must 

overcome “a strong presumption that the 

representation was professionally reasonable.”

The defendant must also make a concrete 

showing of actual prejudice.3

The operation of these principles is illustrated in the Supreme 

Court’s opinion in Vickers v. State,4 wherein the Court wrote:

Vickers claims that his defense counsel 

was ineffective because she did not: (i) pursue 

a claim of insufficient evidence; (ii) conduct a 

sufficient investigation of the facts; (iii) 

interview or cross-examine witnesses; (iv) call 

available defense witnesses to testify; (v) object 

to false statements by the prosecutor; and (vi) 

request a continuance. To succeed on a claim 

of ineffective assistance of counsel, Vickers 

must demonstrate that (i) “counsel's 

representation fell below an objective standard 

of reasonableness[,]” and (ii) “there is a 

reasonable probability that, but for counsel's 

unprofessional errors, the result of the 

proceeding would have been different.” 

 3 Brooks v. State, 40 A.3d 346, 354 (Del. 2012)(internal footnotes omitted). 4 2000 WL 140108 (Del.). 
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We agree with the Superior Court that 

Vickers' allegations of ineffective assistance of 

counsel are conclusory and warranted 

summary dismissal of his ineffective

assistance of counsel claim. Vickers' 

conclusory allegations are contradicted and/or 

denied by his counsel's sworn Rule 61(g)(2)

affidavit. Furthermore, Vickers has provided 

no support for the claim that his counsel's 

representation fell below an objective standard 

of reasonableness and that the alleged errors 

were prejudicial to Vickers' defense.

It is manifest on the face of Vickers' 

opening brief that the appeal is without merit. 

The issues raised are clearly controlled by 

settled Delaware law, and to the extent the 

issues on appeal implicate the exercise of 

judicial discretion, there was no abuse of 

discretion5

In the instant case Rose’s allegations are even less precise 

than those found to be inadequate in Vickers. Rose simply alleges 

that “[m]y lawyer was ineffective he did not do anything to help me.” 

This does not even remotely approach the threshold for pleading 

with particularity substandard performance and prejudice. To the 

extent that Rose’s remaining allegations might be construed as an 

attempt to support his ineffective assistance of counsel claim, they 

 5 Id. at *2 (internal footnotes and paragraph numbers omitted).
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are insufficient because, as discussed in part B(1)(a) above, they do 

not make out a claim of prejudice.

2. Appointed counsels’ submission

Appointed post-conviction counsel identified two “potential” 

ineffective assistance of counsel claims. The first is that trial 

counsel was ineffective because he did not move to sever the 

possession of a firearm by a person prohibited charges. The second 

is that trial counsel did not oppose the State’s motion in limine to 

admit evidence of prior altercations between him and Venus Cherry. 

Appointed post-conviction counsel advised the court that they could 

not ethically present either of these arguments because they could 

not in good faith argue that Rose suffered the prejudice necessary 

to establish an ineffective assistance of counsel claim. The court 

agrees with appointed post-conviction counsel.

(a) Trial counsel’s failure to move to sever certain charges

Appointed post-conviction counsel postulates that Rose could 

argue that his trial counsel was ineffective because he ostensibly 
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failed to move to sever person-prohibited charges against him. The 

concern with person-prohibited charges is that if the jury becomes 

aware of a previous felony committed by the defendant (which 

makes the defendant a “person prohibited”), “the jury may convict 

him of the other charges based solely on his previous criminal 

history.”6 Trial counsel did, in fact, address the person-prohibited 

charges in advance of trial by stipulating that defendant was a 

person prohibited. The court agrees, therefore, that there is no 

reason to believe that the outcome would have been different if trial 

counsel had chosen some other tack. The Delaware Supreme Court 

recently reached a similar conclusion in Wheeler v. State, writing:

Even if stipulating to Wheeler's person

prohibited status rather than filing a motion to 

sever was professionally unreasonable, 

Wheeler has not shown that there is a 

reasonable probability that, but for the 

supposed error, the outcome of the trial would 

have been different.7

Appointed post-conviction counsel also theorized that trial counsel 

could have opposed the State’s motion in limine to admit evidence of 

 6 Johnson v. State, 5 A.3d 617, 622 (Del. 2010). 7 Wheeler v. State, 2015 WL 6150936 (Del).
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prior altercations between Rose and Venus Cherry. Appointed 

counsel points out, however, that the lack of opposition very likely 

did not cause prejudice to Rose because the court would have still 

admitted the statements over his objection. The evidence in 

question related to an incident about one year prior to these events 

in which Rose picked up a brick or bottle and then pulled a knife 

during an altercation with Cherry stemming from a dispute over a 

domino game. The second was a fight between Rose and Cherry 

taking place not long before the crime in this case. Appointed postconviction counsel correctly notes that, applying Getz v. State,8

evidence of these two incidents would likely have been admitted for 

the purpose of showing motive, identity and intent.

Wherefore, Rose’s claims 1, 3, 4, 5 and 6 are DISMISSED 

because they are procedurally barred. Claim 2 is DENIED. Defense 

Counsel’s Motion to Withdraw is GRANTED.

 8 538 A.2d 726 (Del. 1988).
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January 28, 2016 John A. Parkins, Jr.

 Superior Court Judge

oc: Prothonotary

cc: Patrick J. Collins, Esquire, Albert J. Roop, V, Esquire, Collins & Roop, 

Wilmington, Delaware

Periann Doko, Department of Justice, Wilmington, Delaware

Oneil Rose, SBI 00511629, JTVCC, Smyrna, Delaware