IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSHUA D. MCGRIFF,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Appellee.

§

§ 

§ No. 479, 2023

§

§ Court Below: Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 2004002455 (N)

§

§

§

Submitted: June 14, 2024

Decided: August 12, 2024

Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears 

to the Court that:

(1) The defendant below-appellant, Joshua D. McGriff, filed this appeal 

from a Superior Court order denying his first motion for postconviction relief under 

Superior Court Criminal Rule 61.

1

 For the reasons discussed below, we affirm the 

Superior Court’s judgment.

(2) As summarized by the Superior Court, the events leading to McGriff’s 

arrest and convictions are as follows:

1

State v. McGriff, 2023 WL 8302137 (Del. Super. Ct. Nov. 30, 2023).
2

[A] driver began using a drive up ATM when McGriff and another 

individual came up to the car and began punching the driver in the 

chest. The driver, equipped with a can of bear mace, dissuaded them. 

The driver called police when the would-be robbers ran away. Police 

responded and saw the defendant in the vicinity. Unsure if this was the 

perpetrator, they took his photo and I.D. card and let him go. When the 

ATM surveillance footage was reviewed later, police put together an 

“attempt to identify” flyer, which yielded them a copy of the photo and 

ID card. When police showed McGriff the photos, he said “showing 

me this is pretty much like showing me that you got me” and “so I can't 

really say that oh, it's not me. Nah, man, it’s me, but I don’t recall.”

2

(3) On July 21, 2021, a Superior Court jury found McGriff guilty of 

attempted second-degree robbery and second-degree conspiracy. The Superior 

Court sentenced McGriff, effective April 26, 2022, to three years of Level V 

incarceration, suspended after one year for one year of Level III probation. On direct 

appeal, this Court affirmed the Superior Court’s judgment.3

(4) On February 21, 2023, McGriff moved for postconviction relief under 

Superior Court Criminal Rule 61. He alleged that his right to a speedy trial was 

violated and that the prosecutor’s withholding of the “attempt to identify” flyer until 

trial was prosecutorial misconduct violating Brady v. Maryland.

4

 He also alleged 

that his trial counsel and appellate counsel were ineffective. On February 28, 2023, 

McGriff moved for appointment of counsel, which the Superior Court denied. As 

2

Id. at *1 (citations omitted).

3 McGriff v. State, 291 A.3d 1088, 2023 WL 469122 (Del. Jan. 27, 2023) (ORDER).

4

373 U.S. 83 (1963).
3

directed by the Superior Court, McGriff’s trial counsel filed an affidavit responding 

to McGriff’s allegations of ineffectiveness on August 21, 2023.

(5) On November 30, 2023, the Superior Court denied McGriff’s motion 

for postconviction relief.5 The Superior Court held that McGriff’s speedy trial claim 

was barred by res judicata and that the alleged withholding of the flyer until trial 

was not prosecutorial misconduct.

6

 As to the claims of ineffective assistance of

counsel, the Superior Court concluded that McGriff had not shown that his trial 

counsel’s performance was objectively unreasonable or that the outcome of the trial 

would have been different but for his trial counsel’s alleged errors.

7

 This appeal 

followed.

(6) On appeal, McGriff lists the claims he raised in the Superior Court. 

This Court reviews the Superior Court’s denial of a motion for postconviction relief 

for abuse of discretion.

8

 We review constitutional claims, including claims of 

ineffective assistance of counsel, de novo.

9

 Before considering the merits of any 

5 McGriff, 2023 WL 8302137, at *1.

6

Id. at *2.

7

Id. at *3.

8 Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019).

9

Id.
4

underlying claims for postconviction relief, the Court applies the procedural

requirements of Rule 61.10

(7) McGriff does not identify the basis for his claims of a Brady violation 

and prosecutorial misconduct, but we assume that he is relying upon the “attempt to 

identify” flyer that he claimed below was not produced until trial. Rule 61(i)(3) bars 

consideration of claims that were not raised in the proceedings leading to the 

judgment of conviction unless the movant can show “cause” for his procedural 

default and “prejudice” resulting from the alleged error below.11 McGriff’s trial 

counsel did not object to admission of the flyer at trial, which was described by 

Detective Todd Dukes at the probable cause hearing on May 27, 2020. Although 

McGriff asserted a Brady violation and prosecutorial misconduct on appeal, he did 

not identify the flyer (or anything else) as the basis for those claims. Because the 

flyer was not challenged in the proceedings leading to McGriff’s convictions, he had 

to show cause-and-prejudice for the procedural default.12 He has not done so. Nor 

10 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

11 Del. Super. Ct. Crim. 61(i)(3).

12 Even if this Court considered McGriff’s claim on direct appeal of prosecutorial misconduct due 

to an unspecified Brady violation to encompass the alleged withholding of the flyer and therefore 

satisfy Rule 61(i)(3), Rule 61(i)(4) would still bar his postconviction claim because we would have 

then already considered and rejected his post-conviction argument on direct appeal. McGriff, 2023 

WL 469122, at *3.
5

has he overcome this procedural bar by arguing that the Superior Court lacked 

jurisdiction or that he can satisfy the requirements of Rule 61(d)(2).13

(8) McGriff did assert a violation of his right to a speedy trial in the 

proceedings leading to his conviction. Rule 61(i)(4) bars consideration of any 

ground for relief that was previously adjudicated.14 On direct appeal, this Court 

concluded that there was no violation of McGriff’s right to a speedy trial.15 Because 

McGriff’s speedy trial claim was previously adjudicated, Rule 61(i)(4) bars 

consideration of this claim. McGriff has not tried to overcome this procedural bar 

by arguing that the Superior Court lacked jurisdiction or that he could satisfy the 

requirements of Rule 61(d)(2).16

(9) The procedural bars of Rule 61 do not bar a timely claim of ineffective 

assistance of counsel.17 To prevail on an ineffective assistance of counsel claim, a 

defendant must show: (i) his counsel’s representation fell below an objective 

standard of reasonableness; and (ii) but for counsel’s unprofessional errors, there is 

13 Del. Super. Ct. Crim. R. 61(i)(5) (providing that the Rule 61(i)(1)–(i)(4) procedural bars do not 

apply to a claim that the Superior Court lacked jurisdiction or that satisfied Rule 61(d)(2)(i) or 

(ii)); id. 61(d)(2)(i) (providing that motion must plead with particularity new evidence that creates 

a strong inference of actual innocence); id. 61(d)(2)(ii) (providing that motion must plead with 

particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral 

review, applies and renders the convictions invalid).

14 Del. Super. Ct. Crim. 61(i)(4).

15 McGriff, 2023 WL 469122, at *2–3.

16 See supra note 13.

17 Bradley v. State, 135 A.3d 748, 759 (Del. 2016).
6

a reasonable probability that the outcome of the proceedings would have been 

different.18 There is “a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.”19 

(10) McGriff argues that his trial counsel did not subject the prosecution to 

meaningful adversarial testing and did not give him actual assistance in violation of 

United States v. Cronic,

20 which prejudiced him. Under Cronic, a defendant need 

not demonstrate prejudice as required by Strickland when he “is completely denied 

counsel at a critical stage of the judicial proceedings.”21 The record, including the 

trial transcript and trial counsel’s affidavit, refutes McGriff’s claim that his trial 

counsel was ineffective.

(11) Contrary to his contentions, McGriff has not shown that he was 

deprived of counsel at a critical stage of the proceedings or that his trial counsel’s 

representation fell below an objective standard of reasonableness. McGriff’s trial 

counsel: tried to obtain relevant information from him; confirmed with him that he 

spoke voluntarily to police after receiving Miranda warnings; examined the crime 

scene; visited the area where he was stopped by police; and cross-examined each of 

18 Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

19 Id. at 689.

20 466 U.S. 648 (1984).

21 Urquhart v. State, 203 A.3d 719, 727 (Del. Jan. 24, 2019). See also Cronic, 466 U.S. at 658–

59. 
7

the State’s witnesses. In addition, as recognized by the Superior Court, McGriff 

made no effort to satisfy the prejudice prong of Strickland.

(12) As to McGriff’s claim that his appellate counsel was ineffective for 

filing a motion to withdraw and a non-merit brief under Supreme Court Rule 26(c),

this claim is without merit.22 The Superior Court did not err in denying McGriff’s 

motion for postconviction relief.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ N. Christopher Griffiths

Justice

22 See Del. Supr. Ct. R. 26(c) (authorizing an attorney, who concludes that an appeal is wholly 

without merit after a conscientious examination of the record and the law, to file a motion to 

withdraw and non-merit brief); Loper v. State, 234 A.3d 159, 2020 WL 2843516, at *3 (Del. June 

1, 2020) (ORDER) (rejecting claim that the defendant’s appellate counsel was ineffective for filing 

a motion to withdraw and non-merit brief under Rule 26(c)).