1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

v. ) No. 1604008485A

)

DWAYNE DUNNELL, )

)

Defendant )

Submitted: January 14, 2021

Decided: April 30, 2021

Upon Defendant’s Motion for Postconviction Relief – Denied

Upon Postconviction Counsel’s Motion to Withdraw – Granted 

ORDER

The defendant was indicted for various drug and firearm charges after a 

confidential informant tipped off the police and participated in two controlled 

purchases of heroin. On both occasions, the informant arranged the sale with the 

defendant and then obtained the heroin from the defendant’s cousin at their shared 

residence. Search warrants executed on that residence and the defendant’s vehicle 

revealed over three thousand bags of heroin, a firearm, ammunition, and five cell 

phones. The defendant’s trial counsel filed several pre-trial motions concerning the 

evidence, all of which were denied. After a four-day jury trial, the defendant was 

convicted of drug dealing, drug possession, and conspiracy, but was acquitted of all 

the firearm charges. The defendant then appealed his convictions, first by moving 

for a judgment of acquittal, then by appealing directly to the Delaware Supreme 
2

Court. After his convictions were affirmed on appeal, the defendant moved for 

postconviction relief. The defendant asserts eighteen grounds for relief, all of which 

relate to the allegedly ineffective assistance provided by his trial and appellate 

counsel. The defendant’s claims primarily focus on arguments or motions he 

believes counsel should have raised. Because the defendant’s claims fail to satisfy 

the requirements of an ineffective assistance claim or are barred procedurally, the 

defendant’s motion is denied.

FACTUAL & PROCEDURAL BACKGROUND

A. Initial Investigation & Defendant’s Arrest

1. In 2016, a confidential informant (“C.I.”) advised Detective Bruhn of 

the New Castle County Drug Control Unit that a man going by the name “Buck” 

was selling heroin. The C.I. provided two phone numbers for “Buck,” and Detective 

Bruhn determined through further investigation that “Buck” was a nickname for

Defendant Dwayne Dunnell (“Defendant”). The C.I. also reviewed a photo of 

Defendant and positively identified him as “Buck.”

2. In the week of April 4, 2016, the New Castle County Police Department 

(“NCCPD”) had the same C.I. arrange a heroin purchase with “Buck.” The C.I. 

called “Buck” in the presence of NCCPD to arrange the purchase, then went to a 

residence located at 24 Gull Turn in Newark, Delaware to purchase heroin from a 

person known as “Dreads.” NCCPD determined that Defendant’s cousin, Kyle 
3

Dunnell, listed 24 Gull Turn as his address and showed the C.I. a picture of Kyle,1

whom the C.I. identified as “Dreads.” NCCPD used the C.I. to purchase heroin from 

24 Gull Turn again during the week of April 11, 2016. As with the first purchase, 

the C.I. called “Buck” to arrange the transaction and purchased the heroin from 

“Dreads.”

3. On April 12, 2016, the investigating officers applied for and were 

granted a search warrant for 24 Gull Turn. The next day, on April 13, 2016, police 

executed the search warrant. Kyle Dunnell and Defendant were at the residence 

when the warrant was executed. Although no contraband was found on Kyle or 

Defendant, police found 3,488 bags of heroin, a loaded handgun, and a loaded 

extended magazine in a safe in the laundry room. Police found the key for the safe 

in the pocket of a pair of Kyle’s pants. 

4. Officers also found a bag of pink glassine baggies in the kitchen of the 

home, a pay stub with Defendant’s name on it in the laundry room, and shotgun 

shells in the laundry room and hall closet. The police also found $371.00 in cash 

and two cell phones in Defendant’s bedroom. Two more cell phones were found in 

Kyle’s room, and another digital scale was located in a spare bedroom.

5. NCCPD obtained search warrants for a silver Lexus parked in the 

driveway of 24 Gull Turn and a Jeep Grand Cherokee that was parked across the 

1 The Court refers to Kyle Dunnell by his first name for clarity. No disrespect is intended.
4

street. Police found a fifth phone, an Alcatel flip phone, inside the silver Lexus. 

Defendant told NCCPD Detective Eugene Giallombardo that everything in the car 

was his, and Defendant later did not deny the Alcatel flip phone was his when the 

Detective Giallombardo described the car’s contents during Defendant’s interview. 

Police obtained search warrants for all the cell phones. One text message, sent from 

the Alcatel flip phone at 2:54 am on March 12, 2016, read “King Kong.” Some of 

the heroin found in the safe was stamped with “King Kong.”

6. A grand jury indicted Defendant for Drug Dealing in Heroin (Tier 4), 

Aggravated Possession of Heroin (Tier 5), Conspiracy Second Degree, Possession 

of a Firearm During the Commission of a Felony, Possession of a Firearm while in 

Possession of a Controlled Substance, Possession of Drug Paraphernalia, Possession 

of a Firearm by a Person Prohibited (PFBPP), and Possession of Ammunition by a 

Person Prohibited (PABPP).

2

B. Trial & Conviction

7. Defendant was represented at trial by John S. Malik, Esquire (“Trial 

Counsel”). Trial Counsel filed several pre-trial motions. First, Trial Counsel filed 

a motion to compel the production of Brady materials. In that motion, Trial Counsel 

sought to obtain the C.I.’s identity, arguing it was exculpatory Brady material 

2 The PFBPP and PABPP charges were severed into a “B” trial, which was presented 

immediately after the jury concluded its deliberations in the “A” trial. The jury found Dunnell 

not guilty of both charges in the B case.
5

because the information would confirm Defendant did not sell drugs to the C.I. and 

was not present at the transaction. Trial Counsel also filed a motion to suppress

evidence seized from Defendant’s Lexus on the ground that the affidavit supporting 

the warrant failed to establish probable cause because the C.I.’s tip was unreliable,

and the K-9 sniff contradicted the C.I.’s tip. Finally, Trial Counsel filed a motion in 

limine to exclude the text message evidence found on the cell phones NCCPD 

seized. Trial Counsel argued the text messages should be excluded because (i) they 

were not properly authenticated; (ii) the text messages constituted inadmissible 

hearsay evidence; and (iii) the probative value of the messages substantially was 

outweighed by the danger of unfair prejudice. The Court denied all three pre-trial 

motions.

8. At trial, Alia Harris, a forensic chemist, testified that forensic testing 

performed on the substance found in the safe confirmed it was heroin with a total 

weight of 17.27 grams. NCCPD Detective Darryl Santry testified regarding text 

messages that were found on the four cell phones retrieved during the search of the 

residence. Detective Vincent Jordan of the Wilmington Police Department offered 

his expert opinion that the heroin found in the safe was not for personal use. 

Detective Jordan offered several reasons for this conclusion. For example, he 

testified it is not typical for drug users to possess such a large amount of heroin. 

Furthermore, he testified drug dealers commonly will have a firearm located near 
6

their drug supply. Detective Jordan also opined that drug users do not typically have 

large sums of money, that drug dealers often do have such sums, and that drug 

dealers frequently have one cell phone for personal use and additional cell phones 

for business. Detective Jordan also compared the text messages found on Kyle’s 

phone with those on the two phones found in Defendant’s bedroom and concluded 

that Kyle and Defendant were working together to sell drugs. The Detective opined 

Defendant possessed more than three thousand bags of heroin with the intent to 

deliver it, and Defendant and Kyle were working together to sell drugs. 

9. On March 3, 2017, after a four-day trial, the jury convicted Defendant 

of Drug Dealing in Heroin (Tier 4), Aggravated Possession of Heroin (Tier 5), and 

Conspiracy Second Degree. Those charges stemmed from the drugs that police 

officers located in a safe found in the laundry room of the home where Defendant 

lived with his cousin. The jury found Defendant not guilty of charges relating to the

firearm and drug paraphernalia also found in the safe and home during the search. 

On September 8, 2017, this Court denied Defendant’s Motion for Judgment of 

Acquittal. The Court then sentenced Defendant, effective April 13, 2016, to a total 

of nine years at Level V, suspended after seven years for probation.

C. Direct Appeal

10. On appeal, Defendant was represented by Nicole M. Walker, Esquire

(“Appellate Counsel”). Appellate Counsel filed the appeal on May 22, 2018, raising 
7

four arguments: (i) the State failed to prove constructive possession of the 

contraband found within the safe; (ii) the Court erred in admitting the text message 

evidence because it lacked proper authentication; (iii) the Court erred by failing to 

provide a limiting instruction to the jury for its consideration of the text message 

evidence; and (iv) the cumulative effect of these errors deprived Defendant of a fair 

trial. On November 2, 2018, the Delaware Supreme Court affirmed Defendant’s 

convictions.

3

11. Defendant filed a pro se Motion for Postconviction Relief (the 

“Motion”) on April 8, 2019 and subsequently filed several addenda to the Motion 

adding new grounds for relief.4 On April 17, 2019, the Court appointed counsel to 

represent Defendant for purposes of seeking postconviction relief (“Postconviction 

Counsel”).5 On December 19, 2019, Postconviction Counsel moved to withdraw 

under Rule 61(e)(7), stating he thoroughly had investigated Defendant’s case and 

determined no claims for postconviction relief ethically could be advocated.

6 The 

parties fully briefed the matter, including the State’s response, affidavits from Trial 

3 Dunnell v. State, 2018 WL 5782851 (Del. Nov. 2, 2018). 

4

See generally Def.’s Mot.; Addendum to Def.’s Mot., D.I. 127; Addendum to Def.’s Mot., D.I. 

132; Addendum to Def.’s Mot., D.I. 133; Addendum to Def.’s Mot., D.I. 143; Addendum to 

Def.’s Mot., D.I. 161; Addendum to Def.’s Mot., D.I. 163.

5 Order Appointing Counsel, D.I. 128.

6 Postconviction Counsel’s Mot., D.I. 148. The addenda advancing grounds 17 and 18 were filed 

after Postconviction Counsel’s motion to withdraw and therefore were not addressed in the 

motion, but the merits of those claims are considered and rejected herein.
8

and Appellate Counsel, and Defendant’s responses to Postconviction Counsel’s 

motion to withdraw.

7

PARTIES’ CONTENTIONS

A. Defendant

12. Defendant’s motion and addenda assert eighteen grounds for relief that 

primarily are focused on alleged ineffective assistance by his Trial and Appellate 

Counsel.

i. Ground 1: Trial Counsel’s Failure to Object to an Abuse of 

Discretion.

13. Defendant asserts Trial Counsel was ineffective for failing to object to 

the Court’s admission of various text messages.8 According to Defendant, Trial 

Counsel should have argued that the requirements for the applicable hearsay 

exception were not met and should have sought a limiting instruction.9 Defendant 

also argues admission of the text message evidence violated the Confrontation Clause 

in the Sixth Amendment to the United States Constitution.

7

See generally Def.’s Mot.; State’s Resp.; Trial Counsel’s Aff.; Appellate Counsel’s Aff.; 

Addendum to Def.’s Mot., D.I. 127; Addendum to Def.’s Mot., D.I. 132; Addendum to Def.’s 

Mot., D.I. 133; Addendum to Def.’s Mot., D.I. 143; Addendum to Def.’s Mot., D.I. 161; 

Addendum to Def.’s Mot., D.I. 163.

8 Def.’s Mot. at 1.

9

Id.
9

ii. Ground 2: Trial Counsel’s Acquiescence with the State

14. Defendant also alleges Trial Counsel “acquiesced” with the State. On 

August 15, 2016, a hearing was held before a Superior Court Commissioner 

concerning Defendant’s motion to compel the State to identify the C.I.10 The 

Commissioner originally concluded a Flowers hearing was appropriate, but three 

days later the Commissioner denied the motion to compel, concluding the C.I.’s 

identity would not materially aid the defense.11 Defendant alleges Trial Counsel must 

have had a conversation with the State that led the Commissioner to deny the motion 

after originally concluding a Flowers hearing was warranted.

12

iii. Ground 3: Trial Counsel’s Failure to Investigate

15. During discovery, the State gave Defendant a supplemental police 

report containing the names of the declarants associated with the incoming text 

messages from the phones.

13

 Defendant alleges he asked Trial Counsel to contact 

these declarants, but Trial Counsel failed to do so. Defendant theorizes these 

individuals could have testified on his behalf.14

10 Id. at 2.

11 Id.

12 Id.

13 Id.

14 Id.
10

iv. Ground 4: Trial Counsel’s Failure to Move to Suppress

16. Defendant argues Trial Counsel was ineffective for failing to move to 

suppress the text message evidence obtained from the cell phones.15 Defendant 

maintains the warrantsfor the phones were not supported by sufficient probable cause 

because the affidavits did not establish a sufficient nexus between the alleged crimes 

and the cell phones.16 Further, Defendant asserts the warrant was overly broad.17 

Defendant also argues the warrants for the phones only were drafted to identify a 

possible owner of the phones, and the text messages extracted from the phones 

therefore were obtained illegally.

18

 Defendant further alleges the warrant for the 

Alcatel phone was unconstitutional because it did not contain any temporal 

limitation.19 Defendant maintains that, had Trial Counsel moved to suppress the text 

message evidence, the State would not have been able to move forward with trial.20

v. Ground 5: Trial Counsel’s Failure to Object

17. Defendant argues Trial Counsel should have objected to the admission 

of the seized drugs because the State did not establish the chain of custody.21 The 

drugs were not in the courthouse on the morning of trial.

22

 The State explained to the 

15 Id. at 3.

16 Id.

17 Id.

18 Addendum to Def.’s Mot., D.I. 127 (Ground 4).

19 Id.

20 Id.

21 Def.’s Mot. at 3-4.

22 Id. at 3.
11

Court that the evidence was either at a forensic lab or at NCCPD.23 Defendant 

maintains Trial Counsel should have raised a chain of custody objection to determine 

the location of the misplaced evidence.24

vi. Ground 6: Trial Counsel’s Failure to Impeach a Witness

18. Defendant maintains Trial Counsel should have impeached the 

testimony of forensic chemist Alia Harris because it contained several 

inconsistencies.25 At trial, Ms. Harris provided the formula by which she calculated 

the total weight of the drug evidence.26 Defendant alleges he later reviewed the 

litigation packet, applied the formula himself, and reached a weight that was 4.26 

grams less than Ms. Harris’s calculation.27 Defendant argues Ms. Harris’s work was 

compromised such that the accuracy of the drug’s total weight was unknown.28 

Defendant therefore maintains that, had Trial Counsel reviewed the litigation packet 

and impeached Ms. Harris’s testimony, the outcome of trial or sentencing may have 

been different.29

23 Id.

24 Id.

25 Id. at 4-5.

26 Id. at 4.

27 Id.

28 Id. at 5.

29 Id.
12

vii. Ground 7: Trial Counsel’s Failure to Raise a Defense

19. Defendant argues Trial Counsel also was ineffective for failing to call 

as a witness a particular individual who authored one of the incoming text messages.30 

Defendant alleges an author of one of the incoming text messages was listed as a trial 

witness and appeared in the courthouse, but then refused to testify after Trial Counsel 

advised the witness he would be taken into custody and charged if he testified.

31

 

Defendant argues this witness’s testimony was important and would have 

contradicted the State’s characterization of the text messages.32

viii. Ground 8: Appellate Counsel’s Failure to Appeal the Motion in 

Limine

20. Defendant asserts Appellate Counsel should have appealed the Superior 

Court’s denial of Defendant’s motion in limine.

33

ix. Ground 9: Appellate Counsel’s Failure to Appeal the Motion to 

Suppress

21. Defendant argues Appellate Counsel should have appealed the Superior 

Court’s decision denying the motion to suppress the Alcatel flip phone found during 

the police’s search of the Lexus.34 Defendant argues the suppression issue should 

30 Id. at 5-6.

31 Id. at 6.

32 Id.

33 Id.

34 Id. at 6-7.
13

have been raised on direct appeal because the warrant for the Lexus was insufficient 

since the C.I.’s information never was corroborated.35

x. Ground 10: Appellate Counsel’s Failure to Investigate

22. Defendant alleges Appellate Counsel failed to investigate adequately

the text messages’ hearsay issue and incorrectly challenged the admission of the text 

messages under D.R.E. 404(b) rather than 803(3), which Defendant contends 

applied.

36

 According to Defendant, Appellate Counsel challenged the text messages 

under the incorrect rule because she did not obtain the transcript from Defendant’s 

motion in limine hearing before she prepared her opening brief.

37

xi. Ground 11: Trial Counsel’s Response to the Jury’s Note

23. During deliberations, the jury sent a note to the Court expressing 

confusion about which drugs formed the basis for Count I.38 Dunnell contends Trial 

Counsel allegedly conferred with the State, and the parties agreed the trial court could 

not answer the jury’s question. 39 Defendant argues Trial Counsel was ineffective by

not requesting that the Court simply answer the jurors’ question.40

35 Id. at 6.

36 Id. at 7.

37 Id.

38 Addendum to Def.’s Mot., D.I. 132 (Ground 11).

39 Id.

40 Id.
14

xii. Ground 12: Trial Counsel’s Failure to Request a Limiting 

Instruction

24. Defendant argues Trial Counsel was ineffective in failing to request a 

limiting instruction relating to the purpose for which the text messages were 

introduced.

41

xiii. Ground 13: Appellate Counsel’s Failure to Appeal the 

Lolly/Deberry Issue.

25. Defendant asserts Appellate Counsel should have appealed the Court’s 

decision denying Trial Counsel’s request for a Lolly/Deberry instruction concerning 

the State’s failure to preserve or test the purple plastic bag that contained the safe.

42

 

xiv. Ground 14: Appellate Counsel’s Failure to Investigate

26. Defendant argues the transcript from the motion in limine hearing was

filed on November 30, 2018, after Appellate Counsel filed an opening brief.43 

Defendant contends Appellate Counsel’s decision to file the brief without the 

transcript was unreasonable and caused Appellate Counsel to rely on the wrong 

evidentiary rule as a basis for the appeal.

xv. Ground 15: Trial Counsel’s Failure to Request a Limiting 

Instruction

27. Defendant argues the text message evidence was admitted under D.R.E. 

803(3) as a hearsay exception and, accordingly, Trial Counsel should have sought a 

41 Addendum to Def.’s Mot., D.I. 132 (Ground 12).

42 Addendum to Def.’s Mot., D.I. 132 (Ground 13).

43 Addendum to Def.’s Mot., D.I. 132 (Ground 14).
15

limiting instruction to narrow the jury’s consideration of the text message evidence 

to its proper scope.

44

xvi. Ground 16: Trial Counsel’s Failure to Move to Suppress

28. Defendant argues Trial Counsel was ineffective for failing to move to 

suppress evidence obtained from the 24 Gull Turn residence.45 Defendant maintains 

the affidavit supporting the search warrant for the residence did not establish probable 

cause because the C.I. was not reliable, the C.I.’s information never was corroborated, 

and the affidavit was based on stale information.

46

xvii. Ground 17: Trial Counsel’s Failure to Effectively Question Kyle 

Dunnell. 

29. Defendant asserts Trial Counsel’s direct examination of Kyle Dunnell 

was ineffective because it failed to raise statements Kyle provided in an interview 

with Detective Giallombardo.47 Defendant alleges that, had Trial Counsel questioned 

Kyle about the interview, Kyle’s answers may have exonerated Defendant.48

xviii. Ground 18: Prosecutorial Misconduct and Trial Counsel’s

Failure to Object

30. Defendant asserts Trial Counsel was ineffective for failing to object 

when the State during closing argument likened the King Kong text to a fingerprint.

49

 

44 Addendum to Def.’s Mot., D.I. 133 (Ground 15).

45 Addendum to Def.’s Mot., D.I. 143 (Ground 16).

46 Id.

47 Addendum to Def.’s Mot., D.I. 161 (Ground 17).

48 Id.

49 Addendum to Def.’s Mot., D.I. 163 (Ground 18).
16

Defendant maintains the State committed prosecutorial misconduct by making this 

comment, as it may have misled the jury since there were no fingerprints or other 

forensic evidence linking Defendant to the drug evidence.

50

B. The State

31. The State first argues several of Defendant’s grounds for relief are 

barred procedurally. First, the State contends Grounds 1 and 18 are barred because 

they should have been raised in the proceedings that led to the final judgment.51 

According to the State, Defendant should have raised two issues at trial or on appeal: 

(i) that the Court’s admission of the text message evidence violated his rights under 

the Sixth Amendment’s Confrontation Clause (Ground 1); and (ii) that the State acted 

improperly when it stated in closing arguments that King Kong is the fingerprint in 

this case (Ground 18).

52

 Second, the State argues several of Defendant’s claims are 

barred as previously adjudicated. The State identifies three issues that could be (and 

were) raised on appeal: (i) Trial Counsel’s failure to exclude the King Kong text 

message from trial (Ground 1); (ii) Trial Counsel’s failure to request a Getz limiting 

instruction for the jury’s review of the King Kong text (Ground 12); and (iii) Trial 

Counsel’s failure to request a Getz limiting instruction for the jury’s review of other

50 Id.

51 State’s Resp. at 7.

52 Id. at 7-8.
17

text message evidence (Ground 15).

53

 Because these three issues were reviewed on 

appeal before the Delaware Supreme Court, the State reasons that these grounds for 

relief procedurally are barred.54 The State concedes, however, that Defendant’s 

Motion is timely and not repetitive.

55

i. Trial Counsel

32. With respect to the merits of Defendant’s ineffective assistance claims 

against Trial Counsel, the State asserts all Defendant’s alleged grounds for relief are 

meritless. The State argues Defendant fails to allege how Trial Counsel’s challenged 

actions fell below an objective standard of reasonableness.56 The State maintains 

Trial Counsel’s affidavit demonstrates that his failure to pursue certain issues, such 

as a Getz limiting instruction and a Flowers hearing, all were strategic choices.57

Furthermore, the State asserts Trial Counsel’s limited direct examination of Kyle 

Dunnell was sound trial strategy because Kyle’s prior statements contained several 

inconsistencies that could permit the State to conduct a cross-examination damaging 

to the defense.58

33. The State argues several of Defendant’s grounds for relief are 

unsupported by Delaware law. The State contends Defendant’s chain of custody 

53 Id. at 8-9.

54 Id. at 8.

55 Id. at 6-7.

56 Id. at 9.

57 Id. at 11-13.

58 Id. at 29-31.
18

argument is meritless because Delaware law does not require the State to establish a 

perfect chain of custody.59 Similarly, the State asserts Trial Counsel could not, as 

Defendant argued, ask that the Court answer the jury’s question because, under 

Delaware law, it is inappropriate for a judge to comment on the evidence.60 The State 

maintains it was appropriate to argue during closings that the King Kong text message 

was the “fingerprint” of the case. According to the State, this comment merely was

metaphorical and was not calculated to misstate the evidence.61 The State maintains 

Trial Counsel did not act ineffectively by failing to move to suppress the search 

warrant for the 24 Gull Turn residence because Trial Counsel reasonably concluded

that sufficient probable cause existed to support the warrant.62 

34. Finally, the State asserts several of Defendant’s arguments against Trial 

Counsel fail because he cannot show prejudice from Trial Counsel’s conduct, even 

assuming Trial Counsel acted unreasonably. The State contends Trial Counsel’s 

decision not to impeach the forensic analyst’s testimony did not prejudice Defendant

because the weight of the drugs, even if miscalculated, still exceeded the “super

weight” threshold for sentencing purposes.

63

 The State similarly argues that, even if 

Trial Counsel had requested a Getz limiting instruction, the request would have been 

59 Id. at 16-17.

60 Id. at 23.

61 Id. at 31.

62 Id. at 28.

63 Id. at 17-18.
19

denied because the text message evidence did not qualify as evidence of prior bad 

acts under D.R.E. 404(b).

64

 Additionally, the State asserts Defendant has not alleged

how the witness Trial Counsel chose not to call at trial would have altered the 

outcome of Defendant’s case, beyond his conclusory statement that the witness 

“would have shed light to the jury.”65 Similarly, the State argues Defendant cannot 

show that a more detailed questioning of Kyle Dunnell would refute the State’s theory 

that Defendant arranged the times and places of the drug purchases.66 

ii. Appellate Counsel

35. With respect to Appellate Counsel’s performance, the State argues it 

was within Appellate Counsel’s discretion to refrain from arguing the hearsay issues 

on appeal.67 Similarly, the State asserts Appellate Counsel was not ineffective for 

failing to appeal the denial of the motion to suppress and the motion for a 

Lolly/Deberry instruction because Appellate Counsel maintains the discretion to 

select which issues to raise on direct appeal.68 The State contends Appellate Counsel 

acted reasonably in not challenging the absence of a Getz limiting instruction under 

D.R.E. 803(3) because a Getz instruction contemplates the admission of evidence of 

prior acts under D.R.E. 404.69 Further, the State argues Appellate Counsel’s decision 

64 Id. at 26-27.

65 Id. at 19.

66 Id. at 30-31.

67 Id. at 20.

68 Id. at 21.

69 Id.
20

not to challenge the text messages under D.R.E. 803(3) was reasonable because the 

Court already had ruled the text messages were not hearsay.70 Finally, the State 

asserts Appellate Counsel did not ineffectively appeal the Court’s denial of the 

motion in limine because, although Appellate Counsel did not have the trial 

transcripts before filing an opening brief, Defendant offers no evidence that Appellate 

Counsel failed to conduct a thorough review of the record.71

ANALYSIS

A. Procedural Bars

36. Before addressing the merits of any postconviction claim, this Court 

first must determine whether the motion procedurally is barred under Rule 61.72 A 

motion for postconviction relief may be barred for timeliness and repetition, among 

other things. A Rule 61 motion is untimely if it is filed more than one year after a 

final judgment of conviction.73 For a defendant who files a direct appeal, this period 

accrues when the appeal process is complete.74 A defendant also is barred from filing 

successive motions for relief under the rule.75 Rule 61 further prohibits motions 

based on any ground for relief that was not asserted in the proceedings leading up to 

70 Id.

71 Id. at 24-25.

72 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 

1990).

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

74 Younger, 580 A.2d at 554.

75 Super. Ct. Crim. R. 61(i)(2); see Super. Ct. Crim. R. 61(d)(2)(i)-(ii) (regarding the pleading 

requirements for successive motions).
21

the judgment of conviction, unless the movant demonstrates “[c]ause for relief from 

the procedural default” and “[p]rejudice from violation of the movant’s rights.”76 

Finally, the Rule bars consideration of any ground for relief that previously was 

adjudicated in the case.77

37. Notwithstanding the procedural bars, this Court may consider a motion 

that otherwise is barred if the motion is based upon claims that the Court lacked 

jurisdiction or the motion satisfies Rule 61(d)(2)’s pleading requirements.

78

 Rule 

61(d)(2) requires that the movant plead with particularity that (i) “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 (ii) “a new rule of 

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

Supreme Court or the Delaware Supreme Court, applies to the movant’s case and 

renders the conviction or death sentence invalid.”79

i. To the extent they assert ineffective assistance of counsel, Defendant’s 

claims regarding the need for a limiting instruction are not 

procedurally barred.

38. In various claims, Defendant argues Trial Counsel was ineffective in 

failing to seek a limiting instruction relating to the purpose for which the text 

messages were offered. The limiting instruction was argued on appeal but was 

76 Super. Ct. Crim. R. 61(i)(3)(A)-(B).

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

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

79 Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
22

considered by the Delaware Supreme Court under “plain error” review because it was 

not raised to this Court. Rule 61(i)(3) bars consideration of any ground for relief that 

could have been, but was not, raised in the proceedings leading up to the judgment 

of conviction, while Rule 61(i)(4) bars consideration during postconviction 

proceedings of any matter previously adjudicated. As a general matter, claims of 

ineffective assistance of counsel do not fall within Rule 61(i)(3) because such claims 

cannot be raised on direct appeal.80 At times, as discussed below, when a substantive 

appellate claim is raised and rejected on direct appeal, that decision might later bar 

an ineffective assistance claim under Rule 61(i)(4).81 But an argument that trial or 

appellate counsel was ineffective in failing to raise an issue does not fall within the 

ambit of Rule 61(i)(3) on a first postconviction motion.

39. Here, neither subsection bars Defendant’s claims regarding Trial 

Counsel’s failure to request a limiting instruction. The Delaware Supreme Court’s 

review under a plain error standard cannot bar the ineffective assistance claim 

Defendant raises.82 Any other conclusion relies on circular reasoning. To the extent, 

however, that Defendant is arguing (i) the Trial Court erred in admitting the text

message evidence; (ii) the Trial Court erred in failing to give a limiting instruction 

80 Green v. State, 238 A.3d 160, 175 (Del. 2020).

81 Id. at 176.

82 Id.
23

sua sponte; or (iii) the State committed misconduct during its closing argument, those 

contentions are barred under Rule 61(i)(3) or (i)(4).

ii. Ground 1 is barred as formerly adjudicated on direct appeal.

40. Rule 61(i)(4) bars postconviction claims that formerly were adjudicated 

on direct appeal.83 Formerly adjudicated claims may be reconsidered in the interest 

of justice, but this exception is narrow and only applies in limited circumstances, such 

as when the right relied upon has been recognized for the first time after direct 

appeal.84 The mere fact that a postconviction claim might bear some resemblance to 

a formerly adjudicated claim does not trigger the “formerly adjudicated” bar.85 

Whether a claim formerly was adjudicated often turns on whether the issue received 

substantive review on direct appeal. 

41. In its recent decision Green v. State,

86 the Delaware Supreme Court 

held that a postconviction claim was not formerly adjudicated when on direct appeal 

the Court only considered whether the trial court committed plain error.

87

 The Court 

noted, however, that an ineffective assistance claim could be barred in cases where 

the direct appeal involved a substantive review of the claim’s underlying merits.88 

The Court provided the following example: 

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

84 Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-98 (1989)).

85 Green, 238 A.3d at 176.

86 238 A.3d 160 (Del. 2020).

87 Id. at 176.

88 Id.
24

[I]f on direct appeal we were to reject a claim that the trier of fact considered 

inadmissible evidence, a claim in postconviction proceedings that trial 

counsel was ineffective for not objecting to the evidence would be futile and 

might rightly be considered formerly adjudicated.89 

That scenario occurred in this case. Trial Counsel challenged the admissibility of 

the text messages on several grounds, but this Court admitted the evidence. On 

direct appeal, Appellate Counsel challenged the admissibility of the text messages,

and the Delaware Supreme Court affirmed this Court’s ruling that the messages were

admissible. Defendant cannot now assert Trial Counsel was ineffective for failing 

to exclude the text messages from evidence when the Delaware Supreme Court 

substantively reviewed the admissibility issue on direct appeal.90 And, Defendant 

does not satisfy Rule 61(d)(2)’s pleading requirement to escape this bar. 

Accordingly, this ground formerly was adjudicated and cannot be raised again under 

the guise of an ineffective assistance claim.

91

B. Ineffective Assistance of Counsel

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

must establish both that counsel’s representation fell below an objective standard of 

89 Id.

90 Throughout his motion, Defendant repeatedly refers to his belief that the text messages’ 

admissibility should have been considered under D.R.E. 803(3), which is an exception to the 

hearsay rule. But this Court held the various text messages were not hearsay under Rule 801(d). 

The Supreme Court affirmed that conclusion. Accordingly, neither Trial Counsel nor Appellate 

Counsel could have been ineffective for failing to raise Rule 803 as a basis for excluding the text 

messages because Rule 803 applies to hearsay statements and the challenged text messages were 

not hearsay.

91 To the extent Defendant contends the admission of this evidence violated the Confrontation 

Clause, that argument is barred by Rule 61(i)(3).
25

reasonableness and that there is a reasonable probability that, but for counsel’s errors, 

the result of the proceeding would have been different.92 There is a strong 

presumption that counsel’s representation was reasonable.93 Mere allegations or 

conclusory statements will not suffice.94

i. Trial Counsel

a. Grounds 2, 6, 7, and 17 fail because Trial Counsel did not act 

unreasonably by strategically examining only select witnesses.

43. In grounds 2, 6, 7, and 17, Dunnell challenges several decisions by Trial 

Counsel during pretrial proceedings and trial. He argues Trial Counsel (1) 

“acquiesced with” the State and seemingly abandoned discovering the C.I.’s identity 

(Ground 2); (2) failed to impeach Ms. Harris effectively (Ground 6); (3) failed to call 

a witness who agreed to testify about the text messages (Ground 7); and (4) did not 

properly examine Kyle about his prior statements that potentially could have 

exculpated Defendant (Ground 17). These arguments do not meet the first prong of 

Strickland because Trial Counsel’s decisions regarding these matters were strategic 

choices based on the defense’s theory of the case. “If an attorney makes a strategic 

choice after thorough investigation of law and facts relevant to plausible options, that 

decision is virtually unchallengeable.”95 

92 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

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

94 Id.; Monroe v. State, 2015 WL 1407856, at *3 (Del. March 25, 2015).

95 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
26

44. For example, Trial Counsel asserts he did not challenge Ms. Harris’s 

testimony and lab report because doing so was not relevant to the defense’s theory of 

the case that Defendant had no knowledge, control, or possession of the safe and its 

contents.96 Trial Counsel similarly conducted a limited direct examination of Kyle 

Dunnell to advance the overall defense theory of the case. According to his affidavit, 

Trial Counsel was concerned that a detailed direct examination of Kyle regarding his 

statements to police would “open the door” for the State to cross-examine Kyle on 

the entirety of his statements, many of which were contradictory.

97

 Trial Counsel 

avers his limited examinations of Ms. Harris and Kyle were strategic choices based 

on his analysis of the facts and the defense’s overall theory of the case. Defendant 

has not made any allegations indicating Trial Counsel did not adequately investigate 

the facts or consider all plausible options before electing to conduct these limited 

examinations. Trial Counsel’s explanation of the reasons for these strategic choices 

defeats Defendant’s contention that the decisions objectively were unreasonable.

45. Trial Counsel’s decisions not to call as witnesses the C.I. and the 

individual who appeared in the courthouse likewise were strategic. “For the purposes 

of an ineffective assistance claim, the decision of a trial attorney to call or not to call 

96 Trial Counsel’s Aff. at 18-19.

97 Id. at 23.
27

a potential witness is part of the attorney’s trial strategy.”

98

 Trial Counsel admits he 

advised the witness who appeared at the courthouse that the witness could be 

prosecuted for any incriminating testimony. Trial Counsel further explains in his 

affidavit that he believed this witness would harm Defendant’s defense by opening 

up cross-examination into the various text messages the witness sent to the seized 

phones.

99

 This decision not to call the witness was reasonable and strategic in view 

of the facts known to Trial Counsel.

46. As to the motion seeking the C.I.’s identity, Trial Counsel asserts he 

never intended for the C.I. to testify at trial because, although the C.I. likely would 

testify that he purchased heroin from Kyle, he also presumably would testify he 

arranged the sales through Defendant.

100

 Trial Counsel explains that the motion was 

strategic; he hoped that if the Court granted the motion, the State would seek to avoid 

disclosing the C.I.’s identity by stipulating that Defendant was not present at either 

controlled buy.

101

 When the Court denied the motion, however, Trial Counsel lost 

any leverage to obtain a stipulation, and Trial Counsel did not believe calling the C.I. 

would help Defendant’s case. In summary, Trial Counsel’s decisions not to call the 

98 Sierra v. State, 242 A.3d 563, 573-74 (Del. 2020) (quoting Baynum v. State, 1990 WL 

1098720, at *1 (Del. Super. June 8, 1990)).

99 Trial Counsel’s Aff. at 17. With respect to Ms. Harris’s testimony, Defendant has not shown 

the alleged miscalculated weight would have changed his sentence. The State and Trial Counsel 

both assert that, even at the lower weight Defendant alleges was the correct weight, the total 

weight of the drugs was still sufficient for the Court to impose the heightened sentence.

100 Id. at 14.

101 Id. at 14-15.
28

courthouse witness and the C.I. were strategic choices based on what Trial Counsel 

believed would be best for the defense. Accordingly, Trial Counsel’s choice not to 

call these witnesses objectively was reasonable and does not meet Strickland’s first 

prong.

b. Grounds 12 and 15 fail because Trial Counsel did not act 

unreasonably by not seeking limiting instructions for the text 

messages.

47. Defendant asserts Trial Counsel provided ineffective assistance when 

he (1) failed to request a limiting instruction for the text messages (Ground 12); and 

(2) failed to request a Getz limiting instruction for the King Kong text message 

(Ground 15). Dunnell’s contention that a limiting instruction was warranted is based 

on his incorrect contention that the text messages were admitted under Rules 404(b) 

and 803(3). Again, the Court did not admit the evidence under either rule; the Court 

concluded the text messages were not hearsay and were not unfairly prejudicial under 

Rule 403.

102

 Since the text messages were not admitted for a limited purpose, Trial 

Counsel’s choice not to seek a limiting instruction for the text messages was 

objectively reasonable and fails Strickland’s first prong.

48. Defendant’s challenge to the absence of a Getz limiting instruction 

similarly fails because Defendant misapprehends the rule under which the King Kong 

text message was admitted. A Getz instruction is appropriate when evidence is 

102 See Mot. in Lim. Tr. at 9-13 (Feb. 22, 2017).
29

admitted as a prior bad act under D.R.E. 404(b).

103

 But this Court did not admit the 

King Kong text message as evidence of a prior bad act. Rather, the text message was 

admitted to show Defendant had knowledge of the drugs in the safe, thereby 

supporting the State’s constructive possession argument. In fact, Trial Counsel never 

argued Rule 404(b) applied. Under the circumstances, a Getzlimiting instruction was 

not warranted, and it was not objectively unreasonable for Trial Counsel not to seek 

a Getz instruction.104

c. Grounds 4, 5, 11, 16, and 18 fail because Trial Counsel did not act 

unreasonably by failing to pursue arguments he reasonably 

believed were meritless.

49. Dunnell also argues Trial Counsel was ineffective in failing to raise a 

number of arguments. Trial Counsel avers he chose not to pursue several objections 

and arguments because he did not believe they had merit. First, Trial Counsel states 

he did not seek to suppress the evidence obtained from the cell phones found in 24 

Gull Turn (Ground 14) because, in his professional opinion, the accompanying 

affidavits contained sufficient probable cause to support the warrants.

105

 Similarly, 

Trial Counsel did not believe a good faith basis existed to challenge the warrant for 

103 Getz v. State, 538 A.2d 726, 734 (Del. 1988).

104 Moreover, Defendant arguably waived this ineffective assistance claim by instructing Trial 

Counsel not to raise the absence of a limiting instruction in a motion for a new trial, despite Trial 

Counsel’s belief and advice that the argument would provide a strong basis for a new trial. Trial 

Counsel’s Aff. at 12-13.

105 Trial Counsel’s Aff. at 17.
30

the 24 Gull Turn residence (Ground 16).

106

 Trial Counsel asserts in his affidavit that 

the controlled heroin purchases NCCPD arranged and observed created sufficient 

probable cause that contraband or evidence of a crime would be found inside the 

residence.107 Other than vague arguments that the warrants were not valid, Defendant 

does not point to anything within the warrants’ four corners that supports his position. 

The two controlled buys conducted at the residence “corroborated” the C.I.’s tip and 

amounted to probable cause supporting the search. The cell phones were found in 

the residence with substantial amounts of heroin, a firearm, cash, and paraphernalia 

associated with drug dealing.

50. With respect to the chain of custody issue (Ground 5), Trial Counsel 

states in his affidavit that the State eventually established that the drug evidence was 

in NCCPD custody before being delivered to the courthouse.

108

 Further, as Trial 

Counsel correctly points out, a perfect chain of custody is not required by Delaware 

law.109 Accordingly, Trial Counsel did not make a chain of custody objection because 

he knew the objection likely would be overruled.110 

106 Id. at 20.

107 Id.

108 Id. at 17-18.

109 Id. at 18; Demby v. State, 695 A.2d 1127, 1131 (Del. 1997) (“We have never interpreted 

[Delaware’s chain of custody law] as requiring the State to produce evidence as to every link in 

the chain of custody. Rather the State must simply demonstrate an orderly process from which 

the trier of fact can conclude that it is improbable that the original item has been tampered with 

or exchanged.”)

110 Trial Counsel’s Aff. at 17.
31

51. Defendant asserts that Trial Counsel should have objected when the 

State referred to the King Kong text message as the “fingerprint” of the case during 

closings (Ground 18). In his affidavit, however, Trial Counsel contends the State’s 

fingerprint metaphor was an appropriate closing argument.111 In closing arguments, 

a prosecutor is not confined to merely restating the evidence and is entitled to explain 

all legitimate inferences of the defendant’s guilt that flow from the evidence.112 A 

prosecutor may not, however, misstate evidence or make remarks that could inflame 

the jury’s passions or prejudices.113 The State’s fingerprint metaphor did not misstate 

the evidence against Defendant; rather, the State sought to infer Defendant’s guilt 

from the King Kong text message. The State’s fingerprint metaphor was a proper

closing remark and, accordingly, Trial Counsel’s decision not to object to the 

metaphor was reasonable.

52. Finally, when considering the jury’s note (Ground 11), Trial Counsel 

and the State correctly concluded it would be improper for a trial judge to comment 

on the evidence.114 Trial Counsel could not, as Defendant argues, ask that the judge 

simply answer the jury’s note. Trial Counsel’s choice not to pursue arguments he 

111 Id. at 24.

112 Hooks v. State, 416 A.2d 189, 204 (Del. 1980) (citing State v. Mayberry, 245 A.2d 481 

(1968), cert. denied 393 U.S. 1043 (1969)).

113 Brokenbrough v. State, 522 A.2d 851, 855 (Del. 1987).

114 Id. at 19; Del. Const. Art. IV, § 19; see also State Highway Dept. v. Buzzuto, 264 A.2d 347, 

351 (Del. 1970) (“[T]he Delaware Constitution prohibits a trial judge from commenting on the 

evidence. This prohibition applies equally to the judge's instructions to the jury and to comments 

made by the judge in the course of the trial”).
32

believed were meritless was not objectively unreasonable. The Sixth Amendment 

does not require counsel to pursue meritless arguments.

115

 On the contrary, Trial 

Counsel had a duty not to raise frivolous claims.116 Accordingly, Trial Counsel’s 

failure to raise these issues was not objectively unreasonable.

d. Ground 3 fails because Defendant has not sufficiently established

that he was prejudiced.

53. As to Defendant’s argument that Trial Counsel failed to investigate and 

call as witnesses the other declarants in the text messages, Defendant has not 

established any prejudice arising from this alleged failure. Defendant asserts Trial 

Counsel did not contact the declarants of the incoming text messages, even though 

Defendant asked him to do so. According to Defendant, these declarants would have 

testified on his behalf at trial. Even assuming this failure fell below an objective 

standard of reasonableness, Defendant has not alleged any facts regarding these 

declarants’ identities or their anticipated testimony.

54. Conclusory allegations that additional witnesses would have influenced 

the jurors’ decision are not sufficiently specific to demonstrate actual prejudice.117 In 

Outten v. State,

118 the defendant similarly brought an ineffective assistance of counsel 

115 Shelton v. State, 744 A.2d 465, 503 n.186 (Del. 2000) (citing Flamer v. State, 585 A.2d 736,

758 (Del. 1990)).

116 State v. Ryle, 2019 WL 2714817, at *6 (Del. Super. June 27, 2019) (citing Fairthorne Maint. 

Corp. v. Ramunno, 2007 WL 2214318 (Del. Ch. July 20, 2007)).

117 Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996); Palmer v. State, 1994 WL 202281 at *1 

(Del. May 5, 1994)

118 720 A.2d 547 (Del. 1998).
33

claim relating to his counsel’s failure to call additional witnesses. The defendant did 

not identify the witnesses or the content of their potential testimony.119 Although the 

Delaware Supreme Court recognized defense counsel’s general duty to investigate 

potentially mitigating evidence, the Court held that the defendant’s allegations were 

too conclusory to support a finding that he was prejudiced by defense counsel’s 

actions.120 Similarly, in this case, Defendant’s failure to provide any details regarding 

these potential witnesses leaves him unable to show with any reasonable degree of 

probability that the declarants’ testimonies would have altered the outcome at trial.

ii. Appellate counsel

55. The United States Supreme Court has recognized that appellate counsel 

“need not (and should not) raise every nonfrivolous claim.”121 Rather, appellate

counsel may select from among different claims in order to maximize the likelihood 

of success on appeal.122 In cases where appellate counsel completely fails to file a 

merits brief, a defendant need only show that “a reasonably competent attorney would 

have found one non-frivolous issue on appeal.”123 On the other hand, in cases where 

appellate counsel does file a merits brief on direct appeal, the defendant faces the 

higher burden of showing that “a particular nonfrivolous issue was clearly stronger 

119 Id. at 553.

120 Id.

121 Smith v. Robbins, 528 U.S. 259, 288 (2000).

122 Id.

123 Id.
34

than issues that counsel did present.”124 Defendant’s Motion challenges Appellate 

Counsel’s failure to appeal the Trial Court’s denial of: (i) Defendant’s motion in 

limine; (ii) Defendant’s motion to suppress, and (iii) a Lolly/Deberry instruction. 

Because Appellate Counsel filed a merits brief on other issues in this case, Defendant 

must demonstrate that these three issues were stronger than the issues Appellate 

Counsel pursued.

a. Grounds 8, 9, and 10 fail because it was not unreasonable for 

Appellate Counsel to only pursue select issues on direct appeal.

56. Contrary to Defendant’s arguments, Appellate Counsel did appeal the 

denial of the motion in limine to the Delaware Supreme Court. Appellate Counsel 

challenged the Court’s admission of the text messages on the grounds that they were 

not properly authenticated and that, under D.R.E. 403, their probative value 

substantially was outweighed by the danger of unfair prejudice. Defendant argues, 

however, that Appellate Counsel also should have challenged the messages’

admission on the ground that they were inadmissible hearsay. In her affidavit, 

Appellate Counsel explained that she believed there was no merit to the hearsay 

argument. Appellate Counsel was concerned that the case Trial Counsel relied on for 

his hearsay argument lacked legal analysis and did not support a viable argument.125 

Instead, Appellate Counsel believed there was a strong argument that introduction of 

124 Id.

125 Appellate Counsel’s Aff. at 5.
35

the text messages improperly allowed the jury to convict Defendant of dealing drugs 

that were locked in the safe.

57. With respect to the suppression issue, Appellate Counsel avers that she 

chose not to appeal the ruling on the motion to suppress because she believed it was 

more prudent to challenge the Court’s denial of Defendant’s motion for judgment of 

acquittal.

126

 According to Appellate Counsel, appealing the motion to suppress

would require a fact-intensive argument and would bring into the record damaging 

facts linking Defendant to the drugs in 24 Gull Turn, thereby weakening Defendant’s 

argument that this court erred in denying his motion for judgment of acquittal.

127

 

Appellate Counsel did not believe the probability of success on the suppression issue 

was strong enough to justify this risk.128 

58. Appellate Counsel was entitled to exercise professional judgment and 

only pursue certain issues on appeal. Defendant has not demonstrated why the issues 

he raises in his Motion were stronger than the issues Appellate Counsel chose to

advance on appeal. Accordingly, Appellate Counsel’s decision not to pursue certain

issues on appeal did not fall below an objective standard of reasonableness.

59. Defendant’s argument supporting Ground 10 is muddled; he appears to 

contend Appellate Counsel should have challenged the text messages’ admissibility 

126 Id. at 8.

127 Id.

128 Id.
36

under D.R.E. 404(b) or under D.R.E. 803(3). Defendant has not shown Appellate 

Counsel’s arguments were unreasonable. Neither rule Defendant cites applies to the 

facts of the case. The text messages were not “prior bad act” evidence admitted to 

show Defendant’s conduct in conformity therewith. Rather, the text messages were 

offered to show Defendant and Kyle were working together to sell drugs, thereby 

supporting the State’s constructive possession argument. As to hearsay, this Court

concluded the text messages were not hearsay under D.R.E. 801(d), thereby obviating 

any need to consider whether the messages fell within 803(3) or any other hearsay 

exception. Because Appellate Counsel’s decision to challenge the text messages for 

authenticity and undue prejudice objectively was reasonable, this argument fails.129

b. Ground 14 fails because Appellate Counsel conducted diligent 

research and used her professional judgment when deciding how 

to challenge the text message evidence.

60. Defendant asserts Appellate Counsel was ineffective by failing to 

investigate the bases for the motion in limine before filing the appeal. Defendant 

argues Appellate Counsel did not have the transcripts from the motion in limine

hearing when she filed her opening appellate brief and, consequently, incorrectly 

challenged the text messages’ admission under D.R.E. 404(b) rather than D.R.E. 

803(3). Appellate Counsel admits she did not have a copy of the hearing transcripts 

129 To the extent Defendant contends Appellate Counsel should have argued a limiting 

instruction should have been given with respect to the text messages, Appellate Counsel 

specifically raised that argument on appeal. See Appellant’s Opening Br., at 23-24.
37

when the opening brief was filed.130 Appellate Counsel denies, however, that she 

challenged the evidence under D.R.E. 404(b).

131

 Appellate Counsel states she 

challenged the text messages on the grounds they unfairly were prejudicial under 

D.R.E. 403 and they could not be properly authenticated under D.R.E. 901.132 

Appellate Counsel explains she did not challenge the text messages as hearsay 

because, in the course of her research, she found case law that text messages offered 

to show knowledge of a drug location are not offered for the truth of the matter 

asserted.133 Under these circumstances, it cannot be said Appellate Counsel 

unreasonably failed to sufficiently investigate the hearsay issue. Although Appellate 

Counsel did not have the hearing transcripts (through no fault of her own), she 

conducted research into the hearsay issue and concluded it was not a viable argument 

based on existing case law. Accordingly, Appellate Counsel’s representation was not 

objectively unreasonable.

c. Ground 13 fails because Defendant cannot show prejudice from 

Appellate Counsel’s failure to raise these issues.

61. Finally, Defendant challenges Appellate Counsel’s decision not to 

appeal the Court’s denial of the Lolly/Deberry instruction regarding the State’s failure 

to preserve the plastic bag containing the safe where the contraband was found. 

130 Appellate Counsel’s Aff. at 5.

131 Id.

132 Id.

133 Id.
38

Appellate Counsel cannot recall her thought process in choosing not to raise this issue 

on appeal. But, as discussed above, counsel is not required to raise every issue on 

appeal and is entitled to strategically select what arguments to advance.

134

 Even 

assuming Appellate Counsel’s decision was unreasonable, however, Defendant has 

not sufficiently alleged prejudice from this decision. Defendant has not shown the 

Delaware Supreme Court likely would have reversed his conviction on appeal had 

Appellate Counsel raised the Lolly/Deberry issue. As Appellate Counsel noted, the 

State never sought to prove Defendant actually possessed the safe, only that he 

constructively possessed the drugs inside it. Even if the Court had instructed the jury 

to assume the purple bag did not contain Defendant’s fingerprints, this would not 

have materially weakened the State’s constructive possession argument. Defendant 

has not sufficiently alleged a reasonable probability that the outcome of the direct 

appeal would have been different had Appellate Counsel appealed the lack of a

Lolly/Deberry instruction. Accordingly, Appellate Counsel did not provide 

ineffective assistance.

C. Postconviction Counsel’s Motion to Withdraw

62. Rule 61(e)(7) provides that counsel appointed to represent a defendant 

in postconviction proceedings may move to withdraw if “counsel considers the 

movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, 

134 Id. at 9.
39

and counsel is not aware of any other substantial ground for relief available to the 

movant[.]”135 A motion to withdraw must state the factual and legal bases for 

counsel’s opinion. In considering the motion, the Court must “be satisfied that . . . 

counsel made a conscientious examination of the record and the law for claims that 

could arguabl[y] support [the defendant’s] Rule 61 motion.”136 The Court also must 

review the record independently in order to determine whether the case is devoid of 

any arguable claims for relief.137 Postconviction Counsel’s Motion to Withdraw 

demonstrates he thoroughly reviewed the relevant law and the record in this case, 

including Trial and Appellate Counsel’s performance. Postconviction Counsel had 

the entire record available to him. As noted above, the Court independently has 

reviewed the record and finds no merit to Defendant’s claims.

CONCLUSION

For the reasons stated above, Defendant’s Motion for Postconviction Relief 

is DENIED and Postconviction Counsel’s Motion to Withdraw is GRANTED. 

Counsel’s continuing obligations to Defendant are limited to those set forth in Rule 

61(e)(7)(ii). IT IS SO ORDERED.

 /s/ Abigail M. LeGrow

Abigail M. LeGrow, Judge

135 Super. Ct. Crim. R. 61(e)(7).

136 State v. West, 2013 WL 6606833, at *3 (Del. Super. Dec. 12, 2013), aff’d, 100 A.3d 1022 

(Del. 2014).

137 Id.