IN TH E SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D. No.: 1810013334A ) ANGEL ARBOLAY, ) ) Defendant. )

SUBMITTED: September 15, 2023 DECIDED: November 7 , 2023



### OPINION AND ORDER

o n De f endant’s Motion f

or Post Conviction Relief

– DENIED ; o n Post Conviction Counsel’s Motion t o Withdraw

– GRANTED
.

Michael Cooksey

, Deputy Attorney General, Delaware Department of Justice, 820 N. French Street, 7th Floor, Wilmington, Delaware 19801. Counsel to the State of Delaware. Christopher S. Koyste, Esq uire , Law Office of Christopher S. Koyste, LLC, 709 Brandywine Blvd., Wilmington, Delaware 19809. Cou nsel to Angel Arbolay.

Jones, J.1

On July 19, 2019, following a nonjury trial, Angel Arbolay was found guilty of: (1) Possession of Deadly Weapon During the Commission of a Felony (“PDWDCF”) ; (2) Drug Dealing; (3) Tier One Possession; (4) Operating or Attempting to Operate a Clandestine Laboratory (“OAOCL”) ; (5) Tampering with Evidence; (6) Possession of a Controlled Substance (“PCS”) ; (7) Resisting Arrest; and (8) Possession of Drug Paraphernalia (“PDP”)

. 1 On November 15, 2019 Arbolay w as sentenced and declared a Habitual Offender. 2 Arbolay appealed the Court’s decision with the Delaware Supreme
Court. 3 At the time of Arbolay’s November 15, 2019 conviction, Arbolay was represented by his then counsel, Andrew J. Meyer, Esquire. 4
On January 7, 2021 , Arbolay filed to proceed pro se 5 in the Supreme Court , this request was ultimately granted. 6 On September 14, 2021, the Delaware Supreme Court denied Arbolay’s appeal and affirmed the judgment of the Superior Court. 7 On May 31, 2022, Arbolay filed a Motion for Post Conviction Relief and a motion for appointment of counsel

. 8 Christopher S. Koyste, Esquire was appointed as counsel for Arbolay.

1 See Appendix Volume I for Case No. 181001334A, A9 (2023)

. 2 See Superior Court Criminal Docket, 9 (Arbolay was sentenced to a mandatory jail term of 25 years with decreasing levels of probation to follow ). 3 See Superior Court Criminal Docket for Case No. 1810013334A. 4 See Appendix Volume IV for Case No. 181001334A, A888. 5 Id . at A902. 6 See Appendix Volume I for Case No. 181001334A, A13

. 7 See Appendix Volume IV for Case No. 181001334A ; Superior Court Criminal Rule 61(e)(1)(i). 8 Id . at A905 ; Superior Court Criminal Rule 61(e)(1)(i)

.2

On September 15, 2023, Mr. Koyste filed a motion to withdraw as Arbolay’ s counsel pursuant to Rule 61(e)(6) , maintaining that there is no merit for relief

. 9 Arbolay was afforded an opportunity to respond to Mr. Koyste’s motion and filed a response on October 13, 2023. 10
FACTUAL BACKGROUND The Delaware Supreme Court summarized the underlying facts of this case in its decision on direct appeal:

Around 11:30 p.m. on October 23, 2018, Delaware State Police Officer, Pierre Lawler, assigned to the Governor’s Task Force (“GTF”) team, was patrolling the area around the Dutch Inn on Route 13 in Minquedale. While in the motel parking lot, Detective Lawler heard a man screaming and yelling “mommy” from one of the rooms. Detective Lawler traced the noise to Room 54, which had an exterior window open. Detective Lawler contacted additional members of GFT for back

- up, and the officers approached the room. Detective Lawler spoke to Arbolay through the motel room window. When Detective Lawler asked Arbolay about the screaming, Arbolay said he was having a domestic. Detective Lawle r could only see part of the room through the window and was concerned that there could be at

- risk people inside the room. He asked Arbolay if he could come inside the room to make sure nobody else was there. Arbolay initially consented, but after recogni zing a different police officer, he refused to open the door,

9 See Docket Item (“D.I.”) 83, Motion to Withdraw as Counsel for Case No. 1810013334A

. 10 See Superior Court of Delaware ID No. 1810013334A Letter to Angel Arbolay (Sept. 19, 2023) (Petitioner was notified of counsel’s Motion on September 19, 2023; his response was due by October 19, 2023).3 tried to close the window, and began swallowing pills. One of the officers deployed a Taser on Arbolay, who fell to the floor. Detective Lawler and another officer climbed through the window. They opened the door so the other officers could enter the room. The police tried to handcuff Arbolay, but he struggled and tried to conceal his hands. After Arbolay was handcuffed, he tried to consume the pills on the floor until he was moved off of th e floor. In addition to the pills, two prescription pill bottles with no labels, two blenders of coffee grinders cased with powder, and a bag of suspected cocaine on the night table were in plain view. Probation Officer Bryan Vettori searched the room. He found a loaded handgun, male clothing, $573.00 in cash, and a rubber stamp in a dress. In the closet, he found many blue wax paper bags, a bag of powder suspected to be heroin, and a bag of leafy material suspected to be marijuana. No drug prescripti ons were found. Detective Lawler determined that the motel room was registered to a female friend of Arbolay. A forensic analytical chemist testified that the leafy material found in the closet was 373.126 grams of marijuana. The bag of powder found in the closet did not contain a controlled substance . The powder on the grinders was also not a controlled substance . The bag of suspected cocaine contained .9 grams of cocaine. The pills in the motel room were Alprazolam, also known as Xanax.4 STANDARD OF REVIEW Before addressing the merits of any postconviction claim, the Court must first determine whether the claims pass through the procedural filters of Rule 61. 11 This Court will not address the substantive aspects of Mr. Arbolay ’ s claims if the cla ims are procedurally barred. 12 Rule 61 imposes four procedural requirements on Mr. Arbolay ’ s motion: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been previously asserted in any prior post conviction proceedings; (3) any basis for relief must have been asserted at trial or on direct appeal as required by court rules; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant
may avoid the first three procedural imperatives if the claim is jurisdictional or is a “colorable claim that there was a miscarriage of justice because of a constitutional violation.” 13 Further, challenges based on ineffective assistance of counsel may only be raised during a defendant’s first Rule 61 proceeding. 14 Upon review, the Court is satisfied Mr. Arbolay ’ s motion is timely and procedurally proper except as indicated below.

11 See Younger v. State , 580 A.2d 552, 554 (Del. 1990) (“T his Court applies the rules governing procedural requirements before giving consideration to the merits of the underlying claim for postconviction relief.”). 12 See id. 13 Super. Ct. Crim. R. 61(i)(5). 14 See Wing v. State , 690 A.2d 921, 923 (Del. 1996).5

Ineffective assistance of counsel claims are governed by the two

- prong test set forth in Strickland v. Washington

. 15 The Strickland test requires the defendant to prove “counsel’s representation fell below an objective standard of reasonableness” and “tha t there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 16 Evaluating counsel’s conduct begins with a “strong presumption” the representation was reasonable. 17 This presumption is meant to avoid the “distorting effects of hindsight.” 18
Pursuant to Superior Court Criminal Rule 61(e)( 6 ) , “unless the judge appoints counsel for a limited purpose, it shall be the duty of counsel to assist the movant in presenting any substantial ground for relief available to the movant. Upon entry of a final ord er in a postconviction proceeding, counsel's continuing duty shall be as provided in Supreme Court Rule 26, unless counsel has been permitted to withdraw.” 19 Further, under Superior Court Criminal Rule 61(e)(7), post

- conviction counsel has an obligation to assist the movant in presenting any substantial ground

15 Se e Albury v. State , 551 A.2d 53 (Del. 1988). 16 Strickland v. Washington , 466 U.S. 668, 688 (1984). Per Strickland , the Court is to begin its analysis under the strong presumption that the conduct of defense counsel constituted sound trial strategy. See id. at 689. 17 Albury , 551 A.2d at 59. 18 Id. at 60. The Strickland Court explained that an error by trial counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment. See Strickland , 466 U.S. at 691. 19 Super. Ct. Crim. R. 61(e)( 6 ).6

for relief. 20 However, if counsel “considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw.” 21 If counsel moves to withdraw, they must explain the factual and legal basis for their opinion and provide notice to the movant, who may respond within thirty days of s ervice, unless the court grants an extension of this deadline. 22
ANALYSIS Defendant asserts nine reasons in support of his claim for post

- conviction relief. The Court will address each in turn.
1. Procedural bars inapplicable to Petitioner’s first motion of post
conviction relief and further to claim an ineffective assistance of trial counsel prejudiced his defense
. In his first claim , Mr. Arbolay asserts that procedural bars set forth in Delaware Supreme Court Rule of Criminal Procedure 61 do not apply to his postconviction arguments as this is his first postconviction motion and his motion was filed within 1 year of the Delaware Supreme Court’s affirmance. (A866

- 67). While Mr. Arbolay is correct that Rule 61’s procedural bars typically do not app ly to first postconviction motions filed within a year of the conclusion of a direct

20 Super. Ct. Crim. R. 61(e)(7). 21 State v. Shover , 20232 WL 3496206, *3 (Del. Supr. May 15, 2023). 22 Id

.7

appeal, as outlined below, two of Mr. Arbolay’s pro se postconviction claims are procedurally barred as the cla i ms were previously adjudicated. 23
2. Judicial notice and bad prior acts committed by arresting officers against Petitioner

. In his second claim , Mr. Arbolay requests that this Court take judicial notice of “the allegations” raised by Mr. Arbolay in his 1983 civil lawsuit in Angel Luis Arbolay v. Bryan Vettori , et al., Civ. No. 19976

- GBW, which is pending in the United States District Court for the District of Delaware. (A867

- 69)

. Delaware Rule of Evidence 201 permits this Court to take judicial notice of certain adjudicative facts. 24 “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” 25 If there is any possibility of a dispute, the fact may not be judicially noticed. 26 A review of the docket report for Mr. Arbolay’s federal lawsuit reveals that on August 14, 2023, the Delaware District Court granted in part and denied in part Mr. Vettori’s motion for summary judgment. (A910). In particular, the District Court granted Mr . Vettori’s motion “as to Plaintiff’s claims for illegal search and seizure,

23 See Appendix Volume I V for Case No. 181001334A, A 866

- 69 (2023)

. 24 Del. R. Evid. 201(a). 25 Del. R. Evid. 201(b); Bigger v. Unemployment Compensation Comm ., 46 A.2d 137, 141 (Del. 1946). 26 Fawcett v. State , 697 A.2d 385, 388 (Del. 1997).8

delaying medical care, and filing false reports, and judgment is entered in Defendant’s favor as to those claims.” (A910). However, the District Court denied Mr. Vettori’s motion “as to Plaintiff’s excessive force claim. That claim shall proceed to trial.” (A910). In light of the District Court’s ruling on Mr. Vettori’s motion for summary judgment, it is reasonable to conclude that Mr. Arbolay’s allegations against Mr. Vettori a re subject to reasonable debate because there has not been a judicial finding by the District Court as to the accuracy of Mr. Arbolay’s fact allegations under a preponderance of the evidence standard. As such, this Court will

not take judicial notice of t he allegations in Mr. Arbolay’s federal lawsuit because they have not been found by any trier of fact to exist.
3. Prior ba d acts of arresting officers not properly raised by counsel
. In his third claim , Mr. Arbolay alleges that Trial Counsel was ineffectiv e for failing to pr op e rl y raise prior bad acts committed against him by Probation O fficer Vettori. (A871). In s upport of this argument, Mr. Arbolay alleges that Probation Officer Vettori has committed “constitutional intrusions and tortious conduct” against Mr. Arbolay which included requesting a high cash bail in another criminal case. (A870). In order to succes sfully allege ineffective assistance of counsel, a petitioner must show that counsel’s performance both: 1) fell below “an objective standard of9

reasonableness” 27 and 2) resulted in prejudice. 28 Under the performance prong, the Delaware Supreme Court has held that “it is all too easy for a court examining counsel’s de f

ense after it has proved unsuccessful to succumb to the distorting effects of hindsight.” 29 As such, Trial Counsel’s “actions are afforded a strong presumption of reasonableness and that rev iewing court must “reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from the counsel’s perspective at the time.” 30
A review of the record reveals that it was reasonable for Trial Counsel to not raise law enforcemen t’s alleged prior bad acts against Mr. Arbolay during trial because it precluded the State from admitting incredibly prejudicial evidence during rebuttal. During the July 15, 2019 pretrial conference, the State alerted the Trial Court about the possibilit y of Mr. Arbolay presenting evidence relating to law enforcement’s actions

. 31 It is apparent from the State’s representations that the State was ready and able to introduce incredibly prejudicial evidence in the event that Mr. Arbolay “opened the door” by testifying to law enforcement’s “prior bad acts.” (A58

- 59). Trial Counsel did not allow for the door to be opened and the prejudicial evidence was

27 Strickland , 466 U.S. 668; Williams , 529 U.S. 362; Wiggins , 539 U.S. 510; Rompilla , 545 U.S. 374. 28 Strickland , 466 U.S. 687. 29 Neal v. State , 80 A.3d 935, 942 (Del. 2013) (quoting Strickland , 466 U.S. 689). 30 Id . (internal quotations omitted). 31 See Superior Court of Delaware ID No. 1810013334A Federal Conference Transcript, A58

- 59 (July 15, 2019).10

never admitted during Mr. Arbolay’s trial. As such, Trial Counsel cannot be considered ineffective for not pursuing a line of questioning that would have exposed his client to prejudicial rebuttal evidence. Thus, Mr. Arbolay’s claim that Trial Counsel was ineffective for failing to raise law enforcement’s prior bad acts has no merit because it does not meet th e Strickland standard.
4. Trial Counsel improperly conceded to the Prosecution’s credibility of its case narrative
. In his fourth claim , Mr. Arbolay alleges that Trial Counsel was ineffective as his opening statement essentially conceded to the State’s theory of the case. (A871

- 72). In p articular, Mr. Arbolay takes issue with Trial Counsel’s statement that “Mr. Arbolay was drunk, he was high, and he was being an idiot. He was screaming out of the Room 54 at the Dutch Inn on Rte. 13, which dre w the attention of several officers who were there.” (A96 ; A871

- 72). The Delaware Supreme Court has long recognized that when there is alleged mis conduct, the analysis is different when the misconduct occurs during a bench trial as opposed to a jury trial. 32 During bench trials, “a judge, sitting as a trier of fact, is presumed to have made his verdict only on the admissible evidence before him and to have disregarded that which is inadmissible.” 33

32 Kurzmann v. State , 903 A.2d 702, 709 n.7 (Del. 2005) (citing Burke v. State , 1997 Del. LEXIS 95, *5

- 6 (Del. 1997); Liggett v. People , 135 P.3d 725, 200 6 Colo. LEXIS 441, *25 (Colo. 2006)). 33 Id . (quoting Burke , 1997 Del. LEXIS at *5

- 6); Burke, 1997 Del. LEXIS at *5

- 6 (quoting United States v. Cardenas , 9 F.3d 1139, 1156 (5 th Cir. 1993)).11

As Mr. Arbolay elected to waive his right to a jury trial, he must overcome the presumption that the Trial Court’s verdict was based “only on the admissible evidence.” 34 T he record does not support a con clusion that the Trial Court relied on anything other than admissible evidence. As such, Mr. Arbolay is unable to demonstrate that he suffered prejudice from Trial Counsel’s opening sta t ement. In his reply, Defendant takes issue with post

- conviction coun sel’s performance. This Court’s review of the entire record leads it to conclude that post

- conviction counsel has not be ineffective.
5. Counsel was ineffective for failing to file a motion for suppression of evidence
. In his fifth claim , Mr. Arbolay asserts that Trial Counsel was ineffective for failing to move to suppress the administrative search of the motel room performed by Delaware Probation and Parole. (A881

- 87). Thi s claim is procedurally barred pursuant to Delaware Superior Cou rt Rule of Criminal Procedure 61(i)(4). In Mr. Arbolay’s opening brief on direct appeal, Mr. Arbolay alleged that “the engagement of the appellant within the motel room, and the subsequent warrantless search of the residence was unreasonable based on the totality of the circumstances.” (A819). T he Delaware Supreme Court rejected Mr. Arbolay’s argument and

34 Id

.12

affirmed the judgment of the Superior Court. In particular, the Delaware Supreme Court held: “Probation Officer Vettori had reasonable articulable

suspicion to search the motel room. The record reflects that Detective Lawler heard screaming from a motel room Arbolay was occupying, Arbolay admitted to having a domestic incident, and Arbolay initially consented to Detective Lawler entering the room. Arbolay then prevented anyone from entering the room and began ingesting pills. The record also reflects that Arbolay was on probation and, contra ry to Arbolay’s contention, Officer Vettori obtained his supervisor’s approval to search the mote l room.” In these proceedings, although Mr. Arbolay is asserting th at Trial Counsel was ineffective, this claim essentially centers around the underlying issue of whether the search of the motel room was constitutional. (A881

- 87). However, as the Delawar e Supreme Court rejected Mr. Arbolay’s suppression

- based argument on direct appeal and ruled on the suppression issue underlying the ineffective assistance of counsel claim, Mr. Arbolay’s postconviction claim has been formerly adjudicated and is therefore, procedurally barred pursuant to Delaware Superior Court Rule of Criminal Procedure 61(i)(4). 35 As an additional component of the fifth claim , Mr. Arbolay also alleges that Michael Modica, Esquire, was ineffective for failing to file a motion to exclude “ the

35 As this claim was previously adjudicated, this claim is f ully exhausted, and Mr. Arbolay may raise the suppression argument in a petition of habeas corpus to the United State District Court for the District of Delaware pursuant to 28 U.S.C. 2254.13

powdery substance” that was determined to not contain any controlled substance. (A888). This claim was also formerly adjudicated during Mr. Arbolay’s direct appeal as the Delaware Supreme Court held that the “Superior Court did not abuse its discretion in admitting the non

- controlled substance and the cocaine.” (A846

- 47).
6. Trial Counsel’s failure to file a motion to exclude the text messages used by the State to develop its allegations of drug dealing
. In his sixth claim , Mr. Arbolay asserts that Trial Counsel was ineffective for failing to move to exclude the text messages from Mr. Arbolay’s cell phone. (A888

- 92). In support of his argument, Mr. Arbolay asserts that the search warrants used to search his cell phone were “general and lacked p articularity” and therefore, the search and seizure “were subject to a Motion in Limine at a minimum, and a Motion to Suppress to ensure full Constitutional continuity for the petitioner’s protected interests.” (A889

- 90). N either theory of ineffectivenes s has merit.

a. Trial Counsel attempted to exclude the text messages during Mr. Arbolay’s trial
. In his pro se motion, Mr. Arbolay acknowledges that “Trial Counsel objected to the admission of the text messages based on the vast amount of time between the Petitioner’s arrest and request dates.” (A892). As such, it appears that Mr. Arbolay takes issue with the fact that Trial Counsel’ s M otion in Limine was made orally on the first da y of trial rather than by a formal written motion. (A892). Regardless of14

its format, Trial Counsel did attempt to exclude the text message 36 and, therefore, Trial Counsel cannot be deemed ineffective for f ailing to file a Motion in Limine

. b. There is no basis in law or fact to support a motion to suppress the search and seizure of Mr. Arbolay’s cell phone
. “The United States and Delaware Constitutions protect against unreasonable search and seizures by requiring that search warrant s be issued only upon a showing of probabl e cause.” 37 The requirements for the issuance of a search warrant are codified in 11 Del. C

. §§ 2306 and 2307 which set forth the “four corners” test for probabl e cause. 38 Pursuant to the “four corners” test, there must be sufficient facts on the face of the affidavit to verify the existence of probable cause.” 39 As such, the supporting affidavit must allege sufficient facts to allow a “neutral judicial officer to form a reasonable be lief that an offense has been committed and that seizable property will be found in a particular place or on a particular person. 40 Additionally, the probable cause requires there to be “a logical nexus between the items sought and the place to be searched.” 41 A “nexus may be inferred from the factual allegations of the affidavit, including ‘the type of crime, the nature of the items sought, and the extent of an opportunity for concealment and normal

36 A72; A75

- 79. 37 State v. Albert , 2015 Sel. Super. LEXIS 997 *5 ( Del. Super. Ct. Dec. 3, 2015) (citing U.S. Const. amend. IV; Del. Const. art. 1, Section 6). 38 Id . (citing Dorsey v, State, 761 A.2d 807, 811 (Del. 2000)). 39 Id

. 40 Id

. 41 Id

.15

inferences as to where a criminal would hide [ev idence of a crime].’” 42 Thus, probable cause may be found when the totality of the circumstances establish a “fair probability that contraband or evidence of a crime will be found in a particular place.” 43
In State v. Albert , this Court was asked to deter mine whether a particular cell phone search warrant established sufficient probable cause. 44 The affidavits of probable cause described the defendant’s arrest, the results of a search, as well as a statement from the affiant that “based on his training, k nowledge and experience, that people involved in criminal activity use cell p hones to facilitate their crimes and to communicate with co

- conspirators, and that drug traffickers use cell phones to conduct illegal activity, this establish ed probable cause th at evidence regarding Defendant’s drug dealing would be found within the cell phones seized.” 45 Upon further review, Resident Judge Butler concluded that “the facts alleged in the affidavits for both the first and second set of cell phones established a m inimally sufficient nexus between the criminal activity and Defendant’s cell phones.” 46 In support of his conclusion holding, Resident Judge Butler noted that “the affidavits

42 Albert , 2015 Del. Super. LEXIS at *5

- 6 (quoting State v, Ivins , 2004 Del. Super. LEXIS 164, 2004 WL 1172351, at *4 (Del. Super. Ct. May 21, 2004)). 43 Id . at *6 (quoting Sisson v. State , 883 A.2d 868, 896 (Del. 2005)); see also Jensen v. State , 482 A.2d 105, 112 (Del. 1984) (“The test for probable cause is much less rigorous than that governing the admission of evidence at trial and requires only that a probability, not a prima facie showing, of criminal activity be established”). 44 Id . at *1. 45 Id . at *9. 46 Id

. at *12.16

stated facts sufficient to support a finding that Defendant... was involved in illegal heroin distribution” as well as contained “boiler plate language” about the Office r’s training and experience which predominate... cell phone search warrants.” 47 And when ”these facts were viewed together” Judge Butler found that there was sufficient facts “to support an inference that Defendant used his cell phone” to commit criminal

ac tivity.” 48 Similar to the affidavits of probable cause in Albert , the affidavits of probable cause submitted in support of the search warrants in the present case described the events lea d ing up to and immediately after Mr. Arbolay’s arrest as well as the search of the motel room. (A38

- 41; A46

- 50). The affidavits also included similar “boilerplate” language about the Officers ’ training and experience and how “drug traffickers” conceal their criminal activity. (A42; A51). In light of the similarities betwe en the affidavits in this case and the affidavits in Albert , the instant Trial Court , as in Albert , would have concluded that “the facts alleged in the affidavits... established a minimally sufficient nexus between the criminal activity and Defendant’s cell phone.” 49 Thus, there was not legal or factual basis for Trial Counsel to move to suppress the search and seizure of Mr. Arbolay’s cell phone

. Trial Counsel was not ineffective for failing to file a motion to suppress.

47 Albert, 2015 Del. Super. LEXIS at *10

- 11. 48 Id . at *11

- 12. 49 Id . at *12.17

7. Lack of Petitioner’s bifurcated ha bitual offender status hearing and sentencing
. In his seventh claim , Mr. Arbolay asserts that he was denied due process when the State was permitted to amend its habitual offender petition motion on the day of sentencing and Trial Counsel was ineffective for failing to “argue the error.” (A894). In Mr. Arbolay’s opening brief on direct appeal, Mr. Arbolay alleged that the Trial Court “erred in permitting the State to amend the habitual offender petition and failing to hold a separate hearing on the petition.” (A829

- 34). The Delaware Supreme Court, however, rejected the argument holding that:

“ Even if the habitual offender petition was untimely under Rule 45( d), the Superior Court did not err in permitting the State to amend the petition and in granting the amended petition. The record reflects that the parties understood Arbolay faced a minimum twenty

- five

- year sentence for PFDCF as a habitual offender well before the filing of the original habitual offender petition in November 2019. This minimum sentence was raised during Arbolay’s rejection of a plea offer in June 2019. It was also discussed during the parties’ post

- trial negotiations. In addition, Arbo lay’s counsel admitted that Arbolay had the felony convictions required by Section 4214(c), and that he had no good faith basis to oppose the merits of the petition. As to Arbolay’s claim that the Superior Court failed to hold a separate hearing on the ha bitual offender petition, he did not request a sperate hearing and has not shown that he suffered any prejudice. Under these circumstances, we conclude that the Superior Court did not err in permitting the State to amend the habitual offender petition and in granting the amended petition. (A854).18

In these proceedings, although Mr. Arbolay posits that Trial Counsel was ineffective for failing to challenge the State’s amended habitual offender motion, in addition to Trial Court ’s due process error, his cl aim centers around the underlying issue of whether the Superior Court erred by granting the State’s amended habitual offender petition. (A894). T he Delaware Supreme Court already determined that the Superior Court did not err when granting the amended mot ion, Mr. Arbolay’s postconviction claim has been formerly adjudicated and are therefore, procedurally barred pursuant to Delaware Superior Court Rule of Criminal Procedure 61(i)(4). 50
8. Trial Counsel’s ineffectiveness for failing to provide a meaningful adve rsarial testing of State’s DNA evidence
. In his eighth claim , Mr. Arbolay alleges that Trial Counsel was ineffective for failing to meaningfully challenge the State’s DNA evidence. (A898

- 00). In support of his argument, Mr. Arbolay asserts that Trial Counsel “had an obligation to cross examine the expert witness r egarding whether the test samples had consistency with that of semen or skin/saliva/sweat/blood/hair” and/or was obligated to “enlist the services of a DNA expert to perform a preliminary analysis of the sample, which could have verified the petitioner’s v ersion of events...” (A899).

50 As this claim was previously adjudicated, this claim is fully exhausted, and Mr. Arbolay may raise the suppression argument in a petition of habeas corpus to the United State District Court for the District of Delaware pursuant to 28 U.S.C. 2254.19

It is well recognized that “an attorney may make certain strategic choices when presenting a client’s case, so long as the choice is ‘well within the range of professionally reasonable judgments.” 51 The decision as to “which witness to call, if any, is a permissible strategic choice” and “a reasonable attorney may... decide that Defendant’s case did not warrant expert testimony or that introducing expert testimony would be counter

- productive and harm Defendant at trial.” 52 A review of the trial transcripts in this case reveals that Trial Counsel effectively cross

- examined the State’s DNA expert witness and elicited testimony beneficial to Mr. Arbolay’s defense. Trial Counsel’s cross examination spans over 21 pages which includes a concession from the State’s expert that she could not opine as to how Mr. Arbolay’s DNA ended up on the firearm. (A376

- 97). Furthermore, Trial Counsel was also able to elicit favorable testimony from the State’s expert
regar ding secondary DNA transfer. 53 This testimony provided an alternative lawful explanation as to why his DNA was found on the recovered firearm. In light of Trial Counsel’s lengthy cross examination during which he elicited beneficial testimony supporting M r. Arbolay’s defense, the record does not support the conclusion that Trial Counsel did not meaningfully oppo s e the State’s DNA evidence. Moreover, the cross examination

51 State v. Holmes , 2016 Del. Super. LEXIS 641, *13 (Del. Super. Ct. Sept. 28, 2016) (citing Strickland , 466 U.S. at 690

- 91, 699). 52 Id . (citing Cooke v. State , 977 A.2d 803, 840

- 41 (Del. 2009)). 53 See Superior Court of Delaware ID No. 1810013334A Trial Transcript, A380

- 81 (July 18, 2019).20

reveals that there was no need to return a defense DNA expert as the points were made on cross
. 9. Appellate Counsel was ineffective. In his nineth claim , Mr. Arbolay alleges that Appellate Counsel , who represented Mr. Arbolay before Mr. Arbolay elected to proceed pro se , was ineffective. (A901

- 03). In support of this argument, Mr. Arbolay argues that the fact that the Delaware Supreme Court remanded his case for re

- sentencing “is prima facie showing of Appellate Counsel ’s ineffectiveness under both prongs of Strickland... ” (A903).
P rejudice is established by showing “there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. 54 Reasonable probability has been defined as “a probability sufficien t to undermine confidence in the outcome.” 55
While Appellate Counsel did not discover the merger issue during his review of Mr. Arbolay’s case, ultimately, that issue was addressed by the Delaware S u preme Court by remanding Mr. Arbolay’s case to the Super ior Court for re

- sentencing. (A854

- 55). As such, Mr. Arbolay was not prejudiced in any way by Appellate
C ounsel’s failure to discover the merger issue. Thus, this claim has no merit.

54 Strickland , 466 U.S. at 694. 55 Id

.21

For the reasons stated above, Defendant’s claim s for post

- conviction r elief

are DENIED

. MOTION TO WITHDRAW It is the Court’s finding that, u nder Rule 61(e)(7), Counsel, through his Motion to Withdraw, “ explain ed the factual and legal basis for their opinion and provide d notice to the movant

. ” 56 Further, this Court’s independent review of the entire record leads it to conclude that Counsel has “ considered the movant's claim and finds it to be so lacking in merit that they cannot ethically advocate it. ” 57 For the foregoing reasons, Counsel Koyste ’s Motion to Withdraw is
GRANTED

. IT IS SO ORDERED. 

### /s/ Francis J. Jones, Jr. Francis J. Jones, Jr. , Judge

Original to Prothonotary

56 Shover , 20232 WL 3496206, at *3

. 57 Id

.