1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

 

 v.

HERBERT CLANTON,

 

 Defendant. 

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) Cr. ID. No. 1411018085

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Submitted: October 28, 2021

Decided: January 25, 2022

MEMORANDUM OPINION

The Court has considered the Defendant’s Motion for Postconviction Relief 

(the “Motion”) and the relevant proceedings below. For the reasons discussed 

below, Defendant Herbert Clanton’s Motion is hereby denied.

BACKGROUND

On direct appeal, the Delaware Supreme Court, in its January 12, 2017 

Order,1 made the following findings.

On the morning of November 29, 2014, Clanton accosted the 

victim [Nayyirah Thomas], who was his ex-girlfriend, as she was 

1 Clanton v. State, 2017 WL 443728 (Del.)
2

leaving her apartment to go to work. He forced her back into the 

apartment, where he kept her against her will for several hours. He 

slapped the victim and choked her causing her to lose consciousness.

At one point during the ordeal, he slammed the victim up against the 

wall causing damage to the wall. He forced her to call her employer to 

explain that she would not be reporting to work that day. Two neighbors 

heard the victim screaming and begging her assailant not to kill her. 

One of the neighbors called the police.

The officer who arrived at the apartment did not hear any noise 

coming from inside. He knocked on the door, but Clanton would not 

allow the victim to answer. The officer left. In order to escape, the 

victim convinced Clanton that she wanted to be with him again, and she 

engaged in sexual intercourse with him. Eventually Clanton left the 

apartment around 3 PM. The victim ran to a neighbor’s apartment 

where she called 911. The jury acquitted Clanton of Rape in the Second 

Degree and Home Invasion but convicted him of [Kidnapping in the 

Second Degree, Burglary in the Second Degree, and Strangulation].2

Clanton was sentenced on May 20, 2016, for the Kidnapping, Burglary, and 

Strangulation convictions. Clanton was declared an Habitual Offender pursuant to 

2

Id. at *1-2 (emphasis added).
3

11 Del. C. § 4214(a) regarding both the Kidnapping and Burglary convictions. He 

was sentenced to 15 years Level 5 incarceration for Kidnapping. He was 

sentenced to 8 years of Level 5 incarceration for Burglary. Clanton was sentenced 

to Level 5 incarceration for 5 years, suspended for 2 years of Level 3 supervision 

for Strangulation. The Supreme Court denied Clanton’s appeal. 

Clanton filed a Rule 61 Motion for Postconviction Relief on October 25, 

2017. The Motion claimed ineffective assistance of counsel under a variety of 

theories. Counsel was appointed. On August 27, 2018, Counsel filed a Motion to 

Withdraw as Counsel. Counsel stated that after a thorough review of the record, he 

was unable to find any meritorious claims for relief. Clanton filed a memorandum 

in opposition to the Motion to Withdraw. 

Clanton then filed an Amended Motion. The State filed an Amended 

Response. Clanton replied. The Motion was then assigned to the Superior Court 

Commissioner pursuant to 10 Del. C. § 512(b) and Superior Court Criminal 

Procedure Rule 62. 

The Commissioner ordered new Defense Counsel to submit a “focused and 

very specific brief that only addresses the Defendant’s arguments that [Counsel]

finds to have merit.” The assigned Commissioner subsequently was appointed as a 

Court of Common Pleas Judge. The pending motion reverted to the assigned 

Superior Court Judge.
4

Defense counsel argues:

Mr. Clanton is entitled to postconviction relief on the basis that his trial 

counsel failed to consider or request that the jury be given instructions 

on lesser-included offenses when it was given instructions on the 

Kidnapping in the Second Degree and Strangulation charges. There is 

a reasonable probability that, had such instructions been provided, the 

jury would have convicted Mr. Clanton of the lesser-included charges 

based on the evidence presented at trial. As such, Mr. Clanton’s motion 

for postconviction relief should be granted and a retrial ordered.

Mr. Clanton’s remaining claims for postconviction relief lack merit for 

the reasons set forth above and as noted in the August 2018 

Memorandum in Support of Motion to Withdraw as Counsel and the 

September 2019 Motion for Postconviction Relief previously filed in 

this case.

The Court held an evidentiary hearing on September 28, 2021. 

ANALYSIS

Claims

Defendant originally raised six arguments in his Rule 61 Motion: (1) Trial 

Counsel failed to request an instruction on the lesser-included offenses of Unlawful 

Imprisonment in the 1st Degree and Assault in the 3rd Degree; (2) Counsel failed to 

subpoena and secure witnesses and request a continuance; (3) Counsel failed to 

investigate the scene of the crime; (4) Counsel failed to investigate, interview and 

impeach defense and state witnesses; (5) Counsel failed to consult with the 

Defendant prior to trial; and (6) Counsel failed to object to jury instructions, 

testimony, and prosecution remarks.
5

Claims Two through Six

Prior to addressing the substantive merits of any claim for postconviction 

relief, the Court first must determine whether the defendant has met the procedural 

requirements of Superior Court Criminal Rule 61.3If a procedural bar exists, then 

the claim is barred, and the Court should not consider the merits of the 

postconviction claim.4 

Criminal Rule 61 provides that the motion must be filed within one year 

after the conviction becomes final;5 defendant cannot bring repetitive motions;6

defendant cannot raise any ground for relief not raised in proceedings leading to 

the conviction;7and defendant cannot raise any ground for relief that was formerly 

adjudicated prior to the conviction.8 If Defendant is otherwise barred under Rule 

61(i)(1), (2), (3), or (4), Rule 61(i)(5) lifts the bars to relief if the Court lacked 

jurisdiction or the claim pleads new evidence that creates a strong inference of 

innocence.9

Defendant’s appeal was denied on January 12, 2017. His Motion for 

Postconviction Relief was filed on October 25, 2017. Therefore, Defendant’s 

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

4

Id.

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

6

Id. 61(i)(2).

7

Id. 61(i)(3).

8

Id. 61(i)(4).

9

Id. 61(i)(5).
6

Motion is timely. Rule 61(i)(2) is inapplicable because this is Defendant’s first 

Motion for Postconviction relief.

Rule 61(i)(4) is inapplicable. Defendant was convicted and has not raised 

any claims which were previously adjudicated. Rule 61(i)(5) is inapplicable. 

Defendant has not shown the Court lacked jurisdiction over any of his claims. 

Defendant has not shown any new evidence that would demonstrate he is factually 

innocent. 

Rule 61(i)(3) bars Claims two through six. Defendant did not introduce the 

stated grounds for relief at the time of sentencing or on direct appeal. Defendant 

failed to show cause for the default or any specific prejudice. Thus, Defendant’s 

claims two through six are procedurally barred under Rule 61.

Lesser-Included Offenses

Defendant’s first claim can be construed as a claim for ineffective assistance 

of counsel. This claim is the only claim properly raised in a motion for 

postconviction relief. To prevail on this claim, Defendant must establish: (1) that 

counsel’s representation fell below an objective standard of reasonableness; and 

(2) that there is a “reasonable probability, but for counsel’s unprofessional errors, 

the result of the proceeding would a have been different.”10 

10 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
7

“To show that there was a ‘reasonable probability’ of a different outcome to 

satisfy Strickland's prejudice prong, a defendant must demonstrate more than a 

mere ‘conceivable’ chance of a different result.”

11

 “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.”12 Although not 

insurmountable, the Strickland standard is highly demanding and leads to a strong 

presumption that Counsel’s conduct fell within a wide range of reasonable 

professional assistance.13

The Court must determine if there is a rational basis supporting a jury 

conviction on lesser-included offenses. “[I]n order to give an instruction on a 

lesser included offense, the trial court must be satisfied that ‘the evidence 

introduced in the case ... support[s] a jury verdict convicting [the] defendant of the 

lesser crime rather than the indicted crime.’”

14

The charge of Strangulation requires the State to prove that Defendant 

“knowingly or intentionally impeded the breathing or circulation of blood of 

another person by applying pressure to the throat or neck of the other person.” 15 

Assault in the Third Degree is the relevant lesser-included offense. A defendant is

guilty of Assault in the Third Degree when: (1) defendant intentionally or 

11 Baynum v. State, 211 A.3d 1075, 1084 (Del. 2019).

12 Id.

13 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del.).

14 White v. State, 173 A.3d 78, 83 (Del. 2017)(quoting Baker v. State, 1993 WL 557951, at *6 

(Del.)).

15 11 Del. C. § 607.
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recklessly causes physical injury to another person; or (2) with criminal negligence 

defendant causes physical injury to another person by means of a deadly weapon or 

a dangerous instrument.16

The charge of Kidnapping in the Second Degree requires the State to prove

that the defendant unlawfully restrained another person with any of the following 

purposes:

(1) To hold the victim for ransom or reward; or (2) To use the victim 

as a shield or hostage; or (3) To facilitate the commission of any felony 

or flight thereafter; or (4) To inflict physical injury upon the victim, or 

to violate or abuse the victim sexually; or (5) To terrorize the victim or 

a third person; or (6) To take or entice any child less than 18 years of 

age from the custody of the child's parent, guardian or lawful custodian;

and the actor voluntarily releases the victim alive, unharmed and in a 

safe place prior to trial.17

Unlawful Imprisonment in the First or Second Degree are the relevant lesserincluded offenses. A defendant is guilty of Unlawful Imprisonment in the First 

Degree when defendant knowingly and unlawfully restrains another person under 

circumstances which expose that person to the risk of serious physical injury.18 A 

defendant is guilty of Unlawful Imprisonment in the Second Degree when 

defendant knowingly and unlawfully restrains another person.19

16 11 Del. C. § 611.

17 11 Del. C. § 783.

18 11 Del. C. § 782.

19 11 Del. C. § 781.
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Defendant argues there was a reasonable probability a jury would have 

convicted Defendant of the lesser-included offenses had the instruction been 

provided. 

Defendant relies on White v. State20 to argue a reasonable probability of 

prejudice. In White, counsel's refusal to request a lesser-included offense 

instruction was based on a mistaken understanding of the statute, rather than on 

trial strategy.

21

 White’s Counsel conceded that he failed to consider the gap 

between physical injury and death.22 “[T]rial counsel conceded he acted without a 

tactical purpose, and there is no plausible tactical reason for failing to request the 

instruction. Thus, counsel's performance fell below an objective standard of 

reasonableness for purposes of Strickland.”

23

Strangulation

The standard for giving a Strangulation lesser-included offense instruction is 

whether there is a rational basis supporting the jury’s conviction on the lesserincluded offense(s). The victim testified at trial that she repeatedly pled with the 

Defendant, saying: “Don’t choke me.” She further testified that the Defendant 

placed his hands on her throat numerous times. Sufficient pressure was applied 

20 173 A.3d at 83. 

21 Id. at 82.

22 Id. at 81.

23 Id. at 80.
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that the victim saw “black and blue.” The forensic nurse testified that she found 

redness and abrasions around the victim’s neck. The victim later developed two 

black eyes. There was no trial evidence or testimony presented in opposition to 

these factual statements.

The Court finds that this evidence supports a conviction on the charge of 

Strangulation. There was unrefuted evidence that the victim’s breathing was 

impeded and that the Defendant acted intentionally when he placed his hands 

around her neck and applied pressure sufficient to cause the victim to see black and 

blue, and resulting in redness, abrasions, and two black eyes. The reasonable and 

logical inference is that Defendant intended to impede her breathing or blood flow. 

For there to be a rational basis supporting a jury conviction on the lesser-included 

offense of Assault in the Third Degree, the jury would have had to ignore the 

uncontradicted evidence that the victim’s breathing and blood flow were impeded. 

During the September 28, 2021 evidentiary hearing, Counsel testified and 

admitted to being ineffective. However, Counsel also testified that he thought the 

State had considerable evidence regarding the Kidnapping and Strangulation

charges. Counsel recognized the strength of the State’s case. He felt the State had 

proven the Strangulation, Burglary in the Second Degree, and Kidnapping in the 

Second-Degree. Counsel believed the victim to be credible. His strategy was to 

focus on acquittals on the remaining charges—Rape and Home Invasion. That 
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decision benefitted Defendant, particularly resulting in acquittal for the serious 

charge of Rape in the Second Degree, which carries a substantial minimum 

mandatory sentence.

The sexual assault nurse examiner attested at trial that she found redness and 

abrasions on the neck of the victim. Counsel believed this testimony, in 

conjunction with the victim’s, would lead to a conviction. Counsel informed 

Clanton that he thought the victim testified well and that she was not impeached by

cross-examination. 

Counsel considered the corroborating evidence of the arriving officer and 

neighbors who heard the commotion. Counsel thought the State had proved the 

Strangulation and Kidnapping charge beyond a reasonable doubt. Counsel 

believes he was not prompted to consider lesser-included offenses.

The Court finds that Counsel’s decision not to request to not request lesserincluded offenses for the Strangulation charge was not objectively unreasonable. 

In Beck v. Alabama,

24 the United States Supreme Court discussed the policy 

underlying lesser-included offense instructions. “Providing the jury with the ‘third 

option’ of convicting on a lesser included offense ensures that the jury will accord 

the defendant the full benefit of the reasonable doubt standard.”25 Defendant relies 

24 447 U.S. 625 (1980).

25 Id. at 634.
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on Beck in arguing that without the option of a lesser-included offense, there may 

be a substantial risk that a jury will deviate from legal theory and not bestow the 

full benefit of reasonable doubt in cases where one element of a charge is in 

dispute, but think the Defendant is guilty of some crime. 

The State counters that the jury would not have convicted if they thought an 

element of the charge had not been met. The jury did acquit Defendant of two 

offenses, taking into consideration some of the inconsistencies by the victim and 

witnesses at trial. 

“A person commits the offense of strangulation if the person knowingly or 

intentionally impedes the breathing or circulation of the blood of another person by 

applying pressure on the throat or neck of the other person.”

26

 Strangulation 

requires that the victim’s breathing or blood circulation to be impeded.27 It is not 

necessary to prove intent to cut off breath completely. The indictment alleges:

“Herbert Clanton, on or about the 29th day of November, 2014, in the County of 

New Castle, State of Delaware, did knowingly or intentionally, impede the 

breathing or circulation of blood of Nayyirah Thomas by applying pressure on her 

throat or neck.” 

2611 Del. C. § 607.

27 11 Del. C. § 607.
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Defendant argues that the jury could find Defendant intended to apply 

pressure to the victim’s throat but did not intend to impede the victim’s breathing 

or circulation. Further, Defendant argues the State must prove separate intent for 

applying pressure and impeding breathing or circulation. The victim testified she 

was screaming. However, Counsel conceded that talking while being suffocated is 

plausible.

The Defendant failed to present any authority supporting Defendant’s 

argument. The facts support a reasonable inference that Defendant intended to 

impede the breathing of the victim by putting his hands around her neck. There is 

no other rational interpretation of the facts.

In Stevenson v. United States,

28 the Supreme Court of the United States 

found: 

A judge may be entirely satisfied, from the whole evidence in the case, 

that the person doing the killing was actuated by malice; that he was 

not in any such passion as to lower the grade of the crime from murder 

to manslaughter by reason of any absence of malice; and yet, if there 

be any evidence fairly tending to bear upon the issue of manslaughter, 

it is the province of the jury to determine from all the evidence what the 

condition of mind was, and to say whether the crime was murder or 

manslaughter.29

This Court finds no evidence fairly tending to bear upon the issue of a 

lesser-included offense. The jury took all evidence into consideration and 

28 162 U.S. 313 (1896).

29 Id. at 323.
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determined Defendant’s state of mind satisfied the charge of Strangulation. The 

jury’s findings were affirmed by the Delaware Supreme Court.

Kidnapping

The evidence supports a finding of Kidnapping in the Second Degree. 

Defendant forced the victim back into her apartment as she was leaving. The 

victim testified that Defendant held her against her will for several hours, 

slamming her against the wall and brandishing a knife. This testimony is 

corroborated by physical evidence of a hole in the wall, as well as bruises to her 

back. Neighbors heard the victim begging for her life. These pleas were 

sufficiently credible that one neighbor called the police. While still in the 

apartment, the victim was prevented from responding to an investigating police 

officer. Upon being released by Defendant, the victim immediately sought

assistance from a neighbor and called 911. 

The distinction between Kidnapping and the Unlawful Imprisonment lesserincluded offenses is the purpose of the restraint. Something more than simple 

restraint is required for Kidnapping, such as restraint for the purpose of inflicting 

physical injury or terrorizing the victim. The evidence of the victim’s physical 

injuries and terror were uncontradicted at trial.

A logical inference can be made between the victim’s injuries and 

Defendant’s intent. The logical inference—that his intent was to inflict physical 
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injury to the victim and to terrorize her—does not support a rational basis to 

instruct for lesser-included offenses. 

CONCLUSION

The facts presented to the jury at trial support no rational basis for 

instructing on lesser-included offenses. The evidence supports a finding of 

Strangulation. It can be reasonably inferred that defendant intended to impede the 

breathing or blood circulation of the victim by putting his hands around her neck. 

To convict on a lesser-included offense, the jury would have had to ignore the 

uncontradicted testimony and corroborating physical evidence. There is no other 

rational interpretation of the facts. The evidence also supports a finding of 

Kidnapping in the Second Degree. The victim’s physical injuries are unrefuted. A

logical inference can be made between Defendant’s intent to inflict physical injury

and to terrorize, which distinguish Kidnapping from any lesser-included offense.

The question is whether there is a rational basis supporting the jury’s 

conviction on the lesser-included offense(s). “In order to give an instruction on a 

lesser included offense, the trial court must be satisfied that ‘the evidence 

introduced in the case ... support[s] a jury verdict convicting [the] defendant of the 

lesser crime rather than the indicted crime.’”

30

 

30 White, 173 A.3d at 83.
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The evidence was all or nothing. Regarding the Strangulation charge, if the 

jury found beyond a reasonable doubt Defendant impeded the breathing or blood 

flow of the victim by putting his hands around her neck and did so intentionally, an 

instruction for a lesser-included Assault offense was not appropriate. Regarding 

the charge of Kidnapping in the Second Degree, if the jury found beyond a 

reasonable doubt Defendant intended to inflict physical injury upon the victim or 

to terrorize her, an instruction for lesser-included Unlawful Imprisonment offenses 

was not appropriate. 

THEREFORE, Defendant’s Motion for Postconviction Relief is hereby 

DENIED.

IT IS SO ORDERED.

/s/ Mary M. Johnston

The Honorable Mary M. Johnston