SUPERIOR COURT

OF THE

STATE OF DELAWARE

CRAIG A. KARSNITZ, SUSSEX COUNTY COURTHOUSE

RESIDENT JUDGE 1 THE CIRCLE, SUITE 2

 GEORGETOWN, DE 19947

TELEPHONE (302) 856-5263

October 6, 2022

Samuel Layton

SBI# 00247902

James T. Vaughn Correctional Center

1181 Paddock Road

Smyrna, DE 19977

Re: State of Delaware v. Samuel Layton, Cr. No. 0205011859

Fourth Motion for Postconviction Relief (R-4) and Request for Appointment 

of Postconviction Counsel

Dear Mr. Layton:

You were convicted by a jury of numerous sex offenses (rape, sexual abuse 

of minors, and unlawful sexual contact) twenty years ago, on December 11, 2002, 

and sentenced on January 31, 2003. You filed a direct appeal to the Delaware 

Supreme Court, which was denied on August 26, 2003. Subsequently you filed three 

(3) successive motions for postconviction relief with this Court under Delaware 

Superior Court Rule Criminal Rule 61 (“Rule 61”) on the following dates: July 17, 

2006, March 8, 2010, and September 18, 2012. All three motions were denied, and 

all three denials were affirmed by the Delaware Supreme Court. On September 12, 
2

2022, I received your fourth, pro se Motion for Postconviction Relief under Rule 61

(the “Motion”), together with a Memorandum of Law in Support of Rule 61 

Postconviction Relief (the “Memorandum”), which includes a request for the 

appointment of postconviction counsel to represent you ( the “PCC Request”). You 

state two grounds for relief: (1) new facts which demonstrate actual innocence in 

fact of the crimes for which you were convicted, and (2) ineffective assistance of 

counsel.

1 With respect to your claim of actual innocence in fact, you claim that you 

have new evidence of your innocence, and you cite as authority Purnell v. State,

2

a 

Delaware Supreme Court decision. 

As you acknowledge in the Memorandum, the threshold issue is whether the 

Motion is barred under the four procedural bars of Rule 61.3 If a procedural bar 

exists, as a general rule I will not address the merits of the postconviction claim.4 A 

Rule 61 Motion can be barred for time limitations, successive motions, failure to 

raise claims below, or former adjudication.5 

1 The second ground is wholly derivative of the first ground; i.e., you allege that your trial counsel 

was ineffective in obtaining and presenting this new evidence that would have exonerated you.

2

254 A.3d 1053 (Del. 2021).

3 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 

1990). 

4 Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super. 

April 28, 2009).

5 Super. Ct. Crim. R. 61(i).
3

First, a motion for postconviction relief exceeds time limitations if it is filed 

more than one year after the conviction becomes final.6 In this case, your conviction 

became final far more than a year ago. Therefore, consideration of the Motion would 

normally be barred by the one-year limitation. 

Second, second or subsequent motions for postconviction relief are not 

permitted unless certain conditions are satisfied.7 Since this is your fourth motion 

for postconviction relief, consideration of the Motion would normally be barred.

Third, grounds for relief “not asserted in the proceedings leading to the 

judgment of conviction” are barred unless certain conditions are satisfied.

8 You assert 

some new claims which were not raised at trial.

9

 Therefore, consideration of the 

Motion would normally be barred for “matters not asserted” below. 

Fourth, grounds for relief formerly adjudicated in the case, including 

“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction 

proceeding, or in a federal habeas corpus hearing” are barred.10 Your claim of 

ineffective assistance of counsel was formerly adjudicated in your prior Rule 61 

motions. Therefore, consideration of the Motion would normally be barred for 

“matters formerly adjudicated.” 

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

7 Super. Ct. Crim. R. 61(i)(2).

8 Super. Ct. Crim. R. 61(i)(3).

9 For example, you argue for the first time that the trial judge should have sua sponte issued a 

judgment of acquittal for insufficient evidence to sustain your conviction.

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

Under Rule 61, however, none of these four procedural bars applies to a claim 

that pleads “with particularity that new evidence exists that creates a strong 

inference that the movant is actually innocent in fact of the acts underlying the 

charges of which he was convicted.” [Emphasis supplied.]11 

Similarly, Rule 61 provides in pertinent part:

“A second or subsequent motion under this rule shall be summarily 

dismissed, unless the movant was convicted after a trial and the motion 

... pleads with particularity that new evidence exists that creates a 

strong inference that the movant is actually innocent in fact of the acts 

underlying the charges of which he was convicted.” [Emphasis 

supplied.]12

Generally, the law favors the finality of criminal judgments after the exhaustion of 

applicable post-trial motions, appeals and collateral proceedings. In this case, you 

have exhausted your remedies of a direct appeal to the Delaware Supreme Court and 

three previous motions for postconviction relief in this Court. There is an exception, 

however, on public policy grounds where there is particular new evidence that 

creates a strong inference that you are actually innocent in fact of the acts underlying 

the charges of which you were convicted. You should not be denied the right to 

prove your actual innocence based on new facts. That being said, the bar for creating 

a strong inference in my mind that you are actually innocent of the offenses of which 

you were convicted by a jury is quite high. A mere assertion of actual innocence 

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

12 Super. Ct. Crim. R. 61(d)(2)(i).
5

will not suffice. Innocence of the “acts underlying the charges” requires “more than 

innocence of intent; it requires new evidence that a person other than the petitioner 

committed the crime.”13

THE MOTION -- ACTUAL INNOCENCE IN FACT

You cite as authority for my granting your Motion Purnell v. State,

14 which 

addresses actual innocence in fact. In Purnell, the Supreme Court found that certain 

critical evidence was not obtained or presented by trial counsel at trial. The Supreme 

Court found that this evidence was “new” under the language of Rule 61 and 

included: ballistic evidence that favored the defendant; a recantation of a statement 

by a fellow inmate of the defendant that the defendant had confessed to the offense 

while they were both in jail; evidence inculpating two witnesses who testified against 

the defendant at trial (including a former client of trial counsel and the defendant’s 

fellow inmate who recanted); impeachment evidence from the parents of the codefendant who testified against the defendant at trial; and, impeachment evidence 

that was not raised on cross-examination of a key government witness due to trial 

counsel’s conflict of interest. The Court stated:

We observe that legitimate claims of actual innocence are exceedingly 

rare. Indeed, this is the first case where a defendant has satisfied the 

actual innocence exception to the procedural bars in Rule 61. Because 

they are so rare, the actual innocence exception, in our view, poses no 

13 State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 28, 2018), aff'd, 206 A.3d 825 (Del. 

2019) (Table).

14 254 A.3d 1053 (Del. 2021).
6

threat to our State's interest in finality. We believe the result in this case 

strikes the appropriate balance between our justice system's interests in 

“finality, comity and conservation of judicial resources, and the 

overriding individual interest in doing justice in the ‘extraordinary 

case.’”

15

The United States Supreme Court has also stated that findings of actual 

innocence in federal habeas corpus cases are reserved for the “rare” or 

“extraordinary” case.16

The Applicable Persuasive Burden

 In Purnell, the Delaware Supreme Court analyzed the applicable persuasive 

burden for a claim of actual innocence in fact and concluded that the defendant must 

satisfy a two-pronged test: he must establish that his evidence is both (1) new and 

(2) sufficiently persuasive.

Federal Habeas Corpus

Federal courts employ an analogous doctrine for “actual innocence” in 

analyzing habeas corpus claims. In those cases, Schlup v. Delo17 and its progeny, 

“actual innocence” constitutes an equitable exception to procedural barriers to 

a habeas petition set forth in federal statute that are analogous to Rule 61's

procedural bars.18 Schlup was concerned with cases where “a constitutional 

15 2021 WL 2470511, at *55. [Footnotes and Citations Omitted]

16 Schlup v. Delo, 513 U.S. 298, 321 (1995).

17 Id.

18 McQuiggin v. Perkins, 569 U.S. 383, 394–95 (2013).
7

violation has probably resulted in the conviction of one who is actually innocent.”19

Envisioning a test in which a petitioner is “required to make a stronger showing than 

that needed to establish prejudice,” the Schlup Court established this formulation:

“it is more likely than not that no reasonable juror would have convicted him in the 

light of the new evidence.”

20 Federal habeas petitions are “gateway innocence 

claims” because satisfying Schlup permits a federal court to review the petitioner's 

grounds for relief despite an unexcused procedural default, even though the Supreme 

Court has “strongly suggested” that proof of actual innocence is not itself a ground 

for relief.21 As the Schlup Court explained:

[I]f a petitioner ... presents evidence of innocence so strong that a court 

cannot have confidence in the outcome of the trial unless the court is 

also satisfied that the trial was free of nonharmless constitutional error, 

the petitioner should be allowed to pass through the gateway and argue 

the merits of his underlying claims.22

Delaware Rule 61

After the 2014 amendments to Rule 61, the Superior Court in Sykes v. State23

noted a dearth of Delaware authorities on what constitutes “new” evidence for 

purposes of the Delaware postconviction remedy, and so it relied on federal cases 

19 Schlup, 513 U.S. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

20 Id.

21 Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (citing Herrera v. Collins, 506 U.S. 390, 400

(1993); see also House v. Bell, 547 U.S. 518, 555 (2006).

22 Schlup, 513 U.S. at 316.

232017 WL 6205776 (Del. Super. Dec. 7, 2017), aff'd, 195 A.3d 780 (Del. 2018) (Table).
8

analyzing Schlup's actual innocence test for the “newness” prong.24 In subsequent 

cases, the Superior Court has relied on Schlup's formulation for the “persuasiveness” 

prong as well,25 or for both prongs of the actual innocence inquiry.26

In Purnell, both the State and the defendant argued for a three-prong test to 

govern both the newness and persuasiveness prongs of the actual innocence 

exception, requiring a showing: (1) that the evidence is such as will probably change 

the result if a new trial is granted; (2) that it has been discovered since the trial and 

could not have been discovered before by the exercise of due diligence; and (3) that 

it is not merely cumulative or impeaching. This three-part test is the standard for a 

new trial based on newly discovered evidence under Superior Court Criminal Rule 

33 established by the Delaware Supreme Court in Lloyd v. State.

27 Another 

Delaware Supreme Court case, Downes v. State,

28 held that the Lloyd standard for 

242017 WL 6205776, at *5 (“Nonetheless, the federal standard is helpful under these 

circumstances, as the Court has found little guidance for interpreting the precise meaning of new 

evidence in relation to a claim of actual innocence pursuant to Rule 61(d)(2)(i).”), aff'd, 195 A.3d 

780 (Del. 2018) (Table). 

25 State v. Abbatiello, 2020 WL 1847477, at *3 (Del. Super. Apr. 8, 2020), aff'd, 244 A.3d 682 

(Del. 2020) (Table); State v. Windsor, 2018 WL 3492764, at *2 (Del. Super. Jul. 19, 

2018), aff'd, 202 A.3d 1126 (Del. 2019) (Table), cert. denied, ____U.S. ____, 140 S. Ct. 201, 205 

L.Ed.2d 103 (2019).

26 State v. White, 2018 WL 6131897, at *4 (Del. Super. Nov. 21, 2018), aff'd, 208 A.3d 731 (Del. 

2019) (Table); State v. Flowers, 2018 WL 1169644, at *1 (Del. Super. Mar. 6, 2018), aff'd, 191 

A.3d 291 (Del.) (Table); White v. State, 208 A.3d 731, 2019 WL 1529654, at *1 (Del. Apr. 8, 

2019) (Table); Phlipot v. State, 169 A.3d 351, 2017 WL 3014434, at *1 (Del. July 14, 

2017) (Table).

27 534 A.2d 1262, 1267 (Del. 1987) (citing State v. Lynch, 128 A. 565, 568 (Del. Oyer & Term. 

1925)).

28

 771 A.2d 289 (Del 2001).
9

obtaining a new trial on the basis of new evidence showing actual innocence was an 

available form of postconviction relief under Rule 61.

29

Purnell adopts the Lloyd line of cases to analyze actual innocence claims 

based on new evidence under Rule 61, but telescopes the three Lloyd standards down 

to two. It states that, of the three elements of a Lloyd claim, the second relates to 

newness, while the first and third relate to persuasiveness. On both newness and 

persuasiveness, Purnell states that the Lloyd line of cases in Delaware substantially 

aligns with Schlup and its progeny at the federal level.

Newness

Regarding the newness prong, Lloyd holds that evidence is new where it was 

“discovered since trial, and the circumstances must be such as to indicate that it 

could not have been discovered before trial with due diligence.”30 Such evidence is 

“new” in federal courts applying Schlup as well.31

Persuasiveness

Regarding the persuasiveness prong, Lloyd and Schlup articulate the same 

standard although they use somewhat different language. As the Schlup Court

explained, the persuasiveness of an innocence claim requires the Court to make “a 

29

 771 A.2d at 292.

30 Lloyd, 534 A.2d at 1267.

31 Carter v. Pierce, 196 F.Supp.3d 447, 454–55 (D. Del. 2016); Houck v. Stickman, 625 F.3d 88, 

93–94 (3d Cir. 2010); Reeves v. Fayette SCI, 897 F.3d 154, 164 (3d Cir. 2018), cert. 

denied, ___U.S. ____, 139 S. Ct. 2713, 204 L.Ed.2d 1123 (2019).
10

probabilistic determination about what reasonable, properly instructed jurors would 

do.”32 It stressed that the Schlup inquiry is about what a reasonable trier of fact is

likely to do, not merely what it was empowered to do.33 Schlup requires a petitioner 

to show that the lack of the new evidence caused more than mere prejudice, meaning 

more than simply “a reasonable probability that, absent the errors, the factfinder 

would have had a reasonable doubt respecting guilt.”34

Lloyd's burden of persuasiveness is that the new evidence “would have 

probably changed the result if presented to the jury,”35 and in Downes and 

subsequent cases the burden of persuasiveness is that the new evidence “will 

probably change the result if a new trial is granted.”36 The Lloyd line of cases 

consistently requires a movant to show that the evidence will probably change the 

result -- meaning that the necessary showing is substantially more than the mere 

“reasonable probability” necessary to show prejudice. Thus, the Schlup and Lloyd

standards are substantively the same.

The third element of the Lloyd test, specifying that actual innocence cannot 

be satisfied by evidence which is “merely cumulative or impeaching,” is also similar 

to Schlup's test.37 This element embodies the principle that a body of new evidence 

32 513 U.S. at 329.

33 Id. at 330.

34 Schlup, 513 U.S. at 332–33 (O'Connor, J., concurring).

35 534 A.2d at 1267 (emphasis added).

36 771 A.2d at 291 (emphasis added); Gattis v. State, 955 A.2d 1276, 1291 (Del. 2008).

37 534 A.2d at 1267.
11

that goes only to the weight or credibility of that which was presented to the jury is 

almost never adequate to meet the demanding bar for being granted a new trial.38 

Generally, to be more than “merely” impeaching or cumulative, new evidence 

attacking the weight or credibility of a witness's trial evidence attacks the credibility 

of the witness in the case at bar specifically, rather than impeaching the witness's 

credibility in general.39 Where impeachment evidence is submitted along with other 

material evidence, both can operate together to justify relief.40 Federal courts 

applying Schlup consider the issue similarly: “Mere impeachment evidence is 

generally not sufficient to satisfy the actual innocence gateway standard.”41

Because the Delaware Supreme Court found the language of the Schlup

standard confusing, in Purnell it chose to rely on its own standard as set forth in

Lloyd and Downes. Nevertheless, the Supreme Court continues to find the reasoning 

of the federal cases applying Schlup useful and persuasive guidance in examining

Rule 61 actual innocence claims.

Satisfying the actual innocence test is, by design, a heavy burden, and such 

meritorious claims are exceedingly rare. Under both Lloyd and Schlup, a defendant 

38 Mason v. State, 2020 WL 7392348, at *1 n.2, 244 A.3d 681 (Del. Dec. 16, 2020); Taylor v. 

State, 180 A.3d 41, 2018 WL 655627, at *1 (Del. Jan. 31, 2018) (Table); State v. Brathwaite, 2017 

WL 5054263, at *2 (Del. Super. Oct. 23, 2017), aff'd, 186 A.3d 1240 (Del. 2018).

39 State v. Young, 1982 Del. Super. LEXIS 1062 (Del. Super. Oct. 4, 1982); Hicks v. State, 913 

A.2d 1149, 1195 (Del. 2008); Blankenship v. State, 447 A.2d 428, 433 (Del. 1982).

40 Fowler v. State, 194 A.3d 16, 17, 26–27 (Del. 2018).

41 Reeves, 897 F.3d at 161 (alterations omitted) (quoting Munchinski v. Wilson, 694 F.3d 308, 338 

(3d Cir. 2012)).
12

must present additional evidence that was not available at trial and would not have 

been despite the defendant's exercise of due diligence, thus making it “new.”42 That 

new evidence must speak with such persuasive force as to convince the reviewing 

court that, when considered in the context of all the relevant evidence by a properly 

instructed jury, it is such as will probably change the result if a new trial were

granted.

Although findings of actual innocence are reserved for the “rare” or 

“extraordinary” case, the Delaware Supreme Court, for the first and only time, found 

Purnell to be such a case. However, in my view, your case is not such a rare or 

extraordinary case. The Motion presents no credible “new” evidence under the 

“newness” prong of Purnell. Nor does it satisfy the “persuasiveness” prong of 

Purnell.

43

The ”new” evidence you proffer is that the DNA evidence offered at trial with 

respect to the numerous sexual offenses of which the jury convicted you was not 

held in a proper chain of custody and not properly tested for DNA before being 

turned over to the State for prosecution of the case. You further argue that, since the 

DNA evidence recovered was unreliable, it should have been subjected to post42 See Schlup, 513 U.S. at 324 (“To be credible, such a claim [of actual innocence] requires 

petitioner to support his allegations of constitutional error with new reliable evidence -- whether it 

be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence 

-- that was not presented at trial. Because such evidence is obviously unavailable in the vast 

majority of cases, claims of actual innocence are rarely successful.”).

43 See Evans v. State, __ A.3d __, 2022 WL 2234980 (Del. June 15, 2022).
13

conviction DNA testing rigorous enough to corroborate the State’s case and your 

conviction. You base your allegations on unsubstantiated comments allegedly made 

by Joseph Hurley, Esquire, a Delaware attorney, to your trial counsel stating that the 

State “had routinely suppressed evidence in trial matters44 ... and this alone was 

prosecutorial misconduct of the highest order.”45 You also argue that there should 

have been forensic tests with respect to the oral sex charges. In my view, none of 

these allegations relate to “new” evidence. You raise no new facts discovered since 

trial, and the circumstances do not indicate that this could not have been discovered 

before trial with due diligence. Your arguments all relate to evidence that existed at 

the time of trial, and arguments that could have been made at trial.

Even if your evidence were “new,” you have not shown a reasonable 

probability that the jury would have had a reasonable doubt respecting your guilt. 

The other evidence of your guilt is significant. That new evidence must speak with 

such persuasive force as to convince me that, when considered in the context of all 

the relevant evidence by a properly instructed jury, it is such as will probably change 

the result if a new trial were granted. I am not convinced.

The gravamen of the second count of your Motion is that your lawyer was 

ineffective for failing to raise these matters earlier in the proceedings. Thus, a 

44 In violation of Brady v. Maryland, 373 U.S. 83 (1963).

45 Memorandum, pg.10.
14

fortiori, if the arguments you make in your first count fail, so too does your second 

count.

REQUEST FOR APPOINTMENT OF POSTCONVICTION 

COUNSEL

I have also considered your PCC Request, and I deny it for the following 

reasons.

Rule 61(e)(5) provides in pertinent part:

For an indigent movant's second or subsequent postconviction motion, 

the judge may appoint counsel for an indigent movant only if the judge 

determines that the second or subsequent motion satisfies the pleading 

requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this 

rule. 

As discussed earlier in this letter, Rule 61(d)(2)(i) provides in pertinent part:

A second or subsequent motion under this rule shall be summarily 

dismissed, unless the movant was convicted after a trial and the motion

either: (i) pleads with particularity that new evidence exists that creates 

a strong inference that the movant is actually innocent in fact of the 

acts underlying the charges of which he was convicted ... [Emphasis 

supplied]

Since this is your fourth postconviction motion, ordinarily your PCC Request would 

be summarily dismissed, unless you plead with particularity actual innocence in fact. 

Since, as discussed above, I have rejected your claim of actual innocence in fact, I 

also deny your request for the appointment of postconviction counsel.

As discussed above, you have not demonstrated with particularity that new 

evidence exists that creates a strong inference that you are actually innocent in fact 
15

of the acts underlying the charges of which you were convicted. Thus, the four 

procedural bars to relief under Rule 61 apply, and you have failed to overcome those 

procedural bars. Therefore, your Rule 61 Motion is summarily DENIED. Your 

request for the appointment of postconviction counsel is also DENIED.

IT IS SO ORDERED.

Very truly yours,

/s/ Craig A. Karsnitz

cc: Prothonotary’s Office

Department of Justice