IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANDRE PETERS,

Defendant BelowAppellant,

v.

STATE OF DELAWARE,

Plaintiff BelowAppellee.

§

§ No. 468, 2014

§

§

§

§ Court Below—Superior Court

§ of the State of Delaware,

§ in and for New Castle County

§ Cr. ID 1007020835

§ 

§

Submitted: January 9, 2015

 Decided: March 20, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

O R D E R

This 20th day of March 2015, after careful consideration of the parties’ 

briefs and the record below, it appears to the Court that:

(1) The appellant, Andre Peters, filed this appeal from the Superior 

Court’s denial of his first motion for postconviction relief under Superior 

Court Criminal Rule 61. We conclude that Peters’ claims are untimely

under Rule 61(i)(1) and that his claims of ineffective assistance of counsel 

do not establish a miscarriage of justice under Rule 61(i)(5). Accordingly, 

we affirm the Superior Court’s judgment. 

(2) The record reflects that Peters was arrested on August 6, 2010 

and indicted on three counts of Robbery in the First Degree, four counts of 
2

Possession of a Firearm During the Commission of a Felony, one count of 

Burglary in the First Degree, and one count of Conspiracy in the Second 

Degree. The charges against Peters stemmed from a home invasion robbery 

in the late evening hours of July 21, 2010. Three men forcibly entered a 

dwelling in which three adults and three children resided. One of the 

intruders threatened the occupants with a gun. The intruders stole money, 

cell phones, and prescription drugs. One of the intruders, Christopher 

Crawford, was an acquaintance of the one of the victims. Crawford was 

arrested two days later. During an interview with police, Crawford admitted 

to committing the home invasion with another man named “Dre.” He told 

police that after the home invasion, he and Dre rented a room at the EconoLodge on Route 13. Police went to the motel and found that Peters had 

rented a room there at 12:50 AM on July 22, 2010. At trial, all three adult 

victims identified Peters as the intruder who threatened them with a gun.

(3) The jury convicted Peters of all charges. The Superior Court 

sentenced him to a total period of thirty years at Level V incarceration to be 

suspended after serving twenty-three years in prison for a period of 

probation. We affirmed Peters’ convictions and sentence on direct appeal.1 

We issued the mandate following Peters’ direct appeal on January 4, 2012. 

 

1

Peters v. State, 2011 WL 6201315 (Del. Dec. 13, 2011).
3

(4) On January 7, 2013, Peters filed his first motion for 

postconviction relief, raising several claims of ineffective assistance of 

counsel. In June 2013, Peters requested the appointment of counsel, which 

the Superior Court Commissioner granted. In January 2014, Peters’ 

appointed counsel filed a motion to withdraw under Superior Court Criminal 

Rule 61(e)(2), asserting that there were no arguable issues he could raise on 

Peters’ behalf. After considering postconviction counsel’s motion to 

withdraw, Peters’ issues, his trial counsel’s affidavit, and the State’s 

response thereto, the Commissioner issued a report recommending that 

Peters’ motion for postconviction relief be denied and that counsel’s motion 

to withdraw be granted.2 The Superior Court accepted the Commissioner’s 

report and recommendation, granted counsel’s motion to withdraw and 

denied Peters’ motion for postconviction relief. This appeal followed.

(5) When reviewing the Superior Court’s denial of postconviction 

relief, this Court first must consider the procedural requirements of Rule 61 

before addressing any substantive issues.3 Rule 61(i)(1) bars any claim for 

postconviction relief that is not filed within one year of a final judgment of 

conviction. A conviction becomes final when this Court issues the mandate 

 

2

State v. Peters, 2014 WL 1156876 (Del. Super. Mar. 18, 2014).

3

Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4

following a defendant’s direct appeal.4 In this case, the Court issued the 

mandate following Peters’ direct appeal on January 4, 2012. Peters did not 

file his motion for postconviction relief until January 7, 2013, several days 

after the expiration of the one-year limitations period. Accordingly, in order 

to overcome the procedural bar of Rule 61(i)(1), Peters must establish a 

colorable claim that there was a miscarriage of justice because of a 

constitutional violation that undermined the fundamental legality, reliability, 

integrity, or fairness of the proceedings leading to his conviction.5 

(6) In his opening brief, Peters raises several constitutional claims 

asserting the ineffectiveness of his appointed counsel. Thus, even though 

the Superior Court did not find Peters’ motion to be untimely under Rule 

61(i)(1), there is no consequence to Peters “because the standard for 

analyzing claims of ineffective assistance of counsel in a motion for 

[postconviction] relief is the same” whether the motion meets the procedural 

requirements of the rule or not.6The Strickland standard applies to 

ineffective assistance of counsel claims regardless of whether the claim is 

 

4

Staats v. State, 961 A.2d 514, 517 (Del. 2008). We held in Staats that, “If the defendant 

filed a direct appeal of his convictions, the time period under Rule 61(i)(1) ‘begins to run 

when the direct appeal process is complete, which for this Court, is the date of the 

issuance of the mandate under Supreme Court Rule 19.’ ” Id. (quoting Jackson v. State,

654 A.2d 829, 832–33 (Del.1995)).

5

See Del. Super. Ct. Crim. R. 61(i)(5) (2013). This provision subsequently was amended 

in June 2014.

6

Staats v. State, 961 A.2d at 518.
5

timely under Rule 61(i)(1) or is evaluated under Rule 61(i)(5) for a colorable 

claim of a miscarriage of justice.7 

(7) Under Strickland, to prevail on a claim of ineffective assistance 

of counsel, a defendant must establish that (i) his trial counsel’s 

representation fell below an objective standard of reasonableness; and (ii) 

but for counsel’s unprofessional errors, the outcome of the trial would have 

been different.8 The defendant must set forth and substantiate concrete 

allegations of actual prejudice.9 Moreover, there is a “strong presumption” 

that counsel’s representation was professionally reasonable.10

(8) Peters’ first contention is that his trial counsel was ineffective 

for failing to investigate a potential witness, Gabrielle Vega, who would 

have testified that he was known to carry a BB gun and thus could have 

raised reasonable doubt as to the four firearm charges.11 This contention is 

contradicted by trial counsel’s affidavit. Both trial counsel and 

postconviction counsel indicated that they or their investigators spoke with 

 

7

Id.

8

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

9

Younger v. State, 580 A.2d 552, 556 (Del. 1990).

10 Strickland v. Washington, 466 U.S. at 689.

11 The Superior Court Commissioner noted that, while a BB gun would not constitute a 

firearm, a hybrid gun that could be used as both a BB gun and a compressed air pellet 

gun would constitute a firearm. Thus, even assuming that Peters could have raised a 

reasonable doubt that the gun used during the home invasion was a BB gun, it would not 

end the analysis of whether the BB gun constituted a firearm.
6

Vega and both independently concluded that Vega would not assist Peters’ 

defense. Trial counsel recalled that Vega was not cooperative and that she 

would have made a poor witness because she knew about Peters’ prior 

felony criminal record. Trial counsel stated in his affidavit that, even if 

Vega could have testified that Peters was known to carry a BB gun, such 

testimony would not have been helpful because it would have been taken as 

an admission from Peters that he had committed the robbery and burglary

offenses. 

(9) Moreover, the State’s evidence against Peters was 

overwhelming.12 One victim testified that she felt the metal of the gun when 

Peters pressed it against her head. Another victim testified that he was 

familiar with guns and that he was able to read “Millenium 9MM” on the 

gun that Peters held to his head. Under the circumstances, Peters can 

establish neither cause nor prejudice under Strickland.

(10) Peters next contends that his trial counsel was ineffective for

abandoning him during plea negotiations with the State and that counsel’s 

abandonment prejudiced his ability to put on a defense challenging the four 

firearm offenses. In response to this allegation, defense counsel averred in 

 

12 In fact, the State decided not to call Crawford, Peters’ codefendant, during its case-inchief, even though Crawford had given three different sworn statements identifying 

Peters as the gunman. Instead, the State intended to reserve Crawford’s testimony for 

rebuttal, in the event that Peters testified.
7

his affidavit that, prior to trial, Peters had twice rejected the State’s plea 

offer with a recommended sentence of six years because he believed that the 

victims would not appear and testify at trial. On the morning of trial,

February 1, 2011, the victims did appear. In response, defense counsel 

negotiated with the State’s attorney and was able to obtain a continuance of 

the trial date until March 15, 2011. The State then renewed its prior plea 

offer with a six-year recommended sentence, expressly contingent upon 

Peters giving a truthful proffer identifying the third suspect and agreeing to 

testify against that person at trial.

(11) Counsel stated that he met with Peters and explained the State’s 

offer in detail. Counsel told Peters that the decision to speak with the State 

was his alone and that any information he provided to the State could not be 

used against him during the State’s case-in-chief but could be used against 

him if he testified in his own defense. Counsel explained to Peters that he 

had a court conflict that might require him to leave the scheduled proffer 

early. Peters did not object. Defense counsel was present during the first 

fifteen to twenty minutes of Peters’ interview. Counsel stated in his affidavit 

that it was clear to him before he left the room that the State’s attorney was 

not satisfied with Peters’ proffer and did not believe Peters was being 

truthful. Peters did not identify the third participant. The State, therefore, 
8

withdrew the six-year plea offer and instead offered Peters a twelve-year 

recommended sentence, which Peters rejected.

(12) Even if we assume without deciding that counsel’s departure 

during the course of the interview was in error, Peters still cannot establish 

any prejudice under the second prong of Strickland. Peters does not allege 

that his proffer would have been different if counsel had been present during 

the course of the entire interview. The State made the determination that 

Peters’ proffered statement did not satisfy the conditions of the plea offer 

and thus withdrew the offer. Peters does assert that the State would have 

accepted his proffer if counsel had been present. Moreover, because Peters 

chose not to testify at trial, none of the statements he made during the proffer 

were introduced against him at trial. Thus, we find no prejudice.

(13) Peters next claims that his trial counsel was ineffective because 

he failed to request a mistrial. The record reflects that, after closing 

arguments, the bailiff alerted the trial judge that one of the jurors reported, in 

the presence of the other jurors, that she had heard one of the victims 

mumbling in the back of the courtroom. The trial judge interviewed the 

juror on the record. The juror reported that the victim seemed unhappy but 

that she could not distinguish anything the victim was saying and that the 

victim’s actions would not impact her ability to render a fair verdict in the 
9

case. At counsel’s request and in counsel’s presence, the trial judge 

interviewed eight additional jurors who reported hearing the victim 

mumbling, either in the courtroom or during a lunch break. None of the 

jurors had heard the victim make any specific comment and all of the jurors 

reported that the victim’s mumbling would not affect their ability to render 

an impartial verdict. Based on these interviews, defense counsel stated on 

the record that he was satisfied that no motion for a mistrial was warranted.

(14) Peters now contends that trial counsel was ineffective for 

failing to request that all of the jurors be questioned and for failing to 

request a mistrial because the trial judge did not determine that those jurors 

who were not interviewed would be able to decide the case fairly. We agree, 

however, with the Superior Court Commissioner’s conclusion that it is 

unlikely “that the jurors who did not see or hear anything could have been 

unduly influenced by the jurors who heard mumbling [that] was not 

discernible.”13 Under the circumstances, Peters cannot establish any actual 

prejudice from the Superior Court’s failure to interview all of the witnesses 

or from his counsel’s failure to request a mistrial.

(15) Peters’ final argument is that the attorney who was appointed to 

represent him in the postconviction proceedings was ineffective for filing a 

 

13 State v. Peters, 2014 WL 1156876, *7 (Del. Super. Mar. 18, 2014).
10

motion to withdraw.14 Under then-existing Superior Court Criminal Rule 

61(e)(2), appointed counsel was obligated to file a motion to withdraw if 

counsel found Peters’ Rule 61 claims “to be so lacking in merit that counsel 

[could not] ethically advocate” on his behalf.15 Given our conclusion that 

Peters’ postconviction claims have no merit under Strickland, we find no 

error in counsel’s decision to file a motion to withdraw, nor do we find any 

abuse of the Superior Court’s discretion in granting counsel’s motion.

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

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura

Justice

 

14 In the motion he filed below, Peters also argued that his appellate counsel was 

ineffective on direct appeal for filing a motion to withdraw and no-merit brief under 

Supreme Court Rule 26(c). He did not raise this claim in his opening brief on appeal. 

Accordingly, that claim is waived. Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). 

15 Del. Super. Ct. Crim. R. 61(e)(2) (2013). This provision was renumbered as Rule 

61(e)(6), effective June 4, 2014.