### IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, ) ) Plaintiff, ) ) v. ) ID No. 0612016202 ) WAYNE JACKSON, ) ) Defendant. )

MEMORANDUM OPINION (Corrected)
Defendant was convicted after a jury trial of three burglaries and associated lesser offenses. Although he was found at the time of his arrest with the proceeds of one of the burglaries, the primary, if not exclusive, evidence linking him to the other two was his f ingerprints found at the scene.
He now brings this Rule 61 motion arguing that both his trial counsel and his appellate counsel were ineffective. Principally he contends that his trial counsel was ineffective in the way he dealt with fingerprint evidence and his appellate counsel’s poor performance deprived him of a reasonable likelihood he would prevail on a severance and on a seizure issue. Despite the thorough briefing of his current attorney, t he court disagrees with his contentions.2 I. Procedural history

In February 2007 , the State charged defendant with nine counts of burglary in the second degree and 22 counts of associated crimes stemming from five incidents occurring in Wilmington

. Many of these charges were dropped, and the prosecution eventually proceeded on three counts of burglary

- 2 and three counts of theft. The three burglaries occurred at separate
locations on different days . At the time he was arrested Jackson was found
wit h the proceeds of one of the burglaries. His trial counsel , a Public Defender, filed a motion to sever the two charges for that burglary from the remaining charges. This court considered that motion on the papers and denied it. Trial
counsel also moved t o sup press evidence seized at the ti me Jackson was
arrested. That motion was also denied. J ackson went to trial in October 2007 , and was convicted by a jury on all counts. Because he was an habitual offender Jackson was sentenced to three minimum mandat ory terms of eight years for each of the three burglary

- 2 convictions. He received probation for
the associated theft convictions. Jackson appealed his conviction to the Delaware Supreme Court , which affirmed.
Part of this matter focuses on Jackson’s dir ect appeal. As is customary,
t he Office of the Public Defender assigned a different attorney from its appeals unit to prosecute Jackson’s appeal. That attorney, whose conduct is not challenged by Jackson, filed a brief in the Supreme Court in accordance with Rule 26(c). The essence of that brief was that counsel could find no arguable3 issues to assert on appeal. The Supreme Court thought there might indeed be arguable issues to present, so it appointed new appellate counsel for Jackson.
This counsel wi ll be referred to as “appointed appellate counsel” in this opinion. Appointed appellate counsel filed an opening brief, and after the State filed its answering brief the Supreme Court scheduled the appeal to be heard
on the briefs. The Court later affirmed Jackson’s conviction in a 20 page opinion. After his conviction was affirmed Jackson filed a pro se Rule 61 motion. The court appointed his current counsel to represent him in the Rule 61 proceedings. During the pendency of the Rule 61 this pro ceeding was reassigned to the undersigned judge because of the retirement of the trial judge. Thereafter t he court expanded the record to include, among other things, affidavits from trial and appellate counsel. Jackson’s current counsel
and the State then filed briefs, followed by some additional briefing requested by the court on the effect of Criminal Rule 61(i)(4) Jackson’s claim relating to
the prejudice prong of the test for ineffective assistance of counsel

. This is the court’s opinion on Jackson’s Rule 61 motion.

II. Facts The facts are set forth in the Supreme Court’s opinion affirming Jackson’s conviction. Rather than attempting to re

- invent the wheel, the court
will simply repeat them here:4 On September 25, 2006, Thomas Dykes discovered tha t his home at 2010 North Broom Street in Wilmington had been burglarized and cordless telephone, laptop computer, digital camera, DVD player, gold bracelet, leather bag, and jar of change were missing. Dykes called the police and Officer Gerald Nagowski of the Wilmington Police Department went to Dykes' home. The screen of a window in the back of the house had been cut near the latches, making that window the burglar's likely point of entry. Nagowski dusted the area for fingerprints and recovered two latent prints. On October 10, 2006, Timothy Lewis discovered that his home at 2207 Van Buren Place in Wilmington had been burglarized. A cellular telephone, digital camera and one dollar were missing. Lewis called the police and Nagowski went to Lewis' home. Na gowski identified two adjacent windows in the back of the house where the screens had been cut as the likely point of entry. He dusted the area and recovered one latent fingerprint. On December 20, 2006, Officer Joseph Sammons, supervisor of the Wilmingto n Police Department's Evidence Detection and Fingerprint Identification Unit, analyzed the latent prints recovered from the Broom Street and Van Buren Place homes. After comparing them to a known print in the department's records, Sammons determined that t he latent prints from the Broom Street home matched Jackson's known prints, and that the latent print from the Van Buren Place home compared positively with Jackson's known print. On January 20, 2007, New Castle County Police Officer Alan Herring made a tr affic stop on Polk Drive in Edgemoor around 8 p.m. The driver of the car fled on foot and Herring chased him, but could not catch him. Herring radioed for assistance and broadcast a description of the driver as an African

– American male, approximately six f eet tall, thin build, medium dark to dark complexion, with facial hair, and wearing a golden

- brown “puffy” coat. A K

– 9 unit responded to the scene and the police dog tracked the suspect from the abandoned car, south through Edgemoor, and in the direction o f Merchants Square Shopping Center on Governor Printz Boulevard, north of the city of5 Wilmington. Several police officers set up a cordon in the area where the driver was likely to flee. Officer Daniel Guzevich stationed himself in the Merchants Square Sho pping Center. Around 8:30 p.m., Guzevich saw a man riding a bicycle enter the shopping center's nearly empty parking lot. The man on the bike resembled the suspect described by Herring. Guzevich described the bicyclist as a tall, thin, African

– American ma n, with facial hair and a dark complexion. The bicyclist was not wearing a “puffy” coat, but Guzevich discounted this difference, because the suspect had fled half an hour earlier and had time to change his clothes. Guzevich decided to question the man and drove toward him. When the man noticed the police car approaching, he fled immediately. Guzevich turned on the police car's emergency lights and followed him. The man crashed his bicycle into the curb, dropped the bag he was carrying and fled on foot. Gu zevich got out of the police car and chased the man on foot, eventually catching up, and physically subduing him and arresting him. The man Guzevich arrested was later determined to be Wayne Jackson . The man who had abandoned his vehicle on Polk Drive was later determined to be Carron Moon. The abandoned vehicle was registered to Terrance Tonic. During the search of Jackson incident to his arrest, Guzevich found in Jackson's pockets an iPod, a Palm Pilot, a photo of a young girl, a University of Delaware class ring, and twenty dollars. In the bag Jackson had dropped, Guzevich found a laptop computer, another iPod, various cords for the iPod and computer, and a shattered glass coin bank with loose change. When Guzevich turned on the computer, it displayed t he names of various members of the Callaghan family. The name “Eugene F. Callaghan” was also inscribed on the inside of the University of Delaware class ring. The police determined that a Eugene F. Callaghan lived at 191 Brandywine Boulevard, about half a mile from where Jackson was arrested. The police went to the Callaghan residence.6 The Callaghans were not home when the police arrived, but a neighbor called them and they returned home soon after. Eugene Callaghan identified the various items recovered f rom Jackson as the Callaghan family's computer, Eugene Callaghan's iPod, his daughter's iPod, the family's coin bank, and Eugene Callaghan's class ring. Callaghan also identified the bicycle Jackson was riding as belonging to Callaghan's son and the photo taken from Jackson's pocket as a picture of Callaghan's daughter. The police later compared Jackson's fingerprints with the fingerprints found at several other homes that had been burglarized in September, October and December 2006. Jackson's prints match ed those taken from four other homes that had been burglarized in North Wilmington.
Analysis Any Rule 61 analysis must begin with consideration of procedural bars.
Unlike most such motions filed in this court, the instant Rule 61 motion is not time barred. However, part of Jackson’s motion runs afoul of the prohibition against reconsidering matters which have already been decided.
A. The procedural bars Before reaching the merits of a Rule 61 motion the court is obligated to
determine if any or all of the claims are procedurally barred. 1 Rule 61 (i)(1) 2 bars consideration of a motion filed more than one year after the judgment of conviction is final, which in this case means more than one year after

1 Younger v. State , 580 A.2d 552 (Del. 1990 )(“ This Court applies the rules governing procedural requirements before giving consideration to the merits of the underlying claim for postconviction relief .”) Deputy v. Stat e , 1993 WL 332667 ( Del.Super. )(“ It is well settled the Court must first determine whether Deputy has met the procedural requirements of Superior Ct.Crim.Rule 61(i) before it may consider the merits of his postconviction relief claim. ” )

. 2 This court amended the procedural bars in Rule 61 aft er Jackson filed his petition. The court will apply the bars in effect at the time he filed his motion. Neither side in this matter has argued the court should apply the new rule.7 Jackson’s conviction was affirmed on appe al. Jackson’s conviction was affirmed by the Supreme Court on July 13, 2009 3 and he filed a pro se Rule 61
motion less than one year later, on May 6, 2010 . After Jackson filed his pro se motion t he court appointed counsel for him. Appointed counsel filed a new brief which argued some of the points raised by Jackson in his pro se filing and
also asserted additional arguments. The court deems counsel’s brief to relate back to the original pro se filing, an d therefore finds that all the arguments raised in that brief are timely. 4 Another procedural bar , however, is applicable to some of Jackson’s arguments. Criminal Rule 61 (i)(4) bars consideration of previously decided
issues: Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a post conviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in t he interest of justice. Jackson argues that Rule 61(i)(5) 5

— which allows colorable constitutional claims to be considered if doing so would avoid a miscarriage of justice

—

3 Jackson v. State, 990 A.2d 1281 (Del. 2009). 4 Lest this be misunderstood, the court is not saying that subsequent Rule 61 motions relate back to the filing of the first motion. The court is also not saying that a defendant may file a “placeholder” motion within a year of his or her conviction and then expect that any later arguments will be deemed to be timely. The circumstances of this case are unusual in that the defendant made a genuine attempt to timely raise his post conviction claims and counsel was appointed for him within a year of his con viction becoming final. The fact that the court scheduled the filing of his brief to occur more than a year after the conviction became final is not attributable to Defendant. See Bey v. State 402 A.2d 362 , 3 ( Del., 1979 )(“ Because defendant did all that was required of him in seeking review; and because his default has been occasioned by court related personnel; his petition for review will not be denied .”). 5 That part of Rule 61 provides: The bars to relief in paragraphs (1), (2), and (3) of this sub division shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that8 permits this court to hear his barred arguments. But Rule 61(i)(5), on its face appl ies only to the procedural bars found in Rule 61(i)(1) through (3); the procedural bar of Rule 61 (i)(4) was intentionally excluded from the miscarriage of justice exception. Thus if Jackson is to find any relief from the procedural
bar it must be from t he “interest of justice” exception imbedded within Rule 61(i)(4) itself. Last year the Supreme Court summarized the case law defining “interest of justice” as that term is used in Rule 61(i)(4). In Pringle v. State the Court
wrote: We have stated that “ [i]n order to invoke the ‘interest of justice’ provision ... a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish [the defendant].” In Weedon v. State, we stated that the 61(i)(4) bar does not apply when the previous ruling was “clearly in error” or when “there has been an important change in circumstances, in particular, the factual basis for the issue previously posed.” We will not reconsider an issue simply because a defendant has “refined or restated” a claim

. 6

Jackson’s claims do not fit within this definition. 7 Jackson argues with considerable fervor that Rule 61 (i)(4) is equivalent to the law of the case doctrine and that in appropriate cases equ itable considerations justify ignoring

undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.

6 2013 WL 1087633 *3 (Del. Supr.)(footnotes omitted)

. 7 Jackson argues there has been a subsequent factual development which warrants reconsideration. He asserts that his assigned appellate attorney was suspended from the practice of law after his direct appeal was affirmed. That suspension was the result of assigned appellate counsel’s conduct in other matters. But. the Sixth Amendment issue here is not the performance of assigned appellate counse l in other matters; the issue here is his performance in this matter. His suspension is therefore not relevant to the issues presented here, and the court does not consider it to be a pertinent new development.9 that doctrine. The flaw in this argument is that although Rule 61(i)(4) may be similar to, or even the equivalent of, the law of the case doctrine, it is not the same thing

. Rule 61 is a creature of the court’s rul e making powers. Its ancestor, Rule 35, was crafted by this court (and approved by the Supreme Court) under the leadership of Judge Bernard Balick in an effort both to limit the large number of meritless motions for post conviction relief and to preserve Delaware Court’s autonomy of Delaware’s courts in criminal matters. 8 The

narrow exception in Rule 61(i)(4) was a deliberate choice, as was the decision to exempt Rule 61(i)(4) from the miscarriage of justice exception in Rule 61(i)(5). Reading an equity exception into Rule 61(i)(4) would make virtually any previous ruling subject to subsequent review under the guise of “equity”

— a result wholly inconsistent with the purpose of Rule61(i)(4). Consequently, although there are similarities between Rule 61(i)( 4) and the law of the case doctrine, the court declines to read an equity exception into the former. The court will discuss the specific application of Rule 61(i)(4) in conjunction with Jackson’s claim that his appointed appellate counsel was ineffective.

B. The standard for showing ineffective assistance of counsel Ever since the United States Supreme Court’s decision in Strickland v. Washington 9 t he standard for showing ine ffective assistance of counsel has

8 State v. Wright, 2012 WL 14000932 (Del . Super.) rev’d on other grounds , 67 A.3d 319 (Del. 2013). 9 466 U.S. 668 (1984)

.10 been a familiar one. First Jackson must show that his “counsel's representation fell below an objective standard of reasonableness.” 10 This

“ requires the use of an objective stand ard of reasonableness based on prevailing professional norms when evaluating an attorney's conduct. Importantly , [the] task is to ‘ reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective
at the time. ” 11 Second, Jackson must show that, but for the errors of his counsel, there is a reasonable likelihoo d that the result would have been different. According to the Delaware Supreme Court, Even if the defendant successfully demonstrates that his counsel's conduct fell below an objective standard of reasonableness, the inquiry does not end. We will not set aside the judgment in a criminal proceeding if the error had no effect on the outcome. Counsel's error must have been “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” In order to show prejudice, the defendant must establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” A reasonable probability of a different result requires a “probability sufficient to undermine confi dence in the outcome.” Although this standard is not mathematically precise and does not necessarily require a showing of “more likely than not,” Strickland requires more than a showing merely that the conduct “could have or might have or it is possible that [it would have]” led to a different result

. The likelihood of a different result must be substantial, not just conceivable. 12

10 Id. at 687. 11 Neal v. State 80 A.3d 935 , 942 ( Del

. 2013 )(internal quotation marks omitted). 12 Id. (footnotes omitted).11 In some instances Jackson is unable to show his counsel’s performance fell below the accepted norm. In others he cannot show that there is a reasonable
likelihood that counsel’s performance affected the outcome of the case.

C. The performance of Jackson’s trial counsel Jackson makes five arguments, three of which relate to fingerprint analysis, in support of his contention that his trial counsel was ineffective. They are discussed separately.

1 . The failure to challenge fingerprint testimony Jackson argues that his trial counsel was ineffective because he did not seek to exclude expert finger print analysis. According to Jackson, the science behind finger print analysis is so suspect that an expert offering such analysis
would not survive a D aubert 13 motion. But in Delaware , “ fingerprint analysis has been tested and proven to be a reliable science over decades for judicial
purposes ,” 14 and “[t] he overwhelming consensus from federal jurisdictions is that, even when considered i n terms of specific Daubert factors, the reliab ility of the technique has been tested in the adversarial system for over a century and has been routinely subject to peer review, and that absent novel challenges, [expert testimony regarding] fingerprint evidence is sufficiently reliable to satisfy Rule 702 and Daubert

. ” 15 D efense counsel candidly admitted at oral argument that she is un aware of any court which has precluded finger

13 Daubert v. Merrill Dow Pharmaceuticals, Inc , 509 U.S. 579 (1993)

. 14 State v. Cole , 2002 WL 1397452 ( Del.Super. ). 15 State v. Favela , 323 P.3d 716 (Ariz. App. 2014)(internal quotation marks omitted).

.12 print evidence because the science behind it is uncertain. 16 Neither is the
court

. As a matter of law the court cannot find trial counsel was ineffective because he failed to advance an argument that has never met with success in an American court. “[T] he Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim .” 17 Consequently the performance of counsel does not fall below the level expected of a reasonably competent attorney merely because counsel does not raise an argument which has never previously been accepted. 18

2 . The failure to cross
- examine about specific fingerprints Jackson argues that his trial counsel was ineffective because he failed to

cross
- examine the State’s expert about unidentified fingerprints found on a change jar located in one of the burglarized homes. He also contends that trial
counsel s hould have cross examined the State’s expert about whether the age
of the Jackson fingerprint exemplar affects the validity of the comparison. The
court finds that the absence of such cross

- examination does not amount to the ineffective assistance of couns el. Trial counsel conducted extensive cross

-

16 When asked at oral argument what Jackson might have achieved if the court had conducted a Daubert hearing, Jackson’s counsel responded that the court “might have given” a limiting instruction. This falls far short of showing the requisite prejudice. 17 Engle v. Isaac, 456 U.S. 107, 131

– 34 (1982)

. 18 United States v. Fusaro 708 F.2d 17, 26 (1 st Cir. 1983)(“ The attorney

- client privilege violation was at best a novel claim and failure to spot it does not render counsel's assistance below the range of competence of attorneys .”)

.13 examination on fingerprints, and it is well within the reasonable exercise of professional judgment to forego a line of cross examination specific to the unidentified prints on one item. Jackson cites no legal authority or learned treatise to support the notion that the age of the Jackson fingerprint exemplar might affect the validity o f the comparison. Insofar as the court is aware, an individual’s fingerprints do not change over time. Trial counsel was

reaso nable, therefore, in omitting such cross examination. Even if the court were to assume that trial counsel was ineffective by pursuing th ese line s of questioning, Jackson has not shown the requisite prejudice. With respect to the unknown prints on the cha nge jar, Jackson’s fingerprints were found on a window of the burglarized home. Thus, even if trial counsel had developed evidence that the prints on the change jar belonged to the victim or some third person, that evidence would have done little to show that Jackson did not, at least at a minimum, participate in the burglary. And as noted above, there is no reason to believe Jackson could have adduced testimony that the age of the exemplar would call into question the validity of the exemplar. The court is left then with little more than speculation that the
omitted cross

- examination might have changed the result. This is not enough. 19 Consequently, Jackson suffered no prejudice from the alleged ineffectiveness of trial counsel in this regard.

19 Morelos v. U nited States, 709 F.3d 1246 , 1250 (8 th Cir. 2013)(rejecting prejudice claim where defendant’s

“ theory of cross

- examination prejudice is merely speculative, generally averring if Finney had pursued additional lines of questioning with each of the government's witnesses, it was possible those wi tnesses would have responded in such a way as to lessen their credibility .”)

.14 3 . The failure to retain a competent fingerprint expert. Jackson’s trial counsel used the services of a fingerprint analyst retained by the Office of the Public Defender. The court need not consider whether the analyst was competent and does not do so here . E ven assuming that the analyst was not competent, there is nothing to suggest that trial counsel knew of the assumed incompetence and proceeded to use the expert anyway. The
Sixth Amendment assures a criminal defendant assistance of counsel

— it says nothing about assistance of experts and thus “t here is no separately

- cognizable
claim of ineffective assistance of expert witnesses....” 20 To be sure, the guarantee assistance of counsel subsume s a right to access to expert testimony in appropriate cases. 21 The Si xth Amendment does not require however , and this court will not undertake, a Daubert

- like inquiry to determine if an expert consulted by defense counsel was “qualified.” The United States Supreme
Court disposed of the notion the Constitution requires such an inquiry earlier this year: We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigma tic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” We do not today launch federal courts into examination of the relative qualifications of experts hired an d experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law

— the unreasonable failure to understand the resources that state law made

20 Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.1992)

. 21 See Ake v. Oklahoma , 470 U.S. 68 ( 1985 )

.15 available to him

— that caused counsel to employ an expert that h e himself deemed inadequate. 22
Suffice it to say that Jackson must show at a minimum that his counsel retained expert knowing the expert was not qualified , or tria l counsel was deliberately indifferent to the expert’s qualifications

. In the instant case trial counsel consulted with a fingerprint analyst who has been retained by the Office of the Public Defender for the purpose of providing expert assistance to lawyers in that office . That consulting expert was a former Wilmington Poli ce Officer who was trained and experienced in fingerprint matters. He advised Jackson’s trial counsel that the State’s analysis of the fingerprint evidence was correct . Notably Jackson has offered
no evidence to contradict this conclusion. The court the refore has no basis say that the expert was unqualified, much less trial counsel knew that the expert was unqualified (if indeed he was) . Nor can the court say that trial counsel was deliberately indifferent to his qualifications.

4 . The failure to co nduct a proper investigation . Jackson argues that his counsel was ineffective because he did not interview or investigate someone named “Boyce” who apparently was a possible suspect in other burglaries taking place in or around Wilmington. The court
notes that under certain circumstances the failure to interview a witness can amount to the ineffective assistance of counsel. By the same token, defense

22 H inton v. Alabama , ___U.S. ___, 134 S.Ct. 1081 (2014).16 counsel need not interview every possible witness brought to his or her
attent ion. “[T]rial counsel [i]s not bound by an inflexible constitutional
command to interview every possible witness . Instead, counsel [i]s simply required to exercise reasonable professional judgment in deciding whether to interview [a witness].” 23 Jackson has not advised the court of any circumstance which should have prompted trial counsel to interview “Boyce.” At most he says the police apparently suspected Boyce in some burglaries occurring in or around Wilmington. Without more, Jackson’s trial counsel had no constitutional obligation to track down and interview “Boyce.” In 2006 (the year when Jackson’s crimes took place) there were 6420 reported burglaries in the State 24 and Jackson has not pointed to anything which would make this one stand
out

. The court cannot therefore say that trial counsel’s failure to interview “Boyce” amounts to a Sixth Amendment violation. But even if trial counsel were obligated to interview “Boyce,” there is nothing in the record to show that Jackson was prejudiced b y counsel’s failure to do so. Jackson has provided no information about what exculpatory
evidence “Boyce” would have given trial counsel. As a practical matter, of course, it is questionable whether “Boyce” (assuming he could be found) would

even speak to trial counsel, and it is even less likely that he would admit committing a crime to trial counsel. The court is therefore left with nothing but speculation about the impact of the failure to interview “Boyce” and therefore

23 Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir.1990)

. 24 State of Delaware Document number 10

- 0208 100302

.17 the court cannot say that it is reasonably probable that the result of Jackson’s
trial would have been different if “ Boyce ” had been interviewed.
5. The failure to properly present the severance argument Jackson contended at trial and on appeal that this court should have severed cha rges relating to one of the burglaries. He is correct that Rule 14 of this court permits the court to sever joined offense into separate trial if “ it appears that a defendant will be prejudiced by the joinder of offenses .” The prejudice must be specific, either : ( 1) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find; or (2) the jury may use the evidence of one of the crimes to infer a general criminal disposition of the defe ndant in order to find guilt of the other crime or crimes; or (3) the defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges

. 25
He is incorrect, however, in asserting his trial counsels’ pe rformance did not meet the constitutional minimal standards required of his counsel. Jackson contends that his trial counsel was not present for oral argument and, as a result, the matter was decided on the written argument.
T rial counsel explains (unders tandably) that the schedules of Public Defenders require that they be more than one place at the same time. In order to

25 Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988)

.18 accommodate the demands of the court, assistant public defenders often
“cover” for one another on routine matters such as this motion t o sever. Trial counsel reasonably relied on this practice and passed off the scheduled argument to a colleague. Jackson also fails to make any showing that he was prejudiced by the fact that this court considered his motion to sever on the papers. The S tate correctly points out that Jackson never had a right to oral argument in the first place, and this court decides many matters on the
papers. Jackson also argues that his trial counsel did a poor job of articulating the reasons why Jackson would be prej udiced by the joinder. The court finds that trial counsel correctly identified the legal issues implicated in a motion to sever and made plausible arguments on his client’s behalf. The Sixth
Amendment is not a vehicle for defendants to attack their convi ctions simply
because someone after the fact thought of a better argument : It is all too tempting for a defendant to second

- guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense a f ter it has proved unsuccessful. F air assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant mus t overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy. 26

26 Strickland , 66 U.S. at 689.19 Thus , the fact that Jackson “ could imagine a han dful of arguments his counsel
mi ght have made does not render his counsel's performance deficient .” 27

D. The performance of Jackson’s appellate counsel Jackson argues that the performance of his appointed appellate counsel on his direct appeal fell below the minimum standard expected of Delaware lawyers

. Judging from the appell ate record, appointed a ppellate counsel put
forth little effort, and apparently exercised no professional judgment to speak of when prosecuting Jackson’s appeal. Despite the sub

- par performance of appointed appellate counsel, this court concludes that Jac kson has not shown a reasonable probability that, but for appointed appellate counsel’s mistakes, there would have been a different result on appeal. Thus, notwithstanding the apparent lack of effort by his appellate counsel, Jackson is not entitled to rel ief.

1. Jackson’s representation on appeal As just stated, the court finds that Jackson has not shown prejudice resulting from his appointed appellate counsel’s performance . Ordinarily the court could then dispose of the Sixth Amendment claim without considering whether counsel’s performance was up to constitutional standards. In this case, however, Jackson asserts that his appointed appellate counsel’s performance was so deficient that it amounted to a complete denial of counsel. This being the case, according to Jackson, he need not show prejudice in order

27 U nited S tates v. Burkley , 370 Fed.App ’ x. 899 (10 th Cir. 2010).20 to make out a Sixth Amendment violation. The court agrees that prejudice is presumed when a defendant has no counse l or the functional equivalent of no counsel. Accordingly , it must therefore examine appellate counsel’s performance in order to determine if it is the equivalent of a complete absence of representation. Jackson was represented at his trial by the Office of the Public Defender.
After Jackson was convicted , his Public Defender perfected an appeal to the Supreme Court. Thereafter , the Office of the Public Defender filed a brief pursuant to Supreme Court Rule 26(c) in that court. The author of that brief

r epresented to the Supreme C ourt that he could find no meritorious is s ues to argue on appeal. In many instances such as this the S upreme Court resolves an appeal on the basis of the so

- called Rule 26(c) brief and any pro se supplementation by the defendant

. In the case of Jackson’s appeal, however, the Supreme Court took the unusual step of appointing new appellate counsel for Jackson, thus suggesting the possibility the Supreme Court was concerned that Jackson may have meritorious issues to raise on appea l. It is difficult to discern what, if any, effort or independent thought appointed appellate counsel put into his representation of Jackson. The
Statement of Facts in the o pening b rief filed by appointed appellate counsel

was nothing more than a verbatim copy of the Statement of Facts in the Rule 26(c) brief prepared by previous appellate counsel. The two arguments contained in the brief were little better. Both got off to a bad start when appointed appellate counsel cited to the wrong standard of review . As would be21 expected in a competent brief, neither argument contained an examination of the trial court’s ruling and an explanation why it was wrong. Both arguments are remarkable in that they were perfunctory, at best. The first ( in which appointed ap pellate counsel argued that charges should have been severed)

was
-- save for a handful of immaterial changes

-- a verbatim copy of the unsuccessful argument filed in this court by Jackson’s trial counsel. The second argument ( that evidence sh ould have been s uppressed) was cryptic and contained no meaningful argument . The only citations were to opinions standing for widely accepted general principles which are a given in search and
seizure matters. The argument contained no citations to opinions which could
be considered even remotely specific to the issue raised in the brief. The brief is also remarkable in that it did not contain any real analysis of this court’s rulings or any attempt to explain why they were wrong. Appointed appellate counsel’s poor performance was not limited to the
brief he filed. The record strongly suggests the possibility that he misled Jackson about what was happening in the Supreme Court. While Jackson’s appeal was pending on May 18, 2009 the Clerk of the Supreme Court sent a routine form letter to counsel in Jackson’s appeal which i n its entirety: Pursuant to Supreme Court Rule 16(a), you are advised that the Court has now instructed that the above appeal be considered to be under submission for decision as of Wednesday, Jun e 17, 2009

. The notice says nothing about a reply brief. An appellate attorney , even those with little experience in the Delaware Supreme Court , would know that th at Court routinely sets argument /submission dates before the filing of the Reply22 Brief

. 28 T here is simply nothing in the notice which would lead a comp etent attorney to believe the Court was prohibiting the filing of a reply brief

. Nonetheless, appointed appellate counsel wrote to Jackson advising him that the Supreme Court had notified him that no reply brief would be allowed on
Jackson’s behalf. Appointed appellate counsel told a different story in an affidavit filed in these Rule 61 proceedings. Here , he told this court that he
chose not to file a reply brief because there was “nothing new” in the State’s answering brief. No mention is made in counsel’s affidavit of being misled by the Supreme Court’s May 18 notice

. Appointed appellate counsels’ ostensible belief that there was nothing in the State’s answering brief which required a r eply brief is another example of sub

- standard representation. Contrary to what appointed appellate counsel had to say, the State’s answering brief called for some sort of reply. In that
b rief , the State correctly noted : In order to determine whether the stop was proper, the Court must first determine at which point a seizure occurred. * * * In this case, the answer hinges on whether the issue is examined under the Fourth Amendment to the United States Constitution or Art icle I, sec. 6 of the Delaware Constitution. Neither in his motion to suppress nor now on appeal does the defendant specify on which constitution his challenge is base d . 29
The court recognizes there was likely little that appointed appellate counsel could say in reply. The Supreme Court disdains sandbagging in reply briefs

28 Supreme Court Standard Operating Procedure V(1)(i). 29 State’s Br. In No. 133, 2008 (emphasis ad ded; internal citation omitted).23 and therefore it would have been difficult to address the issue for the first time in a reply brief. Moreover , appointed appellate counsel’s hands were likely tied, because the state constitutional argument had never been presented below, and it is unlikely that the Supreme Court would have considered it in the first instance on appeal. Nonetheless, some effort could have been made to explain to the Supreme Court Jackson’s position. At a minimum it was disingenuous for appointed appellate counsel to tell this court he did not file a reply brief solely because there was “nothing new” in the State’s answer ing brief.
2. Jackson must show prejudice There is little question that appointed appellate counsel’s performance

was poor, if not substandard. The second prong of Strickland ordinarily requires Jack son to show prejudice. Jackson contends however, he is not required to do so because of the United States Supreme Court’s decision in Cronic v. United States. 30
In Cronic the Supreme Court noted that where there is a complete failure of representation prejudice may be presumed under Strickland. For the mos t part courts have generally declined to apply Cronic to claims of ineffective appellate counsel even when appellate counsel has made a serious mistake.
Rather , Cronic has been applied in the appellate court context only when
counsel’s failure has served to deprive the defendant of an appeal. 31 Poor presentation or selection of arguments on appeal is not the sort of shortcoming

30 466 U.S. 884 (1988)

. 31 Flick v. Warren, 2009 WL 3698547*24 (E.D.Mich.) (“[M]any courts have declined to apply Cronic to appellate counsel errors which, although serious, do not deprive a defendant of his right to appeal.”).24 which the Supreme Court envisions would fall within Cronic. In Penson v. Ohio , 32 an appellate lawyer in a state criminal proceeding was allowed to withdraw before the state appellate court determined whether there was any merit to the appeal. After counsel withdrew the appellate court determined there were potentially meritorious arguments to be made. Rather than re

appoint counsel o r appoint new counsel for the defendant, the appellate court simply decided the arguable issues against defendant. The United States Supreme Court held that this amounted to a complete denial of counsel and therefore , the defendant need not show prejudice in order to make out a Sixth Amendment claim. Of importance here is the manner in which the Supreme Court distinguished the case before it from cases such as this where counsel made a poor argument: Finally, it is important to emphasize that the denial o f counsel in this case left petitioner completely without representation during the appellate court's actual decisional process. This is quite different from a case in which it is claimed that counsel's performance was ineffective. As we stated in Strickla nd, the “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Our decision in United States v. Cronic, likewise, makes clear that “[t]he presumption that counsel's assistance is essential requ ires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Similarly, Chapman recognizes that the right to counsel is “so basic to a fair trial that [its] infraction can never be treated as harmless error .” And more recently, in Satterwhite v. Texas , we stated that a pervasive denial of counsel casts such doubt on the fairness of the trial process, that it can never be considered harmless error. Because the fundamental importance of the assistance

32 488 U.S. 75 (1988)

.25 of couns el does not cease as the prosecutorial process moves from the trial to the appellate stage, the presumption of prejudice must extend as well to the denial of counsel on appeal

. Jackson’s contention that his appointed appellate counsel’s performance
amount s to a complete failure of representation is contradicted by Jackson’s allegations of specific departures from the accepted norm. In Bell v. Cone 33 the United States Supreme Court drew the distinction between a complete failure of representation under Cronic and something less than a complete failure of representation for purposes of the second prong of the Strickland test: When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete. We said “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.” Here, respondent's argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but th at his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic , this difference is not of degree but of kind

. 34

The court holds, therefore, that Cronic is inapplicable here and that Jackson must show prejudice resulting from his appointed appellate counsel’s failures.

3. Jackson has not shown prejudice In order to show prejudice Jackson must show that there is a reasonable likelihood that, had he been represented by competent counsel, the Supreme

33 535 U.S. 685 (2002). 34 Id. at 687.26 Court would have reached a different result. Implicit in this, of course, is that
Jackson must show a l ikelihood the Supreme Court was wrong. Jackson’s arguments to this effect are procedurally barred and also substantively flawed.

a . Jackson’s prejudice argument is procedurally barred . In Jackson’s direct appeal , t he Supreme Court rejected his argument that he was prejudiced by the joinder of the charges against him

. The Court
ruled: We next consider whether joinder would have created sufficien t prejudice that the Superior Court should have severed the charges. Although Jackson recites the factors for determining prejudice under Weist v. State , he has not articulated any specific reasons why joinder of the offenses caused him prejudice. The record does not reflect any specific prejudice to Jackson either

. 35
Jackson argues that if his appellate counsel had been competent he could have articulated specific prejudice . According to Jackson, he was specifically prejudiced by the joinder because t he jury could have accumulated evidence from one burglary , where he was essentially caught red

- handed, with the “very
little” evidence of the other two burglaries

. As noted in connection with the court’s assessment of trial counsel’s performance, the f ailure of appointed counsel to make a better argument, does not amount to ineffective assistance of counsel. Moreover, the substantive argument that Jackson was prejudiced by the joinder is foreclosed by the

35 Jackson v. State , 990 A.2d 1281, 1287 (Del. 2009).27 Supreme Court’s opinion that “the record does n ot reflect any specific prejudice
to Jackson either.” The Supreme Court’s independent determination that the “record does not reflect any specific prejudice to Jackson” forecloses Jackson’s argument
that there was, in fact, specific prejudice. As discusse d earlier in this opinion, Rule 61(i)(4) bars reargument of issues already decided. Jackson does not, and cannot, show any new legal or factual developments. At best he presents a refinement of his earlier argument to this court and the Supreme Court. This does not give rise to an exception to Rule 61 (i)(4):
We have stated that “[i]n order to invoke the ‘interest of justice’ provision ... a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to co nvict or punish [the defendant].” In Weedon v. State, we stated that the 61(i)(4) bar does not apply when the previous ruling was “clearly in error” or when “there has been an important change in circumstances, in particula r, the factual basis for the iss ue previously posed.” We will not reconsider an issue simply because a defendant has “refined or restated” a claim

. 36 Consequently Jackson’s efforts to show prejudice are foreclosed by Rule 61(i)(4).

b . Jackson’s seizure claim This court is also foreclosed by Rule 61(i)(4) from considering whether Jackson was prejudiced by the appointed appellate counsel’s failure to argue state constitutional grounds for the seizure claim. R eviewing the police seizure

36 Pringle v. State , 2013 WL 1087633 *3 (Del. Supr.)28 of evidence. As noted pre viously, Jackson contends that , under the Delaware
constitution , Jackson was seized the moment the police made a show of authority over him. Presumably this means when the officer turned on his overhead blinkers and siren. According to Jackson, the Delaw are constitution is more strict than the Fourth Amendment as to when a seizure occurs. He theorizes that the police did not have authority under the state constitution to stop him when the officer turned on his lights and siren. Cons equently, according t o Jackson , all of the items later seized from his person should have been suppressed. The Supreme Court rejected Jackson’s argument under the Fourth Amendment, writing: Having considered the totality of the circumstances, we conclude that the record refl ects that the police had probable cause to lawfully arrest Jackson. Accordingly, the Superior Court properly denied the motion for suppression of the items the police discovered on Jackson’s person during their search incident to his lawful arrest. Althou gh, as Jackson states, the Delaware constitution imposes a stricter standard than the Fourth Amendment as to when a stop occurs, his claim is
still barred because it is a refinement of his earlier search and seizure claim. It is undoubtedly true that the state constitutional claim, with its different standards, was never presented. Sti ll, in the scheme of things, it is a refinement of his search and seizure claim and is , therefore , procedurally barred. The Supreme Court’s holding in State v. Wright 37 serv es to illustrate

37 67 A.3d 319 (Del. 2013).29 this point. Wright involved a Rule 61 proceeding two decades after Wright was convicted of capital murder. During the investigation , Wright made a confession to po lice. The admissibility of that confession was contested at several junct ures. In 2012 , this court held that the Miranda warnings given to Wright were materially deficient and , therefore , that confession should be suppressed. On appeal the Supreme Court held that Wright’s Miranda argument was procedurally barred, even though it had never before been considered. The Supreme Court reasoned that other arguments about the admissibility of Wright’s confession had been previously considered and rejected and therefore the argument about the wording of the warnings actually given to Wright were a refinement of the earlier arguments and were therefore procedurally barred. By the same token, even though Jackson’s state constitution argument has never been expressly presented, it is a refinement of his earlier search and seizure argumen t which was rejected. Consequently , it is barred. Conclusion For the foregoing reasons Jackson’s motion for post conviction relief is
DENIED.

_______________________________ September 3 , 2014 John A. Parkins, Jr.

oc: Prothonotary

cc: Andrew J. Vella , Esquire, Wilmington, Delaware

- Attorney for the State Natalie S. Woloshin , Esquire, Wilmington, Delaw are
– Attorney for the Defendant