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 fingerprints 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, the 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 

with 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 to suppress evidence seized at the time Jackson was 

arrested. That motion was also denied. Jackson 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 mandatory 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 direct appeal. As is customary, 

the 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 arguable 
3

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 will 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 proceeding was 

reassigned to the undersigned judge because of the retirement of the trial 

judge. Thereafter the 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 

that 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. Nagowski 

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 Wilmington 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 the 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 traffic 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 feet 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 of Merchants Square Shopping Center on 

Governor Printz Boulevard, north of the city of 
5

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 Shopping 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 man, 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. Guzevich 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 the 

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 from 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 matched 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. State, 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 after 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 appeal. Jackson’s conviction was 

affirmed by the Supreme Court on July 13, 20093 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 the 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, and 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 the 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 conviction 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 subdivision 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 that 
8

permits this court to hear his barred arguments. But Rule 61(i)(5), on its face 

applies 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 the “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 equitable 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 counsel 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 rule 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. 

Washington9 the standard for showing ineffective 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 standard 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 likelihood 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 confidence 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 Daubert13 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 in terms of specific Daubert factors, the reliability 

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 Defense counsel candidly admitted

at oral argument that she is unaware 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 should 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 counsel. 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 (1st 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 of the comparison. Insofar as the court is aware, an 

individual’s fingerprints do not change over time. Trial counsel was 

reasonable, therefore, in omitting such cross examination.

Even if the court were to assume that trial counsel was ineffective by 

pursuing these lines of questioning, Jackson has not shown the requisite 

prejudice. With respect to the unknown prints on the change 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. United States, 709 F.3d 1246, 1250 (8th 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 witnesses 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. Even 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 “there is no separately-cognizable 

claim of ineffective assistance of expert witnesses....”20 To be sure, the 

guarantee assistance of counsel subsumes a right to access to expert testimony 

in appropriate cases.21 The Sixth 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 paradigmatic 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 and 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 he 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 trial 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 Police 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 therefore 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 conduct 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 Hinton v. Alabama, ___U.S. ___, 134 S.Ct. 1081 (2014).
16

counsel need not interview every possible witness brought to his or her 

attention. “[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 State24

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 by 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 charges 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 defendant 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’ performance 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. 

Trial counsel explains (understandably) 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 to 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 State 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 prejudiced 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 convictions 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 after it has proved unsuccessful. 

Fair 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 must 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 handful of arguments his counsel 

might 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 appellate record, appointed appellate 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 Jackson 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 relief.

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 United States v. Burkley, 370 Fed.App’x. 899 (10th Cir. 2010).
20

to make out a Sixth Amendment violation. The court agrees that prejudice is 

presumed when a defendant has no counsel 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 

represented to the Supreme Court that he could find no meritorious issues to 

argue on appeal. In many instances such as this the Supreme 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 appeal.

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 opening brief 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 be 
21

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 appellate 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 should have been suppressed) 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 in 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, June 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 that

Court routinely sets argument/submission dates before the filing of the Reply 
22

Brief.28 There is simply nothing in the notice which would lead a competent

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 reply 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

brief, 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 

Article 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 based.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 added; 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 answering 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 Jackson 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 most 

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 reappoint counsel or 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 of 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 Strickland, 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 requires 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 counsel 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 

amounts to a complete failure of representation is contradicted by Jackson’s 

allegations of specific departures from the accepted norm. In Bell v. Cone33 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 that 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 likelihood 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, the 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 

sufficient 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 the 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 failure 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 not 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 discussed 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 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.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. Reviewing the police seizure 

 36 Pringle v. State, 2013 WL 1087633 *3 (Del. Supr.)
28

of evidence. As noted previously, 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 Delaware 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. Consequently, 

according to 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 reflects 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.

Although, 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. Still, 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. Wright37 serves 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 police. The admissibility of that confession was contested at 

several junctures. 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 argument 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, Delaware – Attorney for the 

Defendant