IN THE SUPREME COURT OF THE STATE OF DELAWARE

HERBERT CLANTON,

Defendant-Below,

Appellant,

v.

STATE OF DELAWARE,

Appellee.

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No. 39, 2022

Court Below—Superior Court

of the State of Delaware

Cr. ID No: 1411018085

 

Submitted: April 17, 2022

Decided: October 20, 2022

Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices. 

O R D E R

On this 20th day of October 2022, it appears to the Court that:

(1) The defendant-appellant, Herbert Clanton (“Clanton”), appeals from 

the Superior Court’s denial of his Motion for Postconviction Relief. Clanton was 

convicted by a jury of Strangulation, Kidnapping in the Second Degree, and 

Burglary in the Second Degree. His convictions were affirmed by this Court on 

direct appeal.1 In this appeal, Clanton asserts that his trial counsel provided 

ineffective assistance because counsel failed to request a jury instruction on lesserincluded offenses for the Strangulation and Kidnapping charges. For the reasons 

1 Clanton v. State, 2017 WL 443728 (Del. Jan. 12, 2017).
2

that follow, we have concluded that the Superior Court’s judgment should be 

affirmed.

(2) The evidence presented by the State at Clanton’s trial reflects the 

following version of events: On the morning of November 29, 2014, Clanton 

accosted Nayyirah Thomas (“Thomas”), his ex-girlfriend, as she was leaving her 

apartment to go to work. He forced her back into the apartment, where he kept her 

against her will for several hours. He slapped the victim and choked her, and she 

testified that she lost consciousness and saw “black and blue.”

2 At one point during 

the ordeal, he slammed the victim up against the wall, causing damage to the wall.

He forced her to call her employer to explain that she would not be reporting to work 

that day. Two neighbors heard the victim screaming and begging her assailant not 

to kill her. One of the neighbors called the police.

(3) The officer who arrived at the apartment did not hear any noise coming 

from inside. He knocked on the door, but Clanton would not allow the victim to 

answer. The officer left. In order to escape, the victim convinced Clanton that she 

wanted to be with him again, and she engaged in sexual intercourse with him. 

Eventually, Clanton left the apartment around 3 p.m. Thomas ran to a neighbor’s 

apartment where she called 911.

(4) As previously mentioned, a Superior Court jury found Clanton guilty 

2 App. to Opening Br. at A32.
3

of Burglary in the Second Degree, Kidnapping in the Second Degree, and 

Strangulation. The jury acquitted Clanton of Home Invasion and Rape in the Second 

Degree. 

(5) Clanton filed a pro se Rule 61 Motion for Postconviction Relief,

claiming ineffective assistance of counsel under a number of theories. After 

reviewing Clanton’s memorandum, his assigned counsel found that there was one 

valid claim for relief—trial counsel’s failure to request instructions on lesserincluded offenses for the Strangulation and Kidnapping charges. Clanton argued 

that his defense counsel was ineffective because a reasonable jury could have 

acquitted him of those two charges and instead found him guilty of Assault in the 

Third Degree on the Strangulation charge and Unlawful Imprisonment in the First 

or Second Degree on the Kidnapping charge. After briefing and an evidentiary 

hearing, in which trial counsel was the only witness, the Superior Court rejected 

Clanton’s motion for postconviction relief. This appeal followed. 

(6) We review the Superior Court’s denial of a Rule 61 motion for 

postconviction relief for abuse of discretion.3 We review legal and constitutional 

questions de novo.

4

3 Ploof v. State, 75 A.3d 811, 820 (Del. 2013) (en banc).

4

Id.
4

(7) To prevail on a claim of ineffective assistance of counsel, the defendant 

must satisfy the two-prong standard of Strickland v. Washington.

5

 The defendant 

must prove that; (1) his trial counsel’s performance was objectively unreasonable; 

and (2) his defense was prejudiced as a result.6 Under the first prong, judicial 

scrutiny is “highly deferential.”7 Courts must ignore the “distorting effects of 

hindsight” and proceed with a “strong presumption” that counsel’s conduct was 

reasonable.8 The Strickland Court explained that “a court deciding an actual 

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct 

on the facts of the particular case, viewed as of the time of counsel’s conduct.”9

(8) Under the second prong, “[i]t is not enough for the defendant to show 

that the errors had some conceivable effect on the outcome of the proceeding.”10 In 

other words, “not every error that conceivably could have influenced the outcome 

undermines the reliability of the result of the proceeding.”11 The movant “must 

make specific allegations of actual prejudice and substantiate them.”12 These 

allegations must show “that there is a reasonable probability that, but for counsel’s 

5

466 U.S. 668, 687 (1984).

6

Id. at 687-88, 691-92.

7

Id. at 689.

8

Id.

9

Id. at 690.

10 Id. at 693.

11 Strickland, 466 U.S. at 693.

12 Outten v. State, 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State, 671 A.2d 

1353, 1356 (Del. 1996) (en banc), cert. denied, 517 U.S. 1249 (1996)).
5

unprofessional errors, the result of the proceeding would have been different.”13 “A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.”14 “The ‘reasonable probability’ standard is less strict than the ‘more 

likely than not’ standard, but it requires more than a showing of a theoretical 

possibility that the outcome was affected.”15 In sum, the defendant must prove actual 

prejudice.16

(9) Further, Strickland does not require that we evaluate these prongs in 

any specific order. As stated by the Court in Strickland, “The object of an 

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose 

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we 

expect will often be so, that course should be followed.”17 Therefore, we will first 

evaluate whether defense counsel’s failure to provide lesser included offenses at trial 

prejudiced Clanton’s defense.

(10) When defense counsel fails to request lesser-included offenses in the 

jury instructions, the defendant will be prejudiced if “a reasonable jury could find 

13 Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).

14 Strickland, 466 U.S. at 694.

15 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992), cert. denied, 507 U.S. 954 (1993) (citing 

Strickland, 466 U.S. at 693-94).

16 Strickland, 466 U.S. at 693 (“[A]ctual ineffectiveness claims alleging a deficiency in attorney 

performance are subject to a general requirement that the defendant affirmatively prove 

prejudice.”).

17 Id. at 697.
6

that the defendant was guilty of the lesser crime rather than the greater.”18 Therefore, 

the question here is whether there is a reasonable probability that the jury would 

have acquitted Clanton on the Strangulation and Kidnapping charges and convicted 

him on the lesser offenses. We believe that there is not a rational basis to find that 

defense counsel’s performance prejudiced Clanton’s defense.

(11) Under Delaware law, a person commits the crime of Strangulation “if 

the person knowingly or intentionally impedes the breathing or circulation of the 

blood of another person by applying pressure on the throat or neck of the other 

person.”

19

 Therefore, the State must prove three elements: (1) knowing or 

intentional action; (2) impeding breathing or blood flow; and (3) application of 

pressure to another’s throat or neck. The appropriate lesser offense is the 

misdemeanor of Assault in the Third Degree, which occurs where “[t]he person 

intentionally or recklessly causes physical injury to another person.”20 Assault Third

Degree requires proof of two elements: (1) intentional or reckless conduct and (2) 

causation of physical injury to another. Therefore, the distinguishing elements 

between these two offenses are whether Clanton intentionally applied pressure to 

Thomas’s neck, which impeded her breathing.

18 Baynum v. State, 211 A.3d 1075, 1083 (Del. 2019).

19 11 Del. C. § 607(a)(1).

20 11 Del. C. § 611(1).
7

(12) At trial, Thomas testified that while Clanton was in her apartment, she 

repeatedly pled for her life. She also testified that Clanton put his hand on her throat 

multiple times, causing her to see “black and blue” and lose consciousness.21 A 

forensic nurse also testified at trial that Thomas’s neck had redness and abrasions, 

and that Thomas told her that Clanton had “choked her” multiple times.22 The only 

facts that Clanton now relies upon to undermine this evidence are that Thomas 

testified at trial that she had been talking and breathing throughout the alleged 

strangulation incidences. Clanton argues that a reasonable jury could not have 

believed that she had the ability to talk while Clanton restricted her breathing.23 

Clanton also attests that if he had actually put sufficient pressure on her throat for 

her to stop breathing, there would have been bruises instead of just redness and 

abrasions.24 However, the forensic nurse testified that they do not often see those 

types of injuries with strangulation.

(13) At trial, defense counsel did not present any evidence or witnesses, but 

rather focused his efforts on pointing out inconsistencies in Thomas’s testimony and 

attempting to undermine her credibility. Clanton argues here that a there was a 

rational basis for the jury to question Thomas’s credibility.25 However, there was 

21 App. to Opening Br. at A32.

22 Id. at A45-46. 

23 Opening Br. at 16.

24 Id. at 14.

25 Id. at 15.
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overwhelming evidence that Clanton intentionally restricted Thomas’s breathing by 

applying pressure to her neck, and we do not find Clanton’s arguments to the 

contrary to be persuasive. Not only did the jury consider Thomas’s testimony, but 

also that of the forensic nurse and corroborating evidence from neighbors that 

Thomas was screaming and pleading for her life throughout the day. As the Superior 

Court noted below, “[f]or there to be a rational basis supporting a jury conviction on 

the lesser-included offense of Assault in the Third Degree, the jury would have had 

to ignore the uncontradicted evidence that the victim’s breathing and blood flow 

were impeded.”26 Because there is not a rational basis to find that a jury would have 

acquitted Clanton of Strangulation and convicted on the lesser offense, the Superior 

Court did not abuse its discretion in denying postconviction relief on this basis. 

(14) A person is guilty of Kidnapping Second Degree when the person 

unlawfully restrains another person with any one of six enumerated purposes, and 

the actor voluntarily releases the victim alive, unharmed, and in a safe place prior to 

trial.27 At trial, it was argued that Clanton restrained Thomas for two purposes: (1) 

to inflict injury; and (2) to terrorize the victim.28 The elements of this crime, 

therefore, are: (1) unlawful restraint; (2) for the purposes of inflicting physical injury 

or terrorizing the victim; and (3) pretrial release of the victim alive, unharmed, and 

26 State v. Clanton, 2022 WL 214557, at *4 (Del. Super. Jan. 25, 2022).

27 11 Del. C. § 783.

28 Opening Br. at 17.
9

in a safe place. The lesser-included offense of Unlawful Imprisonment in the Second 

Degree requires a finding that the defendant knowingly and unlawfully restrained 

another person.29 The lesser-included offense of Unlawful Imprisonment in the First 

Degree occurs if the knowing and unlawful restraint exposes the victim to the risk 

of serious physical injury.30 Therefore, the distinguishing element is whether 

Clanton restrained Thomas with the purpose of terrorizing her or inflicting physical 

harm. 

(15) At trial, the jury heard unrefuted testimony from Thomas that Clanton 

held her against her will for several hours and slammed her against a wall. This was 

corroborated by a hole in the wall and bruises on Thomas’s back. Neighbors heard 

Thomas screaming throughout the day. The jury also heard the testimony and 

corroborating evidence relating to the strangulation incidences. The evidence 

clearly justifies a conclusion that Clanton unlawfully restrained Thomas for the 

purpose of physical injury or to terrorize. 

(16) Clanton contends that the evidence contains a rational basis to find that 

Clanton lacked either purpose. He points to Thomas’s credibility issues and the fact 

that over the several hours they were in the apartment, they did other activities 

besides fighting, including eating and having what he considered to be consensual 

29 11 Del. C. § 781. 

30 11 Del. C. § 782.
10

sex.31 This evidence, Clanton argues, points to an inference that his purpose was to 

rekindle their relationship, not terrorize or harm.32 This argument is unpersuasive. 

The great weight of the evidence supports the inference that Clanton’s purpose was 

to terrorize Thomas and cause her harm. There is not a reasonable probability that 

the jury would have acquitted him of Kidnapping and convicted on the lesserincluded offenses.

(17) Clanton also supports his arguments with language from Beck v. 

Alabama, in which the U.S. Supreme Court explained, “[w]here one of the elements 

of the offense charged remains in doubt, but the defendant is plainly guilty of some

offense, the jury is likely to resolve its doubts in favor of conviction.”33 Clanton 

contends that without the option of these lesser-included offenses, there is a 

substantial risk that the jury convicted Clanton on the charged offenses even though 

an element of the charged offenses was in doubt, because the jury assumed he was 

guilty of some crime.34 However, the record does not support the contention that the 

jury found Clanton guilty of Strangulation and Kidnapping despite having some 

doubt about an element of each offense. The jury here actually acquitted Clanton of 

two charges, showing that they were willing to acquit if they believed an element of 

a crime was in question. Further, as discussed, the evidence supporting a conviction 

31 Opening Br. at 17-18.

32 Id. 

33 Beck v. Alabama, 447 U.S. 625, 634 (1980).

34 Opening Br. at 11-12.
11

on these crimes was overwhelming. There is no reason to believe that the jury had 

any doubt about an element of either offense. 

(18) Because we do not believe that there is a reasonable probability that the 

jury would have acquitted Clanton on the Strangulation and Kidnapping charges and 

convicted on the lesser-included offenses, we find that defense counsel’s failure to 

include these instructions was not prejudicial to Clanton’s defense. We therefore 

need not consider counsel’s performance under the first Strickland prong. 

NOW, THEREFORE, it is the order of the Court that the judgment of the 

Superior Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr.

Justice