United States District Court, D. Delaware
SAMUEL H. MCGLOTIEN, Petitioner,
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents. 
[Copyrighted Material Omitted]
Samuel H. McGlotten, Petitioner, Pro se.
Maria T. Knoll. Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
SUE L. ROBINSON, District Judge.
Petitioner Samuel H. McGlotten (" petitioner) has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 2) Petitioner is an inmate in custody at the James T. Vaughn Correctional Center in Wilmington, Delaware. For the reasons that follow, the court will dismiss his application.
II. FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, members of the Governor's Task Force (" GTF" ) arrested William Holloman on drug charges. See State v. McGlotten, 2011 WL 987534, at *2 (Del. Super. Mar. 21, 2011). The GTF asked Holloman to provide the name of drug suppliers, and Holloman gave them petitioner's name. Id. While being monitored by the police, Holloman contacted petitioner to arrange a drug purchase at a gas station. The police recorded the phone calls between Holloman and petitioner by holding a tape recorder up to Holloman's telephone. See McGlotten v. State, 26 A.3d 214 (Table), 2011 WL 3074790, at *1 (Del. July 25, 2011). These recordings were admitted into evidence during petitioner's trial. After arranging the drug purchase, the police officers then conducted surveillance of the gas station at the appointed time. The officers saw petitioner drive his car into the parking lot, park next to a portable toilet and exit the vehicle. Petitioner stood next to the passenger side of the car and called Holloman to let him know where he was. The front seat passenger in petitioner's car then exited the vehicle and went into the toilet. Officers approached petitioner and apprehended him as he was about to enter the driver's side of the vehicle. The officers found over forty grams of cocaine packaged in smaller baggies on the ground where petitioner had been standing. The police arrested petitioner and conducted an interview that was recorded onto a DVD. Id.
The other individuals in petitioner's vehicle included the female front seat passenger who entered the portable toilet, a
female back seat passenger, and a male back seat passenger. See McGlotten, 2011 WL 987534, at *2. The two female passengers had marijuana on their persons. Id.
In December 2007, a Delaware Superior Court jury convicted petitioner of trafficking cocaine, possession with the intent to deliver cocaine, maintaining a vehicle for keeping controlled substances, and possession of drug paraphernalia. See McGlotten, 26 A.3d 214, 2011 WL 3074790, at *1. The Superior Court sentenced him to a total of forty-nine years at Level V incarceration, to be suspended after serving twenty-five years in prison for decreasing levels of probation. Id. The Delaware Supreme Court affirmed petitioner's convictions on direct appeal. McGlotten v. State, 963 A.2d 139 (Table), 2008 WL 5307990 (Del. Dec. 22, 2008).
In August 2009, petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 (" Rule 61 motion" ), which the Superior Court denied. State v. McGlotten, 2009 WL 3335325 (Del. Super. Oct. 8, 2009). Petitioner appealed, and the Delaware Supreme Court remanded the case for expansion of the record and reconsideration of the merits of petitioner's ineffective assistance of counsel claims. On remand, the Superior Court denied the Rule 61 motion. State v. McGlotten, 2011 WL 987534 (Del. Super. March 21, 2011). The Delaware Supreme Court affirmed that judgment. McGlotten, 26 A.3d 214, 2011 WL 3074790, at *5.
Petitioner timely filed a § 2254 application in this court. (D.I. 2) The State filed an answer, arguing that the court should deny the application for failing to satisfy § 2254(d). (D.I. 11)
III. STANDARD OF REVIEW
If a state's highest court adjudicated a federal habeas claim on the merits, the federal court must review the claim under the deferential standard contained in 28 U.S.C. § 2254(d). Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the state court's decision was " contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or the state court's decision was an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C. § 2254(d)(1) & (2); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
A claim has been " adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather than on a procedural or some other ground. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even " when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied" ; as recently explained by the Supreme Court, " it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624(2011).
Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)(stating that the
clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions).
Petitioner's application asserts the following nine ineffective assistance of counsel claims: (1) counsel erred by withdrawing his objection to the State's late admission of the DVD recording of petitioner's police interview; (2) counsel failed to raise a due process claim regarding the State's failure to conduct a preliminary hearing within ten days; (3) counsel failed to investigate the case and request witness statements prior to trial or after the witness testified; (4) counsel failed to file a discovery request pursuant to Delaware Superior Court Criminal Rule 16; (5) counsel failed to file a motion to dismiss pursuant to Superior Court Criminal Rule 48 based on the delayed medical examiner's report and continuance requests; (6) counsel failed to object to perjured testimony; (7) counsel failed to file a suppression motion; (8) counsel failed to file a timely motion for judgment of acquittal; and (9) counsel failed to object to petitioner appearing at trial in his prison garb. Petitioner presented all nine claims to the Delaware Supreme Court on post-conviction appeal, and that court denied the claims as meritless. Therefore, habeas relief will only be available if the Delaware Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law.
The clearly established law governing the instant ineffective assistance of counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Under the first Strickland prong, a petitioner must demonstrate that " counsel's representation fell below an objective standard of reasonableness," with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, a petitioner must demonstrate " there is a reasonable probability that, but for counsel's error the result would have been different." Id. at 687-96. A reasonable probability is a " probability sufficient to undermine confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding and leads to a " strong ...