United States District Court, D. Delaware
A. Bostic. Federal Public Defender's Office, Wilmington,
Delaware. Counsel for petitioner.
T. Knoll, Delaware Department of Justice, Wilmington,
Delaware. Counsel for respondents.
before the court is a petition and an amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254
("petition") filed by petitioner Michael Neal
("Neal"). (D.I. 1; D.I. 42) The State filed an
answer in opposition. (D.I. 9; D.I. 43) For the reasons
discussed, the court will deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. The New Year's Eve Robberies
On December 31, 2008, a group of armed men wearing gloves and
disguises robbed three businesses in Wilmington. The first
business was Cutrona Liquors. The co-owners, Ashok and Navin
Patel, testified at trial that three men rushed into the
store brandishing a gun. The men pointed the gun at Ashok and
ordered him and his wife into a corner of the store. While
one member of the gang guarded the door, another emptied cash
and receipts from a box, and the third removed vodka from a
display. The robbers fled the scene in a white car. Ashok
followed the car and obtained the license plate number, which
he later turned over to the police.
The robbers next visited Dun-Rite Dry Cleaners. Soo Kim, a
co-owner, testified that three men casually entered the store
while she attended to a customer. After the customer left,
the three men rushed toward her with a gun. Kim fled to the
back of the store and called the police. Her husband and
another employee opened the cash register for the robbers.
The group then descended upon Creative Images Barber Shop.
Larry Parks, the owner, testified at trial that three men
entered the store brandishing guns and demanding money,
wallets, and cell phones. The robbers held Parks at gunpoint
and pistol whipped two customers with a gun.
Wilmington Police located and arrested four men in a white
Chevrolet Lumina later that day. Inside the car, officers
discovered the spoils of their felonious escapade: a handgun,
masks, liquor bottles, cash, and other items plundered from
the stores. Officers eventually identified the men in the car
as Kevin Berry, Robert Brown, Michael Neal, and Kadeem Reams.
A grand jury indicted Neal on 36 counts related to the New
Year's Eve robberies: nine counts each of First Degree
Robbery, Possession of a Firearm During the Commission of a
Felony, and Second Degree Conspiracy.
B. Neal's Trial
Neal's trial began on August 11, 2009. Prior to trial,
the State offered each of the four co-defendants a plea
bargain in exchange for his testimony at any of the other
co-defendants' trials. Berry, Brown, and Reams accepted
their plea offers. Neal did not accept his plea offer and
proceeded to trial.
At trial, the State presented 85 exhibits and the testimony
of 24 witnesses. The State also planned to present the
testimony of Neal's three co-defendants pursuant to the
terms of their plea bargains. The State presented Brown's
testimony, which implicated Neal as having played a role in
the inception, planning, and execution of the robberies. On
cross-examination, however, Brown admitted to initially
telling the police that Neal had not participated in the
robberies. Neal's trial counsel did not request a
Bland instruction and the trial judge did not sua
sponte give a Bland instruction regarding
The State declined to call Berry and Reams when it learned
that the two co-defendants had made out-of-court statements
tending to exculpate Neal. Berry made the exculpatory
statement to his attorney, while Reams spoke directly to the
Attorney General and detectives. The State related this
information to Neal's trial counsel.
Neal's trial counsel then attempted to call Berry and
Reams to testify on [Neal's] behalf. Each of them,
however, invoked his Fifth Amendment right against
self-incrimination and refused to testify. Berry and Reams
feared that if they testified in Neal's defense, they
would breach their plea bargains with the State. Without
their testimony, Neal's trial counsel sought to admit
Berry's and Reams' out-of-court statements under 11
Del. C. § 3507. After brief argument on the
issue, the trial judge concluded that the statements were not
admissible under Section 3507. The trial judge reasoned that
Berry and Reams would not be "subject to cross
examination" under the statute if they invoked their
Fifth Amendment privileges. Neal's lawyer asserted no
other basis to admit the statements. Neal called no other
witnesses and presented no evidence in his defense. A jury
convicted Neal on all 36 counts and the trial judge sentenced
him to 54 years incarceration.
Neal v. State, 80 A.3d 935, 939-40 (Del. 2013). Neal
appealed, and the Delaware Supreme Court affirmed his
convictions. See Neal v. State, 3 A.3d 222 (Del.
2011, Neal filed a motion for post-conviction relief pursuant
to Delaware Superior Court Criminal Rule 61 ("Rule 61
motion"). The Superior Court denied the motion, and the
Delaware Supreme Court affirmed that decision. See State
v. Neal, 2013 WL 1871755, at *12 (Del. Super. Ct. May 1,
2013); Neal, 80 A.3d at 952. Neal moved for a
rehearing en banc, which the Delaware Supreme Court
denied. (D.I. 9 at 5)
represented by a privately retained attorney, Neal timely
filed his original habeas petition in February 2014. (D.I.I)
The State filed an answer. (D.I. 9) Thereafter, Neal's
attorney passed away, and the Federal Public Defender was
appointed in his place. Now represented by the Federal Public
Defender, Neal filed a reply brief, (D.I. 27), to which the
State filed a sur reply (D.I. 35). After obtaining the
court's permission, Neal filed an amended petition. (D.I.
42) The State filed a response, (D.I. 43), and Neal filed a
reply (D.I. 45).
GOVERNING LEGAL PRINCIPLES
The Antiterrorism and Effective Death Penalty Act of
enacted the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") "to reduce delays in the
execution of state and federal criminal sentences . . . and
to further the principles of comity, finality, and
federalism." Woodford v. Garceau, 538 U.S. 202,
206 (2003). Pursuant to AEDPA, a federal court may consider a
habeas petition filed by a state prisoner only "on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C.
§ 2254(a). AEDPA imposes procedural requirements and
standards for analyzing the merits of a habeas petition in
order to "prevent federal habeas 'retrials' and
to ensure that state-court convictions are given effect to
the extent possible under law." Bell v. Cone,
535 U.S. 685, 693 (2002).
Exhaustion and Procedural Default
exceptional circumstances, a federal court cannot grant
habeas relief unless the petitioner has exhausted all means
of available relief under state law. See 28 U.S.C.
§ 2254(b); O'Sullivan v. Boerckel, 526 U.S.
838, 842-44 (1999); Picard v. Connor, 404 U.S. 270,
275 (1971). AEDPA states, in pertinent part: .-
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be ...