United States District Court, D. Delaware
S. Greenberg. Counsel for petitioner.
Elizabeth R. McFarlan, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.
before the court is a petition and a supplemental petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
("petition") filed by petitioner Marvin Burton
("Burton"). (D.I. 1; D.I. 10; D.I. 23) The State
filed an answer in opposition. (D.I. 24) For the reasons
discussed, the court will deny the petition.
AND PROCEDURAL BACKGROUND
The Facts 
C.B. was 11-years-old when Burton sexually abused her. Burton
is her father. Kesha Davis is her mother. Burton and Kesha
were involved in a romantic relationship in 1992 when they
were 25 and 16, respectively. He ended the relationship after
Kesha became pregnant with C.B. Several years later Burton
was convicted of two counts of Unlawful Sexual Intercourse in
the Third Degree and sentenced to serve four and one-half
years in prison. The victim was a 13-year-old girl. C.B. had
no contact with Burton until after he was released from
prison in January 2004. Vivian Burton did not know that C.B.
was her granddaughter until after Burton was released from
prison. Burton and Kesha resumed their relationship soon
after he was released from prison.
Burton moved into a trailer behind his parents' house on
their property after he was released from prison. The trailer
was used primarily for storage and had only one bedroom. It
did not have running water or air-conditioning. Kesha moved
into the trailer with Burton. C.B. moved into Burton's
parents' house. Kesha and her three children had been
staying with Kesha's aunt, Sharon Hernandez. When Kesha
and C.B. moved to Burton's parents' property,
Kesha's other two children, A and Z, remained with Sharon
until they moved in with their father in May 2004. Burton and
Kesha did not spend nights in the house. They stayed in the
trailer. C.B. did not spend nights in the trailer. She stayed
in the house. C.B. spent some nights with her other relatives
that summer, primarily those who had children her age.
Vivian Burton worked part-time cleaning houses one or two
days a week. Marvin Burton, Sr. worked full-time at
Kent-Sussex Industries, They both left in the morning for
work. Thus, there were times when Vivian and Marvin Burton,
Sr. were not at their home. Burton worked for a contractor
who was renovating a school during the day and a cleaning
service at night. His construction job eventually ended,
leaving him only with the night job. Kesha cut hair during
the day and also worked at the cleaning service at night.
Burton was convicted of improperly touching C.B.'s
breasts with his hands and her buttocks with his penis and
raping her vaginally with his fingers and penis. His sexual
abuse of C.B. escalated quickly over a short period of time.
The improper sexual contact occurred one evening in
Burton's parents' house at the end of the school
year, possibly in May or June. C.B., Kesha and Burton were in
the house. C.B. and Burton were in the hallway near the
bathroom. Kesha was in the living room. Burton touched
C.B.'s breasts and hugged her so forcefully from behind
that she could feel his penis rubbing against her buttocks
through her clothing. When Kesha left the living room to
check on C.B., she saw Burton hugging C.B. from behind.
Burton moved away from C.B. after Kesha saw him.
The rapes occurred in the morning at Burton's
parents' house in August. The first rape occurred while
C.B. was asleep in her bed. She woke up when Burton put his
fingers in her vagina. This happened while Vivian Burton and
Kesha were at work. C.B. and Burton were alone in the house
that day. The second rape occurred after C.B. had gotten out
of bed and was getting ready to take a shower. Burton came
into her room, pushed her onto the bed, removed her pajamas,
got on top of her and put his penis in her vagina. Burton
stopped after about five minutes and left the room. This also
happened while Vivian Burton and Kesha were at work. C.B. did
not tell anyone about Burton raping her because he told her
that he would get in trouble and go to jail and she would be
Burton and Kesha got married on September 1, 2004. However,
their marriage quickly unraveled. Burton, who was a pastor of
sorts, started calling and visiting his ex-wife regularly and
counseling a teenage girl on the phone. Kesha got tired of
this and moved to North Carolina with C.B. and her other
children around the middle of September. She and her children
returned to Delaware to attend her brother's birthday
party in October. During the trip home, Kesha asked C.B. if
she wanted to see Burton while they were in Delaware. C.B.
became upset and told Kesha about some of the things that
Burton had done to her. This prompted Kesha to arrange a
three-way cell phone call between C.B., Burton and Rhonda
Street, her cousin. She had Rhonda listen in on the
conversation between C.B. and Burton. Burton did not know
that Rhonda was listening in on his conversation with C.B. He
made a number of incriminating statements during the
conversation that Rhonda heard, including telling C.B. that
she needed to change her story about him touching her. This
led to an investigation by the police, more disclosures by
C.B., the charges against Burton, and his trial.
B. The Trial
The State's ease against Burton rested largely on the
testimony of C.B., Kesha, Rhonda, Karen Smail and Christopher
Judge. C.B, testified about Burton touching her breasts with
his fingers and her buttocks with his penis and placing his
fingers and penis in her vagina at his parents' house.
Kesha testified about seeing Burton "grinding"
against C.B. at his parents' house. C.B., Kesha and
Rhonda testified about the three-way phone conversation with
Burton where he made incriminating statements about sexually
assaulting C.B. Karen Smail is the nurse who examined C.B.
She testified that C.B.'s hymen was broken and that the
results of her examination led her to believe that C.B. had
engaged in sexual activity. Christopher Judge is a records
custodian for Verizon Wireless, His testimony linked the cell
phone numbers belonging to Kesha, Burton and Rhonda to a
three-way cell phone call on October 2, 2004.
Burton's defense was that he was never alone with C.B. at
his parents' house, that C.B. had recanted her
allegations of sexual abuse, and that C.B. had spent some
time with her other relatives that summer. His defense rested
on the testimony of Vivian Burton, Stacie Brittingham,
Katrina Morris and Tionyell Cannon. Burton used Vivian
Burton's testimony to attack the two rape charges by
attempting to show that he was never alone with C.B. at his
parents' house. Vivian Burton testified about C.B.'s
living arrangements while C.B. was at her house. C.B. was
never alone with Burton in her house the entire summer. She
would be with both Burton and Kesha. If Vivian Burton left
the house, C.B. would not be left alone in the house by
herself. She would be either with her mother or at a
relative's house according to Vivian Burton.
Burton used Stacie Brittingham's testimony to attack the
unlawful sexual contact charge by attempting to show that
C.B. had said that it did not happen. Stacie testified about
a conversation she had with C.B. about the "grinding
incident." She has two children, Tiara and Melvin, C.B.
attended Tiara's birthday party and spent the night at
Stacie's house on Saturday, August 21, 2004. Kesha picked
up C.B. the next day. However, according to Stacie, before
C.B. left, Stacie and Kesha talked about the "grinding
incident" in the hallway at Vivian Burton's house,
Stacie testified that she asked C.B. if this happened. C.B.
said that it did not according to Stacie. Kesha testified at
the trial that C.B., when asked by Stacie if anything had
happened with Burton, said that it did not. C.B. admitted at
the trial that she told Stacie and Kesha that Burton did not
do anything to her, but she added that her denial was not
true. She did not tell Kesha and Stacie the truth because she
thought her siblings, which [sic] she had just
gotten to know, would be mad at her if she got Burton, their
father, in trouble.
Burton used the testimony of Katrina Morris and Tionyell
Cannon to show that C.B. had spent some time with them that
summer. Katrina Morris testified about C.B, spending some
time with her and her husband, Eric Morris, at their house in
the summer. They have four children and live approximately
one-quarter of a mile away from Burton's parents'
house. C.B. used to come and "stay the night" with
Katrina and Eric all the time during the summer of 2004. C.B.
had sleep-overs with Katrina's oldest daughter, Erica.
During the Summer of 2004, from the time school got out in
June until it started back in September, C.B. spent
"four or five nights straight" either the weekend
before or after the 4th of July, and then three or four times
after that "she spent a night or two" according to
Tionyell Cannon testified about C.B. spending time with her.
She has three children, one of which, Jaquesha Burton, was
fathered by Burton. Tionyell has never been married to
Burton. C.B. "spent the night" with her "maybe
about six to ten times" during the Summer of 2004.
However, none of Burton's witnesses testified that C.B.
had moved out of his parents' house in July and was not
living there in August and September.
Burton, 2010 WL 3946275, at * 1-4.
August 2005, a Delaware Superior Court jury convicted Burton
on one count each of first degree rape (victim under the age
of 12), second degree rape (victim under the age of 12), and
second degree unlawful sexual contact. The Superior Court
sentenced him as a habitual offender to two life sentences
plus two years at Level V incarceration. (D.I. 24 at 1)
Burton appealed, and his appellate counsel moved to withdraw
after finding no arguable meritorious claims for relief to
present to the court. See Burton v. State, 907 A.2d
145 (Table), 2006 WL 2434914, at *1 (Del. Aug. 21, 2006). The
Delaware Supreme Court informed Burton he could present any
issues he wished to include for presentation to the court,
but he elected not to do so. Id. The Delaware
Supreme Court affirmed Burton's convictions and
August 16, 2007, Burton filed his first pro se
motion for postconviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion").
The Superior Court denied the Rule 61 motion. See State
v. Burton, 2008 WL 2359717 (Del. Super. Ct. June 3,
2008). Burton appealed in June 2008, and then subsequently
attempted to supplement the record with various affidavits.
Because the trial court had not considered the new evidence
in the first instance, the Delaware Supreme Court remanded
the case to the Superior Court to allow that court to
consider Burton's new evidence. See Burton v.
State, 968 A, 2d 491 (Table), 2009 WL 537194 (Del, Mar.
4, 2009). On remand, the Superior Court granted Burton's
request for an evidentiary hearing. See Burton, 2010
WL 3946275, After the evidentiary hearing was held in 2009,
but before the Superior Court issued its decision, the State
provided Burton with a DVD of C.B. recanting her testimony.
(D.I. 10 at 7) The DVD was generated in January 2010 by the
Child Advocacy Center ("CAC") in connection with an
interview of C.B. regarding her status as a foster child.
Id. In this video, C.B. told the interviewer that
her accusations against Burton were a "fraud."
Id. On March 5, 2010, Burton filed a motion to
re-open the record in the Superior Court, alleging that the
DVD constituted evidence of Burton's actual innocence and
that the DVD also supported his ineffective assistance of
counsel claim. (D.I. 21-10 at 30, Entry No. 143) The Superior
Court docket reflects that the Superior Court planned to
schedule a hearing regarding the recantation. (D.I. 21-10 at
30, Entry No. 144) Instead, however, the Superior Court held
an office conference on this issue on June 15, 2010. (D.I.
21-10 at 30, Entry No. 154)
18, 2010, the Superior Court denied the motion to reopen,
explaining that the scope of the Delaware Supreme Court's
remand "is clearly limited to consideration of whether
the three new statements [in the affidavits] would have
affected my decision on Mr. Burton's claim of ineffective
assistance of counsel. Therefore, I will consider the record
closed and will issue a written decision on the record before
me." (D.I. 21-10 at 31, Entry No, 155) After considering
the 2009 evidentiary hearing testimony and subsequent
briefing, the Superior Court denied Burton's Rule 61
motion in its entirety on September 30, 2010. See
Burton, 2010 WL 3946275, Burton appealed, and the
Delaware Supreme Court affirmed that decision. See Burton
v. State, 29 A.3d 245 (Table), 2011 WL 4342636 (Del.
Sept. 15, 2011).
by counsel, Burton timely filed a federal habeas petition in
November 2011. (D.I. 1) In June 2012, Burton moved, with the
consent of the State, to stay the habeas proceeding to allow
him to exhaust one of his claims. (D.I. 16) The court granted
the motion to stay. (D.I. 17)
2012, C.B. pled guilty to first degree assault and possession
of a deadly weapon during the commission of a felony, based
on an incident in which C.B. stabbed another woman for
talking to C.B.'s son's father. See State v.
Burton, 2014 WL 5468874, at *5 (Del. Super. Ct. Aug. 27,
2014). During the pre-sentence investigation in that case,
C.B. informed the investigator that she was under pressure
from Burton's family to recant her ...