United States District Court, D. Delaware
Daemont Wheeler. Pro se Petitioner.
Katherine Joy Garrison, Deputy Attorney General of the
Delaware Department of Justice, Wilmington, Delaware.
Attorney for Respondents.
ANDREWS, UNITED STATES DISTRICT JUDGE.
pending before the Court is Petitioner Daemont Wheeler's
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 ("Petition"). (D.I. 3) The State filed
an Answer in opposition, contending that the Petition should
be dismissed in its entirety. (D.I. 17)
reasons discussed, the Court will dismiss the Petition.
On November 13, 2009, Herbie Davis was shot in the back and
leg several times while he was in the kitchen of Tricia
Scott's home near Dover. Davis lived in Wilmington but
stayed at Scott's home occasionally and considered her
his fiancée. Davis and Scott were planning on Davis
moving into her home. Several of Tricia Scott's children,
including Shani and Amber, and grandchildren, also lived with
[Petitioner] was Amber's boyfriend and frequently stayed
in Amber's bedroom in the basement of Scott's home.
In 2009, Amber gave birth to a baby, fathered by
[Petitioner]. Davis testified that he and [Petitioner] did
not get along after Davis told [Petitioner] that he should
get a job to help support Amber, the baby, and the household.
Davis testified that shortly before the shooting on November
13, 2009, [Petitioner] had been downstairs with Amber. Davis
and Shani were in the kitchen area. When [Petitioner] came
upstairs, he had a disagreeable exchange with Davis before
[Petitioner] walked out the back door. Davis then went out
the front door to smoke a cigarette and returned several
Davis testified that after he returned and was talking with
Shani in the kitchen area, [Petitioner] came up behind him
and shot him several times after saying, "I really
don't like you." After shooting Davis, [Petitioner]
fled. Davis fell to the kitchen floor and told Shani that he
could not feel his legs. Shani called 911 and applied
pressure to Davis' leg. When Amber rushed upstairs to the
kitchen, after hearing the gun shots, Shani told her:
"Daemont just shot Herbie-''
Mr. Herbie." At 8:55 p.m. on November 13, 2009, Delaware
State Police Corporal Thomas Lamon was dispatched to
investigate a report that someone had been shot. Corporal
Lamon was the first police officer to arrive at Trisha
Scott's home. When Corporal Lamon entered the residence,
he saw Davis on the kitchen floor surrounded by blood. Shani
was kneeling over Davis. Corporal Lamon testified that Davis
and Shani were the only people in the kitchen, and that Shani
"was clearly upset, shaken." Davis told Corporal
Lamon, "Daemont shot me."
Delaware State Police Detective Mark Ryde was the chief
investigating officer. When he arrived at the Scott
residence, Detective Ryde conducted separate recorded
interviews of Trisha Scott's two daughters, Shani and
Amber. Those interviews were conducted in Detective
Ryde's police car.
After the on-scene investigation concluded. Detective Ryde
attempted to locate the suspect, [Petitioner]. After
Detective Ryde was unable to locate [Petitioner] at two
addresses, he prepared an arrest warrant. That arrest warrant
was placed in the National Crime Index Center database.
On November 23, 2009, Detective Ryde received information
that [Petitioner] might be at a certain apartment in
Harrington, Delaware. The apartment house was owned by Mary
Zachery. Detective Ryde obtained a search warrant. Inside the
unoccupied apartment. Detective Ryde found a document and
prescription medication with [Petitioner]'s name. Later,
Detective Ryde conducted an imrecorded interview of Mary
Zachery at State Police Troop No. 3.
In January 2010, in an effort to locate [Petitioner],
Detective Ryde contacted the United States Marshal's Task
Force. [Petitioner] was apprehended on January 27, 2010, in
Wayne County, Michigan. After waiving an extradition hearing,
[Petitioner] was returned to Delaware on February 17, 2010.
Wheeler V. State, 36 A.3d 310, 312-13 (Del. 2012)
was indicted for attempted first degree murder, possession of
a firearm during the commission of a felony
("PFDCF"), possession of a firearm by a person
prohibited ("PFBPP"), and possession of ammunition
by a person prohibited ("PABPP"). (D.I. 17 at 1) In
April 2011, a Delaware Superior Court jury convicted
Petitioner of all charges. See Wheeler, 36 A.3d at
313. The Superior Court sentenced him as an habitual offender
to life in prison on the attempted first degree murder
charge, and to a total of thirty-eight years of incarceration
on the remaining charges. Petitioner appealed, and the
Delaware Supreme Court affirmed his convictions and sentences
on February 7, 2012. See Wheeler, 36 A.3d at 312.
December 2012, Petitioner filed a pro se motion for
post-conviction relief pursuant to Delaware Superior Court
Criminal Rule 61, alleging ineffective assistance of counsel.
The Superior Court denied the motion on October 3, 2013.
See Wheeler, 36 A.3d at 312. On appeal, the Delaware
Supreme Court vacated the Superior Court's judgment
without addressing its merits, and remanded the case back to
the Superior Court so that it could appoint counsel to
represent Petitioner. See Wheeler v. State, 83 A.3d
738 (Table), 2014 WL 44715, at *1 (Del. Jan. 2, 2104). In
January 2015, appointed counsel notified the Superior Court
that counsel had thoroughly reviewed the record and were
unable to assert any meritorious post-conviction claims.
Counsel filed a motion to withdraw and a supporting
memorandum of law pursuant to Delaware Superior Court
Criminal Rule 61(e)(2). (D.I. 20-4 at 131-143) Petitioner
filed a response. On February 27, 2015, the Superior Court
granted post-conviction counsel's motion to withdraw and
denied the Rule 61 motion. (D.I. 20-4 at 188) Post-conviction
counsel and Petitioner filed notices of appeal, and
post-conviction counsel filed a motion for the appointment of
substitute counsel. See Wheeler v. State, 127 A.3d
1163 (Table), 2015 WL 6150936, at *2 (Del. 2015). The
Delaware Supreme Court permitted post-conviction counsel to
withdraw and appointed substitute post-conviction counsel
("appellate post-conviction counsel"). Thereafter,
appellate post-conviction counsel filed a brief and motion to
withdraw. Id. On October 19, 2015, the Delaware
Supreme Court affirmed the Superior Court's decision and
denied appellate post-conviction counsel's motion to
withdraw as moot. Id. at *5.
GOVERNING LEGAL PRINCIPLES
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. 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). The 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 granted unless it appears that -
(A) the applicant has exhausted the remedies available in the
courts of the State; or (B)(i) there is an absence of
available State corrective process; or
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
exhaustion requirement is based on principles of comity,
requiring a petitioner to give "state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." O'Sullivan, 526 U.S. at
844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d
Cir. 2000). A petitioner satisfies the exhaustion requirement
by demonstrating that the habeas claims were "fairly
presented" to the state's highest court, either on
direct appeal or in a post-conviction proceeding, in a
procedural manner permitting the court to consider the claims
on their merits. See Bell v. Cone, 543 U.S. 447, 451
n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351
petitioner's failure to exhaust state remedies will be
excused if state procedural rules preclude him from seeking
further relief in state courts. See Lines v.
Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Teague v.
Lane, 489 U.S. 288, 297-98 (1989). Although treated as
technically exhausted, such claims are nonetheless
procedurally defaulted. See Lines, 208 F.3d at 160;
Coleman v. Thompson, 501 U.S. 722, 750-51 (1991).
Similarly, if a petitioner presents a habeas claim to the
state's highest court, but that court "clearly and
expressly" refuses to review the merits of the claim due
to an independent and adequate state procedural rule, the
claim is exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 750; Harris v. Reed, 489
U.S. 255, 260-64(1989).
courts may not consider the merits of procedurally defaulted
claims unless the petitioner demonstrates either cause for
the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will
result if the court does not review the claims. See
McCandless v. Vaughn, 172 F.3d255, 260 (3d Cir. 1999);
Coleman, 501 U.S. at 750-51. To demonstrate cause
for a procedural default, a petitioner must show that
"some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule." Murray v. Carrier, 477 U.S.
478, 488 (1986). To demonstrate actual prejudice, a
petitioner must show "that [the errors at trial] worked
to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions."
Id. at 494.
a federal court may excuse a procedural default if the
petitioner demonstrates that failure to review the claim will
result in a fundamental miscarriage of justice. See
Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). A
petitioner demonstrates a miscarriage of justice by showing a
"constitutional violation has probably resulted in the
conviction of one who is actually innocent."
Murray, 477 U.S. at 496. Actual innocence means
factual innocence, not legal insufficiency. See Bousley
v. United States, 523 U.S. 614, 623 (1998). In order to
establish actual innocence, the petitioner must present new
reliable evidence - not presented at trial - that
demonstrates "it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt." House V. Bell, 547 U.S. 518,
537-38 (2005); Sweger v. Chesney, 294 F.3d 506,
522-24 (3d Cir. 2002).
Standard of Review
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 (2000);
Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
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.
See 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." Harrington v. Richter, 562 U.S. 86, 98
(2011). 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." Id. at
when reviewing a habeas claim, a federal court must presume
that the state court's determinations of factual issues
are correct. See 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. See 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 (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).
timely filed § 2254 Petition asserts the following six
grounds for relief: (1) the Superior Court's admission of
certain testimony violated Petitioner's Sixth Amendment
right to confront witnesses; (2) the State violated
Petitioner's due process right to a fair trial by failing
to turn over a witness' taped statement as required by
Delaware Superior Court Criminal Rule 26.2 and Jencks v
United States,353 U.S. 657 (1957); (3) the State
engaged in prosecutorial misconduct; (4) defense counsel
provided ineffective assistance; (5) ...