Submitted: August 8, 2017
A. Denney, Jr., Esquire, Deputy Attorney General, Department
of Justice, Wilmington, Delaware, Attorney for the State.
F. Kirk, IV, Esquire, Gonser and Gonser, P. A., Attorney for
Defendant Raheem Harris.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
M. Parker Commissioner.
14th day of November 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
July 7, 2014, Defendant Raheem D. Harris was indicted on one
count of Possession of a Firearm by a Person Prohibited
matter was tried before a Superior Court jury on November 12,
2014. The parties stipulated that Harris was a person
prohibited from possessing a firearm or deadly
weapon. On November 12, 2014, following the trial,
Harris was found guilty of PFBPP.
December 12, 2014, Harris was sentenced to ten years of Level
V incarceration, suspended after five years, followed by
decreasing levels of supervision.
Harris filed a direct appeal to the Delaware Supreme Court.
On July 8, 2015, the Delaware Supreme Court affirmed the
conviction and sentence of the Superior Court.
testimony at trial established that, around 6:00 a.m. on May
8, 2014, the Wilmington Police Department executed a search
warrant for an apartment in the City of
Wilmington. The apartment was leased by Harris'
girlfriend, who lived there with her young son. Harris did
not live in the apartment. He lived in the apartment across
the hall with his mother. The target of the officers'
search warrant was Harris' cousin, Jamir. When the
officers executed the warrant, the only occupants of the
apartment were Harris, his girlfriend, and her
After the officers entered the apartment, Harris and his
girlfriend were placed in custody and seated in the living
room while the officers conducted the search. During the
search, the officers found a loaded 9mm firearm under the
mattress where the two had been sleeping. An officer read
Harris his Miranda rights. Harris told the officer
that the gun was his, but then invoked his right to remain
silent and did not answer any other questions.The gun was
processed but no fingerprints or DNA was recovered. Harris
was charged with one count of PFPBB. The parties stipulated
that he was a person prohibited from possessing a firearm.
Harris did not testify at trial. The jury found him
RULE 61 MOTION
August 11, 2015, Harris filed the subject motion for post
conviction relief. A briefing schedule was entered. Trial
counsel submitted an Affidavit responding to Harris'
ineffective assistance of counsel claims and the State filed
a response to Defendant's motion.
Thereafter, Harris filed a motion requesting the appointment
of counsel. The motion was granted. On or about
December 7, 2016, counsel was appointed. A supplemental
briefing schedule was entered. Harris' Rule 61 counsel
filed an amended motion for post conviction relief and the
State filed a supplemental response thereto.
August 8, 2017, this motion was assigned to the undersigned
the subject motion, Harris raised three ineffective
assistance of counsel claims. Harris claimed that: 1) defense
counsel was ineffective for not filing a motion to suppress
the inculpatory statement made by him at the time of the
arrest; 2) defense counsel was ineffective for not exploring
on cross-examination of the arresting officer the timing of
the Miranda warnings given to Mr. Harris prior to
making the inculpatory statement; and 3) defense counsel was
ineffective for not exploring the issue of Mr. Harris'
location as it related to the proximity of the recovered
order to prevail on an ineffective assistance of counsel
claim, Defendant must meet the two-pronged
Strickland test by showing that: (1) counsel
performed at a level "below an objective standard of
reasonableness" and that, (2) the deficient performance
prejudiced the defense. The first prong requires the
defendant to show by a preponderance of the evidence that
defense counsel was not reasonably competent, while the
second prong requires him to show that there is a reasonable
probability that, but for defense counsel's
unprofessional errors, the outcome of the proceedings would
have been different.
Mere allegations of ineffectiveness will not suffice;
instead, a defendant must make and substantiate concrete
allegations of actual prejudice. Although not
insurmountable, the Strickland standard is highly
demanding and leads to a strong presumption that
counsel's conduct fell within a wide range of reasonable
professional assistance.Moreover, there is a strong
presumption that defense counsel's conduct constituted
sound trial strategy.
Harrington v. Richter,  the United States Supreme
Court explained the high bar that must be surmounted in
establishing an ineffective assistance of counsel claim. In
Harrington, the United States Supreme Court
explained that representation is constitutionally ineffective
only if it so undermined the proper functioning of the
adversarial process that the defendant was denied a fair
trial. The challenger's burden on an
ineffective assistance of counsel claim is to show that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. It is not enough to show
that the errors had some conceivable effect on the outcome of
the proceeding. Counsel's errors must be so serious as to
deprive the defendant of a fair trial.
Counsel's representation must be judged by the most
deferential of standards. The United States Supreme Court
cautioned that reviewing courts must be mindful of the fact
that unlike a later reviewing court, the attorney observed
the relevant proceedings, knew of materials outside the