Submitted: August 6, 2018
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED AND RULE 61
COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED.
Kathryn S. Keller, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
Christopher S. Koyste, Esquire, Law Offices of Christopher S.
Koyste, LLC, Attorney for Defendant Kahlil D. Lewis.
M. PARKER, COMMISSIONER
5th day of November, 2018, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court as follows:
AND PROCEDURAL HISTORY
Kahlil D. Lewis was arrested on April 30, 2013 and indicted
on June 24, 2013. He was charged with the following offenses:
one count of Murder Second Degree, two counts of Possession
of a Firearm During the Commission of a Felony
("PFDCF"), one count of Reckless Endangering First
Degree, and one count of Possession of a Firearm by a Person
Prohibited ("PFBPP"). The PFBPP charge was pursuant
to 11 Del. C. § 1448.
charges stemmed from a confrontation between Defendant Lewis
and Toney Morgan which ended in the death of Toney Morgan.
information was filed on December 18, 2013 and a
re-indictment was issued on December 23, 2013 modifying the
PFBPP count to PFBPP pursuant to 11 Del. C. §
1448(e)(2). The re-indictment alleged that Mr. Lewis had
negligently caused the death of Mr. Morgan while in
possession of a firearm as a person prohibited (hereinafter
referred to as "PFBPP-NCD").
Lewis admittedly is a person prohibited from possessing a
firearm. Mr. Lewis admittedly killed Toney Morgan with a
firearm. Mr. Lewis contended, nonetheless, that he was not
guilty of PFBPP-NCD because he only possessed the firearm
momentarily and used it only in self-defense, having wrestled
it away from Morgan, who was attacking him. The Superior
Court charged the jury that if Defendant Lewis only possessed
and used the weapon momentarily in self-defense, then he was
not guilty of PFBPP, The parties submitted their respective
positions on the availability of a justification defense at
trial in relation to the PFBPP charge. On November 20, 2013,
the Superior Court ruled that the justification defense was
available on the PFBPP charge.
the advice of counsel, Lewis rejected the State's various
plea offers on December 16, 2013, December 18, 2013 and
January 6, 2014.
December 27, 2013, Mr. Lewis filed a pro se letter
requesting that new counsel be appointed. The court denied
the request without prejudice in a January 2, 2014
State dismissed two of the five indicted charges prior to
trial: the murder and related weapons charge. Trial began on
January 7, 2014 with the State proceeding on the remaining
three charges: Reckless Endangering First Degree, PFDCF, and
PFBPP-NCD. The defense's mid-trial motion for judgment of
acquittal was denied by the court.
a six-day jury trial, on January 14, 2014, the jury acquitted
Lewis of the first two charges, Reckless Endangering First
Degree and PFDCF. The jury convicted Lewis of PFBPP-NCD.
filed a motion for judgment of acquittal on January 17, 2014,
which was denied by the court. In addition to the motion for
acquittal, filed by counsel, Lewis had written letters to the
court. The court's Order denying the motion for judgment
of acquittal also addressed and denied the claims raised by
Lewis in his pro se letters to the
November 20, 2014, Lewis filed a Petition for a Writ of
Habeas Corpus which was denied by the court on December 10,
February 13, 2015, Lewis was sentenced on the PFBPP-NCD
conviction to twenty-five years at Level V, suspended after
seven years for decreasing levels of supervision. Defendant
Lewis was also sentenced contemporaneously for a violation of
probation stemming from a drug dealing conviction for which
he received eight years at Level V.
Lewis filed a direct appeal to the Delaware Supreme Court. On
August 4, 2016, the Delaware Supreme Court affirmed the
judgment of the Superior Court.
facts of the incident at issue were set forth by the Delaware
Supreme Court in its decision on Lewis' direct
stated by the Delaware Supreme Court, on April 27, 2013,
Lewis drove to the 600 block of Jefferson Street in
Wilmington in search of people who attacked his friend the
day before. When he arrived, Lewis found several
adults and children hanging around the street. Words were
exchanged, and shots were fired. During the exchange of
gunfire, one of the people on the street, Toney Morgan, was
shot dead. Witnesses claimed they saw Lewis shoot Morgan.
Lewis was also shot in the face, though it was never
established who shot him.
61 MOTION AND COUNSEL'S MOTION TO WITHDRAW
filed a timely pro se motion for postconviction relief and
request for the appointment of counsel on July 26, 2017. Rule
61 counsel was appointed and given leave to amend Lewis'
pro se motion. On October 11, 2017, Lewis filed a. pro se
motion for amendment of Rule 61.
9, 2018, assigned counsel filed a Motion to Withdraw as
Postconviction Counsel pursuant to Superior Court Criminal
Rule 61(e)(6). Superior Court Criminal Rule 61(e)(6) provides
If counsel considers the movant's claim to be so lacking
in merit that counsel cannot ethically advocate it, and
counsel is not aware of any other substantial ground for
relief available to the movant, counsel may move to withdraw.
The motion shall explain the factual and legal basis for
counsel's opinion and shall give notice that the movant
may file a response to the motion within 30 days of service
of the motion upon the movant.
motion to withdraw, Lewis' Rule 61 counsel represented
that, after undertaking a thorough analysis of the
Defendant's claims, counsel has determined that the
claims are so lacking in merit that counsel cannot ethically
advocate any of them. Counsel further represented that,
following a thorough review of the record, counsel was not
aware of any other substantial claim for relief available to
Lewis. Lewis' Rule 61 counsel represented
to the court that there are no potential meritorious grounds
on which to base a Rule 61 motion and has therefore sought to
withdraw as counsel.
9, 2018, Lewis' Rule 61 counsel advised Lewis of his
motion to withdraw and advised Lewis that he had the right to
file a response thereto within 30 days, if Lewis desired to
do so. Despite the fact that over 90 days has
elapsed, Lewis has not responded to counsel's pending
Motion to Withdraw.
order to evaluate Lewis' Rule 61 motion and to determine
whether his Rule 61 counsel's motion to withdraw should
be granted, the court should be satisfied that Rule 61
counsel made a conscientious examination of the record and
the law for claims that" could arguable support
Lewis' Rule 61 motion. In addition, the court should
conduct its own review of the record in order to determine
whether Lewis' Rule 61 motion is so totally devoid of
any, at least, arguable postconviction claims.
RULE 61 MOTION IS WITHOUT MERIT
raised a number of claims in his pro se motion for
postconviction relief, which he filed on July 26, 2017, and
amended on October 11, 2017.
addressing each of Lewis' claims in turn, it is important
to note that some of the claims raised herein are
procedurally barred either because the claim had been
previously adjudicated on direct appeal or because Lewis
failed to raise the claim on direct appeal as required.
also important to emphasis that the evidence at trial against
Lewis was overwhelming. A witness observed a person running
from the scene of the shooting, wiping blood from his face
and hiding a gun on top of her neighbor's outdoor
grill.Lewis was suffering from a gunshot wound
to his face and wearing clothing matching the witness'
description. A blood trail lead directly from the
scene of the shooting to the outdoor grill (where the gun was
hidden). A 9-millimeter firearm was found on top
of the grill and contained Lewis' DNA. Lewis'
DNA was also found on the blood trail leading from the scene
to the grill, blood on the gun, blood on the grill, and blood
around the area of the grill.
9-millimeter shell casings found at the scene of the shooting
were confirmed as being fired from the 9-millimeter gun found
hidden on the grill. A 9-millimeter bullet recovered from Mr.
Morgan's thigh wound could have been fired from the
recovered 9-millimeter gun.
witnesses present at the scene of the shooting testified that
they either saw Lewis pull out a gun and begin shooting or
saw Lewis walk up to the congregated individuals and engage
in a conversation and/or argument.
testified at trial that he engaged in a physical struggle
with Mr. Morgan after he heard a click he believed to be from
a gun and in wrestling with Mr. Morgan for control of the
gun, it went off.
the procedural bars and overwhelming evidence, each of
Lewis' claims will be discussed in turn.
I: Trial Counsel Was Ineffective for Failing to Contest the
Lewis' pro se Rule 61 submission, Lewis claims
that trial counsel was ineffective for failing to contest the
re-indictment issued two weeks before trial.
prevail on a claim of ineffective assistance of counsel, the
defendant must satisfy the two-prong standard of
Strickland v. Washington. This test requires that
defendant prove that trial counsel's performance was
objectively unreasonable and that the defendant was
prejudiced as a result.
the first prong, judicial scrutiny is highly deferential.
Courts must ignore the distorting effects of hindsight and
proceed with a strong presumption that counsel's conduct
was reasonable. The Strickland Court explained
that a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged conduct
on the facts of the particular case, viewed as of the time of
the second prong, it is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of
the proceeding. In other words, not every error that
conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding. Some errors
will have a pervasive effort and some will have had an
isolated, trivial effect. The movant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. The court must consider the totality of
the evidence and must ask if the movant has met the burden of
showing that the decision reached would reasonably likely
have been different absent the errors.
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
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. Counsel's representation must be
judged by the most deferential of standards.
now to Lewis' first claim, Lewis claims that counsel was
ineffective for failing to contest the re-indictment issued
two weeks before trial. Lewis raised this issue on direct
appeal and the Delaware Supreme Court fully adjudicated
whether the re- indictment was valid and properly
issued. This issue having already been fully
adjudicated is now procedurally barred as previously
24, 2013, the Grand Jury indicted Lewis on, inter
alia, a charge of PFBPP in violation of 11
Del.C. § 1448. On December 23, 2013, Lewis
was re-indicted. The re-indictment added an allegation that
while Defendant, a person prohibited, possessed the firearm,
he negligently caused Morgan's death in violation of 11
Del.C .§ 1448(e)(2). Two weeks after the
re-indictment, on January 7, 2014, Lewis went to trial.
to the State or Lewis, the General Assembly mistakenly
repealed § 1448(e)(2) on July 18, 2013. It appears that
when it amended parts of the previous subsection of
§1448, the General Assembly inadvertently struck the
language of § 1448(e)(2) and then enacted the
a violation of § 1448(e)(2) was a crime when the April
27, 2013 shooting and death occurred and when the Grand Jury
first indicted Lewis on June 23, 2013, it was not a crime in
December 2013 when the Grand Jury re-indicted Lewis and
included the new charge. The General Assembly re-enacted
§ 1448(e)(2) on January 30, 2014, noting that it had
been mistakenly repealed.
direct appeal, Lewis argued that the Superior Court should
have dismissed the § 1448(e)(2) charge in the December
2013 re-indictment because § 1448(e)(2) was repealed at
the time of the re-indictment, and Lewis suffered prejudice
as a result of having the charge added so close to
a full, thorough and detailed analysis, the Delaware Supreme
Court held that under Delaware's saving statute, 11
Del.C. §211(a), the State could indict Lewis
for violating § 1448(e)(2) because the crime was
committed before repeal of the statute. The timing of the
indictment, and the General Assembly's mistaken repeal,
did not impact the validity of the indictment.
Lewis' claim that the re-indictment should not have been
allowed so close to the trial date, the Superior Court held
that there was no reason to prevent it. The more serious
felony was closely related to the original charges and the
re-indictment did not come as a surprise to defense
counsel. The Superior Court held that there was
not any good faith basis for defense counsel to oppose the
re-indictment nor to request a trial
continuance. While the re-indictment was to
Lewis' disadvantage, it was not unfairly
prejudicial. Moreover, the Delaware Supreme Court, in
affirming the decision of the Superior Court, further held
that the Grand Jury's indictment two weeks before trial
was not plain error, Lewis was properly re-indicted and
convicted under § 1448(e)(2).
counsel cannot be deemed ineffective for failing to contest
the re-indictment, because the Superior Court already held,
and the Delaware Supreme Court already affirmed, that the
re-indictment was valid. Moreover, the Superior Court already
held that defense counsel did not have a good faith basis to
oppose the re-indictment or to request a continuance. This
claim is without merit.
II: Failure to Request a Self-Defense Instruction on the
Lewis' pro se Rule 61 submission, Lewis claims
that trial counsel was ineffective for failing to request a
self-defense instruction on the charge of PFBPP-NCD.
direct appeal, the Delaware Supreme Court held that the
Superior Court properly declined to give a self-defense
instruction on the PFBPP-NCD charge as there was no basis
under the factual record and relevant law to give this
instruction on this charge. Trial counsel cannot be deemed
ineffective in failing to request a self-defense instruction
on the PFBPP-NCD charge, when there was no basis to request
that this instruction be given. This claim is without merit.
III: Superior Court Abused its Discretion in Sentencing
Lewis' pro se Rule 61 submission, Lewis claims
that the Superior Court abused its discretion by sentencing
him with a closed mind. This claim was already raised,
considered, and rejected by the Delaware Supreme Court on
direct appeal. This issue having already been fully
adjudicated is now procedurally barred as previously
IV: Counsel Failed to Share Discovery
Lewis' initial pro se Rule 61 submission on July
26, 2017, Lewis sought to amend his Rule 61 motion on October
11, 2017 and raise a number of additional claims. The first
additional claim that Lewis sought to raise was that trial
counsel failed to share discovery with him which allegedly
prevented him from preparing a defense.
protective order was issued by the Superior Court on August
26, 2013. Under the terms of the protective order,
trial counsel was prohibited from disclosing any identifying
information of any third party to Lewis, Lewis' family or
associates, without leave of the Court. Trial counsel
was also prohibited from using the identifying information to
contact or attempt to contact the witnesses directly or
indirectly without leave of the Court. Thus, trial
counsel was prohibited from providing discovery to Lewis.
protective order was only recently modified, on April 6,
2018, to permit Lewis access to discovery. Once the
protective order was modified, counsel provided Lewis with a
copy of his complete discovery with victim/witness addresses,
telephone numbers and places of employment redacted, Prior to
sentencing, Lewis filed a complaint with the Office of
Disciplinary Counsel ("ODC") against trial counsel
for failing to provide him with witness statements. ODC
summarily dismissed the complaint after trial counsel
responded noting that there was a protective order in place
which prevented him from doing so.
trial counsel had been permitted to provide discovery to
Lewis, he was under no legal obligation to do so. There is no
obligation of counsel to provide material given in discovery
to the defendant. While it is good practice, there is no
constitutional requirement to do so. Moreover, now that Lewis
has been provided with the complete discovery provided to
counsel, he has not identified any information contained in
the discovery that he was previously unaware of that would
have aided in his defense.
has failed to establish that his trial counsel was deficient
or that he suffered actual prejudice as a result thereof.
This claim is without merit.
V; Trial Counsel Failed to File Certain Motions
claims that trial counsel was ineffective by failing to file
motions to suppress the gun, for a proof positive hearing and
for an evidentiary hearing.
ineffective assistance of counsel claim based on the failure
to file a motion is without merit if trial counsel lacked a
legal or factual basis to do so.
has not explained what the purpose of an evidentiary hearing
would have been, why one was needed or what issues would have
been addressed during it. Conclusory, unsupported and
unsubstantiated allegations are insufficient to establish a
claim of ineffective assistance of counsel. Lewis has not