Submitted: November 5, 2018
S. Taylor, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
J. Maurer, Jr., Esquire, 1201-A King Street, Wilmington,
Delaware 19801, Attorney for Defendant Isaiah Palmer.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
M. PARKER COMMISSIONER.
31st day of January, 2019, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
December 21, 2015, Defendant Isaiah Palmer was indicted on
charges of two counts of Possession of a Firearm During the
Commission of a Felony ("PFDCF"), one count of
Possession of a Firearm by a Person Prohibited
("PFBPP"), one count of Possession of Ammunition by
a Person Prohibited ("PABPP"), Drug Dealing in a
Tier 4 quantity and Possession of a Controlled Substance in a
Tier 5 quantity.
March l l, 2016, Palmer filed a Motion to Suppress Evidence.
The court denied the motion.
After the denial of the suppression motion, the case
proceeded to trial. Prior to jury selection, Palmer requested
and was granted the severance of the PFBPP and PABPP charges
from the remainder of the case. The "A" case went
to a jury and the "B" case (PFBPP and PABPP) was a
simultaneous bench trial.
jury was selected on July 6, 2016. Following a two-day trial,
the jury found Palmer guilty of Possession of a Controlled
Substance in a Tier 5 quantity and PFDCF. The jury found
Palmer not guilty of Drug Dealing in a Tier 4 quantity and
the related PFDCF charge. The Superior Court found Palmer
guilty of the "B" counts of PFBPP and PABPP.
Prior to sentencing the State moved to declare Palmer a
habitual offender.Following a pre-sentence investigation,
on September 16, 2016, the Superior Court declared Palmer a
habitual offender pursuant to 11 Del.C. §
Superior Court sentenced Palmer to a total unsuspended
sentence of 42 years at Level V incarceration followed by
Palmer filed a direct appeal to the Delaware Supreme Court.
On July 7, 2017, the Delaware Supreme Court determined that
the appeal was without merit, upheld the denial of his
suppression motion, and affirmed the judgment of the Superior
During the second week of October 2015, a confidential
informant informed officers from the Wilmington Police
Department that a residence located at 311 West
29th Street in Wilmington, Delaware was used as a
"stash house" for weapons. Based on the tip,
the officers conducted surveillance of the residence and
observed a high frequency of activity coming from the
residence with multiple subjects responding and entering for
short periods of time and then leaving. To the officers,
this observation was consistent with the allegation that the
residence was a "stash house" for weapons and/or
November of 2015, the officers received another tip from
another confidential informant that a black male named Isaiah
Palmer lived at 311 West 29th Street and that his
residence was being used as a "stash house" for
other individuals' weapons, and that firearms were being
stored in an exterior shed.
After obtaining a search warrant, on November 12, 2015, the
Wilmington Police Department executed the warrant. When the
police arrived, there were four individuals, apparently
relatives of Palmer, in the residence, but he was not there.
Palmer arrived later during the execution of the search
a cubbyhole near the basement steps was a bag labeled
"1-95 Enter" and within it were nine bundles of
heroin containing .117 grams. Additional bags of heroin were
found outside of the residence in recycling bins. Those bags
were stamped with the phrase "Nike" and weighed
20.91 grams. In total 2, 581 bags of heroin was
seized. In addition, five separate types of ammunition were
found in the rear shed. Palmer, along with the other family
members, indicated that his bedroom was in the
basement. Inside the basement bedroom, police
observed a bed, men's clothing and a dresser along with a
box sitting on a table several feet past the foot of the bed.
On top of the box, police found a loaded Taurus PT .45
caliber handgun with eight rounds of ammunition.
PENDING RULE 61 MOTION
July 3, 2018, Palmer, with the assistance of counsel, filed
the pending Rule 61 motion. In the subject motion, Palmer
raises one claim. Palmer claims that trial counsel's
failure to call Palmer's cousin Samuel Palmer as a
witness at trial was ineffective and resulted in prejudice to
Before making a recommendation, the record was enlarged and
Palmer's trial counsel submitted an Affidavit responding
to Palmer's claim, the State submitted a response, and
Palmer was afforded an opportunity to submit a reply
order to prevail on an ineffective assistance of counsel
claim, Palmer 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
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.
considering post-trial attacks on counsel,
Strickland cautions that trial counsel's
performance should be reviewed from the defense counsel's
perspective at the time decisions were being
made. It is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting efforts of hindsight. Second
guessing or "Monday morning quarterbacking" should
is against this backdrop that Palmer's claim of
ineffective assistance of counsel is considered.
Trial counsel explained that his trial strategy was to
establish reasonable doubt that Isaiah Palmer had knowing
possession of the items seized. To that end, trial
counsel presented numerous photographs through an
investigator that tended to demonstrate Palmer's lack of
proximity to the items. Moreover, counsel established through
police witnesses that the items were found in easily
accessible areas in a very high crime and high drug dealing
part of town.
Trial counsel explained that his decision not to call Samuel
Palmer as a witness at trial was a tactical
decision. Trial counsel explained that Samuel
Palmer was with Isaiah Palmer on the night the search warrant
was executed. Samuel was also charged with drug and weapons
offenses, although his charges were dismissed a couple weeks
later. Samuel went to the police station the night of the
search warrant and gave a statement essentially stating all
of the items seized were his and that no one else knew about
However, there were significant problems with Samuel's
statement to the police. Samuel did not accurately describe
the items seized. He described the firearm correctly, but
said it was "by the bed," which is not where it was
found.Samuel was not accurate about the
heroin. He said there were only "probably over 100
bags" of heroin in the trashcan, when in fact there were
over 2, 400 bags of heroin in that trashcan.
Samuel could not describe how the heroin was packaged. He was
correct about the "Nike" stamp on the heroin in the
trashcan but did not know anything about the other heroin
seized from ...