Submitted: February 13, 2019
Commissioner's Report and Recommendation That
Defendant's Motion for Postconviction Relief Should Be
HANORABL, MARY M. JOHNSTON
3rd day of April 2019, the Court has considered
the Commissioner's Report and Recommendation,
Defendant's Motion for Postconviction Relief, and the
relevant proceedings below.
3, 2018, Defendant Isaiah Palmer filed a Motion for
Postconviction Relief; on July 30, 2018, Defendant's
Counsel submitted an Affidavit in response to Defendant's
Motion; and on October 4, 2018, the State filed its response
to Defendant's Motion. The motion was referred to a
Superior Court Commissioner in accordance with 10 Del.
C. § 512(b) and Superior Court Criminal Rule 62 for
proposed findings of fact and conclusions of law. The
Commissioner issued the Report and Recommendation on January
31, 2019. The Commissioner recommended that Defendant's
Motion for Postconviction Relief be denied.
raises one claim in his motion: Counsel's failure to call
Defendant's cousin, Samuel Palmer, as a witness at trial
amounted to ineffective assistance of counsel and prejudiced
order to prevail on an ineffective assistance of counsel
claim, Defendant must meet the two-pronged
Strickland test by showing that Counsel performed at
a level "below an objective standard of
reasonableness," and that the deficient performance
prejudiced Defendant. The first prong requires Defendant to
show, by a preponderance of the evidence, that Counsel was
not reasonably competent. The second prong requires him to
show that there is a reasonable probability that, but for
Counsel's ineffectiveness, the outcome of the proceedings
would have been different.
allegations of ineffectiveness will not suffice. 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. There is a strong presumption that
Counsel's conduct constituted sound trial
explained in his Affidavit that his decision not to call
Samuel Palmer as a witness at trial was a tactical decision.
Counsel explained that Samuel Palmer was with Defendant on
the night the search warrant was executed. Samuel went to the
police station the night the search warrant was executed and
gave a statement, essentially stating all of the items seized
were his and that no one else knew about them. However,
Samuel's descriptions of the items seized were
inaccurate. The police did not believe Samuel. Their
assessment was that he was trying to take the charges for his
cousin. Samuel was charged with providing a false statement
to police. The State later entered a nolle prosequi
on that charge.
additional problem with Samuel's statement is that it did
not necessarily negate Defendant's joint possession of
the drugs, firearms, and ammunition. Counsel wanted to avoid
any potential evidence of joint possession. Over
Counsel's objection, a jury instruction on joint
possession was given. This issue was raised again on appeal,
and the Delaware Supreme Court held that the joint possession
instruction was proper. The Court gave the instruction
because there were other people in the residence when the
police arrived to conduct the search, and there was evidence
that other people had access to the residence.
stated that Samuel wanted to testify and that he even came to
Counsel's office asking to meet with Counsel. Counsel
explained to Defendant and Defendant's mother that
Samuel's testimony would backfire in front of the jury
because his lack of knowledge, especially about the
ammunition and the heroin, would damage his credibility.
Counsel believed that the jury would reach the same
conclusion the police reached: that Samuel was trying to
assume responsibility to get Defendant out of trouble and
that Samuel should not be believed.
whether or not to call a witness and how to examine witnesses
are tactical decisions. Great weight and deference are given to
tactical decisions made by the trial attorney. There is a
strong presumption that Counsel's conduct constituted
sound trial strategy.
has not met his burden to overcome the strong presumption
that Counsel's conduct was reasonable and constituted
sound trial strategy. Defendant failed to establish that
Counsel's strategic decision not to call Samuel as a
witness was deficient or that Defendant was prejudiced as a
result. Therefore, Defendant's claim for ineffective
assistance of counsel is without merit.
Court holds that the Commissioner's Report and
Recommendation dated January 31, 2019 should be adopted for
the reasons set forth therein. The Commissioner's
findings are not clearly erroneous, ...