Submitted: June 25, 2019
to Withdraw as Counsel. GRANTED.
for Postconviction Relief. DENIED.
Charles E. Buffer Judge
Defendant was indicted for two separate offenses that
occurred over two days in 2013. The grand jury charged that the
Defendant and Jared Wiggins robbed a convenience store on
February 2, 2013 and then, on February 3, 2013 were
attempting to rob a gas station/convenience store when Gray
was confronted by a police officer and Gray shot the officer
in the face.
two incidents led to a joint indictment, which the Court
severed for trial. The attempted murder of the officer and
related charges went to trial and the
Defendant was convicted, then the robbery charges from the
previous day went to trial and he was convicted
again. All of this led to a very long jail
sentence for Mr. Gray. Direct appeals of his convictions resulted
in their affirmance by the Delaware Supreme
filed a pro se motion for relief under Rule
Pursuant to his request, counsel was appointed to prosecute
his Rule 61 case. Several months later, counsel has returned
to the Court and advised that, despite diligent review of the
records of both convictions, counsel has not unearthed any
arguably meritorious issues to present to the
copy of counsel's motion to withdraw from representation
as well as his "no merit" brief was forwarded to
Mr. Gray. He was invited to alert the Court of any
issues he felt needed to be raised that had not been placed
before the Court. Gray has responded with three subjects
he feels his attorneys may have missed.
First, Gray would like to know how the victim was able to
identify him after being shot. Gray believes there may have
been "coercion" in doing so. But assuming
the identification he is referring to is that of the police
officer (who was shot), there is no evidence, or even reason
to suspect, that the officer was coerced into identifying the
Defendant. If he is referring to the robbery the day before,
the store clerk testified he knew Defendant from the
Second, Gray claims that his trial attorney was
"forced" to represent him despite the
attorney's request to withdraw from
representation. Gray says he "don't believe his
performance during trial was 100%." Assuming for
the moment that the record supports Gray's claim that
counsel asked to withdraw, a vague suspicion that
counsel's performance was not quite up to snuff is not a
cause and prejudice argument sufficient to overcome the
presumption of competence by defense counsel.
Finally, Defendant claims that the jury was biased against
him because of advance publicity about the case, which
involved the shooting of an active duty Wilmington police
officer. Claims of juror bias should have been
brought on direct appeal and Rule 61 provides Defendant no
avenue by which to assert such complaints. Even so,
screening jurors for bias or prejudice based upon any
pretrial publicity is standard questioning of jury panels in
this State. There is no reason to even suspect that
such questioning of the venire pool did not happen here. Gray
has failed to overcome the "cause and prejudice"
requirement to plead a case under Rule 61.
After reviewing counsel's motion to withdraw and the
record, including Defendant's original motion for relief,
the Court is satisfied that counsel's motion should be
GRANTED and Defendant's motion for
relief under Rule 61 should be DENIED.