Opinion
K97-09-0327I-R1 through K97-09-0349I-R1 ID No. 9709001510
Submitted: July 10, 2002
Decided: July 15, 2002
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Stephen R. Welch, Jr., Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Albert L. Tilghman, pro se.
ORDER
Upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) The defendant, Albert L. Tilghman ("Tilghman"), was found guilty by a jury on May 6, 19 98 of eighteen counts of Delivery of Cocaine, 16 Del. C. § 4751; one count of Trafficking in Cocaine, 16 Del. C. § 4753; one count of Possession of Cocaine with the Intent to Deliver, 16 Del. C. § 4751; one count of Possession of Marijuana, 16 Del. C. § 4754; one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771; and one count of Conspiracy in the Second Degree, 11 Del. C. § 512. On August 28, 1998 the Court sentenced Tilghman to 98 years in prison followed by probation.
A timely notice of appeal was filed. On appeal, the Delaware Supreme Court affirmed Tilghman's convictions and sentences. Next, Tilghman filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Tilghman alleges four grounds for relief including ineffective assistance of counsel.
Tilghman v. State, Del. Supr., No. 419, 1998, Berger, J. (May 3, 1999) (ORDER).
(2) The Court referred this motion to Superior Court Commissioner Andrea M. Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that Tilghman's postconviction motion should be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice.
(3) No objections to the Report have been filed.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated June 21, 2002,
IT IS ORDERED that:
(A) The well-reasoned Commissioner's Report and Recommendation is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DISMISSED.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
FREUD, Commissioner June 21, 2002
On May 6, 1998 the Defendant, Albert L. Tilghman ("Tilghman") was found guilty by a jury as charged of eighteen counts of Delivery of Cocaine, 16 Del. C. § 4571; one count of Trafficking in Cocaine, 16 Del. C. § 4753; one count of Possession of Cocaine with the Intent to Deliver, 16 Del. C. § 4751; one count of Possession of Marijuana, 16 Del. C. § 4754; one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771; and one count of Conspiracy in the Second Degree, State v. Tilghman ID No. 9709001510 June 21, 2002 11 Del. C. § 512. On October 28, 19 98 the Court sentenced Tilghman to 98 years in prison followed by probation.
A timely notice of appeal was filed. On appeal, the Supreme Court affirmed Tilghman's conviction and sentence. Next, Tilghman filed the pending postconviction motion in which he raises four grounds for relief including ineffective assistance of counsel.
Tilghman v. State, Del. Supr., No. 419, 1998, Berger, J. (May 3, 1999) (ORDER).
I. FACTS
The following is a summary of the facts as noted by the Supreme Court in its opinion:
On September 2, 1997, two Dover Police officers were conducting surveillance of a South New Street home. They observed two men, later identified as Tilghman and Johnnie White, Jr., on the porch and sidewalk in front of the house. A woman approached Tilghman, who reached into the "crotch area" of his shorts, removed a plastic bag containing a white substance, and then handed something to the woman. She gave Tilghman an undetermined amount of money and then left the area. The woman returned to the house a short time later and engaged in a similar transaction with Tilghman. Within minutes another woman approached the porch and repeated the process. While those transactions were taking place, White was standing approximately fifteen to twenty feet from the porch, looking up and down the street. After another similar transaction, Tilghman and White went to the railing of the porch and Tilghman took out the bag containing the white substance. Tilghman sliced the white substance and left all the pieces in the baggie.
After two more transactions, one police officer left the surveillance post to arrange for an arrest. The other officer, who continued to watch Tilghman, observed a total of 18 transactions. He also observed Tilghman making what appeared to be a marijuana cigarette.
When the backup police officers arrived, they arrested Tilghman and White. The officers searched Tilghman and found $275.00 in cash, 2.2 grams of marijuana, and 6.95 grams of crack cocaine. The crack cocaine was in a plastic bag in a pouch that had been sewn into the front of Tilghman's boxer shorts. The officers also arrested Veronica Burns, who was the last person to transact business with Tilghman. Burns had in her possession 0.18 of a gram of crack cocaine.
At trial, Tilghman objected to the admission of the cocaine and marijuana found at the time of the arrests. Tilghman argued that the State failed to establish a chain of custody because the evidence had been placed in the evidence storage locker on September 2, 1997, but was no logged into the evidence record until September 4, 1997. The Superior Court allowed the contraband into evidence after an evidence technician from the Dover Police Department testified about the alleged "gap" in the chain of custody.
II. TILGHMAN'S CONTENTIONS
In his motion for postconviction relief, Tilghman asserts the following four grounds for relief:
Ground one: Ineffective assistance of counsel. Counsel refused to file colorable claims as defendant requested which prejudiced the defendant.
Ground two: Jurisdiction: Trial Judge overlooked proceedings under fairness of the law which prejudiced the defendant.
Ground three: Prosecutorial Misconduct. Conspiracy charge did not have probable cause, defendant was indicted without any evidence or facts which prejudiced the outcome.
Multiplicity wasn't raised because lawyer did not file and by not doing so counsel tried to have this issue procedurally barred. To do so would show prejudice to the defendant because plain error shows on the face of defendant's case under the law therefore review must be given.
III. PROCEDURAL CONSIDERATIONS
Under Delaware Law the Court must first determine whether Tilghman has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within three years of the conviction becoming final. Tilghman's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Tilghman's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for the procedural fault and (2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction."
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Arguably each of Tilghman's claims are premised on allegations of ineffective assistance of counsel due to his catch all claim of ineffectiveness in his first ground for relief. Thus, Tilghman has minimally raised counsel's effectiveness in his four grounds for relief. Tilghman has therefore seemingly alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. These types of claims are not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Tilghman, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance"; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) ("Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687. See Dawson, 673 A.2d at 1190.
Id. at 694. Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170 1172 (1992).
Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997) Younger v. State, 580 A.2d at 556; Robinson v. State, Del. Supr. 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER) Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, Mem. Op. at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, Tilghman attempts to show cause for his procedural default by making merely conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Tilghman's Rule 61 petition and should result in summary dismissal for each of his ineffective assistance of counsel claims. The Supreme Court found no error in the trial.
See e.g. Wright, 671 A.2d at 1356; Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 19 92) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).
IV. CONCLUSION
After reviewing the record in this case, it is clear that Tilghman has failed to avoid the procedural bars of Rule 61(i). Consequently, I recommend that Tilghman's postconviction motion be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice.