Free Response to Habeas Petition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Petitioner, : : v. : : THOMAS L. CARROLL, : Warden, and CARL C. DANBERG, : Attorney General for the State of Delaware, : : Respondents. : ANDREW E. WARRINGTON,

Civ. Act. No. 06-66-GMS

ANSWER Pursuant to Rule 5 of the Rules Governing Section 2254 Actions, 28 U.S.C. foll. § 2254, respondents state the following in response to the petition for a writ of habeas corpus: In September 2000, the petitioner, Andrew Warrington ("Warrington"), and his brother, Robert Warrington, were arrested, and the two were subsequently indicted on charges of first degree murder, two weapons offenses, and first degree conspiracy. See Del. Super. Ct. Crim. Dkt. Items 1 & 2 in case no. 0008014979. In November 2001, both Warrington brothers were found guilty by a Superior Court jury of first degree murder, possession of a deadly weapon during the commission of a felony, and first degree conspiracy. Warrington v. State, 2006 WL 196437, *1 (Del. Jan. 24, 2006). Warrington was sentenced to life imprisonment plus twentyfive years. Id. Warrington's convictions and sentence were affirmed on direct appeal.

Warrington v. State, 840 A.2d 590 (Del. 2003). In March 2004, Warrington moved for postconviction relief under Superior Court Criminal Rule 61. In January 2005, after consideration of defense counsel's response, the prosecution's answer and an evidentiary hearing, Superior Court denied Warrington's

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postconviction motion and Warrington appealed. See Warrington, 2006 WL 196437 at *1. The Delaware Supreme Court affirmed the decision of the Superior Court on January 24, 2006. Id. Facts As detailed by the Delaware Supreme Court in Warrington v. State, 840 A.2d 590, 591 (Del. 2003), the facts leading to Warrington's arrest and conviction are as follows: Robert Wesley Warrington ("Wes"), then 22, and Andrew Warrington ("Drew"), then 18, are brothers who lived with their father at 100 Port Lewes in Sussex County. Wes owed an acquaintance, Jesse Pecco, approximately $800 for drugs that Wes had consumed instead of selling. In order to partially repay the debt, Wes forged a check from his father's bank account, making it out to himself in the amount of $700. Wes gave the check to Pecco on Friday, August 11, 2000, and the two men agreed to meet on Monday to cash the check. Pecco did not go to the meeting place. Instead, he drove to 100 Port Lewes, and parked his car directly behind Wes's car so as to immobilize it. Pecco then entered the dwelling through its unlocked front door. Drew, who was upstairs watching television, heard shouts coming from the first floor. When he went downstairs to see what was happening, he found Pecco involved in a physical struggle with Wes. Drew soon realized that the two were fighting over control of a knife that Pecco was holding. Drew struck Pecco from behind, causing him to release the knife. According to Wes, Pecco then had the opportunity to leave the house, but instead chased Drew, who had fled up the stairs. Both brothers maintain that Pecco was the aggressor in the fight, and that they believed he posed a threat. The two brothers testified that they gained the upper hand as Wes stabbed Pecco repeatedly with the knife and Drew struck him repeatedly with a fireplace poker. Ultimately it was determined that Pecco sustained 13 stab wounds, including one that penetrated his left lung, and one that penetrated his heart. Expert testimony at trial revealed that he also suffered eight blunt-force blows to the head, causing a fractured skull and subdural hemorrhaging. Among Pecco's injuries were deep incise stabs to his hands, characteristic of defensive wounds. During the altercation, a 911 call was made from the Warrington residence. DNA from blood marks found on the telephone used to make the call matched Pecco's DNA. One of these marks was located next to the "one" button on the telephone, indicating that it was Pecco who dialed the emergency number. Drew gave a conflicting account, saying that it was he who dialed the number, only to have Pecco knock the phone from his hands. The jury listened to the sounds of the fight, as recorded on the 911 tape, before reaching its conclusion regarding selfdefense. The tape revealed that, towards the end of the fight, Pecco was pleading

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with the brothers to stop attacking him. He asked, "Why are you guys trying to kill me?" to which one of the brothers responded, "good reasons." As he died, Pecco said, "Wes, show me some love. Give me a hug before I die. Give me a hug." Testimony demonstrated that Drew responded by kicking him in the face and telling him to shut up. Discussion In his petition for federal habeas relief, Warrington raises nine grounds for relief: (1) his counsel provided ineffective assistance for a variety of reasons at trial and on appeal (D.I. 1 at 6; D.I. 5 at 10); (2) his grand jury indictment was faulty (D.I. 1 at 7; D.I. 5 at 11); (3) the prosecution was vindictive in nature (D.I. 1 at 9; D.I. 5 at 12); (4) his conviction was obtained by way of inadmissible evidence (D.I. 1 at 11; D.I. 5 at 13); (5) there was insufficient evidence to support the conviction (D.I. 1 at 13; D.I. 5 at 14); (6) Brady violations (D.I. 1 at 14; D.I. 5 at 15); (7) his conviction was obtained through use of out of court statements (D.I. 1 at 16; D.I. 5 at 16); (8) jury instructions on self defense were faulty (D.I. 1 at 18; D.I. 5 at 17); and (9) he was improperly denied counsel at the postconviction evidentiary hearing (D.I. 1 at 22; D.I. 5 at 18). Claim 1 ­ Ineffective assistance of trial and appellate counsel A state petitioner seeking federal habeas relief must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b); Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Lundy, 455 U.S. 509, 515 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971); Alston v. Redman, 34 F.3d 1237, 1241-42 (3d Cir. 1994). Warrington presented the following claims of ineffective assistance of counsel to the Delaware Supreme Court on appeal from the denial of his state postconviction motion, thus exhausting these claims: trial counsel failed to properly investigate and challenge the grand jury indictment; trial counsel failed to challenge the admissibility of improperly collected evidence; trial counsel failed to move for a change of venue; trial counsel failed to move for severance; trial counsel failed to adequately prepare Warrington for trial

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because counsel was on vacation; trial counsel failed to object to a statement made under the influence of marijuana; and counsel was ineffective on appeal by representing that Warrington believed the intruder deserved to die. See Smith v. Digmon, 434 U.S. 332, 333-34 (1978); Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). These claims, however, do not provide a basis for relief. Section 104 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, codified as 28 U.S.C. § 2254, restricts the scope of collateral review of convictions and sentences for persons in custody pursuant to the judgment of a state court. As amended, § 2254(d) states: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceeding unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412 (2000); Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000); Werts v. Vaughn, 228 F.3d 178, 196-97 (3d Cir. 2000); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 885 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999) (determining the standard of review governing petitions for a writ of habeas corpus under revised § 2254(d)). Thus, under revised § 2254, a habeas petitioner is not entitled to relief unless he can establish that the decision of the state court was contrary to, or involved an objectively unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir.), cert. denied, 537 U.S. 1049 (2002); Matteo, 171 F.3d at 885; Lawrie v. Snyder, 9 F. Supp. 2d 428, 434

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(D. Del. 1998).

"A state court decision is contrary to Supreme Court precedent under §

2254(d)(1) where the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir.

2005) (citations and internal quotations omitted). A state court decision is an unreasonable application if the court identifies the correct governing legal rule based on Supreme Court precedent but unreasonably applies it to the facts of the particular case. Id. (citations omitted). Moreover, factual determinations by state trial and appellate courts are presumed correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding. See 28 U.S.C. §§ 2254(d)(2), (e)(1). See also Williams, 529 U.S. at 402-13; Affinito v. Hendricks, 366 F.3d 252, 256-57 (3d Cir. 2004); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001). The clearly established federal law which governs ineffective assistance of counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S. 668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). In Strickland, the United States Supreme Court articulated a two-part test for evaluating an ineffective assistance of counsel claim. First, a petitioner must demonstrate that counsel's performance at trial or on appeal fell below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. In evaluating whether counsel performed reasonably, a court "must be highly deferential." Id. at 689.

Therefore, a petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quotation omitted). Second, a

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petitioner must illustrate that counsel's ineffective performance caused prejudice. See Strickland, 466 U.S. at 687. In order to demonstrate prejudice, the petitioner must show that but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694. In this case, the Delaware state courts correctly identified the two-prong Strickland standard applicable to Warrington's ineffectiveness claims. Thus the state supreme court's denial of the claims was not contrary to clearly established federal law. See Williams, 529 U.S. at 406; Jacobs, 395 F.3d at 100. Moreover, the state courts reasonably applied the rule to the specific facts of Warrington's case. See 28 U.S.C. § 2254(d)(1). In the first instance, Warrington complains that trial counsel failed to investigate or challenge the admissibility of improperly collected evidence. D.I. 1 at 6; D.I. 5 at 10. This claim was denied by the trial court as conclusory. See State v.

Warrington, ID No. 0008014979, letter op. at 10 (Del. Super. Ct. Jan. 6, 2005). The record shows that counsel for both defendants objected to the admission of two sweatshirts (State's Ex. Nos. 7 & 8) on the basis of the Warrington brothers' contention that the clothing had been mislabeled by police, but were overruled. See State's Appendix at B-28-46, in Del. Supr. Ct. No. 34, 2005. Without a basis in the record for the claim, the state court properly denied

Warrington's claim under Strickland. Warrington also complains that trial counsel failed to challenge the grand jury's indictment, which was allegedly obtained by way of "fruit of the poisonous tree." D.I. 5 at 10. In his postconviction motion, Warrington presented several claims regarding the grand jury indictment, including a related ineffectiveness claim, which were denied by the trial court as without factual or legal merit or dismissed as conclusory. See Warrington, letter op. at 5-6. The state court's application of the Strickland standard was not unreasonable based upon the record.

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Warrington also asserts his trial attorney was ineffective in failing to move for a change of venue in the face of massive pre-trial publicity. D.I. 5 at 10. Trial counsel testified at the evidentiary hearing that he did not consider filing such a motion because they were never granted in his experience, and he preferred to use his time on other efforts. See State's Appendix at B144-46, 148, 150-51, in Del. Supr. Ct. No. 34, 2005. The trial court agreed with this assessment, ruling that despite some publicity, it was not difficult to seat 12 impartial jurors, and a motion for change of venue would have been denied. See Warrington, letter op. at 6-7; see also Riley v. Taylor, 277 F.3d 261, 273 n.1 (3d Cir.) (en banc), approving, 237 F.3d 300, 322 (3d Cir. 2001) (holding that state court finding of impartiality after pre-trial publicity was entitled to deference). Because Warrington was unable to demonstrate any prejudice, the trial court denied this ineffectiveness claim. Id. Similarly, trial counsel did not consider filing a motion for severance because it was his impression the brothers wanted to be tried together, there was an advantage in having the cases tried together, and a risk in severing them because Warrington might not have the benefit of his brother's testimony if Warrington was tried first. See State's Appendix at B145, 172, in Del. Supr. Ct. No. 34, 2005. The trial court found no deficiency on trial counsel's part in not filing a severance motion, nor did Warrington establish any prejudice. Warrington, letter op. at 7. Based on the record, the state court's determination that Warrington had not demonstrated that his trial counsel was constitutionally ineffective was not an unreasonable application of the Strickland framework. Warrington complains that trial counsel failed to prepare himself or his client for trial because counsel was on vacation for three months prior to trial. D.I. 5 at 10. To the extent this claim was developed during the evidentiary hearing, the trial court rejected the notion that trial counsel failed to adequately communicate with Warrington or that the defense team failed to

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conduct investigations prior to trial. Warrington, letter op. at 10, 12-13. The trial court found that trial counsel was prepared for trial, and worked effectively with the defense team of Warrington's brother. Id. at 10. Moreover, as to his general claim of unpreparedness by trial counsel, Warrington failed to allege what additional preparations his counsel should have made or how those preparations would have altered the outcome of the trial. As to specific allegations of his trial counsel's lack of preparation, Warrington claims that trial counsel should have objected to statements given while under the influence of narcotics or marijuana. D.I. 1 at 6; D.I. 5 at 10. Warrington's claim that trial counsel should have objected to his statement to police that was allegedly given while under the influence of marijuana was presented to the state supreme court on appeal from the denial of Warrington's postconviction motion, and is therefore exhausted. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. The state supreme court rejected all of Warrington's ineffectiveness claims, finding that Warrington had failed to demonstrate prejudice. Warrington v. State, 2006 WL 196437, *1 (Del. Jan. 24, 2006).

Warrington's statement was used in the State's case-in-chief only to establish that he admitted having possession of a fireplace poker during the incident. See State's Appendix at B-76-77, in Del. Supr. No. 34, 2005. Warrington testified that he used the poker to knock the knife out of the victim's hand. Id. at B-131-32. The issue at trial was whether the victim's death was the result of self-defense or murder. Ultimately, it was the tape recording of the 911 call, in which the victim could be heard pleading for his life, see Warrington, 840 A.2d at 591, that apparently convinced the jury to find Warrington guilty of murder. Warrington's statement, on the other hand, most probably resulted in his acquittal on the second deadly weapon count involving the knife. The state supreme court's decision that Warrington failed to demonstrate prejudice from this claim was, therefore, a reasonable application of Strickland.

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Finally, Warrington alleges that appellate counsel "appealed from the standpoint that the petitioner willed the intruder's death, which is not true." D.I. 5 at 10. In other words,

Warrington argues that his appellate counsel should have reargued the self defense justification presented at trial. The trial court rejected this claim, ruling that Warrington failed to establish either deficient performance or prejudice as to the work product of appellate counsel. Warrington, letter op. at 13. The record shows that Warrington and his brother testified in support of their claim of self-defense that the victim continued to lunge at them and refused to leave their home, despite his injuries. See State's Appendix at B-112-22, 134-35, in Del. Supr. Ct. No. 34, 2005. The jury apparently believed otherwise after hearing the 911 tape. Rather than attempt to reargue the self defense claim, Warrington's counsel elected to present a claim that the jury instruction concerning the self defense claim was inadequate. See Appellant' Opening Brief s in Del. Supr. Ct. Nos. 72, 2002 & 74, 2002. Appellate counsel had no obligation to raise any particular claim; to the contrary, counsel was obliged to present the issue or issues he deemed most likely to be successful on appeal. See Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel need not raise every non-frivolous claim). Given the trial record, including the 911 tape, the state court's rejection of Warrington's claim of ineffective assistance of appellate counsel was a reasonable application of Strickland. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (Strickland is proper standard for evaluating effectiveness of appellate counsel). Claim 2 ­ Faulty grand jury indictment Warrington contends that he was subjected to a faulty grand jury indictment because it was not "perfected," and the evidence allegedly presented to the grand jury was improperly collected, "enhanced" to his detriment, and included statements elicited from Warrington while under the influence of marijuana. (D.I. 1 at 7; D.I. 5 at 11). However, claims of deficiencies in

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state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (relying on United States v. Mechanik, 475 U.S. 66 (1986)); Campbell v. Greene, 2006 WL 2040062 (N.D.N.Y. July 19, 2006) (citing cases). See also Hurtado v. California, 110 U.S. 516 (1884) (indictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment). Furthermore, Warrington presented his claim of a faulty indictment without

having presented the issue on direct appeal. Under Delaware Superior Court Criminal Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is thereafter barred unless the petitioner shows cause for the procedural default and actual prejudice. The state supreme court found this claim to be procedurally defaulted. See Warrington, 2006 WL 196437, *2 (Del. Supr. Ct. Jan. 24, 2006). Warrington, having failed to comply with Criminal Rule 61(i)(3), failed to comply with the relevant state procedural requirements. See Lawrie v. Snyder, 9 F. Supp.2d 428, 451 (D. Del. 1998); Flamer v. Chaffinch, 827 F. Supp. 1079, 1087-88 (D. Del. 1993) (finding that Criminal Rule 61(i)(3) is an adequate state ground to preclude federal habeas review), aff' 68 F.3d 710 (3d Cir. 1995) (en banc). d, Thus, federal habeas review of this claim is barred unless Warrington establishes cause for his procedural default in the state courts and actual prejudice. See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992); Dawson v. Snyder, 988 F. Supp. 783, 804-05 (D. Del. 1997); Johnson v. Ellingsworth, 783 F. Supp. 215, 218-21 (D. Del. 1992). To demonstrate cause for a procedural default, a petitioner must show that "some objective factor external to the defense" precluded his compliance with state procedural rules. McCleskey v. Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 487 (1986);

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Dawson, 988 F. Supp. at 805. To establish prejudice under the cause and prejudice standard, a petitioner "must show 'not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 179 (1982)); Dawson, 988 F. Supp. at 804-05. Warrington has alleged ineffective assistance of trial counsel as cause for his failure to raise this issue at trial and on direct appeal. D.I. 1 at 8. As noted supra, Warrington presented his claim that his trial counsel was ineffective in failing to attack the indictment in his postconviction motion. See Carrier, 477 U.S. at 488-89 (an allegation of constitutionally

ineffective assistance of counsel as cause for a procedural default in a state court must itself be independently exhausted). The state court rejected Warrington's claim that counsel was

ineffective for failing to attack the indictment as merely conclusory, and found no basis in the record of a defective indictment. See Warrington, 2006 WL 196437 at *1; Warrington, letter op. at 5-6. In Delaware, "there is no judicial regulation of the kind or quantum of evidence a Grand Jury may consider in the performance of its common law accusatorial function." Steigler v. Superior Court, 252 A.2d 300, 304 (Del. 1969). Consequently, counsel's failure to challenge the evidence presented to the grand jury could not have been successful, and counsel is not required to raise futile claims. See Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000) ("counsel cannot be deemed ineffective for failing to raise a meritless claim"). Thus, Warrington's claim of ineffective assistance as cause for his procedural default cannot be sustained, and this claim must be dismissed.

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Claim 3 ­ Vindictive prosecution The original police report by officers who responded to the scene indicated under a heading of "Homicide Circumstance" that a burglar had been killed by a private citizen. See Appellant's Appendix at A-93, in Del. Supr. Ct. No. 34, 2005. Based on this report, Warrington contends that the prosecution was vindictive because the police at the scene considered it a case of "`Criminal Killed by Private Citizen.'" D.I. 5 at 12. Warrington presented this claim to the state supreme court upon appeal from the denial of his postconviction motion, thus exhausting the claim. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. Warrington, however, failed to raise this claim on direct appeal, and thus the claim was procedurally barred under Criminal Rule 61(i)(3) for failure to have raised the claim during the proceedings leading to the judgment of conviction. As a result, federal habeas review of this claim is barred unless

Warrington establishes cause for his procedural default in the state courts and actual prejudice. See Coleman, 501 U.S. at 750-51; Caswell, 953 F.2d at 861-62; Dawson, 988 F. Supp. at 804-05; Ellingsworth, 783 F. Supp. at 218-21. To the extent that Warrington has alleged ineffective assistance of counsel as cause for his failure to raise this issue at trial or on direct appeal, that claim was also rejected by the state courts. Warrington, 2006 WL 196437, *1; Warrington, letter op. at 6. Moreover, Warrington cannot establish a viable claim of vindictive prosecution. See United states v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989) ( holding that prosecutorial vindictiveness may occur when the government penalizes a defendant for invoking legally protected rights). Warrington failed to show that he exercised any right that would have

triggered a reaction by the prosecutor. See United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982) ("A charging decision does not levy an improper 'penalty' unless it results solely from the defendant's exercise of a protected legal right, rather than the prosecutor's normal assessment of

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the societal interest in prosecution"); see also United States v. Hooton, 662 F.2d 628, 634 (9th Cir. 1981) (no prosecutorial vindictiveness where defendant could not show any animus on the part of the members of the Attorney General's office who made the charging decision). Because Warrington cannot establish cause or prejudice to overcome his procedural default in state court, his claim must be dismissed. Claim 4 ­ Inadmissible evidence Warrington next asserts that his conviction was obtained through inadmissible evidence consisting of an uncertified "expert", a statement given while under the influence of marijuana, and an untested piece of evidence collected by a paramedic. D.I. 5 at 13. Specifically,

Warrington complains that the prosecution's fingerprint expert, Mr. Hegman, although having previously testified as an expert in Delaware courts, had not been certified by the F.B.I. as a latent print examiner and thus he should not have been allowed to testify as an expert. See Appellant' Opening Brief at 24-26, in Del. Supr. Ct. No. 34, 2005. Warrington also alleges that s his statement to the police was made while he was under the influence of marijuana. Id. The third part of his claim of inadmissible evidence relates to the failure of the state to test a black sweatshirt for blood. Id. These claims were viewed by the trial court primarily as claims of ineffective assistance of counsel, see Warrington, letter op. at 9, and after his motion for postconviction relief was denied, Warrington presented these claims to the state supreme court as one claim of inadmissible evidence consisting of a mixture of trial court error and attorney ineffectiveness. See Appellant's Opening Brief at 24-26, in Del. Supr. Ct., No. 34, 2005. The state supreme court rejected all of Warrington's ineffectiveness claims because Warrington was unable to demonstrate that any alleged error on the part of trial counsel resulted in prejudice to him. Warrington, 2006 WL 196437, *1. Based on the record, the state court's determination that

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Warrington had not demonstrated that his trial counsel was constitutionally ineffective was not an unreasonable application of the Strickland framework. Claim 5 ­ Insufficient evidence In his fifth claim, Warrington asserts that there was insufficient evidence presented at trial to convict him of first degree murder because there was no evidence that he intended to kill the "intruder." D.I. 5 at 14. Warrington presented this claim to the state supreme court on appeal from the denial of his postconviction motion, thus exhausting the claim. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. Warrington, however, failed to raise this claim on direct appeal, and thus the claim was procedurally barred under Criminal Rule 61(i)(3) for failure to have raised the claim during the proceedings leading to the judgment of conviction. As a result, federal habeas review of this claim is barred unless Warrington establishes cause for his procedural default in the state courts and actual prejudice. See Coleman, 501 U.S. at 750-51; Caswell, 953 F.2d at 861-62; Dawson, 988 F. Supp. at 804-05; Ellingsworth, 783 F. Supp. at 218-21. To the extent that Warrington has alleged ineffective assistance of counsel as cause for his failure to raise this issue on direct appeal, that claim was also rejected by the state courts. Moreover, the Delaware Supreme Court, considering the claim under the standards of Jackson v. Virginia, 443 U.S. 307, 319 (1979), found that "there was ample evidence presented at trial to support Warrington's convictions of Murder in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Conspiracy in the First Degree." Warrington, 2006 WL 196437 at *2. Thus, had Warrington's counsel raised this claim either at trial or on appeal, the claim would not have been successful, and thus Warrington cannot demonstrate prejudice. Because Warrington cannot establish cause or prejudice to overcome his procedural default in state court, his claim must be dismissed.

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Claim 6 ­ Brady violations Warrington asserts that the prosecution failed to disclose notes or materials that were used by the prosecution DNA expert during her trial testimony. D.I. 1 at 14; D.I. 5 at 15. Warrington presented this claim to the state supreme court on appeal from the denial of his postconviction motion, thus exhausting the claim. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. Trial counsel, when asked at the evidentiary hearing, knew of no factual basis for such a claim. See Warrington, letter op. at 14-15. The trial court, therefore, denied the claim as conclusory. Id. at 15. The state supreme court likewise found this claim to be lacking in merit upon its review of the record. See Warrington, 2006 WL 196437, *2. In light of the evidence presented in the state-court proceeding, the state court's decision is not objectively unreasonable. Claim 7 ­ Out of court statements Prosecution DNA expert Jennifer Luttman, during the course of her trial testimony, referred to a blood examination sheet filled out by a serologist who was in training under the direction of another serologist in Luttman's office at the time. See Appellant' Appendix at As 49a, in Del. Supr. Ct. No. 34, 2005. In his seventh claim, Warrington asserts that his conviction was improperly obtained through out of court statements consisting of the notes made by the trainee who did not testify. D.I. 1 at 16; D.I. 5 at 16. This claim was presented to the state courts in Warrington's postconviction proceeding, thus exhausting the claim. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. The trial court found no merit to this claim because under Delaware Rule of Evidence 703, an expert witness is entitled to rely upon information normally used in the expert's field of expertise. Warrington, letter op. at 15. The trial court also found trial counsel was not ineffective for not objecting to the expert's testimony. Id. On appeal from the denial of postconviction relief, the state supreme court also found no factual basis for

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Warrington's assertion that inadmissible hearsay in the form of testimony by a DNA expert was admitted at trial, a decision that is not objectively unreasonable in light of the evidence presented in the state-court proceeding. See Warrington, 2006 WL 196437, *2. Claim 8 ­ Jury instructions Next, Warrington complains that the court improperly instructed the jury regarding defense in one's own home. D.I. 5 at 175. Warrington raised this claim on direct appeal from his conviction, thus exhausting the claim. See Digmon, 434 U.S. at 333-34; Swanger, 750 F.2d at 295. Warrington, however, only advances a state law claim, and federal habeas review of the issue is unavailable. 28 U.S.C. § 2254(a); see Estelle v. McGuire, 502 U.S. 62, 67-8 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984); Riley v. Taylor, 277 F.3d 261, 310 n. 8 (3d Cir. 2001); Guinn v. Carroll, 2004 WL 758350, *1 (D. Del.). The Delaware Supreme Court determined that the trial court's instructions to the jury concerning the limitation on the defense of self-defense within a dwelling correctly stated the law. Warrington, 840 A.2d at 593-94. "State courts are the ultimate expositors of state law . . . ." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); accord Lambert v. Blackwell, 387 F.3d 210, 239 n.24 (3d Cir. 2004); Humanik v. Beyer, 871 F.2d 432, 436 (3d Cir. 1989). A habeas petitioner challenging state jury instructions must demonstrate that the jury instructions deprived him of a defense which federal law provided to him. Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997). Warrington has made no showing that federal law provides justification for the use of deadly force applicable to his actions in this case. See id. As a result, Warrington's claim does not rise to the level of a federal constitutional claim, and his state law claim is not cognizable in federal habeas review. See Oliver v. Hendricks, 2006 WL 1540823, *4-5 (D.N.J. May 31, 2006). Claim 9 ­ Denial of counsel at postconviction hearing

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In his final claim, Warrington asserts that he was improperly denied appointed counsel at his postconviction evidentiary hearing. Without question, Warrington had no right to counsel in the state postconviction proceedings. Murray v. Giarratano, 492 U.S. 1, 7-9 (1989) (plurality); Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). Moreover, claims of error in state

postconviction proceedings are collateral to the conviction and sentence, and do not give rise to a claim for federal habeas relief. See Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2005) (quoting Hassine v. Zimmerman, 160 F.3d 941, 954-55 (3d Cir. 1998)). Because, under settled law, Warrington's complaint that he was denied appointed counsel at his postconviction evidentiary hearing does not describe constitutional error, he is not entitled to relief. Conclusion Based upon the Superior Court docket sheet, it appears that transcripts of Warrington's status conference (June 22, 2001), trial (Nov. 5-27, 2001), sentencing (Jan. 18, 2002), and postconviction evidentiary hearing (Oct. 28, 2004 & Dec. 9, 2004) have been prepared. In the event that the Court directs the production of any transcript, respondents cannot state with specificity when such transcript would be available. However, respondents reasonably anticipate that such production would take 90 days from the issuance of any such order by the Court. Certified copies of the state supreme court records of Warrington's direct appeal (Del. Supr. Ct. No. 72, 2002 & 74, 2002) have been filed with the Court in Robert W. Warrington, Civ. Act. No. 06-67-SLR.

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For the foregoing reasons, the petition for a writ of habeas corpus should be dismissed without further proceedings.

/s/ Elizabeth R. McFarlan Deputy Attorney General Del. Bar ID No. 3759 Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 [email protected] Counsel of Record /s/ Kim Ayvazian Deputy Attorney General Del. Bar ID No. 2525 114 E. Market St. Georgetown, DE 19947 (302) 856-5353 Date: August 11, 2006

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CERTIFICATE OF SERVICE I hereby certify that on August 11, 2006, I electronically filed an answer to a habeas petition with the Clerk of Court using CM/ECF. I also hereby certify that on August 11, 2006, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Andrew E. Warrington SBI No. 339043 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 [email protected]

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