Opinion

Hameen v. Delaware

Court: Court of Appeals for the Third Circuit
Filed: May 17, 2000
Cited by: 0 cases
Authority: More cited than 40.1%

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Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-17-2000

Hameen v. Delaware

Precedential or Non-Precedential:

Docket 96-9007

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Filed May 17, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-9007

ABDULLAH TANZIL HAMEEN, a/k/a

CORNELIUS FERGUSON

STATE OF DELAWARE

CORNELIUS E. FERGUSON, JR.,

a/k/a Abdullah Tanzil Hameen,

Appellant

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civ. No. 96-00306)

District Judge: Honorable Joseph J. Lonogobardi

Argued January 28, 1998

BEFORE: MANSMANN, GREENBERG, and MCKEE,

Circuit Judges.

Reargued February 22, 2000

BEFORE: GREENBERG, MCKEE, and RENDELL,

Circuit Judges.

(Filed: May 17, 2000)

John S. Malik (argued)

100 E. 14th Street

Wilmington, DE 19801

Joseph R. Slights, III

Kent A. Jordan (argued)

Morris, James, Hitchens & Williams

222 Delaware Avenue, 10th Floor

P.O. Box 2306

Wilmington, DE 19899

Attorneys for Appellant

Loren C. Meyers (argued)

Chief of Appeals Division

Timothy J. Donovan, Jr.

William E. Molchen

Thomas E. Brown

Deputy Attorneys General

Department of Justice

820 North French Street

Wilmington, DE 19801

Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. BACKGROUND

This matter comes before the court on an appeal by

Cornelius Ferguson, a/k/a Abdullah Tanzil Hameen, from

the denial of relief in this habeas corpus case. We have

considered each of Ferguson's contentions, and for the

reasons that follow, we will affirm the district court's order.

In 1992, a Delaware state jury convicted Ferguson of two

counts of first-degree murder as well as other charges

resulting from a single homicide and robbery. After a

penalty hearing, the jury unanimously found that the state

established three aggravating circumstances beyond a

reasonable doubt: (1) Ferguson previously had been

convicted of another murder or manslaughter or of a felony

involving the use of, or threat of, force or violence upon

another person, Del. Code Ann. tit. 11, S 4209(e)(i) (1995);

(2) Ferguson committed the murder while engaged in the

commission of, or attempt to commit, or flight after

committing or attempting to commit any degree of robbery,

id. S 4209(e)(j); and (3) Ferguson committed the murder for

pecuniary gain, id. S 4209(e)(o). The jury also unanimously

found, by a preponderance of the evidence, that the

aggravating circumstances outweighed the mitigating

circumstances.

The trial court then independently analyzed the evidence

and reached the same conclusions, though it considered

the robbery and pecuniary gain aggravators as one factor,

and placed no independent weight on the pecuniary gain

aggravator. App. at 138. In particular, the court concluded

"that the mitigating factors proven by [Ferguson] have been

proven by a preponderance of the evidence to be far

outweighed by the callous nature of this crime, the fact that

the murder took place during the attempted commission of

a robbery, the fact that [Ferguson] had previously been

convicted of a murder and an aggravated assault with a

firearm, the fact that [Ferguson] has demonstrated a

propensity for extremely violent activity every time he has

been released from prison, and [Ferguson's] almost cavalier

attitude toward the victim's death." Id. at 141. In

accordance with Delaware law at the time of sentencing,

the court imposed a death sentence for the first-degree

murder convictions because it determined that the

aggravating circumstances outweighed the mitigating

circumstances. The Delaware Supreme Court affirmed the

convictions and sentences on direct appeal. See Ferguson v.

State, 642 A.2d 772 (Del. 1994) (en banc).

Thereafter, Ferguson filed an unsuccessful petition for

post-conviction relief in the Delaware Superior Court, see

State v. Ferguson, 1995 WL 413269 (Del. Super. Ct. Apr. 7,

1995), and on appeal, the Delaware Supreme Court

affirmed its denial. See Ferguson v. State, 676 A.2d 902

(Del. 1995) (table). He then filed his unsuccessful habeas

corpus petition in the district court, leading to this appeal.

See Ferguson v. State, 1996 WL 1056727 (D. Del. Dec. 13,

1996). We are concerned on this appeal only with

sentencing issues.

The Supreme Court of Delaware set forth the facts of the

case as follows:

The record reflects that Ferguson shot and killed

Troy Hodges (`Hodges'). The homicide took place on the

night of August 5, 1991, in the parking lot of the Tri-

State Mall (the `Mall') in Claymont, Delaware. Ferguson

was accompanied by Tyrone Hyland (`Hyland').

Both Ferguson and Hyland lived in Chester,

Pennsylvania. Hodges, who was apparently a drug

dealer living in Wilmington, had negotiated to purchase

a half-kilogram of cocaine for $10,000 either directly

from Hyland or from a third party, with Hyland acting

as middleman. Hodges arranged to meet Hyland at the

Mall.

Hodges had a friend, Alvin Wiggins (`Wiggins'),

accompany him to the Mall. Wiggins was seventeen

years old at the time of these events. Wiggins was also

apparently a drug dealer. Wiggins testified at

Ferguson's trial.

According to Wiggins, before they drove to the Mall,

Hodges gave Wiggins a plastic bag holding two smaller

packages, each of which contained $5,000 in cash.

They then drove to the Mall and parked in the lower

lot. Wiggins testified that after they arrived at the Mall,

Hodges took one of the two packages of money and

instructed him to stay in his car until he received a

sign from Hodges or until he returned.

Hodges then left and entered a passageway leading to

the upper parking lot of the Mall. Hodges was no longer

visible to Wiggins. Wiggins waited for Hodges for

approximately ninety minutes. During that time, he

unsuccessfully attempted to contact Hodges via his

`beeper.' When Wiggins learned that someone had been

shot at the Mall, he drove away.

Ferguson gave a tape recorded statement to the

Delaware State Police on September 26, 1991. It was

admitted into evidence at trial during the State's case-

in-chief. In his statement, Ferguson admitted that he

was a passenger in a car driven by Hyland to the Mall

on the night of August 5, 1991. Ferguson stated that

he was sitting in the back seat of the car.

According to Ferguson, when they arrived at the

Mall, Hyland parked the car. Hodges got into the front

passenger seat of the car. Hyland and Hodges then

argued about money and drugs. According to

Ferguson, Hyland then clandestinely gave him a gun.

Ferguson stated that the gun was already cocked when

he received it. Ferguson pointed the gun at Hodges.

Hyland and Hodges continued to argue. Ferguson

stated that although the car was moving slowly

towards the Mall, Hodges opened the car door and tried

to leave the car. According to Ferguson, Hodges then

slapped at the gun, causing it to `accidentally'fire a

single shot. Ferguson claimed that he did not know

Hodges had been wounded and died, until days later.

Stewart Cohen (`Cohen') testified that on the night of

August 5, 1991, he was in the parking lot of the

K-Mart at the Tri-State Mall. Cohen stated that he

heard a `popping sound.' Cohen turned and saw a blue

Chevrolet Cavalier moving slowly in the parking lot.

Cohen stated that he saw a person shoved or jumping

out of the car. Cohen testified that this person then

ran towards him and collapsed on the sidewalk.

An autopsy revealed that Hodges died of massive

hemorrhaging due to a single gunshot wound. The

record reflects that the bullet, which was fired from

behind, entered his left side and travelled through his

body in an upward trajectory. The hole in Hodges' shirt

and the wound in his torso indicated that the muzzle

of the gun had been pressed against Hodges' body

when the shot was fired.

Ferguson v. State, 642 A.2d at 775-76 (footnotes omitted).

The Supreme Court of Delaware also noted that the gun

used in the shooting belonged to Ferguson. Id. at 776 n.4.

The critical issue on this appeal is attributable to the

trial court's having sentenced Ferguson under Delaware's

capital sentencing statute as amended effective November

4, 1991, even though Ferguson murdered Hodges on

August 5, 1991. The court employed the amended law as by

its terms it applies "to all defendants tried or sentenced

after its effective date." 68 Del. Laws ch.189,S 6 (1991).

Ferguson contends that inasmuch as the Delaware

legislature enacted the amendments after he murdered

Hodges, use of the amended law violated the Ex Post Facto

Clause of the United States Constitution.

Obviously, it is important in resolving the ex post facto

issue that we carefully consider the provisions of the capital

provisions both at the time of the offense and the time of

the sentencing, for if the amended law did not make

significant changes in the sentencing process, there hardly

could be an ex post facto problem. At the time that

Ferguson committed his offenses, in a Delaware capital

case the jury determined the sentence, and it could impose

a death sentence only if it unanimously found at least one

statutory aggravating circumstance beyond a reasonable

doubt, and concluded, after weighing the aggravating and

mitigating circumstances, that it should impose a death

sentence. Nevertheless, the statute did not require the jury

to impose a death sentence if the aggravating factors

outweighed the mitigating factors. In addition, although the

court instructed the jury as to the types of things that it

could take into account in making its decision, the statute

placed no limitations on what the jury could consider.

The amended law changed the foregoing procedure, and

the Delaware Supreme Court describes its capital

sentencing provision as follows:

Under Delaware law, as revised in 1991, a sentence of

death may be imposed only under the bifurcated

procedure prescribed by 11 Del. C. S 4209. That

statute requires the jury to determine, during the

penalty phase, (1) whether the evidence shows beyond

a reasonable doubt the existence of at least one

statutory aggravating circumstance and (2) whether, by

a preponderance of the evidence, the aggravating

circumstances outweigh any mitigating circumstances

found to exist. 11 Del. C. S 4209(c). The trial court,

after considering the recommendation of the jury, is to

decide the same questions. If the court concludes that

the answer to both questions is in the affirmative, it

must impose a sentence of death; otherwise, it must

impose a sentence of life imprisonment without the

possibility of probation, parole, or other reduction in

sentence. 11 Del. C. S 4209(d). Thus, the Superior

Court bears the ultimate responsibility for imposition

of the death sentence while the jury acts in an advisory

capacity `as the conscience of the community.' State v.

Cohen, Del. Supr., 604 A.2d 846, 856 (1992).

Wright v. State, 633 A.2d 329, 335 (Del. 1993).

The trial court in its "Findings After Penalty Hearing" at

the trial summarized the essential differences between the

law in effect on the date of Ferguson's offenses and the

amended law it applied at his sentencing:

[U]nlike a jury under the old law, this Court, under the

new law, may consider only whether or not aggravating

factors outweigh mitigating factors. The Court may not

in unfettered discretion refuse to impose a sentence of

death where aggravating factors are proven and found

to be of substantial weight and mitigating factors are

found to be of less weight. The Court may not consider,

in reaching its decision, mercy, societal concerns,

proportionality of the sentence to other sentences

imposed for Murder First Degree in other cases, or any

other issues not specifically pertaining to `the

particular circumstances or details of the offense[or]

. . . the character and propensities of the offender. . . .'

These factors most likely were considered by and may

have influenced the jury or individual jury members in

their decision under the prior statute to recommend or

fail to recommend death. Under that law, the jury

clearly acted as `the conscience of the community' and

could in its unfettered discretion recommend life as the

appropriate punishment for the crime and offender

even though it had found the aggravating factors to

outweigh the mitigating factors.

App. at 129-30 (emphasis in original, footnote omitted).

Ferguson argued in state court that application of the

amended sentencing statute in his case violated the Ex Post

Facto Clause because it eliminated the jury's unfettered

discretion to impose a life sentence even though it may

have determined that aggravating circumstances

outweighed mitigating circumstances, and instead required

the court to impose a death sentence if it made that same

finding. The Delaware Supreme Court rejected Ferguson's

ex post facto claim as "without merit," citing the following

reasons for its decision:

This Court has previously held that `the changes

effected by Delaware's new death penalty statute are

procedural,' because the 1991 amendments `merely

alter[ed] the method of determining imposition of the

death penalty. The quantum of punishment for the

crime of first-degree murder in Delaware remains

unchanged.' State v. Cohen, Del. Supr., 604 A.2d 846,

853 (1992). See Dobbert v. Florida, 432 U.S. 282, 293-

94, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977).

The restrictive nature of the advisory jury's findings

and the mandatory imposition of the death penalty by

the sentencing judge under the amended statute are

likewise `procedural,' and therefore do not implicate ex

post facto concerns. See State v. Cohen, 604 A.2d at

849, 853-54.

Ferguson `has cited no legal precedent or intervening

changes in the law that would undermine the ratio

decidendi of this Court's holding in Cohen on the ex

post facto issue.' Dawson v. State, Del.Supr., 637 A.2d

57, 61 (1994). Accordingly, we decline to overrule

Cohen. We adhere to our ex post facto holding in that

decision and its progeny. Accord Gattis v. State , Del.

Supr., 637 A.2d 808, 821 (1994); Wright v. State , Del.

Supr., 633 A.2d 329, 343 (1993); Red Dog v. State, Del.

Supr., 616 A.2d 298, 305-06 (1992).

Ferguson v. State, 642 A.2d at 783. In Dawson, Gattis,

Wright and Red Dog, the Delaware Supreme Court similarly

adhered to, and did not expand upon, its analysis in State

v. Cohen, 604 A.2d 846 (Del. 1992).

In view of the Delaware court's reliance in Cohen on

Ferguson's appeal, we now describe its ruling in Cohen,

though we will return to it later in this opinion after we

consider the germane United States Supreme Court

opinions. In Cohen, the Delaware court largely relied on

Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290 (1977),

which it cited for the proposition that, " `[e]ven though it

may work to the disadvantage of a defendant, a procedural

change [in the law] is not ex post facto.' " 604 A.2d at 853

(quoting Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298)

(second alteration in original). Dobbert was concerned with

a change in the sentencing process which, as is the case in

the amended Delaware sentencing law at issue here,

modified the functions of the court and jury. The Delaware

Supreme Court found that Dobbert was " `[t]he case most

analogous to the issue here. . . ." Id. It observed that the

death penalty statute under challenge in Dobbert " `simply

altered the methods employed in determining whether the

death penalty was to be imposed; there was no change in

the quantum of punishment attached to the crime.' . . .

That is precisely the issue before us." 604 A.2d at 853

(citation omitted). It concluded that,

[g]iven the teaching in Dobbert, it is clear that the

changes effected by Delaware's new death penalty

statute are procedural. The revisions in the new law,

like those in Dobbert, merely alter the method of

determining imposition of the death penalty. The

quantum of punishment for the crime of first-degree

murder in Delaware remains unchanged.

Id.

The Delaware Supreme Court also held in Cohen that its

"conclusions regarding the defendants' ex post facto claims

are buttressed by the recent case of Collins v. Youngblood,

497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)." Id. at

854. It noted that Collins overruled the ex post facto

analysis in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443

(1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620

(1898), leading the Delaware court to infer that,"by

rejecting Kring and Thompson, it is now beyond

peradventure that under Collins the new law survives an ex

post facto analysis." Id. at 854. The Delaware court

explained that "it is apparent that the new law does not

involve `a right that has anything to do with the definition

of crimes, defenses, or punishments, which is the concern

of the Ex Post Facto Clause.' " Id. (quoting Collins, 497 U.S.

at 51, 110 S. Ct. at 2724).

In Cohen the Delaware court concluded that"procedural

statutes which merely act to the disadvantage of those

affected by their enactment are not prohibited as ex post

facto laws." Id. The Delaware court rejected the defendants'

reliance in Cohen on Miller v. Florida , 482 U.S. 423, 107

S.Ct. 2446 (1987), a case involving retroactive changes in

sentencing guidelines, as it distinguished Miller on the

ground that in Miller "the retroactive application of revised

sentencing guidelines . . . increased the quantum of a

defendant's punishment-- an effect manifestly prohibited

by the Ex Post Facto Clause." Cohen, 604 A.2d at 854

(citing Miller, 482 U.S. at 433-34, 107 S.Ct. at 2453). The

Delaware Supreme Court believed that the changes brought

by the new sentencing process did not make a comparable

increase in the quantum of sentence.

Finally, the court in Cohen rejected the defendants'

reliance on Lindsey v. Washington, 301 U.S. 397, 57 S.Ct.

797 (1937), and State v. Dickerson, 298 A.2d 761, 768-69

(Del. 1973). Lindsey invalidated the use on ex post facto

grounds of a new law that required the imposition of a

sentence which under earlier law had not been mandatory.

Dickerson relied on Lindsey to hold that a newly adopted

mandatory death penalty provision in the Delaware murder

statute could not be applied retroactively. See Cohen, 604

A.2d at 855. The defendants in Cohen argued that the

November 4, 1991 changes in the Delaware law were

substantive and not merely procedural because "the new

law . . . makes mandatory a sentence, which under the

prior law, was discretionary, and . . . eliminates the

unanimous jury requirement thus making a death sentence

more likely." Id. at 855.

The Delaware court rejected that argument as "predicated

upon a flawed interpretation of what is meant by a

mandatory sentence." Id. The court observed that, under

Lindsey and Dickerson, the retroactive application of a

statute to make mandatory what was only the maximum

sentence at the time of the offense violated the Ex Post

Facto Clause. But the court ruled that Delaware's amended

law "is not `mandatory' [in the Lindsey sense because]

imposition of the death penalty is based upon the predicate

factual findings made by the jury and trial judge as to

aggravating and mitigating circumstances. The existence of

such factors and their relative weight, although ultimately

determined by the trial judge, do not mandate a death

sentence unless the aggravating factors outweigh the

mitigating circumstances. Thus, the new law is not

`impermissibly mandatory.' " Id. The court cited Walton v.

Arizona, 497 U.S. 639, 651-52, 110 S. Ct. 3047, 3056

(1990); Blystone v. Pennsylvania, 494 U.S. 299, 306-07,

110 S.Ct. 1078, 1083 (1990); Boyde v. California , 494 U.S.

370, 374, 110 S.Ct. 1190, 1194-95 (1990); and Proffitt v.

Florida, 428 U.S. 242, 260-61, 96 S.Ct. 2960, 2970 (1976),

in support of this conclusion. The court concluded that,

"[b]y ignoring the weighing process, a crucial and

constitutionally required step under the new law, the

[defendants] demonstrate[ ] the weakness of [their]

argument. The sentencing process remains basically

discretionary, merely shifting the ultimate decision from the

jury to the trial judge." Id.

On June 13, 1996, after his unsuccessful post-conviction

relief proceedings in the state courts, Fergusonfiled his

habeas petition pursuant to 28 U.S.C. S 2254 in the district

court. The district court granted a stay and appointed

counsel. On December 13, 1996, the district court, without

holding an evidentiary hearing but after entertaining oral

argument, denied the petition in a comprehensive opinion

and declined to issue a certificate of appealability. See

Ferguson v. State, 1996 WL 1056727, at *28.

Ferguson then appealed. We granted a certificate of

appealability and, pursuant to the Antiterrorism and

Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132,

110 Stat. 1214, 28 U.S.C. S 2253(c)(3), directed the parties

to address the following issues:

(1) What deference, if any, must this Court gi ve to

the Delaware court's conclusions and applications of

law? See 28 U.S.C. S 2254(e);

(2) Whether application of Delaware's amended death

penalty statute is a violation of the Ex Post Facto

Clause?; and

(3)(a) Whether the aggravating factors of pecu niary

gain and robbery are duplicative and violative of the

Eighth Amendment?; and

(b) Whether the state court's review of this c laim for

plain error indicates that it is not an independent and

adequate state ground barring federal review?

Insofar as we review the opinion of the district court we

exercise plenary review on this appeal. See Hartey v.

Vaughn, 186 F.3d 367, 371 (3d Cir. 1999). We have

jurisdiction under 28 U.S.C. S 1291.

II. DISCUSSION

A. Application of the Antiterrorism and Effective Death

Penalty Act

As we have indicated, our certificate of appealability

included a question of the scope of the AEDPA which is

applicable in this action as Ferguson initiated the habeas

proceeding after the effective date of the AEDPA. See Hartey

v. Vaughn, 186 F.3d at 371. Subsequently, after we issued

the certificate of appealability, we addressed this issue in

Matteo v. Superintendent, 171 F.3d 877, 880 (3d Cir. 1999)

(en banc). Since then, however, the Supreme Court has

decided the same issue in Williams v. Taylor, 68 U.S.L.W.

4263 (U.S. Apr. 18, 2000). Accordingly, we will apply that

case without making our own determination on the issue

regarding the effect of the AEDPA.

Williams v. Taylor construed the AEDPA, 28 U.S.C.

S 2254(d)(1), which, as germane here in a case concerning

a person in custody pursuant to the judgment of a State

court, provides that "with respect to any claim that was

adjudicated on the merits in State court proceedings" an

application for a writ of habeas corpus shall not be granted

unless the adjudication of the claim "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."

The Court in Williams v. Taylor held that"[u]nder the

`contrary to' clause, a federal habeas court may grant the

writ if the state court arrives at 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." Id. at 4277. Williams v. Taylor further held that

"[u]nder the `unreasonable application' clause, a federal

habeas court may grant the writ if the state court identifies

the correct legal principle from [the Supreme] Court's

decisions but unreasonably applies that principle to the

facts of the prisoner's case." Id. The"unreasonable

application" inquiry requires the habeas court to"ask

whether the state court's application of clearly established

federal law was objectively unreasonable." Id . at 4276.

Thus, under the "unreasonable application" clause, "a

federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that

application must also be unreasonable." Id . at 4277. The

Court in Williams v. Taylor made it clear that the "contrary

to" and "unreasonable application" clauses have

independent meaning. Id. at 4275.

B. The Ex Post Facto Clause Issue

(a) Supreme Court cases

Inasmuch as our obligation under the AEDPA, 28 U.S.C.

S 2254(d), as construed by the Supreme Court in Williams

v. Taylor, is to determine whether the Delaware court's

decisions in Cohen and Ferguson, were "contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States," we must make an analysis of the Supreme

Court's opinions and then consider the Delaware law and

the Delaware Supreme Court's decisions within that

analysis. Our starting point naturally is Article I,S 10 of the

Constitution which provides that "[n]o State shall . . . pass

any . . . ex post facto Law." Shortly after the Constitution

was ratified, the Supreme Court identified four categories of

penal laws that implicate the Ex Post Facto Clause, the

third one of which was "[e]very law that changes the

punishment, and inflicts a greater punishment, than the

law annexed to the crime, when committed." Calder v. Bull,

3 Dall. 386, 390, 1 L.Ed. 648 (1798). It is this category

which Ferguson claims is implicated here. See br. at 21.

More than a century later, the Court reaffirmed the

Calder v. Bull principle by holding that a law is ex post

facto if it "makes more burdensome the punishment for a

crime, after its commission[.]" Beazell v. Ohio, 269 U.S.

167, 169, 46 S.Ct. 68 (1925). The Court continues to

adhere to that principle, see Lynce v. Mathis , 519 U.S. 433,

440-41, 117 S.Ct. 891, 895-96 (1997), and indeed"[t]he

bulk of [the Supreme Court's] ex post facto jurisprudence

has involved claims that a law has inflicted `a greater

punishment, than the law annexed to the crime, when

committed.' " Id. at 441, 117 S.Ct. at 895 (quoting Calder v.

Bull, 3 Dall. at 390). Such laws are prohibited because they

"implicate the central concerns of the Ex Post Facto Clause:

`the lack of fair notice and governmental restraint when the

legislature increases punishment beyond what was

prescribed when the crime was consummated.' " Id., 117

S.Ct. at 896 (quoting Weaver v. Graham, 450 U.S. 24, 30,

101 S.Ct. 960, 965 (1981)).

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, the

case on which the Delaware Supreme Court principally

relied in Cohen, the Court considered an ex post facto

challenge to a statute that changed "the function of the

judge and jury in the imposition of death sentences in

Florida between the time [Dobbert] committed the acts

charged and the time he was tried for them." Id. at 287, 97

S.Ct. at 2295. At the time of Dobbert's offense, Florida law

required the jury to impose a death sentence forfirst-degree

murder, "unless the verdict included a recommendation of

mercy by a majority of the jury." Id. at 288 & n.3, 97 S.Ct.

at 2296 & n.3. But at the time of his sentencing, a new law

which Florida enacted after the Florida Supreme Court

invalidated its prior capital law as unconstitutional under

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972),

provided that, after a murder conviction, there must be a

separate sentencing hearing before the court and jury. See

id. at 290, 97 S.Ct. at 2297. The new law required the jury

to consider the aggravating and mitigating factors and

render a non-binding advisory decision. See id. at 291, 97

S.Ct at 2297. The trial court then would weigh the same

evidence and, in its discretion, impose a sentence of life

imprisonment or death. See id., 97 S.Ct. at 2297.

A majority of the jurors at Dobbert's trial, after

considering the aggravating and mitigating factors,

recommended life imprisonment. Nevertheless, the trial

court rejected that recommendation and imposed a death

sentence. Dobbert argued that application of the amended

Florida statute constituted an ex post facto violation

because it deprived him of "a substantial right to have the

jury determine, without review by the trial judge, whether

[the death penalty] should be imposed." Id. at 292, 97 S.Ct.

at 2298.

The Supreme Court rejected that argument, ruling that

"[t]he new statute simply altered the methods employed in

determining whether the death penalty was to be imposed;

[thus] there was no change in the quantum of punishment

attached to the crime." Id. at 293-94, 97 S.Ct. at 2298. The

Court explained that "[i]t is axiomatic that for a law to be

ex post facto it must be more onerous than the prior law."

Id. at 294, 97 S.Ct. at 2299. Specifically, to violate the Ex

Post Facto Clause, the law must cause a "change in the

quantum of punishment attached to the crime." Id., 97

S.Ct. at 2298. Therefore, "[e]ven though[a new law] may

work to the disadvantage of a defendant [as it did in

Dobbert ], a procedural change is not ex post facto." Id. at

293, 97 S.Ct. at 2298. The Court found that Florida's new

law, insofar as it had no substantive effect on the range of

sentences, i.e., life imprisonment or death for first-degree

murder, did not change the quantum of punishment

prescribed for the offense. Accordingly, the changes in the

law were "merely procedural" and not ex post facto.1

_________________________________________________________________

1. The Court also explained in Dobbert that a law is not ex post facto if

it is "ameliorative," i.e., when "viewing the totality of the procedural

changes wrought by the new statute, . . . the new statute did not work

an onerous application of an ex post facto change in the law" because it

afforded the defendant more safeguards or protections than the law in

place at the time the offense was committed. See Dobbert, 432 U.S. at

296-97, 97 S.Ct. at 2300. The Delaware Supreme Court did not

determine in Cohen or Ferguson whether the amended Delaware law was

ameliorative; instead, it rejected the ex post facto challenge solely on

the

alternative ground that the changes enacted were"merely procedural."

Subsequently, in Weaver v. Graham, 450 U.S. 24, 101

S.Ct. 960, the Court considered a situation in which a

Florida trial court sentenced the petitioner to 15 years in

prison for second-degree murder at a time when a Florida

law provided for mandatory reductions in the term of

imprisonment based on "gain-time credits" earned through

compliance with prison regulations. The legislature later

amended the law to reduce the number of gain-time credits

available to prisoners, thereby postponing the date when

they would become eligible for early release. The Supreme

Court held that application of the amended statute to the

petitioner was an ex post facto violation because"the new

provision constricts the inmate's opportunity to earn early

release, and thereby makes more onerous the punishment

for crimes committed before its enactment." Id. at 35-36,

101 S.Ct. at 968.

The Court identified in Weaver the "two critical elements"

of an ex post facto law: "it must be retrospective . . . and

it must disadvantage the offender affected by it." Id. at 29,

101 S.Ct. at 964. The Court noted that it also had held that

there was not an "ex post facto violation . . . if the change

effected is merely procedural, and does `not increase the

punishment nor change the ingredients of the offense or

the ultimate facts necessary to establish guilt.' " Id. at 29

n.12, 101 S.Ct. at 964 n.12 (quoting Hopt v. Utah, 110 U.S.

574, 590, 4 S.Ct. 202, 210 (1884), and citing Dobbert, 432

U.S. at 293, 97 S.Ct. at 2298). The Court explained,

however, that "[a]lteration of a substantial right . . . is not

merely procedural, even if the statute takes a seemingly

procedural form." Id., 101 S.Ct. at 964 n.12 (citing

Thompson v. Utah, 170 U.S. at 354-55, 18 S.Ct. at 624, and

Kring v. Missouri, 107 U.S. at 232, 2 S.Ct. at 452). The

Court found that application of the amended gain time law

in Weaver was an ex post facto violation because it

"disadvantaged" the petitioner by making the punishment

for his offense "more onerous" than the punishment

prescribed at the time of the offense. The Court rejected the

state's attempt to characterize the new law as "merely

procedural," ruling that "the new provision reduces the

quantity of gain time automatically available, and does not

merely alter procedures for its allocation." Id. at 36 n.21,

101 S.Ct. at 968 n.21.

The Court also observed in Weaver that "a law may be

retrospective not only if it alters the length of the sentence,

but also if it changes the maximum sentence from

discretionary to mandatory." Id. at 32 n.17, 101 S.Ct. at

966 n.17 (citing Lindsey v. Washington, 301 U.S. at 401, 57

S.Ct. at 799). The Court reached this conclusion because

"[t]he critical question . . . is whether the new provision

imposes greater punishment after commission of the

offense, not merely whether it increases a criminal

sentence." Id. (citations omitted).

The Court's decision in Lindsey v. Washington exemplifies

this principle. In Lindsey the Court ruled that a law is ex

post facto if its effect "is to make mandatory what was

before only the maximum sentence." 301 U.S. at 400, 57

S.Ct. at 798-99. At the time of the petitioners' grand

larceny offenses in Lindsey, they had been subject to a

statutory minimum sentence of six months to five years

and a maximum sentence of not more than 15 years, with

the court required to impose an indeterminate sentence up

to whatever maximum it selected, but not to exceed 15

years. See id. at 398, 57 S.Ct. at 797. But the legislature

amended the law before the petitioners' sentencing so that

the court was required to impose a 15-year sentence and a

defendant could obtain earlier release only through the

grace of the parole board. See id. at 398-99, 57 S.Ct. at

798. The trial court imposed sentence under the new law.

In finding an ex post facto violation in Lindsey, the Court

held that "the measure of punishment prescribed by the

later statute is more severe than that of the earlier." Id. at

401, 57 S.Ct. at 799. Specifically, although a sentence of 15

years had been permissible under the law at the time of the

offenses, 15 years became the only sentence that the court

could impose under the new law. Moreover, the new law

eliminated the trial court's discretion to impose a shortened

sentence. Thus, the Court held that the new law imposed a

more severe punishment after commission of the offense,

and violated the Ex Post Facto Clause.2 In Miller v. Florida,

_________________________________________________________________

2. Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, effectively

overruled the aspect of the Court's decision in Lindsey that the law was

ex post facto merely because it worked to the detriment or "substantial

482 U.S. 423, 107 S.Ct. 2446, the Court ruled that a

revision in Florida's sentencing guidelines which became

effective between the date of the petitioner's offense and the

date of his conviction violated the Ex Post Facto Clause

because the new guideline was "more onerous than the

prior law." Id. at 431, 107 S.Ct. at 2452 (quoting Dobbert,

432 U.S. at 294, 97 S.Ct. at 2299). At the time of the

offense, the petitioner faced a presumptive sentence of

three and one-half to four and one-half years in prison, but

at the time of sentencing, the revised guidelines called for

a presumptive sentence of five and one-half to seven years.

In fact, the trial court sentenced the petitioner to seven

years. See id. at 425, 107 S.Ct. at 2448.

The Court held in Miller that the petitioner had been

"substantially disadvantaged" by the change in Florida's law

because under the prior law the sentencing judge would

have had to depart from the guidelines to impose a seven-

year term of imprisonment and provide a statement of clear

and convincing reasons for the departure reviewable on

appeal. See id. at 432, 107 S.Ct. at 2452. Under the revised

law, the seven-year term was within the guidelines range

and was unreviewable on appeal. Consequently, the Court

concluded that by foreclosing the petitioner's ability "to

challenge the imposition of a sentence longer than his

presumptive sentence under the old law," id. at 433, 107

S.Ct. at 2452, the new law worked a "substantial

disadvantage" to him. Accordingly, the Court held that the

new law violated the Ex Post Facto Clause.

However, the Court in Miller, taking note of its holding in

Dobbert, explained that, even when application of a new law

works to a defendant's "disadvantage," the ex post facto

prohibition "does not restrict `legislative control of remedies

and modes of procedure which do not affect matters of

substance.' " Id. at 433, 107 S.Ct. at 2452 (quoting Dobbert,

_________________________________________________________________

disadvantage" of the defendants, see Lindsey , 301 U.S. at 401-02, 57

S.Ct. at 799. Nevertheless, the Court in Collins did not overrule

Lindsey's

holding, as well as its assessment that the change in the law in Lindsey

was ex post facto because "the measure of punishment prescribed by the

later statute is more severe than that of the earlier."

432 U.S. at 293, 97 S.Ct. at 2298). Hence, the Court will

not find an "ex post facto violation . . . if the change is

merely procedural and does `not increase the punishment,

nor change the ingredients of the offence or the ultimate

facts necessary to establish guilt.' " Id. , 107 S.Ct. at 2452-

53 (quoting Hopt v. Utah, 110 U.S. at 590, 4 S.Ct. at 210,

and citing Dobbert, 432 U.S. at 293-94, 97 S.Ct. at 2298).

The Court added, however, that "a change in the law that

alters a substantial right can be ex post facto,`even if the

statute takes a seemingly procedural form.' " Id., 107 S.Ct.

at 2453 (quoting Weaver, 450 U.S. at 29 n.12, 101 S.Ct. at

964 n.12).

Applying Dobbert, the Court in Miller observed that,

"[a]lthough the distinction between substance and

procedure might sometimes prove elusive, here the change

at issue appears to have little about it that could be

deemed procedural." Id., 107 S.Ct. at 2453. The Court

found that "[t]he 20% increase in points for sexual offenses

in no wise alters the method to be followed in determining

the appropriate sentence: it simply inserts a larger number

into the same equation." Id., 107 S.Ct. at 2453. Thus, the

Court refused to characterize the revisions to Florida's

sentencing guidelines as "merely procedural."

In Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715,

the Court abandoned portions of its analysis in Weaver and

Miller, and it narrowed the scope of the framework for

analyzing ex post facto claims. In Collins, the Court

considered a situation in which a state court jury convicted

the petitioner and sentenced him to life imprisonment plus

a fine of $10,000. The petitioner argued in the state courts

that the fine had been unauthorized under the law in effect

at the time of sentencing, and he requested a new trial.

Relying on an intervening change in state law not in effect

at the time of the offense, the trial, or the sentencing, which

allowed it to reform an improper jury verdict that assessed

an unauthorized punishment, the state appellate court

reformed the verdict by vacating the fine. Therefore, the

appellate court denied the petitioner's request for a new

trial, a form of relief to which he would have been entitled

under state case law prior to enactment of the new statute.

Id. at 39-40, 110 S.Ct. at 2717-18.

In his federal habeas petition in Collins, the petitioner

claimed an ex post facto violation by reason of the use of

the new jury verdict reformation law. The district court,

however, denied relief on the ground that his punishment

"was not increased (but actually decreased)" as a result of

the change in the law. See id. at 40, 110 S.Ct. at 2718

(internal quotation marks omitted). The Court of Appeals

for the Fifth Circuit reversed, holding that, under Thompson

v. Utah, 170 U.S. 343, 18 S.Ct. 620, retroactive

applications of procedural statutes "violate the Ex Post

Facto Clause unless they leave untouched all substantial

protections with which existing law surrounds the person

accused of the crime." Id. (internal quotation marks

omitted). The court of appeals held that the petitioner's

right to a new trial under the governing case law was a

"substantial protection," and thus it ordered the district

court to grant habeas relief.

The Supreme Court reversed, concluding that the

definition of "ex post facto" that it had adopted in Beazell

v. Ohio, 269 U.S. 167, 46 S.Ct. 68, was "faithful to the use

of the term `ex post facto law' at the time the Constitution

was adopted." Id. at 44, 110 S.Ct. at 2720. In Beazell, the

Court ruled that a law is ex post facto if it "punishes as a

crime an act previously committed, which was innocent

when done; which makes more burdensome the

punishment for a crime, after its commission; or which

deprives one charged with crime of any defense available

according to law at the time when the act was committed."

Beazell, 269 U.S. at 169, 46 S.Ct. at 68. Limiting its

analysis to these three "Beazell categories," the Court in

Collins rejected the petitioner's ex post facto claim.

The Court found that the sentencing reformation law was

merely "a procedural change that allow[ed] reformation of

improper verdicts." Collins, 497 U.S. at 44, 110 S.Ct. at

2720. It thus rejected the court of appeals' holding that the

statute, although clearly procedural, was nevertheless ex

post facto because it denied the petitioner a "substantial

protection," i.e., the right to a new trial that had been

available at the time of sentencing. The Court noted that

"[s]everal of [its] cases have described as `procedural' those

changes which, even though they work to the disadvantage

of the accused, do not violate the Ex Post Facto Clause." Id.

at 45, 110 S.Ct. at 2720 (citing Dobbert, 432 U.S. at 292-93

& n.6, 97 S.Ct. 2297-98 & n.6; Beazell, 269 U.S. at 171, 46

S.Ct. at 69; Mallett v. North Carolina, 181 U.S. 589, 597, 21

S.Ct. 730, 733 (1901)). The Court added that, "[w]hile these

cases do not explicitly define what they mean by the word

`procedural,' it is logical to think that the term refers to

changes in the procedures by which a criminal case is

adjudicated, as opposed to changes in the substantive law

of crimes." Id.

The Court observed, however, that it also had stated in

several cases "that a procedural change may constitute an

ex post facto violation if it `affect[s] matters of substance,'

. . . by depriving a defendant of `substantial protections

with which the existing law surrounds the person accused

of crime,' . . . or arbitrarily infringing upon`substantial

personal rights.' " Id. (citations omitted). The Court found

that such language had "imported confusion into the

interpretation of the Ex Post Facto Clause." Id. at 45, 110

S.Ct. at 2721. Thus, the Court ruled in Collins that "[t]he

references in [earlier cases] to `substantial protections' and

`personal rights' should not be read to adopt without

explanation an undefined enlargement of the Ex Post Facto

Clause" as defined in Beazell. See id. at 46, 110 S.Ct. at

2721. The Court explained that the proper meaning of

those earlier cases is that "by simply labeling a law

`procedural,' a legislature does not thereby immunize it

from scrutiny under the Ex Post Facto Clause." Id. at 46.

Ultimately, the Court in Collins expressly overruled

Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, and Kring

v. Missouri, 107 U.S. 221, 2 S.Ct. 443, two cases which the

Court had cited in Weaver for the proposition that

"[a]lteration of a substantial right . . . is not merely

procedural, even if the statute takes a seemingly procedural

form." Weaver, 450 U.S. at 29 n.12, 101 S.Ct. at 964 n.12.3

In California Department of Corrections v. Morales, 514

U.S. 499, 115 S.Ct. 1597 (1995), the Court explained that,

in light of the framework it set forth in Collins, "the focus

_________________________________________________________________

3. Miller cited Weaver for the same point. Miller, 482 U.S. at 433, 107

S.Ct. at 2453.

of the ex post facto inquiry is not on whether a legislative

change produces some ambiguous sort of `disadvantage,' "

as language in Miller, Weaver and Lindsey had suggested.

Rather, the proper focus is limited to whether the change in

the law "alters the definition of criminal conduct or

increases the penalty by which a crime is punishable." Id.

at 506 n.3, 115 S.Ct. at 1602 n.3. The Court noted in

Morales that it nevertheless had reached the correct result

in those three cases because in each of them the law at

issue impermissibly increased the "quantum of

punishment" that had been prescribed at the time of the

offense. Id. at 505-06 & n.3, 115 S.Ct. at 1601-03 & n.3.

The particular holding in Morales was that an

amendment to California's parole procedures which

decreased the frequency of parole hearings for certain

offenders had not changed the quantum of punishment

attached to the petitioner's offense, and therefore was not

ex post facto. The amendment allowed the Parole Board,

after holding an initial hearing, to defer for up to three

years a subsequent parole suitability hearing for prisoners

convicted of multiple murders if the Board found that it

was unreasonable to expect that it would grant parole at a

hearing during the subsequent years. The Court explained

that the relevant inquiry is whether the "change alters the

definition of criminal conduct or increases the penalty by

which a crime is punishable." Id. at 506 n.3, 115 S.Ct. at

1602 n.3. The Court determined that "there is no reason to

conclude that the amendment will have any effect on any

prisoner's actual term of confinement." Id. at 512, 115 S.Ct.

at 1604. Thus, the Court found that the petitioner failed to

show, as required under Collins, that the new law actually

had increased, and not merely posed an attenuated or

theoretical possibility of increasing, the quantum of

punishment for his offense.

The Court rejected the petitioner's argument that"the Ex

Post Facto Clause forbids any legislative change that has

any conceivable risk of affecting a prisoner's punishment."

Id. at 508, 115 S.Ct. at 1602. The Court noted that "the

question of what legislative adjustments will be held to be

of sufficient moment to transgress the [ex post facto]

prohibition must be a matter of degree." Id. at 509, 115

S.Ct. at 1603 (internal quotation marks omitted). Thus, the

Court declined "to articulate a single `formula' for

identifying those legislative changes that have a sufficient

effect on substantive crimes or punishments to fall within

the prohibition." Id. The Court ruled that the law at issue

in Morales "creates only the most speculative and

attenuated possibility of producing the prohibited effect of

increasing the measure of punishment for covered crimes,

and such conjectural effects are insufficient under any

threshold we might establish under the Ex Post Facto

Clause." Id. at 509, 115 S.Ct. at 1603 (citing Dobbert, 432

U.S. at 294, 97 S.Ct. at 2299).

In Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, the

Court again applied Collins and inquired whether the law at

issue retrospectively increased the quantum of punishment

for the petitioner's offense. The law challenged in Lynce

canceled the petitioner's award of 1,860 days of provisional

early release credits, which had been granted for the sole

purpose of alleviating prison overcrowding. The Court

concluded that the new law was ex post facto because its

effect was to lengthen the petitioner's sentence, thereby

retrospectively increasing the quantum of punishment. See

id. at 445, 117 S.Ct. at 897-98.

But in Lynce, unlike in Morales, the new law actually

increased the petitioner's term of incarceration so its effect

was neither speculative nor attenuated. The Court rejected

in Lynce any suggestion that the new law was"merely

procedural." Id. at 447 n.17, 117 S.Ct. at 898 n.17. The

Court cited Dobbert for the proposition"that a procedural

statute is one that `simply alters the methods employed in

determining' whether the punishment is `to be imposed'

rather than `chang[ing] the quantum of punishment

attached to the crime.' " Id. (quoting Dobbert, 432 U.S. at

293-94, 97 S.Ct. at 2298) (internal punctuation omitted)

(alteration in original). The Court ruled that, unlike in

Dobbert, the law challenged in Lynce was not "merely

procedural" because it "did not change the method of

determining the sentence, but rather lengthened the

sentences of certain prisoners by making them ineligible for

early release[.]" Id.

Recently in Garner v. Jones, 120 S.Ct. 1362 (2000), the

Court was concerned with a situation similar to that in

Morales in that it considered an ex post facto challenge to

a rule extending the time for required reconsideration of

denied parole applications from every three years to every

eight years. Based on the record presented, the Court

upheld the application of the amended rule, as the prisoner

had not demonstrated that it created "a significant risk of

prolonging [his] incarceration," and "the requisite risk [was]

not inherent in the framework" of the rule. Id. at 1368. The

Court cited Morales for the point that the Ex Post Facto

Clause should not be employed for the micromanagement

of an endless array of legislative adjustments to parole and

sentencing procedures. Id. Moreover, the Court noted that

the ex post facto doctrine included to some extent the

concept that before a criminal commits an offense, he

should have either actual or constructive notice of the

penalty for the transgression. Id. at 1369.

In Garner, however, the Court did not make a definitive

statement of the scope of ex post facto protections. Indeed,

the Court did not make an analysis of Beazell , Collins,

Dobbert, or Lindsey, the cases which, as will be seen, we

regard as its most significant on the ex post facto issue we

consider here. In fact, the Court did not cite Dobbert or

Lindsey. Rather, Garner's particular significance is in the

area of modification of parole procedures.

The Court's most recent ex post facto case is Carmell v.

Texas, 68 U.S.L.W. 4325 (U.S. May 1, 2000). In Carmell the

Court was concerned with a section of a Texas statute

which provided that in certain sexual offenses a conviction

"is supportable on the uncorroborated testimony of the

victim of the sexual offense if the victim informed any

person, other than the defendant, of the alleged offense

within six months after the date on which the offense is

alleged to have occurred." Id. at 4326. This requirement is

referred to as an "outcry" provision. Until September 1,

1993, the requirement that the victim inform another

person of the alleged offense did not apply "if the victim was

younger than 14 years of age at the time of the alleged

offense." Id. The statute, however, was amended in 1993 to

extend the child victim exception to victims under 18 years

old. The convictions at issue in Carmell were for offenses

before the amendment when the victim was 14 or 15 years

old. Id. at 4327. Thus, the petitioner argued that the

convictions could not stand under the Ex Post Facto Clause

because the victim was not under 14 years old at the time

of the offenses and she had not made a timely outcry. The

Texas courts rejected his argument, upholding the

application of the statutory amendment against an ex post

facto challenge.

The Supreme Court reversed. It held that in Collins it had

not intended to suggest that in Beazell it had abandoned

the fourth Calder category, i.e., see Calder, 3 Dall. at 390,

that the Ex Post Facto Clause precludes a "law that alters

the legal rules of evidence, and receives less, or different,

testimony, than the law required at the time of the

commission of the offence, in order to convict the offender."

Id. at 4330. Thus, it held that the 1993 amendment to the

Texas law was ex post facto as applied to the petitioner

because it reduced the "quantum of evidence" necessary to

convict the petitioner inasmuch as without the amendment

he could not have been convicted on the counts in

question. Carmell like Garner did not, however, make a

definitive statement of the scope of ex post facto protections

as it was dealing with a narrow situation not concerned

with the quantum of punishment. Moreover, it dealt with a

Calder category of ex post facto laws not implicated on this

appeal.

Having completed our review of the Supreme Court's ex

post facto cases we now return to consideration of our

obligations under Williams v. Taylor. As we have indicated

the "contrary to" and "unreasonable application" clauses in

28 U.S.C. S 2254(d)(1) have independent meaning. See

Williams v. Taylor, 68 U.S.L.W. at 4275. Thus, claims may

fit within one of these clauses more "comfortably" than the

other. See id. But still when a petitioner presents a claim

as does Ferguson which challenges a statutory scheme

rather than only the outcome in a particular case we

believe that we have an obligation to make our analysis

under both clauses, particularly inasmuch as Ferguson has

presented his ex post facto claim under both clauses.

We turn to the "contrary to" clause first as 28 U.S.C.

S 2254(d)(1) lists it first. In light of our foregoing analysis of

the Supreme Court's ex post facto cases, we conclude that

the Court has established certain ex post facto rules with

sufficient specificity so that we may make a determination

under the AEDPA whether the Delaware Supreme Court's

decisions in Cohen and Ferguson were contrary to clearly

established federal law as determined by the Supreme

Court of the United States. In particular, under the

framework set forth in Collins, a law violates the Ex Post

Facto Clause if it is both retrospective and increases the

penalty by which a crime is punishable, a standard which

requires the petitioner to show that the law retrospectively

increased or made more onerous the "quantum of

punishment" attached to the crime. The infringement of a

"substantial right" or a showing of a mere"disadvantage" as

a result of a new law is insufficient.

In addition, as the Court explained in Dobbert and

Collins, a law is "merely procedural," and not ex post facto,

if it simply alters the methods employed in determining the

punishment to be imposed as opposed to working a

substantive change in the quantum of punishment

attached to the crime. Moreover, the Court consistently has

applied these rules, and they are quite specific. Thus, we

conclude that the Supreme Court cases formulate rules to

apply when an ex post facto claim is made so that we can

consider the Delaware Supreme Court's decision in Cohen,

and hence its decision in Ferguson, under the AEDPA's

"contrary to" clause.

We emphasize that Lindsey did not establish a

sufficiently specific "framework" or rule of law that is any

different from the rules we have noted. In Lindsey, the

Court found a law to be ex post facto because its effect was

"to make mandatory what was before only the maximum

sentence." Lindsey, 301 U.S. at 400, 57 S.Ct. at 798-99.

That holding survives under Collins because, as the Court

noted in Morales, it is clear that the law challenged in

Lindsey impermissibly increased the "quantum of

punishment" prescribed at the time of the offense. See

Morales, 514 U.S. at 505-06 & n.3, 115 S.Ct. at 1601-02 &

n.3. Thus, while it might be argued that Lindsey

established a rule that "a law is ex post facto if it makes

mandatory what was before only the maximum sentence,"

in view of the Court's subsequent refinements it is more

accurate to say that the rule in Lindsey is that a statute is

ex post facto if it retroactively makes the quantum of

punishment for an offense more onerous. Of course, there

was such a violation in Lindsey because the new law made

mandatory a sentence that was only a maximum at the

time of the petitioners' offenses.

The Court, however, did not define formally in Lindsey

what makes a law "mandatory" for ex post facto purposes,

and it did not expressly generalize its holding into a

framework or rule for future cases. In addition, while the

Court in Weaver cited Lindsey for the proposition that "a

law may be retrospective not only if it alters the length of

the sentence, but also if it changes the maximum sentence

from discretionary to mandatory," 450 U.S. at 32 n.17, 101

S.Ct. at 966 n.17, it did so to illuminate its point that "the

critical question" in an ex post facto analysis"is whether

the new provision imposes greater punishment after

commission of the offense, not merely whether it increases

a criminal sentence." Id. Thus, rather than establishing a

framework or rule of law in its own right, we regard Lindsey

as merely one of the continuum of cases applying the

Beazell categories the Court reaffirmed in Collins, and

which the Court further explained in Carmell.

Carmell, of course, does not supply an ex post facto rule

applicable here as it merely held that the state could not

reduce the quantum of evidence necessary to convict the

petitioner, at least in the manner it did, an application of

the Ex Post Facto Clause not implicated here. Moreover, the

Court emphasized that "a sufficiency of the evidence rule

resonates with the interest to which the Ex Post Facto

Clause is addressed" because "the elements of unfairness

and injustice in subverting the presumption of innocence

are directly implicated by rules lowering the quantum of

evidence required to convict." Carmell, 68 U.S.L.W. at 4335.

These interests, derived from the fourth Calder category,

are not involved in this case.

(b) The Delaware Supreme Court's opinions

Against this backdrop of relevant Supreme Court

jurisprudence, we return now to the Delaware Supreme

Court's decision in Cohen, and hence its ruling in Ferguson,

so that we may consider each under the AEDPA standards

as clarified in Williams v. Taylor. The state court first ruled

in Cohen that, "[g]iven the teaching in Dobbert, it is clear

that the changes effected by Delaware's new death penalty

statute are procedural. The revisions in the new law, like

those in Dobbert, merely altered the method of determining

imposition of the death penalty. The quantum of

punishment for the crime of first-degree murder in

Delaware remains unchanged." Cohen, 604 A.2d at 853.

The Court added in Ferguson that, "[t]he restrictive nature

of the advisory jury's findings and the mandatory

imposition of the death penalty by the sentencing judge

under the amended statute are likewise `procedural,' and

therefore do not implicate ex post facto concerns."

Ferguson, 642 A.2d at 783.

It is unquestionable that the changes enacted by the

amended Delaware law simply have "altered the methods

employed in determining the punishment to be imposed."

For example, like the law at issue in Dobbert , Delaware's

amended law reassigned the task of imposing sentence

from the jury to the court, a change which Ferguson's

attorney at oral argument before us acknowledged in itself

did not implicate ex post facto concerns and in light of

Dobbert hardly could have done so.4 In addition, the

amended statute retained life imprisonment or death as the

range of sentences for first-degree murder, and merely

redesigned the method or formula for determining which of

the two sentencing choices should be imposed in a given

case. Thus, we are satisfied that the amended Delaware law

fully justified the state court's reliance on Dobbert and its

conclusion that the changes were "merely procedural."

Nevertheless we must continue our analysis because at

the time of Ferguson's offenses, Delaware did not require a

death sentence when aggravating circumstances were found

to outweigh mitigating circumstances, as the jury could

impose a sentence of life imprisonment in that

_________________________________________________________________

4. We also note that in general there is no federal constitutional right

a jury trial on sentencing in a capital case. See Clemons v. Mississippi,

494 U.S. 738, 745-46, 110 S.Ct. 1441, 1446-47 (1990).

circumstance. At the time of his sentencing, however, the

amended law required a death sentence once the court

determined that aggravating circumstances outweighed

mitigating circumstances.

While these changes arguably implicate the holding

under Lindsey, the Delaware Supreme Court in Cohen

distinguished Lindsey by ruling that the amended law

is not `mandatory' . . . [because] imposition of the

death penalty is based upon the predicate factual

findings made by the jury and trial judge as to

aggravating and mitigating circumstances. The

existence of such factors and their relative weight,

although ultimately determined by the trial judge, do

not mandate a death sentence unless the aggravating

factors outweigh the mitigating circumstances. Thus,

the new law is not `impermissibly mandatory.'

Cohen, 604 A.2d at 855. As we have indicated, in support

of this proposition the court cited Walton v. Arizona, 497

U.S. at 650-52, 110 S.Ct. at 3056; Blystone v.

Pennsylvania, 494 U.S. at 306-07, 110 S.Ct. at 1083;

Boyde v. California, 494 U.S. at 374, 110 S.Ct. at 1195;

and Proffitt v. Florida, 428 U.S. at 260-61, 96 S.Ct. at 2970.

Of course, each of those cases presented a challenge to a

death penalty statute under the Eighth Amendment which

prohibits the imposition of an "impermissibly mandatory"

death sentence, i.e., a death sentence that is imposed

automatically upon conviction without an individualized

inquiry into the defendant and the nature of the crime. See,

e.g., Blystone, 494 U.S. at 305, 110 S.Ct. at 1082-83. The

cases nevertheless are germane to the question of whether

the amended sentencing statute "increased the quantum of

punishment" for Ferguson's capital offenses, which is the

relevant inquiry under the Ex Post Facto Clause, as the ex

post facto inquiry considers the alleged mandatory aspects

of a sentencing. See Lindsey, 301 U.S. at 400, 57 S.Ct. at

798-99; see also Morales, 514 U.S. at 506 n.3, 115 S.Ct. at

1602 n.3.

The Delaware Supreme Court in Cohen further

distinguished Lindsey and its own opinion in Dickerson by

ruling that a death sentence under the amended law is not

truly "mandatory" because the trial court must assign a

"relative weight" to the aggravating and mitigating evidence

before it determines which sentence, life imprisonment or

death, is required by the statute. Therefore, given the

presence of a "weighing process," the Delaware court

concluded that "[t]he sentencing process remains basically

discretionary, merely shifting the ultimate decision from the

jury to the trial judge." Cohen, 604 A.2d at 855.

Thus, though the jury convicted Ferguson of first-degree

murder the court did not impose a death sentence

automatically. Rather, it held a separate hearing to

determine whether to impose a sentence of life

imprisonment or death. Before imposing sentence, the trial

court weighed the evidence presented at the hearing as well

as the jury's sentencing recommendation, and then made a

determination that in Ferguson's case the aggravating

circumstances outweighed the mitigating circumstances.

Obviously, the court could have reached the opposite result

in this inherently subjective evaluation for aggravating

circumstances cannot outweigh mitigating circumstances in

the definitive sense that a ton necessarily outweighs a

pound. Accordingly, it is perfectly clear that, as the

Delaware Supreme Court explained, the "weighing process"

effectively insured that the death penalty was a

discretionary maximum sentence, and therefore, the death

sentence was not "mandatory" in the sense contemplated in

Lindsey.5

The district court agreed with the Delaware Supreme

Court's analysis, citing the following rationale:

The current case is somewhat different from Lindsey.

The revised Delaware statute does not make the

maximum penalty for first-degree murder, death,

mandatory. The options remain the same: life

imprisonment or death. The difference is that under

the old statute the decisionmaker needed to weigh the

aggravating and mitigating factors, but was not

_________________________________________________________________

5. Moreover, although our conclusion is not dependent on this point, we

are satisfied that if the court held that the mitigating circumstances

outweighed the aggravating circumstances, its determination would not

have been subject to appellate review.

necessarily compelled by the outcome of that weighing

process. Under the revised law, if the aggravating

circumstances are found to outweigh the mitigating

circumstances, then a decision of death is commanded.

If the opposite conclusion is reached, a sentence of life

imprisonment is required. The discretion of the

sentencing authority is therefore not eliminated, but is

restricted to a reasoned consideration of relevant

aggravating and mitigating circumstances. The

sentencing decision has not been reduced to a

mechanical exercise, as it was in Lindsey.

Ferguson v. State, 1996 WL 1056727, at *9.

We find this analysis compelling and thus we will not

hold that Lindsey "required" the Delaware Supreme Court

to find that the amended law violated the Ex Post Facto

clause or that there was an ex post facto violation in this

case. Indeed, in our view we could not possibly hold that

the Delaware Supreme Court's opinions in Cohen and

Ferguson were "opposite" to any opinions of the Supreme

Court. While Delaware's amended law undoubtedly

established standards for a trial court to consider when

imposing sentence in a capital case, the law did not

eliminate discretion from the sentencing process, something

which Lindsey suggested is required to establish an ex post

facto violation. See Lindsey, 301 U.S. at 400-01, 57 S.Ct. at

798-99.

We recognize that the amended law eliminates the

possibility that a defendant will receive a life sentence on

the basis of a single juror refusing to vote for death.

Consequently, we think that it is reasonable to believe that

the amended law makes it more likely that a defendant will

receive a death sentence than would have been the case

under the earlier law. But that circumstance only

establishes that a defendant is "disadvantaged" by the

amended law, which is an insufficient basis to establish an

ex post facto violation unless the change in the law actually

increased the quantum of punishment for the offense. 6 See

_________________________________________________________________

6. We note that the dissenting opinion in Garner pointed out that the

parole board's chairman said its policies "were intended to increase time

served in prison." Garner, 120 S.Ct. at 1373 (Souter, J., dissenting).

Apparently, the majority was not moved by this observation.

Morales, 514 U.S. at 506 n.3, 115 S.Ct. at 1602 n.3. In

sum, we have considered all of the Supreme Court cases

and simply cannot find that the decisions of the Supreme

Court of Delaware in Cohen and Ferguson are contrary to

any of them, at least to the extent that they have not been

overruled. In fact, we would have reached the result we do

even if we exercised independent judgment in the way

required before the adoption of the AEDPA. See Williams v.

Taylor, 68 U.S.L.W. at 4274. In the circumstances, if we

found an ex post facto violation here we surely would be

unfaithful to our obligations under the AEDPA.

Our conclusion that the decisions in Cohen and Ferguson

upholding the amended law do not violate the "contrary to"

clause of the AEDPA takes us to the question of whether

the Delaware court's result nevertheless was an

unreasonable application of clearly established federal law

as determined by the United States Supreme Court. See 28

U.S.C. S 2254(d)(1). In considering this possibility we will

not repeat our analysis of the Supreme Court cases.

Rather, we merely state that we are satisfied that we cannot

hold that the Delaware Supreme Court's opinions in Cohen

and Ferguson were an unreasonable application of clearly

established federal law as determined by the United States

Supreme Court. Quite to the contrary, we have no basis to

hold that the Delaware Court unreasonably applied the

Supreme Court's ex post facto cases to the facts of this case

or unreasonably refused to extend ex post facto principles

to this case. See Williams v. Taylor, 68 U.S.L.W. at 4276.

Indeed, we think that the Delaware Supreme Court reached

the correct result and, as we have indicated, even

exercising the independent judgment required by pre-

AEDPA law we would have come to the result it did.

We close our consideration of the ex post facto issue with

a final observation. Ferguson argues that under the

amended law the percentage of defendants convicted of first

degree murder sentenced to death has increased

substantially from the percentage under the earlier law in

effect at the time of his offenses. This contention, however,

even if true is without legal significance because the

legislature neither has increased nor made mandatory the

penalty for first-degree murder and the mere fact, if such

be the case, that the change disadvantaged Ferguson and

other defendants in capital cases cannot lead us to a

different result. Moreover, we must consider the increased

imposition of the death penalty against the circumstance

that under the amended law the court as opposed to a

unanimous jury must determine to impose a death penalty.

Surely it would be expected that, in light of that difference,

there would have been more sentences of death. Yet, as we

have indicated, Ferguson acknowledges that the transfer of

the responsibility to make the ultimate decision to the court

does not in itself raise ex post facto concerns and plainly it

does not. Thus, we reject Ferguson's ex post facto

arguments.

C. Duplicative Aggravating Statutory Circumstances

As we have indicated, during the penalty phase of

Ferguson's case, the state advanced three statutory

aggravating circumstances in support of the death penalty:

(1) Ferguson previously had been convicted of murder,

manslaughter or a violent felony;7 (2) he committed the

murder in this case for pecuniary gain; and (3) he

committed the murder during the course of a robbery. Both

the jury and the court found that the prosecution had

proven each of the three aggravating circumstances with

respect to both counts of first degree murder. But Ferguson

contends that murder for pecuniary gain and murder

during the course of a robbery are the same aggravating

factor as a person who attempts to rob someone necessarily

seeks pecuniary gain. Thus, in his view, the court permitted

the jury to "double count" the factor. Accordingly, he

argues, the sentencing scheme was arbitrary and

capricious in violation of the Eighth Amendment.

(a) Exhaustion

The state argues, as it did in the district court, that the

duplicate aggravating circumstances claim is unexhausted

because Ferguson did not present it to the state courts in

terms of the denial of a federal right. See Duncan v. Henry,

513 U.S. 364, 365-66, 115 S.Ct. 887-88 (1995) (per

_________________________________________________________________

7. The evidence established that Ferguson had been convicted of murder

and aggravated assault.

curiam). Yet in his supplemental opening brief to the

Delaware Supreme Court, Ferguson cited Espinosa v.

Florida, 505 U.S. 1079, 112 S.Ct. 2926 (1992), in support

of his argument that the court should have instructed the

jury to consider these two duplicative factors as one when

balancing the aggravating and mitigating factors. In

Espinosa, the Supreme Court held that in states where the

sentencer must weigh the aggravating and mitigating

factors, the weighing of an invalid factor violates the Eighth

Amendment. Id. at 1082, 112 S.Ct. at 2928. Thus,

Ferguson supported his argument by citing Supreme Court

case law which directly addressed the Eighth Amendment

argument he advanced. Accordingly, he did present his

duplicative aggravating circumstance claim in terms of the

denial of the same federal right he asserts here.

The state nevertheless emphasizes that the Delaware

Supreme Court did not analyze Ferguson's duplicative

circumstances claim in federal terms. But to satisfy the

exhaustion requirement, a defendant only need have given

the state courts the opportunity to pass on the merits of a

claim. See Picard v. Connor, 450 U.S. 270, 275, 92 S.Ct.

509, 512 (1971). Moreover, in its opinion in Ferguson, the

Delaware Supreme Court indicated that it previously had

held in Deputy v. State, 500 A.2d 581 (Del. 1985), that "the

question of whether these aggravating circumstances are

`duplicative' is a matter of statutory construction, rather

than an issue of constitutionality." Ferguson , 642 A.2d at

782 (citing Deputy, 500 A.2d at 600-01). However, in

Deputy the court relied on its previous decision in Flamer v.

State, 490 A.2d 104, 125 (Del. 1983), which had noted that

in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976),

the United States Supreme Court upheld a sentence of

death in which these same two allegedly duplicative

aggravating circumstances were presented to the jury

without an instruction to treat them as a single factor. See

Deputy, 500 A.2d at 600-01. The Delaware court in Deputy

noted that in Gregg the Supreme Court held that the

"statutory system under which [the defendant] was

sentenced to death does not violate the Constitution." Id. at

600-01. Therefore, it appears that the Delaware Supreme

Court in Ferguson's case limited its review to a question of

statutory construction in reliance on its conclusion that the

Supreme Court had rejected the constitutional basis for the

argument. It thus did not confine its review because

Ferguson failed to assert a constitutional claim.

Accordingly, the duplicative aggravating statutory

circumstances claim is exhausted.

(b) Merits of the claim

In our view, the Delaware court read Gregg v. Georgia too

broadly. In Gregg, although the petitioner attacked certain

aggravating circumstances as vague and therefore violative

of the Eighth Amendment, he did not raise a duplicative

aggravating circumstances argument before the Supreme

Court. Indeed, the Court emphasized that it was reviewing

the sentencing system "as a whole". See Gregg, 428 U.S. at

200, 96 S.Ct. at 2938. Thus, notwithstanding the Delaware

court's reliance on Gregg, we are satisfied that it did not

pass on Ferguson's Eighth Amendment constitutional

duplicative aggravating circumstances argument, even

though it had the opportunity to do so. Accordingly, we

cannot say that the Delaware Supreme Court took into

account controlling Supreme Court decisions. This point is

critical because under the AEDPA the limitation on the

granting of an application for a writ of habeas corpus is

only "with respect to any claim that was adjudicated on the

merits in State court proceedings." Hence we exercise pre-

AEDPA independent judgment on the duplicative

aggravating circumstances claim.

In considering the duplicative aggravating circumstances

claim, we recognize that the Delaware Supreme Court's

interpretation of state law is entitled to deference. The court

rejected the claim, holding that under Delaware law, the

robbery and pecuniary gain claims are not always

duplicative. See Ferguson, 642 A.2d at 782. It noted that in

Delaware robbery is defined as forcible theft, which

"encompasses two separate concepts: `[T]he actor may

intend to deprive the owner of property, or his mind may be

focused rather on gain to himself or another mind entitled

thereto.' " Id. (emphasis in original). The court therefore

concluded that not all robberies are committed for

pecuniary gain and thus "those two factors are not always

duplicative." Id. But the Delaware Supreme Court's

explanation of state law does not resolve the duplicative

aggravating circumstances claim for the court at Ferguson's

trial did not instruct the jury with respect to the two

concepts of theft. See app. at 109-19. Moreover, there was

no evidence at the trial that Ferguson intended to deprive

his victim of his money for any other purpose other than

pecuniary gain. Consequently, the distinction dependent on

the nature of the theft the Delaware Supreme Court in

Ferguson drew was not tied to the circumstances

surrounding the consideration of the aggravating factors at

Ferguson's trial.

We also recognize that the Delaware Supreme Court

further distinguished the two aggravating factors as follows:

"Robbery, as an aggravating factor, focuses on the means of

accomplishing the crime, i.e., force. Pecuniary gain, as an

aggravating factor, focuses on the motive for the crime, i.e.

either gain or owner deprivation." Ferguson , 642 A.2d at

782 (emphasis in original). Once again, although the two

aggravators may be conceptually distinct, the trial court did

not instruct the jury to consider these concepts in the

discrete way the Delaware Supreme Court described them

and consequently, whatever might be true in other cases,

the distinction the court made is not germane here. See

app. at 109-19. Accordingly, we cannot resolve the

duplicative aggravating circumstances issue by holding that

in fact at Ferguson's trial the pecuniary gain and robbery

circumstances were not duplicative.

Nevertheless, even assuming arguendo that the robbery

and pecuniary gain factors were duplicative in this case, we

are satisfied that the jury's consideration of them did not

constitute an Eighth Amendment violation. We held in

Flamer v. Delaware, 68 F.3d 736 (3d Cir. 1995) (en banc),

that Delaware's death penalty statute prior to its 1991

amendment was a "non-weighing statute," that is, after the

jury narrowed the class of persons eligible for the death

penalty based on a finding of at least one statutory

aggravating factor, it then determined whether the

aggravating circumstances, statutory or not, outweighed

the mitigating circumstances. See id. at 745-49. The latter

stage of the sentencing process is described as the

"selection" stage because the jury determines whether the

particular defendant found to be eligible for the death

penalty should be sentenced to death. See United States v.

McCullah, 76 F.3d 1087, 1106 (10th Cir. 1996). 8 We

reiterate that in making this selection in a non-weighing

state the jury considers all aggravating circumstances, not

merely those enumerated in the statute. See Flamer, 68

F.3d at 749. In contrast, during this latter stage under a

"weighing statute," the jury is required to weigh only the

statutory aggravating factors against any mitigating factors.

Determining whether a sentencing scheme is a "weighing

statute" is pivotal in our duplicative circumstances inquiry.

In Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct.

1441, 1451 (1990), the Court held that in a weighing state

if the jury considers an invalid statutory aggravating

circumstance at the selection stage, on appeal the court

either must reweigh the remaining valid statutory

aggravators and any mitigating circumstance or make a

harmless error analysis. But Zant v. Stephens , 462 U.S.

862, 881, 103 S.Ct. 2733, 2745 (1983), held that in a non-

weighing state the consideration of an invalid statutory

aggravator at the narrowing stage does not render a death

verdict at the selection stage constitutionally infirm,

provided there is at least one valid statutory aggravator

rendering the defendant death penalty eligible. Plainly if

Zant is applicable Ferguson's duplicative aggravating

circumstances argument must fail.

Ferguson makes several arguments in support of

construing the Delaware statute as a weighing statute. He

first contends that notwithstanding our opinion in Flamer

the 1991 amendments transformed the statute into a

weighing statute. See br. at 36. However, as the state notes,

the 1991 amendments did not alter the relevant provisions

regarding what is to be considered during the selection

stage in a capital case. While the amendments did change

the functions of the jury and the court in the sentencing

process, making the court the ultimate decisionmaker, this

modification made the sentencing scheme consistent with

the one at issue in Zant and did not change Delaware to a

"weighing" state. Because the Delaware statute has not

_________________________________________________________________

8. Rehearing was denied in McCullah but the opinion on rehearing is not

germane to the point involved here. See 87 F.3d 1136 (10th Cir. 1996).

been amended in any significant way relevant to the

duplicative factors issue, we are bound by our persuasive

opinion in Flamer, which concluded that the Delaware

sentencing statute is not a "weighing statute." See Flamer,

68 F.3d at 749. Indeed, Flamer recognized that the 1991

amendments were, with respect to the weighing issue,

"substantially the same" as earlier law. See id. at 740 n.1.

Thus, in light of Zant Ferguson's duplicative aggravating

circumstances argument must fail even if the robbery and

pecuniary gain aggravators are singular in character.

We recognize that Ferguson argues further that the effect

of the jury charge and the special interrogatory submitted

to it was to transform the statute as applied into a

"weighing" sentencing scheme by leading the jury to believe

that it was required to rely on statutory aggravating factors

in recommending a sentence. See br. at 39-41. We rejected

a similar argument in Flamer even though the special

interrogatory in that case arguably could have suggested to

the jury that it could not impose the death sentence at the

selection stage unless it relied on a statutory aggravating

circumstance.

In this case Ferguson's argument is weaker on this

transformation point because the interrogatory submitted

to the jury at his trial was not ambiguous in this respect as

it provided as follows:

#1 Do you find the following statutory aggravating

circumstance has been proven to exist beyond a

reasonable doubt? . . .

#2 Do you find by a preponderance of the evidence,

after weighing all relevant evidence in aggravation

or mitigation which bears upon the particular

circumstances or details of the commission of the

offense and the character and propensities of the

offender, the aggravating circumstances found to

exist outweigh the mitigating circumstances found

to exist?

App. at 120-21. Moreover, the interrogatory did not ask the

jury, as was the case in Flamer, see 68 F.3d at 751, to

specify the specific statutory aggravating circumstances on

which it relied, if any, during the selection stage.

Furthermore, the court specifically instructed the jury that

it was not limited to consideration of the statutory

aggravating circumstances:

Delaware law specifies certain statutory aggravating

circumstances which the State may contend exist in a

particular case. The law does not specify, define, or

otherwise identify what constitutes a mitigating

circumstance, but the defendant may offer evidence

relating to any mitigating circumstance which it

contends exists in a particular case. The State may

likewise offer evidence as to matters in aggravation in

addition to any statutory aggravating circumstances

they seek to prove.

An aggravating circumstance is a factor which tends to

make the defendant's conduct more serious or

imposition of a penalty of death more appropriate.

. . .

After you have decided whether one or more statutory

aggravating circumstances exists, you must then weigh

and consider the mitigating circumstances and the

aggravating circumstances including, but not limited

to, the statutory aggravating circumstance or

circumstances that you may have already found to

exist.

App. at 113-16.

Thus, while court clearly instructed the jury to consider

the statutory aggravating circumstances, the court did not

give the jury the impression that it could not impose the

death penalty unless it relied on one of these factors.

Furthermore, the prosecutor argued at length to the jury

regarding the presence of nonstatutory aggravating factors

and Ferguson's attorney and Ferguson personally argued to

the jury that it should take into account numerous

mitigating circumstances. Accordingly, the interrogatory did

not convert the selection stage at Ferguson's trial into a

weighing process in a Clemons sense.9

_________________________________________________________________

9. We note that in making its decision the court at Ferguson's trial

specifically relied in part on aggravating circumstances that were not

included in the three factors the jury found.

Ferguson nevertheless suggests that consideration by the

jury of any statutory aggravating circumstances during the

selection stage transforms the statute into a weighing

scheme. See br. at 38-39. To support this argument,

Ferguson focuses on the dissent's reasoning in Flamer;

however, the majority in Flamer rejected this contention.

See Flamer, 68 F.3d at 749. Moreover, the Supreme Court

noted that the statutory scheme in Zant, which was a non-

weighing statute, did not "place particular emphasis on the

role of statutory aggravating circumstances" during the

selection stage. Zant, 462 U.S. at 889, 103 S.Ct. at 2749.

The Court did not indicate that any consideration would

have transformed the statute into a weighing scheme.

Indeed, the Court's opinion presupposes that consideration

of all aggravating circumstances at the selection stage

includes those enumerated by statute. Likewise, in

Delaware, the jury is instructed to consider all aggravating

circumstances, and is not instructed to place particular

emphasis on the statutory factors.

As Ferguson concedes, in reviewing a non-weighing

statute, this court may uphold a death verdict where the

jury considered an invalid statutory aggravating factor, br.

at 36, if the jury also found a valid statutory factor. Of

course, here we know that the jury found at least two valid

statutory factors. Furthermore, while the Supreme Court

held in Zant that merely labeling an aggravating

circumstance as "statutory" may cause a jury to give

somewhat greater weight to that factor during the selection

stage than otherwise would be the case, it recognized that

that circumstance may have an "inconsequential" impact

on the verdict. Id. at 888-89, 103 S.Ct. at 2749. As we

previously noted, the instructions did not suggest to the

jury that it should place any greater emphasis on the

statutory aggravating circumstances during the selection

stage.

Moreover, unlike the situation in Zant and Flamer where

the aggravating circumstances were invalid because they

were too vague to channel a sentencer's discretion in a

capital case, the challenge here is that the jury was

permitted to consider the same factor twice. Yet the court

obviously mitigated the effect of that double consideration

because it instructed the jury that "[i]n weighing the

aggravating and mitigating circumstances, it is not a

question of mere numbers of each, but rather the relative

weight of each as compared to the others." App. at 116.

Thus, this was not a case in which the jury could have

made its recommendation merely because it determined

that there were three rather than two aggravating factors.

Accordingly, it is perfectly clear that consideration of both

the robbery and pecuniary gain factors did not result in an

arbitrary or capricious imposition of the death penalty.

Overall, we cannot possibly find an Eighth Amendment

duplicative aggravating circumstances violation here even

though our determination of the issue is predicated on our

exercise of independent judgment.

Finally, we point out that it is highly significant that the

jury's finding was only a recommendation that the court

was obliged to consider but ultimately could reject. As we

previously explained, the court regarded the robbery and

pecuniary gain aggravators as one factor. In the

circumstances, we conclude that Ferguson was not

prejudiced by the jury's finding that the two factors were

separate. After all, the jury's consideration of the factors as

discrete could have made a difference in the sentence

imposed only if the jury would have recommended a

sentence of life imprisonment if it considered the robbery

and pecuniary gain factors as singular, and the court would

have followed its recommendation. We think that such a

scenario is far-fetched in view of the court's findings.

Accordingly, even if there was error in the jury considering

the pecuniary gain and robbery factors as separate

aggravating factors, the error was harmless under any

standard against which it could be considered no matter

how exacting.

In recognition that the Delaware Supreme Court

considered Ferguson's duplicative aggravating

circumstances claim on a plain error basis, see Ferguson,

642 A.2d 781, the final issue we directed the parties to

address in the certificate of appealability related to the

possibility of there being an independent and adequate

state ground barring federal review because of a procedural

default in the state courts. Our disposition on the merits of

the duplicative aggravating circumstances claim makes it

unnecessary for us to consider the procedural default

issue, particularly inasmuch as the Delaware Supreme

Court, in rejecting the duplicative aggravating

circumstances claim on the merits, did not suggest that its

result might have been different if it did not regard the

matter as being before it on a plain error basis. See

Ferguson, 642 A.2d at 781-83. Thus, although 28 U.S.C.

S 2254(b)(2), which provides that "[a]n application for a writ

of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State," is not in

terms applicable to procedural defaults we see no reason

why we should not act consistently with that section when

there is a possible procedural default. Of course, the

procedural default issue differs from the exhaustion of state

remedies issue which, notwithstanding 28 U.S.C.

S 2254(b)(2), we examined because we needed to parse the

Delaware Supreme Court's opinion in Ferguson to

determine the effect of the AEDPA in this case.

III. CONCLUSION

For the foregoing reasons, the order of the district court

of December 13, 1996, denying habeas corpus relief will be

affirmed.

McKEE, Circuit Judge, concurring.

I agree that Ferguson's claims must fail under AEDPA's

deferential standard of review, and I therefore concur in the

court's judgment. I write separately, however, because I

disagree with several of the observations expressed in the

majority opinion.

Our review here is narrowly confined by 28 U.S.C.

S 2254(d)(1). Affording the deference required by that

statute, I agree that the Delaware courts decided

Ferguson's ex post facto claim in a manner that is neither

"contrary to," nor "an unreasonable application of," the

analysis required under the Supreme Court case law

discussed in section II B of the majority opinion. See Maj.

Op. at 13-27.1 However, my colleagues do not stop there.

Rather, they opine: "we would have reached the result we

do even if we exercised independent judgment in the way

required before the adoption of the AEDPA." Maj. Op. at 32.

That statement is, of course, pure dictum, and I strongly

disagree with it.

This case is governed by AEDPA, and there is no reason

to hypothesize a de novo review of Ferguson's ex post facto

claim. Furthermore, I do not agree that Ferguson's claim

would necessarily fail if we were permitted to afford it

independent review. At the very least, resolution of

Ferguson's ex post facto claim presents an issue over which

reasonable minds can differ, and therefore resolution of the

issue is not nearly as clear as the majority suggests.

Indeed, it is solely because "reasonable" minds can differ on

this very close call that Ferguson's claim fails on habeas

review of the state court ruling. Under AEDPA, we must

defer to "reasonable" state court decisions even though, in

our independent judgment, they are wrong. "Section

2254(d) requires us to give state courts' opinions a

respectful reading, and to listen carefully to their

conclusions, but when the state court addresses a legal

question, it is the law as determined by the Supreme Court

_________________________________________________________________

1. I agree with my colleagues that the Supreme Court's most recent case

of Carmwell v. Texas, 2000 WL 504585 (U.S. May 1, 2000), is not

implicated here given the arguments that Ferguson is making in his

appeal. See Maj. Op. at 24-25.

of the United States that prevails." Williams v. Taylor, ___

U.S. ___, ___ S.Ct. ___, 2000 WL 385369, *24 (U.S. Apr. 18,

2000) (internal quotation marks omitted). This analytical

paradox is endemic to an analysis under AEDPA, but the

key to resolving it here is the deference that the Supreme

Court has instructed us to afford the decision of the

Delaware Supreme Court.2

In Williams , the Supreme Court confronted the enigmatic

language of S 2254(d)(1). Writing for the majority, Justice

O'Connor amplified the meaning of AEDPA's requirement

that a state court decision be "contrary to," or involve "an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States." The "contrary to" clause, the Court explained,

permits a federal habeas court to grant relief for a

constitutional violation in two scenarios: (1) when"the state

court applies a rule that contradicts the governing law set

forth in [Supreme Court] cases"; or (2) when "the state

court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court

and nevertheless arrives at a result different from[Supreme

Court] precedent." Id. at *24. "[I]n either of these two

scenarios, a federal court will be unconstrained by

S 2254(d)(1) because the state-court decision falls within

that provision's `contrary to' clause." Id. The Court

cautioned, however, that "a run-of-the-mill state-court

decision applying the correct legal rule from [Supreme

_________________________________________________________________

2. The tension inherent in this paradox is illustrated in the Court's

observation that:

When federal judges exercise their federal-question jurisdiction

under the judicial power of Article III of the Constitution, it is

emphatically the province and duty of those judges to say what the

law is. At the core of this power is the federal courts'

independent

responsibility -- independent from its coequal branches in the

Federal Government, and independent from the separate authority

of the several states -- to interpret federal law. A construction

AEDPA that would require the federal courts to cede this authority

to the courts of the States would be inconsistent with the practice

that federal judges have traditionally followed in discharging

their

duties under Article III of the Constitution.

Williams, 2000 WL 385369, at *9 (Stevens, J., dissenting).

Court] cases to the facts of a prisoner's case would not fit

comfortably within S 2254(d)(1)'s `contrary to' clause." Id.

The Court cited as an example a case in which a state court

properly considered an ineffective assistance of counsel

claim under the controlling precedent of Strickland v.

Washington, explaining that, "[a]lthough the state-court

decision may be contrary to the federal court's conception

of how Strickland ought to be applied in that particular

case, the decision is not `mutually opposed' to Strickland

itself." Id. The Court noted that such cases are more

appropriately reviewed solely for their "reasonableness." I

believe that best describes our situation here, and we

should therefore focus our inquiry on the reasonableness of

the Delaware Supreme Court's decision.3

The "unreasonable application" clause of S 2254(d)(1)

likewise covers two scenarios: (1) when "the state court

identifies the correct governing legal rule from[Supreme

Court] cases but unreasonably applies it to the facts of the

particular state prisoner's case"; or (2) when"the state

court either unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it

should not apply or unreasonably refuses to extend that

principle to a new context where it should apply." Id. at

*25. This "reasonableness" inquiry is an "objective" one. See

id. at *26. "[T]he most important point is that an

unreasonable application of federal law is different from an

incorrect application of federal law." Id. at *27. Thus, "a

federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that

application must also be unreasonable." Id. However, the

Court did not define the mercurial line that divides an

"incorrect" from an "unreasonable" application of federal

law. Rather, it simply noted that "an unreasonable

application of federal law is different from an incorrect or

erroneous application of federal law." Id.

_________________________________________________________________

3. However, this is not to suggest that an inquiry under either clause of

AEDPA necessarily displaces an inquiry under the concomitant clause.

We will often have to examine a state court decision under both clauses

of AEDPA.

Applying the Williams framework here, the majority

properly rejects Ferguson's ex post facto claim. The

Delaware Supreme Court identified the relevant Supreme

Court precedents, and it decided the merits of Ferguson's

claim in a manner that was neither "mutually opposed" to

those precedents, nor "unreasonable" in its application of

them. However, this does not mean that the state court was

correct in its application of federal law.

The Delaware Supreme Court held that,

[g]iven the teaching in Dobbert, it is clear that the

changes effected by Delaware's new death penalty

statute are procedural. The revisions in the law, like

those in Dobbert, merely altered the method of

determining imposition of the death penalty. The

quantum of punishment for the crime of first-degree

murder in Delaware remains unchanged.

Cohen, 604 A.2d at 853. The simplicity of that analysis is

misleading, and it produces a conclusion that is incorrect,

though not necessarily unreasonable. To be sure,

Delaware's law "merely altered the methods employed in

determining the punishment to be imposed" insofar as it

reassigned the task of imposing sentence from the jury to

the judge. But unlike the statute in Dobbert, Delaware's law

so conflates procedure and substance that it obfuscates the

distinction between the two.

Under the new law, if a judge determines that

aggravating factors outweigh mitigating factors, he or she

must impose the death penalty. The new procedure,

therefore, mandates a substantively different outcome--the

death sentence rather than life without parole -- when

aggravating factors outweigh mitigating factors. One no

longer has the discretion to impose life imprisonment when

the aggravators weigh more heavily in the balance.

Delaware therefore converted what had been only a

discretionary maximum into a mandatory sentence when

the aggravating factors outweigh any mitigating factors. As

the majority quite correctly notes, the trial judge here

observed at sentencing:

[U]nlike a jury under the old law, this Court, under the

new law, may consider only whether or not aggravating

factors outweigh mitigating factors. The Court may not

in unfettered discretion refuse to impose a sentence of

death where aggravating factors are proven and found

to be of substantial weight and mitigating factors are

found to be of less weight. The Court may not consider,

in reaching its decision, mercy, societal concerns,

proportionality of the sentence to other sentences

imposed for Murder First Degree in other cases, or any

other issues not specifically pertaining to `the

particular circumstances or details of the offense[or]

. . . the character and propensities of the offender. . . .'

These factors most likely were considered by and may

have influenced the jury or individual jury members in

their decision under the prior statute to recommend or

fail to recommend death. Under that law, the jury

clearly acted as `the conscience of the community' and

could in its unfettered discretion recommend life as the

appropriate punishment for the crime and offender

even though it had found the aggravating factors to

outweigh the mitigating factors.

Maj. Op. at 7 (quoting App. at 129-130).

Thus, the "procedural change" wrought by the new law

precludes a juror from exercising mercy in a given case,

and mutes "the conscience of the community" in

deliberations into whether a member of that community

should be put to death. It is misleading to characterize

such a fundamental change in the law as merely

"procedural." I read Lindsey v. Washington to stand for the

proposition that such a change may well have increased the

quantum of punishment for Ferguson's crime.

The Delaware courts sought to distinguish Lindsey by

citing the Supreme Court's Eighth Amendment

jurisprudence and holding that the new law is not

"impermissibly mandatory." See Cohen, 604 A.2d at 855.

But clearly, a determination that the new law is not

"impermissibly mandatory" sidesteps the crucial question

whether the new law "increased the quantum of

punishment" for Ferguson's offense. The change in

Delaware's law could not have eliminated discretion without

violating the Eighth Amendment. See Furman v. Georgia,

408 U.S. 238 (1972). Thus, even if we assume that

Delaware's new law passes muster under the Eighth

Amendment because it affords an individualized inquiry

before sentence is imposed, that does not mean that

retrospective application of that law to Ferguson's case did

not make the death sentence "mandatory" by eliminating

the discretion to impose a life sentence after it was

determined that the aggravating circumstances outweighed

mitigating circumstances.

The Delaware Supreme Court also sought to distinguish

Lindsey by ruling that a death sentence is not truly

"mandatory" because the judge must assign a"relative

weight" to the aggravating and mitigating factors before

determining which sentence--life imprisonment or death--

is required by the new statute. The state court concluded

that, given the presence of this "weighing process," "[t]he

sentencing process remains basically discretionary, merely

shifting the ultimate decision from the jury to the trial

judge." Cohen, 604 A.2d at 855. The District Court agreed,

stating that "[t]he sentencing decision has not been reduced

to a mechanical exercise, as it was in Lindsey ." This

"distinction" is irrelevant.

While the new law required a "predicate" assessment of

the relative weight of the sentencing evidence before the

mandated sentence was imposed, that did not make the

imposition of this death sentence any less mechanical. As

noted, to survive scrutiny under the Eighth Amendment,

Delaware must allow for individualized findings of fact

before the death sentence is imposed. See, e.g., Blystone,

494 U.S. at 305. Thus, it is specious to distinguish Lindsey

by asserting that, because the new law did not require

imposition of a death sentence at the very moment

Ferguson was convicted, the law somehow lost its

"mandatory" and "mechanical" nature. In the context of

capital punishment jurisprudence, it clearly did not.

Rather, the Delaware law is the capital sentencing

equivalent of the law deemed ex post facto in Lindsey. The

dispositive issue in Lindsey was that a previously optional

maximum became mandatory, not the procedural context

in which that metamorphosis occurred. Thus, the state

court's reliance upon what it perceived to be the difference

between the statute in Lindsey ("the penalty for this offense

shall be fifteen years in prison") and the statute here ("if, at

sentencing, the judge finds that the aggravating factors

outweigh the mitigating factors, the sentence shall be

death") does not further the inquiry. "Subtle ex post facto

violations are no more permissible than overt ones." Collins,

497 U.S. at 46.

It is also obvious that Delaware's new law had exactly the

intended result. Delaware enacted the new sentencing

scheme to make it more difficult for convicted murderers to

escape execution. The Delaware Supreme Court has noted

that

the catalyst for the legislation changing the death

penalty statute was the imposition of life sentences on

defendants by a New Castle County jury in a much

publicized capital murder case involving the execution

style murders of two armored car guards.

Cohen, 604 A.2d at 849. The reaction reflected the

community's justifiable outrage over those murders.

Ferguson contends that a vastly higher proportion of

defendants have been sentenced to death under the new

statute. He argues, therefore, that Lindsey prevents

Delaware from applying the new statute to him. He asserts

that of the 28 defendants who have been sentenced under

the amended statute, 15 (more than 50%) have been

sentenced to death. Of the 29 defendants sentenced under

the old statute in the 6 years prior to the amendment, only

1 (less than 4%) was sentenced to death.4

The majority minimizes this argument in part by noting:

we must consider the increased imposition of the death

penalty against the circumstance that under the

amended law the court as opposed to a unanimous

jury must determine to impose a death penalty. Surely

it would be expected that, in light of that difference,

there would have been more sentences of death.

Maj. Op. at 33 (emphasis added). The majority cites no

authority for this speculation, and I submit that it is at

_________________________________________________________________

4. The state disputes this latter figure, stating that 10 defendants were

sentenced to death under the previous statute.

least as likely (indeed more so) that this change would, by

itself, reduce the number of death sentences. After all, one

can safely assume that trained jurists are less likely to

allow the emotions that so often percolate into the fabric of

death penalty proceedings to impact their judgments about

the cases that are submitted to death qualified juries.

Moreover, there is a significant school of thought that a

jury that has been "death qualified" is more prone to

convict, and one might argue more prone to impose the

death penalty, than a jury composed of persons opposed to

the death penalty. See Witt v. Wainwright, 470 U.S. 1039

(1985) (and cases cited therein). Finally, I think it fair to

assume that a trained jurist who has been exposed to

numerous homicide cases has a better frame of reference

than a lay jury, and therefore less likely to be as outraged

about a given homicide as lay jurors who have never seen

a homicide, or a convicted killer, "up close and personal."

Accordingly, the trained jurist may often be far less likely to

assume that the ultimate sanction is required in a given

case.

I think it is obvious that the new statute is significantly

more likely to result in the death penalty than the statute

in effect at the time of Ferguson's crime. However, as the

majority correctly notes, that does not necessarily implicate

the Ex Post Facto Clause. See Collins v. Youngblood, 497

U.S. 37 (1990). However, that clause would be implicated

under the aforementioned Lindsey analysis under de novo

review, and I believe that Delaware's retrospective

application of the challenged statute to Ferguson's case

would violate the Ex Post Facto Clause under Lindsey.

That said, I am constrained, nevertheless, to agree with

my colleagues that the state court's treatment of Lindsey

and the other Supreme Court precedents must be upheld in

light of S 2254(d)(1)'s mandate. Under the"contrary to"

clause, the Delaware Supreme Court cited and applied the

correct law. To paraphrase Williams, while I believe the

state court decision does not square with my "conception of

how [Lindsey] ought to be applied in th[is] particular case,

the decision is not `mutually opposed' to [ Lindsey] itself."

Williams, 2000 WL 385369, at *24. Nor is it unreasonable

to hold that Delaware's new law limited the factors that

could be considered before sentence was imposed upon

Ferguson, and still conclude that the law did not eliminate

all discretion from the sentencing process. As the majority

explains, that is something that Lindsey (and subsequent

Supreme Court precedent) can be fairly said to require for

a law to contravene the ex post facto prohibition.

Nor can I conclude that the Delaware Supreme Court was

"objectively unreasonable" (as opposed to"incorrect") in its

application of, or "refusal to extend," clearly established

federal law to the facts of Ferguson's case. Thus, while I

concur in the Court's judgment, I do so solely because I

agree that the result we reach is required under AEDPA.

I also agree that Ferguson's challenge to the duplicative

nature of the aggravating factors must fail, but for reasons

that I must distinguish from the analysis of my colleagues.

I believe Ferguson's "double counting of aggravating factors"

claim fails solely because the trial judge in this case stated

that he counted the robbery and pecuniary gain

circumstances as one factor during the weighing process.

The record is clear that the judge placed "no independent

weight" on the pecuniary gain aggravator. It was the judge's

assessment of the sentencing factors, not the jury's, that

sealed Ferguson's fate. Thus, regardless of the merits of

Ferguson's Eighth Amendment claim in the abstract, it is

clear that the jury's consideration of the two circumstances

(though problematic) had no bearing on his sentence, and

Ferguson can show no prejudice as a result. Nevertheless,

I think Ferguson's argument as to the alleged "double

counting" is much stronger than the majority suggests, and

I do not join the majority's lengthy discussion of the merits

of this claim. I do, however, join the majority's conclusion

that the record does not support the Delaware Supreme

Court's resolution of the claim, and the majority's

conclusion that Ferguson was not prejudiced by double

counting because the sentencing judge didn't double count.

Accordingly, for the reasons set forth above, I concur in

the judgment of my colleagues.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.