Opinion

Riley v. Taylor

Court: Court of Appeals for the Third Circuit
Filed: Dec 28, 2001
Cited by: 0 cases
Authority: More cited than 40.1%

post-AEDPA denial of deference to state court because it unreasonably applied the principles of Strickland v. Washington, 466 U.S. 668 (1984)

How later courts described this case

post-AEDPA denial of deference to state court because it unreasonably applied the principles of Strickland v. Washington, 466 U.S. 668 (1984)
stating that serious questions of pretext arise when the facts in the record are "objectively contrary to" the prosecutor's explanations
"[A]s a general matter, comparisons between challenged jurors and similarly situated, unchallenged jurors of a different race or gender can be probative of whether a peremptory challenge is racially motivated."
stating that courts are not bound to accept race-neutral reasons that are either unsupported by the record or refuted by it

Written by the judges who cited it.

The opinion

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

12-28-2001

Riley v. Taylor

Precedential or Non-Precedential:

Docket 98-9009

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"Riley v. Taylor" (2001). 2001 Decisions. Paper 304.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/304

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Volume 1 of 2

Filed December 28, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-9009

JAMES WILLIAM RILEY,

Appellant

STANLEY W. TAYLOR;

*M. JANE BRADY

*(Pursuant to Rule 43(c), F.R.A.P.)

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 91-cv-00438)

District Judge: Hon. Joseph J. Farnan, Jr.

Argued November 29, 1999

Before: SLOVITER, ALITO and STAPLETON, Circuit Judges

Argued En Banc May 23, 2001

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,

SCIRICA, NYGAARD, ALITO, ROTH, McKEE, BARRY,

AMBRO, FUENTES, and STAPLETON, Circuit Judges

(Filed: December 28, 2001)

Thomas J. Allingham, II (Argued)

Stephen D. Dargitz

Skadden, Arps, Slate, Meagher &

Flom

Wilmington, DE 19899

Mary M. MaloneyHuss

Wolf, Block, Schorr & Solis-Cohen

Wilmington, DE 19801

Lawrence J. Connell

Widener University School of Law

Wilmington, DE 19803

Attorneys for Appellant

James W. Riley

Loren C. Meyers (Argued)

Chief of Appeals Division

William E. Molchen, II

Deputy Attorney General

Department of Justice

Wilmington, DE 19801

Attorney for Appellees

Stanley Taylor and M. Jane Brady

OPINION OF THE COURT

SLOVITER, Circuit Judge, with whom Judges Mansmann,

Nygaard, Roth, McKee and Ambro join, with whom Judges

Scirica and Fuentes join as to Part II B, and with whom

Chief Judge Becker joins in the judgment.

Appellant James W. Riley, a 22 year old black man, was

sentenced to death on the vote of a Delaware state jury in

December 1982. If the time intervening between that

sentence and this court's en banc consideration of the

matter has been lengthy, it is not because there has been

undue delay at any stage but because the case raises

legitimate questions that go to the constitutionality of the

original trial and sentencing. It was necessary to complete

a series of proceedings in both state and federal court, none

of them duplicative, before the case reached this stage.

After all, there can be no reconsideration after the

execution of a death sentence.

INTRODUCTION

According to testimony at the trial, Riley and Tyrone

Baxter stopped in a liquor store in Dover, Delaware, on

February 8, 1982, to get some beer and rob the store.

Michael Williams waited in the car. Baxter testified that

Riley, armed with a gun, placed a bottle of beer on the

counter and announced the store was being robbed. When

the store owner, James Feeley, a 59 year old white man,

backed away from the cash register, Baxter grabbed the

money out of the cash drawer. Riley tried to take Feeley's

wallet, but Feeley resisted. At Baxter's urging, Riley shot

Feeley in the leg. Feeley, who was then hopping up and

down, apparently from the gunshot, said "[Y]ou f 'ing

niggers." App. at 327. As Riley and Baxter were proceeding

to the door to leave, Feeley threw a wine bottle that struck

Riley in the arm. Riley then shot Feeley in the chest, killing

him.

In May 1982, Riley, Baxter, and Williams were indicted

on charges of felony murder, intentional murder, first

degree robbery, possession of a deadly weapon during a

felony, and second degree conspiracy. Riley pled not guilty

to all charges. Baxter pled guilty to first degree murder and

was sentenced to life imprisonment in exchange for his

testimony against Riley. The murder and weapon charges

against Williams were also dropped in exchange for his

testimony against Riley, and he was subsequently convicted

of the robbery and conspiracy charges.

Riley was represented at trial by appointed counsel, a

defense-side civil litigator who had never represented a

criminal defendant in either a murder or a capital case. His

pretrial motions for co-counsel and funds for a private

investigator were denied. The prosecutors in Riley's case

were James Liguori and Mark McNulty. Liguori, the lead

prosecutor, was a friend and neighbor of Feeley's, and they

belonged to the same church.

The State presented the testimony of Baxter, Williams,

Baxter's mother (who testified that Riley spent the night

before the robbery at her house), and a witness who

reported that Riley's fingerprints were on a bottle of beer in

the liquor store. In defense, Riley testified that he was in

Philadelphia on the day of the murder celebrating his

mother's birthday. However, Riley's mother did not testify in

support of his alibi. The only witness Riley presented other

than himself was an inmate at the prison in which Baxter

was incarcerated, and he testified that Baxter had admitted

to shooting Feeley.

Riley was tried before and convicted on all counts by an

all white jury in Kent County Superior Court (the Delaware

trial court) in December 1982. Four days after the verdict,

the jury proceeded to consider the penalty. The State

sought the death penalty, relying only on Riley's felony

murder conviction and using the underlying robbery as the

lone aggravating circumstance. Following a two-hour

penalty hearing, the jury unanimously recommended a

sentence of death which the court accepted. Riley was also

sentenced to life imprisonment without parole for

intentional murder, 20 years imprisonment for robbery, 5

years imprisonment for possession of a deadly weapon, and

3 years imprisonment for conspiracy. Riley's attorney

explained to the trial court that he spent only 14 hours

preparing for the penalty phase because he had been too

busy "with the defense and the merits" to spend more time

building a case in mitigation. App. at 443-444.

Riley appealed his conviction and sentence on numerous

grounds. In July 1985, the Delaware Supreme Court

affirmed, see Riley v. State, 496 A.2d 997 (Del. 1985)

(hereafter "Riley I"), and the Supreme Court of the United

States denied certiorari, see Riley v. Delaware , 478 U.S.

1022 (1986).

Represented by new counsel, Riley filed a motion for

post-conviction relief in Kent County Superior Court in

March 1987 before Judge Bush, the judge who had

presided at the trial (the "trial judge"), alleging, inter alia,

that his trial counsel had provided ineffective assistance of

counsel and that the prosecution had exercised its

peremptory challenges in a racially discriminatory manner

in violation of Batson v. Kentucky, 476 U.S. 79 (1986). After

three days of evidentiary hearings limited to the ineffective

assistance of counsel claim, the trial judge denied Riley's

motion. See State v. Riley, 1988 WL 47076 (Del. Super.

1988) (hereafter "Riley II"). Riley then requested the

Superior Court consider reargument on his Batson claim.

The trial judge had passed away and Judge Steele of the

Superior Court ("the hearing judge") granted Riley's request

for reargument, finding that Riley had established a prima

facie case of discrimination under Batson . See State v.

Riley, 1988 WL 130430, at *3 (Del. Super. 1988) (hereafter

"Riley III"). After holding an evidentiary hearing, the hearing

judge rejected Riley's Batson claim and all his other claims

as well. See Riley v. State, No. 200, 1988 (Del. Super. Ct.

April 21, 1989), App. at 886 (hereafter "Riley IV"). On

appeal, the Delaware Supreme Court again affirmed, see

Riley v. State, 585 A.2d 719 (Del. 1990) (hereafter "Riley

V"), and the Supreme Court of the United States again

denied certiorari, see Riley v. Delaware, 501 U.S. 1223

(1991).

On August 12, 1991, Riley filed a petition for a writ of

habeas corpus in the United States District Court for the

District of Delaware pursuant to 28 U.S.C. S 2254. Again

Riley obtained new lead counsel, although his post-

conviction counsel remained as co-counsel. The District

Court denied Riley's request to amend his petition to add

two additional claims and then denied his petition without

an evidentiary hearing. See Riley v. Snyder, 840 F. Supp.

1012 (D. Del. 1993) (hereafter "Riley VI"). Riley appealed,

and this court held that the denial of his motion to amend

was an abuse of discretion and remanded the case so that

Riley could raise all the issues he sought to raise in an

amended petition. See Riley v. Taylor, 62 F.3d 86 (3d Cir.

1995) (hereafter "Riley VII").

Riley filed his amended habeas petition on August 28,

1995, alleging 12 grounds for relief. The District Court

denied Riley's petition without holding an evidentiary

hearing. See Riley v. Taylor, 1998 WL 172856 (D. Del. Jan.

16, 1998) (hereafter "Riley VIII"). We then issued a

certificate of probable cause and Riley appealed, raising 12

claims. He asserted that:

1. The State's exercise of peremptory challeng es to

strike all prospective black jurors violated the

Equal Protection Clause under Batson v.

Kentucky, 476 U.S. 79 (1986).

2. The State's continuing conduct in withholdi ng

wiretap tapes of a key witness from Riley violated

Brady v. Maryland, 373 U.S. 83 (1963).

3. Riley received ineffective assistance of co unsel

because he was prejudiced by trial counsel's

deficient performance at the penalty hearing.

4. The trial court violated Riley's Sixth and

Fourteenth Amendment rights by denying his

motions to appoint co-counsel and a private

investigator.

5. The prosecution and the trial court made

improper remarks at the penalty hearing violating

the Eighth and Fourteenth Amendments under

Caldwell v. Mississippi, 472 U.S. 320 (1985).

6. The trial court failed to probe equivocal r esponses

during the death penalty voir dire in violation of

Witherspoon v. Illinois, 391 U.S. 510 (1968).

7. Riley's jury was unconstitutionally biased in favor

of returning the death penalty because the trial

judge's voir dire failed to identify all prospective

jurors who automatically would impose the death

penalty.

8. Riley was deprived of his constitutional ri ght to a

fair and impartial jury because of pretrial

publicity.

9. The Delaware Supreme Court's proportionalit y

review violated Riley's Eighth and Fourteenth

Amendment rights.

10. The trial court's jury instructions failed

adequately to guide Riley's jurors on the law,

thereby creating a substantial risk that the jurors

would impose the death penalty in an arbitrary

and capricious manner in violation of both the

Eighth and Fourteenth Amendments.

11. The use of felony murder to establish both Riley's

eligibility for death and the aggravating

circumstance warranting imposition of the death

penalty is arbitrary and capricious in violation of

the Eighth and Fourteenth Amendments.

12. The District Court abused its discretion in not

holding an evidentiary hearing, in denying Riley's

motions to conduct discovery and expand the

record, and in denying Riley's applications for

funds for medical and investigative experts.

A divided panel of this court affirmed. See Riley v. Taylor,

2001 WL 43597 (3d Cir. 2001) (hereafter "Riley IX"). The

author of this opinion dissented on two claims, those

raising Batson and Caldwell violations (claims numbered 1

and 5 above). On March 5, 2001, the full court granted

Riley's petition for rehearing en banc, and vacated the

panel's opinion and judgment. See Riley v. Taylor, 237 F.3d

348 (3d Cir. 2001). Our order limited the en banc

proceedings to the District Court's denial of Riley's Batson

and Caldwell claims. See id. We now reverse and direct the

District Court to grant the writ of habeas corpus. 1

The District Court exercised subject matter jurisdiction

pursuant to 28 U.S.C. S 2254. We possess appellate

jurisdiction pursuant to 28 U.S.C. SS 1291 and 2253.

II.

DISCUSSION

Riley presents two arguments to the en banc court. He

argues first, that the prosecution exercised its peremptory

challenges to strike black jurors in violation of the Equal

Protection Clause of the Fourteenth Amendment, and

second, that the prosecutor's statements to the jury in his

opening argument at sentencing misled the jury regarding

_________________________________________________________________

1. Our en banc order vacated the panel opinion and judgment in full. We

will reinstate the portion of the panel opinion authored by Judge Alito

that disposed of Riley's ten other claims, and append it hereto as

Appendix A.

its role in the sentencing process in violation of the Eighth

and Fourteenth Amendments. We will address each of these

arguments in turn.

THE BATSON CLAIM

Riley's claim that the prosecution violated the Equal

Protection Clause by using its peremptory challenges to

strike all three prospective black jurors from the jury panel

because of their race, thereby leaving no black juror sitting

on the jury, stems from the Supreme Court decision in

Batson v. Kentucky, 476 U.S. 79 (1986).2

1. Preservation of Claim

The District Court held that Riley was procedurally

barred from raising his Batson claim in his habeas petition

because he failed to present that claim to the trial court.

See Riley VIII, 1998 WL 172856, at *15. We do not agree.3

The Delaware Supreme Court concluded on Riley's direct

appeal "that no Sixth Amendment peremptory challenge

claim was fairly presented to the Trial Court," and also

held, in the alternate, that Riley's Batson claim failed on

the merits. Riley I, 496 A.2d at 1010. However, the

Supreme Court of the United States has since made clear

that, "[i]f the last state court to be presented with a

particular federal claim reaches the merits, it removes any

bar to federal-court review that might otherwise have been

available." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991).

In his memorandum opinion granting Riley's motion for a

post-conviction evidentiary hearing, the Superior Court

_________________________________________________________________

2. Although Riley's trial occurred several years before the Batson

decision, the Supreme Court did not deny certiorari in Riley's direct

appeal until shortly after Batson was decided, thus entitling Riley to the

benefit of that decision. See Griffith v. Kentucky, 479 U.S. 314, 328

(1987); Deputy v. Taylor, 19 F.3d 1485, 1491 n.6 (3d Cir. 1994).

3. Much of the discussion of procedural bar is taken from the opinion of

Judge Alito from the panel opinion that was vacated. See Riley IX, 2001

WL 43597, at *2-*6.

hearing judge stated that he did not think the State

Supreme Court would maintain its position that Riley had

failed to timely present a Batson claim. See Riley III, 1988

WL 130430, at *2 (citing Baynard v. State, 518 A.2d 682

(Del. 1986)).4 Thereafter, the hearing judge considered and

rejected Riley's Batson claim on the merits. See Riley IV,

App. at 887-891. On appeal, the Delaware Supreme Court

affirmed the hearing judge's decision, using language that

expressly refers to the Superior Court's rejection of Riley's

Batson claim on the merits. See infra note 9. Moreover, in

that passage, the Delaware Supreme Court expressly

reaffirmed its holding on direct appeal that the

prosecution's use of peremptory challenges in this case did

not violate the state constitution. Not only is there no

reaffirmation of its prior holding concerning procedural

default, but there is no reference to that holding, leading us

to conclude it no longer relied on a procedural bar. See

Harris v. Reed, 489 U.S. 255, 266 (1989) (concluding that

habeas claim was not procedurally barred where state court

rejected the claim on the merits notwithstanding its

observation that allegations "could have been raised [on]

direct appeal").

If the Delaware Supreme Court had continued to believe

at the time of its most recent decision that Riley's Batson

claim was foreclosed for failure to make a proper objection

at the time of trial, it seems likely that the Court would

have made that point expressly, instead of affirming the

hearing judge's findings on the merits. Indeed, it is unlikely

that it would have made no comment on the hearing

judge's failure to follow its earlier decision on foreclosure.

Thus, we interpret the decision of the Delaware Supreme

Court in Riley V (its most recent) to be a rejection of Riley's

Batson claim on the merits. Accordingly, Riley's Batson

claim is not procedurally barred and we proceed to examine

its merits.

_________________________________________________________________

4. In Baynard, the Court held that the defendant sufficiently raised an

objection to the State's peremptory challenges which resulted in an all

white jury being impaneled where defendant "noted the race of each

black against whom the State exercised a peremptory challenge," "moved

the Court to refuse the peremptory challenges against two of the drawn

black jurors and moved to quash the entire panel at the end of the jury

selection process." 518 A.2d at 687.

2. Batson v. Kentucky

In Batson, the Supreme Court reiterated the well-settled

principle that the Equal Protection Clause prohibits

discrimination on account of race in selection of both the

venire and the petit jury. See 476 U.S. at 88. This principle,

which dates back at least as far as Strauder v. West

Virginia, 100 U.S. 303 (1880), recognizes that racial

discrimination in the selection of jurors harms"not only the

accused whose life or liberty they are summoned to try,"

but also harms the potential juror, whose race "is unrelated

to his fitness as a juror." Batson, 476 U.S. at 87 (quotation

omitted). As the Court noted in Batson,"[s]election

procedures that purposefully exclude black persons from

juries undermine public confidence in the fairness of our

system of justice." Id.

The Court granted certiorari in Batson so that it could

reexamine the evidentiary burden its opinion in Swain v.

Alabama, 380 U.S. 202 (1965), had placed on a criminal

defendant who alleged that the State improperly used its

peremptory challenges to exclude jurors based on race. In

Swain, the Court had held that a defendant could satisfy a

prima facie case of purposeful discrimination by showing

that a prosecutor, "in case after case, whatever the

circumstances, whatever the crime and whoever the

defendant or the victim may be, is responsible for the

removal of Negroes who have been selected as qualified

jurors by the jury commissioners and who have survived

challenges for cause, with the result that no Negroes ever

serve on petit juries." Id. at 223. The Batson Court noted

that many lower courts interpreted Swain to hold "that

proof of repeated striking of blacks over a number of cases

was necessary to establish a violation of the Equal

Protection Clause." Batson, 476 U.S. at 92. The Court in

Batson recognized that this standard had "placed on

defendants a crippling burden of proof " that resulted in

"prosecutors' peremptory challenges [becoming] largely

immune from constitutional scrutiny." Id. at 92-93 (footnote

omitted). Accordingly, it rejected the Swain evidentiary

formulation.

In the jurisprudence that has evolved following Batson,

the inquiry has been characterized as a three-step one.

Batson stated that "a defendant may establish a prima facie

case of purposeful discrimination in selection of the petit

jury solely on evidence concerning the prosecutor's exercise

of peremptory challenges at the defendant's trial." Id. at 96.

Once the defendant makes a prima facie showing of racial

discrimination (step one), the prosecution must articulate a

race-neutral explanation for its use of peremptory

challenges (step two). If it does so, the trial court must

determine whether the defendant has established

purposeful discrimination (step three). See id. at 96-98;

Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir. 1995);

Deputy v. Taylor, 19 F.3d 1485, 1492 (3d Cir. 1994). The

ultimate burden of persuasion regarding racial motivation

rests with, and does not shift from, the defendant. See

Purkett v. Elem, 514 U.S. 765, 768 (1995).

3. Riley's Batson Challenge in State Court

In this case, the hearing judge determined, and the State

does not contest, that Riley made out a prima facie case of

discrimination in jury selection, as the State had used its

peremptory challenges to strike all three prospective black

jurors from the venire, "result[ing] in an all-white jury

sitting on a first degree murder trial involving a black

defendant and a white victim." Riley III, 1988 WL 130430,

at *2. The hearing judge then conducted an evidentiary

hearing. The State proceeded to step two of the Batson

inquiry by offering race-neutral justifications for its use of

the peremptory challenges to strike Ray Nichols, Lois

Beecher, and Charles McGuire, each of whom was black.

Liguori, the lead prosecutor at trial and the State's

principal witness at the post-conviction relief hearing,

testified that the State "wanted to have minority

representation on the jury panel." App. at 792-793. He

stated that he wanted jurors who would be attentive and

who would vote for a death sentence. He testified that he

wanted "to make sure we were not only going to get a

conviction of murder in the first degree, but also the death

penalty." App. at 797.

With respect to Nichols, Liguori remembered clearly that

"Mr. Nichols was an individual who, and unfortunately the

record doesn't reflect this, who was not, in my particular

mind, not certain with regard to being able to return a

verdict for death." App. at 797-798 (emphasis added). As

Liguori explained, "there was a pause and a significant

pause in [Nichols'] answering [the court's] inquiry [at voir

dire] and that to me was enough to suggest that he might

not be able to return a death penalty and I didn't want

anyone that wasn't going to give me a death penalty." App.

at 798-799.

With regard to Beecher, Liguori testified that he struck

her because of her response to the court that she did not

think she could impose the death penalty. App. at 804.

As for McGuire, Liguori explained that he used the

peremptory challenge because he presumed McGuire would

be unable to "give his full time and attention" to the trial.

App. at 801. According to Liguori,

Mr. McGuire was an individual who had requested--

remember, this was going to be around Christmas also.

Mr. McGuire had previously requested to be excused

from jury service. When Mr. McGuire came up, the first

thing I wanted to make clear--as I said earlier, I

wanted someone that was going to be attentive and you

can read all the books you want with regard to

selecting prospective jurors and it is always make sure

you have attentive jurors, people not concerned about

getting home early to take care of their kids, or

vacation.

Mr. McGuire himself had requested the Court to

excuse him. The Court didn't. When he went through

his inquiry, we asked the judge to excuse him for

cause. The judge said no. It then left us with no

alternative but to think he would not give his full time

and attention and therefore we struck Mr. McGuire.

App. at 801.

On cross-examination of Liguori, Riley's attorney

introduced Liguori's handwritten notes from voir dire.

Written next to McGuire's name was the word "Out." App.

at 832. Among the names on the same page was that of

Charles Reed, a white man who actually served on Riley's

jury. Next to Reed's name on the sheet was written,"works

Lowe's, wants off." App. at 823. Despite repeated efforts by

Riley's counsel to refresh Liguori's recollection, Liguori

testified that he had no recollection of Reed whatsoever.

Liguori agreed, however, that the notation next to Reed's

name indicated that Reed had requested to be excused from

service on the jury. Liguori offered no explanation for his

decision not to strike Reed.

Riley then presented McGuire as a witness at the state

post-conviction hearing. McGuire testified that, in contrast

to Liguori's testimony, he had never asked to be excused

from the jury. McGuire specifically denied ever indicating to

either the prosecutors or the court that he was unwilling to

serve on the jury or that he wanted to be excused. Instead,

he testified that his supervisor had told him that he was

going to make a "formal request" that McGuire be excused

and that his supervisor did send a letter to the trial judge

requesting he be relieved from jury duty. App. at 860.

According to McGuire, in response to his supervisor's letter,

he was questioned by the trial judge whom he advised of

his willingness to serve on the jury. App. at 849-850.

Riley also presented evidence that in addition to the

prosecutor's striking of the three prospective black jurors in

his trial, the Kent County Prosecutor's office used its

peremptory challenges to remove every prospective black

juror in the three other first degree murder trials that

occurred within a year of his trial.5 Counsel for the State

objected to the admission of this evidence, arguing that

_________________________________________________________________

5. The three other trials were:

a. Andre Deputy--state struck the lone prospective black juror, a

second juror designated as "Indian," and six prospective white

jurors;

b. Judith McBride--state struck all three prospective black jurors,

five whites, plus two other jurors whose race has not been

identified; and

c. Daniel Pregent--state struck the lone prospective black juror

and four whites.

Although the race of two of the jurors who were ultimately impaneled

has not been identified, the State does not contest Riley's assertion that

every impaneled juror was white.

evidence of general prosecutorial practices was relevant

only to Riley's prima facie case. The hearing judge rejected

this argument and admitted the evidence, explaining that it

was being offered to show that "the exercise of the

peremptory challenges in this particular case followed some

kind of pattern that exists in the prosecutorial actions in

first degree murder cases involving minority defendants and

it is not segregable or severable from past history." App. at

872.

Counsel for the State then requested and received an

additional four weeks in which to "attempt to prepare the

same sort of information which . . . would be contrary to

the representations made by [Riley's counsel's]

information." App. at 874. He informed the court that he

had not yet been able to obtain materials from other cases,

but he assured the court that "they do exist." App. at 874.

Yet approximately one month after the hearing, the State

advised the hearing judge by a letter dated January 27,

1989 from Jeffrey M. Taschner, Deputy Attorney General,

that stated in full: "Please be advised that the State will not

supplement the record of the post conviction relief hearing

held in the above-captioned matter on December 30, 1988."

Letter to this Court from Thomas J. Allingham II (Dec. 16,

1999), Ex. B (on file in the Clerk's office).

The hearing judge ultimately accepted the State's race-

neutral explanations and rejected Riley's Batson claim,

without mentioning any of the evidence introduced by Riley

at the hearing. See Riley IV, App. at 887-891. The Delaware

Supreme Court affirmed, likewise without discussion of

Riley's evidence. See Riley V, 585 A.2d at 725.

4. Standard of Review

A Batson claim presents mixed questions of law and fact.

See Jones v. Ryan, 987 F.2d 960, 965 (3d Cir. 1993). We

exercise plenary review over questions of law and we look to

28 U.S.C. S 2254 for our standard of review of findings of

fact. See id. Riley's federal habeas petition was filed before

the enactment of the Antiterrorism and Effective Death

Penalty Act ("AEDPA") of 1996, 110 Stat. 1214, and

therefore AEDPA does not govern our standard of review.

See Lindh v. Murphy, 521 U.S. 320 (1997). Instead, under

the federal habeas statute in effect at the time Riley filed

his petition, we must presume correct the state court's

findings of fact unless one of the statutory exceptions

applies. See 28 U.S.C. S 2254(d) (1988).

The District Court rejected Riley's Batson claim on the

merits by relying on this presumption of correctness. See

Riley VIII, 1998 WL 172856, at *17. Riley contends that the

presumption of correctness is not warranted because the

hearing judge's factual findings are "not fairly supported by

the record," 28 U.S.C. S 2254(d)(8) (1988), and because he

"did not receive a full, fair, and adequate hearing in the

State court proceeding," 28 U.S.C. S 2254(d)(6) (1988).

Because we resolve Riley's appeal pursuant to S 2254(d)(8),

we need not consider Riley's latter argument.

The limited nature of review underlying the requirement

that a federal court must defer to the state court findings

of fact if they are "fairly supported by the record" reflects

important policy considerations. See, e.g., Miller v. Fenton,

474 U.S. 104, 114 (1985) (presumption of correctness

recognizes that "as a matter of the sound administration of

justice, one judicial actor is better positioned than another

to decide the issue"). In Rushen v. Spain, 464 U.S. 114, 122

n.6 (1983), the Court stated that "28 U.S.C.S 2254(d)

requires that a federal habeas court more than simply

disagree with the state court before rejecting its factual

determinations." The Court further noted that the statutory

test set forth in S 2254(d)(8) "is satisfied by the existence of

probative evidence underlying the [state court's]

conclusion." Id.

In the instant case, it appears that the hearing judge's

factual findings were based primarily on determinations

regarding the credibility of Liguori at the post-conviction

hearing. Such findings are generally owed "even greater

deference" because "only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so

heavily on the listener's understanding of and belief in what

is said." Anderson v. City of Bessemer City , 470 U.S. 564,

575 (1985); see also Batson, 476 U.S. at 98 n.21 ("Since

the trial judge's findings in [this] context .. . largely will

turn on evaluation of credibility, a reviewing court

ordinarily should give those findings great deference.").

Still, this does not signify that "federal review. . . is a

nullity." Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.

1998) (hereafter "Maloney"). In Purkett, the Supreme Court

stated that "implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful

discrimination." 514 U.S. at 768. In addition, the Supreme

Court has suggested, albeit in a non-habeas context, that

reviewing courts need not accept a trial judge's findings

based on credibility determinations if the witness has not

told a "coherent and facially plausible story" or if his story

is "contradicted by extrinsic evidence." Anderson, 470 U.S.

at 575. Thus, we must determine whether there is fair

support to conclude that the State put forth "a coherent

and facially plausible" explanation of its strikes of the

prospective black jurors or whether the State's explanations

are "implausible." Ultimately, when we review the record at

step three of the Batson inquiry, we must decide whether

the state courts' acceptance of the State's explanation has

been made after consideration of all the evidence on the

record.

5. State's Race-Neutral Explanations

At the post-conviction hearing, the State proceeded to

step two of the Batson inquiry by offering race-neutral

reasons for striking the black jurors. It did so primarily

through Liguori's testimony. Riley does not argue that the

State failed to meet its step two burden. His contention is

that the state courts failed to engage in the step three

inquiry, which requires evaluation of the proffered race-

neutral reasons in light of all the other evidence in the

record.

Liguori contended he struck Nichols because he doubted

whether Nichols would be willing to return a death

sentence. He based this doubt on his clear recollection of "a

significant pause" by Nichols when asked about the death

penalty. App. at 798. Yet, as Liguori himself admitted in his

testimony, the record reflects no such pause and no such

uncertainty on Nichols' part.

At voir dire, Nichols had answered the two questions

posed by the court regarding the jurors' willingness to

sentence a defendant to death in a manner seemingly

favorable to the prosecution:

Q: Do you have any conscientious scruples against

finding a verdict of guilty where the punishment might

be death or against imposing the death penalty even if

the evidence should so warrant?

A: No.

Q: Regardless of any personal beliefs or feelings that

you may have, if the evidence justified it, would you be

able to find a person guilty of murder in the first

degree and would you be able to impose the death

penalty.

A: I think so.

App. at 226-227. A prospective white juror, Angelo LePore,

provided the exact same answers to the court's questions,

yet he was not stricken and actually served on Riley's jury.

App. at 231-232. The record provides no basis for

distinguishing Nichols from LePore.

Moreover, despite Nichols' alleged pause, the prosecutors

did not ask the trial court to remove Nichols for cause or to

inquire further into his willingness to award the death

penalty, even though the trial judge excused six

venirepersons for cause because they said they couldn't, or

believed they couldn't, impose the death penalty, App. at

234-237, 245-246, 265-271, and two more who responded

equivocally, App. at 273-276, 282-286. This raises the

question why, if Nichols actually did pause "a significant

pause," the State did not seek to have him removed for

cause like the others. The record does not show (and the

State does not claim) that the prosecutors ever expressed to

the trial court the concern that Nichols would be unwilling

to impose the death penalty, that the court independently

expressed concern, or that any of the contemporaneous

notes kept by the prosecutors as to some of the jurors

reflected either the existence of a pause or the concern

about which Liguori testified six years later. Thus, Liguori's

explanation is entirely unsupported by the record. See

Johnson v. Vasquez, 3 F.3d 1327, 1331 (9th Cir. 1993)

(stating that courts are not bound to accept race-neutral

reasons that are either unsupported by the record or

refuted by it).

Similarly, the record offers little basis for distinguishing

McGuire, a prospective black juror who was struck, from

Reed, a white juror who served without challenge by the

State. Liguori testified that he struck McGuire because

McGuire asked to be excused from jury service and he

feared that McGuire would be an inattentive juror. 6 Liguori,

who claimed to remember Nichols' pause six years later

without benefit of any assistance, testified that he had no

recollection at all regarding Reed. Liguori's notes from voir

dire, however, state that Reed "works Lowe's, wants off,"

App. at 823, which strongly suggests that Reed too was

likely to be an inattentive juror. Yet at no point during voir

dire did the prosecution ever express any concern over

Reed's place on the jury. Based on this record evidence,

there is no basis for distinguishing between McGuire's

desire to be excused and Reed's desire to be excused.

Although the State strains to distinguish the two jurors

by arguing that McGuire's desire to be excused from jury

service was stronger than Reed's desire because McGuire's

employer had intervened to seek his release, its effort is not

persuasive. First, Liguori did not testify before the hearing

judge that this was the basis for the strike; in fact, Liguori

testified to the opposite -- that McGuire himself had asked

to be excused from jury service. Second, even if McGuire

would have been inattentive for work-related reasons, the

prosecution's notes from voir dire connecting Reed's

employment to his "wants off " suggest that Reed's desire to

be excused from jury service may have been work-related

as well. Third, there is no evidence in the record to suggest

that a juror will be more inattentive because s/he wants to

be off the jury for work-related reasons rather than for

other reasons, which is the basis for the State's position

that McGuire's desire to be excused was stronger than

Reed's desire to "want[ ] off," documented in Liguori's

contemporaneous notes.

With regard to both Nichols and McGuire, the state

courts failed to mention in their opinions the weaknesses in

the State's explanations, and therefore failed to complete

the required step three Batson inquiry.

_________________________________________________________________

6. In fact, McGuire testified at the post-conviction hearing that he never

asked to be excused from the jury.

6. Statistical Evidence

In addition to Riley's challenge to the State's explanations

at the post-conviction hearing for striking Nichols and

McGuire by pointing to inconsistencies in the record, Riley

introduced evidence that the prosecution used its

peremptory challenges to strike every prospective black

juror in the three other first degree murder trials occurring

in Kent County within one year of Riley's trial. It did so

both for the other black murder defendant and the two

white murder defendants.7 In these four trials (including

Riley's), the prosecution struck all 8 prospective black

jurors who were called, i.e., 100%. By contrast, the

prosecution used its peremptory challenges to strike only

23 of the 71 prospective white jurors, or 32%. After the

prosecution used its peremptory challenges to strike 23

whites, 8 blacks, 1 Indian, and 2 jurors of unidentified

race, the remaining racial makeup of the actual jurors in

the four trials was 48 white jurors. See Letter to this Court

from Thomas J. Allingham II (Dec. 16, 1999), Ex. A (on file

in the Clerk's office).

An amateur with a pocket calculator can calculate the

number of blacks that would have served had the State

used its strikes in a racially proportionate manner. In the

four capital cases there was a total of 82 potential jurors on

the venires who were not removed for cause, of whom eight,

or 9.76%, were black. If the prosecution had used its

peremptory challenges in a manner proportional to the

percentage of blacks in the overall venire, then only 3 of the

34 jurors peremptorily struck (8.82%) would have been

black and 5 of the 48 actual jurors (10.42%) would have

been black. Instead, none of the 48 jurors were black.

Admittedly, there was no statistical analysis of these

figures presented by either side in the post-conviction

proceeding. But is it really necessary to have a

sophisticated analysis by a statistician to conclude that

_________________________________________________________________

7. The exclusion by the Kent County prosecutor of all black jurors in the

trials of the two white defendants is relevant to establishing a pattern

race-based use of peremptories. See Powers v. Ohio, 499 U.S. 400 (1991)

(excluding jurors on the basis of race is unconstitutional regardless of

the race of the defendant).

there is little chance of randomly selecting four consecutive

all white juries? The State never argued before the hearing

judge and does not argue before this court that the

selection of four consecutive all white juries could have

been due to pure chance. Nor does it suggest that Riley's

evidence does not accurately represent Kent County

prosecutorial practices. Moreover, not once has the State

offered an explanation for its use of peremptory challenges

to strike all prospective black jurors in the four consecutive

capital cases. The State has never sought to explain the

data by variables other than race. Nor has it sought to

rebut Riley's evidence.

The failure of the State to produce evidence from other

trials is significant because it was the State, not Riley, that

would have had access to such evidence, it was the State

that asserted that such evidence was available and

forthcoming, and it was the State, not Riley, that failed to

provide it. Yet again, neither the hearing judge in his

opinion nor the Delaware Supreme Court discussed Riley's

evidence that showed the systematic exclusion of blacks

from the petit juries in Delaware. In fact, having stated that

this evidence was introduced to demonstrate that"the

exercise of the peremptory challenges in this particular case

followed some kind of pattern that exists in the

prosecutorial actions in first degree murder cases involving

minority defendants," App. at 872, the hearing judge

discussed neither the statistics nor the State's failure to

explain them. Thus, once again by overlooking and ignoring

a significant segment of Riley's evidence, the hearing

judge's opinion does not satisfy the crucial third step of the

Batson analysis.

7. Analysis

At the conclusion of the evidentiary post-conviction

hearing, the hearing judge issued a written opinion in

which he addressed the prosecutors' reasons for striking

the three black jurors, as required by step three of the

Batson inquiry. He stated:

The State in this case provided race-neutral

explanations for the peremptory challenges on all three

black jurors. After examining the demeanor and

credibility of the witnesses and prosecutors at the

evidentiary hearing, I believe the State exercised its

peremptory challenges entirely within the strictures of

the Fourteenth Amendment. No factual basis exists for

a successful claim of an equal protection violation. The

State successfully rebutted any prima facie showing of

discrimination in jury selection based upon race.

Riley IV, App. at 890-891. This determination that the

prosecutors did not intend to discriminate on the basis of

race in exercising their peremptory strikes against the three

challenged jurors is a factual finding entitled to a

presumption of correctness unless one of the exceptions in

S 2254(d) (1988) applies. See Hernandez v. New York, 500

U.S. 352, 365-66 (1991).

The inquiry required by Batson must be focused on the

distinctions actually offered by the State in the state court,

not on all possible distinctions we can hypothesize. See

Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th Cir. 1998)

(concerning itself with actual reasons, not apparent ones,

for state's use of peremptory challenges); Turner v.

Marshall, 121 F.3d 1248, 1253 (9th Cir. 1997) ("The

arguments that the State has made since the evidentiary

hearing do not form part of the prosecutor's explanation.").

Apparent or potential reasons do not shed any light on the

prosecutor's intent or state of mind when making the

peremptory challenge. As to both Nichols and McGuire, the

hearing judge merely repeated Liguori's articulated

explanations without any reference to, or analysis of, Riley's

evidence of pretext and seems to have accepted the State's

justifications at face value.

Liguori simply testified that he struck McGuire because

he would be inattentive at trial, and for no other reason, a

justification that would apply equally to Reed. The State

gave no explanation as to Reed other than Liguori's plain

lack of memory. Cf. Harrison v. Ryan, 909 F.2d 84, 87 (3d

Cir. 1990) (concluding that prosecutor's failure to recall his

reason for striking prospective juror did not constitute a

race-neutral explanation). And the credibility of Liguori's

lack of memory is somewhat in doubt considering that he

claimed to remember Nichols' "significant pause." The only

distinction between the two jurors that is apparent from the

record is that McGuire, who was struck, is black; Reed,

who was retained, is white.

A comparison between a stricken black juror and a

sitting white juror is relevant to determining whether the

prosecution's asserted justification for striking the black

juror is pretextual. See McClain v. Prunty, 217 F.3d 1209,

1220 (9th Cir. 2000) ("A prosecutor's motives may be

revealed as pretextual where a given explanation is equally

applicable to a juror of a different race who was not

stricken by the exercise of a peremptory challenge.");

Jordan v. Lefevre, 206 F.3d 196, 201 (2d Cir. 2000)

("Support for the notion that there was purposeful

discrimination in the peremptory challenge may lie in the

similarity between the characteristics of jurors struck and

jurors accepted. Where the principal difference between

them is race, the credibility of the prosecutor's explanation

is much weakened."); Maloney, 159 F.3d at 653 ("[A]s a

general matter, comparisons between challenged jurors and

similarly situated, unchallenged jurors of a different race or

gender can be probative of whether a peremptory challenge

is racially motivated."); Coulter v. Gilmore , 155 F.3d 912,

921 (7th Cir. 1998) ("A facially neutral reason for striking a

juror may show discrimination if that reason is invoked

only to eliminate African-American prospective jurors and

not others who also have that characteristic."); Turner, 121

F.3d at 1251-52 ("A comparative analysis of jurors struck

and those remaining is a well-established tool for exploring

the possibility that facially race-neutral reasons are a

pretext for discrimination.").

The comparison between McGuire and Reed is strongly

suggestive of the State's race-based use of its peremptory

challenges. See, e.g., McClain, 217 F.3d at 1224 (concluding

that Batson was violated where two of six proffered race-

neutral explanations were "pretextual based upon

comparisons of voir dire responses by non-black jurors who

were seated without objection by the prosecutor," and other

four were contrary to the facts); Turner, 121 F.3d at 1253-

54 (holding that the district court clearly erred in finding

that prosecutor did not discriminate in jury selection where

sole justification offered for striking a black juror applied

equally to non-stricken white juror); Devose v. Norris, 53

F.3d 201, 205 (8th Cir. 1995) (concluding that Batson was

violated where the only justification prosecutor offered for

striking three out of four prospective black jurors with prior

jury experience was that they might be "burned out" by

prior service and where at least five white jurors were not

stricken although they had previously served on juries);

Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) (rejecting the

prosecutor's proffered race-neutral explanation for striking

black jurors where the prosecutor did not apply the same

rationale to similarly-situated white jurors); Garrett v.

Morris, 815 F.2d 509, 514 (8th Cir. 1987) ("The prosecutor's

rationale [for striking three black jurors]-- the blacks'

purported lack of education, background, and knowledge --

seems clearly pretextual in light of his decision not to strike

white jurors who differed in no significant way").

Nichols' answers as to his willingness to return a death

sentence were the same as LePore's, and were it not for

Liguori's testimony as to the suspect "significant pause,"

there would be no significant difference between them as

well, except, of course, that Nichols, who was struck, is

black and LePore, who was retained, is white.

Furthermore, each piece of evidence should not be

reviewed in isolation. It is clear that "[a]n explanation for a

particular challenge need not necessarily be pigeon-holed

as wholly acceptable or wholly unacceptable. The relative

plausibility or implausibility of each explanation for a

particular challenge . . . may strengthen or weaken the

assessment of the prosecution's explanation as to other

challenges." United States v. Alvarado, 923 F.2d 253, 256

(2d Cir. 1991). In short, "[a] reviewing court's level of

suspicion may . . . be raised by a series of very weak

explanations for a prosecutor's peremptory challenges. The

whole may be greater than the sum of its parts." Maloney,

159 F.3d at 651.

It is in this connection that we must turn to the

statistical evidence presented by Riley of the pattern of the

State's use of its peremptories. It may be that such

evidence, standing alone, would not be sufficient to show

intentional discrimination in selection of juries by the Kent

County Prosecutor's office in the year in question. It is,

however, particularly troublesome because the State failed

to provide the rebuttal data as to Riley's evidence when

given the opportunity which it requested. In that

circumstance, an inference adverse to the State may fairly

be drawn. As has been recognized, "[w]here relevant

information . . . is in the possession of one party and not

provided, then an adverse inference may be drawn that

such information would be harmful to the party who fails to

provide it." McMahan & Co. v. Po Folks, Inc. , 206 F.3d 627,

632 (6th Cir. 2000) (quotation omitted). Indeed, the

Supreme Court has stated, "The production of weak

evidence when strong is available can lead only to the

conclusion that the strong would have been adverse."

Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226

(1939). Accordingly, the State must accept the negative

inference that flows from its failure to provide the rebuttal

data, and that inescapable inference is that the Kent

County Prosecutor's office did not want blacks on its juries

in first degree murder cases.

The Supreme Court in Batson recognized the significance

of evidence of systematic exclusion of blacks in jury

selection. It stated, "Proof of systematic exclusion from the

venire raises an inference of purposeful discrimination

because the `result bespeaks discrimination.' " Batson, 476

U.S. at 94-95 (quoting Hernandez v. Texas, 347 U.S. 475,

482 (1954)). It likewise recognized the relevance of

systematic exclusion of blacks from the petit jury. See id. at

96-97; see also McClain, 217 F.3d at 1224 (finding that "the

fact that all blacks in the venire pool were struck raises an

inference of discrimination" where 3 of 39 people in venire

pool were black). On the record before us, it is difficult to

avoid drawing the inference that the Kent County

Prosecutor followed a pattern of using peremptory

challenges in a racially discriminatory manner. 8

_________________________________________________________________

8. The pattern is relevant even if Riley has not undertaken to prove a

Batson violation in the other three trials. Defendants Daniel Pregent and

Judith McBride were both tried before Batson was decided, and thus

were not likely to have raised a Batson objection, particularly since

neither was black and the Supreme Court did not extend the Batson

holding to apply regardless of whether the defendant and excluded juror

were of the same race until its opinion in Powers v. Ohio, 499 U.S. 400

(1991). The third capital defendant, Deputy, did not challenge the

Despite the State's efforts to explain away the various

parts of the evidentiary picture Riley has presented, the

record as a whole squarely contradicts its position. The

questionable nature of Liguori's explanations for the strikes

of McGuire and Nichols must be evaluated not only in light

of the uncontested evidence of the use of peremptory

strikes in Kent County but also in light of the nature of the

State's pre-Batson defense on direct appeal.

When Riley's direct appeal came before the Delaware

Supreme Court in 1984, the State justified the use of race

in selecting jurors in criminal trials. On that occasion,

which was the State's first opportunity to defend the use of

its peremptory challenges in Riley's trial, the State did not

offer a single race-neutral explanation, not even as an

alternate argument; instead, it claimed that it was

permissible -- even socially desirable -- to exclude jurors

based on what it called "group association," App. at 896,

which a Justice of the Delaware Supreme Court was

reported to have recognized as a "euphemism for race,"

App. at 1321. In its brief to the Delaware Supreme Court,

the State interpreted Swain v. Alabama, 380 U.S. 202

(1965), as "recogniz[ing] how peremptory challenges, even

those exercised on the basis of group association, foster the

constitutional goal of an impartial jury." App. at 896. The

State added in a footnote that it "emphatically denies that

the prosecutor [in Riley's case] exercised any of his

challenges solely on the assumption that the juror's race, in

the context of the facts of this case, indicated a verdict

position adverse to the prosecution. Rather, the State will

argue that even if such was the case, no constitutional

command would have been contravened." App. at 896

(emphasis added).

_________________________________________________________________

composition of the jury in the state courts and thus the racial makeup

of the venire was not available when this court decided the appeal. See

Deputy, 19 F.3d at 1491-93. Moreover, the Supreme Court in Batson

made clear that "a defendant may make a prima facie showing of

purposeful racial discrimination in selection of the venire by relying

solely on the facts concerning its selection in his case." Batson, 486

U.S.

at 95 (emphasis in original).

Before this court, the State contends that Swain was

"good law" at the time, so reliance on that case cannot be

viewed as a concession that some of its peremptory

challenges may not have been race-neutral. Tr. of Oral

Argument at 31. Yet, significant for purposes here is that in

response to Riley's challenge to its use of peremptories, the

State never denied on direct appeal that race played a role

in its use of peremptory challenges; it only claimed that it

did not exercise them solely based on race. Its justification

for that practice certainly suggests that race was at least a

partial basis for its use of peremptory challenges. And that

suggestion further supports the conclusion we are led to by

our earlier analysis of the record that the State's proffered

race-neutral explanations are pretextual.

The requirement that we defer to the State's findings of

fact does not apply when those findings are not supported

by probative evidence. The State's position is that under

S 2254(d) "all that is required" is that the state court make

findings of fact, and flatly states that because the hearing

judge did so, we must defer. Tr. of Oral Argument at 41.

Although the State concedes that we must concern

ourselves under Rushen, 464 U.S. at 121 n.6, with whether

there is probative evidence in the record to support the

state court's findings, it then seems to argue that since the

findings are primarily based on credibility determinations,

the mere fact that Liguori testified is sufficiently probative

to support these determinations.

Certainly it is not required that a federal court should

defer to a state court's findings of fact on habeas review as

long as the state court accepted the prosecutor's race-

neutral explanation, no matter how incredible,

contradicted, and implausible it may be. On the contrary,

several courts of appeals have acknowledged that the

traditional level of deference should not govern appellate

review when a prosecutor's explanations are obviously not

credible. See McClain, 217 F.3d at 1221 (" `[I]mplausible or

fantastic justifications may (and probably will) be found to

be pretexts for purposeful discrimination.' ") (quoting

Purkett, 514 U.S. at 768); United States v. Griffin, 194 F.3d

808, 826 (7th Cir. 1999) (noting that a basis for reversal of

state court exists where "the reason given [by the

prosecutor] is completely outlandish or there is other

evidence which demonstrated its falsity"); Maloney, 159

F.3d at 651 (stating that serious questions of pretext arise

when the facts in the record are "objectively contrary to" the

prosecutor's explanations).

In light of the lack of probative evidence in the record to

support the findings that the State exercised its peremptory

challenges at Riley's trial in a race-neutral manner, we

decline to give these findings deference. Such deference is

ordinarily based, at least in part, on the original trial

court's ability to make contemporaneous assessments. See

Hernandez v. New York, 500 U.S. at 365. Recently, the

Court of Appeals for the Fourth Circuit deferred to the state

court's findings on a Batson claim precisely because the

court had that opportunity. It explained,

Indeed, it would be an impermissible exercise in

hindsight for us now to upset the trial court's

credibility determination in evaluating the prosecutor's

explanation. And as the district court correctly

observed, the `retrospective parsing of the `curricula

vitae' of the jurors' is no substitute for the observations

of the trial judge, who witnessed first-hand the

process. We simply cannot overlook the fact that the

trial court had conducted an extensive voir dire of the

jury pool, which was documented in several hundred

pages of trial transcripts, and was able to observe the

demeanor and hear the responses of the prospective

jurors in court. This insight enabled the trial court to

compare the prosecutor's explanation with what

occurred at the bench and in open court. Most

significantly, the trial court was able to observe the

prosecutor's demeanor and conduct and evaluate the

credibility of his explanation.

Evans v. Smith, 220 F.3d 306, 316 (4th Cir. 2000)

(emphases added).

It may be that because the findings at issue here were

made by the hearing judge six years after the State had

exercised its peremptory challenges before the trial judge

and the hearing judge neither witnessed the challenges

first-hand nor examined the witnesses at the time the

challenges were exercised, he did not note or comment on

some of the troublesome inconsistencies in the State's race-

neutral explanations.

Deference in a Batson case must be viewed in the context

of the requirement that the state courts engage in the

three-step Batson inquiry. As the Court of Appeals for the

Fourth Circuit described step three: "If [the State's] burden

[under step two] is met, the court then addresses and

evaluates all evidence introduced by each side (including all

evidence introduced in the first and second steps) that

tends to show that race was or was not the real reason and

determines whether the defendant has met his burden of

persuasion." McMillon, 14 F.3d 948, 953 n.4 (4th Cir.

1994); see also Jordan, 206 F.3d at 200 (stating that step

three of Batson inquiry requires examination of "all the

facts and circumstances") (quotation omitted).

Here, the state courts failed to examine all of the

evidence to determine whether the State's proffered race-

neutral explanations were pretextual. Not only is there no

indication on the record that the hearing judge engaged in

the required analysis, but there is no indication that the

Delaware Supreme Court did so, by making findings which

also would have been entitled to deference. See Sumner v.

Mata, 449 U.S. 539, 547 (1981). The omission of the crucial

step of evaluating the State's proffered explanations in light

of all the evidence can be gleaned by the absence of the

word "pretext" in both the opinion of the hearing judge and

in the opinion of the Delaware Supreme Court. Nor is there

any language in either opinion that suggests, whatever the

words used, that either court recognized the nature of the

analysis it was required to undertake. In Jones v. Ryan, we

noted that the state court decision rejecting a Batson claim

contained no factual findings relating to the different

prongs of the Batson analysis, to which we could accord a

presumption of correctness. See 987 F.2d at 965-66. The

situation before us is similar.

The State argues that our concern with the hearing

judge's failure to discuss critical evidence in his decision is

merely a complaint about the manner in which he wrote his

opinion. It states in its supplemental brief that"[i]t may

well have been better for the state judge to have further

explained his decision . . . [b]ut the federal habeas statutes

do not set standards for the writing of opinions by state

judges." Supp. Memo. of Appellees at 7.

But the concern is not how the decision was written, a

trifling matter. It is the failure of the state courts to

complete the required Batson analysis by comparing the

stricken black jurors with the sitting white jurors,

acknowledging the statistical evidence of striking all black

jurors in capital murder cases in Kent County within a year

of Riley's trial, and recognizing the State's position in this

very case that use of peremptories for racial reasons was

both constitutional and socially beneficial.

Comparable to the case before us is the decision in

Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998). There the

court acknowledged that deference is owed to the state

court findings under S 2254(d), but rejected those findings

and refused to apply the presumption of correctness

because "the state judge made those findings without ever

taking into account the totality of the circumstances on the

record." Id. at 920. It noted that Batson requires "that, one

way or another, a trial court . . . consider all relevant

circumstances before it issues a final ruling on a

defendant's motion." Id. at 921. In a compelling statement

of the court's role under step three of the Batson inquiry,

the court wrote:

In light of the deferential standard of the post-AEDPA

S 2254 and the perfunctory quality of the second step

of a Batson inquiry after Purkett v. Elem, it is more

important today than ever that the Batson inquiry not

omit consideration of the totality of the circumstances,

both for itself and as it relates to the evaluation of

similarly situated potential jurors. . . . Under the pre-

AEDPA standards that apply here, we agree with the

district court that [defendant's] rights under Batson

were denied.

Id. at 921-22.

The state courts in this case rejected Riley's Batson claim

without discussing any of the ample evidence that throws

into question the explanations offered by the prosecutor for

striking two of the black jurors and there is nothing

relevant in the record that might otherwise support the

state courts' decisions. Thus, we do not know why the state

courts found the State's explanation was plausible and

credible in light of the other evidence. It is because of the

state courts' omission of a requirement under the third step

of the Batson inquiry -- of an ultimate determination on the

issue of discriminatory intent based on all the facts and

circumstances -- that the State's argument founders.

We cannot avoid noting that Batson was not a death

penalty case. This is. If the State failed to accord Riley his

constitutional right to a jury selected on a race-neutral

basis, we must not shirk to so hold. As Riley's lawyer asked

at oral argument, "If not this case, what case? If the

evidence in this case is insufficient to show that the

prosecutors' race-neutral rationales were pretextual, what

case, short of a prosecutorial mea culpa would do the job?"

Tr. of Oral Argument at 3.

After consideration of all the arguments and the record,

we are compelled to conclude that the prosecution violated

Riley's constitutional rights under Batson, and that Riley is

entitled to relief.

8. The Dissenting Opinion -- The Batson Issue

It is fitting to discuss the Dissenting Opinion at this point

because our difference with the Dissent is most acute in

our respective views of the requirements of step three of the

Batson inquiry. Although the Dissent takes issue with

much of the majority opinion, its principal argument is that

in a habeas case the federal court must defer to the state

courts' findings, in this case the finding that the prosecutor

did not use the State's peremptory challenges striking black

jurors in a manner that violated the principles of Batson.

We have already discussed in detail when a state court's

findings are entitled to deference and when they are not,

focusing on the exception in S 2254(d)(8) for the situation

where the state court's findings are "not fairly supported by

the record." See supra Part II.A.4 (Standard of Review). It is

manifest that a finding that Batson has been satisfied must

be made in accordance with the process enunciated in that

case.

The Dissent agrees that under step three of the Batson

inquiry a judge or court must consider "all of the relevant

evidence that has been adduced." See Dis. Op. at 88. As we

previously discussed, the courts after Batson have

described step three as requiring the judge or court to

examine the prosecutor's proffered reasons for striking the

minority jurors against the evidence presented by the

defendant and/or the weaknesses in the prosecutor's

reasons. See, e.g., McMillon, 14 F.3d at 953 n.4; Jordan,

206 F.3d at 200. The Dissent sees no reason to believe that

the Delaware courts did not do so in Riley's case, even

though the opinions of the Delaware courts rejecting Riley's

Batson challenges never commented on the weaknesses in

the State's case or, even more important, never

acknowledged that there was a step three to the Batson

inquiry. We, therefore, proceed to try to ascertain whether

the hearing judge and the Delaware Supreme Court made

their findings that there was no purposeful discrimination

in accordance with the process required by Batson. If not,

then deference to those findings is not appropriate.

The extent of the Delaware courts' recognition of the need

to engage in the step three inquiry is open to question on

this record. Nothing in the discussion of the hearing judge

suggests that the court performed the necessary evaluation.

See Riley IV, App. at 887-91. The hearing judge, using

language taken from Riley I rather than Batson, understood

that his obligation was to consider the prosecutor's

proffered explanation for striking the jurors and"then . . .

be satisfied by that neutral explanation and make a ruling

to that effect." App. at 888. Accordingly, following what he

understood to be the applicable law, the hearing judge

discussed the prosecutor's proffered reasons for the two

strikes at issue here, and found that the prosecutor was

credible. See App. at 889 ("the State provided a credible,

race-neutral reason for exercising its peremptory

challenge") (emphasis added); id. ("The State articulated a

specific race-neutral ground for challenging juror McGuire.

. . .") (emphasis added). Throughout, the hearing judge

made clear that he understood that "[t]he test applied is the

credibility of the explanation given . . . ." App. at 890.

Nothing in the hearing judge's discussion suggests that he

undertook an evaluation of the proffered reasons in light of

the evidence submitted by Riley, which is the essence of

step three.

It is even more questionable whether on appeal from that

decision the Delaware Supreme Court fully appreciated the

requirement. Its entire discussion of this issue is fully set

forth in the margin.9 In this one paragraph, the Court relied

on its 1985 decision on Riley's direct appeal where it

rejected Riley's challenge to the State's peremptory

challenges. Riley I, 496 A.2d 997 (Del. 1985). The 1985

decision is noteworthy because on that occasion (a year

before Batson), the Delaware Supreme Court concluded, for

the first time, that "use of peremptory challenges to exclude

prospective jurors solely upon the basis of race violates a

criminal defendant's right under Del. Const., Art. I, S 7 to a

trial by an impartial jury." Riley I, 496 A.2d at 1012.

In Riley I, the Court also set out the procedure to be

followed10 but nothing in the Delaware Court's laudable

_________________________________________________________________

9. The Court stated:

Riley's next contention, that the State exercised its peremptory

challenges for racial reasons, we find to be simply a renewed

attempt to reopen previously settled issues. In Riley I, [496 A.2d

997

(Del. 1985)], we set forth a legal analysis functionally identical

to the

Supreme Court's analysis later articulated in Batson, 476 U.S. at

79. In Riley I, we found that Riley's constitutional right to an

impartial jury had not been violated. 496 A.2d at 1009. The

Superior Court, after an evidentiary hearing on Riley's motion for

postconviction relief, held that Riley had not been denied equal

protection as a result of the State's use of peremptory challenges.

The court found that the State had provided race-neutral

explanations for its peremptory challenges. We find no error in

Superior Court's rejection of Riley's Batson claim. See Holland v.

Illinois, 493 U.S. 474 (1990) (the Sixth Amendment fair cross-

section

requirement of an impartial jury does not deprive a party of the

right

to exercise peremptory challenges on racial or any other grounds

from a venire that otherwise meets Sixth Amendment cross-sectional

standards of representativeness). Moreover, we reaffirm our earlier

decision sustaining the State's peremptory challenges on state

constitutional grounds. Riley I, 496 A.2d at 1010-1013.

Riley V, 585 A.2d 719, 725 (Del. 1990).

10. That procedure required that the defendant make a prima facie

showing after which the trial judge

decision requires an inquiry comparable to the Batson step

three. The Delaware cases at that time appear to have

required that the prosecutor provide, or articulate, a race-

neutral reason for the peremptory challenges, and that the

court find the prosecutor to be credible. They do not require

an evaluation comparable to step three. Therefore, if, as it

appears, the Delaware Supreme Court in Riley IV rejected

Riley's Batson claim by relying on its earlier opinion in Riley

I, and the Riley I opinion did not require a step three

inquiry, any assumption that the Court engaged in such an

inquiry would be unwarranted. Or, to phrase it somewhat

differently, if the state courts' findings to which the Dissent

would defer were not made in accordance with the process

required by the United States Supreme Court, deference is

not required.

This digression into Delaware law was undertaken to

provide the context in which to view the Dissent's

subsidiary argument, which is that we should assume that

the Delaware courts performed the step three analysis and

that it was not necessary for the Delaware courts to

comment on that analysis. We do not suggest that every

state court decision that is the subject of a habeas review

be as explicit as a Social Security Administrative Law

Judge's decision. See Dis. Op. at 89. But Batson is not a

disability case. Although a judge considering a Batson

challenge is not required to comment explicitly on every

piece of evidence in the record, some engagement with the

evidence considered is necessary as part of step three of the

Batson inquiry.

_________________________________________________________________

determine[s] whether there is a substantial likelihood that the

prosecutor is exercising the State's peremptory challenges on the

basis of race. A ruling in favor of the State will end any further

inquiry. A ruling in favor of the defendant, however, will shift

the

burden to the State to prove that the exercised challenges were not

racially motivated. To sustain this burden, the State . . . must

satisfy the court that its peremptory challenges were made on

grounds of specific, individual juror bias, or on grounds

reasonably

related to the particular case or trial . . . and not solely on the

ground of the juror's race.

Riley I, 496 A.2d at 1013 (quotation and citation omitted).

In United States v. Harris, 192 F.3d 580, 588 (6th Cir.

1999), the Sixth Circuit reviewed the district court's

rejection of a Batson challenge in a case where one African-

American juror was seated but two were struck by the

government's peremptory challenges. The Court of Appeals

remanded because it found that the district court's"terse

analysis" of step three of the Batson inquiry was

insufficient as it appeared that the district court"made no

effort to weigh the credibility of the prosecutor's asserted

reasons for striking the panelists." Id. at 588. A year earlier,

in United States v. Hill, 146 F.3d 337 (6th Cir. 1998), the

same court remanded another case to the district court

because its analysis of step three of the Batson inquiry was

insufficient. The court stated, in language that could be

equally applicable here, that "[t]he record before us

indicates nothing about the district court's thought

processes in its step three analysis apart from its abrupt

conclusion indicating the apparent view that the

prosecutor's asserted justification outweighed [the

defendant's] showing under the totality of circumstances."

Id. at 342. And in Hill, unlike here, the trial court ruling on

the Batson claim at least stated that it performed some sort

of weighing analysis.

Although both of these cases came to the Court of

Appeals on direct appeal of a district court decision rather

than on habeas review of a state decision, that does not

detract from the force of the court's understanding of what

is required in a Batson inquiry. The process required by

Batson, including step three, does not differ if the

prosecutor used the peremptories to strike jurors in a state

trial or in a federal trial. After all, the same Constitution

applies to both fora.

The Dissent relies almost exclusively on the statutory

presumption of correctness owed to a state court's factual

determination made after a hearing on the merits. This

deference is indeed the fulcrum on which our federalism

turns. Yet in case after case -- and most particularly in

capital cases -- we have found that even applying the more

stringent post-AEDPA standard of review (not applicable

here), there are reasons not to accord the usual deference

to the state courts' findings. See, e.g., Jermyn v. Horn, 266

F.3d 257, 305 (3d Cir. 2001) (post-AEDPA denial of

deference to state court because it unreasonably applied

the principles of Strickland v. Washington, 466 U.S. 668

(1984)); Moore v. Morton, 255 F.3d 95, 120 (3d Cir. 2001)

(post-AEDPA denial of deference to state court because "[a]

reasonable application of Supreme Court precedent . . .

requires finding [defendant's] trial was so infected with

unfairness that he was denied due process"); Appel v. Horn,

250 F.3d 203, 211 (3d Cir. 2001) (post-AEDPA denial of

deference to state court because, among other things, the

state court failed to apply the relevant Supreme Court

precedent of United States v. Cronic, 466 U.S. 648 (1984)).

As we discuss in detail in the immediately preceding

section of this opinion, see supra Part II.A.7 (Analysis), the

requirement that the state courts faced with a Batson

challenge engage in the critical step three analysis is not a

product of our own creativity but an accepted element of a

habeas court's obligation to examine whether a defendant's

constitutional right to a race-neutral jury has been

infringed. See, e.g., Jordan, 206 F.3d at 200; Coulter, 155

F.3d at 921; McMillon, 14 F.3d at 953 n.4; Jones, 987 F.2d

at 967.

The Dissent accords little weight to these authorities. But

our disinclination to include long string cites does not

mean that there are not numerous cases in which the

courts, both state11 and federal, have made clear that the

Batson step three inquiry is not merely a formalistic one,

but an integral element of the required analysis. In addition

to Harris and Hill, the Sixth Circuit cases cited above, the

Second Circuit has also made this point. In Barnes v.

Anderson, 202 F.3d 150 (2d Cir. 1999), the court ordered a

_________________________________________________________________

11. See, e.g., MacKintrush v. State , 978 S.W.2.d 293, 297 (Ark. 1998)

(describing step three of Batson as requiring "that the trial court weigh

and assess what has been presented to it to decide whether in light of

all the circumstances, the proponent's explanation is or is not

pretextual"); State v. Collier, 553 So.2d 815, 821 (La. 1989) (holding

that

the trial judge cannot simply "[r]ubber stamp. . . [a prosecutor's] non-

racial explanation, no matter how whimsical or fanciful, . . . [but] in

order to permit a questioned [peremptory] challenge, . . . must conclude

that the proffered reasons are, first, neutral and reasonable, and,

second, not a pretext") (quotation omitted).

new trial because the trial court had denied a Batson

motion "without explicit adjudication of the credibility of the

non-movant's race-neutral explanations for the challenged

strikes." Id. at 156 (emphasis added).

The Dissent suggests that we exceed our authority as a

habeas court when we comment on the failure of the state

courts reviewing Riley's Batson challenge to provide a

reasoned statement for their rejection of Riley's challenge.

Although the state court is not required to "comment on all

of the evidence" before it, Dis. Op. at 89 (emphasis added),

an adequate step three Batson analysis requires something

more than a "terse," Harris, 192 F.3d at 588, "abrupt," Hill,

146 F.3d at 342, comment that the prosecutor has satisfied

Batson.

Similarly, we do not think that a habeas court may reject

a state court's ruling on a Batson claim simply because "it

was not persuaded by a particular piece of proof," as the

Dissent states. Dis. Op. at 87. However, as we have

explained, without any such statement there is no basis on

this record to determine if the state courts undertook, or

even were aware of, the required Batson step three inquiry.

The Fourth Circuit expressed the same thought in United

States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), where it

stated: "[T]he failure of the district court to rule at each

step of the Batson analysis deprives . . .[a reviewing] court

of the benefit of its factual determination and the reasons

supporting its ultimate holding." And its cases make clear

that such review requires that the trial court's rulings must

be clearly articulated. See, e.g., Jones v. Plaster, 57 F.3d

417, 421 (4th Cir. 1995) ("The ruling of the district court is

so unclear that we cannot determine on the present record

whether the ultimate conclusion of the district court to

overrule [the Batson] objection may be sustained."); United

States v. Blotcher, No. 95-5590, 1996 U.S. App. Lexis

19835, *11-*12 (4th Cir. August 7, 1996) (unpublished)

("We find the record so unclear that we cannot determine

whether the district court applied the proper legal analysis

in sustaining the prosecution's Batson objection to

[defendent's] peremptory strike against [a] juror.").

Most of the Dissent's other comments on the Batson

issue in this case have been previously anticipated and

discussed. We take this opportunity, however, to remark

upon the manner in which the Dissent comments upon the

reference to the pattern of the State's use of its

peremptories to exclude black jurors in all four first degree

murder cases, including Riley's, tried in the county the

same year. Because of the lack of information about some

of those cases, we refrained from suggesting that such

evidence, standing alone, would show intentional

discrimination but pointed out that it was the State that

sought an opportunity to produce supplementary evidence.

The following correspondence, which was preceded by the

oral dialogue quoted previously in its opinion, supra at

typescript page 18, clarifies the situation.

On January 9, 1989, the hearing judge wrote to counsel:

This will confirm the conclusion of the postconviction

relief hearing in the above-captioned matter. It is the

Court's understanding that the defendant's

presentation and all rebuttal by the State available on

the date of the hearing has been completed. However,

at the State's request, the Court did hold the record

open on the hearing to be supplemented by a rebuttal

summary of jury composition in State peremptory

challenges in first degree murder trials in Kent County

over a determined period of time if the State wished to

supplement the record.

Further, the hearing record will close on January 30,

1989; the Court expects proposed findings of fact and

conclusions of law from both parties no later than

February 6, 1989.

See Letter to this Court from Thomas J. Allingham II (Dec.

16, 1999), Ex. B (on file in the Clerk's office) (emphasis

added).

Some three weeks later, on January 27, 1989, and just

before the hearing record was to close, the State advised

the court as follows:

Please be advised that the State will not supplement

the record of the post conviction relief hearing held in

the above-captioned matter on December 30, 1988.

Id.

Thus the State, which had assured the court that

materials from other cases "do exist" that would be contrary

to Riley's representation, App. at 874, and having been

given the opportunity that it requested to supplement the

record with evidence as to jury composition, surprisingly

and without explanation, declined to produce evidence that

blacks served on juries in first degree murder cases in the

county in the same period that Riley was tried before an all-

white jury. The presumption that could be drawn from

these facts is one of the circumstances that should have

been evaluated by the Delaware courts in the required step

three inquiry.

The Dissent comments that Riley offered no expert

analysis of the statistics. The procedural posture of the

case at that time provided no such opportunity. Riley

produced evidence of the statistics of the racial composition

of the jurors in the four cases, the State requested the

additional time to provide counter-evidence, and the

hearing judge left the record open for that purpose. There

would have been no basis for expert analysis until all the

evidence as to jury composition was produced. The State's

letter that it would produce no evidence was dated three

days before the record closed.

Further, the Dissent's attempt to analogize the statistical

evidence of the use of peremptory challenges to strike black

jurors to the percent of left-handed presidents requires

some comment. The dissent has overlooked the obvious fact

that there is no provision in the Constitution that protects

persons from discrimination based on whether they are

right-handed or left handed. To suggest any comparability

to the striking of jurors based on their race is to minimize

the history of discrimination against prospective black

jurors and black defendants, which was the raison d'etre of

the Batson decision.

To reiterate, the factual findings of a state court are

entitled to deference only when there is "probative evidence

underlying [its] conclusion." See Rushen, 464 U.S. at 122

n.6. The Dissent points to no such probative evidence. It

relies merely on the credibility finding of the hearing judge,

a finding that we cannot be sure was made following

consideration of all the evidence presented by Riley and the

weaknesses he pointed to in the prosecutor's proffered

reasons.

9. Appropriate Remedy

When counsel for the State was asked at the en banc

argument whether, if this court were to find a Batson

violation, the State would rather the relief be the grant of a

new trial or the remand for a federal evidentiary hearing,

counsel candidly responded:

MR. MEYERS: If we -- the answer is yes. If, and if we

-- I mean, if the court imagines, has all these problems

with the hearing that was done six years after the trial,

those problems are simply going to be magnified,

amplified by exponential order of magnitude 20 years

after the trial. I mean if you think that people have

memory problems six years, how much worse are you

going to be 20 years later?

Tr. of Oral Argument at 46. Riley's counsel concurred,

stating that a federal habeas judge would be no better off

than the hearing judge was in 1988.

We agree. Much of the Dissent's opposition is directed to

the majority's failure to remand to the District Court for a

hearing but the Dissent may have overlooked that both

parties preferred a new trial to a remand should this court

find that the state proceedings were not shown to be

consistent with the requirement of Batson. It is highly

unlikely that the witnesses can provide more illuminating

testimony thirteen years later. Moreover, there are no

factual issues that can be solved by a federal evidentiary

hearing.12 Although the Dissent chooses to characterize the

result in this case as a federal court's substitution of its

own findings for those of the state court, in fact we are

merely fulfilling the traditional role of a federal habeas

court, which is, in part, to determine whether the state

court's decision is "fairly supported by the record." The one

_________________________________________________________________

12. This is unlike the situation in Hakeem v. Beyer, 990 F.2d 750 (3d

Cir. 1993), where we held that the state court's finding regarding the

delay in the proceedings was not entitled to the presumption of

correctness but directed the district court to determine in a federal

habeas evidentiary hearing the reason for the delay.

possible factual issue cannot be resolved by a hearing,13

and the statistical evidence, which might be the subject of

some analysis at such a hearing, is relevant but not

dispositive to our decision.

The question of the remedy a habeas court should order

following a finding that the state process did not comply

with constitutional requirements is not a new one. In

Brown v. Kelly, 973 F.2d 116 (2d Cir. 1992), the federal

court of appeals was faced with a comparable situation as

that before us. Defendant was convicted in state court of

murder and first degree robbery. He eventually came to the

federal court with a petition for a writ of habeas corpus,

claiming, inter alia, a violation of Batson. The federal courts

did not find that Batson had been violated but the Second

Circuit took the opportunity to consider the appropriate

remedy when a constitutional violation is found by the

federal courts sitting in habeas. The court stated,"[T]here

are cases where the passage of time may impair a trial

court's ability to make a reasoned determination of the

prosecutor's state of mind when the jury was selected.

Where such demonstrably exists, there must be a new

trial." Id. at 121.

The Brown court cited United States v. Alcantar, 897 F.2d

436, 438-39 (9th Cir. 1990) (ordering a new trial because

there was inadequate evidence to determine, as part of

Batson analysis, why the jurors were struck). And in

Barnes, 202 F.3d at 157, the Court of Appeals ordered a

new trial rather than a remand for a hearing on the Batson

issues because the trial judge had died and the court was

"not confident . . . that further proceedings would . . . shed

reliable light upon the voir dire.") (quotation omitted).

The circumstances of this case are closely analogous to

those in Hardcastle v. Horn, ___ F. Supp. 2d ___, 2001 WL

_________________________________________________________________

13. Although neither party has focused on it, there is an apparent

factual discrepancy between McGuire's testimony that he did not request

to be excused, App. at 850, and the trial judge's statement that McGuire

came to see him and requested to be excused, App. at 250. It is agreed

that McGuire saw the trial judge, but McGuire testified it was at the

judge's direction. As the trial judge is deceased, a federal evidentiary

hearing would not resolve this issue, even if it were important to do so.

722781 (E.D. Pa., June 27, 2001), where the district court

found a Batson violation but dismissed the notion of

ordering a federal evidentiary hearing instead of a new trial

in state court, commenting that "[n]early twenty years have

passed since Petitioner's trial, such a length of time that

even Respondents admit that an evidentiary hearing on

Petitioner's Batson claim is unlikely to be helpful." Id. at

*19. The Hardcastle court stated that "[a] new trial is

especially appropriate where as here, the passage of time

makes a new evidentiary hearing on the petition

impossible." Id.14 Likewise, we see no reason to order the

District Court to provide Riley with an evidentiary hearing

that it declined to provide on two prior occasions. Instead,

we will reverse the District Court's order denying Riley's

petition for a writ of habeas corpus, and remand for the

District Court to grant the writ without prejudice to the

State retrying the case pursuant to the guidelines to be set

by the District Court.

THE CALDWELL CLAIM

In addition to Riley's Batson claim presented to the en

banc court, Riley argues that the prosecutor and the trial

judge made remarks to the jury during the penalty hearing

that misled the jury as to its sense of responsibility in the

sentencing process, in violation of the principles set forth in

Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell,

the Supreme Court held that prosecutorial comments at

sentencing violated the Eighth Amendment by leading the

jury to believe that ultimate responsibility for determining

the appropriateness of the death sentence rested with the

state supreme court. See 472 U.S. at 333.

The Delaware Supreme Court, on direct appeal, rejected

Riley's Caldwell claim, commenting that"[i]n no sense may

_________________________________________________________________

14. The Hardcastle case is on appeal to this court, and our reference to

this limited aspect of the decision, which is applicable here, is not

intended to reflect an opinion as to the merits of the District Court's

decision on the Batson issue.

it reasonably be said that the prosecutor was either

misstating the law, misleading the jury as to its role, or

minimizing its sentencing responsibility." Riley I, 496 A.2d

at 1025. The District Court agreed, thus denying Riley

habeas relief. See Riley VIII, 1998 WL 172856, at *31. A

Caldwell claim presents mixed questions of law and fact

subject to plenary review in the habeas context. See Miller

v. Fenton, 474 U.S. 104, 112-14 (1985); see also Moore v.

Gibson, 195 F.3d 1152, 1171 (10th Cir. 1999).

In Caldwell, the defense attorney in a capital murder

case pleaded with the jury in closing arguments at the

sentencing phase to spare the defendant's life. In reply, the

prosecutor stated:

Ladies and gentlemen, I intend to be brief. I'm in

complete disagreement with the approach the defense

has taken. I don't think it's fair. I think it's unfair. I

think the lawyers know better. Now, they would have

you believe that you're going to kill this man and they

know--they know that your decision is not the final

decision. My God, how unfair can you be? Your job is

reviewable. They know it.

472 U.S. at 325 (emphases added).

Caldwell's defense counsel objected to this statement but

the trial court overruled the objection, stating that it was

"proper that the jury realizes it is reviewable automatically

as the death penalty commands." Id. The prosecutor

continued:

Throughout their remarks, they attempted to give you

the opposite, sparing the truth. They said `Thou shall

not kill.' If that applies to him, it applies to you,

insinuating that your decision is the final decision and

that they're gonna take Bobby Caldwell out in the front

of this Courthouse in moments and string him up and

that is terribly, terribly unfair. For they know, as I

know, and as Judge Baker has told you, that the

decision you render is automatically reviewable by the

Supreme Court. Automatically, and I think it's unfair

and I don't mind telling them so.

Id. at 325-26 (emphasis added).

Although the jury's sentence in Caldwell was indeed

subject to automatic review by the state supreme court, the

United States Supreme Court's plurality opinion stated that

the prosecutor's statement was "inaccurate, both because it

was misleading as to the nature of the appellate court's

review and because it depicted the jury's role in a way

fundamentally at odds with the role that a capital sentencer

must perform." Id. at 336. Justice O'Connor, who cast the

fifth and deciding vote, emphasized that "[j]urors may

harbor misconceptions about the power of state appellate

courts or, for that matter, [the United States Supreme

Court] to override a jury's sentence of death." Id. at 342

(O'Connor, J., concurring). According to Justice O'Connor,

the prosecutor's statements were impermissible because

they "creat[ed] the mistaken impression that automatic

appellate review of the jury's sentence would provide the

authoritative determination of whether death was

appropriate" whereas under state law the relevant scope of

review was limited to whether the verdict was "so arbitrary

that it was against the overwhelming weight of the

evidence." Id. at 343 (O'Connor, J., concurring) (quotation

omitted).

In Romano v. Oklahoma, 512 U.S. 1 (1994), the Supreme

Court clarified the Caldwell holding. Accepting Justice

O'Connor's concurrence as controlling, the Romano Court

explained that Caldwell prohibits prosecutorial comments

that "mislead the jury as to its role in the sentencing

process in a way that allows the jury to feel less responsible

than it should for the sentencing decision." Id. at 9

(quotation omitted). Accordingly, "[t]o establish a Caldwell

violation, a defendant necessarily must show that the

remarks to the jury improperly described the role assigned

to the jury by local law." Id. (quotation omitted). The Court

subsequently rejected Romano's Caldwell claim because

"the jury was not affirmatively misled regarding its role in

the sentencing process." Id.

In Riley's case, Liguori began his opening comments in

the penalty phase by stating:

As the Judge has explained to you we have a specific

statute with regard to what occurred in a penalty

hearing in a capital case.

Let me say at the outset that what you do today is

automatically reviewed by our Supreme Court and that

is why there is an automatic review on the death

penalty. That is why, if you return a decision of death,

that is why you will receive and have to fill out a two-

page interrogatory that the Court will give you. This is

an interrogatory that specifically sets out the questions

that the State request and whether or not you believe

it beyond a reasonable doubt and if you want in your

determination, if you believe the sentence should be

death than each and every one of you has to sign this.

This goes to the Supreme Court. That is why it is

concise and we believe clear and it should be looked

carefully on and answered appropriately.

App. at 393 (emphases added).

At oral argument before the en banc court, the State

conceded that Liguori's statement, at least "on its face," is

no different from that of the prosecutor in Caldwell. Tr. of

Oral Argument at 49. Counsel for the State told us that

when "[y]ou compare the two, they are pretty much alike."

Tr. of Oral Argument at 49. Like the statement in Caldwell,

Liguori's statement regarding automatic appellate review

was technically accurate since Delaware law provided for

automatic review by the Delaware Supreme Court of a

jury's sentence of death. However, that automatic review

was extremely limited, as was that of the Mississippi

Supreme Court in Caldwell.

At the time of Riley's sentencing hearing, the relevant

portion of the capital sentencing statute provided:

The Supreme Court shall limit its review under this

section to the recommendation on and imposition of

the penalty of death and shall determine:

a. Whether, considering the totality of evidence in

aggravation and mitigation which bears upon the

particular circumstances or details of the offense and

the character and propensities of the offender, the

death penalty was either arbitrarily or capriciously

imposed or recommended . . . .

Del. Code Ann. tit. 11, S 4209(g)(2) (1982) (emphasis

added). Indeed, in Delaware the jury's weighing of

aggravating and mitigating circumstances was, for all

practical purposes, final. We have found no published

opinion during the relevant time period in which the

Delaware Supreme Court reversed a jury's sentence of

death as arbitrarily or capriciously imposed.15

It is apparent, then, that, like the prosecutor's statement

in Caldwell, Liguori's reference to automatic appellate

review was misleading as to the scope of appellate review.

As was explained in Caldwell, jurors may not understand

the limited nature of appellate review, which affords

substantial deference to a jury's determination that death is

the appropriate sentence. See 472 U.S. at 332-33.

Furthermore, jurors who are unconvinced that death is the

appropriate punishment but who are eager to send a

message of disapproval for the defendant's acts might be

"very receptive to the prosecutor's assurance that [they] can

more freely err because the error may be corrected on

appeal." Id. at 331 (quotation omitted). As one of our sister

circuits has explained, "[f]or the jury to see itself as

advisory when it is not, or to be comforted by a belief that

its decision will not have effect unless others make the

same decision, is a frustration of the essence of the jury

function." Sawyer v. Butler, 881 F.2d 1273, 1282 (5th Cir.

1989).

It is therefore not enough to argue, as the State does,

that Liguori's comments at sentencing were a correct and

accurate statement of Delaware law. The statute at the time

contained more than 40 different provisions detailing

procedures and requirements applicable to a death

sentence, but the only one the prosecutor chose to

emphasize was that providing for automatic review of the

jury's sentence.

_________________________________________________________________

15. The Delaware capital sentencing scheme was substantially amended

in 1991. Under the amended statute, "the jury now functions only in an

advisory capacity. The judge, after taking the jury's recommendation into

consideration, has the ultimate responsibility for determining whether

the defendant will be sentenced to life imprisonment or death." State v.

Cohen, 604 A.2d 846, 849 (Del. 1992). In contrast, when Riley was

sentenced, the jury's death sentence was binding on the judge.

Nor does the State satisfactorily explain why Liguori

referred to "automatic review on the death penalty" in

connection with his explanation of the interrogatory form.

App. at 393. The interrogatory form contained only two

questions: whether the jury unanimously found beyond a

reasonable doubt that an aggravating circumstance existed16

and, if the jury answered "yes," whether it unanimously

recommended a sentence of death. Such a simple and

straightforward form hardly needed an explanation.

Instead, that "explanation" appears to have been used as a

segue to alert the jury to the fact that the Delaware

Supreme Court would automatically review its decision to

impose a death sentence.

"The sentencing decision in capital cases is born out of

an inherent and unique mixture of anger, judgment and

retribution, and requires a determination whether certain

acts are so beyond the pale of community standards as to

warrant the execution of their author." Sawyer, 881 F.2d at

1278. Perhaps more than any other decision rendered by a

jury, a sentence of death is "irreducibl[y] discretionary." Id.

Yet in Caldwell, the Supreme Court noted that "[b]elief in

the truth of the assumption that sentencers treat their

power to determine the appropriateness of death as an

awesome responsibility has allowed this Court to view

sentencer discretion as consistent with--and indeed as

indispensable to--the Eighth Amendment's need for

reliability in the determination that death is the appropriate

punishment in a specific case." 472 U.S. at 330 (quotations

omitted). It follows that there is particular concern "when

there are state-induced suggestions that the sentencing

jury may shift its sense of responsibility to an appellate

court." Id. Unlike our decision in Zettlemoyer v. Fulcomer,

923 F.2d 284, 306 (3d Cir. 1991), where we rejected a

Caldwell claim, in part because "[t]here was no suggestion

to the jury that the [state] Supreme Court . .. or anyone

else would have the last word in the case," here the

prosecutor expressly stated both "there is an automatic

_________________________________________________________________

16. The jury had previously been instructed that, by convicting Riley of

felony murder, it already had found that an aggravating circumstance

existed.

review" and "[t]his goes to the [state] Supreme Court." App.

at 393.

The Dissent suggests that there was no Caldwell violation

here because the prosecutor's statement was made"near

the very beginning of his summation," and consisted of

"accurate, unemotional, passing remarks." The Dissent also

characterizes the prosecutor's remarks as "the mere

mention of the fact that there would be an automatic

appeal to the state supreme court."

It is true that the prosecutor's statement was made near

the beginning of his summation, but his summation was

not a lengthy speech, occupying a mere four pages of the

transcript, App. at 393-97, of which the remarks in

question take almost a full page. We cannot tell whether

they were "emotional" or not, but they can hardly be

characterized as "passing," as the prosecutor began by

saying, "Let me say at the outset that what you do today is

automatically reviewed by our Supreme Court." And, as we

noted above, in that one paragraph, the prosecutor referred

not once but twice to the Supreme Court -- both

mentioning "automatic review" and that the interrogatory to

be completed by the jurors also "goes to the Supreme

Court."

We are unwilling to treat lightly the prosecutor's pointed

references to appellate review of this crucial decision.

Statements, like those made by the prosecutor here,"can

be literally true but quite misleading by failing, for example,

to disclose information essential to make what was said not

misleading." Sawyer, 881 F.2d at 1285. As a result, a

Caldwell violation may be established where a technically

accurate statement describing the state appellate review

process nonetheless "misled the jury to minimize its role in

the sentencing process." Driscoll v. Delo, 71 F.3d 701, 713

(8th Cir. 1995) (holding that prosecutor had violated

Caldwell by emphasizing that the trial judge could

disregard the jury's recommendation of death even though

no state judge had in fact ever done so).

Given the limited nature of the Delaware Supreme

Court's review of a jury's sentence of death at the time of

Riley's sentencing, a fact Liguori did not explain to the jury,

we conclude that there was a Caldwell violation in this case.17

As suggested in Caldwell, jurors are unlikely to understand

the exceptionally narrow scope of appellate review given to

jury determinations on death. See 472 U.S. at 330-31; see

also id. at 342 (O'Connor, J., concurring). Although

Liguori's remarks were brief, they were the first comments

that the jury heard at sentencing, making them more likely

to have made an impression. A statement does not have to

be lengthy to be effective in suggesting to the jury that

ultimate responsibility for sentencing lies elsewhere.

Moreover, nothing the trial court said corrected any

misimpression left by the prosecution's statements, as the

judge made no comment whatsoever pertaining to appellate

review. Unlike Jones v. Butler, 864 F.2d 348, 360 (5th Cir.

1988), where the Court of Appeals for the Fifth Circuit held

that the prosecutor's statement that "[I]f, in fact, you do

return the death penalty . . . yours will not be the last

word. Every sentence is reviewed by the Supreme Court,"

was improper but cured by a prompt curative instruction

by the trial judge, here there was no curative instruction.18

Caldwell and its progeny make clear that"the sentencing

jury must continue to feel the weight of responsibility so

long as it has responsibility." Sawyer, 881 F.2d at 1282.

Because the prosecutor's remarks may have misled the jury

into thinking the Delaware Supreme Court was the final

arbiter of Riley's fate, we conclude that Riley's

constitutional rights were violated under Caldwell. Thus,

even were we to find that Riley has not shown a Batson

violation entitling him to a new trial, we still would direct

the District Court to grant the writ of habeas corpus

entitling Riley to a new sentencing hearing.

_________________________________________________________________

17. At oral argument counsel for the State acknowledged that "[p]erhaps

better practice would have been for Liguori to insert the word `limited' "

into his reference to automatic appellate review. Tr. of Oral Argument at

50. This could be construed as a concession by the State that Liguori's

comments were misleading because of what they did not tell the jury.

18. We are not persuaded by Riley's contention that the trial judge's

repeated references to the jury's determination on death as a

"recommendation" misled the jury as to its actual responsibility in the

sentencing process. See generally Flamer v. Delaware, 68 F.3d 710 (3d

Cir. 1995).

III.

CONCLUSION

This is an appropriate case for the issuance of a writ of

habeas corpus. One of the principal objections to the

operation of the death penalty in this country is that it is

applied unevenly, particularly against poor black

defendants. Another concern is that because of the complex

review process, the jury may not comprehend the

significance of its life-or-death decision. Both of these

issues are implicated in this case. An appropriate order

follows.

[This page intentionally left blank]

Volume 2 of 2

APPENDIX A

Excerpts from Panel Opinion in Riley v. Taylor,

No. 98-9009

Filed January 17, 2001

Panel: SLOVITER, ALITO, and STAPLETON, Circuit Judges

ALITO, Circuit Judge:

. . .

III.

Riley next argues that adverse publicity prevented him

from obtaining a trial by an impartial jury. He contends,

first, that it should be presumed that he was prejudiced by

pretrial publicity because the record establishes the

existence of a "hostile trial atmosphere" and, second, that

the record shows that several jurors were unable to be

impartial due to exposure to unfavorable pretrial publicity.

"Where media or other community reaction to a crime or

a defendant engenders an atmosphere so hostile and

pervasive as to preclude a rational trial process, a court

reviewing for constitutional error will presume prejudice to

the defendant without reference to an examination of the

attitudes of those who served as the defendant's jurors."

Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992).

See also Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes

v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373

U.S. 723 (1963); Flamer v. Delaware, 68 F.3d 736, 755 (3d

Cir. 1995) (en banc). "The community and media reaction,

however, must have been so hostile and so pervasive as to

make it apparent that even the most careful voir dire

process would be unable to assure an impartial jury.. . .

Such cases are exceedingly rare." Rock, 959 F.2d at 1252-

53.

In this case, the state courts made a finding of

impartiality. Such a finding is entitled to deference, see

Patton v. Yount, 467 U.S. 1025, 1031 & n. 7 (1984), and we

find no basis for overturning that finding.

Riley relies on a relatively small number of newspaper

articles, almost half of which appeared six months or more

before the trial. Although two of the articles named Riley as

a suspect in Feeley's murder, and although a few of the

articles discussed the plight of the Feeley children, who

were orphaned by the murder, the articles were not

inflammatory. In short, the media coverage was not"so

hostile and pervasive as to preclude a rational trial

process." Rock, 959 F.2d at 1252.

Because Riley has not shown the presence of

circumstances justifying a presumption of prejudice, he

"must establish that those who actually served on his jury

lacked a capacity to reach a fair and impartial verdict based

solely on the evidence they heard in the courtroom." Rock,

959 F.2d at 1253. See also Patton, 467 U.S. at 1035; Irvin

v. Dowd, 366 U.S. 717, 723 (1961). "The fact that jury

members may have been exposed to press reports or other

community reaction concerning the case and even the fact

that they may have formed a tentative opinion based on

that exposure will not establish a constitutional violation if

the trial court has found, with record support, that each of

the jurors was able to put aside extrinsic influences." Rock,

959 F.2d at 1253.

Riley contends that two jurors, Leon Morris and Carl

Patterson, were unable to be impartial due to exposure to

pretrial publicity. We do not agree.

Morris testified during voir dire that he "had read

something about" the case in the newspaper at the time of

the murder and that he had heard on the radio that the

case was "coming to trial." App. 277. The following

exchange then occurred:

Q. . . . Because of what you read in the newspaper,

do you feel that you could sit here as an impartial

jury?

A. Yes, because I know nothing of the evidence or

anything else.

App. 278.

Carl Patterson during voir dire was asked whether

anything he had read in the newspaper had created bias or

prejudice against the defendant. See App. 294. He

responded that he could not remember a lot of what he

read in the newspaper. See id. The following colloquy then

occurred:

Q. Then do you know of any reason why you can't

render an impartial verdict based solely upon the law

and the evidence?

A. No, Your Honor.

Id.

The trial judge implicitly found that these jurors were

impartial, and the Delaware Supreme Court agreed on

direct appeal. Such implicit findings are entitled to a

presumption of correctness. Parke v. Raley, 506 U.S. 20, 35

(1992); Weeks v. Snyder, 2000 WL 975043 (3d Cir. July 17,

2000); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir.

2000), and we see no ground for holding that that

presumption has been overcome.

IV.

Riley argues that the prosecution violated his right to due

process by failing to disclose exculpatory evidence in its

possession as required by Brady v. Maryland, 373 U.S. 83

(1963). In Brady, the Supreme Court held that "the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution." Id. at 87. To state a valid Brady claim, a

plaintiff must show that the evidence was (1) suppressed,

(2) favorable, and (3) material to the defense. See United

States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991).

Evidence is material if there is a reasonable probability that

the outcome would have been different had the evidence

been disclosed to the defense. See United States v. Bagley,

473 U.S. 667, 678 (1985). Evidence that may be used to

impeach may qualify as Brady material. See Kyles v.

Whitley, 514 U.S. 419, 445 (1995); Bagley , 473 U.S. at 676.

Riley's Brady argument concerns a wiretap on the

telephone of the mother of Tyrone Baxter. Before trial,

Riley's lawyer asked the state to produce recordings or

transcripts of the intercepted calls, but the state refused,

arguing that the tapes contained no exculpatory material.

Without listening to the tape himself, the trial judge

accepted the prosecutor's representation and denied Riley's

motion for production. Throughout the subsequent

proceedings in state and federal court, no judge listened to

the tapes.

In his briefs in this appeal, Riley made a strong Brady

argument. He asserted that between the time of the Feeley

murder and Baxter's arrest, "Baxter spoke to his mother on

the telephone on several occasions"; that "Baxter's

testimony was the State's strongest evidence against" him;

and that statements made by Baxter to his mother might

have provided valuable impeachment evidence. Appellant's

Br. at 5. At a minimum, he contended, the state courts or

the District Court should have listened to the tapes in

camera to determine whether they contained Brady

material.

At oral argument, however, counsel for the appellees

represented that an examination of the logs of the wiretap

on Mrs. Baxter's telephone did not reveal any intercepted

conversations in which Baxter participated. Copies of the

logs were provided to Riley's attorneys and to the court, and

Riley's attorneys submitted a letter-brief commenting on the

contents of the logs. We have examined the logs, and it

appears that the state's representation is correct: we see no

record of any conversations in which Baxter participated.

The revelation that the logs do not mention any such

conversations fatally undermines the Brady argument made

in Riley's briefs.

In their post-argument letter-brief commenting on the

logs, Riley's attorneys advance different arguments to show

that an in camera inspection of the wiretap recordings is

required. A defendant seeking an in camera inspection to

determine whether files contain Brady material must at

least make a "plausible showing" that the inspection will

reveal material evidence. Pennsylvania v. Ritchie, 480 U.S.

39, 58 n.15 (1987) (quoting United States v. Valenzuela-

Bernal, 458 U.S. 858, 867 (1982)). Mere speculation is not

enough. United States v. Navarro, 737 F.2d 625, 631 (7th

Cir. 1984). The arguments made by Riley's attorneys in

their post-argument submission do not satisfy this

standard.

Riley's attorneys first note that several log entries

"expressly refer to conversations about Tyrone Baxter."

12/16/99 Letter-brief at 3 (emphasis added). But it is

unlikely that statements "about" Baxter by third persons --

unlike statements made by Baxter himself -- could have

been used to impeach Baxter's testimony or could have

been admitted at trial on some other ground. For that

reason alone, it is unlikely that these statements are

material. See Wood v. Bartholomew, 516 U.S. 1, 5-6 (1995).

Moreover, even if the problem of admissibility is put aside,

it is pure speculation to suppose that the contents of the

statements are in any way exculpatory.

Riley's attorneys also suggest that conversations between

Baxter and his mother may have been intercepted and

recorded but that the person or persons who compiled the

logs may not have recognized Baxter's voice. This, however,

is nothing but the purest speculation. We note that the

wiretap occurred while the police were seeking to arrest

Baxter; they therefore had a strong incentive to identify him

if he participated in any of the intercepted conversations.

We have considered all of Riley's Brady arguments and find

them to be without merit.

Riley argues that he was denied the effective assistance

of counsel at the penalty phase of his trial.1 The District

Court held that many of Riley's arguments concerning the

alleged deficiencies of his attorney's performance were never

_________________________________________________________________

1. Riley's amended federal habeas petition raised claims regarding the

alleged ineffectiveness of trial counsel at the guilty phase, but the

District Court held that these claims were procedurally barred. See Riley

VI, 1998 WL 172856, at **18-20. On appeal, Riley refers to these claims

in a footnote. See Appellant's Br. at 38 n.16. This footnote is inadequate

to raise the issue on appeal.

presented to the Delaware Supreme Court and were thus

procedurally barred, and the District Court rejected Riley's

remaining arguments regarding this matter on the merits.

On appeal, Riley attacks both parts of the District Court's

holding.

Riley contends that the District Court was required to

hold an evidentiary hearing on the question of procedural

default for two reasons. First, he maintains that at least

some of the arguments that the District Court held were

procedurally barred might have been presented to the

Delaware Supreme Court during the oral argument of his

direct appeal even though those arguments were not

contained in his brief. Because the record does not include

a transcript of the oral argument, Riley maintains that the

District Court should have held an evidentiary hearing for

the purpose of reconstructing the record. See Appellant's

Br. at 38-39. We disagree.

On direct appeal, Riley was represented by the same

attorney who had represented him at trial. In his amended

habeas petition, Riley acknowledges that no ineffective

assistance argument was made in the direct appeal brief

that was ultimately submitted on his behalf and accepted

for filing by the Delaware Supreme Court.2 See App. 1198.

In addition, the opinion issued by the Delaware Supreme

Court in the direct appeal makes no mention of ineffective

assistance of counsel. See Riley I. Under these

circumstances, the District Court was certainly not

required to conduct an evidentiary hearing to determine

whether the attorney who represented Riley at trial chose at

oral argument before the state supreme court to make

arguments not mentioned in his brief and to condemn his

own performance in the trial court.

_________________________________________________________________

2. The first brief submitted by Riley's attorney on direct appeal

contained

a conclusory passage that purported to raise the issue of ineffective

assistance (without any factual elaboration) for the purpose of preserving

the issue. See App. 1198. However, this brief was rejected by the

Delaware Supreme Court, and the brief that was ultimately submitted

and accepted contained no such passage. See App. 1198-99.

With little elaboration, Riley also contends that the

District Court should have held an evidentiary hearing so

that Riley could show that he had "cause" for not raising

the arguments in question in state court. See Appellant's

Br. at 39. However, Riley has not even identified any

"cause" that he would have attempted to show. We will not

reverse the decision of the District Court and order that

Court to conduct an evidentiary hearing so that Riley can

develop the factual predicate for a "cause" that Riley has

not even disclosed.

Perhaps the most frequently asserted "cause" for

procedural default is ineffective assistance of counsel, and

we will therefore comment briefly on the steps that Riley

should have taken if he wished to rely on this "cause." As

the District Court pointed out, in order for Riley to show

that ineffective assistance provided "cause" for failing to

raise the arguments in question in the state court

proceedings, Riley would have to show that the new

attorney who represented him in the state post-conviction

relief proceedings was ineffective. See Dist. Ct. Op. at 50 &

n.16, 56-57. This is so because Delaware permits a claim of

ineffective assistance to be raised in a post-conviction relief

proceeding even if it was not raised on direct appeal. See

Riley VI, 1998 WL 172856, at **17-18 & n.16. 3

Riley has not argued, however, that the attorney who

represented him in the state post-conviction relief

proceedings provided ineffective assistance by failing to

make the specific arguments that the District Court held

were procedurally barred.4 Moreover, because Riley never

raised a claim in state court that his post-conviction relief

attorney was ineffective, he runs afoul of the rule that "a

_________________________________________________________________

3. Indeed, in Riley's case, ineffective assistance was vigorously argued

the post-conviction relief proceedings, and the Delaware Supreme Court

addressed these arguments on the merits. See Riley V, 585 A.2d at 726-

29.

4. Even if Riley had asserted a "cause" for the procedural default, he

would have to confront the rule that a habeas petitioner is not entitled

to an evidentiary hearing in federal court to establish a factual record

unless the petitioner can show "cause" for not making the necessary

factual record in the state proceedings. See Keeney v. Tamayo-Reyes,

504 U.S. 1, 11-12 (1992).

petitioner must demonstrate independent cause and

prejudice excusing the default of the ineffectiveness claim

before that claim can be assessed as cause in relation to a

second, substantive claim." Hill v. Jones, 81 F.3d 1015,

1030 (11th Cir. 1996). See also Justus v. Murray , 897 F.2d

709, 713 (4th Cir. 1990).

We will now discuss the ineffective assistance arguments

that were not procedurally defaulted. In order to show that

his constitutional right to the assistance of counsel was

violated at the penalty phase, Riley must satisfy the two-

pronged test of Strickland v. Washington, 466 U.S. 668, 687

(1984). First, he must demonstrate that his attorney"made

errors so serious that counsel was not functioning as the

`counsel' guaranteed the defendant by the Sixth

Amendment." Id. at 687. "Judicial scrutiny of counsel's

performance must be highly deferential. It is all too

tempting for a defendant to second-guess counsel's

assistance after . . . [an] adverse sentence, and it is all too

easy for a court, examining counsel's defense after it has

proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable." Id. at 689. Second,

if counsel's representation is shown to fall outside"the wide

range of reasonable professional assistance," id., it must be

shown that "the deficient performance prejudiced the

defense," that is, that "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Id . at 694.

1. In his brief in our court, Riley presented a greatly

truncated version of arguments previously advanced

regarding trial counsel's failure to call certain family

members to testify at the penalty phase of the trial and trial

counsel's failure to locate or contact other family members

who might have testified. All of these family members, Riley

argues, could have provided evidence about his traumatic

experiences as a child and his "severely dysfunctional

family." Appellant's Br. at 41.

The Superior Court, the Delaware Supreme Court, and

the District Court all addressed these arguments in some

detail and rejected them. They concluded that Riley's trial

attorney made reasonable efforts to find certain family

members who could not be located, that he did not act

unreasonably in failing to call others as witnesses, and that

his failure to rely on what was termed Riley's "social

history" represented a reasonable strategy. See Riley II,

1988 WL 47076 at *3-4, *7-9; Riley V, 585 A.2d at 726-28;

Riley VI, 1998 WL 172856, at **20-23.

In his brief in our court, Riley merely states without

elaboration that "trial counsel failed to call as witnesses

members of Mr. Riley's immediate family, several of whom

lived within a few hours of Dover, Delaware" and that these

witnesses could have testified about his childhood and

family. Appellant's Br. at 41. He provides no response to

the detailed reasons given by the state courts and the

District Court for holding that trial counsel was not

ineffective in failing to call or locate family members for the

purpose of eliciting testimony about Riley's childhood and

family.

Nothing has been presented that convinces us that the

state courts and the District Court erred. We agree with the

state courts and the District Court that Riley has not

shown that trial counsel was ineffective in failing to call

those family members who could be located, such as Riley's

mother. The District Court analyzed trial counsel's decision

not to put Riley's mother on the stand as follows:

The record is replete with circumstances that

support trial counsel's decision not to call Petitioner's

mother. First, Petitioner informed trial counsel that he

did not wish to expose his mother's problems at trial.

. . . Second, trial counsel testified that Petitioner's

mother refused to support Petitioner's alibi, and as a

result, he was concerned about the prosecutor's cross-

examination of her during the penalty phase. . . .

Third, the record indicates that Petitioner's mother had

a severe drinking problem and was drinking heavily at

the time of the trial. . . . As a result, trial counsel

believed that the witnesses that he chose to call in

mitigation, instead, would make a better impression on

the jury. . . . Under these circumstances, the Court

finds trial counsel's decision not to call Petitioner's

mother to be reasonable and within the bounds of his

strategic discretion.

Riley VI, 1998 WL 172856, at *2. We agree.

We also agree that Riley has not demonstrated that his

trial attorney was ineffective in failing to locate certain

other family members. See Riley II, **3-5; Riley V, 585 A.2d

at 727-28; Riley VI, 1998 WL 172856, at *21. Finally, we

agree that a strategy of not introducing evidence regarding

Riley's background and family fell within "the wide range of

reasonable professional assistance." Strickland, 466 U.S. at

689. The Superior Court wrote as follows:

The adverse inferences to be drawn from the fact that

defendant's parents were both alcoholics, his sister an

unwed mother of three, his brother an incarcerated

criminal and his home life a series of jails and

temporary living quarters would no doubt have been

magnified in the semi-rural county where this case was

tried . . . . Likewise, it is certainly within the range of

strategic choices to forego mitigating evidence, which

may be seen as "excuse making" and rely upon a plea

for mercy . . . . In Riley's case, evidence offered as to

mitigating circumstances included: that the actual

killer was Tyrone Baxter, the co-defendant; that Baxter

received a less severe penalty; and that Riley's

background indicated that he was a diligent worker,

possessing a non-violent and good character.

In this case, trial counsel gave a strong argument that

Riley's life should be spared in light of the fact that

Tyrone Baxter, defendant's accomplice and principal

accuser, would be spared the death penalty as the

result of a plea bargain. Moreover, Walter Ross testified

without contradiction at the [post-conviction relief]

hearing that the defendant did not want his family

background discussed at the penalty phase. Given

defendant's wishes, the lack of positive evidence in

mitigation, counsel's focused argument for leniency in

light of Baxter's plea bargain, and the potentially

negative impact the purportedly positive evidence

would have wrought before the jury, defendant has

failed to show that counsel's decision to limit the

testimony at the penalty phase was constitutionally

deficient.

Riley II, 1988 WL 47076, at *11-12. This analysis was

accepted by the Delaware Supreme Court and the District

Court. We cannot disagree.

2. Riley contends that his trial attorney was ineffective

because he did not present testimony by a mental health

expert. Riley relies on the affidavits of two experts, who

examined him in connection with the post-conviction relief

proceeding. One of the experts characterized Riley as a

person with "borderline defective" intelligence whose

capacity "for objectively analyzing events, circumstances

and relationships [is] narrowed by stress and complexity."

Appellant's Br. at 42. We agree with Riley that this

explanation might have been helpful at the penalty phase.

The question remains, however, whether trial counsel was

ineffective in failing to obtain such evidence at the time.

In the post-conviction relief proceeding in Superior Court,

trial counsel testified that he did not seek to have Riley

examined by a mental health expert because he had no

reason to think, in light of his conversations with Riley,

that such an examination would have revealed anything

useful. See App. 592-96. He testified that Riley appeared to

understand what they discussed and that Riley prepared

and filed some motions on his own behalf. See App. 592-

93. Trial counsel stated that Riley never mentioned any

head injury or any psychological problems. See App. 590.

Relying on this testimony, the Superior Court found that

trial counsel "had no inkling that evaluation of Mr. Riley's

mental or emotional state might be helpful in mitigation."

Riley II, 1988 WL 47076, at *7.

Before us, Riley has not argued that counsel in a capital

case must always seek a mental examination of the

defendant, and cases from other circuits reject that

proposition. Instead, they hold that a case-by-case

determination must be made and that counsel is not

ineffective if he or she has no reason to think that a mental

examination would be useful. See Thomas v. Gilmore, 144

F.3d 513, 515-16 (7th Cir. 1998); United States v. Miller,

907 F.2d 994, 998-99 (10th Cir. 1990); United States ex rel.

Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir. 1986).

Under this standard, we see no ground for reversing the

decision of the District Court here. Riley has simply not

identified any fact that should have alerted his trial

attorney that he had mental problems that might have

provided the basis for mitigation. The only fact even

mentioned in Riley's briefs is the "implausible" nature of

Riley's alibi, see Reply Br. at 21, but this is insufficient to

alert counsel to the possibility of mental problems that

might be relevant to mitigation. For the most part, Riley

merely notes what the subsequent examinations by mental

health experts revealed. However, "[a] fair assessment of

attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to

evaluate the conduct from counsel's perspective at the

time." Strickland, 466 U.S. at 689.

3. Finally, Riley cites trial counsel's inexperience and

the fact that he spent only 14 hours preparing for the

penalty phase of the trial. These facts are not comforting,

but they do not in themselves establish that counsel was

ineffective. We have taken them into account in evaluating

the other deficiencies properly asserted in this appeal. We

cannot say, however, that Riley's constitutional right to the

effective assistance of counsel was denied.

VI.

Relying on Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985),

Riley argues that his right to due process was violated

because the trial judge refused to appoint co-counsel or an

investigator to assist his attorney. Riley again notes the

inexperience of his attorney, and he asserts that co-counsel

had been appointed in Kent County in prior capital cases.

Although Riley claims that the lack of co-counsel and an

investigator caused him "extreme prejudice," his brief

provides no details.

A. We turn first to Riley's argument that he was

constitutionally entitled to the appointment of co-counsel.

In some jurisdictions, there is a statutory right to the

appointment of two defense attorneys in capital cases. See,

e.g., 18 U.S.C. S 3005. However, we are aware of no

authority holding that the federal Constitution confers such

a right, and we see no basis for such a holding. The

Constitution specifies the quality of representation that all

criminal defendants, including capital defendants, must

receive, namely, "reasonably effective assistance."

Strickland, 466 U.S. at 687. The Constitution does not

specify the number of lawyers who must be appointed. If a

single attorney provides reasonably effective assistance, the

Constitution is satisfied, and if a whole team of lawyers

fails to provide such assistance, the Constitution is

violated. Thus, there is no constitutional right per se to the

appointment of co-counsel in a capital case. Bell v.

Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Jimenez v.

State, 703 So. 2d 437, 439 (Fla. 1997) (per curiam); State

v. Phelps, 478 S.E.2d 563, 574-75 (W.Va. 1996) (per

curiam); State v. Rodriguez, 921 P.2d 643, 652 (Ariz. 1996);

Spranger v. State, 650 N.E.2d 1117, 1122-23 (Ind. 1995);

Uptergrove v. State, 881 S.W.2d 529, 531 (Tex. Ct. App.

1994). Cf. Hatch v. Oklahoma, 58 F.3d 1447, 1456 (10th

Cir. 1995).

Riley's brief does not identify any unusual features of this

case that demanded the appointment of a second attorney.

While he does cite the inexperience of his trial attorney,

without a showing that this attorney did not provide the

level of representation required by the Constitution, we

cannot hold that the failure to appoint co-counsel to assist

him violated the Constitution.

B. We must also reject Riley's argument that the failure

to appoint a private investigator violated the Constitution.

In Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985),

the Supreme Court made it clear that there is no

constitutional right to the appointment of an investigator

where the defendant offers "little more than undeveloped

assertions that the requested assistance would be

beneficial." See also Gray v. Thompson, 58 F.3d 59, 66-67

(4th Cir. 1995), vacated on other grounds sub nom. Gray v.

Netherland, 518 U.S. 152 (1996). Riley has offered nothing

more here.

. . .

VIII.

Riley contends that the trial judge contravened the

holding of Witherspoon v. Illinois, 391 U.S. 510 (1968),

when the judge dismissed two jurors for cause after they

responded to voir dire questions concerning capital

punishment. In Witherspoon, the Supreme Court held that

members of a jury panel may not be excused for cause

"simply because they voiced general objections to the death

penalty or expressed conscientious or religious scruples

against its infliction." Id. at 522. Some lower courts,

however, interpreted footnotes in Witherspoon to mean that

potential jurors could be dismissed only if they stated

unambiguously that they would automatically vote against

the death penalty.5

The Supreme Court clarified the meaning of Witherspoon

in Wainwright v. Witt, 469 U.S. 412 (1985). The Court held

that "the proper standard for determining when a

prospective juror may be excluded for cause because of his

or her views on capital punishment . . . is whether the

juror's views would `prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.' " Id. at 424 (quoting

Witherspoon, 391 U.S. at 45). The Court noted:

[T]his standard . . . does not require that a juror's bias

be proved with `unmistakable clarity' . . . because

determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in

the manner of a catechism. What common sense

should have realized experience has proved: many

veniremen simply cannot be asked enough questions to

reach the point where their bias has been made

"unmistakably clear"; these veniremen may not know

how they will react when faced with imposing the death

sentence, or may be unable to articulate, or may wish

to hide their true feelings. Despite this lack of clarity in

the printed record, however, there will be situations

where the trial judge is left with the definite impression

that a prospective juror would be unable to faithfully

and impartially apply the law.

_________________________________________________________________

5. See Wainwright v. Witt, 469 U.S. 412, 419 (1985).

Id. at 424-26 (footnote omitted). The Court went on to hold

that a trial judge's finding under this standard is entitled to

the presumption of correctness in 28 U.S.C. S 2254(d).6 469

U.S. at 428. Applying these standards, the Court sustained

the dismissal of a juror who said, when asked whether her

beliefs would interfere with her sitting as a juror in a

capital case, "I am afraid it would" and "I think it would."

Id. at 416.

The two potential jurors at issue in the present case are

Mae Floyd and Gerald Mood. During Floyd's voir dire, the

following exchange occurred:

The Court: . . . Do you have any conscientious

scruples against finding a verdict of guilty where the

punishment might be death or against imposing the

death penalty if the evidence should so warrant?

Ms. Floyd: I would say yes, I think so.

The Court: You do have conscientious scruples?

Ms. Floyd: Yes.

The Court: Regardless of any personal beliefs or

feelings you have, if the evidence justified it, would you

be able to find a person guilty of murder in the first

degree and impose the death penalty?

Ms. Floyd: That is a hard one to tell you the truth.

The Court: I will repeat the question.

Ms. Floyd: I heard it. All right. Repeat the question.

The Court: I will repeat it. Regardless of your

personal belief or feelings, if the evidence justified it,

would you be able to find a person guilty of murder in

the first degree and would you be able to impose the

death penalty?

_________________________________________________________________

6. See also Deputy v. Taylor, 19 F.3d 1485, 1498 (3d Cir. 1994) (citations

omitted) (internal quotation marks omitted)("a trial court may excuse a

juror for cause where such juror's views would prevent or substantially

impair the performance of his duties as a juror in accordance with his

instructions and his oath. . . . [and] that a state trial judge's finding

that

a prospective juror is impermissibly biased against the death penalty is

entitled to a presumption of correctness under S 28 U.S.C.A. 2254(d).").

Ms. Floyd: That is a two-part question, right?

The Court: Yes, it is.

Ms. Floyd: The latter part--

The Court: First of all, would you be able to find a

person guilty of murder in the first degree?

Ms. Floyd: I may, yes.

The Court: And the second part is would you be

able to impose the death penalty?

Ms. Floyd: I tell you the truth I don't think so.

The Court: I will excuse you. Thank you very much.

App. 285-86 (emphasis added).

As both the Delaware Supreme Court and the District

Court observed, Floyd's responses were very similar to

those of the potential juror in question in Wainwright v.

Witt, supra. See Riley I, 496 A.2d at 1005-06 Riley VI, 1998

WL 172856, at *11. We agree with their analysis and hold

that Riley has not overcome the presumption of correctness

that attaches to the implicit finding of the trial judge.

The dismissal of the other potential juror in question,

Gerald Mood, took place after the following colloquy:

The Court: . . . . Do you have any conscientious

scruples against finding a verdict of guilty when the

punishment might be death or against imposing the

death penalty if the evidence should so warrant?

Mr. Mood: I don't know. I have mixed emotions about

that.

The Court: Regardless of any personal belief or

feelings that you have, if the evidence justified it, would

you be able to find a person guilty of murder in the

first degree and would you be able to impose the death

penalty?

Mr. Mood: Maybe I could. I don't really know.

The Court: I am going to excuse you sir . . . .

App. 276.

The District Judge aptly analyzed the dismissal of Mood,

and we adopt his analysis:7

Unlike venireperson Floyd, venireperson Mood's

responses were much more succinct. Mood twice

responded to the trial court's capital punishment

questions with the phrase, "I don't know." . .. .

Particularly in situations such as this, where an

individual's record response is so brief that its printed

reproduction reveals little, the Court should defer to

those credibility factors that would only have been

known to the trial court, such as the juror's demeanor,

tone of voice and attitude. See Witt, 469 U.S. at 434

(emphasizing importance of trial court's assessment of

venireperson's demeanor, particularly where printed

record may not be "crystal clear"). Accordingly, the

Court finds adequate record support for the trial

court's decision to excuse venireperson Mood.

Riley VI, 1998 WL 172856, at *12.

IX.

Relying on Morgan v. Illinois, 504 U.S. 719 (1992), Riley

argues that the trial judge erred in failing sua sponte to ask

prospective jurors during voir dire whether they would

automatically impose the death penalty if they found him

guilty. The District Court rejected this claim on the ground

that Morgan requires that such questions be asked only if

the defense so requests. We agree.

In Morgan, the Supreme Court framed the relevant issue

in these terms: "whether on voir dire the court must, on

defendant's request, inquire into the prospective jurors'

views on capital punishment." 504 U.S. at 726 (emphasis

added). The Court stated its holding as follows:

_________________________________________________________________

7. In addition, as the District Court noted, some of the answers given by

Floyd and Mood to questions not concerning capital punishment may

have influenced the trial judge's decision to dismiss them. Floyd revealed

that she knew Tyrone Baxter and was a casual friend of Baxter's mother.

Mood said that he was a good friend of one of the police officers involved

in the case and had served with him in the fire department. See Riley VI,

1998 WL 172856, at *12.

Petitioner was entitled, upon his request, to inquiry

discerning those jurors who, even prior to the State's

case in chief, had predetermined the terminating issue

of his trial, that being whether to impose the death

penalty.

Id. at 736 (emphasis added). The dissent described the

Court's holding in similar language: "The Court today holds

that . . . the Constitution requires that voir dire directed to

[reverse-Witherspoon] `bias' be provided upon the

defendant's request." Id. at 739 (Scalia, J., dissenting)

(emphasis added).

We cannot regard the Court's choice of words as

accidental, and we think that the holding of Morgan is

clear: a reverse-Witherspoon inquiry must be made "on

defendant's request." See United States v. Tipton, 90 F.3d

861, 879 (4th Cir. 1996).

Riley makes two arguments in response. First, he notes

that the state supreme court rejected his argument on the

merits, and he contends that "the State should not now be

heard to raise alleged procedural bars to federal court

resolution of the claim on the merits." Appellant's Br. at 52.

Our holding, however, has nothing to do with a procedural

bar, i.e., a state rule of procedure that bars a federal

habeas court from reaching the merits of a federal claim.

Rather, our holding is based on the fact that the

constitutional right recognized in Morgan applies only if the

defense makes a request for a reverse-Witherspoon inquiry.

Second, Riley argues that his trial attorney was

ineffective in failing to request reverse-Witherspoon

questioning. However, this argument was not made in the

state courts, and it is thus procedurally barred.

Under 11 Del. C. S 4209(g)(2), the Delaware Supreme

Court is required to undertake a proportionality review in

death penalty cases. The statute mandates that the Court

inquire into whether "the death penalty was either

arbitrarily or capriciously imposed or recommended, or

disproportionate to the penalty recommended or imposed in

similar cases." 11 Del. C. S 4209(g)(2)(a). In affirming Riley's

death sentence, the Delaware Supreme Court examined 21

cases, including five in which the death penalty was

imposed. It found that Riley's case was comparable to the

five death penalty cases (Whalen, Rush, Deputy, Flamer

and Bailey), because they all involved

an unprovoked, cold-blooded murder of a helpless

person (or persons) committed upon victims lacking the

ability to defend themselves and solely for the purposes

of pecuniary gain (except in Whalen's case). In none of

these killings is there any evidence of provocation or of

homicide committed out of passion or rage. In each

case, except Whalen, the murder occurred in the court

of a robbery that was deliberately planned and carried

out with the use of deadly weapons. In each case, the

perpetrators of these crimes offered no extenuating

circumstance for taking the life of another.

Riley I, 496 A.2d at 1027.

Riley challenges this finding on two grounds. First, he

points to the fact that two of the death sentences relied on

-- Rush and Whalen -- had been vacated. Second, he

argues that the remaining cases -- Deputy, Bailey, and

Flamer -- do not furnish appropriate comparisons because

each involved the killing of more than one person. He

maintains that these errors violated the Eighth and

Fourteenth Amendments.

It is clear that proportionality review is not required by

the federal Constitution. See Pulley v. Harris , 465 U.S. 37,

50-51 (1984). Riley justifies advancing his proportionality

argument in federal court on two grounds.8 First, he argues

that the allegedly improper review resulted in a punishment

that was "inherently disproportionate and, therefore,

arbitrary and capricious" in violation of the Eighth

Amendment. Appellant's Br. at 56. Second, he argues that

_________________________________________________________________

8. Ordinarily, federal habeas relief is not available for an error of

state

law: the habeas statute provides that a writ disturbing a state court

judgment may issue only if a prisoner is in custody"in violation of the

Constitution or laws or treaties of the United States." 28 U.S.C.

S 2241(c)(3). See Pulley v. Harris, 465 U.S. 37, 41 (1984).

Delaware's failure to abide by its own statutory scheme for

proportionality review violated due process. See Fetterly v.

Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) ("the failure

of a state to abide by its own statutory commands may

implicate a liberty interest protected by the Fourteenth

Amendment against arbitrary deprivation by a state").

Riley bases his first argument on the principle that"[i]f a

State has determined that death should be an available

penalty for certain crimes, then it must administer the

penalty in a way that can rationally distinguish between

those individuals for whom death is an appropriate

sanction and those for whom it is not." Spaziano v. Florida,

468 U.S. 447, 460 (1984). Riley claims that the

proportionality review conducted by the Delaware Supreme

Court in his case failed to protect him from arbitrary

imposition of the death penalty, and in fact upheld a

disproportionate punishment. This argument rests on the

premise that applying the death penalty in Riley's case

would be so disproportionate as to constitute cruel and

unusual punishment under the Eighth Amendment.

Therefore, Riley's argument really attacks the imposition of

the penalty itself, rather than the state's method of

reviewing proportionality.

Riley's argument is not tenable. The Supreme Court has

"occasionally struck down punishments as inherently

disproportionate, and therefore cruel and unusual, when

imposed for a particular crime or category of crime." Pulley,

465 U.S. at 43. However, in this case, Riley's crime--

killing a defenseless person without provocation in the

course of an armed robbery -- is not such that application

of the death penalty in these circumstances would"shock

the conscience." See Lindsey v. Smith, 820 F.2d 1137, 1154

(11th Cir. 1987); Spinkellink v. Wainwright, 578 F.2d 582,

606 n.28 (5th Cir. 1976). Riley has thus failed to show an

Eighth Amendment violation.

Riley's second argument is based on the principle that

when a state creates a right, the Due Process clause of the

Fourteenth Amendment entitles a defendant to procedures

to ensure that the right is not arbitrarily denied. He argues

that the Delaware Supreme Court, by failing to conduct an

adequate proportionality review as required by state

statute, denied him due process.

As a threshold matter, it is unclear whether, under Third

Circuit law, a state proportionality-review statute creates

any cognizable liberty interest for due process purposes.

See Frey v. Fulcomer, 132 F.3d 916, 925 n.7 (3d Cir. 1997)

(noting that Supreme Court precedent on this issue is in

flux). We need not address this question, however, because

even if Riley has such a liberty interest, he has not shown

any denial of due process. In evaluating a claim that a state

court erred in conducting its proportionality review, a

federal court may only inquire into whether the state court

"undertook its proportionality review in good faith and

found that [the defendant's] sentence was proportional to

the sentences imposed in cases similar to his." Walton v.

Arizona, 497 U.S. 639, 656 (1990). Because there is no

federal constitutional right to proportionality review, if the

federal court finds that the review was undertaken in good

faith, it cannot "look behind" the state court's conclusion of

proportionality to consider whether the state court

misapplied state proportionality law. See id.; Bannister v.

Delo, 100 F.3d 610, 627 (8th Cir. 1996). In this case, the

Delaware Supreme Court compared Riley's case with a

substantial number of other death-eligible cases, and, even

disregarding the two vacated death sentences, it found

common characteristics between Riley's case and three

other cases in which the sentence was not vacated.

Although Riley argues that these cases are not entirely

analogous, because each contained an additional

aggravating factor (more than one victim), there is no

indication that the Delaware court acted in bad faith in

conducting its review. We are thus without power to order

habeas relief.

XI.

We now turn to Riley's contentions concerning jury

instructions given by the trial judge at the sentencing

phase.

Riley argues that the jury instructions at the penalty

phase impermissibly restricted the jury's consideration of

mitigating circumstances. He takes issue with the following

instruction, issued at the start of the penalty hearing:

A sentence of death shall not be imposed unless the

jury finds:

(1) Beyond a reasonable doubt at least one statutory

aggravating circumstance; and

(2) Unanimously recommends, 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, that a

sentence of death shall be imposed. Where the

jury submits such a finding and recommendation,

the Court shall sentence the defendant to death. A

finding by the jury of a statutory aggravating

circumstance, and a consequent recommendation of

death, supported by the evidence, shall be binding

on the Court.

App. 392 (emphasis added). Riley contends that, given the

placement of the word "consequent," "a reasonable jury

could understand the underscored sentence to mean that

the effect of a finding that a statutory aggravating

circumstance existed, is that the death penalty must be

imposed." Appellant's Br. 59. Because the trial judge had

previously informed the jury that the statutory aggravating

circumstance -- commission of the murder during a

robbery -- had already been proven beyond a reasonable

doubt in the guilt phase, Riley argues that a reasonable

jury could have read the instruction to mean that it need

not consider mitigation evidence.

When reviewing a jury instruction that is claimed to

impermissibly restrict a jury's consideration of relevant

evidence, a court must ask "whether there is a reasonable

likelihood that the jury has applied the challenged

instruction in a way that prevents the consideration of

constitutionally relevant evidence." Boyde v. California, 494

U.S. 370, 380 (1990). If there is "only a possibility" of such

inhibition, however, the challenge must fail. Id . Moreover,

the challenged instructions "must be evaluated not in

isolation but in the context of the entire charge." Jones v.

United States, 527 U.S. 373, 391 (1999).

When the jury charge is read as a whole, there is no

reasonable likelihood that a jury could have understood it

to preclude consideration of mitigating circumstances. At

the close of the penalty hearing, the court again instructed

the jury in terms that cleared up any ambiguity that might

have been present in its earlier instruction:

In conclusion, a sentence of death shall not be imposed

unless you, the jury, find:

(1) Beyond a reasonable doubt at least one statutory

aggravating circumstance has been established;

and

(2) Unanimously recommend that a sentence of death

be imposed after weighing all relevant evidence in

aggravation and mitigation which bear upon the

particular circumstances and details of the

commission of the offense and the character and

propensities of the offender.

Should you fail to agree unanimously to either of these

two matters, the Court shall sentence the defendant to

life imprisonment without benefit of probation or

parole.

App. 438-40 (emphasis added).

This instruction made it clear that a jury was required

both to find at least one statutory aggravator and to weigh

aggravating factors against mitigating factors in order to

support a death sentence. This belies Riley's argument that

the jury was misled into believing that its job was done

once the felony murder aggravator was found.

Riley next takes issue with the trial court's failure at the

penalty phase to instruct the jury that it was required to

conclude unanimously that aggravating circumstances

outweigh mitigating circumstances before imposing death,

as required by Delaware law. See Whalen v. State , 492 A.2d

552, 560 (Del. 1985) (setting forth "outweighing" standard).

Rather, the court simply instructed the jury that it had to

"[u]nanimously recommend that a sentence of death be

imposed after weighing all relevant evidence in aggravation

and mitigation." App. 438; see also App. 392, 437.

This argument provides no grounds for habeas relief. The

federal Constitution does not require "specific standards for

balancing aggravating against mitigating circumstances."

Zant v. Stephens, 462 U.S. 862, 876 n.13 (1983). As long as

a jury is permitted to consider all relevant mitigating

circumstances in making its death recommendation, there

is no federal constitutional problem. In addition, Riley has

not suggested how a jury's decision would be any different

under the language the court used in this case. Because

the jury was instructed not to make a sentencing

recommendation until after it had "weigh[ed] all relevant

evidence in aggravation and mitigation," the necessary

inference was that the death penalty should be imposed

only if aggravating factors outweighed mitigating factors

(otherwise, the entire "weighing" process would be

meaningless).

Finally, Riley argues that the penalty phase instructions

improperly suggested that the jury had to be unanimous in

imposing a life sentence, in violation of Whalen v. State,

492 A.2d 552, 562 (Del. 1985). He points to the instruction

that "[i]f you are not unanimous in your recommendation to

impose the death penalty, or you cannot agree unanimously

as to your recommendation, then the Court is bound to

impose a sentence of life." App. 438 (emphasis added). The

word "recommendation" in the underlined phrase, he

suggests, could be read to refer to a life sentence

recommendation as well as to a recommendation of death.

As a threshold issue, the government argues that Riley

failed to raise this issue before the District Court because

he based his argument there "solely on the interpretation of

the interrogatories posed to the

This text is long and has been trimmed here. Open the source document for the complete record.

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.