# Riley v. Taylor

> Court of Appeals for the Third Circuit · December 28, 2001

URL: https://www.frixlaw.com/law-library/cases/3011476

## Case

- **Court:** Court of Appeals for the Third Circuit
- **Decided:** December 28, 2001
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3011476

## How later opinions describe it (automated extraction)

- stating that serious questions of pretext arise when the facts in the record are "objectively contrary to" the prosecutor's explanations
- stating that courts are not bound to accept race-neutral reasons that are either unsupported by the record or refuted by it

## Opinion text

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Precedential or Non-Precedential: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

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Volume 1 of 2

Filed December 28, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-9009

JAMES WILLIAM RILEY,
Appellant

v.

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.

2
After all, there can be no reconsideration after the
execution of a death sentence.

I.

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.

3
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

4
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:

5
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.

6
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.

7
its role in the sentencing process in violation of the Eighth
and Fourteenth Amendments. We will address each of these
arguments in turn.

A.

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.

8
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.

9
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.

10
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

11
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

12
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.

13
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

14
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.").

15
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:

16
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).

17
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.

18
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
of
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).

19
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

20
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

21
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

22
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

23
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

24
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).

25
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

26
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

27
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

28
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

29
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.

30
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

31
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
32
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).

33
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

34
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).

35
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

36
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.

37
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

38
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.

39
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.

40
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.

B.

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.

41
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).

42
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.

43
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

44
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.

45
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.

46
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,

47
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).

48
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.

49
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50
Volume 2 of 2

51
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.

A.

"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.

52
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.

B.

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.

53
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.

54
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-

55
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.

V.

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.

56
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.

A.

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.

57
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
in
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).

58
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 (11t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3011476. Public record. Not legal advice.